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A tale of two expropriations: Newcrestia and Agrizania

journal contribution
posted on 2014-01-01, 00:00 authored by Pieter BadenhorstPieter Badenhorst
A comparison will be made between the decision of the High Court of Australia in Newcrest Mining (WA) Ltd v The Commonwealth1 (“Newcrest”) and the decisions of the South African Courts in the Agri South Africa line of cases.2 Although the mineral law systems of the two countries differ insofar as historical development and content,3 the simplified facts of the Newcrest and Agri SA decisions and principles of expropriation law are similar enough to draw an interesting comparison between the respective cases. Both cases dealt with the issue of whether the mineral rights/mining rights of private holders were expropriated by legislation which prohibited mining in one way or another. A comparison between the cases shows the approaches towards the issues and what exactly constitutes deprivation and/or acquisition of property for purposes of expropriation and whether deprivation and/or acquisition actually took place.

The differences between the mineral law systems of Australia and South Africa (before the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter “MPRDA”)) and the protection afforded against the resumption/expropriation of mineral rights or mining rights will be set as background information for a better understanding of the respective decisions. The facts of the two cases will first be set out and simplified for comparative purposes before the respective decisions are discussed. At the end, a comparison will be made between the decisions and a conclusion reached about the similarity of principles and the correctness of the respective decisions.

History

Journal

De Jure

Volume

47

Issue

2

Pagination

258 - 282

Publisher

Pretoria University Law Press

Location

Pretoria, South Africa

ISSN

1466-3597

eISSN

1809-8487

Language

eng

Publication classification

C Journal article; C1 Refereed article in a scholarly journal

Copyright notice

2014, Pretoria University Law Press

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