LEADLawEnvironment and

DevelopmentJournal

VOLUME

9/1

REGULATING MINING IN SOUTH AFRICA AND ZIMBABWE: COMMUNITIES,THE ENVIRONMENT AND PERPETUAL EXPLOITATION

Tumai Murombo

ARTICLE

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This document can be cited asTumai Murombo, ‘Regulating Mining in South Africa and Zimbabwe:

Communities, the Environment and Perpetual Exploitation’,9/1 Law, Environment and Development Journal (2013), p. 31,available at http://www.lead-journal.org/content/13031.pdf

Tumai Murombo, Associate Professor, School of Law, University of the Witwatersrand, Private Bag X3,Wits 2050, South Africa, Email: Tumai.Murombo@wits.ac.za

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* Associate Professor of Law (Wits): LLB (Hons) University of Zimbabwe, LLM (Cape Town), LLM (Pace), PhD cand (Wits).

ARTICLE

REGULATING MINING IN SOUTH AFRICA ANDZIMBABWE: COMMUNITIES, THE ENVIRONMENT

AND PERPETUAL EXPLOITATION

Tumai Murombo*

TABLE OF CONTENTS

1. Introduction and Historical Context 331.1 The Regional Context – Initiatives to Reform the

Extractives Sector in Africa 33

2. Mineralogy of South Africa and Zimbabwe: A Socio-economic Backdrop 35

3. Impact of Mining on Community Livelihoods and the Environment 37

4. Legal Regulation of Mining in South Africa and Zimbabwe 394.1 A Brief History of the Legal Systems 394.2 Post-Colonial Mineral Policy Reforms 414.3 Indigenisation or Nationalisation: The Inconclusive Debate 43

5. Manifestation of Challenges to Legal Reforms 455.1 Mining Revenues, Land Rights and Community Exclusion 455.2 In Defence of the Environment and Communities 48

6. Conclusion 49

1INTRODUCTION AND HISTORICALCONTEXT*

The extractive or mining industries generally havelong been touted as key to anchor ‘development’ or‘economic growth’ to alleviate poverty in developingcountries. No doubt extractives underpin mosteconomies in Africa.1 However, since emergingfrom colonisation, many developing countriescontinue to struggle to meet their developmentambitions and to alleviate poverty, whilesimultaneously having to contend with a myriad ofproblems caused by extractive processes. From being‘the robbed’ to ‘owners of natural resources’, mostpost-colonial states have not independentlydeveloped models to sustainably use naturalresources. Over time, with the need to attract foreigndirect investment (FDI) and foreign extractivescorporations, developing countries have had to towthe regulatory and governance line chanted by globalactors.2 Often, this is clothed within the discourseof good governance and the rule of law underpinning

structural adjustment programmes.3 Theconsequences of this post-colonial development andapparent failure of extractives regulatory reforms4

include the growth of a civil society body thatadvocates transparency and sustainable use of naturalresources. It is hoped that the latter approach willaddress the continuity of exploitation and sufferingof mining communities.

The purpose of this article is to discuss key issues inthe mineral extractives industry in developingcountries using the examples of South Africa andZimbabwe. Firstly the discussion is contextualisedthrough a general brief overview of mining andextractives regulatory developments in Africa.Thereafter the legal framework for mining in SouthAfrica and Zimbabwe is analysed drawing insightson how entrenched are exploitative colonial mininglaws. The article highlights how this lack of reformis fuelling a resurgence of the debate onnationalisation and indigenisation of the miningsector to further the socio-economic objectives ofdeveloping countries. The deficiencies of the currentextractives regulatory frameworks manifest throughdifferent challenges. These are discussed in thecontext of recent and on-going upheavals in SouthAfrica and Zimbabwe. The article concludes withsuggestions on how environmental and mining lawcan play a better role in enhancing the sustainablelivelihoods of mining communities and ensuring thatmineral rich countries benefit from their resources.

