Farming in jeopardy: Ruling on mining without compensation sets dangerous precedent

The shocking recent ruling in the Mpumalanga High Court which determined that mining operations on a farmer’s land in Delmas may continue even though a compensation agreement was never reached will have far-reaching consequences for agriculture. This comes as a warning from AfriForum and the network for family farmers, Saai, after a commercial farm approached the organisations for help. AfriForum is in the process of obtaining a legal opinion on what the wider implications of this ruling will be for agriculture in South Africa.

The civil rights organisation believes that the Department of Mineral and Petroleum Resources must stop this dangerous practice before it can take hold. According to Marais de Vaal, advisor for Environmental Affairs at AfriForum, it is precisely this department’s responsibility to ensure that the country’s mineral resources are developed in a sustainable and fair way. However, it appears that this department does not act as an impartial regulator in these situations and unfairly favours the interests of mining companies.

Only 1.5% of land in South Africa is suitable for agriculture – 46% of this suitable land is in Mpumalanga. However, mining and prospecting rights have already been granted on more than 60% of Mpumalanga’s surface. Furthermore, there are cases where applications for mining licenses are submitted for rights to mine on land as close as 500 m from a town, which means that communities can have a mine almost on their doorstep. These excessive mining activities not only jeopardises food security, but also has far-reaching ecological consequences.

CJ Williams en Seuns Boerdery (Pty) Ltd have been in negotiations with Stuart Coal (Pty) Ltd since 2019, struggling to reach a compensation agreement to compensate for possible losses that the farm may suffer due to the mining operations. Stuart Coal has the rights to mine coal on agricultural land in the Delmas area. However, the parties were unable to reach an agreement and CJ Williams en Seuns Boerdery consequently refused the mining company access to the property.

Meanwhile, in terms of Section 54 of the Mineral and Petroleum Resources Development Act 28 of 2002, the dispute has been referred to the regional manager of the Department of Minerals and Petroleum Resources in Mpumalanga for resolution. After this process also reached an impasse, the mine approached the court to order the landowner to grant access to the property so that mining operations could begin.

The Mpumalanga High Court granted the interdict in July this year and, despite the fact that no agreement has yet been reached regarding compensation, the mine may now enter the property and continue with mining operations. The mining operations are expected to start before the end of the year. Although the court believes that compensation must still take place pending valuations, this means that the value of the land due to mining operations will be less than it was before the mining operations started.

“This ruling creates an extremely dangerous precedent, because it suggests that the landowner can be deprived of his livelihood with no guarantee that fair compensation will be paid by the mining company. Because agricultural land is for all practical purposes sterilised by mining operations, a crop farm will never be able to operate again after an open-pit coal mine is established,” says De Vaal.

“A farmer can not just pack up and move his farm either. Therefore, the landowner’s only bargaining power is to deny the mine access to the property until an agreement on compensation is reached, but according to the court this interest seems to weigh less than the short-term profits that come with a mine’s destruction.”

The CJ Williams and Seuns Boerdery is a fourth-generation family farm that will now in all probability not continue for the fifth generation. The farm’s income has already been dealt a blow because agreements for renting out fields could not be renewed due to the uncertainty about when the mining operations will start.

“This ruling is a direct attack on the property rights of landowners across the country. If landowners cannot even protect their properties from external forces that ignore their rights, the fundamental principles of property rights and fair treatment are seriously undermined. Saai will not allow our members’ property rights to be exposed to such unfair practices, and we stand with AfriForum to take this issue to the highest levels. It is of critical importance that urgent amendments are made to this legislation to prevent further devastation and to ensure that fair and equitable compensation remains a priority,” says Francois Rossouw, CEO of Saai.