so what does it all mean, page-83

Sorry guys -this is a long post but for a reason

ian Shapiro is saying some truths but not all the truths

There are some facts that are out there that have to be considered before we begin dumping in panic -

1) one of the bit that has been played out is - Anglo and ARMs so called 'new case' - the following Reuters news summarises the outcome of this issue

Anglo Platinum Limited Announces Settlement Of Anglo Claim
Tuesday, 12 Feb 2008 06:01pm EST

Anglo Platinum Limited, announced that the Company, Nkwe Platinum Limited (Nkwe), Genorah Resources (Pty) Limited (Genorah) and African Rainbow Minerals Limited (ARM) regarding the settlement in respect of prospecting licences over the farms De Kom 252KT, Garatouw 282KT, Hoepakrantz 291KT, Nooitverwacht 324KT and Eerste Geluk 327KT (the Farms). Following several meetings between Anglo Platinum, Nkwe, Genorah, ARM and the Department of Minerals and Energy (the DME) collectively (the Parties), the Parties are announced that agreement has been reached to settle the dispute that had arisen over the award of prospecting licences over the Farms by the DME. In terms of the agreement reached: The parties will abide by the original decisions of the DME, firstly in refusing the applications submitted by Anglo Platinum and secondly in awarding of prospecting licences to Genorah; The legal proceedings instituted by Anglo Platinum or its subsidiary companies, which were suspended in 2007, will be discontinued; and Anglo Platinum, Nkwe, Genorah and ARM will enter into commercial negotiations to consider joint exploitation of their respective mineral resources. The Parties are pleased that this matter has been amicably resolved and removes the uncertainty attached to the dispute, particularly for Nkwe and Genorah.

Why Anglo settled is not because they loved Genorah but because they had no choice because
1)DME had indicated that it was favouring a BEE applicant as per the new MRPDA legistlations

2)Section 17 subsection(2)b (iii)of MRPDA (the act) states that a minister could refuse an application "if the granting of right resulted in concentration of the resource in question under the control of the applicant" -at the time Anglos annual reports stated that it had control on 65 -75% of south Afrias PGM deposits
3)The Monopolies commission rules were also strongly in Genorahs favour

So I dont know where the newfound idea to reapply goes to -
If you go to 2004 you can see how Anglo pulled the plug on Nkwe on Elandsfontein - so I see it fit that Nkwe decided not to jointly develop its projects with Anglo

The second bit That Mr Shapiro harps on about is - that "There was no consultation at all with regard to Eerstegeluk" - when I read that I thought that it was totally unacceptable for Genorah to have done that - but its when i dug further that i realised why - Eerstegeluk is not a property of the Bengwenyama community -
This extract from the 2008 high court order explains it in the best detail

"There is a difference between the farms Nooitverwacht and Eerstegeluk. Eerstegeluk according to the aforesaid Govt Notice R 9 of the Lebowa Government of 25 May 1990 fell within the area of jurisdiction of the Rhoka-Phasha Phokwane, Local Government whereas Nooitverwacht was the property of the community. The first respondent submitted a document entitled: Consultation with Lawful Occupier in respect of Application for a Prospecting Right. It was in respect of Eerstegeluk, De Goedeverwachting15 and Nooitverwacht. It shows that some people of Kgosi Nkosi squat on Eerstegeluk and that Nooitverwacht Farm belongs to Kgosi Nkosi. It also indicates that the Ga Phasha Tribal Authority had no objection to the grant of the prospecting right. There is no dispute on the papers that Mr. Mphalele together with Mr. van Schalkwyk and Mr. Mohale visited chief Nkosi on 3 February 2007. It can be accepted that the chief was informed that an application would be made for prospecting rights over the relevant properties. It can be accepted that the chief and Mr. Mphanga made it clear that they did not support the application. It is clear that at all relevant times and as a result of a visit to the chief the chief and Mr. Mphanga were aware of Genorahs intention to apply for prospecting rights over the relevant properties." this is probably why they have drilled Eerstegeluk

Now comes the next question -consultation on Nooitverwacht - unlike what I thought initially - quite surprisingly the MRPDA does not require a consent to be provided from the owner of the land. Section 16 subsection 4 of MRPDA states that the applicant must consult and notify the owner/lawful occupier or affected party of the plan to prospect and submit the results to DMR -which is what Genorah seems to have done - all judges in the past have stated this - beacause the aggrieved party can protest with DMR - But Bengwenyama minerals instead submitted another section 16 application to prospect - this is why previous judges accepted this procedure of the DMR

The application procedure for prospecting rights under 104 is directly to the minister where as the application under section 16 is to the regional manager - a 104 application cant be considered if a mining right has already been given under section 16. Bengwenyama Minerals only considered about the 104 application nearly a year after it had applied under section 16 and after genorah had been giver rights.

The Constitutional court has sent the application to DMR for review (because earlier DMR had refused right to review). DMR are to review whether they followed procedure. Technically on paper they have followed procedure. If they decide that procedure has not been followed then my understanding is that fresh application needs to be submitted.

I dont know how much representation Bengwenyama minerals has in Genorah - but I wish and hope that for ethical purposes they are well represented in Genorah with a justifiable holding