1.1 The Regional Context –Initiatives to Reform the ExtractivesSector in Africa

Recent developments in extractives regulation inAfrica offer insights on how the rights of localcommunities affected by mining can be protected.The African Commission on Human and Peoples’Rights (ACHPR) established a Working Group of

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* This article is the revised version of a background paperprepared for the Learning Route Programme: ‘Learningfrom the impact of the extractive industry in Latin Americaand Southern Africa – Phase II South Africa – Zimbabwe’coordinated by Procasur and funded by the FordFoundation, held between 19-31 March 2012 in SouthAfrica and Zimbabwe. Feedback from Route participants,comments by journal reviewers, and the research assistanceby Paradzai Garufu PhD candidate, School of Law, WitsUniversity all proved invaluable. Views expressed do notrepresent the views of Procasur or the Ford Foundation.

1 Abbas M. Sharaky, Mineral Resources and Explorationin Africa (Paper presented at the International Conference‘The Revolution of 25 January 2011 and the future ofEgypt’s relations with the Nile Basin States’ organisedby the Cairo University, 30-31 May 2011), available ath t tp : //a f r i c an . cu . edu . eg/Dr_Abba s/Paper s/Minerals_2011.pdf and Willem Odendaal and ShadrackTjiramba, The Extractive Industries TransparencyInitiative (EITI) in Southern Africa: The Case of Namibia5 (Report prepared for The Open Society Initiative forSouthern Africa by Legal Assistance Centre, 2007),available at http://www.sarwatch.org/sarwadocs/EITI_Namibia_CReport.pdf.

2 See generally World Bank, World Development Report:A Better Investment Climate for Everyone (Washington,DC: World Bank, 2005).

3 Sam Wilkin, ‘Can Bad Governance Be Good forDevelopment?’ 53/1 Survival: Global Politics and Strategy61, 62 (2011). He argues that economic development mayflourish in bad governance in some cases, which is whythe international financial institutions should change theirapproach to development assistance.

4 Bonnie Campbell ed, Mining in Africa Regulation andDevelopment 1 (Ottawa: Pluto Press, 2009).

Experts on Extractive Industries, Human Rights andthe Environment in 2009 with an extensivemandate.5 This Working Group will look at theintersection of extractive industries includingmining, oil and gas, human rights violations andenvironmental sustainability on the Africancontinent. The Working Group was constituted inthe wake of the persistent association of theextractive activities with human rights violations andenvironmental degradation.6

Other major regional and continental developmentsinclude the crafting of the African Mining Vision.The United Nations Economic Commission forAfrica (UNECA) has produced significant reports.Similarly the African Development Bank (AFDB) hasundertaken research into the economic contributionof the extractives sector to development. The AfricanUnion (AU) together with the AFDB, UNECA,UNIDO and other institutions produced the AfricanMining Vision, which states that:

The key elements to an African Mining Vision, thatuses mineral resources to catalyse broad-based growthand development need to be, from looking at successfulresource-based development strategies elsewhere, themaximisation of the concomitant opportunitiesoffered by a mineral resource endowment, particularlythe ‘deepening’ of the resources sector through theoptimisation of linkages into the local economy.7

While intergovernmental regional institutions havebeen driving broad policy on the role of theextractives industry in Africa, civil society has been

equally vocal and has been mobilising against theharmful impacts of the extractives industry in Africa.There is a growing movement by civil societyenvironmental organisations towards joining forcesto share skills and experiences and strategies on howto protect the environment, indigenous or localcommunities and livelihoods from bad practices inthe extractives sector. One of the key objectives ofcivil society initiatives is to promote transparencyand accountability in this sector. A number of civilsociety organisations are working to encourage theirgovernments to adopt the Extractives IndustryTransparency Initiative (EITI) and partake in thePublish What You Pay (PWYP) campaign.8

The African Initiative on Mining, Environment andSociety (AIMES) is another initiative formed by anetwork of African civil society organisations tolobby and advocate for the rights of communitiesaffected by mining. Recently at their 13th AnnualStrategic Planning Meeting the coalitionreconfirmed its resolve to promote policies thatensure the optimum exploitation of mineralresources without degrading the environment andresulting in human rights violations.9 Civil societyprovides the counter-narrative to the dominantconception that mining is the hope of Africa.10 Thiscounter-narrative is often attacked by developing

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5 ACHPR/Res 148 (XLVI) 09: Resolution on theEstablishment of a Working Group on ExtractiveIndustries, Environment and Human Rights Violationsin Africa, available at http://www.achpr.org/sessions/46th/resolutions/148/. The Working Group wasestablished by the African Commission on Human andPeoples’ Rights at its 46th Ordinary Session held inBanjul, The Gambia from 11 to 25 November 2009.

