‘Xolobeni mining ruling compromises the state’ 13 September 2019

Many of South Africa’s mineral resources are found on communally owned and subject to customary law. As such, the discourse on land in South Africa is characterised by tensions between communities who hold informal land rights; the state, which is empowered to award mining rights; and those who seek to exploit the land and its mineral resources for financial gain.

…The judgment is indeed a victory for customary land rights holders in mining-affected communities. But, it has also created uncertainty in the mining industry, because it seems to interfere with the state’s role as the custodian of all minerals in South Africa. This raises the question of whether consent is absolute and whether there are other ways to protect holders of communal land rights without interfering with the state’s duty to issue mining rights.