On the 22 November 2018 North Gauteng Judge Annali Christelle Basson ruled that the Department of Minerals (DMR) needs to obtain “full and formal consent” from the community of Xolobeni before it can grant a mining licence to the Australian mining company, Transworld Energy and Mineral Resources, a subsidiary of Mineral Commodities Limited. For over 15 years members of the Xolobeni and Mgungundlovu have resisted state and corporate attempts to mine minerals on their ancestral land in a struggle which has seen a number of activists assassinated.
The problems of the Xolobeni community came to the fore around 2002 when there were investigations into the mining potential of the area where the AmaDiba people have lived for centuries. A local and BEE company, the Xolobeni Empowerment Company (XolCo), is a partner to the Mineral Commodities Limited and assisted them in gaining rights to mining awarded by then minister Buyelwa Sonjica. It emerged later the BEE company allegedly forged the signatures of 3000 community members and after the AmaDiba Crisis Committee (ACC) challenged the awarding of rights to mining companies, the rights were revoked in 2008.
In revoking the mining rights, former Minister of Mineral Resources, Susan Shabangu allowed the voice of the community to have a chance to be heard. Besides the absence of a community resolution to consent to mining in the area, the ACC argues that the area is part of the Marine Protected Area where no commercial or mining activity should occur. The community also argued that the right to mine was granted by a party not authorised to grant consent and permission and that the community members were not properly consulted, including the local traditional authority.
The Minerals Resources Minister, Gwede Mantshe, has been a strong supporter of the mining company, and has been in conflict with activists opposing mining. This is despite Section 24 of the constitution that it says everyone has a right to the right to “an environment that is not harmful to their health or well-being”. The National Environmental Management Act 56 of 2002 states that “the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied”. The constitution and this act has been used by the community and activists to oppose mining in Xolobeni, but the minister has been eager to overlook all of this. Following Judge Basson’s verdict that communities have a right to say no to mining, Mantashe expressed disappointment at the court finding in favour of the community, saying the ruling could mean building new mines might not ever happen again in South Africa
The ACC issued a statement saying “We celebrate our fallen heroes, Madoda Ndovela, Scorpion Dimane, Mthanjelwa Mpotomela Mthwa (“Bhalasheleni”) and many others who lost their lives when defending our ancestral land against the greed of the elite and capitalist “development” for short term gain and profit to the few, whether they are White or Black.” The statement also calls for justice for Sikhosiphi ‘Bazooka’ Radebe, who was assassinated in March 2016. It demands that the “corrupted Hawks in Eastern Cape and the paralysed NPA stop blocking the investigation. We demand that the Hawks in EC take their hands from the murder docket and give it to honest SAPS officers who know what their job is.”
Unless overturned by a higher court, the landmark court victory gives Xolobeni and rural communities in general extra security in land tenure, and protects them against corporate interests as it requires the DMR to obtain a full and formal consent from the community before granting mining rights to companies. The ACC saw the outcome as a vindication for their position throughout the years.
The ACC returns to court on 3 December 2018, this time against the South African National Roads Agency SOC Ltd (SANRAL). ACC says it wants to stop the construction of the N2 Toll road which it says will split the Xolobeni community and destroy their livelihood.
