Settling the question of ownership of degraded mining land: Enabling a fibrous future

1 1 The problem of mine-waste land in South Africa

Prior to the enactment of South Africa’s Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), under the Minerals Act 50 of 1991, private landowners were entitled to not exploit mineral resources that existed under their land, if they had not previously been severed from the land.3 A private landowner was free to not engage in the business of mining on her land, or sell the mineral rights to a party that may wish to do so.4 If the State wished to have minerals on private land exploited, it would have to expropriate either the land or the rights to minerals, against payment of just and equitable compensation.5 Landowners who thus wished to protect their land from the degradation that would result from mining were free to do so, or had to be appropriately compensated by the State.

Inevitably, in a country in which landownership and mineral resource holding patterns were racially skewed due to a history of colonialism and apartheid,6 this position could not persist long. The MPRDA made the State the custodian of South Africa’s mineral resources, which the State must now regulate for the benefit of all of South Africa’s people.7 The State, rather than the landowner, grants rights to engage in prospecting and mining, including on private land.8 As a consequence, landowners now have little to no agency on whether prospecting or mining takes place on their land.9 At most, they are compensated for the loss or damage that occurs as a result of mining operations.10

Following the conclusion of mining operations, if the process envisaged by the legal framework created by the MPRDA is followed, the land will be rehabilitated, and a closure certificate granted to the right holder.11 However, South Africa has a poor track record of mine rehabilitation and closure, and as a consequence, landowners do not know whether or not they will receive their land back in a rehabilitated state.12 Effectively, private landowners who are not engaged in the business of mining may remain burdened with the long-term consequences of the practice, from which they derived no benefit. Evidently, there is an imbalance of interests to the detriment of private landowners. Furthermore, there are the long-term socio-economic and environmental effects of mine closure on local communities, which may have depended economically on their local mine,13 and will suffer the adverse environmental and health effects of failure to effectively rehabilitate and close the mine. 14

The legislative provisions concerning mine rehabilitation may have been drafted with the best of intentions, providing for among other things, financial provision from would-be miners to cover the costs of rehabilitation.15 The Financial Provisioning Regulations16 are particularly stringent, providing for minimum content for (1) annual rehabilitation plans, (2) final rehabilitation, decommissioning and mine closure plans, and (3) environmental risk assessment reports. The mine closure plan requires the identification of post-mining land use while the environmental risk assessment report requires the identification of latent environmental risks following mine closure. The mine closure plan must include a closure cost estimate, to ensure “that identified rehabilitation, decommissioning, closure and post-closure costs, where on-going or once-off, are realistically estimated and incorporated into the estimate”.17 The closure estimate must be updated annually.

The Financial Provisioning Regulations have been contentious,18 with the transitional arrangements being subject to numerous redrafts and extensions. As of writing, the most recent extension provides that a holder of a right or permit in terms of the MPRDA, who applied for such right or permit prior to 20 November 2015, is regarded as complying with the provisions until an unspecified date to be published in the government gazette. 19

It is evident that the existing legal framework can only achieve so much in the absence of effective enforcement, incentives and legal certainty.20 Closure certificates that are granted are usually for prospecting sites or small-scale mines with relatively low environmental impacts.21 Given the possibility of perpetual liability introduced in legislative amendments, larger mining companies would rather sell on their rights to smaller concerns than go through to process of closing a mine.22 Ultimately, new solutions are required to address degraded mining land, which will require changes to the legal framework, including around the question of ownership of degraded mining land. It is important to determine where, exactly, such ownership should vest, particularly following the conclusion of mining operations.

1 2 Harnessing fibrous plants

The Towards Resilient Futures Community of Practice seeks to provide solutions to the problems surrounding mine closure in South Africa.23 Resilient Futures is an interdisciplinary initiative, including collaborators from the fields of engineering, economics as well as law.24 It has sought to determine the viability, from engineering, economic and legal standpoints, of using fibrous plants to remediate mining land while creating new economic opportunities.25 The project on bioremediation of degraded mining land is referred to as the Fibrous Future Initiative (FFI). 26

