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[2009] ZAGPPHC 2
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Agri South Africa v Minister of Minerals and Energy; Van Rooyen v Minister of Minerals and Energy (55896/2007,10235/2008) [2009] ZAGPPHC 2; 2010 (1) SA 104 (GNP) (6 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
In
the matter between:
AGRI
SOUTH AFRICA
Plaintiff
(ASSOCIATION
INCORPORATED UNDER SECTION 21)
(Respondent
in exception)
and
THE
MINISTER OF MINERALS AND ENERGY
Defendant
(Excipient)
And
In
the matter between:
ANNIS
MÃHR VAN ROOYEN
Plaintiff
(Respondent
in exception)
and
THE
MINISTER OF MINERALS AND ENERGY
Defendant
(Excipient)
JUDGMENT
HARTZENBERG
J
Agri
South Africa (Agri) and A M van Rooyen (van Rooyen) were respectively
the holders of coal- and clay rights over fixed properties
until 30
April 2004. On 1 May 2004 the Minerals and Petroleum Resources
Development Act, no. 28 of 2002 ("the Act" or
"the
MPRDA") came into operation. The two plaintiffs claim
compensation for what they allege amount to an expropriation
of their
respective rights. The defendant is of the view that their claims are
vague and embarrassing and that in any event and
ex
facie
the
Particulars of Claim they have not exhausted their internal remedies
and are accordingly barred from instituting action against
the
defendant.
[2]
In its Particulars of Claim, Agri states its case as follows: At all
relevant times and on 1 May 2004, when the Act came into
operation,
Bulgara Investment Holdings (Pty) Ltd ("Bulgara") was the
holder of coal rights in respect of two properties,
in terms of a
Notarial Cession of Mineral rights. On 1 May 2004 the coal rights
were expropriated in terms of section 5 of the
Act read with sections
2, 3 and 4
1
thereof. In consequence it became entitled to compensation for the
expropriation as contemplated in section 12 of Schedule II of
the
Act. On 23 March 2006 Bulgara (then in liquidation) lodged a claim
for compensation with the Regional Manager in terms of Regulation
82A(1) of the relevant Regulations. On 10 October 2006 Bulgara ceded
its rights to the plaintiff. On or about 22 June 2007 the
Director-General determined, in terms of the provisions of Regulation
82A(4) that Bulgara did not have a valid claim for compensation.
Neither the plaintiff nor Bulgara appealed the decision of the
Director-General. By virtue of the provisions of Regulation
82A(6A)(a)
read with Regulation 82A(7) of the Regulations Agri is
entitled to apply to this court in terms of section 14 of the
Expropriation
Act, 1975(Act No 63 of 1975) for the determination of
the compensation to which it is entitled as a result of the
expropriation.
The amount of compensation to which Agri is entitled
is not less than R750 000,00 in view of the open market value of the
coal
rights, the fact that it was acquired on 2 October 2001 for an
amount of R1 048 800,00, that Bulgara was not entitled to sell or
transfer its old order right as from 1 May 2004 due to item 8 read
with item 1 of Schedule II and that Bulgara could not reasonably
have
taken steps to mitigate its loss by applying for and being granted a
prospecting or mining right in terms of Schedule II read
with
sections 16 or 22 of the Act.
[3]
The allegation by the plaintiff in the van Rooyen matter are very
similar: It is alleged that the plaintiff was the registered
owner of
a property and as such the holder of the clay rights (except for the
clay rights over 20 hectares of the property), that
the plaintiff was
expropriated by the relevant provisions of the Act, that the
plaintiff lodged a claim to the Regional Manager
on 14 September
2007, that the Director-General determined that the plaintiff did not
have a valid claim on or about 26 July 2007,
that the plaintiff did
not appeal the decision and that the plaintiff is entitled to
compensation of not less than R600 000,00.
As to the determination of
the market value of the clay rights it is alleged that but for the
provisions of the MPRDA the plaintiff
would have been able to sell
the property including its remaining clay rights for R1 300 000,00
but as a result of the expropriation
was only able to sell it for
R700 000,00, that the plaintiff acquired the property during 1992 for
R250 000,00, that it sold the
clay rights in respect of 20 hectares
during 1998 for R500 000,00 and that she was not able to mitigate her
loss.
