Shabangu in prospecting rights tussle

2011-04-23 11:16

The Department of Mineral Resources is being dragged back to court after it re-awarded prospecting rights on a community’s land to an international mining company – this after the Constitutional Court last year set aside those rights.

Last November the Bengwenyama-ye-Maswazi and their commercial entity, Bengwenyama Minerals, made legal history when the Constitutional Court set aside, with costs, a prospecting permit that had been awarded to Genorah Resources.

The Constitutional Court ruled that the Bengwenyama-ye-Ma-swazi had to be properly consulted about the granting of prospecting rights on their two farms, Eerstegeluk and Nooitverwacht, in the platinum-rich mining valley close to the northern Mpumalanga town of Steelpoort.

When it set aside the prospecting rights, South Africa’s highest court ­lambasted the department for not properly consulting the community of about 20 000.

The Bengwenyama-ye-Maswazi Tribal Council and its partners formed a new company, Miracle Upon Miracle Investment (MUM), while Genorah prepared a new ­application in partnership with the Roka Phasha Tribal Authority for Eerstegeluk and Nooitverwacht, with what Genorah terms “the Royal Council of the Bengwenyama-ya-Maswati”.

Miracle Upon Miracle Investment and Genorah [in partnership with the Roka Phasha Tribal Authority] have both applied for new rights under a section of the law which insists that the community must benefit.

Now the Bengwenyama-ye­Maswazi Tribal Council has learned with shock that Minister of Mineral Resources Susan Shabangu ­has re-awarded prospecting rights on the two farms to Genorah and its tribal partners.

MUM claims the application ­approval process was riddled with irregularities, among them:
» The department’s letter calling on them for an environmental management plan gave them a deadline of February 30 2011 – which is not on the calendar;

» The award letter was signed by the minister on February 28, before they were even due to comply with providing the environmental management plan; and

» The letter awarding MUM half the rights to Nooitverwacht and ­refusing it the rights to Eerstegeluk was not faxed to them or their lawyers, which left them with less than 30 days to appeal.

MUM chief executive Mike ­Nahon says the letter jointly awarding the prospecting rights on Nooitverwacht and rejecting the claim to Eerstegeluk was signed by Shabangu on February 28. “The law allows us only 30 days to object and now we have lost over half a month; but we will most certainly appeal to the court,” he said.

Makhosini Joel Nkosi, a member of the royal family and deputy chairperson of the Bengwenyama-ye-Maswazi Traditional Council, said neither Genorah nor the ­department had consulted his community. He called the Bengwenyama siding with Genorah “imposters” and has laid charges of fraud against them.

Independent analyst and director of the Federation for a Sustainable Environment, Dr Koos Pretorius, said the saga was astounding.

“What information could the minister possibly have to contradict the Constitutional Court’s ­acceptance that the Bengwenyama-ya-Maswazi is the right ­community to consult? It clashes directly with the court.”

In the letter Shabangu wrote to Nkosi’s representative, she said the Bengwenyama’s application for rights on Eerstegeluk “have been refused on the grounds that your community is neither the ­registered land owner nor the ­occupier of the farm”.

This is despite the fact that the Constitutional Court recognised that the Bengwenyama-ye-Maswazi community “has enjoyed ­uninterrupted occupation of Nooitverwacht for more than a century. It was dispossessed of Eerstegeluk in 1945 but had successfully lodged a claim for its formal restoration to the community. Despite some earlier skirmishes, it is now accepted that the community holds both properties.”

Pretorius said the department had set itself up for a new legal ­battle by signing its decision on the day that parties still had to comply with ­requirements.

“The minister could not possibly have applied her mind to the environmental management plan ­within one day,” said Pretorius.

Bapedi paramount chief Kgosi Kgolo Sekhukhune, who heads the Bengwenyama-ye-Maswazi and Roka Phasha tribes, stood firm on his support for the Genorah application, urging the communities to “enjoy the good fortune extended by the department”.

Department spokesperson Bheki Khumalo said it was not able to comment this week due to the complexity of the issue.

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