The Meidner Plan

A Swedish labor economist called Rudolf Meidner, who played a major role in the construction of the highly successful Swedish welfare state in the 1960s and early 1970s, came up with what became known as the Meidner Plan.

Confronting inflation, the powerful trade unions were urged to exercise collective wage restraint. In return, the extra profits (surplus-value) that would accrue to capital because of that restraint would be taxed away and placed in a worker-controlled social-investment fund that would purchase shares in capitalist corporations. The shares purchased were deemed untradeable, and over time … control over the corporation would pass over to the social-investment fund. In other words, the capitalist class would quite literally be bought out (peacefully) over time and replaced by total worker control over investment decisions.

The plan was greeted with horror by the capitalist class … The social-democratic government of the time got cold feet and never attempted to implement the plan. But when you think about it, the idea (much more complicated in its details, of course) is broadly consistent with Marx’s argument, at the same time as it offers a peaceful way to buy out capitalist class power. So why not think more about it?

David Harvey, Companion to Marx’s Capital: the Complete Edition, Chapter 9

Privately Prosecuting Companies that Don’t Comply with Environmental Standards

In April 2019 the South African High Court convicted BP Southern Africa on 16 criminal charges. The charges stemmed from BP’s alleged non-compliance with environmental laws when constructing and upgrading petrol filling stations. It was alleged that BP didn’t have the necessary environmental authorisations in place before it started construction, which is a criminal offence.

This case is noteworthy because BP’s criminal prosecution wasn’t done by the state. The criminal prosecution was done privately; brought by Uzani, an environmental advocacy group, and argued by legal advocates.

Background facts

The facts showed that BP started construction and upgrading of petrol filling stations before it had been granted environmental authorisations in terms of the Environment Conservation Act (ECA). After BP realised the contravention, it lodged an application in terms of the National Environmental Management Act (NEMA) to remedy the non-compliance. This process is used routinely by companies once they realise that their operation are not fully compliant.

This procedure allows a non-compliant company to submit an application for a new environmental authorisation to remedy the situation (NEMA section 24G). The application isn’t, however, without risk. The Minister has various powers once the application is submitted; this includes the power to halt all infringing activities while the application is considered, to order remedial action to contain or prevent pollution, and to request that various reports be prepared. A non-compliant company may also be fined an amount not exceeding 5 million Rand (about 340,000 US Dollars). Also, the legal procedure specifically states that the application procedure doesn’t prevent from the National Prosecuting Authorities from instituting criminal prosecution for the non-compliance.

BP’s application was submitted to the Gauteng Province Department for Agriculture and Rural Development (GDARD) and captured in the department’s register, where it records details of all the received applications. It’s this register that was then used by Uzani to identify BP as a con-compliant company, and as part of BP’s prosecution.   

Was the prosecution in the public interest or for the protection of the environment?

To bring a private prosecution, it must either be (i) in the public interest; or (ii) brought in the protection of the environment (NEMA section 33(1)).  

BP alleged that the private prosecution wasn’t “in the public interest” because Uzani, the environmental advocacy group, had a monetary interest in the outcome of the case. Uzani had concluded contingency agreements with competing petrol service stations in terms of which Uzani would be compensated for its legal costs if successful, and would receive a portion of any compensation received from any successful civil claims. BP’s argument was that the private prosecutor’s direct financial interest meant that the prosecution was not brought in the public interest, but for private gain.

The court disagreed that the prosecutor’s financial interest meant that the prosecution could not be in the public interest. The prosecution may be in the public interest even though the private prosecutor gains incidentally from the action. The court quoted the definition of a “public interest action”, advanced by the SA Law Commission, as:

“one brought by a plaintiff who, claiming the relief he or she seeks, is moved by a desire to benefit the public at large or a segment of the public. The intention of the plaintiff is to vindicate or protect the public interest, not his or her own interest, although he or she may incidentally achieve that end as well”.   

The court also found that a prosecutor isn’t barred from prosecuting just because their fees are paid by the person bringing the action. To bar a prosecutor because of bias there must be actual bias, not merely perceived bias (Porritt v National Director of Public Prosecutions). A mere allegation of bias shouldn’t prevent a private prosecution.

The court then held that it was brought “in the protection of the environment” because (i) there was uncontested evidence showing possible environmental degradation that can be caused by storage tanks; (ii) BP failed to prepare an upfront environmental impact assessment report (EIA); and (iii) when submitting an application for a new environmental authorisation to remedy non-compliance applicants are generally not requested to provide rectification reports.    

BP argued that even though the filling stations didn’t have the necessary authorisations, there was no evidence that they posed a risk to the environment. BP submitted that the filling stations were not in environmentally sensitive areas, that there were environmental precautions put in place, and that the sites undergo internal environmental audits every 3 years. The court rejected this argument, stating that “the untested say-so of BP … can hardly be described as sufficient evidence to counter whether the prosecution is being brought either in the public interest or in the interest of the protection of the environment”.

The court accordingly found that the private prosecution was brought in the public interest and in the interest of the protection of the environment.

Are private prosecutions possible after an application is lodged?

