| dc.description.abstract | 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. | en_US |