6 Id.7 African Union, African Mining Vision (2009), available

at http://www.africaminingvision.org/amv_resources/AMV/Africa%20Mining%20Vision%20english.pdf. TheAfrica Mining Vision is informed by the outcomes ofseveral initiatives and efforts made at sub-regional,continental and global levels to formulate policy andregulatory frameworks to maximize the developmentoutcomes of mineral resources exploitation.

8 Luca Etter, Can Transparency Reduce Corruption?Evidence from Firms in Peru and Mali on the Impact ofthe Extractive Industries Transparency Initiative (EITI)on Corruption 10 (Master of Public Policy thesis submittedto the Georgetown University, 2012); Shamiso Mtisi ed,Sowing the Seeds of Advocacy Work on Transparencyand Accountability in the Extractive Sector in Zimbabwe(Report on the Multi- Stakeholder Conference onPromoting Transparency and Accountability in theExtractive Sector in Zimbabwe, 22-23 September 2010)and World Bank, Implementing the Extractive IndustriesTransparency Initiative Applying Early Lessons from theField (Washington, DC: The World Bank, 2008), availableat http://siteresources.worldbank.org/INTOGMC/Resources/implementing_eiti_final.pdf.

9 Press release by the AIMES at the occasion of its 13th

Strategic Planning Meeting held in Harare, Zimbabwe,21-24 June 2011, available at http://www.minesandcommunities.org/article.php?a=11030.

10 This was the dominant theme at the recent Mining Indaba(South Africa) held in Cape Town from 4-7 February 2013.The mantra of mining–economic growth (development)-jobs-poverty alleviation is often emphasised by PresidentZuma in his State of the Nation Addresses.

states and mining entities, and labelled a conduit forWestern agendas. Despite this, regionalism is apromising avenue to address some of the local andtransboundary issues in the mining sector. At thesub-regional level the SADC Protocol on Mining11

could be used to harmonise standards on mining,the environment and sustainable development iffully implemented. The challenges posed byextractive activities causing concern for the regionalbodies and civil society are exemplified by specificexperiences in South Africa and Zimbabwe, amongother developing countries. The main extractiveactivity in these countries is mining and therefore itis the focus of this article. In Central and West Africakey issues are additionally in oil, gas, fisheries andforestry. These are beyond the scope of this article.

2MINERALOGY OF SOUTH AFRICAAND ZIMBABWE: A SOCIO-ECONOMIC BACKDROP

South Africa and Zimbabwe are rich in mineralresources yet Southern Africa remains the poorestin the world, based on World Bank and UNDPHuman Development Index statistics.12 Researchexists on the persistence of poverty, and theperpetuation of the relations of production that havemaintained the gap between the rich and the poor.13

During the colonial period droves of labourersflocked to South Africa from Malawi, Mozambiqueand Zimbabwe to work in the mines. Certain socio-economic relations developed then and still subsisttoday. These economic power relations have alsoensured that major mining companies retain a gripon the mining industry and governments thatattempt to open up the sector through variousmethods are treated with uneasy cordiality. Forexample the Zimbabwe Platinum (ZIMPALTS)experience shows the uneasy relationship betweengovernments and mining companies.14 Thecommunity share ownership scheme negotiated bythe Zimbabwe government and traditional leadersand the company may have been a strategy to avoida backlash when the Indigenisation and EconomicEmpowerment law is enforced.15

Literature and statistics abound on the mineraldeposit profiles of African countries, some of whichare world leaders in terms of production and size ofreserves.16 The Marange diamond fields inZimbabwe are reportedly the largest ever found inthe world.17 South Africa leads in platinum,chromium, manganese and other minerals.18 SouthAfrica also produces a lot of coal, most of which islocated in Limpopo and Mpumalanga provinces.Unfortunately the geographic spread anddistribution of mineral deposits in South Africa andZimbabwe, as elsewhere, appears to show that nature

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11 SADC Protocol on Mining, Blantyre, 8 September 1997,in force 10 February 2000, available at http://www.sadc.int/files/3313/5292/8366/Protocol_on_Mining.pdf.

