Holcim (South Africa) (Pty) Ltd v Prudent Investors (Pty) Ltd and Others

Holcim held a mining licence (ML3/1997) issued under the Minerals Act 50 of 1991 authorising it to mine limestone and clay over several contiguous farms, including Bethlehem 75. It also held the underlying common-law mineral rights through notarial deeds. When the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) came into effect on 1 May 2004, Holcim was actively mining on some, but not all, of the properties covered by the licence. Mining had not yet reached portions of Bethlehem 75 owned by the respondents. The respondents refused Holcim access to their properties, arguing that Holcim did not have an ‘old order mining right’ over those portions because no mining operations were being conducted there immediately before the MPRDA commenced. Holcim approached the High Court for declaratory and interdictory relief to enforce access; the High Court dismissed the application, holding that mining had to be conducted on each cadastral unit. Holcim appealed to the Supreme Court of Appeal.

The appeal succeeded with costs. The SCA set aside the relevant portions of the High Court’s order and replaced them with an order declaring Holcim entitled to access the respondents’ properties. The respondents were directed to grant access for prospecting and/or mining, interdicted from preventing access, and ordered jointly and severally to pay the costs of the application. The sheriff was authorised to ensure access if necessary.

This case is a leading authority on the interpretation of Schedule II of the MPRDA. It clarified that security of tenure under the transitional arrangements depends on mining conducted pursuant to a licence as a whole, not on activity on each individual property. The decision protected existing mining operations from fragmentation and uncertainty during the transition from the old mineral rights regime to the MPRDA system, and provided practical guidance on how ‘old order mining rights’ are to be assessed.