Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

Abstract

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed.