Written by Mikaella Bodeux

There is a long history of conflict between farmers and entities looking to prospect and mine on agricultural land in South Africa. However, the complexities involved in navigating this conflict have rarely been addressed through legislative measures.  The recently promulgated Preservation and Development of Agricultural Land Act (the Act) may redress this issue by providing greater clarity on where and when agriculture should be prioritised over other activities, such as mining.

Protected Agricultural Land

As its name suggests, one of the main objectives of the Act is to preserve agricultural land. The primary mechanisms through which the Act achieves this are provided for in sections 11 and 16 which respectively set out the procedure for the declaration of protected agricultural areas and provide for the Minister of Agriculture (the Minister) to declare certain listed activities which may not commence on agricultural land and protected agricultural areas without prior authorisation. Land which falls within a protected agricultural area is to be preserved against non-agricultural uses. While it remains for the Minister to declare which specific activities will be listed under section 16, one can postulate that mining activities may become listed under this section, at least in respect of protected agricultural areas, owing to the negative long-term impacts which mining activities can have on agricultural land.

National and provincial protected agricultural areas will need to be declared as such in the Government Gazette and will only encompass those areas of land with high agricultural value with significantly higher levels of productivity. Prior to an area being declared as a protected agricultural area, notice to declare the protected agricultural area must first be published and there must be an opportunity for consultation with the public as well as with the municipality or municipalities within which the area falls.  Notably, the Act does not elaborate on any other factors which should be taken into account by the Minister or the MEC, as the case may be, in reaching a decision to declare a protected agricultural area, nor whether any other organs of state or Departments should specifically be consulted as part of this process.

Similarly, listed activities will have to be declared as such in the Government Gazette and will only include those activities which stand to have a permanent negative impact on agricultural potential, capability, suitability or use of agricultural land. Prior to an activity being listed, notice of the proposed listing must be published and there must be an opportunity for public consultation. Notably, where a listed activity falls under the jurisdiction of another minister, such as the Minister of Mineral Resources, the Minister is specifically required to consult with the relevant minister. There are no further guidelines contained within the Act on this consultation process and, in particular, which minister would have the ultimate say in the matter.

Lessons from Similar Provisions

The National Environmental Management: Protected Areas Act (NEMPAA) also provides for the designation of protected areas, but in the context of areas which are of particular ecological importance. The Mabola Protected Environment, which is protected under NEMPAA, has been at the centre of a string of cases instituted by Uthaka Energy with the intention of mining coal in the area, including two attempts to appeal to the Constitutional Court. This proposed project demonstrates the conflicts which arise when weighing up the importance of preserving a protected area versus approving certain mining applications.

Since its amendment in 2023, NEMPAA allows for an exemption so that mining can take place within protected areas – but only with the written consent of the Minister of Forestry, Fisheries and the Environment. The Act adopts a similar approach, allowing for the granting of authorisations for listed activities within protected agricultural areas. The authority responsible for considering such applications is either the Director-General or the Head of Department (HoD) of the national or provincial office of the Department of Agriculture, as the case may be, whose mandates include the preservation of agricultural land. There is no requirement for the Director-General or HoD to consult with the Department of Mineral Resources, whose mandate would require them to promote the exploitation of minerals, when considering such an authorisation.

The Act clearly heralds a more pro-active approach by the Department of Agriculture to preserve agricultural land compared to what we have seen in the past, particularly in respect of protected agricultural areas. It remains to be seen whether the protection of agricultural land under the Act and its future regulations will result in the Department of Agriculture being at loggerheads with the Department of Mineral Resources and how any such conflicts will be resolved.

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