When mining companies extract minerals from the earth, they leave huge deposits of soil and ore next to the mining site. These deposits are commonly known as tailings. In most instances, tailings contain a considerable amount of valuable mineral resources which cannot be exploited because of a lack of appropriate equipment, or as a result of economic non-viability. However, many mining companies choose to keep and maintain these tailings, in the hope that such minerals can later be exploited when time or technology allows for this. Under common-law the owner of a property is considered to also own any minerals contained on the property, in terms of the principle of cuius est solum. In South African law, however, a practice evolved whereby owners of minerals separated rights to minerals from the surface rights on the property. This created a mining right which was independent from the land and could be transferred to third parties, often in return for compensation. Under the Minerals Act of 1991 the owner of a mining right over a property (be that the owner of the property or a third-party mining right holder) also held the mining right to tailings which were created as a result of mining activities under the right. Thus, if a mining company performed mining activities on a property, the company was also free to exploit the tailings which were left next to its mine, regardless of whether the dump had remained there for a long period of time. Owing to South Africa's long history of mining, some tailings are over a century old and resemble small mountains rather than mining deposits. The Mineral and Petroleum Resources Development Act of 2002 changed the entire mineral legislative regime in South Africa. Whereas owners of land were previously free to separate and sell their rights to minerals to anyone they wished, the MPRDA placed the country‟s mineral and petroleum resources under the state's "custodianship." Where the law talks about custodianship, however, it supposedly refers only to minerals that have not yet been extracted from the earth. It is well established in South African law that, once a mineral is extracted, it becomes the movable property of the person who extracted it – in other words, that of the mining company. Does this mean that minerals in tailings also fall under the state's custodianship? The Free State High Court did not think so. In the case of De Beers v Ataqua it held that, in terms of the common law principles of acquisition by way of attachment, tailings are clearly movable property and therefore belong to the mining company who created them. For the MPRDA to hold otherwise would amount to expropriation. The state did not wish for some mining activities to be regulated by a different set of legislation, so it amended the MPRDA to try and define "residue deposits" (the name by which the MPRDA calls tailings) more clearly. However, due to the legislature's unfortunate choice of wording, tailings created before the enactment of the MPRDA are still, strictly speaking, not regulated by that Act. So the legislature proposed another amendment to the Act, this time making sure that any historical mine dump created at any point in South Africa's history are placed under the Act's regime. The subject matter of this study is whether the above amendments to the MPRDA could be considered to be expropriation. For background purposes, a brief overview of the Ataqua decision as well as the subsequent amendments to the MPRDA will be given. Then the history of mining legislation and the development of a separate mining right will be summarised. The reason for this summary is to establish whether, in terms of constitutional litigation, a clear right has been established for purposes of protection under section 25 of the Constitution. The last phase of the study will look at the particular characteristics of expropriation and ask the question whether acquisition of a right by the state is always a fundamental requirement for expropriation to take place. It is submitted that the destruction of an entire class of property by way of legislation, amounts to so-called "institutional expropriation," which is subject to compensation in terms of section 25. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2015

