The Mining Charter: Citizens or Subjects?

On Monday 19 February 2018, a seminal case is being heard in the Pretoria North High Court that once again sees the poor and marginalised coming up against the rich and powerful in the Mining Charter Case. This battle between the rich and the hungry, while unique in its own ways, and couched as it is in legalistic and broad liberal principles, is nonetheless, at its core, the continuation of the centuries old struggle of indigenous communities for Justice.

While, one could easily be fooled by the media`s single minded focus on the Chamber of Mines and the interest of Big Business in the Mining Charter Case, a closer look, will reveal that a Full Bench of the Pretoria North High Court, has sanctioned the inclusion of cases brought by mining affected communities under the leadership of MACUA, who claim that their exclusion from policy and legislative processes serves only to deny them their Constitutional Rights to participate in matters that affect them and to further deepen and entrench the systemic inequality that has become synonymous with the sector.

To be fair, the Courts, including the Constitutional Court, have affirmed the rights of affected parties to participate in their own governance on various occasions and in various judgements. These previous confirmations by the court of the constitutional right of citizens to participate in the own governance notwithstanding, the practical realisation of these rights have been systemically and continuously denied by both the state and corporations.

Embedded in the various policies, legislative and regulatory provisions that govern the sector, the systemic exclusion of communities is based on a rather simple semantic discursive tone which serves as a common-sense justification for the exclusion of communities.

The 1998 White Paper on Mineral Resources, which was drafted in the aftermath of the Post 1994 democratic elections, had hardly considered a role for communities in the overall development of legislation. This deliberate exclusion of a portion of society that was expected to bear all the toxic and destructive outcomes of mining, bore all the hallmarks of a Colonial mind set which viewed communities affected by mining as the subjects of the Kgoshi and on whose behalf the big men of mining would deliberate.

After discussion among the politically connected and despite making small advances on how communities are perceived, the MPRDA of 2002 and the amendments of 2012 failed dismally to deal not only with the community as a stakeholder that has a direct interest in the manner in which mining happens in their backyards, its effects on their 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 through the characterisation of rural dwellers as subjects and not citizens.

Part of the failure of the mining regime in South Africa is directly linked to the manner in which citizens who are guaranteed certain rights in the Constitution, are reduced to subjects who are denied agency and whose agency is only expressed through traditional leaders.

A study of the Policy, Legislation and Regulations governing the sector, will reveal the manner in which the language of governance presents mining affected communities as passive recipients who have no agency.  Communities are consistently portrayed as recipients whose “needs must be respected” but never as free citizens and agents who are capable and able to engage in their own governance.

This framing of the community as agentless subjects whose needs must be respected, immediately excludes the possibility that communities could be viewed as a contractual party to any agreement that the mining operation might want to enter into with the community.

It is a trite matter of law that for a contract to be considered valid and binding in South Africa, the following among other requirements must be met: there must be consensus ad idem between the contracting parties and the parties must have seriously intended the agreement to result in terms which can be enforced.

Thus in the framing of the community as recipients whose “needs must be respected”, one is left with the distinct impression that community and minor are meant to be synonymous.  Thus communities are considered minors who do not have the agency or legal majority to be treated as equal parties in a contractual arrangement.

Indeed, it is this discursive peg, of communities as minors who need to be looked-after by the adults, that has underpinned the systemic impoverishment of large swathes of rural communities, in collusive deals between the State, Corporations and Traditional Leaders.

In Mapela in Limpopo, Anglo Platinum recently agreed to hand over to the local chief a sum of R175 million before the matter was interdicted and the process halted by the community. Despite deep resistance by the community to Anglo`s insistence on reaching deals with unrepresentative traditional authorities, Anglo, with the acquiescence of various state institutions, continues to reap enormous profits from the community`s land, while the community itself goes thirsty for lack of water and hungry for lack of land.

None other than the Minister of Mineral Resources argues before the court that the Mining Charter is sufficiently inclusive because the Department of Mineral Resources consulted with traditional leaders.

Despite the apparent deep disagreement between the Chamber of Mines and the State on the Mining Charter, they are nonetheless absolutely united on the question of keeping communities subjected to their collusive agreements, and in keeping the governance of the sector closely controlled by the unholy alliance of Government, Unions and Corporate elites.

But it is precisely this closed-shop elite arrangement that mining affected communities have consistently rejected and which the court will be asked to reject as well.

The recently released High Level Panel Report by former President Kgalema Motlanthe  has given communities some hope that their historical exclusion might eventually find empathy in the broader public debate. The Panel  found that the exclusion of affected communities was in need of urgent redress and that “It is of great concern to the Panel that specific laws (here specifically referring to the MPRDA), and the way in which they are interpreted and implemented, re-enforce unequal power relations between the more powerful and the least powerful in society. This contradicts the essence of the Preamble to the Constitution.”

The constitutional rights of poor and marginalised mining affected communities have been lost in the dust and noise kicked up by the disagreement between elite actors in the sector. Hopefully the courts in its rational considerations will separate the rhetoric from reality and strike a blow for our democracy and affirm MACUA`s call that there can be nothing about us, without us.