Minister of Minerals and Energy v Agri South Africa

• Jurisdiction: South Africa
• Judgment Date: 31 May 2012
• Citation: 2012 (5) SA 1 (SCA)

Minister of Minerals and Energy v Agri South Africa
2012 (5) SA 1 (SCA)

2012 (5) SA p1

Citation	2012 (5) SA 1 (SCA)
Case No	458/2011; [2012] ZASCA 93
Court	Supreme Court of Appeal
Judge	Nugent JA, Heher JA, Mhlantla JA, Leach JA and Wallis JA
Heard	May 4, 2012
Judgment	May 31, 2012
Counsel	CHJ Badenhorst SC (with M Wesley) for the appellant.; GL Grobler SC (with JL Gildenhuys) for the respondent.; G Budlender SC (with M du Plessis and J Brickhill) for the amicus curiae.

Flynote : Sleutelwoorde B

Mines and minerals — Mineral rights — Expropriation — What constitutes — MPRDA not expropriating all mineral rights under 1991 Minerals Act — Minerals Act 50 of 1991; Mineral and Petroleum Resources Development Act 28 of 2002. C

Expropriation — Acquisition — Expropriation involving expropriatee being deprived of property and expropriator acquiring property resembling it — Whether there is an acquisition to be decided with regard to form of alleged expropriation, property allegedly expropriated, and rights allegedly acquired by expropriator — Constitution, s 25(2). D

Headnote : Kopnota

S, a company, held rights to coal in two properties. The Mineral and Petroleum Resources Development Act 28 of 2002 (the MPRDA) came into force, and S, asserting the MPRDA had expropriated its rights, claimed compensation E from the state. The claim was rejected and S ceded it to Agri South Africa (Agri), which successfully pursued the claim in a high court. The Minister of Minerals and Energy (the Minister) appealed the high court finding to the Supreme Court of Appeal.

On appeal Agri argued that the MPRDA had expropriated all mineral rights on coming into force. The SCA had to decide the following: the nature of an expropriation in terms of s 25(2) of the Constitution; the nature of mineral F rights prior to the MPRDA; and whether the MPRDA expropriated them.

Expropriation

The SCA held that an expropriation in terms of s 25(2) involved an expropriatee being deprived of property, and an expropriator acquiring property that resembled it. Whether there was an acquisition had to be decided on a case by case basis, with regard to the form of the alleged expropriation, the G

2012 (5) SA p2

A property allegedly expropriated, and the rights allegedly acquired by the expropriator. (Paragraphs [14], [18] and [24] at 12C – E, 14G – H and 18D – F.)

Here, to decide if there was a deprivation and an acquisition, it was necessary to examine the rights Agri claimed were expropriated. (Paragraph [24] at 18G.)

B The nature of mineral rights, and whether the MPRDA expropriated them

The rights to enter onto land, to prospect for minerals and to mine and dispose of them, were collectively referred to as 'the right to mine'. The right to mine, and the subsidiary rights that stemmed from it, were referred to as 'the common-law mineral rights'. (Paragraph [27] at 20E – F.)

C Agri argued that the rights it and others held under s 5(1) of the Minerals Act 50 of 1991 were common-law mineral rights, and that the MPRDA had expropriated them. The SCA disagreed. There was here a mischaracterisation. The term 'common-law mineral rights' had in error been interpreted to identify the origin of mineral rights. The right to mine did not in fact flow from the common law, which did not recognise separate mineral rights. Mining rights D had developed through legislative measures requiring contracts to prospect or mine for minerals to be registered. Courts had interpreted the registered rights as real rights separate from the dominium of the land. And subsequent legislation preserved their separate character. Moreover, successive governments' policy, expressed in legislation, was that the right to mine vested in the state, which allocated it to private parties. It was the same with the MPRDA. E As the right to mine had never vested in holders of mineral rights, there had been no deprivation of it. (Paragraphs [63], [66], [81] – [85] and [99] at 38G – 39D, 40F – 41D, 47A – 48E and 53G – I.)

Moreover, the transitional provisions of sch II of the MPRDA undermined the contention that it removed the content of mineral rights. Those provisions translated mineral rights into 'old order rights' and allowed for their conversion to mining and prospecting rights under the MPRDA. The rights F now might not be precisely the same as before, but their content had not been wholly removed and vested in the Minister. Accordingly there was no acquisition as required for an expropriation. (Paragraphs [88] and [90] at 49D – F and 50A – E.)

Furthermore, contrary to the contention that mineral rights that translated to 'unused old order rights' had been expropriated, the holder of such rights, G on succeeding in applying for a mining or prospecting right, would hold greater rights than under the 1991 Act. (Paragraph [97] at 53A – B.)

