AGRI SA v MINISTER FOR MINERALS AND ENERGY 2013 (4) SA 1 (CC)
MINISTER OF MINERALS AND ENERGY v AGRI SOUTH AFRICA 2012 (5) SA 1 (SCA)
AGRI SOUTH AFRICA v MINISTER OF MINERALS AND ENERGY 2012 (1) SA 171 (GNP)
AGRI SOUTH AFRICA v MINISTER OF MINERALS AND ENERGY; VAN ROOYEN v
MINISTER OF MINERALS AND ENERGY 2010 (1) SA 104 (GNP)
Importance
Parties
The Agri SA matter was consciously pursued as a test case to obtain
legal clarity on whether the Mineral and Petroleum Resources
Development Act 28 of 2002 (MPRDA) constituted an expropriation of
property. The test case was intended to be broad: Whilst the particular
right to compensation Agri SA held was in respect of a right that the
MPRDA classified as an “unused old order right”, in the SCA case heard
and decided in 2012 counsel for Agri SA emphasized that it did not
seek to distinguish the rights it held from any other mineral rights that
previously existed or any other holder of such rights. If the MPRDA had
indeed expropriated property, it has expropriated used and unused
rights, rights to all manner of mineral commodities, and the rights of
giant mining houses as well as the rights of rural farmers (and, the
court might have added, indigenous rural communities). The gamble
of the test case was therefore high: Just as much as the precedent
could open up claims for compensation irrespective of the type of
rights or rights holder, a precedent going against Agri SA could
similarly shut down such claims.
The Agri SA matter was finally heard in the High Court, Supreme
Court of Appeal and Constitutional Court. Whilst Agri SA’s prospects
initially looked good in the High Court, they lost on all substantive
points in both the SCA and Constitutional Court. The Constitutional
Court decision is a precedent for the proposition that while the
MPRDA deprived private mineral rights holders of their rights, it did
not expropriate them. It was therefore unnecessary for the State to
pay out compensation. The major legal point on which the judgment
turned, in both the SCA and Constitutional Court, was whether the
State had acquired the rights previously held by private mineral rights
holders. There were differing opinions on this but the majority view
was that the custodianship exercised by the State did not amount to
an acquisition of the rights, although none of the judgments attempts
to define what custodianship means, beyond the state being a
“facilitator” or a “conduit” for others to access South Africa’s mineral
wealth.
Both the SCA and Constitutional Court took pains to emphasize
that the door remained open for more narrowly argued cases of
expropriation to be laid before the court.
The principal parties in this series of cases were Agri South Africa, a
federal association representing the interests of commercial farmers,
and the Minister of Minerals and Energy. The Centre for Applied Legal
Studies was an amicus in the case from 2011 onwards. For the final
Constitutional Court case, Afriforum, Afrisake, and Floris Johannes
Pool were also joined as friends of the court.
Facts
The first judgment in this matter was decided on 3 June 2009 in the
Gauteng North High Court (henceforth referred to as Agri SA GNP(1));
the second was decided on 28 April 2011 in the Gauteng North High
Court (henceforth referred to as Agri SA GNP(2)); the third hearing was
in the Supreme Court of Appeal, decided on 31 May 2012 (henceforth
referred to as Agri SA SCA; whilst the final Constitutional Court
judgment was decided on 18 April 2013 (henceforth referred to as Agri
SA CC).
