Browsing by Author "Cramer, Richard Henry"

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    A just transition towards sustainable development: A legal analysis of the transition to a low-carbon economy in the South African mining industry in the context of sustainable development.
    (2024) Zondo, Nondumiso; Mostert, Hanri; Cramer, Richard Henry; Heyns, Anri
    Section 100 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) mandates the Broad-Based Socio-economic Empowerment Charter for the Mining and Minerals Industry (the Mining Charter) to outline how the MPRDA's objectives of redressing historical social and economic inequities can be met. However, the MPRDA does not require that environmental protection be included as one of the fundamental concerns to be addressed by the Mining Charter. Thus, the resulting Mining Charter does not establish a framework for achieving environmental objectives. Environmental justice redresses the injustices of the past that are associated with the inequality that resulted from economic growth which caused environmental degradation and pollution, as well as the distorted access to and benefits from the extraction and use of natural resources. This leads us to the central question of this study: Can the Mining Charter do more to promote sustainable development in the mining industry in the context of an energy transition? Section 24 of the Constitution of the Republic of South Africa of 1996 declares environmental justice as a national priority, encouraging the mainstreaming of environmental protection measures into legislation to promote sustainable development and use of natural resources while promoting socioeconomic development. This research argues that the lack of environmental mandate in the Mining Charter is a point of concern for its effectiveness in addressing 'historical social and economic inequalities'. This research offers insight into the challenges presented by not incorporating climate change and environmental justice into regulations, which ignores a host of social, economic, and environmental vulnerabilities that will be brought about by climate change, especially on the historically disadvantaged whom it claims it aims to redress. This research is premised on the conviction that social and economic justice cannot be achieved without environmental and climate justice
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    Dispute resolution under Section 54 of the MPRDA: An Imbalance of Conflicting Interests of the Landowner and the Right Holder
    (2024) Tsosane, Lelapa; Mostert, Hanri; Cramer, Richard Henry
    This dissertation examines the conflict between landowners and rights holders under the Mineral and Petroleum Resources Development Act (MPRDA). The MPRDA empowers the minister to grant prospecting rights, impacting landowners' rights. While compensation is available for losses, delays in resolving disputes may stall prospecting operations. The dissertation argues that the current framework does not balance the conflicting interests of the landowner and the right holder adequately. It suggests that the compensation mechanism under section 54 of the MPRDA does not address the effects of delays on the mineral right holder's interests. It further discusses the effects of landowner's hindrance of prospecting operations through refusal of entry and denial of access, which ultimately impact the State's objectives under the MPRDA. Thus, this dissertation recommends a compensation agreement with set time limits for negotiation and dispute resolution between landowners and applicants for prospecting rights. This recommendation offers a nuanced and timebound solution for fair enforcement and better balancing of conflicting interests under the MPRDA.
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    Local content requirements in the South African extractives sector: Do South Africa's local content requirements for the mineral and mining sector promote foreign direct investment?
    (2022) Wheeler, Keanan Shane; Mostert, Hanri; Cramer, Richard Henry
    The South African Government has an interest in ensuring that South Africa derives benefit from the exploitation of its natural resources. In the South African mineral and mining industry, this interest extends to the proceeds acquired from participation therein. Participation in the mineral and mining industry, however, is high risk, capital intensive and often has long lead times from exploration to production. Due to these factors, exploiting South Africa's mineral resources with recourse to purely domestic financing, expertise and/or equipment is challenging, if not impossible. Therefore, the industry requires capital, investment, and input from foreign sources, namely by way of Foreign Direct Investment (FDI). To ensure that foreign participation in its mineral and mining industry allows for domestic benefit, and that said benefit is enhanced in accordance with its policy objectives, the South African Government has formulated and imposed Local Content Requirements (LCRs) for the industry. This dissertation analyses the question of whether the LCRs formulated and imposed in the South African mineral and mining industry promote the attraction of FDI. The argument made is that the overarching factor influencing the decision to invest in the South African mineral and mining industry is certainty. Pursuant thereto, this dissertation argues that, as presently formulated and implemented, the LCRs applicable to the South African mineral and mining industry do not ensure certainty and, accordingly, do not promote the attraction of FDI. In the light of this conclusion, this dissertation offers two recommendations to the South African Government to enhance certainty in respect of the LCRs applicable to the South African mineral and mining industry for the purpose of promoting the attraction of FDI.
