M.Comm. (International Taxation) / Lyn Bourne (n.d.) once wrote "The concept of royalties evolved from a time when the government owned all of the land, including mines, to the situation where free miners won the right to claim minerals, but paid a portion of their production to the royal treasury. Today, a mineral royalty is a payment to the owner of the mineral rights for the privilege of producing the mineral commodity"...

The Mineral and Petroleum Resources Development Act (“MPRDA”) and the Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry (“Mining Charter”), created in terms of the MPRDA, aim to address the exploitative legacies of past discriminatory practices in the mining industry. Impoverished mining communities stand to benefit from empowerment under the Mining Charter in the form of mine community development – one of the elements that constitute a mining right holder's commitment under the Mining Charter. Despite this legislative intervention and the relative wealth generated by the extraction of mineral resources, poverty and conflict have become the stereotypical images associated with mining areas. This project aims to determine why the empowerment of mining communities through mine community development perpetuates poverty from the past and creates new inequalities. To answer this main question, it is considered how the historical context within which the relevant policy and legislation were created, affected legislative drafting. Second, the effects of promoting development and empowerment in legislative provisions are explored to determine which worldviews and underlying values are being promoted by the legislative instruments under discussion. Furthermore, it is considered how these worldviews and underlying values affect how mining communities, subjected to harsh socio-economic living conditions, are depicted in legislative provisions. Here, it is specifically considered what the notion of “community” signifies in a development context and how “community” is represented in legislation. The thesis is a theoretical exposition of the ideological assumptions underlying the concepts “development”, “empowerment”, “community” and “poverty”. It is shown that “mine community development” is an inherently contradictory notion in South African law. The development paradigm implies the universalisation of values, effectively creating “the poor”, and causing vagueness and paradoxes. It results not only in a perpetuation of poverty and inequality from the past but also in the creation of new inequalities, as is evident in the differentiation drawn by the Mining Charter between different types of communities in mining areas. Measures currently being enforced by the legislation under discussion, are in desperate need of reconsideration.

M.Tech. Business Administration. Business School. / The implementation of the Mineral and Petroleum Resources Development Act (MPRDA) of 2002, effective as from 1 April 2004, presented a huge challenge as its implementation gave rise to concerns expressed by various key stakeholders. It also fuelled perceptions that South Africa may have sacrificed its competitiveness. In an attempt to manage these challenges the Mining Industry Growth Development and Employment Task Team (MIGDETT) was instituted in December 2008 by the mining industry in South Africa. During the MIGDETT process stakeholders concluded unanimously that transformation and growth are mutually inclusive concepts. Against this background, the objective of this study was to assess the implementation of the MPRDA Act using well researched mineral investment and competitiveness guidelines including Michael Porter's framework.

The implementation of the Mineral and Petroleum Resources Royalty Act was anticipated to have a significant impact on the South African economy and mining industry. The mineral royalty is an effective instrument in the collection of compensation for extraction of mineral resources that cannot be renewed. An overview of the development, evolution and application of the mineral royalty indicated that the newly enacted Mineral and Petroleum Resources Royalty Act has constituted a more formal regulative system in determining the royalty amount payable. Various fundamental principles have been established in the act, such as distinguishing between refined and unrefined mineral resources, different royalty formulae to be applied to each of mineral resources and circumstances resulting in a mineral royalty obligation. The South African mining industry has been a cornerstone in forming the economy for many years. The industry has on average contributed approximately 8.8% directly to the country’s gross domestic product during 2011. The potential impact by the new royalty reform was predicted by researchers to impact mining operations’ profitability between 2% and 5%, whilst the sector’s contribution to total taxes was expected to rise by 8%. The actual impact of the Mineral and Petroleum Resources Royalty Act on the country’s fiscal and mining industry was reviewed to determine just how many circumstances have changed in South African mining, if any. The research study has found that although there has been an impact it was not as significant as anticipated. Die implementering van die Minerale en Petroleum Reserwes Tantieme Wet sou na verwagting ‘n groot impak op die Suid-Afrikaanse ekonomie en die mynbedryf hê. Minerale tantieme is ‘n doeltreffende instrument in die invordering van vergoeding vir die ontginning van minerale hulpbronne wat nie hernu kan word nie. ‘n Ondersoek oor die ontwikkeling, evolusie en toepassing van minerale tantieme het aangedui dat die onlangse Wet op Minerale en Petroleum Reserwes Tantieme ‘n meer formele regulerende stelsel teweeggebring het in die bepaling van tantieme betaalbaar. Verskeie fundamentele beginsels word onderskryf deur die Wet, soos die onderskeid tussen verwerkte en onverwerkte minerale hulpbronne, verskillende tantieme formules toepaslik op elk van die minerale hulpbronne en omstandighede wat lei tot ‘n mineraal tantiem verpligting. Die Suid-Afrikaanse mynbedryf was ‘n hoeksteen in die ontwikkeling van die ekonomie vir baie jare. Die bedryf het gemiddeld ongeveer 8.8% direk bygedra tot die land se bruto binnelandse produk gedurende 2011. Navorsers het voorspel dat die potensiële impak van die nuwe mineraalhervorming mynbou se winsgewendheid met tussen 2% en 5% sou beïnvloed, terwyl die sektor se bydrae tot die totale belasting na verwagting sou styg met 8%. Die werklike impak van die Mineraal en Petroleum Reserwes Tantieme Wet op die land se ekonomie en mynbedryf was hersien om vas te stel presies hoeveel omstandighede verander het in Suid-Afrikaanse mynbou, indien enige. Die studie het bevind dat selfs al het die nuwe tantieme stelsel ‘n impak gemaak op Suid-Afrika, dit nie so wesenlik was soos verwag nie. / Dissertation (MCom)--University of Pretoria, 2014. / am2014 / Taxation / unrestricted

Thesis (Ph.D. (Estate Law))--North-West University, Potchefstroom Campus, 2007.