The FFI presents a possible solution to the problem in ineffective mine rehabilitation, as it could unlock the dormant positive value of unrehabilitated mining land.27 Fibrous plants are capable of growing on degraded soil, while being able to “absorb and concentrate environmentally noxious metals in their roots, stems or leaves, thus removing the metals from the soil and permitting the re-entry of such croplands into the agricultural cycle”.28 Such plants may also be “mined” themselves, meaning the metals they have absorbed can be harvested from various parts of the plant.29 Furthermore, commercial fibre-producing plants can be used to produce a variety of products such as biofuels, textiles, paper and furniture.30 Effectively, these plants can both remediate degraded mining land, in addition to providing new economic opportunities to surrounding communities.31 Such an initiative thus offers a possible solution to the negative impacts of post-mining wastelands for all affected parties, particularly those parties who remain bound to the land in one way or another. Moreover, new economic sectors can take root, providing economic opportunities to communities surrounding degraded mining land. 32

There are a number of important issues the law needs to grapple with to establish an appropriate legal framework which would facilitate success in the FFI.33 Among these is the question of the ownership of degraded mining land, particularly where the landowner and the mining right holder are not the same person.34 This article is primarily concerned with the manner in which the FFI can provide some form of relief for landowners, with a particular focus on a regulated exit which would see another party take ownership and responsibility for the land in question. It begins with an analysis of the law of abandonment as regards land, and the importance of the law’s general suspicion of unregulated abandonment.35 Theory related to the social-obligation norm of property law is explored as a basis for the manner in which the law controls our disposal of unwanted property.36 It then proceeds to evaluate the burden to which landowners are subjected in the mining context, particularly in view of South Africa’s poor track record of mine rehabilitation and closure. It seeks to provide a model of what a regulated exit from landownership would look like if coupled with the FFI. Finally the potential consequences of the Expropriation Act37 for degraded mining land are considered, specifically those sections which would empower the State to expropriate land for nil compensation.38

2 1 Abandonment of landownership in South Africa

Prior in-depth analysis41 has confirmed that it is not possible to abandon landownership in South African law.42 There is simply no mechanism which permits a landowner to strike their name from the title deed unilaterally.43 South Africa observes a negative system of registration of land.44 The position reflected in the Deeds Registry is not guaranteed to be correct, though it is characterised by a high degree of accuracy.45 However, in view of the principle of publicity,46 it is difficult to envisage how land may be abandoned without registration actions to give effect to it.47 Thus, no matter how neglected or “abandoned” a plot of land may look, it will still have a registered owner. Landowners are not free to divest themselves unilaterally of ownership in their land (even if a third party has engaged in mining on the land, and then failed to rehabilitate it).48 Absent finding a party willing to take transfer thereof, they remain responsible for it.

The impossibility of abandoning land in South African law serves an important purpose. An unrestricted right to abandon, which may result in the proliferation of neglected land for which the State will need to take responsibility, is not viable in South Africa’s socio-economic context. The social cost of such abandonment, particularly in a country characterised by wealth inequality,49 and in which the State is already struggling to meet its socio-economic obligations to its people in light of budget constraints,50 is too high. Nevertheless, where the landowner is not to blame for the circumstances causing her land to accruing a negative value, it is necessary to evaluate the allocation of the burden on the landowner. Such circumstances may justify providing a landowner with some sort of (regulated) exit, thereby passing the responsibility for the land to the State or another party willing to take responsibility therefor. A clear example would be where mining was conducted on the owner’s land by a third party granted a right by the State absent her consent, and the right holder failed to comply with its obligations to rehabilitate the land. The landowner in such circumstances is unlikely to ever receive their land back in a rehabilitated state, may have no use for it, and be unable to find a willing buyer. This example is expanded upon below, although concepts such as the duty to maintain and the social-obligation norm of property will be surveyed first.

2 2 The duty to maintain and the social-obligation norm of property law

A key factor in contributing to the burden on a landowner, and which may contribute to land accruing a negative value, is the duty to maintain.51 As Shoked explains, for ownership of property to constitute a burden, it “must do worse than offer no conceivable economic benefit”.52 Such a burden would stem from positive obligations that attach to the ownership of land.53 These duties are not limited to property taxes. Rather, a burden which may give rise to land accruing a negative value for its owner likely stems from a duty to maintain that land.54 In Shoked’s view, the duty to maintain is an integral part of ownership of land, given the potential consequences of neglect for parties other than the owner.55 While Shoked is making his observations in the context of US law, his observations are equally applicable to South African law. A quick survey of South African law provides examples of the duty to maintain, from problem building by-laws,56 property that is protected in terms of the National Heritage Resources Act,57 or the requirement to maintain firebreaks in areas at high risk of veldfires.58 Even at common law, a property owner is obliged to maintain her property to ensure it does not amount to a nuisance or danger to her neighbours.59 The duty to maintain is a key consideration in the context of degraded mining land, as such land may not just pose a nuisance to immediate neighbours, but pose a threat to the environment and wider community.

