Ownership of historical mine dumps: uncaptured no more?

Historical mine dumps are mine dumps that were created before the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’) and are not (yet) regulated by the MPRDA. The legal principles pertaining to ownership of historical mine dumps are discussed in terms of the common law and the Minerals Act 50 of 1991. In this article, we analyse case law supporting the view that historical mine dumps are not regulated by the MPRDA, as well as the legislature’s recent attempt to regulate historical mine dumps with proposed amendments to the MPRDA.We conclude that the vesting of custodianship of minerals in historical mine dumps (outside a mining area) in the state will not amount to an act of expropriation in light of the decision of the Constitutional Court in Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC). Upon failure by holders of mining rights or mining permits timeously to amend mining work programmes and mining rights to include historical mine dumps (within a mining area), their ownership thereof will be terminated. We argue that the ownership of such mine dumps may then be acquired by appropriation (occupatio). As a result, should the amendments become law, we foresee a conflict between holders of mining rights or mining permits and illegal miners and marginalised communities.