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


This work by Clinton Pavlovic is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.

The unedited featured photograph by Pawel Janiak  was published under a Creative Commons Zero Licence.

The Legal Requirement to think about Global Warming

During March 2017 the High Court of South Africa in Pretoria, handed down a decision that has been hailed in some quarters as a victory in the fight against dirty energy and global warming. The court’s decision in isolation isn’t a decisive victory for the proponents of clean energy, but it does add an important tool that can be used in future fights, not only against coal fired power stations, but also in broader environmental challenges against the dirty energy and extractive sectors.

Earthlife Africa Johannesburg asked the court to set aside the Department of Environmental Affairs’ decision to grant an environmental authorisation to the preferred bidder, Thabametsi Power, that was selected to build a 1,200 MW coal fired power station near Lephalale in the Limpopo Province. If set aside, construction would be delayed until a new environmental authorisation could be applied for and granted.

Earthlife argued that the environmental authorisation should be set aside because a climate change impact assessment had not been conducted, meaning firstly that all the relevant environmental factors had not been considered before the environmental authorisation was granted, and secondly that the decision to grant an environmental authorisation without considering a climate change impact assessment rendered the decision irrational and unreasonable.

The court decided in Earthlife’s favour, setting aside the environmental authorisation. The matter was referred back to the minister’s internal appeal process, giving the minister the opportunity to consider the climate change impact assessment report that had been prepared by Thabametsi Power after its initial environmental authorisation was granted.

The court didn’t, however, prohibit the construction of coal-fired power stations, and didn’t make any decision on whether the construction of additional coal-fired power stations should be permitted or restricted in the future. This allows the minister to decide to grant an environmental authorisation after weighing up all the relevant factors, which now includes the potential global warming impacts and South Africa’s international commitments on climate change.

The narrow questions that the court considered was if the minister had a legal obligation to consider global warming impacts of the project, and if so, did the minister have sufficient information when taking the decision to properly consider global warming as a relevant factor.

Earthlife argued that before the minister grants an environmental authorisation, all criteria set out in the National Environmental Management Act, No 107 of 1998 (NEMA) must be considered. The act requires the minister to “take into account all relevant factors, which may include …” going on to list various factors including pollution, environmental impacts and environmental degradation (section 24O). Earthlife argued that even though the section doesn’t specifically list climate or global warming impacts as a factor, these impacts fall into the non-exhaustive list of “relevant factors” and must be considered.

The department argued that there was no South African law requiring the preparation of a climate change impact assessment. It also argued that South Africa’s international obligations to reduce greenhouse gas emissions were broadly framed and in the discretion of the government, which must take into account the government’s over-riding priority to address poverty and inequality. Thabametsi Power added the arguement that to introduce a mandatory assessment the entire legal regime governing environmental impact assessments must be challenged.

The court agreed with Earthlife; NEMA’s list of “relevant factors” is non-exhaustive, meaning that the minister must consider any relevant factor even if it is not specifically listed.

The court examined the legislative and legal framework that governs South Africa’s climate change and energy policies to determine if climate change impacts are “relevant”. It considered domestic policies such as the National Climate Change Response White Paper of 2012, the Integrated Resource Plan for Electricity 2010-2030 (“IRP”) adopted by the South African cabinet, the Department of Energy’s binding determination on the mix of energy generation technologies that was adopted in terms of the Electricity Regulation Act No 4 of 2006, and South Africa’s international obligations. The legal framework overwhelmingly supports the argument that the assessment of climate change impacts and mitigation measures are relevant factors that must be considered as part of the environmental authorisation process.

After finding that the minister must consider climate change impacts, the court turned to the question of if the minister had enough information at the time to properly consider this factor.

When the minister granted the environmental authorisation, only an environmental impact assessment reports (EIR) was considered. The EIR didn’t quantify the greenhouse gas emissions, stating only that “while quantification of the relevant contribution … is difficult, the contribution is to be considered to be relatively small in the national and global context”. It also didn’t consider the impact that the coal fired power station could have on global warming, and the effects that global warming would have on water scarcity in the region. The EIR was also directly in conflict with a later climate impact report that found that the emissions from the power station could constitute up 3.9% South Africa’s total emissions after 2025.

