Open letter on exclusion of mining-affected communities
- MACUA, WAMUA and CALS
Open letter to the DMRE and the Portfolio Committee on Minerals and Energy on their exclusion of communities as core stakeholders in engagements
RE: Community participation in post-Mining Charter law reform
1. As community networks, communities, civil society organisations and progressive organised labour we demand the immediate inclusion of mining communities as core stakeholders in all law, policy and decision-making processes. In particular, we demand equal inclusion in multi-stakeholder engagements on the shape of transformation requirements in the sector following the judgment declaring that the Mining Charter had no direct legally binding effect.
2. The continued deliberate systemic exclusion of mining-affected communities from decision-making processes by Parliament, the DMRE and mining companies, nearly three decades into democracy, despite the constitutional values which promote such inclusion, is a national scandal, and a betrayal of our country’s liberation struggle. This exclusion continues despite court judgments affirming the rights of communities to be consulted, reports by the South African Human Rights Commission and the Motlanthe High Level Panel, both of which highlight this failure, and despite the numerous pickets, protests and thousands of petitions submitted by communities.
3. The exclusion of predominantly black and working-class communities from participation in constructing a policy instrument like the Mining Charter, whose stated purpose is to overcome the apartheid and colonial legacy of mining, is an especially cruel irony. Communities, daily, and at great risk to their safety and well-being, must defend their homes and livelihoods from the kind of dispossession and plunder reminiscent of the worst forms of colonialism and apartheid, while Parliament, the DMRE and Big Business stand by idly counting the profits accumulated off the backs of these marginalised and poor communities. This is worsened by the fact that women in communities disproportionately bear the brunt of the destruction of land-based livelihoods to further mining profits, in which they never share.
4. From the beginning of the process of developing the Mining Charter in 2018, and through all the legal challenges that process faced, our stance has been consistent. First, we have supported the need for transformational instruments that are binding on the mining industry. Second, we supported the strengthening of these instruments to address the needs of mining-affected communities and workers in a more meaningful way, which includes greater ownership shares for the working class (communities and workers), democratisation of community ownership vehicles and measures to address gender inequality. Third, we demanded the inclusion of communities and national community networks as equals who are present in all official multi-stakeholder fora.
4. On the 20th of February 2018, following a mass picket in which mining-affected communities filled the square around the High Court in Pretoria, the Court handed down an order requiring that MACUA, WAMUA, Mining and Environmental Justice Community Network of South Africa (MEJCON-SA) and four individual communities be included as ‘interested and relevant stakeholders for the purpose of consultation on the Charter Consultation process.’
6. However, and despite further pickets and petitions, communities remained excluded from the core engagement structures such as the Mining Charter Task Team and Mining Industry Growth, Development and Employment Task Team (MIGDETT) and were treated as minors who had no legal or humanitarian standing.
7. To challenge this unjust state of affairs, MACUA and WAMUA delivered 50 000 signatures to the Speaker of Parliament in December 2020 calling for an end to the systematic exclusion of communities from participating in the issues that directly affect them.
8. The Speaker of Parliament referred the matter to the Portfolio Committee on Mineral Resources and Energy, who invited MACUA and WAMUA to make a brief presentation to the Committee in March 2021.In that meeting the Chairperson of the PC and the Minister of Mineral Resources and Energy committed to starting a process of engagements with MACUA and WAMUA on their demands. To date, both the Portfolio Committee and the Minister of Mineral Resources and Energy have failed to live up to their commitments while vigorously engaging and promoting business interests in the sector. This is particularly egregious when one considers that the current Minister is a former unionist who for years led the country’s largest mining union and was an activist for the interests of mining-affected communities.
9. Despite the unfulfilled promises, which amount to misleading parliament and the public in general, MACUA & WAMUA nonetheless extended a hand of co-operation via numerous letters to the Speaker of Parliament and the Portfolio Committee and eventually a letter was sent on 21 February 2022 (almost a year after the commitments were made), inviting the DMRE and the Portfolio Committee to engage communities in discussions aimed at pooling the insights of key stakeholders towards legislative and regulatory amendments capable of realising deep transformation in the sector. We were informed by the remarks from Pieter Alberts, Chief Director: Legal Services at DMRE, to the Portfolio Committee on Mineral Resources and Energy on 23 November 2021, that the Department was in favour of ‘parliamentary processes to review the transformative legislative framework to advance the transformation objective’.
