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[2018] ZACC 41
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Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (CCT265/17) [2018] ZACC 41; 2019 (1) BCLR 53 (CC); 2019 (2) SA 1 (CC) (25 October 2018)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 265/17
In
the matter between:
GRACE
MASELE MPANE
MALEDU
First
Applicant
FURTHER
37 APPLICANTS
Second
to Thirty Eighth Applicants
and
ITERELENG
BAKGATLA MINERALS
RESOURCES
(PTY)
LIMITED
First
Respondent
PILANESBERG
PLATINUM
MINES
(PTY)
LIMITED
Second
Responden
and
MDUMISENI
DLAMINI
First
Amicus Curiae
LAND
ACCESS MOVEMENT
OF
SOUTH
AFRICA
Second
Amicus Curiae
Neutral citation:
Maledu
and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and
Another
[2018] ZACC 41
Coram:
Zondo DCJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse AJ, Theron J.
Judgments:
Petse AJ (unanimous)
Heard on:
24 May 2018
Decided on:
25 October 2018
Summary:
Mineral and Petroleum Resources Development Act 28 of
2002
—
Section 54
— Other satisfactory remedy
Interim Protection of Informal Land Rights Act 31 of 1996
—
Section
2
— Deprivation of informal land rights
ORDER
On appeal from the
High Court of South Africa, North West Division, Mahikeng:
Leave to appeal
is granted.
Both Mr
Mdumiseni Dlamini and the Land Access Movement of South Africa are
admitted as amici curiae.
The
applications by the amici curiae to introduce new evidence are
dismissed.
The appeal is
upheld.
The order of
the High Court is set aside and substituted with the following:
“The
application is dismissed with costs, including the costs of two
counsel.”
The order of
the Supreme Court of Appeal dismissing the applicants’
application for leave to appeal in that Court is set
aside.
The respondents
must pay the applicants’ costs in this Court and the Supreme
Court of Appeal, including the costs of two
counsel where employed.
JUDGMENT
PETSE AJ
(Zondo DCJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J,
Madlanga J and Theron J concurring):
Introduction
The statement
by Frantz Fanon in his book titled “The Wretched of the
Earth”
1
is, in the context of this case, apt. It neatly sums up what lies
at the core of this application. He said that “[f]or
a
colonised people the most essential value, because the most
concrete, is first and foremost the land: the land which will
bring
them bread and, above all, dignity”. Thus, strip someone of
their source of livelihood, and you strip them of
their dignity
too.
That since
ancient times land has been the most treasured possession to all
and sundry throughout all generations is a truism
that brooks no
argument to the contrary. Currently, in South Africa, the clamour
for redistribution of land has not only heightened
interest in land
but has also put at the centre stage the socio-political discourse
raging on in the country.
This is an
application for leave to appeal against a judgment of the High
Court of South Africa, North West Division, Mahikeng
(High Court).
At the suit of the respondents, the High Court granted an order
evicting the first to 37th applicants
and all
persons occupying through or under them
from the farm known as Wilgespruit 2 J.Q. in the
North West Province (farm). It also granted an interdict
restraining the first
to 37th applicants from entering the farm,
bringing their livestock onto the farm and erecting any structures
on the farm.
2
For convenience, the first to 37th applicants will be referred to
collectively as the applicants unless context dictates otherwise.
While the
applicants themselves never used the farm for residential purposes,
some of the labourers they employed were housed
on the farm. The
eviction of those labourers is not at issue before this Court.
3
This case primarily concerns two competing rights in the context
of evictions. The first is the right of the applicants to
occupy
and enjoy the farm which they and their predecessors-in-title had
occupied for nearly a century.
4
As against this is the right of the respondents to mine on the
farm, hitherto occupied by the applicants. Thus, at its simplest,

this case concerns a dispute between occupiers of land on the one
hand and entities that have been granted mining rights to
mine
platinum group metals under the
Mineral and Petroleum Resources
Development Act
5
(MPRDA
) on the self-same land on the other.
Mining is one
of the major contributors to the national economy. But there is a
constitutional imperative that should not be
lost from sight, which
imposes an obligation on Parliament to ensure that persons or
communities whose tenure of land is legally
insecure as a result of
past racially discriminatory laws or practices are entitled either
to tenure which is legally secure
or to comparable redress.
6
Accordingly, this case implicates the right to engage in economic
activity on the one hand and the right to security of tenure
on the
other.
The farm is
currently registered in the name of the Minister of Rural
Development and Land Reform (Minister) who, according
to the title
deed, owns it “in trust for the Bakgatla-Ba-Kgafela
community”. The farm was transferred to the Minister
from
its immediate predecessor-in-title in 1919 under deed of
transfer 1230/1919. The applicants assert that they are
the
rightful owners of the farm. All of the parties accept that the
applicants are also informal land right holders under
the
Interim
Protection of Informal Land Rights Act
7
(IPILRA
).
The applicants
contend that their forebears – the alleged purchasers of the
farm – were members of the
Lesetlheng Community who
were previously precluded from owning land because of
institutionalised racially discriminatory practices
of the past.
Hence, the farm was, upon transfer from its previous owners,
registered in the name of the Minister and not the
purchasers.
The stage is
now set to describe the parties, recount the salient facts and set
out the issues to be determined in this case.
Thereafter, it will
be necessary to refer to the legal framework that is relevant to
those issues. In the main, this will
entail investigating whether
the MPRDA creates an alternative avenue for relief that must be
exhausted before the respondents
could approach a court for
eviction and an interdict as they did. This is in line with the
well-entrenched rule of our law
that an application for an
interdict cannot succeed if the requirements set out in
Setlogelo
are not met. The requirements include, among others, “the
absence of any other satisfactory remedy”.
8
The applicants
and respondents raised a variety of arguments before this Court.
The
contentions
of the parties,
including those of the amici, will be addressed and analysed
throughout this exercise. Ultimately, this exercise
will breed
this judgment.
Parties
The first
applicant is Ms Grace Masele Mpane Maledu. She, together
with
the second to 37th applicants, are members of the Lesetlheng
village community. The Lesetlheng village community is a

community-based organisation
consisting
of persons claiming to be owners of the farm. It is the 38
th
applicant in this application.
For
convenience, I shall refer to the first to 37th a
pplicants
collectively as the applicants.
They all reside in the
Rustenburg district in the North West Province. The
applicants assert that they occupy and own
the farm and conduct
farming operations thereupon.
The first
respondent is Itereleng Bakgatla Mineral Resources (Pty) Limited
(IBMR). The second respondent is Pilanesberg Platinum
Mines (Pty)
Limited (PPM). The respondents are holders of the rights to mine
for platinum group metals and associated minerals
on the farm,
awarded to them under
section 23
of the MPRDA. PPM is currently
the contractor appointed by IBMR under
section 101
of the MPRDA to
mine on the farm. PPM is also a cessionary of a portion of IBMR’s
mining right in relation to the Sedibelo-West
portion of the farm
which was excised from the latter’s mining right. The
cession is still subject to Ministerial approval
under the MPRDA.
Facts
The applicants
contend that their forebears purchased the farm in 1919 pursuant to
a decision taken by the Lesetlheng Community
in 1916. Because of
racially discriminatory laws of the past, the farm could not be
transferred into the names of the purchasers
as joint owners.
Consequently, transfer of ownership of the farm was passed to the
Minister who, to date, holds it in trust
for the community. Then a
further obstacle emerged as the Lesetlheng Community was not
recognised as an autonomous and separate
entity by the government
of the day. To overcome this hurdle, the title deed of the
property reflected that the Minister held
it in trust on behalf of
the entire Bakgatla-Ba-Kgafela Community. According to the
applicants, this was, however, on the
clear understanding that only
members of the Lesetlheng Community who had contributed to the
purchase price had a legal interest
in the farm and not all of the
members of the Bakgatla-Ba-Kgafela Community.
The farm was
informally sub-divided into 13 portions or plots which were
allocated to 13 families. The 13 families who owned
the farm
conducted crop and stock farming operations on the farm over which
they exercised exclusive control. With the passage
of time, the
families erected houses and shacks on the farm for their occupation
or that of their employees. Stock kraals
and pig pens were also
erected in the course of their farming operations.
In 2004, IBMR
obtained a prospecting right over the farm from the Department of
Mineral Resources (Department). On 19 May 2008,
IBMR was awarded a
mining right over the farm by the Department. On 20 June 2008, an
environmental management programme required
in terms of
section 39
of the MPRDA was approved. On 28 June 2008, IBMR concluded a
surface lease agreement with the Bakgatla-Ba-Kgafela Tribal
Authority and the Minister in respect of the farm. In 2014,
preparations for full-scale mining operations on the farm
commenced.
In 2012, IBMR and PPM concluded an agreement in terms
of which the former undertook to cede its mining right in relation
to
a portion of the farm known as Sedibelo-West to the latter
conditional upon the approval of the Minister of Mineral Resources

being granted as required by
section 11(1)
of the MPRDA. This had
the inevitable consequence of negatively impacting upon the
peaceful and undisturbed occupation and
enjoyment of the farm by
the applicants. In 2015, and in order to relieve themselves of the
intolerable situation that had
arisen as a consequence of the
respondents’ mining operations, the applicants obtained a
spoliation order against the
respondents.
However, the
applicants’ success in obtaining a spoliation order was
short lived for this prompted the respondents
to approach the
High Court. In the High Court, the respondents sought an
order evicting the applicants, and all persons
whose right of
occupation derived from that of the applicants, from the farm.
They also sought an interdict restraining the
applicants from
entering, remaining or conducting farming operations on the farm.
The respondents asserted that they had consulted
with interested
parties as required by the MPRDA and other statutory prescripts at
all the stages of the process both when
they applied for a
prospecting right and a mining right in relation to the farm. I
shall revert to this later.
The applicants
opposed the respondents’ application on several bases.
First, they contended that they were the true owners
of the farm
and that they were never consulted as owners of the farm in the
manner contemplated by the MPRDA. Second, they
asserted that they
were also not consulted by the respondents as required by
section
2(1)
of IPILRA. Nor did they consent to being deprived of their
informal rights to the farm. Therefore, their informal rights to

the farm were not validly extinguished. Third, the respondents had
not complied with
section 25(2)(d)
of the MPRDA which requires
a holder of a mining right to comply with all applicable laws, in
particular the zoning scheme
of the relevant local authority.
Fourth, they alleged that the mining right upon which the
respondents relied was invalid
by virtue of the fact that they were
not consulted before the respondents were awarded the mining right.
Fifth, the respondents
were precluded from securing an interdict
against them until and unless any dispute relating to their surface
rights over the
farm had been resolved in terms of
section 54
of
the MPRDA.
The
High Court rejected all of the defences raised by the applicants.
It held that: (a) the applicants were not the owners
of the farm
and therefore there was no duty on the
respondents to consult with them qua owners
;
9
(b) the farm was owned by the Minister in trust for the
Bakgatla-Ba-Kgafela Community, of which the applicants were a
constituent
part,  who was consulted and who agreed, at a
kgotha kgothe
10
held on 28 June 2008, to request the Minister to conclude a lease
with IBMR for the latter to conduct mining operations on
the farm;
and (c) the applicants had not impugned the validity of the mining
right by way of review
as they should have done and that a
collateral challenge did not avail them, for the respondents –
in exploiting their
mining rights – were not exercising
public power.
Concerning
the surface lease, the High Court added that in any event the
conclusion of the surface lease was not a pre-requisite
before the
respondent could exercise their mining rights because
section 5(3)
of the MPRDA granted a mining right holder access to the land to
which the mining right relates.
11
Consequently, the High Court issued an order evicting the
applicants from the farm.  It also granted an interdict

restraining the applicants from entering or remaining, and erecting
any structures on the farm.
In the High
Court, the respondents accepted that a mining right itself does not
extinguish other surface rights, including ownership,
on the land
to which the right relates. The owner or other person in whom
surface rights vest is at liberty to enjoy his or
her surface
rights subject to the limited real right of the mining holder.
The High Court
further referred to the consultative process that it found had
taken place in terms of which, the Court held,
members of each
household were “informed” of the fact that the
respondents were holders of mining rights relating
to the farm.
Therefore, once it was found that the applicants had been
consulted, the High Court concluded that it did not
lie in their
mouth now to complain that they were never consulted.
In support of
its approach in this regard the Court relied, amongst others, on
the following considerations: (a) it accepted
the respondents’
say-so that all members of the Bakgatla-Ba-Kgafela community,
inclusive of the applicants, were consulted
both before and after
the grant of the mining right; (b) that the community resolution
taken at the
kgotha kgothe
of 28 June 2008 to conclude a
surface lease agreement with IBMR supported the respondents’
assertion that they had consulted
with the affected parties; (c)
that agreement had been reached with the affected parties to
relocate them to alternative land
that had been identified; (d)
that the respondents had engaged Managing Transformation Solutions
(Pty) Limited as project managers
“to consult, negotiate,
plan and implement the relocation” of the affected parties.
12
Dealing with
the provisions of
section 2
of IPILRA, the High Court found that
this provision does not contemplate that each person who is a
holder of informal rights
to land should be consulted. It found
that
section 2(4)
makes plain that when land is held on a communal
basis – as was the case with the farm – it suffices
that a decision
was taken by a majority of the affected persons.
In coming to this conclusion, it found that the resolution adopted
at the
kgotha kgothe
on 28 June 2008 was binding on the
applicants by virtue of them being members of the
Bakgatla-Ba-Kgafela Community. Consequently,
it concluded
that the applicants’ informal rights were lawfully terminated
“in accordance with the customs or usages
of the
Bakgatla-Ba-Kgafela Community when the
kgotha kgothe
resolved to enter into the surface lease agreement as contemplated
in
section 2(2)
of IPILRA”.
13
The High Court
rejected the contention advanced on behalf of the applicants to the
effect that the respondents were precluded
from commencing with
their mining operations until the process provided for in
section
54
of the MPRDA had run its course. It
held,
with reference to the Supreme Court of Appeal’s
decision in
Maranda
,
14
that the respondents were free to commence with their mining
operations notwithstanding the fact that “the process

envisaged in
section 54
[had not been] finalised”.
15
Having
held that
the respondents had
“attempted in good faith to comply with [their] consultative
duties” under the MPRDA,
16
the High
Court concluded that the applicants
were not without a remedy for they “[retained] their rights
to
claim compensation in terms of
section 54
”.
17
In conclusion
the High Court made the observation that it was satisfied that the
respondents had complied with the prescripts
of the consultative
process provided for in the MPRDA.
18
The High Court
subsequently refused leave to appeal. The applicants also
petitioned the Supreme Court of Appeal which likewise
refused leave
on the ground that the envisaged appeal lacked reasonable prospects
of success. It is therefore the decision
of the High Court that
the applicants, in the main, now seek to assail in this
application.
In
this Court
As already
alluded to above, in this Court the applicants seek leave to appeal
against the decision of the High
Court
granting the
respondents’ application. They also
persist in all of the defences that they advanced in the High
Court.
Amici
curiae
A few days
prior to the hearing, an application was made by
Mr Mdumiseni Dlamini (Mr Dlamini) to be admitted as an

amicus curiae.
19
He also sought leave to make written and oral submissions and to
lead further evidence.
20
The evidence sought to be introduced relates to the content of the
customary law and customs of the Bakgatla-Ba-Kgafela Community.
21
There was also
an application made by the Land Access Movement of South Africa
22
(LAMOSA) to be admitted as amicus curiae, which is supported by an
affidavit deposed to by LAMOSA’s National Director,
Ms Emily
Tjale. LAMOSA’s application too is coupled with a request to
make written and oral submissions and to introduce
further evidence
based on a report prepared by Professor Bernard Kachama Mbenga.
Professor Mbenga is a renowned historian
and a professor at the
Department of History of the Mahikeng campus of the North-West
University. He has written extensively
about the history of the
traditional community known as the Bakgatla-Ba-Kgafela. His
report, likewise, seeks to enlighten
this Court, so says LAMOSA,
about the content of the customary law relevant to a proper
determination of this case.
The
applications of Mr Dlamini and
LAMOSA for
admission
as amici in this case are, in their entirety, not
opposed by the applicants. But the respondents oppose Mr Dlamini’s

application for admission as an amicus, albeit only tentatively,
but not that of LAMOSA. Both applications for leave to introduce

new evidence were strenuously opposed by the respondents.
Due to the
proximity of the date of hearing, it was not feasible to determine
the fate of the applications made by Mr Dlamini
and LAMOSA. This
situation was compounded by the fact that this Court did not at
that stage have the benefit of written argument
from the parties.
Accordingly, on 15 May 2018, the Chief Justice issued directions in
terms of which both amici applicants
were directed to file written
submissions and present oral submissions on
three cardinal issues. These were whether they should be: (a)
admitted as amici
curiae; (b) allowed to tender further evidence;
and (c) permitted to
canvas the merits of the issues they
wished to argue.
Jurisdiction
The
Constitution confers jurisdiction on this Court to hear cases of a
constitutional nature or cases which raise arguable points
of law
of general public importance which ought to be considered by it.
23
The concept of an arguable point of law was explained by this
Court in
Paulsen
thus:
24
“
The
notion that a point of law is arguable entails some degree of merit
in the argument.  Although the argument need not,
of necessity,
be convincing at this stage, it must have a measure of plausibility.
. . .  Not surprisingly, in
[
Beatley
& Co
v
Pandor’s Trustee
1935
TPD 365
at
366] Tindall AJP held that the word ‘arguable’ is used
‘in the sense that
there
is substance in the argument advanced
’.”
Indubitably, this
case does engage the jurisdiction of this Court. It implicates both
sections 25 and 211(3) of the Constitution.
25
In particular, it brings to the fore the question whether the
applicants are without a legal remedy simply by virtue of the
fact
that they constitute a community whose tenure of the farm in issue
here is legally insecure as a result of past racially
discriminatory
laws or practices.
Leave to
appeal
The question
that arises is whether the interests of justice dictate that leave
to appeal ought to be granted. Leave may be
refused if it is not
in the interests of justice that the court should hear the appeal.
In
Boesak
this Court explained the import of this
requirement in these terms:
“
The
decision to grant or refuse leave is a matter for the discretion of
the Court, and in deciding whether or not to grant leave,
the
interests of justice remain fundamental. In considering the
interests of justice, prospects of success, although not the
only
factor, are obviously an important aspect of the enquiry. An
applicant who seeks leave to appeal must ordinarily show that
there
are reasonable prospects that this Court will reverse or materially
alter the decision of the Supreme Court of Appeal.”
26
(Footnotes omitted.)
The applicants seek
to vindicate their land tenure rights. With eviction hovering
ominously over their heads, the livelihood
of the applicants and
their families is likely to be severely and adversely affected if
not perpetually ruined.
This is a matter of
great public importance transcending the immediate interests of the
litigants in this case.
For reasons that will become
apparent later, this case enjoys reasonable prospects of success.
Accordingly, the interests of
justice dictate that leave to appeal
ought to be granted.
Should the amici applicants be admitted?
The principles
governing the admission of a party as an amicus curiae are now
well-settled. An applicant for admission as an
amicus curiae must:
(a) advance relevant, useful and new contentions going beyond those
of the litigants;
27
(b) not adopt a partisan stance “better suited to a litigant
than a friend of the court”;
28
and (c) advance submissions aimed at assisting the court to
reach a just outcome.
29
The
respondents tepidly argued that because Mr Dlamini was
at
the time
involved in High Court litigation in a dispute that
is virtually similar to the one raised in this application in which
a judgment
is pending, he should not be admitted as amicus in this
case. I do not agree. Contrary to what the respondents argued in