[4]
The defendant's exception against the particulars of claim is
two-pronged. The first leg of the exception is based on the fact
that
the plaintiffs explicitly aver that they did not appeal against the
decisions of the Director-General determining that they
do not have
valid claims. The argument is that they failed to exhaust their
internal remedies in terms of the Act, by failing to
appeal to the
Minister against the Director-General's decision in terms of section
96 of the Act. The argument is that in terms
of Regulation 74(1) of
the Regulations promulgated in terms of the Act a person who appeals
in terms of section 96 of the Act,
has to lodge a notice of appeal
within 30 days of having become aware of the administrative decision,
that the plaintiffs failed
to lodge appeals and are accordingly
barred from instituting action. The second leg of the exception is to
the effect that the
provisions in the MPRDA relied upon by the
plaintiffs do not provide for the expropriation of the plaintiffs'
rights and that insufficient
facts have been alleged to apprise the
defendant of exactly what the plaintiffs' claims are, thus rendering
the Particulars of
Claim vague and embarrassing. There was a third
ground of exception which was not proceeded with during the hearing
of the matter.
[5]
I prefer to deal with the second ground of the exception firstly.
Section 25 of the Constitution
2
is to be taken as the starting-point of the exercise. It will be
necessary to compare the rights of mineral rights holders before
1
May 2004 with their rights, as regulated by the Act, thereafter, and
to investigate whether the Act did not expropriate vested
rights. If
the answer is positive it is to be ascertained whether provision has
been made for the payment of compensation by the
expropriator. If the
answer to that question is also positive the further enquiry is what
procedure is to be followed by an expropriatee
in order to enforce
payment of compensation in a court of law.
[6]
Section 25 of the Constitution
3
provides that no one may be deprived of property arbitrarily and
except in terms of law of general application. It clearly forbids
the
targeting of the property of specific individuals or entities, for
expropriation purposes. Apart from the commitment to land
reform and
to reforms to bring about equitable access to natural
resources[section 25 (4)(a) and subsections (5), (6), (7) and
(8)]
some of the salient provisions of the section are that expropriation
has to be for public purposes or in the public interest
[section
25(2)(a)]; subject to compensation, the amount whereof and the mode
and time of payment, if not agreed upon by the parties,
are to be
determined by a court of law [section 25(2)(b)]; that the amount of
the compensation has to be just and equitable taking
into account,
inter alia, the market value of the property {section 25(3)] and that
property is not limited to land [section 25(4)(b)].
[7]
Prior to 1 May 2004 mineral rights in respect of property formed part
of the rights of the landowner. It was possible, however,
to sever
the mineral rights and the surface rights and third parties could and
did become the holders of the mineral rights. Such
rights were freely
transferable and were valuable assets. It was even possible to sever
the mineral rights, in for instance the
rights to prospect or mine
for particular types of minerals like precious metals or base metals
or diamonds so that different entities
could be the holders of the
rights to different minerals. See for argument's sake the titanic
battle by the holder of the rights
to base metals for recognition of
those rights, in the matter of
Trojan
Exploration Co
(Pty)
Ltd and Another v Rustenburg Platinum Mines Ltd and Others
4
.
The
prospecting and mining of minerals were, throughout at least the
previous century, regulated by legislation. The rights themselves,
however vested in individuals and individual entities and not
necessarily as undivided rights. It was not uncommon for an heir
to
have been the holder of a fraction of the mineral rights in respect
of a property. However that may be, they had a commercial
value. See
the case of Erasmus v
Afrikander
Proprietary Mines Ltd
5
where
the holder of 1/520
th
share of the coal rights in respect of the farm Brakfontein
unsuccessfully tried to extort a ridiculously high price for those
rights from the mining house that had the necessary permission to
mine for coal.
