The Deputy Minister gave a political overview of the Maledu case. Section 54 of the MRPDA states that a mining right holder should negotiate with the owner or lawful land occupier about compensation where loss will be suffered through mining. Section 55 deals with expropriation when no resolution is reached in the Section 54 process. The lawful occupier of the land was not consulted in the Maledu case. The Deputy Minister said that mining should be coordinated so there is cooperation with all stakeholders and the community to ensure that the community is not abused.
The Department of Mineral Resources (DMR) said the MPRDA empowers the State to be the custodian of South Africa’s mineral and petroleum resources. The challenge presented by the Maledu judgement is that there must be consultation according to the MPRDA. Mining plays a very important role because it adds 7% to the gross domestic product of the country and it ensures that more jobs are created for South Africans. DMR must balance job creation and income generation for the country while implementing the law. When the mining right holder prospects, it needs to comply with the law. However there should be a distinction between consultation and consent. DMR is clear that based on the law, communities need to be consulted but it undermines the State if consent has to be given by the community.
Members asked if it was DMR's intention that community members should not be able to prevent mining on the land they lawfully occupied. They pointed out that DMR had to balance the MPRDA with other Acts that provide land rights such as the Interim Protection of Informal Land Rights Act (IPILRA). They raised concern about the effect of the imminent Traditional and Khoi-San Leadership Bill’s clause 24 which seems to be at odds with the ConCourt judgment and the requirements of IPILRA. Whatever laws are passed or in whichever way the MPRDA is amended or interpreted, it is clear from this decision that community rights cannot be overridden. DMR was urged to figure out a way forward. Members asked questions about specific cases; funds due to the Bakgatla Ba Kgafela community that was not accounted for; DMR intentions for the mining rights on land over which a community has a right; why cases were taking so long; the mode of consultation with communities; the DMR approach to rights ownership in KZN; land dispossession; the role of traditional leaders in consultations; and the DMR role as the custodian of mining rights. Other questions included the once empowered, always empowered case; resources for litigation; the reason for opposing the Mining Forum South Africa application against the Minister about non-implementation of social labour plans by Lonmin; and who Afriforum is partnering with in a potential prosecution.
The Committee mandated DMR to give a report on the Bakgatla Ba Kgafela community funds unaccounted for after it had completed its investigation. It mandated DMR to ensure that it was accountable for its legal budget at all times.
The Chairperson welcomed the Deputy Minister. He recalled that since the clampdown on illegal mining had started there had been an increase in kidnapping with the sole aim of collecting ransom in gold. Although it was not illegal mining it was still illegal. He had spoken with the Minister for Police to ensure that this trend stopped. He noted that the Committee had to submit its legacy report by 23 November 2018. Hence the Committee had requested the Minister for Mineral Resources to respond to the outstanding recommendations on prior Budget Review & Recommendations Reports (BRRR) to ensure that DMR challenges could be addressed.
Deputy Minister of Mineral Resources remarks
Deputy Minister Godfrey Oliphant conveyed the apologies of the Minister. He had met with the affected community in the Maledu case. DMR had invited the Deputy Minister for Rural Development and Land Reform, Mr Mcebisi Skwatsha, to accompany DMR during the visit to the community because tensions were high. The matter is that certain members of the Maledu community were forcefully removed from the land without consultation. DMR learnt that there was a gap between the community and itself. The litigation has opened up engagement with the community. The Constitutional Court aligned itself with Section 54 of the Mineral and Petroleum Resources Development Act (MPRDA) which stated that no right owner could prospect on a land without consulting with the title deed owner. In this case the right holder did not consult with the title deed owner even though the traditional authority gave access to the land. He noted that mining should be coordinated as cooperation with all stakeholders and the community should not "be at the receiving end" all the time.
Department of Mineral Resources (DMR) briefing
DMR Director General, Adv Thabo Mokoena, said the MPRDA empowers the State to be the custodian of South Africa’s mineral and petroleum resources. DMR learnt lessons on the Mining Charter when the Deputy Minister met with communities. The challenge presented by the Maledu judgement is that there must be consultation according to the MPRDA. DMR has to review how the past consultations with communities were done. Mining plays a very important role because it adds 7% to the gross domestic product of the country and it ensures that more jobs are created for South Africans. DMR must balance job creation and income generation for the country while implementing the law. When the mining right holder prospects, it needs to comply with the law. However there should be a distinction between consultation and consent. DMR is clear that based on the law, communities need to be consulted but it undermines the State if consent has to be given by the community. He invited the Chief Director: Legal Services to speak on litigation.
