Browsing by Author "Mathiba, Gaopalelwe Lesley"

Now showing 1 - 3 of 3
  • No Thumbnail Available
    Item
    Open Access
    The rationale for state custodianship of mineral resources under the MPRDA: a conceptual analysis of equitable access to the mining industry and black economic empowerment
    (2025) Mpiko, Xabiso Gift; Mathiba, Gaopalelwe Lesley; Cramer Richard Henry
    The dissertation investigates the rationale behind the state custodianship of mineral resources in South Africa, as enshrined in the Mineral and Petroleum Resources Development Act (MPRDA) 28 of 2002. This legislative framework marked a significant shift from private to state control over the country's mineral wealth, aiming to correct historical injustices rooted in colonial and apartheid policies. Central to the MPRDA is the pursuit of equitable access to the mining industry and the advancement of Black Economic Empowerment (BEE), which are considered crucial components of the broader socio-economic transformation agenda. The research provides a theoretical analysis of how the custodianship model functions within the context of South Africa's Constitution, particularly section 25, which mandates the state to use its resources for public interest and social justice. The state's role as custodian is evaluated through its legislative and regulatory actions, focusing on how it facilitates access to mining opportunities for historically disadvantaged groups. Key aspects of the analysis include the interaction between the MPRDA, the Broad-Based Black Economic Empowerment Act (BBBEEA) 53 of 2003, and the Mining Charter of 2018, which aim to promote economic inclusivity in the mining sector. The study critically assesses whether these policies have successfully transformed the ownership structures of mining enterprises and promoted meaningful black participation in the industry. It highlights the various challenges that persist, including bureaucratic inefficiencies, financial barriers, and fronting practices, which undermine the goals of black economic empowerment. Methodologically, the dissertation employs a desktop and doctrinal legal research approach. The desktop method involves collecting information from secondary sources such as textbooks, academic journals, dissertations, government statistics, whitepapers, and newspapers. Meanwhile, the doctrinal legal research method utilises primary legal sources such as case law, legislation, and policy documents. The study identifies both the successes and shortcomings of the state custodianship model, particularly the role of the Minister of Mineral Resources in granting mining rights and ensuring that these rights align with the objectives of equitable access and transformation as espoused in the MPRDA. The dissertation concludes that while progress has been made in transforming the mining industry under state custodianship, significant gaps remain. These include insufficient support for emerging black mining businesses, the limited success of ownership transfers, and the inconsistent application of the Mining Charter due to its nature as policy and not law. The research advocates for more robust regulatory oversight, better financial mechanisms, and more proactive state involvement to ensure that the transformation goals of the MPRDA are fully realised.
  • No Thumbnail Available
    Item
    Open Access
    Towards a meaningful engagement approach to mining-induced displacements in South Africa: a legal comparative perspective
    (2023) Mathiba, Gaopalelwe Lesley; Mostert, Hanri; Van Schalkwyk, Louie
    A few decades ago, it might have been fair to argue that because mining activity is intrinsic to the country's economic growth and development, then everything else negative about mining should just be excused as a 'necessary evil' or 'acceptable collateral damage'. But not now. One of the negative impacts of mining activity is displacement of people. Gaining access to a mineral resource requires displacing local communities to make way for mining operations. This phenomenon is known as mining-induced displacement. In South Africa, Ghana and elsewhere, mining-induced displacements often result in the loss and damage of both tangible and non-tangible assets belonging to the displaced persons. These include homes, livestock, valuable resources, cultural sites, productive lands, social structures, tenure security over traditional lands and livelihoods. With mining-induced displacements, there is also a risk that displaced persons may find themselves homeless, marginalised, jobless and without access to their sustained livelihoods while having lost social cohesion and a sense of belonging. All these have negative bearing not only on the socio-economic realm of those affected, but cultural and moral interests as well. Beyond all these realities, there is not much we know about how and the extent to which meaningful engagement remedy - a dynamic adjudicative strategy devised by the South African courts - may present a solution to the unresolved issues around mining-induced displacements; how the courts have protected the vulnerable against evictions through this remedy; and how such protection could potentially be extrapolated to cover mine-affected communities against displacements in this context. That said, this thesis is an attempt at establishing the potential relationship between meaningful engagement and displacements in mining law. The thesis seeks to answer the overarching research question: How robust and consultative is the regulatory framework in addressing mining-induced