MINING TITLES REGISTRATION AMENDMENT BILL AN INDEPENDENT VIEW

1. MINING TITLES REGISTRATION AMENDMENT BILLAN INDEPENDENT VIEW Fred Cawood Wits University

2. ISSUES TO CONSIDEREVOLUTION OF MINERAL TITLE • HISTORICAL DEVELOPMENT • Pre-colonial: Customary Law – Communal property • Cape of Good Hope – Roman Dutch Law – Land and mineral rights • British annexure – English Law – Reservation of certain minerals • Discovery of diamonds onwards – Severance of land and mineral rights • Registration of title, leases and permissions at Deeds Offices and RMT • NEW ORDER IN TERMS OF 1998 MINERAL POLICY • Right to mine minerals revert to state without loss of security of tenure • Constitutional constraint to be considered in phasing out private MR • MPRDA allows for new system of rights in line with new order • MPRDA allows for conversion and deregistration of old-order rights • MPRDA allows for registration of new-order and converted rights at MTO • MTRAB provides for registration of new-order rights and any transfer, cession, letting, subletting, alienation and encumbrance by mortgage over mineral and petroleum properties.

3. ISSUES TO CONSIDERMINING TITLES REGISTRATION AMENDMENT BILL • THE BILL DOES NOT STAND IN ISOLATION • Mineral and Petroleum Resources Development Act • Regulations to MPRDA • Deeds Registry Act • Land Survey Act • Royalty Bill • REGISTRATION OF RIGHTS IS NOT A NEW CONCEPT • Requirement for security of tenure • Mineral rights, mineral and prospecting leases have always been registered at the Deeds Offices pursuant to 1937 Deeds Registries Act • Deeds Offices have shortcomings in respect to mineral rights and registered mineral interests. However, the system of land registration is commendable, especially in the old Transvaal • Registrar of Mining Titles registered ‘old-forms’ of mining title pursuant to 1967 Mining Titles Registration Act

4. HISTORICAL ISSUES1937 DEEDS REGISTRIES ACT • DEFINITION: IMMOVABLE PROPERTY (REPEALED) • Any registered lease of rights to minerals; and • Any registered lease of land; and • A registered right of leasehold; and • A registered right of initial ownership… • DEFINITION: OWNER, IN RELATION TO IMMOVABLE PROPERTY • The person registered as the owner of immovable property • DEFINITION: REAL RIGHT • Any right that becomes a real right upon registration • DEFINITION: REGISTERED • Means registered in the Deeds Registry

5. HISTORICAL ISSUES1937 DEEDS REGISTRIES ACT(Repealed Sections) • SECTION 70: RIGHTS TO MINERALS • Separate registration of mineral rights from the land • Separate registration of rights to different minerals • Provision for certificates of mineral rights showing ownership • SECTION 71: MINERAL RIGHTS CERTIFICATES • Detailed description of mineral rights (with diagram) • Registered against title deeds of the land above • SECTION 74: UNDIVIDED SHARES IN MINERALS • Persons may jointly hold certificate of mineral rights

6. Constitution Supreme Law PRINCIPLES People/Equality Environment Property Information Acts (MPRDA etc) Guides (Regulations) INSTRUMENTS Equal access EMP/MH&S/SP/LP/CP Convert rights Disclose/Registration THE BIG (NEW) PICTURE Mineral Policy Vision INTENT Equal opportunity Sustainable dev Change system Optimal use

7. 1996 CONSTITUTION • SECTION 25: PROPERTY • No one may be deprived of property • No law may permit arbitrary deprivation of property • Property may be expropriated when in the public interest, which includes the commitment to bring about equitable access to natural resources • Expropriation may only occur upon fair compensation reflecting an equitable balance between the public interest and those affected

8. Response to Mineral Policy (1990 – 2001) Mineral Policy Elections Three years before release of Mineral Policy = 6581 contracts Three years after release of Mineral Policy = 11993 contracts

