The nature of new order prospecting rights and mining rights: A can of worms?

Authors P J Badenhorst

ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor of Law, Nelson Mandela Metropolitan University
Source: South African Law Journal, Volume 134 Issue 2, 2017, p. 361 – 382


New order prospecting rights and mining rights are labelled as ‘limited real rights’ in s 5(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’). The use of this label is questioned in this article, and it is shown that the prospecting rights and mining rights are not fully compatible with the common-law notion of a limited real right. The nature of prospecting or mining rights is analysed by drawing a comparison with limited real rights or property in terms of property theory, equivalent rights which existed during the previous mineral dispensation, other rights to minerals issued under the MPRDA, public-law instruments, and the nature of ‘property’ in terms of s 25(1) of the Constitution of the Republic of South Africa, 1996. It is shown that rights which differ in nature and origin arise at different moments in time. It is concluded that a limited real right under the MPRDA is rather a right sui generis or a right that is separate from the dominium of land or minerals in situ.