Legislating for Inequality
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:
“6.3.3.2 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.
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