Many of the deficits pertaining to the implementation of social and labour plans (SLPs) reflect a legal regime established by the Mineral and Petroleum Resources Development Act (MPRDA) that, despite defined transformative objectives, primarily targets the promotion of mining activity rather than protecting the rights of communities, says civil society organisation Centre for Applied Legal Studies (CALS).

CALS Mining and Environmental Justice Programme attorney Louis Snyman explains that the features and omissions of the Act that reinforce this priority include the absence of a detailed model for calculating community compensation for the loss of and/or damage to land, the relatively compressed timeframes for the approval of mining rights, the absence of robust processes of consultation, the lack of provisions promoting access to information and the absence of grievance mechanisms for communities.

“The overall effect is the absence of robust safeguards that partially mitigate the disparity in power and resources between mining companies and communities,” he states.

Snyman explains that the MPRDA dictates that companies submit an SLP to the Department of Mineral Resources (DMR) as part of the mining right application process.

Once the mining right has been awarded, the implementation of the commitments outlined under the SLP become part of the binding duties of the right holder. “Complying with the SLP and reporting on compliance is a right holder’s duty under MPRDA subsections 25 (2) (f) and (h) respectively. If companies do not comply . . . their mining right can be suspended or withdrawn by government.”

Access and Transparency
Snyman states that the “spirit of the law, animated by the purpose of ensuring that mining brings development to communities and workers”, points towards requiring companies to notify beneficiaries of SLP commitments and to distribute the SLP document in a language that is understood by beneficiaries.

However, the letter of the law is not as robust, he notes. The obligation of the mining company, broadly defined by the MPRDA, is to “‘make the SLP known to employees”. Snyman highlights that there is no mention of communities or what constitutes sufficient dissemination of the SLP.

The CALS’s view is that SLP documents are public documents, “as they disclose companies’ obligations, which are in the public interest, pursuant to legislation”. Therefore, companies should be required to publish their SLPs, as well as related annual compliance reports, on their websites.

“They should also disseminate the SLP documents and summaries thereof, in a language understood by communities and workers, to key community centres or institutions,” Snyman says.

This should be the norm because communities need to be able to hold companies and the DMR responsible if these initiatives are not implemented.

Snyman avers that it is important to include information on SLP authors. “If the identities of the people involved and their experience and qualifications were made public, this might be a disincentive to produce poor-quality work that misrepresents community issues or work that is beyond the writers’ area of expertise.”

Feasibility and Finances
Snyman explains that one of the requirements for approving a mining right is that the applicant has provided “financially and otherwise” for the implementation of its SLP.

“While the ‘otherwise’ is not specified, it can be argued that this should cover feasibility studies (FS), since these are critical for the implementation of viable programmes,” he says, adding that most SLPs do not mention an FS on the viability of the planned programmes.

“During the Marikana Commission of Inquiry, on subsequent feasibility analyses, it emerged that a number of SLP programmes were unviable. The result is that communities experience a delay in attaining benefits intended for them.”

As there is no express provision in the law that requires an FS prior to SLP approval by the DMR, most mining companies delay this aspect until after an SLP has been approved. This is an attempt to reduce expenses prior to the awarding of a mining right, as the awarding of the right and, therefore, income from the project, are at that stage uncertain.

Further, once the impractical nature of an SLP project is established, companies can then change an SLP entirely, creating a revised version, without any independent oversight.

“The MPRDA provides for the amendment of commitments and programmes in SLPs and the law, at present, does not require compelling factors for the amendments. All that is needed is approval from the Mineral Resources Minister who has wide discretion.”

Additionally, Snyman notes that in 30% of the 50 SLPs that formed a part of the CALS SLP Design Phase 1 report, the sum of SLP expenditure is linked to the size of the profits from the mining operation. He states that, while projected revenue from mining should be a key factor in calculating the scale of an SLP’s budget, the CALS suggests that the severity and scope of the negative impacts of a mining operation should also form part of the rubric used to calculate what constitutes sufficient SLP expenditure and deliverables by a mining company.