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Legislating for Inequality : Part 3

Tuesday, February 16, 2016 - 10:42


Adopted in 1996, after a tumultuous struggle against the oppressive and exploitative systems of Colonialism and Apartheid, the South African Constitution, presented a new template on which the development of a fundamentally more equal society could be built.  


Flowing from the constitution, the state is constituted on an important democratic principle called the separation of powers. That means that the power of the state is divided between three different but interdependent components or arms, namely the executive (Cabinet), the legislature (Parliament) and the judiciary (Courts of law).  A very significant feature of our Constitution is that it sets up several independent bodies to support and safeguard our democracy. Informally these bodies are often referred to as the “Chapter 9 Institutions”, because the most important of these are provided for in Chapter 9 of the Constitution. These include the Human Rights Commission which has been intimately involved in the dispute between the community of Mapela/Langa and AngloPlatinum.


Section 1 of the Constitution states that the Republic of South Africa is one, sovereign, democratic state  founded  on  the  values  of  inter  alia  human  dignity,  the  achievement of  equality and  the advancement of human rights and freedoms and these are enshrined in the Bill of Rights. The rights in the Bill of Rights form the cornerstone of our democracy and an obligation is placed on the state to respect, protect, promote and fulfil these rights.


The State, in accordance with its obligations undertook to reform the mining landscape and through what was described by the authors of the White Paper, A Minerals and Mining Policy for South Africa in October 1998 , as “the most comprehensive consultative process yet conducted for a review of a minerals and mining policy in South Africa”, the Department of Minerals and Energy set out the new imperatives for a mining dispensation in democratic South Africa, underpinned by the values and imperatives of the Constitution.


Yet it was striking to note that the 1998 White Paper, a 93 page document, only dealt with the question of community once and its sum total of awareness and focus on the impacts that mining has on communities is recorded as:


“ Other views


i.              A forum should be established where the views of communities affected by mining could be heard.”


In the final version of the Act that was eventually adopted in 2002 and which came into effect in 2004, the Legislators acknowledges the constitutional imperative imposed on it and the MPRDA accordingly explicitly commits itself to take positive measures to affect transformation. But the law remained unclear and ambiguous with regards to the protection and empowerment of host communities.


 The transformation measures outlined in the MPRDA are two-pronged in that it seeks to transform the ownership of the industry and it seeks to ensure the positive impact of the industry on socio-economic advancement.  The Objects of the Act which seek to achieve the constitutional imperatives of addressing past inequalities are set out as to-


 (c)     promote equitable access to the nation's mineral and petroleum resources to all the people of South Africa;


(d)     substantially and meaningfully expand opportunities for historically disadvantaged persons, including women and (communities) , to enter into and actively participate in the mineral and   petroleum industries and to benefit from the exploitation of the nation's mineral and petroleum resources;


(e)     promote economic growth and mineral and petroleum resources development in the Republic, (particularly development of downstream industries through provision of feedstock, and development  of mining and petroleum inputs industries) ;


(f)      promote employment and advance the social and economic welfare of all South Africans;


(h)     give effect to section 24 of the Constitution by ensuring that the nation's mineral and petroleum resources are developed in an orderly and ecologically  sustainable manner while  promoting justifiable social and economic development; and


(i)      ensure that holders of mining and production rights contribute towards the socio-economic development of the areas in which they are operating.


While limited in scope, the objectives of the Act are noble and in line with the Constitution. The true test is however to what extent the objectives of the act are able to transform the South African society and particularly the lives of rural communities impacted by mining.


Former Chief Justice Langa identified substantive equality as a key indicator of success in measuring transformation. Substantive equality he defines in turn with reference to “a social and economic revolution in which all enjoy equal access to the resources and amenities of life, and are able to develop to their full human potential. This goal requires the dismantling of systemic inequalities, the eradication of poverty and disadvantage (economic equality) and the affirmation of diverse human identities and capabilities (social equality)”


So the key question we must direct at the state, regarding its intentions and its achievement must relate to the extent that the state, through the efforts of its institutions, namely the National Assembly, tasked with developing laws in pursuance of the goals of the constitution and exercising oversight over the executive, and the executive, namely the (various) Ministers responsible for the Department of Mineral Resources, in implementing the law and regulating the industry, has substantively transformed society and the extent to which it has been able to reverse or end the systemic inequalities of the industry.


The 1998 White Paper had hardly considered a role for communities in the overall development of legislation and in the ability and duty of the industry to overcome the substantive inequalities of the past. The MPRDA of 2002 failed to deal not only with the community as a stakeholder that has a direct interest in the manner in which mining happens, its effects on the health, livelihoods and heritage but also failed to adequately consider how the industry has historically contributed to the dispossession of black people in South Africa and how in turn it is required to provide redress for centuries of dispossession while contributing to the substantial transformation of the most marginalised rural communities.


The Legal Resources Centre, in its submission to the Portfolio Committee on Minerals stated that “Inequity in the mining industry has its roots in the dispossession of the African population of their land. The first form of redress in relation to this legacy of inequity undertaken by the democratic government was to divorce mining rights from surface land occupation and ownership rights. While the placement of the country's mineral wealth in the hands of the State enables the nation to benefit from future extractions, it does not compensate for past injustice and plunder.”


The Department of Mineral Resources, under the political mandate of the Minister of Mineral Resources, are the technical hub of legislation and regulation in South Africa`s mining regime. It is the DMR which proposes and acts on legislation.


In its 2008 report, the SAHRC made the following specific recommendations with regards to legislation and which remains unattended to this day:


             The recommendations made by the SAHRC in this report concerning the obtaining of free prior informed consent of affected communities apply equally to State undertakings”. This recommendation remains unresolved despite the legislative standard being one of “consultation” by the mining company. The standard of consultation has been further diluted in subsequent attempts to amend the legislation.


             The Department of Minerals and Energy (“DME”) should clearly state what its criteria are for meeting the required standard of “consultation” by the applicant mining company with the affected community. This will further empower the affected community to assert their rights during the process as opposed to objecting to a process after the fact”. The murky regulations around consultation have been addressed above; suffice to say that this recommendation was ignored.


             The Department of Land affairs (“DLA”) should engage affected communities on the nature of land rights at the outset of any resettlement negotiation process so as to avoid confusion and uncertainties. This lands rights clarification will provide certainty for communities concerning their informal rights to land”. Land remains a central component of the dispossession of rural communities and legislation in either the MPRDA or other land specific legislation has not provided a solution to the land rights of communal communities.


These are among some of the numerous failures the AASA`s Report entitled,  Precious Metal II, A Systemic Inequality, highlights and draws out. In the next part we turn our attention to the Social Labour Plans which is the main vehicle for addressing the inequities of the past and the South African Human Rights Commission.


Christopher Rutledge is the Mining and Extractives Coordinator at ActionAid South Africa. Follow ActionAid South Africa on Facebook, Twitter and Instagram. AASA is member of ActionAid International, a global movement of people working together to further human rights and eradicate poverty