IMPEACHED Judge John Hlophe wants to do away with Roman Dutch law and the Constitution in South Africa. Even Hlophe in a lucid interval would admit that the Romans were brilliant before they became Italians. They recognised centuries ago that there is an inherent conflict between landowners and persons who wish to exploit the minerals under that land. The landowner wants to farm and the miner wants to access the land to mine.
To resolve this conflict, Roman Dutch law developed the principle, subject to some statutory tweaks along the way, that the right of a mineral right holder to mine ultimately prevails over the right to the use of the surface by a landowner, subject to the payment of compensation to the landowner.
This principle survived the coming into effect of the MPRD Act on 1 May 2004. Section 54 of the Act introduced a statutory mediation process whereby the relevant Regional Manager attempts to resolve disputes between landowners and miners relating to the amount of compensation payable by the miner. If that statutory mediation fails, the section provides that the dispute be referred to arbitration or a Court for adjudication.
Easier said than done though. Landowners took the view that compensation had to be determined prior to the mining company accessing land to carry out mining operations. The opposing view is that compensation can be determined in parallel while mining operations are conducted.
To avoid the section 54 process, coal mining companies in Mpumalanga, paid grossly inflated prices for farmland to start mining as soon as possible. This has created a false market for farmland subject to coal mining rights. The charismatic and astute Mr Aubrey Tshivhandekano, the Mpumalanga Regional Manager, would often express his exasperation during section 54 meetings when comparing prices landowners originally paid for farmland and the high prices demanded from mining companies.
Just like the disgraced Hlophe’s potholed road to the JSC will inevitably be blocked by the Courts, the engorged false market for mineralised farmland in Mpumalanga has recently been interrupted.
In Stuart Coal Pty Ltd vs CJ Williams en Seuns Boerdery Pty Ltd and Another, the High Court in Mpumalanga confirmed that when there’s a dispute over compensation its final determination is not a prerequisite for access.
The mining company can mine on the land while the process to determine compensation occurs in parallel. The Judgment accords with the compensatory provisions in the Constitution. Despite Hlophe’s misguided intentions, the Constitution is here to stay, so is the principle of the payment of reasonable compensation by miners to farmers.
