The Mineral and Petroleum Resources Development Act, 2002
("MPRDA") terminated the common law concept of ownership
of mineral rights. It provides that the mineral and petroleum
resources of South Africa are the common heritage of its people and
that the State is the custodian of those resources.
The MPRDA's transitional arrangements created three
categories of "old order rights". Old order mining rights
and old order prospecting rights consist of the common law mineral
right coupled with the relevant statutory authorisation to mine or
prospect, where mining or prospecting were occurring on 30 April
2004. The third category is that of 'unused old order
rights', comprised of the common law mineral right with or
without the relevant statutory authority to mine or prospect where
no mining or prospecting activities were occurring on 30 April
Since all common law rights to minerals, save for those where
existing mining or prospecting operations were taking place as at
30 April 2004, would qualify as "unused old order
rights", such rights form probably the largest group of old
order rights. In fact, the rights to minerals under every piece of
land in South Africa where no prospecting or mining was taking
place on 30 April 2004 became, by virtue of the MPRDA, "unused
old order rights". The holders of unused old order rights
would ordinarily be the owner of the piece of land in question or,
where the rights to minerals had been severed from ownership of the
land, the holder of those rights.
Under the MPRDA's transitional arrangements, the holder of
an unused old order right had the exclusive right to apply for a
new statutory right within one year from 1 May 2004. Where the
holder of an unused old order right failed to apply within the
prescribed period, or where he or she applied unsuccessfully, the
unused old order right ceased to exist. The principle underlying
this regime has aptly been termed "use it or lose
The MPRDA's transitional arrangements also provide that any
person who can prove that his or her property has been expropriated
in terms of any provision of the MPRDA may claim compensation from
the State for such expropriation.
In the case of Agri South Africa v Minister, Minerals &
Energy; Van Rooyen v Minister, Minerals & Energy ("the
AgriSA case"), the North Gauteng High Court held that it is
possible for the holder of an unused old order right which has
ceased to exist by virtue of the operation of the MPRDA to prove
that such right was expropriated and that the mere fact that a
holder of an unused old order right is afforded an opportunity to
apply for a "new order" right did not, on its own, mean
that an expropriation had not occurred.
It is accordingly possible for a holder of an unused old order
right which has ceased to exist by virtue of the operation of the
MPRDA, to lodge a claim for compensation for expropriation under
Item 12 of Schedule II of the MPRDA. The Regulations promulgated
under the MPRDA prescribe the information which must accompany such
a claim and also provide that all claims must be lodged before 30
Because the AgriSA case was decided on exception, the court did
not delve in any depth into what a person claiming under item 12
will need to prove in order to prove that he or she has been
expropriated. Expropriation is, by its nature, a complex legal
subject. It should also be borne in mind that some unused old order
rights would be worth substantially more than others, with many
being virtually without any value at all. Any person who wishes to
claim compensation under the MPRDA will need to be able to prove
the value of the right he or she alleges to have been expropriated
by means of a valuation report prepared by a qualified
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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