BP argued that after submitting the application no private prosecutions were permitted; only the National Prosecuting Authority (NPA) could institute criminal prosecutions for infringement. This defence was based on a strict reading of the applicable section:

“The submission of an application … or the granting of an environmental authorisation … shall in no way derogate from … the National Prosecuting Authorities legal authority to institute any criminal prosecution.”

BP argued that this only allowed the NPA to institute criminal proceedings because only the NPA was named; private prosecutions were not mentioned. The court dismissed this argument because the section expressly provides for criminal prosecutions. It held that it would be absurd to interpret the section to discriminate between private prosecutions and prosecutions brought by the NPA.    

The court accordingly found that the lodging of an application for a new environmental authorisation to remedy non-compliance doesn’t prevent private criminal prosecutions.

Additional Defences Raised

BP raised two further defences. First, it argued that Uzani’s notice to the Director of Public Prosecutions before starting the private prosecution was defective because the alleged offences were not accurately described.

Secondly, BP argued that Uzani hadn’t complied with all of the requirements of the Criminal Procedure Act (CPA) because it had not properly consulted.

The court rejected both these defences.

Court’s ruling

According to the court, the case against BP was “straight forward”. BP started construction and upgrading of petrol filling stations before it had been granted the required environmental authorisations in terms of the ECA.

When BP submitted an application to remedy its non-compliance, it admitted that it “commenced with a listed or specified activity without an environmental authorisation in contravention of section 24F(1)” of NEMA.

When prosecuting a crime that is based on an allegation that the defendant (BP) doesn’t have a required licence or authorisation, the onus is on the defendant (BP) to prove that it has the necessary licence or authorisation. This “reverse onus” is permitted by section 250 of the Criminal Procedure Act.

BP had failed to produce any evidence to show that the filling stations were constructed with the required authority.

The court accordingly convicted BP on 16 criminal charges.


Protest and Disobedience

Obedience is dangerous. It has facilitated every form of institutional oppression and violence. Every advance in justice, peace and democracy has been made possible by disobedience. Ethical progress is unlikely when we do only what we are told. We owe our right to vote, our freedom from servitude and subjection, our prosperity and security to people reviled in their time as lawbreakers and reprobates. Breaking the law on behalf of others is a long and honourable tradition …

George Monibot

Court Strikes Down the South African Fracking Regulations

On 4 July 2019, the South African Supreme Court of Appeal struck down the legal regulations that regulated hydraulic fracturing (fracking). It found that the Minister of Mineral Resources had exceeded their powers when promulgating the Regulations for Petroleum Exploration and Production 2015, finding that the power to regulate the environmental aspects of fracking lay exclusively with the Minister of Environmental Affairs.

Various farmers’ and non-profit organisations argued that the Minerals Minister had exceeded their power in attempting to regulate the process followed when applying for an environmental authorisation for fracking. They argued that the Minerals Minister may have had this power in the past, but that the amendments to the mining and environmental legislation in 2013 that created the “One Environmental System” had stripped the Minerals Minister of all power to regulate environmental aspects relating to prospecting, mining, exploration and production, and had transferred this power to the Environmental Minister. They argued that the Minerals Minister had accordingly acted outside their power (ultra vires) when passing the Petroleum Regulations.

In turn, the two Ministers’ argued that the Minerals Minister was still empowered to enact the regulations, albeit now by the Environmental Impact Assessment Regulations 2014, which the Environment Minister had promulgated. This argument was ultimately rejected by the court.

The court considered two questions. First, did the Petroleum Regulations violate the principle of legality? Namely, did the Minerals Minister exceed their power when promulgating the Petroleum Regulations?

On the first question, the court analysed the history and the framework of the Mineral and Petroleum Resources Development (MPRDA) and the National Environmental Management Act (NEMA).

In 2013 the MPRDA and NEMA were overhauled through a series of amendments to create the “One Environmental System”. Before this both acts dealt with environmental matters. The Minerals Minister was responsible for regulating the environmental impacts of mining and petroleum production and granting the required environmental management plans and programs, while the Environmental Minister was responsible for regulating all other environmental matters. The 2013 overhaul, however, removed the Mineral Minister’s power to regulate environmental matters, consolidated all environmental legal provisions into NEMA, and made the Environmental Minister legally responsible for setting regulatory frameworks, norms and standards.

Did the Minerals Minister retain the power to promulgate the Petroleum Regulations after the creation of the One Environmental System in 2013? The court found that after the 2013 overhaul “the only regulation-making powers regarding the environmental impacts of these activities, are those vested in the Environmental Minister in terms of NEMA”. The entire purpose of the overhaul was clearly to strip away the Mineral Minister’s power to make regulations on environmental impacts.

The court therefore found that after the 2013 overhaul, the Minerals Minister had no power to promulgate regulations relating to either the management of the environmental impacts of exploration and the production of petroleum, or the process and requirements of an application for an environmental authorisation. Only the Environment Minister had the power to regulate these matters. The Minister of Minerals could not legally exercise powers that they didn’t have.

The court accordingly held that the Minerals Minister had acted outside their power when promulgating the Petroleum Regulations, and that the regulations should be set aside on this ground alone.

The second question considered by the court was if the Petroleum Regulations were promulgated in a procedurally unfair manner, and could be set aside because the Mineral Minister’s procedure contravened the Promotion of Administrative Justice Act (PAJA).

