The legal pitfalls of investing in mining industry in South Africa : a comparative analysis

Abstract

Previously the concept of ownership has played a role in the development of Minerals right and was regarded as an absolute right of the owner to do what he desired with property. It is nowadays accepted that ownership is not an absolute and unlimited but the concept is still undergoing transformation. Since the enacted of the Mineral and Petroleum Resources Development Act (MPRDA) now vest on the State as the Custodian of all minerals in South Africa. The vesting of the Mineral right does however interfere with the common law right private ownership, and the investor as expressed in the constitution. The term Custodian as used in the Bill is a misnomer, in that the Bill proposes not mere Custodianship, but an actual vesting in the State by giving effect to the universally accepted right of the State to exercise permanent Sovereignty to all minerals resources. The new Mining legislation regime with specific reference Mineral and Petroleum Resources Development Act and National Environmental Management Act are precisely paced to ensure optimal exploitation of natural resources while promoting sustainable development.