The State’s Role as Public Trustee. Introduction The Mineral and Petroleum Resources Development...
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Transcript of The State’s Role as Public Trustee. Introduction The Mineral and Petroleum Resources Development...
The State’s Role as Public Trustee
An examination of the content of the state’s position as custodian over the
mineral resources of South Africa
Introduction
The Mineral and Petroleum Resources Development Act (MPRDA) came into force on 1 May 2004.
This act had the effect of drastically altering the common law position regarding mineral and petroleum rights.
Old Order
Governed by private lawOwnership of unsevered minerals vested in
land owner.Right to prospect and mine was part and
parcel of land ownership
MPRDA
Section 3(1):Mineral and petroleum resources are
the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans.
Content of the State’s Roles as Custodian over Mineral Resources?
What steps must be taken
to achieve these goals?
To whom are they owed?
What
duties?
Specific Focus
The private law concept
of trusteeship
The concept of the state
as custodian over the nation’s mineral
resources
Comparison
Fiduciary Duties owed by:trustees to trust beneficiaries in the administration of trust property
Fiduciary duties owed by:the stateto the people of SA in the administration of the mineral resources of the country.
The General Fiduciary Duty of Trustees
The duty of care
The duty of impartiality
The duty of independence
The duty of accountability
The Duty of Care
Duty to manage and administer the trust property in a prudent manner, as a reasonable person would.
Trustee must exercise more care in administering the trust than he would in dealing with his own property.
The Duty of Impartiality
Two components: a duty to avoid a conflict of interest between
the personal interests of the trustee and his official obligations and
a duty to treat all trust beneficiaries impartially.
The Duty of Independence
Trustees must exercise rigorous and independent judgment when performing their duties as trustees. Thus a trustee may not simply act under the orders of the trust founder.
The Duty of Accountability
The trustee is obliged to provide regular accounts regarding the administration of the trust, to the trust beneficiaries.
Environmental Management Plan
Aim: ensure development of Mineral Resources in and orderly and ecologically sustainable way, while ensuring the advancement of social and economic development.
Optimal Mining of Mineral Resources
Minister is empowered to direct that the holder of mineral rights take corrective measures if not mining optimally and to cancel/suspend such rights if holder does not comply.
Transformation
Provision made by the MPRDA to empower previously disadvantaged communities and persons, by giving them preferential treatment in the application for mineral rights, provided certain criteria are met.
Structure of MPRDA
Obligations and powers of the
state in MPRDA
Mining takes place in for the benefit
of the public
Main Issue: System of Co-operative Government NATIONAL
GOVERNMENT
Provincial Government
Local Government
Tension
Potential tension between decisions made at national level that may impact upon provincial or local government’s exclusive areas of competence.
Swartland Municipality v Hugo Wiehahn Louw N.O and others 2009 13703/09 (C)
Bibliography
1. Badenhorst and Mostert Mineral and Petroleum Law of South Africa (2004) Lexis Nexis Butterworths.
2. Badenhorst, Pienaar and Mostert The Law of Property 5ed. (2006) Lexis Nexis Butterworths.
3. Cameron, De Waal, Wunsh Honore’s South African Law of Trusts 5ed (2002) Juta.
4. Du Toit South African Trust Law: Principles and Practice (2002) Lexis Nexis Butterworths.
5. Du Toit ‘The Fiduciary Office of Trustee and the Protection of Contingent Trust Beneficiaries’ Stell LR (2007) vol 3 469.
6. Swartland Municipality v Hugo Wiehahn Louw N.O and others 2009 13703/09 (C)