Criminals are not always lawless.

* This Article first appeared in the Star Newspaper on 16 March 2016

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. 
 
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 in 2002 through the Mineral Petroleum Resources Development Act (MPRDA), 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.

In the final version of the Act which came into effect in 2004, the Legislators acknowledge the constitutional imperative imposed on it and the MPRDA accordingly explicitly commits itself to take positive measures to affect transformation.

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. 

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 achievements must relate to the extent that the state, through the efforts of its institutions and the executive, 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.

Instead, coming before the Gauteng High Court this week, is a case that does not seek to ask the question in terms of the greater good, that I have outlined above, instead the question being asked of the court is to what extent the constitutional imperative of correcting the injustices of the past should be directed by the state instead of by “market forces”. Or to state it plainly, to what extent should legislation protect and advance the interest of the majority and to what extent should it protect the interest of the few. The few in this case are big mining companies who have not only been historically complicit in the subjugation and tyranny of Colonial Apartheid, but who continue to own the lion`s share of the industry and who continue to benefit at the expense of the majority.

Ranged against the State are the Chamber of Mines and a mercenary of the extractives industry, attorney John Scholes. While coming to the defence of the Constitution as amicus curiae, is the Centre for Applied Legal Studies (CALS). At the centre of the battle that will unfold in court is the question of whether the Act should allow mining companies who have insufficient shareholding of historically disadvantaged persons (read black people) to claim the right to an illogical status of being “once empowered always empowered”.

Plainly put, the question being placed before the court, is whether the guarantees contained in the constitution of freedom and protection of private property of the few, should trump the founding values of that very same constitution, namely, “human dignity, the achievement of equality and the advancement of human rights and freedoms” for the vast majority of the population.

The question, coming as it does from the very same sector that provided, what the TRC calls and which CALS point out in their submission to the court, “the blue print for grand apartheid”, the question posed to the court and the veiled attempt at shirking its historical duty of redress, should not only be seen as a question of law.

Instead, this effort by this historically complicit sector in what was described by the United Nations as a Crime against Humanity should be seen for what it is, an attempt to weasel out of giving back to South Africans what is rightfully theirs. Instead of seeking ways to speed up the redress so sorely needed by society, it scurries about like a criminal evading its duty to redress the wrongs it committed in the past, looking for escape strategies by any means necessary.


With friends like these, who needs enemies?

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