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?

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

Thimbleweed Park Review

Picture: Thimbleweed Park Screenshot

I recently finished the game Thimbleweed Park. It is a return to the classic point and click adventure games from my youth, complete with retro pixilated graphics.

Its created by Ron Gilbert and Gary Winnick, the creators of the classic games Monkey Island and Maniac Mansion, so if you liked any old LucasArts adventure games from the past, this is a definitely a game for you.

The story centers primarily around two FBI agents who arrive in the small town of Thimbleweed Park at the same time to investigate a murder. You quickly discover that each agent has ulterior motives for being in the town. Tone wise, the setting is a mash up of X-Files, Twin Peaks, and Ace Ventura. 

The game definitely breaks the fourth wall repeatedly from the beginning (and continuously in the final act), but this what what I was expecting going into a game created by Gilbert and Winnick.

Game-play wise, you play as each agent at the same time, switching between them and using each to either accomplish different tasks, or co-operate to solve the same puzzle. As the game progresses more playable characters are thrown into the mix, until you are controlling up to five characters, each with their own sub-plot and motives.

I found the game funny and enjoyable. I never felt lost and I always knew what my immediate goals were in order to advance the story. The puzzles were logical and I didn’t need to resort to outside guides for guidance (there is also an in-game telephone hint line you can call, but I didn’t use this so I can’t comment on what exactly it does). Lengthwise, the game took me just over 15 hours to complete.

Overall it was a very enjoyable and recommended experience.

Welcome to Thimbleweed Park. Population: 80 nutcases.

A haunted hotel, an abandoned circus, a burnt-out pillow factory, a dead body pixelating under the bridge, toilets that run on vacuum tubes… you’ve never visited a place like this before.

Five people with nothing in common have been drawn to this rundown, forgotten town. They don’t know it yet, but they are all deeply connected. And they’re being watched.

…Who is Agent Ray really working for and will she get what they want? …What does Junior Agent Reyes know about a 20 year old factory fire that he’s not saying? …Will the ghost, Franklin, get to speak to his daughter again? …Will Ransome the *Beeping* Clown ever become a decent human being? …Will aspiring game developer Delores abandon her dreams and stick by her family?

…And most importantly: how come no one cares about that dead body?

By the end of a long, strange night in Thimbleweed Park, all of this will be answered; and you’ll question everything you thought you knew. In a town like Thimbleweed Park, a dead body is the least of your problems …

The IndieWeb and Webmentions

I’ve been reading about the IndieWeb, and particularly about the Webmention internet standard lately. The whole concept of controlling your own content on the internet, “POSSE” (post on your own site, syndicate elsewhere), and making cross site commenting and mentions possible, immediately clicked with me.

A brief explanation of Webmentions:

Webmentions allow notifications between web addresses. If both sites are set up to send and receive them, the system works like this:

1. Alice has a website where she writes an article about her rocket engine hobby.

2. Bob has his own website where he writes a reply to Alice’s article. Within his reply, Bob includes the permalink URL of Alice’s article.

3. When Bob publishes his reply, his publishing software automatically notifies Alice’s server that her post has been linked to by the URL of Bob’s reply.

4. Alice’s publishing software verifies that Bob’s post actually contains a link to her post and then (optionally) includes information about Bob’s post on her site; for example, displaying it as a comment.

A Webmention is simply an @mention that works from one website to another!

If she chooses, Alice can include the full text of Bob’s reply—along with his name, photo, and his article’s URL (presuming he’s made these available)—as a comment on her original post. Any new readers of Alice’s article can then see Bob’s reply underneath it. Each can carry on a full conversation from their own websites and in both cases display (if they wish) the full context and content.

Chris Aldrich – Webmentions: Enabling Better Communication on the Internet

For the last few days I’ve been trying to implement different elements, like h-cards and webmentions, to make this website IndieWeb compliant. I’ve had to make serious changes to the sites theme, so it isn’t going to look quite the same after I’m done.

This site uses a self-hosted WordPress site, so I’ve been using this guide on the IndieWebCamp wiki with some limited success. The validating tools found here still throw out some errors, such as “A h-card was found on your site, but it’s not marked up as the representative h-card“, and I haven’t figured out how to add a profile photo. I’ll have to figure out how to fix or properly implement all this using the appropriate plug-ins.

Besides the proper implementation, there are some minor issues I’ve discovered with some of the plug-ins not interacting quite as expected. For example, WordPress’s new Guggenheim editor doesn’t allow you to set your IndieWeb post kind so you need to revert to the classic editor to set this, and the webmention form didn’t play nice with the comment system I had implemented (they overdrew each other).