12 World Bank, The World Development Indicators(Washington, DC: The World Bank, 2012) and UNDP HumanDevelopment Report (UNDP 2013), available at http://hdr.undp.org/en/media/HDR_2013_EN_complete.pdf.

13 Some call it the resource curse. See Amy Poteete and AndresM. Gramajo, Overlapping Sectors: Botswana’s InoculationAgainst the Dutch Disease? 8-9 (Arlington, USA: MercatusCenter at George Mason University Working paper 60,2005) and Antonio M. Pedro, Mainstreaming MineralWealth in Growth and Poverty Reduction Strategies 5(ECA Policy Paper No 1, UNECA, 2004). In my viewthe curse is not our resources; the real curse is the capitalistregulatory context in which extractive activities areregulated and undertaken – a curse of capital as it were.

14 Tawanda Karombo, ‘Shock Blow to Implats as MugabeBacktracks’, Business Day, 6 March 2013.

15 N. Madanhire, ‘Share Ownership Schemes a Zanu PFPoll Gimmick’, The Standard, 23 October 2011, cf.Herald Reporter, ‘Govt to initiate Employee ShareOwnership Schemes’, The Herald, 19 October 2011.

16 Thomas R. Yager, ‘The Mineral Industry of South Africa’in 2009 Minerals Yearbook (United States GeologicalServices (USGS), 2011), available at http://minerals.usgs.gov/minerals/pubs/country/2010/myb3-2010-sf.pdf; Philip M. Mobbs, ‘The Mineral Industry ofZimbabwe’ in 2010 Minerals Yearbook (United StatesGeological Services (USGS), 2012), available at http://minerals.usgs.gov/minerals/pubs/country/2010/myb3-2010-zi.pdf and African Economic Outlook 2011 (AfricanDevelopment Bank, 2011).

17 MISA, ‘Zim’s Diamond Deposits Largest in the World’,The Zimbabwean, 18 May 2011 and Vladimir Mzaca andZoli Mangena, ‘Fabulous Wealth in Marange Diamonds’,The Times, 8 August 2010.

18 See Yager note 16 above.

conspired against them in that often deposits lie onor beneath equally (if not more) treasured resourcessuch as water, biodiversity, and protected areaswhere flora and fauna thrive. This reality isillustrative of the difficulties that confront thesecountries on how to balance the use of naturalresources through prudent land use planning andconservation.19 CoAl of Africa’s contested VeleColliery in Limpopo South Africa lies in in a waterstressed area close to a national heritage site ofinternational stature, Mapungubwe. The granting ofthe mining licence was contested and compoundedby lack of regulatory coordination between variousgovernment departments.

Natural resources are a major export and contributorto foreign currency inflows of the economies ofSouth Africa and Zimbabwe.20 This is also replicatedin Botswana and Zambia where diamond and coppermining respectively are central to economicgrowth.21 In addition, mining provides economicopportunities in mineral rich countries.Employment, a semblance of social development,and infrastructure development in some areas areamong the potential returns from this industry.Towns like Rustenburg in the North West Provinceof South Africa and towns lying on the Great Dykein Zimbabwe owe their existence to mining.Regardless of the social repercussions, mining isoften projected as the biggest contributor to jobcreation and economic growth. This view oftenchallenges civil society organisations to substantiatetheir agitation against the evils of natural resourceextraction in certain areas. In South Africa forexample with growing unemployment figures, thejobs proposition is often made to appearunequivocal. Youths relocated from the Marangediamond fields in Zimbabwe yearn for jobs fromthe mining companies operating in the area.

