Latest news with #OwenRogers
Daily Maverick
5 days ago
- Politics
- Daily Maverick
Constitutional Court ruling a victory for farm dwellers' grazing rights
In a unanimous judgment that has been hailed by some as a progressive step for farm dwellers and opposed by others as a threat to commercial agriculture, the Constitutional Court has set a powerful precedent on the interpretation of grazing rights under the Extension of Security of Tenure Act. The Constitutional Court has handed down a unanimous judgment on an appeal seeking to overturn a ruling on the right to graze cattle under the Extension of Security of Tenure Act (Esta). matter, involving three brothers on a farm owned by the Moladora Trust in North West, first landed in the Land Claims Court (LCC) in 2022. It began when the owners of the farm sought to remove siblings Magalone, Topies and Dikhotso Mereki from property once occupied by their late mother, who had been given permission to graze five cows. She died 'sometime before 2017'. Back then, the matter had served before Judge Susannah Cowen in the Land Claims Court. Judge Cowen has since been selected by the Judicial Service Commission to serve as deputy judge president of the newly established superior Land Court, which now oversees the work of the overburdened Land Claims Court. This court is bound to play a significant role in land reform legislation over the next few decades. Ripples Judge Cowen's judgment sent ripples through agricultural sectors as well as groups supporting farm workers' rights. AgriSA backed the Moladora Trust saying the issue posed a threat to commercial agriculture and food security, while activists, including Women on Farms, praised it. On 1 August, the Constitutional Court, in a judgment authored by Justice Owen Rogers, held that the matter indeed did concern the interpretation of the Extension of Security of Tenure Act (Esta) as contemplated in that famous and burning section 25(6) of the Constitution. This, said Justice Rogers, 'raises several arguable points of general public importance, especially relating to whether consent to graze cattle is a right protected by Esta'. The matter was referred to the Supreme Court of Appeal, which overturned Judge Cowen's ruling rejecting the Land Claims Court's legal approach to the matter and its order. However the ConCourt has ruled that it was 'in the interest of justice' to grant the appeal. Personal rights What exactly was being appealed, you may ask? In 2022 Judge Cowen found that grazing rights were 'personal rights' that arose from the landowner's consent rather than from the act. However, once consent had been granted, this became part of an occupier's tenure rights. There are, as is evident, deep nuances to each case and this was held in mind in the unanimous judgment by a coram of judges consisting of Acting Deputy Chief Justice Mbuyiseli Madlanga, acting justices Glen Goosen, Jody Kollapen and Ingrid Opperman and justices Steven Majiedt, Owen Rogers, Leona Theron and Zukisa Tshiqi. The Mereki brothers had applied to the ConCourt seeking to appeal against the Supreme Court of Appeal ruling, with the Moladora Trust and the Department of Agriculture and Rural Land Reform as respondents in the matter. Judge Cowen's 2022 judgment about the grazing rights of the brothers and the application of the Extension of Security of Tenure Act was viewed as highly progressive by some, and as unworkable by others. Besides, Judge Cowen had also tossed a reminder of 'colonial dispossession' into her ruling and added that 'a generous construction of Esta was to be preferred over a purely textual or legalistic one in this specific instance'. That the Mereki's mother had occupied the North West property prior to her death and had obtained permission to graze five cattle on the land was not in dispute. There are at present nine head of cattle. The trust had argued that this matter did not raise constitutional issues but rather was 'based on a dispute as to whether grazing rights had ever been granted to the brothers'. It noted that 'cattle' had since expanded to include goats, horses and sheep and stated that the siblings had not demonstrated any breach of their constitutional entitlements. It argued that grazing rights fell outside the act and that extending these would 'unjustifiably deprive landowners of their property'. Following legal steps The ConCourt noted that 'the matter had far-reaching implications for the rights of both owners and Esta occupiers and the Land Claims Court, as a specialist forum, was best placed to determine it at first instance'. The court had considered the historical background of dispossession and noted that section 25(6) of the Constitution had been enacted 'with the intention of securing tenure and guaranteeing rights associated with the use of land for cultivation or grazing'. Section 39(1) of the Constitution required that tenure under Esta be given 'a broad and generous interpretation, rather than a narrow one' noted Justice Rogers. The nuance of 'tacit consent' With regard to whether the Merekis had consent to keep cattle on the farm, Judge Cowen had assumed in the Trust's favour in 2022 that the siblings were not occupiers 'in their own right at the time of their mother's death and had derived their right of residence from their parents' status as employees'. She concurred with the trust that the consent which Mrs Mereki had to graze cattle was specific to her but found, however, 'that tacit consent in favour of the Mereki siblings could be inferred from the lengthy period which passed before the first removal notices were given in January 2018 and from the further lengthy period which passed before the second removal notices were given in May 2020'. A 'tacit consent finding' could also be based, noted Judge Cowen, on the presumption in section 3(4), that 'a person who has continuously and openly resided on land for a period of one year shall be presumed to have consent unless the contrary is proved'. The Land Claims Court had concluded that the trust had not been entitled to rely on common law to terminate the Merekis' right to graze cattle. With regard to this the ConCourt ruled that on the facts of the matter tacit consent had to be presumed, unless the trust adduced evidence to rebut this. 