Authored By: Nandipha Mangethe
University of the Witwatersrand
INTRODUCTION
The Mineral and Petroleum Resources Development Act (MPRDA)[1] provides a framework for equitable access to South Africa’s mineral and petroleum resources and as a result redresses historically disadvantaged mining affected communities and those discriminated against based on gender and race.[2] It’s Social and Labour Plan requires mining companies to promote employment and contribute to the social development of the areas in which they operate.[3] However, two decades later evidence from Xolobeni, Maledu and the 2022 Jagersfontein disaster reveals that communities continue to experience displacement, environmental degradation and deepening poverty. This essay asks why the MPRDA’s consultation and Social and Labour Plans framework, despite being enacted to empower mining affected communities, systematically produces outcomes that dispossess and silence those same black communities. It argues that the problem is not weak enforcement or corruption but the design of the MPRDA itself, as it gives the community the right to participate but not the right to refuse, hands negotiating power to intermediaries with their own interests and imposes prohibitive transaction costs on ordinary community members who seek to resist. The article will first interrogate the MPRDA’s consultation and Social and Labour Plan framework to expose the assumptions the law makes about communities. It will then examine the incentive structure created by the MPRDA to explain why the current design makes dispossession predictable rather than accidental. Thereafter, the article will test this claim against the evidence from Xolobeni, Maledu, and the 2022 Jagersfontein disaster and conclude that the problem is architectural, requiring reform that starts with how the community is constituted before any mining negotiation begins.
The fiction of the coherent community
The MPRDA defines ‘community’ as a ‘coherent’ social group of persons with interests or rights in a particular area of land which members have or exercise communally in terms of an agreement, custom or law.[4] The term coherent assumes that the community is unified, stable and capable of articulating a single interest. In reality, mining companies prey on the desperation for employment and wealth of marginalised communities as a tactic to divide and demobilise communities.[5] Once the community is internally divided, the mining company only needs a fraction of it to agree to the deal. The Traditional and Khoi-San Leadership Act legally recognises traditional councils as the governing authority of rural communities, authorising them to administer community affairs and enter into agreements on the community’s behalf.[6] The MPRDA, through its deference to “custom or law” effectively defers to this structure. The law in effect then channels consultation through selected individuals such as traditional leaders or councillors who are unaccountable, unelected and who may not represent the interests of the community[7]. This results in a community fractured by the very same process meant to empower it.
Consultation without consent
To apply for mining rights the applicant must notify, and consult interested and affected parties within 180 days.[8] The ordinary meaning of notify is to inform someone of something, typically in a formal or official manner, while to consult means to have a discussion with someone typically before undertaking a course of action. Section 10 of the MPRDA sets out a consultation process for interested and affected parties.[9] The Regional Manager must make the mining right application known within 14 days and invite interested and affected parties to submit comments within 30 days.[10]Objections must be referred to the Regional Mining Development and Environmental Committee, which must consider them and advise the Minister.[11] The process exists, what is absent is the requirement of consent. Throughout section 22, 23 and 25 of the MPRDA power to refuse or grant mining rights is vested in the Minister and the Regional Manager, not the community. Whether objections are taken seriously depend on a department structure, A community may object unanimously and still have a mining right granted over its land. This gives the community a voice but no vote.
Misaligned Incentives and Information Asymmetry
The MPRDA an incentive structure that makes it dispossession predictable. As discussed, the act channels community representation through traditional leaders and community forums, intermediaries who are meant to represent the interests of the community[12]. In reality, these representatives have personal interests and mining companies prey on that by offering benefits that are personal and immediate such as royalties, directorship and cash payments. In return, communities are displaced, socially disintegrated, the environment is damages and the health of surrounding residents is sacrificed.[13] Woman are also disproportionately affected as many lose their subsistence farming livelihoods and their social status and end up as sex workers.[14] The dirty water, air, deteriorating health and lost livelihoods are all borne by the community while the benefits of the mining deals are captured by a few. To make the incentive problem a lot worse, the community does not have the necessary information to realise that certain mining deals are bad. Studies show that the Social and Labour Plans required by the MPRDA are not made public, making it difficult for local communities to engage with them meaningfully.[15] The MPRDA also does not provide any right to independent legal or technical advice that would aid the community in deciding. This shows a lack a substantial engagement from mining companies with local communities. Companies usually point to their sustainability reports to rebut the negative implication in the community. The Bench Marks Foundation reviewed the Lonmin’s reports over a decade and concluded that the targets are set, missed, explained or abandoned and that it is difficult to separate fact from fiction when trying to determine what the company actually spent on the community.[16]If a research foundation with resources and expertise struggles to extract the truth from mining company disclosures, ordinary community members have no meaningful chance. Without clear and accessible information, communities cannot evaluate the terms of a mining deal, hold intermediaries accountable, or enforce what was promised.