The duty to maintain can potentially be oppressive for the individual owner, depending on context. In considering the allocation of burdens with respect to negative-value land, the social-obligation norm of property law is useful. As Peñalver has noted, the doctrine of abandonment, rather than affirming the autonomy of owners, rather affirms their obligations and responsibilities as owners.60 It is widely acknowledged by property-law scholars that the entitlements of ownership (particularly landownership) are coupled with obligations, obligations which cannot be viewed as separate from the social context in which ownership exists.61 The seminal work of Alexander is instructive in this regard.62 Property rights, particularly rights in land, in his view are conceived of as “inherently relational”.63 At the core of Alexander’s conception of the social-obligation norm of property is human flourishing.64 Such an approach to the law of property requires “individuals to live lives worthy of human dignity”.65 Human flourishing provides justification for the existence of property rights, and equally, justification for interference with and limitation of property rights.66 Consequently, owners owe obligations to the society in which they live.67 Property owners depend on society for the acknowledgement and protection of their property rights, which enables them to flourish.68 Thus owners should in turn support the same social framework which enables them as well as others to flourish.69 Such an approach to the social-obligation norm does not mean disregarding individual rights and interests, property owners must still be protected from unreciprocated burdens. 70

In the framework of the social-obligation norm, the obligations of property owners extend beyond not causing harm to others.71 Owners may also be expected to contribute to the well-being of their community, since their community has enabled their own flourishing.72 Such a contribution may take the form of giving from their own resources, or the limitation or complete loss of certain entitlements of ownership.73 For example, one’s immediate reaction may be that an owner should be entitled to terminate her relationship with property as she sees fit. However, such an approach is not compatible with protecting the right of others to flourish in many societies. Depending on the context, the unrestricted disposal of unwanted (particularly contaminated) land poses a significant threat to the flourishing of others, both to others the immediate vicinity of such land and those who will be impacted by the inevitable drain on the public purse.74 As such, an individual owner may be expected to retain ownership, and use her resources maintaining her land, until such point as a third party is willing to take transfer and responsibility for such property. Ensuring a party remains responsible for degraded mining land, to mitigate its impacts, is essential to ensuring the flourishing of surrounding communities who cannot simply relocate to greener pastures. It is, however, a question of whether it is fair to expect this of the non-mining landowner, particularly in the absence of effective solutions to rehabilitating the land. Degraded mining land clearly poses particular challenges to the social-obligation norm, particularly in respect of flourishing. Both the flourishing of the non-mining landowner and mine-affected communities may be severely jeopardised when mining companies fail to comply with their obligations to rehabilitate land.

Alexander takes a “sliding scale” approach to the social-obligation norm.75 Following this approach one can evaluate “the magnitude of the social obligation and the social function of property”, deciding on the appropriateness of particular burdens on different types of property.76 Such an approach would assist us in determining why a particular entitlement of ownership may be limited or withdrawn in one socio-economic context, but unrestricted in another socio-economic context.77 It may also assist in determining whether a particular burden to which the landowner is subjected is fair.

This conception of the social-obligation norm is compatible with the values enshrined in South Africa’s Constitution, for example, human dignity, equality, and the promotion of human rights and freedoms.78 Section 25, the property clause, aligns with the social-obligation norm, particularly in respect of land and natural resources reform.79 Landowners enjoy certain protections under the constitutional dispensation, such as the constitutional prohibition against arbitrary deprivation of property,80 but at the same time, can be expected to tolerate the limitation (or outright sacrifice) of certain entitlements. 81

Furthermore, the sliding-scale approach to social-obligation would similarly appear to be an easy fit with South Africa’s constitutional property law.82 In particular, the factors to be considered in a proportionality analysis in respect of the cases involving the deprivation of property, reflect a sliding-scale approach.83 Per the Constitutional Court in First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service,84 when concerned with the non-arbitrariness requirement, it may not be sufficient to establish a simple rational connection between means and ends.85 The severity of the deprivation may necessitate considering the proportionality of the means and ends as well, i.e. the impact of the deprivation on the individual property holder.86 Should a particular deprivation be disproportionate to the infringement of a property right, such deprivation is most likely arbitrary.87 In South Africa’s historical context, it is justifiable and proportionate that private landowners be subject to certain deprivations in respect of their land to open up the mining industry to the historically disadvantaged. However, the legislative framework clearly envisages landowners having their land returned to them in a rehabilitated state (even though such land may never be truly restored). The absence of effective enforcement of rehabilitation provisions, potentially leaving an owner saddled with what is a wasteland, may shift such a deprivation from being proportionate to disproportionate, and thus arbitrary.

