The Social and Labour Plan (SLP) system, together with Broad-Based Black Economic Empowerment (BBBEE) schemes under the Mining Charter, is the main mechanism by means of which the mines are to channel the proceeds of mining into benefits for the community and transformation of society generally. The failure of BBBEE to transform mining ownership patterns is currently the bone of contention between the Minister of Minerals, the Chamber of Mines and various other parties before the Gauteng High Court. The question before the court revolves around the “once empowered always empowered” claims made by the mining houses and which is contested by the DMR and the Minister as well as by a host of civil society formations. The legal definition of “once empowered always empowered” aside, the question remains to what extent has BBBEE served to bring about “substantial equality”. The research currently under consideration suggests that this remains an elusive reality for mining affected communities.
In this sub section, we wish instead to consider the SLP`s and its failure to contribute to the grand objectives of the MPRDA and the constitution.
The MPRDA explicitly commits itself to take positive measures to affect transformation. What is more, the Constitutional Court found, in Agri SA case , that the MPRDA represents “legislative measures […] taken to facilitate equitable access to opportunities in the mining industry”, because black South Africans “were unable to benefit directly from the exploitation of our mineral resources by reason of their landlessness, exclusion and poverty”.
The purpose of the SLP model is to make it a statutory licensing requirement for mining companies to develop a range of human resources development and local economic development programmes. These programmes, which are contained in the SLP document, become binding on the company on the granting of a mining right by the Department of Mineral Resources (DMR). The system therefore uses the licensing process to compel mining companies to provide benefits for workers and communities.
One of the most striking features of the regulatory framework is that the primary legislative source of the SLP system, the Mineral and Petroleum Resources Development Act (MPRDA), says very little about the definition, objectives and content of SLPs. The requirement to consult is vague and non-existent except for one injunction in the DMR`s guideline to “consult with communities”.
In a recent study by the Centre for Applied Legal Studies(CALS), the authors of the report even go so far as to say that there are more barriers to community participation than there are avenues to access information.
The CALS report questions whether it is appropriate for the legislator to leave even the broad content of one of the most important planks of reformist legislation to determination by the executive. This lack of specificity unfortunately sets the tone for the entire system. The result is that, in practice, SLPs seem to belong more to mining companies than to the intended beneficiaries of the system.
A regulatory system that provides and aims to satisfy the duty bearer more than it does the rights holder, besides from not being a pragmatic way to bring about transformation, is also fundamentally set up against the constitution which, as confirmed in the Bengwenyama case, requires robust and thorough consultation processes to meet the criteria of substantial equality.
The CALS research, with a Study sample of 50 SLP`s and over 4500 data points, found among a broad range of findings that:
• Community participation in developing SLP`s are lacking.
• SLP`s generally do not incorporate long term planning or sustainability into its plans.
• Less than 10% of SLP`s are clear on how the SLP`s are communicated to stakeholders.
• The exclusivity and privacy of labour plans are a first step in wrong direction. This includes practical difficulties of obtaining the report and printing etc.
• SLP`s never talk about the history, of what happened before the start of the SLP, so efforts to drive transformation starts from scratch without consideration of past injustices.
• There are no contextual or ethnographic details to the SLP and therefore it is unlikely that the SLP will be able to address the core transformational issues.
• SLP`s do not have baselines from which they operate and targets are changed regularly thus not being able to track their effectiveness.
• They do not devote equal attention to negative and positive social impacts in that exclusion of negative impacts reduce the SLP to a sales pitch.
• The correlation between impact of mining and benefits of the SLP are not always clear.
• SLP`s do not cater for population influx and recognition that the community fundamentally changes with the introduction of mining operations.
• Amendments to the SLP are not required by law beyond the approval of the minister and no reasoning is provided for why targets or projects are changed.
• The language of the SLP is always in English and never translated to local languages thus excluding a significant portion of the community.
• 25% of SLP`s link the performance of commodity prices to their ability to deliver on the commitments in the SLP.
By the Legislators own admission when faced with evidence presented before the committee that SLP mitigation measures have not worked, with the failures of Lonmin in Marikana serving as a case in point, the committee said in its report of the hearings of 5 June 2013:
“When we conduct oversights, we come back depressed. Because before you enter into a mine, you walk through a sea of poverty. ... In our own experience these Social and Labour Plans are indeed not implemented...Mining communities lament that here, within our area we extract the wealth of the country but there is no drop that comes back to us as the mining community.”
The legislation and regulation of SLP`s thus provides a perfect circular outcome that facilitates and countenances a system that fails to deliver on its constitutional mandate. The law was proposed by the DMR, as specifically vague and virtually unenforceable, adopted and passed into law by the legislature, knowing full well that its outcomes, being vague and ambiguous cannot be guaranteed, thus limiting the oversight it could enforce on the DMR and leaving the constitutional imperative of transformation in terms of substantial equality as a non-starter. A perfect systemic failure which allows the DMR, the Legislator and the Corporate to all be able to show compliance while actually not delivering anything substantial.
In AASA`s Precious Metals II, A Systemic Inequality Report, the Mapela case study, with its longitudinal approach is well placed to capture this failure as it shows that over the long term, no substantial transformation has taken place, indeed the life circumstances of the community of Mapela has regressed.
SLP`s and its failures are thus a good case study of a systemic inequality, that is allowed to exist, unchecked, unregulated and endorsed by legislation.
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