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Journal of Energy & Natural Resources Law Volume 22, 2004 - Issue 2: Energy and Natural Resources in Africa
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Original Articles

Exodus of ‘Mineral Rights’ from South African Mineral Law

P J Badenhorst P J Badenhorst BLC LLB (Pret) LLM (Wits) LLM (Yale) LLD (Pret) is Professor of Law, University of Port Elizabeth, South Africa, and legal consultant at Bowman Gilfillan. He can be contacted by e-mail at [email protected].
Pages 218-235 | Published online: 08 Jun 2015

  • Badenhorst, Die Juridiese Bevoegdheid om Minerale te Ontgin in die Suid-Afrikaanse Reg (1992) (LLD thesis, UP), pp 311–312; and Badenhorst, Van der Vyver and Van Heerden, ‘Proposed Nationalisations of Mineral Rights in South Africa’ (1994) 12 JERL 287.
  • See further Badenhorst, ‘A Few Preliminary Comments On the Mineral Law Aspects of: A Green Paper On a Minerals and Mining Policy for South Africa, 1997’ [1998] Obiter 143; and Dale [1997] Annual Survey 356.
  • General Notice 2359 GG 19344 of 20 October 1998. The White Paper is substantially the same as the Green Paper. See Dale [1998] Annual Survey 366–368.
  • GG 21840 GN 4577 of 18 Dec 2000 (hereafter referred to as ‘the first Bill’).
  • The Constitution of the Republic of South Africa 108 of 1996.
  • Badenhorst and Malherbe, ‘The constitutionality of the Mineral Development Draft Bill’ [2001] TSAR 462, 464, [2001] TSAR 765, 772 et seq who argued that the Bill was unconstitutional in a number of respects.
  • Proclamation 25, 2004 Government Gazette 26264 of 23 April 2004.
  • Van Vuren v Registrar of Deeds 1907 TS 289 at 294, 295; Rocher v Registrar of Deeds 1911 TPD 311 at 316; Ex parte Pierce 1950 3 SA 628 (C) at 634C-D; Erasmus v Afrikander Proprietary Mines Ltd 1976 1 SA 950 (W) at 956E; Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd 1996 4 SA 499 (A) at 509G; Franklin and Kaplan, The Mining and Mineral Laws of South Africa (1982), p 7; and Badenhorst, An Introduction to the Law of Mineral Rights (2000), 2–1.
  • Van der Merwe, Sakereg (2nd edn, 1989), p 553.
  • Ibid.
  • Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd, supra n 8 at 509C-D.
  • 1903 TS 499.
  • Ibid at 510.
  • Unknown to the South African courts, similar developments of the notion of mineral rights took place in Louisiana law. See further Badenhorst, ‘A Few Fundamental Aspects of Louisiana Mineral Law’ [1993] TSAR 732; and ‘Mineral Rights Under Louisiana Law’ [1993] De Jure 297.
  • See Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd, supra n 8 at 509E; Viljoen, The Rights and Duties of the Holder of Mineral Rights (1975) (LLD thesis, Leiden), pp 1–12; Van der Merwe, supra n 9 at 552.
  • Consiliorum, sive Responsorum vols I and II Venetiis 1671 as discussed by De Boer, De Winning van Delfstoffen in het Romeinse Recht, De Middeleeuwse Juridische Literatuur en het Franse Recht tot 1810 (1978), pp 153–161, 167–175 and 269–270.
  • Badenhorst, ‘Trojan Trilogy: III Mineral Rights and Mineral Rights Law’ [1999] Stell LR 96 at 97–99; and Mineral Rights, supra n 8 at 1–2. Paul De Castro had already recognised the notion of a mineral right (ius fodiendi) as a personal servitude or a sui generis right. See further, Badenhorst [1999] Stell LR 99–100; and Mineral Rights, supra n 8 at 1–5 to 1–7 and authorities cited.
  • See further Badenhorst, ‘Klassifikasie en Kenmerke van Mineraalregte’ [1994] THRHR 34.
  • Badenhorst, Mineral Rights, supra n 8 at 2–6 and authorities cited.
  • Lazarus and Jackson v Wessels, Oliver and Coronation Freehold Estates, Town and Mines Ltd, supra n 12 at 499; Van Vuren v Registrar of Deeds, supra n 8 at 294; Rocher v Registrar of Deeds, supra n 8 at 316; Webb v Beaver Investments (Pty) Ltd 1954 1 SA 13 (T) at 25A; Ex Parte Marchini 1964 1 SA 147 (T) at 151B-C; Nolte v Johannesburg Consolidated Investment Co Ltd 1943 AD 295 at 307; South African Railways and Harbours v Transvaal Consolidated Land and Exploration Co Ltd 1961 2 SA 467 (A) at 481G-H; Du Preez v Beyers 1989 1 SA 320 (T) at 324G; and see also Coronation Collieries v Malan 1911 TPD 577 at 591.
