To whom does the mineral wealth of South Africa belong? Who should benefit from it? What rights should communities have when foreign mining companies want to uproot them?
Trans-world Energy and Mineral Resources (TEM), an Australian-owned company, attempted to obtain mining rights to the titanium-rich dunes in Xolobeni, the Umgungundlovu community's pristine Wild Coast home.
As required by law, TEM sought to hold consultations with the community. The community said “no”, as is their right. TEM tried again. The community said “no” again.
The events read like The Godfather. The award-winning documentary The Shore Break depicts them. “Watch out what you say,” those protesting were told by a mining protagonist. “There will be consequences to objecting.”
Then Sikhosiphi “Bazooka” Radebe, chairperson of the community group opposing mining, was killed in a hail of bullets. Then mineral resources minister Mosebenzi Zwane consequently issued an 18-month moratorium on mining. Despite attempts to divide the community through selective “gifts” to traditional leaders, despite insults, violence and murder, the community stood firm throughout.
Last month the North Gauteng High Court confirmed that the community's full and informed consent was needed before mining rights could be granted.
The decision was based on the fact that the community holds informal rights to land while they occupy it in accordance with their law and custom. The rights are protected by the Interim Protection of Informal Land Rights Act, which prohibits deprivation without consent.
The government apparently intends to appeal the judgment.
If communities rather than the government were left to decide, there would never be mining, the current minister, Gwede Mantashe, argues. Why would the government think this? Only two reasons seem plausible. The first would be that they think that local communities are idiots, unable to recognise what is in their own self-interest.
The second would be because they recognise communities are not idiots, and have a very clear idea of their self-interest, and the offers made by mining companies are not worthwhile to them - but the government wants mining to happen anyway.
There is plenty of evidence for the second. Other communities in South Africa have faced disastrous social, economic and ecological consequences when miners have moved in.
The Umgungundlovu community - for good reason - fear physical displacement from their homes, economic displacement of their community, and complete destruction of their cultural way of life and environment.
And far from hiding away from the modern economy, the community have intelligently suggested eco-tourism and agriculture rather than mining as a way to monetise the currently unspoilt and pristine land. These are informed choices made about their own futures.
It should also be emphasised that the communal land and residential plots of each household form an inextricable and integral part of the community's way of life. Plots represent more than a place to live. They are symbols of social maturity and social dignity.
The Umgungundlovu community are not idiots. Their decisions should be respected - by the government, by the law, by TEM, and by what actually happens.
If foreign mining companies want communities to consent to mining, then it is their job to come up with an offer to which the community will agree.
Mining companies may wish to present these people as irrational blockages to progress. To the rest of us, they're just sensible people saying no to a rubbish deal.
Bluntly, mining companies would really have to make some incredible offers - financially and in terms of social responsibility. They would have to find ways to convince communities that, this time, they would live up to their promises.
Well, good! I suspect most people (though clearly not the government) would say the same.
If communities are allowed to choose what happens on their land, then the mineral wealth of the country will, for the first time in South Africa's history, actually be used to enrich the people of South Africa. What a strange and wonderful change that would be.
Michael Donen SC is an advocate at the Cape Bar and a listed counsel of the International Criminal Court