The court found that the minister didn’t have all the legally required information when making the decision to grant the environmental authorisation, and was unable to weigh up the competing factors before making the decision.

The court didn’t prohibit the building of the coal powered power station, but only ordered that the decision to grant the environmental authorisation was to be remitted back to the minister so that the minister could consider the climate change impact assessment report and comments on the report submitted by any interested and affected parties.

The decision in this case should serve as a call for all parties to fully consider potential impact that projects may have on South Africa’s commitments to curtail global warming.


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It’s Time to Reappraise Our Concept of Property

For South Africans to make substantial and lasting progress in making the ideals of the Constitution a reality, it’s necessary to recognise past injustice, reappraise the conception of ownership and property, and accept the consequences of constitutional change. These were the words of the Constitutional Court of South Africa in a judgement delivered by Froneman J in case of Daniels v Scribante and Another (2017 ZACC 13).

In this case Mrs Daniels occupied a dwelling on the landowner’s property in terms of the Extension of Security of Tenure Act No 62 of 1997 (ESTA). The landowner accepted that the state of the dwelling was degrading and not fit for a human, but the landowner nonetheless wanted to stop Mrs Daniels from the leveling the floors, paving an outside area, and installing running water, a wash basin, a second window and a ceiling. All the improvements were going to be done by Mrs Daniels at her own cost.

The court had to decide if the landowner could stop Mrs Daniels from making improvements to the dwelling to make it habitable.

The Court’s Main Judgement

The court rejected the landowner’s argument that even though Mrs Daniels had the right to live in the dwelling on their property, she did not have the right to improve the property to make it fit for human habitation. In the courts main judgement Madlanga J said that the landowner placed an overly narrow interpretation the wording of the law, ignoring the laws purpose. He said that the law is about more than just a roof over your head, and that the right to occupy a dwelling can’t be separated from other fundamental human rights, like the right to human dignity. Mrs Daniels right to occupy the dwelling (her security of tenure) includes habitability. Habitability includes the right to make improvements. If there was no right to make the improvements, then the dwellings habitability is removed, destroying an occupier’s security of tenure.

The court also rejected the landowner’s second argument that if Mrs Daniels was allowed to improve the property, then the landowner might be forced to repay these costs if she was ever evicted, in effect meaning that the landowner was being forced to fund the improvements. The landowner argued that this would be a positive obligation, but that the Bill of Rights doesn’t impose a positive duty on a landowner to ensure that an occupier lives in conditions fit for human habitation.

Importantly, the court dismissed this second argument saying that the Bill of Rights can’t be interpreted as never being able to impose positive duties on private persons. ESTA already imposes a positive duty – a duty to accommodate another person on your land. What’s needed is a weighing of all the relevant factors, and the positive nature of the obligation is only one factor considered.

Mrs Daniels’ right to human dignity and security of tenure must be weighed against the potential that a landowner may have to compensate her if she was ever evicted. The court noted that under our common law a landowner already may have to compensate tenants or occupiers on their departure under certain circumstances.

Madlanga J ordered that Mrs Daniels has the right to improve the dwelling after consulting with the landowner regarding the times that her contractors will need access to the farm.

The Court’s Rejection of Property Absolutism

The landowner’s defense was based on the concept of property absolutism, which places the property rights of an owner above all else. In a separate concurring judgement Froneman J said that it is time for South Africans to reappraise the concept of property, and to reject property absolutism.

Froneman J said that this concept arose in Europe at a time when they underwent a real socio-political struggle against feudal oppression. In the European struggle property absolutism played an important role to ensure individual freedom, but just because the concept played an important role in developing western capitalism, it doesn’t mean that the concept should continue to exist under the South African constitutional dispensation.

The concept of property absolutism didn’t play a role in determining the current land distribution in South Africa. On the contrary, land distribution was determined by a series of laws that were calculated to deprive black people of land and to create a population of wage slaves – people who couldn’t be self-sufficient and who would have to depend on employment at white owned farms and mines for survival.