  • Webb v Beaver Investments, supra n 20 at 25B; Ex parte Marchini, supra n 20 at 150G; Manganese Corporation Ltd v South African Manganese Ltd 1964 2 SA 185 (WLD) at 189A; Jonordon Investment (Pty) Ltd v De Aar Drankwinkel (Edms) Bpk 1969 2 SA 117 (C) at 126D; and see also Aussenkjer Diamante (Pty) Ltd v Namex (Ptv) Ltd 1980 3 SA 896 (SWA) at 902C-903B.
  • Witbank Colliery Ltd v Malan Coronation and Colliery Co Ltd 1910 TPD 667.
  • Ex parte Pierce, supra n 8 at 634D; Erasmus v A frikander Proprietary Mines Ltd, supra n 8 at 324G-H; and Apex Mines Ltd v Administrator, Transvaal 1986 4 SA (T) at 590F. Dogmatically, this approach is preferred (Badenhorst, Mineral Rights, supra n 8 at 2–11 to 2–14). See, however, Joubert, ‘Die Regte op Minerale’ [1959] THRHR 27 at 31; Franklin and Kaplan, Mineral Laws, supra n 8 at 14; and Dale, An Historical and Comparative Study of the Concept of Acquisition of Mineral Rights (1979) (LLD thesis, Unisa), pp 104–105. See supra n 17.
  • Supra n 8 at 5091.
  • See, however, Comrie J in Rand Mines Ltd v President of the RSA 1996 3 SA 425 (BSC) at 432J: ‘I am not satisfied, with respect, that it is appropriate generally to interpret reservations of mineral rights as though they were servitudes.’ See farther Minister of Land Affairs v Rand Mines Ltd 1998 4 SA 303 (SCA) at 423I-J.
  • Badenhorst, Mineral Rights, supra n 8 at 1–15 et seq.
  • Badenhorst, ibid at 1–12. This principle is derived from the maxim cuius est solum eius est usque ad coelum et ad inferos (which is attributed to the 12th-century glossator, Accursius) and forms part of South African law: London and SA Exploration Co v Rouliot (1891) 8 SC 74 at 90; Rocher v Registrar of Deeds, supra n 20 at 315; Franklin and Kaplan, Mineral Laws, supra n 8 at 4; Dale, Mineral Rights, supra n 23 at 76; Cowen, New patterns of and consistency in capitalization landownership—The transformation of the concept of ownership as plena in re potestas (Continuing Legal Education, Wits, 1984), pp 54–57; Pienaar, ‘Legal Aspects of Private Airspace Development’ [1987] CILSA 94 at 100; and ‘Drie-dimensionele Registrasie van Onroerende Goed—‘n Lugkasteel?” [1989] De Jure 257 at 259.
  • Badenhorst, Mineral Rights, supra n 8 at 1–13 to 1–14.
  • Rocher v Registrar of Deed, supra n 20 at 315; Natal Cambrian Collieries v Durban Navigational Collieries Ltd 46 (1925) NPD 27 at 32; Union Government (Minister of Railways and Harbours) v Marais 1920 AD 240 at 246; Neebe v Registrar of Mining Rights 1902 TS 65 at 85; Gluckman v Solomon 1921 TPD 335 at 338; and Odendaalsrus Gold, General Investments and Extensions Ltd v Registrar of Deeds 1953 1 SA 600 (O) at 604E.
  • Van Vuren v Registrar of Deeds, supra n 8 at 259; and Odendaalsrus Gold, General Investments and Extensions Ltd v Registrar of Deeds, supra n 29 at 604E.
  • Le Roitx v Loewenthal 1905 TS 742 at 745; and Dale, Mineral Rights, supra n 23 at 82.
  • Coronation Collieries v Malan, supra n 20 at 591; Dale, Mineral Rights, supra n 23 at 83–4; and Franklin and Kaplan, Mineral Laws, supra n 8 at 5.
  • Dale, Mineral Rights, supra n 23 at 84.
  • Trojan Exploration Co v Rustenburg Platinum Mines Ltd, supra n 8 at 509J-51 OA; Dale, Mineral Rights, supra n 23 at 79–81; Badenhorst, ‘Mining of Mixed Minerals—Trojan Exploration Co (Pty) Ltd v AFC Investments Ltd’ [1995] TSAR 570 at 573–574; and ‘Trojan Trilogy: I Competing Mineral Rights’ [1998] Stell LR 143 at 147–150.
  • Dale, Mineral Rights, supra n 23 at 88.
