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Competing preferent community prospecting rights: a nonchalant custodian?

Olivier, Nic, Williams, Clara and Badenhorst, Pieter 2017, Competing preferent community prospecting rights: a nonchalant custodian?, Potchefstroom electronic law journal, vol. 20, pp. 1-34, doi: 10.17159/1727-3781/2017/v20i0a1213.

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Title Competing preferent community prospecting rights: a nonchalant custodian?
Author(s) Olivier, Nic
Williams, Clara
Badenhorst, PieterORCID iD for Badenhorst, Pieter orcid.org/0000-0001-6012-6316
Journal name Potchefstroom electronic law journal
Volume number 20
Start page 1
End page 34
Total pages 35
Publisher North West University South Africa
Place of publication Potchefstroom, South Africa
Publication date 2017
ISSN 1727-3781
Keyword(s) mineral resources
prospecting rights
traditional communities
Summary 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.
Language eng
DOI 10.17159/1727-3781/2017/v20i0a1213
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Copyright notice ©2017, The Authors
Free to Read? Yes
Use Rights Creative Commons Attribution licence
Persistent URL http://hdl.handle.net/10536/DRO/DU:30097555

Document type: Journal Article
Collections: Law
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Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.