Title is not a fortress
Two chrome companies went to war over a single shaft. The shaft was allowed to stand while the neighbour who held the mining right to that ground was sent packing. Read the papers and the matter looks like a dispute about trespass and boundaries. It is not. The court decided it on another ground entirely, but the misunderstanding is what made the claim look plausible in the first place.
The boundary was never the real question, and it is an easy mistake to make, one quietly carried by many who hold, buy or finance mining assets in this country. The real question sits a little deeper, and rather less comfortably, than any line drawn on the surface.
Title is not a fortress
Cuius est solum, eius est usque ad coelum et ad inferos[i]
There was a time when owning land meant owning far more than the ground you stood on. The old common law gave the owner the whole column of the world above and below his patch, the air over it as high as the heavens and the earth beneath it all the way down to the centre of the earth, the minerals with it. For most of legal history this was not a figure of speech but the rule, and it is where the private ownership of minerals began.
The idea began to die in the sky. In the 1940s a farmer named Thomas Lee Causby kept chickens near a municipal airport in North Carolina. When the war came, military aircraft used the field, their landing path crossing his land some twenty-five metres up, barely five and a half metres above his tallest tree. The noise of the engines and the glare from the landing lights were so violent that the birds threw themselves against the walls of their coops and died, about a hundred and fifty of them, and the farm could no longer pay its way. Causby sued for compensation on the grounds that an interest in his property had been appropriated by the Government. The Supreme Court held that the ancient rule that a man owns upward without limit has no place in the modern world. Instead it found that an owner holds at least as much of the space above as he can occupy or use in connection with the land, and so the flights low and frequent enough to interfere directly with that use were an appropriation of it. The court did not say where Causby's airspace ends; it confirmed only that it does. So Causby succeeded in principle, that a servitude had been imposed on his land and compensation was due, but the lower court failed to define the servitude or specify whether it was permanent or temporary, so rather than confirm the amount awarded, the Supreme Court sent the matter back to the lower court for that finding to be made properly.
What happened in the sky happened, more completely, beneath the ground in South Africa. In 2004 the minerals under the soil stopped belonging to the owner of the soil. They became the common heritage of the nation, held by the State as custodian for all. The lower half of the old common law column down to the centre of the earth was taken away by statute. The change was not instantaneous and holders of old order rights were given a transitional window in which to convert. A person may hold a right to mine, but he does not own the mineral until it is severed from the land, and he holds no power to keep it in the ground so that no one else may reach it.
That is the law a recent case ran straight into.[ii] Two chrome operations lie side by side in the hills of Limpopo, their boundaries touching but not overlapping. One of them, which we will call DCM, needed to sink a decline shaft to reach its own ore, and the reserve it needed to mine could not readily be reached from its own surface, so the entrance of that shaft had to sit beyond its own area, on land which the neighbour held the right to mine. DCM was in business rescue by the time the dispute reached the courts and its appointed business rescue practitioners had to carry this fight for years before they could put it to rest. By then the mining right, and with it the shaft, had been ceded with ministerial consent to a purchaser we will call Cheetah, which is the party against which the interdict was ultimately pressed. The neighbour, which we will call UWR, went to court for an order declaring the shaft illegal and wanted an interdict to stop its use. UWR’s argument was simple: you are mining on my mining right ground without a right to do so and the Mineral and Petroleum Resources Development Act, “the Act” for short, forbids exactly that so the shaft is therefore unlawful.
It is the kind of argument that earns a nod around a boardroom table and, at first hearing, from most mining and commercial lawyers, but it did not prevail in the High Court or the Supreme Court of Appeal. UWR pleaded its case on the basis that a mining right is fixed by the notarially executed document, conferring an exclusivity to mine that no approved environmental programme or mining work programme can affect. The instinct beneath that argument supposes that UWR held its right as though it were that old common law column running to the centre of the earth, and it used that asserted exclusivity not to mine, but to stop its neighbour mining.
On our reading, UWR’s argument approached a custodial statute as an instrument of private property. Understanding why it failed is among the more useful things a mining investor can do in this country, because the reasons run to the centre of what a mining right now is.
A mining right is not a fortress.
Why is the DCM shaft on UWR’s ground?
