scholarly journals TRANSITIONAL PROSPECTING RIGHTS: A MORATORIAL ESCORT ACROSS THE BRIDGE? De Beers Consolidated Mines Ltd v Regional Manager, Mineral Regulation Free State Region: Department of Minerals and Energy Case 1590/2007 (OPD) Unreported (15-05-2008) (“De Beers (2)

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
South Africa ◽  
The State ◽  
Free State ◽  
New Mineral ◽  
Old Order ◽  
Petroleum Resources ◽  
De Beers ◽  
State Region ◽  
The Right ◽  
Resources Development

On 1 May 2004 the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) not only introduced a new mineral law regime in South Africa but also made provision in the transitional arrangements of Schedule II to the MPRDA for the conversion of so-called “old-order rights” into (or application for) prospecting or mining rights in terms of the MPRDA. This decision dealt with the duration or term of transitional prospecting rights and the remedies available to a holder of an “old-order prospecting right” upon refusal by the state functionaries to convert the right into a prospecting right in terms of the MPRDA. Item 6 of the transitional arrangements makes provision for the continuation and conversion of “old-order prospecting rights”.

The nature and features of ‘unused old order rights’ under the MPRDA revisited: The story of Gouws’ farm

2021 ◽  
Vol 138 (3) ◽  
pp. 599-616
Author(s):  
Pieter Badenhorst
Keyword(s):  
Mineral Resources ◽  
The State ◽  
Constitutional Court ◽  
Old Order ◽  
The Poor ◽  
Petroleum Resources ◽  
Constituent Elements ◽  
Resources Development

This article examines the nature and features of ‘unused old order rights’ (‘UOORs’) under item 8 of Schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 in light of the recent decision by the Constitutional Court in Magnificent Mile Trading 30 (Pty) Ltd v Celliers 2020 (4) SA 375 (CC). At issue was: (a) whether an UOOR was transmissible to heirs upon the death of its holder; and (b) the applicability of the Oudekraal principle to the award of an unlawful prospecting right to an applicant, contrary to the rights enjoyed by the holder of an UOOR. The article analyses the constituent elements of an UOOR, rights ancillary to the UOOR’s and the nature and features of UOORs and ancillary rights. The article also considers the possible loss of an UOOR by application of the Oudekraal principle due to the unlawful grant of a prospecting right by the state, as custodian of mineral resources. The article illustrates that the CC ensured in Magnificent Mile that the Oudekraal principle does not undermine the security of tenure and statutory priority afforded to holders of UOORs by ultra vires grants of inconsistent rights to opportunistic applicants. Concern is also expressed about the poor administration of mineral resources by the Department of Mineral Resources and Energy.

scholarly journals PAYING THE PIPER (IN PRAESENTIA) Xstrata South Africa (Pty) v SFF Association 2012 (5) SA 60 (SCA)

Obiter ◽  
2021 ◽  
Vol 34 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
Mining Industry ◽  
Mineral Resources ◽  
The State ◽  
Mining Operations ◽  
South Africans ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
The Right ◽  
Mining Right

