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MINERAL LAW - FAQ's             Back to home page

 

South Africa has developed to a dual system of mineral rights where some of these rights are owned by the State and others by private owners.

Under previous legislation and the common law if ownership was obtained of a piece of land or property the ownership would have included the minerals within the land.  In the current situation of our law, mineral rights can be separated from the landowners.

The Mineral and Petroleum Resources Development Act No. 28 of 2002 (MPRDA) came into effect on 1 May 2004, governing mineral legislation in South Africa.  The MPRDA transformed the mining industry in such a way that mineral rights that were privately owned were transferred to the State, allowing anyone to approach the Department of Mineral Resources (DMR) and applying for a new order prospecting or mining right.

 

  1. What was the position in South Africa with regards to minerals before the Mineral and Petroleum Resources Development Act No 28 of 2002 (MPRDA) came into effect?
  2. What happened after the MPRDA came into effect?
  3. What is the purpose of the MPRDA?
  4. Does existing mineral rights granted, before the MPRDA was promulgated, continue to exist?
  5. Is there any other non-mining legislation in South Africa that has relevance in the mining industry?
  6. When an application for a prospecting or mining right is lodged, who are the parties involved?
  7. What are the activities regulated by the MPRDA?
  8. What is the result of having a mining permit?
  9. What is required before a person can commence mining in South Africa?
  10. Can another person/company be granted a mining right over my/any property?
  11. What are the requirements for consultation with landowners and gaining access to property for prospecting and mining purposes when a prospecting right application is lodged by the applicant?
  12. How can I lodge my prospecting right application?
  13. What factors will be taken into consideration when the decision is made by the Minister to either grant or refuse the prospecting right applied for?
  14. Can I transfer my prospecting or mining right or interest thereon?

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 1. What was the position in South Africa with regards to minerals before the Mineral and Petroleum Resources Development Act No 28 of 2002 (MPRDA) came into effect?

 

Before the MPRDA was promulgated, the Mineral Act regulated all legislation relating to the mining industry since 1991. Mineral rights did not vest in the State and property owners also owned the minerals thereunder. Minerals were privately owned and third parties could not apply for mineral rights from the State.

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2. What happened after the MPRDA came into effect?

 

The MPRDA was promulgated on 1 May 2004, replacing the Minerals Act, mineral rights were transferred from privately owned owners to the State where any third party could now apply for a mining right, subject thereto that all the requirements are however met in terms of the new legislation set out in the MPRDA.

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3. What is the purpose of the MPRDA?

 

The purpose of the MPRDA is to make provisions for equitable access to, and sustainable development of South Africa’s mineral and petroleum resources.

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4. Does existing mineral rights granted, before the MPRDA was promulgated, continue to exist?

 

The MPRDA does recognise mining and prospecting rights that existed before the Act. Any mining right that existed prior to the MPRDA continued in force for a period of five years, calculated as from 1 May 2004. The old order mining rights had to be converted according to the renewal.

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5. Is there any other non-mining legislation in South Africa that has relevance in the mining industry?

 

Non-mining legislation, but have relevance in the mining industry, includes:

The Constitution of the Republic of South Africa, 1996.

National Environmental Management Act, 107 of 1998.

National Water Act, 36 of 1998.

Labour Relation Act, 66 of 1995.

Employment Equity Act, 55 of 1998.

Occupational Health and Safety Act, 85 of 1993.

Environmental Conservation Act, 73 of 1989.

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6. When an application for a prospecting or mining right is lodged, who are the parties involved?

 

The parties involved are:

• The Applicant

• Department of Mineral Resources

• Department of Environmental Affairs

• Mining Titles (Registration office)

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 7. What are the activities regulated by the MPRDA?

 

There are two types of activities regulated by the MPRDA namely: 1. Prospecting activities and 2. Mining activities In order to commence prospecting activities, a prospecting right needs to be obtained in terms of the MPRDA. To commence mining activities, a mining permit or mining right needs to be obtained in terms of the MPRDA.

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8. What is the result of having a mining permit?

 

A mining permit is different than a prospecting or mining right in the way that a mining permit is obtained over a piece of land not more than 5 hectares and is used for small scale mining that can be completed within two years. A mining permit is valid for the period specified in the permit, but may not exceed two years. It may however be renewed for three more periods of no more than a year each

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9. What is required before a person can commence mining in South Africa?

 

All the regulations and requirements in terms of the MPRDA must be adhered to. The approval must be obtained in terms of NEMA also an Environmental Impact Assessment must be done and an Environmental Management Plan (EMP) must be submitted together with a SLP (Social and Labour Plan).

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10. Can another person/company be granted a mining right over my/any property?

 

In terms of the MPRDA another person/company can be granted a mineral right over ones property, because of the fact that the State is the custodian of all mineral rights in South Africa. The Minister of Mineral Resources has the sole right to grant, refuse, suspend or cancel any mineral rights.

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11. What are the requirements for consultation with landowners and gaining access to property for prospecting and mining purposes when a prospecting right application is lodged by the applicant?

 

Before a prospecting right may be granted, there is a consultation process that needs to be followed, as required in terms of sections 10(1)(b),16(4)(b), 22(4)(b), 27(5)(b) of the MPRDA.

The consultation process that is a requirement in terms of the MPRDA, Section 16(4)(b) and 27(5)(b) provides that the applicant, applying for a prospecting right must, in writing notify and also consult the land owner or lawful occupier or any party that may be affected and submit the result of the consultation within 30 days of the notice.

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 12. How can I lodge my prospecting right application?

 

In order to lodge an application one must log on to the online SAMRAD site (www.portal.samradonline.co.za) and register thereon by creating an username and password. After this step one can view the locality of current applications, rights and also permits that are held in terms of the MPRDA. Applications on these location can be submitted electronically to the DMR online application site.

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13. What factors will be taken into consideration when the decision is made by the Minister to either grant or refuse the prospecting right applied for?

 

Section 17(1) of the MPRDA sets out the requirements when the Minister must grant the prospecting right applied for. Section 17(2) of the MPRDA states that the Minister must refuse to grant a prospecting right if the requirements in Section 17(1) are not met.

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14. Can I transfer my prospecting or mining right or interest thereon?

 

In terms of Section 11 of the MPRDA one cannot transfer, cede, let, sub-let, assign or alienate the right without the written consent of the Minister.

Should you require any assistance with: Lodging an aplication for Prospecting or Mining Rights, resolving disputes and consultation with land owners, Notarial execution of rights and Registration at the Mining Titles office, Contact Mr Danie Botha of Wessels & Smith Attorneys at 057 391 9800 or Email jpdbotha@wessmith.co.za

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