Duty to Consult and Exhausting Internal Remedies

Written by: Andy Kabeng

Introduction

The distinction between land rights and mineral rights brought about by Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) has been a contentious issue and resulting in a flood of litigation being brought before the various courts.

This article will investigate the circumstances under which the provisions of the MPRDA impose a duty on a right holder to consult with interested and affected parties and whether there is a duty to exhaust the internal procedure provided for in Section 54 of the MPRDA. In undertaking the investigation, the provisions of the MPRDA shall be scrutinized in light of the recent case law.

Legislative Framework

Before its repeal on 7 June 2013, Section 5(4)(c) of the MPRDA provided, amongst others, that no person could prospect for or remove, mine any mineral or commence with any work incidental thereto on any area without (i) an approved environmental management programme or approved environmental management plan; (ii) a prospecting right, permission to remove, mining right, mining permit, exploration right or production right, as the case may be; and (iii) notifying and consulting with the land owner or lawful occupier of the land in question. Therefore, in terms of the repealed Section 5(4)(c), notification and consultation with the lawful occupier or land owner was a prerequisite before one could commence with mining or related activities.

The repeal of Section 5(4)(c), was supplemented with the insertion of Section 5A in the MPRDA. Although Section 5A is similar to Section 5(4)(c), in all respects, Section 5A differs with Section 5(4)(c) in that no provision thereof requires consultation with the land owner or the lawful occupier of land. Instead, Section 5A requires that the landowner or lawful occupier of the land must be given at least 21 days written notice of the commencement of mining or mining related activities on his/her land.

Consultation and Right of Access

In the Case of Joubert and Others v Maranda Mining Company (Pty) Ltd (2010) (“Maranda Case”) the land owner denied the mining right holder access to the land and refused to enter negotiations with the holder or the Regional Manager. The Supreme Court of Appeal (“SCA”) held that:

• a holder of a mining right has a right to enter the land in respect of which the mining right has been granted for purposes of exploiting its rights once such holder complied with the provision relating to notification and consultation.
• the holder was free to commence with mining operations notwithstanding that the process under Section 54 had not been exhausted.
• that the land owner was not without a remedy for it retained the right to claim compensation under Section 54.
  However, since the Maranda Case, the MPRDA has been amended by the repeal of Section 5(4)(c) and replacement with the new Section 5A.

Consultation where Communities hold informal land rights

In Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd (2011) and Others (“Bengwenyama Case”), the Constitutional Court (“ConCourt”) decision concerns the lawfulness of the grant of a prospecting right to a company on the land of a community. The ConCourt held that there had been insufficient consultation between the holder and the community. The purpose and importance of requirements relating to notification of and consultation with affected parties were underscored in that the granting and execution of a prospecting right represents a grave and considerable invasion of the use and enjoyment of the land where prospecting is to happen.

On 25 October 2018 the Constitutional Court (“ConCourt”), in the case of Maledu and Others v Itireleng Bakgatla Mineral Resources and Another (“Maledu Case”), explained that the purpose of consultation with the lawful occupier is to determine whether some accommodation is possible between the applicant for a mining right and the lawful occupier insofar as the interference with the lawful occupier’s rights to use the property is concerned.

The ConCourt furthermore held that section 16(4)(b) of the MPRDA imposes a duty on an applicant for a prospecting right to consult, in the prescribed manner, with the landowner, lawful occupier and any interested and affected party and to include the results of the consultation in the relevant environmental report required to be submitted to the Regional Manager. Section 22(4)(b) creates the same duty for a mining right applicant.

The ConCourt also argued that the holder was required to take all reasonable steps to exhaust the section 54 process before approaching a court for an eviction and an interdict. To allow a holder to do so (as the Maranda Case) will undermine the purpose of section 54 and the MPRDA, which is to strike a balance between the interests of the mining right holder and the owner/lawful occupier.

Following on the Maledu Case, the case of Global Environmental Trust v Tendele Coal Mining (Pty) Ltd (“Tendele Case”) was decided on 20 November 2018 in the Pietermaritzburg High Court. Here the Court concurred with the ConCourt, holding that the importance of the notification and consultation with affected parties was to enable the parties an opportunity to make representations on matters affecting them and to seek reasons for a decision taken. The Court also noted that the closest that the applicants ever got to the issue of “consultations” was in argument when the words “public participation” were used in relation to the 2016 mining rights granted to Tendele. The Court further emphasised the necessity of mining right holders to comply with the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996.

Both the Maledu and Tendele Cases referred to the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996 (“IPILRA”). The IPILRA, amongst other things, provides for the protection of informal rights to and interests in land that were not adequately protected by the law because of racially discriminatory laws of the past. Further, Section 2(1) of the IPILRA provides that no person may be deprived of any informal right to land without his or her consent or where land is held on a communal basis, the process set out in subsection 4 should be followed.

What both Courts, above agree on is that provisions of IPILRA must be interpreted benevolently in order to afford holders of informal rights to land the fullest possible protection. Further, the Courts agree that where land is held on a communal basis, affected parties must be given sufficient notice of and be afforded a reasonable opportunity to participate, either in person or through representatives, at any meeting where a decision to dispose of their rights to land is to be taken. The decision can be competently taken only with the support of the majority of the affected persons having interest in or rights to the land concerned, and who are present at such a meeting.

The above was also confirmed by the North Gauteng High Court in the case of Duduzile Baleni and Others v Minister of Mineral Resources (“Xolobeni Case”) on 23 November 2018. In this case, the communal land, is occupied by members of the Xolobeni community, who were the applicants in the case. Around 70 households would have been displaced if mining proceeded on the land. The Court ruled that the DMR has to obtain “full and informed” consent from communities under customary law before granting mining rights to companies.

What is, further, emphasised by all the Courts is that the provisions of the MPRDA have to be read in conjunction with the provisions of the IPILRA.