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Authors Stanford Chagadama and Germarié Viljoen
Affiliation University of Zimbabwe, Zimbabwe North-West University, South Africa
Email schagadama@law.uz.ac.zw and Germarie.Viljoen@nwu.ac.za
Date Submitted 3 August 2023
Date Revised 8 February 2023
Date Accepted 8 February 2023
Date Published 19 March 2024
Editor Prof C Rautenbach
Journal Editor >Prof C Rautenbach
How to cite this contribution
Chagadama S and Viljoen G "The Concept of Social Justice in Mine-Host Community Involvement and Benefit Accrual: Reflections from Mineral Extraction in Zimbabwe" PER / PELJ 2024(27) - DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16617
Copyright
DOI http://dx.doi.org/10.17159/1727-3781/2024/v27i0a16617
Abstract
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Minerals play a vital role in societal and economic growth. As |
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Keywords
Minerals; social justice; distributive justice; procedural justice; remedial justice; mine-host communities; involvement; benefit accrual; Zimbabwe.
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1 Introduction
Zimbabwe, a landlocked country in Southern Africa,
1
* Stanford Chagadama. LLB (UZ) LLM (Unisa) LLD (NWU). Lecturer, Faculty of Law, University of Zimbabwe (Harare), Zimbabwe. Email schagadama@law.uz.ac.zw. ORCID 0000-0002-6045-5002. This paper is based on an unpublished doctoral thesis by the author titled Host Communities and the Award and Utilisation of Mineral Rights in Zimbabwe (North-West University, Potchefstroom Campus 2023). ** Germarié Viljoen. LLB LLM LLD (NWU). Associate Professor, Faculty of Law, North-West University (Potchefstroom Campus), South Africa. Email: Germarie.Viljoen@nwu.ac.za. ORCiD 0000-0003-2986-6572. † This work is based on the research supported by the National Research Foundation (NRF) of South Africa and the Dutch Research Council (De Nederlandse Organisatie voor Wetenschappelijk Onderzoek) Project UID 129352. Any opinion, finding, conclusion or recommendation expressed in this contribution is that of the authors. 1 The country shares land borders with Zambia to the north, Mozambique to the east, Botswana to the west and South Africa to the south. 2 Anon 2023 Mining Zimbabwe 48-49. 3 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 4 The platinum group metals are platinum, palladium, rhodium, iridium, ruthenium and osmium. 5 World Platinum Investment Council 2023 http://www.platinuminvestment.com/ investment-research/articles. The World Platinum Investment Council indicates that South Africa accounts for 72% of the global annual platinum production, followed by Russia at 12%, Zimbabwe at 7% and North America at 6%. Other minor producers including China, Colombia and Finland account for 3% of the global annual platinum production. 6 US Geological Survey 2022 https://pubs.usgs.gov/periodicals/ mcs2022/mcs2022.pdf.
In 2022, Zimbabwe's mining sector experienced a 10% growth
7
7 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 8 Ministry of Finance, Economic Development and Investment Promotion 2023 https://parlzim.gov.zw/download/2024-budget-statement/. 9 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/ uploads/2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf.
growth of 7.6%,
10
10 Ministry of Finance, Economic Development and Investment Promotion 2023 https://parlzim.gov.zw/download/2024-budget-statement/. 11 See Republic of Zimbabwe 2020 https://www.veritaszim.net/sites/ veritas_d/files/NDS.pdf.
The mining sector in Zimbabwe has seen a surge in foreign capital investment, leading to the development of new large-scale platinum mines by Karo Platinum and Great Dyke Investments. These complement existing production by Zimbabwe Platinum Mines (Zimplats), Mimosa Mining Company and Unki Mines.
12
12 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 13 Prospect Lithium Zimbabwe, Zulu Lithium, Sabi Star, Kamativi Lithium and Sandawana Lithium. 14 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 15 Mineral export earnings grew from US$1.9billion in 2016 to US$5.6 in 2022 and are expected to surpass US$6 billion in 2024. The contribution of minerals to the national export earnings has thus increased from 56% in 2011 to 80% in 2022 making Zimbabwe an extractives-driven economy. See the Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 16 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf; Anon 2023 Mining Zimbabwe 48-49. 17 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf. 18 Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/assets/uploads/ 2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf.
Despite its growth, Zimbabwe's mining sector is deeply entwined with a complex historical background marked by colonialism. This legacy is reflected in legal frameworks such as the Mines and Minerals Act 38 of 1961, originally framed to benefit the colonial regime rather than the country's majority black population. This historical backdrop has significantly contributed to ongoing socio-economic challenges, particularly the inability to translate the nation's abundant mineral resources into
tangible benefits for the generality of Zimbabweans, who largely continue to live in poverty.
19
19 For instance, Zimbabwe's former Minister of Finance and Economic Development, Patrick Chinamasa, stated while presenting the country's 2016 National Budget Statement that the nations' diamonds are "a resource that seems to have not benefitted the generality of our people, notwithstanding that the diamond industry has potential to uplift our population. In Botswana, where on average about US$3.2 billion worth of diamonds are produced per year, respective revenues enable every child in the country to receive free education up to the age of 13." See Minister of Finance and Economic Development 2016 https://www.veritaszim.net/sites/veritas _d/files/2016%20%20Budget%20Statement.pdf. 20 The Ministry of Finance, Economic Development and Investment Promotion 2023 https://parlzim.gov.zw/download/2024-budget-statement/ (2024 Budget Statement) forecast an increase in capacity utilisation in the mining sector from 84% in 2023 to 90% in 2024 driven by an increase in gold and coal production. 21 Ministry of Finance, Economic Development and Investment Promotion 2023 https://parlzim.gov.zw/download/2024-budget-statement/.
In Zimbabwe mineral extraction often results in mine-host communities
22
22 See Humby 2016 SALJ 316-351 for an exposition of the term “community” in relation to those impacted by mining operations. Also see Heyns 2019 Law and Development Review 561-593. 23 Murombo 2013 LEAD 37-38. Chimonyo, Mangure and Scott 2012 https://www.readkong.com/page/the-social-economic-and-environmental-implications-of-1059367. 24 Murombo 2010 SAPL 568-589; Chimonyo, Mangure and Scott 2012 https://www.readkong.com/page/the-social-economic-and-environmental-implications-of-1059367. 25 Murombo 2010 SAPL 568-589. See Murombo 2013 LEAD 31 for a discussion of the adverse impacts of diamond mining operations on the poor communities of Marange and Chiadzwa in Zimbabwe's Manicaland Province; Bhatasara 2013 Environment, Development and Sustainability 1527-1541 who discusses the implications of black granite mining on the Mutoko communities of Mashonaland East Province of Zimbabwe. Also see Centre for Natural Resource Governance 2021 http://www.minesandcommunities.org/article.php?a=14501 pertaining to the threats of forced eviction of the Nambya and Tonga indigenous peoples of Dinde village in Hwange, Zimbabwe from their ancestral land to make way for a coal mining project.
