Engage community before trying to evict them, judge tells mining company

2018-10-25 17:08

The Constitutional Court has instructed Itereleng Bakgatla Mineral Resources Pty Ltd (IBMR) to exhaust negotiations with Lesetlheng villagers as prescribed by section 54 of the Mineral and Petroleum Resources Development Act before applying for an interdict against community members to stop them from interfering with mining activities.

IBMR owns the mining rights to the Wilgespruit farm in the North West which is at the centre of a David vs Goliath dispute that ensued in 2008.

In 2003 Bakgatla-Ba-Kgafela community registered IBMR for the purpose of obtaining a prospecting permit and was awarded the permit in 2004, under the Mineral and Petroleum Resources Development Act (MPRDA).

On May 9 2008 IBMR was granted mining rights to the Pilanesberg Platinum Mine. Before being granted the mining rights, the company alleges that it convened a meeting with the Lesetlheng community – a constituent of the Bakgatla community – and agreed to enter a surface lease agreement with them.

Even with this alleged surface lease agreement in place, the community used the farm, peacefully and undisturbed, predominantly for crop farming and sometimes livestock farming to sustain their livelihoods.

The peace came to a sudden halt when IBMR ceded the mining rights to Pilanesberg Platinum Mine (PPM).

The mining company began to rapidly expand its operations on to the farm to the extent that the villagers were almost driven off their land
Lesetlheng community members

In 2014 PPM was accused by community members of erecting fencing on portions of the farm, and engaging in extensive de-bushing of the vegetation on the farm and excavation of the soil in preparation for mining.

A dispute then ensued between the mining company and the community farming the land leading to PPM approaching the High Court of South Africa’s North West division to request an urgent interdict to evict the 13 families from the disputed land.

The Lesethleng community, represented by the Land and Housing Unit of Lawyers for Human Rights, challenged the decision as they claimed that they were the rightful owners of the farm having purchased the Wilgespruit farm (locally referred to as “Modimo Mmalo”) over a century ago in 1919.

Their lawyers argued that in spite of being the true purchasers, the community could not be registered as the owners of the land at that time because of the discriminatory racial laws and policies.

Consequently, the farm was registered in the State’s name, which in turn held it in trust for the Bakgatla-ba-Kgafela tribe – the overarching traditional community which the Lesethleng community forms a part of
Lawyers for Human Rights

In Thursday’s Constitutional Court judgment, the Lesethleng community argued that the court should not grant the urgent interdict as “they are the true owners of the land, they were not properly consulted before the mining rights were awarded/the surface lease was signed and/or mining commenced.”

In a unanimous judgment read out by acting Judge Justice Petse, the Constitutional Court held that it is settled law that all other satisfactory remedies must be exhausted before an interdict can be applied for.

“Section 54 of the MPRDA provides for a speedy mechanism to resolve disputes between landowners or lawful occupants and mining rights holders when the former prevents the later from commencing with mining,” said Petse.

The North West High Court’s order was set aside and was substituted with an order dismissing the respondent’s application for an eviction with costs.

Juniour Khumalo
City Press
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May 19 2019