Johannesburg — The case is one of many legal battles, in different courts, involving mining companies and rural communities living on top of potentially lucrative mines.

This is the first to have reached the Constitutional Court.

The community has lived on the land for more than a century and the Land Claims Commission recognised its ownership after it was dispossessed of the land during apartheid and to make room for another mine.

Genorah, whose majority shareholder is Inkwe Platinum, has twice been interdicted from continuing with prospecting. In court papers community members described how, because of the prospecting, their grave sites were under threat, they had lost access to fresh drinking water and could not sleep due to the noise and dust from 24-hour drilling.

Counsel for the community, Gilbert Marcus SC, said that, in terms of the Mineral and Petroleum Resources Development Act, Genorah had to consult with the community before a right was granted.

He said this meant "real and meaningful" interaction. Instead, the consultation by Genorah was a "caricature".

But Genorah argued that the requirement of consultation did not mean the community had to agree and insisted there was interaction between the two.

The company's counsel, Bruce Leech, said that there "was never going to be agreement" because the community had set up its own company, Bengwenyama Minerals, whose shareholding comprised 35% of the community and which also intended to apply for prospecting rights. He said the community was not objecting to the harmful effects of the prospecting, but to who did it.

Mr Leech said that, in law, Bengwenyama Minerals was just another company. When both applied for a prospecting licence the principle in the act was first come, first served. Genorah got there first, Mr Leech said.

But Genorah's main argument was that the community was too late to go to court - a point the high court and Supreme Court of Appeal had agreed with. In terms of the Promotion of Administrative Justice Act, an objection had to be lodged within 180 days. Bengwenyama Minerals waited more than a year, he said.

Mr Marcus said the delay was due to the community trying to argue its case internally, by appealing first to the minister.

Justice Zak Yacoob had strong words for the department, saying that 120 of the 180 days had been its fault.