Government’s failure to legislate for the regulation of Artisanal miners is tantamount to a dereliction of duty and a serious breach of its constitutional obligations.

The un-ceremonial and under-reported deaths of 40 miners (and counting) yet again highlights the growing death toll of poor and marginalised workers, while government refuses to deal with the challenge of artisanal mining. This one mine has already reportedly claimed over 100 lives in less than 10 years.

In South Africa the statistics of over 6000 un-rehabilitated mines with a funding pool for rehabilitation of well over R60 billion is shocking while the last four years haves seen the mining industry lose an estimated 65 000 jobs and little to no alternative employment options for a growing pool of unemployed miners.

Not only does government have a constitutional duty to prevent deaths and safeguard lives, it also has the responsibility of ensuring that the right to choose our professions and that our right to work is protected and promoted.

Given the mining industry’s fraught history in South Africa, the Mineral and Petroleum Resources Development Act 28 of 2002 was passed with the following transformative objects, inter alia:

“(b) give effect to the principle of the State’s custodianship of the nation’s mineral and petroleum resources;

(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;

(f) promote employment and advance the social and economic welfare of all South Africans;

(i) ensure that holders of mining and production rights contribute towards the socio-economic  evelopment of the areas in which they are operating.”

The blanket ban on artisanal mining that is enacted in the current legislation of the Mining Petroleum Resources Development Act (MPRDA) is not only contrary to the aims of governments own mining legislation but is also contrary to the United Nations’ International Covenant on Economic, Social and Cultural Rights, a binding treaty signed by South Africa in 1994 and ratified in 2015, which among other things requires the South African Government to recognize the Right to Work. Article 6 of the treaty states that “[t]he States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

The African Union’s African Charter on Human and People’s Rights similarly recognizes the right to work, and the South African Constitution establishes a right to “choose their trade, occupation or profession freely”, subject to reasonable regulation.

Given our history, many historically disadvantaged South Africans lack the capital and/or expertise to participate in the mining industry. To address this injustice, the MPRDA provides that the Minister “may facilitate assistance to any historically disadvantaged person to conduct prospecting or mining operations”.

At a recent meeting called by the Deputy Minister of Mineral Resources, to which we had to virtually force our way into, the DM refused suggestions both from Corporations and ourselves to form a joint Task Team to find lasting sustainable solutions to the growing challenge of informal artisanal mining which is directly linked to the increasing unemployment rate. Instead the Minister was insistent that we come up with quick solutions such as the closing/blasting of mine entrances and arresting taxi drivers who transport miners without considering that this will not resolve the unemployment problem and the growing urgency of marginalised communities to find alternative sources of livelihoods.

This failure to work with other sectors of society, including the artisanal miner`s themselves is reckless arrogance that borders on a constitutional dereliction of duty.

We call on the Minister of Mineral Resources and Governing Party to urgently meet with civil society, representatives of the informal miners and corporations to map out urgent and sustainable solutions.

Failure by government to urgently map out a new social compact on mining not only means continued loss of lives but also risks plunging our country into a lawless scramble to secure livelihoods.

Issued by ActionAid South Africa

For more information contact: Christopher Rutledge on 082 784 3333 or Sifiso Dladla 078 8498 621

Follow ActionAid South Africa (AASA) on Facebook, Twitter and Instagram. AASA is a member of ActionAid International, a global movement of people working together to further human rights and eradicate poverty.