Today, we received Minister Gwede Mantashe’s appeal against the Xolobeni judgment that customary communities in South Africa have a #Right2SayNo to mining right applications.
The 22 November judgment in Pretoria High Court aid that mining companies must comply with the Interim Protection of Informal Land Rights Act (“IPILRA”) before they can have mining rights under the MPRDA, the mining law.
Because of South Africa’s apartheid and colonial past, IPILRA requires community consent before any deprivation of land rights.
The Chair of ANC and Mining Minister Gwede Mantashe doesn’t respect our and other customary communities’ right to make decisions about our own land.
You can appeal Minister Mantashe. We will fight you all the way to the Constitutional Court.
But we also want to say Mr Mantashe’s attack on the judgment is absurd. Even if he is not embarrassed, ANC should be.
1. He tries to appeal by arguing that granting mining rights is not a deprivation of land rights.
Every mining affected community know that this is ridiculous. Try plouging your field and graze your cattle with a giant hole in your land. Try to use the contaminated water.
2. The Minister of Mining and Chair of ANC complains that providing a customary community like ours special protection violates the constitutional right to equality because customary communities then would have protection that private farmers don’t.
But this protection is exactly in line with the Constitution and the MPRDA. It is in the 22 November judgement that the MPRDA was passed to address the gross economic inequality of ‘the architecture of the apartheid system’ that resulted in black people only owning 13% of South Africa’s land.
As the 22 November judgment said:
“The community of Umgungundlovu is therefore strongly opposed to the proposed mining activities of TEM on the basis that it will not only bring about a physical displacement from their homes, but will lead to an economic displacement of the community and bring about a complete destruction of their cultural way of life.”
Minister Gwede Mantashe says it is “discrimination” to let our community tell the Australians that we make our own decisions about the land. This right is what our ancestors defended against apartheid oppressors and colonisers, like in the Pondo Revolt.
Minister Mantashe’s appeal goes exactly against Cabinet’s statement welcoming the Constitutional Court recent judgment in Maledu. The Government said:
“The victory of the Lesetlheng community in North West signals a start to the recognition of land rights of which South Africa’s historically oppressed people had been deprived for generations. Where mining impacts on settlements, families and communities, people directly affected by mining must consent to any changes affecting their land rights.”
We trust the Cabinet will inform Mr Gwede Mantashe about this statement of the Government.
After he is now also appealing against our Right to Say No, we hope that Minister Mantashe stops to push himself to come to our community.
He is not welcome.
We conclude by quoting the wonderful judgment which we are ready to fight for:
“Having regard to the overall purpose of the two acts and given the status now afforded to customary law under the new constitutional dispensation, I can see no reason why the two acts cannot operate alongside one another. Moreover, having regard to the special protection granted to traditional communities in terms of IPILRA, I am of the view that communities such as the applicants are, as they must be for the reasons set out above, afforded broader protection in terms of IPILRA than the protection afforded to common law owners (as contemplated under the MPRDA) when mining rights are considered by the Minister. This is not to say that the MPRDA does not apply. It does, but so does IPILRA which imposes the additional obligation upon the Minister to seek the consent of the community who hold land in terms of customary law as oppose to merely consulting with them as is required in terms of the MPRDA. Granting this community special protection is not in conflict with the provisions of the MPRDA and especially section 23(2A) where it is made clear that protecting community rights to land is part of the purpose of the MPRDA.”