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Game-changing judgment for Xolobeni community on mining rights applications

- Lee-Anne Bruce

On 14 September, the Pretoria High Court handed down a landmark judgment confirming that mining-affected communities have the right to access information about the projects that impact them. CALS intervened in the matter as a friend of the court, presenting evidence that the usual process for requesting this kind of information places communities at a disadvantage and may prevent them from exercising their constitutional rights.

Leaders of the Umgungundlovu community have secured a major victory for all mining-affected communities in South Africa this week. For the last five years, the community has been concerned about the impacts of titanium mining proposed in the Xolobeni area of the Eastern Cape. When they were refused access to the mining rights application, community leaders approached the High Court in line with the Promotion of Access to Information Act (PAIA).

Since then, the community has been able to access redacted versions of these documents and has used these to support a strong objection to mining in their region. In fact, in 2018 the Constitutional Court upheld the community’s right to say no to mining and to decide their own developmental path. At the same time, the community pressed forward with their PAIA application, believing that other communities also deserve the opportunity to freely access information about the operations that impact them in order to make informed decisions about mining in their area. This was opposed by the mining company, Transworld Energy and Mineral Resources (TEM).

The Centre for Applied Legal Studies (CALS) was admitted as a friend of the court in the matter. Our organisation has extensive experience working with mining-affected communities in trying to access information about the operations that impact them. We supported the argument that mining rights applications should be automatically available as public documents, and further presented evidence from reports by other civil society organisations on the difficulties communities face in accessing information under PAIA, especially in relation to mining.

On 14 September, Judge Tintswalo Makhubele ruled in our favour, ordering that interested and affected parties must be furnished with a copy of an application for a mining right and further ruling mining company TEM pay the legal costs for both the applicants and CALS. As her judgment notes: 

“Meaningful consultation entails discussion of ideas on an equal footing, considering the advantages and disadvantages of each course and making concessions where necessary […] The statistical evidence brought by the Amicus Curiae actually served to confirm the applicants’ anxieties and to foster their stance that their rights cannot be realized by following the PAIA processes”.

CALS is extremely pleased with the outcome of this important case and that the Judge found our submissions helpful.

“This judgment is a game-changer for mining-affected communities in South Africa,” says Thandeka Kathi, attorney at CALS. “Communities should not have to be sent from pillar to post when trying to access information they need about the projects that affect them – and this judgment recognises that. It means community members will by default have access to the information to participate fully in discussions with mining companies and the state in their quest to realise other constitutional rights.”

Read the full judgment here.

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