The Act
| 1.1 |
"Old order" mining rights are (or, rather, were), broadly speaking, any mining lease, mynpachten, consent to mine, permission to mine, claim licence, mining authorisation or right listed and in force immediately before the date on which MPRDA came into force, being 1 May 2004, and in respect of which mining operations were being conducted prior to this date. |
| 1.2 |
The MPRDA required the holder of an old order mining right to apply for the conversion of such right within five years of 1 May 2004. The deadline for conversion applications was thus 30 April 2009. All old order rights whose conversion had not been applied for by thus date ceased to exist. (Section 7(8) of Schedule II to the MPRDA) |
| 1.3 |
The term "new order mining rights", although not officially defined under the MPRDA, is colloquially used to refer to those mining rights granted under the MPRDA. In other words, either old order rights which have been successfully converted into new order rights under the MPRDA, or new rights granted after the onset of the MPRDA. |
| 1.4 |
The MPRDA makes similar provision for the conversion of old order prospecting rights into new order prospecting rights, as well as for the granting of new order prospecting rights after the onset of the MPRDA.. (Section 6 of Schedule II to the MPRDA, read with sections 16-18) |
| 2.1 |
A prospecting right is a right to "intentionally search for any mineral by any method which disturbs the surface or subsurface of the earth, including earth that is under water or under the sea; or in or on any residue stockpile or residue deposit in order to establish the existence of any mineral and to determine the extent and economic value thereof" (our emphasis) (Section 1 of the MPRDA). |
| 2.2 |
A mining right is the right to carry out "any operation or activity for the purposes of winning any mineral on, in or under the earth, water or any residue deposit, whether by underground or open working or otherwise and includes any operation or activity incidental thereto." |
| 3.1 |
A prospecting right is, provided that the applicant meets the requirements of the Act, granted under section 17(1) of the MPRDA. This section requires the applicant to show, in its application, that: (i) it has access to financial resources, (ii) it has the technical ability to conduct the proposed prospecting operations, (iii) the proposed operation will not result in environmental damage, unacceptable pollution or ecological degradation, (iv) the applicant is capable of complying with the Mine Health and Safety Act, 1996, and that (v) the application is not in contravention of any provision of the MPRDA. |
| 3.2 |
A mining right is, provided that the applicant meets the requirements of the Act, granted to an applicant under section 23 of the MPRDA. This section requires the applicant to show, in its application, that: (i) the mineral can be mined optimally in accordance with the mining work programme, (ii) the applicant has access to financial resources, (iii) the applicant has the technical ability to conduct the proposed mining operation optimally; (iv) the applicant's financing plan is compatible with the intended mining operation and the duration thereof; (v) the mining will not result in unacceptable pollution, ecological degradation or damage to the environment; (vi) the applicant has provided (financially and otherwise) for the required social and labour plan (vii) the applicant has the ability to comply with the relevant provisions of the Mine Health and Safety Act, 1996; (viii) the applicant is not in contravention of any provision of the MPRDA; and (ix) that the granting of the mining right will further the objects of the MPRDA set out in section 2(d) and (f) (being: to expand the opportunities for historically disadvantaged South Africans in the minerals and petroleum industry, and to promote employment and advance the social and economic welfare of South Africans) in accordance with the Mining Charter, as well as the required social and labour plan. These requirements are obviously more onerous and more difficult to meet than those in relation to a prospecting right. |
| 3.3 |
Regulations to the MPRDA set out, in further detail, the form which the application must take, as well as the documents that must accompany the application. |
| 3.4 |
Applications for both a prospecting and mining rights must be lodged with the Regional Manager of the Department of Mineral Resources ("DMR") in the region in which the relevant land is situated. If the application is made in the prescribed manner along with payment of the application fee, the application must be accepted if "no other person holds a prospecting right, mining right, mining permit or retention permit for the same mineral and land". (Sections 16(2)(b) and 22(2)(b) of the MPRDA) |
| 3.5 |
Once the application for a mining right has been accepted, the Regional Manager must, within 14 days of receipt of the application, notify the applicant that it is required to submit an environmental management plan. The same applies to an application for a prospecting right. The Regional Manager must also notify the applicant that it is required to notify and consult with the occupier of land or the landowner concerned, and that the applicant must, within 180 days of the Regional Manager's notice, notify the DMR of the results of such consultation. The same provisions apply to a prospecting right, save that the applicant has 30 days to submit the results of the consultations. (Sections 16(4) and 22(4)) |
| 3.6 |
If the Minister refuses to grant either a mining right or a prospecting right, the applicant must be notified of this decision, and given reasons, within 30 days of the decision to reject the application. (Sections 17(3) and 23(3)) |
| 3.7 |