This decision is an appeal from the decision of the South Gauteng High Court in SFF Association v Xstrata (2011 JDR 0407 (GSJ)). The court a quo decided incorrectly that the holder of an old-order mining right, which was converted into a (new) mining right in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (the “Act”), remains liable upon conversion for the payment of (contractual) royalties in terms of a mineral lease, which was concluded prior to enactment of the Act. The appeal was upheld by the Supreme Court of Appeal (“SCA”) (2012 (5) SA 60 (SCA) par 27). The decision was rendered by Wallis JA with the other judges concurring with his judgment. Prior to the Act mineral-right holders could grant a mining right to a miner against payment of royalties or other forms of consideration. At issue on appeal was whether the obligation to pay royalties in terms of a mineral lease “survives the introduction of the new regime in respect of mining rights brought about by the Act”. As indicated by the SCA, the Act fundamentally changed the legal basis upon which rights to minerals are acquired and exercised. Previously mineral rights were vested in the owner of land or the holder of mineral rights, which rights could be exercised upon acquisition of a statutory authorization to exploit the minerals. In terms of the new regime, common-law mineral rights were destroyed and “all mineral resources vested in the state as the custodian of such resources on behalf of all South Africans”, whereupon the state could confer the right to exploit such resources to applicants. Upon granting a mining right in terms of the Act (statutory) royalties have become payable to the state since 1 March 2010 of the Act and the Mineral and Petroleum Resources Royalty Act 28 of 2008. In order to prevent disruption of the mining industry, provision was made in the Act for the continuation of old-order rights for different transitional periods ranging from one to five years and conversion of such rights during the periods of transition. The transitional arrangements in Schedule II of the Act (“transitional arrangements”) inter alia ensured security of tenure of prospecting rights and mining rights and enabled holders thereof to comply with the Act. In particular, an old-order mining right remained valid for five years “subject to the terms and conditions under which it was granted” (item 7(1) of the transitional arrangements) and could be converted into a new mining right (item 7(2) of the transitional arrangements) if certain requirements were met. The applicant had to have: (a) met the requirements for lodgement of application for conversion; (b) conducted mining operations in respect of the mining right; (c) indicated that he would continue to conduct such mining operations upon conversion of the mining right; (d) had an approved environmental management programme; and (e) paid the prescribed conversion fee (item 7(3) of the transitional arrangements). To recap, the Xstrata decision dealt with an old-order mining right that had been converted into a (new) mining right and the effect of these statutory changes on rights to royalties which accrued to a former holder of mineral rights by virtue of a mineral lease. 

scholarly journals PAYING THE PIPER (IN ABSENTIA) SFF Association v Xstrata 2011 JDR 0407 (GSJ)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
PJ Badenhorst
Keyword(s):  
South Africa ◽  
Common Law ◽  
The State ◽  
Old Order ◽  
Petroleum Resources ◽  
Mineral Rights ◽  
One Step ◽  
The Common ◽  
Mining Right ◽  
The Impact

This decision focused on the impact of the Mineral and Petroleum Resources Development Act (28 of 2002, hereinafter “MPRDA”) on an old-order mining right (based upon a mineral lease) which had been converted into a mining right in terms of the transitional arrangements of Schedule II of the MPRDA. In particular, the court held that consideration in the form of a (contractual) royalty, as provided for in the mineral lease, remains payable upon conversion of an old-order mining right by its former holder (miner) to the grantor of the common-law mining right. The outcome of the decision, namely, continued liability for contractual royalties, has far-reaching consequences for such former holders of old-order mining rights. Continued liability would result in double payment of royalties by miners. This is because under the new dispensation, statutory royalties can be imposed by the state (s 3(1)(b) of the MPRDA) and were imposed and became payable upon commencement of the Mineral and Petroleum Resources Royalty Act (28 of 2008) on 1 March 2010. From the said date, in terms of this decision, double royalties would be payable by miners. If correct, it can be taken one step further. Owing to continued receipt of contractual royalties, former holders of common-law mineral rights would not have suffered an expropriation of property by virtue of the provisions of the MPRDA for purposes of item 12(1) of Schedule II of theMPRDA. Such expropriation would have taken place if the contractual duties to pay royalties had indeed been terminated upon cessation of old-order mining rights (as to such a possible claim, see further, Badenhorst and Mostert Mineral and Petroleum Law of South Africa 2004 (Revision service 7) 25–53). These consequences will be explained in more detail in this discussion as well as the correctness or not of the decision. I have written about the acquisition, nature, content, transfer and loss of old order rights before (see Badenhorst “The Make-up of Transitional Rights to Minerals: Something Old, Something New, Something Borrowed, SomethingBlue …? 2011 4 SALJ 763–784) to which the reader is referred. This decision sheds new light on this topic. 

