A critical analysis of the extent to which SA law protects the surface rights of landowners over whose property mining rights have been granted

Abstract

The MPRDA has drastically changed the regulation of mining by placing the mineral resources of South Africa under the custodianship of the State. The MPRDA does not recognise the existence of the common law mineral rights as they existed prior to the promulgation of the MPRDA. Whereas anyone is now free to apply for mining rights from the State and once granted the holder of the mining right is entitled to access the land upon which the mining right is granted, the surface rights landowner on the other hand, is required by law to sacrifice some of his/her rights to facilitate mining activities. The surface rights landowners are however not entitled to compensation for the loss of minerals that are part of their ownership of the land. The focus of this Study is to conduct a critical analysis of the South African law – to establish to what extend it protects the surface rights of the landowners. In the process of analysing the available remedies, the author will focus on how compensation for loss or damage as a remedy, developed through the South African common law (Roman and Roman Dutch Law), and how this remedy worked pre-MPRDA and how it is provided for in the MPRDA. The Study will also undertake a brief comparative analysis of mining legislation of Western Australia and Ghana to bench mark the MPRDA compensation provisions and will conclude by recommending possible ways in which the MPRDA could be improve