Overall though, its been an interesting journey.

Related Reading:

A Constitutional Endorsement for Direct Democracy in Customary Law

In the Royal Bafokeng Nation “a king is a king by virtue of the people” (Kgosi ke Kgosi ka Morafe). This was endorsed by the South African High Court in a decision extending the principle of direct democracy in the Royal Bafokeng Nation’s (RBN) customary law.

The court had to decide if the RBN could institute significant legal proceedings without consulting the community. These proceedings were of great public concern because it would impact the registration of community land, and impact a long running community dispute regarding the rightful ownership of property.

After analysing RBN’s customary practices, and considering the contentious nature of the legal matter, the court held that the Supreme Council of the RBN couldn’t unilaterally decide to institute litigation of this magnitude – there was a legal duty to consult widely with the community beforehand.

Because there was no wide consultation with the community, the court found that the RBN had no authority to institute the legal proceedings, and that RBN’s attorneys had no authority to act in the legal proceedings.

The nature of the legal dispute

The Minister of Land Affairs was reflected as the registered owner who held over 60 properties “in trust for” the Royal Bafokeng Nation. The RBN disputed the existence of any trust or trust relationship between the Minister and the RBN, and asked the court to declare the RBN as the owner of these properties, and to direct the Registrar of Deeds to register the properties its name.

The Bafokeng Land Buyer Association (the Association) is a group of RBN community members who claim that they are the rightful owners of some of the properties because these properties were originally bought by their ancestors. The Association intervened in RBN’s case as an interested party.

Consultation structures in the Royal Bafokeng Nation

The Royal Bafokeng Nation is a traditional community of approximately 300,000 people, recognised in terms of the Traditional Leadership and Governance Framework Act, No 41 of 2003. The RBN has three levels in its governance structure.

The Supreme Council (L1) is the upper most structure. It is a joint sitting of the RBN’s executive council and the Council of Dikgosana (L3). The Supreme Council meets four times a year, and has historically taken important decisions relating to the community. It ultimately takes few decisions, however, and serves chiefly as a forum for discussion and information sharing.

The Kgotha Kgothe (L2) is a broader community level. It is a general meeting of all of the community members. The Kgotha Kgothe meets two times a year. It is generally not a decision making body, but it serves as a forum for the RBN administration to report back to community members, and for community members to raise matters for discussion. All important matters go before the Kgotha Kgothe (L2) for debate and input, and the members at the meeting can overturn any decision.

The Makgotla (L3) operates at a local level. The community has 29 villages divided into 72 Dikgoro (wards). Each Dikgoro (ward) is led by a hereditary Dikgosana, and meets monthly in its local Kgotla. The Dikgosana also sit as part of the Supreme Council (L1). Community members may ask their Dikgosana to take any local matter up to the Supreme Council (L1). The monthly Kgotla (L3) meetings play a vital governance role, and all disputes are mediated and resolved at this level.

In this structure democracy works from the bottom upwards. The members of the community participate directly in the Makgotla (L3) and the Kgotha Kgothe (L2). They are also represented by their Dikgosana (L2) at the meetings of the Supreme Council (L1).

The Associations legal challenge to the Supreme Council’s decision

During September 2005 the Royal Bafokeng Nation’s Supreme Council passed a resolution authorising the institution of legal proceedings. The Association directly challenged this resolution because the Supreme Council “does not have the power to make a decision of this sort, at least not alone. Insofar as the Council does have decision-making powers on such matters, it has to consult very broadly within the traditional community before doing so, and act on the community’s wishes”.

It was common cause that the resolution was passed by the Supreme Council without any discussion within the Makgotla (L3) or Kgotha Kgothe (L2). There was also no report back to the community after the resolution was passed.

The court accordingly had to determine if the Supreme Council had a legal obligation to consult broadly with the community before taking this decision.

The court analysed the decision making structures, the values publically pronounced by the Kgosi (King), and past practice. The court found that it was part of the RBN’s customary law that all matters of a “public concern” had to be referred to broad consultation for the community to debate. The court, however, disagreed with the argument that the Kgosi (King) had the sole right to determine which matters were of a “public concern” and needed to be referred to broader consultation.

The court emphasised that customary law must be interpreted in light of the South African Constitution and its values, finding that public consultation and participation in decision making is a key component in promoting and strengthening democracy, and protecting rights and freedoms. Without a duty to consult the community, the community wouldn’t have any ability to participate in the management of their assets.