9. HISTORICAL ISSUES1956 GENERAL LAW AMENDMENT ACT • SECTION 1: UNLAWFUL USE OF ANOTHER’S PROPERTY • Any person who uses another’s property needs the consent of the owner • SECTION 3: MINERAL LEASES • Mineral leases and cessions only valid if registered against title deeds of land or the certificate of mineral rights

10. HISTORICAL ISSUES1997 LAND SURVEY ACT • DIAGRAMS • All survey diagrams prepared by professional land surveyors and approved by the SG – linked to Farm, No and Portion No • Draft regulations do not refer to approved diagrams – only to WGS84 system • However, MTARB defines a diagram as one prepared by professional land surveyor and approved by the SG • Competency requirements for sketch plans defining prospecting/mining areas? Likely to be professional land/mine surveyors

11. IMPACT OF SURVEY DIAGRAMS ON SECURITY OF TENURE • SAFETY AND HEALTH • Accurate location of boundary pillars • SECURITY OF TENURE • Errors in transformation of old coordinates to WGS84 – Inaccuracies result in insecurity of title – Especially important for conversion of old-order rights • Boundary disputes and overlapping areas • 1967 Mining Rights Act required diagram of lease area approved by SG, which is the ideal

12. 2002 COMMUNAL LAND RIGHTS BILL • INTENT (Affecting the new MPRDA) • To give legal recognition to customary and other communal land tenure systems • To provide for leases of communal land for commercial developmental purposes • SECTION 22: COMMUNAL LAND REGISTER • Registrar of Deeds must register Communal General Plan and open Communal Land Register • SECTION 30: LEASES FOR DEVELOPMENT PURPOSES • For previously called ‘Trust Land’, Minister may only act on behalf of community with the community’s consent

13. FUNDAMENTAL PRINCIPLES2002 MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT • State sovereignty over mineral resources • Empower HDSA • Provide for security of tenure • Administrative justice Lawfulness, reasonableness & fairness

14. FOR THE EXPLORATIONISTS Applicant has… • Financial ability • Technical ability • Work programme Maximum duration 2 + 0 = 2 years May not be transferred, ceded, let, sublet, alienated, disposed of or encumbered by mortgage No registration requirement RECONNAISANCE PERMISSION

15. PROSPECTING APPLICATIONS Minerals Act (1990) Applicant had… • Ability • Plan (Technical) • EMP • Permission from MR Minimum duration 1 year M & P R D Act (2002) Applicant has… • Ability • Programme (Plus economic) • EMP Maximum duration 5 + 3 = 8 years PERMIT RIGHT

16. THE IN-BETWEENER Applicant has… • Completed prospecting • Completed feasibility study • Not feasible • EMP Maximum duration 3 + 2 = 5 years No exclusion, unfair competition or hoarding of rights RETENTION PERMIT MAY NOT BE TRANSFERRED, CEDED, LEASED, SOLD, MORTGAGED OR ENCUMBERED IN ANY WAY!

17. MINING APPLICATIONS Minerals Act (1990) Applicant had… • Ability • Plan • EMP • Permission from MR Minimum duration 2 years M & P R D Act (2002) Applicant has… • Successfully prospected • Ability • Mining, Finance, Social • EMP • Complied with Charter Maximum duration 30 + 30 + 30… years LICENCE RIGHT

18. SMALL-SCALE MINING Minerals Act (1990) Issued if… • Mining on limited scale • Plan • EMP • Permission from MR Maximum duration 2 + 2 + 2… years M & P R D Act (2002) Issued if… • Life less than 2 years • Area less than 1.5 ha • EMP Maximum duration 2 +(1+1+1) = 5 years MAY NOT BE LEASED OR SOLD, BUT IS MORTGAGEABLE PERMIT PERMIT

20. TRANSITIONAL ARRANGEMENTS • OBJECTIVES • Security of tenure for active properties • Holders of old-order rights to comply • Open access to (non-active) properties • OLD-ORDER RIGHTS • PROSPECTING: Within 2 years Minister MUST • MINING: Within 5 years Minister MUST convert • UNUSED Valid for 1 year, Minister MAY convert • ALTERNATIVES