Increasingly, sustainable development is driving legalreforms of the environmental and mining codes.Thus the mining and environmental laws in SouthAfrica have all recently been overhauled to embedgood environmental practices aimed at promotingsustainability. On paper an impressive array of

environmental and sustainable development policiesand laws promise a bright future, but the persistenceof environmental degradation caused by mining;land, water and air pollution; and reduction of arableland for agriculture, are constant reminders of theinherently unsustainable nature of mining. Waterpollution in Mpumalanga Province of South Africa,acid mine drainage (AMD) in the Witwatersrandbasin, Johannesburg; and the constant air and waterpollution from mine dumps in Davidsonville,Johannesburg and Bafokeng are clear examples.Johannesburg is encircled by mine dumps or tailingsthat leach into the water systems, and in the summermonths blow toxics into the air. Even more complexis the lack of substantive transformation of themining sector in South Africa where the poor,previously disadvantaged groups remainmarginalised and only a few elites have broken intothe sector.

Despite the above challenges, some miningcompanies do promote sustainability by ‘greening’their activities. However, civil society must watchout against green washing and placation by someunscrupulous mining companies. Companies areconceived to maximise profits for shareholders.Recent calls for corporate social responsibility (CSR)and human rights obligations of corporations aresecondary to what corporations were conceived toachieve.22 In the classical Anglo-conception of acompany, a mining company did not primarily existfor public interest purposes of building hospitals,roads, boreholes, and schools for people who werenot shareholders.

The orthodox conception of the company as solelyaimed at profits for shareholders is howeverincreasingly giving way to the good corporate citizenperspective. This view sees companies as existing ina social setting with expanded stakeholders includingthe environment broadly defined. As King wouldput it, the three pillars of sustainable developmentare now the three legs on which a company muststand if it is to survive in the 21st century. Companiesthat still limp on the classical financial (economic)

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19 Pedro note 13 above at 5.20 Sharaky note 1 above at 4.21 Sharaky note 1 above at 1.

22 Modern company law codes are mainstreamingsustainability and companies are increasingly expectedto consider all stakeholders apart from shareholders only.

to impose realistic levels of taxation and rehabilitationfunds, while concurrently demanding andmonitoring transparency in the implementation ofagreements on these issues. The Extractives IndustryTransparency Initiative (EITI)26 and the PublishWhat You Pay (PWYP) networks come to mind.Recently the government of Zimbabwe proposed aZimbabwe Mining Revenue Transparency(ZMRT)27 initiative while the Zimbabwe EnvironmentalLaw Association (ZELA) launched the Zimbabwechapter of PWYP.28 The objective of all theseinitiatives is to try and prevent the adverse impactsof mining which are discussed in the next section.

3IMPACT OF MINING ON COMMUNITYLIVELIHOODS AND THE ENVIRON-MENT

While mining could anchor economic developmentas noted above, minerals have also been oftenreferred to as a curse. This is due to the severalnegative impacts that mineral discovery forebodesfor surrounding communities and the environment.The extraction of minerals can physically damagethe environment and natural resources affectingwater resources, forests and wildlife on which local

leg would inevitably fall for want of social andenvironmental acceptance.23

Quite questionable though is whether this has fullysunk into the thinking of the majority of the directorsand shareholders of big mining corporations?Widespread evidence of disregard of their social andenvironmental responsibility by mining companiesand artisanal miners appears to show that the‘sustainable mining’ concept may be a smokescreencovering the flagrant global capital interest in reapingprofits from the developing countries of the South.For instance, in South Africa many mining companiesoperate without water use licences, and some commencemining without all the necessary licences.24 NkomatiAnthracite (Pty) Ltd started open cast coal mining inMadadeni, while CoAl Africa opened the Vele Minewithout water use and environmental authorisations.Without generalising, there are some companiesworking in good faith to make mining sustainable.25

In their favour also, mining companies have no legalduty to fulfil primary state obligations towards thecitizens like providing social amenities and facilities.Is it equitable therefore to expect corporations todeliver public services while they are paying theirtaxes? Is this not an abdication of their socio-economic mandate by the state? Rather the inquiryshould focus on how governments regulate miningtaxation – that is whether the rate of taxation isjustifiable and fair in relation to the social, economicand environmental footprint of the industry.However, where extractive activities disproportionatelyimpact communities, such a duty is created. Civilsociety should not exclusively focus on pressuringmining companies. They must also push governments

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23 Mervyn King, King III Code of corporate Governance(Presentation at the Corporate Governance Workshop,the Mandela Institute of Law, Wits University, held on 9March 2010).

