Abstract:
The Mineral and Petroleum Resources Development Act 28 of 2002,
transformed the mineral law system as part of the new political dispensation in
South Africa in order to promote inter alia social and economic development. In
this dissertation the mineral rights and more specifically royalties received, will
be examined by looking at the historical and current mineral law system taking
into account the transitional arrangements and their impact on old order mineral
rights. If an application is not made for conversion of existing rights into new
prospecting or mining rights or the application is refused, old order mineral
rights, prospecting rights or mining rights will be lost. Even upon successful
conversion of existing rights into new prospecting and or mining rights lesser
rights than mineral rights will be acquired, and probably lesser rights than
existing prospecting or mining rights. Existing rights, moreover royalties,
constitute "property" for purposes of section 25 of the Constitution and losses
due to expropriations with less than "just and equitable compensation", should
be compensated. The loss of prospecting moneys and/or royalties by holders
of mineral rights should also be compensated. Even though "old order rights'
would be capable of being converted into new prospecting and mining rights, it
is concluded that some form of expropriation with less than "just and equitable
compensation" will inevitably result. It is the submission that royalties are
subject to constructive expropriation. The holder of mineral rights and estate
planners, should vigilantly take note of the effects that this legislation has on
his/her constitutionally protected right.
