A theory of (subjective right to minerals in South Africa

The article examines the content of the state’s custodial power (or imperium) in the context of the granting or issuing of rights, permissions and permits. The entitlements of the state by virtue of the state’s custodial power are listed. The article explains what happens when rights, permissions or permits are administratively granted or issued by the state and identifies the duties from these administrative acts. The conclusion of a prospecting right (contract) and mining right (contract) is dealt with to illustrate the nature of the rights that are created contractually. The possible conclusion of a contract in the case of permissions or permits to minerals is also dealt with. The creation of real rights upon registration of prospecting rights or mining rights is explained and the issue of whether the recording of permissions or permits also creates real rights is raised and discussed. The article explains how a subtraction from the imperium takes place when prospecting rights or mining rights are registered. Other limitations imposed upon the state’s imperium are also indicated. The article also deals with the possible subtraction from the imperium in the case of the recording of permissions or permits to minerals.