Browsing by Author "Mostert, Hanri"

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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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    A legal perspective on the role of municipalities in navigating the relationship between land use planning and mining
    (2019) Van Schalkwyk, Catherine Louie; Mostert, Hanri
    The legislative and executive powers dealing with mining and land use respectively are allocated to different spheres of government. Mining rights are issued by the Department of Mineral Resources (DMR), as representative of the national government, whereas land use and zoning are regulated by municipalities, the local sphere of government. According to a 2012 ruling by the Constitutional Court of South Africa, a mining right holder cannot commence mining activities, despite holding the mining right, unless and until the land is appropriately zoned by the municipality in whose jurisdiction the land is located. The separate functions of the two spheres of government make duplication in application processes inevitable. The potential for conflicting decisions is also apparent. This project aims to determine how alignment of the respective processes of obtaining a mining right and land use approval can provide for better co-operation between the responsible government authorities. This question translates into two sub-inquiries: a) How do municipalities currently regulate land use for mining purposes? b) Should municipal rezoning procedures be incorporated into the application process for mining rights? These issues are considered by examining three selected municipalities’ rezoning procedures and policies and comparing these to the requirements of mining right applications. The thesis investigates the extent to which these procedures overlap and are duplicated. Potential policy changes are explored, to suggest streamlining application processes by providing a more cohesive solution. The three selected municipalities are the City of Cape Town Municipality in the Western Cape Province, the Sol Plaatje Municipality in the Northern Cape Province and the City of uMhlathuze Municipality in KwaZulu-Natal Province. The thesis shows how poor intergovernmental relations and processes hamper effective co-operation and collaboration between the DMR and municipalities. While it is imperative that each government institution retains legislative and executive authority over their respective constitutional powers – DMR over mining activities, and municipalities over land use issues – the thesis argues that greater efforts at process alignment or synchronisation are necessary. It offers suggestions for improvement.
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    Advancing the effective implementation of the one environmental system for mining through cooperative environmental governance
    (2020) Mpinga, Shamila; Mostert, Hanri
    In 2014, the One Environmental System for mining came into effect. This legislative framework was introduced to streamline the environmental regulation of mining activities by consolidating such regulation in the National Environmental Management Act (NEMA). The most significant aspect of the regulatory framework, for purposes of this research, is the allocation of powers to the authorities responsible for implementing the One Environmental System. The authorities tasked with implementing the One Environmental System are the Department of Mineral Resources and Energy (DMRE), the Department of Environment, Forestry and Fisheries (DEFF) and the Department of Human Settlements, Water and Sanitation (DHWS). In the distribution of power, the DMRE is tasked with enforcing the regulatory framework in the minerals extraction industry. The DEFF sets the regulatory framework and is the appeal authority for decisions taken by the DMRE. Finally, the DHWS is responsible for regulating and enforcing the National Water Act. Although introducing the One Environmental System has improved the regulation of the environment in relation to mining, its regulation - and, more so, enforcement - has received more criticism than praise. Intragovernmental fragmentation has been cited as a cause of ineffective implementation of the regulatory framework. A lack of cooperation between the departments hampers the objective of streamlining the environmental regulation of mining. Therefore, it is imperative that the authorised departments cooperate with each other to achieve the effective implementation of the One Environmental System for mining. The aim of this dissertation is to suggest ways to foster cooperation between the DMRE, DEFF and DHWS to achieve the effective implementation of the One Environmental System. This goal is achieved by providing an analysis of the implementation efforts of the three departments. Since the analysis shows that intragovernmental fragmentation has hampered the effective implementation of the regulatory framework, this research provides recommendations to improve the implementation of the One Environmental System.
