Restitution and “Altered Priorities”: How the Judiciary Balances the Varying Demands of Transformation in the Mineral Resources Context: A Discussion of Macassar Land Claims Committee v Maccsand CC 2017 4 SA 1 (SCA)
Authors Hanri Mostert
Affiliations: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 420 – 429
This discussion of Macassar Land Claims Committee v Maccsand CC scrutinises the SCA’s attempt at achieving transformation in respect of surface and subsurface rights by weighing up rights conferred and/or protected in terms of the MPRDA and the Restitution Act. The note considers the SCA’s ruling in respect of three questions: (i) the LCC’s power to order acquisition/expropriation; (ii) the LCC’s power to adjust a right of commonage to an alternative form of title when making a restitution order; and (iii) the interplay between a claim for the restitution of landownership and an existing mining right. The assessment in the case note focuses on a consideration of the theoretical and practical relevance of weighing up rights under a new, transformed system of law. The SCA emphasised that both the MPRDA and the Restitution Act are products of a democratic legislature that aim to redress past discrimination; and that resolving potential clashing of rights protected by or conferred in terms of these statutes must take into account the current legislative context. The SCA’s preferred interpretation does not acknowledge the link between past discrimination and current, ongoing disadvantage. Moreover, the SCA confirmed that the right to mine is independent of surface ownership, and that it can be created only in terms of the MPRDA. In doing so, it clarified some important theoretical issues in a measured and careful manner. However, the practical effect of the judgment on the community affected also needs to be acknowledged. The invasiveness of sand-mining enterprises may mean that the redress available to a community such as the one in this matter could be nothing but a nominal acknowledgement of the right to be redressed. There may be practically no financial value attached to such a right.