By Nina Christina Greyling
Status of customary law
The Constitution recognises customary law as being an independent and original source of law. In terms of section 211(3) of the Constitution, courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law. This means that customary law is not rendered subject to any legislation generally, but only to legislation that specifically deals with customary law.
The Supreme Court of Appeal (“SCA”) in Gongqose held that the validity of customary law, and the rights under it in South Africa, are protected by section 211 of the Constitution and are rendered subject only to the Constitution and legislation that specifically deals with that law. However, it also held that a customary right can only be extinguished by legislation that specifically deals with customary law, and secondly, that such legislation must do so either expressly or by necessary implication.
From a mining perspective, there are three questions which come to mind.
First, is the MPRDA an act that specifically deals with customary law, because if not, then customary law is not subject to it.
Second, if the MPRDA does in fact specifically deals with customary law, does it abolish customary land rights insofar as the granting of mining rights are concerned.
Third, if customary rights are not explicitly extinguished, does it mean that those rights are absolute and trump the rights which can be conferred in terms of the MPRDA?
Question 1: Does the MPRDA specifically deal with customary law?
In Baleni, the High Court held that the “Section 4(2) of the MPRDA states that the MPRDA prevails in so far as the common law is inconsistent with the act. Although customary law enjoys equal constitutional status to common law, the MPRDA does not contain a similar provision in respect of customary law and therefore does not specifically subject customary law to the provisions of the MPRDA in the event of an inconsistency (or conflict) with the MPRDA.”
However, it would seem that notwithstanding the fact that the High Court was of the view that the MPRDA does not subject customary law to itself, this does not mean that it could not be argued that the MPRDA is legislation that ‘specifically deals with customary law’.
The MPRDA recognises that there are customary rights over land and also treats those rights differently from common law rights. The MPRDA specifically states that it prevails over common law, however, it does not say the same about customary law. It defines “community” as “a group of historically disadvantaged persons with interest or rights in a particular area of land on which the members have or exercise communal rights in terms of an agreement, custom or law”. Section 23(2A) of the MPRDA also empowers the Minister of Petroleum and Mineral Resources (“the Minister”), when granting a mining right, to “impose such conditions as are necessary to promote the rights and interests of the community, including conditions requiring the participation of the community”. In other words, it is clear from the wording of the act that the legislature took account of customary rights when it enacted the MPRDA and in some respects dealt with these rights in the context of the granting of rights in terms of the MPRDA.
Therefore, this a strong suggestion that it could potentially be argued that the MPRDA is in fact law that specifically deals with customary law, which would also make it “legislation” for the purposes of section 211(3) of the Constitution. However, the fact that the MPRDA specifically deals with customary law does not mean that it automatically trumps customary rights. It only means that it is the type of law that can constitutionally alter customary law.
This leads us then to the second question - whether the MPRDA abolishes customary land rights either explicitly or by necessary implication?
Question 2: Does the MPRDA explicitly extinguish customary rights?
The wording of the MPRDA does not suggest that customary land rights are in general explicitly extinguished. The High Court in Baleni has also already confirmed that the MPRDA does not purport to regulate customary law at all, and even if it did, regulation of customary rights does not result in those rights being extinguished. In the Gongqose matter the SCA referred to an Australian case, Yanner v Eaton, where the Court of Australia made it clear that “regulating the way in which a right may be exercised presupposes that the right exists”.
In Maledu the Constitutional Court expressed the view that despite the fact that mining operations are invasive, the grant of a mining right would not mean that community members are denuded of their informal land rights and are, therefore, unlawful occupiers. The Court held that the existence of another right does not itself extinguish the rights of a landowner or any other occupier of the land in question. In this regard it held that the “existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question.” As such, the Constitutional Court made it clear that the granting of a valid mining right would not extinguish informal land rights held by community members in terms of their customary law.
This seems to suggest that despite the fact that the Constitutional Court was well aware of the invasive nature of mining operations, it still found that a the granting of a mining right (which allows for severe interference with property rights) does not result in the extinguishing of informal land rights, and therefore, it is also unlikely that it could be argued that rights granted in terms of the MPRDA would have the effect of customary land rights being extinguished by necessary implication.
As such, it could potentially be argued that even though the MPRDA specifically deals with customary law, it is not the case that it extinguishes customary land rights explicitly or by necessary implication. A more plausible interpretation would be that the MPRDA in fact protects those customary rights for the reasons mentioned above. In Gongqose the SCA held that if a court interprets legislation in a manner that community members’ customary rights survive the enactment of a specific act (for example, the MPRDA), such interpretation should grant them the fullest protection of their customary system guaranteed by section 211 of the Constitution.