When mining companies extract minerals from the earth, they leave huge deposits of soil and ore next to the mining site. These deposits are commonly known as tailings. In most instances, tailings contain a considerable amount of valuable mineral resources which cannot be exploited because of a lack of appropriate equipment, or as a result of economic non-viability. However, many mining companies choose to keep and maintain these tailings, in the hope that such minerals can later be exploited when time or technology allows for this. Under common-law the owner of a property is considered to also own any minerals contained on the property, in terms of the principle of cuius est solum. In South African law, however, a practice evolved whereby owners of minerals separated rights to minerals from the surface rights on the property. This created a mining right which was independent from the land and could be transferred to third parties, often in return for compensation. Under the Minerals Act of 1991 the owner of a mining right over a property (be that the owner of the property or a third-party mining right holder) also held the mining right to tailings which were created as a result of mining activities under the right. Thus, if a mining company performed mining activities on a property, the company was also free to exploit the tailings which were left next to its mine, regardless of whether the dump had remained there for a long period of time. Owing to South Africa's long history of mining, some tailings are over a century old and resemble small mountains rather than mining deposits. The Mineral and Petroleum Resources Development Act of 2002 changed the entire mineral legislative regime in South Africa. Whereas owners of land were previously free to separate and sell their rights to minerals to anyone they wished, the MPRDA placed the country‟s mineral and petroleum resources under the state's "custodianship." Where the law talks about custodianship, however, it supposedly refers only to minerals that have not yet been extracted from the earth. It is well established in South African law that, once a mineral is extracted, it becomes the movable property of the person who extracted it – in other words, that of the mining company. Does this mean that minerals in tailings also fall under the state's custodianship? The Free State High Court did not think so. In the case of De Beers v Ataqua it held that, in terms of the common law principles of acquisition by way of attachment, tailings are clearly movable property and therefore belong to the mining company who created them. For the MPRDA to hold otherwise would amount to expropriation. The state did not wish for some mining activities to be regulated by a different set of legislation, so it amended the MPRDA to try and define "residue deposits" (the name by which the MPRDA calls tailings) more clearly. However, due to the legislature's unfortunate choice of wording, tailings created before the enactment of the MPRDA are still, strictly speaking, not regulated by that Act. So the legislature proposed another amendment to the Act, this time making sure that any historical mine dump created at any point in South Africa's history are placed under the Act's regime. The subject matter of this study is whether the above amendments to the MPRDA could be considered to be expropriation. For background purposes, a brief overview of the Ataqua decision as well as the subsequent amendments to the MPRDA will be given. Then the history of mining legislation and the development of a separate mining right will be summarised. The reason for this summary is to establish whether, in terms of constitutional litigation, a clear right has been established for purposes of protection under section 25 of the Constitution. The last phase of the study will look at the particular characteristics of expropriation and ask the question whether acquisition of a right by the state is always a fundamental requirement for expropriation to take place. It is submitted that the destruction of an entire class of property by way of legislation, amounts to so-called "institutional expropriation," which is subject to compensation in terms of section 25. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2015

The Mineral and Petroleum Resources Development Act introduced a new mining law dispensation. This Act has implications for mineral right holders. Up to 1 May 2004, the right to prospect or mine vested in the holder of the mineral right concerned under the system of private ownership as set out in the Minerals Act 50 of 1991. The 2002 Act which is premised on the principle that minerals as a natural resource are part of the natural heritage of all South Africans, eliminates the concept of private ownership of mineral rights and vests the right to prospect or mine exclusively in the state. Mineral rights were always assets in the estate of a person and were handled in the administration of the estate. The question is whether mineral rights and royalties are still assets of the estate under the 2002 Act. New applicants under the 2002 Act will have to apply directly to the state for the right to prospect and mine, regardless of the identity of the previous holder of the relevant right. Holders of existing (old order) rights will have an opportunity to ensure the ongoing validity of these rights by complying with the conversion criteria contained in the 2002 Act. New order rights issued or converted under the 2002 Act differ from old order rights insofar as their duration, transferability, mortgage ability and the royalties payable thereon. Although the new order rights are still referred to as limited real rights in article 5 of the 2002 Act, these converted rights are more restricted in content. These new order rights cannot be ceded, transferred, let, sublet, assigned, alienated or otherwise disposed of without the written consent of the minister. Except for the transitional arrangements in Schedule 2, the 2002 Act would terminate the notion and use of the vehicle of mineral rights. When comparing the new order rights to the old order rights, the question of deprivation and expropriation arises. It is not clear exactly when a claim for compensation for expropriation of property arises and what the term of the period of prescription would be. The duration of the new prospecting right and mining right are statutorily regulated. In drawing a comparison between the old order and the new order rights, a distinction may be drawn between: (a) Situations where the holder of the old order right would be successful with his application for conversion to a new order right; (b) Situations where the holder of the old order right was unsuccessful with the application for a conversion of rights; (c) Situations where the holder chooses not to apply for conversions at all. Financial benefits to be derived from former mineral rights are also affected. The right to receive royalties may be protected under the constitutional property clause and a withdrawal of these rights from the private sphere and the assignment thereof to the state may represent a deprivation of property in the constitutional sense. Royalties to communities and natural persons may continue to them after the 2002 Act, but the position of legal entities and trust remain insecure. All these changes will affect the estate and the estate planning of the landowner and the holder of mineral rights. In this mini-dissertation all the important provisions regarding estate planning will receive attention. Transferability of the new order rights, royalties, and the effect of the new law on the value of property in the estate, will be looked at. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2005.

