Competing Preferent Community Prospecting Rights: A Nonchalant Custodian?

  • Nic Olivier Professor Extraordinary North West University Potchefstroom South Africa
  • Clara Williams
  • Pieter Badenhorst
Keywords: mineral resources, prospecting rights, traditional communities

Abstract

Traditional communities that were precluded from the benefits and financial rewards of exploitation of the mineral resources of South Africa are afforded the opportunity to lodge an application with the Department of Mineral Resources (hereafter the department) to obtain a so-called preferent prospecting right (or mining right) in respect of land which is registered - or to be registered - in their name. An applicant on behalf of the community has to meet the requirements of section 104(2) of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). This in line with one of the objectives of the MPRDA of expanding the opportunities for historically disadvantaged persons, such as traditional communities, to enter into, and actively participate in, the mineral industry and to benefit from the exploitation of the nation's mineral resources (s 2(d)).  The Minister of Mineral Resources ((hereafter the minister), in his/her capacity as the custodian of the mineral resources of South Africa on behalf of the people of South Africa (s 3(1)), is, amongst others, by implication tasked with achieving, these objectives. The same applies to the department and its officials. However, this was unfortunately not the experience of a traditional community, the Bengwenyama-Ya-Maswazi community (hereafter the BYM community), who had to battle through two rounds of litigation with the minister, the department and persons and entities which promoted their own interests whilst attempting to convey the (false) impression that they were representing the community.

The subject of this discussion is the second round of litigation between the Bengwenyama-Ya-Maswazi Tribal Council and Genorah. The second round of litigation involved competing applications for preferent community prospecting rights in two related appeals heard together by the Supreme Court of Appeal (hereafter the SCA).  The first appeal  concerned preferent community prospecting rights on the farm Nooitverwacht (hereafter the Nooitverwacht appeal) and the second appeal involved preferent community prospecting rights on the farm Eerstegeluk (hereafter the Eerstegeluk appeal). The focus of the discussion is on the Nooitverwacht appeal, and references (where appropriate) will be made to the Eerstegeluk appeal. A number of related issues are also discussed – these include the distinction between prospecting rights and preferent community prospecting rights; the meaning of "... land which is registered or to be registered in the name of the community concerned" (with reference to restitution land, redistribution land, and community land acquired from own resources); and the changing legal landscape relating to community decision-making and consultation.

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Author Biography

Nic Olivier, Professor Extraordinary North West University Potchefstroom South Africa

Professor Extraordinary

Faculty of Law

North West University
Potchefstroom
South Africa

References

Bibliography

Literature

Badenhorst 2005 Obiter
Badenhorst PJ "Nature of New Order Rights to Minerals: A Rubikian
Exercise Since Passing the Mayday Rubicon with a Cubic Zirconium"
2005 Obiter505-525

Badenhorst and Olivier 2011 De Jure
Badenhorst PJ and Olivier NJJ "Host Communities and Competing
Applications for Prospecting Rights in terms of the Mineral and Petroleum
Resources Development Act 28 of 2002" 2011 De Jure 126-148

Badenhorst, Olivier and Williams 2012 TSAR
Badenhorst PJ, Olivier NJJ and Williams C "The Final Judgment" 2012
TSAR106-129

Humby 2012 PELJ
Humby T "The Bengwenyama Trilogy: Constitutional Rights and the Fight
for Prospecting on Community Land" 2012 PELJ 15(4) 166-231

Case law

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd (TPD)

(unreported) case number 39808/2007 of 18 November 2008

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd2011 3
BCLR 229 (CC)

Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 40
SA 113 (CC)

Bengwenyama-Ya-Maswazi Community v Genorah Resources (Pty)Ltd
2015 1 SA 219 (SCA)

Bengwenyama-Ya-Maswazi Community v Minister for Mineral Resources
2015 1 SA 197 (SCA)

Meepo v Kotze 2008 1 SA 104 (NC)

Minister of Mineral Resources v Mawetse (SA) Mining Corporation (Pty) Ltd
2015 ZASCA 82 (28 May 2015)

Legislation

Black Authorities Act 68 of 1951

Black Authorities Repeal Act 13 of 2010

Communal Land Bill, 2015

Communal Property Associations Amendment Bill, 2015

Constitution of the Republic of South Africa, 1996

Constitution of the Republic of South Africa 200 of 1993

Limpopo Traditional Leadership and Institutions Act 6 of 2005

Mine Health and Safety Act 29 of 1996

Mineral and Petroleum Resources Development Act 28 of 2002

Mineral and Petroleum Resources Development Amendment Ac49 of 2008

Mining Titles Registration Act 24 of 2003

Promotion of Administrative Justice Act 3 of 2000

Provision of Land and Assistance Act 106 of 1993

Restitution of Land Rights Act 22 of 1994

Restitution of Land Rights Amendment Act 15 of 2014

Traditional Leadership and Governance Framework Act 41 of 2003

Government publications Proc R109 in GN 15813 of 17 June 1994

Internet sources

Commission on Restitution of Land Rights 2015
http://tinyurl.com/gu3n8md
Commission on Restitution of Land Rights 2015 Strategic Plan 2015-2020
and Annual Performance Plan 2015/2016 Presentation to the Portfolio
Committee on Rural Development and Land Reforms 16 April 2015
http://tinyurl.com/gu3n8md accessed 10 June 2015

PMG 2015 http://tinyurl.com/zoms3mu
Parliamentary Monitoring Group 2015 Commission on Restitution of Land
Rights on Strategic and Annual Performance Plan 2015/16 16 April 2015
http://tinyurl.com/zoms3muaccessed 10 June 2015

North Gauteng High Court 2012 http://tinyurl.com/gthwylv
North Gauteng High Court 2012 Opposed Motions Roll Monday 6 August
2012http://tinyurl.com/gthwylv accessed 10 June 2015
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Published
2017-01-03
Section
Articles