On the surface the answer is not in dispute. The shaft sits within UWR’s “mining right” area, although DCM holds the surface right to use that land while holding a mining right over the adjacent land. DCM’s holding company held a notarial long lease over that surface, granted by the State, and UWR’s surface area is occupied under a sublease granted to it by that same company, on terms which expressly preserved the use of the area for sinking the very shafts now complained of. The reason the shaft is there at all, though, sits a layer below that. Chrome in this part of the Bushveld is not won by digging straight down wherever one pleases. The orebody dips, and to follow it you open up a decline shaft at the surface and drive it down at an angle to meet the reef where it lies. A vertical shaft sunk where the right happened to fall would have to traverse a mountain of barren rock before it reached chrome, which would make the mining completely uneconomical and almost impossible. In order for DCM to reach its ore, the only place where a shaft would work was on the adjoining land. The shaft was never intended to touch the chrome beneath the neighbour’s ground, but rather intended to reach its own ore body on its own area.
None of this was concealed, and none of it was sprung on UWR. The State had approved the environmental management plan that placed those shafts on that ground before UWR’s mining right was even granted. When the Minister later granted UWR a mining right over the same land, he did so knowing the neighbour intended to sink shafts on it, because his own department had said so. The thing UWR went to court to call illegal was a thing the State had authorised in writing, knowing exactly where it would be located. That is the first crack in the fortress: the line UWR stood on had been drawn after the shafts were approved, and over them.
What does a mining right give you?
The belief that a mining right over ground confers ownership of the minerals beneath it, which you may wield against the world at large, reflects a legal regime abandoned more than twenty years ago. An investor from a jurisdiction where mineral title is freehold, or a South African still thinking in the language of the old common law, makes the same category error. He wrongly believes he owns a mineral when he rather holds a conditional permission to extract it.
When the minerals became the nation’s, what was left for the operator was not ownership but a right to mine, and a right to mine is a permission granted by the State, not a possession. You apply for it, and the Minister grants or refuses it, on conditions, measured against the objects the Act sets out. What you hold is not property to be defended at its edges. It is a permission to do a particular thing in a particular way, and that way is written into the mining work programme and the environmental management plan which the Minister approved. Those regulatory approvals need to be followed and a mining right holder does not have the discretion to disregard their terms and obligations.
Where does a mining area really end?
The statute defines a mining area in two parts. The first is the obvious one, the ground for which the right was granted and on which the mineral may be extracted. The second is wider, and it is the part UWR’s argument had to read down. It includes any land or surface, whether adjacent to the granted area or not, upon which related or incidental operations are being undertaken, the surfaces on which roads, conveyors, pipelines and the like are located which are entitled to be used in connection with the operations and all buildings, structures or objects situated on or in such areas.
The Act therefore contemplates that a road, a conveyor or even a decline shaft crossing a neighbour’s area is not a separate mine that needs its own mining right. It may very well be an incidental operation, and the Act plainly allows for such operations on adjacent ground; whether a particular shaft is one of them turns on the particular authorisations that stand behind it. The boundary of your mining right is therefore not necessarily the boundary of your lawful operations, and it was never meant to be. A mine is a three-dimensional thing pursued through rock; the line on the plan is a flat convenience laid across the top of it. The court held the shaft to be exactly what the Act says it is, an incidental operation, and not a mine for which DCM needed a separate mining right.
The UWR case is not a general licence, and the judgment should not be read as one. The court answered the question about the legality of the shaft expressly in the context of the relevant factual matrix. The shaft appeared on an environmental management programme approved before construction began and on an approved mining work programme which approvals DCM was then obliged to comply with. The Minister approved the conversion and then the transfer of that mining right, satisfying himself on each occasion that the mineral could be mined optimally in accordance with that approved programme. The surface was held under a registered long lease granted with the consent of the land rights holders. Remove a part of that chain and the answer may well be different: a shaft sunk on a neighbour’s ground without approvals that place it there, or extracting minerals from an area where the approved documents do not place it, draws no protection from anything decided in this case.
Why does the obvious reading fail?
