OVERVIEW

Under the umbrella of the Advancing Land-based Investment Governance (ALIGN) series, the second webinar of the series “The Maledu Judgement: The power of tenure rights recognition” took place on March 22nd, 2023.  The webinar drew in a little over 230 participants and featured panelists from the private sector, members of mining-affected communities and practitioners.   The series is organized by a consortium of organizations, including the Land Portal Foundation, CCSI, IIED and Namati.  

The webinar was organized around three main themes: 

• What are the implications of the Maledu judgment and what the judgment means for accountability towards individual and community land rights?  
• What are the benefits of the Maledu judgments for communities? Have there been any other benefits that were unanticipated?
• How does  such a model of cooperation function and how does access to information, such as information on land rights, support such cooperation in a context of the Maledu judgment?

Charl-Thom Bayer, Land Information Management and Advocacy Consultant at the Land Portal, moderated the panel, which featured the following speakers: 

• Donny Matshego, Local Community Member
• Erich Clarke, Chief Executive Officer, Sedibelo Platinum Mines Limited
• Louise du Plessis, Head of the Land and Housing Programme, Lawyers for Human Rights (LHR)
• Monica De Souza Louw, Deputy Director, Land and Accountability Research Center (University of Cape Town)

Please see a recap of round 1 of the panel below and watch the replay at the bottom for the full captivating conversation. 

What are the implications of the Maledu judgment and what the judgment means for accountability towards individual and community land rights?  

Louise, Lawyers for Human Rights: The Wilgespruit community is a community who bought the land in 1999.  In South Africa, there are layers of land rights that make it very difficult to untangle many issues and this has also happened in this community.  Despite the fact that the thirteen clans bought the land, the land was registered in the name of the Minister of Rural Development in trust for the community.  It is therefore difficult to know who is really the land owner, but de facto our clients are definitely the landowners because they've used the land exclusively for more than almost more than 100 years. So what's happened  is that the people in mine moved on this  land and in 2015 took a simple common law application to the High Court and managed to see that the community be dispossessed of their land.   Shortly after that the Mine Institute Eviction Application against the community to try to get them off so that they could commence mining activities on the land.  In this case, it ended up in a Constitutional Court. Initially the eviction application was granted, but the Constitutional Court overturned it. This is where the importance of the Maledu Judgment comes in.  Before the Maledu Judgment it was easy for a mining company to use the mining right to get an eviction application against communities who are occupying land or any other person who is the rightful owner owner occupier of the land. After Maledu, the community either has to consent for a deal to relocate, otherwise the government must expropriate the community.  So in that sense, it puts the community in an extremely good position to negotiate a deal with the mining company like in the Maledu case. 

Donny, Local Community Member: This situation gave us a very clear direction in terms of how to engage with affected parties, as there are a number of them. It provides a clear avenue to proceed. It gave us the mining operation and the community  guidelines to proceed. With that background we came together as equals. You will often find in the negotiation there is always one partner who has the power and this judgment leveled the playing field with regard to that. We can everybody sit at the table and look at the benefits of all the partners. 

Eric, Sedibelo Platinum Mines Limited: So our company Sedibelo had, prior to Maledu, consulted with tre tribal authority but what we realized as this Maledu Judgment came is that it clarified and set the way forward for us as a mining company and for the community. Itactually made it easier, for us to get together because it paved the way. In any negotiation,  this was two parties coming together and obtaining consent and finding a win-win solution for all parties. So how has this affected Sedibeloand our future?  It's quite simple. We need to increase our due diligence, we need to understand more about the community. We need to understand more of the interactions between tribal and the people occupying the land or owning the land. And this judgment actually helped and paved the way. What was good is that we came together and we came together to find a common good  for all parties. The result was that we have a very good settlement, a settlement that not only benefited  the owners, but it benefitted the mining companies and the  greater community, through employment procurements and the social labor plan. 

Monica De Souza Louw, Land and Accountability Research Center: The first thing is that Maledu made it clear that the mining legislation cannot trump the legislation that  protects people's customary rights to the land, which was an important declaration in itself. But what it did in a practical sense, was make these rights visible, which were previously invisible. Why did Sedibelo not see these rights before and the people who are holding them? It's convenient and easy to speak to a single authority, rather than multiple complicated stakeholders. But there are structural reasons for that invisibility too.  One of the structural reasons we found is actually the legislation governing traditional authorities in the country. And what this legislation ended up doing was really emphasizing the role of the traditional authority and its relationship with the state rather than a traditional community and its members, and what might be happening within that community on the ground. 

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