A critical analysis of the protection of informal rights in land against mining related land deprivations.

Abstract

In South Africa, land issues have always been a source of conflict. The recent years have seen the rise of conflict between the holders of informal rights in land and mining companies. These conflicts occur when the holders of these rights in land must be dispossessed of their rights in land to make way for mining. The process of dispossession creates a problem because the holders of informal rights contend that they cannot be removed from the land they possess without their consent. On the other hand, mining companies argue that they are only required to consult with the holders of informal rights in land, and getting their consent is not a requirement.These two conflicting positions were created by the two pieces of legislation that regulate these fields. The Interim Protection of Informal Rights in Land (IPILRA) which caters for the protection of informal rights requires that holders of informal rights in land cannot be dispossessed of their rights in land without obtaining their consent. On the opposite, the mining industry is regulated by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) which instructs mining companies to consult with people who will be affected by the mining. The contestation between the parties has been recently decided by courts of law. In the case of Maledu and Baleni, it was decided that the Acts are not in conflict with one another therefore holders of informal rights in land must be consulted and they must give their consent before deprivation of their rights in land. This is the current legal position regarding this issue, however, there have been serious issues raised against the ruling on both judgments. The purpose of this thesis is to thoroughly discuss the position taken by these judgments. It will look at how they enhance the protection of informal rights in land as required by even the Constitution. It was viewed as a victory for holders of informal land rights, hence it is necessary to interrogate the position in terms of its sustainability as IPILRA is a temporary Act that is renewed yearly. If the Act is replaced by another one that does not offer the consent requirement, everything will suddenly change.The thesis will further engage the criticism levelled against the decision of the courts. The rulings are criticised on the basis that they erode the powers of the State as the custodian of minerals to grant mining and prospecting rights. It further elevates holders of informal rights in land above those with formal rights in land. This creates an unfair inequality between the two forms of rights in land. Another important issue is surrounding the practical implementation of the consent requirement. This is based on the challenges that will arise in the process of obtaining consent from the people. As a result, a foreign jurisdiction’s legal position will be investigated to get some possible solutions to this issue.