South Africa: ICJ welcomes landmark judgment on free and informed consent of communities prior to the award of mining rights

The ICJ welcomes the landmark decision by the North Gauteng High Court in the Duduzile Baleni and 128 Others v Minister of Mineral Resources in which the Court affirmed the principle of free, prior and informed consent in relation to mining activities.

On Thursday the 22nd of November 2018, the Court declared that the Minister of Mineral Resources cannot grant a license to any mining company without first obtaining the full and informed consent of the affected community.

It concluded: “The applicants in this matter [have] the right to decide what happens with their land. As such they may not be deprived by their land without their consent. Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land.”

“This decision is a positive step towards protecting the rights of vulnerable communities from the excesses of States in the benefit of corporations. Informed consent from affected communities is vital for economic activities to bring development that enriches the lives of the communities where the companies operate,” said Arnold Tsunga, ICJ Africa Regional Programme Director.

“The ICJ will continue to support the community through its cooperation with Ms. Nonhle Mbuthuma of the Amadiba Crisis Committee. We regard the community as Human Rights Defenders who are fighting to protect their internationally recognized economic, social and cultural rights,” he added.

The ICJ calls on the South African government to respect the judgment which conforms with the requirements of South African legislation, the South African Constitution, judgments of the Constitutional Court of South Africa and international human rights law.


Arnold Tsunga, Director of the ICJ Africa Regional Programme, m: +263 77 728 3248, e: arnold.tsunga(a)

South Africa-Xolobeni decision-News-web story-2018-ENG (full stroy with additional information, in PDF)

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