The facts common to these cases were as follows:
In November 2001 the coal rights to a number of unnamed farms were
bought by a company, Sebenza, for a sum of R1 048 000. Sebenza
never obtained a prospecting or mining permit under the Minerals Act
50 of 1991, nor did it ever conduct prospecting or mining operations
on the farms. On 29 April 2004, the eve upon which the MPRDA came
into effect (1 May 2004), the members of Sebenza resolved to place
the company under voluntary liquidation. The resolution was
registered with the Registrar of Companies later in May 2004. By
September 2004 provisional liquidators had been appointed and
Sebenza’s coal rights were advertised for sale. Metsu Trading (Pty) Ltd
purchased the coal rights for R700 000. After the purchase price had
been paid the liquidators and Metsu received legal advice that the
purported sale was void, as mineral rights as such had ceased to exist
since the coming into effect of the MPRDA. In terms of item 8,
Schedule of the MPRDA, unused old order rights continued to exist for
one year after the date of commencement of the MPRDA during which
time existing rights holders had an exclusive right to apply for
conversion of the right. After this date the rights elapsed. As Sebenza
had not applied, and not been in a position to apply for conversion,
the liquidators repaid the purchase price to Metsu. In March 2006, the
liquidators lodged a claim for compensation with the DMR, contending
that Sebenza’s rights had been expropriated. At this point, Agri SA’s
lawyers identified the Sebenza issue as an appropriate test case for
purposes of clarifying whether the MPRDA had expropriated property,
and the right to compensation was accordingly ceded to Agri SA. The
DMR rejected the claim for compensation, establishing the basis for
the institution of legal proceedings.
The outcome of each of the cases in the series is as follows:
 Agri SA GNP (1) dealt with the exceptions the Minister of
Mineral Resources had raised against Agri SA’s claims; i.e. that
the claims were vague and embarrassing and were not
sufficient to ground a cause of action. Agri SA won this case,
after Hartzenberg J found that if was possible for the plaintiffs
to prove that their rights had indeed been expropriated (this
case is not further considered for purposes of this fact sheet).
 In Agri SA GNP(2) Agri SA again won on all substantive points.
Du Plessis J found that the MPRDA had deprived Sebenza of its
coal rights, that the deprivation had constituted an
expropriation, and that Sebenza was entitled to compensation
in the amount of R700 000.
 In Agri SA SCA Agri SA’s gains were reversed. Wallis JA (writing
for the majority of the court) found that it was undesirable to
determine a categorical approach to whether the rights
deprived of and acquired under an expropriation needed to be
the same, and a case-by-case approach had to be followed.
Following an in-depth historical account of the history of
mineral rights in South Africa, the court concluded that
mineral rights were of little value without the power to
determine the right to mine, which the State had over the
years always allocated to itself. As such, the value of mineral
rights ebbed and flowed with changes to the statutory regime
governing the State’s power over the right to mine. The
MPRDA was simply the latest in a string of statutory
enactments conferring the right to mine. As such, there was
no property and hence no deprivation or expropriation of
property had taken place. Nugent JA and Mhlantla JA found
that while previously existing mineral rights might have had
some value, this value did not constitute property and hence
they agreed with the outcome.
 In Agri SA CC the Minister of Mineral Resources won all
substantive points. The majority opinion (penned by Mogoeng
CJ) differed from the SCA in finding that a deprivation of rights
had taken place, but not an expropriation. A critical element
of this finding was that the State had not acquired the
property previously held by Sebenza. As custodian the State
was merely a conduit or facilitator, enabling a broader range
of players to access the mining industry. The contextual
interpretation of s 25, and the importance of balancing
transformation imperatives with the protection of individual
property rights also featured significantly in the court’s
reasoning.
The courts asked similar, but slightly differently-framed questions in
the various cases, as detailed in the presentation of the legal issues
and judgments of each case below.
A judicial order determining whether the MPRDA had expropriated
Relief Sought
old order mineral rights, whether compensation was payable, and the
amount of compensation payable in the particular case.
Legal Issues & Issue 1: Did the MPRDA deprive Sebenza of its coal rights?
Judgment in Agri Judgment: Du Plessis J approached this question by asking: What
mineral rights did Sebenza enjoy before the commencement of the
SA GNP(2)
MPRDA? And what mineral rights did it enjoy thereafter?