DMR Chief Director: Legal Services, Mr Pieter Alberts, gave an update on pending and recently decided cases. The matter between Aquila Steel v ZIZA Ltd Pan African Mining Development Company (PAMDC was heard in August 2018 by the Constitutional Court and judgment has been reserved. The two matters by Treasure the Karoo Action Group v DMR & DEA would be consolidated and heard by the Supreme Court of Appeal during next year. DMR applied for leave to appeal the judgment (which is now pending) in the Chamber of Mines (now Minerals Council South Africa) and Scholes matters involving Mining Charter litigation. Mr Scholes attempt to consolidate his matter with the MCSA application failed. However, the 2017 Mining Charter litigation is on hold pending publication of the 2018 Mining Charter. The Director of Public Prosecutions (DPP) investigated the matter of Saamwerk Soutwerke v SA Soutwerke (SAS) and DMR but did not prosecute. However, Afriforum has shown an interest to start a private prosecution.
Maledu and Others v Itireleng Bakgatla Mineral Resources (IBMR) and Another
Mr Alberts noted that the mining right holder was IBMR. IBMR entered into a surface lease agreement with the North West community through a tribal council resolution. However at the time mining was to start, certain community members felt aggrieved at the loss of their land and denied IBMR access to land. IBMR successfully applied for an eviction order in the High Court and evicted Maledu and co from their land. Maledu and co approached the Constitutional Court and the ConCourt set the eviction order aside and held IBMR should have exhausted the provisions of Section 54 of the MPRDA to resolve the dispute. The Committee should note that the ConCourt did not set the mining right aside but held that both rights enjoy statutory protection. Also the Committee should note that Section 54 of the MPRDA plays important role in balancing the interest of landowners and lawful occupiers and mining right holders.
• In the matter of Duduzile Baleni and Others v DMR and Others, legal proceedings were instituted in the Gauteng High Court in Pretoria. The applicant sought a declaratory order to the effect that the Minister for Mineral Resources was not permitted to grant mining rights on tribal land without the consent of tribal authority. The Committee should note that declaratory orders seek to make compliance with the Interim Protection of Informal Land Rights Act (IPILRA) compulsory. DMR opposed the application based on the MPRDA as the State is the custodian of the nation’s mineral resources. Also the MPRDA provides for 'consulting' and not consent. The application was heard in April 2018 and judgment is being awaited.
• In the matter of Mabola Protected Environment a permission granted jointly by the Ministers for Mineral Resources and Environmental Affairs in 2016 was set aside by the High Court on 8 November 2018. DMR and Department of Environmental Affairs (DEA) are yet to decide whether to appeal the judgment as a whole, part or not all. The matter is therefore pending.
• In the matter of Helen Suzman Foundation v Various Organs of State dealing with state capture allegations, DMR has filed a record of proceedings but the matter is pending.
• Mining Forum South Africa (MFSA) instituted legal proceedings in the High Court against Lonmin and the Minister of Mineral Resources. MFSA seeks an order declaring that the Minister acted in breach of statutory obligations by failing to act against Lonmin for its failure to implement its Social and Labour Plans. DMR opposed the application which was heard during October 2018 but judgment has been reserved and the matter is pending.
• Sibanye Platinum v DMR deals with section 54 of the Mine, Health and Safety Act. Sibanye Platinum has issued summons to the amount in excess of R35 million against DMR for damages as a result of a stoppages caused by the s54 notices. DMR has filed notice to defend and has also filed its pleas but the claims remain pending.
Lessons learnt: regulatory certainty
Previous decided cases such as the Mining Charter litigation show that appropriate amendments to legal instruments can address gaps and maintain legal certainty. The Reviewed Mining Charter and implementation guidelines offers an ideal opportunity to achieve this objective. Obtaining clarity on complex legal issues such as interpretation of MPRDA provisions, often necessitate appeals to the highest court. The pending Aquila judgment may provide clarity on some of the matters which was also the subject of previous court cases such as Palala Resoucres and Mawetse.
Lessons learnt: communities
Mining Charter litigation, Baleni and Maledu reveal the difficulties in finding the balance between mining and community interests. Consultation with and identification of rightful community representatives remain problematic. Maledu provides valuable guidance as to the importance of section 54 of the MPRDA as a mechanism to facilitate conflict resolution and negotiations between communities and mining companies. The litigation, however, also highlights the urgent need to adequately capacitate the DMR to execute its mandate to transform and grow the sector.
Mr M Matlala (ANC) asked the DG to give more information on the R16 billion funds unaccounted for at the Bakgatla Ba Kgafela community.
