Author: Manus Booysen, iAfrica, Published on 6 February 201

"Mining Rights And Communities-Does The Xolobeni Judgement Take South Africa Forward or Backwards?" 4 February 2019

The minister of mineral resources is correct to appeal the recent judgment in the Xolobeni case which prevents him from granting a mining right without the permission of the community. The judgment undermines the current legislative structure around mining rights and has the potential to deter further investment. A prolonged and sometimes violent dispute within the Mpondo community around Xolobeni on the East Coast over the application by Transworld Energy and Mineral Resources to mine titanium-rich sands culminated in a judgment delivered in November.

…The distinction between “consultation” and “consent” is important, Judge Basson ruled in granting the Xolobeni application, because the mining right would deprive the community of its use of the land. Traditional communities enjoy special protection and the status of customary law is recognised in the Constitution. The community’s consent would have to be granted on the basis of customary law – in this case, a consensus decision – rather than common law, which requires only a majority vote….On 12 December, minister Gwede Mantashe told media that he would appeal the Xolobeni ruling because “when the judgement says you must get full consent of communities it means the state no longer has the authority to issue licences. It is communities that must issue licences. If we agree to that there is going to be chaos.”

…Elevating customary law above common law takes the legal system back to the point where an individual or group of individuals can hold the rest of society to ransom. Law has moved on since then, to the point where if the state needs land, it can expropriate an individual landowner’s property against his consent, as long as the landowner is paid a market-related price for it.