A landowner's ability to negotiate compensation with the holder to rights to minerals

Abstract

In 2002 the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) was promulgated to regulate the exploitation of minerals and petroleum in South Africa. With the promulgation of the MPRDA landowners’ rights regarding the minerals embedded in their land have been annihilated. South Africa’s mineral and petroleum resources were statutorily bequeathed to all the people of South Africa and the state was statutorily appointed as the custodian thereof for the benefit for all South Africans. All the rights to minerals have been severed from the ownership of land and the MPRDA does not recognise the existence of common law mineral rights as they existed directly before the MPRDA took effect. As a result thereof, landowners are not entitled to compensation for the loss of the minerals that are mined from the soil of their land. In addition, landowners ostensibly no longer possess the right to enforce negotiations regarding compensation for losses suffered or damages caused during the course of mining operations. It is against this background that this study seeks to determine to what extent the MPRDA or common law provide for the protection of landowners’ rights regarding compensation claims against the holder of statutory prospecting or mining rights for the infringement of their ownership brought about by mining activities on their land.