The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA} is premised on the principle that minerals are part of the natural heritage of all South Africans. Section 3 of the MPRDA articulates the core of the new mineral law dispensation. Through the provisions of the said section, new concepts are introduced to the field of mineral law previously governed by the South African common law system of private ownership, based on Roman-Dutch principles. The study focused on section 3 of the MPRDA and the consequences ensuing from its implementation. Consequently, a historical overview of the development of South African mineral law was followed by an exposition of the development of the constitutional property concept. It was concluded that mineral rights from the previous dispensation constitute property protected by section 25 of the Constitution. It was also found that the development encapsulated in the MPRDA in respect of the ownership of the country's unsevered minerals, is indicative of the decline of private property. It is substituted by a line of thought which recognises that certain interests 'are held in common' by the nation. This idea is also found in inter alia the National Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998. This led to the next section of the research where the concept of custodial sovereignty as manifested in the Anglo-American public trust doctrine was studied. It was apparent that the public trust doctrine is a legal construct whereby ownership of certain assets vests in the state, to be administered on behalf of the nation and generations yet to come. The historical survey of the Roman concepts of res publicae and res omnium communes indicated that although this doctrine is not part of South Africa's common law heritage, principles underlying the doctrine found application in South African law in respect of the seashore. The conclusion was reached that the doctrine has indeed been incorporated in South African mineral law by the MPRDA, constituting a new mineral law regime in the country. Due to the fact that a new mineral law dispensation was introduced, mineral rights as they existed in the previous mineral law dispensation were annihilated. It was, therefore, necessary to determine whether this annihilation resulted in the expropriation of property. Consequently the content of the concept 'expropriation' was studied in order to determine whether the previously held mineral rights were expropriated. The study indicated that expropriation entails the acquisition of property by the state, but that ample room exists for the development of the concept of constructive expropriation. Based on the information gained on the concept of expropriation, the consequences ensuing from the MPRDA for the holders of common law mineral rights and old order rights and the impact of the MPRDA on ownership of landowners were analysed. It was indicated that the extent of the deprivation brought about by the MPRDA varies between expropriation and the regulation of mining activities. The significance of section 3 of the MPRDA for the people of South Africa was analysed and it was found that the newly introduced doctrine can be applied to the advantage of the nation as a whole. A separate section of the research entailed a limited comparative analysis of Canadian mining law that focused on constitutional jurisdiction over minerals in the Canadian mining regime and the taking of property interests in minerals. It is proposed that the South African expropriation concept should develop along the lines followed in Canadian jurisprudence. After considering the abovementioned aspects, the final conclusion of the study is that the concepts introduced by and the consequences emanating from the implementation of section 3 of the MPRDA are constitutionally justifiable. / Thesis (LL.D (Indigenous Law)) -- North-West University, Potchefstroom Campus, 2007.

The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA} is premised on the principle that minerals are part of the natural heritage of all South Africans. Section 3 of the MPRDA articulates the core of the new mineral law dispensation. Through the provisions of the said section, new concepts are introduced to the field of mineral law previously governed by the South African common law system of private ownership, based on Roman-Dutch principles. The study focused on section 3 of the MPRDA and the consequences ensuing from its implementation. Consequently, a historical overview of the development of South African mineral law was followed by an exposition of the development of the constitutional property concept. It was concluded that mineral rights from the previous dispensation constitute property protected by section 25 of the Constitution. It was also found that the development encapsulated in the MPRDA in respect of the ownership of the country's unsevered minerals, is indicative of the decline of private property. It is substituted by a line of thought which recognises that certain interests 'are held in common' by the nation. This idea is also found in inter alia the National Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998. This led to the next section of the research where the concept of custodial sovereignty as manifested in the Anglo-American public trust doctrine was studied. It was apparent that the public trust doctrine is a legal construct whereby ownership of certain assets vests in the state, to be administered on behalf of the nation and generations yet to come. The historical survey of the Roman concepts of res publicae and res omnium communes indicated that although this doctrine is not part of South Africa's common law heritage, principles underlying the doctrine found application in South African law in respect of the seashore. The conclusion was reached that the doctrine has indeed been incorporated in South African mineral law by the MPRDA, constituting a new mineral law regime in the country. Due to the fact that a new mineral law dispensation was introduced, mineral rights as they existed in the previous mineral law dispensation were annihilated. It was, therefore, necessary to determine whether this annihilation resulted in the expropriation of property. Consequently the content of the concept 'expropriation' was studied in order to determine whether the previously held mineral rights were expropriated. The study indicated that expropriation entails the acquisition of property by the state, but that ample room exists for the development of the concept of constructive expropriation. Based on the information gained on the concept of expropriation, the consequences ensuing from the MPRDA for the holders of common law mineral rights and old order rights and the impact of the MPRDA on ownership of landowners were analysed. It was indicated that the extent of the deprivation brought about by the MPRDA varies between expropriation and the regulation of mining activities. The significance of section 3 of the MPRDA for the people of South Africa was analysed and it was found that the newly introduced doctrine can be applied to the advantage of the nation as a whole. A separate section of the research entailed a limited comparative analysis of Canadian mining law that focused on constitutional jurisdiction over minerals in the Canadian mining regime and the taking of property interests in minerals. It is proposed that the South African expropriation concept should develop along the lines followed in Canadian jurisprudence. After considering the abovementioned aspects, the final conclusion of the study is that the concepts introduced by and the consequences emanating from the implementation of section 3 of the MPRDA are constitutionally justifiable. / Thesis (LL.D (Indigenous Law)) -- North-West University, Potchefstroom Campus, 2007.