1 Reference is made to the title of the classic novel: Dickens C, A Tale of Two Cities (London, Penguin Books 2000 (first published 1859)).
Anri Heyns is currently a PhD candidate at the NRF/DST SARChI Research Chair: Mineral Law in Africa at the University of Cape Town.
2 Gordon RE and Sylvester JH, '"Deconstructing Development" ' 2004 (22) Wisconsin International Law Journal 1-98, 53.
3 See in general Cronje F and Chenga C, 'Sustainable Social Development in the South African Mining Sector' 2009 (26) Development Southern Africa ; CALS, Changing Corporate Behaviour: The Mapungubwe Case Study - A Research Report (2014) CALS, ;CALS, Changing Corporate Behaviour: The Mapungubwe Case Study - A Research Report (2014) CALS, ;Esteves A, 'Mining companies as agents for social development: The case for more effectual corporate-community investments' in E. B, Walde T and Warden-Fernández J (eds), International and Comparative Mineral Law and Policy - Trends and Prospects (The Hague, Kluwer Law International 2005) ; Mbatha P and Wynberg R, 'Mining and the Myth of Benefits in South African Rural Coastal Communities' in Wynberg R and Hauck M (eds), Sharing the Benefits from the Coast (Cape Town, UCT Press 2014) ;TRC, Truth and Reconciliation Commission of South Africa Report (2003) http://www.justice.gov.za/trc/report/ accessed on 6 March 2016
4 The Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) became operational on this date. See discussion below regarding empowerment in the mining industry.
5 The Broad-Based Black Socio-Economic Empowerment Charter (“Mining Charter”) created in terms of s 100 of the MPRDA.
6 Draft Reviewed Broad Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry 2016 (GN 450 GG 39933 of 15 April 2016), The charter was released without any prior consultation with stakeholders in the industry and while court action, instituted by the Chamber of Mines against the Department of Mineral Resources, was still pending. Seccombe A, 'Department blindsides miners with new charter' BDlive (15 April 2016) available at http://www.bdlive.co.za/business/mining/2016/04/15/department-blindsides-miners-wit-new-charter?service=print accessed on 30 July 2017.
7 Broad-Based Black Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry 2017
8 Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry (GN 838 GG 33573 of 20 September 2010), ;Broad-Based Socio-Economic Empowerment Charter for the South African Mining Industry, 2004 (GN 1639 GG 26661 of 13 August 2004) ;Broad-Based Socio-Economic Empowerment Charter for the South African Mining Industry, 2004 (GN 1639 GG 26661 of 13 August 2004)
9 Timeslive, 'Mining minister suspends implementing new mining charter' TimesLIVE (14 July 2017) available at https://www.timeslive.co.za/politics/2017-07-14-mining-minister-suspends-implementing-new-mining-charter/ accessed on 30 July 2017.
10 2017 Mining Charter 1 (f).
11 Between 2009 and 2015 labour unrest took place in reaction to low wages and poor working and living conditions. See Horne R, 'Patterns of ownership and labour unrest within the South African mining sector' 2015 (40) Journal of Contemporary History
12 The Broad-Based Black Socio-Economic Empowerment Charter created in terms of s 100 of the MPRDA.
13 1962 UN General Assembly Resolution 1803.
14 Wynberg & Hauck (2014) 6 refer to Jenkins 2004 and Merino A & Valor C “The potential of corporate social responsibility to eradicate poverty: an ongoing debate” (2011) 21 Development in Practice 157-167.
15 Wynberg & Hauck (2014) 6 referring to Altman J ʺBenefit sharing is no solution to developmentʺ in Wynberg R, Chennels R & Schroeder D Indigenous peoples, consent and benefit-sharing: Learning from the San-Hoodia Case (2009).
16 Wynberg & Hauck (2014) 8. Wynberg & Hauck (2014) 6 refer to Schroeder D “Environmental justice and the market: The politics of sharing wildlife revenues in Tanzania” (2007) 21 Society and Natural Resources 583-596. The theoretical basis of benefit sharing, as an idea, is still not well expressed and requires consideration.
17 28 of 2002 (hereinafter “the MPRDA”).
18 Before the enactment of the MPRDA the owner of the land on which the resources were situated owned mineral resources. The MPRDA therefore brought about a very significant change to the way in which mineral resources are regulated. A detailed discussion regarding this matter, however, falls outside of the scope of the current discussion. See Van der Schyff E “Who ‘owns’ the country’s mineral resources? The possible incorporation of the public trust doctrine through the Mineral and Petroleum Resources Development Act” (2008) 4 TSAR 757 – 768 in this regard.