The information asymmetry is not accidental. It is a direct consequence of a legal framework that asks communities to participate in decisions about their land without giving them the tools to do so meaningfully. The MPRDA sets a process in motion and then leaves communities to handle it alone, without independent advice, without access to the documents that affect them, and without the power to stop the process when they cannot see where it is leading.
Xolobeni, Maledu and Jagersfontein: The Architecture in Practice
The evidence from Xolobeni, Maledu and Jagersfontein confirms what the incentive structure predicts. In Xolobeni, the Amadiba community on the Wild Coast resisted a proposed titanium mine for over a decade. An Eastern Cape government study from the mid-2000s had already raised concerns about environmental hazards, water supply, and the planned tailings dam.[17]Yet, the MPRDA did not provide and mechanisms for those concerns to stop the application. Approximately 2000 households faced displacement from the farmlands on which their livelihoods depended.[18]The Legal Resources Centre took the case, and in 2018 the High Court held in Baleni that Interim Protection of Formal Land Act (IPILRA)’s consent requirement must be read together with the MPRDA’s consultation requirement, affirming the community’s right to free, prior, and informed consent.[19] This victory took a decade of litigation and required resources of a national public interest law firm which is very revealing. Most communities lack these resources and accept unfavourable terms in silence. This is an indication of how the consultation framework required by the MPRDA is insufficient. The Maledu case reinforced this principle as they held that informal land rights holders are interested and affected parties for the purposes of the MPRDA, and that their consent is required under IPILRA before they can be deprived of their rights.[20] This further confirms that the MPRDA’S default posture is to treat informal rights holders as invisible. What both judgments reveal is that the MPRDA, standing alone, is insufficient. In each case, the courts had to reach beyond the MPRDA to IPILRA to find a requirement of consent. The Act that was meant to empower communities could not do so without help from a different statute and the intervention of the highest courts. The 2022 Jagersfontein disaster where a tailing dam collapsed killing two people and caused dozens of problems for the surrounding community.[21]The Social and Labour Plan, which was meant to secure lasting benefits for the community, was revealed as a paper obligation with no ongoing force as it left the community with no one to hold accountable. The MPRDA provides a process for communities to be heard when a mine is proposed but it provides nothing for communities living with the aftermath when a mine fails.
The limits of judicial Intervention
The judgments in Baleni and Maledu also expose the limits of judicial intervention as a corrective to structural failure. In South Africa, especially for historically disadvantaged people litigation is slow and expensive.[22] The Xolobeni community needed over a decade and the resources of the Legal Resources Centre to secure a right the law should have guaranteed from the start. Most mining-affected communities lack these resources and accept unfavourable deals in silence. More fundamentally, the judgments address symptoms, not architecture. Baleni and Maledu confirmed that IPILRA’s consent requirement applies alongside the MPRDA. They did not change the MPRDA itself. The Act still requires only consultation. The Minister still holds the final decision-making power. The next community will face the same intermediaries, the same information asymmetry, and the same prohibitive costs. The judgments are necessary but insufficient. They correct individual injustices while leaving the machinery of dispossession intact.