displacements in South Africa and Ghana, and to what extent are these frameworks complied with in practice? As far as could be established, there has not been any comprehensive research undertaken to establish the potential nexus between meaningful engagement and displacement within the broader context of mining law in South Africa and Ghana. As such, this thesis advances the proposition that one way of looking at the problem of mining-induced displacement is by considering how the application of meaningful engagement remedy may be extended into mining law to address this unabated problem. The study makes several findings, at a broader level, on how consultative (akin to meaningful engagement) are regulatory frameworks on mining-induced displacements in the two examined jurisdictions. It is found that both jurisdictions have varying degrees of legal protection for the mine-affected communities against displacements. It is also found that there are notable international law norms and standards against displacements that may be instructive to and offer the best frame of reference from which the examined jurisdictions may improve their domestic response to the problem. The stronghold and novelty of this thesis lies in it being the first and by far the most comprehensive analytical research on the potential normative link between meaningful engagement as an adjudicative strategy and mining-induced displacement as a socio-economic and human rights issue from a comparative perspective with a spotlight on Ghana and South Africa; as well as in identifying and analysing more efficient legal mechanisms in international law to deal with the problem.
  • Thumbnail Image
    Item
    Open Access
    Towards a meaningful engagement approach to mining-induced displacements in South Africa: a legal comparative perspective
    (2023) Mathiba, Gaopalelwe Lesley; Mostert, Hanri; Van Schalkwyk, Louie
    A few decades ago, it might have been fair to argue that because mining activity is intrinsic to the country's economic growth and development, then everything else negative about mining should just be excused as a 'necessary evil' or 'acceptable collateral damage'. But not now. One of the negative impacts of mining activity is displacement of people. Gaining access to a mineral resource requires displacing local communities to make way for mining operations. This phenomenon is known as mining-induced displacement. In South Africa, Ghana and elsewhere, mining-induced displacements often result in the loss and damage of both tangible and non-tangible assets belonging to the displaced persons. These include homes, livestock, valuable resources, cultural sites, productive lands, social structures, tenure security over traditional lands and livelihoods. With mining-induced displacements, there is also a risk that displaced persons may find themselves homeless, marginalised, jobless and without access to their sustained livelihoods while having lost social cohesion and a sense of belonging. All these have negative bearing not only on the socio-economic realm of those affected, but cultural and moral interests as well. Beyond all these realities, there is not much we know about how and the extent to which meaningful engagement remedy - a dynamic adjudicative strategy devised by the South African courts - may present a solution to the unresolved issues around mining-induced displacements; how the courts have protected the vulnerable against evictions through this remedy; and how such protection could potentially be extrapolated to cover mine-affected communities against displacements in this context. That said, this thesis is an attempt at establishing the potential relationship between meaningful engagement and displacements in mining law. The thesis seeks to answer the overarching research question: How robust and consultative is the regulatory framework in addressing mining-induced displacements in South Africa and Ghana, and to what extent are these frameworks complied with in practice? As far as could be established, there has not been any comprehensive research undertaken to establish the potential nexus between meaningful engagement and displacement within the broader context of mining law in South Africa and Ghana. As such, this thesis advances the proposition that one way of looking at the problem of mining-induced displacement is by considering how the application of meaningful engagement remedy may be extended into mining law to address this unabated problem. The study makes several findings, at a broader level, on how consultative (akin to meaningful engagement) are regulatory frameworks on mining-induced displacements in the two examined jurisdictions. It is found that both jurisdictions have varying degrees of legal protection for the mine-affected communities against displacements. It is also found that there are notable international law norms and standards against displacements that may be instructive to and offer the best frame of reference from which the examined jurisdictions may improve their domestic response to the problem. The stronghold and novelty of this thesis lies in it being the first and by far the most comprehensive analytical research on the potential normative link between meaningful engagement as an adjudicative strategy and mining-induced displacement as a socio-economic and human rights issue from a comparative perspective with a spotlight on Ghana and South Africa; as well as in identifying and analysing more efficient legal mechanisms in international law to deal with the problem.