South African constitutional property law is thus flexible, embodying a sliding-scale approach to the social-obligation norm.88 This position permits us to consider whether the burden to which a particular landowner is subject is equitable or not, and whether the burden should be allocated to another party, such as the State. This paper now turns to evaluate the nature of these burdens in the mining context in South Africa, and fitting the FFI with the social-obligation norm.

2 3 The mining context and the allocation of burdens

Restricting the disposal of land to ensure someone remains responsible for it clearly serves an important purpose. It reflects the manner in which the social-obligation norm operates in South African property law, and in particular, finds a comfortable fit with the values of the Constitution.89 However, it does inevitably result in situations which are not necessarily equitable and a reconsideration of the allocation of burdens between the relevant parties is required. The mining context, in which the State may grant rights to prospect or mine on private land, is one such example. Landowners over whose land a right to prospect or mine has been granted are in an unenviable position. Under the current legal framework, private landowners do not have the right to withhold consent to the granting of a right to mine in their land, only to be consulted during the application phase for such a right with a view to determining whether accommodation between the parties is possible.90 Once a right has been granted, landowners may be compensated for any loss or damage that may occur as a result of prospecting or mining operations,91 but otherwise only stand to benefit in their capacity as members of the public.92 While the frustration of certain objectives of the MPRDA may trigger the discretion of the Minister to expropriate the land in question (for example, to “promote employment and advance the social and economic welfare of all South Africans”),93 none of these objectives relate to the continued utility and value of the land to its owner. There is thus no obligation on the State nor the right holder to assume ownership of the land should the landowner no longer be able to put it to any use. 94

South Africa has a poor track record of mine rehabilitation and closure.95 Historically, mine closure in South Africa can be described as “environmentally inept”.96 Despite the enactment of strong environmental legislation under the new constitutional dispensation,97 mine closure and rehabilitation continues to be characterised by poor compliance and enforcement. South Africa is home to an estimated 5700-6000 derelict mines.98 Rehabilitation of these derelict mines would take 800 years, and the estimated cost of rehabilitation stood at R100 billion in 2017.99 Despite the well-meaning provisions in the MPRDA and NEMA,100 a disconnect exists “between policy and practice concerning mine closure”.101

The One Environmental System (OES) was implemented with the primary goal of streamlining the process of obtaining environmental authorisations for mining, replacing the previous fragmented and ineffective model.102 The implementation of the OES saw the repeal of all environmental provisions from the MPRDA and the incorporation of these provisions into NEMA.103 The Minister responsible for mineral resources was made the competent authority for granting environmental authorisations for mining activities.104 The Minister responsible for environmental matters will only serve as an appeal authority regarding the granting of authorisations for mining activities.105 As Mpinga points out, critics had anticipated “a lack of enforcement of the One Environmental System even before it came into effect”.106 In allocating the authority to enforce environmental laws to the same Minister responsible for promoting mineral extraction, a conflict of interest is almost unavoidable.107 In such circumstances, the lack of proper enforcement of legislative mine closure provisions is not surprising. It also explains why larger mining companies are usually permitted to sell their rights onto smaller concerns rather than complying with their closure obligations.

It is not difficult to foresee situations arising in which private landowners find themselves burdened with toxic wasteland once mining operations have ceased. The right holder may be completely out of the picture, being a juristic person which may have since ceased to exist.108 As such, the remnants of the mining operation, and the related contamination of the land, can be considered effectively “orphaned”.109 It is true financial provision for mine rehabilitation and closure is a prerequisite for conducting mining operations,110 and that such provision may be increased on an annual basis to the satisfaction of the Minister.111 Furthermore, a portion of such financial provision may be withheld by the Minister to manage “latent, residual or any other environmental impacts”.112 And the Financial Provisioning Regulations are particularly stringent. However, it is difficult, if not impossible, to get an accurate estimate of the true cost of the rehabilitation which is required to take place at the end of a mine’s lifecycle.113 Environmental issues such as acid mine drainage are particularly “difficult to quantify and predict ... and costly to manage”.114 The residual environmental impacts from mining have created a situation in which obtaining a closure certificate may be a “practical impossibility”, as the State would be unlikely to wish to take on responsibility for such impacts.115

In theory a landowner should receive her land back in a rehabilitated state; in practice, this is unlikely. The land may never be returned to an economically viable state. And even if the required rehabilitation and mine closure were to take place, the land may effectively be sterilised for the landowner’s intended use.116 Finding effective economic uses for such land, which may otherwise lie unused while being a source of harm to the community, is thus essential.

