Mineral resources minister Gwede Mantashe wants to ask unemployed people from surrounding villages whether mining should go ahead. Imagine that platinum was discovered under your house in Houghton. How would it be if the mineral resources minister polled the residents of nearby Hillbrow and Yeoville about whether mining should proceed on your land?
That, essentially, is what Gwede Mantashe proposes to do in Xolobeni on the Wild Coast. He wants to ask unemployed people from surrounding villages whether they would like the jobs promised — but seldom delivered — by mining. He will then make his decision based on “the will of the majority”. That includes those directly affected, of course. But they will be easily outvoted by people whose land rights are not affected, who will blame the people of Xolobeni for holding back their “development”.
The Xolobeni villagers argue that since it is only their homes, their fields and their grazing land that will be directly affected, they should be the ones consulted, not those living nearby. This view has been upheld by two important recent court judgments.
In its October 2018 judgment the Constitutional Court upheld an appeal against eviction by villagers in Lesethleng in North West. They bought their land a century ago, but because they were black they were not allowed title deeds. Instead the land was held in trust on behalf the Bakgatla Ba Kgafela “tribe”. The kgosi of the Bakgatla, Nyalala Pilane, is a director of the mining company that sought the community’s eviction. The judges in the case expressed incredulity that the company was moving on evictions without terminating land rights, or providing villagers with compensation.
In Xolobeni too, local traditional leader Lunga Baleni is a director of the mining company the villagers are resisting. Their situation is slightly different, though. They never purchased the land, they are the descendants of the amaMpondo people, who rose up against the Bantu Authorities Act in the 1960s and fought off efforts to move them.
The villagers of Xolobeni and Lesetlheng do not have formal title deeds, in both cases as a result of past racial discrimination.This disjuncture between “ownership-in-practice” and “ownership-in-law” is addressed in the constitution in section 25(6): A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by an act of parliament, either to tenure which is legally secure or to comparable redress.
A short placeholder law, the Interim Protection of Informal Land Rights Act (IPILRA), was enacted to give effect to this in 1996, pending full legislation to secure the land rights of the 17-million South Africans living in the former homelands. Twenty-three years on, the Act is still all we have. It provides that people may not be deprived of their informal land rights without their consent, except by expropriation. The Lesetlheng judgment in October and the Xolobeni judgment in the Pretoria High Court in November both upheld that mining cannot simply ignore the Act and confiscate informal land rights without consent or expropriation.
Mineral resources director-general Thabo Mokoena has echoed Mantashe’s view that the Xolobeni judgment heralds the end of mining in SA. Both argue that it removes the government’s power to issue mining rights. But this is not what the judgment says: it says the Act must be complied with before a mining right can be issued.
The Act is not about mining rights, it is about protecting land rights that are structurally vulnerable by requiring the consent of the people directly affected. It says if they do not consent, their surface rights may be expropriated.
Expropriation would require the acknowledgment of their rights — and payment of court — adjudicated “just and equitable” compensation. The villagers have not been told which pieces of land would be directly affected, nor what compensation would be payable. How can they consent without such key information?
Not content with appealing the judgment, the minister has rushed to Xolobeni to convince surrounding villagers to consent. He has missed the point that obtaining consent from people whose land rights are not at issue will not comply with the Act, and will fall foul of the courts. And in case Mantashe’s appeal and consent-seeking efforts fail, the governing party has rammed the Traditional and Khoi-san Leadership Bill through parliament. This will undermine both judgments by empowering traditional leaders to sign mining deals on behalf of rural communities.
Most corrupt deeds are in breach of the law. What do you call it when the government changes the law to attempt to override a Constitutional Court judgment? Our government appears hell-bent on reaffirming the apartheid distortion that customary systems do not constitute property rights for their members, rendering black land “free for the taking”. It is also perpetuating the framework that sees rural people remain tribal subjects rather than rights-bearing citizens.
It is time other South Africans paid attention. If the ANC is so cavalier about the property rights of its avowed core constituency — the poor and the marginalised — who is going to help you defend your property rights in Houghton?
Annika Claasen is chief researcher at the Land & Accountability Research Centre.