The Bengwenyama Trilogy: constitutional rights and the fight for prospecting on 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.