The 1992 Referendum in South Africa

1993 ◽  
Vol 31 (2) ◽  
pp. 339-360 ◽  
Author(s):  
Annette Strauss
Keyword(s):  
South Africa ◽  
Democratic Party ◽  
Conservative Party ◽  
The State ◽  
Reform Process ◽  
Election Campaign ◽  
Right Wing ◽  
National Party ◽  
White Voters ◽  
The Right

The ruling National Party (N.P.) asked white voters during the 1989 election campaign for a mandate to negotiate with all concerned about a new constitution, an undivided South Africa, one citizenship, equal votes, protection of minorities, and the removal of stumbling blocks such as discrimination against people of colour.1 Although the N.P. achieved a cleat majority – 93 seats against 39 for the Conservative Party (C.P.) and 33 for the Democratic Party (D.P.) – the right-wing opposition made destinct progress by gaining 17 seats. After the C.P had captured a further three from the N.P. in by-elections, including Potchefstroom in February 1992, President F. W. de Klerk announced in Parliament that whites would be asked the following month to vote in a referendum in order to remove any doubts about his mandate. The carefully worded question which the electorate had to answer was as follows: Do you support continuation of the reform process which the State President began on February 2, 1990 and which is aimed at a new constitution through negotiation?

scholarly journals What has the Constitutional Court Given Us? Afriforum v University of the Free State 2018 (4) BCLR 387 (CC)

Obiter ◽  
2019 ◽  
Vol 40 (3) ◽  
Author(s):  
Mokgadi Margaret Mokgokong ◽  
Moses Retselisitsoe Phooko
Keyword(s):  
Higher Education ◽  
South Africa ◽  
South African ◽  
Further Education ◽  
The State ◽  
Constitutional Court ◽  
Official Language ◽  
National Party ◽  
The Right ◽  
To Receive

The history of South Africa is an unpleasant one. It was a society based on racial segregation with the promotion of Afrikaner culture and the Afrikaans language above all other languages. This can be traced to the architect of apartheid, the Afrikaner National Party, which introduced apartheid. Afrikaans-speaking people, through the Afrikaner National Party, dominated South Africa politically. Their language too, was promoted above all other languages. For example, Afrikaans enjoyed more privileges than other languages in that it was used for drafting laws, as the language of record in the courts and was also the only compulsory subject for learning. The apartheid government, through its racial policies, used the Afrikaans language as a tool to control Black South Africans in almost all spheres of life, including education, which had to be undertaken in Afrikaans. It is therefore no surprise that there were five universities that offered education mainly in Afrikaans. These are Stellenbosch University, University of the Free State, University of Pretoria, Potchefstroom University for Christian Higher Education (now North-West University) and Randse Afrikaanse Universiteit (now University of Johannesburg). The use of the Afrikaans language as an instrument for social control was not sustainable. The new constitutional dispensation ushered in an era wherein respect for fundamental human rights and freedoms is at the top of the South African agenda. The right to further education is constitutionally recognised in section 29(1)(b) of the Constitution of the Republic of South Africa, 1996. Section 29(2) of the Constitution further recognises and embraces the diversity of South African society and provides that “everyone has the right to receive education in the official language or languages of their choice in public education institutions where that education is reasonably practicable” (s 29(b) of the Constitution). The State has an obligation to take reasonable measures on a progressive basis to ensure that further education is available and accessible (s 29(1)(b) of the Constitution). In ensuring “effective access to and implementation” of the right to further education, It is notable that, in its endeavour to make further education available and accessible, the State is required to consider several factors such as language policies. In an effort to facilitate the realisation of the right to further education, the Higher Education Act (101 of 1997) was enacted in order inter alia to “redress past discrimination and ensure representivity and equal access to higher education institutions” (preamble to the Act).In the UFS case (CC), the Constitutional Court applied section 29(1)(b) of the Constitution, which provides for the right to further education and the “right to receive education in the official language or languages of [one’s] choice”. This note centres on this decision and seeks to critically discuss and analyse both the majority and minority decisions of the Constitutional Court. The question presented is whether the Constitutional Court has given the public a solution to the issue surrounding the use of either Afrikaans or English as a language medium of instruction in the higher education sector and what the effect of this has been on the development of other languages. The case note is divided into five sections. The facts of the case, the issues put before the court for consideration and the finding of the court are discussed in part 2. Part 3 contains an analysis of the minority and majority judgments. Part 4 considers whether the court has given us any solutions. Part 5 sets out the authors’ recommendations and their conclusions.

