When mining companies extract minerals from the earth, they leave huge deposits of soil and ore next to the mining site. These deposits are commonly known as tailings. In most instances, tailings contain a considerable amount of valuable mineral resources which cannot be exploited because of a lack of appropriate equipment, or as a result of economic non-viability. However, many mining companies choose to keep and maintain these tailings, in the hope that such minerals can later be exploited when time or technology allows for this. Under common-law the owner of a property is considered to also own any minerals contained on the property, in terms of the principle of cuius est solum. In South African law, however, a practice evolved whereby owners of minerals separated rights to minerals from the surface rights on the property. This created a mining right which was independent from the land and could be transferred to third parties, often in return for compensation. Under the Minerals Act of 1991 the owner of a mining right over a property (be that the owner of the property or a third-party mining right holder) also held the mining right to tailings which were created as a result of mining activities under the right. Thus, if a mining company performed mining activities on a property, the company was also free to exploit the tailings which were left next to its mine, regardless of whether the dump had remained there for a long period of time. Owing to South Africa's long history of mining, some tailings are over a century old and resemble small mountains rather than mining deposits. The Mineral and Petroleum Resources Development Act of 2002 changed the entire mineral legislative regime in South Africa. Whereas owners of land were previously free to separate and sell their rights to minerals to anyone they wished, the MPRDA placed the country‟s mineral and petroleum resources under the state's "custodianship." Where the law talks about custodianship, however, it supposedly refers only to minerals that have not yet been extracted from the earth. It is well established in South African law that, once a mineral is extracted, it becomes the movable property of the person who extracted it – in other words, that of the mining company. Does this mean that minerals in tailings also fall under the state's custodianship? The Free State High Court did not think so. In the case of De Beers v Ataqua it held that, in terms of the common law principles of acquisition by way of attachment, tailings are clearly movable property and therefore belong to the mining company who created them. For the MPRDA to hold otherwise would amount to expropriation. The state did not wish for some mining activities to be regulated by a different set of legislation, so it amended the MPRDA to try and define "residue deposits" (the name by which the MPRDA calls tailings) more clearly. However, due to the legislature's unfortunate choice of wording, tailings created before the enactment of the MPRDA are still, strictly speaking, not regulated by that Act. So the legislature proposed another amendment to the Act, this time making sure that any historical mine dump created at any point in South Africa's history are placed under the Act's regime. The subject matter of this study is whether the above amendments to the MPRDA could be considered to be expropriation. For background purposes, a brief overview of the Ataqua decision as well as the subsequent amendments to the MPRDA will be given. Then the history of mining legislation and the development of a separate mining right will be summarised. The reason for this summary is to establish whether, in terms of constitutional litigation, a clear right has been established for purposes of protection under section 25 of the Constitution. The last phase of the study will look at the particular characteristics of expropriation and ask the question whether acquisition of a right by the state is always a fundamental requirement for expropriation to take place. It is submitted that the destruction of an entire class of property by way of legislation, amounts to so-called "institutional expropriation," which is subject to compensation in terms of section 25. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2015

When mining companies extract minerals from the earth, they leave huge deposits of soil and ore next to the mining site. These deposits are commonly known as tailings. In most instances, tailings contain a considerable amount of valuable mineral resources which cannot be exploited because of a lack of appropriate equipment, or as a result of economic non-viability. However, many mining companies choose to keep and maintain these tailings, in the hope that such minerals can later be exploited when time or technology allows for this. Under common-law the owner of a property is considered to also own any minerals contained on the property, in terms of the principle of cuius est solum. In South African law, however, a practice evolved whereby owners of minerals separated rights to minerals from the surface rights on the property. This created a mining right which was independent from the land and could be transferred to third parties, often in return for compensation. Under the Minerals Act of 1991 the owner of a mining right over a property (be that the owner of the property or a third-party mining right holder) also held the mining right to tailings which were created as a result of mining activities under the right. Thus, if a mining company performed mining activities on a property, the company was also free to exploit the tailings which were left next to its mine, regardless of whether the dump had remained there for a long period of time. Owing to South Africa's long history of mining, some tailings are over a century old and resemble small mountains rather than mining deposits. The Mineral and Petroleum Resources Development Act of 2002 changed the entire mineral legislative regime in South Africa. Whereas owners of land were previously free to separate and sell their rights to minerals to anyone they wished, the MPRDA placed the country‟s mineral and petroleum resources under the state's "custodianship." Where the law talks about custodianship, however, it supposedly refers only to minerals that have not yet been extracted from the earth. It is well established in South African law that, once a mineral is extracted, it becomes the movable property of the person who extracted it – in other words, that of the mining company. Does this mean that minerals in tailings also fall under the state's custodianship? The Free State High Court did not think so. In the case of De Beers v Ataqua it held that, in terms of the common law principles of acquisition by way of attachment, tailings are clearly movable property and therefore belong to the mining company who created them. For the MPRDA to hold otherwise would amount to expropriation. The state did not wish for some mining activities to be regulated by a different set of legislation, so it amended the MPRDA to try and define "residue deposits" (the name by which the MPRDA calls tailings) more clearly. However, due to the legislature's unfortunate choice of wording, tailings created before the enactment of the MPRDA are still, strictly speaking, not regulated by that Act. So the legislature proposed another amendment to the Act, this time making sure that any historical mine dump created at any point in South Africa's history are placed under the Act's regime. The subject matter of this study is whether the above amendments to the MPRDA could be considered to be expropriation. For background purposes, a brief overview of the Ataqua decision as well as the subsequent amendments to the MPRDA will be given. Then the history of mining legislation and the development of a separate mining right will be summarised. The reason for this summary is to establish whether, in terms of constitutional litigation, a clear right has been established for purposes of protection under section 25 of the Constitution. The last phase of the study will look at the particular characteristics of expropriation and ask the question whether acquisition of a right by the state is always a fundamental requirement for expropriation to take place. It is submitted that the destruction of an entire class of property by way of legislation, amounts to so-called "institutional expropriation," which is subject to compensation in terms of section 25. / LLM (Environmental Law and Governance), North-West University, Potchefstroom Campus, 2015

