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Priority disputes between holders of old order mineral rights and holders of prospecting rights or mining rights under the MPRDA in South Africa: Aquila has landed (Continued)
As part of the radical transformation of the mineral regime of South
Africa, the African National Congress government introduced the Mineral
and Petroleum Resources Development Act 28 of 2002 ("MPRDA ") on May
1, 2004. In a previous contribution, the transitional provisions of the
MPRDA were discussed within the context of the rights of holders of old
order rights ("OORs") to convert their transitional rights to, or to apply for,
new prospecting rights or mining rights under the MPRDA during different
periods of transition. It was shown that due to poor administration by the
state, as custodian of the mineral resources of South Africa, in post-apartheid
South Africa, competing rights were granted to land that was subject to
transitional rights. Also indicated was how priority rules have evolved to deal with competing prospecting or mining rights and transitional rights. In
the category of priority disputes between holders of so-called unused old
order rights ("UOORs") and holders of prospecting or mining rights, the
Supreme Court of Appeal set out the applicable priority rule in Pan African
Mineral Dev. Co. v. Aquila Steel Ltd. 2017 (5) SA 124 (SCA) (S. Afr.)
(discussed in the previous contribution). However, in the decision ofAquila
Steel Ltd v. Minister of Mineral Resources 2018 (3) SA 621 (CC) (S. Afr.),
the priority rule received the attention of the Constitutional Court of South
Africa ("CC'). This Article examines the CC's interpretation and
application of the said priority rule. It also deals with the substitution of the
Minister's decision with an order granting an application for a mining right
to an applicant who applied without notice (of prior rights) for prospecting
and mining rights that were inconsistent with the rights of the holder of the
UOORs. The nature of rights that are created under the MPRDA are
examined with reference to the different legal acts that take place during
applications for and granting of rights. The Article advocates for a private
law approach to determine the nature of these rights. The problems
associated with the public law style state custodian construction of the
MPRDA are again discussed and highlighted with reference to the facts of the Aquila Steel decision
Africa, the African National Congress government introduced the Mineral
and Petroleum Resources Development Act 28 of 2002 ("MPRDA ") on May
1, 2004. In a previous contribution, the transitional provisions of the
MPRDA were discussed within the context of the rights of holders of old
order rights ("OORs") to convert their transitional rights to, or to apply for,
new prospecting rights or mining rights under the MPRDA during different
periods of transition. It was shown that due to poor administration by the
state, as custodian of the mineral resources of South Africa, in post-apartheid
South Africa, competing rights were granted to land that was subject to
transitional rights. Also indicated was how priority rules have evolved to deal with competing prospecting or mining rights and transitional rights. In
the category of priority disputes between holders of so-called unused old
order rights ("UOORs") and holders of prospecting or mining rights, the
Supreme Court of Appeal set out the applicable priority rule in Pan African
Mineral Dev. Co. v. Aquila Steel Ltd. 2017 (5) SA 124 (SCA) (S. Afr.)
(discussed in the previous contribution). However, in the decision ofAquila
Steel Ltd v. Minister of Mineral Resources 2018 (3) SA 621 (CC) (S. Afr.),
the priority rule received the attention of the Constitutional Court of South
Africa ("CC'). This Article examines the CC's interpretation and
application of the said priority rule. It also deals with the substitution of the
Minister's decision with an order granting an application for a mining right
to an applicant who applied without notice (of prior rights) for prospecting
and mining rights that were inconsistent with the rights of the holder of the
UOORs. The nature of rights that are created under the MPRDA are
examined with reference to the different legal acts that take place during
applications for and granting of rights. The Article advocates for a private
law approach to determine the nature of these rights. The problems
associated with the public law style state custodian construction of the
MPRDA are again discussed and highlighted with reference to the facts of the Aquila Steel decision