3 The Supreme Court and the Irish Free State

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Supreme Court ◽  
The State ◽  
Free State ◽  
Privy Council ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Irish Free State ◽  
The Right ◽  
The Way

This chapter considers the performance of the Irish Supreme Court during the life of the Irish Free State (1922–37). It charts the way in which the right to appeal from the Supreme Court to the Privy Council was abolished (comparing the position in other Dominions) and shows that, despite the rhetoric of Irish politicians at the time, the judges were keen to uphold the British approach to the doctrine of parliamentary sovereignty. The chapter then describes some of the emergency legislation enacted in the Free State to combat republican violence and examines how it was viewed by the Supreme Court, most notably in the very deferential (albeit split) decision in The State (Ryan) v Lennon. The chapter sums up the Court’s performance during the existence of the Irish Free State as disappointing and uninspiring.

scholarly journals The utilisation of the right of children to shelter to alleviate poverty in South Africa

2017 ◽  
Vol 7 (1) ◽  
pp. 107
Author(s):  
I Mc Murray ◽  
L Jansen Van Rensburg
Keyword(s):  
South Africa ◽  
Health Care ◽  
Human Dignity ◽  
Health Care Services ◽  
The State ◽  
Economic Rights ◽  
Care Services ◽  
The Republic ◽  
The Right ◽  
Right Of Access

Children being the most vulnerable members of society are the one's most affected by living in poverty. This unacceptable situation can inter alia be attributed to the disastrous effects of Apartheid. During this unfortunate period in our nation's history millions of people were unjustly evicted from their homes and forced to live in deplorable conditions. Moreover, many of these people were left homeless or without the necessary adequate shelter. Children who were born into these circumstances were denied basic resources such as proper shelter, food, water and health care services. These unfortunate circumstances existed at the adoption of South Africa 's democratic Constitution. The preamble of the Constitution of the Republic of South Africa , 1996 reaffirms government's commitment to heal the inequalities of the past and improve the quality of life of all citizens. The Constitution is based on certain fundamental values, most importantly, human dignity, freedom and equality. The fact that these values are denied to those people living without access to basic resources such as adequate housing/shelter, food, water or health care services cannot be dismissed. To facilitate South Africa 's development as a democratic state based on human dignity, freedom and equality, the problem of poverty must be addressed. The Constitutional Court , in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC), has recently stated that the effective realisation of socio-economic rights is key to the advancement of a value based democratic South Africa . Section 26 of the Constitution grants everyone the right to have access to adequate housing and section 28 that grants every child the additional right to basic shelter among others. By virtue of section 28(1)(b) the primary responsibility to provide children with the necessary adequate housing/shelter is vested in their parents, unless the parents are unable to fulfil their duty or the children are removed from their care. This does not in the least mean that the state has no responsibilities to children living with their parents. The state must still provide the framework in which parents can facilitate the realisation of their children's rights. The state can fulfil this obligation by taking reasonable legislative and other measures within its available resources to realise everyone's right of access to adequate housing progressively.  Therefore, it is submitted that the measures taken to realise section 26 also indirectly ensures the realisation of children's right to basic shelter (section 28(1)(c)). It has been largely accepted by the courts and academics alike that all fundamental human rights are indivisible and interrelated. Clearly then, the state's obligations in terms of section 28(1)(c) cannot be properly interpreted without referring to the interpretation of those obligations conferred upon it by section 26(2) and the other socio-economic rights in the Constitution. Hence, section 28(1)(c) must be seen in the context of the Constitution as a whole. Put simply, the state must take reasonable legislative and other measures within its available resources to realise children's right to basic housing/shelter progressively. This article will focus on the utilisation of the right to shelter of the child to alleviate poverty. Essential to this discussion is an effective understanding of the right to basic shelter as entrenched by section 28 of the Constitution in conjunction with the right of access to adequate housing conferred on everyone by virtue of section 26. This will be achieved by studying the general working of such rights including their limitations and enforcement. 

