n Tydskrif vir die Suid-Afrikaanse Reg - Expropriation and arbitrary deprival of property : five forensic constructions
2013 7 BCLR 727 (CC), 20134 SA 1 (CC) : regspraak

Volume 2013, Issue 4
  • ISSN : 0257-7747
  • E-ISSN: 1996-2207



The Mineral and Petroleum Resources Development Act 28 of 2002 replaced an extensively regulated private rights regime on ownership in minerals with a licence-based regime in which the state controls access to mineral resources (Van der Walt (2011) 404; for a summary of how extensively regulated the private rights based system was, see Mostert (2012) 72-73). Section 3(1) of the act provides that mineral and petroleum resources are the common heritage of all people of South Africa and that the state is the custodian thereof. (For an analysis of the concepts of public trust and custodianship in this and other South African statutes, the National Water Act 36 of 1998 and the National Environmental Management Act 107 of 1998, see Van der Schyff "Stewardship doctrines of public trust: has the eagle of public trust landed on South African soil" 2013 369 379-389 and "Who 'owns' the country's mineral resources? The possible incorporation of the public trust doctrine through the Mineral and Petroleum Resources Act" 2008 757-768.) Schedule II of the act contains transitional arrangements which provide holders of old order mining, prospecting and other related rights an opportunity to apply for the conversion of their rights into rights in terms of the new act. In doing so it somehow provided for the retention of the old rights. Persons and institutions lose their rights if they failed to apply for conversion (s 110 read with Schedule 1 of the act). Item 12 of Schedule II provides that any person who can prove that his or her property has been expropriated in terms of the act may be entitled to compensation from the state.

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