19 53 of 2003 (“BBBEE Act”). The 2017 Mining Charter specifically states that its objective is to harmonise the provisions of the charter with those of the BBBEE Act.
20 Department of Mineral Resources “Mining Charter Impact Assessment Report” October (2009) 2.
21 MPRDA s1.
22 The MPRDA is transformative in nature and include other measures, in addition to the creation of the Mining Charter that can also be regarded as benefit sharing. The socio-labour plan provided for in the regulations to the MPRDA is one example hereof. Regulations in terms of section 107(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (GNR 527 GG 26275 of 23 April 2004) (hereinafter “Regulations”). Regulations 40-46. The objectives of the socio-labour plan are to “promote employment and advance the social and economic welfare of all South Africans; contribute to the transformation of the mining industry; and ensure that the holders of mining rights contribute towards the socio-economic development of areas in which they are operating”. The content of a socio-labour plan entails measures promoting employee and local economic development.
23 See discussion on the Mining Charter below.
24 In terms of the Mining Charter, a mining right holder must promote different elements to be regarded as compliant. The different elements represent the different levels on which broad-based empowerment should take place. These elements are ownership, human resource development, mine community development, procurement supplier and enterprise development, employment equity and sustainable development and growth.
25 Problems can include lack of access to basic serves and infrastructure, poverty and exposure to environmental harm caused by mining.
26 Gordon RE and Sylvester JH, '"Deconstructing Development" ' 2004 (22) Wisconsin International Law Journal 9-22.
27 Gordon and Sylvester (2004) 22-44.
28 Gordon and Sylvester (2004) 49-64.
29 See in general Gordon and Sylvester (2004).
30 Gordon and Sylvester (2004) 72, footnote 316. They use the term “deconstructing” and consider a post-modernist approach to undermine the essentialising nature of enlightenment thinking that underpins development. They prescribe to an understanding of postmodernism as a rejection of modernity and undermining the proposition that there exists an all-encompassing theory of everything, a “metalanguage or metatheory through which all things can be connected or represented.” ; Sarup M and Raja T, Identity, Culture and the Postmodern World Edinburgh University Press 1996)
31 Gordon and Sylvester (2004) 76;Parpart J, 'Lessons from the Field: Rethinking Empowerment, Gender and Development from a Post- (Post-?) Development Perspective' in Saunders K (ed) Feminist Post-Development Thought (London & New York, Zed Books 2002) .
32 Enlightenment is a period of European thought during which various aspects regarding the individual subject’s relationship with its fellow humans and authority structures were contemplated, such as religion, political orderings and moral inclinations. Blackburn S, The Oxford dictionary of philosophy second ed (2005) Oxford, Oxford University Press, 115.
33 Lee Y, 'General Theory of Law and Development' 2017 (50) Cornell International Law Journal 15; Gordon and Sylvester (2004) 22.; Trubek D, '"The 'Rule of Law' in development assistance: Past, present, and future' in Trubek D and Santos A (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press 2006) .
34 Gordon and Sylvester (2004) 16. Modernisation is defined as “the process by which a society comes to be characterized by a belief in the rational and scientific control of man’s physical and social environment and the application of technology to that end” - Ziauddin S, 'Development and the Locations of Eurocentrism' in Munck R and O'Hearn D (eds), Critical Development Theory: Contributions to a New Paradigm (Zed Books 1999) 53.
35 Gordon and Sylvester (2004) 9.
36 Lee (2017) 15.
37 Lee (2017) 15.
38 See in general Sen A, Development as Freedom OUP Oxford 2001);Nussbaum MC, Creating Capabilities Harvard University Press 2011).
39 Lee (2017) 19.
40 Lee (2017) 19.
41 Lee (2017) 19.
42 Lee (2017) 15; Gordon and Sylvester (2004) 9-10; Trubek (2006).
43 Lee (2017) 15; Gordon and Sylvester (2004) 7. Gordon and Sylvester also refer to the broader notion of development as means to promote participatory democracy in developing nations. See footnote 17.
44 Lee (2017) 16; United Nations Development Programme “What is Human Development” http://hdr.undp.org/en/content/what-human-development accessed on 3 July 2017.
45 Lee Y, 'General Theory of Law and Development' 2017 (50) Cornell International Law Journal 16; United Nations Development Programme “What is Human Development” http://hdr.undp.org/en/content/what-human-development accessed on 3 July 2017.