Here the argument was that the process was procedurally unfair because when the draft regulation was published for public comment, it didn’t include the contemplated list of substances that would be prohibited in fracking.

In order for this argument to succeed, the court would have to first decide if the promulgation of regulations by a minister in terms of an act of parliament constituted “administrative action” regulated by PAJA. Unfortunately, the court’s answer to the first question meant that it wasn’t necessary to consider the second question. The Supreme Court of Appeal did, however, take the opportunity to weigh in on this debated issue, and stated that it had previously explained that there is “no authority for the proposition that the making of regulations by a minister generally is administrative action in terms of PAJA and added that the final word on this subject may not have been spoken”.


The Court can Step into the Minister’s Shoes – Aquila Decision in the Constitutional Court

After years of litigation, the South African Constitutional Court has given its decision on the dispute between Aquila Steel and Ziza. The dispute revolved around which company had the right to be granted a mineral right over certain land. Since South Africa’s application procedure uses a “first come first served” method, the court’s decision ultimately hinged on which company was the first to lodge a valid application.  

There were three applications:

  • Ziza’s prospecting right application, submitted April 2005, and granted February 2008;
  • Aquila’s prospecting right application, submitted April 2006, and granted October 2006; and
  • Aquila’s mining right application, submitted December 2010, but refused.

The Constitutional Court found in Aquila’s favour, finding that the first application that the Department of Mineral Resources (DMR) received, and was able to legally grant, was the third application – Aquila’s mining right application.

Ziza’s prospecting right application was the first application submitted to the DMR, and would ordinarily be the first in queue for consideration and grant. The court, however, found that this application was so defective when the Minister of Mineral Resources (Minister) considered and granted it, that the grant was unlawful and had to be set aside.

Here the Constitutional Court differed from the South African Supreme Court of Appeal (SCA) decision, which found that Ziza’s application was “substantially compliant” and could be legally granted.    

The court then considered Aquila’s prospecting right application. It found that the DMR granted this application prematurely because at the time of grant Ziza’s defective application hadn’t yet been considered and refused. Ziza’s defective application was still ahead in the queue, preventing the lawful grant of Aquila’s prospecting right application. The grant of Aquila’s prospecting right application was accordingly unlawful and had to be set aside.   

The last application standing was Aquila’s mining right application. Here the court was faced with two considerations.

First, should Ziza’s unlawfully granted prospecting right block Aquila’s mining right application in the queue? The court analysed the legal “Oudekraal principle”. This states that an unlawful action should be considered lawful until it is formally set aside by a court. Based on this principle it could be (and was) argued that the grant of Aquila’s mining right application should be blocked by Ziza’s unlawful prospecting right. The court, however, held that this principle didn’t apply and couldn’t be used by Ziza to thwart a valid grant of a mining right to Aquila.

Second, the court considered the appropriate legal remedy. There were two options. The court could refer Aquila’s mining right application back to the Minister, and order the Minister to take the decision on if the application should be granted or not. Alternatively, the court could grant “substitutionary relief”. This is where the court steps into the shoes of the public official who must make a decision, and makes the decision for them. Typically, substitutionary relief is only granted by a court where, (i) the end result is a forgone conclusion; (ii) the court is as well qualified as the original authority to make the decision; (iii) any further delay will cause unjustifiable prejudice; or (iv) the original decision maker has exhibited bias or incompetence.

Here, again, the Constitutional Court’s decision differed from the SCA. The SCA found that the court didn’t have the power to grant substitutionary relief in a grant of a mining right because (i) the minister’s power to grant a mining right, and the minister’s power to impose conditions on the mining right, are inextricably linked and it is impossible to separate these two decisions – a grant of the mining right without considering what conditions should be imposed is an invalid exercise of power; and (ii) the information in the mining right application was 7 years old, and possibly outdated, meaning that the grant of the mining right was not a foregone conclusion.

The Constitutional Court, however, held that substitutionary relief was possible because (i) the conditions that are ordinarily imposed on a mining right “are relatively standard and typically imposed regardless of who the applicant is; and (ii) no arguments were made to indicate that Aquila would be precluded from being granted an mining right. The Constitutional Court thus granted Aquila a mining right over the disputed area, and confirmed that a court is not automatically precluded from granting substitutionary relief when considering decisions regarding the grant of prospecting and mining rights in terms of the Mineral and Petroleum Resources Development Act (MPRDA).

Related Reading on this Site:


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Should Rivers Have Legal Rights?

From the article Should Rivers Have Rights, that looks at the legal practice of granting legal personality to living ecosystems.