After noting the common law principle that the owner of the land
owned the minerals on the surface and beneath the land (also known
as the cuius est solum principle), and the possibility of severance of the
mineral rights from the land (which emerged early on in South Africa’s
history), the judge summarized what the holder of mineral rights could
do with such rights prior to the commencement of the MPRDA. He
could grant the right to prospect for or mine the relevant minerals to a
third party, and receive payments and royalties in exchange (para 28).
Apart from the commercial value of the coal rights, there was thus also
commercial value in the power to grant the rights to prospect or mine
them (para 36). The real nature of the rights also enabled the holder to
go upon land to search for minerals and, if found, to sever them and
carry them away. Once severed from the land the minerals became
the holder’s property. These rights could in turn be transferred, sold or
otherwise alienated, used as security, and in general be dealt with in a
way that benefited the holder (para 29). The holder was also under no
obligation to exploit the right (see the obiter dictum on this point
below) (para 29). Du Plessis J noted that under the Minerals Act 1991,
the exercise of the rights to prospect or mine were subject to the
authorization of the State (paras 33–36).
After trawling through relevant provisions of the MPRDA, Du
Plessis J concluded that common law mineral rights had “disappeared”
after the commencement of the MPRDA: “In sum the holders of
mineral rights have, since the enactment of the MPRDA, not one of the
competencies that the law conferred upon them …” (para 50). All that
the law had given the previous holders of mineral rights was the
exclusive entitlement to apply for a prospecting or mining right within
a relatively short period of time (as per item 8 of Schedule II in the
case of unused old order rights) (para 56). In the circumstances of this
particular case, it would have been impossible for Sebenza to apply for
and receive a prospecting or mining right (given the type of regulatory
studies that needed to be completed), as the company was in
liquidation (para 74). Hence it was not difficult for the judge to
conclude that the MRPDA had legislated Sebenza’s coal rights “out of
existence” (para 57).
Issue 2: Did the deprivation of Sebenza’s coal rights amount to an
expropriation?
Judgment: Having established that there was a clear difference in the
nature of Sebenza’s coal rights before and after the commencement of
the MPRDA, Du Plessis J proceeded to determine (a) whether the
MPRDA had resulted in a “deprivation” of property; and, if so (b)
whether the deprivation was also an “expropriation”? The language of
deprivation and expropriation is derived from s 25(1) and (2) of the
Constitution. Deprivations are regarded as a broader class of state
interference in property and they must be done in terms of a law of
general application and not be “arbitrary” (s 25(1), Constitution).
Expropriations are a narrower subset of deprivations that may only
occur in terms of a law of general application that is in the public
interest, and are subject to the payment of compensation (s 25(2)).
Du Plessis J began his deliberation on this issue by noting that it
was not at issue that Sebenza’s coal rights constituted “property”
within the meaning of s 25 of the Constitution (para 62), and that a
legislative act (such as the enactment of the MPRDA) could in itself
constitute an act of expropriation (para 63). At para 65 the judge
summarized the extant jurisprudence on deprivations. Noteworthy
here is that a physical taking of the property need not have occurred,
it suffices if any of the entitlements to property have been interfered
with. However, there were also some limitations on property rights
that were either so trivial or so widely accepted in an open and
democratic society that they could not be regarded as “deprivations”
for the purposes of s 25(1) (para 65). This led him to consider the
defendant’s argument that the MPRDA had not deprived Sebenza of
its coal rights but sought merely to regulate them (para 66). The judge
noted very quickly however, that he could not agree with this (para
67). In the case of old order rights, the MPRDA did not introduce the
“use it or lose it” principle, as the defendant’s counsel had argued. It
was apparent from Schedule II that the MPRDA introduced the
principle of “you have lost it” (para 70). The judge also rejected the
argument that Sebenza had lost its coal rights by virtue of its failure to
act. On this point Du Plessis remarked that deprivation was a “legal
fact” which cannot be undone by offering the deprived party
something in the stead of the deprived property. He thus agreed with
Hartzenberg J that item 8 of Schedule II provided the deprived party
with an opportunity to mitigate their damages (para 72). The date of
deprivation was thus the date upon which the MPRDA commenced,
and not a year later when the transitional right under item 8 of
Schedule II lapsed. Du Plessis J thus concluded that the MPRDA, by its
very enactment, had deprived Sebenza of its coal rights (para 77).