CONCLUSION
This essay has argued that the MPRDA’s failure is not a problem of weak enforcement or isolated corruption. It is a problem of legal design. The Act gives mining-affected communities a right to be heard but not a right to refuse. It constructs a community that does not exist, channels representation through intermediaries with misaligned incentives, and denies communities the information and resources needed to participate meaningfully. The evidence from Xolobeni, Maledu, and Jagersfontein confirms that this architecture systematically produces dispossession dressed in the language of participation. Procedural reforms such as improved SLP guidelines or training for traditional leaders will not solve the problem because they leave the underlying incentive structure untouched. Meaningful reform requires a prior step the law has never taken. The community must be allowed to choose their own negotiators; the law must provide independent access to technical advice before any negotiation with a mining company begins to ensure informed decision making. Until the law takes seriously the question of who speaks for the community, mining-affected black communities will continue to be spoken for, and they will continue to be dispossessed.
BIBLIOGRAPHY
LEGISLATION
Mineral and Petroleum Resources Development Act 28 of 2002
Mineral and Petroleum Resources Development Regulations GN R527 of 2004
Traditional and Khoi-San Leadership Act 3 of 2019
Interim Protection of Informal Land Rights Act 31 of 1996
CASES
Baleni and Others v Minister of Mineral Resources and Others [2018] ZAGPPHC 829
Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41
SECONDARY SOURCES
REPORTS
Bench Marks Foundation, Policy Gap 6: A Review of Platinum Mining in the Bojanala District of the North West Province: A Participatory Action Research Approach (August 2012)
Bench Marks Foundation, Policy Gap 7: Coping with Unsustainability (October 2013)
Brown Motsau and David van Wyk, Reports on the Jagersfontein Tailings Disaster (October 2022)
ONLINE SOURCES
Amadiba Crisis Committee, ‘Amadiba Crisis Committee’ (AIDC) available at Amadiba Crisis Committee – AIDC | Alternative Information & Development Centre accessed on 17 July 2026
Lebogang Lesenyeho, ‘Mining Companies Use Employment Forums to Divide Communities and Foster Corruption’ (MACUA, 25 May 2025) available at https://macua.org.za/2025/05/19/mining-companies-use-employment-forums-to-divide-communities-and-foster-corruption/ accessed on 17 July 2026
Faith Tshabalala, ‘A Critical Analysis of Institutional Economic and Structural Obstacles to Justice in South Africa’ (2026) available at https://recordoflaw.in/a-critical-analysis-of-institutional-economic-and-structural-obstacles-to-justice-in-south-africa/ accessed on 21 July 2026
[1] Mineral and Petroleum Resources Development Act 28 of 2002.
[2] Section 2(c) and (d) of the Mineral Resources Development Act.
[3] Regulation 41(a) and (c) of the Mineral and Petroleum Resources Development Regulations.
[4] Section 1 of the Mineral and Petroleum Resources Development Act
[5] Lebogang Lesenyeho ‘Mining Companies use employment forums to divide communities and foster corruption’ (Macau Team, 25 May 2025) Mining companies use employment forums to divide communities and foster corruption – MACUA
[6] Section 20(1)(a) of the Traditional and Khoi-San Leadership Act 3 of 2019
[7] Supra 5
[8] Section 22(4)(b) of the Mineral and Petroleum Resources Development Act.
[9] Ibid 10
[10] Ibid 10(1)(a)(b)
[11] Ibid 10(2)
[12] Supra 6
[13] The Bench Marks Foundation ‘Coping with Unsustainability’ Policy Gap 7 (October 2013) *lonmin_report_print.pdf (x)
[14] Ibid 12
[15] The Bench Marks Foundation ‘a review of platinum mining in the Bojanala District of the Northwest Province: A participatory Action Research Approach’ Policy Gap 6 (August 2012) Policy Gap 6 – Bench-Marks Foundation (1}
[16] Supra 12
[17] Amadiba Crisis Committee Amadiba Crisis Committee – AIDC | Alternative Information & Development Centre
[18] Ibid 17
[19] Baleni and Others v Minister of Mineral Resources and Others [2018] ZAGPPHC 829 [84]
[20] Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another [2018] ZACC 41 [106]
[21] Brown Motsau, David van Wyk ‘Reports on the Jagersfontein Tailings Disaster’ (October 2022) *Jagersfontein-report.pdf
[22] Faith Tshabalala “A critical Analysis of Institutional Economic and Structural Obstacles to Justice in South Africa’ [2026]