Inspired by indigenous views of nature, a movement to grant a form of legal “personhood” to rivers is gaining some ground — a key step, advocates say, in reversing centuries of damage inflicted upon the world’s waterways. …

With the number of dams in Chile at 137 and counting, indigenous people, citizens, and environmental activists [including the authors, members of the Chilean Free-Flowing Rivers Network] say the time has come to look at granting legal rights — a form of legal personhood — to the nation’s rivers. This campaign is not occurring in isolation, however, and is taking inspiration from other countries where a small but growing number of courts and legislatures have begun bestowing legal rights upon rivers. Three countries — New Zealand, Colombia, and India — have all taken such steps over the past two years, though the practical ramifications of these declarations remain unclear. …

One criticism levied by environmental groups is that in countries like Chile and the United States, corporations are granted the same rights as people while the living ecosystems upon which we depend for survival are not. …

One solution to reducing conflicts draws on the “corporations are people” logic, applying it to waterways. Over the last two years, a series of legislative acts and court decisions have emerged across the globe that propose caring for a river as if it were a person. In 2017, New Zealand granted the status of legal personhood to the Whanganui River, the third-longest in the country and, the indigenous Māori believe, a living ancestor of their people. In doing so, the New Zealand parliament merged Western legal values with the Māori worldview to resolve the country’s longest-running water conflict, during which the Māori fought hydroelectric projects and gravel extraction schemes. …

Under the new agreement, the Whanganui has the same rights as a person. A special committee that includes community representatives is authorized to act as legal administrator, and the river can now be represented in court proceedings. The river will be represented by two officials, one from the Whanganui iwi (Māori word meaning “people”) and the other from the government. Through the agreement, the Whanganui iwi will be granted authority to conduct cultural activities, give official geographic name assignments, and get financing for social and environmental projects, which include the river’s ecosystem restoration.

Should Rivers Have Rights? A Growing Movement Says It’s About Time

Edit: Additional reporting on another discussion covering a similar topic:
Toledo voters approve legal rights for Lake Erie

Freedom of Association and Freedom to Assemble

I’ve been giving some thought to political organisations and protest actions. Interestingly, I’ve come across the United Nations “Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association” A/HRC/23/39.

In the conclusions and recommendations, the Special Rapporteur calls upon States:

To ensure that associations – registered and unregistered – can seek, receive and use funding and other resources from natural and legal persons, whether domestic, foreign or international, without prior authorization or other undue impediments, including from individuals; associations, foundations or other civil society organizations; foreign Governments and aid agencies; the private sector; the United Nations and other entities;

To ensure that peaceful assemblies are governed at most by a regime of notification regarding the holding of peaceful assemblies, in lieu of a regime of authorization. The notification procedure, where introduced, should be as simple and expeditious as possible;

To provide organizers, whenever an assembly is restricted in compliance with international human rights norms and standards, with reasonable alternatives to hold their peaceful assemblies, which should be facilitated within “sight and sound” of the target audience;

To ensure and facilitate at all times access to the Internet and other new communications technologies, and to further ensure that any restriction on such access or on the content of websites is reviewed by a competent judicial court;

To guarantee that assembly organizers are never held responsible and liable for the unlawful behaviour of others.

United Nations “Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association” A/HRC/23/39.

Protecting Ancestral Land from the Pursuit of Profit – Xolobeni Community Stops Grant of Mining Right

In November 2018 the community of Umgungundlovu, which has called the Xolobeni area of the Eastern Cape in South Africa home since the early 1800’s, secured a critical legal victory to stop planned mining activities on its ancestral land.

Previously, it had been accepted that the landowners and communities only had to be consulted before a mining right is granted. The purpose was to inform them of the planned activities and the potential impacts. It wasn’t necessity to get their consent – the landowner and communities could object, but they couldn’t ultimately prevent the granting of a mining licence. Their only recourse was a claim for damages if there no agreement could be reached with the mining company.

Faced with the loss of access to their land and their way of life, the Umgungundlovu traditional community approached the court for an order declaring that a mining right can’t be granted over their ancestral land without their consent. They argued that the Interim Protection of Informal Land Rights Act (IPILRA) required the free and informed consent of traditional communities before they could be deprived of their land.

The mining company (Transworld Energy and Mineral Resources) disagreed. It relied on the Mineral and Petroleum Resources Development Act (MRPDA), which didn’t require “consent”, but only “consultation”. They argued that the MPRDA trumps the IPILRA, and that no person had a right to refuse their consent to mine.       

The South African High Court disagreed with the mining company, and held that a mining right couldn’t be granted over a community’s land unless the community had first granted their free and informed consent.

The court said that the question at the heart of the case was:

“Who gets to decide whether mining activities take place on this area – the community which has lived there for centuries, or the [mining company]?”

It was not disputed that the Umgungundlovu community was indeed a “community” and held informal rights to the land in terms of the IPILRA. What was in dispute was if the requirements of both the IPLRA and the MPRDA must be complied with in circumstances where land falls under the IPLRA.   

The court accepted that the IPLRA and MPRDA had different thresholds when it came to engaging with communities and landowners. The IPLRA needs “consent”, which equates to an agreement between the parties. In terms of international law consent needs to be “free, prior and informed”. The MPRDA, however, only needs “consultation”, which is only a process of consensus seeking. The aim of consultation isn’t to reach an agreement but only to involve the landowner and inform them of the possible interference with their property rights.

The court rejected the mining company’s argument that there was a conflict between the two acts. The IPLRA specifically regulates South African customary law, while the MPRDA regulates mining activities while being silent on customary law. The court applied the recent decision of the South African Constitutional Court in the Maledu case (which I discuss here), where it was held that the MPRDA and the IPLRA weren’t conflicting and must be interpreted and read harmoniously.