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    Benefit-sharing of proceeds from minerals: a legal analysis of the shortfalls of Tanzania's new Mining Laws and Regulations on Beneficiation
    (2021) Mussa, Ahmed; Mostert, Hanri; Cramer Richard Henry
    Beneficiation is the process whereby minerals undergo value addition before exportation. For the beneficiation process to be successful, it must be regulated effectively by legislation. The United Republic of Tanzania (Tanzania), being a resource-rich country, enacted new mining laws and regulations to improve mining activities' economic benefits. However, Tanzania continuously fails to realise the intended purpose of the new mining laws and regulations, particularly in respect of benefit sharing. The bottom line is that this country fails to acquire a fair share of its mineral resource benefits. This dissertation argues that the beneficiation of minerals is one way to enhance a host nation's economic benefits from exploiting its mineral resources. The dissertation analyses the new Tanzanian mining laws and regulations on beneficiation and discusses their shortfalls. First, this dissertation inquires how the new Tanzanian mining laws and regulations promoted minerals' beneficiation as a benefit-sharing enhancement mechanism. Second, this dissertation inquires how Tanzania can improve these laws to ensure an increased share of benefits from mineral activities. This dissertation argues that the new Tanzanian mining laws and regulations have shortfalls and practical challenges on beneficiation. This dissertation offers recommendations to the Tanzanian government to carry out beneficiation to develop Tanzania and its citizens.
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    Bridging the gap between conservation and land reform : communally-conserved areas as a tool for managing South Africa's natural commons
    (2011) Paterson, Alexander R; Mostert, Hanri
    This dissertation examines whether the concept of communally-conserved areas provides a useful tool for bridging the current apparent impasse between South Africa’s conservation and land reform agendas.
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    Consent and consultation under IPILRA and the MPRDA concerning ancestral land of customary communities: incorporating the free, prior, and informed consent principle into South African National Legislation
    (2025) Maponya, Randy; Mostert, Hanri; Richard Cramer, Richard; Ntsanwisi, Fezeka
    The Mineral and Petroleum Resources and Development Act 28 of 2002 (MPRDA) requires an applicant for a right to a mineral or a mining permit to consult with the landowner, lawful occupier, or any interested and affected parties. The MPRDA does not require the applicant for a right to a mineral or a mining permit to obtain consent, it only requires that the applicant consults with the landowner, lawful occupier, or any interested and affected parties. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), requires the informal land rights holders consent to any deprivation of their informal rights to land. The court in Baleni v Minister of Mineral Resources (Baleni 1) considered the level of engagement that must be achieved before a right to a mineral or mining permit may be granted by the Minister in terms of the MPRDA. The court in Baleni confirmed that an informal land right holder must consent to any deprivation of their informal land right. The court held that the MPRDA and IPILRA must be read together. The court in Baleni 1 considered customary law and international law as prescribed in the Constitution of the Republic of South Africa of 1996 (Constitution). The court recognised international instruments under international and regional law that deal with the Free, Prior, and Informed Consent (FPIC) principle. Basson J held that requiring community consent as opposed to consultation is in line with the FPIC principle recognised under international law. This dissertation aims to examine whether the Baleni 1 judgment paves the way for the incorporation of the FPIC principle into South African national legislation. It investigates the challenges and benefits of incorporating the FPIC principle into national legislation and the implementation of the FPIC principle in practice. Further, the role of the legislature in adopting the FPIC principle into national legislation as opposed to adopting the requirement of consent. This dissertation argues that the Baleni 1 judgment paves the way for the FPIC principle to be incorporated into South African national legislation. The dissertation unpacks the FPIC principle as outlined in international law and how it can be applied in domestic law. This dissertation seeks to illustrate how the FPIC principle can be incorporated into national South African legislation for the protection of customary communities on ancestral land affected by prospecting and mining operations.
