Abstract:
The skewed race-based land distribution patterns which characterised pre-1994 South Africa also found full expression in access to, and the allocation and use of, minerals in South Africa. The Constitution of the Republic of South Africa, 1996 provides a framework for the transformation of the South African society, including the reallocation of natural resources such as land, water and minerals. In order to enable prospecting for and mining of minerals by communities and individuals who were in the past excluded from obtaining any such rights the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) provided for the conversion of so-called old order rights into new order MPRDA rights, as well as the allocation of prospecting and mining rights by the minister to successful applicants, while vesting the custodianship of all minerals in the state for the benefit of all South Africans. In Agri SA vs Minister for Minerals and Energy 2013 4 SA 1 (CC) the constitutional court found that the termination of an old order mineral right in the case where the holder had not applied for such conversion constituted deprivation and not expropriation (and consequently no compensation as provided for in section 25(3) of the Constitution was payable). The basis for the court’s decision was the transformational nature of the Constitution and the need to affect redress as regards the previous exclusions in respect of access and use. This case note discusses the interpretation of “acquisition” (which in the view of the court is a prerequisite for expropriation) and the paradigm shift that has in effect been implemented through the abolition (by the MPRDA) of private ownership on minerals. In conclusion it is suggested that an extensive identification and analysis of all relevant legal and related principles should be undertaken in order to establish a comprehensive and interconnected juridical basis for the above paradigm shift.