These affected Nambya and Tonga indigenous peoples first settled in areas around Hwange and Victoria Falls along the Zambezi River between 300 AD and 400 AD.
‘paradox of plenty’ and the ‘resource curse’,
26
26 Langton and Mazel 2003 Journal of Energy and Natural Resources Law 32; Sachs and Warner 2001 European Economic Review 827; Van der Ploeg 2011 Journal of Economic Literature 366. 27 See Murombo 2010 SAPL 568. Zimbabwe is endowed with minerals such as lithium, platinum, gold, diamond and chrome, mostly found along the famous geological feature known as the Great Dyke, which stretches for 550 kilometres from northern to southern Zimbabwe. However, these resources do not seem to be benefiting the generality of Zimbabweans, who remain in poverty. 28 Humphreys, Sachs and Stiglitz Escaping the Resource Curse 4, 6, 11; Langton and Mazel 2003 Journal of Energy and Natural Resources Law 32; Sachs and Warner 2001 European Economic Review 827; Van der Ploeg 2011 Journal of Economic Literature 366. 29 Nkongolo 2014 African Journal of Democracy and Governance 82. See Murombo 2010 SAPL 568-589; Murombo 2013 LEAD 31.
The extraction of minerals in Zimbabwe, especially when it leaves the mine-host communities in a worse state economically, socially and environmentally, is inherently unfair and unjust.
30
30 The preamble to the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (the Constitution of Zimbabwe) states that the people of Zimbabwe are united by their common desire for freedom, justice and equality and that the people commit themselves to building a just and prosperous nation based on equality and fairness, among other values. Fairness in the award and utilisation of mineral rights in Zimbabwe prescribes that no group of people, surely including mine-host communities, should be made to bear a disproportionate share of the burdens of mineral extraction. 31 Rawls Theory of Justice 3 considers justice to be the first virtue of social institutions. 32 Vanclay 2017 Impact Assessment and Project Appraisal 6 defines ‘livelihood’ as the various means that people and communities use to make a living, including land and water-based activities such as farming, fishing, hunting and wage-based work.
Rather than detailing the specific challenges faced by mine-host communities in Zimbabwe, this article sets out to delve into the concept of
social justice in the context of mineral extraction. It aims to lay the theoretical foundation for unravelling the involvement of mine-host communities in Zimbabwe and their accrual of socio-economic benefits from mineral extraction, and to suggest how it can be built on. This article sets out to dissect those social justice theories that may underlie the involvement in and benefit accrual by mine-host communities from mineral extraction on their lands.
Beginning with an overview of various scholarly interpretations of social justice in association with mine-host community involvement and benefit accrual in mineral extraction, the next section identifies three main theories of social justice, namely distributive, procedural and remedial justice. These theories are crucial for examining mineral extraction on lands inhabited by mine-host communities in Zimbabwe.
33
33 Ebbesson "Introduction" 3 explains that "justice concerns arise in just about any legal context involving health, the environment and the use of natural resources”. Theories of social justice are therefore expressed in various ways and apply to various contexts.
2 Social justice: Mine-host community involvement and benefit accrual
The concept of social justice has been associated with the distribution of socio-economic resources and the well-being of society.
34
34 Miller 1991 British Journal of Political Science 371-391. 35 Shookner 2002 https://www.allianceon.org/sites/default/files/documents/ Workbook%20for%20looking%20at%20Social_and_Economic_Inclusion_Lens%202002.pdf 2. 36 Chaskalson 2000 SAJHR 204-205. 37 Rodes 1996 Notre Dame L Rev 626 explains that social justice demands first that "members of every class have enough resources and enough power to live as befits human beings, and second, that the privileged classes, whoever they are, be accountable to the wider society for the way they use their advantages". 38 Madonsela 2020 Global Governance 5. See Chipkin and Meny-Gibert 2013 https://kipdf.com/queue/understanding-the-social-justice-sector-in-south-africa 3,
who view social justice as entailing a situation where there is a fair distribution of benefits and burdens in society.
that seeks the fair re-distribution of resources, opposes discrimination and injustice in distribution, and seeks the eradication of poverty and socio-economic inequalities.
39
39 UN Department of Economic and Social Affairs Social Justice in an Open World 7-8, 15-16. 40 See Chimonyo, Mangure and Scott 2012 https://www.readkong.com/page/the-social-economic-and-environmental-implications-of-1059367. Also see Malvern Mudiwa v Mbada Mining Private Limited HC 6334/09 (2009).
From a legal perspective, it is necessary to examine theories of social justice, namely distributive, procedural and remedial justice and their relationship with the involvement in and benefit accrual by mine-host communities from mineral extraction on their lands. Concerns over justice and fairness in the granting and utilisation of mineral rights on lands inhabited by mine-host communities invite a critical evaluation of existing laws and policies. In a legal context, theories of social justice provide a useful standard for evaluating existing or proposed policy and legislative frameworks and guide the reform process. Theories of social justice help to either legitimise or criticise existing policies and laws.
41
41 Millon 1990 Duke LJ 241 discusses the role of the theories of corporation and the author affirms that such theories assist when it comes to justifying certain legislative or judicial interventions through new legal doctrines. 42 Millon 1990 Duke LJ 241. 43 See Bennett Pasts Beyond Memory 59; ACHPR 2005 https://iwgia.org/images/publications/African_Commission_book.pdf 25. 44 Zimbabwe's Indigenisation and Economic Empowerment policies are particularly meant to ensure that a disadvantaged group (mainly black people) obtains economic rights geared to fight poverty and inequality. The government of Zimbabwe faced circumstances necessitating land redistribution resulting in the fast-track land reform in the year 2000. The need for balanced economic ownership became apparent by 2010 and Zimbabwe adopted indigenisation and economic empowerment laws. Economic challenges and the failure of the indigenisation law resulted in amendments through the Finance Act 1 of 2018 and the Finance Act 2 of 2020.
