Differential treatment in mineral rights holders in South Africa

Facts

The author acquired ownership of a farm known as “The Cascade” through a cessionary contract with the Kerneels Greyling Trust in 2011. This contract included a claim to royalties from iron ore deposits on the land. In 2002, South Africa enacted the Mineral and Petroleum Resources Development Act (MPRDA), restructuring mineral rights and designating resources as the common heritage of all citizens. The Act introduced the “use it or lose it” principle, requiring mineral rights holders to actively prospect or mine to retain their rights. The author contends that this transition disadvantaged holders of unused mineral rights, who had only one year to apply for new rights, often facing financial and logistical barriers.

However, under the MPRDA and the Chief Registrar’s Circular No. 11 of 2004, such rights were removed from title deeds, nullifying the author’s entitlement to claim royalties. Between 2010 and 2011, approximately 250 holders of old-order mineral rights, including the author, lodged claims for compensation with the Department of Mineral Resources, asserting that their rights had been expropriated. These claims were ultimately dismissed.

In 2013, South Africa’s Constitutional Court ruled in Agri South Africa v. Minister for Minerals and Energy that the MPRDA did not constitute an expropriation, as the State did not acquire ownership of mineral rights. The author, affiliated with Agri South Africa, argues that this ruling precluded further legal action and eliminated his prospects of claiming compensation.

The author claims that the State party, by treating mineral rights holders differently and establishing a discriminatory legislative framework, violated article 2 and 26 of the Covenant.

Admissibility

The Committee found the claim under articles 2 and 26 of the Covenant to be inadmissible. The Committee recalled its jurisprudence on the obligation to exhaust domestic remedies, which does not apply when they objectively have no prospect of success. Doubts or assumptions about the effectiveness of domestic remedies do not absolve authors from exhausting them. The Committee notes that the cited Constitutional Court decision only dealt with compensation in cases of expropriation of rights and did not address the alleged differential treatment in the application of the Mineral and Petroleum Resources Development Act. Since the author has not pursued this claim of differential treatment before domestic authorities, he failed to exhaust local remedies.

Additionally, the Committee points out that at the time of his submission, the author was under an obligation to disclose his pending expropriation claim before domestic courts. In the eyes of the Committee, this failure may constitute an abuse of submission under article 3 of the Optional Protocol, making it unnecessary to consider the remaining inadmissibility grounds.