A critical discussion of Mawetse v Dilokong with regard to the nature of mineral rights

Abstract

Section 5(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 28 of 2002 stipulates that a prospecting and mining right granted in terms of the aforementioned Act and registered in terms of the Mining Titles Registration Act 16 of 1967 is a limited real right in respect of the mineral and the land to which it relates. Section 2(4) of the Mining Titles Registration Act 16 of 1967 determines that registration of a prospecting or mining right in terms of that act constitutes a limited real right binding on third parties. Section 1 of the Mineral and Petroleum Resources Development Act 28 of 2002 defines the effective date of a prospecting or mining right to be the date of execution thereof. In the judgement of the Minister of Mineral Resources and Others vs Mawetse (SA) Mining Corporation (Pty) Ltd, the Supreme Court of Appeal through Majiedt, J held that a prospecting right, and by implication a mining right, becomes enforceable on date of approval of the environmental management programme related to such right. In practice the approval of an environmental management programme occurs on date of execution. Considering this judgement and legislative provisions, it is obvious that a contradiction exist as to when a prospecting or mining right becomes enforceable against third parties such as landowners. The common law principle with regard to limited real rights are that limited real rights become enforceable upon registration against third parties on the basis that such registration serves as publication to the public of its existence and enforceability. The question arises whether the nature of prospecting or mining rights as limited real rights has changed from the aforementioned common law principle through the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 on whether the aforementioned act and the Mining Titles Registration Act 16 of 1967 incorporate this common law principle into the aforementioned legislation. The Mawetse - judgement deviates from both the provisions of the Mineral and Petroleum Resources Development Act 28 of 2002 and the aforementioned common law principle. It also deviated from previous case law which held that prospecting- and by implication mining rights are contractual in nature, by finding that they are the result of unilateral administrative action. If contractual in nature, it is arguable that prospecting or mining rights become enforceable on date of registration through the common law principles underpinning enforceability of limited real rights and if the result of unilateral administrative action, in terms of the Mawetse - judgement becomes enforceable on date of approval of the environmental management programme, which coincides with the date of execution. It is of importance to ascertain whether prospecting and mining rights are contractual in nature, the result of unilateral administrative action or hybrid of both to answer the question whether they are enforceable as limited real right before registration or only upon registration. The methodology to answer these questions entails a critical case study of the Mawetse - judgement and an analysis of the interpretation of statutory and common law. This dissertation will explore when prospecting and mining rights become enforceable against third parties such as landowners and secondary thereto, whether they are contractual in nature, the result of unilateral administrative action or a hybrid of both, in order to answer the primary and secondary questions that arise from the aforementioned.