Browsing by Subject "Mineral Law"

Now showing 1 - 4 of 4
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    Strengthening decision-making processes to promote water sustainability in the South African mining context: the role of good environmental governance and the law
    (University of Cape Town, 2020) Kengni, Bernard; Mostert, Hanri; Young, Cheri-Leigh
    This thesis examines whether the concept of good (environmental) governance provides a useful tool and legal base for the achievement of water sustainability in South Africa's mining sector. The thesis introduces water pollution as one sustainability challenge that South Africa is facing in its mining sector. The main question is how the legal framework should promote and guide water sustainability through good environmental governance. The question results from the fact that mining is a constant threat to water resources. Mining is one of the leading causes of water pollution which adversely affects human life among others when water contaminated with heavy metals is consumed. Farming, as an essential component of food security, is under constant threat in places like Mpumalanga as soils are rendered less productive by mine-contaminated water infiltrating from topsoil or rising from underground mines. Similarly, polluted water adversely affects biodiversity, thus, destroying ecosystems and vegetation which serve as livestock feed. The analysis of sustainability, governance and good governance theories and specific concepts underpinning them shows that they can inform water protection in the South African mining sector. Sustainability, found to be a broad and interdisciplinary concept, is a necessary guideline for the pursuit of water governance in the mining sector. Despite conflicting perceptions or facts regarding sustainability, it is evident that for water to be preserved, sustainable practices are essential. This requires mining activities to be conducted while always minimising the occurrence of water pollution to ensure water sustainability in the South African mining sector. The thesis also expounds that water sustainability pursued through governance practices is likely to be effective in alleviating or preventing water concerns. Thus, the concept of governance is presented as a tool with which individuals or organisations can achieve effective water sustainability, through decision-making, planning and law enforcement. Governance as a concept is complex, multifaceted and interdisciplinary, but can ensure water sustainability and the wellbeing of members of society who depend on the natural environment. The thesis further highlights that water sustainability is more likely when pursued through governance in its best possible form. The concept of good environmental governance is therefore explained as a theory that can guide effective decisionmaking and serve as a tool at the disposal of interested and affected parties to judge the performance of administrative officials. Effective decision-making processes and its elements are to be promoted through cooperative governance, accountability, transparency and public participation, for effective administrative action. The thesis then analyses the South African legal framework and establishes that water governance in the mining sector is extensively catered for therein. The Constitution sets the water sustainability mandate based on which legislation is enacted, both followed by legal interpretation in the courts. The analysis, however, show that there are various shortcomings relating to the implementation and enforcement of the law through administrative action. Nevertheless, the analysis remains hopeful that water sustainability can still be achieved in the mining sector. Despite the existence of environmental provisions and various attempts to achieve water sustainability, the current South African legal framework still fails to control water pollution effectively. The failure may be attributed to the shortcomings of the said framework, but it is, to a larger extent, a result of poor implementation and enforcement. One main reason is less effective administrative action due to inefficient decision-making processes, which implies that the quality of governance regarding water protection in the mining sector is inadequate. Such findings show that water sustainability could have been achieved or improved if decisionmakers had relied fully on good governance principles to implement and enforce provisions aimed at water protection in the mining sector. Hence, this thesis finds that no new regulation is required; rather it suggests a reform of various provisions within the existing legal framework to improve water sustainability. This is subject to improved implementation and enforcement mechanisms.
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    The abandonment of landownership: a proposed model for regulated exit
    (2020) Cramer, Richard Henry; Mostert, Hanri
    The question whether it is possible to abandon landownership is unresolved in South African law. The subject has only rarely been the subject of attention by scholars, with legislation and existing case law providing little in the way of clear guidance. This lack of clarity is obviously not ideal. In South Africa landowners may find themselves burdened with the ownership of land which has accrued a negative value. This thesis seeks to engage with the question on a theoretical level, including to provide answers to practical problems in the South African landownership context. Ultimately two primary questions must be answered: 1. Is the abandonment of landownership possible in the South African legal framework? 2. Should the abandonment of landownership be permitted, and if so, under what circumstances? The first question is evaluated in light of existing common-law principles, case law, as well as legislation such as the Deeds Registries Act 47 of 1937. However, the second question will be the primary focus of the thesis. Through the lens of the socialobligation norm of property as conceptualised by Gregory Alexander, as well as comparative studies of Swiss and Scots law, the thesis explores the viability of a right to abandon landownership in South African law. The thesis argues that the abandonment of landownership in South Africa is not possible in the prevailing legal framework. Furthermore, an unrestricted right to abandon is not viable in the South African socio-economic context. However, landowners who find themselves burdened with land which has accrued a negative value for which they are not at fault may require some form of regulated exit from that ownership. The thesis makes suggestions for legislative law reform in this regard, to provide balance between the interests of landowners and the wider community.
