October 2022
Dear Friends, on 18-19 October, the Bench Marks Foundation held its annual conference on the burning issue of mine closure. The two days meeting was attended by mining affected communities, activists and other “stakeholders”.
Mpho Matsemela, a member of the SnakePark Cerebral Palsy Forum, attended the conference for the first time: “My experience at this conference gave me more information about illegal mining and that not everyone who is a zama zama is a criminal. Now I know about artisanal miners and the struggle they encounter on daily basis” Zethu Hlatshwayo, a spokesperson for NAAM Khuthala Environmental group from Wesselton town Ermelo in Mpumalanga, said said he was intrigued by Dr Louis Snyman from CALS and the working group session about artisanal mining and closure.
This edition brings to you some of the key contributions from the conference as well as the Report on the Jagersfortein Tailings Desaster. Please read and pass it on!
· OPINION ·
Why a systemic approach to mine closures is an urgent necessity
The Bench Marks Foundation has just completed a successful Mine Closure conference and the outcomes are devastating. It was entitled Mine Closures: the Burning Issue of our Time. Writing a short piece on what is wrong with the lack of effective mine closure and how to fix it is not the subject for an article but a book. Or to put it differently: if it was easy, it would have been done already. What is clear is that in South Africa, despite or because we have had over a century of capitalist (and at times imperialist) mining, we have the problem of mine closure.
According to many experts, this problem is multilayered and I will just touch on a few pointers to open the discussion.
The first problem relates to the poor policy and laws that may exist. A year ago, the authorities put out for comment the draft Mineral and Petroleum Resources Development Act: National Mine Closure Strategy (2021) but this has not been finalised and is not even a conversation starter. It does attempt to make the right noises. Let me quote from the document: “Mining can have profound adverse impacts on the biophysical and socio economic environments. The closure of mines typically results in often irreversible environmental degradation and economic hardships in mining-dependent communities, most visibly in areas local to the mining activity. The closure of mines further results in the externalisation of the environmental degradation to the social economic detriment to the communities local to the mining site”.
Yet the role of mining communities in these discussions and in other strategic platforms and structures is never addressed. The absence of communities in this process, and in others in the life of mines, renders it flawed. Who will speak for the communities, the water and the plant life? These issues must be addressed because, as things stand, the failure to close mines lies at the centre of the renewed hatred and violence against foreigners.
In the most recent news, the 14 suspects arrested in connection with the gang rape of eight women in Krugersdorp have been acquitted. The media reports that these miners will now have to face a charge of contravening the Immigration Act whilst the charges of rape, sexual assault and robbery with aggravating circumstances have been dropped.
Secondly, and related to the above, I agree that mine closure presents economic opportunities to the unemployed, however the failure to link this sectoral economic risk and benefits of mining into an overall but yet non-existent national development strategy. The lack of strategy is related to a lack of political will to be bold and engage the “nation” into discussing what a national developmental strategy would look like now.
Thinking that what Mariette Liefferink calls the “most common practice”, that is, “pass the parcel” would create or retain jobs is misleading. According to this approach, when the old owners of a mine near its end do not find mining profitable for them, they then sell it off to “less resourced companies who will relieve them of the responsibility and liability of dealing with the problems of closure”. From our experience, this is usually a Black empowerment company which helps to evade political responsibility.
This pass the parcel approach to the custodianship of the closure plan allows for mines to end up in the hands of the weakest companies who neither have the resources, will or intention to manage closure responsibility. Futhi Nxumalo (2022) explained the logic behind this at the Bench Marks Conference thus:
“The mineral assets are often acquired by junior mining companies as either new entrants or companies expanding their mining portfolio. The regulator favours the acquisition and transfer of mining assets to another operator, thus discouraging mine closure in favour of ‘saving jobs’. In some instances, there are legitimate reasons why mining companies choose to transfer mineral assets to other companies, where closure is not always the only or preferable option and mineral assets can be transferred to operate as late-life mines”.