correcting past injustices and ensuring equal access to national resources
45
45 See justifications for distributive and remedial legislative measures to empower previously disadvantaged South Africans in ss 9(2), 25(6)(7)(8), 29(2), 195(1)(i) and 217(2)(b) of the Constitution of the Republic of South Africa, 1996 (the Constitution of South Africa); preamble and ss 1, 2(d)(i) and 104 of the Mineral and Petroleum Resources Development Act 28 of 2002; ss 2(j), 18(5) and 31(1) of the Marine Living Resources Act 18 of 1998; preamble and chs 4 and 5 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The Constitutional Court of South Africa affirmed the commitment to social justice in several cases including Government of the Republic of South Africa v Grootboom 2001 SA 46 (CC) para 1; Soobramoney v Minister of Health, Kwazulu-Natal 1997 12 BCLR 1691 (CC) paras 8-9; City of Johanesburg Metropolitan Municipality v Blue Moonlight Properties Ltd 39 (Pty) 2012 2 BCRL 150 (CC) para 2. 46 Okharedia 2005 Phronimon 1 explains Aristotle's idea as requiring that, in the endeavor to achieve equality, the distinct inequalities among people and groups in society should be taken into consideration. The distribution of goods and rights cannot be one-size-fits-all (where unequals are awarded equal shares), since people are differently positioned materially. Some people have more (are privileged), and some have less (are underprivileged). Aristotle argues that race should not be used as a criterion for the distribution of goods and rights, and to determine equality. This view contrasts with the colonial thinking which oppressed and marginalised the black population in Zimbabwe. Aristotle's views on race and equality accord with the post-colonial and post-apartheid dispensation in Zimbabwe and South Africa as expressed in s 56 of the Constitution of Zimbabwe and s 9(1)-(3) of the Constitution of South Africa. 47 See Okharedia 2005 Phronimon 1, 3. 48 Section 56(5) of the Constitution of Zimbabwe and s 9 of the Constitution of South Africa. 49 Section 25(5)-(8) of the Constitution of South Africa. 50 Aristole, quoted in Okharedia 2005 Phronimon 12, stated that "those things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unlikeness. Equality and justice are synonymous: to be just is to be equal, to be unjust is to be unequal".
Aristotle
51
51 Aristotle Nicomachean Ethics V 1131a 1.
injustices.
52
52 Aristotle Nicomachean Ethics V 1131a 1. 53 Rawls Theory of Justice 85. 54 Solum 2004 S Cal L Rev 183. 55 Solum 2004 S Cal L Rev 183; Kuehn 2000 Env't L Rep 10681; Ebbeson "Introduction" 2; Schrader-Frechette Environmental Justice 24.
3 The notion of distributive justice
Aristotle
56
56 Aristotle Nicomachean Ethics V 267. 57 Dworkin Taking Rights Seriously 273.
Three different principles of distributive justice, namely utilitarianism, libertarianism and egalitarianism, seek to explain when the approach to be adopted for the purposes of the distribution of resources may be regarded as just or equitable. Shelton, however, warns that the choice of the appropriate principle to determine a just or equitable allocation of resources is highly contested.
58
58 Shelton "Describing the Elephant" 59 and 69 explains that there is contestation regarding "whether decisions should be based on need, capacity, prior entitlement …, the greatest good for the greatest number, or strict equality of treatment". Marx Critique of the Gotha Program 87 recommends the distribution of resources according to needs, thus "from each according to his abilities, to each according to his needs". Nielsen Equality and Liberty 62-63 sets out his egalitarian distributive principle of justice as follows: "[A]fter provisions are made for common social
(community) values, for capital overhead to preserve the society's productive capacity, allowances made for differing un-manipulated needs and preferences, and due weight is given to the just entitlements of individuals, the income and wealth (the common stock of means) is to be so divided that each person will have an equal share. The necessary burdens requisite to enhance human well-being are also to be equally shared, subject to limitations by differing abilities and differing (natural) environments."
distributive justice. For instance, in the egalitarian perspective of distributive justice some authors advocate strict egalitarianism
59
59 Strict egalitarians argue that members of a society should be allocated equal amounts of resources based on the argument that all people are morally equal and only strict equality can lead to the full realisation of the equal moral worth of human beings. Leading advocates of strict egalitarianism include Kai Nielsen and Amartya Sen. 60 Anderson 1999 Ethics 290; Arneson "Rawls, Responsibility, and Distributive Justice" 80 sets out luck egalitarianism in the following words: "[T]he concern of distributive justice is to compensate individuals for misfortune. Some people are blessed with good luck, some are cursed with bad luck, and it is the responsibility of society — all of us regarded collectively — to alter the distribution of goods and evils that arises from the jumble of lotteries that constitutes human life as we know it … Distributive justice stipulates that the lucky should transfer some or all of their gains due to luck to the unlucky." 61 Rawls Theory of Justice 83, 302; Rawls Political Liberalism 5-6; Rawls Justice as Fairness 242-243. Rawls acknowledges that all citizens do not start with the same socio-economic privileges and allocating benefits equally may not be fair to those least advantaged. Accordingly, the difference principle as advocated by Rawls will ensure equity by first satisfying the needs of the least advantaged in cases where strict equality would result in unfairness to the least well-off. This principle permits diverging from strict equality if the inequalities would make the least advantaged in society materially better off than they would have been under strict equality. The utilitarian objection to the difference principle is that it does not maximise utility. The libertarian objection is that it infringes liberty, property rights and/or self-ownership as it may require redistribution to benefit the poor, which libertarians view as the immoral taking of just holdings.
3.1 The utilitarian perspective of distributive justice
The origins of utilitarianism can be traced to Jeremy Bentham, an English legal reformer.
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62 Carter Philosophical Foundations of Property Rights 51 cites Bentham as the founder of utilitarianism. 63 Quoted in Andre and Velasquez 1989 https://www.scu.edu/mcae/publications/ iie/v2n1/calculating.html.
which produces the greatest amount of utility (or happiness) for the greatest number of people.
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64 Bilchitz 2008 ESR Review 10.
Utilitarians
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65 See Bentham Introduction to the Principles of Morals; Mill Utilitarianism; Sidgwick Methods of Ethics; Singer Expanding Circle. 66 Hare "Justice and Equality" 185-199. 67 Sidgwick Methods of Ethics 411. 68 Rawls Theory of Justice 233 conceived of the common good as entailing conditions and objectives that are to everyone's advantage. 69 Hooft 1987 Archives for Philosophy of Law and Social Philosophy 31 observes that the utilitarian philosophy is concerned with achieving the greatest happiness for the greatest number. 70 Carter Philosophical Foundations of Property Rights 51. 71 Andre and Velasquez 1989 https://www.scu.edu/mcae/publications/iie/v2n1/ calculating.html. 72 Du Plessis 2013 Stell LR 363.
Utilitarianism significantly influences the manner in which benefits and resources are currently distributed in society.
73
73 Taylor "Social Justice" 18. 74 Andre and Velasquez 1989 https://www.scu.edu/mcae/publications/iie/v2n1/ calculating.html.
Rights v The Republic of Kenya,
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75 African Commission of Human and Peoples' Rights v The Republic of Kenya App No 006/2012 (26 May 2017) (the Ogiek case) para 150. 76 Chikutu v Minister of Lands HH 02/2022 (2022) para 12.