[8]
For the purposes of this investigation it is sufficient to quote
the exposition of the rights to minerals, given by Schutz
JA in the
Trojan
matter
supra
at
509G-51 OA:
"The
nature of rights to minerals which had been separated from the
ownership
of
the land, as they had developed in South Africa, was described by
Innes CJ in
Van
Vuren
and
Others
v
Registrar
of Deeds
1907
TS 289
at 294 as being the entitlement, 'to go upon the property to
which they relate to search for minerals, and, if he (the holder)
finds any, to sever them and carry them away'. As these rights could
not be fitted into the traditional classification of servitudes
with
exactness - they were not praedial as they were in favour of a
person, not a dominant property - they were not personal as
they were
freely transferable - they had to be given another name, and the
Chief Justice dubbed them quasi-servitudes, a label
that has stuck.
They are real rights. Their exercise may conflict with the interests
of the landowner. In a case of a irreconcilable
conflict the
interests of the latter are subordinated, for if it were otherwise
the grant of mineral rights might be deprived of
content: see eg
Nolte's
case
supra
at
315:
Hudson
v
Mann
and Another
1950
(4) SA 485
(T) at 488E-F. For so long as minerals remain in the
ground they continue to be the property of the landowner: only when
the holder
of the mineral rights severs them do they become movables
owned by him:
van
Vuren'
s
case,
supra
at
295 "
[9]
It is evident that the holder of the mineral rights was under no
obligation to exploit the rights. He could keep it for as long
as he
wished. He could bequeath it to his heirs. He could sell it. The
State could not force him to start with the exploration
of the
minerals even if it would be to the public benefit. The advantage to
individuals was that they could own valuable rights
which they in
many cases would be unable to exploit but which they could sell to
mining houses or others for handsome amounts.
[10]
That position changed as from 1 May 2004. The Act was assented to by
the President on 3 October 2002 and came into operation
on 1 May
2004. The preamble of the MPRDA acknowledges that South Africa's
mineral and petroleum resources belong to the nation
and that the
State is the custodian thereof, in section 2(a) and (b) under
"Fundamental Principles" the objects of the
MPRDA are
stated, inter alia, to be to "recognize the internationally
accepted right of the State to exercise sovereignty
over all the
mineral and petroleum resources within the Republic" and "to
give effect to the principle of the State's
custodianship of the
nation's mineral and petroleum resources". Section (3) again
states that the mineral and petroleum resources
are the heritage of
the South African people and that the State is the custodian thereof.
It provides that the State, through the
Minister, can grant rights
and that the Minister in consultation with the Minister of Finance
can determine and levy fees and must
promote economic and social
development whilst maintaining a national environmental policy.
Section 4 deals with the interpretation
of the Act and provides that
a reasonable interpretation of the Act consistent with the objects
thereof must be preferred over
any other interpretation and in
particular that where the common law is inconsistent with the Act,
the Act is to prevail. In subsections
5 (1), (2) and (3) it is
explained what the legal effect of the grant of rights is and what
rights are conferred upon the holder
by the grant of the rights. In
section 5(4) the prospecting for minerals and the exploration of
minerals are prohibited unless
an environmental management programme
or plan has been approved, the necessary rights have been granted and
there was notification
and consultation with the landowner.
[11]
What is evident is that there is no acknowledgement of any existing
holding of mineral rights. Insofar as they have not been
exploited
they simply disappear in thin air. As far as these four sections are
concerned, an interpretation in terms of the dictates
of section 4,
indicates clearly that the only way to acquire new rights is to
obtain them from the State, through the Minister.
It would be futile
to acquire an unused right that existed before 1 May 2004 and use it
for a launch pad to acquire rights in terms
of the Act. But for the
further provisions under the heading "Transitional Arrangements"
contained in Schedule II to
the Act that gives certain rights to the
holders of "old order rights" and in particular to the
holders of "unused
old order rights", the effect of the Act
would have been to extinguish all those rights. Such an expropriation
would have
been effected without provision for compensation. That
would clearly have offended against the provisions of section 25 of
the
Constitution and would have rendered the Act unconstitutional.
[12]
But for Schedule II, the Act stood to be declared unconstitutional.
For the purposes of this case it is necessary to analyse
the Schedule
to see what rights are conferred upon the holders of "unused old
order rights". "Unused old order rights"
are all the
rights listed in table 3 to the schedule in respect of which no
prospecting or mining was being conducted immediately
before the Act
took effect. There are 11 categories. The first category consists of
common law mineral rights for which no prospecting
permit or mining
authorization was issued The definition of "holder" in
relation to such a right, is the person to whom
the right was granted
or by whom the right was held before the Act came into effect i.e.
before 1 May 2004. Both the plaintiffs
in these matters are holders
of unused old order rights.
