President's progeny sues for expropriation

Andile Ntingi | Sun, 29 Nov 2009 10:06
[miningmx.com] -- A GREAT grandson of former apartheid-era president, Tom Naude, has approached the Constitutional Court in an attempt to wrestle back the mineral rights his mother lost after the introduction of the current mining legislation in 2004.

On Friday, Barry Vorster filed an affidavit in the Constitutional Court in Braamfontein to ask it to reverse the “expropriation without compensation” by the state of his mother’s mineral rights on a farm in Makopane, where it is believed there are platinum reserves.

Vorster wanted to buy the mineral rights, worth between R1.5m and R2m, from his mother but the deal could not go ahead because the mineral rights had been expropriated.

Jozua Francois (Tom) Naude was acting state president of South Africa from 1967 to 1968.

He served as Minister of Posts and Telegraphs from 1950 to 1954, as health minister from 1954 to 1958, and as Minister of Finance from 1958 to 1961.

He was then appointed President of the Senate, and in terms of the republican constitution he would be required ex officio to act as State President whenever that office was vacant.

He was unexpectedly called upon to do this when Dr Eben Dönges, who was elected to succeed CR Swart as State President in 1967, suffered a stroke and fell into a coma before he could be inaugurated

Land expropriated

In the affidavit, Vorster listed his mother, Peggy, President Jacob Zuma, Mineral Resources Minister Susan Shabangu, and the South African government as respondents.

He is arguing that a court ruling handed down last month by Judge HJ Fabricius in the North Gauteng High Court (formerly Pretoria High Court) in a dispute between Robow Investments – the original owners – and Noordwes Delwery (the new owners) effectively implied that his mother’s mineral rights had been “unilaterally expropriated by the state”.

Robow owned the mineral rights on a farm in the North West before the enactment of the Minerals and Petroleum Resources Development Act (MPRDA) in 2004 but lost them to Noordwes Delwery, which acquired the prospecting rights over the farm in November 2007. Robow filed an application to get the rights back but Noordwes, a close corporation, argued that the MPRDA had abolished all mineral rights held by Robow.

Fabricius ruled in the matter that the “state has done away with the legal notion of private ownership of mining and mineral rights” and that “since May 1 2004 all mineral resources belong to the nation and the state is vested with the custodianship”.

Vorster believed the ruling was unjust and violated Section 55 of the MPRDA and Section 25 of the Constitution, both of which protect people from expropriation without compensation.

One major obstacle

But Vorster’s legal challenge would have to overcome one major obstacle. “The only person who has a legal standing in the matter is Mrs Vorster because she is the expropriatee. The person who must be compensated is the person who suffered the loss. If the argument was made by his mother, there could be merit in the argument,” said Banzi Malinga, a director at law firm DLA Cliffe Dekker Hofmeyr.

In an interview with City Press Business this week, Vorster said the “expropriation” of his mother’s mineral rights had robbed her of her livelihood and inheritance.

“It is unconstitutional to take someone’s else property without compensation. My mother did not steal the mineral rights, she owned them legally.

“Former state presidents Nelson Mandela and FW de Klerk sat around the table and negotiated a constitution that respects people’s property rights,” he said.

It is unconstitutional to take someone’s else property without compensation

He likened the “expropriation” of his mother’s mineral rights to the illegal land grabs in Zimbabwe, where white farmers were chased off their land by the country’s black war veterans and supporters of the ruling Zanu-PF party.

Vorster’s mother is a granddaughter of Tom Naude, a once-prominent member of the National Party who died in 1969 and left a vast estate containing farms and mineral rights.

The Presidency and the mineral resources department declined to comment, saying they had not seen the court papers.

The introduction of the MPRDA forced mining companies to acquire black shareholders before they could secure new-order mining rights.