Browsing by Author "Luwaya, Nolundi"

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    A legal analysis of the relationship between, and role of, Consultation under the MPRDA and Public Participation under NEMA in safeguarding the environmental and health rights of mining communities
    (2023) Mothudi, Tlamelo; Luwaya, Nolundi; de Souza Louw Monica
    Mining activities, while of huge national economic benefit, severely disrupt traditional land usage, possession and ownership and severely pollute the natural environment. The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the National Environmental Management Act 107 of 1998 (NEMA) aim to ensure meaningful public participation of members of the community, lawful owners of land and interested and affected persons. This minor dissertation aims to unpack and analyse the role of consultation and public participation (PP) in upholding and protecting the environmental and health rights of mining affected communities. It explores consultation as conducted under the public participation provisions of NEMA, and whether the lack of meaningful consultation by mining applicants results in mining affected communities lacking proper understanding and appreciation of issues surrounding the health, environmental and other risks associated with mining. The dissertation considers how the granting of the mining or prospecting rights and mining permits without meaningful consultation contributes to environmental degradation as well as the ill health of mining affected communities and other undesirable health outcomes. Consultation and PP alone cannot guarantee the protection of environmental and health rights of communities. Where rights have been infringed, at the application stage or after the granting of mining and prospecting rights and permits, another inquiry of the dissertation is the availability of mechanisms that can be used by mining-affected communities in the enforcement of their rights. Throughout the dissertation, the role of a sound governance structure is explored in mitigating the negative impacts of mining on communities and promoting social, economic, and environmental outcomes. The dissertation argues that while mandated, consultation and PP are conducted as tick box exercises failing to properly engage with mining-affected communities allowing them to be part of decision making. It questions whether Consultation conducted as part of PP in terms of environmental legislation ensures that questions around the health impacts of the project are included in the consultation or whether independent Health Impact Assessments are needed. Ultimately, the discussions around the mining legislation, Consultation and PP, and the enforcement of community rights are all discussions centred on governance. The protection of environmental, social and health rights are dependent on social justice centred policies, regulations, laws and institutions and their implementation.
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    The danger of the single legal story: the effects of international human rights legalization on land issues in Africa
    (2024) Matsinhe, David Mário; Luwaya, Nolundi
    The order of ideas herein presented constitutes a decolonial critique of the constraints inherent in international human rights law, upheld as the gold standard for safeguarding the rights of rural communities in the context of resource extraction within the African landscape. The objective is to render visible the constraints imposed by international human rights law on the capacity of international human rights organizations to advocate for the interests of African communities facing the adverse human rights implications of reckless corporate extractive operations. The exercise is based on an analysis of reports on resource extraction and human rights in Africa issued by prominent international human rights organizations, specifically Amnesty International and Human Rights Watch. This analysis locates these limitations within the coloniality of international human rights law, pursuant to the process of human rights legalization. For in practice, the legalization process has gradually and progressively reduced human rights into a monodisciplinary legal domain in which the multidisciplinary ode to human rights has been silenced. Whether intended or unintended, the multidimensional human rights story gave way to the prevailing single human rights story, within which human rights are knowable and visible in ways that matter only through the eyes of the law. As an instrument of coloniality, the legalization process has dismantled the intricate, decentralized, and all-encompassing global human rights rhizome, relegating it to historical obsolescence, and in its place, constructed the prevailing hierarchical, unitary, centralized, and exclusionary arboreal edifice of 2 international legal human rights. This reduction of human rights to a one dimensional legal framework has effectively silenced numerous indigenous voices globally, notably those originating from the global south. The prevailing arboreal paradigm must yield ground, allowing for the resurgence of a rhizomatic framework as the more equitable, tenable, decolonial approach.
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    Understanding women's claim to land in an Eastern Cape Village
    (2018) Luwaya, Nolundi; Smythe, Dee
    The history of land dispossession in South Africa affected communities in the former homelands in multiple ways. The laws used to implement policies of segregation and dispossession undermined the rights to land held by black South Africans living in the countryside. Women living in these communities suffered under the dual burden of diminished status in the eyes of the law and landlessness. This history has shaped the current reality of women living on communal land in rural South Africa and has influenced the development and security of their land rights. In the context of a Constitutionally protected right to secure tenure, this dissertation discusses relevant literature, past legislative interventions and present-day laws, bills and policies in order to foreground the powerful role of framing in determining whose land rights are recognised and protected. Drawing on further literature and empirical research I discuss the interaction between top down approaches to framing laws and the assignment of status, an aspect that is crucial for black women. I discuss this alongside the lived experiences of women claiming residential land in a rural Eastern Cape community in order to foreground the inherent shortcomings of such top down approaches and their inability to fully recognise and protect the land rights of rural women.