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    Towards a Framework for Regulating the Sustainability of Mine Hospitals: A Legal Perspective
    (2020) Kabuzi, Doreen Nabisere; Mostert, Hanri
    Mining sites are often located in rural and remote communities where healthcare services are either unaffordable or unavailable to mine employees. To address this problem, mining companies may elect to establish and manage mine hospitals to provide vital healthcare services to their employees and the surrounding communities. Mining companies often have the financial capacity to establish state-of-the-art facilities with medical equipment and technology required for the diagnosis and treatment of diseases, including diseases prevalent in the mining industry. The role of mine hospitals extends beyond the development of health infrastructure and the provision of healthcare services. Mine hospitals contribute to the economic development of mine-affected communities. Mine hospitals create employment opportunities that increase disposable income in mine-affected communities and boost local economic activities. Additionally, mining companies can promote local procurement by purchasing goods and services needed for their mine hospitals from local suppliers. Notwithstanding the positive socio-economic impacts of mine hospitals in mineaffected communities, the closure or ownership and management transfer of mine hospitals can have adverse effects on mine-affected communities. These adverse effects include the poor management of mine hospitals, the termination or suspension of healthcare services, and job losses. Therefore, responsible mine hospital closure and transfer practices must be implemented by mining companies to prevent or minimise these adverse effects. This minor dissertation examines the history, role, and function of mine hospitals in mine-affected communities in South Africa. It evaluates the positive and negative (specifically mine hospital closures and ownership and management transfers) impacts of mine hospitals on mine-affected communities. Based on the role and function of mine hospitals and their impacts on mine-affected communities, the dissertation recommends that certain aspects of mine hospitals are governed differently from general private hospitals and standard workplace-based systems. It proposes specific legislative requirements and procedures for the establishment, ownership and management transfer; and closure of mine hospitals. Additionally, the dissertation makes recommendations on the roles of the government, mining companies, and mine-affected communities in the establishment, transfer, and closure processes.
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    Towards a legal framework for preventing tax revenue leakage in the upstream oil and gas industry in Tanzania: an analysis of the concepts, methods and options available in a public trusteeship model of natural resource holding
    (2017) Luhende, Boniphace; Mostert, Hanri; Gutuza, Tracy
    The recent discoveries of natural gas in Tanzania, estimated at about fifty-seven trillion cubic feet (tcf), have sparked tremendous hopes for socio-economic development in the country. While this optimism seems to be supported by conventional wisdom and economic insights, evidence from other oil-rich African countries shows that in spite of the ongoing oil and gas extraction, they are floundering in poverty, corruption and political instability. This phenomenal dichotomy between oil and gas wealth and socioeconomic development is referred to as the "resource curse". As this study demonstrates, the "curse" is partly a result of under-taxation. This study uses the resource curse study to analyze and evaluate tax-related challenges in the Tanzanian upstream oil and gas industry. In doing so, the study identifies three factors that may cause loss of potential tax revenues - referred to as "tax revenue leakage". First, the discretionary tax incentives, such as tax exemptions, lowering tax rates and special tax treatment, result in non-payment of taxes that would have otherwise been payable. Second, the International Oil Companies (IOCs) adopt a variety of techniques, such as transfer pricing, thin capitalization, corporate re-organization tax evasion and treaty shopping to exploit the loopholes or gaps in the tax laws to minimize, reduce or eliminate their tax obligations without being detected or punished. Third, corrupt Government officials willfully fail to collect taxes due, short levy taxes, grant undeserving tax incentives to the IOCs or divert revenues collected for their own account. All these factors demonstrate the close connection between under-taxation, corruption and tax avoidance. As this study argues, in the absence of counteractive measures, the Government will collect only a fraction of potential taxes, thus losing revenues required to finance development projects. The study establishes that Tanzania counteracts tax avoidance and tax evasion through anti-avoidance legislation. Tanzania also has accountability measures, which impose restraints on the exercise of public power and prevent corruption. The study concludes that although Tanzania has a competitive fiscal regime, anti-avoidance legislation and systems of accountability, the level of Government's tax revenue nevertheless depends on institutional capacity to detect, prevent and penalize tax avoidance schemes and corruption.