  • Badenhorst, ‘Minerale Regte en Eiendomsreg—Skeiding en Samesmelting’ [1989] De Jure 379 at 390; Badenhorst and Van Heerden, ‘Betekenis Van die Woord Mineraal’ [1989] TSAR 452 at 459; Badenhorst, ‘The Revesting of State-held Entitlements to Exploit Minerals in South Africa: Privatisation or Deregulation?’ [1991] TSAR 115; Badenhorst and Roodt, ‘Artikel 5(1) van die Mineraalwet 50 van 1991: ‘n Herformulering van die Gemenereg?’ [1995] THRHR 1 at 10; and Badenhorst, Mineral Rights, supra n 8 at 214 to 2–16.
  • Confirmed by s 5(1) of the Minerals Act 50 of 1991.
  • Hudson v Mann 1950 4 SA 485 (T) at 488; and Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd, supra n 8 at 520D-E.
  • See in general Badenhorst, Die Juridiese Bevoegdheid om Minerale te Ontgin, supra n 1 at 164–182.
  • On registration of cession the reversionary entitlement is also transferred together with the other entitlements.
  • The existence of this entitlement explains why a mineral right, just like ownership, has the characteristic of elasticity.
  • Badenhorst, Mineral Rights, supra n 8 at 2–24 to 2–25.
  • See, for instance, s 20 of the Minerals Act 50 of 1991.
  • Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd, supra n 8 at 5391; and see further Nel, Prospekteerregte in die Suid-Afrikaanse Mineraal- en Mynreg (1994) (LLD thesis, Unisa), pp 448–449.
  • Section 16 of the Deeds Registries Act 47 of 1937.
  • Section 5(1) of the Minerals Act.
  • Formalities in terms of s 2(1) of the Alienation of Land Act 68 of 1981 must be complied with.
  • Section 3(1) of the General Law Amendment Act 50 of 1956. An underhand mineral lease is void: Fuls v Leslie Chrome (Pty) Ltd 1962 4 SA 784 (W) at 787A-B; Nortje V Pool NO 1966 3 SA 96 (A) at 111A 126–127; Bellville-Inry (Edms) Bpk v Continental China (Pty) Ltd 1976 3 SA 583 (C) at 585H-588G; Roets v Secundior Sand BK 1989 1 SA 902 (T) at 904G-H; Malan v Strauss 1994 4 SA 179 (NC) at 189E-F; see Dale, ‘Contracts Relating to Prospecting and Mining’ in Lowe et al, Elliot The South African Notary (1987), p 235; and Badenhorst and Van Heerden [1989] TSAR 456–457.
  • On registration, respective real rights are created, namely a prospecting right and a mining right. In Vansa Vanadium SA Ltd v Registrar of Deeds (1997 2 SA 784 (T) at 794G 795I-J) it was, however, held that a prospecting contract registered in the Deeds Office does not create a real right. See Dale [1996] AS 412 at 423–424; and Nel, Prospekteerregte, supra n 44 at 551–552. See, however, Franklin and Kaplan, Mineral Laws, supra n 8 at 16–21; Badenhorst and Olivier, ‘Die Aard Van Regte Ingevolge ‘n Prospekteerkontrak’ [1997] TSAR 583 at 586–589; and Badenhorst, ‘Mining and Minerals’, Vol 18 LAWSA (original text by Franklin) 1999 (first reissue) at 14–15. Before registration respective personal rights are created.
  • Section 3(1)(q) of the Deeds Registries Act supra.
  • Section 3(1)(m) and s 77(1) of the Deeds Registries Act supra.
  • See n 47 above. In terms of s 3(1) of the General Law Amendment Act 50 of 1956 a mineral lease, registered in the deeds office, is enforceable as against third parties.
  • Section 6(1) of the Minerals Act supra.
  • Section 9(1) of the Minerals Act supra.
  • Section 39(1) of the Minerals Act supra.
  • Supra.
  • Badenhorst, Mineral Rights, supra n 8 at 2–13 to 2–14.
  • Section 4(2).
  • Section 3(1); and see also s 2(b).
  • Chamber of Mines of South Africa, Memorandum to the Director-General: Minerals and Energy on the Draft Minerals Development Bill (2000), Part 3, chap 2, para 2221 (hereafter cited as the ‘Chamber's Memorandum’).
  • Section 2(a).
  • Chamber's Memorandum, Part 3, chap 2, para 2222.
  • Section 3(2)(a). The equivalent rights to petroleum are not discussed in this article.
  • Badenhorst [1998] Obiter 154.
  • See heading ‘Existing order: ancien régime?’ supra.
  • Section 2(1)(a) of the Mining Rights Act 20 of 1967 and s 2 of the Precious Stones Act 73 of 1964.
  • Badenhorst, Mineral Rights, supra n 8 at 1–22 to 1–24.
  • Section 2(1)(b) of the Mining Rights Act supra.
  • Badenhorst, Mineral Rights, supra n 8 at 1–23.
  • Kaplan and Dale, A Guide to the Minerals Act, 1991 (1992), pp 5–6.
