so what does it all mean, page-53

Domum stated,

"I think the simple fact of the matter is that the people that have the equivalent of native title of these farms dont have any involvement in these projects which, even imho is wrong!

Imo Genorah MUST give Bengwen...(?) a BEE interest/royalty or such, in these farms via some form of direct compenstation/holding."

I totally agree with this statement domum, but the problem as I see it is how will the DMR view the competing parties who both claim to represent the best interests of "the community"?

In the lower court proceedings, the applicants were Benwenyama Minerals, Bengwenyama-Ye-Maswazi Tribal Council and The Trustees for the time being of the Bengwenyama-Ye-Maswazi Trust.

The second applicant, Bengwenyama-ye-Maswazi Tribal Council, joined forces with the first and third applicants and the third applicant is a trust, represented by its fourteen trustees of which the chief of the Bengwenyama-ye-Maswazi community is one.

However, there was an application for intervention by one Nkosi who alleged that he was properly authorized by the Bengwenyama-ye-Maswazi Royal Council to bring the application. There was an answering affidavit by the chief of the Bengwenyama-ye-Maswazi community, Msuthu Nicholas Nkosi, who denied the standing of the Royal Council alleging that it had no more than advisory powers.

The High Court judgment appeared to addressed this issue in more depth than the Constitutional Court and there is good reason why the matter has been referred back to the DMR for review;

The High Court of South Africa (Transvaal Provincial Division) Judgment, Case No: 39809/2007, dated 18 November 2008 can be found here;

http://www.saflii.org/za/cases/ZAGPHC/2008/384.rtf

Some of the noteworthy points are;

"The applicants allege that the position of the first applicant is different from that of Genorah. The second and third applicants maintain that they represent the community and that the community has decided to use the first applicant as a vehicle to exercise its mineral rights in terms of the Act. It is their case that the community will benefit tremendously if the first applicant can obtain the prospecting rights. On the other hand they maintain that Genorah has applied for the prospecting rights purely for its own gain and that the community stands to lose a lot if their application is unsuccessful. The issues become very intricate because of allegations and counter-allegations that it is not really the Bengwenyama community ("the community") that stands to benefit directly from the grant of such rights but only three individuals who were involved in the orchestration of the competing applications for the relevant rights. On behalf of Genorah it is alleged that the deponent to Bengwenyama Minerals' founding affidavit Mr. Zet Maphanga ("Maphanga") and his friend, who deposed to a confirmatory affidavit, Mr. Vusi Mhlungu ("Mhlungu"), are promotors and directors of Bengwenyama Minerals, who stand to benefit from the grant of the prospecting rights to the first applicant. In particular it is alleged that Maphanga is not a member of the Tribal Council and that Mhlungu, who is a Zulu from Kwazulu Natal, is not even a member of the community. On behalf of the applicants it is alleged that Mr. Maredi Wilson Mphahlele ("Mphahlele") who deposed to Genorah's answering affidavit, was involved with the preparation of its application and that he stands personally to benefit from the grant of the rights to Genorah."

"It is common cause that the community has been entitled to occupation of Nooitverwacht for more than a century. As for Eerstegeluk it was still, in terms of a Government Notice No. R 9 of the then Lebowa Government, defined to fall within the area of jurisdiction of the Roka-Pasha Phokwane Local Government. There was however a recommendation that it was to be restored to the Bengwenyama-ye-Maswati community."

"It is not in dispute that the community fits the definition of a community in terms of section 1 of the Act and apart from the factual situation that Eerstegeluk still falls within the jurisdiction of the Roka Pasha Phokwane Local Government, the community's claim to the right to become owner of the properties and its interest in respect of the possible exploitation of the mineral rights, are not in dispute."

"On the 8th and 9th of June 2006 a document, entitled "Heads of Agreement" was signed on behalf of the Bengwenyama- Ye-Maswati Trust, Zevoli 19 (Pty) Ltd and Red Arrow Capital (Pty) Ltd and by Mhlungu and Maphanga. Paragraph 3.1.5 thereof recorded that as the parties had resolved to form a joint venture, a joint venture that would lodge an application for a license and wished to position itself as a "black empowered enterprise" had been formed."

"The whole purpose of the application to intervene is to counter Bengwenyama Minerals' claim that it on behalf of the second- and the third applicants brought its application which in fact is a community application. A number of prominent members of the community, claiming to be acting on behalf of the Royal Council, dispute that allegation and want to intervene to persuade the court that the Tribal Council has become defunct and was not able to and did not support the applicant's application. It also wanted to show that the objects of the trust were not really to cause the upliftment of the community as community. On the whole the purpose of the application to intervene was to show that there was no difference between the two competing applications and that the prospects of the community to benefit were no different whether the applicant's application succeeded or not."

"In the light of the finding that the application of Bengwenyama Minerals was not a community application the whole question of intervention has become academic. It makes no difference whether the Kgosi supports the applicant or the first respondent or whether the fact that the Kgosi supports the one side or the other is conclusive of the question of where the support of the community lies. Likewise it is not relevant whether the Tribal Council has become defunct or whether the application to intervene could be brought in the name of the Royal Council without the active support of the Kgosi. It is also not necessary to decide whether the community will be better off if the first applicant mines the minerals and Maphanga and Mhlungu and the trust have an interest in the first applicant or whether the Genorah mines the minerals and Mhpahlele has an interest in Genorah. The fact that the intervening party was at all times aware of the application, but could not intervene because of a lack of funds, before at the very last moment, is indicative that an order for costs against it will be incapable of execution. In the circumstances the Royal Council's provisional joinder as a party is confirmed but no further order is made in respect of the application to intervene either for or against the Royal Council"

"One of the applicants' main contentions is that there was not compliance with section 10 in that there was no proper notice calling upon interested and affected parties to submit comments within 30 days. It is also alleged that there was no proper compliance with section 16(4)(b) of the Act in that there was no proper notification to and consultation with the land owner or lawful occupier by the respondent. Interestingly enough section 105 of the Act contemplates the situation where the landowner or lawful occupier cannot be traced. There is provision that the applicant can give notice in such a case by installing a notice in a visible place. In such a case it is very unlikely that any meaningful consultation can take place. In addition thereto there may be circumstances where the registered owner is not really the interested party in that the property had been sold but not yet transferred or especially in the case of communities who have land claims and the community is not yet the registered owner but has a spes to become the landowner. In my view the provisions of section 16(4) are such, that, if it is clear that there was communication between the applicant and the landowner, and the landowner was aware of the applicant's intention to apply for the rights it is sufficient to constitute compliance with the provisions of the section. It is not necessary in terms of the section that the landowner or occupier has to support the applicant's application."

"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 Goedeverwachting 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 Genorah's intention to apply for prospecting rights over the relevant properties. In my view there was compliance with section 16(4)."

The question has to be asked; does the Bengwenyama-Ye-Maswati Royal Council and the Roka Phasha Tribal Authority represent the best interests of the local community or, rather, does the Bengwenyama-Ye-Maswazi Tribal Council and The Trustees for the time being of the Bengwenyama-Ye-Maswazi Trust?

The Constitutional Court directed this matter back to the DMR for review and, whilst the principal conclusion of the judgment was the recognition of the protection of the rights of the community that occupies the lands, it will ultimately be the DMR that decides what parties truly serve those interests.

Stagman