The purpose of the IPLRA is to protect traditional communities’ informal rights to land which were not previously protected under racially discriminatory laws. It gives traditional communities greater protection than the protection enjoyed by common law landowners. The greater protection is justified because a traditional community’s way of life is intrinsically linked to their ancestral land:

“… the communal land and the residential plots (‘umzi’) of each imzi [household] forms an inextricable and integral part of this communities way of life. … a residential plot represents far more than merely a place to live: it is a symbol of social maturity and social dignity. Each residential plot further serves as a critical conduit for the preservation of relations of inter-linkage and mutual dependence between the living and the dead and is critically important for the well being of each imzi.

… the proposed mining activities … will not only bring about a physical displacement from their homes, but will lead to an economic displacement of the community and bring about a complete destruction of their cultural way of life.”

The court accordingly held that the Minister of Mineral Resources did not have the legal power to grant a mining right over a community’s land that is protected by the IPLRA, without the community’s prior consent.

This judgement was hailed by Amnesty International as “a clear message that multinational mining companies cannot trample over people’s rights in the pursuit of profit”, but quickly condemned by the Minister of Mineral Resources for impeding the government’s ability to grant mining rights to companies.

The minister has indicated the intention to appeal the decision, so this won’t be the end of the Umgungundlovu community’s legal battle.  


No Mining Without Consultation – Constitutional Court Prevents Mining on Community Land

In South Africa land ownership is separate from the right to mine minerals found in the land. The mining right holder is, however, given the right to enter land that it doesn’t own to conduct mining operations. This leads to a conflict of rights when a mining company wants enter land that is being productively used as farmland or private housing.

Historically, the rights of a mining right holder trump the landowner’s. If a landowner refused access, then the mining company could approach a court for an order forcing the landowner to give the company access. Any compensation payable to the landowner for the loss of the use of the property could be determined at a later date. A recent decision by the South African Constitutional Court has, however, shifted the balance of power from the mining company back towards the landowner. Even though this case dealt with the rights of a traditional community, the principles apply to all owners and lawful occupiers of land going forward.

In 2008 a mining company was granted a mining right. The company then concluded a lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority to access the property. After the company started mining, 38 community members objected to the operations primarily on the argument that, (i) they were the true owners of the land, not the tribal authority; and (ii) the mining company had not consulted with them as the landowners before the mining right was granted.

In response the company alleged that they had properly consulted with the tribal authority. The company approached the High Court and was granted a court order (i) evicting the community members from the land; and (ii) preventing them from entering, or conducting farming operations, the land. In its reasoning the High Court applied a previous Supreme Court of Appeal decision (the Maranda case). It held that the mining company had attempted in good faith to comply with its consultative duties and were therefore free to start with their mining activities – if there was any compensation that was due to the community members, then the community members could claim compensation in terms of the “section 54 dispute process” in the Mineral and Petroleum Resources Development Act (MPRDA). It held that mining company didn’t have to follow or exhaust the section 54 dispute process before it could access to the property.

The Constitutional Court disagreed, based on two questions. First, were the 38 community members either owners or lawful occupiers of the property, and entitled to invoke the section 54 dispute process? If so, could the mining company get a court interdict to enforce its right to access the property before it exhausted the section 54 dispute process?

The court found that the community members had an “informal right to land” in terms of the Interim Protection of Informal Land Rights Act (IPILRA). This had not been extinguished when the mining company entered into the lease agreement with the Tribal Authority because the requirements of IPILRA were not followed. The community members were therefore lawful occupiers for the purposes of the section 54 dispute process.

The court then found that the mining company couldn’t enforce its right to access the property before it exhausted the section 54 dispute process. This was to ensure the “balancing of the rights of mining right holders on one hand and those of the surface rights holders on the other. The eviction order was set aside.

The principles of this case apply to all lawful owners and lawful occupiers of land going forward. Practically, a mining company won’t be able to access property and commence with operations unless (i) the commencement of mining operations has been permitted by regional manager, or (ii) the compensation that is payable to the landowners or lawful occupiers has been mutually agreed, or determined by a competent court.

The MPRDA section 54 dispute process

The section 54 dispute process is available if the owner or lawful occupier of a property (i) refuses access; (ii) places unreasonable demands for access; or (iii) can’t be located.

The Department of Mineral Resources’ regional manager must be notified, and the owner or lawful occupier may make representations. After considering the representations the regional manager has two options.

In extreme circumstances the matter may be referred for the government to expropriate the land.

Otherwise, the parties must agree the compensation payable to the owner or lawful occupier for the damage suffered. If an agreement can’t be reached, the compensation payable will be determined by either arbitration or by a court.

If failure to reach an agreement is because of the actions of the mining right holder, then the Regional Manager may prohibit the commencement of operations until the dispute is resolved.

Were the community members entitled to the section 54 dispute process?

Only owners or lawful occupiers are entitled to the section 54 dispute process.

The community members alleged that they were the owners of the property because their ancestors had bought it in 1919. The property was, however, registered as being held in trust on behalf of the Tribal Authority because the past apartheid laws prevented the property from being registered in their names as joint owners. The community members had instituted a separate claim in terms of the Land Titles Adjustment Act to rectify this on the property’s title deed.