  • That is land not owned by the State, but subject to a reservation of mineral rights in respect of precious metals, base minerals and precious stones in favour of the State (s 1(i) of the Mining Rights Act supra and s 1(iii) of the Precious Stones Act supra).
  • Section 12(1) of the Mining Rights Act supra and s 5(1) of the Precious Stones Act.
  • Section 2 of the Reserved Minerals Development Act 55 of 1926; and s 5(1) of the Precious Stones Act 44 of 1927.
  • Ibid.
  • Kaplan and Dale, Minerals Act, supra n 70 at 5; and Badenhorst and Roodt [1995] THRHR 4–8.
  • Ibid.
  • Badenhorst, ‘The Revesting of State-held Entitlements to Exploit Minerals in South Africa: Privatisation or Deregulation?’ [1991] TSAR 113.
  • Section 43 of the Minerals Act supra. See further Kaplan and Dale, Minerals Act, supra n 70 at chap 5.
  • Schedule II to the Act. See heading ‘Transitional provisions towards the new order’ below.
  • Section 3(2)(a). Other rights to minerals or petroleum will not be discussed in this article.
  • Section 3(2)(b).
  • Section 5(1).
  • A holder of a prospecting right or a mining right may (a) enter the land to which such right relates together with his or her employees, and may bring onto the land any plant, machinery and equipment and build, construct and lay down any surface or underground infrastructure which may be required for the purposes of prospecting or mining, as the case may be; (b) prospect or mine, as the case may be, for his or her own account on or under the land for the mineral for which such right has been granted; (c) remove and dispose of any such mineral found during the course of prospecting or mining, as the case may be (in terms of s 20(1) only such quantities of minerals may be removed that are required for testing and analyses, otherwise the Minister's written permission must first be obtained in terms of s 20(2)); and (d) subject to the National Water Act 36 of 1998, use water from any natural spring, lake, river or stream, situated on, or flowing through, the land or from any excavation previously made and used for prospecting or mining purposes, or sink a well or borehole required for use relating to prospecting or mining on the land; and (e) carry out any other activity incidental to prospecting or mining operations which does not contravene the provisions of the Act (s 5(3)). A holder of a prospecting right or mining right is also entitled to other rights that may be granted to, acquired by or conferred under the Act or any other law (s 5(2)). See further, ss 19(1) and 25(1).
  • Section 5(4). Approval of an environmental management plan takes place in terms of s 39(4).
  • Section 16(1).
  • Section 16(3).
  • The requirements are the following: (a) the requirements ins 16(1) regarding, the place, manner of application and payment of the fee: s 16(2)(a); and (b) no one may be holding a prospecting right, mining right, mining permit or retention permit for the same mineral and land: s 16(2)(b).
  • Sees 16(2).
  • Sees 10(1). The regional manager has to refer objections to the granting of the prospecting right to the Regional Mining Development and Environmental Committee to consider the objections and advise the Minister thereon (s 10(2)).
  • Sees 16(4).
  • The requirements are the following: (a) the applicant has access to financial resources and has the technical ability to conduct the proposed prospecting operation optimally in accordance with the prospecting work programme; (b) the estimated expenditure is compatible with the proposed prospecting operation and duration of the prospecting work programme; (c) the prospecting will not result in irreparable pollution, ecological degradation or damage to the environment; (d) the applicant has the ability to comply with the relevant provisions of the Mine Health and Safety Act 29 of 1996; and (e) the applicant is not in contravention of any relevant provision of the Act; (s 17(1). The Minister may, having regard to the type of mineral, request the applicant to give effect to the objective to expand opportunities for historically disadvantaged persons to enter the mineral industry and to benefit from the nation's mineral resources: s (17(4).
  • Section 17(1).
  • Section 17(6).
  • Section 17(5). Approval of an environmental management programme takes place in terms of s 39(4).
  • Section 17(6).
  • Section 17(2)
  • Section 17(3).
  • Section 19(1). A permission to remove minerals is acquired in terms of s 20(2).
  • The application has to be lodged in the prescribed manner with the prescribed non-refundable application fee (s 18(1)) and must: (a) state the period for which the renewal is required; (b) be accompanied by a detailed report reflecting the prospecting results, the interpretation thereof and the prospecting expenditure incurred; (c) be accompanied by a report reflecting the extent of compliance with the requirements of the approved environmental management plan, the rehabilitation to be completed and the estimated cost thereof; and (d) include a detailed prospecting work programme for the renewal period (s 18(2)). The holder of the prospecting right must have complied with the: (a) terms and conditions of the prospecting right and must not have contravened any relevant provision of the Act; (b) prospecting work programme; and (c) requirements of the approved environmental management plan (s 18(3)).
  • Section 18(3), (4).
  • Section 19(2)(a)(i) read with s 17(5).
  • Section 19(2(a)(ii) read with s 18(3).
