ANALYSIS: Game-changing ConCourt judgment empowers communities - experts

(Genevieve Quintal, News24)
(Genevieve Quintal, News24)

The Constitutional Court had not even adjourned when the benches spontaneously erupted into song and dance; the sense of relief and victory was palpable as the Lesetlheng community celebrated their win.

The morning of Thursday, October 24, 2018 will go down in history as the day the community was able to return to the land on which they had farmed for almost a century. But the day was also a day of precedent-setting proportions in law.

The court overturned an eviction order granted by the North West High Court, awarded to Itereleng Bakgatla Mineral Resources (IBMR) and Pilanesberg Platinum Mines (PPM), that saw the removal of the Lesetlheng community from the farm, Wilgeheuwel 2 J.Q.

The eviction order also prevented them from bringing their livestock onto the farm or erecting any structures on the land.

In the judgment, written by Acting Judge Xola Petse, the court unanimously found 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.

Mining rights no longer trump surface level rights, the court concluded.

Experts say communities affected by mining have been considerably empowered by the judgment.

Richard Spoor, a human rights lawyer who has worked extensively representing communities affected by mining, says the judgment changes the game in terms of compensation.

Before Thursday, he says, mining companies could "mine first, negotiate later". Communities lawfully occupying the land or owning it were literally negotiating compensation with mining companies while bulldozers dug up the ground.

The judgment does not go so far as to give communities the right to say "no" to mining companies who want to mine their land, but it does say that mining rights do not trump surface rights, he adds. This means mining companies cannot just remove communities standing in their way.

The problem is that the Minerals and Petroleum Resources Development Act (MPRDA) does not require mining companies to "talk compensation" before applying for mining rights – a "serious omission", according to Spoor.

"Literally, there are already bulldozers. Communities are compelled to accept agreements that are really prejudicial, but this judgment will really strengthen the community's bargaining position," he says.

It is an issue that overlaps with the Xolobeni case – where the community is fiercely opposed to proposed titanium mining on the Eastern Cape's Wild Coast. In the Xolobeni case, Spoor says the court has been asked to provide a declaratory order that is two-fold: firstly, deciding the question of whether communities can say "no" to mining companies and secondly, to clarify whether compensation must be determined before mining begins. Thursday's judgment goes some way to settling the latter question, but the former is still unanswered.

Louise du Plessis, land and housing programme manager at Lawyers for Human Rights, says the Lesetlheng community would have been deprived of their property rights had the Constitutional Court not ruled in its favour.

Overall, she said, communities will now be in a better position to negotiate the terms of their compensation. And mining companies will now have to negotiate with the true owners of the land, she said.

But what constitutes proper compensation, and how should this be decided? The answers aren't clear.

Du Plessis says part of this discussion should include whether farming or industrial action would better serve the community concerned. Mining companies might argue that they are providing jobs for the community members, but this does not always tell the whole story.

In just one example, one of the Lesetlheng community members was farming successfully, and commercially, on the farm. His farm is now a big hole, she says, pointing out that not all rural farmers are subsistence farmers.

Someone like him could have been offered a construction job by the mining company, but that does not account for the loss of an entire value chain of economic activity linked to his farm.

So what of the implications for communities affected by mining, economically?

Spoor says the costs of being displaced by a mine are underestimated. Moving communities is not easy, and often, he says, communities are simply moved to the nearest township.

"There's no land to go to," he says. It evokes images of forced resettlement during apartheid.

"We know a lot about the impact of this on communities. It is very significant. You take rural people and strip them of their land, and put them in a township – this happens all over Limpopo. It has a huge impact on women, who traditionally cultivate the land."

Mining companies typically offer compensation of the value of a hectare of the land, he says – usually in the region of R10 000 or R20 000 per person. But this does not compensate for the loss of livelihood, a sense of purpose, self-worth, lost place in the community and the networks and relationships disrupted by that process.

So, it is understandable that communities are often angry when they are approached by a mining company or the Department of Mineral Resources and informed that the land they own and live on is now going to be mined, and that the law requires them to negotiate away their way of life.

Until the question of saying "no" is resolved, at least Thursday's judgment means that traditional leaders can no longer negotiate with mining companies on behalf of communities. Experts say this practice is open to abuse and allegations of corruption.

Constitutional law expert at the University of Cape Town, Pierre de Vos, says the judgment's significance lies in the fact that mining companies can no longer negotiate with a chief or traditional leader and call this "consultation", which they are required to undertake in terms of the MPRDA.

Companies must now get consensus from the majority of the people who actually own and work the land before they can say that they have engaged in proper consultation, he says.

In this case, the IBMR entered into a surface lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority in June 2008 – a month after being awarded the prospecting right. In the High Court, the IBMR argued that they had held a consultation with the whole community in June 2008, when a surface level agreement was concluded. It had therefore complied with its obligations to consult with the affected people, the IBMR said.

However, the Constitutional Court found that the resolution adopted at this meeting only indicated that it was signed by the Bakgatla chief, Kgosi Pilane. The court said this was not enough.

The MPRDA allows expropriation as a method of last resort if communities refuse to vacate the land in question, and if mediation and other attempts to reach consensus on the issue between the community and the mining rights holders fail. But this is not what is really happening, as the court pointed out, says De Vos.

In reality, it is deprivation. Expropriation means: "I take ownership and give you some money", says De Vos.

But deprivation means that the property owner's ability to use the land is limited in some way. In this case, the eviction order meant that the Lesetlheng could not use their land at all.

With that order overturned, it is perhaps little wonder that the Constitutional Court building echoed with song on Thursday.

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