The discord between communities, traditional government authorities and large corporations is most evident in the ongoing legal and political land disputes – particularly in the former homelands.
These conflicts over land tenure coincide with increased commercial economic activity in these areas, especially in coal and platinum mining.
Recent court rulings and reports from land rights civil society organisations explain how some state authorities and corporations overlook legislated prescripts when initiating commercial land development projects in rural areas.
The marked undermining, lack of meaningful consultation and running roughshod over deeply rooted community interests, beliefs and dignity violates the constitutional rights of rural citizens and compromises household livelihoods in several ways.
Patronage networks between state officials, traditional leaders and large corporations are at the centre of these land disputes.
The Special Investigating Unit looked into allegations of corruption and elite patronage within the department of agriculture, rural development and land reform and its final report remains outstanding.
But there is hope that the upcoming Mapungubwe Institute for Strategic Reflection’s (Mistra’s) publication, which focuses on land contestations and the multiple meanings of land, will provide some insights on how to resolve these disputes.
These recommendations will likely posit an alternative land policy paradigm, which does not reduce South Africa’s land debate to market productivity or commercial agriculture.
Rather, the authors discuss land within a broader context, accommodating its intersection with citizenship, identity formation, democratisation and social cohesion.
The publication also draws lessons from state and society relations in land reform, using country case studies in Africa, South America and the Middle East.
This evidence illuminates the importance of maintaining state autonomy and inclusive regulatory practices in land governance. Land conflicts are exacerbated when governments cannot maintain a degree of autonomy from elite commercial and political interest groups.
A case in point that illuminates some of the recommendations that are contained in the upcoming publication was an urgent court interdict application by a holder of the Order of the Baobab in Silver, Grace Masuku, a conservationist and a royal descendant of the Bakgatla Ba Kgafela people, against the department of mineral resources, Motjoli Resources, Motjoli Iron Ore and Aquila Steel SA on the unlawful grant and transfer of the mining right that was heard on December 17 2020 before the Pretoria High Court.
The case involves a protracted battle between the Madimatle community, the Manaiwa family (whose family has ancestral graves on the disputed land), the Traditional Healers Organisation and nearby landowners.
The case merits were based on the mining and commercial interests of companies that wish to mine iron ore on the contested land, being current and former landowners and mining right holders, Motjoli Resources, Motjoli Iron Ore and Aquila Steel SA.
Aquila is an Australian-held and owned mining company that proceeded to prospect illegally on contested land in 2011, without following environmental prescripts. Aquila subsequently sold the land and ceded its mining right to a BEE company, Motjoli.
The contested piece of land is situated in the Limpopo province, about 30km from Thabazimbi.
It is made up of a three-peak mountain range, known as Madimatle (beautiful blood) mountain and what is called the Gatkop cave.
This land was a battlefield of various wars fought in the 18th century between the Afrikaners and Tswana people.
It is also highly regarded as sacred land by not only the people of Madimatle but other people who travel to the land from Southern Africa, seeking refuge and healing, and who also undertake traditional initiation practices.
Masuku and the interested parties, assisted by Werksmans Attorneys, launched review proceedings in 2019 against the minister of mineral resources and the Motjoli entities, seeking an order from the court to review and set aside the unlawful grant and transfer of the mining right by the department of mineral resources, on the basis that the mining right was unlawfully granted in the first place, the grant was not followed by due public participation and environmental laws were flouted.
This review application has not yet been heard and is currently under case management in the Pretoria High Court.
Meanwhile, the SA Heritage Resources Agency (Sahra), which is tasked with protecting, safeguarding and grading the nation’s heritage site, determined on October 14 2020 that the land should be considered a provincial heritage site by the Limpopo Heritage Resources Agency.
On investigation, it found that the cave and the mountain have unique attributes that make them culturally and spiritually significant land that ought to be protected. The process to grade the site is under way.
Notwithstanding the facts that the main review court is to determine the legality of Motjoli’s mining right and Sahra has determined the sacred nature of the contested land, the Motjoli entities elected to descend on the mountain, proceeding to commence with box-cutting and bulk sampling activities in the latter part of November, determined to undertake mining activities.
On December 17, the High Court ordered the Motjoli entities to immediately stop the mining activities, pending the finalisation of the main review application, and remarked about the lack of public participation and community engagement that preceded the grant of the mining right.
The Mistra publication recommends that the state begin to take seriously the interests and rights of rural communities prior to the undertaking of commercial activities and for the communities themselves to exercise their autonomy in protecting their heritage, dignity, and cultural and religious practices, which are often intertwined with land rights and occupation.
This dovetails with the overarching theme of the multiple and layered meanings of land.
Bulelwa Mabasa is a director and head of land reform restitution and tenure at Werksmans Attorneys and Khwezi Mabasa is senior researcher: political economy at Mistra