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    Consultation and consent under the MPRDA and the IPILRA: a legal analysis of the decision-making practices of customary communities in South Africa
    (2021) Ntsanwisi, Fezeka; Mostert, Hanri; Cramer Richard Henry
    Under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), the State, as custodian of mineral resources, has the authority to grant rights to minerals and permits in favour of applicants that satisfy the requirements of the prescribed application procedures. Applicants for rights to minerals and permits must consult meaningfully with landowners and lawful occupiers, although the MPRDA itself does not require the latter's prior consent. The Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), by contrast, requires prior consent when persons are deprived of their informal rights to land. In South Africa, communities that occupy land under customary land tenure are recognised as lawful occupiers that have informal rights to land. The occupation of land by customary communities and the applicant's interest to exploit mineral resources creates competing rights and interests between these two parties, namely: a right to consultation and a right of access to land. This minor dissertation aims to analyse the impact that the current statutory formulation of the requirements of consultation and consent has on the informal rights to land held by customary communities. This aim translates into two sub-inquiries: How do the statutorily required processes of consultation and consent embodied in the MPRDA and the IPILRA protect the informal rights to land held by customary communities? Furthermore, do the statutorily required processes of consultation and consent meaningfully engage with the existing decision-making practices of customary communities? These issues are considered in light of the elevated status that customary law enjoys under South African law and the Constitution's aspiration to reform racially discriminatory landholding systems. The dissertation argues that the statutorily required processes of consultation and consent inadequately engage with the existing decision-making practices of customary communities. It offers insight on how engagement with the existing decision-making practices, and with the Free, Prior and Informed Consent principle, can better accommodate and protect the rights and interests of customary communities that are affected by prospecting and mining operations.
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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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    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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    Engaged Citizenship and the enabling state as factors determining the interference parameter of property: A comparison of German and South African Law
    (2010) Mostert, Hanri
    Since its conception, the idea of constitutional property protection and regulation in South Africa has been an academically captivating issue.1 At first, politicians negotiated whether the Constitution should protect vested private property interests and contribute to the goals of political reform, and how such a compromise could be achieved.2 Simultaneously, academics flexed their comparativist muscles, contemplating which of the prominent models of constitutional property protection encountered worldwide would lend itself best to adaptation for South Africa.
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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.
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    Integrating land administration systems in peri-urban customary areas in Ghana
    (2018) Obeng, Williams; Whittal, Jennifer; Mostert, Hanri
    Dual land administration systems operate in many peri-urban customary areas in subSaharan Africa (Burns, 2007), yet the rationality behind them is different, and possibly conflicting (Watson, 2003). The conflicting rationalities between the dual systems have created binaries in land administration discourse. Some scholars have promoted statutory land administration systems over customary systems (Hardin, 1968). Many pre-21st century land administration systems theories were purely economy-based, and sought to discredit customary land administration and tenure systems (De Soto, 2000; Peters, 2009). The weaknesses of customary land administration and tenure systems have been widely articulated in economy-based land administration literature (Demsetz,1967). However, recent research findings seem to suggest that peri-urban customary land management could improve through hybrid land administration, incorporating both customary and statutory systems (Whittal, 2014). In this study, statutory and customary land administration systems are examined to understand how they can be integrated to improve effective land delivery at the peri-urban interface in Ghana. A case study analysis of hybrid forms of land administration was undertaken, using both primary and secondary data. Relatively successful case studies (from Ghana and other parts of sub-Saharan Africa) were deliberately chosen to learn good ways of managing peri-urban customary land. Land administration practices in such areas were assessed using the good land governance framework. The case study analysis reveals that hybrid land administration systems are appropriate in enhancing livelihood sustainability and tenure security of the local people. To this end, the study proposes some improvements in hybrid land administration practices to reduce conflicting rationalities between customary and statutory land administration systems.