Question 3: if customary rights are not explicitly extinguished, does it mean that those rights are absolute and trump rights granted in terms of the MPRDA?
Despite the fact that the MPRDA does not explicitly extinguish customary rights, when an applicant applies for a right over land which belongs to community members, it is likely that these community members would also be protected by the Interim Protection of Informal Land Rights Act, Act 31 of 1996 (“IPILRA”).
Section 2(1) of IPILRA stipulates that “no person may be deprived of any informal right to land without his or her consent”. In Baleni, the High Court held that mining operations would deprive a person of his or her informal right in land in terms of section 2(1) of IPILRA, and because this is the case, the informal land right holder's prior informed consent is a pre-requisite for the grant of a mining right.
Furthermore, where land is held on a communal basis, a person may only be deprived of such land or right in land in accordance with the custom and usage of that community. However, it should be noted that the majority requirement as set out in section 2(4) of IPILRA is not sufficient if the relevant community’s custom and usages require a unanimous decision in relation to the disposition of their informal land rights. This was explained by the community members in the Baleni matter, who were also informal land right holders, that “[d]ecisions according to the customary law of the Mpondo community, typically does not take place on a majoritarian basis and decisions are seldom taken on the basis of a majority vote: Often a higher degree of consensus and circumspection is required to pass a decision in respect of issues that has the potential of conflict and division.” It was also explained that “even in circumstances where the majority of community members would support mining activities, it would not be sufficient ground to consent to mining on their land under customary law.”
In Maledu, the Constitutional Court also held that the MPRDA does not trump IPILRA and that these two acts should be read together. As such, when an applicant applies for a right in respect of property in respect of property held by community members with IPILRA rights (informal land rights) these community members can refuse to provide their consent. Community members are therefore protected in terms of IPILRA and are effectively afforded the fullest protection of their customary land rights. Furthermore, if these community members refuse to provide their consent, the Minister will not be able to lawfully grant a right over the land to which their rights relate.
As mentioned, in Gongqose the SCA held that if a court interprets legislation in a manner that community members’ customary rights survive the enactment of a specific act, such interpretation should grant them the fullest protection of their customary rights and that these rights continue to exist subject to the limitations already imposed by customary law. As such, when IPILRA is applicable, customary land rights could only be limited or regulated in accordance with the community’s customs and usages and in ways to which they agree to.
What is important to bear in mind is that the above would only apply where deprivation takes place as IPILRA requires that informal land right holders’ consent should be obtained prior to being deprived of their rights in the underlying land. From a mining context, deprivation of property rights is likely to occur once a holder of a mining right begins to exercise those rights. However, the fact that the MPRDA does not explicitly extinguish customary land rights would not necessarily mean that the Minister would not be able to use his discretionary powers to expropriate land or any rights therein in terms of section 55 of the MPRDA.
Section 55 of the MPRDA stipulates that the Minister may “in accordance with section 25(2) and (3) of the Constitution, expropriate any land or any right therein and pay compensation in respect thereof”. As mentioned, section 2(1) of the IPILRA states that, “[n]o person may be deprived of any informal right to land without his or her consent”. This would mean that the moment that the informal land right holder’s right in the underlying land is expropriated, the informal land right holder’s consent would also no longer be required and when this discretion is exercised, those customary land rights would also be extinguished.
Section 55 is a standalone provision in the sense that the Minister’s powers to expropriate are not only triggered if the Regional Manager makes a recommendation in terms of section 54 to the effect that the underlying land should be expropriated; the Minister can act in accordance with his or her own discretion (where the requirements of section 55 are met).
As such, despite the fact that MPRDA does not explicitly extinguish customary land rights in general, the Minister has been granted discretionary power to extinguish these rights in certain circumstances and through the process of expropriation which is subject to compensation.
The way forward
In Bhe, the Constitutional Court held that “it should not be inferred that customary law can never change and that it cannot be amended or adjusted by legislation. In the first place, customary law is subject to the Constitution. Adjustments and development to bring its provisions in line with the Constitution or to accord with the “spirit, purport and objects of the Bill of Rights” are mandated. Secondly, the legislative authority of the Republic vests in Parliament. Thirdly, the Constitution envisages a role for national legislation in the operation, implementation and/or changes effected to customary law.” 
