Xolobeni wins mining battle
Judge Annali Basson said that the Xolobeni community had lived on the land according to their own traditions for a very long time.
The Xolobeni community has won a very lengthy battle against an Australian mining giant’s attempts to mine in the area.
Last Thursday, the North Gauteng High Court ruled that the Xolobeni community has the right to say ‘no’ to mining.
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The Amadiba Crisis Commitee (ACC), an anti-mining group, had initiated court proceedings in a bid to stop the Department of Mineral Resources from issuing rights to the Australian company, Transworld Energy and Mineral Resources (TEM).
The community had argued before the court on the basis of their informal rights to the land as defined by the Interim Protection of Informal Land Rights Act (IPILRA).
The ACC also argued that community members who live near the proposed mining area fear the disastrous social, economic and ecological consequences that may be caused by mining.
The court heard that, for many years, the community had used the land for agricultural purposes and grazing their livestock.
In her ruling, Judge Annali Basson said that the Xolobeni community had lived on the land according to their own traditions for a very long time and their ancestors’ graves in the area were considered as essential sites for rituals and customs by many families.
She added that the first to fourth respondents, which included government departments, had refused to acknowledge that the applicants had a right to consent to mining rights.
The respondents had further argued that the Mineral and Petroleum Resources Development Act (MPRDA) trumped IPILRA and maintained that, in terms of the MPRDA, no landowner would have the right to refuse consent to mining.
Judge Basson declared that the MPRDA stated the mineral resources minister must obtain consent from the community, as the holder of rights on land, prior to granting any mining right to TEM.
She further declared that any decision to grant mining rights would constitute a deprivation of rights, including informal rights.
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In her conclusion, Judge Basson said the MPRDA and IPILRA must be read together, in keeping with the purpose of the IPILRA to protect the informal rights of customary law in communities that were previously not protected by this law.
“The applicants in this matter therefore have the right to decide what happens with their land.”
ACC chairman, Sibisiso Mqadi, said they had been fighting for their land for more than 15 years.
“We will never stop fighting against the mining because no one is going to take our ancestral land.”
Following the ruling, the Department of Mineral Resources said it had noted the judgement and would pronounce on the matter in due course.
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