'We will never stop fighting against the mining' – Xolobeni community after court victory

The Department of Mineral Resources says it has noted the North Gauteng High Court judgment which ruled that the Xolobeni community, which has been fighting against their land in the Eastern Cape being reduced to quarries, has the right to say no to mining.

The department told News24 it was studying the judgment and would pronounce on the matter in due course.

The North Gauteng High Court made its ruling on Thursday after the Amadiba Crisis Committee (ACC) launched a court battle earlier this year in an attempt to stop the Department of Mineral Resources from giving mining rights to Australian company Transworld Energy and Mineral Resources (TEM).

The land in question is in Umgungundlovu on the Wild Coast and covers an area of around 2 859 hectares, court papers revealed.

In her judgment, Judge Annali Basson said that several hundred people and their ancestors had lived on this land according to their customs and traditions for centuries and that there were family graves in the area which are considered essential sites for family and community rituals.

Basson also noted that this was not the community's first battle. She noted that in previous years they also faced attempts to remove them from the land and relocate them.

20-year battle

"They have successfully resisted these attempts precisely because of the fact that such a relocation would result in them leaving behind the graves of their ancestors," Basson said in her judgment.

READ: Mantashe meets with Xolobeni anti-mining activists

ACC member, Siyabonga Ndovela told News24 that they had been fighting for the preservation of their land for about 20 years because they know its value and have no choice but to save it for future generations as their forefathers did before them.

"We will never stop fighting against the mining," said Ndovela.

"The mining is going to take away our land. We have to fight for the land, that is our legacy."

The community placed its arguments before court, depending on their informal rights of the land as defined by the Interim Protection of Informal Land Rights Act (IPILRA) and that they occupy their land in accordance with their law and custom.

Land according to this community's customary law accrues to persons by virtue of them being members of the Umgungundlovu community.

Government refused to acknowledge rights 

They also argued that community members who live within or near the proposed mining area fear the disastrous social, economic and ecological consequences of mining.

For generations, many of the applicants have utilised the land for grazing of their livestock and for the cultivation of crops. They also depend on it for water supply, Basson said.

However, in its arguments TEM did not recognise that the applicants have a right to consent prior to the granting of a mining right, Basson noted.

She added that the first to fourth respondents (government parties), including the Department of Mineral Resources, likewise refused to acknowledge that the applicants have a right to consent to a mining right.

The respondents further argued the Mineral and Petroleum Resources Development Act (MPRDA) trumps IPILRA and maintained that in terms of the MPRDA, no land owner can have a right to refuse consent to mining.

Basson declared that the MPRDA stated the mineral resources minister must obtain consent from the community, as the holder of rights on land, prior to granting any mining right to TEM.

She further declared that any decision to grant a mining right would constitute a deprivation of rights, including informal rights.

READ MORE: Mantashe: We've heard Xolobeni oppose mining, now they must hear those who want it

"It is declared that the first respondent (minister of mineral resources) may not deprive the applicants of any of their rights in land without complying with the living customary law of the Umgungundlovu community and of the amaMpondo people, which is law protected by sections 211 and 212 of the Constitution," Basson said.

In her conclusion, Basson said the MPRDA and IPILRA must be read together, in keeping with the purpose of the IPILRA to protect the informal rights of customary communities that were previously not protected by the law.

"The applicants in this matter therefore have the right to decide what happens with their land."

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