Mineral rights holder

In some Deeds Registries certain notarial deeds entered into between the owner of the land and the mineral rights holder, ostensibly relating to the surface of the land on which mineral rights are held, are being registered. The motivation given for the registration of such notarial agreements is that they are being registered in terms of section 3(1)(o) of the Deeds Registries Act 1937 (Act 47 of 1937), as they relate to the surface of the land. There is another legal view that such agreements should not be registered in the Deeds Registries, since they invariably relate to the rights connected with the enjoyment/dealing with the mineral rights attaching to the land. It is intended by this article to consider the two legal view points in order to eradicate the dilemma which examiners find themselves in.

With the amendment of the Deeds Registries Act, by the Mining Titles Registrations Amendment Act 2003 (Act 24 of 2003), and the amendment of Mining Titles Registration Act, by the Mineral and Petroleum Resources Development Act 2002 (Act 28 of 2002), all transactions relating to the dealing with mineral rights were removed from the domain of the Registrar of Deeds and vested entirely in the Mineral and Petroleum Titles Registration Office. That seemed to be a straight forward provision, the implementation of which would not cause any problem. But is that the case?

It is acknowledged that notarial agreements are by their very nature unique as any contract, and each contract must be viewed in the light of its provisions before being rejected on the basis that it relates to the enjoyment of mineral rights. In terms of section 3(1)(o) of the Deeds Registries Act 1937, the Registrar of Deeds has the duty to:

'…register any servitude, whether personal or praedial, and record the modification or extinction of any registered servitude;'

On the one hand the preamble to the Mining Titles Registration Amendment Act 2003 provides among others,


The Mining Titles Registration Act, 1967 (Act 16 of 1967) on the other hand, empowers the Director-General of the Department of Minerals and Energy to;

'register all rights granted in terms of the Mineral and Petroleum Resources Development Act, 202, and generally all documents evidencing title which by law are proper for registration in the Mineral and Petroleum Titles Registration Office;'

The 'rights' referred to in the above section include inter alia prospecting right as well as mining right, which are all relevant for the purposes of this article. It is on the basis of the above provisions that the Registrar of Deeds was divested of the duties to register any aspect relating to prospecting rights or mineral rights.

Examiners are still being confronted with typical notarial agreements lodged for registration in a Deeds Registry relating to the registration of certain rights granted by the owner of the land to the holder of mineral rights over the surface of the land. The rights sought to be registered include such rights as the right to mine a certain area of the property (e.g. 100 hectares) by way of total extraction methods and room and pillar methods, the right to a certain compensation to the owner for the rights and for damage to the property and water resources occasioned by such mining activities, the right of access to the land by the holder and the right to sink a borehole on such land. While it must be acknowledged that these rights clearly have everything to do with the surface, they are also sine qua non to any mining activity.

In recognition of preexisting mineral rights and prospecting contracts, the Mineral and Petroleum Resources Development Act, 2002 afforded the holders thereof a certain period within which they should have brought such rights within the perimeters of its provisions. The process is referred to as 'conversion to new order rights', the requirements of which are clearly set out in the Act. Until this had happened, such holders could not in any way deal with such mineral rights or prospecting contracts. Once the Minister is satisfied with the application for that purpose, the right will be converted into either a prospecting right or mining right according to the circumstances of each case.

The holder of such right would then enjoy, among others, the rights referred to specifically in section 5(3) of the Mineral and Petroleum Resources Development Act, reading as follows:

1. 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;
   
   
2. 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;
   
   
3. remove and dispose of any such mineral found during the course of prospecting, mining, exploration or production, as the case may be;
   
   
4. subject to the National Water Act, 1998 (Act 36 of 1998), use water from any natural 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
   
   
5. carry out any other activity incidental to prospecting, mining, exploration or production operations, which activity does not contravene the provisions of this Act."