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The only alarm would be to do nothing
Andrew Mitchell
Posted: Fri, 22 Feb 2008
[miningmx.com] -- A warning from legal firm Bell Dewar & Hall that companies with prospecting rights in South Africa should check their documents after a landowner successfully contested in court a prospecting right prompted an angry response from the government, which labelled the warning as "alarmist"
Bell Dewar & Hall's Nic Roodt said the court's judgment had “serious ramifications” for not only prospecting rights, but mining rights too. The validity of these rights should be reviewed by companies as a matter of urgency because they could be vulnerable to attack from unhappy land owners, he said.
The DME's deputy director general for mineral regulation Jacinto Rocha the case involving a company called Meepo was an isolated one where terminology used in granting the prospecting licence was open to interpretation.
The full story can be read here.
In reply to the Deputy Director General's response to Nic Roodt's commentary on the Meepo case, it is correct that the case is essentially based on a technicality, says Andrew Mitchell, a senior partner at Bell Dewar & Hall.
The fact remains, however, that a technicality like this one, can be and in the actual case was fatal.
The court stated:
".. the relevant prospecting right ... was granted by the Regional Manager, who was not authorised to grant the right on behalf of either the Minister or the DDG. It was conceded by [counsel] (for the department and the Minister) that the aforementioned power of attorney was not a valid delegation of power by the DDG to the Regional Manager, and it was further conceded that ... the conduct by the Regional Manager would be ultra vires his authority, rendering the right void."
The court found that these concessions were
properly made.
A superficial investigation has revealed that many other prospecting and mining rights may have been granted by Regional Managers acting in terms of the same power of attorney as was involved in the Meepo case.
It is not in the interests of any of the participants in the mining industry to allow this state of affairs to remain unresolved.
All participants should check that, where a prospecting or mining right has been granted under power of attorney, the person executing the document had valid delegated authority to do so. If not, the problem can be fixed.
The only alarm will be if stakeholders decide to do nothing.
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