The court accordingly held that there is a duty under RBN’s customary law to consult with the community on matters of public importance. The Supreme Council’s failure to consult with the community regarding the legal proceedings meant that there was no valid decision to proceed with the court case.

My Daily Reading List

I try not to follow the daily news cycle, which I find more distracting than informative. I also shy away from social media, so I don’t have a constant stream of click bait news headlines competing for my attention.

To keep up to date with current affairs I try follow websites that I find interesting using their RSS feeds. I have set up a server running a self hosted instance of FreshRSS to aggregate the feeds so I can read them from my office, home or phone. The list might look long, but each source isn’t updated on a daily basis so I find it somewhat manageable.

My current list of daily reads includes a mix of general international news, technology news, African focused articles, anarchist news and perspectives, and Stoic Philosophy:

General News

  • Comic Book Legal Defense Fund: “Comic Book Legal Defense Fund is a non-profit organization dedicated to protecting the First Amendment rights of the comics medium.”
  • Constitutionally Speaking: “This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos”
  • Conversation: Africa
  • Gates Notes: Updates from Bill Gates
  • Deeplinks: “EFF’s Deeplinks Blog: Noteworthy news from around the internet”
  • GroundUp: “News, analysis and opinion”
  • Intercept: “The Intercept is an award-winning news organization that covers national security, politics, civil liberties, the environment, international affairs, technology, criminal justice, the media, and more”
  • Media Lens: “News analysis and media criticism”
  • TorrentFreak: “Breaking File-sharing, Copyright and Privacy News”
  • Popehat: “A Group Complaint about Law, Liberty, and Leisure”

Specialty News and Commentary:

  • Anti-Fascist News: “Taking on Fascism and Racism from the Ground Up”
  • BDS South Africa: “Boycott – Divestment – Sanctions”
  • Carne Ross: “I am a former British diplomat who resigned over the Iraq war. I now run the world’s first non-profit diplomatic advisory group, Independent Diplomat”
  • CrimethInc: “CrimethInc. ex-Workers’ Collective: Your ticket to a world free of charge”
  • Freedom News: “Anarchist News and Views”
  • It’s Going Down: “Anarchist News and Counter-Information”
  • “News, archives and discussion on the class struggle. For human beings, not human resources”
  • Lucien van der Walt: “Articles, talks, books and texts: red/black and anarchist/ syndicalist/ left history, analysis, theory, struggles”
  • The Youth Rights Blog: “The online home of radical youth rights theory”
  • Unicorn Riot: “Your Alternative Media”
  • Zabalaza: News from the Zabalaza Anarchist Communist Front, “a specific anarchist political organisation based in Johannesburg, South Africa”

Stoic Philosophy

News Aggregation Websites:

Removing the Court’s Power to Decide for the Minister of Mineral Resources

Public officials’ decisions aren’t always flawless when applying the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA), and there are often situations where the Minister of Mineral Resources makes an incorrect decision. In these circumstances a person is not without any legal remedies. It is possible to bring a court application to set aside the incorrect decision, and refer the matter back to the minister for reconsideration.

As a more expedient alternative to referring a matter back to the minister, it became common to ask the court to take the decision directly, and grant the application. The court is asked to step into the shoes of the minister and make the decision itself. This is known as “substitutionary relief”.

The recent decision of the Supreme Court of Appeal in the case of Pan African Mineral Development Company (Pty) Ltd and others v Aquila Steel (S Africa) (Pty) Ltd may, however, put an end to substitutionary relief when it comes to the grant of applications for prospecting and mining rights.

The courts general power to grant substitutionary relief

Any state decision must be lawful, reasonable, and procedurally fair. If not a court may be approached to “review” the infringing action in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Courts are rightly hesitant to grant substitutionary relief, being careful not to overstep its role and perform acts that fall into the realm the state. Generally, there are four situations where a court will be prepared to grant substitutionary relief without referring the matter back for reconsideration, namely when:

  • the end result is a forgone conclusion;
  • the court is as well qualified as the original authority to make the decision;
  • any further delay will cause unjustifiable prejudice; or
  • the original decision maker has exhibited bias or incompetence.

Re-examination of substitutionary relief for certain decision in terms of the MPRDA

It became common to ask for substitutionary relief when challenging a decision on the grant of prospecting or mining rights. Without substitutionary relief, the court sets aside the incorrect decision, and then refers the matter back to the minister for fresh determination. This increases the time that it takes to resolve the matter and be granted the application.