Froneman J dismissed the argument that absolute protection of property rights is necessary because of modern market benefits, pointing out that this argument is an attempt to slow down or frustrate constitutional change. He said that these extra-judicial arguments, based on economic efficiency, hide their theoretical assumptions and then leap to a conclusion that the economy will suffer from any change that upsets the existing protection and distribution of property. He warned against being blind to the limits of market based exchanges.

Froneman J rejected the argument that the protection of existing property is currently needed in South Africa in order to ensure personal and economic freedom.

This judgement doesn’t in itself alter the legal dispensation, but going forward it should be used to re-evaluate the strict concept of property, and the commonly held assumption that the rights of landowners will always trump the rights of other people in our democratic society.

Indeed, it is time to accept the consequences of constitutional change.


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The unedited featured photograph by Katie Barrett was published under a Creative Commons Zero Licence.

Protecting Important Land Areas

During March 2017 the Supreme Court of Appeal of South Africa handed down a decision ensuring the continued environmental protection of the Makhonjwa Mountains in Mpumalanga (also known as the Barberton Greenstone Belt). This was necessary despite the area being placed on South Africa’s tentative list of world heritage sites in 2008, and despite the provincial government taking three separate actions in 1985, 1996 and 2014 to ensure that the area was protected.

In the case of Mpumalanga Tourism and Parks Agency v Barberton Mines (Pty) Limited ((216/2016) [2017] ZASCA 9 (14 March 2017)) the court was asked to decide if the Makhonjwa Mountains had legal protection from mining activities, or if a single flawed government notice meant that the government’s ongoing efforts to protect the area was for nothing.

Barberton Mines was granted a prospecting right in terms of the Minerals and Petroleum Resources Development Act, No 28 of 2002 (MPRDA). When the company wanted to start their prospecting operations they were denied access to the area by the Parks Agency. The Parks Agency alleged that the company’s prospecting right was invalid and fell to be set aside because it was granted over land that formed part of a protected area in terms of the National Environmental Management: Protected Areas Act, No 57 of 2003 (NEMPAA).

The Parks Agency appealed the Minister of Mineral Resource’s decision to grant the prospecting right using the department’s internal process, but the minister rejected this appeal. Barberton Mines then launched a court application in the North Gauteng High Court. The court held that the Makhonjwa Mountains were not protected under NEMPAA, granted Barberton Mines a court order affirming the company’s rights to prospect in the area, and ordered the Parks Agency not to prevent or interfere with the company’s prospecting activities.

Appeal to the Supreme Court

The Parks Agency took the High Court decision on appeal. It argued that the Makhonjwa Mountains is protected under NEMPAA because it is a declared, or designated, protected area. This protection prohibits anyone from conducting commercial prospecting, mining, exploration or production within its boundaries (see section 48).

Barberton Mines counter argued that the actions taken by the provincial government in 1985, 1996 and 2014 were insufficient to declare the Makhonjwa Mountains a protected area in terms of NEMPAA. It argued that the 1985 resolution was invalid because was not issued by the correct authority or published as required, and that the 1996 proclamation was void because it did not adequately describe the area – the resolution only identified the area as “Barberton Nature Reserve”, without any accompanying map or detailed area description.

The Supreme Court of Appeal affirmed that NEMPAA binds the state and trumps any other legislation if there is a conflict on the management or development of protected areas – if an area is validly declared or designated protected area then prospecting operations in the area is prohibited.

The only question that the court had to decide was whether the Makhonjwa Mountains was validly declared as a “protected area” as contemplated by NEMPAA. For this, the court placed emphasis on the 1996 proclamation, finding that it was sufficient to be considered a “declaration” or “designation” required by NEMPAA, albeit that this declaration took place before NEMPAA came into force. The court then turned its attention to Barberton Mines’ argument, and the High Court’s finding, that this proclamation must be found to be void because its description of the area was vague.

