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THE MINING TITLES REGISTRATION AMENDMENT BILL [BILL 24 OF 2003] Hulme Scholes Werksmans Inc.

THE MINING TITLES REGISTRATION AMENDMENT BILL [BILL 24 OF 2003] Hulme Scholes Werksmans Inc. INTRODUCTION. Legislative context Importance of the Bill Two major concerns. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS.

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THE MINING TITLES REGISTRATION AMENDMENT BILL [BILL 24 OF 2003] Hulme Scholes Werksmans Inc.

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  1. THE MINING TITLES REGISTRATION AMENDMENT BILL [BILL 24 OF 2003] Hulme Scholes Werksmans Inc.

  2. INTRODUCTION • Legislative context • Importance of the Bill • Two major concerns

  3. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Section 110 of the Mineral and Petroleum Resources Development Act 28 of 2002 – repeal of laws • Schedule II to the Mineral Development Act – Transitional Provisions • Confusion in use of wording in Section 110 of Mineral Development Act

  4. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Items 4 to 8 in Schedule II – “subject to the terms and conditions under which [they were] granted” • Purported perpetuation of ability to transfer and encumber, conflicts with repeal of laws pursuant to Section 110 of Mineral Development Act • Concern with wide interpretation – qualification as “holder” • Bill has not clarified the issue of ability to transfer old order rights

  5. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Section 12 of the Bill – keeping of registers • Section 12 seems to suggest that registrations can continue after date of commencement of Mineral Development Act • Insertion of Section 67.B in Bill – conflicts with Section 110 of Mineral Development Act • Suggested amendment to Bill – perpetuate transferability and ability to encumber “old order rights”

  6. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Consequences of inability to transfer and encumber during transitional period • Impact on mining related commercial transactions • Transfer of mineral rights and mining rights for transactions concluded prior to commencement of Mineral Development Act, should be allowed to continue • Impact on financing

  7. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Black Economic Empowerment Transactions • Objective in Section 2(d) of Mineral Development Act impacted upon • BEE transactions during transitional period • Claims for “expropriation” • Objective in Section 2(e) of Mineral Development Act impacted upon • Item 12 in Schedule II to Mineral Development Act – claims for “expropriation” • Irrespective of outcome, consequence will be retardation of prospecting and mining during litigation

  8. CONCERNS : TRANSFERABILITY OF OLD ORDER RIGHTS • Continued ability to transact after commencement date of Mineral Development Act, will limit claims for compensation due to “expropriation”

  9. CONCERN WITH RESPECT TO THE BILL : PARTNERSHIPS AND JOINT VENTURES • Proposed repeal of Section 22 and provisio to Section 39(5) of Mining Titles Registration Act • Legal nature of partnership • Joint mining authorisations

  10. CLOSING • Suggested amendments will NOT effect import and objectives of Mineral Development Act but will facilitate that import and those objectives • Crucial to allow continued ability to transfer and encumber “old order rights” for periods provided for in Transitional Provisions in Schedule II to the Mineral Development Act

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