  • Section 19(2)(b)read with s 17(5).
  • Section 19(2)(c).
  • Section 19(2)(d).
  • Section 19(2)(e).
  • Section 19(2)(f).
  • Section 19(2)(g).
  • Section 21(1)(a).
  • Section 21(1)(b). S 21(2) prohibits the destruction of information regarding prospecting.
  • Section 22(1).
  • Section 22(3).
  • The requirements are the following: (a) an application that complies with s 22(1) regarding the place, manner of application and payment of a fee (s 22(2)(a)); and (b) no one may be holding a prospecting right, mining right, mining permit or retention permit for the same mineral and land (s 22(2)(b)).
  • Section 12(2).
  • Section 10(1). The regional manager has to refer objections to the granting of the mining right to the Regional Mining Development and Environmental Committee to consider the objections and advise the Minister thereon (s 10(2)).
  • Section 22(4).
  • The requirements are the following: (a) the mineral resource can be mined optimally in accordance with the mining work programme; (b) the applicant has access to financial resources and has the technical ability to conduct the proposed mining operation optimally; (c) the financing plan is compatible with the intended mining operation and the duration thereof; (d) the mining will not result in irreparable pollution, ecological degradation or damage to the environment; (e) the applicant has provided for the prescribed social plan; (f) the applicant has the ability to comply with the relevant provisions of the Mine Health and Safety Act 29 of 1996; (g) the applicant is not in contravention of any provision of the Bill; and (h) the granting of such right will further the objectives to: (i) expand opportunities for historically disadvantaged persons to enter the mineral industry and to benefit from the nation's mineral resources and to promote employment; and (ii) advance the social and economic welfare of all South Africans: s 23(1) read with s 2(d)(f).
  • Section 23(1).
  • Section 23(6).
  • Section 23(5). Approval of an environmental management programme takes place in terms of section 39(4) of the Mineral and Petroleum Resources Development Act.
  • Section 23(6).
  • Section 23(3).
  • Section 23(4).
  • Section 25(1).
  • The application has to be lodged in the prescribed manner with the prescribed non-refundable application fee (s 24(1)) and has to: (a) state the period for which the renewal is required; (b) be accompanied by a report reflecting the extent of compliance with the requirements of the approved environmental management programme; (c) the rehabilitation of the site to be completed and the estimated cost thereof; and (d) include a detailed mining work programme for the renewal period (s 24(2)). The holder must have complied with: (a) the terms and conditions of the mining right and must not have contravened any relevant provision of the Act; (b) the mining work programme; (c) the requirements of the prescribed social and labour plan; and (d) the requirements of the approved environmental management programme (s 24(3)).
  • Section 24(4).
  • Section 25(2)(a)(i) read with s 23(5).
  • Section 25(2)(a)(ii) read with s 24(3).
  • Section 25(2)(b) read with s 23(5).
  • Section 25(2)(c).
  • Section 25(2)(d).
  • Section 25(2)(e).
  • Section 25(2)(f).
  • Section 28(1).
  • Section 28(2) read with s 2(d) and (f). In terms of s 1 a “historically disadvantaged person” means ‘(a) any person, category of persons or community, disadvantaged by unfair discrimination before the Constitution took effect; (b) any association, a majority of whose members are persons contemplated in paragraph (a); (c) any juristic person other than an association, in which persons contemplated in paragraph (a) own and control a majority of the issued capital or members’ interest and are able to control a majority of the members’ votes’.
  • Section 11(1).
  • Section 11(1).
  • Section 11(2).
  • Section 11(3).
  • Section 11(4).
  • See section 27.
  • Section 27(8)(a).
  • Section 27(8)(b).
  • Section 9.
  • Sees 31.
  • The requirements entail that the holder of the prospecting right has: (a) prospected on the land to which the application relates; (b) completed the prospecting activities and a feasibility study; (c) established the existence of a mineral reserve which has mining potential; (d) studied the market and found that the mining of the mineral in question would be uneconomical due to prevailing market conditions; and (e) complied with the relevant provisions of the act: s 32(1).
  • Section 32(4).
  • If, on the information supplied by the applicant and research conducted by the Minerals and Mining Development Board (established in terms of s 57), on the request of the Minister, it is established that: (a) the mineral resources to which the application related can be mined profitably; (b) the applicant has not completed the prospecting activities and feasibility study; or (c) the issuing of a retention permit: (i) will result in an exclusionary act; (ii) prevent fair competition; or (iii) result in the concentration of mineral resources in the hands of the applicant (s 33).
  • Ibid.
  • Section 32(2).
  • Section 34.
  • Section 35(1).
  • In terms of s 35(2) effect has to be given to the environmental management plan, retention fees have to be paid and prescribed six monthly progress reports have to be submitted to the Regional Director.
  • Section 36.
  • Section 47(1).