The utilitarian perspective of distributive justice has therefore rightly been subjected to criticism. Rawls
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77 Rawls Theory of Justice 27, 177. 78 Sen 1999 American Economic Review 351-352, 362. 79 Taylor "Social Justice" 18. 80 Hooft 1987 Archives for Philosophy of Law and Social Philosophy 31 asserts that, for utilitarians, justice is achieved by weighing the relative benefits and harms and determining that which maximises the greatest good for the greatest number of people.
by the long-term benefits to be enjoyed by the majority of citizens through the national economic growth that will occur if the mineral revenue is used prudently. Therefore, when the matter is considered from the utilitarian perspective, no injustice arises from entering the lands inhabited by mine-host communities to extract minerals, even if it harms those communities, as long as this maximises the happiness of the greater number of citizens.
Ideally, mine-host communities should be put in a better than or equal position with other citizens and mining companies when it comes to the distribution of costs and benefits, since they bear the greater brunt of the inconveniences of mineral extraction on the lands they inhabit. In the same vein, the common good
81
81 See Rawls Theory of Justice 233, who considers the common good as those conditions and objectives that are to everyone's advantage. 82 See Bilchitz 2008 ESR Review 10. 83 Rawls first published his book entitled A Theory of Justice in 1971. A revised edition was published in 1999. Rawls' notion of distributive justice is organised in accordance with two principles. Principle 1 states that each person has an equal claim to a fully adequate scheme of basic rights and liberties, compatible with a like scheme for all (the equal basic liberties principle). Principle 2 states that social and economic inequalities are to satisfy two conditions, namely; (a) they are to be attached to positions and offices open to all under fair equality of opportunity (the fair equality of opportunity principle), and (b) they are to be to the greatest benefit to the least advantaged (the difference principle).
3.2 The egalitarian perspective of distributive justice
The egalitarian school of thought disputes that a society with social and economic inequalities can be just.
84
84 Van Soest 1994 Social Work 714. 85 Dworkin Sovereign Virtue. 86 Sen Development as Freedom; Sen Idea of Justice.
Rawls
87
87 Rawls Theory of Justice. 88 Aristotle also considered the question of just distribution. Okharedia 2005 Phronimon 6 explains that Aristotle's principle of justice entails equality of treatment. With a view to attaining distributive justice members of a society are therefore entitled to equitable distribution inter alia of rights and goods. The distribution takes into account the distinct conditions or inequalities of the members. Equals are treated equally by awarding them equal shares. Unequals are treated equally by awarding them unequal shares that are in their favour. 89 Liebenberg 2015 SALJ 413. 90 Dworkin Sovereign Virtue 1. See Chaskalson 2003 ICON 600, 608 who explains that the notion of equal concern is foregrounded in ss 1, 7, 9, 10, 36(1), 39(1) of the Constitution of South Africa through the guarantee of equality and the values of an open and democratic society based on human dignity, equality, respect and freedom. Albertyn 2018 SAJHR 458 states that the notion of equal concern and respect also speaks to "fair or reasonable process, and to accountability by government and participation by citizens" when it comes to achieving socio-economic rights. 91 Dworkin Sovereign Virtue 1. In the context of mineral extraction, failure to consult host communities can be interpreted by them to mean that they are not deserving of equal concern and respect. South African courts have drawn on theories of social justice such as Dworkin's concept of justice and equality as bases for approaching the question of addressing the injustices of the past wrought by apartheid. See the cases of President of the Republic of South Africa v Hugo 1997 4 SA 197 (CC) para 41; Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2005 1 SA 217 (CC) paras 10, 11 and 19; Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC) para 44.
In Dworkin's view, the appropriate measure of social justice is the equal distribution of resources.
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92 Dworkin 1981 Philosophy and Public Affairs 283-345 argues that equality of resources is the distributive expression of the "equal moral worth of persons". 93 Dworkin Freedom's Law 25. 94 Dworkin Sovereign Virtue 323-324.
who should decide for themselves how they want to live their lives and how best to use their resources to attain that kind of life.
95
95 Liebenberg 2015 SALJ 421 adds that equal concern requires "sensitivity to distinct circumstances and needs of groups in their particular social and historical context".
The principle of equal concern, as explained by Dworkin, is sensitive to the plight of mine-host communities, that often endure extreme poverty despite the rich mineral resources being exploited by outsiders. Following the work of Dworkin an egalitarian approach would therefore prescribe that government, through legislative instruments and policy measures, should be concerned with the plight of mine-host communities just as much as it is concerned about national economic growth or the well-being of the generality of its citizens. The government may therefore have to allocate more resources to mine-host communities to compensate them for their losses or may have to offer them something to counterbalance their vulnerability to the socio-economic and environmental impacts of mineral extraction.
According to Rawls' principles of justice, a distribution will be just if (i) it accords equal liberty rights to everyone,
96
96 Rawls Justice as Fairness 42-43. This is an equal liberty principle. See s 56(1)(2) of the Constitution of Zimbabwe and s 9(1)(2) of the Constitution of South Africa. 97 Dworkin "Hypothetical Contracts and Rights" 145-157. See s 56(1)(2) of the Constitution of Zimbabwe and s 9(1)(2) of the Constitution of South Africa. 98 Rawls Justice as Fairness 42-43. See s 56(1)(2) of the Constitution of Zimbabwe and s 9(1)(2) of the Constitution of South Africa. 99 Rawls Justice as Fairness 42-43. 100 Van Soest 1994 Social Work 714. 101 Dworkin "Hypothetical Contracts and Rights" 145-157. 102 Rawls Theory of Justice 87-88. Rawls developed his philosophy of justice based on what he called "the 'original position' when society has not yet come into existence and the (future) place of peoples in this position is hidden from them by a 'veil of ignorance.' The person in the original position decides what is just from a veil of ignorance of their place in society, their class position or social status nor do they know their fortune in the distribution of natural assets and liabilities. People in this position maximise benefits for the least well-off since they are ignorant of their
position. Ignorance of one's own status leads to principles which are fair to all and especially the weak".
This approach ensures that all people have equal access to basic liberties and benefits. Rawls therefore argues for a society where members share the benefits and burdens of achieving their common well-being and enjoy principles that guide members of society to act in a fair and equitable manner. Naturally, this reasoning may well offer favourable outcomes for mine-host communities, who are often the least advantaged in the context of mineral extraction on their lands.
Rawls has been criticised for overstressing distribution as the overarching principle of justice.
103
103 Schlosberg 2004 Environmental Politics 517; Young Justice and the Politics of Difference 1; Miller Principles of Social Justice 1, 232. 104 Sen Development as Freedom 74-75; Sen Idea of Justice 231-235, 295-297. Notably, Sen does not argue that the central focus of justice should be equalising capabilities, but rather that equality of capabilities should be emphasised. Sen argues against a "unifocal view of equality" and argues in favour of multi-dimensions in which equality of capabilities is included. Interestingly, in the case of the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v The Republic of Kenya ACHPR Comm No 276/2003 (2010) para 283, the African Commission on Human and Peoples' Rights emphasised that development should improve the capabilities of the Endorois peoples rather than diminish their existing capabilities.
