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Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation

The Mineral and Petroleum Resources and Development Act 28 of 2002 (MPRDA) requires an applicant for a right to a mineral or a mining permit to consult with the landowner, lawful occupier, or any interested and affected parties. The MPRDA does not require the applicant for a right to a mineral or a...

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Main Author: Maponya, Randy
Other Authors: Mostert, Hanri
Format: Thesis
Language:English
English
Published: Department of Private Law 2025
Subjects:
private law
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access_status_str Open Access
author Maponya, Randy
author2 Mostert, Hanri
author_browse Maponya, Randy
Mostert, Hanri
author_facet Mostert, Hanri
Maponya, Randy
author_sort Maponya, Randy
collection Thesis
description The Mineral and Petroleum Resources and Development Act 28 of 2002 (MPRDA) requires an applicant for a right to a mineral or a mining permit to consult with the landowner, lawful occupier, or any interested and affected parties. The MPRDA does not require the applicant for a right to a mineral or a mining permit to obtain consent, it only requires that the applicant consults with the landowner, lawful occupier, or any interested and affected parties. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), requires the informal land rights holders consent to any deprivation of their informal rights to land. The court in Baleni v Minister of Mineral Resources (Baleni 1) considered the level of engagement that must be achieved before a right to a mineral or mining permit may be granted by the Minister in terms of the MPRDA. The court in Baleni confirmed that an informal land right holder must consent to any deprivation of their informal land right. The court held that the MPRDA and IPILRA must be read together. The court in Baleni 1 considered customary law and international law as prescribed in the Constitution of the Republic of South Africa of 1996 (Constitution). The court recognised international instruments under international and regional law that deal with the Free, Prior, and Informed Consent (FPIC) principle. Basson J held that requiring community consent as opposed to consultation is in line with the FPIC principle recognised under international law. This dissertation aims to examine whether the Baleni 1 judgment paves the way for the incorporation of the FPIC principle into South African national legislation. It investigates the challenges and benefits of incorporating the FPIC principle into national legislation and the implementation of the FPIC principle in practice. Further, the role of the legislature in adopting the FPIC principle into national legislation as opposed to adopting the requirement of consent. This dissertation argues that the Baleni 1 judgment paves the way for the FPIC principle to be incorporated into South African national legislation. The dissertation unpacks the FPIC principle as outlined in international law and how it can be applied in domestic law. This dissertation seeks to illustrate how the FPIC principle can be incorporated into national South African legislation for the protection of customary communities on ancestral land affected by prospecting and mining operations.
format Thesis
id oai:open.uct.ac.za:11427/42394
institution University of Cape Town (South Africa)
language English
eng
last_indexed 2026-06-10T12:32:11.035Z
license_str Not specified — see source repository
provenance_str_mv Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository
publishDate 2025
publishDateRange 2025
publishDateSort 2025
publisher Department of Private Law
publisherStr Department of Private Law
record_format dspace
source_str UCTD — University of Cape Town Open Access Repository
spelling oai:open.uct.ac.za:11427/42394 Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation Maponya, Randy Mostert, Hanri Richard Cramer, Richard Ntsanwisi, Fezeka private law The Mineral and Petroleum Resources and Development Act 28 of 2002 (MPRDA) requires an applicant for a right to a mineral or a mining permit to consult with the landowner, lawful occupier, or any interested and affected parties. The MPRDA does not require the applicant for a right to a mineral or a mining permit to obtain consent, it only requires that the applicant consults with the landowner, lawful occupier, or any interested and affected parties. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), requires the informal land rights holders consent to any deprivation of their informal rights to land. The court in Baleni v Minister of Mineral Resources (Baleni 1) considered the level of engagement that must be achieved before a right to a mineral or mining permit may be granted by the Minister in terms of the MPRDA. The court in Baleni confirmed that an informal land right holder must consent to any deprivation of their informal land right. The court held that the MPRDA and IPILRA must be read together. The court in Baleni 1 considered customary law and international law as prescribed in the Constitution of the Republic of South Africa of 1996 (Constitution). The court recognised international instruments under international and regional law that deal with the Free, Prior, and Informed Consent (FPIC) principle. Basson J held that requiring community consent as opposed to consultation is in line with the FPIC principle recognised under international law. This dissertation aims to examine whether the Baleni 1 judgment paves the way for the incorporation of the FPIC principle into South African national legislation. It investigates the challenges and benefits of incorporating the FPIC principle into national legislation and the implementation of the FPIC principle in practice. Further, the role of the legislature in adopting the FPIC principle into national legislation as opposed to adopting the requirement of consent. This dissertation argues that the Baleni 1 judgment paves the way for the FPIC principle to be incorporated into South African national legislation. The dissertation unpacks the FPIC principle as outlined in international law and how it can be applied in domestic law. This dissertation seeks to illustrate how the FPIC principle can be incorporated into national South African legislation for the protection of customary communities on ancestral land affected by prospecting and mining operations. 2025-12-03T13:47:56Z 2025-12-03T13:47:56Z 2025 2025-12-03T13:40:19Z Thesis / Dissertation Masters LLM http://hdl.handle.net/11427/42394 en eng application/pdf Department of Private Law Faculty of Law
spellingShingle private law
Maponya, Randy
Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
thesis_degree_str Master's
title Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
title_full Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
title_fullStr Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
title_full_unstemmed Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
title_short Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
title_sort consent and consultation under ipilra and the mprda concerning ancestral land of customary communities incorporating the free prior and informed consent principle into south african national legislation
topic private law
url http://hdl.handle.net/11427/42394
work_keys_str_mv AT maponyarandy consentandconsultationunderipilraandthemprdaconcerningancestrallandofcustomarycommunitiesincorporatingthefreepriorandinformedconsentprincipleintosouthafricannationallegislation

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