  • These requirements are the following, namely, if the holder: (a) is conducting any prospecting or mining operation in contravention of the Act; (b) breaches any material term or condition of such right or permit; (c) is contravening the approved environmental management programme; (d) has submitted inaccurate, incorrect or misleading information in connection with any matter required to be submitted under the Act (s 47(1)).
  • See ss 47(2)-(5).
  • Sees 51.
  • Sees 39(2).
  • Section 39(1).
  • Sections 37–46. For a discussion of the environmental provisions contained in the first Bill, see Badenhorst and Du Toit, ‘The Mineral Development Draft Bill, 2000 and the Environment’ [2002] Stell LR 22. For a discussion of the environmental provisons of the Act, see Badenhorst and Stein ‘The Mineral and Petroleum Resources Act and the Environment’ to be published in 2004 Obiter vol 2.
  • For instance: (a) prospecting permits, mining authorisations, consents to prospect or mine, permissions to remove and dispose of minerals (item 3(1)) of schedule II of the Transitional measures); or (b) an environmental management programme (item 3(3)). If the above application in (a) does not meet the requirements of the Minerals and Petroleum Development Act, the Regional Manager has to direct the applicant to submit the outstanding prescribed information (item 3(2)). If the application for an environmental management programme does not meet the requirements of the Minerals and Petroleum Development Act, the Regional Manager has to direct the applicant to submit the outstanding prescribed information (item 3(4)).
  • Item 1 (iv). The so-called ‘old order rights in respect of petroleum’ will, however, not be discussed in this article.
  • An ‘unused old order right’ means ‘any right, entitlement, permit or licence listed in Table 3 to this Schedule in respect of which no prospecting or mining was being conducted immediately before this Act took effect’ (item l(ix)). The following categories are listed in Table 3: ‘Category 1: A mineral right under the common law for which no a prospecting permit or mining authorisation was issued in terms of the Minerals Act; Category 2: A mineral right under the common law for which a prospecting permit or mining authorisation was issued in terms of the Minerals Act; Category 3: A consent to prospect in terms of section 6(1)(b) or 6(3) of the Minerals Act and the common law mineral right attached thereto in respect of which a prospecting permit was issued in terms of section 6(1) of the said Act; Category 4: A consent to prospect in terms of section 6(1)(b) or 6(3) of the Minerals Act and the common law mineral right attached thereto in respect of which no prospecting permit was issued in terms of section 6(1) of the said Act; Category 5: A prospecting lease, prospecting permit, prospecting licence or prospecting permission referred
  • Continued overleaf to in section 44 of the Minerals Act and the common law mineral right attached thereto in respect of which a prospecting permit was issued in terms of section 6(1) of the Minerals Act; Category 6: A prospecting lease, prospecting permit, prospecting licence or prospecting permission referred to in section 44 of the Minerals Act and the common law mineral right attached thereto in respect of which no prospecting permit was issued in terms of section 6(1) of the Minerals Act; Category 7: A consent to mine issued or granted in terms of section 9(1)(b) or 9(2) and the common law mineral right attached thereto in respect of which a mining authorisation issued in terms of section 9(1) of the Minerals Act; Category 8: A consent to mine granted in terms of section 9(1)(b) or 9(2) and the common law mineral right attached thereto in respect of which no mining authorisation was issued in terms of section 9(1) of the Minerals Act; Category 9; A consent to mine issued or granted in terms of section 9(1)(a) or 9(2) of the Minerals Act and the common law mineral right attached thereto without a mining authorisation issued in terms of section 9(1) of the Minerals Act; Category 10; A right to dig or mine referred to in section 47 of the Minerals Act and the common law mineral right attached thereto together with a mining authorisation obtained in connection herewith by virtue of section 47(1)(e) of the Minerals Act and in terms of section 9(1) of Minerals Act; Category 11: Any permission to prospect or mine in terms of section 16(1) of the Bophuthatswana Land Control Act… 39 of 1979, section 16(1) of the Venda Land Control Act… 6 of
  • 6, section 15 of the Lebowa Minerals Trust Act… 9 of 1987, section 51(1) of the Rural Areas Act (House of Representatives… 9 of 1987, or section 6 of the Transformation of Certain Rural Areas Act… 94 of 1998, and the common law mineral right attached thereto and a prospecting permit or mining permit issued in terms of the Minerals Act.’ (Categories 8 and 9 seem to be an erroneous repetition.)
