15 September 2020
LRC welcomes High Court Ruling that asserts rights of Xolobeni residents to mining license applications
JOHANNESBURG — The Legal Resources Centre welcomes yesterday’s important the decision of the Gauteng High Court which states that communities whose land is under threat from mining have a right to copies of the application for the mining right in terms of the Minerals and Petroleum Resources Development Act (MPRDA). The community
was represented by Richard Spoor Attorneys and LRC. The Centre for Applied Legal Studies (CALS) entered the matter as a friend of the court.
Members of the Umgungundlovu community, who have fought for more than a decade to assert their rights over their titanium-rich land along the Eastern Cape coastline, wrote to the Department of Minerals and Energy (DME) in March 2015 to confirm rumours that mining company, TEM, had applied for mining rights on their land. They asked to see the application. The Department confirmed that an application was submitted and in terms of the MPRDA, the community will be ‘consulted’ however, it would not provide a copy of the application, the very subject of the ‘consultation’. The community was directed to request a copy from TEM or alternatively, request it from the DME in terms of the Promotion of Access to Information Act (PAIA).
In what has become a familiar struggle for communities in similar situations, the community set about trying to access the application through multiple avenues. It was only when they launched an application to compel the DME and TEM to provide a copy of the application 10 months later that the mining company finally handed it over. TEM
then argued that the case should be withdrawn as they had (finally) done what was asked.
The Umgungundlovu community told the Court that it would be in the interest of other communities in the same situation to get clarity on whether such communities are entitled, as of right and in terms of the MPRDA itself, to get copies of the mining rights applications they are consulted on. In particular, they wanted the Court to confirm that
communities are not required, as TEM contended, to go through the cumbersome and often ineffective process prescribed by the Promotion of Access to Information Act in order to get such information.
Judge Makhubele agreed on all accounts. Assisted by the submissions of CALS, who relied in part on research done by the Centre for Environmental Rights that demonstrated the low success rate of obtaining the information requested through PAIA, the Judge issued an order declaring that “interested and affected parties […] are entitled by sections 10(1) and 22(4) of the MPRDA […] to be furnished with a copy of an application for a mining right”.
The Umgungundlovu community’s next struggle is to get similar information out of SANRAL who are planning to extend the N2 Highway over their land and is legally required to get their consent to do so. Thus far, SANRAL’s attitude has been similar to that of the DMR and TEM, but it is hoped that yet another court case to enforce the
community’s right to information can be avoided by SANRAL’s compliance.
Issued by the Legal Resources Centre
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