RAMABINA MAHAPA: Judgments affirm the place of informal land rights in law

Two judgments in SA courts have been game-changers for communities living on land under the authority of traditional leaders. The 2018 Xolobeni case (Baleni and Others vs Minister of Mineral Resources and Others) affirmed that holders of informal land rights under the Interim Protection of Informal Land Rights Act (IPILRA) must provide their consent before the mineral resources & energy minister can lawfully grant a mining right.

The 2021 Ingonyama Trust case (Casac and Others vs The Ingonyama Trust and Others) affirmed that the IPILRA applies to land held by the Ingonyama Trust and elaborated on what compliance with the law means under Zulu customary law.

The judgments have redefined the relationship between mining and land laws. In both cases the IPILRA has provided affirmation of rights that have been trampled. The Xolobeni judgment cemented the view that the Mineral & Petroleum Resources Development Act (MPRDA) and IPILRA must be read together. This places clear obligations on the mining industry, which has long advocated for the mineral resources law to trump the IPILRA.

The MPRDA emphasises the need to consult landowners and lawful occupiers before approval of mining, while the IPILRA requires the consent of holders of informal land rights. The Xolobeni judgment also articulated what compliance with IPILRA in relation to the Amadiba community in the Eastern Cape entails.

The objective of IPILRA is to provide temporary protection of informal land rights that are not otherwise adequately protected by law. Section 25(6) of the constitution says [a] person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled either to tenure that is legally secure, or to comparable redress. Section 25(9) says parliament must enact legislation referred to this effect.

Decision-making processes under the Amadiba community

Xolobeni is part of the Amadiba community, whose land in the Wild Coast area is held on a communal basis. It has been in the public eye for a long-running battle with titanium mining interests, centred on the assertion by some members of the community of the land rights protections the IPILRA provides, especially the requirement that if the community is to be deprived of their land it should be in accordance with the custom and usage of that community.

The Pretoria high court noted that the decision-making practices of the Amadiba are not conducted on a simple majoritarian basis as required by the IPILRA. “Often a higher degree of consensus and circumspection is required to pass a decision in respect of issues that [have] the potential of conflict and division”, the court said.

The court preferred an interpretation of the IPILRA grounded on the custom and usage of the Amadiba community, which requires the building of consensus rather than majoritarian rule. It is worth noting that the concept of making decisions by popular support through voting in the context of a community assembly was first introduced by the Native Administration Act of 1927.

The court confirmed that simple majority support for mining in the Amadiba community would not be sufficient grounds to consent to mining under customary law. It also cautioned that we should not view the complex decision-making processes in the Amadiba community as impeding mining development. It said: “If those community members who will be negatively affected by the proposed mining activities were guaranteed compensation that will be sufficient and acceptable to them to make up for any harm and/or loss that they will suffer as a result of mining and, provided that they are willing to be displaced and resettled elsewhere, they may consent to mining activities.”

Decision-making processes under the Ingonyama Trust

An important lesson in the Ingonyama Trust judgment is the distinction to be made between sections 2(1) and 2(2) of the IPILRA. The Pietermaritzburg High Court said that once land is allocated it is taken out of the realm of communal ownership and cannot be interfered with, except with the consent of the allottee.

The court confirmed that under Zulu customary law each family head has the right to be allotted a family home site, arable land and the right to graze their livestock on pasture lands. The land is allotted to an individual without requiring anything in return, such as a purchase price or rental. Clarifying the question of ownership of such land, the court said: “Once a portion of land has been allocated to a particular individual as residential or arable land, it is automatically taken out of the realm of communal ownership.” It emphasised that allocated land is sacrosanct, which means it is inviolable and inheritable. A person cannot be deprived of their allocated land without their involvement and consent.

The court asserted that unallotted and common land (such as grazing land) is communally owned by all members of a particular community under Zulu customary law. It confirmed that it is only unallocated and common land that requires prior written consent of a traditional or community authority for it to be encumbered, pledged, leased or alienated by the Ingonyama Trust.

This has important implications for mining companies seeking to conduct mining activities on land under the Ingonyama Trust. For access to unallocated and common land they must consult and seek the community’s consent; for allocated land they must consult and seek the consent of those who have been allotted the land, not traditional authorities.

The prevailing practice in the mining industry has been for companies to consult only with traditional authorities, which claim to act on behalf of rural residents. In many cases this has caused deep divisions within communities due to the perception that traditional authorities have accepted terms unfavourable to the residents.

The Xolobeni judgment holds that the IPILRA requires that the full and informed consent of directly affected holders of rights must be obtained before a mining right is granted over land held in terms of the IPILRA and customary law. The Ingonyama Trust judgment clarified the decision-making processes required for land under Zulu customary law.

While these judgments have asserted the informal land rights protections provided by the IPILRA, if communities refuse to consent to mining after all processes have been exhausted the Act and the constitution provide a mechanism for the state to expropriate their rights to land in the public interest. However, these judgments also make it clear that the claim to informal land rights cannot be ignored simply to facilitate the economic interests of others.

• Mahapa is a researcher with the Land & Accountability Research Centre in the department of public law at the University of Cape Town.