Lateral and subjacent support

[摘要] ENGLISH ABSTRACT: The first part of this thesis deals with the right of lateral and subjacent supportand explains how it should be applied in South African law. The thesisillustrates how the neighbour law principles of lateral support were incorrectlyextended to govern conflicts pertaining to subjacent support that arose inSouth African mining law. From 1911 right up to 2007, these two clearlydistinguishable concepts were treated as synonymous principles in bothacademic writing and case law. The thesis plots the historical development ofthis extension of lateral support principles to subjacent support conflicts. Indoing so, it examines the main source of South Africa's law of support,namely English law. The thesis then shows how the Supreme Court of Appealin Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA)illustrated how the English law doctrine of subjacent support, with all itsattendant ramifications, could not be useful in resolving disputes that arisebetween a land surface owner and a mineral rights holder in South Africanmining law.The second of half of the thesis investigates the constitutional implications ofthe Supreme Court of Appeal's decision in Anglo Operations in light of thesystemic changes introduced by the Minerals and Petroleum ResourcesDevelopment Act 28 of 2002. In terms of this new Act, all the mineral andpetroleum resources of South Africa are the common heritage of the people ofSouth Africa, and the state is the custodian thereof. This means thatlandowners are no longer involved in the granting of mineral rights tosubsequent holders. In light of the Anglo Operations decision, landowners inthe new dispensation of mineral exploitation face the danger of losing the useand enjoyment of some/all their land. The thesis therefore examines theimplications of the statutory provisions in South African legislation (new andold) that have/had an impact on the relationship between landowners andmineral right holders with regard to the question of subjacent support, as wellas the implications of the Anglo Operations decision for cases where mineralrights have been granted under the statutory framework.

[发布机构] Stellenbosch University