The effect of section 2(1) of the Interim Protection of Informal Land Rights Act 31 of 1996 on the granting of a mining right in terms of section 23 and the dispute resolution processes in terms of section 54 of the Mineral and Petroleum Resources Development Act 28 of 2002.

Abstract

Before the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) commenced, the position in South Africa was that minerals could only be extracted with the consent of the mineral right holder, who was also the landowner, except if the mineral right had been severed from ownership of the land. However, following the commencement of the MPRDA the country’s mineral and petroleum resources belong to the nation, with the State as custodian. In this capacity, the State acts through the Minister of Mineral Resources and Energy, who may grant the relevant mining or prospecting rights/permits. As such, the mineral right holder’s consent is no longer a prerequisite to exploit the embedded minerals and the landowner, lawful occupier as well as any interested and affected party merely have to be consulted prior to the granting of the relevant right/permit. However, following Maledu v Itereleng Bakgatla Mineral Resources (Pty) Ltd (Mdumiseni Dlamini and another as amici curiae) 2019 (1) BCLR 53 (CC) and Baleni v Minister of Mineral Resources (73768/2016) (2018) ZAGPPHC 829, it would appear that the position in relation to informal land right holders who are protected by the Interim Protection of Informal Land Rights Act 31 of 1996 (“IPILRA”) is different. In terms of s 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. Section 2(2) of the IPILRA also stipulates that where land is held on a communal basis, a person may only be deprived of such land or right in land in accordance with the custom and usage of that community. Thus, in the event that the mining operations consequent to the granting of, inter alia, a mining right constitutes “deprivation” in terms of s 2(1) of the IPILRA, the informal land right holder’s consent is required prior to the granting of such a right. As such, there is now a fundamental difference pertaining to the granting of a mining right in instances where IPILRA would apply — the MPRDA only requires prior consultation, as opposed to the IPILRA which requires prior consent. Three main questions are explored in this research. First, does the granting of a mining right constitute deprivation in terms of s 2(1) of the IPILRA? Secondly, if it does, how and on what basis should the community’s consent be provided in terms of s 2(1) of the IPILRA? Finally, does IPILRA create a separate dispute resolution regime (other than that provided for in s54 of the MPRDA) prior to – and after– the granting of a mining right?