24 As at 18 April 2013 50 mines operated without waterlicenses in South Africa- see Sandra Gore and Helen Dagut‘Streamlining water use licence applications into environmentalmining regulation’ BizCommunity.com 18 April 2013.

25 For instance the mining companies in Bafokeng havecontributed to the development of education throughbuilding schools, while securing the future of localcommunities through share ownership schemes. SimilarlyZIMPLATS has also entered into partnership with localcommunity trusts to leave a legacy of wealth. It remainsto be seen if these community share ownership schemeswill in fact benefit future generations.

26 See Odendaal and Tjiramba, note 1 above on the EITI inNamibia.

27 Launched by the Zimbabwe Government on 2 September,2011 with aim of initiating ‘a national participatory processto promote dialogue and trust among stakeholders in themining industry and enable greater transparency ofZimbabwe’s mining revenues and sector information –asa first step towards Zimbabwe a first step towardsZimbabwe adopting the EITI standard and applying tojoin the global EITI process’. Government of Zimbabwe,Office of Deputy Prime Minister, Zimbabwe MiningRevenue Transparency (ZMRT): A Participatory Process,launch meeting held in Harare on 8 September 2011.

28 The Prime Minister of Zimbabwe also recently called fortransparency in the management of revenue from diamondmining in Marange. Admittedly this call should apply toall natural resources and mining in all areas in Zimbabwe.See ‘Mining Ops in Chiadzwa Impressive: PM’, The Herald,17 February 2012, available at http://www.herald.co.zw/index.php?option=com_content&view=article&id=34219.

communities depend for livelihood. Mining destroysthe environment, reduces arable lands, and polluteswater and the air. Equally the commencement ofmining can cause huge social disruptions and culturalshocks to the local communities.

In South Africa and Zimbabwe most indigenous localcommunities remain dispossessed and marginalised.Often they cannot point to the actors responsiblefor their condition given the flux and change in thedramatis personae from the pre-colonial to the post-colonial state. For instance, in some of thecommunities in Bafokeng, North West Province,South Africa, poverty and disempowerment are theorder of the day while a section of the communitycalling itself the Royal Bafokeng Nation (RBN)29

entered into lucrative contracts with miningcompanies. Similarly the CoAl Africa’s collieryprojects in Vele and Mudimelli occur in one of thepoorest provinces of South Africa - Limpopo. Clearlythis is not just an issue with the actors but also astructural challenge. Often local communities are leftto deal with mining companies instead of the governmentinterceding on their behalf. Thus for instance therelocation of communities affected by mining inMarange to ARDA Transau (Zimbabwe) and theMudimelli communities (South Africa) placed thepeople’s future in the hands of the mining companies.

The effect of mining on society, livelihoods, theenvironment and geopolitics has not changedfundamentally. The actors may have changed butthe drama of the exploitation of Africa’s resourcescontinues unabated. The Bafokeng communities’marginalisation and exclusion started well before1994.30 However, the emergence of democracy,sustainable development and environmentalismtoned down the exploitative nature of mining lawsand policies in Africa generally. The modern mantraof ‘development-through-capitalism’ has seenlinkages develop among mining, poverty alleviation,and good governance. A tour of the Bafokeng areain North West Province, South Africa as well asZIMPLATS, Marange and MIMOSA mining

surrounds in Zimbabwe shows many billboardswhere mining companies claim to be sustainable andchampioning the social infrastructure developmentin their areas. This is visible especially in schools,hospitals and other amenities sponsored by thecompanies. To this end Hilson correctly argues that,

It is a well-known fact that mines can have a positivesocioeconomic impact in local communities.Companies often contribute to the development ofkey socioeconomic infrastructure such as roads,hospitals, schools and housing. Moreover, therevenues accrued from activity contribute positivelyto export and foreign exchange earnings, and at thecommunity level, projects serve as a major sourceof employment for local people, and trigger the riseof a wide range of small businesses such as catering,transport and cleaning services.31

Despite this optimism, questions remain: whethermining can anchor sustainable development inAfrica,32 whether natural resources are the panaceafor poverty alleviation and more importantlywhether the democratic system of government andgovernance ideology underpinning capitalism cansustain these apparently noble dreams? Can theAfrican dream be realised within the contemporarystructure of governance, and relations of power andproduction? Poteete does not seem to agree.33

