scholarly journals PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
The State ◽  
Mining Operations ◽  
South Africans ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease. 

scholarly journals PAYING THE PIPER (IN ABSENTIA) SFF Association v Xstrata 2011 JDR 0407 (GSJ)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
South Africa ◽  
Common Law ◽  
The State ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
One Step ◽  
The Common ◽  
Mining Right ◽  
The Impact

This decision focused on the impact of the Mineral and Petroleum Resources Development Act (28 of 2002, hereinafter “MPRDA”) on an old-order mining right (based upon a mineral lease) which had been converted into a mining right in terms of the transitional arrangements of Schedule II of the MPRDA. In particular, the court held that consideration in the form of a (contractual) royalty, as provided for in the mineral lease, remains payable upon conversion of an old-order mining right by its former holder (miner) to the grantor of the common-law mining right. The outcome of the decision, namely, continued liability for contractual royalties, has far-reaching consequences for such former holders of old-order mining rights. Continued liability would result in double payment of royalties by miners. This is because under the new dispensation, statutory royalties can be imposed by the state (s 3(1)(b) of the MPRDA) and were imposed and became payable upon commencement of the Mineral and Petroleum Resources Royalty Act (28 of 2008) on 1 March 2010. From the said date, in terms of this decision, double royalties would be payable by miners. If correct, it can be taken one step further. Owing to continued receipt of contractual royalties, former holders of common-law mineral rights would not have suffered an expropriation of property by virtue of the provisions of the MPRDA for purposes of item 12(1) of Schedule II of theMPRDA. Such expropriation would have taken place if the contractual duties to pay royalties had indeed been terminated upon cessation of old-order mining rights (as to such a possible claim, see further, Badenhorst and Mostert Mineral and Petroleum Law of South Africa 2004 (Revision service 7) 25–53). These consequences will be explained in more detail in this discussion as well as the correctness or not of the decision. I have written about the acquisition, nature, content, transfer and loss of old order rights before (see Badenhorst “The Make-up of Transitional Rights to Minerals: Something Old, Something New, Something Borrowed, SomethingBlue …? 2011 4 SALJ 763–784) to which the reader is referred. This decision sheds new light on this topic. 

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

2021 ◽  
Vol 138 (3) ◽  
pp. 599-616
Author(s):  
Pieter Badenhorst
Keyword(s):  
Mineral Resources ◽  
The State ◽  
Constitutional Court ◽  
Old Order ◽  
The Poor ◽  
Petroleum Resources ◽  
Constituent Elements ◽  
Resources Development

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

scholarly journals The Liability of Historical Mine Authorisation Holders for Rehabilitation of ‘Old Order Mine Dumps’

2017 ◽  
Vol 29 (2) ◽  
pp. 469-493 ◽  
Author(s):  
Suzette Hartzer ◽  
Willemien Du Plessis
Keyword(s):  
Mine Waste ◽  
Minimum Cost ◽  
The State ◽  
Abandoned Mines ◽  
Mining Activities ◽  
Mine Dumps ◽  
Old Order ◽  
Petroleum Resources ◽  
Financial Consequences ◽  
Mining Right

Mine dumps or tailings (i.e. ‘mine waste’) created by mining activities are some of the main environmental impacts of mining. Historically little or no regard was given to the environment while planning mine dumps, since planning was based on minimum cost, the availability of land and the safety of underground workings.Mine dumps continue to cause water and air pollution when abandoned without being rehabilitated. Abandoned mines and their dumps are common features of the South African landscape. Section 46 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) provides that the state is responsible to rehabilitate abandoned mines if the owner is deceased, cannot be traced, ceased to exist or has been liquidated. Rehabilitation of these mines has extensive financial consequences for the state and indirectly to the taxpayer.The aim of this article is to determine the responsibility of historical mining right holders for such rehabilitation. ‘Historic polluters’ refer to mining companies who caused pollution and environmental degradation due to mining activities before the Minerals Act came into force in 1991. Also to be addressed in this article is the question whether owners of tailings created through an authorisation issued in terms of the now repealed Minerals Act or prior legislation (old order dumps) would be able to escape their rehabilitation obligations or not. Reference will be made to the new proposed amendments to the MPRDA as well in addressing the question.

scholarly journals 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)

2019 ◽  
Vol 22 ◽  
pp. 1-29
Author(s):  
Elmarie Van der Schyff
Keyword(s):  
Common Law ◽  
Mining Area ◽  
New Mineral ◽  
Mining Company ◽  
Legal Principles ◽  
Mining Areas ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

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.