relation to Mr Dlamini, his position is not manifestly partisan to
a degree that should preclude him from being admitted as a
friend
of this Court.
30
As will become apparent later in this judgment, both Mr Dlamini
and LAMOSA make novel and useful submissions relating to the
nature
of a mining right and IPILRA. Consequently, they should be
admitted as amici curiae.
Should the
amici curiae be permitted to introduce new evidence?
As already
mentioned, the amici sought leave to introduce new evidence. Both
amici contend that the evidence in question is
relevant for the
proper determination of the issues raised in this application.
Dlamini sought to introduce the expert evidence
contained in an
affidavit deposed to by Dr Aninka Claassens. In broad terms, this
affidavit sets out a historical exposition
of how customary law
land rights were treated prior to the advent of democracy. Most
significantly, it deals with: (a) the
entrenchment of the
autocratic powers of traditional leaders under the system of
colonialism and apartheid; (b) the manner
in which tribal
resolutions affected the encumbrance and disposal of land owned by
black people; and (c) the mischief that
section 25(6) of the
Constitution seeks to prevent.
Likewise,
LAMOSA sought to introduce new evidence relating to the
content of customary law. On this score, it relies both on the
evidence
adduced before the Maluleke Commission by Mr Kwantlwale
Pilane (the head of the clans of Bakgatla-Ba-Kgafela); Mr Kobedi
Pilane
(the chairperson of the Traditional Council); and a report
compiled by Professor Mbenga. Professor Mbenga’s report
provides
information on the customary law of governance and
decision-making processes of the Bakgatla-Ba-Kgafela. The amici
argue that
the new evidence will enable this Court to gain better
insight into how power is exercised and decisions are taken by
traditional
leaders in collaboration with members of their
communities at a local level as dictated to by their custom.
Rule 31 of
this Court’s rules makes provision for any party to any
proceedings, including an amicus curiae, to canvas
relevant factual
material in documents lodged with the Registrar that do not form
part of the record in certain defined circumstances.
Those facts
must be of an official scientific, technical or statistical nature
and capable of easy verification. The respondents
resist the
introduction of the new evidence. Their objection is predicated on
two bases. First, they complain that they have
been effectively
denied a fair opportunity to respond fully to the additional
factual material presented by the amici. Second,
they argue that
the factual material is in any event controvertible and incapable
of resolution on the papers.
The new
evidence sought to be introduced by the amici ought not to be
allowed essentially for two reasons. The respondents’

complaint in relation to time constraints is not only
understandable but is also perfectly justified. Most importantly,

the new evidence tendered does not satisfy the test in
rule 31(1)(a) and (b).
31
It is neither common cause nor otherwise incontrovertible or
capable of easy verification. To the contrary, it has the

potential to give rise to a factual dispute on the papers.
Accordingly, the applications to introduce new evidence fall to be

dismissed.
Issues
The parties in
this matter raised numerous issues in both their written
submissions and at the hearing. The issues related
to the
ownership of the land in question; the validity of the respondents’
mining right; the applicants’ legal
competence to raise a
collateral challenge to the validity of the respondents’
mining right; and the validity of the
surface lease agreement
entered into between the respondents and the Minister.
In my view, it
is unnecessary and undesirable to decide this matter on any of the
grounds set out in the preceding paragraph.
The ownership issue,
as will be explained below, should not be dealt with because it is
still pending before another forum.
Moreover, in the view I take
of the matter - as will become apparent later - it is not necessary
to consider and decide the
question relating to ownership. The
validity of the mining right, and the vexed and interesting
question whether it is legally
permissible for the applicants to
impugn the validity of the mining right by way of a collateral
challenge, should also not
be decided in this matter. The
difficulty is that the collateral challenge mounted by the
applicants is not directed against
the functionary who, in the
exercise of public power under the MPRDA, awarded mining rights to
the respondents. Instead, it
is sought to be invoked against the
holders of the mining rights which are private entities and are
themselves not exercising
public power in the conventional sense of
that expression but are merely the beneficiaries of the exercise of
public power
by the Minister of Mineral Resources or his or her
delegate. This is a complex question that must be left open for
another
day when it has more appropriately arisen and been
exhaustively ventilated after thoughtful consideration.
I also do not
consider it necessary to deal with the applicants’ further
alternative argument premised on the land use
scheme under the
Moses Kotane Town-Planning Scheme, 2005.
32
Instead, this
matter should be decided principally on the basis of section 54 of
the MPRDA and section 2 of IPILRA. The central
issue is whether
section 54 was available to the respondents, and if it was, whether
they are precluded from obtaining an interdict
before exhausting
the mechanisms for which section 54 provides. Allied to this is
the second question whether the applicants
had consented to being
deprived of their informal land rights to or interests in the farm.
These issues were fully argued
before us, and arise directly from
the facts of this case. Unlike some of the other issues, they do
not involve a dispute
of fact.
Constitutional
and statutory framework
It is now
convenient to make reference to the constitutional and statutory
provisions that are relevant to the determination
of this case.
The decision in this matter, in relation to the core issues
identified in the preceding paragraph, hinges on
the interpretation
of the relevant provisions of the Constitution, the MPRDA and
IPILRA.
In this
regard, the logical point of departure is section 39(2) of the
Constitution. It provides that a statutory provision
should be
interpreted in accordance with the spirit, purport and
objects
of the Bill of Rights.
33
Allied to this principle is also the principle restated
in
Affordable Medicines
that “where possible, legislation
ought to be construed in a manner that is consistent with the
Constitution”.
34
Another cardinal rule of statutory interpretation is that the
ordinary meaning of the words in a statute must be ascertained
in
the context of the statute in its entirety and its apparent
purpose.
35
As this Court
made plain in
Goedgelegen
,
albeit in a different context,
36
the purpose of the legislation underpinning the
provisions being interpreted plays a critical role in statutory
interpretation.
There, Moseneke DCJ emphasised that:
“
It
is by now trite that not only the empowering provision of the
Constitution but also of the Restitution Act must be understood

purposively because it is remedial legislation umbilically linked to
the Constitution. Therefore, in construing ‘as a
result of
past racially discriminatory laws or practices’ in its setting
of section 2(1) of the Restitution Act, we are
obliged to scrutinise
its purpose. As we do so, we must seek to promote the spirit,
purport and objects of the Bill of Rights.
We must prefer a
generous construction over a merely textual or legalistic one in
order to afford claimants the fullest possible
protection of their
constitutional guarantees. In searching for the purpose, it is
legitimate to seek to identify the mischief
sought to be remedied.
In part, that is why it is helpful, where appropriate, to pay due
attention to the social and historical
background of the
legislation.”
37
Finally,
section 233 of the Constitution enjoins every court to “prefer
any reasonable interpretation of the legislation
that is consistent
with international law over any alternative interpretation that is
inconsistent with international law”.
Furthermore,
section 39(1)(b) of the Constitution decrees that every
court must consider international law when interpreting the Bill of

Rights.
The two
constitutional provisions most relevant to this matter are
sections 25(6) and 211. Section 25(6) of the Constitution

reads:
“
A person or community
whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is
entitled, to the extent
provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.”
Section 211 of
the Constitution provides:
“
(1) The institution,
status and role of traditional leadership, according to customary
law, are recognised, subject to the Constitution.
(2) A traditional authority
that observes a system of customary law may function subject to any
applicable legislation and customs,
which includes amendments to, or
repeal of, that legislation or those customs.
(3) The courts must apply
customary law when that law is applicable, subject to the
Constitution and any
legislation that specifically deals with customary law.”
It is with
these general principles of statutory interpretation, and
constitutional provisions in mind that I proceed to consider
the
relevant statutory framework.
Mineral and
Petroleum Resources Development Act
The
objects of
the MPRDA are set out in
section 2.
38
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38
The MPRDA, recognising that the custodianship of the country’s
mineral and petroleum resources vests in the state, has
as one of
its primary objects the transformation of the sector and the
empowerment of those of the country’s population
who were
previously excluded from participating in the exploitation of the
country’s mineral and petroleum resources.
In
Agri SA
,
Mogoeng CJ held that custodianship does not make the state the
owner of mineral and petroleum resources.
39
Rather, it empowers the state to be “a facilitator or a
conduit through which broader and equitable access to mineral
and
petroleum resources can be realised”.
40
At the same time, the state, as custodian, is responsible for
ensuring that these resources are exploited for the benefit
of the
nation as a whole.
41
To this end,
the MPRDA sets out the procedure that must be followed and
requirements that must be satisfied when an application
for a
prospecting or mining right is made under it. In the context of
this case the most relevant provisions of the MPRDA
are
sections 5
,
22
,
25
,
54
and
55
.
Section 5
of
the MPRDA provides:
“
(1) A prospecting right,
mining right, exploration right or production right granted in terms
of this Act and registered in terms
of the Mining Titles
Registration Act, 1967 (Act No. 16 of 1967), is a limited real right
in respect of the mineral or petroleum
and the land to which such
right relates.
(2) The holder of a prospecting
right, mining right, exploration right or production right is
entitled to the rights referred
to in this section and such other
rights as may be granted to, acquired by or conferred upon such
holder under this Act or any
other law.
(3) Subject to this Act, any
holder of a prospecting right, a mining right, exploration right or
production right may—
(a) enter the land to which
such right relates together with his or her employees, and bring
onto that land any plant, machinery
or equipment and build,
construct or lay down any surface, underground or under sea
infrastructure which may be required for
the purpose of prospecting,
mining, exploration or production, as the case may be;
. . .
(b) prospect, mine, explore or
produce, as the case may be, for his or her own account on or under
that land for the mineral or
petroleum for which such right has been
granted;
. . .
(e) carry out any other
activity incidental to prospecting, mining, exploration or
production operations, which activity does
not contravene the
provisions of this Act.”
Section 22
provides, amongst others, that any person who wishes to apply for a
mining right must simultaneously apply for an
environmental
approval. It also imposes certain obligations on the Regional
Manager to take certain steps within 14 days
of receipt of the
application.
42
If the Regional Manager accepts the application as being compliant
with the procedural requirements of the MPRDA, he or she
must
notify the applicant to conduct an environmental impact assessment
and submit an environmental management plan within
180 days
from the date of the notice.
43
In particular, he or she must notify the applicant to consult, in
the prescribed manner, with the landowners, lawful occupiers
and
any interested and affected persons and to include the result of
the consultation in the relevant environmental reports.
44
Section
25(2)(d) provides in explicit terms that the holder of a mining
right must comply with the relevant provisions of the
MPRDA and any
other relevant law and the terms and conditions of the mining
right.
Section 54, in
turn, reads:
“
(1) The holder of a
reconnaissance permission, prospecting right, mining right or mining
permit must notify the relevant Regional
Manager if that holder is
prevented from commencing or conducting any reconnaissance,
prospecting or mining operations because
the owner or the lawful
occupier of the land in question—
(
a
) refuses
to allow such holder to enter the land;
(
b
) places
unreasonable demands in return for access to the land; or
(
c
) cannot
be found in order to apply for access.
(2) The
Regional Manager must, within 14 days from the date of the notice
referred to in subsection (1)—
(a) call upon the owner or
lawful occupier of the land to make representations regarding the
issues raised by the holder of the
reconnaissance permission,
prospecting right, mining right or mining permit;
(b) inform that owner or
occupier of the rights of the holder of a right, permit or
permission in terms of this Act;
(
c
) set
out the provisions of this Act which such owner or occupier is
contravening; and
(
d
) inform
that owner or occupier of the steps which may be taken, should he or
she persist in contravening the provisions.
(3) If
the Regional Manager, after having considered the issues raised by
the holder under subsection (1) and any written