Did the deprivation amount to an expropriation? A rather
intractable aspect of this question is what kind of right it is necessary
for the expropriator to acquire for an act to be regarded as an
expropriation. Is it necessary that the expropriator acquires exactly the
same kind of rights, or does it suffice if the expropriator acquires only
the substance of the rights? This was an extremely important point to
determine, as the expropriator in this instance (the Minister of Mineral
Resources), according to the terms of the MPRDA, did not acquire
ownership of minerals but rather custodianship. Du Plessis pointed out
that because expropriation is an original rather than a derivative form
of ownership there was no question of a transfer of rights. It therefore
does not matter what the right is called in the hands of the
expropriator, and the essential enquiry is whether the expropriator
has acquired the substance of the rights (para 80). Because the
MPRDA empowered the Minister to grant a real right with
substantially the same content holders of common law mineral rights
had previously enjoyed, it followed that by the enactment of the
MPRDA the State acquired the substance of these property rights. It
did not matter that the State’s competencies were termed
“custodianship” (paras 81–82). Du Plessis also rejected the contention
that an expropriation did not occur because the State the not acquire
the right not to use the property (para 84). As it was not in issue that
the MPRDA was a law of general application, or that the property had
been expropriated for a public purpose or in the public interest, the
judge concluded that Sebenza’s coal rights had been expropriated
(para 88).
Issue 3: If the coal rights had been expropriated what amount of
compensation was payable?
Judgment: Du Plessis J commenced his deliberation on this point by
noting all the relevant framing laws: Section 25(3) of the Constitution,
which establishes the standard that the compensation must be “just
and equitable”; item 12(3) of Schedule II; and regulation 82A(7), which
in turn incorporates the provisions of the Expropriation Act 63 of 1975,
which establishes that it is for the court to determine what
compensation would be just and equitable.
The judge agreed with the plaintiff that the starting point for
determining just and equitable compensation must be the market
value of the property concerned, but this was only one of the
circumstances that had to be taken into account (para 93). Du Plessis J
rejected that argument that the amount of compensation could be “0”
(para 94), as well as the proposition that compensation could not be
payable because it would be unaffordable for the State (para 95).
Considering facts pertinent to the value of the Sebenza’s coal rights,
the court found that an amount of R750 000 would be just and
equitable compensation (para 99).
Obiter dicta:
On the right not to exploit minerals: Du Plessis J recognized the
linkage between the power not to exploit mineral rights, and
environmental interests. At para 31 he stated the following: “[T]here is
also a social imperative to balance the agricultural value of the surface
against the need to exploit minerals under the surface. That is of
particular importance in the case of open cast mining operations.
Environmental considerations also play a role (my emphasis). In short
the right not to exploit minerals is not necessarily negative or contrary
to the public interest.”
On the legal nature of the “custodianship” held by the State over
minerals in terms of s 3, MPRDA: The court noted that there had been
some debate as to the legal nature of the custodianship created by s 3
of the MPRDA, but said that for purposes of the judgment it was not
necessary to express an opinion thereon (para 49).
Legal Issues & While addressing substantively the same issues as the court a quo, the
Judgment in Agri SCA addressed the issues in a different order. The fact sheet follows
SA SCA
the issues as they were raised in the case.
Issue 1: What constitutes an expropriation in terms of s 25(2) of the
Constitution?
Judgment: The majority of the judges took a different approach to the
one followed in the Gauteng North High court, and did not first
determine whether there had been a deprivation of rights (para 14).