It has been argued that a court is entitled to grant substitutionary relief and grant a prospecting or mining right because the minister is compelled to grant these applications if they meet the set requirements. If the application “ticks all the boxes”, then the result is a foregone conclusion because the minister must grant the application, and the court is as well placed as the minister to determine if the application is compliant.

The Supreme Court of Appeal’s recent decision challenges this argument. Here there were two overlapping applications. Aquila Steel brought a High Court application to set aside both the minister’s decision to accept Ziza’s prospecting application and the decision to grant Ziza a prospecting right.

The High Court accepted the argument that Ziza’s application was defective, and that Aquila Steel’s application was the sole application that could be considered and granted. The High Court granted substitutionary relief:

  • setting aside the minister’s decisions regarding the various applications; and
  • substituting the minister’s decision with the court’s decision to grant Aquila Steel a mining right, on terms to be decided by the minister within 3 months.

On appeal this decision to grant of substitutionary relief was criticised, and it was held that the court didn’t have the power to grant substitutionary relief in respect of the decision to grant Aquila Steel a mining right for two reasons.

First, the minister’s power to grant a mining right, and the minister’s power to impose conditions on the mining right, are inextricably linked. 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. The High Court, however, attempted to separate these decisions when it left the imposition of any conditions up to the minister. This meant that the High Court’s order was misconceived and susceptible to attack on this basis.

Secondly, the information in the mining right application was 7 years old, and possibly outdated. This meant that the grant of the mining right was not a foregone conclusion.

The end of substitutionary relief

The courts argument in respect of substitutionary relief for the grant of a mining right would apply equally to the grant of a prospecting right.

The Supreme Court of Appeal has held that the decision to grant a right in terms of the MPRDA is inextricably linked to the conditions that the minister may impose on the right. A court can’t make a decision to grant the right, and then order the minister to impose conditions as the minister deems fit.

A person would be hard pressed to think of a set of facts where it could be confidently argued that the conditions that should be imposed on a prospecting or mining right is a foregone conclusion, and that the court is as well placed as the minister to impose a set of conditions.

It may well be that the Aquila Steel case has put an end to the grant of substitutionary relief when it comes to the grant of prospecting and mining rights in terms of the MPRDA. If not, the Aquila Steel case has drastically limited the cases where the granting of this relief by a court would be appropriate.

Related Reading:

Remembering Stephen Hawking

You will be missed.

If machines produce everything we need, the outcome will depend on how things are distributed. Everyone can enjoy a life of luxurious leisure if the machine-produced wealth is shared, or most people can end up miserably poor if the machine-owners successfully lobby against wealth redistribution. So far, the trend seems to be toward the second option, with technology driving ever-increasing inequality.

Professor Stephen Hawking, in response to a Reddit AMA

2018 Budget: The Regulation of Crypto Currency

Last Wednesday the South African Minister of Finance, Mr Malusi Gigaba, gave his first and possibly last budget speech for the 2018/2019 year.

The headline grabbing announcement was  the 1% increase in the value added tax rate that will be used to fund free tertiary education for poor and working class families. Towards the end of his speech though my attention was caught by his remarks on an anticipated strengthening of the regulations governing the South African FinTech market. His full comment, courtesy of the published transcript of the budget 2018 speech:

“Work will continue on reforming the legislation for financial markets and the payment system, to ensure that our infrastructure remains globally competitive. The Treasury is working with the Reserve Bank, Financial Services Board and other government entities towards a regulatory framework for all types of FinTech.

For instance, the emergence of cryptocurrencies is a major development to which our regulatory regime must respond.”

So, is there some Bitcoin crypto currency regulation on the way for South Africa? Unfortunately the National Treasury’s Budget Review doesn’t give any more clarity despite being almost 300 pages long.

Budget Review, on page 136:

“Tax treatment of cryptocurrency transactions: Cryptocurrencies are addressed by existing provisions in South African tax law. Cryptocurrencies pose risks to the income tax system as they are extremely volatile and their sustainability is uncertain. At the same time, the supply of cryptocurrency can cause administrative difficulties in the VAT system. To address these issues, it is proposed that the income tax and VAT legislation be amended.”

Budget Review, on page 160:

“In 2018, the Reserve Bank, together with the other domestic financial sector regulators, will publish a position paper on the evolving uses of private cryptocurrencies. A cryptocurrency is a digital asset that is used as a medium of exchange. It uses cryptography to secure transactions, both to control the creation of additional units and to verify the transfer of assets.”

