Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis
DOI:
https://doi.org/10.17159/1727-3781/2022/v25i0a11121Keywords:
Mining law, transition, transitional law, mining rights, Minerals and Petroleum Resources Development ActAbstract
The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed.
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Author Biography
Themba Mathebula, Univeristy of Limpopo
Lecturer and Head of Private Law Department, School of Law, University of Limpopo, South Africa
References
Literature
Bandenhorst PJ and Olivier NJJ "Expropriation of 'Unused Old Order Rights' by the MPRDA: You Have Lost It! Agri SA v. Minister of Minerals and Energy (Centre for Applied Legal Studies as Amicus Curiae) (2011) 3 All SA 296 (GNP)" THRHR 329-343
Badenhorst PJ and Olivier NJJ "Transition of Jointly-Held Old Order Mining Rights: An All and Nothing Ruling? Minister of Mining Resources of the RSA v Sishen Iron Ore (394/12) [2013] ZASCA 50" THRHR 145-155
Cawood FT "The Mining and Petroleum Resources Development Act of 2002: A Paradigm Shift in Mining Policy in South Africa" 2004 SAIMM 53 –64
Mostert H Mining Law: Principles and Policies in Perspective (Juta Cape Town 2012)
Van der Walt AJ and Pienaar GJ Constitutional Property Law 3rd ed (Juta Cape Town 2011)
Case law
Aquila Steel v Minister of Mining Resources 2019 3 SA 621 (CC)
Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC)
Bosaletse v Minister of Mining Resources 2013 ZAFSHC 166 (26 September 2013)
Chamber of Mines of South Africa v Minister of Mining Resources 2018 4 SA 581 (GP)
De Beers Consolidated Mines Ltd v Ataqua Mining (Pty) Ltd (O) (unreported) case number 3215/06 of 13 December 2007
Ekapa Minerals (Pty) Ltd v Seekoei (NCHC) (unreported) case number 2057/2016 of 13 January 2017
First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC)
Meepo v Kotze 2008 1 SA 104(NC)
Minister of Mining Resources v Agri South Africa (Centre for Applied Legal Studies as amicus curiae) 2012 3 All SA 266(CC)
Minister of Mining Resources v Sishen Iron Ore Company (Pty) Limited 2014 2 SA 603 (CC)
Legislation
Constitution of the Republic of South Africa, 1996
Mines and Works Act 27 of 1956
Minerals Act 50 of 1991
Minerals and Petroleum Resources Development Act 28 of 2002
Mining Leases Act 12 of 1895.
Mining Rights Act 20 of 1967
Precious Stones Act 73 of 1964
Precious Stones and Minerals Mining Act 19 of 1883
Government documents
Freedom Charter of 1955
Internet sources
African National Congress 1955 The Freedom Charter https://www.anc1912.org.za/the-freedom-charter-2/ accessed 26 August 2022
Coto M 2014 What Happens to Old Order Rights Once They Cease to Exist-http://lexology.com accessed on 10 April 2019
De Greef K 2017 Illicit Miners Scrape for Diamonds on Abandoned Mines https://www.aljazeera.com/indepth/features/2017/01/illi.cit-miners-scrape-diamonds-abandoned-mines-170118074756756.html accessed 3 September 2019.
Tucker C and Muleza T 2008 New Order Mining Rights Four Years into a New Mining Regime http:bowmanslaw.com/insights accessed 10 April 2019
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Copyright (c) 2023 Themba Mathebula
This work is licensed under a Creative Commons Attribution 4.0 International License.
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