Landmark Constitutional Court judgment says mining rights do not trump lawful land occupier rights
25 October 2018
The public benches at the Constitutional Court erupted with song and applause on Thursday, as the court struck down an eviction order awarded to a mining company that had resulted in the removal of a community from the farm they had owned for almost a century.
The court overturned an eviction order by the North West High Court, awarded to Itereleng Bakgatla Mineral Resources (IBMR) and Pilanesberg Platinum Mines (PPM).
That order evicted the Lesetlheng Community from the farm, Wilgeheuwel 2 J.Q, that they had owned and worked on for nearly a century. It also prevented them from bringing their livestock onto the farm or erecting any structures on the land.
The Bench was unanimous on Thursday, in the judgment written by Acting Judge Xola Petse, that mining companies cannot simply remove land owners or lawful land occupiers from their land, even if the company has been awarded mining rights to mine the land in question. All dispute resolution mechanisms available in law must be exhausted before an eviction order can be sought, the court ruled.
In a case that strikes at the heart of the land question, Petse began by quoting Franz Fanon's The wretched of the Earth :
"For a colonised people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread, and above all, dignity."
Petse added: "Thus, strip someone of their source of livelihood, and you strip them of their dignity too."
He explained that the case concerned two competing rights: that of the applicants, the Lesetlheng community, to enjoy the farm which they had occupied since 1919, and that of the companies that had been granted the right to mine platinum on the land.
Or, "the right to engage in economic activity on the one hand and the right to security of tenure on the other".
Petse wrote: "That since ancient times land has been the most treasured possession to all and sundry throughout all generations is a truism that brooks no argument to the contrary. Currently, in South Africa, the clamour for redistribution of land has not only heightened interest in land but has also put at centre stage the socio-political discourse raging on in the country."
The applicants are informal land right holders, and this was not disputed by any of the parties.
They are the descendants of 13 families who came together to purchase the farm in 1919. But because of the law at that time, which obstructed black people from owning land, they could not register the land in their names.
The land was therefore registered in the name of the then-minister of native affairs and held in trust on behalf of the entire Bakgatla-Ba-Kgafela community, under which the Lesetlheng community falls, with the understanding that only the Lesetlheng community who had contributed to buying the land would be the effective owners of it.
In May 2008, the IBMR was awarded a mining right to mine platinum on the farm by the Department of Mineral Resources.
A surface lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority and the minister of mineral resources was signed a month later. In 2012, the IBMR and PPM concluded an agreement, whereby part of the mining right would belong to the PPM regarding a section of the farm.
Full-scale mining operations on the farm began in 2014, the court explained, interrupting the "peaceful and undisturbed occupation and enjoyment of the farm by the applicants".
In 2015, the Lesetlheng community applied for a spoliation order, arguing they had been deprived of their property. The court described the situation the community now found themselves in as "intolerable".
The order was granted, but the mining companies quickly went to court for an eviction order and an interdict stopping the community from entering the property, arguing that they had consulted with the land owners as part of the requirements set out by the Mineral and Petroleum Resources Development Act (MPRDA).
The Lesethleng community countered on several grounds, including that they were not properly consulted, and that they still had informal rights to the farm.
The Lesetlheng community lost in court, because, among other reasons, the court said they were not the true owners of the land, as it was not registered in their names. And because the community members had been "informed" by the companies that the companies now had mining rights to the land, they could not say that they had not been consulted, according to the high court.
The Lesetlheng lost on appeal in the Supreme Court of Appeal and petitioned the Constitutional Court.
On Thursday, the Constitutional Court held to a "well-entrenched" rule of law that an application for an interdict can only succeed "in the absence of any other satisfactory remedy".
Petse wrote that the respondents also could not show any provision in the MPRDA which says that a mining rights holder may evict a landowner or legal land occupier if the occupier does not want the mining rights holder to mine their land.
There are avenues which must be explored if a deadlock like this is reached, the court found, and these options are outlined in the MPRDA. The IBMR and the PPM did not explore all these avenues, said the court.
The court concluded that: "The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question."
In a statement, Louise du Plessis, land and housing manager at Lawyers for Human Rights, said: "This judgment is exactly the milestone mining communities needed, especially because it clearly outlined that having a mining right does not surpass the rights of those that are currently occupying the land."