The Mineral and Petroleum Resources Development Act introduced a new mining law dispensation. This Act has implications for mineral right holders. Up to 1 May 2004, the right to prospect or mine vested in the holder of the mineral right concerned under the system of private ownership as set out in the Minerals Act 50 of 1991. The 2002 Act which is premised on the principle that minerals as a natural resource are part of the natural heritage of all South Africans, eliminates the concept of private ownership of mineral rights and vests the right to prospect or mine exclusively in the state. Mineral rights were always assets in the estate of a person and were handled in the administration of the estate. The question is whether mineral rights and royalties are still assets of the estate under the 2002 Act. New applicants under the 2002 Act will have to apply directly to the state for the right to prospect and mine, regardless of the identity of the previous holder of the relevant right. Holders of existing (old order) rights will have an opportunity to ensure the ongoing validity of these rights by complying with the conversion criteria contained in the 2002 Act. New order rights issued or converted under the 2002 Act differ from old order rights insofar as their duration, transferability, mortgage ability and the royalties payable thereon. Although the new order rights are still referred to as limited real rights in article 5 of the 2002 Act, these converted rights are more restricted in content. These new order rights cannot be ceded, transferred, let, sublet, assigned, alienated or otherwise disposed of without the written consent of the minister. Except for the transitional arrangements in Schedule 2, the 2002 Act would terminate the notion and use of the vehicle of mineral rights. When comparing the new order rights to the old order rights, the question of deprivation and expropriation arises. It is not clear exactly when a claim for compensation for expropriation of property arises and what the term of the period of prescription would be. The duration of the new prospecting right and mining right are statutorily regulated. In drawing a comparison between the old order and the new order rights, a distinction may be drawn between: (a) Situations where the holder of the old order right would be successful with his application for conversion to a new order right; (b) Situations where the holder of the old order right was unsuccessful with the application for a conversion of rights; (c) Situations where the holder chooses not to apply for conversions at all. Financial benefits to be derived from former mineral rights are also affected. The right to receive royalties may be protected under the constitutional property clause and a withdrawal of these rights from the private sphere and the assignment thereof to the state may represent a deprivation of property in the constitutional sense. Royalties to communities and natural persons may continue to them after the 2002 Act, but the position of legal entities and trust remain insecure. All these changes will affect the estate and the estate planning of the landowner and the holder of mineral rights. In this mini-dissertation all the important provisions regarding estate planning will receive attention. Transferability of the new order rights, royalties, and the effect of the new law on the value of property in the estate, will be looked at. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2005.

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2013 / In terms of the previous mining legislation in South Africa, mineral rights were held privately and in some instances by the state. The Mineral and Petroleum Resources Development Act (MPRDA) now vests all mineral rights in the state. Through the transitional provisions included in the MPRDA, mining companies can convert their existing ‘old order’ rights to prospect and/or mine (previously granted under the now repealed Minerals Act) to the ‘new order’ rights introduced by the MPRDA. The purpose of the MPRDA is to ensure the sustainable utilisation of South Africa’s mineral and petroleum resources within a national environmental framework policy which primarily protects sensitive environments and the interests of affected communities, organisations and individuals, while promoting socio-economic development.

