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.