However, while the claim that the MPRDA had expropriated all mineral rights under the 1991 Act had failed, this did not exclude the possibility that the MPRDA had in fact expropriated particular rights. Whether it did so depended, though, on the facts of the particular case, and not on a general H expropriation of mineral rights. (Paragraph [99] at 53H – I.)

Cases Considered

Annotations:

Case law

Southern Africa

Agri South Africa v Minister of Minerals and Energy; Van Rooyen v Minister of Minerals and Energy 2010 (1) SA 104 (GNP): overruled I

Agri South Africa v Minister of Minerals and Energy 2012 (1) SA 171 (GNP): reversed on appeal

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA): referred to

Beckenstrater v Sand River Irrigation Board 1964 (4) SA 510 (T): referred to

Coronation Collieries v Malan 1911 TPD 577: referred to J

2012 (5) SA p3

Davies and Others v Minister of Lands, Agriculture and Water Development A 1997 (1) SA 228 (ZS) (1996 (1) ZLR 681): referred to

Estate Marks v Pretoria City Council 1969 (3) SA 227 (A): referred to

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (2002 (7) BCLR 702): considered B

Greathead v Transvaal Government and Randfontein Estate and Gold Mining Co Ltd 1910 TS 276: dictum at 288 considered

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489): applied

Henderson v Hanekom (1903) 20 SC 513: referred to

Hewlett v Minister of Finance and Another 1982 (1) SA 490 (ZS) (1981 ZLR 571): C referred to

Holcim SA (Pty) Ltd v Prudent Investors (Pty) Ltd and Others [2011] 1 All SA 364 (SCA): dictum in para [37] approved

Houtpoort Mining and Estate Syndicate Ltd v Jacobs 1904 TS 105: referred to

Industrial Council for the Furniture Manufacturing Industry, Natal v Minister of Manpower and Another 1984 (2) SA 238 (D): referred to D

Jolly v Herman's Executors 1903 TS 515: referred to

Lazarus and Jackson v Wessels, Oliver & Coronation Freehold Estates, Town & Mines Ltd 1903 TS 499: referred to

Le Roux v Loewenthal 1905 TS 742: referred to

Minister van Waterwese v Mostert en Andere 1964 (2) SA 656 (A): referred to E

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bissett and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150): referred to

Natal Bottle Store-keepers and Off-Sales Licences Association v Liquor Licensing Board for Area 31 and Others 1965 (2) SA 11 (D): referred to F

Neebe v Registrar of Mining Rights 1902 TS 65: referred to

Nolte v Johannesburg Consolidated Investment Co Ltd 1943 AD 295: referred to

Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation and Others 2010 (4) SA 242 (SCA): referred to

Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others G 2011 (1) SA 293 (CC): referred to

Port Edward Town Board v Kay 1996 (3) SA 664 (A): referred to

Reflect-All 1025 CC and Others v MEC for Public Transport, Roads and Works, Gauteng Provincial Government, and Another 2009 (6) SA 391 (CC) (2010 (1) BCLR 61): considered

SA Permanent Building Society v Liquidator, Isipingo Beach Homes (Pty) Ltd and Others H 1961 (1) SA 305 (D): referred to

Simmer and Jack Proprietary Mines Ltd v Union Government (Minister of Railways and Harbours) 1915 AD 368: referred to

Steinberg v South Peninsula Municipality 2001 (4) SA 1243 (SCA): referred to

Stellenbosch Divisional Council v Shapiro 1953 (3) SA 418 (C): dictum at I 423H – 424A considered

The Town Council of Cape Town v Hiddingh's Executors (1894) 11 SC 146: referred to

Trojan Exploration Co (Pty) Ltd and Another v Rustenburg Platinum Mines Ltd and Others 1996 (4) SA 499 (A): referred to

Van Vuren v Registrar of Deeds 1907 TS 289: referred to J

2012 (5) SA p4

Xstrata (Pty) Ltd and Others v SFF Association 2012 (5) SA 60 (SCA): referred to. A

Australia

Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 ([1994] HCA 6): referred to

Mutual Pools & Staff Pty Ltd v The Commonwealth of Australia (1994) 179 CLR 155 ([1994] HCA 9): referred to B

Newcrest Mining (WA) Ltd and Another v The Commonwealth of Australia and Another (1997) 190 CLR 513 (HCA): referred to.

Canada

Manitoba Fisheries Ltd v The Queen 88 DLR (3d) 462: referred to. C

England

Director of Public Works v Ho Po Sang [1961] AC 901 (PC) ([1961] 2 All ER 721): referred to

Government of Malaysia v Selangor Pilot Association (a Firm) [1978] AC 337 (PC): referred to D

Société United Docks v Government of Mauritius; Marine Workers Union v Mauritius Marine Authority [1985] 1 All ER 864 (PC): referred to

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