Abstract

The need to address sustainable development issues in a holistic manner has received international and domestic attention since the adoption of the United Nations Sustainable Development Goals (“SDGs”). Although none of the 17 SDGs focus exclusively on cultural matters, the resulting agenda 2030, makes explicit references to culturally relevant elements of development as crucial enablers of sustainable development. For example, Goal 4: target 7 relates to the appreciation of cultural diversity, and Goal 11: target 4 highlights the need to strengthen efforts to protect and safeguard the world’s cultural and natural heritage. Efforts at protecting natural heritage are implicitly linked to cultural considerations. This study explores the relative connection between cultural issues and biodiversity as a component of the natural environment.

At the domestic level, South Africa’s commitment to sustainable development is constitutionally recognised and transcends environmental interests to economic and social ones. It is argued that a holistic approach to sustainable development in South Africa can be stretched further to accommodate cultural interests because culture, the environment, the economy and social issues are interdependent. The focus of this article is on exploring the existing connections between cultural interests and biological diversity from a legal perspective. The relevance of culture to the sustainability of biodiversity is predicated upon the nexus between human communities and the environment to the extent that biodiversity provides the natural resource base which acts as the critical ecosystem service fundamental for economic and social development. This article concludes that accommodating and integrating cultural-related considerations into the existing legal framework for the conservation, management, and protection of biodiversity is relevant to the pursuance of biodiversity sustainability and the advancement of sustainable development in South Africa.

Abstract

The government employs various methods to achieve the ambitious objectives of the Mineral and Petroleum Resources Development Act, 28 of 2002. One method is to require that holders of rights must comply with certain transformation targets. Transformation targets are achieved, in particular, by requiring that certain percentages of companies that hold rights to minerals are owned by historically disadvantaged South Africans. Another method is to ensure the optimal exploitation of the country’s mineral resources. The opportunities for historically disadvantaged South Africans to enter the mining industry and to benefit from the exploitation of the country’s mineral resources may be compromised if mineral resources are not exploited in a manner that derives maximum benefit. Mawetse (SA) Mining Corporation (Pty) Limited provides an apt opportunity to illustrate the potential of the application and granting procedures contained in the MPRDA to contribute towards realising the transformative objectives of the MPRDA and to advance optimal exploitation of mineral resources. In this case, the court was confronted with two issues. The first issue is directly related to the transformative objectives of the MPRDA: whether an applicant for a prospecting right must comply with Black Economic Empowerment requirements. The second issue is directly related to the optimal exploitation of mineral resources and, therefore, by extension, also to transformation. It concerns the question whether the prospecting right in question lapsed. In reaching its conclusion regarding the lapsing of the right, the court identified three distinct legal processes in the application and granting of rights to minerals. This case note discusses both aspects of the judgment but hones in on how the three legal processes impact on optimal exploitation of mineral resources. We also provide comments on the protection of right holders during the three legal processes. We aim to illustrate, inter alia, that a traditional private law treatment of the application and granting procedures in the MPRDA is not necessarily in the best interest of optimal exploitation of mineral resources or the protection of right holders.

Abstract

A recent study conducted by the CRL Rights Commission produced evidence of commercialisation of religions and financial abuse among some religious organisations in South Africa. The CRL Rights Commission is now recommending to Parliament to further regulate religious organisations in order to guarantee the financial accountability of these organisations. The debate this recommendation has generated, that is, whether there is a need to further regulate religious organisations, is still inconclusive. It is against this backdrop that this discussion analyses the case of The State v Twynham to interrogate whether there is, indeed, a need for further regulation of religious organisations in South Africa. The article maintains that although the facts of Twynham justify the findings of the CRL Rights Commission that some religious organisations have a poor internal control system to effectively manage their finances, they reveal that the extant statutes regulating religious organisations can adequately guarantee sound financial accountability within these organisations. It argues that the problem of financial abuse among these organisations is not inadequate regulations. Rather, it is due to non-compliance on the part of religious organisations and the ineffectiveness of the regulatory bodies to enforce the extant laws.

Abstract

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Abstract

In recent years, exercising the right to strike and other conduct in contemplation or in furtherance of a strike has often caused havoc, with participants engaging in violent acts resulting in damage to property and the intimidation of other people. Like all the rights in the Bill of Rights, the right to strike is not absolute, and can be limited in terms of section 36 of the Constitution. In terms of section 36 of the Constitution, the limitation of the right to strike can take place in terms of laws of general application. Examples of laws of general application discussed in this article are the Regulation of Gatherings Act 205 of 1993 ("RGA") and the Labour Relations Act 66 of 1996 ("LRA"). The article submits that limiting the right to strike, if a strike is violent, could serve the legitimate purpose of maintaining peace and of creating a just society based on human dignity and freedom. If a protected strike degenerates into violence, and, depending on the degree of violence, the Labour Court can be approached to declare the strike unprotected. The immunity from civil prosecution could be lifted, paving the way for the union and its members to be charged with civil action. The LRA provides victims of violent strikes with remedies such as an interdict, just and equitable compensation, and dismissal where the employer is also affected.

Abstract

Under South Africa’s tax laws, trusts are statutory persons imbued with legal personality. As such, a trust has the capacity to bear the duty to pay tax. In addition, it is entitled, as a taxpayer, to such statutory rights as may be conferred by a tax statute. In its capacity as a taxpayer, a trust is subject to the Tax Administration Act 28 of 2011 ("TAA") which confers, on the South African Revenue Service ("SARS"), wide powers to conduct an investigation, audit, review, inspection, search and seizure in relation to any taxpayer, including a trust. The exercise of its administrative powers places SARS and its officials on a collision course with a taxpayer’s rights. This article considers whether a trust, as a taxpayer, is entitled to the fundamental rights entrenched in the Bill of Rights and concludes that it is so entitled.