South Africa's market-friendly mineral law overrides the protectionof informal land rights and heritage rights, leading to new forms ofexclusion and injustice in the post-apartheid era. Prior to 1994,access to minerals was intrinsically bound to landownership,following Roman-Dutch private property law, which formed the basisof South African mineral law. This arrangement, however, was amendedthrough the promulgation of the Mineral and Petroleum ResourcesDevelopment Act 28 of 2002 (MPRDA). This law transferred thecountry's mineral resources to the state, a quasi-nationalisation.As the custodian, the state acquired the responsibility to grant,issue or terminate mineral rights. In other words, after 1994, therewas a paradigm shift towards state-authorised privatisation,masquerading as nationalisation, but the reality was that the statesought to encourage the private exploitation of minerals. As aresult, mineral law in a market-driven economy has come to trumpland rights and the protection of heritage – with mining eliminatingall other possible land uses. This is explored in detail in the nextchapter.

Understanding mineral law and its historical development in SouthAfrica is important insofar as it illustrates how power isdistributed, through the MPRDA, away from the state to privatecompanies, reducing the state's role in resolving disputes andcreating procedural anomalies that limit the impact of otherlegislation. Consequently, in a country with an unfinished landreform project such as South Africa, communities who were oncedispossessed continue to experience injustices.

Mineral rights in Roman law and Roman-Dutch law

Ownership of land under Roman and Roman-Dutch law was regarded asalmost absolute and unencumbered. Some minerals were regarded asfruits of the land and could only be separated by the owner. TheRoman-Dutch law system lacked legislation regarding mineral rightsand, as a result, Roman-Dutch jurists followed Roman law andaccepted the principle that the owner of land is the owner ofeverything built upon the land and everything below the surface. Theidea of mineral rights as separate real rights developed during theMiddle Ages.