Abstract

This contribution discusses the dynamic relationship between legalpolitical context and the distribution of economic wealth derived from natural resources. By reflecting on South Africa’s critical legal history in natural-wealth distribution, it illustrates that law, seemingly neutral and devoid of politics, is in fact political and capable of unjust outcomes. The aim of this contribution is to highlight the effects of the colonial and apartheid legacies of inequitable distribution of natural-resource wealth and its ongoing ideological influence on the post-apartheid legal-political context and its distributive policies. The historical use of law as a political tool to control the distribution of natural-resource wealth in specifically minerals and water is discussed to illustrate this dynamic relationship. Furthermore, the legal powers attributed to the role of the state in legal-political context produce economic inequalities or equalities depending on the prevailing understanding of the state’s role and its priorities. During the colonial-apartheid eras, law was used to bolster political and capitalist interests. It is argued that South Africa’s untransformed legal-political context remains susceptible to undemocratic outcomes in the form of neo-liberal capitalism. From a constitutional distributive justice perspective, this study problematises the legal-political context and critically discusses the state’s failure to give sufficient attention to its transformative and distributive role as evidenced by the high rate of poverty and unemployment in South Africa. For example, public trusteeship was legislated for the state to ensure beneficial management of South Africa’s water for all its citizens. Similarly, state custodianship of mineral resources was legislated to promote “justifiable social and economic development”. Legal mechanisms like these empower the state to achieve distributive justice with regard to South Africa’s natural-resource wealth. However, only through cultivating a transformative constitutional legal-political context with an accountable state willing to fully harness its distributive role, will equality start to materialise in the livelihoods of citizens.