21. REGISTRATION REQUIREMENTS • Registration at Mining Titles Office • Within 30 days after a new prospecting and mining right has been granted in terms of the MPRDA • Surface right permits for the use of land are preserved but must be registered within one year after the MPRDA took effect • MPRDA does not require registration of • Reconnaissance permissions, mining permits and retention permits • However, MTRAB provides for “registration of all mineral and petroleum titles and all other related rights, deeds and documents”

22. 2003 MINING TITLE REGISTRATION AMENDMENT BILL PREAMBLE • Amending Mining Titles Registration Act (Act 16 of 1967), rather than drafting a new Act • To regulate the registration of mineral and petroleum titles and rights connected therewith • To align 1967 Act and other deeds records and documents with MPRDA of 2002

23. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • DEFINITIONS: HOLDER, MINING RIGHT, MINING TITLE • Old definitions referring to prior laws deleted • New definitions only recognize rights as defined in MPRDA • DEFINITION: RIGHT • Any right held by a deed registered in the Mining Titles Office

24. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • SECTION 2 • Establishing a Mineral and Petroleum Titles Registration Office (MPTRO or MTO) • To register all mineral and petroleum titles, related rights, deeds and documents • SECTION 3 • MPTRO is the responsibility of the Director-General: Department of Minerals and Energy • SECTIONS 4 - 6 • Administration duties of MPTRO officials

25. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • SECTION 7: CANCELLATION OF RIGHTS • No registered deed conveying title to any right can be cancelled by DG without a court order; and • Upon cancellation, endorsements must be made on the deed, related documents and registers • SECTIONS 8 - 10: ACCESS TO INFORMATION • Any member of the public may inspect public registers and records in MPTRO • Conditions apply – To ensure proper access and preservation of records from damage and loss • SECTIONS 11 - 12 • The DG must prepare, open and keep registers of rights/titles – Long overdue

26. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • SECTIONS 13 - 18: REGISTRATION ISSUES • Deemed registered upon date of signature by DG • Transfer or cessions of rights must follow sequence of the successive transactions in the vesting of such rights • Upon transfer or cession, transfer/estate duty is payable • Only conveyancer can prepare and execute deed of transfer or mortgage bond to be registered • Only notary public can prepare and attest a contract or deeds of cession of rights, other than a cession of a mortgage bond, to be registered by DG • Deeds executed by the DG must state the full name, ID or registration number of the holder

27. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • SECTIONS 19 - 20: UNDIVIDED SHARES • No transfer or cession of an undivided share in a right over a defined portion of land can be registered • SECTIONS 31 - 40: MORTGAGE BONDS • Registration and cancellation of debt secured over mineral properties • SECTIONS 41 - 45: SERVITUDES/CONTRACTS • Must be created by notarial deed • Must contain definition, description and diagram • Deed (with bond – if applicable) to be filed in MPTRO

28. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • SECTION 47: LEASES AND SUB-LEASES • Holders must notify DG upon termination • SECTION 67: CONVERTED OLD-ORDER RIGHTS • Must be lodged for registration within 30 days of conversion

29. 2003 MINING TITLE REGISTRATION AMENDMENT BILL • GENERAL COMMENTS • Detailed regulations required for registration • Surveying: Some areas in SA may not yet be on WGS84 – Coordinate system must be clearly marked • Closure certificate should include geotechnical report for the 0 – 240m zone - to be registered against the farm portion – land development where restrictions apply • Deeds Registry system used in old TVL allowing for 1 degree blocks have merits and could be expanded – especially useful when names change • Effective date should correspond with all the other Acts and regulations, not only MPRDA – January 2005 sensible

30. IN CONCLUSION • Compulsory registration of mining and prospecting rights at Mining Titles Office • Transfer, letting, subletting, alienation and encumbrance by mortgage must also be registered • Such registration is not new – holders of mineral contracts and rights were very active in registering rights recently, possibly to ensure Constitutional protection