Resolving the differences between mineral rights holders and common law surface rights holders in South Africa : an analysis of the mandatory disputes settlement mechanisms of the MPRDA 2002

Abstract

In terms of the MPRDA, mineral resources in South Africa fall under the custodianship of the state and should be managed as the common heritage of the people of the Republic of South Africa. Both natural and juristic persons, inclusive of the state, are entitled to apply for prospecting or mineral rights from the Department of Mineral Resources and Energy. In terms of the MPRDA, an applicant can be awarded rights to the mineral resources on land held in private ownership. As a result, when the interests of the mineral rights holders and surface rights holders compete or clash, such clash triggers dispute settlement mechanisms provided for under MPRDA which ultimately may lead to compensation for loss or damage to the land of the surface rights holders because of invasive nature of the mining operations. This study will examine the dispute settlement mechanism and mandatory statutory remedies which are available to both mineral rights holders and surface rights holders alike under the MPRDA. In particular, the study will consider dispute settlement under common law, the old order, and new order rights and whether the provisions of the MPRDA favour mining rights holders over common law surface rights holders in its provisions of dispute settlement mechanism between these parties. The study further considers informal surface rights holders, and the lack of communal consent for deprivation of the informal surface rights holders’ interest in their land, which leads to the dispute. The findings of the research suggest that Section 54 must be exhausted to balance the rights of the prospecting or mining rights holders and surface rights holders. The provision of section 54 provides for a speedy dispute resolution process that is premised on parties reaching some sort of agreement through mediation. It also provides that if parties fail to reach an agreement, then they may approach a court. Therefore, a mining rights holder should not be entitled to mine until the section 54 process is finalized. A Section 54(5) contemplates that if negotiations between the affected parties and the mining right holder are deadlocked, and the Regional Manager concludes that any further negotiations may detrimentally affect the objects of the MPRDA, he or she may recommend to the Minister that the land be expropriated in terms of section 55. The provisions of MPRDA do favour mining rights holders over common law surface rights holders even though at common law surface rights holders do not have the right to veto the granting or exercise of prospecting or mining rights. The prospecting or mining rights holders must notify, obtain consent, and consult with owners of land or lawful occupier of the land in respect of the use of the surface of the land in question. Accordingly, is only under IPILRA and not MPRDA that the ‘consent’ of most of the community is required before a prospecting or mining right is granted.