20 Potchefstroom Elec. L.J. 1 (2017)

handle is hein.journals/per20 and id is 1 raw text is: 

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Nic Olivier,
Clara Williams and
Pieter Badenhorst


North-West University, Potchefstroom
University of Pretoria,
Nelson Mandela  Metropolitan
South Africa

clara.williamsOOl @gmai.com

Date published

3 January 2017

Editor Prof W Erlank

How  to cite this article
Oliver N, Williams C, Badenhorst P,
'Competing  Preferent Community
Prospecting Rights: A Nonchalant
Custodian? PER/PELJ 2017(20) -
DO   http://dx.doi.org/10.17159/1727-


DOI  http://dx.doi.org/l0. 17159/1727-


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

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.


Mineral resources;  prospecting  rights; traditional communities.

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