A landmark ruling not only gives the Eastern Cape community of Xolobeni the right to refuse mining in the pristine Wild Coast area but will extend this power to any community under customary law, according to a Business Day report. More than 15 years of fierce dispute over the potential mining of the titanium-rich dunes in the impoverished area culminated in Judge Annelie Basson, of the Gauteng High Court (Pretoria), ruling yesterday that Mining Minister Gwede Mantashe had no lawful authority to grant a mining right to an Australian company, Transworld Energy and Mineral Resources, unless ‘full and informed’ consent had been obtained from the surrounding Umgungundlovu community.

But the victory is bigger than just that, says Johan Lorenzen, associate at Richard Spoor Attorneys, which represented the community.

‘It’s not just for the Xolobeni community. It means communities that are under customary law have a right to say no before mining rights are granted,’ he said. Basson’s judgment said it was not disputed that the Umgungundlovu community held informal rights to the land in terms of the Interim Protection of Informal Land Rights Act (IPILRA), which protects the rights of customary communities.

She concluded that the Mineral and Petroleum Resources Development Act, under which mining rights are awarded, must be read together with the IPILRA. She ordered the Minister to obtain consent from the community, as a holder of rights in land, before a mining right can be granted.

Lorenzen said until now the Department of Rural Development & Land Reform typically obtained consent by having the local chief hold a meeting where a resolution would be reached by majority vote, regardless of whether the attendees have land rights or not. The department and the company were ordered to pay the community’s legal costs.

Full Business Day report

However, Mantashe has every intention to appeal the judgment.

The community needs mining in order to bring about much-needed development in the area, he claims. ‘If we say we are not going ahead with mining in that area, we must say so and close that issue and just stop mining,’ Mantashe is quoted as saying in a City Press report.

‘If we say it must go on then it must. What is not good for that area is that there has been a decision pending for 16 years on that mine and there is no conclusion on that matter. Xolobeni does need that mine; that is my view. Mining and tourism will be alongside each other but that will require access to the area,’ Mantashe said.

The Minister added that those who were frustrating the mining process in the area were those with big houses along the coast who did not want the community to be developed. Mantashe said that part of the judgments would have to be appealed as they took away government’s right to give mining rights to mining companies.

He insisted that this would lead to companies turning their backs on SA and mining being banned in the country.

In another City Press report, Mantashe said that leaving the option to communities to give the green light opened the door for major corruption.

‘Those communities may block an applicant for a licence because they have a preferred applicant somewhere else who they may bring later and when you do that the risk is that you will see a lot of corruption in the issuing of licences. We either look into sustaining and protecting mining or we take a decision that we are banning mining in the country and allow minerals to lie in the ground.’

First City Press report

Second City Press report