In these matters, whilst trade unions are consulted, the mining communities are ignored and their experiences of loss and failed promises of Social and Labour Plan delivery not factored in. This is largely due to the overriding concerns of the profitability of the mine to the detriment of the losses and impacts on the disenfranchised mining communities.
Thirdly, there are issues of the different regimes that govern mine closure. Our leaders often praise mining for contributing to the GDP, but their winding up processes are not aligned with other corporations. Most corporations are closed under the Companies Act, but mining falls under the MPRDA regime, which appears to be a weaker standard as I argue in this piece.
Fourthly, there is the thorny issue of preparations for mine closure which begins from the first day mining commences. Yet the preparations for this, the transparency and monitoring of it by the department is non-existent. Of course, it was worse under apartheid, but this praise is hollow as the problem persists and is the cause of new pain.
At the Bench Marks Conference, the Chairperson of the portfolio committee MP Luzipho pointed out that where corporations fail, the state has to step in. He had earlier pointed out, in relation to Rehabilitation funds, that they have “allegedly been misused in some instances, such as the recent allegations regarding Optimum Mine wherein about R1.7 billion has allegedly been misused from the Rehabilitation Trust.
Elaborating on the “Business Rescue Processes” when corporations “fail, resulting in huge liabilities for the State,” Luzipho proffers examples to buttress his argument. “Take the case of Mogale Gold has environmental liability of R383 561 751.88. During the Committee oversight visit in Gauteng/Krugersdorp in July 2022, it was reported that the mine had only provided financial provision of R2 600 000.00 by bank guarantee (guarantee number: M423997) issued by Standard Bank on 11 July 2003. Thus, there is a shortfall of R380 961 751.88. There is a high possibility that the State will be responsible for the shortfall”.
Mariette Liefferink concurs that, where there are shortfalls, “the state will inherit these liabilities if the mines are finally liquidated.” But she goes further to say that the DMRE has “failed to implement effectively and carry out the intentions of Parliament to ensure that all mines rehabilitate the damage they cause. Changes to the mining law were made by Parliament after 2002 to ensure that in mining, as elsewhere, the polluter must pay. The new laws have not proven effective in avoiding this situation where the state and the taxpayer still ends up paying for the environmental harm caused by mining”.
A final concern for many from the Auditor General to CSOs and the wider society has been the failure to implement even the most basic functions as per the laws governing mine closure. This is largely due to the lack of capacity of the DMRE and as we believe the exclusion of those communities living near minings or those so-called mine host communities.
When the One Environmental System was introduced in 2015, many believed it would be empowering and give more rights to other departments having responsibility in the mining cycle. Many years later, it looks like the attempts at harmonising the MPRDA, NWA and NEMA under the three regulatory authorities has been ineffective. “The three regulatory authorities are still functioning in silos, which is ineffective for regulation and compliance enforcement in the mining industry. Secondly, there is a deficiency of skills and knowledge within the regulator’s office,” Ms Futhi Nxumalo told delegates at the Bench Marks Foundation Conference.
The attempts to resuscitate this structure must include civil society groups, and in particular mining communities, giving them the full and equal right to participate and make decisions.
To end, enforcement is tough and must – at least, in this stage of the crisis – involve law enforcement agencies as the impact on many communities is real and painful.
Lt General Mawela Gauteng police was right when he said to the public in August 2022, that the police cannot intervene when the corporations and the authorities do not close mines properly. We must get the debate deepened and widened. The Bench Marks Foundation Conference was historic in that it was hosted by civil society. The challenge now is not to drop the ball and ensure that we take this over the line. The authorities have said they are willing to work with us. We know we have to organise and fight to ensure that the door is not closed in our faces.
By Hassen Lorgat
ARTICLES
Futhi Nxumalo: “Mine closure is the elephant in the room”
Thank you to Benchmarks Foundation for inviting me to come and share some of my research findings on mine closure in the context of South Africa. In the past few years, I undertook a PhD research study on mine closures in South Africa.