[13]
The objects of the schedule are to ensure security of tenure in
respect of existing prospecting, mining or production operations,
to
give the holders of old order rights the opportunity to comply with
the Act and to promote equitable access to the nation's
mineral and
petroleum resources. Items 3,4,5,6 and 7 of the Schedule are aimed at
bringing existing prospecting and exploration
operations, conducted
before the coming into operation of the Act, within the purview of
the Act.
[14]
Item 8 deals with the processing of unused old order rights. An old
order right remains valid for not longer than a year from
the
commencement of the Act, the holder has the exclusive right to apply
for a prospecting or mining right for a period of not
longer than one
year. The application has to be in terms of either section 16 or
section 22 of the Act and the existing right remains
valid until the
application is granted or refused. Unless an application in terms of
item 8 is brought the unused old order right
ceases to exist after a
period of not longer than a year. The holder of rights had no
obligation to exploit those rights, before
1 May 2004. That situation
changed drastically thereafter. The holder had a maximum of one year
within which to bring an application,
either in terms of section 16
of the Act or in terms of section 22, depending on the circumstances.
[15]
Such an application is not a mere formality. Some of the requirements
are the following. It has to be accompanied by a non-refundable
application fee. The applicant has to submit an environmental
management plan, in the case of an application for a prospecting
right, or has to conduct an environmental impact assessment, and
submit an environmental assessment programme, in the case of an
application for a mining right in terms of section 22. To obtain such
plans or programmes of necessity entails that studies have
to be done
over a period of time and certainly not without expenditure. Before a
right can be granted the Minister must be satisfied
that the
applicant has access to such financial resources that he can conduct
the prospecting operations or the mining operations
optimally. It is
not all holders ofsuch rights that will be able to bring such
applications. All applications need not necessarily
be successful.
[16]
Items 9, 10 and 11 of the Schedule are not relevant for the purposes
of this judgment. Item 12
6
is of vital importance. In my view sub-item (1) by necessary
implication recognizes that expropriation in terms of the Act takes
place in terms various provisions therein. Expropriation is not
limited to administrative expropriation by the Minister in terms
of
section 55(1) of the Act but can also take place in terms of other
provisions of the Act. It can hardly be different because,
as has
been shown, there were many holders of mineral rights with commercial
value, before the commencement of the Act. But for
the transitional
arrangements those rights are not recognized in the Act, at all.
Apart from the plaintiffs in these matters, I
believe that many
holders of other old order rights have not been expropriated in terms
of section 55(1) of the Act. Except to
the extent that the
transitional arrangements afford some relief to them, those rights
have been extinguished by the coming into
operation of the Act.
Not
only have those rights been extinguished by the Act but the State is
now at liberty and obliged to administer those rights.
The Minister
now has the right to grant mining rights, for the extraction of
minerals to any successful applicant. Before 1 May
2004 there were
completely other holders of the rights to those minerals, who had
justified expectations, one day, to mine for
those minerals and
become the owners thereof.
[17]
It seems to me as if item 8 of Schedule II does no more than afford
an opportunity to the holders of affected rights to mitigate
their
damages. If the holder has the necessary financial resources, like
for instance a mining house, it can apply for the necessary
permission to exploit those rights. If the holder does not have the
financial resources the opportunity afforded by the schedule
is more
apparent than real. It is in any event in my view not something on
which the Minister can rely to maintain that the holder
had not been
deprived of his rights. It affords the Minister a defence against a
claim for compensation on the basis that the holder
acted
unreasonably by not having obtained similar rights in terms of the
schedule
7
.
In short it is my interpretation of the Act that it admits that
holders will be deprived of their rights and that such deprivation
coupled with the State's assumption of custody and administration of
those rights constitute expropriation thereof.
[18]
In the light of that conclusion it is unnecessary to deal with the
interesting argument on behalf of the plaintiffs as to exactly
what
constitutes an expropriation. The argument is that an expropriation
is not necessarily a transfer of all the expropriatee's
rights to the
expropriator. It is sufficient if the expropriatee has been deprived
of his rights to the property, and the expropriator
has derived some
benefit in respect of the property. 1 wasreferred to the Northern
Ireland decision in
Ulster
Transport Authority v James Brown and Sons Ltd.