After noting Agri SA’s arguments regarding the nature of the
expropriation (which drew substantively upon the decision of Du
Plessis in the court a quo; i.e. that expropriation was an original not
derivative form of ownership which did not require the State to
acquire the rights that existed under the previous dispensation) (para
17), the court proceeded to identify the defining features of an
expropriation. It firstly rejected Professor van der Walt’s suggestion
that expropriation is distinguished by the payment of compensation,
(rightly) noting that this would amount to putting the cart before the
horse (because compensation flows from the fact of expropriation,
rather than being a defining feature of it) (para 18). It then proceeded
to consider arguments for and against Agri SA’s proposition that the
rights acquired need not be the same as those expropriated,
referencing foreign case-law (paras 19 – 23). This led it to conclude
that it was undesirable to adopt a “categorical” to understanding what
constitutes acquisition for the purposes of expropriation (para 24).
Rather, it was preferable to determine this question on a case-by-case
basis having regard to the form of expropriation, the nature of the
property alleged to have been acquired, and the content of the rights
acquired (para 24). To determine the questions of both deprivation
and acquisition, therefore, it was necessary to consider the historical
nature of the mineral rights in South Africa.
Issue 2: What was the nature of the rights enjoyed by holders of
mineral rights prior to the MPRDA coming into operation?
Judgment: The court provided a lengthy historical account of the right
to mine and mineral rights in South Africa, traversing developments in
Roman law, pre-Union legislation, the Mining Rights Act 20 of 1967
and the Minerals Act 50 of 1991 (see paras 28–67). Throughout the
analysis, the court wished to stress that while in the main ownership
of minerals vested in the holders of mineral rights (which was not
necessarily the landowner), from an early stage of South African
mining development the right to mine was a right that the state
asserted for itself and controlled (para 48). The very idea of “common
law mineral rights” was erroneous because these rights did not in fact
have their origin in the common law, but originated largely from
legislation governing the right to mine and legislation that permitted
the registration of mineral rights independently of the right to land
(para 68). As such, it concluded that the right to mine “is under the
suzerainty of the State”, and its allocation from time to time is within
the State’s discretion. The right to minerals, without a concomitant
right to mine, was of little value – at most it conferred on the owner
the power to exclude others from exploiting them (para 69). Because
the value of mineral rights depended on the right to mine, and
because the State had allocated the right to mine to itself, the value of
mineral rights would have ebbed and flowed over time with every
adaptation of the statutory scheme for the allocation of the right to
mine (para 72). Agri SA’s argument implied that each of the changes to
the right to mine in SA’s history would have involved an expropriation
of mineral rights, which if the constitutional protections had been
available, would have involved the payment of compensation. But this
came close to saying that any action that detrimentally affects a right
is an expropriation, which was certainly not correct (para 72).
The minority judgment (written by Nugent JA in which Mhlantla JA
concurred) differed from this analysis in emphasizing the following
points. Firstly, the minority opinion noted that the policy of affording
the mineral rights holder some benefit was a consistent feature of preMPRDA legislation (para 107). Secondly, the judges differed in the
effect they ascribed to the Minerals Act, 1991. The effect of this Act,
the judges noted, was to almost without exception place the ability to
exploit the mineral wealth of South Africa under the exclusive control
of the holders of mineral rights (para 109). Contrary to the many
remedies against sterilization and hoarding of minerals (as exemplified
in the 1967 Act for instance), the only remedy the MPRDA afforded
was for such rights to be expropriated (para 109). At face value the
MPRDA had extinguished common law rights (this much was plain
from the language used in item 8(4) of Schedule II read with the
definition of “unused old order rights” (para 112). Nevertheless, such
common law rights did not include rights of exploitation (para 113).
These had always been statutory rights granted in the “gift” of the
State (para 113). In these circumstances the MPRDA’s abolition of
common law rights seemed immaterial (para 114).
Issue 3: Where mineral rights expropriated in terms of the provisions
of the MPRDA?
