As the Covid-19 lockdown came into force, amendments to the Mineral Resources Development Act were quietly pushed through, which effectively strip mining-affected communities of key rights.
In what can be described as a diabolical conjuring of the dark arts of authoritarian governance, the Minister of Mineral Resources and Energy, Gwede Mantashe, published new amendments to the Mineral Resources Development Act (MPRDA) on the first day of the Covid-19 emergency lockdown.
The behaviour of the minister follows a now well-beaten pattern of underhanded dealings with the public dating back to the first attempt to amend the MPRDA in 2012. During this initial attempt to further exclude communities, Section 23 (2A) of the MPRDA, which gives the minister of mineral resources the power to impose conditions to promote the rights and interests of communities in the event of an application (Granting and Duration of Mining Right) that affects their land, the Department of Mineral Resources (as it was then) proposed the deletion of this specific mandate, including conditions requiring the participation of the community, from the existing clause.
Mining-affected communities, spurred on by the awakening brought about by the Marikana massacre, opposed these attempts at excluding them. After seven years of ongoing struggle (protests, legal challenges and advocacy) against the Department of Mineral Resources and Energy (DMRE) and various ministers’ attempts to exclude communities, the department was eventually forced to concede ground to mining-affected communities. But as events have shown, the DMRE was only prepared to concede on the idea of consultation, but would employ all manner of dark arts to avoid treating the citizens of the country as dignified persons who have the right to consent on issues that affect them.
The DMRE published the draft regulations late in December 2019 as most people were heading off to holiday, and then announced a consultation process at the last minute and without providing adequate notice to interested and affected parties.
In subsequent “consultations” and submissions to the DMRE, organisations such as Mining Affected Communities United in Action (Macua) and the Centre for Applied Legal Studies, the Bench Marks Foundation and others, all pointed to the fact that the regulations did not meet the threshold of consent demanded by the Constitution and courts and merely sought to provide an appearance of consultation without dealing with consent.
In an unexpected breach of the trust that had been built up between Macua and the DMRE, Macua was alerted by a whistle-blower inside the DMRE that public consultations would commence on 9 March 2020 without notice to the public. Only when we confronted the DMRE did they confirm the consultations and venues. The consultations were to take place between 9 and 20 March 2020.
The first meeting in Newcastle on 9 March was abandoned after community members expressed their rejection of the amendments and the amendment process. In Kathu two days later, the DMRE seemed more prepared to shut down the voices of the people and used the police to intimidate and arrest one of our activists who attended the consultations.
The consultations in Mtubatuba, Kriel and Emalahleni were all called off at the last minute as the DMRE tried to evade the will of the people. In all these provinces, Macua spontaneously marched to the DMRE offices to demand answers. But none were forthcoming.
Macua eventually wrote to the DMRE on 13 March, asking for clarification on the consultation process. The organisation has still not received an official explanation for the reasons that the consultations were held without public notice and then summarily cancelled without notice when citizens began rejecting the amendments.
The following week the Covid-19 emergency struck, and we fully expected that this process would stand down until we were able to engage as a society in a free and transparent democracy. After all, consultation, indeed meaningful consultation, is the bedrock of our Constitution and this has been affirmed by the Constitutional Court on numerous occasions.
And yet, the minister felt that it was acceptable to publish regulations which not only deny the rights of citizens to be consulted but undermine the very constitutional democracy for which so many have died and sacrificed.
The minister has thus far faced significant challenges with regard to the right of citizens to be consulted and appears to have camped down in the legal cul-de-sac in which he appears to be dead set on defending the rights of capital over the rights of citizens.
The minister first faced defeat in court when Macua and others won in the Pretoria North High Court and forced the minister to engage in extensive consultations on the Mining Charter. Despite losing in court, the minister proceeded to put together a sham consultation process and rammed through the Mining Charter despite vociferous opposition from communities affected by mining.
The minister lost again later that year, when the same court ruled that the Xolobeni community were to be fully and meaningfully consulted, in order for them to provide their free prior and informed consent before mining commenced on their land.
The DMRE has told us during meetings with them that they intend to appeal the Xolobeni judgment, and yet 16 months later, the DMRE appears to be no closer to an appeal than they were when they lost the case. In the meanwhile, the DMRE has decided to adopt a kragdadigheid strategy in which they continue to force through legislation and amendments in disregard of the wishes of those who are directly affected.
The behaviour of the minister and the DMRE during a time of peace would most surely invite the censure of the courts in most circumstances. Is it any wonder that a minister who does not feel that he is accountable to the citizens would, like a thief in the night, publish regulations under the cover of an emergency?