The Constitutional Court – in Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another – has unanimously confirmed that mining companies, traditional leaders and the Departments of Rural Development, and Mineral Resources have been flouting the law and the Constitution.

‘The court put people and their rights back at the centre of the administration of their land, something they have been denied by practice and law for centuries,’ says Zenande Booi, of the Land and Accountability Research Centre in the UCT’s Department of Public Law.

In an analysis of the judgment in Business Day, she says the ruling comes after years of the constitutionally-protected land rights of South Africans living in the former homelands being ignored by all.

‘The facts of the case are intimately linked to the history of denying black South Africans the dignity of being able to own land individually or as families,’ she says, adding past distortions and lack of recognition of the systems – in terms of which black people hold rights to land and administer that land – has left millions of South Africans with legally insecure tenure. ‘For centuries they have been vulnerable to having their land taken away from them by the unilateral decision of traditional leaders or state officials – a practice that has continued in spite of the transition to democracy in 1994.’ The Constitution, she says, recognised that people who have had their rights to land denied and distorted are entitled to constitutional and statutory protection.

‘Section 25(6) and (9) of the Constitution requires that a person or community that has insecure tenure to land as a result of past racially discriminatory laws is entitled to secure tenure protected by legislation. As an interim measure, Parliament adopted the Interim Protection of Informal Land Rights Act in 1996 to protect rights contemplated in section 25(6).’ However, says Booi, mining companies continue to treat ‘communal’ land as vesting only in a ‘tribal’ entity that is under the control of a traditional leader.

‘Agreements are concluded with traditional leaders after little to no meaningful consultation with the families directly affected.’ She adds no attempts are made to obtain the consent of the people who hold rights to land before operations start. The court ruled that both the state and mining companies are bound by the Interim Protection of Informal Land Rights Act, and must therefore consult holders of informal rights to land, and obtain their consent, before they can exercise prospecting or mining rights.

Full analysis in Business Day

Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another