46 Lee (2017) 16; Sen A, Development as Freedom OUP Oxford 2001). Also see Nussbaum MC, Creating Capabilities Harvard University Press 2011)
47 Programme UND, What is Human Development? http://hdr.undp.org/en/content/what-human-development accessed on 3 July 2017.
48 Lee Y, 'General Theory of Law and Development' 2017 (50) Cornell International Law Journal 16. The World Bank Comprehensive Development Framework http://www.worldbank.org/en/webarchives/archive?url=httpzzxxweb.worldbank.org/archive/website01013/WEB/0__PAGEP.HTM&mdk=22201409accessed 3 July 2017; United Nations Sustainable Development Goals http://www.un.org/sustainabledevelopment/sustainable-development-goals/ accessed on 3 July 2017.
49 Gordon and Sylvester (2004) 22.
50 Gordon and Sylvester (2004) 22.
51 Gordon and Sylvester (2004) 30 & 31.
52 Trickle-down theory implies that the actors in the economy with the most resources will promote economic growth, from which all members of society will benefit. Incentives to stimulate growth therefore focus on big business. Investopedia definition available at http://www.investopedia.com/terms/t/trickledowntheory.asp accessed on 30 July 2017.
53 Gordon and Sylvester (2004) 32.
54 Gordon and Sylvester (2004) 35.
55 Gordon and Sylvester (2004) 36.
56 Gordon and Sylvester (2004) 38 & 39, 43 – The oil crisis of the 1970’s resulted from spiking oil prices to the disadvantage of oil importing third world countries. The IMF responded to third world debt by implementing “structural adjustment”, as a means for countries in debt to address deficits. “Structural adjustment” entailed a range of free market economic policies enforced upon indebted developing countries, which caused macro-economic growth in certain instances, but little difference on micro level. See Konadu-Agyemang K, 'The Best of Times and the Worst of Times: Structural Adjustment Programs and Uneven Development in Africa: The Case of Ghana' 2000 (52) The Professional Geographer Since developing countries were worse off by then end of the 1980’s, with more debt and less capable of providing services such as health care and education, structural adjustment is regarded as a failure.
57 Gordon and Sylvester (2004) 44, referring to Mittelman J and Pasha M, Out from Underdevelopment Revisited: Changing Global Structures and the Remaking of the Third World (United Kingdom, Palgrave Macmillan 1997) 42.
58 The Washington Consensus consists of 10 policies that formed part of the reform package provided to developing countries by the World Bank and IMF. The policies advocate free-market and macroeconomic stability.
59 Gordon and Sylvester (2004) 44, 46 & 48. World Bank policies in this regard include: 1989 Report Sub-Saharan Africa: From Crisis to Sustainable Growth, introducing “good governance”; the Comprehensive Development Framework, which promoted various aspects of development that are achievable through pro-market policies and incentives.
60 Law and development studies consider the interaction between socio-economic development and international and domestic law.
61 Trubek D, '"The 'Rule of Law' in development assistance: Past, present, and future' in Trubek D and Santos A (eds), The New Law and Economic Development: A Critical Appraisal (Cambridge, Cambridge University Press 2006) ;Thomas C, '"Law and neoclassical economic development in theory and practice: Toward an institutionalist critique of institutionalism"' 2011 (96) Cornell Law Review 967;Trubek D and Santos A, 'Introduction: The Third Moment in Law and Development Theory and the Emergence of New Critical Practice' in Trubek D and Santos A (eds), The New Law and Economic Development: A Critical Appraisal (New York, Cambridge University Press 2006)
62 Trubek and Santos (2006) 2; Thomas (2011) 970.
63 Trubek and Santos (2006) 5.
64 Trubek and Santos (2006) 6; Thomas (2011) 974. Thomas ascribes this to the influence of the work of Friedrich Hayek The Road to Serfdom, The constitution of liberty and Law, legislation and liberty. Hayek rejected centralized economic regulation for its association with totalitarianism.
65 Trubek and Santos (2006) 5; Thomas (2011) 977.
66 Gordon and Sylvester (2004) 18 & 19; Thomas (2011) 970.
67 Gordon and Sylvester (2004) 20.
68 Trubek and Santos (2006) 3.
69 Trubek and Santos (2006) 3.
70 Trubek and Santos (2006) 6.
71 Gordon and Sylvester (2004) 53.1962 UN General Assembly Resolution 1803. The effect of the declaration was, however, that post-colonialism translated into long-term concessions for the extraction of natural resources on very favourable terms for Western corporations
72 Gordon and Sylvester (2004) 49.
73 In terms of the 1986 United Nations Declaration on the Right to Development Resolution taken on 4 December 1986 at the 97th plenary meeting available at http://www.un.org/en/events/righttodevelopment/declaration.shtml (accessed on 8 October2016).