Reflecting on the mining context, the burden to which the non-mining landowner is subjected can evidently be oppressive. It hence may require reallocation. A balance of relevant factors would favour the landowner.117 Firstly, the extent of the burden to which they are subject is considerable given that the landowner has no control over the granting of rights to minerals in her land. Secondly, existing remedies for conflict resolution between landowner and right holder, whether section 54 of the MPRDA or common law principles,118 are ineffective in view of the poor track record of mine rehabilitation and closure in South Africa. Nor can the landowner depend on the financial provision provided during the course of mining operations to be adequate to cover the true cost of rehabilitation, particularly in circumstances in which the right holder no longer exists to be held accountable. Thirdly, a third party (the right holder) is deriving a substantial benefit from the burden the landowner is subjected to, primarily for its own profit. It is also this third party which holds the obligation to rehabilitate the land in any case. Finally, the societal cost of permitting the landowner to “abandon” or exit ownership would likely be minimal, given that the obligation to rehabilitate the land was never hers to begin with, nor could a private owner (that is not a mining company) ever realistically foot such a bill in any case. 119

3 1 A note on the literature and the Draft National Mine Closure Strategy

It is not possible to do a deep dive of the mine closure literature within the limits of this article.120 Venter, Gbadesesin and Van Wyk provide a comprehensive overview of the literature, noting that previously mine closure focused primarily on “mitigating environmental damage and advancing economic agendas”.121 The social consequences of mine closure were ultimately given little, if any, consideration.122 The mine closure literature in recent years has sought to address the shortcomings in mine closure planning,123 stressing the need to build new economics as part of the mine closure process,124 as well as community involvement in planning for mine closure. 125

It is necessary to engage with the Draft National Mine Closure Strategy126 which was published in May 2021. Among the objectives of this strategy include the management of “the closure of mines in a demarcated area in an integrated and sustainable manner, hence ensuring that these mines work together to achieve [a] self-sustaining ecosystem after closure”. Further, the strategy seeks to make provision for post-closure “socio-economic sustainability”. It also seeks to integrate “environmental management and related closure activities with socio-economic interventions and aligning these with development of a post-closure economy”. Khanyile and Marais note that while such objectives are very optimistic, the integration of “environmental and social aspects is an important contribution to mine closure thinking”.127 The FFI finds a comfortable fit with such a strategy, as it aims to remediate the environmental damage of mining while ensuring that economic opportunities are provided to affected communities. The Strategy in fact acknowledges the possibility of using fibre crops to promote economic diversification.

As Khanyile and Marais explain, one of the problems with long-term planning for mining communities is thinking that the same scale of investment for mining will be available for economic diversification.128 However, such economic diversification “depends on a new economic sector’s relatedness to a previous sector, but there are not many economic activities related to mining”.129 The FFI does provide a unique opportunity for economic diversification in circumstances where there are desperately few options to make use of degraded mining land for the benefit of local communities.

3 2 The possibility of preventing mining and degradation in the first place

It is conceded that “exit” is an extreme remedy for non-mining landowners. There are potential alternatives, some which may permit a non-mining landowner to control whether mining takes place on their land in the first place. In this respect, the judgment in Maccsand (Pty) Ltd v City of Cape Town130 is particularly important to consider. In this case, Maccsand had been awarded a mining permit to mine the Rocklands dunes as well as the Westridge dune for sand. The dunes in question are located in a residential areas. In terms of the Land Use and Planning Ordinance, 1985 (LUPO),131 the dunes were zoned as public open space, meaning that unless rezoned, such land could not be used for mining. When Maccsand commenced with mining activities on the Rocklands dunes, the City of Cape Town proceeded to seek an interdict requiring it to cease operations pending the rezoning of the land.

