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Legal reform is essential for artisanal and small-scale mining in South Africa

4th September 2019

By: Creamer Media Reporter

     

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The formal regulation of artisanal and small-scale mining (ASM) in South Africa is long overdue.

The term “ASM” can be understood on a spectrum ranging from the use of rudimentary mining methods to access ore, to the act of smaller producers undertaking mining activities sanctioned by approved rights or permits. Although there is no clear definition for ASM, it is often characterised by under-capitalisation, poor business practices and a lack of appropriate infrastructure and technology.

At the advent of the South African democracy, ASM was identified in the Reconstruction and Development Programme as a source of income for those without employment and was one of the key socio-economic programmes to be implemented by the democratic government. This was followed by a recognition in 1998 in the White Paper on Minerals and Mining Policy of South Africa as a means of ensuring “optimal exploitation of small mineral deposits.” The White Paper identified that ASM could make a positive contribution to the national, provincial and local economy.

This intention saw expression, although inadequately, in the Mineral and Petroleum Resources Development Act, 2002 (“MPRDA”). Of relevance, section 27 of the MPRDA allows for a permitting process for small-scale mining on an area that does not exceed five hectares. As a result of amendments to the MPRDA in 2014, this section now requires an application for an environmental authorisation to be submitted at the time the mining permit application is lodged. Any mining activities that are not being conducted within the prescripts of the MPRDA are unlawful.

Given that ASM operators often mine in remote, rural or suburban areas, access to the necessary resources to consolidate and lodge a mining permit application are out of reach, resulting in a contravention of not only the MPRDA, but in some cases the National Environmental Management Act, 1998. This is without considering the costs associated with the application for an environmental authorisation. In reality, ASM operators do not have the luxury to wait months for an application to be processed because the proceeds are utilised for their survival.

At present, the legislation fails to distinguish between ASM and large-scale mining operations, taking no cognisance of nor making provision for the constraints and challenges faced by ASM operators. The continued failure to adequately regulate this sector has dire consequences, including but not limited to numerous deaths, adverse health impacts and environmental degradation, predominantly because miners often work secretly in abandoned mines under very dangerous conditions.

The regulation of ASM has not however been without effort from government. The Department of Mineral Resources,  now the Department of Mineral Resources and Energy established the Directorate of Small-Scale Mining, which sought to offer assistance to aspiring ASM operators. The Directorate sought to assist these aspirant operators with the establishment of a legal entity, to provide guidance on the identification of mineral deposits, assistance with environmental impact assessments and legal and contractual arrangements, reserve estimation of the selected deposits, mining feasibility studies, market studies and development of the mining equipment. The outcomes of these efforts fade dimly against the success statistics and the apparent needs of the sector. Although there have been initiatives, more needs to be done. South Africa must not only identify the challenges in the ASM sector but, there needs to be institutional investment. Furthermore, the legal framework must be developed to speak to the realities of ASM operators. The legislative framework must also be aligned with the institutional support available. This can only done with the help of all stakeholders both in the private and public sector.

Unless change occurs, the impact of the current legislative and institutional inadequacies will continue to contribute to an illegal and unaccountable ASM sector where all stakeholders are forced to bear the burden.

Mihlali Sitefane

associate | natural resources and environment | ENSafrica

msitefane@ENSafrica.com

+27 82 310 3694

Zinzi Lawrence

candidate attorney | natural resources and environment | ENSafrica

zlawrence@ENSafrica.com

+27 66 476 0776

Edited by Creamer Media Reporter

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