"3 court judgments that have changed the face of mining in SA"

Three recent court judgments have radically altered the mining landscape. Two deal with the need for miners to engage with local communities and take a hardline stance on the eviction of locals, and the third slapped down the mining minster for allowing coal mining in an environmentally protected area in Mpumalanga. The case that has perhaps the greatest import is the decision of the Constitutional Court to overturn an eviction order against 37 members of the Lesetlheng Community in North West Province to make way for mining on the land they had occupied for generations. The judgment in this case requires mining companies not just to consult with communities prior to commencing mining – but to also obtain the written consent of the individuals directly affected. This goes beyond what is required in many other countries, where consultation, but not consent, is sufficient...

“Historically, negotiating mining deals with communities in SA has been like stealing sweets from a baby. Communities lack the capacity to negotiate these deals, so they generally end up getting very little out of them. I think these recent cases swing the balance of power more in the direction of communities, which is how it used to be before the MPRDA came into being,” says attorney Richard Spoor, who has been involved in three of the cases on behalf of community interests. What about the claim that these cases will drive away mining investment? Mining attorney Manus Booysen of Webber Wentzel says the Xolobeni judgment and the requirement to obtain communities’ consent prior to the grant of mining rights, which is likely to be appealed by the minister of mineral resources, will damage an already battered mining sector. Spoor disagrees: “I don’t see it being much more difficult to obtain mining licences and to attract investment. I believe market forces will prevail. If the mining project makes financial sense, and the communities consent, then mining will occur.”