3.3 The libertarian perspective of distributive justice
Dissatisfied with both the utilitarian and the egalitarian concepts of distributive justice, Nozick
105
105 Nozick Anarchy, State and Utopia. 106 Locke Second Treatise of Government 33. 107 Nozick Anarchy, State and Utopia 213-229; Schwartz 1992 Social Theory and Practice 260, 276. 108 Nnajiofor and Ifeakor 2016 Ogirisi 176. 109 Schwartz 1992 Social Theory and Practice 261.
In the context of mineral extraction, a libertarian approach would support the inequality of the burdens and benefits between mining companies and mine-host communities if the communities let go of their lands and the minerals thereon through free, prior and informed consent (FPIC). The mine-host communities would not be considered to have suffered any harm if they knowingly and voluntarily handed over their right to natural resources and wealth to mining corporations. To justify his approach, Nozick organises his theory into two ideas, which he refers to as justice in acquisition and justice in transfer.
110
110 Nozick Anarchy, State and Utopia 150-151. Nozick puts forward the idea of the rectification of injustice to remedy injustices arising from the acquisition of possessions and this idea will be discussed in detail below under the rubric of remedial justice.
3.3.1 The notion of justice in acquisition
The idea of justice in acquisition is based on an initial acquisition of holdings, namely, resources or wealth, and focusses on how people obtain them.
111
111 Nozick Anarchy, State and Utopia 150-151. 112 Nozick Anarchy, State and Utopia 151. 113 Nozick Anarchy, State and Utopia 175. 114 Schwartz 1992 Social Theory and Practice 270; Nozick Anarchy, State and Utopia 178 argues that the first to appropriate previously unowned resources are justified in having exclusive ownership if in their appropriation, as indicated by Locke, they leave "enough, and as good … in common for others". 115 See George Progress and Poverty 328, 338. 116 Locke Second Treatise of Government 17, 27.
Whatsoever then he removes out of the state that nature have provided, and left in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common
state of nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.
The extraction of minerals is an act of mixing one's labour, that is, capital and operating expenditure, with the mineral deposit, and if only this part of Locke's statement is applied to the context of mineral extraction, mining companies would have exclusive entitlement to the benefits of mineral extraction. Mine-host communities would have no claim to the minerals by the mere fact of having historically inhabited the land bearing minerals, since they would not have mixed their labour with the minerals. However, Locke also suggested that "enough and as good for others" must remain for justice to exist.
117
117 Locke Second Treatise of Government 17, 27. 118 Nozick Anarchy, State and Utopia 175, 178. 119 Nozick Anarchy, State and Utopia 175.
The notion of justice in acquisition has been criticised by Palmer,
120
120 Palmer Looking at Philosophy 358. 121 Palmer Looking at Philosophy 358. 122 Nozick Anarchy, State and Utopia 152. 123 Nozick Anarchy, State and Utopia 152.
3.3.2 The notion of justice in transfer
The idea of justice in transfer focusses on the way a person can acquire holdings from another. Possessions that are justly held, that is, without force, theft or fraud, among other ills, can be freely transferred.
124
124 Locke Second Treatise on Government 46. 125 Locke Second Treatise on Government 46.
Nozick interprets Locke's argument to mean that, if the arrangement, that is, the transfer of resources and wealth, was voluntary and not forced, the transfer is just.
126
126 Locke Second Treatise on Government 46. 127 Schwartz 1992 Social Theory and Practice 262 holds that it is a grave concern that libertarianism "licenses some people suffering appalling misery and degradation for the benefit of others or at least while others thrive" as long as the transfer was voluntary by the person with a claim to the resources. 128 Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, ACHPR Com No 155/96 (2001); Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v The Republic of Kenya ACHPR Comm No 276/2003 (2010) and African Commission of Human and Peoples' Rights v The Republic of Kenya App No 006/2012 (26 May 2017). 129 Human Rights Watch 2016 https://www.hrw.org/report/2016/09/27/they-destroyed-everything/mining-and-human-rights-malawi.
The process in which justice is attained is also important when it comes to the notion of social justice. Unjust processes violate social justice, while just processes aid the attainment of social justice. This thinking is encapsulated in the notion of procedural justice discussed below as an element of social justice.
4 Procedural justice
According to Aristotle procedural justice entails a "status wherein individuals have an equal share in ruling and being ruled".
130
130 Heyman 1992 Iowa L Rev 851. 131 Dworkin Taking Rights Seriously 273. 132 Kuehn 2000 Env't L Rep 10688. 133 Tyler and Mentovich Mechanisms of Legal Effect 2 especially points to "the justice of procedures, whether they are fair or unfair, ethical or unethical, and otherwise accord with people's standards of fair processes for social interaction and decision-making".
Scholars
134
134 Solum 2004 S Cal L Rev 228; Rawls Theory of Justice 73-75; Kuehn 2000 Env't L Rep 10692 sought to determine whether a "fair process can negate a claim that a disproportionate outcome is unjust". Hart Concept of Law 167 argues that a disparate distribution of benefits may be considered just if impartial attention was given to competing claims to the benefits. Greenberg 1993 4 Risk: Health Safety and Environment 236 contends that, if appropriate criteria are applied to every area, then the results of the sitting decision are fair even if they disproportionately burden some groups and benefit others. 135 Rawls Theory of Justice 73-75. 136 Rawls Theory of Justice 73-75.
According to Rawls,
137
137 Rawls Theory of Justice 73-75. Rawls explains that, where perfect procedural justice reigns, "there is an independent criterion of what is a fair division, a criterion defined separately from and prior to the procedure which is to be followed. And … it is possible to devise a procedure that is sure to give that desired outcome". In this case
"equal shares for each person" is the independent criterion of a fair division. A rule that says the "slicer picks last" is the procedure that produces that outcome.
outcome of the procedure, and (ii) a procedure that guarantees achieving that fair outcome. A procedure is perfect when people know that which is just and if they can craft a procedure that guarantees the attainment of that result.
138
138 Robinson and Reeser Ethical Decision-Making 9.
Although in the case of imperfect procedural justice an independent criterion for fairness of outcomes exists, Rawls asserts that no procedure guarantees a fair result.
139
139 Sadurski 2006 OJLS 397-399. 140 Robinson and Reeser Ethical Decision-Making 9. 141 Department of Mineral Resources 2009 https://www.gov.za/sites/default/files/gcis_ document/201409/miningcharterimpact.pdf 11. 142 Department of Mineral Resources 2009 https://www.gov.za/sites/default/files/gcis_ document/201409/miningcharterimpact.pdf 11. 143 See Portfolio Committee on Mines and Energy 2013 https://veritaszim.net/node/1633. Also see Portfolio Committee on Mines and Energy 2018 https://parlzim.gov.zw/download/second-report-on-mines-energy-on-the-diamond-sector-in-zimbabwe-2009-201; Portfolio Committee on Mines and Mining Development 2022 https://www.veritaszim.net/node/5665.
