LANDlease agreements with the Trust, to the
exclusion of those whose land rights were
affected.
The judgment made it clear that
IPILRA (Interim Protection of Informal
Land Rights Act 31 of 1996) applies to
Ingonyama Trust land. This re-enforces
the provision in the Trust Act that says the
Board must comply with Zulu customary
law whenever it administers the land.
Mining companies are unquestionably
obliged to seek the consent of people
whose land rights are affected, if they wish
to mine on Ingonyama Trust land.
The judgment also confirmed that
each community member is entitled to an
allotment of land under Zulu customary
law. After an individual is allotted
residential or arable land, it ceases to be
communal land.
The judgment further stated that land
allotted under Zulu customary law cannot
be interfered with, except with the consent
of its owner. It is only unallocated land
that requires the prior written consent of
a traditional or community authority for
it to be “encumbered, pledged, leased or
alienated”.
The court further stressed that “the
consent required for the deprivation of a
right is a genuine and informed consent”
and must be given freely and without
duress.
The Makhasaneni
community
Jindal Iron Ore is owned by Jindal Steel
and Power (Mauritius) Limited (74%) and
Jindal’s BEE partner, Thabang Khomo
(26%). In the case of the Makhasaneni
community, Jindal Iron Ore is proposing
an open-pit iron ore mine and associated
infrastructure on a site 25km southeast of
Melmoth in KwaZulu-Natal. In June 2021,
Jindal announced its intention to apply
for a mining right. The company holds
two prospecting rights for the project site
(the ‘North’ and ‘South’ Blocks), a total of
20,170 ha. The North block covers the entire
area of Makhasaneni village.
In the 1930s, the Makhasaneni
community were forcibly relocated from
eMagogogweni and dumped at their
current location, to make way for tree
plantations. Currently the community has
approximately 300 households.
Jindal first came to the area in
November 2011 and began prospecting
for iron in residents’ ploughing fields.
Residents complained about damage to
graves and the deaths of livestock from
water sources poisoned through the
prospecting activities. The community
contends there was no consultation before
prospecting began. Resistance to the
mining grew, and in 2016 Jindal withdrew
from the area.
Residents say that the Dludla
family was the original landowner of the
Makhasaneni land. All land now belonging
to other families was given to them by
the Dludlas – not as a loan, but rather as
landowners.
Three primary categories of land were
allocated to residents: plots for homestead
construction, land for small home
vegetable gardens, and larger field plots,
usually used for monocropping maize.
Residents were allocated the three plot
categories adjacent to each other.
Several years ago, a new plot category
was added when land known as the “old
maize fields” began to be allocated to
Makhasaneni residents at the time. Thisplot category was detached from the
homesteads and was used mainly for maize
cultivation. The bulk of the “old fields”
land is no longer being cultivated. Due to
the increasing number of residents and
associated space limitations, this land is no
longer being allocated to new Makhasaneni
residents. Some Makhasaneni residents
have allocated parts of their “old fields” to
new residents for homestead construction
and some have used the land for small-
scale forestry plantations.
Whatever use Makhasaneni land is
being put to, Jindal is required to consult
and seek the consent of the people who
were allotted the first three categories
of land, as well as the owners of the “old
maize fields”. For unallocated land, Jindal
must consult and seek the consent of the
Makhasaneni community.Free, prior, informed
consent
The prevailing practice in the mining
industry has been for companies to consult
only with traditional authorities, who
claim to act on behalf of rural residents. In
many cases, this has caused deep divisions
within the community, due to perceptions
that traditional authorities have accepted
terms unfavourable to the residents.
The Pietermaritzburg High Court
judgment is a game-changer for
communities like Makhasaneni. It clarifies
that mining companies must consult
and seek the community’s consent forunallocated land. For allocated land, they
must consult and seek the consent of
those who have been allotted the land, not
traditional authorities.
The Trust can no longer unilaterally
enter into lease agreements with third
parties for land held under the Trust Act.
Most importantly, the Ingonyama cannot
claim ownership of land held by the
Ingonyama Trust.
The judgment has strengthened
the tenure security of communities like
Makhasaneni. How the new Ingonyama
executes his responsibilities will be closely
watched.Ramabina Mahapa is a researcher
with the Land and Accountability
Research Centre in the Department
of Public Law at the University of
Cape Town.The Makhasaneni community celebrates the withdrawal of Jindal Iron Ore in 2016. The recent High Court
judgment clarifies that mining companies are unquestionably obliged to seek the consent of people whose land
rights are affected, if they wish to mine on Ingonyama Trust land.