The court, however, found that it wasn’t necessary to decide ownership because the community members were lawful occupiers in terms of the Interim Protection of Informal Land Rights Act. The company’s mining right did not mean that the community’s lawful occupation of the property was now unlawful.

The court then investigated if the company’s lease agreement with the Tribal Authority stripped the community members of their informal land rights but found that the provisions of IPILRA hadn’t been complied with in order to deprive the community of their rights.

The community therefore remained lawful occupiers, and were entitled to the section 54 dispute process.

Must the section 54 dispute process be exhausted?

The mining company sent a notice invoking the section 54 dispute process, but this was never followed up. The company argued that it wasn’t necessary to exhaust the section 54 dispute process, and that this position was supported by the Supreme Court of Appeal’s earlier decision in the Maranda case.

The Constitutional Court, however, emphasised two differences between the current case and the Maranda case. First, in the Maranda case the landowner refused all approaches by the mining right holder and the regional manager. It was clearly the landowner’s objective to frustrate the objectives of the MPRDA through an unreasonable refusal.

More importantly, the Constitutional Court highlighted that the MPRDA had been amended, and the section providing for further consultation between the landowner and mining right holder for access was repealed (section 5(4)(c)). It was now imperative that the section 54 dispute mechanism is followed to balance the competing rights between an owner or lawful occupier on one hand and the mining right holder on the other.

In the future mining companies must consult

The Constitutional Court has made it clear that a mining company must engage with owners and lawful occupiers of property to agree terms of access. If there is a dispute on the terms, then the section 54 dispute process in the governing MPRDA must be followed.

However, I don’t believe that the court’s decision means a mining company may never be granted access commence operations without first agreeing terms. The section 54 dispute process provides that if there is no agreement on compensation because of the actions of the mining right holder, then the Regional Manager may prohibit the commencement of operations until the disputes resolution. By implication this means that if the mining company isn’t at fault, then they may be granted access pending the disputes resolution.

The mining company must, however, consult. Consultation means meaningful consultation according to the principles outlined by the constitutional court in various judgements.

Without an attempt at meaningful consultation,access should be denied.         


The Intersection of Customary Law and Environmental Protection

It shouldn’t be possible for the state to criminally prosecute a person for exercising their legal rights. This was, however, exactly what happened to Mr Gongqose and other members of the Dwesa-Cwebe community after they were arrested for fishing in the Dwesa-Cwebe Marine Protected Area without a fishing permit.

They argued that they were not acting unlawfully because they were fishing according to their generations old customs and traditions. They were, however, convicted and given a suspended sentence on condition that they didn’t enter the marine protected area again without a permit. After appealing unsuccessfully to the High Court, the matter came before the South African Supreme Court of Appeal.

The Supreme Court set aside the criminal convictions. The court found that the Dwesa-Cwebe community had a constitutionally protected customary right to fish in the marine protected area. At the time the laws governing the marine protected area didn’t extinguish the community’s customary rights, and they were accordingly acting lawfully when they entered the marine protected area to fish.

This judgement has been wrongly criticised using the argument that environmental protection laws can now be circumvented by communities. This argument was, however, considered and rejected by the court. The court recognised that there may be a conflict between the right to a protected environment and cultural rights, but found that these can coexist. The Dwesa-Cwebe community has a direct interest in ensuring the protection of their resources. Their customary laws ensured the continued protection of the environment, and were not inconsistent with the right to a protected environment. It should, however, be kept in mind that this case dealt with the provisions of the relevant law before it was amended to specifically deal with customary rights.

Questions that the court considered

If the community members were exercising customary rights when they entered the marine protected area, then their actions of fishing without a permit would be lawful, and their criminal convictions would have to be set aside.

The legal questions the court considered were,(i) did the Dwesa-Cwebe community have a customary right to access the marine protected area and use the marine resources; and (ii) if so, then did the Marine Living Resources Act (“MLRA“) extinguish these customary rights?       

Did the Dwesa-Cwebe community have customary rights?

Members of the community, anthropologists and researchers gave evidence on the Dwesa-Cwebe community’s customs and traditions.

The Dwesa-Cwebe community had lived in the area of the marine protected reserve for more than 300 years before the areas were annexed by the Cape government in 1885. In the 1930’s the community was physically removed from the area to give white farmers access to the land. Further removals of community members occurred during the 1970’s, and the reserves were fenced in 1975. White families were allowed to stay in the fenced reserve areas, but the black community was denied access.

The community relied heavily on marine resources for healing, ancestral ceremonies, and to feed their families. Families sold surplus fish to afford to maintain and educate their children.

The community passes down an appreciation of the natural environment from generation to generation. From a young age children are taught the skills and traditions of fishing. There was a longstanding and well developed system of customary law that regulated access to the marine resources. These traditions included rules for the allocation of fishing spots and settling disputes, and rules prohibiting catching spawning fish and fish under a certain size.

The court accordingly held that “since time immemorial” Dwesa-Cwebe community had a tradition of utilising the marine and terrestrial natural resources, and thus had a right to continue to exploit these natural resources under customary law.      

Did the Marine Living Resources Act extinguish the community’s customary rights?