representations by the owner or the lawful occupier of the land,
concludes that the owner or occupier has suffered or is likely
to
suffer loss or damage as a result of the reconnaissance, prospecting
or mining operations, he or she must request the parties
concerned
to endeavour to reach an agreement for the payment of compensation
for such loss or damage.
. . .
(5) If
the Regional Manager, having considered the issues raised by the
holder under subsection (1) and any representations
by the
owner or occupier of land and any written recommendation by the
Regional Mining Development and Environmental Committee,
concludes
that any further negotiation may detrimentally affect the objects of
this Act referred to in section 2 (
c
), (
d
), (
f
) or (
g
),
the Regional Manager may recommend to the Minister that such land be
expropriated in terms of section 55.
(6) If
the Regional Manager determines that the failure of the parties to
reach an agreement or to resolve the dispute is due
to the fault of
the holder of the reconnaissance permission, prospecting right,
mining right or mining permit, the Regional Manager
may in writing
prohibit such holder from commencing or continuing with prospecting
or mining operations on the land in question
until such time as the
dispute has been resolved by arbitration or by a competent court.”
It is apposite
at this juncture to observe that a mining right confers on the
holder of such right certain limited real rights
in respect of the
mineral and the land to which it relates.
45
In particular, it entitles the mining right holder to enter the
land to which such right relates “together with his
or her
employees, and bring onto that land any plant, machinery or
equipment, and build, construct or lay down any surface,
or
underground infrastructure which may be required for the purpose
of”, amongst others, mining, removal and disposal
of any
mineral to which such right relates as maybe found during mining.
These rights are, however, subject to the other provisions
of the
MPRDA.
46
It bears
emphasising that the provisions of section 5(3) of the MPRDA echo
two fundamental principles of the common law. First,
that the
owner of the land to which a mining right relates is obliged to
allow the holder access to his or her land to do whatever
is
reasonably necessary for the effective exercise of the mining
holder’s rights.
Second, the
mining right holder is in turn obliged to exercise his rights
civiliter modo
(in a reasonable manner) so as to cause
the least possible inconvenience to the rights of the owner.
Accordingly, the common
law requires of both the landowner and the
mining right holder to exercise their respective rights alongside
each other to
the extent that it is reasonably possible to do so.
It therefore fosters a situation where the right of the landowner
and
the mining right holder co exist. This is buttressed by
section 53(2) of the MPRDA which provides that farming or any use

incidental thereto – which is what the applicants were doing
on the farm before the award of the mining rights –
does not
fall within the purview of section 53(1). The latter section
requires any person who intends to use the surface
of any land in a
way which may be contrary to any object of the MPRDA or likely to
impede such object to apply to the Minister
for approval of such
intended use.
These common
law principles were articulated by Malan J in
Hudson
thus:
“
I have been referred to
a number of decisions from which the rights of the holder of mineral
rights appear reasonably well defined.
Such a holder (and the holder
of a notarial mineral lease stands on the same footing) is entitled
to go upon the property, search
for minerals and if he finds any to
remove them. In the course of his operations he is entitled to
exercise all such subsidiary
or ancillary rights, without which he
will not be able effectively to carry on his prospecting and/or
mining operations.
When the owners are able
reasonably to enjoy their respective rights without any clashing of
interests no dispute is, as a rule,
likely to arise. The difficulty
arises, as has happened in the present case, when the respective
claims enter into competition
and there is no room for the exercise
of the rights of both parties simultaneously.
The principles underlying the
decisions appear to be that the grantee of mineral rights may resist
interference with a reasonable
exercise of those rights either by
the grantor or by those who derive title through him. In case of
irreconcilable conflict
the use of the surface rights must be
subordinated to mineral exploration. The solution of a dispute in
such a case appears
to me to resolve itself into a determination of
a question of fact, viz., whether or not the holder of the mineral
rights acts bona
fide and reasonably in the course of
exercising his rights. He must exercise his rights in a manner
least onerous or injurious
to the owner of the surface rights, but
he is not obliged to forego ordinary and reasonable enjoyment
merely because his
operations or activities are detrimental to the
interests of the surface owner. The fact that the use to which the
owner of
the surface rights puts the property is earlier in point of
time cannot derogate from the rights of the holder of the mineral
rights.”
47
Hudson
was
cited with approval in
Finbro Furnishings
in which the
following was stated:
“
[T]he
tendency of our law [is] to reconcile, as far as possible, the
competing claims of the mineral lease holder and the surface
owner.
Although our law tries to strike such a balance a situation may well
arise in which the conflict of rights is insoluble.”
48
Interim
Protection of Informal Land Rights Act
The
purpose of
IPILRA is stated in its preamble as follows: “To provide for
the temporary protection of certain rights to
and interests in land
which are not otherwise adequately protected by law; and to provide
for matters connected therewith.”
Implicit in the preamble
of IPILRA is that, when it was conceived, it was intended to be a
temporary measure and was to endure
for a period of one year from
the date of its coming into operation.
49
Some of the pertinent definitions contained in
section 1
of IPILRA
bear special mentioning. “Community” is defined as:
“any group or portion of a group of persons
whose rights to
land are derived from shared rules determining access to land held
in common by such group”. “Tribe”
is defined as
including: “(a) any community living and existing like a
tribe; and (b) any part of a tribe living and
existing as a
separate entity”.
Section 1(2)(b)
provides that: “The
holder of an informal right to land shall be deemed to be an owner
of land for the purposes of section
42 of the Minerals Act, 1991”.
50
Section 1
defines “informal right to land” as:
“
(a) [T]he use of,
occupation of, or access to land in terms of—
(i) any tribal, customary or
indigenous law or practice of a tribe;
(ii) the custom, usage or
administrative practice in a particular area or community, where the
land in question at any time vested
in—
(aa) the South African
Development Trust established by section 4 of the Development Trust
and Land Act, 1936 (Act No. 18 of 1936);
(bb) the government of any area
for which a legislative assembly was established in terms of the
Self-Governing Territories Constitution
Act, 1971 (Act No. 21 of
1971); or
(cc) the governments of the
former Republics of Transkei, Bophuthatswana, Venda and Ciskei;
(b) the right or interest in
land of a beneficiary under a trust arrangement in terms of which
the trustee is a body or functionary
established or appointed by or
under an Act of Parliament or the holder of a public office;
(c) beneficial occupation of
land for a continuous period of not less than five years prior to 31
December 1997; or
(d) the use or occupation by
any person of an erf as if he or she is, in respect of that erf, the
holder of a right mentioned
in Schedule 1 or 2 of the Upgrading of
Land Tenure Rights Act, 1991 (Act No. 112 of 1991), although he or
she is not formally
recorded in a register of land rights as the
holder of the right in question.”
Section 2,
which is titled “Deprivation of informal right to land”,
provides:
“
(1) Subject to the
provisions of subsection (4), and the provisions of the
Expropriation Act, 1975 (Act No. 63 of 1975), or any
other law which
provides for the expropriation of land or rights in land, no person
may be deprived of any informal right to
land without his or her
consent.
(2) Where land is held on a
communal basis, a person may, subject to subsection (4), be deprived
of such land or right in land
in accordance with the custom and
usage of that community.
(3) Where the deprivation of a
right in land in terms of subsection (2) is caused by a disposal of
the land or a right in land
by the community, the community shall
pay appropriate compensation to any person who is deprived of an
informal right to land
as a result of such disposal.
(4) For the purposes of this
section the custom and usage of a community shall be deemed to
include the principle that a decision
to dispose of any such right
may only be taken by a majority of the holders of such rights
present or represented at a meeting
convened for the purpose of
considering such disposal and of which they have been given
sufficient notice, and in which they
have had a reasonable
opportunity to participate.”
The general
principles of statutory interpretation canvassed above have three
implications for how IPILRA must be read and understood.
First,
the purpose of IPILRA, which must be scrutinised, is not hard to
find for IPILRA itself spells it out. It is to provide
for the
protection of informal rights to and interests in land that were
not adequately protected by the law because of racially