The court considered previous cases that dealt with actions to declare laws void for vagueness, including a 1955 Appellate Division case of R v Pretoria Timber Co (Pty) Limited (1950 (3) 163 (A)) that held that “[t]he degree of certainty, clarity or precision that must be present … depends on the circumstances. … The law requires reasonable and not perfect lucidity …”, and a 2006 Constitutional Court case of Affordable Medicines Trust v Minister of Health (2006 (3) SA 247 (CC)) that added that “[t]he doctrine of vagueness must recognise the role of the Government to further legitimate social and economic objectives [a]nd should not be used unduly to impede or prevent the furtherance of such objectives”.

The court stated that common sense must prevail, finding that the 1996 proclamation did not need a “faultless description couched in meticulously accurate terms in order to be valid”, only that the area should be indicated with sufficient certainty.

The court noted that the provincial government had given a particular meaning to the “Barberton Nature Reserve” since 1985. Because the 1996 proclamation is related to the detailed 1985 resolution it couldn’t be argued that people wouldn’t know what area the 1996 proclamation refers to. It is therefore valid for the 1996 proclamation to refer to the area only by name without detailing the exact area description.

The common sense approach adopted by the court is ultimately correct because minor errors in a government declaration shouldn’t prevent the government bodies from performing their important constitutional duties and achieving their social and economic objectives. The Nature of the error is, however, an important consideration. In this case the error had no real effect on the public’s ability to understand the declaration, but this doesn’t mean that in the future the court would turn a blind eye an error that truly introduces uncertainty.

The Parks Agency’s appeal was ultimately successful, effectively preventing Barberton Mines from conducting prospecting in the area which, if not certain before, is now a confirmed “protected area” under NEMPAA.

On a side note, the Supreme Court of Appeal appears to endorse the view that mining operations in a protected area might be permitted in under the MPRDA if the activities are in the national interest (section 48). The court wasn’t asked to decide this issue, but this may be an area of the law open for future debate.


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The unedited featured photograph by Jamie Hagan was published under a Creative Commons Zero Licence.

Prospecting Right Applications: The Queuing Conundrum

The laws governing mining rights in South Africa is founded on three principles: (i) the State is the custodian of all minerals; (ii) any person may apply for a right to prospect on a first come first served basis; and (iii) a use it or lose principle applies to rights. These principles ensure a system that encourages active prospecting and prevents people from holding onto rights without using them to prevent others from actively prospecting.

The application procedure is a system of queuing – the first to submit an application is in the front of the queue, and all subsequent applications form a queue behind the first which can only be considered once the first application has been rejected.

An unresolved legal question was whether a company can submit a non-compliant application as a placeholder in the queue, and then later amend the application to make sure it is compliant.

The recent Gauteng High Court decision in Aquila Steel (South Africa) Limited v the Minister of Mineral Resources and others (72248/15) promised guidance on the proper application of the principles governing the application procedure, which it indeed gave, but an important aspect of the decision mustn’t be overlooked. The laws that the court applied to come to its decision have been amended.

In this note I’ll consider if the court’s decision, and if the amendment of the the Mineral and Petroleum Resources Development Act, No 28 of 2002 (MPRDA) will affect its application.

This decision has, however, been successfully appealed, which I discuss here.

The Courts Reasoning in the Aquila Steel Judgement

This case dealt with two conflicting prospecting rights granted over the same land for the same mineral.

On 19 April 2005 Ziza Limited (Ziza) submitted a prospecting right application. The application was, however, incomplete because it didn’t comply with the prescribed requirements – it omitted the prescribed plan showing the land over which the application applied.

On 18 April 2006 Aquila submitted prospecting right application, which was granted on 11 October 2006.

On 26 February 2008 Ziza’s prospecting right application was granted. There were now two rights granted over the same land for the same minerals.

On 14 December 2010 Aquila applied for a mining right. This application was, however, now refused by the Department of Mineral Resources (DMR) because of Ziza’s prior application that the DMR said was in queue before Aquila’s.

The court had to decide which application was first in queue and should be considered.

