The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law
The nature of a right to minerals is controversial in South Africa. With the recent coming into force of new legislation governing mineral resources, the conventional view is that there has been a drastic shift of control over the country’s mineral wealth from private individuals to the state. Howev...
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Nomos Verlagsgesellschaft mbH & Co. KG
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ftdoajarticles:oai:doaj.org/article:c85dca2642d54cf5b0345b4ccf733add 2023-05-15T13:30:44+02:00 The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law Hanri Mostert 2015-01-01T00:00:00Z https://doi.org/10.5771/2363-6270_2014_1_28 https://doaj.org/article/c85dca2642d54cf5b0345b4ccf733add DE EN FR ger eng fre Nomos Verlagsgesellschaft mbH & Co. KG https://www.nomos-elibrary.de/10.5771/2363-6270_2014_1_28 https://doaj.org/toc/2363-6270 2363-6270 doi:10.5771/2363-6270_2014_1_28 https://doaj.org/article/c85dca2642d54cf5b0345b4ccf733add Recht in Afrika, Vol 17, Iss 1, Pp 28-51 (2015) Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX article 2015 ftdoajarticles https://doi.org/10.5771/2363-6270_2014_1_28 2022-12-31T11:48:55Z The nature of a right to minerals is controversial in South Africa. With the recent coming into force of new legislation governing mineral resources, the conventional view is that there has been a drastic shift of control over the country’s mineral wealth from private individuals to the state. However, in this article, the author explains that the conceptualisation of the mineral right in South Africa has always been inconsistent and contested, at least partly due to South Africa being a mixed legal system with conflicting theoretical foundations. With reference to Underkuffler’s theoretical framework of the legitimate regulatory powers of the state over property, the author demonstrates that the orthodox view in South Africa has historically emphasised the powers of private parties over mineral resources and viewed the state’s legitimate regulatory role as limited. However, the author argues, both historically and conceptually it is more accurate to acknowledge that the state has always exercised significant control over mining in South Africa, and the right to minerals has always been a flexible one which has varied across different legislative periods. The article outlines the evolution of the mineral right in South Africa, discusses the conflicting theoretical conceptions of the right (including whether it is servitudal in nature or an independent property right) and critiques the recent judicial treatment of the right by South Africa’s highest courts. The author concludes by suggesting that if the mineral right is understood correctly, the recent legislative changes are actually far less radical than commonly thought. Article in Journal/Newspaper Antarc* Antarctica Directory of Open Access Journals: DOAJ Articles Pacific Recht in Afrika 1 1 28 51 |
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Directory of Open Access Journals: DOAJ Articles |
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German English French |
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Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX |
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Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX Hanri Mostert The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
topic_facet |
Asia and Eurasia Africa Pacific Area and Antarctica KL-KWX |
description |
The nature of a right to minerals is controversial in South Africa. With the recent coming into force of new legislation governing mineral resources, the conventional view is that there has been a drastic shift of control over the country’s mineral wealth from private individuals to the state. However, in this article, the author explains that the conceptualisation of the mineral right in South Africa has always been inconsistent and contested, at least partly due to South Africa being a mixed legal system with conflicting theoretical foundations. With reference to Underkuffler’s theoretical framework of the legitimate regulatory powers of the state over property, the author demonstrates that the orthodox view in South Africa has historically emphasised the powers of private parties over mineral resources and viewed the state’s legitimate regulatory role as limited. However, the author argues, both historically and conceptually it is more accurate to acknowledge that the state has always exercised significant control over mining in South Africa, and the right to minerals has always been a flexible one which has varied across different legislative periods. The article outlines the evolution of the mineral right in South Africa, discusses the conflicting theoretical conceptions of the right (including whether it is servitudal in nature or an independent property right) and critiques the recent judicial treatment of the right by South Africa’s highest courts. The author concludes by suggesting that if the mineral right is understood correctly, the recent legislative changes are actually far less radical than commonly thought. |
format |
Article in Journal/Newspaper |
author |
Hanri Mostert |
author_facet |
Hanri Mostert |
author_sort |
Hanri Mostert |
title |
The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
title_short |
The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
title_full |
The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
title_fullStr |
The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
title_full_unstemmed |
The ‘Thing’ Called ‘Mineral Right’ Re-examining the nature, content and scope of a rather confounding concept in South African law |
title_sort |
‘thing’ called ‘mineral right’ re-examining the nature, content and scope of a rather confounding concept in south african law |
publisher |
Nomos Verlagsgesellschaft mbH & Co. KG |
publishDate |
2015 |
url |
https://doi.org/10.5771/2363-6270_2014_1_28 https://doaj.org/article/c85dca2642d54cf5b0345b4ccf733add |
geographic |
Pacific |
geographic_facet |
Pacific |
genre |
Antarc* Antarctica |
genre_facet |
Antarc* Antarctica |
op_source |
Recht in Afrika, Vol 17, Iss 1, Pp 28-51 (2015) |
op_relation |
https://www.nomos-elibrary.de/10.5771/2363-6270_2014_1_28 https://doaj.org/toc/2363-6270 2363-6270 doi:10.5771/2363-6270_2014_1_28 https://doaj.org/article/c85dca2642d54cf5b0345b4ccf733add |
op_doi |
https://doi.org/10.5771/2363-6270_2014_1_28 |
container_title |
Recht in Afrika |
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1 |
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1 |
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28 |
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51 |
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