discriminatory laws of the past. Second, the provisions of IPILRA
have to be interpreted benevolently in order to afford holders
of
informal rights to land the fullest possible protection. Third,
during the interpretative exercise the mischief that IPILRA
seeks
to remedy must be kept uppermost in the mind. Allied to this is the
constitutional imperative to construe legislation
in a manner that
is consistent with the Constitution.
51
Applicants’
submissions
In this Court
the applicants assailed the judgment of the High Court on several
grounds. The applicants argued that the respondents
were required
to consult with them, as owners of the farm, before commencing with
their mining operations on the farm. In
the alternative, they
argued that as occupiers of the farm in relation to which they were
holders of informal rights in terms
of IPILRA, the respondents were
obliged to consult with each affected person to seek and obtain
their consent before they could
be lawfully deprived of their
surface rights.
As to their
claimed ownership of the farm, the applicants argued that as
descendants of the original purchasers of the farm
who were the
true owners despite the fact that the farm was registered in the
name of the Minister, they are the only legitimate
group of persons
who should have been consulted and not the entire
Bakgatla Ba Kgafela Community. In elaboration,
they
submitted that the fact that the farm is not registered in their
names (and had never been registered in the names of
the original
purchasers) does not detract from the fact that they are the true
owners. This is so because – as the argument
went – the
South African land registration system is by its very nature
neither absolutely positive nor negative.
For this proposition the
applicants place great store on
Ex parte Menzies et Uxor
.
52
There, it was found that the owner of the property registered in
the deeds office may not necessarily always be the legal
owner.
The further
argument advanced by the applicants is that they are covered by
section 22(4)(b) of the MPRDA, which imposes a duty
on an applicant
applying for a mining right to consult in the prescribed manner
with the landowner, the lawful occupier and
any interested or
affected party and to include the outcome of such consultation in
the relevant environmental reports. This
section, so the argument
continued, makes no distinction between owners and lawful occupiers
and indeed also brings within
its purview affected parties other
than owners and lawful occupiers.
The applicants
also argued that they are the holders of informal rights to the
farm as contemplated in IPILRA. In short, the
applicants contended
that they could not therefore be deprived of such informal rights
without their consent otherwise than
in accordance with the
prescripts of IPILRA.
Submissions
of the amici
The amici have
raised further issues for consideration by this Court. Their
contentions proceed from the premise that the relevant
provisions
of the MPRDA and IPILRA are not in conflict with each other and
therefore ought to be interpreted and read harmoniously.
The amici
argued that section 2(1) of IPILRA explicitly provides that,
barring expropriation and subject to sub-section (4),
no person may
be deprived of any informal right to land without his or her
consent. Section 2(1) refers to “any”
informal right
to land. “Any” is a word of wide import.
53
In instances where land is held on a communal basis, a person may
be deprived of his or her informal rights only if the deprivation,

which must be consistent with the customs and usages of the
community, enjoys the support of the majority.
With respect
to the MPRDA, the amici argued that the grant of a mining right
constitutes deprivation of property in terms of
section 25(1) of
the Constitution.
54
In elaboration, it was contended that all that is required for
deprivation to occur is interference that has a “legally

relevant impact on the rights of the affected party”.
55
For this proposition the amici relied on
Mkontwana
in which
the following was said:
“
Whether
there has been a deprivation depends on the extent of the
interference with or limitation of use, enjoyment or exploitation.
It is not necessary in this case to determine precisely what
constitutes deprivation. No more need be said than that at the
very
least, substantial interference or limitation that goes beyond the
normal restrictions on property use or enjoyment found
in an open
and democratic society would amount to deprivation.”
56
Furthermore,
the amici argued that a mining right – which is a limited
real right – by its very nature subtracts
from the
landowner’s bare dominium of land. In addition, the amici
submitted that the conclusion of a surface lease
agreement over the
farm likewise constitutes a deprivation. Consequently, the
respondents were obliged, under IPILRA, to seek
the applicants’
consent as affected persons (by virtue of their informal rights to
the farm) as the conclusion of the
surface lease and the extensive
rights accorded the respondents under section 5 of the MPRDA both
constituted a deprivation.
The amici also
argued that for the consent contemplated in section 2(1) to be
effectual it must be free, granted prior to deprivation
and be
informed. This, the amici argued, is in line with South Africa’s
international law obligations. Amongst the
binding international
instruments applicable to determining the nature of consent is the
African Charter for Human and Peoples’
Rights (African
Charter). The African Charter does not expressly provide for
the concept of free, prior and informed
consent, but it is
generally understood that this concept is inherent in certain
guarantees such as the right to self-determination
(article 20)
57
,
right to development (article 22(1)),
58
and even arguably the right to information (article 9).
59
The African Commission for Human and Peoples’ Rights, in
Endorois
, concluded that:
“
[In] any development or
investment projects that would have a major impact within the
[relevant territory], the state has a duty
not only to consult with
the community, but also to obtain their free, prior, and informed
consent, according to their customs
and traditions.”
60
In elaboration, the
amici submitted that “free” implies that consent is
given voluntarily and is not coerced, induced
by misrepresentation
or undue influence. “Prior” suggests that consent
should be granted before any decision is
taken. “Informed”
postulates that all the relevant information bearing on the subject
matter in relation to which
consent is required must be made
available to the person from whom the requisite consent is sought.
In addition,
the amici argued that the fundamental principles of the concept of
free, prior and informed consent seek to ensure
that: (a) local
communities are not coerced or intimidated; (b) consent is properly
sought and freely given; (c) the person
whose consent is required
is provided with full and reliable information relating to the
scope and impact of the subject matter
regarding the consultation;
and (d) they have the choice to give or withhold their consent.
61
Respondents’
submissions
The
respondents oppose the application for leave to appeal, but if
granted, they oppose the appeal itself. They argued that
the
applicants were consulted with as required by section 22(4) before
the grant of the mining right at a meeting of the

Lesetlheng Community held on 21 April 2007. They contended
that the purpose of the meeting was, amongst others, to explain
the
process and progress made in relation to the mining application and
to assess how interested parties would be affected
if mining
proceeded. But none of the attendees at this meeting raised any
objection to the proposed mining. To the contrary,
the project was
supported. They further contended that this consultation was
consonant with the dictates of the MPRDA. The
respondents accepted
in their written submissions that the consultation requirements of
the MPRDA are the same both in relation
to landowners and lawful
occupiers. But the respondents asserted that it was sufficient
that the applicants were consulted
with and that the award of a
mining right was not dependent upon them granting consent.
In their
written heads of argument, the respondents emphasised that a mining
right enjoys preference over the surface rights
over the land to
which the mining right relates. They stressed that this is the
case not only in relation to the underground
mining operations but
also in relation to the exercise by the landowner of his or her
surface rights to the land in question.
This means that – so
the argument went – the rights of the landowner must yield to
those of the mining right holder
to the extent that there is a
conflict between these competing rights.
Analysis
Before giving
consideration to the parties’ contentions, it is prudent to
make certain observations concerning two aspects.
The first
relates to the nature of the consultation required both in terms of
the MPRDA and IPILRA and what such consultation
entails. The
second relates to the identity of the parties that an applicant for
a mining right is required to notify and
consult with concerning
the application.
First, section
10(1) of the MPRDA provides that the Regional Manager must, within
14 days after accepting a mining application,
make known in the
prescribed manner that such an application has been accepted in
respect of the land in question. He or she
must then call upon all
interested and affected persons to submit their comments within 30
days from the date of the notice.
Objections to the application
must, in terms of section 10(2), be referred to the Regional Mining
Development and Environmental
Committee for consideration and for
the committee to advise the Minister thereon. The applicant must,
amongst others, also
consult in the prescribed manner with the
landowner, lawful occupier and any interested and affected party
and include the
result of the consultation in the relevant
environmental report required to be submitted to the Regional
Manager.
62
Before the mining right holder commences with mining operations,
the landowner or lawful occupier must be notified and consulted
in
terms of section 5(4)(c).
63
The purpose
and importance of the requirements relating to notification of and
consultation with affected parties were underscored
by this Court
in
Bengwenyama Minerals
in the following terms:
“
These
different notice and consultation requirements are indicative of a
serious concern for the rights and interests of landowners
and
lawful occupiers in the process of granting prospecting rights. It
is not difficult to see why: the granting and execution
of a
prospecting right represents a grave and considerable invasion of
the use and enjoyment of the land on which the prospecting
is to
happen. This is so irrespective of whether one regards a
landowner’s right as ownership of its surface and what
is
beneath it ‘in all the fullness that the common law
allows’, or as use only of its surface, if what lies

below does not belong to the landowner but somehow resides in the
custody of the state.”
64
(Footnotes omitted.)
This Court
went on to explain that:
“
One
of the purposes of consultation with the [lawful occupier] must
surely be to see whether some accommodation is possible between
the
applicant for a [mining] right and the [lawful occupier] insofar as
the interference with the [lawful occupier’s] rights
to use
the property is concerned.”
65
It then
emphasised that:
“
The
consultation process required by section 16(4)(b) of the Act thus
requires that the applicant [for a prospecting right] must:
(a)
inform the landowner in writing that his application for prospecting
rights on the owner‘s land has been accepted for
consideration
by the Regional Manager concerned; (b) inform the landowner in
sufficient detail of what the prospecting operation
will entail on
the land, in order for the landowner to assess what impact the
prospecting will have on the landowner‘s
use of the land; (c)
consult with the
landowner with a view to reach an agreement to the satisfaction of
both parties in regard to the impact of the
proposed prospecting
operation
; and (d)
submit the result of the consultation process to the Regional
Manager within 30 days of receiving notification to consult.”
66
With these
general observations relating to the nature of the consultative
process under the MPRDA in mind, I revert now to
the merits of the
case.
Must the
question of ownership of the farm be determined?
The applicants
asserted that they are the true owners of the farm.
Consequently,
in 2012 and under the auspices of the 38th applicant, the
applicants instituted a claim in terms of the Land Titles

