ISSN: 1996-2177
Affiliations: Johannesburg Bar
Source: South African Law Journal, Volume 135 Number 2, p. 399 – 401
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ISSN: 1996-2177
Affiliations: Stellenbosch University
Source: South African Law Journal, Volume 135 Number 2, p. 393 – 398
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ISSN: 1996-2177
Affiliations: University of Cape Town
Source: South African Law Journal, Volume 135 Number 2, p. 390 – 393
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ISSN: 1996-2177
Affiliations: Member of the Cape and Johannesburg Bars and the Bar of England and Wales; Bencher of the Middle Temple
Source: South African Law Journal, Volume 135 Number 2, p. 379 – 389
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ISSN: 1996-2177
Affiliations: Associate Professor of Law, Deakin University; Visiting Professor, Nelson Mandela University; Advocate of the High Court of South Africa; Member of the National Bar Council of South Africa
Source: South African Law Journal, Volume 135 Number 2, p. 351 – 375
Historical mine dumps are mine dumps that were created before the enactment of the Mineral and Petroleum Resources Development Act 28 of 2002 (‘MPRDA’) and are not (yet) regulated by the MPRDA. The legal principles pertaining to ownership of historical mine dumps are discussed in terms of the common law and the Minerals Act 50 of 1991. In this article, we analyse case law supporting the view that historical mine dumps are not regulated by the MPRDA, as well as the legislature’s recent attempt to regulate historical mine dumps with proposed amendments to the MPRDA. We conclude that the vesting of custodianship of minerals in historical mine dumps (outside a mining area) in the state will not amount to an act of expropriation in light of the decision of the Constitutional Court in Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC). Upon failure by holders of mining rights or mining permits timeously to amend mining work programmes and mining rights to include historical mine dumps (within a mining area), their ownership thereof will be terminated. We argue that the ownership of such mine dumps may then be acquired by appropriation (occupatio). As a result, should the amendments become law, we foresee a conflict between holders of mining rights or mining permits and illegal miners and marginalised communities.
ISSN: 1996-2177
Affiliations: Associate Professor in the Department of Commercial Law, University of Cape Town; Professor in the Department of Commercial Law, University of Cape Town; Director, Allen & Overy, South Africa
Source: South African Law Journal, Volume 135 Number 2, p. 324 – 350
In this article, we discuss the current state of Alternative Dispute Resolution (‘ADR’) law, practice and education in South Africa, with a particular focus on the potential role for mediation in commercial disputes. Our angle is to frame the material with a discussion of economic and contract theory, particularly that on private ordering and relational contracting. We link this socio-legal theory to more specific theory on ADR itself, and then contextualise ADR in South Africa. We discuss the role of ADR in commercial practice generally and provide a detailed account of the South African construction industry specifically. Our major conclusion is that ADR is often the most appropriate form of dispute resolution, particularly where social capital is at stake. This provides the link between ADR theory and private ordering/relational theory. Another important conclusion is that South Africa needs more specialist mediators, as well as a legal and political environment which incentivises such training.