1953
N I 79
(in which it was held that a provision in an Act that caused
someone to lose property, without compensation, offended against the
principle that no one's goods may be taken without compensation) and
the Australian case of
Georgiades
v Australian and Overseas Telecommunications Corporation,
[1994] HCA 6
;
1994
179 CLR 297
(wherein it was found that an enactment that shortened
the period within which an action could be instituted was, in the
circumstances
of the case, unjust and unfair and accordingly invalid
as it offended against the Constitution). As the argument leads to
the same
result as that reached hereinbefore it is unnecessary to
deal with it in greater detail.
[19]
The conclusion to which I have come is that it is possible for
holders of old order rights to prove that their rights have
been
expropriated. The Act affords them a right to claim compensation.
Section 55(2) and in particular Regulation 82A(7) make the
provisions
of the Expropriation Act, No 63 of 1975 applicable to such claims.
The plaintiffs have referred to the aspects that
item 12 of the
Schedule requires them to refer to. In the circumstances I think that
I understand what the plaintiffs' cases are.
I do not find them to be
vague or embarrassing.
This
leg of the exception cannot succeed.
[20]
The other leg of the exception is based on the provisions of
Regulation 82A(5), read with section 96 of the Act and the Promotion
of Administrative Justice Act 3 of 2000 (PAJA). The argument is that
the plaintiffs had to and did file claims with the Director-General.
The Director-General decided that the plaintiffs had no valid claims.
Regulation
82A(5)
bestows a right upon the plaintiffs to appeal to the Minister in
terms of section 96 of the Act. That section provides that
any person
whose rights have been materially affected by an adverse
administrative decision of the Director-General may appeal
to the
Minister. An appeal does not suspend the decision. No person may
apply to court for a review of an administrative decision
until that
person has exhausted his or her remedies in terms of section 96(1).
Section 96(4) specifically makes sections 6, 7(1)
and 8 of PAJA
applicable to court proceedings in terms of the section. The gist of
the argument is that administrative decisions,
having been made,
cannot be ignored and remain valid until set aside, bearing in mind
that an unlawful administrative act produces
legally valid
consequences for so long as it is not set aside
8
.
[21]
The submission may have been a good one, but for the provisions of
Regulation 82A(6A) which was later introduced into the Regulations
by
Government Notice R1203 of 30 November 2006
9
.
Although it is couched in the negative the Regulation in fact
authorizes three instances where a claimant may institute action
without taking any further steps.. The first one is where the
claimant has lodged a claim in terms of Regulation 82A(1) and the
Director-General has informed him in terms of Regulation 82A(4) that
he has no valid claim
and
the claimant has not appealed the decision of the Director-General,
in
terms of Regulation 82A(5). The second instance is where the
claimant, having been informed by the Director-General that he has
no
valid claim has appealed against that decision to the Minister, in
terms of Regulation 82A(5) (and obviously section 96 of the
Act)
and
the Minister has confirmed the decision.
The
third instance is where the claimant's claim has been recognized by
the Director-General or by the Minister, on appeal to him,
and no
agreement as to the amount could be reached within 180 days.
Regulation 82A(6)(b) specifically provides that in the absence
of
agreement the amount is to be determined by the court. It is clear
that these two cases fall directly within the ambit of Regulation
82A(6A)(a).
[22]
It is clear that Regulation 82A(6A)(a) specifically allows a
claimant not to avail himself of his right of appeal in terms
of
Regulation 82A(5). The right of appeal is the review of an
administrative decision. If the appeal is upheld by the Minister
the
Ministers decision is also an administrative decision. If an
application is brought in terms of PAJA against the Minister's
decision the application is still an application for the review of
the administrative decisions What item 12 of the schedule
allows a
claimant to do is to assert that he has been expropriated and to
prove it in a court of law. Those issues are not administrative
issues. If Regulation 82A(6A) had not been introduced into the
Regulations the fact that a claimant did not have direct access
to
the court, and first had to exhaust administrative remedies, may
have jeopardized the Constitutionality of the MPRDA.
