Mineral rights are dead! Long live mineral rights!

Whilst being mindful of the eventual extinction of the legal notion of mineral rights in South Africa upon expiry of the transitional measures in terms of schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 on 30 April 2009, the classification of mineral rights by the supreme court of appeal in the Anglo decision is to be welcomed, even though it is somewhat ironic at this stage. (As to the extinction of the notion of mineral rights, see Badenhorst "Mineral rights : 'year zero cometh?'" 2001 Obiter 119; "Exodus of 'mineral rights' from South African mineral law" 2004 Journal of Energy and Natural Resources Law 218.) It will, however, be shown in this discussion that the decision of the supreme court of appeal will extend beyond the statutory transitional period and will also have an impact on rights to minerals or rights to petroleum as created in terms of the Mineral and Petroleum Resources Development Act (hereafter referred to as the act). For purposes of this discussion, one can simply continue to refer to mineral rights that developed from the common law as "mineral rights", whilst referring to the new rights created in terms of the act as "rights to minerals and petroleum". The present decision only deals with coal as "minerals".

Exodus of 'mineral rights' from the South African Mineral Law

Transformation of the mineral law system as part of the new political  dispensation in South Africa has long been foreseen. Subsequent to a Green and White Paper, as policy documents, the Department of Minerals and Energy published a Mineral Development Draft 8il12000 for public comment. This eventually culminated in the acceptance by Parliament of the Minerals and Petroleum Resources Development Act 28 of 2002, which came into operation on 1 May 2004. The Act will transform thE! mineral law system and the mining industry in" general. In this article the phaSing-out by the Act of the historical notion of 'mineral right' is examined. It is argue..d that the Act will lead to an exodus of the notion of mineral rights and will replace It with less secure prospecting rights and mining rights which, albeit real in nature, will depend on compliance with provisions of the Act and the exercise of discre.Von by the Minister.

The common law principle of legality

In this age of statutes and human rights the common law principle of legality has assumed a central importance. The principle holds that '[u]nless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.' This development has occurred throughout the common law world most relevantly in New Zealand and the United Kingdom where its re-emergence coincided with the enactment of statutory bill of rights. It is however the aim of this article to outline the nature and scope of the principle of legality in contemporary Australian law.

Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.

Facts, threats and reds : common law constitutionalism and the rule of law

In a concurring judgment in Thomas v Mowbray, a High Court of Australia case turning on the Constitutional validity of terrorism-related control orders, Callinan J offers a re-evaluation of the Court’s earlier decision in the Australian Communist Party case to curtail executive power. According to Callinan J, factual matters knowable (but not known) at the time of the earlier decision might have given rise to a different outcome. In a dissenting judgment by Kirby J in the same case the Court’s reasoning in the Australian Communist Party case is robustly defended. These contested issues connect with the theoretical dispute between ‘common law constitutionalism’ and ‘constitutional positivism’ analysed by Dyzenhaus in the context of states of emergency where the limits of executive action and the role of supporting facts become particularly salient. They press the question of the status of the rule of law in the international as well as in the municipal sphere.