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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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    Policy harmonisation, regional integration and energy security: the participation of independent power producers in the Sub-Saharan African energy sector
    (2019) Pailman, Kelsey Amy; Mostert, Hanri
    The United Nations Sustainable Development Goal Seven (SDG 7) promotes access to 'affordable, reliable, sustainable and modern energy for all’. Sub-Saharan Africa is however characterised by high levels of energy insecurity. Regional integration is a way in which energy security in the region can be achieved through the sharing of resources, infrastructure and expertise. Electricity trade in Sub-Saharan takes place primarily through the Southern African Power Pool. The Power Pool consists of 13 member countries that import and export electricity across transmission infrastructure. Regional integration is however hampered by unreliable state-owned centralised grids. Many grids in sub-Saharan Africa do not have sufficient energy generation capacity for regional trade. Independent Power Producers (IPPs) promote regional integration and energy security by increasing a country’s energy generation capacity and diversifying its energy mix through renewable energy sources. Sub-Saharan Africa currently lacks a harmonised policy framework on the participation of IPPs in national energy markets. This thesis argues that a harmonised policy framework on IPP participation on a national level can increase electricity trade and energy security regionally.
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    The power of the court to grant alternative accommodation orders: an investigation into when an alternative accommodation order as a condition to the eviction of unlawful occupiers in terms of PIE would comply with the court's constitutional mandate
    (2017) Fick, Sarah Johanna; Mostert, Hanri
    In an eviction matter, the court is required to consider all relevant circumstances and grant an order that is just and equitable. An important relevant circumstance to be considered is whether the unlawful occupiers have alternative accommodation. Courts are reluctant to grant eviction orders that would leave the unlawful occupiers homeless. In matters where unlawful occupiers are unable to secure their own alternative accommodation, courts often look to the state to provide alternative accommodation. Courts have ordered the state to provide alternative accommodation to the unlawful occupiers in certain cases as a condition of the eviction order (an alternative accommodation order). This thesis seeks to determine when an alternative accommodation order as a condition to the eviction of unlawful occupiers in terms of the Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (PIE) would comply with the court's constitutional mandate. Two criteria are determined against which to test whether alternative accommodation orders comply with the court's constitutional mandate. First, the court's constitutional mandate requires that its orders adhere to the existing legal framework. Second, the court's constitutional mandate requires that its orders respect the functions of the branches of government. An alternative accommodation order would only adhere to the legal framework if there is a valid ground for placing this duty on the state. The possible grounds for holding the state liable relate to its constitutional duty to respect, protect, promote and fulfil human rights. One possible ground relates to the state's duty to fulfil the unlawful occupiers' right of access to adequate housing by implementing reasonable short-term housing programmes. Hence, whether the state has a duty to accommodate the unlawful occupiers within its short-term housing programme is a relevant circumstance to be considered by the court. A finding that the state has a duty to accommodate the unlawful occupiers, immediately, is likely to lead to an eviction with an order against the state to provide alternative accommodation, regardless of the other circumstances. If the state does not have a duty to accommodate the unlawful occupiers immediately in terms of its duty to fulfil human rights, its liability to provide alternative accommodation might still be found on its duty to respect and protect human rights. This is because, under some circumstances, the granting of an eviction order that results in homelessness might violate the rights of the unlawful occupiers, whereas a denial of the eviction or a delay in the granting or execution of an eviction order might violate the rights of the landowner. Placing the duty on the state to prevent or mitigate the violation by compensating either of the parties could be justified due to the state's duty to respect and protect human rights. As an alternative to compensation, a court could order the state to provide alternative accommodation to the unlawful occupiers. These two possible grounds for alternative accommodation orders are analysed to determine when alternative accommodation orders based on these grounds would adhere to the existing legal framework and respect the functions of the branches of government. These grounds are likely to have the same outcome. For both grounds, certain factors weigh heavily against an alternative accommodation order: blameworthiness on the part of the unlawful occupiers, a lack of blameworthiness on the part of the state, a finding that the state's limited resources should rather be spent on others who are needier or more deserving. In the conclusion of the thesis, recommendations are made regarding two problem areas in granting alternative accommodation orders in eviction matters - the availability of state resources and the burden of proof.