Judgment: Proceeding from the finding that in pre-MPRDA legislation
the right to mine had been vested in the State, and that the State
either exercised or allocated that right (para 84), the court concluded
that the MPRDA was merely the latest in a long line of statutory
instruments affirming the principle that the right to mine is controlled
by the State, and allocated to those who wish to exercise it (para 85).
As far as the right to mine is concerned, therefore, Agri SA had failed
to establish the first requirement for an expropriation, namely the
deprivation of property (para 85). The notion of state custodianship of
mineral resources merely encapsulated in non-technical language the
idea that the right to mine vested in the State (para 86). This finding
was largely supported by the transitional measures set out in Schedule
II (paras 87–90). Dealing with the argument that the MPRDA effected
only a narrower expropriation of unused old order rights, court
rejected the views of Du Plessis and Hartzenberg, who had regarded
the transitional measures as a means for a rights holder to mitigate
their damages. Instead, the court held, the compulsion to exercise the
right was merely a more stringent approach on the part of the State to
compel holders of mining rights to exploit them, compared to that
which had been adopted in previous legislation (para 97).
As the SCA decided that the MPRDA had not effected a broadscale
expropriation of mineral rights, nor an expropriation of unused older
order rights, it was not necessary to further consider the issue of
compensation (para 100).
Legal Issues & Issue 1: What was the nature of the rights enjoyed by holders of
Judgment in Agri mineral rights prior to the MPRDA coming into operation? Did they
SA CC
constitute property?
Judgment: Writing for the majority of the Constitutional Court, the (at
the time) newly appointed Mogoeng CJ disagreed with the approach
taken by the SCA; i.e. that mineral rights under the Minerals Act, 1991
did not constitute property (para 33). The Constitutional Court chose
to characterize the property claimed by Sebenza in a fundamentally
different way. The majority held, firstly, that beyond the power to
itself acquire substantive ownership of mineral resources and the
power to regulate the exploitation of those who owned them, the
State had no residual competence to exploit or own minerals (para
35). Instead, if one had regard to the laws of the major mining regions,
and then the consolidating legislation of 1967 and 1991, what
emerged was an inextricable link between ownership of mineral rights
and the right to exploit the minerals concerned (para 37). The use of
the concepts “right to mine” and “mineral rights” was potentially
misleading Mogoeng CJ said, because the right to mine minerals
formed part of mineral rights (para 38). In order to achieve greater
clarity it was preferable to speak about “exploitation rights” and
“ownership of minerals” respectively (para 39). Prior to the
commencement of the MPRDA the State had the power to regulate
the exploitation of minerals by mineral owners, but always recognized
the proprietary aspect or value of mineral ownership (paras 40–41).
Secondly, it was conceptually inaccurate to conflate the notions of
value and content of a right (the lack of value of mineral rights being a
cornerstone of the SCA judgment). The argument that a lack of value,
or indeterminate value, destroyed the existence of the right to mineral
ownership before the advent of the MPRDA was therefore unfounded
(para 42). Both the majority and minority judgments of the SCA failed
to accord sufficient weight to the entitlement not to mine, the ability
not to exploit minerals, as one of the essential components of mineral
ownership. Under the Minerals Act, the holder’s ability to sterilize or
hoard minerals could only be extinguished by expropriation and
payment of compensation (para 43). That in itself appeared to be
determinative of whether mineral rights constituted “property” or not.
The right not to exploit minerals was not dependent on the State’s
conferment of the right to mine, but stemmed from mineral
ownership, and was undoubtedly of economic value (para 44).
Issue 2: Had Sebenza been deprived of their coal rights?
Judgment: Repeating the standard wisdom associated with
deprivation and expropriation, Mogoeng CJ emphasized that
deprivation relates to “sacrifices” holders of private property rights
may have to make without compensation, whereas expropriation
always entailed state acquisition of that property in the public interest
against payment of compensation. The line demarcating a deprivation
from an expropriation, however, was not bold (para 48).
