scholarly journals Mining Community Development in South Africa: A Critical Consideration of How the Law and Development Approach the Concept “Community”

2019 ◽  
Vol 12 (2) ◽  
pp. 561-593
Author(s):  
Anri Heyns
Keyword(s):  
South Africa ◽  
Community Development ◽  
South African ◽  
Mining Industry ◽  
The South ◽  
Conceptual Approach ◽  
Mining Communities ◽  
Mining Companies ◽  
The Law ◽  
Development Approach

Abstract The legislative system that provides for the socio-economic development of mining communities in South Africa has been under significant scrutiny in recent times. Various instances of conflict between mining communities and mining companies, of which the Marikana Massacre of 2012 is certainly the most noteworthy, show that mining communities expect mining companies to contribute more to the improvement of their living conditions. The relationship between mining communities and mining companies are exposed to the various socio-economic challenges that other sectors of the South African economy currently face. However, considering the legislative system in the mining industry specifically and in terms of a conceptual approach may show to the unique challenges the industry faces when it comes to mine community development. A conceptual approach requires asking whether the way in which the legislative system is framed and the rhetoric it promotes do not create expectations with mining communities that cannot be met by mining companies, because mining communities are not accurately depicted in the legislative system. The legislative system promotes “mine community development” by means of a complex interaction between various pieces of legislation and policy guidelines. At the centre of this interaction are the definitions of “community” and “mine community”. These definitions have been amended quite a few times since the enactment of the legislative system, attesting to the difficulty for the law to capture “community”. The latest iterations of the definitions are criticised for their ambiguity, causing uncertainty as to who should benefit from mine community development. This paper proposes that there is a conceptual problem when catering for communities, and not individuals, in a development paradigm, posing challenges for accurately defining “community”. It is not argued that community development should not be promoted, but a possible reason for why mine community development is not successful is proposed. The South African mining legislative system will be considered in parallel with relevant international legal instruments.

Three Mining Charters and a Draft: How the Politics and Rhetoric of Development in the South African Mining Sector are Keeping Communities in Poverty

2018 ◽  
Vol 11 (2) ◽  
pp. 801-841
Author(s):  
Anri Heyns ◽  
Hanri Mostert
Keyword(s):  
Community Development ◽  
South African ◽  
Mining Industry ◽  
The South ◽  
Mining Communities ◽  
Mining Companies ◽  
Mining Community ◽  
Black Economic Empowerment ◽  
Economic Landscape ◽  
Development Paradigm

Abstract In the postapartheid South African economic landscape, the idea of “empowerment” has been given special meaning in the concept “black economic empowerment,” or BEE. BEE serves as a vehicle for the transformation of the South African economy in general by promoting, amongst other things, increased black ownership and management of businesses, skills development and rural community development. These empowerment aspirations are also pursued in the mining industry in terms of the Mining Charter. The development of mining communities is one of the main features of empowerment in the mining industry. An analysis of the various versions of the Mining Charter shows a certain progression in the approach to the empowerment and development of rural mining communities: There is an increased emphasis on the poverty still faced by these communities, years after the introduction of the first Mining Charter. The question is whether the increased emphasis will mean much for mining communities. This article argues that the empowerment of mining communities in terms of the Mining Charter can be situated in the development paradigm and is subjected to the politics of development. For the purposes of this article, the politics of development refer to the underlying political and ideological assumptions of the idea of development, which have consequences for how a development problem is framed and the development beneficiary is represented. Inevitably, the problem faced by development beneficiaries is reduced to mere poverty, showing how the politics of development will affect how development solutions are constructed. Regarding the Mining Charter specifically, the politics of development causes uncertainty as to who may benefit from community development initiatives. The inability to identify or demarcate the mining community accurately means that the drafters of the Mining Charter can only employ poverty alleviation rhetoric. The rhetoric creates expectations with mining communities that mining companies cannot meet, placing significant pressure on the already volatile relationship between mining companies and mining communities.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

scholarly journals Unpacking the Law and Practice Relating to Parole in South Africa

2017 ◽  
Vol 14 (5) ◽  
pp. 204
Author(s):  
Jamil D Mujuz
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Early Release ◽  
Correctional Services ◽  
The Law ◽  
Parole System

The possibility of the early release of offenders on parole is meant to act inter alia as an incentive to ensure that prisoners behave meritoriously while serving their sentences. The South African Correctional Services Act No.111 of 1998 deals with the release of offenders on parole. This article discusses the jurisprudence emanating from South African courts dealing with various aspects of parole. In particular, the article deals with the following issues: parole as a privilege; the role of the executive and the legislature in the parole system; the period to be served before an offender is paroled; the stipulated non-parole period; and the courts’ intervention in releasing prisoners on parole.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

scholarly journals Assessing the potential impact of the Marikana incident on South African mining companies: An event method study

2015 ◽  
Vol 18 (4) ◽  
pp. 586-607 ◽  
Author(s):  
Nicholas Hill ◽  
Warren Maroun
Keyword(s):  
Corporate Social Responsibility ◽  
Social Responsibility ◽  
South African ◽  
Mining Industry ◽  
The South ◽  
Statistical Research ◽  
Share Prices ◽  
Mining Companies ◽  
Potential Impact ◽  
Corporate Social

This study examines the potential impact of industrial unrest and the outbreak of violence at Marikana on 16 August 2012 on the share prices of mining companies listed on the Johannesburg Stock Exchange (JSE) using an event methodology. Contrary to expectations, the Marikana incident does not appear to have had a widespread and prolonged effect on the South African mining sector. This may be the result of the strike action already having been discounted into the price of mining shares, implying that the market was only reacting to the unusually violent (but short-lived) protest. Alternately, the results could be indicative of investor confidence in the corporate social responsibility initiatives of the South African mining industry as a whole. This paper is the first to examine the potential impact of the Marikana incident on the share prices of mining companies listed on the JSE. It should be of interest to both academics and practitioners wanting to understand how share prices react to exogenous events. It is also relevant for corporate-governance researchers concerned with the relevance of social and governance practices in a South African setting. This research is faced with the limitations associated with most statistical research: that causality cannot be ascribed to tested relationships. Notwithstanding these limitations, it is argued that these findings are important, given the significant coverage of the Marikana incident and the ongoing debate on the need for corporate social responsibility.