Adjustment Act
67
in which they sought rectification of the title deed of the farm to
reflect them as co-owners.
Therefore, they contended that
the respondents were, in terms of the law, required not only to
notify them of their application
for a mining right but also to
consult with them in relation to such application. It is, however,
not in dispute that the
farm is currently registered in the name of
the Minister as trustee of the Bakgatla Community.
Section 102 of the
Deeds Registries Act
68
provides that the owner of land registered in the Deeds Registry –
as the farm is – is the person in whose name
the property is
registered.
On the face of
it, this must then mean that the applicants are not the registered
owners of the farm as contemplated in section
102 of the Deeds
Registries Act. But it is common cause that the applicants have
initiated a process under the Land Titles
Adjustment Act in terms
of which they seek to have the title deed of the farm rectified to
reflect them as registered owners.
Thus, depending on the outcome
of that process, it is possible that the applicants may well turn
out to be the legal owners
of the farm. It would therefore be
ill-advised of this Court at this stage to make a definitive
finding on the ownership of
the farm.
For present
purposes it suffices merely to record that the applicants’
assertion that they are the owners of the farm
within the meaning
of section 102 is premature. This will then leave it open to them
to pursue the process that they have
initiated under the Land
Titles Adjustment Act to its final determination.
Were the
respondents under a duty to exhaust the internal process under
section 54 of the MPRDA before approaching the High Court?
Section 54(1)
provides that the holder of a mining right or permit—
“
must notify the relevant
Regional Manager if that holder is prevented from commencing or
conducting . . . mining operations because
the owner or the lawful
occupier of the land in question . . . refuses to allow such holder
to enter the land.”
Section 54
employs mandatory language. During oral argument the respondents
submitted that section 54 was not triggered as
it only relates to
disputes concerning compensation. Having regard to the wording of
the section, this submission is patently
wrong. In fact, on 12
August 2014, the second respondent addressed a section 54(1)
written notice to the Regional Manager.
69
However, there is no evidence as to what finally became of that
process.
To overcome
this difficulty, the respondents called in aid the Supreme Court of
Appeal decision in
Maranda
. The respondents placed much
store on
Maranda
in support of their proposition that it is
not necessary to exhaust the section 54 process before approaching
a court for an
interdict. However, the applicants countered this
submission and contended that
Maranda
is distinguishable
from this case on the facts. In
Maranda
, unlike in this
case, the mining right holder was denied access to the land by the
landowner despite several approaches by
both the mining right
holder and the Regional Manager.
70
It became clear that the landowner was not only intent on refusing
consent but was also not prepared to even enter into negotiations

with the mining right holder. Thus the landowner’s conduct
was found not only obstructive but also subversive of the
objects
of the MPRDA.
Consequently,
the Supreme Court of Appeal in
Maranda
held that in those
circumstances it could not lie in the landowner’s mouth to
complain that he had not been consulted
with and therefore
frustrate the objects of the MPRDA. It went on to conclude that
“it would be absurd for the [MPRDA]
to permit an unreasonable
refusal of access based on a clear objective to frustrate the
legitimate endeavours of a permit holder”.
71
The Supreme
Court of Appeal reasoned:
“
Here the appellants
simply, and in an unreasonable fashion, refused to allow the
respondent access to the land and as a result
it is unclear on what
conceivable basis the regional manager could be expected to initiate
an expropriation process. No basis
for expropriation based on this
provision was advanced by the appellants’ counsel. The
submission is in my view clearly
misconceived.”
72
Maranda
is
also distinguishable because at the time it was handed down,
section 5(4)(c) of the MPRDA was still in force.
73
Section 5(4)(c) prohibited the commencement of mining activities
by a permit holder unless it notified and consulted with
the owner
or occupier of the land in question. In
Meepo
,
74
which
Maranda
cites with approval, the High Court held that
the MPRDA provided for due consultations between a landowner and
the holder of
or applicant for a permit to “alleviate
possible serious inroads being made on the property right of the
landowner”.
75
Following the repeal of section 5(4)(c),
76
section 54 must be exhausted to ensure that the MPRDA’s
purpose of balancing the rights of the mining right holders
on the
one hand and those of the surface rights holders on the other is
fulfilled.
It is evident
from the reasoning of the Supreme Court of Appeal in the passage
quoted in paragraph 89 above that the facts of
the present case are
a far cry from the facts in
Maranda
. Accordingly, the High
Court’s reliance on
Maranda
was misplaced. In the
ordinary course, the respondents were required to take all
reasonable steps to exhaust the section 54
process –
which they had in fact initiated – before approaching a court
for an eviction and an interdict.
The
respondents further submitted that in the event that this Court
holds
that section 54 must be exhausted before an interdict
can be sought, then mining right holders would be unjustifiably
prevented
from commencing with mining pending the finalisation of
section 54 proceedings. But this submission entirely overlooks the

fact that section 54 itself provides for a speedy dispute
resolution process that is premised on parties reaching some sort
of agreement through mediation. It also provides that if parties
fail to reach an agreement, then they may approach a court.
77
It is unclear why, pending the finalisation of this process, a
mining rights holder should be entitled to mine. On the contrary,

to allow them to do so will undermine the purpose of section 54 and
the MPRDA: to strike a balance between the interests of
the mining
right holder and the owner. It bears mentioning that section 54(5)
contemplates that if negotiations between the
affected parties and
the mining right holder are deadlocked, and the Regional Manager
concludes that any further negotiations
may detrimentally affect
the objects of the MPRDA, he or she may recommend to the Minister
that the land be expropriated in
terms of section 55.
However, it
should be noted that section 54 only applies where the occupation
is lawful. Although both parties admitted that
the applicants were
holders of informal land rights, the respondents nevertheless
sought to argue that these rights were terminated
in terms of
section 2 of IPILRA upon the grant of the mining right and / or
entering into the surface lease agreement with
the first
respondent. This then implies that the applicants’
occupation of the farm could well be unlawful. It is to
this issue
that I now turn.
With the
advent of our constitutional democracy, customary law has now been
restored to its rightful place in this country.
Section 211(3) of
the Constitution decrees that courts must apply customary law when
that law is applicable. The application
of customary law is made
subject only to the Constitution and any legislation that
specifically deals with customary law.
In
Bhe
, Langa DCJ
had this to say about the status of the customary law:
“
Quite
clearly the Constitution itself envisages a place for customary law
in our legal system. Certain provisions of the Constitution
put it
beyond doubt that our basic law specifically requires that customary
law should be accommodated, not merely tolerated,
as part of South
African law, provided the particular rules or provisions are not in
conflict with the Constitution. Sections
30 and 31 of the
Constitution entrench respect for cultural diversity. Further,
section 39(2) specifically requires a court
interpreting customary
law to promote the spirit, purport and objects of the Bill of
Rights. In similar vein, section 39(3)
states that the Bill of
Rights does not deny the existence of any other rights or freedoms
that are recognised or conferred by
customary law as long as they
are consistent with the Bill of Rights. Finally, section 211
protects those institutions that
are unique to customary law. It follows from this that customary
law must be interpreted by
the courts, as first and foremost
answering to the contents of the Constitution. It is protected by
and subject to the Constitution
in its own right.”
78
It is evident from
this that customary law was given impetus by the values underpinning
our constitutional order such as dignity,
79
the right to participate in the cultural life of one’s choice
80
and equality.
81
Mindful of our
past, which was characterised by oppression, deprivation of a
significant segment of our society and deep-rooted
inequalities,
our Constitution places a high premium on the absolute need to
redress
the injustices of that
shameful
past. In relation to those members of society who were denied
equal access to land and security of tenure, section
25(6) of the
Constitution sets out to redress the attendant inequalities. It
provides in unequivocal terms that any “person
or community
whose tenure of land is legally insecure as a result of past
racially discriminatory laws or practices is entitled
to tenure
which is legally secure or to comparable redress”. As is
manifest from its preamble, IPILRA seeks to provide
for the
protection of certain rights to and interest in land that were
previously not otherwise protected by law. To provide
such
protection, IPILRA ensures that communities have a right to decide
what should happen to land in which they have an interest.
It
offers communities legal protection to assume control over and deal
with their land according to customary law and usages
practiced by
them.
Most
significantly, IPILRA provides that no person may be deprived of
any informal right to land without his or her consent.
82
Where land is held on a communal basis, a person may be deprived
of such land or right in land in accordance with the custom
or
usage of the community concerned, except where the land in question
is expropriated.
83
However, in
instances where land is held on a communal basis, affected parties
must be given sufficient notice of and be afforded
a reasonable
opportunity to participate, either in person or through
representatives, at any meeting where a decision to dispose
of
their rights to land is to be taken.
84
And this decision can competently be taken only with the support
of the majority of the affected persons having interest in
or
rights to the land concerned, and who are present at such a
meeting.
Did the
award of the mining right constitute a deprivation of informal
rights to land?
A somewhat
curious feature of IPILRA is that whilst it provides that no person
may be deprived of any informal right to land
without consent, it
does not itself spell out what constitutes a deprivation. The
Concise Oxford English Dictionary defines
the verb “deprive”
as meaning: “Prevent (a person or place) from having or using
something”.
85
The noun “deprivation” is defined as: “The
damaging lack of basic material benefits; lack or denial of
something considered essential”. This, to my mind, is the
definition that should be adopted for purposes of section 2
of
IPILRA.
Whether there
has been a deprivation in any given case, said Yacoob J in
Mkontwana,
depends—
“
on
the extent of the interference with or limitation of use, enjoyment
or exploitation . . .
at
the very least, substantial interference or limitation that goes
beyond the normal restrictions on property use or enjoyment
found in
an open and democratic society would amount to deprivation.”
86
Before
Mkontwana,
this Court had earlier, in the context of section
25(1) of the Constitution, said that:
“
In
a certain sense any interference with the use, enjoyment or
exploitation of private property involves some deprivation in
respect of the person having title or right to or in the property
concerned.”
87
As
noted above, the MPRDA confers on the holder of a mining right a
limited real right in respect of the mineral or petroleum
and the
land to which such right relates.
88
Moreover, and significantly, it grants to the holder a right of
access to the land, even against the wishes of the landowner.
The
mining right holder is free to enter the land and do everything
necessary in the exercise of her right, including constructing
or
laying down any surface or underground infrastructure, which may be
required for the purpose of the mining rights holder’s
rights.
Before this
Court, counsel for the respondents sought to argue that whilst the
award of a mining right under section 23 of the
MPRDA does not
equate to expropriation in the ordinary and conventional sense of
that term, its practical effect is tantamount
to expropriation as
it has the effect of depriving a landowner or occupier of the land
to which it relates of certain incidents
of his or her rights of
ownership or occupation.
Accordingly,
given the invasive nature of a mining right, there can be no
denying that when exercising her rights, the mining
right holder,
would intrude into the rights of the owner of the land to which the
mining right relates. And the more invasive
the mining operations
are the greater the extent of subtraction from a landowner’s
dominium will it entail. On their
own version, the respondents
accept that it is not possible for them to undertake their mining
operations whilst the applicants
remain in occupation of the farm.
It must follow from this that the applicants will be deprived of
their informal rights to
the farm if the order evicting them from
the farm were allowed to stand.
But it cannot
be that because of this, the applicants are denuded of their
informal land rights and are therefore unlawful occupiers.
The
fact that the respondents’ mining rights are valid (which
must be assumed in their favour in this case),
89
does not mean that the applicants are, in consequence, occupying
the land in question unlawfully. The existence of a mineral
right
does not itself extinguish the rights of a landowner or any other
occupier of the land in question.
Under the
common law, the landowner could not use the land in a way which
would interfere with the mineral right holder’s
use, and if
the landowner did so, the mineral right holder could interdict the
landowner’s use or intended use.
90
But section 54, as discussed above, clearly envisages that
land to which a mining right relates can still be lawfully
occupied
notwithstanding the existence of such a mining right. This could
be in terms of a lease, servitude, or a statutory
right as under
IPILRA.
What is more,
an informal land rights holder under IPILRA could even consent to
the granting of a mining right, but may still
be entitled to
occupation, depending on the terms and conditions of their consent.
This, in my view, is buttressed by the
underlying purpose of
IPILRA which is to provide security of tenure for the historically
disadvantaged and vulnerable. It
was thus incumbent upon the
respondents to comply with the prescripts of IPILRA.
This
conclusion also finds support in this Court’s decision in
Maccsand
.
91
In
Maccsand
, this Court held that the exercise of a mining
right was subject to any other laws bearing on such a right. The
MPRDA was
not read to override the applicability or requirements of
other statutes, such as the Land Use Planning Ordinance,
92
that may impact upon mining activity.
93
By parity of reasoning, the MPRDA must be read, insofar as
possible, in consonance with IPILRA. In the context of this case,

