Wild Coast community wins 15-year David-and-Goliath battle against Australian mining company

Thursday would have been a proud day for Sikhosiphi “Bazooka” Rhadebe. The Amadiba Crisis Committee (ACC) chairman spent years fighting against attempts by Australian mining company Mineral Commodities Limited (MRC) to mine titanium in Xolobeni, on the Eastern Cape’s Wild Coast, before he was murdered outside his home in March 2016.

Photo: Xolobeni activist Sikhosiphi Bazooka Rhadebe was gunned down in 2016.

After 15 years of resisting mining, the North Gauteng High Court on Thursday ruled in favour of the ACC and ordered the Department of Mineral Resources to obtain full consent from the community before it issues a mining licence. This ruling could have far-reaching implications for the future of mining in the country.

Six applicants from the ACC went to court in April to argue that the Xolobeni community must provide consent rather than merely be consulted before a mining licence is issued in their area. The department had announced an 18-month moratorium on mining in the area while it considered the issues.

In court papers, Mineral Resources Minister Gwede Mantashe said the state was the custodian of the country’s mineral resources and while consultation is important, demanding consent could cripple the country’s ability to use mining to grow and transform the economy.

Judge Annali Basson on Thursday ruled that a community must give full and informed consent before a mining right can be issued.

“Where the land is held on a communal basis — as in this matter — the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land,” read Basson’s judgment.

She started with a quote from another judgment on land issues that included comments from a Mr Petros Nkosi:

“But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.”

The key dispute was the interaction between the Mineral and Petroleum Resources Development Act (MPRDA) and the Interim Protection of Informal Land Rights Act (IPILRA).

IPILRA seeks to protect informal land right holders from deprivation and requires consent should their rights be deprived. The MPRDA merely requires the community be consulted but not necessarily give consent for a mining licence to be granted.

Basson said the mining proposed in Xolobeni would amount to a deprivation, effectively expropriation, and the two laws must be read together.

“I am satisfied that, in light of the facts that were placed before the Court and the nature of the mining operations (especially open cast mining operations) contemplated on the applicants’ land, that those operations will interfere substantially in their agricultural activities and general way of life,” she said.

“Without free, prior and informed consent, they are at real risk of not only losing their rights in their land, but their very way of being.”

The court heard arguments from the Bench Marks Foundation, which monitors corporate social responsibility, particularly in mining, and said that customary communities, such those in Xolobeni’s Umgungundlovu area, suffer disproportionately from mining through pollution, the loss of farm and grazing land, and displacement — harm that often outweighs the benefits of mining.

“In the context of this community, a residential plot represents far more than merely a place to live: it is a symbol of social maturity and social dignity,” said Basson.

In a statement, the ACC welcomed the judgment but said Mantashe was likely to appeal. “This is a vindication of our community’s battle for more than 15 years. We have come a long way.”

“The smoke and mirrors of Mr Gwede Mantashe during the last months, where he has denied that he is against our right to say ‘no’, will then be disclosed to the public for what they are,” the ACC said of a possible appeal from the minister.

Mineral Resources Minister Gwede Mantashe visits the Palabora Mining Company where a fire broke out, killing six miners, on July 17, 2018 in Phalaborwa, South Africa. (Photo by Gallo Images / Sowetan / Antonio Muchave)

Mantashe responded in a video on social media, saying he is still studying the judgment.

“When you are given the right to consent, not the right to be consulted in detail, it means you either say yes or no. If you say no, there’ll be no mining,” he said.

“That is taking away the right to issue mining licenses from the state to the communities and I can tell you that if that is the case there will be no mining,” he continued, also warning of communities making unrealistic demands to mining companies that would dissuade them from opening new operations.

Bench Marks executive director John Capel welcomed the judgment:

“No longer will mining companies and the Department of Mineral Resources be able to ride roughshod over communities’ wishes by simply getting the approval of tribal authorities in granting mining licences. In many cases, these authorities represent vested interests, and do not correctly reflect the wishes of their communities.”

Thursday’s judgment follows a Constitutional Court ruling in October that upheld a community’s land rights over the rights to mine the area, another judgment shifting the power balance towards communities rather than government and mining companies. DM