Mineral rights are dead! Long live mineral rights!

Whilst being mindful of the eventual extinction of the legal notion of mineral rights in South Africa upon expiry of the transitional measures in terms of schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 on 30 April 2009, the classification of mineral rights by the supreme court of appeal in the Anglo decision is to be welcomed, even though it is somewhat ironic at this stage. (As to the extinction of the notion of mineral rights, see Badenhorst "Mineral rights : 'year zero cometh?'" 2001 Obiter 119; "Exodus of 'mineral rights' from South African mineral law" 2004 Journal of Energy and Natural Resources Law 218.) It will, however, be shown in this discussion that the decision of the supreme court of appeal will extend beyond the statutory transitional period and will also have an impact on rights to minerals or rights to petroleum as created in terms of the Mineral and Petroleum Resources Development Act (hereafter referred to as the act). For purposes of this discussion, one can simply continue to refer to mineral rights that developed from the common law as "mineral rights", whilst referring to the new rights created in terms of the act as "rights to minerals and petroleum". The present decision only deals with coal as "minerals".

Concepts and principles in unjust enrichment : a comparative study

The Thesis was inspired by a perceived need better to understand the unique description of unjust enrichment by the Australian courts, as a unifying legal concept. It demonstrates that concepts and principles are essential features of the common law because they identify the character and taxonomy of rules. The comparative study, encompassing Australian and English law primarily, and law of other jurisdictions, modern and ancient, elucidates the special characteristics of the concepts and principles of Anglo/Australian unjust enrichment and of concepts and principles generally. A like concept has had a place in the common law since its inception under several characterisations. It bears the mark of ancient Roman jurisprudence, but relates to independent principles. The jurisprudence was formed by special characteristics of its history. It is distinct from modern Roman/Dutch law but the doctrinal overtones of its foundational case law reflect the basis of reasoning which in Continental law, is found in the adopted ancient codes. It is this foundation of reasoning and the firm rejection of a normative general principle that makes Anglo/Australian law different in character and jurisprudence from unjust enrichment in USA and Canada. Stifled for centuries by quasi contract misconceptions, the law of unjust enrichment entered the modern law in the 20th C through the seminal judgements of Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd, and related cases and through the strong judicial and juristic following they inspired. That “…any civilised system of law is bound to provide remedies for … unjust enrichment…” became an imperative across the common law world: it has long held a place in the Roman Dutch jurisdictions of South Africa and Continental Europe. The special character of unjust enrichment in Anglo/Australian law is focussed upon a unique action where-by the law imposes an obligation upon the establishment of a recognised ground. The notion of breach of a primary rule does not arise: the obligation is therefore a primary obligation imposed by law, as distinct from a remedy for a breach. Important consequences flow from the characteristic. The juristic development of unjust enrichment in the common law has long been the sole prerogative of the superior courts. The place of historical features of the jurisprudence has however been subsumed by modern judicial methodology that is slowly assuming a unifying pattern of reasoning from case to case; from one ground to another. This is the special characteristic of the unifying legal concept and English principle of unjust enrichment. The thesis draws widely based conclusions about concepts and principles of unjust enrichment and the actions and obligations they sponsor. It portrays them as the substance of legal reasoning and analyses underlying theory. to this end, it addresses counter juristic and historical arguments. Its central conclusion are that there are sound jurisprudential arguments for actions based upon a unifying legal concept and English principle of unjust enrichment, and that the explanation of the unjust enrichment concept as the foundation of an independent branch of the common law and taxonomy is theoretically sustainable. In this manner concepts and principles of the common law are demonstrated as critical characteristics of the common law at large.

Principles of equity and trusts

This fourth edition of Principles of Equity and Trusts has been comprehensively updated and revised. It retains its original style of presenting principles and remedies relevant to equity and trusts in a straightforward and succinct manner.This new edition includes a discussion of new developments in knowing receipt constructive trusts, resulting trusts, charitable trusts, injunctions, equitable recission and forfeiture. All chapters have been fully revised, with significant new analysis in a range of chapters including those dealing with the relationship between common law and equity, fiduciary obligations and certainty rules for the creation of trusts.New case discussions in this edition include:Stack v Dowden (2007) (the House of Lords considering the presumptive application of resulting trusts in domestic de facto relationships);Trustees of the Property of Cummins (a bankrupt) v Cummins [2006] (the High Court considering the presumptive application of purchase money resulting trusts in a marriage relationship);Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) (the High Court considering the scope and application of knowing receipt constructive trusts);Twinsectra v Yardley [2002] and Barlow Clowes International Ltd (in liq) v Eurotrust International [2006] 1 All ER 477 ( the House of Lords considering the dishonesty test relevant to knowing assistance constructive trusts) and Commissioner of Taxation v Word Investment Ltd [2006] (the Federal Court considering the scope of the charitable purpose test).This new edition remains an ideal book for undergraduate study, covering all aspects of equity and trusts jurisprudence in an accessible, comprehensive and up to date style.

