Mineral rights ‘nationalised’

2013-04-19 00:00

SOUTH Africa’s mineral rights were “for all practical purposes nationalised” yesterday.

This was the reaction of Willie Spies, legal representative of AfriForum and AfriSake, after the Constitutional Court ruled that the Mineral and Petroleum Resources Development Act (MPRDA) transferred the right to mine minerals from landowners to the state in a way that is constitutional.

Spies said it was a bad day for South Africa because the verdict did not predict anything good for land owners, specially in view of other draft bills on land reform.

AfriForum and AfriSake were amici curiae (friends of the court) in a long and embattled appeal by AgriSA to have a Supreme Court of Appeal ruling on mineral rights dismissed.

Chief Justice Mogoeng Mogoeng yesterday delivered the Constitutional Court majority judgment, saying the judges had found that while the right to mine minerals had been removed from land owners and vested in the state, this was not expropriation for which the land owners had to be compensated by the state.

The judges said the MPRDA rectifies the position of the apartheid era in which very few black people could be land owners and thus owners of mineral rights.

The MPRDA makes the state, in the person of the minister of Mineral Resources, the custodian of all mineral rights in the country.

The act does make provision for landowners to apply to mine the minerals on their land, but if they do not mine them, they will lose this right in what Minister Susan Shabangu has described as the “use it or lose it” principle.

The judges found that the MPRDA gives all people equal access to mineral rights and promotes the sustainable development of South Africa’s mineral and petroleum resources.

Theo de Jager, deputy president of AgriSA, said yesterday his first reaction was one of bitter disappointment.

The union believes this leaves the owner of the land on which the minerals are found with no say over the mining of it.

“The door is now closed. What will be taken next without compensation? Land owners’ water? Or their land? And after that owners’ homes?”

De Jager said he would not be able reassure anyone that they need not worry about their property in South Africa after the verdict. AfriSA would react in more detail after studying the verdict, he said, but his gut reaction was so say that landowners should be “scared and anxious”.

AgriSA president Johannes Möller said he was also disappointed. “The ruling of the court was not what we expected … what we viewed as expropriation of mineral rights was seen differently by the Constitutional Court. We respect the verdict,” he said in a statement.

At attorneys’ offices across the country, claims for compensation that were held ready in case the verdict went against Shabangu will now be dumped.

The Department of Mineral Resources yesterday welcomed the judgment.

A statement from Shabangu’s office read: “The judgment reaffirms the Constitution in regard to the custodianship of natural resources of the country, and further provides certainty to security of tenure in the mining industry.

“The AgriSA case has always been identified by some in the investor community as a risk to investment in the mining sector.

“The judgment therefore brings closure to this perception, and opens an avenue for investor appetite.”

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