It was contended by Maccsand and the Minister of Mineral Resources that LUPO did not apply to land in respect of which a right granted in terms of the MPRDA had been granted. Mining is an exclusive competence of the national sphere of government, which in their view meant that a finding that LUPO applies to such land would permit “an unjustified intrusion of the local sphere into the exclusive terrain of the national sphere of government”.132 However, as the court points out, LUPO does not purport to regulate mining, but rather land use in the Western Cape province.133 There may be some overlap between the operation of the MPRDA and LUPO, but it cannot be said that this amounts to “an impermissible intrusion by one sphere into the area of another because spheres of government do not operate in sealed compartments”.134 Merely granting a right in terms of the MPRDA does negate the operation of LUPO in regulating land use.135 Furthermore, the MPRDA does not purport to negate the operation of planning legislation such as LUPO.136 While LUPO specifically permits the landowner to apply for rezoning of land, it does not preclude the holder of a right granted in terms of the MPRDA from requesting the provincial government to intervene and rezone the land in the event of opposition by the landowner.137 Ultimately, there is no conflict between LUPO and the MPRDA.138 Each concerns different subject matter.139

Effectively, this judgment does provide landowners some scope to protect their land from mining operations (with the inevitable consequences of its degradation). As Olivier, Williams and Badenhorst point out, the judgment “provides protection to landowners and occupiers in general to the extent that any proposed change in land use can be implemented only if all the authorisations required in terms of a range of legislative instruments have been issued by the individual authorities responsible for the administration of such statutory instruments”.140 However, Maccsand would only really provide owners with permanent protection against mining on their land in circumstances in which rezoning for mining purposes is inappropriate.

Where it is an inevitability that the right holder will obtain the necessary authorisations to proceed with operations, including rezoning of the land, non-mining landowners will need other remedies. Obviously, many landowners may wish to retain ownership of their land, viewing it as a long-term investment, and may wish to be a partner in the rehabilitation process, perhaps even being the main beneficiary of a bioremediation project such as an FFI. However, it is contended this should not be required of them, given their lack of agency in the use of their land for mining, which renders the burden on them unjustified. In such circumstances, it will be necessary to look into the possibility of “exit” as outlined above.

3 3 Bio-remediation, the Fibrous Future Initiative, and regulated exit

Where the mining company and landowner are the same entity, it is a simple matter. The right holder is responsible for the environmental rehabilitation of the land after all. Furthermore, as landowner, they are responsible for the duty to maintain, and to ensure their land does not pose threats or danger to others. The right holder, as landowner, can sell the land on to another party willing to undertake the FFI, if a buyer can be found.141 Otherwise, the right holder, in an effort to eventually reverse the negative value of the land, may undertake the FFI as part of its rehabilitation obligations.142 Such initiatives hold the potential to unlock the dormant positive economic value of land which has not yet been adequately rehabilitated.

In circumstances where the private landowner is not the party responsible for the degradation of and failure to rehabilitate the land, they should be provided with the option of exit from ownership. A consideration of the relevant factors, as noted above, weighs in favour of permitting a landowner to, at a bare minimum, “abandon” or exit ownership. Incentives may be offered to the landowner to encourage her to remain owner and potentially benefit in the long term from the FFI transition on her land.143 However, there should be no obligation on her to do so. Where the landowner is not committed to the FFI project, in fact, incentives should be offered to her to offload degraded (and likely negatively valued) land.144 Donation is an option, should there be a party (such as the local community) willing to take transfer of the land.145 Tax reductions in return for such a donation may be an effective tool. 146

The question remains as to who, following the landowner’s exit, would take ownership and responsibility for the land in question. The default position in South African law, if abandonment were possible, is that the land would become bona vacantia, i.e. accrue to the State.147 It would thus not be rendered res derelictae, ownerless, to be potentially claimed by the first taker. Since the landowner’s exit would need to be facilitated through legislative reform, i.e. an abandonment statute, such a statute would need to provide to whom the property is directed, if the default position of passing responsibility to the State is not desirable. The statute could leave it open to the State to direct ownership (and thus the responsibility for) the property to a third party, such as the mining company responsible for rehabilitation of the land, if an agreement to this effect can be reached.148 Another option, if an FFI is to be undertaken, is to direct the land into the ownership of the local community earmarked to benefit from the initiative. Particularly where the cultivation of the land is envisioned as a long-term project, such an arrangement is likely the most desirable, should the community be given the necessary support to ensure its success.