After finding that the Dwesa-Cwebe community had a customary right to access and use the natural resources in the marine protected area, the court had to decide if the MLRA extinguished these customary rights. This was the first time a South African court had to consider the extinguishment of indigenous or customary rights.

South Africa’s Constitution protects customary law. Customary law is only subject to the Constitution and to “legislation that specifically deals with customary law”. It isn’t subject to general legislation.

The MLRA, at the time, didn’t specifically deal with customary law, and it therefore couldn’t extinguish the Dwesa-Cwebe community members’ right to access the marine protected area and use its resources. The court accordingly held that when community members exercising their customary law rights and entered the marine protected area, their actions were lawful. The court set aside their criminal convictions.


Winners Take All

This is a link to a talk by Anand Giridharadas, stemming from his recent book. It focuses on wealthy people who are genuinely trying to make a difference in the world, but end up just upholding the system that is creating the problems.

He attacks the concept of looking for “win-win” solutions to tackle the problems that face modern society. A win-win solution means that everyone has to benefit, the people at the top of the system must benefit along with the people at the bottom. This means that people who are the worst off in society can’t benefit or become better off unless there is also a benefit flowing to those on the top of the system.

To tackle truly big problems we need to start looking at solutions that are not win-win. We need to change our approach, and start looking at options that are outside the current flawed system. To fix a big problem in society, maybe someone at the top of the current system may have to come out at the end a little worse off.

… We make a difference in ways that protect the continued ability to make a killing. We seek to change the world in ways carefully chosen to not change our world. When you look at the ways in which the winners of our age give back, help out, or make a difference, they are often designed to protect the system, above all, that the winners stand on top of. …

On any number of the most fundamental questions of what ails us in society, there is a real change option out there if we think hard and study hard. But often that real change option is expensive for the winners of our age one way or another. And then, miraculously, a fake change, a facsimile of a change materializes that is very inexpensive for the winners. And often what happens in our culture now, in a culture over run by win-win thinking point of view, we go for the fake change, we go for the facsimile of change, because that kind of change is free. …

Explore the places and situations, and there may be more of them than what you think, where what is good for you and what is good for the world is different.

And what will you do when you come to those places? Those are the very important questions. And what will society do when we come to those places? …

A lot of the winners of the world ask the following questions: “What can I do? Where can I start? What can I create?” …

What a lot of the winners of this age refuse to ask is: “What am I already doing? How am I already involved in these problems? How can I be complacent in an economy and society that is so unkind to so many people even as it builds and creates amazing things?” …

Anand GiridharadasWinners Take All 

To Destroy Neoliberalism

There is an article by Nick Hanauer, published on Evonomics, arguing that capitalism itself is not an evil, and remains the most effective system to solve the world’s problems.

Nick Hanauer argues that capitalism has been corrupted by the neoliberal view that the goal of “the corporation must be to maximize shareholder value, humanity be damned”, a goal that totally discards mankind’s pro-social nature and the desire to cooperate.

Despite stating that it is mankind’s “humanity, not the absence of it, that is the source of our prosperity”, he goes on to suggest that it is not the capitalist system that needs to change, only that way that people act under the system.

To rescue capitalism from neoliberal thinking Nick Hanauer offers four heuristics.

Irrespective of your views on capitalism, Nick Hanauer’s heuristics does a good job in pointing out some of the biggest flaws in the system.

Heuristic number one: Capitalism is self-organizing, but not self-regulating.

The notion of market capitalism as a Pareto-optimal closed, equilibrium system is—to use the technical term—bullshit. Throughout the world, the most broadly prosperous capitalist economies are also the most highly regulated and highly taxed. To be clear: Government investment and intervention is not a necessary evil. It is just plain necessary.

Which leads us to heuristic number two: True capitalism is not shareholder capitalism.

The neoliberal claim that the sole purpose of the corporation is to enrich shareholders is the most egregious grift in contemporary life. Corporations are granted limited liability in exchange for improving the common good. Thus, the true purpose of the corporation is to build great products for customers, provide good jobs for employees, provide a fair return to shareholders and to make their communities stronger—in coequal measure.

Heuristic Three: Capitalism is effective, but not efficient.

Schumpeter’s “perennial gale of creative destruction” has proven extraordinarily effective at raising our aggregate standard of living, but it can also be extraordinarily wasteful, cruel, and unequal—unequal to the point that it threatens to destroy capitalism itself. If our economy and our democracy are to survive the ever-quickening pace of technological change, we must use every tool available to close “the innovation gap” between our economic institutions and our civic institutions.

And finally, heuristic number four: True capitalists are moral capitalists.

Being rapacious doesn’t make you a capitalist. It makes you an asshole and a sociopath. In an economy dependent on complex trust networks to facilitate the cooperative tasks from which prosperity emerges, and when prosperity itself is understood—not as money but as solutions to human problems—true capitalists understand that every economic act is an explicitly moral choice—and they act accordingly.

Nick HanauerHow to Destroy Neoliberalism: Kill ‘Homo Economicus’

Changing my mind on Webmentions

A few weeks ago I took steps to implement Webmentions on this site, which I described in detail in this post. I’ve changed my mind and decided to remove Webmentions, along with readers ability to directly comment on posts. There are a few reasons why.