Section 4(2) of the MPRDA stipulates that whenever the common law is inconsistent with the MPRDA, the latter prevails. However, to amend the MPRDA to include customary law in this section might not be the simple answer to the conundrum because it has previously been held that customary landowners should be afforded broader protection. The High Court in Baleni was of the view that communities (who are informal land right holders) must be afforded broader protection than the protection afforded to common law owners (as contemplated under the MPRDA) when mining rights are considered by the Minister. The High Court also held that granting informal land right holders (which would include most community members) special protection is not in conflict with the provisions of the MPRDA - especially considering section 23(2A), where it is made clear that protecting community rights to land is part of the purpose of the MPRDA.
It would seem that one potential solution where customary land rights are not expropriated in terms of section 55 of the MPRDA, is to amend the MPRDA’s regulations in order to provide some structure and clarity in relation to the process of obtaining consent (given the fact that it has been made clear that the MPRDA does not trump IPILRA). In other words, the consent requirement of IPILRA is not going away. Applicants for rights in terms of the MPRDA should obtain consent prior to the Minister granting any rights in terms of the MPRDA that would interfere with informal land right holders’ rights in the underlying land. As such, assisting applicants with this process could potentially be extremely helpful and would also ensure that applicants properly comply with IPILRA. Not only would this protect community members, but it would also provide applicants with clarity of how they should consult with community members who are protected in terms of IPILRA and how to obtain their consent. One direct result of amendments to the regulations would be to reduce the prospect of litigation.
 Gongqose v Minister of Agriculture, Forestry & Fisheries  3 All SA 307 (SCA) (“Gongqose”) para 22.
 Gongqose para 22.
 Gongqose para 50.
 Baleni and others v Minister of Mineral Resources and others  1 All SA 358 (GP) (“Baleni”) para 66.
 Michael Bishop wrote in his article entitled “Asserting Customary Fishing Rights in South Africa” that “The reason the community in Baleni could assert their customary-law right to consent to mining on their land was not because the MPRDA was not section 211(3) legislation, but because the MPRDA did not extinguish or alter those rights.” Please use this link to access his article - Asserting Customary Fishing Rights in South Africa: Journal of Southern African Studies: Vol 47, No 2 (tandfonline.com)
 Michael Bishop wrote in his article that “The reason the community in Baleni could assert their customary-law right to consent to mining on their land was not because the MPRDA was not section 211(3) legislation, but because the MPRDA did not extinguish or alter those rights. The MPRDA is a section 211(3) law, but it confirms the constitutional and statutory protection for customary rights and affords communities additional protections.” Please see page 11 of his article.
 See page 12 of Michael Bishop’s article.
 Section 55 of the MPRDA does however provide the Minister with discretionary power to expropriate rights in land in certain circumstances.
 Baleni para 74.
 See page 13 of Michael Bishop’s article referred to in footnote 6.
 Gongqose para 47.
 Maledu and others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and another (Mdumiseni Dlamini and another as amici curiae) 2019 (1) BCLR 53 (CC) (“Maledu”) para 103.
 Maledu para 103.
 Maledu para 103. In this regard the Constitutional Court held that ‘the fact that the respondents’ mining rights are valid (which must be assumed in their favour in this case), does not mean that the applicants are, in consequence, occupying the land in question unlawfully. The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question.’
 Gongqose para 59.
 The Minister has the discretion to expropriate land rights in certain circumstances in terms of section 55 of the MPRDA.
 See 1(iii)(e) and (f) of the definitions section of IPILRA which provides the details of which groups would be excluded from the protection of IPILRA.
 Baleni para 58.
 Baleni para 10.
 Baleni para 15.
 Maledu para 106.
 It could be that the Minister uses his power in terms of section 55 of the MPRDA and decides to expropriate the land, which would mean that the community members’ consent is no longer required, as they will not be deprived of their informal land rights in respect of the underlying land, but would be expropriated. The consent requirement is only triggered once there is deprivation of property rights.
 Gongqose para 59.
 Maledu para 105.
 In some cases prospecting would also constitute deprivation.
 Sec 55(1) of the MPRDA. However, as is the case with any other form of expropriation, the landowner would be able to challenge this decision in the High Court.
 Bhe v Magistrate, Khayelitsha, Shibi v Sithole, SA Human Rights Com v President of RSA Langa 2005 (1) BCLR 1 (CC) (“Bhe”) para 40.
 Baleni para 76.
 Baleni para 76.