In South Africa, traditional leaders had the unilateral power to enter into mining agreements without consulting or obtaining the consent of affected communities. But in 2018, a landmark judgement ruled that a community’s consent was required after recognising them as the lawful occupiers of their land. Louise du Plessis discusses the importance of the Maledu judgement for other rural communities and for negotiating improved benefits for local communities.
Tenure insecurity: the legacy of apartheid
Over the last two decades, platinum mining has expanded exponentially onto communal land in the North West Province of South Africa. This mineral-rich area falls under various traditional authorities – including the prominent Bakgatla ba Kgafela – and is one of the world’s largest platinum-producing areas. But this rapid growth in mining activity has been paralleled by increasing tensions over land rights between traditional communities, their traditional leaders and mining companies.
At the heart of these disputes lies tenure insecurity, which affects around 17 million people who do not have recorded rights to their land. The apartheid regime prevented rural communities and individuals from holding land in their own names, giving these rights and additional powers instead to selected traditional authorities – far more power than these authorities had previously enjoyed under customary law. With this came the power to negotiate deals with mining companies without the consent of the impacted land users.
When combined with insecure tenure rights, this situation has commonly led to abuses of power. But in the wake of the South African Constitutional Court’s landmark judgement in Maledu and Others v Itereleng Bakgatla Mineral Resources, the balance of power in favour of rural communities has shifted significantly.
Why is the Maledu judgement so important?
In 2018, Grace Masele Mpane Maledu and 37 members of her community sought to be recognised by the South African Constitutional Court as the lawful occupiers and owners of Wilgespruit Farm after a mining company was granted the rights to mine their land by the Bakgatla ba Kgafela traditional authority. But in a landmark victory, the Constitutional Court ruled in favour of the community and confirmed that their consent for both mining activities and relocation was needed. If the mining company failed to obtain that consent, the state would be required to expropriate the property.
Grace’s community are the descendants of 13 clans that had bought and farmed the land exclusively for nearly a hundred years but were later forced to register their land under the traditional authority. The significance of the Maledu judgement is that it confirmed that customary ownership is ownership in its own right and not merely ‘akin to ownership’.
A point of key importance is that the Maledu judgement was based on rights enshrined in the constitution and recognised in the Mineral and Petroleum Resources Development Act (MPRDA) and the Interim Protection of Informal Land Rights Act (IPILRA). The MPRDA Act governs the awarding of mining rights and includes ‘lawful occupiers’ in its definition of ‘owners’. Furthermore, the IPILRA recognises and protects the current land use of people living on and using communal land. Taken together, these provisions in law led to the Maledu judgment ruling in the community’s favour and removing any remaining ambiguities around the rights of informal land users
The impacts of the Maledu judgement for Wilgespruit Farm
For the community involved, the judgement had an immediate impact mainly because the mining company – after having invested considerable resources in exploration and development – were not willing to simply walk away. But the real impact can be seen by comparing what the company offered the community before and after the judgement. Pre-Maledu, the mining company was only willing to offer the directly affected occupiers a meagre cash payment, which was barely sufficient to cover the costs to relocate their cattle.
After the judgement and subsequent negotiations, the settlement compensation agreed by the mining company was significantly greater. It agreed to provide the community with alternative land for the lifespan of the mine, relocate the farmers and their farming activities, allow the community to return following the mine’s closure, and rehabilitate the land at the mining company’s expense.
In addition, the company agreed to meaningful engagement with the community on the content of the social and labour policies and plans for the mine, negotiated procurement policies, and financial assistance for the community, including money to pay independent legal advisors. The social and labour plans will now be developed in terms of government guidelines and will also benefit the broader community affected by the planned mining activities.
While the compensation the community received was not calculated on a specific basis, they were satisfied with it. But the mining company’s willingness to engage with the impacted community around procurement policy was highly significant. They agreed that 60% of all contracts associated with the mine must be awarded to the local community (provided they have the relevant skills). This has enabled individual members of the community to secure contracts from the mine and has the real potential to put the community in a better economic position.
In addition, following the judgement several important changes happened in the interactions between the mine and the affected community. For instance, the community was treated with more respect and dignity throughout the negotiation process. Consultation meetings began to be held at formal venues, whereas before outdoor consultations held under a tree were commonplace. More importantly, the community were now able to add their own issues to discussion agendas, seek independent legal representation, and were given access to the chief executive officer (CEO) of the mine – a decisionmaker who played a huge role in agreeing the final settlement with the community.
Wider impacts: towards land rights and tenure security for all
The Maledu judgement is so important because its findings apply to all communities within South Africa. By drawing on the provisions of the MPRDA Act and other legislative provisions, their land and tenure rights are secured. It has put poor rural communities in a powerful position: when companies seek to obtain mining rights on and access to communal land, they must obtain consent first.
In South Africa, it is now possible that even without having formally registered ownership, mining-affected land users and communities can be treated as if they did. This not only prevents easy evictions but also forces mines to meaningfully negotiate with impacted individuals.
The Maledu judgement shapes how we should see mining and other land-based investments if they are to truly benefit poor rural communities and ensure economic development. Most importantly, it functions as a looking glass through which it is possible to envision the future of purposeful and reconstructive justice.
Relevant RLBI Navigator resources
FAO (2014) Respecting free, prior and informed consent
This technical guide sets out practical actions for government agencies, civil society organisations, land users and private investors globally to respect and comply with their responsibilities in relation to FPIC.
World Bank and UNCTAD (2017a) Community engagement strategies – responsible agricultural investment
This note provides guidance for governments and companies on the overall approach to consulting, engaging and partnering with local communities, to bridge gaps in information and expectation between communities and companies, and create the social license to operate.
World Bank and UNCTAD (2017b) Community development agreements – responsible agricultural investment
This note provides guidance for governments and companies on negotiating, designing and implementing community development agreements with local communities in ways that benefit them.
World Bank and UNCTAD (2017c) Grievance redress mechanisms – responsible agricultural investment
This note provides guidance for governments and companies on how they can provide effective remedies to affected parties who perceive that their rights have been adversely affected by investments.
This guide provides information for communities who are, or who may be, harmed by projects sponsored by financial institutions, development banks and private groups. These tools may be used where a project has harmed communities or resources on which they depend or when there is fear of harm in the future.
These two guides provide guidance for communities and organisations that support them on how to prepare for interactions with potential future investors, and how to negotiate with them.
Landesa (2018) Free, prior and informed consent primer
This guide is directed at governments and companies seeking information on implementing FPIC principles in investment operations to safeguard the land rights of project-affected communities. It describes the key elements of FPIC, details steps that need to take place to ensure compliance with FPIC, and lists additional resources that business enterprises can consult for further guidance on how to adhere to the principles of FPIC.
This guide aims to help local organisations, communities and governments to carry out constructive, peaceful engagement and negotiation with companies and government.