STATIONARY MATHEMATICAL MODEL OF an AQUIFER AS A BASIC TOOL FOR MANAGEMENT OF GROUNDWATER RESOURCES IN THE CONCENTRATED OPENCAST MINING INDUSTRY IN THE HOLY CROSS MOUNTAINS

2018 ◽  
Vol 471 ◽  
pp. 7-14
Author(s):  
Katarzyna BIAŁECKA ◽  
Jan PRAŻAK
Keyword(s):  
Mathematical Model ◽  
Water Supply ◽  
Groundwater Resources ◽  
Local Population ◽  
Mining Industry ◽  
Mineral Resources ◽  
Opencast Mining ◽  
Mining Operations ◽  
Holy Cross Mountains ◽  
The Right

Opencast mining industry very often extracts mineral resources below the groundwater table. Dewatering of excavations affects exploitable groundwater resources. It causes only temporal changes, but if they last several tens of years, local population is forced to modernize existing or even build new groundwater intakes. Mines discharge water into rivers, and local residents have problems with water supply. The municipality has the right not to agree for dewatering, but then it limits the activities of the mining industry. Therefore, it is very important to recognize not only the mining excavations affected by water inflow, but also the scope of hydrodynamic changes and their impact on groundwater intake facilities. The basic computational tool for prediction the effects of extraction of mineral resources below the water table should be a properly constructed mathematical model of a dewatered aquifer. The model should be stationary and should be used to prepare further forecasts for the assessment of damage caused by mining operations, depending on the progress in the exploitation of minerals. This will allow anticipating actions to cover possible losses in water supply to people, agriculture and the local industry. The authors present this problem and the attempts of such operations, based on the examples from the Gałęzice–Bolechowice–Borków and Łagów regions in the Holy Cross Mountains where numerous opencast mines of the Devonian limestones and dolomites are located.

scholarly journals TRANSITIONAL PROSPECTING RIGHTS: A MORATORIAL ESCORT ACROSS THE BRIDGE? De Beers Consolidated Mines Ltd v Regional Manager, Mineral Regulation Free State Region: Department of Minerals and Energy Case 1590/2007 (OPD) Unreported (15-05-2008) (“De Beers (2)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
South Africa ◽  
The State ◽  
Free State ◽  
New Mineral ◽  
Old Order ◽  
Petroleum Resources ◽  
De Beers ◽  
State Region ◽  
The Right ◽  
Resources Development

On 1 May 2004 the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) not only introduced a new mineral law regime in South Africa but also made provision in the transitional arrangements of Schedule II to the MPRDA for the conversion of so-called “old-order rights” into (or application for) prospecting or mining rights in terms of the MPRDA. This decision dealt with the duration or term of transitional prospecting rights and the remedies available to a holder of an “old-order prospecting right” upon refusal by the state functionaries to convert the right into a prospecting right in terms of the MPRDA. Item 6 of the transitional arrangements makes provision for the continuation and conversion of “old-order prospecting rights”.

scholarly journals Benhaus - a landmark decision, one less hoop for contract miners but a clarion call for an overhaul of the South African mining regime

2020 ◽  
Vol 120 (8) ◽  
Author(s):  
K. Thambi
Keyword(s):  
South African ◽  
Value Chain ◽  
Income Tax ◽  
Mining Industry ◽  
Third Party ◽  
Mining Activities ◽  
The South ◽  
Mining Operations ◽  
Tax Legislation ◽  
The Right

SYNOPSIS The mining industry has evolved, such that the means of production that were once in the hands of major players or power houses have become equally accessible to smaller entrants, i.e. junior mining companies and contract miners. Contract mining involves contractual relationships between mine owners or mineral right holders and third parties to conduct mining activities on behalf of the right holders. The current mining income tax legislation has been a considerable obstacle to contract miners. Under its terms, they have been viewed as mining on behalf of third-party mineral rights holders. As such, expenditure incurred in relation to contract mining activities was often disallowed by the South African Revenue Service (SARS). However, the recent judgement of the Supreme Court of Appeal, Benhaus Mining (Pty) Ltd v CSARS 2020 (3) SA 325 (SCA) (Benhaus), rightfully or wrongfully, appears to provide clarity regarding the fate of contract miners' involvement in the mining value chain. The taxpayer, a contract miner, was held to be conducting mining operations within the meaning of S15(a) read with si of the Income Tax Act 58 of 1962 (the Income Tax Act). This paper looks at how contract mining has traversed the mining tax landscape, the implications of the Benhaus judgment, and stresses the necessity for clear policy reform to the mining tax regime and equally to legislation framed to give effect to these policies. Keywords: Contract mining, owner mining, tax, DMRE, mining regime reforms.

