Baleni v Minister of Mineral Resources: A fait accompli

The court in Baleni v Minister of Mineral Resources [2019] 2 SA 453 GP and [2020] 4 All SA 374 (GP), deliberated on the protection of rights of a community holding informal land tenure under Customary Law. The contention related to the necessary level of consent needed to acquire a mining right over such land. Moreover, whether consultations with such communities (Section 23, Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) or consent (Section 2, Interim Protection of Informal Land Rights Act, No. 31 of 1996 (IPILRA)) was required to acquire such right. The case has a significant bearing on the granting of mining rights in South Africa, and the discretion of the Minister of Mineral Resources (the Minister) in this regard. However, the objectives of the MPRDA and IPILRA do not dovetail, therefore consultation and consent are not mutually exclusive (Tlale, 2020). This note argues that, despite the resounding victory of this case, the peripheral basis surrounding the decision and the various levels of engagement require serious deliberation. Equally, the degree of reliance on the IPILRA requires clarity to avoid aborting the fundamental objectives of the MPRDA. This paper provides considerations and recommendations that may reduce or eliminate the tensions between the statutory and socio-economic rights in the application of the two statutes.