Who "owns" the country's mineral resources? The possible incorporation of the public trust doctrine through the Mineral and Petroleum Resources Development Act.
Abstract
"Mineral and petroleum resources are the common heritage of all the people of South
Africa and the state is the custodian thereof for the benefit of all South Africans."'
This section can be regarded as one of the most controversial legislative clauses
promulgated during the last five years. The reader is confronted with phrases and
ideas foreign to the common law background of South African law. Until the courts
have interpreted this section, lawyers will speculate about its true meaning. Two
contradicting opinions have been voiced regarding the interpretation and implication
of this section. For the aim of this article, it is important to refer cursorily to
these viewpoints.
According to Badenhorst and Mostert' the legislature borrowed from the law of
the sea in formulating section 3(1). Applied to the law of property, this entails that
section 3(1) vests mineral resources in the people of South Africa and these resources,
therefore, became res publicae.
Dale et al3 strongly object to this viewpoint. They hold that minerals were never
regarded as res publicae in Roman law4 and argue that the act never changed the
common law principle that unsevered minerals belong to the owners of the land in
which the minerals are located. According to them section 3(1) did "nothing more"
than to obliterate the legal institution of the rights of an owner to deal with and
exploit his minerals.5 They motivate their viewpoint by arguing that the reference
to "mineral and petroleum resources" is a broad reference to all the minerals and
petroleum occurrences countrywide. It is this collective wealth, as opposed to minerals
in situ on individual properties, that "belongs" to the nation. They hold further
that no provision of the act vests minerals in situ on individual properties in anyone
other than the owner of the land and therefore argue that the provisions of the act do not warrant an interpretation that the cuius est solum principle is abrogated. To
strengthen their argument they hold that ownership cannot legally vest in the nation
as the nation has no legal personality enabling it to acquire or hold ownership and
that the formulation of custodianship does not fit a private law interpretation that
ownership of minerals in situ vests in the state.
Van der Walt' adds another dimension to the debate by stating that there is room
to argue that the existing private-property dominated mineral dispensation was replaced
with a public-property regulatory dispensation, thereby removing rights to
minerals from the sphere of private property.
This article advances the view that section 3(1) can be interpreted to indicate that
the public trust doctrine has been incorporated into the South African mineral law
dispensation, and that ownership of the country's mineral resources consequently
vests in the state. The article is structured to set the scene for this controversial
interpretation and then to provide a brief overview of the doctrine. In the final instance
the consequences of accepting the public trust doctrine in South African
mineral law are discussed.
URI
http://hdl.handle.net/10394/2166https://home.heinonline.org/titles/Law-Journal-Library/Journal-of-South-African-Law/?letter=J
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