| 13.1 |
Legal representation |
An applicant or a holder of a prospecting right, mining right or mining permit shall where feasibly provide financial assistance to affected landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities to pay for the appointed competent legal representation in the dispute resolution processes.
| 13.2 |
Party to Party dispute resolution process |
If there is a dispute about any aspect of the resettlement, an applicant or a holder of a prospecting right, mining right or mining permit shall endeavor to resolve the dispute amicably through engagements and mutual agreement with affected landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities. In this regard an applicant or a holder of a prospecting right, mining right or mining permit shall:
| (a) |
Create a grievance management mechanism and an effective, formal, and structured grievance procedure to track and attend to project and resettlement-related grievances from the start of resettlement planning. |
| (b) |
Affected landowners, lawful occupiers, holders of informal and communal land rights, mine communities and host communities should be informed and receive continuous communication about grievance procedures. |
| (c) |
Identify a site or community-based location where grievances can be received in writing. |
| (d) |
Response time to grievances received is critical, particularly once a commitment is made to respond within a certain time period. Management of grievances can be a time-intensive activity, and may require a full-time, dedicated staff member to be responsible for receiving, documenting, and processing grievances. |
| (e) |
Emphasis on locally appropriate grievance resolution mechanisms (e.g., through traditional leaders or local structures) can result in conflict being handled faster and at a lower cost. Ensure that every complaint has an internal "owner" who is responsible for ensuring that it is effectively closed out. |
| (f) |
Monitor and close out complaints on the basis of "outcomes" not just by recording that a corrective action has been completed. At a minimum verify whether the complainant was satisfied with the corrective action or not and check whether they were happy with the process. |
If a resettlement related dispute cannot be resolved through the party-to-party dispute resolution process and grievance mechanisms and procedures the applicant or a holder of a prospecting right, mining right or a mining permit shall notify the Regional Manager about the dispute and the Regional Manager shall initiate a negotiation process as contemplated in section 54(3) of the MPRDA.
In this regard the Regional Manager shall:
| (a) |
Constitute a negotiation team comprising representation from all affected parties (the applicant, the right holder, representatives of affected community/ies, traditional leadership etc). |
| (b) |
Develop Terms of Reference for the negotiation team with clear parameters regarding the role of the team, scope of its work, meeting dates and times and timeframes to resolve the dispute. |
| (c) |
Require all affected parties to submit all relevant information (documents, agreements etc) that pertains to the dispute. |
| (d) |
Chair the meetings as per the terms of reference objectively with a view to facilitate a speedy resolution of the dispute. |
| (e) |
Ensure that the meetings quorate and that every party is represented and mandated. |
| (f) |
Refer complicated matters to the Deputy Director General, Director General or the Minister where warranted. |
| 13.4 |
Formal mediation, arbitration, and conciliation process |
If a resettlement related dispute cannot be resolved through Regional Manager led process, parties to the dispute may refer the matter to an arbitration or conciliation process in terms of applicable legislation (Arbitration Act and Conciliation Act).
The referral must take place within a reasonable time and the conciliation or arbitration process shall be undertaken and concluded within reasonable time.
Parties to a resettlement dispute are encouraged to resolve matters trough engagement, however if a resettlement dispute cannot be resolved through the party-to-party process, the Regional Manager led process and the conciliation or arbitration process, the aggrieved party may take the dispute to the competent court within a reasonable period of time.
Housing Development Agency Act, 2008