The mining regulator is reluctant to close mines and issue closure certificates. The mining regulator’s failure to acknowledge that mining is temporary and that mine closure is a process in the mining life cycle is short-sighted. There is a dearth of research on the extent to which current mine closure regulatory frameworks take cognisance of new approaches to post-closure land-use (PMLUs) outcomes. Furthermore, there is limited literature regarding to what extent PMLU choices and progressive rehabilitation in the coal mining industry are driven by compliance with the legislation.
Futhi Nxumalo’s full input is available here.
Moses Cloete: “Working together in the spirit of love and mutual caring in the struggle for justice”
“We have learnt that we are all dispensable and that working together in the spirit of love and mutual caring in the struggle for justice is indispensable.
We have learnt the importance of technology as a tool that may at times help us to work better. If all things were equal, we would have taken much longer as an organisation to migrate to these technologies. And indeed having hybrid conferences – like this one – unite us across the globe and cut out unnecessary travel. As we leapt into a new phase of communications we are aware of it benefits but also of its limitations. We are aware of the digital apartheid – a divide that still leaves the poor and working people unconnected and without “data” that is the new “currency”.
New technologies are not neutral as the intrusion of corporate and state spying on us in all our platforms shows. It is clear that we are on the menu and being mined by big data for profits and control.
We have to seriously think of going to social conference and communications platforms that are Open Source and not run and owned by corporations…
Working smarter means working in freedom and without constraints of whatever kind. You will see in this conference some of the key highlights of our work to be presented later by our own teams.”
Click here to continue reading Moses Cloete’s full input.
Mariette Liefferink: “The parcel approach to avoid closure commitment”
One of the most common practices for mining companies avoiding their closure commitment is pass the parcel, that is, the selling of mines close to closure on to less resourced companies who will relieve them of the responsibility and liability of dealing with the problems of closure. This pass the parcel approach to the custodianship of the closure plan allows for mines to end up in the hands of the weakest companies who neither have the resources, will or intention to manage closure responsibility.
The complex corporate structures of mining companies obfuscate responsibility for closure. Listing mining companies currently have the option of exiting a liability escalating venture by changing the controlling interest of the corporate entity holding the right. There is no state oversight of this process at present.
To read Mariette Liefferink’s full input on mine closure, please click here.
Sahlulele Luzipho: “17 years to close all the remaining holes”
“The mine closure process is an expensive exercise hence it becomes a challenge, moreso in abandoned mines. Just for closing holings, not the mines, Mintek told the Committee in August 2022 that with the annual budget allocation of about R140 million to it to close open holes which are being exploited by illegal miners, it would take 17 years to close all the remaining holes.
The Committee on Mineral Resources and Energy, Home Affairs and Police recently finished conducting oversight on illegal mining, in five provinces (share your lived experiences and the consequences of mines that are not closed). We cannot shy away though from the fact that, whilst the MPRDA regulates the mine closure process, enforcement aspects have lacked.
Mining rehabilitation funds have allegedly been misused in some instances, such as the recent allegations regarding optimum mine wherein about R1.7 billion has allegedly been misused from the Rehabilitation Trust”.
Read here Sahlulele Luzipho’s full input.
THE MEET - UP
A meeting place to learn about organisations, networks, movements and people resisting injustices and whom we work with.
National Association of Artisanal Miners (NAAM)
By Celaai Mntambo
ABAVUKUZI, that is the motto of the National Association of Artisanal Miners. For those who do not speak any of our Nguni languages, the motto means “we are working to reclaim our dignity”.
This story has been in the pipeline for a while and we were excited to meet up at the annual Bench Marks Conference. I met and chatted with the NAAM leaders, starting with the association’s spokesperson, Zethu Hlatshwayo, based in Ermelo (Mpumalanga). Formed on September 4 2019, NAAM is an association of artisanal miners working towards “formalising and legalisation of artisanal mining in South Africa”.