'The mere say-so of the owner did not suffice'. Since the trust had not claimed to have terminated the Merekis' consent in accordance with section 8, the application had to be dismissed. However, the Land Claims Court had granted the trust leave to appeal to the Supreme Court of Appeal, which found in its favour. Interpreting Esta In its judgment the ConCourt highlighted provisions that not only referred to residence but also to 'the use of land' in Esta. It held that law makers had not been consistent in their inclusion of 'use of land' when referring to the right to 'reside on land'. This inconsistency, the court held, had to be resolved in favour of an interpretation that broadened rather than diminished the security of tenure afforded to occupiers. It held that the farm owners 'experienced no injustice when required to comply with section 8 in instances where they sought to terminate consent to graze cattle granted to persons residing on the farm with consent'. On the question of whether the Merekis had consent to keep cattle, the court found that there had been no express consent, but that there had indeed been tacit consent. The Land Claims Court had also been entitled to make its findings, and there had been no procedural unfairness in the manner in which Judge Cowen had arrived at her conclusions. The order of the Supreme Court of Appeal was set aside and replaced with one dismissing the trust's appeal in that court against the Land Claims Court's order. The order was made with costs. DM
Daily Maverick
08-05-2025
- Business
- Daily Maverick
SA clams up on its hunt for oil in world's largest animal migration corridor
The South African government petroleum agency has refused to provide details of its controversial oil and gas exploration project slap-bang in the middle of the world's largest animal migration path. Millions of antelope migrate through the wetlands and grasslands of South Sudan every year in a global wildlife spectacle that outshines the more famous wildebeest and zebra migration of East Africa. Whereas the Serengeti-Mara migration in Tanzania and Kenya involves around 1.3 million wildebeest and several hundred thousand zebra and gazelles, the annual Great Nile migration in South Sudan boasts between five and seven million antelope species, including kob, tiang, gazelle and reedbuck. It is the 'largest known land mammal migration on Earth' according to the Convention on Migratory Species (CMS), a United Nations conservation treaty to safeguard the world's fast diminishing migratory species. And yet it is here — in the very heartland of this spectacular animal migration route and Africa's largest wetland (the Sudd) — that the South African National Petroleum Company (SANPC) is hoping to strike oil and to also support the development of new petroleum refineries and export pipelines at a potential cost of up to $1-billion (more than R18-billion). Project maps depict a three-phase exploration process that could lead to production wells, pipelines, refineries and other infrastructure located within the Badingilo National Park and large areas of riverine and grassland habitat used by animals circuiting between the Boma, Shambe and Gambella national parks. Last year, contractors were also invited to bid on redrilling an old oil exploration well in the Jonglei region. It was abandoned in 2007 after the drilling equipment got stuck 2,200m underground at Kedelai, in the environmentally-sensitive floodplain of the White Nile River. The more recent exploration project is part of an agreement between the South Sudan government's Nile Petroleum company and South Africa's Strategic Fuel Fund (SFF) — now part of the newly established SANPC. Various feasibility studies and exploration projects have been rumbling on behind the scenes since former energy minister Jeff Radebe announced in 2019 that South Africa and South Sudan had signed an exploration and production sharing agreement and were engaged in talks to set up a 60,000 barrel per day refinery to supply oil products to the local market in South Sudan, as well as to secure exports to Ethiopia and other neighbouring countries. A government media release at the time stated that the SA Department of Energy had ' pledged to invest $1-billion into South Sudan's petroleum industry, with the aim of securing affordable energy supplies for South Africa'. That announcement came shortly before High Court Judge Owen Rogers found that attorney and former acting SSF chief executive Sibusiso Gamede had been paid more than R2,6-million in bribes by companies in Dubai and elsewhere for his role in facilitating the sell-off of South Africa's strategic stock of 10 million barrels of crude oil early in 2016. Radebe attempted to backpedal swiftly on the potentially massive costs of the South Sudan venture after the Sunday Times published a news article in March 2019 under the headline: 'Jeff Radebe's dodgy $1bn oil deal'. In response, Radebe issued a detailed statement in which he said: 'The stated $1-billion is the estimated cost of the full project including the oil block, pipeline and refinery, which will be spread over a period of 10 years. A project of this magnitude passes through various phases of approval and execution.' Recalling the ANC's historic relationship with the Sudanese People's Liberation Army in fighting for their respective political liberations, Radebe said that the $1-billion was just 'an indicative figure at this stage. 