Application and Granting of Rights to Minerals: A Trio of Legal Processes for Optimal Exploitation and Protection of Right Holders [An Analysis of Minister of Mineral Resources V Mawetse (SA) Mining Corporation (Pty) Ltd 2016 1 SA 306 (SCA)]

by | Jul 21, 2020 | SLR, SLR V30 I2

Application and Granting of Rights to Minerals: A Trio of Legal Processes for Optimal Exploitation and Protection of Right Holders [An Analysis of Minister of Mineral Resources V Mawetse (SA) Mining Corporation (Pty) Ltd 2016 1 SA 306 (SCA)]

Authors Heleen van Niekerk & Godknows Mudimu

ISSN: 1996-2193
Affiliations: BCOM LLB LLM (UJ) PhD (UCT), Post-doctoral Fellow: DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town; B Soc Sci LLB (Rhodes) LLM (UCT), Postgraduate Researcher, DST/NRF SARChI Research Chair: Mineral Law in Africa, Faculty of Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 30 Issue 2, 2019, p. 281 – 298

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.

The State V Twynham: The (Ir)Relevance of Further Regulation of Religious Organisations in South Africa

by | Jul 21, 2020 | SLR, SLR V30 I2

The State V Twynham: The (Ir)Relevance of Further Regulation of Religious Organisations in South Africa

Authors Helena van Coller & Idowu A Akinloye

ISSN: 1996-2193
Affiliations: LLB LLM (UFS) LLM (Utrecht) PGDHE LLD, Associate Professor, Faculty of Law, Rhodes University, South Africa; BTh LLB LLM, PhD Candidate, Faculty of Law, Rhodes University, South Africa
Source: Stellenbosch Law Review, Volume 30 Issue 2, 2019, p. 299 – 314

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.

An Evaluation of the Limitation of the Right to Strike in Terms of the Law of General Application in South Africa

by | Oct 28, 2019 | SLR, SLR V29 I3

An Evaluation of the Limitation of the Right to Strike in Terms of the Law of General Application in South Africa

Authors Mlungisi Tenza

ISSN: 1996-2193
Affiliations: Lecturer, University of KwaZulu-Natal
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 471 – 492

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.

Are Trusts Holders of Fundamental Rights During Tax Administration by SARS?

by | Oct 28, 2019 | SLR, SLR V29 I3

Are Trusts Holders of Fundamental Rights During Tax Administration by SARS?

Authors Fareed Moosa

ISSN: 1996-2193
Affiliations: Head of Department: Mercantile and Labour Law, University of the Western Cape
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 453 – 470

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.

Delictual Interference with a Contractual Relationship: Country Cloud Trading CC v Mec, Department of Infrastructure Development (CC)

by | Oct 28, 2019 | SLR, SLR V29 I3

Delictual Interference with a Contractual Relationship: Country Cloud Trading CC v Mec, Department of Infrastructure Development (CC)

Authors Deeksha Bhana, Charmika Samaradiwakera-Wijesundara

ISSN: 1996-2193
Affiliations: Professor of Law, University of the Witwatersrand; Lecturer in Law, University of the Witwatersrand
Source: Stellenbosch Law Review, Volume 29 Issue 3, 2018, p. 430 – 452

Abstract

Country Cloud Trading CC v MEC, Department of Infrastructure Development ("Country Cloud (CC)") is a significant case in so far as it concerns the intersection between contracts and a delict, which moreover involves the conduct of a state entity. In this article, we focus first on the contracts by scrutinising the CC’s judgment from a contractual perspective. Thereafter, we examine the court’s approach to the potential delict in the form of an intentional interference with a contractual relationship. In the course of doing so, we also reflect on the precise interplay between contract and delict in this particular scenario and argue that it does not hinder an expanded appreciation of what constitutes an intentional interference with a contractual relationship causing pure (relational) economic loss that gives rise to a delictual remedy. Rather it is in keeping with our law’s "generalising approach" to delicts. In the end, we contend that Country Cloud ought to have had a remedy against the Department both in terms of the law of contract as well as the law of delict. Unfortunately, the continued lack of legal clarity on what concurrence actually entails caused considerable confusion in the judgment which ultimately left Country Cloud without recourse.