Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute

Authors

  • Mpho Tsepiso Tlale POST-DOCTORAL RESEARCH FELLOW

DOI:

https://doi.org/10.17159/1727-3781/2020/v23i0a6856

Keywords:

customary land rights, consultation, consent, custodianship, xolobeni, community

Abstract

The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.

Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

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Author Biography

  • Mpho Tsepiso Tlale, POST-DOCTORAL RESEARCH FELLOW

    The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.

    Nevertheless, the Department of Mineral Resources (DMR) and mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the consent of communities because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

References

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Case law

Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP)

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC)

Cape Explosives Ltd v Denel (Pty) Ltd 2001 3 SA 578 (SCA)

City of Cape Town v Maccsand (Pty) Ltd 2010 6 SA 63 (WCC)

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De Beers Consolidated Mines v Regional Manager, Mineral Regulation Free State Region: DME 2008 ZAFSHC 40 (15 May 2008)

Doe Run Exploration SA (Pty) Ltd v Minister of Minerals and Energy 2008 ZANCHC 3 (8 February 2008)

Ex Parte Geldenhuys 1926 OPD 155

First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services; First National Bank of SA Limited t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)

HTF Developer (Pty) Ltd v Minister of Environmental Affairs and Tourism 2007 4 All SA 1108 (SCA)

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Maccsand (Pty) Ltd v City of Cape Town 2011 6 SA 633 (SCA)

Maccsand (Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC)

Maledu v Itireleng Bakgatla Mineral Resources (Pty) Ltd 2018 ZACC 41 (25 October 2018)

Meepo v Kotze 2008 1 SA 104 (NC)

Metal and Allied Workers Union v Hart Ltd 1985 6 ILJ 478 (IC)

Minister of Defence and Military Veterans v Motau 2014 5 SA 69 (CC)

Minister of Minerals and Energy v Agri South Africa 2012 5 SA 1 (SCA)

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Pearly Beach Trust v Registrar of Deeds 1990 4 SA 614 (C)

Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 3 SA 454 (CC)

Willow Waters Homeowners Association (Pty) Ltd v Koka 2015 5 SA 304 (SCA)

Legislation

Constitution of the Republic of South Africa, 1996

Expropriation Act 63 of 1975

Land Use Planning Ordinance 15 of 1985

Interim Protection of Informal Land Rights Act 31 of 1996

Mineral and Petroleum Resources Development Act 28 of 2002

Minerals Act 50 of 1991

National Environment Management Act 107 of 1998

National Environmental Management: Integrated Coastal Management Act 24 of 2008

National Environmental Management: Protected Areas Act 57 of 2003

Promotion of Administrative Justice Act 3 of 2000

Government publications

Communal Land Rights Bill B67-2003

Gen N 510 in GG 40965 of 7 July 2017 (Communal Land Tenure Bill, 2017)

GN 1423 in GG 23740 of 14 August 2002 (Communal Land Rights Bill, 2002)

GN 1014 in GG 40277 of 15 September 2016 (Prohibition or Restriction of Prospecting or Mining in terms of Section 49[1] of the Mineral and Petroleum Resources Development Act, 2002 [Act No 28 of 2002])

GN R527 in GG 26275 of 23 April 2004 (Mineral and Petroleum Resources Development Regulations)

International instruments

African Charter on Human and People's Rights (1981)

Committee on the Elimination of Racial Discrimination General Recommendation 23: Rights of Indigenous Peoples UN Doc A/52/18 (1997)

International Convention on the Elimination of All Forms of Racial Discrimination (1965)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

United Nations Declaration on the Rights of Indigenous Peoples (2007)

Internet sources

Anonymous 2018 Baleni and 128 Others v Department of Mineral Resources and 6 Others https://bit.ly/2NhmdKq accessed 3 September 2018

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Department of Mineral Resources 2010 Guideline for the Submission of a Social and Labour Plan https://bit.ly/2P3dVrM accessed 23 August 2018

Fedderke J and Pirouz F date unknown The Role of Mining in the South African Economy https://cutt.ly/qyWoaLZ accessed 13 May 2020

Legal Resources Centre 2016 A Practical Guide for Mining-Affected Communities https://bit.ly/2vYrCNu accessed 30 June 2018

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Portalewska A 2012 Free, Prior and Informed Consent: Protecting Indigenous Peoples' Rights to Self-determination, Participation, and Decision-making https://bit.ly/2Nh9uY6 accessed 20 June 2019

Winks B 2013 Expropriation – A Minefield? https://bit.ly/30hisbr accessed 30 June 2018

Published

18-06-2020

Issue

Section

Case Notes

How to Cite

Tlale, M. T. (2020). Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute. Potchefstroom Electronic Law Journal, 23, 1-32. https://doi.org/10.17159/1727-3781/2020/v23i0a6856

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