  • An ‘old order prospecting right’ means ‘any prospecting lease, permission, consent, permit or licence, and the rights attached thereto, listed in Table 1 to this Schedule in force immediately before the date on which the Act took effect and in respect of which prospecting is being conducted’ (item l(iii)). The following categories are listed in Table 1: ‘Category 1: The common law mineral rights together with a prospecting permit obtained in connection therewith in terms of section 6(1) of the Minerals Act; Category 2; A consent to prospect in terms of section 6(1)(b) or 6(3) of the Minerals Act, the common law mineral right attached thereto, together with a prospecting permit obtained in connection therewith in terms of section 6(1) of the Minerals Act; Category 3: A prospecting lease, prospecting permit, prospecting licence or prospecting permission referred to in section 44 of the Minerals Act, the common law mineral right attached thereto and a prospecting permit obtained in accordance with section 6(1) of the Minerals Act; Category 4; Any permission to prospect in terms of section 16(1) of the Bophuthatswana Land Control Act… 39 of
  • 9, section 16(1) of the Venda Land Control Act… 6 of 1986, section 15 of the Lebowa Minerals Trust Act… 9 of
  • 1987, section 51(1) of the Rural Areas Act (House of Representatives)… 9 of 1987, or section 6 of the Transformation of Certain Rural Areas Act… 94 of 1998, and the common law mineral right attached thereto together with a prospecting permit obtained in connection therewith in terms of the 6(1) of the Minerals Act.; Category 5; A temporary permit authorising the continuation of the prospecting operation on the land comprising the subject of a prospecting permit which had been authorised under such prospecting permit, as provided for in section 10 of the Minerals Act.’
  • An ‘old order mining right’ means ‘any mining lease, consent to mine, permission to mine, claim licence, mining authorisation or right listed in Table 2 to this Schedule in force immediately before the date on which the Act took effect and in respect of which mining operations are being conducted’ (item l(ii)). The following categories are listed in Table 2; ‘Category 1: The common law mineral rights together with a mining authorisation obtained in connection therewith in terms of section 9(1) of the Minerals Act; Category 2; A consent to mine granted in terms of section 9(1)(b) or 9(2) of the Minerals Act and the common law mineral rights attached thereto together with a mining authorisation issued in connection therewith in terms of section 9(1) of the Minerals Act; Category 3: A right to dig or mine or a claim licence referred to in section 47 of the Minerals Act and the common law mineral rights attached thereto together with a mining authorisation obtained in connection therewith under section 47(l)(e) in terms of section 9(1) of the Minerals Act; Category 4: A right to dig or to mine referred to in section 47(5) of the Minerals Act and the common law mineral rights attached thereto together with a mining authorisation obtained in connection therewith in terms of section 9(1) of the Minerals Act; Category 5; Any permission to mine in terms of section 16(1) of the Bophuthatswana Land Control Act… 39 of 1979, section 16(1) of the Venda Land Control Act… 6 of 1986, section 15 of the Lebowa Minerals Trust Act… 9 of 1987, section 51 (1) of the Rural Areas Act (House of Representatives)… 9 of 1987, or section 6 of the Transformation of Certain Rural Areas Act… 94 of 1998, and the common law mineral right attached thereto and a mining authorisation in terms of the Minerals Act; Category 6: A temporary authorisation or permit authorising the continuation of a mining operation on the land comprising the subject of a mining authorisation or permit, as provided for in section 10 of the Minerals Act.’
  • Item 2(a).
  • Item 8(1).
  • Item 2(b).
  • Item 8(2).
  • Item 8(3).
  • Item 8(4).
  • Item 6(1).
  • Item 6(2). The following has to be submitted together with the application: (a) the prescribed particulars of the holder; (b) a sketch plan or diagram depicting the mining area for which the conversion is required; the area may not be larger than the area for which he or she holds the old order prospecting right; (c) the name of the mineral or group of minerals for which he or she holds the old order prospecting right; (d) an affidavit verifying that the holder conducted prospecting operations on the land to which the conversion relates immediately before the Bill took effect and setting out the periods during which such prospecting operations had been conducted; (e) a statement setting out the period for which the prospecting right is required, substantiated by a prospecting work programme; (f) information as to whether or not the old order prospecting right is encumbered by any mortgage bond or other right registered at the Deeds Office or Mining Titles Office; (g) a statement setting out the terms and conditions which apply to the old order prospecting right; (h) the original title deed in respect of the land to which the old order prospecting right relates, or a certified copy thereof; and (i) the original old order right or a certified copy and all prospecting information and the results thereof; and (j) all prospecting information and the results thereof (item 6(2)).
  • Namely the holder of an ‘old order prospecting right’: (a) has complied with the requirements of item 6(2), listed in the previous footnote; (b) has conducted prospecting operations in respect of the right in question; (c) indicates that he or she intends to continue to conduct such prospecting operations on the conversion of such right; (d) has an approved EMP; and (e) has paid the prescribed conversion fee (item 6(3).
  • Item 6(4).
  • Item 6(5).
  • Item 6(5).
  • In terms of either the Deeds Registries Act or the Mining Titles Registration Act.
  • Item 6(6).
  • Item 6(6).
  • As to what is encompassed by an ‘old prospecting right’, see n 165 above.
