Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another (CCT265/17) [2018] ZACC 41; 2019 (1) BCLR 53 (CC); 2019 (2) SA 1 (CC) (25 October 2018)

Key Facts

Issues

• Whether the respondents' mining right was valid and whether the applicants had the legal standing to collaterally challenge its validity.
• Whether the applicants consented to being deprived of their informal land rights under the Interim Protection of Informal Land Rights Act (IPILRA), particularly in the context of a communal landholding and majority-based decisions.
• Whether the surface lease agreement between the respondents and the Minister was valid and whether it lawfully terminated the applicants' informal land rights.
• Whether the respondents were precluded from obtaining an interdict against the applicants until they exhausted the dispute resolution mechanisms provided under section 54 of the MPRDA.
• Whether the applicants were the true owners of the farm and whether the respondents fulfilled their consultation obligations under the Mineral and Petroleum Resources Development Act (MPRDA) before awarding mining rights.
• Whether the applicants could challenge the validity of the mining right as a collateral issue against private entities (respondents) rather than the public authority that granted the right.

Holdings

• The appeal was upheld, and the High Court's eviction order was set aside. The court concluded that the respondents' mining rights did not automatically override the applicants' informal land rights without proper consultation and compliance with statutory procedures.
• The court held that the respondents were required to exhaust the internal dispute resolution mechanisms under section 54 of the MPRDA before seeking an interdict against the applicants. The failure to do so invalidated their common law remedy, as the MPRDA's procedures take precedence over inconsistent common law principles.
• The court determined that the applicants' informal land rights under IPILRA were not lawfully extinguished because the respondents failed to demonstrate that the applicants consented to their deprivation or that a majority decision was made in accordance with customary law and IPILRA's requirements.

Remedies

• Leave to appeal is granted, allowing the applicants to challenge the High Court's decision in the Constitutional Court.
• The respondents must pay the applicants' costs in the Constitutional Court and the Supreme Court of Appeal, including the costs of two counsel where employed.
• Both Mr Mdumiseni Dlamini and the Land Access Movement of South Africa are admitted as amici curiae to assist in the determination of the case.
• The Supreme Court of Appeal's order dismissing the applicants' leave to appeal is set aside.
• The appeal is upheld, overturning the High Court's order to evict the applicants.
• The applications by the amici curiae to introduce new evidence are dismissed due to potential factual disputes and procedural constraints.
• The High Court's order is set aside and substituted with a decision dismissing the applicants' application with costs, including the costs of two counsel.

Legal Principles

• The judgment underscores the principle that mining rights do not automatically extinguish surface rights, requiring compliance with IPILRA's consent mechanisms for communal land. It also affirms the validity of customary law decision-making processes, such as majority consent in kgotha kgothe meetings, while balancing them against constitutional rights.
• The court emphasized the purposive interpretation of the MPRDA and IPILRA, aligning statutory provisions with constitutional values such as dignity, security of tenure, and equitable access to resources. It highlighted the need to harmonize statutory frameworks to protect informal land rights and ensure compliance with international law obligations, particularly the African Charter on Human and Peoples' Rights.

Precedent Name

• Bhe v Khayelitsha Magistrate
• Centre for Minority Rights Development (Kenya) and Minority Rights Group International obo Endorois Welfare Council v Kenya
• Maccsand (Pty) Ltd v City of Cape Town
• Joubert v Maranda Mining Company (Pty) Ltd
• Mkontwana v Nelson Mandela Metropolitan Municipality
• National Treasury v Opposition to Urban Tolling Alliance
• Setlogelo v Setlogelo
• Agri SA v Minister for Minerals and Energy
• Finbro Furnishings (Pty) Ltd v Registrar of Deeds, Bloemfontein

Cited Statute

• Land Titles Adjustment Act
• Upgrading of Land Tenure Rights Act
• Mineral and Petroleum Resources Development Act
• Development Trust and Land Act
• Land Use Planning Ordinance
• Deeds Registries Act
• Interim Protection of Informal Land Rights Act
• Self-Governing Territories Constitution Act

Judge Name

• Dlodlo
• Zondo
• Froneman
• Theron
• Khampepe
• Madlanga
• Goliath
• Petse
• Jafta

Passage Text

• [100] ... the applicants will be deprived of their informal rights to the farm if the order evicting them from the farm were allowed to stand.
• [42] Instead, this matter should be decided principally on the basis of section 54 of the MPRDA and section 2 of IPILRA. The central issue is whether section 54 was available to the respondents, and if it was, whether they are precluded from obtaining an interdict before exhausting the mechanisms for which section 54 provides.
• [109] ... the respondents undermined the supervisory role and powers of the Regional Manager who is charged with the responsibility of administering and implementing the MPRDA as the Director General's delegate.