CCT51/12

[2013] ZACC 9

2013 (4) SA 1 (CC)

2013 (7) BCLR 727 (CC)

Mogoeng CJ Majority judgment

Cameron J separate judgment

Froneman J separate judgment

18 April 2013

http://hdl.handle.net/20.500.12144/3679

Application for leave to appeal against a judgment of the SCA; Minister of Minerals and Energy v Agri South Africa (458/2011) [2012] ZASCA 93; 2012 (5) SA 1 (SCA); [2012] 3 All SA 266 (SCA); 2012 (9) BCLR 958 (SCA) (31 May 2012). The case was previously heard in the Pretoria High Court: Agri South Africa v Minister of Minerals and Energy and Another (55896/07) [2011] ZAGPPHC 62; [2011] 3 All SA 296 (GNP); 2012 (1) SA 171 (GNP); 2012 (1) BCLR 16 (GNP) (28 April 2011).

Appeal against a decision of the Supreme Court of Appeal that the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) did not result in deprivation or expropriation, in terms of section 25 of the Constitution (the right to property) for a holder of an “unused old order mineral right” (holder) who failed to apply for a permit to mine during the specified one-year period after the statute came into effect. The majority held, differing from the approach of the Supreme Court of Appeal, that the MPRDA did have the effect of depriving the holder of elements of the mineral rights that it held before the inception of the MPRDA but the deprivation did not rise to the level of expropriation. Also, there was no deprivation by the state, and consequently no expropriation. As a result, the appeal was dismissed. In a separate concurring judgment, Froneman J agreed that the appeal should fail but this was because what was received in terms of the provisions of the MPRDA – the right to apply within one year for conversion of the unused old-order right to a right under the MPRDA – amounted to just and equitable compensation for the expropriation. In a further separate concurrence, Cameron J held it was inadvisable to extrapolate an inflexible general rule of that there had to be acquisition by the state as a requirement for expropriation. Judgment: Mogoeng CJ (Moseneke DCJ, Cameron (except paras [58], [59], [67] and [68]), Jafta J, Nkabinde J, Skweyiya J, Yacoob J and Zondo J). Separate concurrence: Froneman J (Van der Westhuizen J concurring). Separate concurrence: Cameron J.