The MPRDA, which was a law of general application, had the effect
of depriving Sebenza of a pre-existing right which had included the
following entitlements: The right not to exploit the minerals, the
exclusive right to sell or lease the right, and the rights to prospect or
mine for the minerals (which were permanently lost after one year if,
like Sebenza, the holder could not comply with the transitional
provisions) (para 53). It was common cause that the deprivation was
not arbitrary (para 54).
Issue 3: Had the MPRDA expropriated Sebenza’s coal rights?
Judgment: On the question whether the rights acquired by the
expropriator have to be identical or substantially the same as the
rights expropriated, Mogoeng CJ leaned in principle toward the
argument put forward by Agri SA; i.e. that the State need acquire new
rights equivalent but not necessarily identical to those lost by Sebenza
(para 56). To prove expropriation a claimant must establish that the
state has acquired the substance or core content of what it was
deprived. There would however have to be “sufficient congruence” or
“substantial similarity” between what was lost and what was acquired
(para 56). Moreover, stated categorically, there could be no
expropriation where deprivation did not result in property being
acquired by the state (para 59).
In determining the proper scope to be given to the concept of
acquisition, the court emphasized that the interpretation of the
constitutional property clause must proceed from an understanding of
the special role the MPRDA plays in facilitating nation-building,
reconciliation, and the opening up of economic opportunities to all
South Africans (para 60). The tension “sat at the heart” of the cleavage
between the interests of the wealthy and the previously
Outcome
disadvantaged (para 60). Section 25 therefore had to be interpreted
with due regard to the gross inequality in relation to wealth and land
distribution (para 61). Specifically, it imposed an obligation not to
over-emphasize private property rights at the expense of the state’s
social responsibilities (para 62). Further the linkages between
inequality, land distribution and access to mineral wealth, on the one
hand; and the assumption that access to mineral wealth would unlock
job creation and economic growth was a consistent theme in the
court’s reasoning (see, for instance para 65).
Like the SCA (see above, para 24), the Constitutional Court shied
away from a “one-size-fits-all” determination of acquisition, preferring
a case-by-case consideration of whether acquisition had taken place
(para 64). In the case of mineral rights, the court held that the State’s
custodianship of minerals did not amount to the acquisition necessary
for expropriation (para 68). The reason that appeared to sway the
court’s opinion was that the state had not acquired mineral rights to
exploit them itself; it was merely “a facilitator or a conduit” through
which broader and equitable access to mineral resources could be
realized (para 68); and further, that but for taking away the right to
sterilization, the core right remained intact by way of the transitional
measures specified in Schedule II (para 71).
Closing his argument, Mogoeng noted that it would be
inappropriate to decide definitively that expropriation under the
MPRDA could never be established. The avenue for a properly argued
case establishing expropriation nevertheless remained open (para 75).
Froneman J penned a concurring minority opinion (in which Van
der Westhuizen J concurred) in which he differed markedly from the
approach adopted in any of the earlier courts and the Constitutional
Court itself, essentially finding that the Agri SA’s appeal should be
dismissed as the unused old order rights created by the MPRDA
constituted “just and equitable” compensation for the rights that had
been lost. He disagreed that state acquisition was an essential
requirement of expropriation, and that in the present case no
acquisition had taken place (para 79). Froneman based his argument in
this regard on the fact that the State had acquired the right, previously
held by private mineral rights holders, to allocate and dispose of
exploitation rights (para 81). At the same time, it had sought to
provide “compensation in kind” to previous rights holders (para 88).
Cameron J’s short opinion was supportive of Froneman J’s opinion
on the point of whether acquisition is a necessary feature of
expropriation under s 25 of the Constitution (para 77). Cameron J
considered that expropriation contemplated by s 25 demanded a caseby-case, contextual enquiry and that it was inadvisable to extrapolate
an inflexible rule of state acquisition as a requirement for all cases
(para 78).
Agri SA’s appeal was dismissed by the Constitutional Court.