Carbon rights as new property: the benefits of statutory verification

This paper examines the different ways in which carbon rights have been verified as property interests. A carbon right is a new and unique form of land interest that confers upon the holder a right to the incorporeal benefit of carbon sequestration on a piece of forested land. Carbon sequestration refers to the absorption from the atmosphere of carbon dioxide by vegetation and soils and the storage of carbon in vegetation and soils. Innovative legislation has been introduced in each state seeking to separate the incorporeal benefit of carbon sequestration from the natural rights flowing from land ownership. The fragmentation of land ownership in this way is a constituent of broader climate change strategies and is particularly important for an Australian emissions trading scheme where carbon rights will acquire value as tradable offsets. This paper will explore the different legislative responses of each state to the proprietary characterisation of the carbon right as a land interest. It will argue that verifying the carbon right as a new statutory property interest, in line with the approach set out in the Carbon Rights Act 2003 (WA), is preferable to aligning it with preconceived categories of common law servitude. By articulating the  carbon right as a new form of statutory interest, unique in status and form, its sui generis character is more accurately reflected. Further, statutory validation of the carbon right as a new land interest is more efficient as legislative rules are more visible and therefore come to the attention of other market participants more quickly and at a lower cost without the burden and complexity associated with expressing the right through the prism of pre-conceived and non-responsive common law forms.

Manufacturers' product liability in Australia

The thesis, by examining statute and common law, demonstrates that Australian law is deficient in its endeavour to impose liability on manufacturers for defective products, and also with respect to the provision of compensation to consumers/users who suffer loss or injurty therefrom.

Models for reform : the directors’ duty of care in a modern commercial world

The Australian responses to corporate collapses in the modern commercial world have been
implemented at both judicial and legislative levels over a period of decades. South Africa has lagged behind the reform process, only recently reviewing its company laws with a view to legislatively incorporating, inter alia, its directors’ duties. The consequence of such review of the duty of care is found in subsection 76(3)(c) of the Companies Act 71 of 2008. This article critically evaluates the existing South African common law and the new legislative directors’ duty of care in light of the equivalent duties in Australia and the United States. The analysis ultimately aims at determining whether the approach taken in any of these jurisdictions provides useful guidance in regard to reform options for the duty of care. While the Companies Act contains features that are preferable to the Australian Corporations Act 2001, the impact of the Companies Act on crucial features, such as the objectivity of the duty of care, is unclear and will have to await judicial review. It is concluded that while the South African measures at times echo Australian law in a positive manner, the Australian legislative regime is not without legitimate criticism as it can be unnecessarily complicated. Ultimately it is the United States and Australian common law duty of care that provides the best model for legislative reform.

A comparative analysis of directors' duty of care, skill and diligence in South Africa and in Australia

The South African and Australian law regarding directors' duty of care, ski ll and diligence were influenced considerably by English precedent of the late 1800s and early 19005. Originally both jurisdictions adopted a conservative approach towards directors' duty of care, skill and diligence. This resulted in very low standards of care, skill and diligence expected of directors. In Australia, the standards of care and diligence expected of directors changed drastically with the case of Daniels v Anderson, where objective standards were used to determine a breach of directors' duty of care and diligence, and when objective standards of care and diligence were introduced in Australian corporations legislation. In this article it is submitted that if the opportunity arose for a South African court to consider whether a director is in breach of his or her common law duty of care, skill and diligence, the form of fault that will be required will be negligence as judged against the standards of a reasonable person. This means that in actual fact objective standards of care and diligence are expected of directors in South Africa. Although section 76(3) of the South African Companies Act 71 of 2008 does not introduce purely objective standards of care, skill and diligence, the section is defended in this article. It is pointed out that encouraging emerging entrepreneurs to become directors of South African companies provides justification for keeping subjective elements as part of the test to determine whether a director was in breach of his or her statutory duty of care, skill and diligence.

