Priority disputes between old order mineral rights and prospecting rights or mining rights in South Africa: The Eagle has not landed

As part of the radical transformation of the mineral regime of South Africa, the African National Congress (“ANC”) government introduced the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) on May 1, 2004. The MPRDA not only vested mineral resources in the custody of the state but also provided for application of new rights on merit by any applicant. The MPRDA also recognized prospecting rights, mining rights, and mineral rights of the previous mineral law dispensation as old order rights (“OORs”) that were subject to transitional provisions. Holders of OORs were afforded the opportunity to convert these rights, or to apply for new prospecting rights or mining rights during different periods of transition. By granting priority to holders of OORs during the periods of transition, it was envisaged that competing applications for prospecting or mining rights under the MPRDA would not be lodged. However, due to poor custodial administration and ulterior motives in post-apartheid South Africa, competing applications were considered and competing rights were granted to land that was subject to transitional rights. This Article shows how priority rules have evolved to deal with competing prospecting and mining rights. The Article examines whether these priority rules can be regarded as fair,and the ultimate question is raised as to who benefits by administration of these rules.