Browsing by Author "Van Schalkwyk, Louie"

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    Incentives and drivers for property owners to pursue private embedded generation through solar photovoltaic systems
    (2024) Scholtz, Michelle; Van Schalkwyk, Louie
    South Africa has been experiencing an energy crisis for over sixteen years, leading to an increase in the frequency and duration of power cuts. The energy crisis has a detrimental impact on the country's economy, and consequently, on residential and non-residential private property owners. Furthermore, the country is heavily reliant on coal for energy generation, which requires the move towards a more sustainable energy mix. Renewable energy generation, especially in the form of rooftop solar photovoltaic (PV) systems, is expected to play an important role in South Africa's future energy systems. The national government, along with various municipalities at local government level, are introducing regulatory incentives to promote the uptake of solar PV systems in the private sector. These incentives include feed-in tariffs, capital subsidies and tax benefits. In addition to the regulatory incentives, there are non-regulatory drivers that motivate private property owners to pursue solar PV systems. These drivers include environmental considerations, cost savings, energy security, tenant requirements, and green-energy finance. This study examines the various regulatory incentives available to private property owners located in the City of Cape Town (CoCT) to pursue solar PV systems. The CoCT was selected as a single case study as the municipality creates a conducive environment through their regulatory framework for private property owners to pursue private embedded generation systems. The report examines the different incentives applicable to residential and non-residential property owners. The research also establishes to what extent the regulatory incentives influence private property owners to pursue solar PV systems, when compared to non-regulatory drivers and benefits. A literature review was conducted and the respondents were interviewed to determine the extent of national and municipal regulatory incentives available to residential and non-residential private property owners and whether these incentives are considered a determining factor in pursuing solar PV systems, when compared to non-regulatory drivers. The study revealed that the various regulatory incentives differ somewhat for residential and non-residential property owners. These differences impact the extent to which the regulatory incentives motivate particular private property owners to pursue solar PV systems. The research suggests that, although the regulatory incentives play a significant role in private property owners' decision-making process, the non-regulatory drivers are considered to be the main motivating factor for private property owners pursuing solar PV systems.
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    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.
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    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.