Press Release: Constitutional Court promotes customary land rights in dismissing eviction of Lesetlheng community

For Immediate Release: 25 October 2018

Today, 25 October 2018, in the Constitutional Court, judgment was handed down which recognises the informal or customary land rights of the Lesetlheng community, who were threatened with eviction after Itereleng Bakgatla Minerals Resources (Pty) Limited brought an eviction application at the Mahikeng High Court. The Court upheld the community’s appeal after they lost in the High Court by recognising that their informal land rights are protected by the Interim Protection of Informal Land Rights Act of 1996 and that they must consent to the deprivation of these rights.

The Legal Resources Centre represented two amici curiae, Mr Mdumiseni Dlamini on behalf of Baleni applicants in a similar case, and the Land Access Movement of South Africa (LAMOSA), who made submissions on the customary law of the Bakgatla Ba Kgafela community, under which the community falls, and the content of customary law; respectively.

The facts are briefly that Itereleng was registered by the Traditional Council of the Bakgatla Ba Kgafela in 2003 and was granted a mining right and surface lease agreement following two meetings in which members of the Lesetlheng community were present. In 2014, when mining operations were underway, the community brought at spoliation application against the mine to get it to cease operations, which were affecting the land on which they were farming. The mine then brought an application to evict the community.

The mine won the eviction application and the case was appealed to the Constitutional Court. The LRC brought applications to have our clients admitted at amici curiae, which were accepted.

In our submissions brought on behalf of Mr Dlamini and LAMOSA, we argued that IPILRA must be read harmoniously with the provisions of the Mineral and Petroleum Resources Development Act (MPRDA), under which the mining right was granted. Further, that no person can be deprived of their rights under IPILRA, that is, their informal or customary land rights, without their consent. The granting of a mining right constitutes a “deprivation” in this regard.

Lastly, we brought submission on what consent is – that it must be Free, Prior and Informed – which is in line with our international law obligations.

The Court, in finding for the applicants and upholding their appeal, found that section 25(6) provides that those who have insecure tenure must be given legally secure tenure or comparable redress.

The Court based much of its findings on the IPILRA, supporting our argument that it must be read together with the MPRDA: “…each statute must be read in a manner that permits each to serve its underlying purpose.”

The Court found that the existence of a mineral right does not itself extinguish the rights of a landowner or lawful occupier. IPLIRA provides for the security of tenure of vulnerable people and it is the responsibility of the mining company to comply with it. The Court found that there is no evidence to support the mine’s assertions that the community were deprived of their land rights when the resolution to mine was made.

In concluding, the Court found that the remedies available to the mine when there is a dispute, which are contained in the MPRDA, were not sufficiently exhausted.

By giving authority to the informal and customary land rights, as found in IPILRA, the Court has upheld section 25 of the Constitution and furthered the role of customary law in protecting the tenure of communal land dwellers. There are many communities in a similar position who will benefit from the development of the law in this regard.

ENDS