There might not be anything concrete yet, but it does seem like additional regulation of the FinTech industry and crypto currencies is planned.

Strict Compliance isn’t Strictly Required by the MPRDA

In South Africa only one person can hold a valid prospecting or mining right for a particular mineral on land in terms of the governing Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA).

To ensure that no conflicting rights are granted, an application system akin to queuing is used. The first person to lodge a prospecting right application for a particular mineral is first in queue, and no prospecting right applications submitted afterwards can be considered or granted until the first application has been rejected (section 16(2)). In addition, a person that is granted a prospecting right over land for a particular mineral has the sole and exclusive right to apply for, and be granted, the relevant mining right (section 19(1)).

Unfortunately, it’s possible for the system not to work as intended, and for the Department of Mineral Resources (DMR) to issue overlapping prospecting and mining rights for the same mineral. In these circumstances an aggrieved person can use the MPRDA’s internal appeal process to review the DMR’s administrative decision to issue the conflicting right, and have the conflicting right set aside (section 96(1)). The after the initial internal appeal an unsuccessful party may have the option to approach the High Court for relief in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

This is where complex legal arguments often start, with both parties contending to convince the court that their application was the first valid application that was submitted to the DMR, and that the other parties prospecting or mining right is the right that should be set aside as being invalidly granted. The importance of being the first valid application that was submitted to the DMR was demonstrated in the case of Pan African Mineral Development Company (Pty) Ltd and others v Aquila Steel (S Africa) (Pty) Ltd .

In this case the Supreme Court of Appeal’s decision hinged on whether the first prospecting right application in the queue was fatally defective because it didn’t strictly comply with the requirements of the MPRDA, and whether the DMR was entitled to consider the next conflicting application in the queue because of the first applications non-compliance.

It was not disputed that the first application was non-compliant with the MPRDA, but the Supreme Court ultimately found that even though there was non-compliance, the non-compliance did not render the first application fatally defective. Because the first application in queue was not fatally defective and had not been refused by the DMR, the Supreme Court held that the DMR’s decision to grant the second conflicting right was the invalid decision, and that the second conflicting right was the right that should be set aside.

The original decision of the High Court

This case was first heard in the Gauteng High Court as Aquila Steel (South Africa) Limited v the Minister of Mineral Resources and others, which I discussed here previously. The timeline relating to the two overlapping applications is as follows:

  • On 19 April 2005 Ziza Limited (Ziza) submitted a prospecting right application.
  • A year later, on 18 April 2006, Aquila Steel (South Africa) Limited (Aquila) submitted prospecting right application. Aquila’s application was granted on 11 October 2006.
  • On 26 February 2008 Ziza’s prospecting right application was granted. There were now two prospecting rights granted over the same land for the same mineral.
  • On 14 December 2010 Aquila applied for a mining right. This application was, however, now refused by the DMR because the DMR alleged that of Ziza’s prior application was in queue before Aquila’s, and that Aquila’s right shouldn’t have been granted originally.

It was common cause that Ziza’s application didn’t strictly comply with the requirements of the MPRDA because it didn’t include the prescribed coordinated map showing the land that the application extended over.

The wording of the section 16(3) of the MPRDA when the applications were submitted and decided was the following:

If the application does not comply with the requirements of this section, the Regional Manager must notify the applicant in writing of the fact within 14 days of receipt of the application and return the application to the applicant.

Aquila argued that because Ziza’s application was not complete, the application could not be accepted by the regional manager and it would have to have been “returned” to Ziza. It argued that because the act required return of the application, when Aquila submitted its application there would have been no prior pending application for a prospecting right. Aquila’s application would have been the only valid application, and consequentially the only valid prospecting right, over the contested area.

Ziza counter argued that the defect in its application didn’t mean that its application automatically failed and had to be rejected by the DMR. It argued that a defective application can be amended after submission to remedy defects.

The High Court accepted that the application was defective, and turned its analysis to what the required notifying and “returning the application to the applicant” meant in terms of the then section 16(3) of the MPRDA. Did this mean the application was rejected, or did it mean that the process was merely suspended to allow the applicant to amend its application?

The court considered the objective of the MPRDA to prevent sterilisation of mineral resources. This would be hindered if the return of the application allowed the applicant to amend a defective application. The act didn’t specify any timelines that the amendment must be done, meaning that an applicant could delay the entire procedure by not amending the application (or taking years to amend as in the present case), effectively sterilising the minerals by preventing other companies from applying for prospecting rights over the land.