UWR’s reading of the Act was not absurd. A shaft is plainly part of mining, and a literal argument can be built that to construct one is to mine. The argument did not fail because it was not reasonable; the court accepted that it was. It failed because the Act tells the court precisely how to interpret it, and the instruction is not the one most of us were taught to expect. Commercial lawyers are trained to read a document for its plain meaning and hold the drafter to the words on the page but this Act is not read that way.
The Act directs that, between competing interpretations, a court must prefer the reasonable one that fits the objects of the statute over one that does not. Those objects include security of tenure, economic growth and mineral development, and the socio-economic development of the areas in which mining is conducted. Follow UWR’s reading to its end: if the shaft is illegal, then DCM cannot reach its ore, and the mineral reserve is economically sterilised. The mine the State licensed so that the chrome would be mined cannot mine it, rendering DCM’s mining right and its other regulatory approvals meaningless. An interpretation that produces that result does not serve the objects of the Act, it defeats them, and a meaning that defeats a statute’s purpose cannot be the outcome intended, no matter how grammatically convenient.
There is a second answer beneath the first. The holder of a mining right is not merely permitted to mine in accordance with its approved mining work programme, it is obliged to. DCM’s programme provided for these shafts on a particular piece of ground to ensure minerals could be reached, and you cannot brand as unlawful the very conduct the Act compels and which the regulatory body expressly approved. The State approved the mining work programme, the environmental management plan, the conversion of the old right into a new one, and its later transfer, satisfying itself each time that the chrome could be optimally mined. The development of the shafts was the plan the regulator endorsed rather than a deviation it had missed.
What was the case really about?
Consider what a finding of illegality would have delivered. The chrome does not move, and the practical way to that reserve runs through that shaft. Declare the shaft unlawful and the mining right is sterilised: its holder cannot reach the ore, stands exposed to losing the right altogether under the “use it or lose it” principle, and the employment that the operation sustains goes with it.
The law had a cleaner way of putting this, and the court took it. UWR’s real quarrel was never with DCM. It was with the Minister, who had approved the mining work programme, the environmental management plan, the conversion of the old order mining right to one under the Act and the transfer of the mining right to Cheetah. When your complaint is with a regulator’s decision, the Act gives you a route for relief and a deadline: you appeal internally using the processes prescribed by the Act, and only once that remedy has been exhausted can you take the decision on review to the courts. What you may not do is leave the decision standing, wait, and then attack its consequences through a private claim dressed as something else. UWR sought a declarator that the shaft was illegal coupled with an interdict to stop its use. The court saw the manoeuvre and named it, a review of the Minister’s decision in the costume of a private dispute. In form the case was a claim between neighbours but in substance it was a challenge to several of the State’s decisions, brought through the wrong door and years too late.
So the shaft stands, the chrome ore can be reached and will be mined, and an invisible line on two farms in Limpopo means a great deal less than the company standing on it believed.
The lesson for anyone who holds, buys or finances a mining right here is not a comfortable one, because it asks for the surrender of a reassuring picture. Your right is not a fortress and its boundary neither encloses all that matters to you nor shuts out all that threatens you. The value sits in the rock and in the permission to reach it, not in the title, and the law that governs both is built to see the resource developed rather than defended at its edges.
The executive who reasons about a three-dimensional resource with a two-dimensional mindset will keep meeting this lesson, usually in a courtroom, and after the money has already been spent.
Written by:
Wessel Badenhorst and Samantha Joshua
September 2026
[i] He who owns the soil owns it all the way up to the heavens and down to the depths below.
[ii] Black Chrome Mine (Pty) Ltd (formerly Umnotho weSizwe Resources (Pty) Ltd) v Cheetah Chrome South Africa (Pty) Ltd and Others, High Court of South Africa, Gauteng Division, Pretoria, case number 44631/2020, judgment delivered on 27 October 2025 per Van Niekerk AJ; the application being dismissed with costs (unreported). The High Court refused leave to appeal (Black Chrome Mine (Pty) Ltd v Cheetah Chrome South Africa (Pty) Ltd and Others (Leave to Appeal) (44631/2020) [2026] ZAGPPHC 41 (16 January 2026)), and the Supreme Court of Appeal thereafter also refused leave to appeal on 30 April 2026 on the grounds that there is no reasonable prospect of success in an appeal and no other compelling reason why an appeal should be heard.