I asked Zeth what were his take-aways from the conference. He replied: “This was my first Bench Marks Conference and l like what Dr Louis Snayman from the Centre for Applied Legal Studies (CALS) had to say in the session about what to do about mine closures.
So, my take away from the amazing and well-organised conference was the need of organising the NATIONAL COMMUNITIES COUNCIL. This is a powerful idea as it would give us greater unity to speak to the authorities. Moreover the accommodation and programme, including organisers, was out of this world. Aluta Continua.”
The discussion moved quickly onto NAAM and its programmes.
NAAM wants to build relationships and partnerships with artisanal miners and develop the urgent need for programs on artisanal mining. It wants the government to recognize the association as the representatives of artisanal miners in South Africa.
NAAM says that the government does not recognise unregulated artisanal mining in the current legislation: “It seems like there is a lack of political will and we insist that the president sign the bill [Draft Artisanal and Small-Scale Mining Policy] into law.
Even though the bill was published, it is being delayed and artisanal miners are attacked and arrested. This is an attempt by government officials who still want to see our communities living in poverty.”
The National Association of Artisanal Miners wants artisanal mining to be legalised, their aim is for the government to give them permits to work because artisanal mining alleviates the high rate of poverty in our country.
“Thousands of men, even women, are pushed by high poverty levels and unemployment to risk their lives to pursue unregulated artisanal mining. We want the government to recognize the growth and the potential artisanal mining offers both socially and economically.”
I then turned to Millicent Shungube. I was pleased that NAAM is not a males only organisation. She is the Women’s National coordinator and she told me that women go through a lot of problems in the field because it is mainly a male-dominated “sector”. Women somehow feel that men are entitled to the mineral and must work under them or with them while trying to be independent.
“It is frustrating because it is women who bear the burden of taking care of our children back at home. I will motivate women to tap into the field of artisanal mining because I believe in equity of all minerals’ wealth belongs to all despite gender.”
Furthermore, she told me that “the DMRE does not take us seriously. We demand that we be given permits to undertake small-scale mining. It is a real struggle to work as an artisanal miner when the law does not recognise us,” said Shungube.
The national coordinator Paps Lethoko agreed with his comrades and insisted that the government move quickly on legislative reform. “Despite the fact that they contributed and advocated for the formalisation of the Artisanal Mining and Small-scale Mining bill, which was published on the 28th March 2022, artisanal miners are still discriminated against in our country.”
The formalisation of this sector will make people stop criminalising artisanal mining. Every miner must be registered, and must be in uniform. They will do this by engaging communities with outreach programs so that they will be able to distinguish between a criminal and an artisanal miner.
I left the conversation inspired. The government must move on this, as NAAM says.
The association wants to open branches around South Africa where artisanal mining exists so that they can fight against the negative stigmatisation of artisanal mining.
Due to the lack of resources, National Association of Artisanal Miners operates a satellite office in Ermelo Mpumalanga and in Klerksdorp.
For further comments, contact :
Zethu Hlatshwayo (National spokesperson) 082 930 9312
Papa Lethoko (National Coordinator ) 076 028 0187
Millicent Shungube (National Women’s Coordinator) 076 258 7095
USEFUL RESOURCES
📖 REPORT ON THE JAGERSFONTEIN TAILINGS DISASTER: Jagersfontein sadly is yet another example of corporate impunity. This report confirms many of the long-held propositions from the Bench Marks Foundation to the mining industry and the Department of Mineral, Resources and Energy concerning the management of tailings. We launch this report in the interest of transparency and accountability, and hope that those responsible will be brought to book and that in the end justice will be done.
Find here the full report.
📖 Publication of the Draft National Mine Closure Strategy 2021 for Public Comments: For further study and action. Find it here.
Moses Cloete serves as the editor at large of this edition. Unless otherwise indicated the writing and presentation of the Bulletin is by Hassen Lorgat. Marta Garrich helped with additional editing and layout of the newsletter. Simo Gumede is responsible for the members and partners database management.