'As with similar projects of this nature, upon completing the feasibility study, the project has a potential to attract other strategic partners and/or investors, which may include South Sudanese and South African companies.' Read Radebe's full response to that article here. Daily Maverick has requested details of the state entity's total expenditure in the South Sudan exploration venture over the last six years, but SANPC spokesperson Jacky Mashapu did not provide any figures. Daily Maverick also requested copies of any environmental and social impact assessment (ESIA) reports on the exploration project, at least one of which was commissioned by the SFF, but Mashapu asserted that these reports were 'confidential'. And the SFF declined to provide any details of a recent agreement it signed with the British-based Wildcat Petroleum group (which published a statement though the London Stock Exchange on 20 March confirming that it had signed a collaboration agreement with the SFF to 'evaluate' the South Sudan petroleum assets recently relinquished by the Malaysian multinational oil and gas company Petronas). In a brief statement in August 2024, Petronas attributed its decision to bail out of South Sudan to long-term investment strategies 'amid the changing industry environment and accelerated energy transition'. But Wildcat chairperson Mandhir Singh hailed the new deal with South Africa as 'excellent news for Wildcat in its endeavours to secure a deal in South Sudan. 'A tie-up with the SFF can only enhance Wildcat opportunities as the SFF is one of only a handful of companies that has successfully signed a petroleum deal in South Sudan since the country gained independence. They have a well-established technical team in Juba which can assist Wildcat in any technical work it needs to conduct.' However, Mashapu said the Wildcat deal was subject to a non-disclosure agreement and 'as a result, we cannot disclosure [sic] anything for now.' Regarding our request for a copy of the environmental and social impact report, Mashapu stated: 'The report is confidential and as it is yet not published by the Ministry of Petroleum (MOP), South Sudan, on their website, hence the content cannot be provided for any publication and use. 'The study and analysis of samples (for the first phase of the exploration project) is completed and results were presented and approved by our partner, Nilepet. The communication is being sent to MOP South Sudan to provide us a time slot suitable so the team can present and submit the report to MOP for public consultation and approval.' (South Sudan's petroleum minister, Puot Kang Chol, was arrested two months ago, while Vice-President Riek Machar was also placed under house arrest after being accused of plotting rebellion against long-time political rival President Salva Kiir.) No details are available on who conducted the impact assessment study or how much it cost, though the South African taxpayer-funded SFF advertised the contract in October 2023, stating that tender documents could be downloaded from the National Treasury's e-Tender publication portal. The Secretariat of the Bonn-based Convention on Migratory Species (CMS) confirmed that it had been unable to obtain a copy of the environmental impact study, while the South Sudan Wildlife Service head, General Khamis Adieng Ding, did not respond to requests for comment. 'We are aware that the ESIA study was conducted in May-July 2024, but unfortunately we have not seen it because the report has not been made public,' said a spokesperson for the CMS Secretariat. The CMS Secretariat has raised several concerns about the South African/South Sudan exploration project, which covers a massive 47,000km2 area known as Block B2, north of the capital, Juba. According to the CMS Secretariat, the Block B2 oil extraction plan 'poses a pressing concern' because it covers living spaces critical for both the kob and tiang migrations. 'Without careful and informed planning, the oil exploration set to begin in 2025 could seriously disrupt wildlife migration, increase human encroachment, and escalate illegal hunting. The rising incidence of illegal tiang harvesting along roads already shows how essential it is to plan infrastructure with wildlife protection in mind. 'Approximately five million kob and 400,000 tiang, alongside other hooved mammals also known as 'ungulates', undertake complex, long-distance journeys to access essential wet and dry-season habitats annually,' said the CMS, citing newly released migration maps developed by the Global Initiative on Ungulate Migration. Their routes take them between Badingilo and Boma National Parks in South Sudan. Some also migrate further north to Gambella National Park in Ethiopia, an important dry-season refuge, particularly for kob, from February to May. In response to these concerns, the SANPC said: 'We, as a responsible operator, will take due care for any interference in migration of fauna and flora regarding its magnitude, timing, and preventative measures which are required to be taken to make minimum impact on their movement. The issue was well dealt [with] in the ESIA report, and mitigation plans are being proposed, which will be adhered to while operating in the area.' According to a Unesco World Heritage Site nomination fact sheet, the Sudd has a very high carrying capacity for wild herbivores that depends on unconstrained foraging movement across an intact and functioning landscape. As a result, the Sudd and adjoining wetlands and grasslands are still able to support two of the largest ungulate migrations in the world, covering an area seven times larger than Serengeti National Park. But if South Africa strikes oil, that picture is almost certain to change. DM
