PhD research contributes to SA mineral law

For as long as she can remember, Louie van Schalkwyk has had a strong sense of justice. What she doesn’t recall clearly, however, is the moment this moral compass set her on a course to becoming a student and practitioner of the law.

Van Schalkwyk will summit a career peak this Friday, 12 July when she receives her PhD in Mineral Law at the University of Cape Town (UCT).

“I’ve always thought that when you complete an undergraduate degree in a specific field, you’ve learned to walk and even to run – you can do marathons and sprints,” Van Schalkwyk said.

“When you embark on postgraduate studies, you become a hiker. Even though the pace is slow and steady, it’s a lot more intense. But to complete a PhD, you must be a mountaineer. The journey is more arduous and technical, often lonely, but ultimately more rewarding.”

Van Schalkwyk’s PhD journey started in 2015 when she enrolled as a research student under the supervision of Professor Hanri Mostert, professor of Private Law at UCT and holder of the South African Research Chairs Initiative (SARChI) Research Chair for Mineral Law in Africa (MLiA).

Mostert had been one of Van Schalkwyk’s favourite lecturers during her LLB and LLM studies at Stellenbosch University, and was her first choice for PhD supervision.

Returning to academia

Up until this point, Van Schalkwyk had been gaining industry experience, working as an attorney, notary and conveyancer at a law firm in Cape Town. Here, she had developed a love for property law and also ended up specialising in it.

So, when she started planning her return to academia, her original idea was to further her studies in this field.

At the time, however, Mostert was applying for the SARChI Chair and suggested that Van Schalkwyk adjust her plans slightly to focus on a topic that allowed for an overlap between the two fields.

“I had no contact at all with mining or mineral law at undergrad level – it wasn’t even available as an elective, so I knew nothing,” Van Schalkwyk said.

“But I think that actually drew me to the topic even more – knowing I could do something completely different that I had not done before.”

“I had no contact at all with mining or mineral law at undergrad level – it wasn’t even available as an elective, so I knew nothing.”

While her topic developed and changed substantially over time, it was inspired by a 2012 Constitutional Court ruling which stated that a mining right holder cannot commence mining activities – despite holding the mining right – unless and until the land is appropriately zoned by the municipality in whose jurisdiction it is located.

Since mining rights are issued by the national Department of Mineral Resources, and zoning rights are regulated by municipalities at local government level, this ruling had various consequences, including the inevitable duplication of application processes and an increased potential for conflicting decisions.

In an unusual approach for legal research, Van Schalkwyk decided to do a case study of three different municipalities: Umhlathuze in KwaZulu-Natal, Sol Plaatje in the Northern Cape and the City of Cape Town in the Western Cape.

She examined their zoning policies procedures and how they provide for mining. The purpose was to determine whether these policies and procedures are suitable for the kinds of mining activities that take place in their jurisdiction.

Translating research into real solutions

What has made her PhD research even more valuable is the fact that it has highlighted the need for the different spheres of government to meet and discuss workable solutions.

Each of the municipalities has received an individual report detailing both Van Schalkwyk’s findings and her suggestions for improvement. MLiA – where she will be continuing with a postdoc – has also been instrumental in arranging a series of workshops that bring different spheres of government together.

“We are gathering people around the table and getting solutions from all of them about how the process can be improved, what their frustrations are and what works well for each of them.”

“We are gathering people around the table and getting solutions from all of them about how the process can be improved, what their frustrations are and what works well for each of them,” she explained.

She added that they’ve received positive feedback from everyone involved – especially from the municipalities who often feel like they aren’t being heard and battle with capacity constraints.

As she prepares to end her PhD climb on a high note, she can’t help but reflect on those who have been walking alongside her.

“It’s very important that you surround yourself with people who are having the same experience,” she noted.

In an effort to foster a culture of mutual support within MLiA, Mostert has established a writing circle for her research students. During weekly meetings, different students are given the opportunity to present their work and receive feedback from their colleagues.

“It definitely helps to improve your writing, but it also helps that you are part of a community of people who are on the same journey,” Van Schalkwyk said.

“It provides that much-needed collegial support and a safe space for putting your work out there and receiving constructive criticism.”

Special graduation guests

Even though having a network of fellow researchers to tap into is of the utmost importance when doing a PhD, she said that she could not have completed it without her family’s support.

Her remarkable achievement also hasn’t gone by unnoticed or uncelebrated by them. In fact, she will have two very special guests attending her graduation ceremony on Friday: her grandmother and grandfather.

“I share a name and a birthday with my grandmother and I’m also their oldest grandchild,” Van Schalkwyk said.

“Since I started my PhD, she’s always said ‘you have to finish this before I die’!”

No doubt, her graduation will go down in family history as an extra special event.