Draft only please do not cite or distribute without author’s permission

"Some caution about property rights as a recipe for economic development" (2011) Washington, .

198^ Umraw A, 'Elite ownership and control of the economy is a problem, says Zweli Mkhize' Huffpost (9 June 2017) available at http://www.huffingtonpost.co.za/2017/06/09/ownership-and-control-of-the-economy-is-a-problem-says-mkhize_a_22134112/ accessed on 30 July 2017; Van Wyk A, 'Do 40 000 whites own 80% of South Africa?' Mail&Guardian (15 September 2014) available at https://mg.co.za/article/2014-09-15-do-40-000-whites-own-80-of-south-africa accessed on 30 July 2017.

199^ Tangri and Southall (2008) 701.

200^ 2016 Draft Mining Charter 2.1 (b) 16, 2017 Mining Charter 2.1.1.3 (a) 8.

201^ 2016 Draft Mining Charter 2.1 (b) 16, 2017 Mining Charter 2.1.1.3 (b) 8.

202^ Ownership deals with traditional communities have however been in place, for instance the Bapo ba Mogale community that has obtain equity ownership in Lonmin in 2014.Boyle B, 'Bapo ba Mogale community loses out in Lonmin deal' Groundup (4 December 2014) available at http://www.groundup.org.za/article/bapo-ba-mogale-community-loses-out-lonmin-deal_2502/#sthash.rzkGQ4D5.dpuf accessed on 30 July 2017.

203^ The shareholding was to be kept in a trust created in terms of the Trust Property Control Act 57 of 1988 for the benefit of the community and workers, respectively, and traditional authorities and unions had to be represented in these trusts. No details were provided on the trustees or their powers. It, however, was stipulated that the trusts were to report to the South African Revenue services and the Department of Mineral Resources.

204^ 2016 Mining Charter 2. “Community” probably included only traditional communities as provided for in the National Traditional Leadership Governance Framework Act 41 of 2003 , and not mine communities

205^ Ownership is therefore not allocated to “communities” (traditional communities), as provided for in the 2016 Draft Mining Charter.

206^ 2016 Draft Mining Charter 8.

207^ The previous definition of “mine community” has been broadened by adding “adjacent communities within a local municipality, metropolitan municipality and/or district municipality”.

208^ The South African Human Rights Commission has even held hearings regarding the conditions of mine communities see https://www.sahrc.org.za/index.php/sahrc-media/news/item/460-sahrc-resumes-hearings-into-mining-community-problems accessed on 30 July 2017; Parker F, 'Lonmin mining communities: A powder keg of inequality' Mail&Guardian (27 August 2012) available at https://mg.co.za/article/2012-08-27-lonmin-mining-communities-a-powder-keg-of-inequality accessed on 30 July 2017.

209^ See discussion under part 3 above.

210^ Kapelus P, 'Mining, Corporate Social Responsibility and the ‘community’: The Case of Rio Tinto, Richards Bay Minerals and the Mbonambi' 2002 (39) Journal of Business Ethics 280.

211^ The 2017 Mining Charter’s definition differs slightly, but the main elements remain the same: communities where mining takes place and labour sending areas.

212^ Humby T, 'The Bengwenyama trilogy: Constitutional rights and the fight for prospecting on community land' 2012 (15) Potchefstroom Electronic Law Journal refers to the current definition of “community” in the MPRDA. The definition was amended as a result of the Bengwenyama cases (Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd TPD 39808/2007; SCA 71/09 31 March 2010 & Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd 2011 4 SA 113 (CC)). Humby argues the amendment provides a link with “the chaotic state of communal land tenure in South African Law”. In terms of the Restitution of Land Rights Act 22 of 1994 “community” means “any group of persons whose rights in land are derived from shared rules determining access to land held in common by such group, and includes part of any such group”. Section 2(1)d makes provision for a claim for the restitution of land to be instituted on behalf of such a community dispossessed of a right after 19 June 1913 as a result of past racially discriminatory laws or practices. The definition for “community” in the Mining Charter is the same as the proposed definition for “community” in the MPRD Amendment Bill 2013.

213^ Whereas the 2016 Draft Mining Charter provided for traditional communities to obtain equity ownership in mine companies, the 2017 Mining Charter determines that mine communities should obtain equity ownership in mine companies.

214^ Mining companies will opt for a narrower definition of community in contrast with more abstract and inclusive notions of community in policy statements and legislation, which often means that traditional communities benefit to the detriment of other communities in mining areas. See Kapelus (2002) JBE 282 & 284. Mbatha and Wynberg (2014) 84.

215^ Dickens C, A Tale of Two Cities (London, Penguin Books 2000 (first published 1859)) 1.

216^ Kubheka T, '8500 Anglogold workers may face retrenchments as mine, unions begin talks' Eyewitness News (30 June 2017) available at http://ewn.co.za/2017/06/28/8-500anglogold-workers-may-face-retrenchment-as-mine-union-begin-talks accessed on 30 July 2017.

217^ Howard (2014) 11 referring to Stoddard E “’Miner Spring’ may lead to more unrest” Mail & Guardian 6 September 2012 and Kane P “Could we be about to see a Miners Spring?” Huffington Post 25 June 2012.

218^ Dickens C, A Tale of Two Cities (London, Penguin Books 2000 (first published 1859)) 1.

219^ Case studies in areas where certain communities benefit from empowerment initiatives to the detriment of those not qualifying as members, confirms this. See Kapelus (2002) and Mbatha and Wynberg (2014).

220^ Gordon and Sylvester (2004) 90.