Aquila argued that Ziza’s application was not complete and that the defects meant it had to be rejected by the DMR – this rejection would result in the application falling out of the queue and leave Aquila’s application as next in line. Ziza counter argued that a defect in an application doesn’t mean that the application automatically fails and has to be rejected by the DMR, but that a defective application can be amended to remedy defects without losing its place in the queue.

Does a prospecting right applicant lose their place at the front of the queue if their application doesn’t comply with the formal requirements of the MPRDA? To answer this question the court applied the wording of section 16(3) of the MPRDA as it read at the time when the applications were submitted and decided:

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.” (own emphasis).

The crux was to determine what notifying and “returning the application to the applicant” meant. Did this mean the application was rejected, or that the process was merely suspended to allow the applicant to amend the application without losing its place in the queue?

The court considered the objective of the act to prevent sterilisation of minerals. 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” was a rejection meaning the application fell out of the queue. An applicant could amend the application but the resubmitted application must be treated as a new application and fall behind any other applications in the queue.

Ziza’s non-compliance meant that its application fell out of the queue. Aquila’s application would accordingly have to be considered because it was the next application in the queue.

Current Position under the MPRDA

The Aquila case applied the provisions of the MPRDA as they read between 2005 and 2013, the years when the decisions were taken. This means that the court’s reasoning may not apply to decisions taken after the amendment of the act.

The MPRDA was amended on 13 June 2013, and the amended provisions must be applied to any decisions taken by the DMR after this date. Section 16(3) now reads:

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.” (own emphasis).

The amendment removes the requirement to return a non-compliant application – the very requirement that the court considered when deciding the Aquila case.

Under the amended section the DMR must only notify the applicant that its application is non-compliant. The DMR still can’t accept non-compliant applications, but it now doesn’t have an obligation to return them. Does the non-return of the application change the application of the Aquila judgement and mean that there is no rejection of the application? Does this now give an applicant an opportunity to remedy its applications non-compliance without losing its place in the queue?

In my opinion the amended section 16 of the MPRDA does not change the application of the Aquila decision. The amended section doesn’t alleviate the concerns in the Aquila judgement around the sterilisation of minerals if the applicant possibly has an unlimited period to remedy its applications non-compliance.

In terms of the amended section the applicant is still notified of the non-compliance. This notification itself would be an administrative action taken by the DMR, and would be a rejection of the application in line with the Aquila judgement. The non-return of the application merely alleviates the DMR’s burden and costs associated with returning voluminous applications.

Conclusion

The Aquila judgement highlights the need for prospecting right applicants to make sure that their application complies with all the formal requirements of the MPRDA before submission.

If an application is non-compliant the DMR must reject the application. The applicant can remedy the defects, but the resubmitted application will be regarded as a new application, and fall last in the application queue.

There have been amendments to the MPRDA removing the DMR’s obligation to return the non-compliant application, but this amendment would not alter the application of the legal principles decided in the Aquila judgement.

Related Reading:


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Suspending Overbroad Safety Instructions that Halt Mining Operations

If an inspector has reason to believe that there is an occurrence, practice or condition on a mine that endangers any person, then section 54 of the Mine Health and Safety Act, No 29 of 1996 (MHSA) allows the inspector to issue any safety instruction necessary to protect the health and safety of persons at a mine.

These safety instructions can have severe consequences because inspectors are empowered to halt operations at the entire or part of the mine, halt any act or practice at the mine, or require the employer to take acts to rectify the occurrence, practice or condition (section 54(1)).

Unfortunately a practice developed where inspectors issued broad instructions going beyond what is needed to protect the health and safety of persons, often halting the operations of entire mines for very minor or isolated infractions.

This practice has now been scrutinised and severely criticised by the Labour Court in the case of Anglo Gold Ashanti Limited v Xolole Mbobambi and others, where the court granted an order to partly suspend the safety instructions pending an appeal. This order allowed the mine to restart operations after being closed for a time.

I hope that the court’s criticism will curb overbroad safety instructions and undue production stoppages, but even if it doesn’t, the decision clarifies the grounds that can be relied on to have the safety instructions suspended pending an appeal.

