South African Community Stops Mine

Introduction

For the past seven years, EDLC has been providing legal, scientific, and financial assistance to communities and their lawyers in South Africa fighting unwanted proposed mining projects and harms from existing projects. The cases raise a host of issues, including the rights of citizen participation and consent in environmental decision-making, water and land use, and harms to the environment and human health. South Africa has a highly respected constitution that includes the right to a healthy environment, and EDLC is working with highly organized and capable local community groups and top private lawyers with a strong commitment to protecting the environment and human rights, as in the case described below.

Xolobeni and the Wild Coast

Since 2007, members of the Umgungundlovu community (often called the Xolobeni community, after the name of one of the villages in the area) on the fabled “Wild Coast” in the Eastern Cape province have fought a proposed mining project by Mineral Commodities Ltd. and Australian company Transworld Energy. The proposed mining area runs along thirteen miles of coastal land. The majority of the affected community lives within close proximity to the proposed mining area.

Community members fear that the project’s planned strip mining for platinum in the sand dunes of the  Wild Coast would lead to their displacement, destruction of their environment, and harm to their way of life and livelihoods. Much of the area designated for mining is grassland that villagers use for pasture, gardens, and ancestral graveyards. The region is also an environmentally important transition zone, and its sweeping hillsides, dunes, seasonal wetlands, woodlands, estuaries, and offshore reefs are a biodiversity hotspot, with a host of species found nowhere else in the world.

The persecution of opposition leaders 

In March 2016, a car pulled up in front of the home of Sikhosiphi “Bazooka” Rhadebe, leader of the local opposition to the mine. Rhadebe was dragged out of his home by men posing as police officers and shot to death in front of his seventeen year old son. No one has been arrested or charged with the crime. After Rhadebe’s murder, Mineral Commodities said it would divest its interest in the Xolobeni project, but later equivocated. Nonhle Mbuthuma, who assumed Rhadebe’s mantle and is a plaintiff in their court case challenging the project, has faced harassment and death threats.

A landmark case

In April 2018, the Pretoria High Court heard a case brought by 128 subsistence farmers and other residents from Xolobeni and the surrounding area against the government. They asked the court to rule that the Department of Mineral Resources must respect the rights of the people who have lived on the land for generations, and cannot issue a mining license without the community’s consent. The government and mining company claimed that the country’s mining laws require companies to only “consult” communities, while the local people argued that the Mineral Resources and Petroleum Development Act and the Interim Protection of Informal Rights to Land Act (IPILRA) were enacted to redress economic and territorial dispossession and to restore land and resources to black people, and that the laws must be read to work together.

A historic victory on the issue of consent

In November 2018, the Pretoria High Court ruled that a mining right could not be granted over the Xolobeni community’s land without compliance with the IPILRA, including the full, prior, and informed consent of the land rights holders and the community. The court found that the Minister of Mineral Resources had lacked the authority to grant a mining right under the circumstances:

In keeping with the purpose of the [law] to protect the informal rights of customary communities, the applicants . . . have the right to decide what happens to their land. As such, they may not be deprived of their land without their consent. Where the land is held on a communal basis—as in this matter—the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land.

The decision means that communities in South Africa who hold their land under customary law have a right to say no to mining, which has major ramifications for mining affected communities across South Africa. The government has appealed the ruling.