This dissertation envisages the investigation and determination of the possible correlation between the two phenomena, state custodianship and trusteeship with specific reference to land trusts. Custodianship, as captured in the Mineral and Petroleum Resources Development Management Act 28 of 2002, and trusteeship, as embodied in the South African Development Trust legislation, being the Native Trust and Land Act 18 of 1936; the Ingonyama Trust Act 3 of 1994 as enacted by the KwaZulu Legislature on the 24th of April 1994, amended with the status of a national Act (provincial Act) in 1997, and re-enacted [by the RSA Parliament] as the KwaZulu-Natal Ingonyama Trust Act 3 of 1994, and the National Water Act 54 of 1956, all confer upon a certain body, the fiduciary obligation to hold, protect and manage certain resources in the interest of a particular designated group of people. The objective of this study is, therefore, to analyse the trust notion as it functioned in terms of the SADT legislation, ITA and the NWA, and compare it to the novel concept of custodianship as it emanates from the MPRDA in order to determine the inherent similarities and differences as well as the implications thereof. This will assist in determining the true nature and impact of the notion of state custodianship as introduced by the MPRDA. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

This dissertation envisages the investigation and determination of the possible correlation between the two phenomena, state custodianship and trusteeship with specific reference to land trusts. Custodianship, as captured in the Mineral and Petroleum Resources Development Management Act 28 of 2002, and trusteeship, as embodied in the South African Development Trust legislation, being the Native Trust and Land Act 18 of 1936; the Ingonyama Trust Act 3 of 1994 as enacted by the KwaZulu Legislature on the 24th of April 1994, amended with the status of a national Act (provincial Act) in 1997, and re-enacted [by the RSA Parliament] as the KwaZulu-Natal Ingonyama Trust Act 3 of 1994, and the National Water Act 54 of 1956, all confer upon a certain body, the fiduciary obligation to hold, protect and manage certain resources in the interest of a particular designated group of people. The objective of this study is, therefore, to analyse the trust notion as it functioned in terms of the SADT legislation, ITA and the NWA, and compare it to the novel concept of custodianship as it emanates from the MPRDA in order to determine the inherent similarities and differences as well as the implications thereof. This will assist in determining the true nature and impact of the notion of state custodianship as introduced by the MPRDA. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

