Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute

  • Mpho Tsepiso Tlale POST-DOCTORAL RESEARCH FELLOW
Keywords: customary land rights, consultation, consent, custodianship, xolobeni, community

Abstract

The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.

Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

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Author Biography

Mpho Tsepiso Tlale, POST-DOCTORAL RESEARCH FELLOW

The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.

Nevertheless, the Department of Mineral Resources (DMR) and mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the consent of communities because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.

References

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Case law

Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP)

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC)

Cape Explosives Ltd v Denel (Pty) Ltd 2001 3 SA 578 (SCA)

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Metal and Allied Workers Union v Hart Ltd 1985 6 ILJ 478 (IC)

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Legislation

Constitution of the Republic of South Africa, 1996

Expropriation Act 63 of 1975

Land Use Planning Ordinance 15 of 1985

Interim Protection of Informal Land Rights Act 31 of 1996

Mineral and Petroleum Resources Development Act 28 of 2002

Minerals Act 50 of 1991

National Environment Management Act 107 of 1998

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National Environmental Management: Protected Areas Act 57 of 2003

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Communal Land Rights Bill B67-2003

Gen N 510 in GG 40965 of 7 July 2017 (Communal Land Tenure Bill, 2017)

GN 1423 in GG 23740 of 14 August 2002 (Communal Land Rights Bill, 2002)

GN 1014 in GG 40277 of 15 September 2016 (Prohibition or Restriction of Prospecting or Mining in terms of Section 49[1] of the Mineral and Petroleum Resources Development Act, 2002 [Act No 28 of 2002])

GN R527 in GG 26275 of 23 April 2004 (Mineral and Petroleum Resources Development Regulations)

International instruments

African Charter on Human and People's Rights (1981)

Committee on the Elimination of Racial Discrimination General Recommendation 23: Rights of Indigenous Peoples UN Doc A/52/18 (1997)

International Convention on the Elimination of All Forms of Racial Discrimination (1965)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

United Nations Declaration on the Rights of Indigenous Peoples (2007)

Internet sources

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Portalewska A 2012 Free, Prior and Informed Consent: Protecting Indigenous Peoples' Rights to Self-determination, Participation, and Decision-making https://bit.ly/2Nh9uY6 accessed 20 June 2019

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Published
2020-06-18
How to Cite
Tlale, M. T. (2020). Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute. Potchefstroom Electronic Law Journal, 23, 1-32. https://doi.org/10.17159/1727-3781/2020/v23i0a6856
Section
Case Notes