Although mining is a major contributor to the South African economy, it goes without saying that the granting and execution of a mining right represents a grave invasion of a landowner’s right of use and enjoyment of the surface, says the writer. Picture: BLOOMBERG
Although mining is a major contributor to the South African economy, it goes without saying that the granting and execution of a mining right represents a grave invasion of a landowner’s right of use and enjoyment of the surface, says the writer. Picture: BLOOMBERG

The current clamour for redistribution of land in SA has heightened interest in land reform and placed raging sociopolitical discourse at centre stage.

During his keynote address at the African Mining Indaba, mineral resources minister Gwede Mantashe stated that mining activities must be conducted in a “socially responsible way”, and that the mining sector should ensure companies focus on “the interests of all stakeholders, including those who live in mining areas”.

Although mining is a major contributor to the South African economy, it goes without saying that the granting and execution of a mining right represents a grave invasion of a landowner’s right of use and enjoyment of the surface. In this regard, the provisions of section 5(3) of the Minerals and Petroleum Resources Development Act (MPRDA) echo two fundamental common law principles. Both foster the co-existence of the mining right holder’s right to access the land to which the mining right relates, and the obligation of the right holder to cause the least possible inconvenience to the landowner.

Although our law tries to reconcile, as far as possible, competing rights of the owner of the surface rights and holder of a mining right, a situation may arise where the conflict is insoluble and there is no room for both parties to exercise their rights simultaneously. Accordingly, the purpose of the different requirements relating to notification and consultation underscored by the MPRDA is to determine whether the holder of the mining right can be accommodated insofar as the mining activities interfere with the landowner’s right to use the property.

In Maledu and Others versus Itereleng Bakgatla Mineral Resources and Another (Maledu), the members of the Lesetlheng village community and holders of informal land rights under the Interim Protection of Informal Land Rights Act (IPILRA), cited as the applicants, contended that they were the true owners of the farm Wilgespruit in the North West, and that Itereleng Bakgatla Mineral Resources and Pilanesburg Platinum Mines, cited as the respondents, were in terms of the law required not only to notify them of their application for a mining right but also to adhere to the consultation process.

In contrast, the respondents sought to argue that the applicants’ informal land rights were terminated in terms of Section 2 of the IPILRA upon the award of the mining right, and that the applicants’ occupation of the farm was therefore unlawful. The respondents argued that Section 54, which is aimed at striking a balance between the surface rights of the landowner and the rights of the mining right holder, only applies where the occupation is lawful, but given the unlawful occupation of the farm by the applicants there was no obligation to comply with the provisions of the Act prior to approaching a court.

Mindful of a past characterised by a legacy of land dispossession, insecure land tenure, historically contested customary ownership of land and racially discriminatory laws and practices, the Constitutional Court emphasised that the constitution places a high premium on the absolute need to redress the social injustices of the past and entitles any person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws to a tenure that is legally secure, or to comparable redress. In this regard, the purpose of the IPILRA (as is evident from its preamble) is to provide secure tenure to historically disadvantaged communities, prevent the deprivation of informal rights to land, and ensure communities have a right to decide what should happen to land in which they have an interest.

The implication of the Maledu judgment is that the MPRDA cannot be read in dissonance with other statutes such as the IPILRA that have an impact on mining activities. It follows that the granting of a mining right does not nullify the occupational rights of informal right holders and absolve the holder of the mining right from taking reasonable steps to exhaust the Section 54 process before approaching a court. In fact, holders of informal rights under the IPILRA cannot be deprived of their rights without either consent or expropriation. Accordingly, the holder of a mining right is not entitled to commence mining activities on the land in question before exhausting the process set out in Section 54, which includes the payment of compensation to occupiers, including holders of informal rights to land.

• Mukhovha is an associate in the corporate/M&A practice of Baker McKenzie Johannesburg.