Mr J Lorimer (DA) asked DMR to state why the Pan African Mineral Development Company (PAMDC) still existed and why it took 30 years for the ZIZA rights complaint to be heard. He asked if the Mining Charter was currently enforceable and when judgement would be received on the Duduzile Baleni & Others case. He asked DMR to clarify if its intention was that community members should not be able to prevent mining on the land they occupied. He asked why the matter between Helen Suzman Foundation v Various Organs of State on state capture allegations was still pending.
Mr H Schmidt (DA) said the MPRDA needs to be balanced with other Acts. He expressed concern that consultation was with the traditional rulers and not the individual right owners as this contravened Section 9 of Constitution. The Constitution in Section 9 provides for equality hence citizens in the rural areas should not be treated differently from those in urban areas. Based on the ConCourt judgements, DMR should have legal opinions on the Maledu and Baleni cases. An eviction process would not be possible until Section 34 of the Constitution which allows for disputes to be settled by the application of law was negated.
Mr Schmidt said government needs to comply with the Interim Protection of Informal Land Rights Act (IPILRA) in engaging with traditional communities. He also raised concern about the effect of the imminent Traditional and Khoi-San Leadership Bill’s clause 24 which seems to be at odds with the ConCourt judgment and the requirements of IPILRA. Whatever laws are passed or in whichever way the MPRDA is amended or interpreted, it is clear from this decision that community rights cannot be overridden. Therefore, he urged the Deptartment to figure out a way forward.
Deputy Minister Godfrey Oliphant responded that DMR engages with the Committee to have guidance on how to deal with the laws that Parliament had created. Section 54 of the MPRDA allows for expropriation but it does not provide for eviction. [Section 55 deals with expropriation in situations including where no resolution is reached through the process provided for in section 54]. The power of traditional authority was curtailed particularly when legal occupants were on the land. DMR understands that a balance must exist between MPRDA and other laws and many of the DMR litigation cases has been based on consultations. The Constitution provides that there be substantive consultations hence the consultation process must be fair. He accepted that a gap existed in consultation based on the lessons learnt from the Maledu and Baleni cases.
Deputy Minister Oliphant said that the ConCourt has opened up the reason for DMR to look beyond consultation with traditional rulers and also consult with individual right owners. The MPRDA might have to be amended because the provisions as they are allow for too many loopholes that allow for the circumvention of substantive consultation with owners and lawful occupiers.
In clairfying the function of PAMDC, Deputy Minister Oliphant explained how PAMDC was established and said it was a legally existing registered entity in South Africa that has political undertones. The Mining Charter is currently enforceable. DMR has consulted with trade unions and mining companies on the notion of once empowered, always empowered. The intervention of DMR is to implement objects of law to strike a balance between mining companies and the communities. In the past communities could not litigate because of the high expenses. The judgement received in the Maledu case opened up the opportunities to engage with communities.
Adv Mokoena replied that DMR was not directly responsible for the handling of funds but would follow up on the R16 billion community funds unaccounted for. He replied that legal matters take long because of court proceedings but DMR has no power over the timelines. DMR has provided information on how to process mining rights through the filed proceedings.
Adv Mokoena replied on whether DMR wants to eventually have the power to prevent communities from being able to say no to mining on their land, saying DMR does not intend to block communities but it is trying to strike a balance by ensuring that consultation occurs. The Deputy Minister mentioned the role of traditional rulers. DMR knows that there are traditional rulers but some community members also need to be accorded respect as well; hence DMR balances both. DMR is having engagements with traditional rulers to get a guideline on how consultation with communities should be done. During the Mining Charter summit, DMR invited all key stakeholders - the communities and mining companies were present to ensure that consultations were meaningful.
Ms Y Yako (EFF) agreed with Mr Schmidt that consultation with communities be done in a meaningful way. DMR should not minimise consultations especially the timelines to ensure that communities did not lose out.
Nkosi Z Mandela (ANC) noted that the ConCourt judgement had referred to the need for consultation with individual land right owners. He asked about DMR’s approach in the KZN where the Ingonyama Trust exists. He asked how consultation and consent would be dealt with. Whose consent would it seek to obtain where you have the Ingonyama Trust Board (ITB), then you have a chief that has jurisdiction over a particular area over land administered by the ITB, and then you have the person that actually lives on the land? Who would be the one entitled to benefit from the intended mining operations? He made the link to the history of dispossession, for example, in the Eastern Cape where chiefs had their land taken from them and were thrown in Robben Island when they tried to resist. What then happens on land with such a history, who is to be consulted and whose consent is to be obtained for mining to occur?
The Chairperson invited the Deputy Minister to respond.
