Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others

JurisdictionSouth Africa
JudgeNgcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Mogeong J, Nkabinde J, Skweyiya J, Yacoob J and Brand AJ
Judgment Date30 November 2010
Citation2011 (4) SA 113 (CC)
Docket Number39/10
Hearing Date07 September 2010
CounselGJ Marcus SC (with IA Goodman) for the applicants. BE Leech for the first respondent. MP van der Merwe for the second to fifth respondents.
CourtConstitutional Court

Froneman J (Ngcobo CJ, Moseneke DCJ, Cameron J, Mogoeng J, G Nkabine J, Skwerua J, Yacoob J and Brand AJ concurring):

Introduction

[1] This case turns on the lawfulness of the grant to a company of a prospecting right on the land of another. This deceptively simple H statement of the ultimate legal issue at stake, though true, hides more than it reveals. First, it explains little of the invasive nature of a prospecting right on the ordinary use and enjoyment of the property by its owners. Second, it says nothing about the profoundly unequal impact our legal history of control of and access to the richness and diversity of this country's mineral resources has had on the allocation and distribution I of wealth and economic power. Lastly, it does little to illuminate the effect of past racial discrimination on the ownership of land.

[2] The applicants seek to set aside the grant of a prospecting right on their land to the first respondent by the State. On one level it is simply a dispute between an owner of land and a person who has been awarded J a prospecting right over that land. The owner of the land is, however, no

Froneman J (Ngcobo CJ, Moseneke DCJ, Cameron J, Mogoeng J, Nkabine J, Skwerua J, Yacoob J and Brand AJ concurring)

ordinary owner. It is a community that was previously deprived of formal A title to their land by racially discriminatory laws. Add to this the fact that the entity to which the prospecting right has been granted qualifies for treatment as a historically disadvantaged person, and it becomes apparent that the issues are more complex than the first sentence of this judgment conveys. B

[3] Equality, together with dignity and freedom lie at the heart of the Constitution. [1] Equality includes the full and equal enjoyment of all rights and freedoms. [2] To promote the achievement of substantive equality the Constitution provides for legislative and other measures to be made to protect and advance persons disadvantaged by unfair C discrimination. The Constitution also furnishes the foundation for measures to redress inequalities in respect of access to the natural resources of the country. [3] The Mineral and Petroleum Resources Development Act [4] (Act) was enacted amongst other things to give effect to those constitutional norms. It contains provisions that have a material impact on each of the levels referred to, namely that of individual D ownership of land, community ownership of land, and the empowerment of previously disadvantaged people to gain access to this country's bounteous mineral resources.

[4] Against this background, I will first set out the facts and the issues arising for determination. I will then refer to the legal framework within E which the issues should be assessed, before discussing and evaluating the issues within that framework. The conclusion and the remedies flowing from this will finally be dealt with. The parties' contentions and submissions will be set out in my evaluation and discussion of the issues, and will thus not be dealt with separately. In the end the issue to be decided narrows down to a question of administrative fairness. F

Parties

[5] The first applicant is Bengwenyama Minerals (Pty) Ltd (Bengwenyama Minerals). The second applicant is the Bengwenyama-Ye-Maswati Tribal Council, and the third to thirteenth applicants are the trustees of G the Bengwenyama-Ye-Maswati Trust. To the council and the trustees I shall refer as the community.

[6] The first respondent is Genorah Resources (Pty) Ltd (Genorah), previously known as Tropical Paradise 427 (Pty) Ltd. The second respondent is the Minister for Mineral Resources (the minister). The Department H of Mineral Resources was previously known as the Department of Minerals and Energy (the department). The third respondent is

Froneman J (Ngcobo CJ, Moseneke DCJ, Cameron J, Mogoeng J, Nkabine J, Skwerua J, Yacoob J and Brand AJ concurring)

A the director-general of the department (the director-general), the fourth respondent is the regional manager of the department, Limpopo Region (the regional manager), and the fifth respondent is the deputy director-general of the department (the deputy director-general). These officials represent, at different levels, the department. The Bengwenyama-Ye-Maswati B Royal Council, an intervening party, was admitted as the sixth respondent in the North Gauteng High Court, Pretoria (the High Court), but plays no material role in these proceedings.

Facts

C [7] Genorah was awarded prospecting rights over five properties in September 2006, including two properties, Eerstegeluk and Nooitverwacht, on which members of the community reside. The community has enjoyed uninterrupted occupation of Nooitverwacht for more than a century. It was dispossessed of Eerstegeluk in 1945, but has successfully lodged a land claim for its formal restoration to the community. Despite D some earlier skirmishes, it is now accepted that the community holds both properties (the farms) as owner for the purposes of the application of the Act. [5] The farms are situated in the Limpopo province.

[8] It became apparent quite early on that the community had an interest E in acquiring prospecting rights on the farms. On 2 December 2004 it lodged objections in writing to the department against the granting of applications for prospecting on the farms (and another property) on the ground that the community wanted to be accommodated meaningfully in the projects. When no acknowledgement of receipt of this letter was received, the community addressed a further letter to the department F dated 19 January 2005 in which it noted that no acknowledgement of receipt had been forthcoming, but in which it thanked the department for the advice it had received. No prospecting rights over the farms were granted in respect of these applications.