The court also considered the practicalities of “returning the application”. This means the DMR has no record of the application other than the day that it was received and returned. Crucially the DMR wouldn’t have records of the minerals or land that the application related to.

The court concluded that a “return” of a non-compliant application to allow an applicant to remedy defects amounts to a rejection of the application.

The high court held that:

  • Ziza’s prospecting right application was fatally defective because it failed to strictly comply with the requirements of the MPRDA – Ziza had failed to include the prescribed coordinated map showing the land that the application extended over;
  • the DMR was required to “return” a non-compliant application in terms of section 16(3) of the MPRDA;
  • the “return” of Ziza’s application would mean that the application had been rejected;
  • if Ziza subsequently amended its application, then the amended application would have to be treated as a new application; and
  • it was therefore not competent for the DMR to accept and grant Ziza’s application for a prospecting right.

The court accordingly set aside both the DMR’s decision to accept Ziza’s prospecting application and the decision to grant Ziza a prospecting right.

The reversal of the High Court’s decision on appeal

Ziza appealed the decision to the Supreme Court of Appeal, which reversed the High Court’s decision and found in Ziza’s favour.

The Supreme Court first considered a question overlooked by the High Court – was Ziza’s application fatally defective because it didn’t strictly comply with the requirements of the MPRDA by not including the prescribed coordinated map? (See the courts full discussion in paragraph 19 to 22.)

Statutory requirements, such as the requirements that a prospecting application must comply with, are generally either:

  • mandatory (peremptory) requirements, which needs exact compliance and where purported compliance that falls short of the requirements is a nullity; or
  • directory requirements, which although desirable to comply with will have no legal consequences if not complied with (footnote 22).

The requirements of the MPRDA in relation to applications for prospecting rights are framed as mandatory requirements that require strict compliance. The applicable section states that “[a]ny person who wishes to apply to the Minister for a prospecting right … must lodge the application … in the prescribed manner” (section 16(1)(b)). Aquila argued that because Ziza didn’t comply with the mandatory requirements set out in the regulations, its application was a nullity.

The Supreme Court, however, recognised that a third category of statutory requirements had been developed that lay between mandatory and directory requirements. These are statutory requirements that are framed as mandatory requirements but that only require substantial compliance in order to be legally effective.

The Supreme Court endorsed its previously held view that not every deviation from the literal prescription of an act should be fatal. The question that should be asked is “whether, in spite of the defects, the objective of the statutory provision had been achieved” (paragraph 20).

The Supreme Court held that even though Ziza’s application did not strictly comply with the requirements of the MPRDA by including the prescribed coordinated map showing the land that the application extended over, Ziza had substantially complied and had given the DMR sufficient information in order for the DMR to identify the relevant properties and log them onto the application system. The additional information included in Ziza’s application included:

  • hand drawn plans that identified the co-ordinates;
  • the registered descriptions of the farms;
  • the co-ordinates of the total area; and
  • the description of the old order rights in respect of which the application was made, which included the farm details, area size and grid reference.

The Supreme Court held that Ziza had substantially complied with the requirements of the MPRDA and that it could not be suggested that the DMR was unaware of the properties that formed part of Ziza’s application.

On the question of whether a return of the application, as required by the MPRDA at the time, constituted a refusal by the DMR, the Supreme Court held that there is an important distinction between the “return” and the “refusal” of an application – a return is exercised by the regional manager of the DMR and gives the applicant with an opportunity to supplement its application, while a refusal is exercised by the Minister, not the regional manager.


The Aquila judgement doesn’t eliminate the need for applicants to comply with the requirements of the MPRDA in order to ensure that the DMR can’t reject their application.

The judgement does, however, clarify that the statutory requirements in the MPRDA should not be viewed as mandatory (peremptory) requirements that need to be strictly complied with in order to ensure that an application is valid.

This may ensure that an application for a prospecting right will not fail merely if a single statutory requirement was not met, or if a single document was omitted from the application.

The important consideration is if there was sufficient compliance with the requirements in order for the objectives of the MPRDA to be achieved. An application may still be rejected by the DMR, or a prospecting right or mining right may still be set aside, if it can be shown that the level of compliance was insufficient.

Related Reading:

Reading List: 2018

October 2018

September 2018

August 2018

July 2018

June 2018

May 2018

April 2018

March 2018

February 2018

January 2018

More Lists

The Future of Bitcoin Regulation in Africa

The launch of the first Bitcoin future for trade in the United States of America during December 2017 has brought significant public attention to both the Bitcoin crypto currency, and the underlying bitcoin network (blockchain technology protocol that the crypto currency is built on).