Archaeology and the Liberal Revolutions (c. 1820–1860): Nation, Race, and Language in the Study of Europe’s Past

2007 ◽  
Author(s):  
Margarita Diaz-Andreu
Keyword(s):  
Nineteenth Century ◽  
French Revolution ◽  
The State ◽  
Ancien Regime ◽  
Early Nineteenth Century ◽  
Territorial Expansion ◽  
Old Order ◽  
Financial Growth ◽  
The Right ◽  
Ancien Régime

There was no return to the Ancien Régime after Napoleon’s downfall in 1815. Firstly, the early nineteenth-century economy was increasingly strengthened by the industrial, imperial and trading expansion of the European powers throughout the world (Chapters 5 to 10), which helped to stimulate Western Europe’s financial growth. Adding immeasurable impetus to this movement was the territorial expansion of Russia and the US, and later in the century other countries such as Japan contributed by broadening their frontiers manifold (Chapters 9 and 10). Factors such as these accelerated the enlargement and aspirations of the middle classes, who were precisely the group leading most of the revolutionary activity in the first half of the nineteenth century. Secondly, the reforms in administration made the state machine more efficient than that of the Ancien Régime and this impeded a full restoration of the old order. Also, for the efficient functioning of the state, the enthusiasm with which educated individuals identified with the nation was extremely important to ensure their loyalty. The late eighteenth and early nineteenth-century socio-political revolutions had brought a series of new meanings to concepts such as conservatism, liberal, democrat, party, and the distinction between left and right (Roberts 1996: 21). For example, liberalism was a doctrine that favoured ‘progress’ and ‘reform’. It was also linked with the type of nationalism that the French Revolution had promoted with the sovereignty of nations and the belief that all citizens were equal in the eyes of the law (although at this time ‘citizenship’, as propagated by the proponents of this doctrine, mainly meant the prosperous classes and male citizens). For progressive liberals, it was not only the established states that had the right to be a nation. The nationalist sentiments and claims by Greeks, Slovaks, Czechs, Brazilians, Mexicans, Hungarians, and a myriad of would-be nations, illustrate the growth of the widespread notion of nationhood that reached to other people with distinctive pasts and cultures. Liberals also had to confront, or negotiate with, the reactionary forces that brought down Napoleon in 1815. They were mainly made up of the nobility, and also supported by conservative intellectuals.

An American Looks At Kairos

1986 ◽  
Vol 43 (2) ◽  
pp. 217-228
Author(s):  
A. Roy Eckardt
Keyword(s):  
South Africa ◽  
South African ◽  
The State ◽  
Social Gospel ◽  
Christian Tradition ◽  
Black Liberation ◽  
The People ◽  
American Black ◽  
State Of Affairs ◽  
The Right

“According to a long-standing Christian tradition relating to oppression, a particular tyrant or a particular tyrannical regime ‘forfeits the moral right to govern and the people acquire the right to resist.’ And this is the state of affairs in today's South Africa… Radical South African liberation thinking-praxis goes much farther than the non-revolutionist Social Gospel tendencies of much American black liberation thinking.”

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