Conversations and encounters with many authoritieson development theory and globalisation seem tosuggest otherwise. However, others whose worldviews are often nurtured in these very relations ofproduction and system of governance suppose thatit could be possible to make mining sustainable.34

Admittedly there is also much to be said to give hopeto local communities in mineral rich developingcountries. The mixed feelings are apparent if one

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29 Andrew Manson and Bernard Mbenga, ‘‘The RichestTribe in Africa’: Platinum-Mining and the Bafokeng inSouth Africa’s North West Province, 1965–1999’ 29/1Journal of Southern African Studies 25, 46-47 (2003).

30 Id.

31 Gavin Hilson, ‘An Overview of Land Use Conflicts inMining Communities’ 19 Land Use Policy 65-66 (2002).

32 Id. cf. Amy Poteete, ‘Is Development Path Dependentor Political? A Reinterpretation of Mineral-DependentDevelopment in Botswana’ 45/4 Journal of DevelopmentStudies 544, 544 (2009).

33 Id.34 Pedro, note 13 above at 2, and Fred Cawood et al.,

Mining, Minerals and Economic Development and theTransition to Sustainable Development in SouthernAfrica (Mining, Minerals and Sustainable Development(MMSD) Project, September 2001).

interacts with communities affected by mining.Extractive activities are expected to deliver jobs,better living conditions and improved economicprospects for local communities. However, as PeterLeon rightly notes, in South Africa ‘[the] currentapproach to mine communities is not delivering thesebenefits. It presupposes a one-size-fits-all model forsuch communities, despite their diverse needs andcircumstances, and reserves no seat at the regulatorytable for the affected mine communities’.35

In Zimbabwe diamond mining in Marange saw localcommunities being forcibly relocated. While somemembers of the community felt that the relocationbrought a better life, with modern houses andamenities, including moving to a high rainfall areawith better soils; some equally felt short-changed inthat promised compensation had not materialisedwhile there was no certainty regarding land tenure andownership of the houses. Therefore despite the richmineralogy of most Southern African states, the localcommunities living in mineral bearing areas continueto suffer. Civil society initiatives and lobbying to dealwith the impacts of mining must be in addition toeffective legal regulatory frameworks to which thenext section now turns. The regulatory frameworksfor mining in South Africa and Zimbabwe areanalysed to see how effective they are and whetherthey are any different from the colonial laws.

4LEGAL REGULATION OF MINING INSOUTH AFRICA AND ZIMBABWE

4.1 A Brief History of the LegalSystems

Since the discovery of minerals, governments andmining companies have attempted to regulateextractive activities with a view to ameliorating some

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of the impacts discussed above. However, a reviewof the legal regulation of mining in South Africa andZimbabwe (which reflects the situation in manyAfrican developing countries) shows that the focusof the laws and policies was, and remains, to facilitateextraction with little regard to the impacts of miningon the environment, communities and localdevelopment. Self-regulation and corporate socialresponsibility interventions by mining corporationslargely indicate that these were aimed at facilitatingmining rather than as philanthropic communitydevelopment gestures.

The legal systems of South Africa and Zimbabweshare many traits. These commonalities are basedon the spread of the Roman-Dutch common law andpartial Anglicisation by the English. The legal systemtransplanted at the Cape by the Dutch and theEnglish was propagated in Zimbabwe duringcolonisation and to date the ZimbabweanConstitution provides that Zimbabwe’s commonlaw shall be the law applicable in the Cape as at 10June 1891.36 Subsequently this law has beendeveloped by the courts and by legislation made bythe legislature over the years.

As noted previously the regulatory frameworksdeveloped during the colonial era were orientedtowards promoting maximum extraction ofresources. With political conquest also cameconquest over the ‘ownership’ and control ofAfrica’s resources, specifically land and minerals.Political victory spawned an extraction-orientedextractives sector regulatory trajectory. Thus beganthe history of dispossession, marginalisation anddeprivation. Mining laws in South Africa andZimbabwe with a colonial heritage remain in place.South Africa only recently changed the mining codeto incorporate sustainability. In Zimbabwe themining laws remain premised on the colonial modelshell-bent on efficient extraction and trade in mineralresources. In both countries, consciously orunconsciously, local proxies and elites stepped intothe shoes of the colonial powers and multinationalcompanies. Hence the call for indigenisation inZimbabwe and nationalisation in South Africa arenot without merit.