When looking at the future of Bitcoin and blockchains, and the potential impact that these can have in the various African markets, an area to keep an eye on is various governments’ possible approaches to the regulation of crypto currencies. Various attempts at regulation have already been seen in other parts of the world, and it is still to be seen what the reaction of some African governments, and regulators, will be.

From a government regulatory perspective, the desire to regulate crypto currencies like Bitcoin arises primarily from their ability to be used as an untraceable digital cash system.

Even though Bitcoin transactions happen publicly on the blockchain, and it’s possible to view all transactions that happen and see the exact details of all amounts transferred between addresses on the blockchain, it’s not possible to easily link these transactions with a person’s real identity. The Bitcoin crypto currency offers pseudonymity when transacting, meaning that it is an almost-untraceable digital cash.

Untraceable digital cash poses various problems to governments.

One problem is the enforcement of capital controls. Bitcoin makes it trivial to bypass laws restricting to limit of the flow of capital into or out of a country. This is done by liquidating assets in one country, buying Bitcoin, and then transferring those Bitcoins into or out of a country.

This “problem” is, however, also the source of one of Bitcoins advantages to people adopting it. In this context Bitcoin makes remittances of money by migrant workers back to their family in their home country quick, cheap, and easy.

Another problem is difficulties surrounding money-laundering. This is because it may not be possible to identify or authenticate the real identity behind each transfer of Bitcoin.

The difficulties with, and sometimes dangers of, untraceable digital cash can be illustrated by the “Silk Road” website that was operated over the internet as a TOR hidden service. The Silk Road was an anonymous marketplace that offered various goods, including illegal drugs, in exchange for Bitcoin. The untraceable Bitcoin system allowed people to exchange value in the form of untraceable digital cash (Bitcoin) without ever having to reveal their real identities. This website was able to operate from February 2011 to October 2013, before being shut down. When shut down law enforcement was able to seize 170,000 Bitcoins (which would have a value of more than $2,550,000,000.00 at the peak December 2017 prices).

Governments could use to try to address these problems is by strictly regulating Bitcoin exchanges, making it difficult for a person to turn large amounts of local currency into Bitcoin, or to buy large amounts of Bitcoin with local currency.

Existing, and potentially new, anti money-laundering laws could also be applied businesses and to Bitcoin transactions. These could include “know your customer” requirements, and mandatory reporting requirements that require businesses to identify and authenticate their customers, and to report transactions over a certain monetary threshold.

Another, more draconian, method to address these problems is the outright banning of the use of Bitcoins by businesses.

It is impossible to predict what steps countries in Africa will take in the future to regulate Bitcoin and other crypto currencies. Each country will no doubt adopt the approach that they think best given the particular countries unique economic and cultural circumstances.

What is important, however, is to understand to what extent existing laws in each market could extend to Bitcoin transactions, and properly adapt to any new laws that are adopted in the future.

Comic Pull List – December 2017

In the year since my last comic book pull list, I haven’t added any new ongoing comic book titles because I have a lot of unread comic books that I’ve bought, but haven’t got around to reading.

Right now I am buying these ongoing titles on a monthly basis:

Reduced Profits is not Expropriation

The South African Constitutional Court has held that property owner doesn’t have a legal right to value property using a particular method, or to get a specific value when selling the property. In South African Diamond Producers Organisation v Minister of Minerals and Energy the court found that a change to the way a market is regulated isn’t unlawful deprivation of property by the state, and isn’t unconstitutional.

The court was asked to consider the changes to the market practice commonly used by diamond producers when selling diamonds, which is regulated in terms of the Diamonds Act (No 56 of 1986). Previously, diamond producers could use so-called “tender houses”, where non-licenced foreign experts, representing foreign buyers, would assist licenced purchasers with their purchase of parcels of unpolished diamonds.

The Diamond Act was amended to prohibit unlicensed experts from assisting licenced purchasers, effectively outlawing the common business practice used in tender houses. Two constitutional questions were raised against the legal amendments. First, does the prohibition of the market practice result in an unlawful deprivation of property? Secondly, does the prohibition of the market practice infringe on a person’s right to choose a trade?

The court held that the amendments to the Diamonds Act were constitutional; confirming government’s right to regulate markets and change regulations, even when changes decrease the market value that could be realised when selling goods.

Was there an an unlawful deprivation of property?

