A call to unshackle artisanal miners in South Africa

Artisanal mining is illegal in South Africa, as it is not provided for in primary mining legislation.[1] The MPRDA does provide for a mining permit, which was envisioned to provide for the regulation of all artisanal and small-scale mining (ASM) activities occurring on a sub-industrial scale. However, the onerous obligations of the provisions discourage operators from applying for permits, choosing rather to operate informally (i.e. outside of the formal regulatory framework). As a result of the persistent informality of South Africa’s artisanal and small-scale (ASM) sector, existing policies not only fail to address the negative impacts of ASM,[2] but the opportunity to create meaningful employment is missed.

Over the last decade, the mining industry has experienced a downturn and a consequential decline in commodity prices. [3] In response, numerous mining companies in South Africa attempted to cut their operating costs by restructuring operations, cutting labour costs and closing down mines that were no longer profitable. Usually, the mineral reserves in these mines are not diminished completely, but the cost of extraction for owners is too high. Since the mine closure certificate is often only issued long after mining operations have ceased, if at all, an environment conducive to illegal mining activities has been created.

Resources in the closed down mines have become attractive to the Zamazama, a name given to illegal artisanal miners in South Africa.[4] All artisanal or small-scale miners operating outside of the MPRDA’s regulations do so illegally. However, the criminal nature of Zamazama operations, which form part of organised crime syndicates, has resulted in an identity that differs from informal artisanal miners. The Zamazamas choose to work illegally in abandoned or operational mine shafts to retrieve residual mineral ore.

Zamazama operations have continued unabated since 2008, the year investigations into the illegal mining problem began. Now, South Africa’s socio-economic context appears to be driving illegal mining activity more than it ever did in the past. Consistently high unemployment rates and levels of poverty, an influx of immigration, and difficulty in accessing the formal mining sector have contributed to increased Zamazama activities in South Africa’s gold sector.[5] The gold mining sector became the primary target of most Zamazamas because gold mining companies would shut down operations in unprofitable shafts in response to the financial stresses of diminishing gold prices and increased labour costs. This paved the way for Zamazamas to begin exploiting the residual gold ore that industrial methods could not extract.

Although their work is recognised as a form of artisanal mining, the mining of Zamazamas is an illegal activity, often linked to organised crime and associated with criminality and irregular immigration. These miners form part of a much larger syndicate channelling gold into the formal sector, operating with dedicated buyers who have national and international demands to meet. South Africa’s illegal mining market operates in parallel to the formal mining industry. The illegal mining industry reflects the characteristics of a multinational and multi-ethnic business with a global reach, driven by profit. 

More recently, however, an alternative narrative has emerged; one that frames Zamazamas as a skilled workforce, only trying to support their families in an unforgiving economy. Thus far, the approach to illegal mining in South Africa has been strictly punitive, and prioritizes eradication over regulation of artisanal mining activities. This approach has been implemented without a consideration of its socioeconomic basis.

At the heart of the issue are the limitations of the mining permit in the Mineral and Petroleum Resources Development Act (MPRDA).[6] The section 27 permit is intended to cater for all mining activities on a sub-industrial scale, but makes no explicit reference to artisanal or small-scale mining. To apply for a mining permit, an aspirant miner must approach the Regional Officer of the Department of Mineral resources in their area and fulfil specific environmental and financial requirements. Before the South Africa Human Rights Commission’s (SAHRC) investigative hearing on artisanal mining in South Africa, the Department of Mineral Resources insisted that artisanal miners are catered for in the mining permit process. The panel, however, found that the permitting procedure has not encouraged nor increased the number of artisanal mining projects.

The legislation fails because it does not acknowledge that small-scale mining and artisanal mining are distinguishable.^[7] While artisanal miners use hand-held tools and rudimentary methods to extract mineral ore, small-scale miners rely on mechanised equipment and often operate as small business entities in terms of the Small Business Act.[8]. The artisanal operations on the lower end of the ASM activity spectrum are excluded from the regulatory framework, because their particular form of mining is not explicitly recognised.[9] Artisanal miners, therefore, cannot apply for a mining permit. Many Zamazamas, as artisanal miners, choose to operate illegally, but even those who wish to enter the formal sector are barred from doing so because the MPRDA does not accommodate their rudimentary practices.

The lack of regulations for artisanal mining is not the only aspect of the MPRDA that bars ASM participants from entering the formal sector. The second shortfall of the legislation is that the requirements for obtaining a mining permit are too onerous to meet.[10] The MPRDA’s mining permit is supposed to address small-scale activities in the ASM sector, the idea being that the permit's financial and technical requirements are suitable scale of small-scale operations. The issue is that small-scale miners, too can be prevented from becoming formal operators because they often lack the requisite financial or technological means to obtain a permit.

The DMR recognises the shortcomings of the legislation and plans to ‘amend and relax’ some of the mining permit requirements for small-scale miners.[11]  The acknowledgment by the Department validates the argument that legislative amendment is essential for the formalisation of the ASM sector. The Department, however, has not made an explicit commitment to a legislative system that supports the ASM sector and ensures the sustainability and profitability of its operations.

The inclusion of artisanal mining in the MPRDA is essential for the DMR’s Small-Scale Mining Directorate to help miners ‘become legal entities’, as it claims on the DMR website. By maintaining that the range of different ASM activities are accommodated by the MPRDA’s permit provision, an arguably ‘one-size-fits-all’ approach, the DMR is preserving the informality of South Africa’s ASM sector.

Written by Laura-Anne Wilson