Pure procedural justice entails situations where there is no criterion for that which constitutes a just outcome other than the procedure itself.
144
144 Rawls Theory of Justice 86.
properly followed, makes it likely that the outcome will be correct or fair.
145
145 Rawls Theory of Justice 86. 146 In Allpay Consolidated Investment Holdings (Pty) Ltd v Chief Executive Officer, South African Social Security Agency 2014 1 SA 604 (CC) para 24 the court held that the determination of the procedural fairness of an administrative decision is independent of the outcome of the decision. 147 Tyler 2001 Issues of Democracy 16-19. Tyler 2001 Issues of Democracy 20 discusses participation in terms of three elements, namely (i) voice/neutrality, which entails fairness of decision making or opportunities for input before decisions are made, (ii) validation, which relates to whether their views are listened to and considered in decision making and whether decisions are made following understandable and transparent rules, while (iii) respect relates to fairness of treatment during the decision-making process. Gibson 2008 Journal of Politics 701 concludes that, where people view the process that was used as fair, they are likely to accept unfavourable outcomes or unequal shares of the resources they receive compared to what others receive. 148 Mashaw Due Process 162-163 explains the importance of participation independent of outcomes and states that "it is common-place for us to describe process affronts as somehow related to disrespect for our individuality, to our not being taken seriously as persons".
Scholars
149
149 Solum 2004 S Cal L Rev 191; Fraser 2000 New Left Review 107-120; Liebenberg 2015 SALJ 427-428; Fraser "Social Justice" 30. 150 Solum 2004 S Cal L Rev 191. 151 Fraser 2000 New Left Review 107, 109; Fraser "Social Justice" 7, 30, 36.
political and socio-economic decision-making. This is because all people have a right to participate as equals in society,
152
152 Liebenberg 2015 SALJ 427-428. 153 Fraser "Social Justice" 45. 154 Fraser "Social Justice" 45. 155 Fraser "Social Justice" 36.
5 Remedial justice
In the context of mineral extraction, remedial justice would entail the right of mine-host communities to redress for (i) lands and minerals lost to mining companies without consultation and their consent, and (ii) damage, including to health, suffered due to the adverse impacts of mineral extraction. In these circumstances the theory of remedial justice, which seeks to ensure redress for wrongs suffered through the provision of appropriate remedies, becomes invaluable.
156
156 Maguire and Lewis 2012 Macquarie Journal of International and Comparative Environmental Law 24. 157 Buyse 2008 Heidelberg Journal of International Law 129-153. 158 It is also noticeable that some remedies are referred to interchangeably in extant literature, as in the case of rectificatory justice and corrective justice. The terms compensatory, restitutory and reparatory justice are also used interchangeably.
example, the provision of compensation may have to be accompanied by an apology
159
159 In African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) para 129 the African Court on Human and Peoples' Rights considered the issue of an apology as a remedy. However, the court did not order an apology by the Kenyan government as it determined that the other measures ordered by the court such as the restitution of lands and the recognition of the Ogiek as an indigenous people were sufficient and effective. 160 See the case of the African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) para 150 in which the African Court on Human and Peoples' Rights ordered the Kenyan government to adopt legislative, administrative and other measures to ensure the non-repetition of the violations of the rights of the Ogiek. The measures (paras 117, 151-155) included (i) compensation, (ii) restitution of the lands, (iii) recognition of the Ogiek as an indigenous people, (iv) the establishment of frameworks for dialogue and consultation with the Ogiek on all matters that affect them, (v) dialogue and consultation on whether those entities awarded commercial operations on Ogiek land could continue their operations under lease from the Ogiek or on the basis of a royalty and benefit sharing with the Ogiek, and (vi) establishment of a Development Fund for the Ogiek.
Rectificatory justice stems from the work of Aristotle, who considers the role of judges to be that of making parties equal by imposing a penalty on the wrongdoers, especially by taking away from the wrongdoers that which they gained or secured through the wrongful action.
161
161 Maguire and Lewis 2012 Macquarie Journal of International and Comparative Environmental Law 25. 162 Swat 2013 SAPL 75. 163 Maguire and Lewis 2012 Macquarie Journal of International and Comparative Environmental Law 25. 164 Maguire and Lewis 2012 Macquarie Journal of International and Comparative Environmental Law 25. Adler 2007 U Pa L Rev 1859 refers to this form of justice as corrective and states that it "imposes a duty on the agent who has acted wrongfully, and thereby caused loss to some individual, to repair the loss".
Based on Aristotle's work, Nozick argues that some past injustices are so great that it is necessary to rectify them.
165
165 Nozick Anarchy, State and Utopia 32. 166 Nozick Anarchy, State and Utopia 27, 152-153.
injustice prescribes that property acquired through violation of the rights of others can remain with the current holder only if the prejudiced people have been compensated for their loss.
167
167 Nozick Anarchy, State and Utopia 27, 152-153. 168 Nickel 1975 Colum L Rev quoted in Swat 2013 SAPL 78. 169 The Supreme Court of South Africa explained in the case of Haakdoornbult Boerdery CC v Mphela 2007 5 SA 596 (SCA) para 48 that the "purpose of giving fair compensation is to put the dispossessed, insofar as money can do it, in the same position as if the land had not been taken".
The third form of justice, remedial justice, entails more than just compensation. If compensation alone would suffice, this would mean that once compensation has been paid an otherwise unjust action would be deemed acceptable.
170
170 Kuehn 2000 Env't L Rep 10694.
that is no longer possible, the communities must be compensated
171
171 The case of African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) (Ogiek case) paras 42-44, 59, 66 explains that compensation should be commensurate to the prejudice suffered and the court is to exercise its discretion in equity to determine what amounts to fair compensation in cases where the violations occurred over a long time as these are difficult to quantify. In the Ogiek case the African Court of Human and Peoples' Rights agrees with the Permanent Court of International Justice case of The Factory at Chorzow (Germany v Poland) (Merits, Judgment of 13 September 1928) [1928] PCIJ Rep Series A, No 17, 47, which explains that the State responsible for the violation needs to make an effort to "wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed". Regarding whom is to be compensated, the African Court explains in paras 42-43 of the Ogiek case that damages can be claimed by the victims of the violation, their immediate heirs and other close relatives and "subject to certain conditions, groups and communities may be entitled to reparations meant to address collective harm." 172 See Art 2 of the International Covenant on Civil and Political Rights (1966); Art 7 of the African Charter on Human and Peoples' Rights (1981); African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) para 117.
