It was decided in the De Beers v Ataqua Mining (Pty) Ltd that ''tailings dumps'' created by mining companies before the Mineral and Petroleum Resources Development Act, 28 of 2002 ("the MPRDA") came into operation are not governed by its provisions because such dumps are not "residue stockpiles" or "residue deposits" for purposes of the MPRDA. Ownership of tailings dumps is determined by the common law principles of accession. Ownership of a movable dump has to be transferred by one of the recognised forms of delivery of movables. Processing of these dumps will, however, still be subject to compliance with South African environmental, health and safety laws in general. It is submitted that mine dumps or tailings dumps created upon the exercise of "old order mining rights" before the commencement of the MPRDA and even after commencement of the MPRDA until eventual termination of the "old order mining rights" are not subject to the extensive, mining, environmental, empowerment provisions of the MPRDA. Termination of "old order mining rights" takes place upon: (i) refusal of an application for conversion of a mining right during (or even after) the period of transition, (ii) conversion into and registration of new order mining rights during (or even after) the period of transition or (iii) termination of unconverted "old order mining rights" on 30 April 2009. To the extent that this decision has made it possible to embark on a shorter and less cumbersome route in the reprocessing and eventual disappearance of most tailings dumps, it is to be welcomed from an economical, environmental, job creation and aesthetic perspective. Proposed amendments to the MPRDA to undo the impact of the De Beers decision should be carefully considered against these mentioned benefits and a possible finding that it may amount to an expropriation without compensation.
Field of Research
180124 Property Law (excl Intellectual Property Law)