Mineral resource exploitation and landownership rights: Understanding the ‘doctrine of custodianship’ in minerals and mining legislation in South Africa

Abstract

Legislation and policy frameworks on mineral resource exploitation and landownership rights in South Africa were heavily influenced by the Roman-Dutch law. These legal frameworks changed from 1795 with the annexation of the Cape by the British, and the discoveries of Gold and diamonds in the 19th century in South Africa. Expectedly, scholars have documented the evolution and development of mineral resources and landownership rights in South Africa. However, while there is interesting scholarship on mineral resource exploitation and landownership rights in South Africa, this scholarship fail to see mineral legislation from the perspective of eminent domain. Thus, this paper contextualized the doctrine of ‘custodianship’ as embedded in the Mineral and Petroleum Development Act of 2004 (MPRDA) within the conceptual framework of eminent domain. The paper uses discourse analysis to analyze historical and legal documents and academic literature. The analysis revealed that the doctrine of ‘custodianship’ as used in MPRDA connotes eminent domain. This is because the doctrine implies that nation's mineral resources are res publicae (belong to all South Africans, and the state is the custodian thereof). Looking at the notion of ‘custodianship’ in this way would open a new discussion on mineral resource discourse in post-apartheid South Africa.