Critical Infrastructure and Strategic Project Protection: Who Must Protect South Africa’s Mines?

Introduction

South Africa’s mining sector is the backbone of its economy. As the fifth largest in the world, it employs hundreds of thousands of people and generates billions in tax revenues. However, South Africa’s mining sector and its concomitant socio-economic contribution have been threatened significantly by criminal activity, to an extent that the sector continues to experience a loss of approximately R14 billion annually in production revenues. Such criminal activity is specifically prevalent within South Africa’s mines.[1] This blog explores who is responsible for protecting South Africa’s mines. It does so by first examining the status of mines under the legal frameworks providing for its protection. Thereafter, it explores who has a legal mandate to protect South Africa’s mines.

The Legal Status of Mines in South Africa

The two primary statutes providing for the protection of South Africa’s mines are the Critical Infrastructure Protection Act[2] (“CIPA”) and the Infrastructure Development Act[3] (“IDA”). Having repealed the National Key Points Act,[4] many of the CIPA’s provisions took effect on 20 April 2022. The CIPA aims to, inter alia, identify critical infrastructure and, through public-private cooperation, provide measures to protect such infrastructure from threats.[5]

Section 1 of the CIPA defines critical infrastructure as “any infrastructure which is declared as such in terms of section 20(1)…”. Section 20(1) of the CIPA must be read with s 16(1)(a), which provides that infrastructure is declared critical as long as, inter alia, it is essential for the functioning of the economy. Section 16(1)(a) of the CIPA is further qualified by the imperative to show that the loss or destruction of critical infrastructure will severely affect the functioning or stability of South Africa, the public interest or national security.[6] To determine whether a loss or destruction of critical infrastructure could have such an effect, at least one of the criterions pursuant to s 16(2) of the CIPA must be met. In the context of mines, the most relevant criterion is contained under para (a) thereof, namely: loss or destruction of infrastructure which is of significant economic importance. Given that mines are essential for the functioning of the economy and that the destruction thereof could affect the functioning or stability of South Africa’s economy, mines constitute critical infrastructure under the CIPA.

Similarly, as shown below, the legal status of mines under the IDA is that of strategic projects or infrastructure. The IDA provides for the “facilitation and co-ordination of public infrastructure development which is of significant economic or social importance to the Republic”.[7] It makes provision for this by ensuring that projects capable of having a significant socio-economic contribution to South Africa are identified and implemented.[8] As with the CIPA, such projects are identified by defining the terms “infrastructure” or “projects”.

“Infrastructure” is specifically defined under s 1 of the IDA with reference to sch 1 and the draft National Infrastructure Plan (“NIP 2050”). Similarly, s 7(1)(a) of the IDA deems a project to be of significant socio-economic importance provided that it falls within one of the criterions under the numerus clausus of sch 1. As with the CIPA, this provision is qualified by para (b)(i) thereof, which provides that the project or infrastructure must be of significant socio-economic importance. As mentioned, not only are mines of significant socio-economic importance, but they are specifically included under sch 1 of the IDA as strategic projects or infrastructure.

Therefore, although not the sole determinant, considering the socio-economic contribution South Africa’s mining sector is capable of having, mines constitute critical infrastructure and strategic projects under the CIPA and IDA, respectively. The importance of having established the legal status of mines specifically lies in determining who is responsible for its protection in South Africa.

Who is responsible for protecting mines in South Africa?

The CIPA provides that whoever is in control of critical infrastructure, be it public or private persons, must ensure its protection, including all contents and persons present at such infrastructure.[9] While the nature of CIPA is such that both public and private persons are responsible for protecting mines, the obligation falls on the state if private persons fail to do so.[10] Not only should such an obligation naturally be bestowed on the state because of its responsibility to secure the well-being of its citizens and ensure socio-economic development, but also because the state is the custodian of mineral resources for the benefit of all South Africans.[11]    

Similarly, South Africa’s draft NIP 2050 imposes an obligation on the public sector to develop infrastructure to ensure that there is an inclusive, globally and regionally integrated minerals economy. While the obligation to protect critical infrastructure or strategic projects, such as mines, is not expressly imposed on the state under the IDA, the state must ensure that strategic development projects are implemented, monitored and maintained.[12] From this discussion, it further follows that, given the disruption of strategic projects by criminal activity, the inference drawn from the IDA is that the state too is obligated to protect South Africa’s mines. 

Conclusion

South Africa’s mining sector has experienced a surge in criminal activity over the past few decades. The primary target of such activity tends to be South Africa’s mines. Such activity poses a significant socio-economic crisis for South Africa’s national development. The CIPA and the IDA clearly identify mines as “critical infrastructure” or “strategic projects”, which contribute to South Africa’s socio-economic development. While the CIPA expressly imposes obligations on public and private persons to protect mines, the inference drawn from the IDA is that such an obligation falls predominantly on the state. Moreover, imposing an obligation on the state to protect South Africa’s mines to ensure socio-economic development finds support from the grundnorm of all laws, namely: the Constitution. Therefore, as the custodian of mineral resources, the state must protect South Africa’s mines from criminal activity.