Interaction between South Africa's government policy and the Nederduitse Gereformeerde Kerk's mission policy from 1948 tot 1954 were analysed. This interaction proved simbiotic. To meet black people's needs - seen as disrupted through straying from their ancestry - and to prove the credibility of apartheid, government appointed the Tomlinson Commission. They found christian mission to do wonders towards changing black people's so called attitude of obstinacy and therefore proposed a vital role to christian mission in realization of the Bantu Development Programme. Thus government and church became team members defining christian mission as answering to a Godly call to custodianship over black people seen as of a lesser race. Custodianship ends when black people reached a stage of self sufficiency. Meantime church members were challenged to bring offerings of missionary acts. This call resulted in missionary involvement of many church members and stirred a missiological revival in the N G Church. / Interaksie tussen Suid-A:frikaanse staatsbeleid en Nederduitse Gereformeerde Kerk-sendingbeleid tussen 1948 en 1954 is geanaliseer. Hierdie interaksie is simbioties bevind. Om swartmense - gesien as ontwrig weens vervreemding van hulle afstamming - se behoeftes aan te spreek asook die kredietwaardigheid van apartheid te bewys, benoem die owerheid die Tomlinsonkommissie. Hulle bevind christelike sending doen wonders om swartmense se sogenaamde onwil te verander en verleen daarom aan christelike sending 'n sleutelrol in die Bantoegebiede-ontwikkelingsgprogram. Sodoende word kerk en staat spanmaats en word sending gedefinieer as 'n Godgegewe roeping tot voogdyskap oor swartmense wat as 'n mindere ras gesien is. V oogdyskap eindig wanneer swartmense selfstandigheid bereik het. Tussentyd word lid.mate opgeroep tot sendingofferdade. Hierdie oproep het tot grootskaalse sendingbetrokkenheid en sendingherlewing in die N G Kerk gelei. / Christian Spirituality, Church History and Missiology / Th. M. (Sendingwetenskap)

Interaction between South Africa's government policy and the Nederduitse Gereformeerde Kerk's mission policy from 1948 tot 1954 were analysed. This interaction proved simbiotic. To meet black people's needs - seen as disrupted through straying from their ancestry - and to prove the credibility of apartheid, government appointed the Tomlinson Commission. They found christian mission to do wonders towards changing black people's so called attitude of obstinacy and therefore proposed a vital role to christian mission in realization of the Bantu Development Programme. Thus government and church became team members defining christian mission as answering to a Godly call to custodianship over black people seen as of a lesser race. Custodianship ends when black people reached a stage of self sufficiency. Meantime church members were challenged to bring offerings of missionary acts. This call resulted in missionary involvement of many church members and stirred a missiological revival in the N G Church. / Interaksie tussen Suid-A:frikaanse staatsbeleid en Nederduitse Gereformeerde Kerk-sendingbeleid tussen 1948 en 1954 is geanaliseer. Hierdie interaksie is simbioties bevind. Om swartmense - gesien as ontwrig weens vervreemding van hulle afstamming - se behoeftes aan te spreek asook die kredietwaardigheid van apartheid te bewys, benoem die owerheid die Tomlinsonkommissie. Hulle bevind christelike sending doen wonders om swartmense se sogenaamde onwil te verander en verleen daarom aan christelike sending 'n sleutelrol in die Bantoegebiede-ontwikkelingsgprogram. Sodoende word kerk en staat spanmaats en word sending gedefinieer as 'n Godgegewe roeping tot voogdyskap oor swartmense wat as 'n mindere ras gesien is. V oogdyskap eindig wanneer swartmense selfstandigheid bereik het. Tussentyd word lid.mate opgeroep tot sendingofferdade. Hierdie oproep het tot grootskaalse sendingbetrokkenheid en sendingherlewing in die N G Kerk gelei. / Christian Spirituality, Church History and Missiology / Th. M. (Sendingwetenskap)

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The family roles and responsibilities are still allocated along the gender lines. Women assume primary child care and household roles despite working fulltime. They suffer from work-family conflict as they battle with these competing demands. A phenomenological approach was adopted for this study. The existing literature was used in defining work-family conflict, looking at different work-family theories; development of gendered defined roles, motherhood and demands brought on by women working fulltime. The semi-structured interview was used for data collection. The themes which emerged showed that women experience strong emotions associated with raising children whilst working. There is compromise on quality time dedicated in each role. Women assume sole custodian over their children’s upbringing. Women enter into a second shift after work. Having a career and children, is made easier through adoption of strong coping strategies and mechanisms. The conclusions and recommendations were made for future a research and organisational practices. / Industrial and Organisational Psychology / Thesis (M.A. (Industrial and Organisational Psycology))

The family roles and responsibilities are still allocated along the gender lines. Women assume primary child care and household roles despite working fulltime. They suffer from work-family conflict as they battle with these competing demands. A phenomenological approach was adopted for this study. The existing literature was used in defining work-family conflict, looking at different work-family theories; development of gendered defined roles, motherhood and demands brought on by women working fulltime. The semi-structured interview was used for data collection. The themes which emerged showed that women experience strong emotions associated with raising children whilst working. There is compromise on quality time dedicated in each role. Women assume sole custodian over their children’s upbringing. Women enter into a second shift after work. Having a career and children, is made easier through adoption of strong coping strategies and mechanisms. The conclusions and recommendations were made for future a research and organisational practices. / Industrial and Organisational Psychology / Thesis (M.A. (Industrial and Organisational Psycology))