this means that the award of a mining right does not without more
nullify occupational rights under IPILRA. More is required
to
demonstrate that the IPILRA informal right holder was lawfully
deprived of his or her right to occupy as required by section
2 of
IPILRA. There is no conflict between these two statutes; each
statute must be read in a manner that permits each to serve
their
underlying purpose. Significantly, both statutes make provision
for expropriation of land if all else fails.
Did
the surface lease deprive the applicants of their informal land
rights?
Section 2(2)
and (4) of IPILRA provides:
“
(2) Where land is held
on a communal basis, a person may, subject to subsection (4),
be deprived of such land or right in
land in accordance with the
custom and usage of that community.
. . .
(4) For the purposes of this
section the custom and usage of a community shall be deemed to
include the principle that a decision
to dispose of any such right
may only be taken by a majority of the holders of such rights
present or represented at a meeting
convened for the purpose of
considering such disposal and of which they have been given
sufficient notice, and in which they
have had a reasonable
opportunity to
participate
.” (Emphasis added.)
94
In short, the
respondents submitted that the
kgotha kgothe
of 28 June 2008
deprived the applicants of their informal land rights in terms of
the customs and usages of the Bakgatla
as contemplated in section
2(2) and (4) of IPILRA. In support of this contention, the
respondents relied on a resolution adopted
by the
Bakgatla Ba Kgafela at the
kgotha kgothe
of 28
June 2008. But this resolution does no more than merely indicate
that it was adopted and signed by Kgosi Pilane and a
representative
of Barrick.
95
Thus, there is no shred of evidence to substantiate the
respondents’ assertions that the applicants were deprived of

their informal land rights in conformity with the prescripts of
section 2(4) of IPILRA.
Conclusion
Before this
Court, counsel for the respondents could not point to any provision
in the MPRDA which permits the holder of a mining
right to
institute eviction proceedings against the landowner or lawful
occupier when the latter refuses to allow the former
access to the
land to which his or her right relates. In response to a question
from a member of the Court, counsel said that
the respondents
invoked their common law remedy. That then raises the question
whether it was open to the respondents to do
so. I think not.
Their rights are derived from the MPRDA, which contains its own
internal mechanisms for resolving obstacles
of the kind that they
encountered when they sought to exercise their mining rights. It
makes provision for avenues that can
be deployed to resolve
disputes between the mining right holder on the one hand and the
landowner or lawful occupier on the
other, the most drastic of
which is expropriation when all else fails. In bypassing the
express provisions of section 54,
the respondents undermined the
supervisory role and powers of the Regional Manager who is
charged with the responsibility
of administering and implementing
the MPRDA as the Director General’s delegate.
In addition,
and more fundamentally, the fact that section 54 provides for a
remedy must mean that resort cannot be had to an
alternative remedy
available under the common law. This must be so because section
4(2) of the MPRDA expressly provides that
“in so far as the
common law is inconsistent with [the MPRDA], the [MPRDA] prevails”.
For the
abovementioned reasons the judgment and order of the High Court
fall to be overturned.
Costs
I cannot think
of any good reason, and none has been suggested, as to why the
applicants should not be awarded their costs in
view of the outcome
of this case. It is appropriate that the costs in this Court be
borne by the respondents.
Order
The following
order is made:
Leave to
appeal is granted.
Both Mr
Mdumiseni Dlamini and the Land Access Movement of South Africa are
admitted as amici curiae.
The
applications by the amici curiae to introduce new evidence are
dismissed.
The appeal is
upheld.
The order of
the High Court is set aside and substituted with the following:
“The application is dismissed with costs, including the costs
of two counsel.”
The order of
the Supreme Court of Appeal dismissing the applicants’
application for leave to appeal in that Court is set
aside.
The
respondents must pay the applicants’ costs in this Court and
the Supreme Court of Appeal, including the costs of two
counsel
where employed.
For the Applicants:
A de Vos SC, J F D Brand and A Thompson instructed by Lawyers
for Human Rights.
For the First and
Second Respondents: G L Grobler SC, J L Gildenhuys, I Oschman
and M B Moifo instructed by ENS Africa.
For the First and
Second Amicus Curiae: T Ngcukaitobi, M Bishop, Y Ntloko and M
Mbikiwa instructed by the Legal Resources Centre
and Richard
Spoor Inc Attorneys.
1
Fanon
The Wretched of the Earth
(Grove Press, New York 1963)
(Translated: Fanon
Les Damnés de la Terre
(Éditions
Maspero, 1961)) at 43.
2
For completeness, the full text of the order granted by the High
Court is set out below:
“
l. That the 1st to 37th respondents and all
persons occupying through. or under them be evicted from the
property known as the
farm Wilgespruit 2 J.Q., North West Province
(‘the property’);
2. That the 1st to 37th respondents are ordered to
vacate the property, move all their cattle and other animals and
remove all
their possessions from the property within 30 days from
the date of service of this order upon them;
3. That the 1st to 37th respondents and the members of
the 38th respondent be interdicted and restrained from accessing the
property;
from bringing cattle onto the property and from erecting
or re-erecting any structures whatsoever on the property;
4. In the event that any of the said respondents falls
to vacate the property as directed in paragraph 2 above or
unlawfully accesses
the property as set out in paragraph 3 above,
that the Sheriff for the district be and is hereby authorised and
directed forthwith
to give effect to the eviction order;
5.
The costs of this application be paid by the
1st to 38th respondents, jointly and severally, the one paying the
other to be absolved,
which costs are to include the costs of three
counsels, as well as the costs that were reserved on the
22 February 2016
and 25 August 2016.”
3
That matter is before the Land Claims Court under the
Extension of
Security of Tenure Act 62 of 1997
.
4
This is disputed by the respondents. More about this later.
5
28 of 2002.
6
See section 25(6) of the Constitution.
7
31 of 1996.
8
Setlogelo v Setlogelo
1914 AD 221
at 227.
9
High Court judgment at para 14.
10
An open community meeting that all adult community members are
eligible to attend.
11
Id at para 22.
12
Id at paras 49-52.
13
Id at para 43.
14
Joubert v Maranda Mining Company (Pty) Ltd
[2009] ZASCA 68
;
2010 (1) SA 198
(SCA) (
Maranda
).
15
High Court judgment at para 40.3.
16
Id.
17
Id at para 40.4.
18
Id at para 40.3.
19
Applications for admission as amicus curiae are governed by rule 10
of this Court’s Rules.
20
Applications to lead further evidence are regulated by rule 31 of
this Court’s Rules.
21
Mr Dlamini brings his application in his personal capacity and as a
representative of a group of persons who are applicants in

proceedings pending in the Gauteng Division of the High Court of
South Africa, Pretoria. In those proceedings, Mr Dlamini and
his
co-applicants are impugning the decision of the Minister of Mineral
Resources in awarding a mining right. The case has already
been
heard and judgment is awaited.
22
LAMOSA is a non-profit and non-governmental organisation registered
in 2001. Its founding members were drawn from communities
which
were forcibly removed by the apartheid government in what was then
known as Transvaal. It is active and operates in Limpopo,

Mpumalanga, Northwest and Gauteng. One of its objects is to
advocate for the proper and constitutionally sound application of

living customary law in the communities it represents.
23
Section 167(3)(b) reads:
“
(3) The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court
grants leave to appeal on the grounds that the matter raises an
arguable point
of law of general public importance which ought to be
considered by that Court.”
24
Paulsen v Slip Knot Investments 777 (Pty) Limited
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) (
Slip Knot
Investments
) at para 21. This theme was endorsed in
DE v RH
[2015] ZACC 18
;
2015 (5) SA 83
(CC);
2015 (4) BCLR 1003
(CC) at
paras 8-10.
25
Section 211(3) provides:
“
The courts must apply customary law when that
law is applicable, subject to the Constitution and any legislation
that specifically
deals with customary law.”
The full text of section
25(6) is found in 41.
26
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001
(1) BCLR 36
(CC) at paras 11-2.
27
National Treasury v Opposition to Urban Tolling Alliance
[2012]
ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (
OUTA
) at
para 14;
Institute for Security Studies: In re S v Basson
[2005]
ZACC 4
;
2006 (6) SA 195
(CC) at para 9.
28
OUTA
id at para 13.
29
Id.
30
Compare id at paras 14-5.
31
Prince v President, Cape Law Society and Others
[2002] ZACC
28
;
2001 (2) SA 388
(CC); 2
001 (2) BCLR 133
(CC)
at para 22. See also
Rail Commuters Action Group v
Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC)
at
paras 37-8;
In re Certain Amicus Curiae Applications: Minister of
Health v Treatment Action Campaign
[2002] ZACC 13
;
2002 (5) SA
713
(CC);
2002 (10) BCLR 1023
(CC) at paras
9-10.
32
The farm is situated within the Moses Kotane Local Municipality.
33
Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: In Re Hyundai Motor Distributors (Pty)