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    Safeguarding rights of mining communities in South Africa: an analysis of the legal mechanisms in force with a particular focus on community development agreements
    (2021) Mugo, Tabitha Muthoni; Mostert, Hanri; Cramer, Richard Henry
    The benefits of Mineral resources must be distributed equitably and sustainably among all mining stakeholders including mining communities. Sustainable mining practices extend to the promotion of socio-economic development of local communities affected by mining activities. Mining communities often bear the brunt of the negative effects of mining, which include environmental degradation and interruption of social and cultural norms. In recent times, mining communities have increasingly raised concerns and complaints in opposition to the commencement of mining projects or ongoing mining projects where mining companies have failed to fulfil their end of the bargain. For example, in South Africa, the unrest leading to the unfortunate events at Marikana in 2012 led to significant scrutiny on the role of mining companies in the socio-economic development of mine labourers and mining communities. In particular, the effectiveness of Social and Labour Plans was brought under scrutiny. Additionally, the Constitutional Court has recently adjudicated cases relating to the relationship between mining companies and mining communities whereby the need for meaningful consultation with mining communities before the grant of a mining license was emphasized. This dissertation analyses whether the legal framework in South Africa adequately safeguards the rights of mining communities. Further, it considers whether the mechanisms put in place in the mining legal and regulatory framework, for example, the requirement of consultation with interested and affected parties, sufficiently protect mining communities. A proposal is made for the incorporation of Community Development Agreements into the legal framework to safeguard mining community rights for the following reasons. First, the agreement provides legally binding obligations for both parties. Secondly, it serves a powerful mechanism in sharing the benefits of mining. Thirdly, it provides a clear structure for the mitigation of some of the negative impacts of mining through socio-economic development of mining communities.
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    South Africa's Stolen Gold: a legal analysis of the impact of illegal mining on South Africas national security
    (2022) Dyan, Comet Inga; Mostert, Hanri; Cramer, Richard Henry
    The proliferation of illegal mining activities in South Africa costs the country's economy an estimated R10 billion a year. Illegal mining activities further jeopardise the future of South Africa's economic development perspective, which is outlined in the National Development Plan (NDP) and highlights the need to eliminate poverty and reduce inequality. Therefore, this posits illegal mining activities as national security threats as they compromise the government's strategic planning programme and directly impact all sectors of security analysis for a modern state: the military, economic, political, social, and environmental sectors. The current fragmented approaches to combat illegal mining activities and the short-sightedness of mining legislation will continue to exacerbate the impact and spread of these activities, from primarily abandoned mines to operational mines. Hence, any real plan to combat illegal mining activities successfully needs a coordinated approach that involves all stakeholders within the mining industry and the security sector, focusing on the key drivers of this highly organised and global illicit economy. In addition, the South African government will need a well thought out policy development strategy that speaks to the future needs of South Africa's mining industry, which may include artisanal mining as a form of an inclusive economic development policy programme. This dissertation briefly explores all the elements mentioned above of South Africa's illegal mining problem. This paper emphasises policy failures and government strategies that have largely ignored the security of the country's mineral resources as they lie on the surface and subsurface of the earth, specifically in abandoned and derelict mines.
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    The abandonment of landownership: a proposed model for regulated exit
    (2020) Cramer, Richard Henry; Mostert, Hanri
    The question whether it is possible to abandon landownership is unresolved in South African law. The subject has only rarely been the subject of attention by scholars, with legislation and existing case law providing little in the way of clear guidance. This lack of clarity is obviously not ideal. In South Africa landowners may find themselves burdened with the ownership of land which has accrued a negative value. This thesis seeks to engage with the question on a theoretical level, including to provide answers to practical problems in the South African landownership context. Ultimately two primary questions must be answered: 1. Is the abandonment of landownership possible in the South African legal framework? 2. Should the abandonment of landownership be permitted, and if so, under what circumstances? The first question is evaluated in light of existing common-law principles, case law, as well as legislation such as the Deeds Registries Act 47 of 1937. However, the second question will be the primary focus of the thesis. Through the lens of the socialobligation norm of property as conceptualised by Gregory Alexander, as well as comparative studies of Swiss and Scots law, the thesis explores the viability of a right to abandon landownership in South African law. The thesis argues that the abandonment of landownership in South Africa is not possible in the prevailing legal framework. Furthermore, an unrestricted right to abandon is not viable in the South African socio-economic context. However, landowners who find themselves burdened with land which has accrued a negative value for which they are not at fault may require some form of regulated exit from that ownership. The thesis makes suggestions for legislative law reform in this regard, to provide balance between the interests of landowners and the wider community.
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    The outlook on the extractives upstream investment in South Africa: the environmental governance issue
    (2023) Msezane, Nondumiso Nokukhanya; Mostert, Hanri; Kengni Bernard; Cramer, Richard Henry
    Though endowed with natural resources, South Africa's upstream investment continues to deteriorate. This is partly due to the depleting reserves and the country's policy perception, which ranks South Africa as a high-risk upstream investment destination. This study focused on the country's policy perception zooming in on the environmental governance of the extractives sector. Environmental governance in South Africa was fragmented. The fragmentation occurred in policies, institutions and, ultimately, governance. The consequences of this fragmentation were regulatory duplication and inconsistencies between the regulatory institutions, which manifested in delays and uncertainty, negatively impacting South Africa's competitiveness in investment. The industry's One Environmental System (OES) was effected to eradicate this fragmentation. However, this study demonstrates through case studies that the OES implementation was haphazard, creating uncertainty, amplifying the lack of cooperative governance and introducing compromised environmental management compliance through the competent authority for the industry environmental authorisations. This study finds that policy design, implementation strategies, and environmental regulatory coordination are vital to a country's competitiveness. It argues that these elements will promote competitiveness and stimulate innovation to develop new pollution-saving technologies that offset compliance costs and improve environmental and economic performance leading to sustainable development. The study concludes with the solutions to South Africa's OES system by referring to the Organisation for Economic Co-operation and Development's (OECD) integrated environmental permitting guidelines.