Roman-Dutch Law, Custodianship, and the African Subsurface: The South African and Namibian Experiences

The Law of Energy Underground: Understanding New Developments in Subsurface Production, Transmission, and Storage, Edited by Donald N. Zillman, Aileen McHarg, Adrian Bradbrook, and Lila Barrera-Hernandez, Oxford University Press, ISBN: 978-0-19-870318-1, Available April 2014, Forthcoming

41 Pages Posted: 4 Dec 2013

See all articles by Hanri Mostert

Hanri Mostert

University of Cape Town (UCT); University of Groningen

Hugo Meyer van den Berg

Koep & Partners; DST/NRF SARChI Chair: Mineral Law in Africa, University of Cape Town; Mineral and Energy Law Trust

Date Written: December 3, 2013

Abstract

The legal heritage of Southern Africa provides interesting perspectives on the general theme of section one of this book, i.e. the history and present status of laws governing energy resources in different legal families. Common Law and Civil Law approaches to subsurface resource regulation will be sketched in the contributions of Barton, Gonzalez and Daintith. The "mixed" legal family to which South Africa, Namibia and Botswana belongs, crosses over the common law/civil law divide; to provide for the regulation of subsurface resources in peculiar and often anomalous ways. The reason for this mix is found in the bipartite colonial history of the region.

Our contribution is limited to a study of one particular African perspective on subsurface resource regulation: that of Southern Africa. Here the development of a mixed legal tradition has been most pronounced, because of the region’s particular colonial history. In this chapter, we examine the proprietary principles on which the law relating to subsurface regulation is based, referring particularly to differences in the reception of Roman-Dutch law due to different colonial histories. Our main focus is South Africa and Namibia, although we include superficial references to Botswana. In undertaking this analysis, we are particularly interested in the role that legislative regulation and policy changes have played to amend or substitute Roman-Dutch law rules. This line of inquiry may assist in determining whether the peculiar roots of the mixed legal family investigated here remain influential in current law and practice regulating the subsurface.

We contrast the legacy of Roman-Dutch law in South Africa, Namibia and Botswana, discussing basic tenets of subsurface ownership from the Roman-Dutch law perspective, and tracing the influence that colonialism and constitutionalism had on the development of the legal system as it pertains to the subsurface.

Keywords: mineral law, mineral and petroleum resources, custodianship, state ownership, South Africa, Namibia

Suggested Citation

Mostert, Hanri and van den Berg, Hugo Meyer, Roman-Dutch Law, Custodianship, and the African Subsurface: The South African and Namibian Experiences (December 3, 2013). The Law of Energy Underground: Understanding New Developments in Subsurface Production, Transmission, and Storage, Edited by Donald N. Zillman, Aileen McHarg, Adrian Bradbrook, and Lila Barrera-Hernandez, Oxford University Press, ISBN: 978-0-19-870318-1, Available April 2014, Forthcoming . Available at SSRN: https://ssrn.com/abstract=2362886

Hanri Mostert (Contact Author)

University of Cape Town (UCT) ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

University of Groningen ( email )

P.O. Box 800
9700 AH Groningen, Groningen 9700 AV
Netherlands

HOME PAGE: http://www.rug.nl/gcl/visitorsprogramma/ProfMostert

Hugo Meyer Van den Berg

Koep & Partners ( email )

33 Schanzen Road
PO Box 3516
Windhoek
Namibia

HOME PAGE: http://www.koep.com.na

DST/NRF SARChI Chair: Mineral Law in Africa, University of Cape Town ( email )

Private Bag X3
Rondebosch, Western Cape 7701
South Africa

Mineral and Energy Law Trust ( email )

33 Schanzen Road
Windhoek, 9000
Namibia

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