“Alone in the Dark”: How the current mining and minerals legal regime continues to fail artisanal and small-scale miners in South Africa

Abstract

Since 1994, the South African government has demarcated the artisanal and small-scale mining (“ASM”) sector for the promotion of the economic participation of previously disadvantaged persons within the country’s broader economy. Various domestic policy documents refer to the ASM sector as one deserving of structural development and adequate regulation. However, to date, the sector still exists and functions on the fringes of the law. This fact has allowed for the under-development of the sector to persist and, out of such under-development, adverse ramifications, including the environmental degradation associated with illegal ASM, the acrimonious relationship between illegal ASM and large-scale mining (“LSM”) and its occupational health and safety concerns. It is such negative consequences of illegal ASM that continue to thrive at the expense of the socio-economic and community-development potential of the sector. In light of the above, this paper seeks to explore the current constitutional, legislative and policy framework upon which the development of the sector ought to be founded. Such a developmental foundation consists of the legislative and policy elements which mirror constitutional ideals. Further, under the over-arching theme of rethinking the minerals and petroleum sector, as touted by the Minerals and Petroleum Resources Development Act and the Mining Charter, certain structural and legislative transformations ought to take place if we hope to transform the ASM sector to what it was initially intended to be.