Archaeology and the Liberal Revolutions (c. 1820–1860): Nation, Race, and Language in the Study of Europe’s Past

2007 ◽  
Author(s):  
Margarita Diaz-Andreu
Keyword(s):  
Nineteenth Century ◽  
French Revolution ◽  
The State ◽  
Ancien Regime ◽  
Early Nineteenth Century ◽  
Territorial Expansion ◽  
Old Order ◽  
Financial Growth ◽  
The Right ◽  
Ancien Régime

There was no return to the Ancien Régime after Napoleon’s downfall in 1815. Firstly, the early nineteenth-century economy was increasingly strengthened by the industrial, imperial and trading expansion of the European powers throughout the world (Chapters 5 to 10), which helped to stimulate Western Europe’s financial growth. Adding immeasurable impetus to this movement was the territorial expansion of Russia and the US, and later in the century other countries such as Japan contributed by broadening their frontiers manifold (Chapters 9 and 10). Factors such as these accelerated the enlargement and aspirations of the middle classes, who were precisely the group leading most of the revolutionary activity in the first half of the nineteenth century. Secondly, the reforms in administration made the state machine more efficient than that of the Ancien Régime and this impeded a full restoration of the old order. Also, for the efficient functioning of the state, the enthusiasm with which educated individuals identified with the nation was extremely important to ensure their loyalty. The late eighteenth and early nineteenth-century socio-political revolutions had brought a series of new meanings to concepts such as conservatism, liberal, democrat, party, and the distinction between left and right (Roberts 1996: 21). For example, liberalism was a doctrine that favoured ‘progress’ and ‘reform’. It was also linked with the type of nationalism that the French Revolution had promoted with the sovereignty of nations and the belief that all citizens were equal in the eyes of the law (although at this time ‘citizenship’, as propagated by the proponents of this doctrine, mainly meant the prosperous classes and male citizens). For progressive liberals, it was not only the established states that had the right to be a nation. The nationalist sentiments and claims by Greeks, Slovaks, Czechs, Brazilians, Mexicans, Hungarians, and a myriad of would-be nations, illustrate the growth of the widespread notion of nationhood that reached to other people with distinctive pasts and cultures. Liberals also had to confront, or negotiate with, the reactionary forces that brought down Napoleon in 1815. They were mainly made up of the nobility, and also supported by conservative intellectuals.

Constitutional recognition of the agrarian collective and their rights to govern mineral resources in South Sudan

ICL Journal ◽  
2012 ◽  
Vol 6 (3-4) ◽  
Author(s):  
Alexandra Carleton
Keyword(s):  
South Sudan ◽  
Mineral Resources ◽  
Political Status ◽  
South Sudanese ◽  
Mineral Wealth ◽  
Agrarian Communities ◽  
Mineral Rights ◽  
African Charter ◽  
The Right ◽  
Economic Considerations

AbstractBoth the ICCPR and the African Charter embody, as a primary principle, the right of a peoples' to freely dispose of their natural wealth and resources (article 1(2) and article 21(1) respectively). Whilst hotly debated as to its legal and political status, operationalising a right could enable agrarian communities to contest the disposal of their mineral wealth. However, such a right ought to be embodied in the constitution, where its alterability is perhaps less subject to political change. Without constitutional standing for collectives to assert claims over land, the State could potentially lease or sell mineral rights (sometimes to multiple extractors at once) irrespective of the environmental, labour and economic considerations.The secession of South Sudan is demonstrative of the South Sudanese peoples' active reclamation of their natural (and substantial mineral) wealth. This article is a critique of whether the new Transitional Constitution of South Sudan (TCRSS) effectively embodies and operationalises article 1(2) of the ICCPR. It concludes that the TCRSS is dedicated to articulating and protecting (competing) agrarian interests in land and natural resources and in so doing demonstrates the reality of multiple and overlapping mineral and land interests.

The Regulation Mechanism Study on Mineral Resource Reserves

2013 ◽  
Vol 868 ◽  
pp. 224-227
Author(s):  
Zhong Bao Ren ◽  
Tian Ke Liu ◽  
Ying Gui Cao
Keyword(s):  
Mineral Resource ◽  
Mineral Resources ◽  
Economic Advantage ◽  
Regulation Mechanism ◽  
Mechanism Study ◽  
Development And Utilization ◽  
The Right ◽  
Mining Right ◽  
Reserve System ◽  
Mineral Reserve

Deposit reserves have a role in regulating the development and utilization of mineral resources. Its core is to secure the supply of mineral resources by selecting the right sequence and optimizing the layout of mineral resources E&D. this paper devised a measuring model for the deposit reserves . Following the principle of store up in bumper years to be in ready for hard ones, and considering the particularities of deposit reserves. we concluded that: For the advantage of mineral resources, regulating reserve can realize resource advantage to economic advantage, therefore the reserve object should focus on mining right reserves. Finally, we incorporated three recommendations for the nations effort in deposit reserves: make special plans for deposit reserves, establish an organizing and leading body for deposit reserves and structure a mineral reserve system.

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