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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/1663 |
| Date | January 2006 |
| Creators | Van der Schyff, Elmarie |
| Publisher | North-West University |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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