Bengwenyama-ya-Maswazi Community and Others v Minister for Mineral Resources and Others

The Bengwenyama-ya-Maswazi Community (BYMC) sought preferent prospecting rights under s 104 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) over the farm Nooitverwacht in Limpopo. Following an earlier Constitutional Court judgment setting aside prospecting rights granted to Genorah Resources due to lack of consultation, the community—acting through its Tribal Council—used a corporate vehicle, Miracle Upon Miracle Investments (Pty) Ltd (MUM), to apply for an exclusive preferent community prospecting right. Despite this, the Minister granted a prospecting right structured to include Genorah and individuals (Dr Sizane Nkosi and Mr Nkotola Nkosi) who claimed to represent the community. The appellants alleged that these individuals fraudulently misrepresented their authority and that the Department of Mineral Resources failed to heed prior Constitutional Court warnings. The North Gauteng High Court dismissed the appellants’ application, prompting an appeal to the Supreme Court of Appeal.

The appeal was upheld and the conditional cross-appeal dismissed. The High Court’s order was substituted with an order declaring the Tribal Council the sole authorised representative of the community, setting aside the prospecting right issued to the community, and directing the Minister to grant MUM a full and exclusive prospecting right over Nooitverwacht, subject to amendment of its shareholders’ agreement. Costs were awarded against the respondents on an attorney-and-client scale.

The case clarifies that communities may lawfully employ corporate vehicles to exercise preferent prospecting rights under the MPRDA, provided statutory requirements of control and benefit are met. It strengthens protections for communities against misrepresentation and administrative abuse in mineral rights allocation, reinforces the role of recognised traditional councils, and builds on Constitutional Court jurisprudence safeguarding community consultation and participation in mineral development.