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    Public trusteeship and water management: developing the South African concept of public trusteeship to improve management of water resources in the context of South African water law
    (2014) Young, Cheri-Leigh; Mostert, Hanri
    South Africa is faced with extraordinary challenges when it comes to managing its water resources. To redress the results of discrimination caused by Apartheid and its political antecedents, the modern constitutional state sought to address the issues of access to water resources and sanitation services by introducing section 24 of the Constitution, which provides for the right to an environment that is not harmful to one's health or well-being. In addition, section 27 seeks to entrench the right of access to sufficient water. Consequently, the National Water Act 36 of 1998 was introduced, which caters for the administration of water resources. The Water Services Act 108 of 1997, which seeks to ensure the provision of water and sanitation services completes the statutory framework. This framework provides for the state to be either the trustee or the custodian of our water resources. However, the terms 'trustee' and 'custodian' are not defined by either statutes. The legal framework nevertheless sets the parameters for state trusteeship and/or custodianship. This may be gleaned from the constitutional provisions, the National Water Act and the Water Services Act, as well as their accompanying regulations and policies. Despite oversights and inconsistencies, it is argued, the legislative framework very clearly provides the statutory content of trusteeship and custodianship. The state is expected to manage water in accordance with the prescribed constitutional mandate. The nature of the terminology used in the legislation has prompted a comparison by academic authors of modern trusteeship with the Roman and Roman-Dutch law classifications of res publicae. Alternatively, the public trust doctrine has been used as a comparator for evaluating the functioning of trusteeship. However, there are numerous problems with both of these comparisons. Neither facilitates a clear, meaningful understanding of trusteeship or custodianship. The thesis set out here is that, as trusteeship and custodianship are both statutory creatures, the nature of their content must be sought in the legal framework itself. In particular, the National Water Resource Strategy provides insight into the duties of the state. The Strategy aims to give effect to this legal framework, and provides that there are three values that water management aims to achieve: sustainability, equity and efficiency.
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    Regulation of the upstream petroleum industry. A comparative analysis and evaluation of the regulatory frameworks of South Africa and Namibia
    (2015) van den Berg, Hugo Meyer; Mostert, Hanri
    Controversy surrounds the upstream petroleum industry. Although the benefit of petroleum resources is beyond dispute, the exploitation of petroleum resources comes at a price, as history has shown time and again. Not only does petroleum exploitation have detrimental effects on the environment, but host countries often are worse off than countries with little or no petroleum resources. This "resource curse" is partially the result of flawed regulatory frameworks for petroleum resource extraction in host countries. This thesis identifies three elements that must be present in a country's regulatory framework for petroleum extraction if the resource curse phenomenon is to be avoided and benefit s from petroleum are to be maximised. These elements are: transparency, accountability and a balance of interests between the petroleum companies and the host nation. Namibia and South Africa are not yet major players in the international upstream petroleum industry. There is accordingly not much academic engagement with petroleum law in these two jurisdictions. The courts have also not yet had the opportunity to scrutinise the legislation regulating the upstream petroleum industries of South Africa and Namibia. There are, however, indications that both countries may possess viable quantities of petroleum resources. In anticipation of the possibility of finding commercially viable quantities of petroleum, South Africa and Namibia have enacted legislation to regulate the upstream petroleum industry, but the efficiency of the legislation, specifically how it reflects the elements of transparency, accountability and balance of interest, have not yet been considered. The research for this thesis is driven by the question of how the regulatory framework for petroleum exploitation in South Africa and Namibia embraces the elements of transparency, accountability and balance of interest. The purpose of this thesis is to examine the regulatory frameworks for upstream petroleum resources in South Africa and Namibia in anticipation of the demands that will be placed on law as the sectors grow. In doing so, this thesis scrutinises the legislation in South Africa and Namibia to determine the extent to which the three crucial elements of transparency, accountability and balance of interest between the petroleum company and the host nation are reflected in the regulatory frameworks for petroleum resources.