Facts of the Case

An inspector observed two safety infractions on a single level of the mine that employed 2% of the mine’s workforce. The infractions were:

    • 43 explosive charges had not been placed in an explosive box; and
    • 4 rail switches didn’t have rail switching devices.

The inspector issued a safety instruction that prohibited the use of explosives throughout the whole mine and halted all tramming operations. This effectively closed the entire mine.

The mine launched an urgent application to suspend safety instructions pending a full appeal. The mine argued that the safety instructions were erroneously issued, contending that:

    • the non-compliance connected with the explosive charges was an isolated incident;
    • no circumstances existed on 44 level that rendered the whole level unsafe;
    • no circumstances existed that rendered the entire mine unsafe; and
    • the absence of rail switches doesn’t constitute a danger.

The Court’s Decision to Set Aside the Safety Instructions

The court applied two separate, but connected, lines of questioning in its analysis.

First, did the inspector comply with the requirements of section 54(1) when he issued the safety instructions?

Secondly, was the safety instruction itself an administrative action regulated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA)? If so, then did the safety instructions comply with the legal requirements of (i) lawfulness; (ii) reasonableness; and (ii) procedural fairness?

The court said that there are two requirements in section 54(1) for the issuing safety instructions:

    • an inspector must objectively to establish a state of affairs which would lead a reasonable person to believe that there is a danger to the health or safety of any person at the mine; and
    • the instruction must be limited to the extent that it is necessary to protect the health and safety (paragraph 24).

The standard applied in these enquiries is the standard of reasonable practicality required in section 2 of the MHSA.

The court considered the safety instruction issued because of the absence of rail switches, holding that the inspectors didn’t satisfy the legal requirements; there were no objective facts that would lead a reasonable person to believe that the absence of rail switches poses any danger to any person at the mine (paragraph 19 and 32).

The court’s enquiry into the safety instruction that prohibited the use of explosives went further. Here the court accepted that there were objective facts that could lead a reasonable person to believe that the safety infraction posed a danger to persons at the mine, but that was not the end of the enquiry.

The court confirmed that a safety instruction issued by an inspector is an administrative action, and as an administrative action must, in terms of PAJA, be exercised (i) lawfully; (ii) reasonably; and (ii) in a procedurally fair manner (paragraph 57).

The court emphasised the requirement of reasonableness and applied the principle of legal proportionality (paragraph 27 to 33). This principle holds that if an action is not proportional to what it seeks to achieve, then the action is unreasonable and subject to review under PAJA.

A court looks at three elements to determine if an action is proportional, and consequentially reasonable:

    • was the measure suitable for achieving the desired aim (the suitability element);
    • was the measure necessary, or was there a lesser measure that could achieve the same desired aim (the necessity element); and
    • does the measure place an excessive burden on the individual that is disproportionate to the public interest that is protected (the balance element); (see de Ville, JR. 2003. Judicial Review of Administrative Action in South Africa. Durban: LexisNexis Butterworths, at pg. 203).

Accordingly, all safety instructions must be proportional and reasonable based on the objective facts. If not, then the affected company can approach a court for appropriate relief.

The court held that the safety infraction involving the explosives was an isolated incident that occurred on a single level of the mine employing a small fraction of the workforce. There was no objective fact that could be relied on by the inspector to infer that the entire level, and further the entire mine, was unsafe (paragraph 16 and 33).

Applying the principle of legal proportionality, the court held that the safety instructions were not proportional to the issues that the inspector identified, and went further than was necessary to protect the health and safety of persons at the mine (paragraph 32 – 33).

The court accordingly suspended the safety instructions issued in terms of section 54, with the exception of level 44 where the infraction had occurred (paragraph 34).

The Court’s Criticism of the Safety Instructions and the Inspectors Conduct

The court criticised the inspectors belief that they are empowered to close entire mines based only on a safety infraction in a single section or level of the mine, where the objective facts do not show that these infractions will render the entire mine unsafe (paragraph 36).

The court went as far as warning the inspectors that it would have seriously considered holding them personally liable for the mines legal costs if the mine had asked (paragraph 37).

