South Africa’s mining projects turn on regulatory certainty, predictable timelines, and sustained social legitimacy. Two recurring sources of delay and dispute are, first, leadership contests within traditional communities and, second, uncertainty about when the law requires consultation as opposed to consent - particularly where the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) intersects with the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA) and the environmental authorisation regime under the National Environmental Management Act 107 of 1998 (NEMA). This note outlines the current position and proposes a practical path that reduces process risk without diluting substantive protections.
Traditional Leadership Recognition and its Practical Consequences
Leadership disputes create immediate operational risk. Social and labour plan (SLP) delivery stalls, environmental processes are challenged, and access to site becomes contested. The Supreme Court of Appeal’s recent Bakgatla ba Kgafela decision (09 September 2025) is instructive on one point: Recognition is a matter of statute and territorial competence. Recognition under the North West traditional leadership legislation applies within that province and to the recognised royal family there; it does not bleed across borders or attach to external claimants. In practice, this means a mining company must take its cue from the current recognition instrument (statute and Gazette) while acknowledging on-the-ground realities where factions vie for authority.
Where recognition is unsettled or under review, project proponents face a threshold question: Who do we engage, and on what legal footing?
The safest answer is not to “choose a side” but to engage in a documented, inclusive process anchored in the prevailing recognition instrument and broadened - deliberately and transparently - to other affected groupings pending final clarity.
Consultation under the MPRDA and Consent under IPILRA
Two well-known judgments frame this area:
- Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd 2019 (2) SA 1 (CC): The Constitutional Court reaffirmed that communities holding informal rights in land enjoy substantive protection and that mere consultation cannot substitute for the consent required by IPILRA where a deprivation of such rights is contemplated.
- Baleni and Others v Minister of Mineral Resources 2019 (2) SA 453 (GP): The High Court held that for holders of informal land rights to be deprived of their rights by mining activities, consent under IPILRA is required; robust consultation under the MPRDA is not, on its own, sufficient to meet that threshold.
Read together, these judgments do not create two classes of communities; they map two different legal tests that may apply to the same community depending on the factual impact of the proposed activity. The MPRDA requires meaningful consultation before rights are granted and throughout the life-of-mine. IPILRA requires consent from right-holders where there is a deprivation or significant infringement of informal land rights. The hard work is factual in that identifying who holds which rights, how the project affects those rights, and therefore which threshold (consultation or consent) applies to each step.
Environmental Authorisation and Public Participation (NEMA)
Mining-related activities require environmental authorisation under NEMA, following an Environmental Impact Assessment (EIA) with public participation at its core. Proper participation is not a procedural nicety: it validates the environmental record of decision and, done well, strengthens the social licence to operate. Where leadership is disputed, participation can become performative unless managed with care - attendance is contested, minutes are challenged, and the quality of the record suffers. Independent facilitation and meticulous notice practices often make the difference between a defensible process and one vulnerable to review.
Suggested approach for Projects in Disputed or Complex settings
The following considerations may be of assistance and, if adopted, are likely to reduce the risk of procedural challenge while remaining faithful to the relevant case law:
- Recognition and representation: It may be prudent to conduct engagement in accordance with the prevailing recognition instruments (statutory framework and Gazette notices), while also affording an appropriate opportunity to other identifiable factions and land-use groupings to be heard. The basis upon which each group is engaged should be recorded, together with the legal footing for that engagement.
- Characterisation of rights: Early clarification of rights is advisable. Distinguish, to the extent the facts allow, between formal interests (title, lease, servitudes), informal land rights contemplated by IPILRA, and patterns of occupation and use. Where IPILRA rights may be affected, a pathway to consent compliant with IPILRA’s procedures should be contemplated; where they are not implicated, an enhanced model of consultation may be appropriate, with the underlying analysis retained on record.
- Process coherence under the MPRDA and NEMA: It would be preferable for consultation under the MPRDA and public participation under NEMA to be conducted in a coherent manner, so that affected stakeholders receive consistent information and can observe how environmental and socio-economic issues are addressed. Fragmented or inconsistent processes tend to attract scrutiny.
- Procedural safeguards and the evidentiary record: Consider the use of an independent facilitator where factional disputes impede orderly proceedings. Attendance protocols, translation where necessary, and contemporaneous verification of minutes can enhance credibility and reduce the scope for later dispute on the factual record.
- Clarification from competent authorities: Where genuine uncertainty exists regarding recognition or representivity, written guidance from the competent provincial or national authority may be sought. Given the economic and community interests at stake, formal clarification is generally preferable to informal assurances.
This approach does not predetermine the outcome of any recognition dispute. It does, however, assist in demonstrating - to a court, regulator, and potential financiers - that the proponent has pursued an inclusive, lawful and proportionate process commensurate with the rights engaged.
Social and Labour Plans, Royalties, and ESG Accountability
SLPs and community benefit structures are only effective if they can be administered despite leadership contests. Project companies should stress-test SLP delivery mechanisms (trust deeds, governance, beneficiary identification, and grievance resolution) to function in periods of dispute. Similarly, royalty-linked social spending and ESG reporting should be designed to survive leadership turnover. Investors and lenders increasingly ask for evidence of free, prior and informed participation and of outcomes, not just activity; robust process design now reduces reputational and financing risk later.
Policy Alignment: A Focused Fix
A narrow legislative alignment would have outsized benefits: Clarify when IPILRA consent is triggered in the mining context; how consent is to be obtained where recognition is unsettled; and how that standard interfaces with the MPRDA’s consultation duty and NEMA participation. The objective is not to lower protection for right-holders but to codify the pathway so that applicants, regulators and communities can proceed on known timelines and with clear documentation standards. Predictable rules improve compliance quality and accelerate delivery of community commitments.
Practical Implications for Project Teams
For project teams, it may be prudent to begin with a documented assessment of formal and informal rights - indicating, where relevant, whether IPILRA consent could arise - and to proceed on the basis of a single, phased engagement plan that aligns MPRDA consultation with NEMA participation. The process is typically strengthened by a contemporaneous and verifiable record of notices, attendance, submissions and follow-up. Where recognition is contested, an inclusive outreach posture (rather than reliance on a single faction) tends to reduce challenge risk. It may also be sensible to structure SLP mechanisms and dispute-resolution clauses, so they remain operable while recognition issues are unresolved.
Concluding Remarks
The jurisprudence is clear on principle that consultation under the MPRDA and consent under IPILRA serve different legal functions; and both may be required in a single project depending on impact. The challenge is execution in settings where community leadership is contested and where environmental authorisation depends on credible participation.
A methodical, inclusive approach - anchored in the current recognition instrument, grounded in an early rights analysis, and integrated across MPRDA and NEMA - reduces litigation risk, protects communities’ substantive rights, and improves the chances of delivering projects on time and on budget.