Meaningful engagement has been deployed as a remedy at both the national court level using domestic law
173
173 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2005 1 SA 217 (CC). 174 African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) para 117. 175 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2005 1 SA 217 (CC). 176 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2005 1 SA 217 (CC) para 14. The court in Doctors for Life International v Speaker of the National Assembly 2006 6 SA 416 (CC) affirmed that involvement is a powerful tool that brings participatory processes to those previously excluded.
plight of the affected people could be alleviated by upgrading the buildings to improve the living conditions on the properties. In the final judgement the court linked meaningful engagement to the right to access to adequate housing with the requirement for the involvement of communities in the affairs of local government.
177
177 Section 151(1)(e) of the Constitution of South Africa.
The case of Baleni v Minister of Mineral Resources
178
178 Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP). 179 Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) para 83. 180 Baleni v Minister of Mineral Resources 2019 2 SA 453 (GP) para 83. 181 Sustaining the Wild Coast v Minister of Mineral Resources 2022 1 All SA 796 (ECG) para 95. 182 Sustaining the Wild Coast v Minister of Mineral Resources 2022 1 All SA 796 (ECG) para 95.
Meaningful engagement was also deployed as a remedy in the case of the African Commission on Human and Peoples' Rights v Republic of Kenya (the Ogiek case)
183
183 African Commission on Human and Peoples' Rights v Republic of Kenya App No 006/2012 (Judgment (Reparations) of 23 June 2022) para 117.
disputes centred on mine-host community involvement in and benefit accrual from mineral extraction on their lands.
6 Key findings and concluding remarks
The article has identified three theories of social justice: distributive, procedural and remedial, under which the subject of the involvement and accrual of socio-economic benefits by mine-host communities from mineral extraction on their lands could be discussed and explained. In addition, the article has examined the content of these three theories and established what they entail in the context of mine-host community involvement and benefit accrual from mineral extraction in Zimbabwe. These theories present foundations upon which existing and new policy and legislative frameworks could be evaluated with a view to the reform of the existing policy and legislation.
In the third section, the article examined the question regarding the concept of distributive justice that would ensure the ideal distribution of resources among host communities, mining companies and other citizens. It was established that the distributive justice strand embraces utilitarian, egalitarian and libertarian perspectives. The utilitarian perspective of distributive justice advances the greatest happiness for the greatest number of citizens even if it means that a few must be sacrificed. It was demonstrated that this perspective would legitimise the exploitation of mineral resources by mining companies and the government of Zimbabwe for the benefit of the whole nation even if such exploitation negated the well-being of the mine-host communities. For that reason, utilitarianism was found to be unsatisfactory in relation to the welfare and well-being of mine-host communities in Zimbabwe, as it would not support their involvement and benefit accrual from mineral extraction on their lands. In terms of the libertarian perspective of distributive justice, the article showed that inequalities of resources or wealth are permitted if these are not brought about by prejudicing others and where resources have been acquired by producing something through one's labour or using resources not belonging to anyone else. In this way, libertarianism would legitimise the exploitation of minerals by mining companies on lands inhabited by mine-host communities in Zimbabwe without the communities being involved or accruing benefits if the minerals are adjudged to belong to someone else who is not part of the communities, such as the state. This article therefore confirmed that libertarianism does not support involvement and benefit accrual by mine-host communities from mineral extraction on the lands they inhabit.
The egalitarian perspective of distributive justice prescribes that the government must show equal concern for all its citizens without sacrificing
some for the benefit of others. All citizens are to have an equal distribution of benefits, and inequality is permissible only where it is entertained for the benefit of the least advantaged. Consequently, the egalitarian perspective legitimises the re-distribution of wealth and would ensure that mine-host communities in Zimbabwe are involved and accrue maximal benefits from mineral extraction on their lands, since they would then be viewed as the ones most affected by the mining operations. Significantly, in the context of mineral extraction in Zimbabwe, a just distribution of the costs and rewards of mineral extraction as based on the egalitarian perspective is one in which the mine-host communities would not bear a disproportionate share of the burdens. Instead, they would be accorded socio-economic benefits commensurate with the burdens that they have to bear due to mineral extraction on their lands. The costs and benefits of mineral extraction on their lands would be equalised in this way.
The article also discussed the contribution of the second form of justice, namely procedural justice, to the understanding of the question of mineral extraction on lands inhabited by mine-host communities. It was established that an approach based on pure procedural justice would prescribe effective involvement and participation by Zimbabweans in decision-making on matters affecting them. This would advance the consultation, involvement and participation of mine-host communities in matters centred on mineral extraction on the lands they inhabit.
Lastly, the article assessed the third form of justice, remedial justice, and explained what it brings to mine-host communities in Zimbabwe when faced with mineral extraction on the lands they inhabit. The article established that, where the rights of mine-host communities are violated and their lands taken and exploited without their involvement and accrual of benefits, remedial justice is necessary. Not only does it prescribe the restitution of the lands and resources but it also holds that compensation should be paid for damages caused to mine-host communities.
The goal of this article was to examine and explain theoretical perspectives that may be viewed as underpinning the involvement in and accrual of socio-economic benefits by Zimbabwean mine-host communities from mineral extraction. While finding the principle that determines a just or equitable allocation of resources is difficult, the egalitarian idea of justice connects with the quest for mine-host community involvement in and benefit accrual from mineral extraction on their lands. Such principles should be coupled with just and fair procedures for the consultation and involvement of the affected communities and appropriate remedies to correct unfair distribution.
This article is expected to spur further research centred on mine-host community involvement in and benefit accrual from mineral extraction in Zimbabwe.
This exposition of the concept of social justice and its associated theories extends beyond rectifying the challenges faced by mine-host communities in Zimbabwe. It holds the potential to be applied to other sectors such as industry, agriculture and public infrastructure projects in the water, energy and transport sectors, offering a pathway to enhance social justice in areas historically neglected and disregarded by the colonial powers. Such an application could address long-standing inequities and foster the application of a more equitable framework across various economic sectors.