Ideally the transfer of the land can be arranged between the relevant parties themselves, i.e. landowner, State, local community, and/or right holder (if still in the picture). The landowner should be required to attempt to reach some form of “abandonment agreement” or donation agreement with one of the relevant parties.149 Ideally, an abandonment statute should provide for the process to be followed by the landowner in attempting to reach such an agreement.150 However, where the landowner finds herself in a situation where no party is willing to cooperate with her, an abandonment statute could provide for a landowner to approach the court for relief.151 In this respect, an abandonment statute should provide for the procedure to be followed by the landowner in approaching the court, how interested parties may be notified, and which parties should be joined.152 An abandonment statute should also provide the parameters within which to consider any application by a landowner to divest herself of ownership, informed by the factors outlined above. 153

A legal framework, provided for by such a statute, in which ownership of degraded mining land is directed to parties committed to the FFI would align with the social-obligation norm as outlined by Alexander. The property would be used in a manner which enables not only the current owner to flourish, but surrounding communities as well, who will benefit from the FFI. New economic opportunities combined with the reduction of harm posed by degraded mining land are critical in this respect. It further corresponds with a legal framework which in general seeks to ensure someone remains responsible for otherwise unwanted property, and should take the proper steps in disposing of such property. 154

Whoever ultimately acquires ownership of the degraded mining land should be required to commit to the FFI project.155 Inevitably, by taking on ownership of the degraded mining land, they take on the burden associated therewith, and the duty to maintain that land in particular. Where it is a local community taking on ownership of such degraded mining land, they need to be capacitated to meet its obligations to maintain the land and ensure the success of the FFI. Such could potentially be supported through the effective implementation of a mine rehabilitation fund along the lines of the Western Australian model, which is discussed below. Appropriate incentives and support would need to be offered, particularly to affected communities, given the task of rehabilitating the land.156 It is, however, beyond the scope of this article to delve into what form such incentives and capacity building may take.

3 4 Expropriation (for nil compensation?)

Where land is degraded and is not currently being put to any productive use, the State could consider using expropriation as a tool to facilitate FFIs.157 The Constitution provides for expropriation in terms of a law of general application where property is required for a public purpose or in the public interest.158 Expropriation is subject to the requirement to pay compensation,159 and the amount of compensation be just and equitable in view of all relevant circumstances.160 For the purposes of section 25 of the Constitution, 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”.161 The expropriation of degraded mining land for the purposes of facilitating an FFI that benefits the local community would appear to fit within this definition of the public interest. Thus, so long as the expropriation takes place in terms of a law of general application and just and equitable compensation is paid, there is little reason to think an FFI would not provide a justifiable basis for expropriation. Expropriation could be an option in circumstances in which the landowner requests to be expropriated, does not wish to cooperate with an FFI, or cannot be traced and is thus not present and exercising any control over her land.

One of the features of the new Expropriation Act162 is the provision for expropriation against payment of nil compensation where land is required in the public interest. The Act sets out the circumstances in which it may be just and equitable to calculate compensation at nil, which includes “where an owner has abandoned the land by failing to exercise control over it despite being reasonably capable of doing so”, despite the position in the Deeds Registry.163 In respect of degraded mining land, a non-mining landowner is unlikely to be able to exercise any effective control (in fact, the land may be subject to illegal mining by criminal syndicates that even the State may struggle to remove),164 though it can be argued that in such circumstances they clearly are not reasonably capable of doing so. It should be noted that the Act provides that the circumstances under which it may be justifiable to calculate compensation at nil are not limited to those explicitly listed. 165

Where a party other than the State (such as the local community) is earmarked to take responsibility for the land, the Act appears to make provision for third-party transfer. The effect of an expropriation is that “ownership of the property ... vests in the expropriating authority or in the person on whose behalf the property was expropriated”.166 It would thus appear possible, in terms of the Act, for degraded mining land to be expropriated for parties who wish to undertake an FFI.

Expropriation thus appears to be the simplest existing tool to harness to settle issues of ownership and responsibility for degraded mining land, particularly in the framework envisioned by the Expropriation Act. However, while the Act may provide for expropriation for nil compensation in the above circumstances, which may ultimately be to the benefit of the registered owner of degraded mining land, it does not oblige the State to expropriate. The State, through the relevant Minister,167 still has to exercise its discretion to expropriate (and thus take responsibility for) property, even if empowered to do so against payment of nil compensation. If the State remains uncommitted or unwilling to provide the necessary investment and support, it is unlikely it would exercise its power to expropriate degraded mining land, even for nil compensation. In particular, given the implications for the public purse of such expropriation of degraded mining land, it is unlikely the State’s power of expropriation would ever be exercised to provide relief for non-mining landowners. As the estimated cost of mine rehabilitation sat at R100-billion in 2017168 and has undoubtedly substantially increased, the State would likely avoid using its power of expropriation in such circumstances. In the absence of such willingness by the State to expropriate, it is necessary that the option of regulated exit for the landowner, outlined in section 5 above, be available.