The courts criticism is a stern warning to inspectors to exercise their powers in terms of the MHSA lawfully, reasonably and fairly.

Conclusion

The take away from this judgement is that safety instructions issued by an inspector in terms of section 54 of the MHSA must be reasonable, proportional, and limited by the extent to which it is necessary to protect the health and safety of persons at the mine.

An inspector does not have the power to close entire mines or sections of mines unless the objective facts show that the entire mine is unsafe, and total closure is proportional and indeed necessary to protect the health and safety of people on the mine.

Companies should evaluate any instructions issued in terms of section 54 and determine if they are to broad or go further than necessary. If so, urgent action can be brought in court to suspend the operation of the instructions pending an appeal in terms of the MHSA.


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Reading List: 2017

December 2017

November 2017

October 2017

September 2017

August 2017

July 2017

June 2017

May 2017

April 2017

March 2017

February 2017

January 2017

More Lists

 


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Comic Pull List – December 2016

I have pruned my comic book pull list over the last few months. Some titles on my list had come to an end, including Satellite Sam, Massive, Fight Club 2 and the Manhattan Projects, but I also dropped some ongoing titles.

Scott Snyder’s “Batman” ended with issue 52 in the first half of 2016. The title relaunched/rebooted with a new writer, artist and story direction. I started collecting this title because I am a fan of Scott Snyder’s past horror work, so with Scott Snyder not writing the book any more, the relaunch was a good point to jump off.

I dropped Uncanny X-Men after much thought. I have been collecting and reading this title for years, but my enthusiasm for it waned because Marvels constant cross overs and relaunches has made it almost impossible for a writer to tell a good story with the characters. My tipping point came in the past months when Marvel announced it’s new upcoming “X-Men versus [other hero title]” crossover, that would be followed with a second relaunch/reboot of the title in as many years. I might still collect X-Men in trade paperback instead of single issues because, strangely, its cheaper that way with the added bonus that the trade paperbacks don’t come loaded with adverts.

The third ongoing title I dropped was Uber, after its publication took a break when volume one ended on issue 27. I am a fan of Kieron Gillen’s work, but I decided not to pick up the books second volume because I am so far behind reading the first volume.

Now my comic book pull list has no Marvel or DC titles.

The single issues I bought in December 2016 were:


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On Protest Action

An extract from the “Letter from a Birmingham Jail”, an open letter written by Martin Luther King Junior in 1963:

“… In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham.

… You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

… First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn’t this like condemning a robbed man because his possession of money precipitated the evil act of robbery? … We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. …”


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The Protection of Buildings as Heritage Resources

An owner of land automatically has certain legal rights in the property that stem directly from the ownership – the right to use and enjoy the property, modify the property, sell the property, and, if so inclined, to destroy the property. That is, unless the structure is older than 60 years. At this age an owner’s right to modify or demolish his own buildings is automatically restricted by the National Heritage Act, No 25 of 1999 (National Heritage Act).

The National Heritage Act automatically applies to structures older than 60 years irrespective of whether the structure or property has been formally recognised and granted any heritage status. This means that if a development or project is being planned that involves the modification or demolition of a building older than 60 years, then the required permits must be acquired for before modifying or demolishing the structures. It is not a foregone conclusion that the permit will be granted, and even if the permit is granted the permit can contain restrictions limiting the right to develop the property in the future.

The application of the Heritage Act to buildings was demonstrated in the recent case of Peter Gees v the Provincial Minister of Cultural Affairs and Sport ((974/2015) [2015] ZASCA 136 (29 September 2016)) where a property owner applied for a permit to demolish a building. The building didn’t have any formal heritage status, but it was more than 60 years old. A demolition permit was granted, but as part of the permit the minister imposed restrictions on the future development of the property that included the requirement to have the future building plans approved by Heritage Western Cape before starting construction.

