Die billikheidsgrondslag van die regsverhouding tussen die mineraalreghouer en die grondeienaar
Gibbens, George Clarence
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The legal relationship between the mineral rights holder and the landowner is but one of a number of similar legal relationships where it is often required from the judiciary to act as intermediary in disputes where it is not immediately clear which party's rights should prevail, and where public policy is considered to be the determining factor. Insofar as this holds true, it stands to reason that it will be the Courts' aim to dissolve disputes of this nature by weighing up the relative interests of the parties concerned in a judicial manner. The principal point of departure in this dissertation is that the integrated weighing up and balancing out of legal interests in specific legal relationships in a judicial manner presupposes the existence of criteria based on equity which are specifically suited to settle disputes between parties to the type of legal relationships on which it has, its bearing. Such criteria must enable those who rely on them to take cognisance of the facts that pertain to the specific case, and must also afford a role for factual circumstances that will often exert an influence on such cases, but might not necessarily affect the outcome of the specific case. The legal question whether any specific legal relationship is equitable or fair cannot be answered solely on the assumption that any particular party thereto has or does not have this or that entitlement (bevoegdheid). Legal relationships are in essence the result of social interaction, and therefore it is often public policy and sanction, rather than entitlements, that carry the day. 186 There are numerous examples in legal history and in modern South African law where the object was to establish fair legal relationships and where public policy played a key role, or can be assumed to have played a key role. The research undertaken showed that these examples are not disjunct, but are interlinked by reason of the approach of those who are responsible for the weighing up of the interests of the parties involved. It was proved that it is the legal standing (regstatus) of the parties that played the crucial role where a weighing up of the interests of the parties involved took place. It was also showed that whereas legal standing is a concept whereby social and political issues are important matters to take into consideration, legal standing cannot be approached from a solely legal perspective, and that it is of fundamental importance to first ascertain what the legal standing of the parties concerned is before it can be hoped to unlock the mysteries of the fair and equitable legal relationship. With regard to those with limited real rights in respect of the property of the owner, with the holder of the mineral rights in land as the chosen example, the research pointed towards the existence of a basic principle (or accepted fact) that justifies the very reason for the acknowledgement of the particular right, and pinpoint the legal standing of the subject with the right. The term rationale was chosen to describe this principle or accepted fact. Turning to specifics, it was found that the social and economic indispensability of the exploration of minerals, as it manifests itself in South African society, could be considered as the rationale of mineral rights. The full importance of the rationale is grasped only when it is realised that it is the determining factor of both the very existence of all the entitlements that a subject may have with regard to a object, and the scope (extent) thereof. With regard to the legal standing of those endowed with private ownership, it was shown that the very notion thereof has always been subject to legal politics and philosophy, and that it has important bearing on the entitlements that the owner may have. With regard to what the owner would generally be entitled to do, flowing from his particular legal standing, it was found that the entitlements, for the most part, boil down to the owner's entitlements to use and control his property. In the final analysis, and after consideration of a number of court cases, the conclusion was reached that because the owner's entitlements to use and control his property is of such importance for his legal standing and is limited by the existence of a limited real right in respect thereof, and because the holder of a limited real right can do no more with respect to the property as would be justified by the rationale of the particular right, the rationale should be considered as the true criterium for the establishment of fair and equitable legal relationships. If this conclusion and methodological approach to the resolution of disputes of this nature were to be accepted as legal theory, the spectre of legal uncertainty, which is often used lo hide behind where the need for equitable resolution of disputes on the basis of the public policy is apparent, would largely be curtailed.
- Law