When more than one application for a prospecting right, mining right or a mining permit, "as the case may be" (our emphasis), is lodged with the DMR for the same mineral and over the same land, the applications are processed in the order in which they are received. In other words, the application which is received first will be considered first, and if the first application is successful the second application will not be considered. If the applications are received on the same day, the Minister of Mineral Resources must give preference to applications made by historically disadvantaged persons ("HDSA's"). (Section 9 of the MPRDA) |
| 3.8 |
It appears from the wording of section 9 of the MPRDA that its preference requirements are applicable only in situations in which two or more applications for the same class of right (eg mining right), for the same mineral, and over the same land, are received. If two applications for different classes of rights are received, for the same mineral and over the same land (for example, SIOC's mining right application and Imperial's prospecting right application), the DMR should consider these applications simultaneously on their merits. and not on the basis of "first received, first considered" or subject to section 9's HDSA preference requirement. |
| 4.1 |
The MPRDA provides that any person whose rights or legitimate expectations are affected by a decision made under the MPRDA has a right of appeal. If the decision concerned was made by a Regional Manager, the appeal is to the Director-General. If the decision was made by the Director-General the appeal must be made to the Minister of Mineral Resources (''the Minister"). (Section 96 of the MPRDA) |
| 4.2 |
Once the appeal process has been completed, and if the person is still aggrieved, the decision may be reviewed by a court under the Promotion of Administrative Justice Act, 2000. |
| 4.3 |
Moreover, where the Minister has delegated a decision making power, the MPRDA allows the Minister to revoke the power and withdraw or amend a decision made by the person to whom the decision making power was delegated. (Section 103(4) of the MPRDA) |
| 5.1 |
The MPRDA states clearly that the DMR cannot accept an application for a prospecting or mining right if another person holds a prospecting right, a mining right, mining permit or retention permit, for the same mineral and land. (Section 16(2)(b) and section 22(2)(b) of the MPRDA) |
| 5.2 |
While the grant of a prospecting right over an area of land on which an existing mine is operating (under an existing mining right) is not specifically addressed by the MPRDA (although we consider that it is prohibited under section 16(2)(b)), it is difficult to see how the practical requirements for compliance with the Mine Health and Safety Act, 1996, as well as the environmental management plan and works programme requirements (among others), can effectively be carried out by a party which is granted such a prospecting right. For example, it is difficult, in the Kumba scenario, to ascertain how the environmental management plans, as well as the works plans, of both SIOC and Imperial would coordinate the measures taken by SIOC (in terms of its mining right) and Imperial (in terms of its prospecting right), especially considering that the Sishen mine is a fifty year old operating mine in respect of which such plans are obviously in place. Moreover, it is difficult to see how, or why, a prospecting right for a mineral can be granted over an area in which the relevant ore is clearly evident, and on which such ore is already being mined. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.1 |
It was possible, under the pre-MPRDA regime, to hold shares in mining rights themselves. In other words, the right was considered to be undivided but was, at a conceptual level, held by different persons in different percentiles. Each holder was entitled to a certificate of title in respect of their undivided "share" of the right (Mining Titles Registration Act, 1967). A share of a right did not relate to a defined area of land covered by the right but, rather, to an undivided share of the whole right applicable to the whole area. (LAWSA vol 18 para 44) |
| 6.2 |
The MPRDA does not deal expressly, or clearly, with this issue. Two of its sections arguably implicitly recognise that mining and prospecting rights can be held in undivided shares. |
| 6.3 |
Section 102 of the MPRDA refers to the need for Ministerial consent to amend or vary a right by the addition of, among other things, "a share or shares" to which the right in question was not originally subject. Section 102 does not clarify whether the "addition" of a "share or shares" to the right would result in an undivided right held by different persons. Section 11 of the MPRDA, which provides for the transfer of a prospecting or mining right, refers to a "prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation" (our emphasis). The use of the phrase "interest in any such right" seems to contemplate the transfer of shares in a right. (M O Dale et al South African Mineral and Petroleum Law MPRDA at 166). On the other hand, the reference, in the same sentence, to "a controlling interest in a company or close corporation" arguably implies that an "interest" in a right is nothing more than a shareholding in the company which holds the whole right, or a member's interest in the close corporation which holds the whole right. |
| 6.4 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
| 6.5 |
Moreover, although the Mining Titles Registration Act was significantly amended in 2003 in order to cater for the new regime introduced by the MPRDA, its sections which deal with certificates for rights held in undivided shares were not repealed. This could have been a mere oversight but, arguably, implies that one can still hold an undivided share in a mining right. |
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