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UCT Research Report '11
156
Since the end of the Second World War,
fundamental rightshaveexertedanincreasing
influence on legal systems throughout the
world. Human rights instruments, originally
conceived as only relevant to ensure the
protection of the individual against the state,
have steadily begun to exert pressure not
only on public law – that part of the law that
regulates the relationship between the state
and its citizens – but also on private law – the
part of the law that regulates the relationship
between citizens
inter se
. Not surprisingly,
then, an important theme in the research
effort of the UCT Faculty of Law in 2011 has
been concerned with the influence of human
rights and the constitution in general on the
lives of people.
Land, minerals and property
In South Africa, two areas where rights are hotly contested
are land law and mineral law, which are inextricably
bound to property law, explains Professor Hanri Mostert.
So, fittingly, these are specialised sub-disciplines of
private law.
Professor Mostert is intrigued by the overlap of these areas
of law with very public concerns. Take, for example, how
new legislation introduced by the government in 2004
expanded the state’s regulatory controls over the mineral
sector, giving it a greater say in how minerals can be
exploited and by whom.
It’s a theme that Professor Mostert explored in detail in
the book she wrote in 2011,
Mineral Law: Principles and
Policies in Perspective
, scheduled for release in 2012.
“I’m interested in how both land and minerals are scarce
resources, and how these are very firmly grounded in our
ideas of private property,” she says. “But they are very
strongly regulated in the public sphere.”
That has much to do with the fact that, in South Africa,
mineral (and land) issues and politics have never been
mutually exclusive terms. One of the last things the
Public values
and private rights
National Party did, its exit already on the cards, was to
issue new mineral legislation in 1991, says Professor
Mostert; one of the first things the new government did in
1994 was to begin revising that legislation.
“It seems that big changes in mineral law always coincide
with big changes in politics,” she says.
Not too surprising that given those contending forces,
the Constitution is never too far from mind. Consider
how, in 2010, the Constitutional Court declared all of the
Communal Land Rights Act, eight years in the making and
on the shelf for a further five years, unconstitutional.
There was the risk that the Mineral and Petroleum
Resources Development Act (MPRDA) of 2002 would go
the same way, says Professor Mostert. Especially after the
High Court ruled in favour of Agri SA in its expropriation
claim against the Minister of Mineral Resources early in
2011, saying that the enactment of the MPRDA in 2002
denied them the coal rights that they had held under prior
legislation. (The issue is due to go before the Constitutional
Court in 2012.)
“The thing that has always fascinated me – in the case of
both land and minerals – is that these are finite resources,”
says Professor Mostert. “There is just so much, and it has
to be shared by an ever-increasing group of people.
“And to ensure fairness in that sharing, that is what’s
always tickled my interest,” she says.
Customary law
Fairness is also at the core of the work of Professor Chuma
Himonga who was awarded the DST/NRF SARChI Chair in
Customary Law in 2011.
According to Professor Himonga, the position creates
excellent prospects for research in an area of law that
regulates the lives of millions of South Africans. Protected
by the Constitution, African Customary Law (ACL) forms
one of the three arms of the South African legal system – a
legal pluralism made up of a civil law inherited from the
Dutch, a common law system rooted in British traditions,
and then customary law.
“It seems that big changes in mineral
law always coincide with big changes
in politics.”