The concept "beneficial use" plays a pivotal role in South African water law reform. It forms the foundation of the mechanism to make water use rights available for the reform of the allocation of water use entitlements. The mechanism involves that water use rights that were unexercised in the two years before the promulgation of the National Water Act 36 of 1998 are not defined as existing lawful water uses. Where the concept "beneficial use" is utilised to cancel unexercised water use rights, it can cause potential hardship. Some people whose rights have been cancelled believe that they should be able to rely on the property clause in section 25 of the Constitution of 1996 to either have the legislation declared unconstitutional or to demand compensation. Section 25 of the Constitution of 1996 prohibits the arbitrary deprivation of property and states that property may only be expropriated for a public purpose or in the public interest, subject to compensation. Section 25(4) states, however, that the public interest includes the nation's commitment to land reform and to reforms to bring about equitable access to all South Africa's natural resources. It is clear from this that reforms to bring about access to water are allowed by the property clause. One of the main questions discussed in this thesis was whether section 32 of the National Water Act 36 of 1998 that made more water available for distribution for reform purposes by cancelling unexercised water user rights, leads to an arbitrary deprivation or an expropriation of property. It should be noted that section 32 of the National Water Act did not constitute an arbitrary deprivation of property, as sufficient reason exists for water law reform. A possible constitutional challenge based on the lack of due process of law because of the retrospective operation of the section may possibly be averted because of the existence of section 33 of the National Water Act. Section 33 of the Act mitigates hardship by allowing unexercised water uses to be declared existing lawful water uses in certain circumstances where a good reason for the non–exercise of the water use right existed. Even in cases where section 33 does not prevent section 32 from being regarded as an arbitrary deprivation of property because there still was not a proper procedure, the government will probably be able to show that the limitation in section 32 is, in terms of section 36(1) of the Constitution of 1996, reasonable and justifiable in an open and democratic society. Despite the fact that section 25(1) prohibits arbitrary deprivations, it does not prohibit the government from regulating competing rights to use water even though some people may be negatively affected by the regulation. Because the Minister merely acts as public trustee of the nation's water resources on behalf of the national government in terms section 3(1) of the National Water Act, it cannot be claimed that the government acquired the cancelled water use rights. A claim that compensation should be paid for an expropriation of property will therefore not succeed. Compensation is only payable in terms of section 22(6) and section 22(7) of the National Water Act 36 of 1998 for a loss of existing water entitlements, such as existing lawful water uses or existing licences. A court should thus consider interpreting section 25 by providing for compensation where an individual was unfairly burdened and was therefore denied the protection of the equality clause in section 9 of the Constitution when his unexercised water use rights were cancelled by section 32. The concept "beneficial use" currently restricts the content of the water use entitlement existing in terms of section 4 of the National Water Act 36 of 1998. The loss of the entitlement when inter alia a licence for an existing lawful water use is refused, is not protected by the payment of compensation when water is used in an unfair or disproportionate manner, because such utilisation would not be regarded to be beneficial use. It became apparent that in terms of the current water law dispensation in South Africa, the possibility of compensation for an amendment of a water use licence and the refusal of a licence for an existing lawful water use implies that a water use entitlement is a right in property. The fact that section 22(7) of the National Water Act states that the amount of the compensation must be determined in accordance with section 25(3) of the Constitution implies that the legislature also recognises that a water use entitlement is constitutional property. Section 22(7) of the National Water Act underlines the basic premises of the National Water Act by subjecting the amount of the compensation that is payable to the same limitations that restrict the entitlement to use the water. The stipulations of section 22(7) draw the attention to the fact that the exercise of both existing lawful water uses and water use licences as rights in property is subject to basic principles of the National Water Act such as the Reserve and the concepts "public trusteeship" and "beneficial use" of the water resources. The fact that compensation is only payable when there has been severe prejudice to the economic viability of an undertaking implies that water use entitlements have to be exercised at the time of the application for the compensation to be payable. The concept "beneficial use" – in the sense that a water use must not be wasteful or polluting and in the sense that only water use entitlements that are being exercised are protected – thus restricts the water use entitlement as a property right. During the research, American and Australian water law reform and their interpretation of their property clauses were compared to water law reform in South Africa and the South African property clause. Furthermore, Australian policy to encourage more beneficial water use by the trade in water entitlements or allocations, was also discussed. South Africans will likely in future be encouraged to trade in water use entitlements or allocations. The objective with allowing the trade in water use entitlements or allocations is to encourage people to rather use water for uses with a high value instead of uses with a lower value. In this way the concept "beneficial use" may be broadened to include water allocation or entitlement trading. However, it was argued that a disproportionate impact on third parties would mean that water allocation or entitlement trading would in some cases not be regarded as beneficial use anymore. / Thesis (LL.D.)--North-West University, Potchefstroom Campus, 2011.