  • Item 6(7).
  • Item 6(8).
  • Item 7(1).
  • Item 7(2). The following have to be submitted together with the application: (a) the prescribed particulars of the holder; (b) a sketch plan or diagram depicting the prospecting area for which the conversion is required; the area may not be larger than the area for which he or she holds the old order mining right; (c) the name of the mineral or group of minerals for which he or she holds the old order mining right; (d) an affidavit verifying that the holder conducted mining operations on the land to which the conversion relates immediately before the Bill took effect and setting out the periods during which such mining operations had been conducted; (e) a statement setting out the period for which the mining right is required substantiated by mining work programme; (f) a prescribed social and labour plan; (g) information as to whether or not the old order mining right is encumbered by any mortgage bond or other right registered at the Deeds Office or Mining Titles Office; (h) a statement setting out the terms and conditions which apply to the old order mining right; (i) the original title deed in respect of the land to which the old order mining right relates, or a certified copy thereof; (j) the original old order right, the approved EMP or certified copies thereof; and (k) an undertaking that, and the manner in which, the holder will give effect to the objective to expand opportunities for historically disadvantaged persons to enter the mineral industry and to benefit from mineral exploitation and to promote employment and advance social and economic welfare of all South Africans (item 7(2) read with s 2(d) and ((f) of the Act). 187 Item 7(3). Namely, if the holder of the ‘old order mining right’: (a) has complied with the requirements listed in item 6(2) in the previous footnote; (b) has conducted mining operations in respect of the right in question; (c) indicates that he or she intends to continue to conduct such mining operations on the conversion of such right; (d) has an approved environmental management programme; and (e) has paid the prescribed conversion fee (item 7(3)).
  • Item 7(4).
  • Item 7(5).
  • Item 7(5).
  • In terms of either the Deeds Registries Act or the Mining Titles Registration Act.
  • Item 7(6).
  • Item 7(6).
  • As to what is encompassed by an ‘old order mining right’, see n 166 above.
  • Item 7(7).
  • Item 7(8).
  • Section 5(1).
  • A prospecting right (s 19(2)(a)) or a mining right (s 25(2)(a)) or a conversion of a prospecting right (item 6(5)) or a mining right (item 7(5)) has to be registered at the Mining Titles Office.
  • Badenhorst and Malherbe [2001] TSAR 462 at 464–477, 765, 768–779 and 785. As to the constitutionality of the Act, see Badenhorst and Mostert ‘Revisiting the Transitional Arrangements of the Mineral and Petroleum Resources Development Act 28 of 2002 and the Property Constitutional Property Clause: An Analysis in Two parts [2002] Stell L Rev 22.
  • Chamber's Memorandum, Introduction.
  • See n 4 above.
  • See ‘Impact on the notion of mineral rights’ above.
  • Ibid.
  • Item 12(1).
  • Item 12(3).
  • See item 2.
  • See section 55.
  • Namely, ‘(a) prove the extent and nature of actual loss and damage suffered by him or her; (b) indicate the current use of the property; (c) submit proof of ownership of such property; (d) give the history of acquisition of the property in question and price paid for it; (e) detail the nature of such property; (f) prove the market value of the property and the manner in which such value was determined; and (indicate) (g) the extent of any State assistance and benefits received in respect of such property’ (Item 12(2)).
  • Section 25(2)(b) of the Constitution read with item 12(3).
  • Section 25(3) of the Constitution read with item 12(3).
  • The following factors are listed: (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; (e) the purpose of expropriation (s 25(3) of the Constitution); (f) the state's obligation to redress the results of past racial discrimination in the allocation of and access to mineral (and petroleum) resources (item 11(2)(a)); (g) the state's obligation to bring about reforms to promote equitable access to all South Africa's natural resources (item 11(2)(b)); (h) the provisions of s 25(8) of the Constitution (item ll(2)(c)); and (i) whether the person concerned will continue to benefit from the use of the property in question or not (item 1 l(2)(d)). Section 25(8) of the Constitution determines that the provisions of the property clause may not impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination provided that any departure from the provisions of the property clause is in accordance with the provisions of the general limitation clause in s 36(1) of the Constitution.
  • Section 25(3) of the Constitution read with Item 12(3).
  • See further Badenhorst and Mostert supra [2004] Stell L Rev 22.
  • See, however, Lebowa Mineral Trust Beneficiaries Forum v The President of the RSA 2002 (1) BCLR 23 (T) at 28G-H 31D-E where it was incorrectly decided that ‘mineral rights’ are not ‘property’ for purposes of the Constitution. For a criticism of the decision, see Badenhorst and Vrancken, ‘Do Mineral Rights Constitute “Constitutional Property”? - Lebowa Mineral Trust Beneficiaries Forum v The President of the RSA’ [2001] Obiter 496.
  • See further section 6.

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