The ‘Thing’ Called ‘Mineral Right’: Re-Examining the Nature, Content and Scope of a Rather Confounding Concept in South African Law

Recht in Africa / Law in Africa / Droit en Afrique - Zeitschrift der Gesellschaft für afrikanisches Recht, 2014

27 Pages Posted: 17 Nov 2014

See all articles by Hanri Mostert

Hanri Mostert

University of Cape Town (UCT); University of Groningen

Date Written: November 15, 2014

Abstract

The nature of a right to minerals is controversial in South Africa. With the recent coming into force of new legislation governing mineral resources, the conventional view is that there has been a drastic shift of control over the country’s mineral wealth from private individuals to the state. However, in this article, the author explains that the conceptualisation of the mineral right in South Africa has always been inconsistent and contested, at least partly due to South Africa being a mixed legal system with conflicting theoretical foundations. With reference to Underkuffler’s theoretical framework of the legitimate regulatory powers of the state over property, the author demonstrates that the orthodox view in South Africa has historically emphasised the powers of private parties over mineral resources and viewed the state’s legitimate regulatory role as limited. However, the author argues, both historically and conceptually it is more accurate to acknowledge that the state has always exercised significant control over mining in South Africa, and the right to minerals has always been a flexible one which has varied across different legislative periods. The article outlines the evolution of the mineral right in South Africa, discusses the conflicting theoretical conceptions of the right (including whether it is servitudal in nature or an independent property right) and critiques the recent judicial treatment of the right by South Africa’s highest courts. The author concludes by suggesting that if the mineral right is understood correctly, the recent legislative changes are actually far less radical than commonly thought.

Keywords: mineral right, constitutional property protection, expropriation, property

Suggested Citation

Mostert, Hanri, The ‘Thing’ Called ‘Mineral Right’: Re-Examining the Nature, Content and Scope of a Rather Confounding Concept in South African Law (November 15, 2014). Recht in Africa / Law in Africa / Droit en Afrique - Zeitschrift der Gesellschaft für afrikanisches Recht, 2014, Available at SSRN: https://ssrn.com/abstract=2524953

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

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