Abstract:
On 22 November 2018, the High Court in Pretoria handed down a ground-breaking judgement in the Baleni and Others v Minister of Mineral Resources and Others (Baleni case). In casu the court held that, the Minister of Mineral Resources must obtain full and informed consent of the Baleni community prior to granting a mining right in terms of the Mineral and Petroleum Resources Development Act of 2002. It further held that consultation does not suffice; rather the community must be given an opportunity to consent before being deprived of their land. This case highlighted a dilemma within the extractive industry in South Africa which affects landowners. In most cases, like in the case of Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another (Maleducase), affected rights holder is only requested to make inputs on the environmental authorisation process, and at worst, only finds out about the mining authorisation once the deal has been done, during the eviction process (when they are requested to relocate).
This study submits that there is a need within the mineral sectors to craft a fair balance between national interests, corporate interests and those of affected communities. In doing so, the affected communities must be given great stake. This is because, with the extractive industry projects taking place, people who suffer the most is the community/landowner whose land is affected or eroded directly as a result of such projects and whose resource rights is questionable. Therefore landowners’ voices must be heard and taken into cognisance before the granting of a mining right and prior commencement of the projects. A right to veto over mining projects will result in landowners being informed of the mining projects in a timely manner and be given an opportunity to approve the projects before commencement of the operations.
