Abstract
A new mineral law regime was introduced when the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) commenced. Common law mineral rights were abolished and replaced by statutorily created rights to minerals. Prospecting rights and mining rights granted in terms of the MPRDA entitle their holders, amongst other things, to enter the designated prospecting or mining area in order to commence with and conduct prospecting or mining activities. This contribution focusses on the question whether the entitlement to "enter" the land to which a specific prospecting or mining right relates automatically includes the ancillary right to be granted access over the property of others in order to enter the designated prospecting or mining area. It is important to determine the source or origin of the right to access in the new regime and to differentiate between "access" and "entry". It would not be just or justifiable summarily to accept that legal principles that developed under a completely different regime apply unchanged in a new regime.
Highlights
The extraction of mineral resources in South Africa is regulated by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA).1 Section 5(1) of the MPRDA defines prospecting and mining rights that have been granted in terms of the Act and registered in terms of the Mining Titles Registration Act2 as limited real rights in the minerals and the land to which they relate
The landowner was duly compensated for the restriction of his dominium.29. This compensation mitigated the burden brought about by the interference with the landowner's surface rights and the obligation to allow the right holder access to the prospecting or mining area. This relationship was governed by the principles of the law of servitudes,30 and the mineral right holder's rights often trumped those of the landowner in cases where irreconcilable conflict arose between the parties in situations where they were in competition
Despite the fact that the envisaged access route was not indicated on the submitted documents, the court abruptly came to the conclusion - "[t]herefore, when the permit was granted and the environmental management plan approved, the respondent was granted the right to construct a new road to the mineral rights area".68 – [Own emphasis]
Summary
Van der Schyff E "The Right to be Granted Access Over the Property of Others in Order to Enter Prospecting or Mining Areas: Revisiting Joubert v Maranda Mining Company (Pty) Ltd 2009 4 All SA 127 (SCA)" PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/17273781/2019/v22i0a1688
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