The Community-Preferent Right to Prospect or Mine: Navigating The Fault-Lines of Community, Land, Benefit and Development in Bengwenyama II
Authors Tracy Humby
Affiliations: Associate Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 133 Issue 2, 2016, p. 316 – 351
Section 104 of the Mineral and Petroleum Resources Development Act 28 of 2002 allows for a community to obtain a preferent prospecting or mining right to land registered or to be registered in the name of the community concerned, provided certain additional conditions are met. While this is ostensibly a means to promote local and rural development and the social upliftment of communities affected by mining, s 104 is hampered by a number of interpretive difficulties centring on the meaning of ‘community’, land ‘to be registered’ in the name of the community, the accrual of ‘benefits’, and ‘development and social upliftment’. This article examines the extent to which these interpretive difficulties have been resolved by the decisions of the Gauteng North High Court and the Supreme Court of Appeal in recently decided cases launched by the Bengwenyama-ye-Maswazi community (Bengwenyama II). While the courts have clarified a few of the interpretive difficulties, a number of ambiguities and concerns remain.