South Africa’s energy landscape is undergoing a profound transformation. The country’s recently gazetted Integrated Resource Plan 2025 (IRP 2025) envisages a diversified energy mix that includes significant allocations for energy generated through both gas-fired power generation and renewable energy technologies.

As developers in both sectors move to secure project sites, the likelihood increases that proposed renewable energy project development sites may overlap with areas subject to upstream petroleum rights granted under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). These overlaps do not necessarily make either project unworkable, but they require the respective developers to understand each other’s existing rights, proposed activities, development timelines and technical constraints. Section 53 of the MPRDA provides the regulatory framework within which the proposed surface use must be considered where it may be contrary to, or impede, the objects of the MPRDA.

Far from being an intractable problem, recent experience involving petroleum rights holders and renewable energy developers demonstrates that practical, commercially sensible solutions may allow projects using different energy technologies to co-exist, provided that the parties engage early, exchange sufficient technical information and assess the circumstances of each overlap on its merits.

The IRP 2025 and the strategic case for co-existence

The IRP 2025, gazetted on 28 October 2025, aims to ensure security of electricity supply while transitioning towards a cleaner energy mix and reducing carbon emissions in line with South Africa’s commitment to achieving a net-zero by 2050.

As part of this transition, the IRP 2025 makes express provision for both gas-fired power generation and renewable energy. The plan commits to commissioning 6GW of combined cycle gas turbine (CCGT) capacity by 2030, with a further 12,250MW of gas capacity anticipated between 2031 and 2042, bringing the total gas allocation to over 18GW. Simultaneously, the IRP 2025 projects a dramatic increase in renewable energy capacity. The quantum of renewable energy technologies is expected to grow from approximately 17GW to more than 45GW by 2030, translating to roughly 5GW of new renewable capacity per annum.

The policy direction is therefore clear. South Africa’s energy future does not require a choice between upstream petroleum development and renewable energy. The IRP 2025 envisages both pathways operating in parallel. Developers in the respective sectors should accordingly approach overlapping land uses as a shared planning challenge, recognising that each project may involve substantial investment, regulatory approvals, contractual commitments and development timelines that require appropriate consideration.

Understanding section 53 of the MPRDA

Section 53(1) of the MPRDA provides that any person who intends to use the surface of land in a way that may be contrary to the objects of the act, or which is likely to impede any such object, must apply to the Minister of Mineral and Petroleum Resources for approval in the prescribed manner. The objects of the MPRDA include, among others, recognising the state’s sovereignty over mineral and petroleum resources, giving effect to the principle of state custodianship, and ensuring the sustainable development of those resources.

The development of renewable energy infrastructure typically triggers the requirement, as these proposed development sites usually fall within or near areas subject to an existing prospecting, exploration, mining or production right and may be contrary to, or impede, an object of the MPRDA. Whether approval is required, and the issues that must be addressed, will depend on the location, design and anticipated effects of the particular project.

The section 53 consent process is not merely administrative. It requires a substantive assessment of the proposed land use, the rights and interests potentially affected, the relevant technical evidence and the extent to which practical mitigation or accommodation is available. Meaningful engagement with affected rights holders is an important part of that assessment. Applicants should identify relevant prospecting, exploration, mining and production rights within or near the proposed development area, consult the holders of those rights, and provide sufficient information to enable the potential effects of the proposed surface use to be properly evaluated.

Recent experience has shown that overlapping rights issues are becoming increasingly common. As South Africa’s renewable energy programme has expanded, the geographic footprint of proposed projects has increasingly intersected with areas subject to petroleum exploration and production rights.

Surface rights and subsurface rights: Distinctions and solutions

A central principle that enables practical resolution of overlapping rights issues is the distinction between surface rights and subsurface rights.

In an onshore context, upstream petroleum exploration may involve seismic surveys, geological assessments and exploratory drilling at selected locations, while later appraisal or production activities may require additional wells, pipelines and associated infrastructure. Renewable energy projects, by contrast, are predominantly surface based and may include the development of solar PV arrays, wind turbines, substations, access roads and grid connection infrastructure across specific portions of a property. The nature of each project’s land-use requirements may change over time, making forward planning essential.

Although the distinction between surface and subsurface activities can assist in identifying possible accommodations, it is not absolute. Petroleum activities may require surface access and infrastructure, while renewable energy projects may require subsurface activities, such as the laying of underground powerlines. Co-existence therefore depends on the layout plans, access needs, construction and operational schedules, and the reasonable future development requirements of each project. These matters can be addressed through technical studies, co-ordinated development schedules and appropriate access and information-sharing arrangements.

Co-existence agreements as a proven solution

The most encouraging development in recent years has been the willingness of both petroleum rights holders and renewable energy developers to resolve overlapping rights issues through negotiated co-existence agreements rather than protracted legal proceedings.

At a high level, co-existence agreements can be used to identify the areas in which each party’s current and reasonably anticipated activities may occur; establish proportionate exclusion or buffer zones around critical infrastructure; regulate access rights, provide for the exchange and protection of relevant technical information; and implement joint review mechanisms to ensure co-ordination as the projects progress through different phases.

Experience indicates that early and transparent engagement can materially improve the prospects of resolving overlapping rights issues. Where accommodation is feasible, timely engagement can reduce the risk of appeals, litigation, and project delays.

Looking ahead

The key takeaway for both petroleum rights holders and renewable energy developers is that the section 53 process should not be approached as an administrative tick-box exercise, but instead as an opportunity to identify potential conflicts, test whether compatible land uses are technically and commercially feasible and negotiate mutually beneficial arrangements where accommodation is possible.

South Africa does not have to choose between renewable energy development and petroleum resource development. Through meaningful consultation, careful planning, and commercially sensible co-existence arrangements, these sectors can jointly develop a more diverse and resilient energy future.

Written by James Ross and Amore Carstens-Petersen, Directors in Corporate & Commercial at Cliffe Dekker Hofmeyr