In 2002, the government adopted the Minerals Petroleum Resources Development Act (MPRDA) without including rights for communities who, have, and would continue, to face the worst consequences of mining operations. The Bill which had taken its inspiration from an evolving process starting with the Freedom Charter in 1955, which set out the demand that “the mineral wealth beneath the soil, the banks and the monopoly industry shall be transferred to the ownership of the people as a whole” through to the Reconstruction and Development Plan (RDP) of 1994, which outlined a programme in which the development of South Africa`s mineral wealth to its full potential and to the maximum benefit of the entire population, is outlined.

The MPRDA sought to codify all the various objectives of the liberation struggle to ensure equitable access and expanding opportunities for the “historically disadvantaged while ensuring that the sector promoted economic growth, employment, sustainability and local development”.

The MPRDA, having emerged in the aftermath of the liberation struggle and the elite social compact that transferred electoral political power to a black majority, had not anticipated that the labour movement, given its cooption into corporatists institutional bargaining aimed at its own narrow interests, would be unable to represent the broad interest of the community. Nor was it anticipated that government, as the custodian on behalf of the people, would also not be able to act effectively in the interest of communities affected by mining operations, given that the governing party had itself invested in a Faustian pact with large scale mining corporations which would see key leaders of the party become Billionaires as a means to creating a mythical patriotic bourgeois.

The upshot of the social compact forged between business, government and labour, was that communities were left out in the cold and subject to the worst ravages of a predatory industry fixated on accumulating as much wealth as possible at any expense.

Moeletsi Mbeki claims that the logic of forging a coalition between the governing party and big business, through Black Economic Empowerment (BEE), was mooted by South Africa`s white economic oligarchs in order to wean the ANC away from radical economic ambitions.

By all empirical accounts, the strategy appears to have been a spectacular success, at least in forging strong links between the governing party and big business. However, by the time Jacob Zuma took office in 2008, the failure of the “BEE” strategy to translate into meaningful broad based empowerment, was being roundly condemned and sat at the heart of a growing rebellion of the poor which was to culminate in the 2012 Massacre at Marikana.

The failure of the mining sector to live up to the expectations set out in the Freedom Charter, the RDP and the 2002 MPRDA, sparked a raging debate in the governing party on the nationalization of South Africa`s mines. The debate was eventually shut down by an ANC study group which warned of massive financial costs.

By 2012 the ANC had nonetheless seen the need to amend the MPRDA as it was clearly not meeting the objectives that it set out to achieve. The Department of Mineral Resources found through its own assessments that there had been “shocking levels of non-compliance” by the industry and that “[c]onsequently, the intended benefits flowing from the mining industry fall significantly below the expectations and aspirations of the majority of South Africans as intended by the (Mining)Charter.”

A second assessment by the DMR in 2014 found that, “overall transformation of the mining industry remains unacceptably low, the spirit of the Mining Charter was not fully embraced”, and that “the majority of mining communities continue to live in abject poverty.”

In 2015 another assessment by the DMR, again confirmed that, “the meaningfulness of economic participation remains largely elusive, communities’ participation is low, there has been limited impact in terms of intended beneficiaries realising optimal economic benefits”.

Even though there remained resistance within government, business and conservative sections of labour, to provide communities with a right to Free Prior and Informed Consent (FPIC) with regards to mining activities on their land in the proposed 2012 amendments to the MPRDA, Mining Affected Communities United in Action (MACUA) and others, which included progressive sections of labour, took up rolling campaigns to convince legislators at provincial and national levels to include greater rights for communities in the proposed amendments.

By the time the Bill was sent back to the National Council of Provinces for acceptance, legislators in various provinces had demanded that the right to Free Prior and Informed Consent (FPIC) for affected communities be included in the legislation.

It is our belief that the MPRDA Amendment Bill (2012) was withdrawn because it was clear that the tide towards greater community rights had turned in favour of communities and would place the existing interests of a small group of politically connected individuals in jeopardy. This cynical move to deny the will of the people, was further affirmed by the adoption of the Traditional and Khoi-San Leadership Act (TKLA) which further erodes the rights of communities by placing the power to decide on mineral deals with an unelected chief.

Notwithstanding the fight back by the political and economic elites against the growing demand by communities to be treated as citizens worthy of deciding their own futures, the courts and the jurisprudence around the right of communities have advanced significantly and it`s only a matter of time before communities are organized enough to trigger a rethink of community exclusion by the tripartite alliance of business, government and conservative sections of labour.

The recent attempts by the DMRE to provide some regulations which would allow for more extensive “consultation” with communities appears to be an attempt to placate a demand whose time has come. Consultation in which communities do not have the “Right to Say No” or do not have the right to decide on their own developmental paths, is no consultation at all.

While we welcome the attempts by the DMRE to add more meat to the “consultation” bone, we reject the premise of the MPRDA, which excludes community rights to FPIC, out of hand. No self-respecting free society could ever condemn vulnerable communities to repeated and ongoing violations without given them the right to decide on their own futures. We call on the Minister and the DMRE to lead a new process of social compacting in which the voices of the marganilsed and excluded can be heard and incorporated into new Mining legislation.

Just as the Freedom Charter is premised on the will of the people, so it is, that it is only when there is greater inclusion that we can hope to realize the demands of the Freedom Charter. Today that demand live on in the Peoples Mining Charter which “affirms our fundamental inalienable human right to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all our fundamental human freedoms and rights can be fully realized”.

Meshack Mbangula, Nester Ndebele, Fatima Vally and Christopher Rutledge
MACUA WAMUA Advice Office