STATE LOSES RULING ON XOLOBENI

Court rules minister can’t decide on mining without community’s consent

Xolobeni’s two bitterly opposed factions both celebrated Thursday’s historic court ruling, which places the power to decide their future firmly in the community’s own hands.

Mineral resources minister Gwede Mantashe may not grant mining rights in the remote Wild Coast community to Australian mining giant Transworld Energy and Mineral Resources (TEM) without the full and informed consent of the people who live there, the North Gauteng High Court has ruled. The ground-breaking ruling clips the minister’s wings to the bone when it comes to his powers to grant mining rights in communal and privatelyowned land.

Until now, the minister has only had to “consult” those holding rights in land.

But judge Anneli Basson ruled that the Mineral and Petroleum Resources Development Act (MPRDA) – which vests all mineral rights in the state and gives Mantashe extensive powers to grant mining rights – must be read together with the Interim Protection of Informal Land Rights Act (Ipilra), which protects the informal rights of customary and rural communities. Basson ruled the department must go beyond consultation and secure the full and informed consent of the holders of rights in the land before granting any mining rights to TEM, part of global mining conglomerate Mineral Commodities (MCR).

Her ruling is a major victory for the Amadiba Crisis Committee (ACC), which has been fighting for over a decade against TEM’s efforts to mine titanium in the sand dunes along the pristine Xolobeni area of the Wild Coast.

“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 Bosson ruled.”

She said she was satisfied that mining rights amounted to land deprivation, especially in Xolobeni, where TEM planned open cast mining. This would interfere with agricultural activities and the general way of life of people in the area.

Amadiba Crisis Committee (ACC) attorney Richard Spoor hailed it as a huge step towards secure land tenure for rural communities and a big victory for the community. The ACC said the ruling gave the community the right to say “no” to mining and called on the department to respect it.

But the leader of the community’s pro-mining faction, Zamile Madiba Qunya, also hailed it as a victory, saying it also gave the community the right to say “yes” to mining.

'This [ruling] is a major victory for us all as the community of Xolobeni.

“The community is not Amadiba Crisis Committee…or even those of us who are pro-mining. It is the entire community of Xolobeni.”

However, he questioned how consent could be measured.

“Is it through a referendum or voting?”

The department said it had noted the judgment and would comment after studying it.

This ruling is a major victory for us all as the community of Xolobeni

Zamile Qunya

Pro-mining faction leader