Spam. To enable Webmentions I also had to enable the default WordPress comment forms. This lead to an attack by comment spam-bots that left a couple hundred spam comments a day.  There’s only so may (hundred) times you can read this comment before giving in:

Don’t wear seat belts lest you drown in your own urine?

Posted by a random comment spam-bot

Thanks!? It never occurred to me that this may be a legitimate concern. To combat the spam comments I had to install anti-spam WordPress plugins. This, however, leads me to my next concern with implementing Webmentions in WordPress.

Plugin bloat. To implement the Webmention standard in WordPress eight different plugins had to be installed on the one available standard compatible WordPress theme. These plugins are in addition to those needed to combat spam comments, and those needed to cross post your content to different content silos (for example Facebook and Twitter).

I have no need to syndicate content. The Webmention standard lives according to the principles of “POSSE” (post on your own site, syndicate elsewhere). This allows you to automatically cross post content, and then aggregate all of the “likes” on the different sites and display the total on your home website.  However, all my content lives on this site, and I don’t have other social networking accounts to syndicate content to and aggregate “likes” from.

No desire to collect “likes”. I write content for myself, and share content that I think should have more visibility. I don’t want to feel pressure to change the way I do things in order to get more clicks, mentions and likes for the sole purpose of aggregating metrics.

Overall, the administration that was needed to implement the Webmention standard didn’t come with any benefits.  

… They asked him what was the object of all this study applied to an art that would reach but a few. He replied: ‘I am content with a few, content with one, content with none at all’.

Seneca, Letters on Ethics, 7.11.

Related Reading:

You’re Privileged. Do Something About It

These are some quotes from a speech about white privilege that was recently given to the students of Jeppe High School for Boys.

Dear white pupils, you’re privileged. Do something about it. …

Let’s talk about white privilege. …

Many (if not most) of the white people in this hall today come from working-class or middle-class families, who have had to work hard for what they have. And so when we hear the words “white privilege” we become defensive because we think that our hardships and hard work are being dismissed. …

They worked hard. All of them. And I’m sure that they would argue that they were never given a hand-up or a hand-out. They worked themselves out of poverty. But here’s the thing: the only reason they were able to, was because they were white. Their whiteness meant that their hard work was allowed to amount to something. …

You see, no one is saying that white people don’t work hard. But what I am saying is, their hard work was and is allowed to amount to something because the pool was rigged in their favour. …

Imagine playing a video game where the save function was disabled and you were unable to accumulate experience points. That’s what it was like being black during apartheid.

No matter how hard you worked, or how much money you earned, you couldn’t own land, businesses, or homes. You couldn’t buy your kids a safer suburb to grow up in or buy them a better education. Every generation started back at zero.

Being white was like being the only one with a save function. Everyone was working through the game, but only white people got to accumulate an advantage.

I want to make this crystal clear: saying that white people enjoy a privilege is not saying that their lives are easy or that they haven’t worked hard. White people are not immune to the human condition, they suffer loss and hardship like everyone else.

So then what is it? What is white privilege? For me, it’s
simply a preference for whiteness that saturates our society. …

As a white man, I benefit daily from the colour of my skin. Daily. And let’s just remember what that privilege comes from. I benefit because crimes against humanity were committed. Torture, murder, rape, humiliation, oppression … that’s the source of my advantage.

Now how am I supposed to feel about that? What do we do with that?
I can almost guarantee that, after this speech, I will receive angry e-mails from parents complaining that their white sons were made to feel bad about themselves. Maybe that’s because when you are used to privilege – when you become accustomed to it – equality feels like oppression.
Making you feel bad about yourselves is certainly not my intention here today. You have no reason to feel ashamed. After all, none of you were born when the crimes that have created your advantage were committed. But I will tell you what I feel is an appropriate way to respond.

Stop denying it. Stop pretending that it isn’t real. Stop throwing your hands in the air at the very mention of it.

As a start, I am going to ask you to be grateful for your privilege, and realise that through no fault of yours, or their own, millions of people are worse off and don’t deserve to be. The best thing to do is just acknowledge it.

You have been given an unfair advantage. So use it. Do something meaningful with it. Or don’t. But whatever you do, don’t deny it. Your denial is not harmless. In my mind, it should be a crime. …

My challenge: do something.

Kevin Leathem and Tammy Bechus – The “P” Word 

Increased Incarceration Has Marginal-to-Zero Impact on Crime

More incarceration will not make us safer, a new report by the Vera Institute of Justice concludes, because increased incarceration rates have no demonstrated effect on violent crime and in some instances may increase crime.

The Prison Paradox summarizes research about the relationship between incarceration rates and crime rates, finding that since 2000, the increased use of jails and prisons accounted for nearly zero percent of the overall reduction in crime…

Incarceration is not only “an expensive way to achieve less public safety,” but it may actually increase crime by breaking down the social and family bonds that guide individuals away from crime, removing adults who would otherwise nurture children, depriving communities of income, reducing future income potential, and engendering a deep resentment toward the legal system…

The report concludes that “policymakers can reduce crime without continuing to increase the social, cultural, and political costs of mass incarceration by investing in more effective and efficient crime reduction strategies that seek to engage the community, provide needed services to those who are criminally involved, and begin to address the underlying causes of crime.”

Equal Justice Initiative