[9] Genorah's interest in obtaining prospecting rights over the community's G farms surfaced early in 2006. A representative of Genorah visited the traditional leader of the community, Kgoshi Nkosi, on 3 February 2006 and informed him that Genorah wished to speak to him about certain prospecting applications. There is a dispute on the papers about what exactly transpired at this meeting, but it is common cause that the H representative left a prescribed consultation form. The form simply provides blocks to be ticked 'yes' or 'no' to indicate whether there are any objections to the prospecting applications. If the answer is 'yes', a further five lines are provided to detail the 'full particulars' of the objection. The I form was never signed by anyone on behalf of the community.

Froneman J (Ngcobo CJ, Moseneke DCJ, Cameron J, Mogoeng J, Nkabine J, Skwerua J, Yacoob J and Brand AJ concurring)

[10] On 13 March 2006 the Kgoshi replied to Genorah in the following A terms:

'Subject: Your Notice and Consultation application for a prospecting right on Nooitverwacht 324 KT to Bengwenyama.

Response:

Your letter that notifies us or rather consults us about your B interest in our land had been received. As your letter requires us to enable you to comply with relevant provisions of the Act, as well as completion/filling of the form attached, we would like to advise that Bengwenyama-ya-Maswati would do that, once we know each other. For now, we don't know each other well. The form that you request us to complete seems to be more binding, as it does not fall within C the definition of our standard letter that we give to Companies that apply for similar rights. Bengwenyama-ya-Maswati has an interest in the Property you applied for. We submitted an application for prospecting on three farms including Nooitverwacht 324 KT. The good luck wished to ourselves and other companies in an attempt of getting similar rights are also wished to your Company.'

To this old-worldly and courteous response Genorah did not reply. D

[11] No consultation took place with the community in respect of Eerstegeluk at all. Genorah approached another tribal authority in this regard and was informed that the members of the community also occupied this property.

[12] Genorah had submitted its application for prospecting rights over E five properties, including the farms, to the department on 6 February 2006. It supplemented its application on 17 February 2006 by referring to consultation with the community in the following terms:

'Nooitverwacht 324 KT: Tropical Paradise introduced themselves to the F Tribal Authority and Kgoshi Nkosi on 3 February 2006 but have not received a response to date.'

[13] On 20 February 2006 the department informed Genorah that its application had been accepted for further processing and that it was required to: submit an environmental management plan; consult with G the landowner or lawful occupier of the land, as well as with other interested and affected parties; and to report the results of the consultation to the regional manager. [6] The environmental management plan was submitted by Genorah on 21 April 2006, but, despite the letter addressed to it by the Kgoshi, dated 13 March 2006, Genorah made no further attempt to engage or consult with the community. Under the H requirements for the environmental management plan, consultation in that regard also had to take place with affected persons, but none took place with the community.

[14] The community pursued its own application for prospecting rights I through Bengwenyama Minerals. On 10 May 2006 Bengwenyama Minerals addressed a letter to the department titled 'Application for Prospecting Permit'. The letter recorded that Bengwenyama Minerals was the applicant, provided details of the type of minerals involved, of its

Froneman J (Ngcobo CJ, Moseneke DCJ, Cameron J, Mogoeng J, Nkabine J, Skwerua J, Yacoob J and Brand AJ concurring)

A relationship with the community, and of its...

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91 practice notes
  • Justice Alliance of South Africa v President of the Republic of South Africa and Others
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    • Invalid date
    ...2006 (3)SA 247 (CC) (2005 (6) BCLR 529): referred toBengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltdand Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229): referred toBiowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232(CC) (2009 (10) BCLR 1014): dic......
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    ...th e Republic of South Africa v Grootboom 2001 1 SA 46 (CC) paras 40; 93; Bengwen yama Minerals (Pt y) Ltd v Genorah resources ( Pty) Ltd 2011 4 SA 113 (CC) para 5.175 “Redist ribution” here is not used in t he technical sense appl icable to the land reform proc ess, but as a synonym for “r......
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    ...(2002 (9) BCLR 891; [2002] ZACC 2): F considered Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): referred Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4)......
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    • Invalid date
    ...they did not withdraw it (see [120]). Cases cited Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others B 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): dictum in para [85] Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC......
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84 cases
  • Justice Alliance of South Africa v President of the Republic of South Africa and Others
    • South Africa
    • Invalid date
    ...2006 (3)SA 247 (CC) (2005 (6) BCLR 529): referred toBengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltdand Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229): referred toBiowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232(CC) (2009 (10) BCLR 1014): dic......
  • Department of Transport and Others v Tasima (Pty) Ltd
    • South Africa
    • Invalid date
    ...(2002 (9) BCLR 891; [2002] ZACC 2): F considered Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): referred Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4)......
  • Swart v Starbuck and Others
    • South Africa
    • Invalid date
    ...they did not withdraw it (see [120]). Cases cited Bengwenyama Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and Others B 2011 (4) SA 113 (CC) (2011 (3) BCLR 229; [2010] ZACC 26): dictum in para [85] Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC......
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1 firm's commentaries
  • Publication Of The Draft Mine Community Resettlement Guidelines, 2019
    • South Africa
    • Mondaq Southafrica
    • 19 December 2019
    ...our view, there are a number of potential issues with the Guidelines. In Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC), the Constitutional Court (“CC”) held that one of the purposes of consultation with a landowner is to see whether some accommodation is po......
6 books & journal articles
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    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...th e Republic of South Africa v Grootboom 2001 1 SA 46 (CC) paras 40; 93; Bengwen yama Minerals (Pt y) Ltd v Genorah resources ( Pty) Ltd 2011 4 SA 113 (CC) para 5.175 “Redist ribution” here is not used in t he technical sense appl icable to the land reform proc ess, but as a synonym for “r......
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