Landowner, Rights Holder in Gems Battle - Mining in South Africa

In addition, mining often has an impact beyond the borders of the mining operation infringing on the rights of other surface owners. This article explores the often competing rights of a surface owner and a prospecting or mining operation by focusing on the relevant provisions of the Minerals and Petroleum Resources Development Act of 2002, some recent case law, the National Environmental Management Act of 1998 and reference to other relevant legislation.
The Minerals and Petroleum Resources Development Act ushered in some radical concepts including placing all mineral rights under the custodianship of the state.
Although the environmental authorisation procedure is not too different from the acts predecessor, the Minerals Act 50 of 1991, the duty is placed on the minerals and energy department to issue a mining or prospecting right unless there appears to be unacceptable environmental degradation that cannot be mitigated. There is no provision in the Minerals and Petroleum Resources Development Act which compels payment of compensation to surface owners whose land is sterilised or affected by the exploitation of mineral rights.
That is not to say that there is no remedy other legislation including the constitution specifically protects property and environmental rights. The result is that a fundamental conflict is created between the exploitation of minerals (and the rights of the mineral right holder) on the one hand and the use of the surface (and the rights of the surface owner) on the other.
In the Anglo Operations case, the court was asked to consider whether the rights of a mineral right holder included the right to open-cast mining at the expense of the surface rights owner. The court likened a mineral right to that of a quasi-servitude. It held that provided it is necessary to undertake open-cast mining operations (ie the mineral could not be mined by any other means such as underground mining) and further provided the right is exercised in a reasonable way and all precautionary measures against degrading the environment are taken, then the mineral rights holder has the right to pursue open-cast mining operations. The surface owner must endure the inconvenience and impact on its land and business.
In the headnote of the judgment it says that: It is a settled principle of our law that a right to minerals in the property of another is in the nature of quasi-servitude over that property. As in the case of a servitude, the exercise of mineral rights will almost inevitably lead to a conflict between the right of the owner to maintain the surface and the mineral rights holder to extract the minerals underneath. The answer does not lie in the adoption of the English law doctrine of subjacent support. The correct approach is this conflict should be determined in accordance with the principles developed by our law in resolving the inherent conflicts between the holders of servitutal rights and the owners of the servient properties.
In accordance with the principles applicable to servitudes the owner of a servient property is bound to allow the holder to do whatever is reasonably necessary for the proper exercise of his rights. The holder of the servitude is in turn bound to exercise his rights civiliter modo, that is, reasonably viewed, with as much possible consideration and with the least possible inconvenience to the servient property and its owner.
In applying these principles to mineral rights it can be accepted on good authority that the holder is entitled to go onto the property, search for minerals and if he finds any, to remove them.
ABOUT THE AUTHOR: Adam Gunn
Adam Gunn is a partner at Routledge Modise in association with Eversheds and heads up the firms environmental law department. He specialises in all aspects of environmental law and successfully lobbied government to amend the taxation treatment of environmental expenditure (section 48 of the Revenue Laws Amendment Act, 2007; new section 37B of the Income Tax Act, 1962). Adam is a non-executive partner of Watermark Global Plc.