Limited v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000
(10) BCLR 1079
(CC) at para 21.
34
Affordable Medicines Trust v Minister of Health
[2005] ZACC
3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at fn 31.
35
Mistry v Interim National Medical and Dental Council
[1998]
ZACC 10
;
1998 (4) SA 1127
(CC);
1998 (7) BCLR 880
(CC) at paras 17-8
where it was held that the meaning of the provisions in an Act must
be ascertained having regard to the scheme
of the Act as a whole,
and to the object and purpose of the legislation underpinning the
provisions being interpreted.
36
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty)
Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) (
Goedgelegen
).
37
Id at para 53.
38
Section 2 of the MPRDA provides that the objects of the MPRDA are
to—
“
(a) recognise the internationally accepted right
of the State to exercise sovereignty over all the mineral and
petroleum resources
within the Republic;
(b) give effect to the principle of the State’s
custodianship of the nation's mineral and petroleum resources;
(c) promote equitable access to the nation's mineral
and petroleum resources to all the people of South Africa;
(d) substantially and meaningfully expand opportunities
for historically disadvantaged persons, including women and
communities,
to enter into and actively participate in the mineral
and petroleum industries and to benefit from the exploitation of the
nation’s
mineral and petroleum resources;
(e) promote economic growth and mineral and petroleum
resources development in the Republic, particularly development of
downstream
industries through provision of feedstock, and
development of mining and petroleum inputs industries;
(f) promote employment and advance the social and
economic welfare of all South Africans;
(g) provide for security of tenure in respect of
prospecting, exploration, mining and production operations;
(h) give effect to section 24 of the Constitution by
ensuring that the nation’s mineral and petroleum resources are
developed
in an orderly and ecologically sustainable manner while
promoting justifiable social and economic development; and
(i) ensure that holders of mining and production rights
contribute towards the socio-economic development of the areas in
which
they are operating.”
39
Agri SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC) at para 68.
40
Id.
41
Section 3(1) of the MPRDA; Mostert and Van den Berg “Roman-Dutch
Law, Custodianship, and the African Subsurface: The South
African
and Namibian Experiences” in Zillman et al (eds)
The Law of
Energy Underground
(Oxford University Press, 2014) at 80.
42
Section 22(4).
43
Section 22(4)(a).
44
Section 22(4)(b).
45
Section 5(1).
46
Section 5(3)(a).
47
Hudson v Mann
1950 (4) SA 485
(T) at 488B-H.
48
Finbro Furnishings (Pty) Ltd v Registrar of Deeds, Bloemfontein
[1985] ZASCA 71
;
[1985] 4 All SA 388
(AD) at
415.
See also
Trojan
Exploration Company (Pty) Ltd v Rustenburg Platinum Mines Ltd
[
[1996] ZASCA 74
;
1996]
4 All SA 121
(A) at 126A-E.
49
This period has been extended several times and the last extension
was in terms of GN R1303
GG
41270 of 24 November 2017 in
terms of which it will now remain in operation until 31 December
2018.
50
The whole of Act 50 of 1991 was repealed in terms of section 101 of
the MPRDA.
51
See [39] above.
52
Ex
parte Menzies et Uxor
1993
(3) SA 799
(C) at 805-6.
53
See
Battiss v Elcentre Group
Holdings Ltd
1993 (4)
SA 69
(W) at 73 where the court considered the phrase “any
business” and held, with reference to
Haynes
& Co v Kaffrarian Steam Mill Co Ltd
1914 AD 363
that “[t]he word ‘any’ is extremely wide”.
In
Haynes & Co
the Appellate Division held that the word “any” in its
natural and ordinary sense is an indefinite term which includes
all
of the things to which it relates unless restricted by its context.
54
Section 25(1) of the Constitution reads:
“
No one may be deprived of property except in
terms of law of general application, and no law may permit arbitrary
deprivation
of property.”
55
Shoprite Checkers (Pty) Ltd v MEC for Economic Development,
Environmental Affairs and Tourism, Eastern Cape
[2015] ZACC 23
;
2015 (6) SA 125
(CC);
2015 (9) BCLR 1052
(CC) at para 73.
56
Mkontwana v Nelson Mandela Metropolitan Municipality; Bisset v
Buffalo City Municipality; Transfer Rights Action Campaign v MEC,

Local Government and Housing, Gauteng, (KwaZulu-Natal Law Society
and Msunduzi Municipalilty as Amici Curiae)
[2004] ZACC 9
;
2005
(1) SA 530
(CC);
2005 (2) BCLR 150
(CC) at para 32.
57
Article 20 provides that:
“
1. All peoples shall have the right to
existence. They shall have the unquestionable and inalienable right
to self-determination.
They shall freely determine their political
status and shall pursue their economic and social development
according to the policy
they have freely chosen.
2.
Colonized or oppressed
peoples shall have the right to free themselves from the bonds of
domination by resorting to any means
recognized by the international
community.
3. All peoples shall have the right to the assistance
of the State Parties to the present Charter in their liberation
struggle
against foreign domination, be it political, economic or
cultural.”
58
Article 22(1) provides that:
“
All peoples shall have the right to their
economic, social and cultural development with due regard to their
freedom and identity
and in the equal enjoyment of the common
heritage of mankind.”
59
Article 9 provides that:
“
1. Every individual shall have the right to
receive information.
2. Every individual shall have the right to express and
disseminate his opinions within the law.”
See also Ashukem “Included
or Excluded: An Analysis of the Application of the Free, Prior and
Informed Consent Principle
in Land Grabbing Cases in Cameroon”
(2016) 19
Potchefstroom Electronic Law Journal
at 28.
60
Centre for Minority Rights Development (Kenya) and Minority
Rights Group International obo Endorois Welfare Council v Kenya
2009
AHRLR
75 (ACHPR 2009) (
Endorois
) at para 291.
61
Ashukem above n 61 at 28.
62
Section 16(4
)(b) of the MPRDA
63
This section was deleted by section 4(d) of Act 49 of 2008 with
effect from 7 June 2013.
64
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd
[2010] ZACC 26
;
2011 (4) SA 113
(CC);
2011 (3) BCLR 229
(CC) at
para 63.
65
Id at para 65.
66
Id at para 67.
67
111 of 1993.
68
47 of 1937.
69
In this notice the second respondent informed the Regional Manager
that it was being prevented from conducting mining operations
on the
farm and sought the Regional Manager’s intervention.
70
Maranda
above n 49 at paras 16-7.
71
Id at para 16.
72
Id at para 17.
73
I will assume, in favour of the respondents, that section 5(4)(c)
was no longer in force when they intended to commence mining
on the
relevant portion of the farm. Section 5(4)(c) was repealed with
effect from 7 June 2013, and the respondents allege that
mining was
to commence in July 2014. The amendments commenced by proclamation
in terms of section 94(1) of the MPRDA Amendment
Act 49 of 2008.
See Proc R14
GG
36512 of 31 May 2013.
74
Meepo v Kotze
2008
(1) SA 104
(NC).
75
Maranda
above n 49 at para 12, citing
Meepo
id at
para
13.1.
76
Section 5A(c) effectively replaced section 5(4)(c), but the former
only requires the mining right holder to give notice before
mining
commences. There is no requirement of consultation.
77
Section 54(4) of the MPRDA.
78
Bhe v Khayelitsha Magistrate
[2004] ZACC 17
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) at para 41.
79
Section 10 of the Constitution.
80
Section 30 of the Constitution.
81
Section 9 of the Constitution.
82
Section 2(1).
83
Section 2(2).
84
Section 2(4).
85
Fowler & Fowler (eds.)
The
Concise Oxford Dictionary
12 ed (Oxford University Press, 18 August 2011) at 468.
86
Mkontwana
above n 58 at para 32.
87
First National Bank of SA Limited t/a Wesbank v Commissioner for
the South African Revenue Services; First National Bank of SA
Limited t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
;
2002 (7) BCLR 702
(CC) at para 57.
88
Section 5(1).
89
The issue, as raised by the amici, of whether the mining right is
invalid because the applicants did not consent to it being
granted,
must be left open for another day. The decision to grant a mining
right remains valid and lawful until set aside by
a court. See
MEC
for Health
,
Eastern
Cape
and
Another
v Kirland Investments
(Pty)
Ltd
[2014] ZACC 6
; 2014 (3) SA (CC);
2014 (5) BCLR 547
(CC).
90
Dale
South African Mineral and Petroleum Law
(Lexis Nexis
2018)
at 145. See also
Nolte v Johannesburg Consolidated
Investment Co Ltd
1943 AD 295
at 314-6.
91
Maccsand (Pty) Ltd v City of Cape Town
[2012] ZACC 7
;
2012
(4) SA 181
(CC);
2012 (7) BCLR 690
(CC).
92
15 of 1985.
93
Maccsand
above n 92
at para 44.
94
The section is titled “Deprivation of informal rights to
land”.
95
IBMR partnered with a company called Barrick Platinum SA (Pty) Ltd
(Barrick) for purposes of conducting prospecting, because
IBMR did
not have the necessary capital and expertise. The
Bakgatla Ba Kgafela Community transferred 15% of its
shares
in IBMR to Barrick in the process. The farm was successfully
prospected. Barrick later withdrew and the Bakgatla Ba Kgafela

Community then bought back the 15% shareholding.