Browsing by Author "Heyns, Anri"

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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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    Empowerment through mine community development: how the politics of development perpetuate poverty in mining areas – a legal theoretical analysis
    (2020) Heyns, Anri; Mostert, Hanri
    The Mineral and Petroleum Resources Development Act (“MPRDA”) and the Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry (“Mining Charter”), created in terms of the MPRDA, aim to address the exploitative legacies of past discriminatory practices in the mining industry. Impoverished mining communities stand to benefit from empowerment under the Mining Charter in the form of mine community development – one of the elements that constitute a mining right holder's commitment under the Mining Charter. Despite this legislative intervention and the relative wealth generated by the extraction of mineral resources, poverty and conflict have become the stereotypical images associated with mining areas. This project aims to determine why the empowerment of mining communities through mine community development perpetuates poverty from the past and creates new inequalities. To answer this main question, it is considered how the historical context within which the relevant policy and legislation were created, affected legislative drafting. Second, the effects of promoting development and empowerment in legislative provisions are explored to determine which worldviews and underlying values are being promoted by the legislative instruments under discussion. Furthermore, it is considered how these worldviews and underlying values affect how mining communities, subjected to harsh socio-economic living conditions, are depicted in legislative provisions. Here, it is specifically considered what the notion of “community” signifies in a development context and how “community” is represented in legislation. The thesis is a theoretical exposition of the ideological assumptions underlying the concepts “development”, “empowerment”, “community” and “poverty”. It is shown that “mine community development” is an inherently contradictory notion in South African law. The development paradigm implies the universalisation of values, effectively creating “the poor”, and causing vagueness and paradoxes. It results not only in a perpetuation of poverty and inequality from the past but also in the creation of new inequalities, as is evident in the differentiation drawn by the Mining Charter between different types of communities in mining areas. Measures currently being enforced by the legislation under discussion, are in desperate need of reconsideration.
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    Foreign direct investment & indigenization in zimbabwe's platinum sector: is the indigenization and economic empowerment act a deterrent to foreign investors?
    (2025) Runganga, Desire; Mostert, Hanri; Cramer, Richard; Heyns, Anri
    Indigenization and the economic empowerment of historically disadvantaged communities is a delicate subject in many mining jurisdictions. This dissertation seeks to assess the effectiveness of Zimbabwe's indigenization laws in balancing the interests of foreign investors, host communities, the state and indigenous Zimbabweans at large. The dissertation acknowledges that the law concerning indigenization and economic empowerment in Zimbabwe has evolved and evaluates whether the cumulative amendments have been progressive in redressing the historical injustices done to indigenous Zimbabweans. Before any amendments, the legislation mandated all foreign investors to cede 51 per cent of their investments to indigenous Zimbabweans. The amendments lifted the requirement and made the indigenization laws exclusively applicable to the extractive sector. While the responsible Minister is yet to declare the minerals subject to the indigenization laws, the industry finds itself operating at the mercy of the Minister's discretion. This dissertation is premised on the idea that uncertainty is the primary factor that impedes FDI. The platinum sector is largely operated by foreign investors and was singled out together with the diamonds sector to be subject to indigenization laws in 2018 only to be exempted in 2021. The findings establish that the current framework disguises the regulation and implementation of state participation as indigenization. By doing so the State conflates two policies whose objectives are fundamentally divergent. One seeks to foster restorative justice and the other to enhance the State's share of the economic rents from mining. The former is an urgent cause, and the latter is a choice that can be foregone without serious consequences by merely adopting other tax tools. Consequently, the legislation creates an ambiguous policy direction and ultimately investor uncertainty. The research questions whether local parastatals can balance their fiduciary responsibilities to be loyal not only to the State but also to the foreign investor as a forced partner and whether indigenization is merely nationalisation. The dissertation concludes that the legal framework falls short of the tenets of empowerment. It further offers insight and recommendations on how the legislation burdens foreign investors with the need to implement ‘double indigenization policies' parallel to each other at an added expense. One to acquire the social license to operate and the other for purposes of attaining indigenization accreditation which is merely state participation.