The
exception also cannot succeed on this leg.
The
exceptions in both cases are dismissed with costs, inclusive of the
costs occasioned by the employment of two counsel.
W
HARTZENBERG
JUDGE
OF THE HIGH COURT
HEARD
ON
:
10
February 2009
ON
BEHALF OF THE PLAINTIFF
Counsel
: G L GROBLER SC
J
L GILDENHUYS
Instructed
by : MACROBERT INC
ON
BEHALF OF THE DEFENDANT
Counsel
:
SHJ
BADENHORST SC
N
FOURIE
Instructed
by : THE STATE ATTORNEY
1
The
sections read as follows:
2
Objects
of the Act
The
objects of the Act are to -
recognize
the internationally accepted right of the State to exercise
sovereignty over all the Mineral and petroleum resources
within the
Republic;
give
effect to the principle of the State's custodianship of the
nation's mineral and petroleum resources;
promote
equitable access to the nation's mineral and petroleum resources to
all the people of South Africa;
substantially
and meaningfully expand opportunities for historically
disadvantaged people, including women, to enter the mineral
and
petroleum industries and to benefit from the exploitation of the
nation's mineral and petroleum resources;
promote
economic growth and mineral and petroleum resources development in
the Republic;
promote
employment and advance the social and economic welfare of all South
Africans;
provide
for security of tenure in respect of prospecting, exploration,
mining and production operations;
(h)
give
effect to section 24 of the Constitution by ensuring that the
nation's mineral and petroleum resources are developed in an
orderly
and ecologically sustainable manner while promoting justifiable
social and economic development; and
(i)
ensure
that holders of mining and production rights contribute towards the
socio-economic development of the areas in which they
are operating
Custodianship
of nation's mineral and petroleum resources
(1)
Mineral and petroleum resources are the common heritage of all the
people of South Africa and the State is the custodian
thereof for
the benefit of all South Africans.
(2)
As the 4 custodian of the nation's mineral and petroleum resources,
the State acting through the Minister, may -
(a)
grant, issue, refuse, control, administer and manage any
reconnaissance permission, prospecting right, permission to remove,
mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right and
production right; and
(b)
in consultation with the Minister of Finance, determine and levy,
any fee or consideration payable in terms of any relevant
Act of
Parliament.
(3)
The Minister must ensure the sustainable development of south
Africa's mineral and petroleum resources within a frame work
of
national environmental policy, norms and standards while promoting
economic and social development.
4
.Interpretation
of Act
When
interpreting a provision of this Act, any reasonable
interpretation which is consistent with the objects of this Act
must be preferred over any other interpretation which is
inconsistent with such objects.
In
so far as the common law is inconsistent with this Act, this Act
prevails.
5
Legal
nature of prospecting right, mining right, exploration right or
production right, and rights of holders thereof
(1)
A prospecting right, mining right, exploration right or production
right granted in terms of this Act is a limited real right
in
respect of the mineral or petroleum and the land to which such right
relates.
(2)
The holder of a prospecting right, mining right, exploration right
or production right is entitled to the right referred to
in this
section and such other rights as may be granted to, acquired by or
conferred upon such holder under this Act or any other
law.
(3)
Subject to this Act, any holder of a prospecting right, a mining
right, exploration right or production right may-
(a)
enter the land to which such right relates together with his or her
employees, and may bring onto that land any plant, machinery
or
equipment and build, construct or lay down any surface, underground
or under sea infrastructure which may be required for
the purposes
of prospecting, mining, exploration or production, as the case may
be;
(b)
prospect, mine, explore or produce, as the case may be, for his or
her own account on or under that land for the mineral
or petroleum
for which such right has been granted;
(c)
remove and dispose of any such mineral found during the course of
prospecting, mining, exploration or production, as the
case may be;
(d)
subject to the National Water Act, 1998 (Act No. 36 of 1998), user
water from any spring, lake, river or stream, situated
on, or
flowing through, such land or from any excavation previously made
and used for prospecting, mining, exploration or production
purposes, or sink a well or borehole required for use relating to
prospecting mining, exploration or production on such land;
and
(e)
carry out any other activity incidental to prospecting, mining,
exploration or production operations, which activity does
not
contravene the provisions of this Act.
