MPRDA s.104 relates to community preferent mining rights, but do these rights belong to the land occupiers or the land owners?
Ian Shapiro has conceded that the RP community are the E farm land owners.
The opening statements of the Constitution Court judgment might shed some light on what community group(s) may prosper from the decision;
"[1] This case turns on the lawfulness of the grant to a company of a prospecting right on the land of another. This deceptively simple statement of the ultimate legal issue at stake, though true, hides more than it reveals. First, it explains little of the invasive nature of a prospecting right on the ordinary use and enjoyment of the property by its owners. Second, it says nothing about the profoundly unequal impact our legal history of control of and access to the richness and diversity of this country's mineral resources has had on the allocation and distribution of wealth and economic power. Lastly, it does little to illuminate the effect of past racial discrimination on the ownership of land.
[2] The applicants seek to set aside the grant of a prospecting right on their land to the first respondent by the state. On one level it is simply a dispute between an owner of land and a person who has been awarded a prospecting right over that land. The owner of the land is, however, no ordinary owner. It is a community that was previously deprived of formal title to their land by racially discriminatory laws. Add to this the fact that the entity to which the prospecting right has been granted qualifies for treatment as a historically disadvantaged person, and it becomes apparent that the issues are more complex than the first sentence of this judgment conveys.
[3] Equality, together with dignity and freedom, lie at the heart of the Constitution. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of substantive equality the Constitution provides for legislative and other measures to be made to protect and advance persons disadvantaged by unfair discrimination. The Constitution also furnishes the foundation for measures to redress inequalities in respect of access to the natural resources of the country. The Mineral and Petroleum Resources Development Act (Act) was enacted amongst other things to give effect to those constitutional norms. It contains provisions that have a material impact on each of the levels referred to, namely that of individual ownership of land, community ownership of land and the empowerment of previously disadvantaged people to gain access to this country's bounteous mineral resources."
Stagman
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