Invloed van die Mineral and Petroleum Resources Development Act 28 of 2002 op boedelbeplanning en boedelbereddering

Abstract

The Mineral and Petroleum Resources Development Act introduced a new mining law dispensation. This Act has implications for mineral right holders. Up to 1 May 2004, the right to prospect or mine vested in the holder of the mineral right concerned under the system of private ownership as set out in the Minerals Act 50 of 1991. The 2002 Act which is premised on the principle that minerals as a natural resource are part of the natural heritage of all South Africans, eliminates the concept of private ownership of mineral rights and vests the right to prospect or mine exclusively in the state. Mineral rights were always assets in the estate of a person and were handled in the administration of the estate. The question is whether mineral rights and royalties are still assets of the estate under the 2002 Act. New applicants under the 2002 Act will have to apply directly to the state for the right to prospect and mine, regardless of the identity of the previous holder of the relevant right. Holders of existing (old order) rights will have an opportunity to ensure the ongoing validity of these rights by complying with the conversion criteria contained in the 2002 Act. New order rights issued or converted under the 2002 Act differ from old order rights insofar as their duration, transferability, mortgage ability and the royalties payable thereon. Although the new order rights are still referred to as limited real rights in article 5 of the 2002 Act, these converted rights are more restricted in content. These new order rights cannot be ceded, transferred, let, sublet, assigned, alienated or otherwise disposed of without the written consent of the minister. Except for the transitional arrangements in Schedule 2, the 2002 Act would terminate the notion and use of the vehicle of mineral rights. When comparing the new order rights to the old order rights, the question of deprivation and expropriation arises. It is not clear exactly when a claim for compensation for expropriation of property arises and what the term of the period of prescription would be. The duration of the new prospecting right and mining right are statutorily regulated. In drawing a comparison between the old order and the new order rights, a distinction may be drawn between: (a) Situations where the holder of the old order right would be successful with his application for conversion to a new order right; (b) Situations where the holder of the old order right was unsuccessful with the application for a conversion of rights; (c) Situations where the holder chooses not to apply for conversions at all. Financial benefits to be derived from former mineral rights are also affected. The right to receive royalties may be protected under the constitutional property clause and a withdrawal of these rights from the private sphere and the assignment thereof to the state may represent a deprivation of property in the constitutional sense. Royalties to communities and natural persons may continue to them after the 2002 Act, but the position of legal entities and trust remain insecure. All these changes will affect the estate and the estate planning of the landowner and the holder of mineral rights. In this mini-dissertation all the important provisions regarding estate planning will receive attention. Transferability of the new order rights, royalties, and the effect of the new law on the value of property in the estate, will be looked at.