The Constitutional Court has reminded us in the context of mineral rights that a statutory provision must be interpreted in accordance with the spirit, purport and objects of the Bill of Rights (s 39(2)) and consistently with the Constitution and consistently with international law (s 233), and the courts must apply customary law when that law is applicable.

The question in Maledu and others v Itereleng Bakgatla Mineral Resources (Pty) Ltd and Another was whether the respondents as holders of the rights to mine for platinum on a farm were bound to use the provisions of section 54 of the Mineral and Petroleum Resources Development Act before getting a court order to eject the applicants with a right to occupy the land.

It was held that the fact that section 54 provided a possible remedy (under the supervisory role and powers of the regional manager), the rights holders could not resort to an ejectment order without first following the available remedy. The order evicting the applicants was set aside.