THE Umgungundlovu community of Xolobeni in the Eastern Cape has approached the high court asking it to order the mineral resources minister to consult it first before granting rights to mine in the area.
The court case could have wider implications, affecting mining rights applications on land owned by traditional communities across SA.
The community has been fighting mining in the area by Australian company Mineral Commodities since 2002, a battle that has led to tension within the community and to violence.
In July, Mineral Commodities announced it would sell its 56% stake in the Xolobeni Mineral Sands Project. But the sale was yet to be finalised, said attorney for the community members Richard Spoor.
Earlier this year, Sikhosiphi "Bazooka" Radebe, chairman of the Amadiba Crisis Committee — at the forefront of the battle against mining in the area — was gunned down outside his house, a murder many have attributed to his activism, although the police are still investigating.
In 2015, Mineral Commodities’ South African subsidiary Transworld Energy and Mineral Resources (SA) applied once again for a licence to mine the area. It has yet to be granted. Earlier in September, Mineral Resources Minister Mosebenzi Zwane announced a moratorium on mining applications in the area for 18 months.
The latest court case was filed by 128 people representing villages and households in the Xolobeni area. They want the high court to declare that the law requires that a mining right cannot be granted without the community’s consent.
The Mineral and Petroleum Resources Development Act already requires consultation with a community before a right is granted. The applicants say that where the right involves land "held in terms of any tribal, customary or indigenous law or practice", there is the further requirement of consent.
In an affidavit, community head Duduzile Baleni said mining in the area would displace members of the community from their homes, deprive them of their livelihood and threaten food security and access to water. It would also disturb more than 450 graves in the area.
Describing how decisions about land allocation and ownership are made under the community’s customary law, Baleni said land was distributed in a way that emphasised consensus and the avoidance of conflict.
The idea that there would be "some overall benefit for the wider community is simply not adequate".
"A decision to approve mining operations without consensus … would trigger massive conflict," she said.
The proposed mining threatened to "tear our community apart and to leave us divided, insecure and vulnerable".
The Xolobeni Empowerment Company, "touted as a community benefit initiative", had benefited only a few members of the community, she said.
The minister and Transworld are yet to file their answering affidavits. The minister’s spokesman did not respond to requests for comment and Mineral Commodities refused to comment.