Minister of Mineral Resources v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1) SA 306 (SCA) Prospecting rights under the MPRDA : Public Law Instruments? : recent case law

• DOI: 10.10520/EJC193475
• Published date: 01 January 2016
• Pages: 168-181
• Author: P.J. Badenhorst
• Date: 01 January 2016

168 2016 De Jure

Minister of Mineral Resources v Mawetse (SA)

Mining Corporation (Pty) Ltd

2016 (1) SA 306

(SCA)

Prospecting rights under the MPRDA: Public Law Instruments?* 1

Will the wind ever remember

the names it has blown in the past?

Jimi Hendrix

1Introduction

Upon enactment of the Mineral and Petroleum Resources Development

Act 28 of 2002 (MPRDA) the State became the custodian of the mineral

resources of South Africa ‘for the benefit of all South Africans’ (s 3(1)),

and the Minister of Mineral Resources became empowered to grant new

types of rights to minerals, such as prospecting and mining rights to any

applicant (s 3(2)(a)).

Applications for prospecting rights or mining rights have to be lodged

at the office of the regional manager (ss 16(1) & 22(1) respectively). An

applicant for such rights has to comply with the general requirements of

the MPRDA (ss 17(1) & 23(1)(a)-(g) respectively; see further Badenhorst

& Mostert Mineral and Petroleum Law of South Africa (2004) 15-7 to 15-8

& 16-6 to 16-7). The MPRDA has also, as its object, the transformation of

the mining industry to attempt to counter the inequalities and exclusion

of black people from the mining industry in the past (see s 2(d); Minister

of Mineral Resources v Mawetse (SA) Mining Corporation (Pty) Ltd (2016 (1)

SA 306 (SCA) par 16). In addition to the general requirements, the

minister ‘may’, in terms of section 17(4) of the MPRDA, request the

applicant for a prospecting right to give effect to the object of section 2(d)

of the MPRDA. Compliance with transformation objectives, stated in

sections 2(d) and (f), is expressly required for the grant of a mining right

(s 23(1)(h)). Section 17(4) has, therefore, been perceived as discretionary,

whilst section 23(1)(h) has been seen as obligatory (Dale, Bekker &

Bashall et al South African Mineral Law (2005) 238). Section 2(d), a black

economic empowerment (BEE) provision, has, as its object, the

expansion of opportunities for historically disadvantaged persons to

enter the mineral industry and to benefit from mineral exploitation by

virtue of empowerment deals, whilst section 2(f) is aimed at the

promotion of employment and advancement of the social welfare of all

South Africans. Unlike mining, prospecting is not an attractive

investment destination for empowerment purposes because of its high

1 I wish to acknowledge the comments and suggestions of Professor

JC Sonnekus to an earlier draft. I, however, remain responsible for the

correctness of the end product.

How to cite: Badenhorst ‘Minister of Mineral Resources v Mawetse (SA) Mining Corporation (Pty) Ltd 2016 (1)

SA 306 (SCA)’ 2016 De Jure 168-181

http://dx.doi.org/10.17159/2225-7160/2016/v49n1a11

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