Article Sidebar
Article Details
This work is licensed under a Creative Commons Attribution 4.0 International License.
Copyright in all material published in PER/PELJ vests in the author, provided that authors grant, by submission of their contributions, permission that their contributions may be shared and adapted without restriction. An author furthermore agrees that the same contribution may not be published elsewhere without the written permission of the editor.
Anyone gaining access, electronically or otherwise, to a contribution to PER, may quote from such contribution, use the intellectual content thereof, share and adapt it, but subject to the following conditions:
you must give appropriate credit, provide a link and indicate if changes were made; and
the copyright of the author(s) may not be infringed in any way.
Main Article Content
The <i>Bengwenyama</i> Trilogy: Constitutional Rights and the Fight for Prospecting in Community Land
Abstract
Although developments subsequent to the judgment have undermined the value of the decision for the community involved, the Constitutional Court's judgment in the Bengwenyama matter provides a welcome precedent on the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002 that deal with the existence of an internal appeal, the nature of consultation with interested and affected parties, the role of environmental considerations in the granting of prospecting rights, and the procedural obligations of the DMR in relation to the community preferent right to prospect or mine. However, its deliberations on the duty to consult and particularly the procedural implications of the community preferent right to prospect do not go far enough into the dynamics underlying the implementation of the law, or tackle the problematic linkages between the MPRDA, the law relating to communal land tenure, and the processing of land claims.
KEYWORDS: Mineral and Petroleum Resources Development Act; Bengwenyama; mining and communities; preferential prospecting right