74 Stevens C and Ntlama N, '"An overview of South Africa's institutional framework in promoting women's right to development"' (2016) (20) Law, democracy and development 52-54. The declaration defines the right to development as “an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised”.
75 See in general Gordon and Sylvester (2004) 52-60. During the 1970’s developing countries, using UNCTAD as platform put forward proposals for legal instruments to provide them with more control over multinationals operating in their countries and improving terms of trade. The New International Economic Order came into being and legal instruments were put in place, providing for the restitution of costs of colonialism and giving permanent sovereignty to developing countries, not only of natural resources, but also of all their economic activities.
76 Gordon and Sylvester (2004) 75 & 76. In an attempt to protect and enforce their legal right to development and to demand reparations for colonialism, developing countries adopted the legal language of the West, and some might say, thereby also accepting the worldview of the West.
77 See in general Gordon and Sylvester (2004) 52-63.
78 Gordon and Sylvester (2004) 72. See footnote 315 for reference to Kohl H, From Archetype to Zeitgeist: Powerful Ideas for Powerful Thinking Little, Brown 1993).
79 Gordon and Sylvester (2004) 72 refer to Ashcroft et al Key Concepts in Post-Colonial Studies 71 (1998) Routledge: Oxon in this regard. (newer edition 2000 p 62).
80 Gordon and Sylvester (2004) 72.
81 Gordon and Sylvester (2004) 72 & 82.
82 Gordon and Sylvester (2004) 85.
83 Gordon and Sylvester (2004) 85.
84The Point IV Program was, in President Truman’s words “a bold new program for making the benefits of our scientific advances and industrial progress available for the improvement and growth of underdeveloped nations”, thereby constituting the first initiative towards modern global development. As part of the plan, various institutions and professions were to be created with the specific mandate to promote development. Gordon and Sylvester (2004) 10. Foreign Affairs Co, Point Four Background and Program (International Technical Cooperation Act of 1949) (1949) Washington, Committee on Foreign Affairs, http://pdf.usaid.gov/pdf_docs/Pcaac280.pdf. Accessed on 31 July 2017.
85 Gordon and Sylvester (2004) 10. Escobar A, Encountering Development: The Making and Unmaking of the Third World Princeton University Press 2011) 3.
86 Gordon and Sylvester (2004) 9. Truman’s Inaugural Address January 20 1949 available at Harry S Truman Library & Museum https://www.trumanlibrary.org/whistlestop/50yr_archive/inagural20jan1949.htm accessed on 26 July 2017.
87 Truman (1949).
88 Gordon and Sylvester (2004) 9.
89 Gordon and Sylvester (2004) 11. In 1948, persons with an annual per capita income below $ 100 were classified as “poor” by the World Bank. Two thirds of the world were immediately classified as poor.
90 Gordon and Sylvester (2004) 13. Escobar (2011) 24.
91 Gordon and Sylvester (2004) 12.
92 Gordon and Sylvester (2004) 12 & 15. Also See Modiri J, 'Law's poverty' 2015 (18) Potchefstroom Electronic Law Journal 241.
93 Gordon and Sylvester (2004) 12.
94 Cammack P, 'Neoliberalism , the World Bank and the New Politics of Development' in Kothari U and Minogue M (eds), Development Theory and Practice: Critical Perspectives (Hampshire, Palcrave 2002) Development, is closely associated with neo-liberalism, the version of capitalism that became dominant in the Anglo-American context between 1960’s and the 1990’s. Neo-liberalist policies will promote free, open markets, with as little as possible government intervention. It, therefore, is possible for private actors to enter into transactions with one another freely, knowing that their property and contracts would be protected and enforceable under the law.
95 Brand D and Van Marle K, 'Poverty and the ordinary law: Introduction' 2013 (29) South African Journal on Human Rights 465
96 Brand and Van Marle (2015) 225.
97 Modiri (2015) 241. Modiri warns against viewing “the poor” only in terms of a distributive paradigm and supports Cornell’s argument that it should be recognised that “hearts starve as well as bodies”. See Cornell D,