On the first constitutional question – unlawful deprivation of property – the South African Diamond Producers Organisation (SADPO) argued that outlawing of the tender house practice deprived diamond producers of the right to receive full market value for their property when selling diamonds because they could now only market to local licence holders. They argued that a key part of the markets price-forming mechanism was being prohibited, leading to a 30% reduction in the market value that diamond producers could realise. This, they argued, was an interference with the right to alienate property at the highest possible price.

The test the Constitutional Court applies a three stage test to determine if there has been an unconstitutional deprivation of property by the state, (i) is the thing being considered “property”; (ii) is there a “deprivation” of that property; and (iii) is the deprivation arbitrary. If all three questions are answered affirmatively, then the deprivation of the property by the state is unlawful.

The Constitutional Court has held in previous cases that property doesn’t need to be physically taken in order for there to be deprivation. To be classified as a deprivation of property there must, however, be some form of substantial interference going beyond normal restrictions that an open and democratic society would place on property.

The court recognised that a diamond producer has a clear constitutional property right in the physical diamonds themselves, but it was not convinced that these property rights were deprived by merely changing the regulations governing the methods that may be used to sell the property.

The producers still had a right to sell their property, albeit now using different methods. Even if a 30% loss in market value could be proved, this isn’t depravation of the producer’s property rights because they could still sell their diamonds and receive full market value. The only effect was in the methods that could be used to sell the diamonds and the market conditions that determine the highest price – the right to sell was not impacted by the legal amendments.

The court held that markets are inherently regulated, and that an owner of property doesn’t have a legal right to value his goods using a particular method, or to obtain a specific value for his goods – there is no protectable interest to conduct a sale using a particular practice.

On the first constitutional question, the court accordingly held that there was no deprivation of property by the state through the amendments to the Diamonds Act that outlawed the business practice used in tender houses.

Was there an infringement on the right to trade?

On the second constitutional question – the infringement of the right to trade – SADPO alleged that that outlawing the tender house practice infringed its members right to conduct their business as they deemed fit, breaching their freedom of trade, and their right to conduct an occupation or profession.

The court held that this constitutional right had two distinct elements.

The first element was if the right to choose a trade, occupation or profession was limited. The court held that the amendments didn’t place any hard legal barrier to choosing a trade. It also considered if the amendments placed an effective limit on the trade by effectively barring the entry to the trade by making the practice of the trade so undesirable or unprofitable. The court held that there was no effective limit either – the producer was still able to get assistance through either a licenced person outside of a diamond exchange and export centre (DEEC), or by an unlicensed person at a DEEC.

The second element was if the regulation of the trade was rational and related to a legitimate governmental purpose. The test for rationality is important; it is not a test of whether the regulation reasonable or effective, or whether the objectives can be achieved in better ways. The court ultimately held that the amendments to the Diamonds Act were rationally connected to the promotion of local beneficiations and the monitoring of the movement of unpolished diamonds.

The court’s finding

The court rejected all suggestions that the outlawing the tender houses were unconstitutional, holding that the reduction of a producers profits resulting from a change in the regulation of a market is not unlawful deprivation of property because no property was in fact deprived, and doesn’t infringe the right to conduct a trade if the regulation has a rational purpose.

The Marikana Massacre

It has been five years since the evils of the Marikana Massacre.

… To the earnest student it must be apparent that the accumulated forces in our social and economic life, culminating in a political act of violence, are similar to the terrors of the atmosphere, manifested in storm and lightning.

To thoroughly appreciate the truth of this view, one must feel intensely the indignity of our social wrongs; one’s very being must throb with the pain, the sorrow, the despair millions of people are daily made to endure. Indeed, unless we have become a part of humanity, we cannot even faintly understand the just indignation that accumulates in a human soul, the burning, surging passion that makes the storm inevitable.

The ignorant mass looks upon the man who makes a violent protest against our social and economic iniquities as upon a wild beast, a cruel, heartless monster, whose joy it is to destroy life and bathe in blood; or at best, as upon an irresponsible lunatic. Yet nothing is further from the truth. As a matter of fact, those who have studied the character and personality of these men, or who have come in close contact with them, are agreed that it is their super-sensitiveness to the wrong and injustice surrounding them which compels them to pay the toll of our social crimes. The most noted writers and poets, discussing the psychology of political offenders, have paid them the highest tribute. Could anyone assume that these men had advised violence, or even approved of the acts? Certainly not. Theirs was the attitude of the social student, of the man who knows that beyond every violent act there is a vital cause …

Emma Goldman, The Psychology of Political Violence, from Anarchism and Other Essays