MODERN FREEDOM OF TESTATION IN SOUTH AFRICA: ITS APPLICATION BY THE COURTS

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Patrick Matsemela
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Bill Of Rights ◽  
The South ◽  
Central Thesis ◽  
Locus Standi ◽  
Statutory Law ◽  
The Law

Freedom of testation is considered to be one of the founding principles of the South African law of testate succession. Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit. As a result, effect must be given to the expressed wishes of the testator. Prior to 1994, such freedom could be limited only by common law or statutory law; more recently, such freedom has been tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or is deemed to be unconstitutional.Having regard to the unfair discrimination provisions of section 9(3) of the Final Constitution, can a court enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability? Will such clause pass the test of constitutionality, be justified or considered to achieve a legitimate objective? Can potential beneficiaries or anyone who has locus standi challenge the freedom of testation by relying on the freedoms and rights entrenched in the Bill of Rights? It is against this background that the paper attempts to answer these questions and explore the extent to which the Constitution has an impact on freedom of testation. The central thesis of the article is to determine whether clauses in wills or trust instruments which differentiate between different classes of beneficiary can be deemed to be valid. This is done by looking at several more recent cases that have appeared before our courts.

Sexual Harassment: The South African Perspective

2005 ◽  
Vol 7 (1-4) ◽  
pp. 229-251
Author(s):  
Sandra Govender
Keyword(s):  
South Africa ◽  
Sexual Harassment ◽  
South African ◽  
Crucial Role ◽  
The South ◽  
Positive Duty ◽  
African Perspective ◽  
The Creation ◽  
The Law

Sexual harassment is not a new phenomenon in South Africa but until recently nothing significant was done to address it. The problem is currently being addressed through legislation aimed at prevention and eradication. Sexual harassment in the employment environment is an area of great concern. With the advent of new legislation a positive duty has been placed on employers to take steps to combat the problem. Cases have already been brought before the South African courts in terms of the new legislation and the courts have shown no hesitation in implementing the law. Recent decisions have spelt victory for victims of sexual harassment whilst sending out a clear message to perpetrators and employers. The approach adopted by the courts is a laudable one. The scene has been set in South Africa for the eradication of sexual harassment. The last step is the creation of a culture of non-victimisation. Employers have a crucial role to play as far as their employees are concerned. New legislation does address this issue but awareness is necessary to enable individuals to exercise their rights without fear of victimisation. This is of paramount importance if the various pieces of legislation are to achieve their objectives.

The education and professional practice of valuers in South Africa: a critical review

2015 ◽  
Vol 33 (3) ◽  
pp. 245-274 ◽  
Author(s):  
Manya Mainza Mooya
Keyword(s):  
South Africa ◽  
South African ◽  
International Norms ◽  
Professional Status ◽  
The South ◽  
Online Questionnaire ◽  
Conceptual Approach ◽  
South African Council ◽  
Content Type ◽  
Academic Qualification

Purpose – Uniquely among the built-environment professions in the country, professional valuers in South Africa until recently did not require to have a university degree. The vast majority of professional valuers therefore, especially at senior levels, hold the national diploma as the highest academic qualification. There is evidence to suggest that many regard this state of affairs as unsatisfactory. Given the foregoing, the purpose of this paper is to answer two interrelated questions, first, whether South African trained and educated valuers were “competent” and met industry standards, and, second, whether the South African valuation curriculum met international norms. Design/methodology/approach – Empirical data for the study were obtained by way of a survey of valuers registered on the South African Council of the Property Valuers Profession (SACPVP) database and a case study of the University of Cape Town’s valuation curriculum. The survey involved the mailing of an online questionnaire, using the “Survey Monkey platform”, to 2,062 individuals, representing the total population of valuers registered with the SACPVP, across all registration categories. A total of 324 individuals, or 15.7 per cent of the target population, responded to the survey. Findings – Results from the study on the first question showed that it was professional status and length of experience, rather than academic qualifications, which correlated with competence. In addition, the results suggest that there are grounds for concern regarding proficiency in at least some of the valuation methods across the board. Further, the study revealed significant levels of dissatisfaction amongst employers with the general competence of valuers under their supervision. On the second question, the study concludes that the South African valuation curriculum did not meet international norms in terms of certain criteria. Practical implications – The paper recommends a review of the South African valuation curriculum; to allow for a differentiation between the different academic levels, to facilitate a more conceptual approach at the higher levels, and to close the identified gaps in knowledge and skill-sets arising from both a deficient curriculum and a changing industry landscape. Originality/value – At a time when attempts are being made to improve standards in the South African valuation profession, the study makes a critical contribution, by identifying areas where the national curriculum is deficient, both in terms of industry requirements and relative to international norms.

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