Status of tailings dumps : let D5s go working in the past?

It was decided in the De Beers v Ataqua Mining (Pty) Ltd that ''tailings dumps'' created by mining companies before the Mineral and Petroleum Resources Development Act, 28 of 2002 ("the MPRDA") came into operation are not governed by its provisions because such dumps are not "residue stockpiles" or "residue deposits" for purposes of the MPRDA. Ownership of tailings dumps is determined by the common law principles of accession. Ownership of a movable dump has to be transferred by one of the recognised forms of delivery of movables. Processing of these dumps will, however, still be subject to compliance with South African environmental, health and safety laws in general. It is submitted that mine dumps or tailings dumps created upon the exercise of "old order mining rights" before the commencement of the MPRDA and even after commencement of the MPRDA until eventual termination of the "old order mining rights" are not subject to the extensive, mining, environmental, empowerment provisions of the MPRDA. Termination of "old order mining rights" takes place upon: (i) refusal of an application for conversion of a mining right during (or even after) the period of transition, (ii) conversion into and registration of new order mining rights during (or even after) the period of transition or (iii) termination of unconverted "old order mining rights" on 30 April 2009. To the extent that this decision has made it possible to embark on a shorter and less cumbersome route in the reprocessing and eventual disappearance of most tailings dumps, it is to be welcomed from an economical, environmental, job creation and aesthetic perspective. Proposed amendments to the MPRDA to undo the impact of the De Beers decision should be carefully considered against these mentioned benefits and a possible finding that it may amount to an expropriation without compensation.

Statutory verification of water rights: the 'insuperable' difficulties of propertising water entitlements

The abolition of riparian entitlements in the early stages of colonial Australia and the vesting of these rights in the Crown represented a turning point for the evolution of private water rights. The extinguishment of common law rights connected to vested land interests and the introduction of new, unaligned statutory entitlements provided a new and fundamentally different system for the creation and regulation of private water entitlements. Unlike riparian entitlements, in the absence of express definition, statutory water entitlements may only be verified as property where such a construction is consistent with the nature and scope of the entitlement. In this respect, the statutory framework has disaggregated the propertisation of water rights from land ownership and linked the process to broader statutory interpretation principles. The shift away from institutional property has generated concerns about the interpretive approaches appropriate for the verification of legislative water entitlements. This article examines the existing interpretive approaches and argues that the blurring of the propertisation process with the separate issue of whether any change or modification of such water rights attracts s 51(xxxi) of the Commonwealth Constitution has produced a situation where core property indicia is increasingly overshadowed by legislative defeasibility. In the recent High Court decision of ICM Agriculture Pty Ltd v Commonwealth, the focus of the majority judgements upon the inherent susceptibility of legislative entitlements to variation or extinguishment acted as a catalyst for the non-propertisation of statutory bore water licences in New South Wales. The emphasis the majority judgements gave to legislative defeasibility precluded a full and balanced assessment of other highly relevant property indicia, in particular the expectation interests of the holders. Conflating property and constitutional evaluation in this way is inappropriate in an era where entitlements to natural resource interests are increasingly statute based and the verification process has significant social and economic repercussions. Determining whether a statutory entitlement constitutes property requires a careful balancing of legislative intent, social and environmental context and individual expectation and the vicissitudes of a regulatory context should not eclipse this process.

The legal recognition of same-sex unions in Australia : a constitutional analysis

The Marriage Equality Amendment Bill 2010 (Cth) currently before federal Parliament amends the present legislative definition of marriage to include same-sex unions. This article provides a constitutional analysis of the scope of the marriage power, s 51(xxi) of the Australian Constitution , through examination of the Bill and other existing and proposed legislation. It argues that if the High Court considered "marriage" to be a constitutionalised legal term of art, it could accommodate post-federation development at common law and in statute to the institution of marriage. It also argues that the presumption in favour of constitutionality ought to be at its strongest with federal legislation determining complex and intractable moral issues. The article explores the constitutional vulnerability of current same-sex union legislation and possible future legislation providing for recognition of the functional equivalent of "marriage". In addition, the article considers the constitutional foundation of a national framework to provide official legal recognition of same-sex relationships.

