ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 201 – 203
None
ISSN: 1996-2177
Affiliations: Distinguished Professor, H F Oppenheimer Chair in Human Rights Law, Stellenbosch University
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 195 – 200
None
ISSN: 1996-2177
Affiliations: Former Deputy-Vice Chancellor and Dean of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 191 – 195
None
ISSN: 1996-2177
Affiliations: Post-doctoral Fellow in the DST/NRF SARCHhI Research Chair: Mineral Law in Africa, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 159 – 190
When the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’) came into operation, it introduced a new regulatory regime for the South African mining industry. The Act brought an end to a combined system of privately held and state-held mineral rights and statutory authorisations to prospect and mine, and replaced it with a state-controlled system of rights to minerals. This new regulatory system aims to achieve a number of complex, interrelated and, at times, conflicting objectives. One of the objectives of the MPRDA, and an essential component of an investor-friendly environment, is provision of mineral tenure security in respect of prospecting and mining. Following the traditional intersection between private law and public law in South African mineral law, this broad regulatory concept encompasses aspects from both branches of the law. In particular, in South African law, registration and enforceability of rights to minerals, as aspects of mineral tenure security, are closely associated with the rules of private law. The text of the MPRDA seems to foster this association with its express typification of prospecting rights and mining rights as limited real rights. This article evaluates the proposition that, in the current regulatory regime, rights with a proprietary overlay provide better protection (i e mineral tenure security) and temper investors’ fears about insecure rights. The article investigates whether, as far as registration and enforceability of rights are concerned, the private-law nature of rights continues to strengthen mineral tenure security.
ISSN: 1996-2177
Affiliations: Professor of Law, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 121 – 158
South Africa’s forest land, which covers 37 per cent of the country’s surface, is recognised as being under significant threat. This forest land plays a crucial ecological and socio-economic role in supporting the livelihoods of the country’s rural population through the supply of many timber and non-timber forest products. Concerted efforts are accordingly necessary to conserve and manage sustainably this forest land. One key concept to emerge from contemporary global forestry discourse is participatory forest management (‘PFM’). It highlights the important role played by rural communities in promoting sustainable forest management. South Africa sought, through the introduction of the National Forests Act 84 of 1998, to promote, enable and regulate PFM through the conclusion of community forestry agreements (‘CFAs’) between forestry authorities and communities. No CFAs have been concluded to date, and the demise of the forest land continues. This article explores this anomaly, specifically whether it can be attributed to frailties inherent in the legal framework governing CFAs. It begins by reviewing the origins, forms and factors which theorists have identified as influencing the success of PFM initiatives to distil a theoretical legal matrix against which to coherently critique the South African regime. It then shifts to a critical analysis of South Africa’s relevant legal framework, highlighting several options for reforming key elements relating to ownership/rights, scope, process, institutional arrangements, management, use and benefits, and oversight mechanisms.
ISSN: 1996-2177
Affiliations: Associate Professor, Mercantile Law, University of Pretoria
Source: South African Law Journal, Volume 135 Number 1, May 2018, p. 101 – 120
Bearing in mind that the purpose of the derivative action is to empower minority shareholders and other stakeholders to protect the legal interests of the company when those charged with its management wrongfully fail to do so, the class of applicants is vital to the efficacy of the statutory derivative action. This article discusses various aspects of locus standi to institute a derivative action under s 165 of the South African Companies Act 71 of 2008. These include the doctrine of contemporaneous ownership of shares, the continuing interest principle, the multiple derivative action, and the classes of applicants who are given standing to bring derivative actions, the last of which notably embraces trade unions. A comparative approach is adopted that takes into account the leading common-law jurisdictions, including Canada, Australia, the United Kingdom, New Zealand and the United States of America, as well as the laws of Nigeria, Ghana and Botswana.