The objective of this thesis is to examine the legal procedures and systems concerning granting or possessing mineral rights, and how such rights may be exercised, particularly given the diametric interests of land use, ownership and land tenure. The study, comparative in its nature, aims at highlighting the similarities and differences between the countries and states of comparison, and thereby identify interesting solutions of issues relating to the granting and exercising of mineral rights. The study examines mineral rights and different legal systems regulating mineral exploration and exploitation. The focus is on mining and mineral legislation and its application, including the exercise of mineral rights. The systems chosen are those of Sweden, Finland and the states of Ontario and Western Australia. The main result is generated by the comparison dealing with the application, granting and possession of mineral rights related to the development of a mine. Several processes are thereby identified. In addition, the content and extent of the different rights and obligations related to exploration and exploitation activities are examined, as well as land areas open or closed for the exercise of these rights. The legal processes concerning granting mineral rights are in fact complex as evidenced by this work, particularly when land-use and environmental legislation is taken into account. The perception of a good balance in legislation between diametric interests of land use, ownership and land tenure is heavily linked to the view of sustainable development. The difficulties of achieving this are confirmed by the countries and states compared. The continuous change of mineral legislation during the course of this study is an indication of the complexity of the topic. / QC20100723

Thesis (LLM. (Management and Development Law)) -- University of Limpopo, 2016 / Previously the concept of ownership has played a role in the development of Minerals right and was regarded as an absolute right of the owner to do what he desired with property. It is nowadays accepted that ownership is not an absolute and unlimited but the concept is still undergoing transformation. Since the enacted of the Mineral and Petroleum Resources Development Act (MPRDA) now vest on the State as the Custodian of all minerals in South Africa. The vesting of the Mineral right does however interfere with the common law right private ownership, and the investor as expressed in the constitution. The term Custodian as used in the Bill is a misnomer, in that the Bill proposes not mere Custodianship, but an actual vesting in the State by giving effect to the universally accepted right of the State to exercise permanent Sovereignty to all minerals resources. The new Mining legislation regime with specific reference Mineral and Petroleum Resources Development Act and National Environmental Management Act are precisely paced to ensure optimal exploitation of natural resources while promoting sustainable development.

The promulgation of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) led to a significant increase in the number of junior exploration companies. In this regard, International Financial Reporting Standard (IFRS) 6 allows companies to develop their own accounting policies for exploration and evaluation expenditure. However, there is no definition of either prospecting or exploration in the Income Tax Act 58 of 1962 (Income Tax Act). The objective of this study was to perform a literature review and to carry out empirical research by using questionnaires that were distributed to junior exploration companies to investigate whether accounting and taxation practices are consistently applied. Accordingly, the findings confirmed that the accounting and taxation practices followed by junior exploration companies are not consistently applied. / Financial Accounting / M.Com. (Accounting)

South Africa entered a new era on 1 May 2004 with the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). Section 3 states that the mineral and petroleum resources are the common heritage of all South Africans. Due to the fact that a new era of mineral rights has been introduced, it is necessary to investigate the effect of the new Act on the process of estate planning. This study is focused to determine which of the rights found in the MPRDA can be classified as assets in an estate, and which of these rights should be discounted for in the process of estate planning that is focused on the inheritance of assets. The study firstly deals with the mineral rights as property in terms of section 25 of the Constitution. After a brief synopsis has been given of the old order mineral rights, the focus falls on the nature and transferability of the new order mineral rights and the implications that the said rights have on the process of estate planning. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.

South Africa entered a new era on 1 May 2004 with the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). Section 3 states that the mineral and petroleum resources are the common heritage of all South Africans. Due to the fact that a new era of mineral rights has been introduced, it is necessary to investigate the effect of the new Act on the process of estate planning. This study is focused to determine which of the rights found in the MPRDA can be classified as assets in an estate, and which of these rights should be discounted for in the process of estate planning that is focused on the inheritance of assets. The study firstly deals with the mineral rights as property in terms of section 25 of the Constitution. After a brief synopsis has been given of the old order mineral rights, the focus falls on the nature and transferability of the new order mineral rights and the implications that the said rights have on the process of estate planning. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.