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Taking on mighty Goliaths in court - and winning

Joy and jubilation in the high court as the Xolobeni community score a victory. Steven Mdimgi expresses his joy. Picture: Zelda Venter/Pretoria News

Joy and jubilation in the high court as the Xolobeni community score a victory. Steven Mdimgi expresses his joy. Picture: Zelda Venter/Pretoria News

Published Dec 28, 2018


Pretoria - This was once again a year in which the law spoke the last word on issues that had a severe impact on people's lives.

It was also a year where many Davids took on the Goliaths and emerged as the victor.

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One such case, which has an immense effect on all rural communities who were bullied by rich mining conglomerates, was the recent victory by the Xolobeni community, who have for decades lived on the rolling green fields and golden sands of the Wild Coast.

The sand is rich with titanium and Australian mining conglomerate Transworld Energy and Minerals was set on mining there. It attempted to get a mining right to conduct open-cast mining on about 900hectares.

The community resisted because it meant losing their ancestral ground.

Not only did they take on the mining giant, but they also challenged the mighty government who gave the mining company the green light to mine on the land.

In emerging the victors, the community secured an order that, in future, the government had to first consult the affected parties before granting mining rights. Armed with this order, other communities can also ward off money-hungry mining moguls, no matter how big and powerful they are.

Another such heart-warming case was when several rural communities affected by mining in South Africa scored a huge victory when the court allowed them to enter the fierce legal battle against the controversial 2017 Mining Charter.

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They faced the mighty government and mining giants in court when they fought alongside the Chamber of Mines to have the charter set aside.

They scored their victory and it was back to the drawing board for the government.

The rural communities of Bakgatla Ba Sefikile, Lesethleng, Babina Phuthi Ba Ga-Makola and Kgatlu, on whose ancestral land mining activities were taking place by mine giants, will be among those who will also have a say in relation to the new Mining Charter.

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Godfrey Mtenje’s temporary structure on a smallholding in Pretoria West. Picture: ANA Archives

Then there was Godfrey Mtenje, who took on his landlady. He and his family will be able to live in a built structure on her smallholding in Andeon, west of Pretoria.

For more than a decade, Mtenje, his wife and two daughters lived in three tents the City of Tshwane issued to them in 2006. Over time, the tents became worn and inhabitable and he started to erect a structure on the property.

His landlord wanted him out.

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But the court said they had the right to remain on the property in terms of the Extension of Security of Tenure Act.

Acting Judge MP Canca, who visited the property and noted the dilapidated tents, said the tenure act afforded an occupier a number of fundamental human rights, the first of which was human dignity, while it limited a landowner’s rights.

He found that Mtenje had made out a case for the replacement of the demolished building.

Another victory for the people this year was when the Lesethleng Village community took on the mighty Pilanesberg Platinum Mine. They did not hesitate to approach the highest court in the country after they found no joy at the North West High Court.

The late Sikhosiphi "Bazooka" Radebe, who led the Wild Coast residents opposed to titanium mining. Picture: Fred Kockott

The high court had granted an eviction order against the community, in favour of the mine.

In 1916, 13 families in the village decided to buy the farm Wilgespruit in the Rustenburg area. It took them three years to raise the purchase price. Due to apartheid laws, the farm could not be registered in their names.

In 1919, it was held in trust for the Chief of the Bakgtala ba-Kgafela, the traditional authority which presided over the village.

The mine had meanwhile obtained the mineral rights on the land and wanted the community out in order to make way for its operations. Their reasoning was that the community illegally occupied the land.

But the court found that the existence of a mineral right did not in itself extinguish the rights of a landowner or any other occupier of the land in question.

This was said to be yet another game-changing victory for the right of communities in South Africa to be properly consulted before mining rights were issued.

Pretoria News

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