The landowner, unhappy with the restrictions in the permit, approached the court and argued that the minister did not have the power to restrict future development of a property when granting a permit to demolish a building. The Supreme Court of Appeal had to decide two questions, (i) whether the minister may place restrictions on the future development of property when deciding an application to modify or demolish a building, and (ii) if so, whether this curtailment of a property owners rights to use and enjoy the property is constitutional.

To decide these questions the court did a detailed analysis of the interaction between the formal and general protection mechanisms in the Heritage Act.

Formal and General Protections under the National Heritage Act

The National Heritage Act introduced an integrated system for the management of national heritage resources. The act includes a system of formal and general protection methods.

For the formal protection measures to apply, a formal procedure is followed to identify the place, consult with owners, and then declare the place as protected by publishing a government notice or registering it in the heritage register. Formal protection measures can apply to heritage sites, protected areas around heritage sites, identified heritage objects, or whole heritage areas (section 27 to 32).

The formal protection measures stand in contrast to the general protections that apply automatically, irrespective of whether the place has been identified as culturally significant. The general protections apply automatically to all structures older than 60 years, archaeology sites, palaeontology sites, meteorite sites, burial grounds, graves, and public monuments and memorials (sections 33 to 38).

There is no need to identify one of these sites and consult with the owners before the general protections apply to them.

General Protection for Buildings older than 60 Years

The Heritage Act automatically protects all structures older than 60 years. The provincial resources authority must grant a permit before these buildings, or any part of them, can be altered or demolished (section 34(1)).

The permit procedure and appeal process is set out in the Heritage Act (sections 48 and 49). When a permit is applied for the heritage resources authority may issue the permit subject to conditions, which may include the conditions that security is given for the completion of the proposed work, providing for the recycling or depositing of materials into a materials bank for historical building materials, stipulating that design proposals be revised, or stipulating the qualifications and expertise required to perform the actions (sections 48(2)(a) to (d)).

If a permit is refused, then the authority must consider if the structure should be protected formally in terms of one of the formal protection measures (section 34(2)).

Objection Raised by the Landowner in the Case under Discussion

In the Gees case the a demolition permit for a building older than 60 years was granted, but the minister imposed restrictions on the future development of the property as part of the permit.

The City of Cape Town regarded the area that the building was located in as a significant “well-preserved art deco streetscape”, and thought that the character of the area should be conserved. The particular building itself was not deemed worthy of protection – the building was classified by the city as an “IIIC heritage resource” that only derives its significance from its contribution to the character of the surrounding area.

The building was not protected by any of the formal protection methods. It was not part of any declared national or provincial heritage site (section 27), in a heritage area (section 31), under provisional protection (section 29), listed in any heritage register (section 30), or declared a national heritage object (section 32). The only protections in the Heritage Act that applied to the building in this case were the general protection measures that apply automatically to all buildings older than 60 years.

The landowner argued that the act did not authorise the heritage authority to place conditions on the future development of a property when it was considering an application to demolish a structure that had no formal heritage status.

This argument was rejected by the court. The court held that if the imposition of permit conditions was limited only to areas that were formally protected, then the ambit for the protection of heritage resources would be reduced to small declared areas only, leaving large areas open for possible abuse.

The court evaluated the objectives of the Heritage Act, finding that the conditions imposed were designed to enable the heritage authority to fulfil its duties. The imposition of the conditions on the future development of a property when it was considering an application to demolish a structure that had no formal heritage status was found to be lawful.

The court briefly considered the landowner’s second argument that the curtailment of his rights to use and enjoy the property was unconstitutional. The court found that the conditions imposed in the demolition permit was a curtailment of property rights amounting to a deprivation of property, but that the deprivation was in the interests of the community, and constitutional.

Conclusion

This case illustrates the importance of considering and applying for all necessary approvals before undertaking any project or development.

If a project or development involves the alteration or demolishing of any structure or part of a structure that is older than 60 years then a permit must first be obtained in terms of the Heritage Act.

It must be borne in mind that if a permit is granted to alter or demolish a structure, the heritage authority does have the power to impose conditions on the future development of a property, limiting the landowner’s right to fully use and enjoy their ownership rights.


This work by Clinton Pavlovic is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.