3 5 Comparative analysis: international best practice and alternatives to “exit”

South Africa is not alone in rendering the unilateral abandonment of landownership impossible.169 Scotland serves as a good example of a jurisdiction in which landowners may not abandon landownership.170 This position was made clear in The Scottish Environmental Protecton Agency v The Joint Liquidators of the Scottish Coal Company,171 concerning land on which open-cast mining had been conducted by the Scottish Coal Company. Briefly, the liquidators sought to abandon the sites, as the cost of maintaining the land would inevitably leave the company’s unsecured creditors with nothing.172 When the matter came before the Inner House of the Court of Session, it was ultimately decided that land could not be abandoned unless provided for by law.173 As there was no procedure for the “transfer [of] land into oblivion”, it was not open to the owner to abandon ownership therein. 174

Evidently, jurisdictions with significant mining industries need to ensure someone remains responsible for degraded mining land. Non-mining landowners in South Africa are faced with unique challenges though. Despite legislation and regulations which are good on paper and should result in effective rehabilitation if enforced, the country’s track record of mine closure is particularly poor. Given that non-mining landowners do not profit from mining on their land (they only stand to benefit in their capacity as members of the public),175 it is argued that expecting them to retain the burden of ownership may be unjustified. Nevertheless, it is ideal to look at the approach in other jurisdictions which are more in line with best practice, and would perhaps provide a more comfortable fit with a bioremediation project such as an FFI, if properly enforced.

Ontario’s Mine Rehabilitation Code176 is comprehensive. Among other things, it has a detailed section on revegetation of degraded mining land. The objectives of the section on revegetation include ensuring sufficient vegetative growth occurs to (1) stabilise surface materials, (2) “enhance natural vegetation growth and establish a self-sustaining vegetation cover”, and (3) “support the post-closure state”.177 Sufficient vegetation growth is a prerequisite for a site to be considered closed.178 The code further contains inspection and maintenance provisions for revegetation.179 Evidently, legislation and regulations which provide similar vegetation requirements would be ideal to promote FFIs as an option for rehabilitating degraded mining land, especially if adapted to provide for bioremediation that unlocks new economic opportunities.

Western Australia’s Mining Rehabilitation Fund has already been suggested as a model which South Africa should follow.180 The fund was established in terms of the Mining Rehabilitation Fund Act 2012. The fund’s main purpose is to ensure funding for the rehabilitation of abandoned mines, as well as other land affected by mining.181 The Fund is funded via a levy imposed on the holders of mining authorisations,182 thus shifting the burden of rehabilitating abandoned mines onto the mining industry.183 Obviously, a similar levy would face stiff opposition from the mining industry in South Africa. A previous suggestion that the mining industry contribute two thirds of the cost of cleaning up acid mine drainage was met with the claim that it would result in bankruptcies and mine abandonment.184 Nevertheless, it is contended that such a levy for a mine rehabilitation fund would place the burden of addressing the impact of degraded mining land on the right parties. While the establishment of a mine rehabilitation fund in South Africa has been mooted,185 as of writing it does not appear to have become a reality.

Furthermore, as Badenhorst has pointed out, the compensation provisions in Western Australia’s Mining Act 1978 are superior to section 54 of the MPRDA.186 In particular, the Act provides a detailed list of items for which a landowner or lawful occupier may be entitled to compensation, including “social disruption” or any reasonable expense “arising from the needs to reduce or control the damage resulting from or arising from the mining”.187 Ideally, section 54 of the MPRDA should be amended along these lines to better protect the interests of non-mining landowners.188

It is conceded that these examples provide models that South Africa should seek to emulate. They do provide a better fit for an FFI project. However, in light of the current challenges in achieving mine closure in South Africa, it is contended that non-mining landowners need to be provided with the option to “exit”. Ideally, they should be supported in participating in an FFI should they wish to engage in one, but if not committed, ownership of the land should be directed to another party. Given the limitations of this article, it is not possible to expand on this comparative analysis.

3 6 Challenges for bioremediation

It is beyond the scope of this paper (and the author’s own expertise) to engage with the scientific and technical complexities of the proposed bioremediation of degraded mining land. The limitations and challenges have been acknowledged in reports by other reports from the COP.189 For example, Harrison et al note that fibre crops are likely to grow better in soils characterised by low to moderate contamination, while heavily contaminated mining land is not recommended for fibrous plants.190 A two-stage process is required where land is heavily contaminated - before the planting of fibrous plants takes place, remediation or partial remediation of the land should take place.191