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    Rethinking enclave development in view of the African mining vision (AMV): lessons for the social and labour plan system
    (2019) Ncube, Vuyisile; Mostert, Hanri
    A Social and Labour Plan (‘SLP’) contains the comprehensive development programmes that a mining right holder must create and implement to benefit a mining affected community. An application for a mining right must be accompanied by an SLP. Additionally, SLPs must contain development programmes that address human resources and local economic development. This dissertation considers whether the SLP System perpetuates an enclave approach to development (‘enclave development’). Enclave development occurs where mining companies develop physical infrastructure, such as roads and electricity, to support their extraction of natural resources. The definition relied on in this dissertation goes a step further to include the implementation of social programs that only target specific areas surrounding mining operations. Assuming that the SLP system indeed perpetuates enclave development, the dissertation also inquires whether this can be remedied with reference to the African Mining Vision (‘AMV’). The hypothesis that the SLP System perpetuates enclave development was initially borne out of the Marikana Commission of Inquiry, which revealed issues with a British mining company’s SLP compliance. Relying on an enclave development approach is particularly problematic in South Africa, as it neglects the development of labour-sending areas and other poor communities that happen to be far from mining operations. By considering the AMV, it becomes evident that elements of the AMV’s proposed strategy of Resource-based Industrialisation are being pursued in South African mineral law and policies. The issue then arises whether the AMV can provide insight. Is it the case that South Africa has not yet seen the benefits of pursuing a Resource-based Industrialisation (‘RBI’) strategy because government is yet to maximise its implementation? Alternatively, are the critiques levelled against the AMV’s RBI strategy valid, hence its inability to speak to the South African SLP System? The critiques levelled against an RBI strategy are that: (a) it perpetuates the colonial model of resource extraction (thus explaining why South Africans fail to see the positive impact of this industrialisation strategy) and (b) it fails to address the negative social and environmental costs of pursuing a minerals based industrialisation strategy. Were one to support the argument that South Africa should work towards the full implementation of an RBI strategy, then the AMV’s proposal of localising the benefits of mining are appealing. The AMV proposes that a government establishes clear fiscal linkages with mining operations, that there be a clear revenue distribution system and the establishment of a Sovereign Wealth Fund. The development of fiscal linkages and a clear revenue distribution system would enable government to re-invest and distribute the revenue to local government, so that labour sending areas and poor communities benefit from mining. The portion of the revenue from mining would be invested into a Sovereign Wealth Fund and the revenue would ensure future generations also benefit from mining. The above approach, to localising the benefits of mining as opposed to relying on SLPs, returns primary responsibility for ensuring social development to the South African government. Governments are inherently far better capable than mining companies at ensuring far reaching social development and promoting socio-economic development. This dissertation concludes by asserting that at a theoretical level, although the AMV does provide insight that could potentially curtail the perpetuation of enclave development by the SLP System, whether these insights are worth implementing, and whether they can be implemented by the South African government, in the light of the compelling critiques levelled against the AMV’s RBI strategy needs further research.
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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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    Open Access
    Setting the Tone for Corporate Social Responsibility in Kenya- What Does the New Mining Act Have to Say?
    (2018) Cowell, Kelly; Mostert, Hanri
    Motivated by the abundance of unexploited natural resources within Kenya, the country released a new Mining Act in 2016. The proclaimed objective, to increase mineral contribution from one percent to ten percent of Kenya’s GDP by 2030, demonstrates governmental focus on enticing investment in the mineral sector. Historically, a primary focus on investment potential in developing countries exposed to sudden mineral booms, is likely to lead to social and environmental destruction. It is therefore important to evaluate the status of Kenya’s new mineral law, and what that means for the country’s ability to foster a sustainable future. Corporate social responsibility (CSR) is discussed in relation to international norms and standards. Kenya’s Constitution and new Mining Act are then examined to identify what safeguards ensure social and environmental protection. While many countries have voluntary CSR mechanisms, Kenya’s Mining Act contains mandatory CSR procedures and regulations. Should Kenya fail to ensure these laws are adhered to within the spirit of the Constitution, there will be negative consequences for the country. Whether there is sufficient governmental willpower, combined with the necessary human and technological resources, to maintain and enforce the established laws is yet to be determined.