Towards a More Just Mining Regime

The achievement of equality is, in South Africa, “a constitutional imperative of the first order”.  The Constitution commands us to strive for an equal society in entrenching it as both a founding value and a right which is informed directly by the unjust history of Colonialism and Apartheid. 

In the words of former Chief Justice Langa; “In this fundamental way, our Constitution differs from other constitutions which assume that all are equal and in so doing simply entrench existing inequalities.   Our Constitution recognises that decades of systematic racial discrimination entrenched by the apartheid legal order cannot be eliminated without positive action being taken to achieve that result.  We are required to do more than that.  The effects of discrimination may continue indefinitely unless there is a commitment to end it.”

ActionAid South Africa`s Precious Metals II, A Systemic Inequality report has shown that through a combination of well-intentioned but ultimately fruitless endeavours, the South African state has failed in its constitutional obligations to arrest the discrimination of the past and has instead perpetuated a systemic and fundamentally unjust mining regime which impinges on the human rights of the most marginalised and historically most discriminated against rural communities affected by mining.

It is our belief that merely continuing along this path without a fundamental rebalancing in favour of human rights, the South African state is inadvertently sowing the seeds of discontent and resistance.

The case study of the Mapela community has shown that despite overwhelming odds against their claim to human rights and a just dispensation, the community continues to resist and disrupt the “normal” functioning of their dis-possession and impoverishment. 

The growing organisational ability of mining affected communities to collectively claim their rights as is evidenced in the growth and popularity of MACUA (Mining Affected Communities United in Action), and the increasing rate of protest and disruption at mines across the country, attests to the emergence of a new struggle for justice that finds its succour in the unjustness of the system.

We hope that this report will result in a much wider open and democratic debate, which must include affected communities, the DMR, the Legislators and business as well as the relevant constitutionally mandated Human Rights Institutions.

Recommendations to the South African Government:

•             Take immediate action to ensure that all villages in the Bushveld complex have access to adequate supplies of clean drinking water.

•             Institute an investigation into Anglo Platinum`s liability for the costs involved in remedying water access to the community of Mapela.

•             To ensure that community access to agricultural and grazing land are prioritized and that monthly compensation for loss of agricultural and grazing land is afforded to the community urgently.

•             Instruct the Department of Minerals and Energy to investigate allegations in this report and reappraise Anglo Platinum’s operations in the Bushveld complex. This should include an evaluation of the company’s compliance with the environmental and social requirements of the Mineral and Petroleum Resources Development Act and the environmental management plan submitted under this Act.

•             Ensure that the SLP presented by Anglo is submitted to the community for approval and consultation.

•             To ensure that the popular leaders of the community are engaged in meaningful dialogue to find sustainable solutions to the century of discrimination suffered by the community.

Recommendations to the Legislator:

The following recommendations were derived through a democratic process initiated by the Civil Society Coalition on the MPRDA and included 15 civil society organisations and over 100 affected communities represented through MACUA and Mejcon.

We recommend that the Legislators urgently revise the Mineral and Petroleum Resources Development Amendment Bill to ensure:

•             Community Voice in Decision Making through negotiation based on right of consent to determine what activities occur on one’s land.

•             Democratic Community representation and customary decision making processes that are community based and not based on undemocratic Traditional Authority systems.

•             Benefits from mining activities (profits, employment, procurement, and local economic development) should be shared equitably and distributed to directly affected communities, near mining communities, workers and the public through a democratic process.

•             The public, specifically mining affected communities must have the right to Free and accessible access to information regarding all operations that affect the economic, social and environmental well-being of communities.

•             Communities bear a disproportionate burden of the costs of mining and there should be independent, accessible, speedy, and effective recourse mechanisms, before during and after mining.

•             Rehabilitation standards should ensure that the land is no worse than when mining started.

•             Restitution and Reparations should correct historical wrongs and should include 

environmental, social, cultural and heritage rights including spiritual connections to land, people and nature.

•             Compensation for loss of livelihoods and economic social, environmental, cultural and heritage resources should be based on full cost accounting including future losses of alternative development paths and value loss of minerals.

Recommendations to the South African Human Rights Commission:

•  Conduct an investigation into the alleged violations of economic, social and cultural rights highlighted in this report - in particular the rights to food and water, the right to a healthy environment and the violation of the communities cultural rights.

•             Recuse itself as the facilitator of negotiation processes.

•             To assist in the appointment of an independent arbiter.

•             To assist with the formulation of Terms of Reference for negotiation between Anglo and the community based on the human rights violations identified in the 2008 reports and the 2015 report.

•             To immediately dismantle the system of Task Teams and to place the agency with the community informed by their own organic leadership processes.

•             To institute an immediate investigation into the failures of Anglo and other stakeholders to live up to their human rights obligations as set out in the constitution and as per the recommendations of the SAHRC 2008 report.

•             To include in its report firm recommendations on compensation and findings of culpability if it is found that non-payment of compensation has impacted on the food security of individuals, families and communities.

•             To include in its report the increasing deviation of legislation away from human rights standards identified in the 2008 report but also in terms of other instruments such as the African Mining Vision.

•             To include in its report an investigation into the R3.5 billion Project Alchemy, in terms of, what it is, who runs it, who benefits from it, who participates in it and why this “award winning” project has not resulted in any benefits for the Mapela community.

Recommendations to AnlgoPlatinum:

AngloPlatinum should immediately:

• Comprehensively review and reform its consultation and negotiation processes to ensure all members of local communities are fairly represented and that organic community leaders are respected and engaged as legitimate partners.

•             Seize creating divisions within the community through offering preferential deals to Tribal Authorities without the democratic consent of the community.

•  Introduce monthly reparations to fully compensate for direct and indirect losses, immediate and long term impacts; and afford equity stakes in all of its mining operations to the historically disadvantaged communities surrounding the mines.

•  Make its environmental management and social and labour plans publicly available and subject its community development projects to community approval and  independent audits.

•             Introduce dispute reporting mechanism managed by an independent ombudsman.

•  Encourage local authorities and police to respect and uphold the civil and political rights of villagers and openly condemn and reject any actions that contravene their rights.

•  Ensure human rights standards are respected throughout its operations.

The task of creating and equal society in which the injustices of the past are redressed is a mammoth task that requires the collective efforts of the state, private capital, communities and civil society generally. To date the state has directed the efforts of redress without fully seeking the democratic inclusion of those who are most directly impacted. Such colonial notions of directing power from the top, in collaboration with business elites has lost its aura of potential and the lived reality of dispossession of communities such as the Mapela community, attests to its ability to only affirm the inequalities of the past.

In conclusion, it is former Chief Justice Langa who best encapsulates our challenge when he said we need “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)”