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Government of the Republic of South Africa v Grootboom 2001 1 SA 46 (CC)
Haakdoornbult Boerdery CC v Mphela 2007 5 SA 596 (SCA)
Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v City of Johannesburg 2005 1 SA 217 (CC)
President of the Republic of South Africa v Hugo 1997 4 SA 197 (CC)
Soobramoney v Minister of Health, Kwazulu-Natal 1997 12 BCLR 1691 (CC)
Sustaining the Wild Coast v Minister of Mineral Resources 2022 1 All SA 796 (ECG)
Zimbabwe
Chikutu v Minister of Lands HH 02/2022 (2022)
Malvern Mudiwa v Mbada Mining Private Limited HC 6334/09 (2009)
Legislation
South Africa
Constitution of the Republic of South Africa, 1996
Marine Living Resources Act 18 of 1998
Mineral and Petroleum Resources Development Act 28 of 2002
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Zimbabwe
Constitution of Zimbabwe Amendment (No 20) Act, 2013
Finance Act 1 of 2018
Finance Act 2 of 2020
Mines and Minerals Act 38 of 1961
International instruments
African Charter on Human and Peoples' Rights (1981)
International Covenant on Civil and Political Rights (1966)
Internet sources
ACHPR 2005 https://iwgia.org/images/publications/African_Commission_ book.pdf
African Commission on Human and Peoples' Rights 2005 Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities https://iwgia.org/images/publications/African_Commission_book.pdf accessed 26 January 2024
Andre and Velasquez 1989 https://www.scu.edu/mcae/publications/iie/ v2n1/calculating.html
Andre C and Velasquez M 1989 Calculating the Consequences: The Utilitarian Approach to Ethics https://www.scu.edu/mcae/publications/iie/ v2n1/calculating.html accessed 26 January 2024
Centre for Natural Resource Governance 2021 http://www.minesandcommunities.org/article.php?a=14501
Centre for Natural Resource Governance 2021 Zimbabwe: Dinde Community Fights to Stop Coal Mining Project http://www.minesand communities.org/article.php?a=14501 accessed 26 January 2024
Chamber of Mines of Zimbabwe 2022 https://chamines.co.zw/ assets/uploads/2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf
Chamber of Mines of Zimbabwe 2022 Annual Report 2022 https://chamines.co.zw/assets/uploads/2023/application/3bb36313-f1fc-470d-81fe-dd628d9a2694.pdf accessed 26 January 2024
Chimonyo, Mangure and Scott 2012 https://www.readkong.com/page/the-social-economic-and-environmental-implications-of-1059367
Chimonyo GR, Mangure S and Scott PD 2012 The Social, Economic and Environmental Implications of Diamond Mining in Chiadzwa https://www.readkong.com/page/the-social-economic-and-environmental-implications-of-1059367 accessed 26 January 2024
Chipkin and Meny-Gibert 2013 https://kipdf.com/queue/understanding-the-social-justice-sector-in-south-africa
Chipkin I and Meny-Gibert S 2013 Understanding the Social Justice Sector in South Africa https://kipdf.com/queue/understanding-the-social-justice-sector-in-south-africa accessed 26 January 2024
Department of Mineral Resources 2009 https://www.gov.za/sites/default/
files/gcis_document/201409/miningcharterimpact.pdf
Department of Mineral Resources 2009 Mining Charter Impact Assessment Report https://www.gov.za/sites/default/files/gcis_document/201409/miningcharterimpact.pdf accessed 26 January 2024
Human Rights Watch 2016 https://www.hrw.org/report/2016/09/27/they-destroyed-everything/mining-and-human-rights-malawi
Human Rights Watch 2016 "They Destroyed Everything": Mining and Human Rights in Malawi https://www.hrw.org/report/2016/09/27/they-destroyed-everything/mining-and-human-rights-malawi accessed 26 January 2024
Minister of Finance and Economic Development 2016 https://www.veritaszim.net/sites/veritas_d/files/2016%20%20Budget%20Statement.pdf
Minister of Finance and Economic Development 2016 The 2016 National Budget Statement https://www.veritaszim.net/sites/veritas_d/files/2016% 20%20Budget%20Statement.pdf accessed 26 January 2024
Ministry of Finance, Economic Development and Investment Promotion 2023 https://parlzim.gov.zw/download/2024-budget-statement/
Ministry of Finance, Economic Development and Investment Promotion 2023 2024 Budget Statement https://parlzim.gov.zw/download/2024-budget-statement/ accessed 26 January 2024
Portfolio Committee on Mines and Energy 2013 https://veritaszim.net/node/1633
Portfolio Committee on Mines and Energy 2013 First Report of the Portfolio Committee on Mines and Energy on Diamond Mining (with Special Reference to Marange Diamond Fields 2009-2013) https://veritaszim.net/node/1633 accessed 26 January 2024
Portfolio Committee on Mines and Energy 2018 https://parlzim.gov.zw/download/second-report-on-mines-energy-on-the-diamond-sector-in-zimbabwe-2009-201
Portfolio Committee on Mines and Energy 2018 Second Report of the Portfolio Committee on Mines and Energy on the Diamond Sector in Zimbabwe for the Period 2009-2016 https://parlzim.gov.zw/download/ second-report-on-mines-energy-on-the-diamond-sector-in-zimbabwe-2009-2016/ accessed 26 January 2024
Portfolio Committee on Mines and Mining Development 2022 https://www.veritaszim.net/node/5665
Portfolio Committee on Mines and Mining Development 2022 Report of the Portfolio Committee on Mines and Mining Development on a Self-Assessment of the Diamond Sector in Zimbabwe Fourth Session, Ninth Parliament April 2022 https://www.veritaszim.net/node/5665 accessed 26 January 2024
Republic of Zimbabwe 2020 https://www.veritaszim.net/sites/veritas_d/
files/NDS.pdf
Republic of Zimbabwe 2020 National Development Strategy 1 (2021-2025) https://www.veritaszim.net/sites/veritas_d/files/NDS.pdf accessed 26 January 2024
Shookner 2002 https://www.allianceon.org/sites/default/files/documents/ Workbook%20for%20looking%20at%20Social_and_Economic_Inclusion_Lens%202002.pdf
Shookner M 2002 An Inclusion Lens: Workbook for Looking at Social and Economic Exclusion and Inclusion https://www.allianceon.org/sites/default/ files/documents/Workbook%20for%20looking%20at%20Social_and_Economic_Inclusion_Lens%202002.pdf accessed 26 January 2024
US Geological Survey 2022 https://pubs.usgs.gov/periodicals/mcs2022/ mcs2022.pdf
United States Geological Survey 2022 Mineral Commodity Summaries https://pubs.usgs.gov/periodicals/mcs2022/mcs2022.pdf accessed 26 January 2024
World Platinum Investment Council 2023 http://www.platinuminvestment.com/investment-research/articles
World Platinum Investment Council 2023 Platinum Supply http://www.platinuminvestment.com/investment-research/articles accessed 26 January 2024
List of Abbreviations
ACHPR |
African Commission on Human and |
---|---|
Colum L Rev |
Columbia Law Review |
Duke LJ |
Duke Law Journal |
Env't L Rep |
Environmental Law Reporter |
ESR Review |
Economic and Social Rights Review |
ICON |
International Journal of Constitutional Law |
Iowa L Rev |
Iowa Law Review |
LEAD |
Law, Environment and Development Journal |
Notre Dame L Rev |
Notre Dame Law Review |
OJLS |
Oxford Journal of Legal Studies |
S Cal L Rev |
Southern California Law Review |
SAJHR |
South African Journal on Human Rights |
SALJ |
South African Law Journal |
SAPL |
Southern African Public Law |
Stell LR |
Stellenbosch Law Review |
U Pa L Rev |
University of Pennsylvania Law Review |
UN |
United Nations |