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A new research report by Dr Aninka Claassens examines several pivotal South African court judgments that guide on the use and interpretation of the major laws governing mining and tenure security in the country, and the way they could and should be read together. Claassens was the founding director of the Land and Accountability Research Centre (LARC) in the University of Cape Town’s law faculty. She has since retired from that position and now works on a half-time basis for LARC as a chief researcher.
“Mining has come to be closely correlated with dispossession, evictions, and impoverishment for rural communities as described in reports by Corruption Watch, the South African Human Rights Commission, and others,” says Claassens in the report, titled The Maledu judgment, IPILRA, and the MPRDA: The implications for policies that elevate elite interests over the Constitution.
Indeed, Corruption Watch has built up a substantial body of work in this area, engaging with mining-affected communities and researching the ways in which corruption manifests in this sector, with an early focus on the mining application and community consultation stage. The organisation has also conducted research into the way benefits and royalties are distributed (or not) to mining-affected communities, and the status of beneficial ownership in South Africa’s mining sector, among others.
“[Mining] has precipitated massive human suffering and a scale of resistance and violence that has contributed to growing instability in the sector,” Claassens says. This is especially true of the expansion of mining into former homeland areas during the post-apartheid era.
She goes on to examine the Mineral and Petroleum Resources Development Act (MPRDA), which governs mining, and the Interim Protection of Informal Land Rights Act (IPILRA), which governs tenure security, also including their intersection with traditional leadership laws. Discussing first the political background to the acts, she then thoroughly unpacks the relevant critical judgments – the Bengwenyama (2010), Maledu and Baleni (2018), and CASAC Ingonyama leases judgment (2021) – and the “far-reaching implications for informal land rights in rural areas”.
Lastly, Claassens looks to the way forward, suggesting what would need to change for rural land rights to be taken seriously, and for mining to be able to co-exist with rural land rights in a stable and mutually beneficial arrangement.
“I discuss possible technical solutions such as the promulgation of regulations to guide the implementation of IPILRA, and a new law to provide for more comprehensive tenure reform solutions. I argue that for these to fly, the political forces and ideology that gave rise to the MPRDA would need to be confronted.”
Read the report below, or download it.
This research paper has been produced with the financial assistance of the European Union. It forms part of the Rallying Efforts to Accelerate Progress (REAP) project implemented by Corruption Watch in partnership with Transparency International.
