Open letter to the DMRE and the Portfolio Committee onMinerals and Energy on their exclusion of communities as core stakeholders inengagements post-Mining Charter judgment
Community participation in post-Mining Charter Law Reform
As community networks, communities, civil societyorganisations and progressive organised labour we demand the immediateinclusion of mining communities as core stakeholders in all law, policy anddecision-making processes. In particular, we demand equal inclusion inmulti-stakeholder engagements on the shape of transformation requirements inthe sector following the judgment declaring that the Mining Charter had nodirect legally binding effect.
The continued deliberate systemic exclusion ofmining-affected communities from decision-making processes by Parliament, theDMRE and mining companies, nearly three decades into democracy, despite theconstitutional values which promote such inclusion, is a national scandal, anda betrayal of our country's liberation struggle.
This exclusioncontinues despite court judgements affirming the rights of communities to beconsulted, reports by the South African Human Rights
Commission2 and the Motlanthe High Level Panel3, both ofwhich highlight this failure, and despite the numerous pickets, protests andthousands of petitions submitted by communities.
The exclusion of predominantly black and working-classcommunities from participation in constructing a policy instrument like theMining Charter, whose stated purpose is to overcome the apartheid and coloniallegacy of mining, is an especially cruel irony. Communities, daily, and atgreat risk to their safety and well-being, must defend their homes andlivelihoods from the kind of dispossession and plunder reminiscent of the worstforms of colonialism and apartheid, while Parliament, the DMRE and Big Businessstand by idly counting the profits accumulated off the backs of thesemarginalised and poor communities.
This is worsened by the fact that women in communitiesdisproportionately bear the brunt of the destruction of land-based livelihoodsto further mining profits, in which they never share.
From the beginning of the process of developing the MiningCharter in 2018, and through all the legal challenges that process faced, ourstance has been consistent. First, we have supported the need fortransformational instruments that are binding on the mining industry. Second,we supported the strengthening of these instruments to address the needs ofmining-affected communities and workers in a more meaningful way, whichincludes greater ownership shares for the working class (communities andworkers), democratisation of community ownership vehicles and measures toaddress gender inequality.
Third, we demanded the inclusion of communities and nationalcommunity networks as equals who are present in all official multi-stakeholderfora.
On 20 February 2018, following a mass picket in whichmining-affected communities filled the square around the High Court inPretoria, the Court handed down an order requiring that Mining AffectedCommunities United in Action (MACUA), Women Affected By Mining United in Action(WAMUA), Mining and Environmental Justice Community Network of South Africa (MEJCON-SA)and four individual communities4 be included as ‘interested and relevantstakeholders for the purpose of consultation on the Charter Consultationprocess.'5
However, and despite further pickets and petitions,communities remained excluded from the core engagement structures such as theMining Charter Task Team and Mining Industry Growth, Development and EmploymentTask Team (MIGDETT) and were treated as minors who had no legal or humanitarianstanding.
To challenge this unjust state of affairs, MACUA and WAMUAdelivered 50 000 signatures to the Speaker of Parliament in December 2020calling for an end to the systematic exclusion of communities fromparticipating in the issues that directly affect them.
The Speaker of Parliament referred the matter to thePortfolio Committee on Mineral Resources and Energy, who invited MACUA andWAMUA to make a brief presentation to the Committee in March 2021.In thatmeeting the Chairperson of the PC and the Minister of Mineral Resources andEnergy committed to starting a process of engagements with MACUA and WAMUA ontheir demands.
To date, both the Portfolio Committee and the Minister ofMineral Resources and Energy have failed to live up to their commitments whilevigorously engaging and promoting business interests in the sector. This isparticularly egregious when one considers that the current Minister is a formerunionist who for years led the country's largest mining union and was anactivist for the interests of mining-affected communities.
Despite the unfulfilled promises, which amount to misleadingparliament and the public in general, MACUA & WAMUA nonetheless extended ahand of co-operation via numerous letters to the Speaker of Parliament and thePortfolio Committee and eventually a letter was sent on 21 February 2022(almost a year after the commitments were made), inviting the DMRE and thePortfolio Committee to engage communities in discussions aimed at pooling theinsights of key stakeholders towards legislative and regulatory amendmentscapable of realising deep transformation in the sector.
We were informed by the remarks from Pieter Alberts, ChiefDirector: Legal Services at DMRE, to the Portfolio Committee on MineralResources and Energy on 23 November 2021, that the Department was in favour of‘parliamentary processes to review the transformative legislative framework toadvance the transformation objective'.
The response to this letter has been yet more deafeningsilence. In the meantime, on 18 March 2022, the Portfolio Committee held ameeting at which the Minerals Council and three Labour Unions were providedwith an opportunity to present their proposed way forward on transformation lawand policy following the afore-mentioned judgment on the status of the MiningCharter.
This meeting would have been an opportunity forrectification of past mistakes but again, despite communities and networksbeing parties in the case, communities were excluded.
As communities, civil society organisations andrepresentatives of the labour movement we demand the following:
* The reconvening of the Portfolio Committee meeting on theway forward, this time including national community networks alongsideorganised labour and industry representatives.
* The inclusion of MACUA/WAMUA, MEJCON-SA andmining-affected communities more broadly as well as civil society partners onmulti-stakeholder law/policy engagement, such as MIGDETT;
* The opportunity for communities to provide inputthroughout the law/policy-making cycle (before the written comments stage) as acore stakeholder; and
* Enhancements to the manner in which broad publicparticipation processes are conducted including: 11.4.1 Proper notice of publicparticipation meetings (nature of meeting, time and venue communicated morethan a week before the meeting)
* Prior Dissemination of documents discussed at the meetingto enable meaningful inputs; and
* Transport support to enable our members to attendhearings.
* The commencement of a process aimed amending the MPRDA tobring it into alignment with communities' right to free prior and informedconsent as affirmed in international law, the Constitution, the InterimProtection of Informal Land Rights Act and judgments such as Maledu and Baleni.
While we again extend a polite invitation to engage, we alsoput the Portfolio Committee and DMRE on Notice that should we not receive afavourable reply by the end of May 2022, that MACUA and WAMUA will be left withno other choice but to pursue all available means at our disposal (includingcivil disobedience) to achieve the real inclusion of communities.
Nothing about us, without us!
Meshack Mbangula,
Mining Affected Communities United in Action and the Centrefor Applied Legal Studies
