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Author: Tracy-Lynn Field, Professor of Environmental and Sustainability Law, University of the Witwatersrand
Original article: https://theconversation.com/illegal-mining-clampdown-in-south-africa-treating-desperate-people-like-criminals-is-an-injustice-legal-scholar-244062
Illegal artisanal gold mining in South Africa is in the spotlight again. Under Operation Vala Umgodi (“plug the hole”), South African authorities have since December 2023 been trying to disrupt the illicit gold mining economy by cutting off water, food and other supplies to the miners working underground.
The operation is an attempt to “stamp the authority” of the state after a series of criminal incidents in 2021 forced the government to confront the illicit gold trade as a threat to national security.
In my view, the government’s approach, which sees all artisanal mining through a criminality lens, is inappropriate and won’t work. The government’s approach ignores the context in which artisanal mining occurs:
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local, national and regional structural poverty (poverty as a systemic rather than an individual issue) and unemployment that will ensure a constant flow of individuals willing to pursue artisanal mining as a livelihood strategy
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an entrenched network of buyers and sellers that channels artisanal gold into the illicit trade
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an insatiable demand for gold.
The illicit trade of gold from artisanal and small-scale mining is now also being seen as a threat to international security. The World Gold Council estimates that as much as 20% of annual gold supply and 80% of gold mining employment comes from a supply chain controlled by criminal gangs and armed groups, abetted by corrupt governments.
The council has called on governments, international bodies and the gold sector to collaborate to stop the exploitation of artisanal miners and to prosecute criminals. Also to prevent illicit profiteering and integrate “responsible” artisanal and small-scale mining “into the legal and viable supply chain”.
Read more:
Artisanal gold mining in South Africa is out of control. Mistakes that got it here
The South African policies and government have repeatedly characterised the artisanal miners, known as zama zamas (hustlers), as criminals. So has President Cyril Ramaphosa.
I am the author of the book State Governance of Mining, Development and Sustainability. I have also supervised a completed PhD project on artisanal mining and have co-published on the topic of artisanal mining as a livelihood strategy.
In my view, the narrative of criminality – when applied to artisanal mining as a livelihood strategy – is dangerous. It amounts to a form of injustice that will do little to resolve the problem of governing the residues of gold on the Witwatersrand basin, straddling the Gauteng, North West and Free State provinces.
Unjust act
Treating all artisanal mining as an act of criminality is unjust.
Firstly, because there is currently no legal way to be an artisanal miner in South Africa. Mining legislation only allows for large-scale mining and “small-scale mining”. Small-scale mining is where the mineral in question can be mined “optimally” within two years. The area must be mined under permit, and not exceed five hectares. All other forms of mining are illegal and an “offence” under the law.
However, small-scale mining is a misnomer. The cost of cutting through the red tape to get a mining permit puts this out of reach of the vast majority of South Africans.
In 2022, the government proposed an artisanal and small-scale mining policy as a step towards formalising the sector. However, the policy fails to address several “grey areas”. These include whether artisanal mining permits could exceed five hectares, and whether large-scale mining rights could also be granted over areas designated for artisanal mining.
In addition, its proposals have not been put to work through amendments to the mining legislation. Anyway, this policy would be of little help to artisanal and small-scale gold miners. That’s because “artisanal mining”, as defined, is limited to rudimentary mining methods to access mineral ore “usually available on surface or at shallow depths”.
The crime of illegal mining is therefore a statutory offence and will likely remain so until the 2022 policy is revisited. When zama zama miners commit harmful and anti-social crimes, such as murder, rape, robbery and theft, or even other statutory offences such as tax evasion and money laundering, they must be arrested and prosecuted. But it is unclear how the activity of artisanal mining, if formalised and regulated, could harm society.
The narrative of criminality is also unjust because according to section 35 of the constitution all accused persons are innocent until proven guilty in a court of law. Upholding the rights of arrested, detained and accused persons is a fundamental pillar of South Africa’s democracy.
Finally, the narrative of criminality is dangerous. It has a dehumanising effect that oils a slippery slope, whereby miners come to be seen as less than human. This must be resisted. Everyone’s humanity must be respected as a matter of principle. South Africa’s proud constitutional tradition rests on human dignity.
Problematic narrative
This narrative of criminality – directed at the actors at the bottom of the supply chain, artisanal gold miners – does little to resolve the real problem, which is how the state should control and govern mining activities targeting the remnants of gold in ownerless, derelict or abandoned mines and benefit from the tax revenues.
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Senegal’s small scale gold miners still use poisonous mercury: how to reduce the harm
There may also be arguments regarding the effectiveness, efficiency and sustainability of a criminalisation approach. The South African state will need to continue “stamping” its authority on artisanal and small-scale mining as an illegal trade for years to come. But for reasons of justice, it is time to desist from characterising artisanal and small-scale gold miners as criminals.