No
person may prospect for or remove, mine, conduct technical
co-operation operations, reconnaissance operations, explore for
and
produce any mineral or petroleum or commence with any work
incidental thereto on any area without -
(a)
an approved environmental management programme or approved
management plan, as the case may be;
(b)
a reconnaissance permission, prospecting right, permission to
remove, mining right, mining permit, retention permit, technical
co-operation permit, reconnaissance permit, exploration right or
production right, as the case may be; and
(c)
notifying and consulting with the land owner or lawful occupier of
the land in question.
2
Act 108 of 1996
3
The
first four subsections of the section provide as follows::
"(1)
No one may be deprived of property except in terms of law of general
application, and no law may, permit arbitrary deprivation
of
property.
(2)
Property may be expropriated only in terms of law of general
application -(a ) for a public purpose or in the public interest,
and
(b)
subject to compensation , the amount of which and the time and
manner of payment of which have either been agreed to by those
affected or decided or approved by a court
(3)The
amount of compensation and the time and manner of payment must be
just and equitable, reflecting an equitable balance between
the
public interest and the interests of those affected, having regard
to all relevant circumstances, including -
(a)
the
current use of the property;
(b)
the
history of the acquisition and use of the property
(c)
the market value of the property;
(d)the
extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and
(e)
the purpose of the expropriation
(4)For
the purposes of this section -
(a)
the
public interest includes the nations commitment to land reform , and
to reforms to bring about equitable access to all South
Africa's
natural resources; and
(b)
property
is not limited to land. "
4
[1996] ZASCA 74
;
1996
(4) SA 499
(A).
5
1976
(1) SA 950
(W)
6
It bears the heading "Payment of Compensation" and reads
as follows"
"(1)
Any person who can prove that his or her property has been
expropriated in terms of any provision of this Act may claim
compensation
from the State.
(2)
When
claiming compensation, a person must -
(a)
prove
the extent and nature of actual loss and damage suffered by him or
her;
(b)
indicate
the current use of the property;
(c)
submit
proof of ownership of such property;
(d)
give
the history of acquisition of the property in question and price
paid for it;
(e)
detail
the nature of such property;
(f)
prove
the market value of the property and the manner in which such value
was determined; and
(g)
indicate
the extent
of
any State assistance and benefits received in respect of such
property.
(3)
I
n
determining just and equitable compensation all relevant factors
must be taken into account, including, in addition to sections
25(2)
and 25 (3) of the Constitution -
(a)
the
State's obligation to redress the results of past racial
discrimination in the allocation
of
and
access to mineral and petroleum resources;
(b)
the
State's obligation to bring about reforms to promote equitable
access to mineral and petroleum resources;
(c)
the
provisions of sections 25(8) of the Constitution; and
(d)
whether
the person concerned will continue
to
benefit from the use of the property in question or not.
(4)
Any
claim for compensation must be lodged with the Director-General in
the prescribed manner.
7
A defence which would be a sound one in respect of claims over some
areas of land in the country would be that the mineral rights
had no
commercial value as at 30 April 2004.
8
It
reads:
"The
claimant shall have the right to appeal the decision of the
Director-General in terms of section 96
of
the Act. "
9
Oudekraal Estates (Pty) Ltd v City of Cape Town and Others,
2004
(6) SA 222
(SCA) at 26 and
Khabisi
NO
v
Aquarella
Investments 83 (Pty) Ltd,
2008
(4) SA 204G
-205H
9
It reads:
"(6A)
A claimant may not issue legal proceedings against the Minister in
respect of the determination of payment of compensation
for an
expropriation contemplated in item 12(1) of Schedule II to the Act,
unless a claim has been lodged as contemplated in
subregulation
(I)
and -
(a)
the
claimant has been informed, in writing
of
the determination of the Director-General that the claim is invalid
as contemplated in subregulation (4) and the claimant has
not
appealed the decision of the Director-General as contemplated in
subregulation (5); or
(b)
where
the claimant has appealed the decision of the Director-General as
contemplated in subregulation (5), the claimant has been
informed in
writing by the Minister of the confirmation of the said decision: or
(c)
the
period contemplated in sub-item (6)(b) has expired.