10. The response to this letter has been yet more deafening silence. In the meantime, on 18 March 2022, the Portfolio Committee held a meeting at which the Minerals Council and three Labour Unions were provided with an opportunity to present their proposed way forward on transformation law and policy following the afore-mentioned judgment on the status of the Mining Charter. This meeting would have been an opportunity for rectification of past mistakes but again, despite communities and networks being parties in the case, communities were excluded.
11. As communities, civil society organisations and representatives of the labour movement we demand the following:
- The reconvening of the Portfolio Committee meeting on the way forward, this time including national community networks alongside organised labour and industry representatives.
- The inclusion of MACUA/WAMUA, MEJCON-SA and mining-affected communities more broadly as well as civil society partners on multi-stakeholder law/policy engagement, such as MIGDETT;
- The opportunity for communities to provide input throughout the law/policy-making cycle (before the written comments stage) as a core stakeholder; and
- Enhancements to the manner in which broad public participation processes are conducted including:
- Proper notice of public participation meetings (nature of meeting, time and venue communicated more than a week before the meeting)
- Prior Dissemination of documents discussed at the meeting to enable meaningful inputs; and
- Transport support to enable our members to attend hearings.
- The commencement of a process aimed amending the MPRDA to bring it into alignment with communities’ right to free prior and informed consent as affirmed in international law, the Constitution, the Interim Protection of Informal Land Rights Act and judgments such as Maledu and 
12. While we again extend a polite invitation to engage, we also put the Portfolio Committee and DMRE on Notice that should we not receive a favourable reply by the end of May 2022, that MACUA and WAMUA will be left with no other choice but to pursue all available means at our disposal (including civil disobedience) to achieve the real inclusion of communities.
13. Nothing about us, without us!
For further information please contact:
- Meshack Mbangula – National Coordinator of MACUA: 0749775588
- Gilbert Moela – MACUA Media Unit: 079 777 6175
- Robert Krause – Centre for Applied Legal Studies - firstname.lastname@example.org
- Nester Ndebele –National Convenor of WAMUA: 083269570
This letter is endorsed by the undersigned organisations:
- Ekurhuleni Environmental Organisation, Gauteng
- Bakenberg Economic Development Forum, Limpopo
- Mogalakwena Women Empowerment, Limpopo
- Badiredi Development solutions, Limpopo
- Mogalakwena Mining Community, Limpopo
- Monametse Mokgotho Community Engagement Forum(MMCEF), Limpopo
- Mining Affected Community Advocacy Project (MACAP), Limpopo
- Baroka Ba Nkwana Community Engagement Forum, Limpopo
- Jadglust Mining Community Engagement Forum, Limpopo
- Atok Patriotic Brigades, Limpopo
- Mfidikwe Cokamoso Community Development Forum “MBCDF”, North West
- Mfidikwe Community Health Worker's “MCHW”, North West
- Madibana a Mfidikwe Traditional Council “MMTC”, North West
- Jacob Tshisevhe Sports Foundation, North West
- Enviro Vito, North West
- #PayTheGrants, North West
- Ikamva Lam lekum, Gauteng
- Kamogelo HBC, Gauteng
- Community Worship Centre, Gauteng
- Magatammogo NPC, Gauteng
- BLACK SAGORA NPC, Gauteng
- Rand West Community Engagement Forum RWCEF, Gauteng
- South African National Civic Organisation (SANCO), Rand West Gauteng
- REAIKOKA HOSPICE, Gauteng
- SIZABANTU, Gauteng
- CHALK FIVE, Gauteng
- HOPE FOR OUR CHILDREN HFOC, Gauteng
- Community Environmental Forum, Gauteng
- Mphediseng Home Centre - Gauteng
- Insikayethu Community Development Project - Gauteng
- Climate Justice Coalition – (CJC)
- Land Accountability Research Centre (LARC)
- Goldfields Community Forum (GCF)
- Lawyers for Human Rights (LHR)
- Sekhukhune Combined Mining Affected Communities (SCMAC)
- Southern Africa Human Rights Defenders Network (SAHRDN)
 Minerals Council of South Africa and Others vs Minister of Mineral Resources and Another (Case Number: 20341/19).
 South African Human Rights Commission Hearing Report on the Underlying Socio-Economic Challenges of Mining-Affected Communities (2018).
 High Level Panel Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (2017).
 Sefikile Community, Lesethleng Community, Babina Phuti Ba Ga-Makola Community, and Kgatlu Community.
 Court Order in the matter of Chamber of Mines and Others vs Minister of Mineral Resources and Others (Case Number: 71174/2017) handed down 20 February 2018.
 Maledu and Others v. Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC); Baleni and Others v Minister of Mineral Resources and Others 2019 (2) SA 453 (GP)