Rejection of the fruit of the poisonous tree doctrine in Australia : a retreat from progressivism

This article canvasses the key Australian exclusionary rules and discretions to exclude evidence under both the common law and its statutory counterparts in the Uniform Evidence Legislation now in effect in the Commonwealth, Victoria, New South Wales, the Australian Capital Territory and Tasmania. In examining these exclusionary rules and discretions, an analysis is made as to whether evidence derived from primary evidence excluded under one or more of these rules should also be excluded under an American style 'fruit of the poisonous tree doctrine' - and why or why not. Finally, the article compares the current Australian approach to this doctrine with the present state of the American doctrine and the recognised exceptions thereto. The article concludes with recommendations for applying the doctrine in both countries, subject to suggested changes in the Jaw that take the realities of political correctness and human frailty into account.

The diversification discount and takeovers : some Australian evidence

Purpose – The purpose of this paper is to examine the existence of a diversification discount in the Australian takeover market. A sample of 446 Australian publicly-listed firms involved in the market for corporate control was observed between 2000 and 2007. The authors examined two pre-announcement and four post-announcement periods, predominantly around the immediate event date, but also examined activity out to one year following the announcement.
Design/methodology/approach – An event study, in this case, is used to examine abnormal returns around the announcement of a merger or acquisition. The timeframe this study intends to focus on is the period from announcement date to a time one year down the track which, although some studies may deem it “long-term”, is still a relatively short-term measure of performance.While many variables in acquisitions have been looked at in depth over the years, such as outcome, nature, payment method and size of deal, one area which has had considerably less attention is the area of specialisation and diversification. That is, do focus increasing (or non-diversification) deals have different return patterns relative to focus decreasing (or diversification) deals?
Findings – The overall findings of this paper are fairly mixed, barring a few exceptions, and there does not appear to be a great deal of variation in return patterns based purely on whether the announced acquisition is non-diversifying or diversifying in nature.
Originality/value – The paper is of particular value in Australia. Most of the research of diversification to date has taken place in the USA. Australia is similar to the USA in that it has a well-developed economy based on common law principles and an active equity market, however, the existence of institutional and regulatory differences suggests that US results may not hold in Australia.

Professional legal education reviews : too many 'what's, too few 'how's

Former colonies of the British Empire, Hong Kong and Australia inherited the common law system and the basic structure of legal education and training from England and Wales and remain the closest siblings in terms of proximity in distance and the high degree of similarity between their respective frameworks for legal education and training. This article first summarizes the major reviews of legal education and training in these three jurisdictions: England and Wales, Australia and Hong Kong over the last four decades and argues that while these reviews are keen on investigating ‘what’ is lacking in the curriculum and ‘what’ needs to be changed to equip graduates for the challenges of the day, they do not seem to have shown the same level of enthusiasm in identifying ‘how’ the intended outcomes prescribed can be achieved. Nevertheless, law schools in these jurisdictions recently began to tap on, and combine with the improved classroom pedagogy, clinical legal education and internship, innovative teaching tools and solutions in an attempt to deliver more enhanced learning experience to students. The article examines the role ascribed to technology in legal education and training with a particular reference to SimPLE, a e-learning platform developed in England and Wales which has been put to use in Australia as well, and the reform initiatives taken, and planned to be taken, by the Department of Professional Legal Education at the University of Hong Kong in its Postgraduate Certificate in Laws programme. This article concludes by pointing out the importance of collaboration among stakeholders including teachers, university administration and the legal profession in effecting a more active role of technology in legal education and training of today.

Thabo Meli revisited : the pernicious effects of results-driven decisions

Despite the hackneyed expression that ‘judges should interpret the law and not make it’, the fact remains that there is some scope within the separation of powers doctrine for the courts to develop the common law incrementally. To this extent, the courts can effectively legislate, but only to this limited extent if they are to respect the separation of powers doctrine. On occasion, however, the courts have usurped the power entrusted to Parliament, and particularly so in instances where a strict application of the existing law would lead to results that offend their personal notions of what is fair and just. When this occurs, the natural consequence is that lawyers, academics and the public in general lose respect for both the judges involved as well as the adversarial system of criminal justice. In order to illustrate this point, attention will focus on the case of Thabo Meli v United Kingdom in which the Privy Council, mistakenly believing that it could not reach its desired outcome through a strict application of the common law rule of temporal coincidence, emasculated the rule beyond recognition in order to convict the accused. Moreover, the discussion to follow will demonstrate that not only was the court wrong in its belief that the case involved the doctrine of temporal coincidence, but the same result would have been achieved had the Council correctly identified the issue as one of legal causation and correctly applied the principles relating thereto.

The Queen v Getachew : rethinking DPP v Morgan

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.