Deputy Minister Oliphant said he could not speak to land rights because he had bought land from white farmers. He maybe should have waited before buying that land considering the current land expropriation debate going on. Land dispossession is a real challenge but the Maledu case is assisting DMR in resolving issues between individuals and traditional rulers as DMR must ensure that consultations are thorough. The Ingonyama Trust and Itireleng Bakgatla Mineral Resources cases have been challenging because the traditional rulers played double roles. DMR is working on how the Ingonyama Trust and local chieftaincies affect land but it has to be thorough. The Department of Rural Development and Land Reform is assisting DMR in this. Section 54 of the MPRDA assists DMR with the interpretation of timelines - it is a thorough process but when it is in court it takes a longer time and it is not in the hands of DMR. The DMR needs to have a thorough engagement with mining companies on consultation. As a custodian of mining rights, DMR ensures that mining is sustained and there is transformation. The legislation would not be complete until all stakeholders are satisfied. DMR appreciates the Committee’s criticisms but needs its guidance as it carries out its role of custodianship of mining rights and transformation in the mining industry.
The Chairperson asked DMR to state how it handles human resource matters in litigation. He asked DMR to clarify the statement that it opposed the application of Mining Forum South Africa which was heard in October 2018. He asked DMR to state what it was defending, is it that the Minister for Mineral Resources breached his statutory obligations or the fact that Lonmin failed to implement its Social and Labour Plans (SLPs)? He asked DMR to clarify the judgement on once empowered, always empowered. He asked DMR to confirm to the Committee what the Maledu case and other community cases where about. The power and authority of traditional leadership in communities or if the judgement order was that a traditional ruler acted outside the consensus of the community i.e. it became the sole owner of proceeds. He asked the DMR to state what would happen to cases similar to the Maledu case if the MPRDA has not been amended because it could lead to expropriation if consultations were not thorough. He asked DMR to state the parties that Afriforum was affiliated to because it had shown interest in instituting a private prosecution when the DPP declined to continue with the prosecution.
Mr Schmidt observed that during the Committees’ oversight visit to Earthlife Africa in Gauteng it came out that there was a lack of environmental compliance. He asked DMR why it was not interested in the matter of environmental compliance.
Deputy Minister Oliphant replied that the funds for litigation goes to Legal Services and covers out of court settlements as well. The DG would respond to what DMR was defending in the Mining Forum South Africa case heard in October 2018. Other companies have not implemented social and labour plans (SLPs) and this has been DMR's weakest link as some DMR offices did not have enough personnel. Where companies have implemented SLPs there is a change in the quality of life of staff of the mining company. When DMR decided to appeal the application of the Chamber of Mines, the basis of the complaints was the once empowered, always empowered principle. The Chamber of Mines supported the DMR appeal on other issues. The Committee researchers and the Parliamentary Legal Adviser (PLAs) should come up with its opinion on cases as the DMR needs to find solutions. The courts did not deal with the expropriation cases it has been dealing with, only eviction cases. There would always be issues about environmental compliance - it is work-in-progress. The law provides that once a mining company had environmental compliance issues, its licence would be de-registered. The law makes provision for private prosecutors to prosecute if DPP decides not to prosecute. The affiliates of Afriforum can be given to the Committee outside the meeting.
Adv Mokoena replied that the Lonmin case was with the court. The case was challenged to ensure that it did not create a bad precedent. DMR was defending this matter not to assist Lomin but to illustrate to the court the steps that DMR had taken to ensure that the SLP is complied with so as not to create the impression DMR is doing nothing. Different lawyers have different legal opinions on cases but DMR maintains that based on the law, consultation must take place before mining occurs.
Mr Pieter Alberts said the DMR budgets for legal costs but not for settlement with companies. It also has a budget for contingencies on matters in court. Earthlife Africa, Gauteng concerns about environmental compliance relates to the Mabola Protected Environment. DMR monitors court cases and takes action based on the DMR mandate. As mentioned by the Minister, environmental compliance is work-in-progress.
The Deputy Minister appreciated the Committee for its work on the BRRR which identified weaknesses in SLPs.
The Chairperson mandated DMR to give a written report on the Bakgatla Ba Kgafela community's unaccounted for R16 billion funds after its investigations. He advised DMR to use clear language as the Lonmin case was not an appeal as it was instituted for clarity to avoid setting a bad precedent. DMR has to be accountable for its legal budget. It should not use the funds to settle with a particular company. The Committee was proposing a discourse on the outcomes and implications of court judgements in particular the Maledu case. The Deputy Minister also mentioned this when he talked about the opinions of Committee researchers and PLAs on court judgements.
The meeting was adjourned.
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