Court hears Xolobeni community is in dark about Australian mining company's plans

Magistrate's Court. (Duncan Alfreds, News24, file)
Magistrate's Court. (Duncan Alfreds, News24, file)

An Australian mining company that has applied for rights to mine at the Umgungundlovu community of Xolobeni in the Eastern Cape, has left the community in the dark about how its plans would affect them, the North Gauteng High Court in Pretoria heard on Monday. 

The Amadiba Crisis Committee had launched a court battle against the Department of Mineral Resources and Australian company Transworld Energy and Mineral Resources (TEM) over mining rights. 

TEM, which is the fifth respondent in the matter, had filed an application for rights to mine the titanium-rich sands at the Umgungundlovu community of Xolobeni on the Wild Coast. 

The matter had to be moved from courtroom 6D to 6E to accommodate curious community members who had come out in numbers to listen.

They wore T-shirts bearing the words: "We demand the right to say no!"

'Vulnerable position'

Advocate Richard Spoor, who represented the community, argued that the mining company had not highlighted details of the process.

"We are completely in the dark about what is going to happen. The community is going to suffer a loss. How is the community going to live? Where are they going to grow their food? None of that has been provided in this mining plan," Spoor argued. 

"Mining may not commence until compensation has been agreed [on] or determined," he added. 

Should the mining rights be given to the company, the community would risk being displaced from their grazing land and their homes, Spoor submitted.

He said, although there had been an attempt to consult with community members, the outcome has not been positive. 

Advocate Tembeka Ngcukaitobi, who also represents the community, argued that the land had deep spiritual and religious connections. 

READ: Battle over mining rights in remote Eastern Cape villages

Ngcukaitobi argued that his clients were in a "vulnerable position" and that the government should not accuse his client of trying to sterilise the process. 

"The mere fact that they want consent, it does not mean they want to sterilise (the mining process). My clients have said the demand to be taken seriously does not amount to [sterilising]," he said.

Ngcukaitobi also argued that if the mining process was for the benefit of the community, then it should not be done without consent. 

"The government is about to make a crucial decision to allow a mining company to go into that area and disrupt people's lives. They could only make that decision with informed consent from my client.

"Indigenous people have the right to have their say. We know here that this mining operation will be disruptive of the cultural lives.

"It may be to the benefit of my client but, if it is for their benefit. Why should it be done without their consent?"


He said the application for rights to mine was a "serious invasion of the right to practice one's culture". 

In their heads of arguments, the applicants argue that, throughout the mining rights application process, the community has essentially featured as an "afterthought".  

The applicants fear that the mining right will have a severe negative effect on their land and community. This includes concerns about the impact of mining on water. 

The applicants also said they fear that mining will result in the "physical displacement of community members from their land or from their homes", which will lead to "economic displacement associated with the loss of assets or access to assets and resources".

However, advocate Vincent Maleka, who represented the State, argued that there was no need for the community to give consent. 

He argued that, if the applicant refuses consent, the Minister of Mineral Resources would then grant the rights in terms of the Mineral and Petroleum Resources Development Act.

He added that the right to minerals did not belong to any person, but it belonged to the State.  

The hearing continues on Tuesday.

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