39

35 Peter Leon, ‘Marikana Mangaung and SA’s MiningIndustry’ MiningMX, 30 August 2012, available at http://www.miningmx.com/opinion/columnists/Marikana-Mangaung-and-SA-mining-industry.htm. 36 Constitution of Zimbabwe, 1979, Section 89.

This history of the common law of South Africaand Zimbabwe is important not only because itshaped, but also often distorted, the legal regimesgoverning land tenure, mineral rights, and how theserights are exercised.37 With minimal statutorychanges, the Roman-Dutch law of propertycontinues to govern land ownership and transfer.Under Roman-Dutch law a landowner owned themineral resources beneath her land.38

African customary law is also part of both legalsystems. There was and is no single Africancustomary law, but the legal rules vary dependingon the tribe and culture.39 While there are manyvariants of African customary law, the generalprinciples are comparable. Relevant to this discussionis how customary law governs ‘ownership’ of landand natural resources. Under most Africancustomary legal systems communities often do not‘own’40 the land but only have the rights to use theland. Customary rights are often group rightsgrounded in common property rights and communaluse regimes.41 Delius notes that this conception of‘communistic or communal’ title is ‘misleading andpartly reflects the difficulties experienced by outsidersin understanding or naming African systems, which

resulted in the use of inappropriate comparison andterminology often derived from European ratherthan African history’.42

Often the state owns the land and manages it throughlocal government functionaries together withtraditional leaders. Being the landowner the statethrough traditional leaders has immense powers onwhere local communities live, as well as whereextractive activities are authorised.43 Thus traditionalleaders play a leading role in representingcommunities affected by mining – this they dopositively sometimes, but often they are hoodwinked.44

The relocation of people from Marange inZimbabwe, ZIMPLATS share ownership scheme inZimbabwe, contestation of royalty in Bafokeng andChief Mudimelli of South Africa’s disruptions ofcommunity mobilisation, all show the significanceof the role of traditional leaders and customary law.Currently, the Marange communities that relocatedto ARDA Transau do not have traditional leadersand this mere fact is disempowering and cripplescommunity collective organisation.

The overshadowing of African customary law by theforeign legal systems is relevant given the repercussionson security of tenure.45 The convergence of legalsystems saw the dislocation of local indigenouscommunities’ entitlements to land and mineral rights– an issue never fully resolved in the independent state.46

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37 Elmien du Plessis, ‘African Indigenous Land Rights In aPrivate Ownership Paradigm’ 14/7 PotchefstroomElectronic Law Journal 45 (2011). du Plessis argues thatthe common law distorted the history and understandingof indigenous African land rights and customary titles.

38 Agri South Africa v Minister for Minerals and Energy andothers CCT 51/12 [2013] ZACC 9, 2013 JDR 0770 (CC)para 7, see also PJ Badenhorst, Mineral and PetroleumLaw of South Africa (Wetton: Juta Law, 2012) para 1-7.

39 Sindiso Mnisi, [Post]-colonial Culture and its Influenceon the South African Legal System – Exploring theRelationship Between Living Customary Law and StateLaw (Unpublished PhD thesis, Oxford University, 2007).

40 Ownership is used here in the Western common lawconception of proprietary individual title. The conceptionand understanding of ownership under African customarylaw is quite different from this individualistic western concept.This is one of the customary law concepts heavily distortedduring the process of colonisation and transplantation ofthe common law to Africa. See further Wilemien Wilcombeand Henk Smith, ‘Customary Communities as ‘Peoples’and Their Customary Tenure as ‘Culture’: What We CanDo With the Endorois Decision’ 11 African Human RightsLaw Journal 422, 428 (2011).

41 Richtersveld Community and others v Alexkor Ltd andanother 2003 6 BCLR 583 (SCA) para 18. See alsoWilcombe and Smith, id. at 427.

42 Peter Delius, ‘Contested Terrain: Land Rights andChiefly Power in Historical Perspectives’, in AninkaClaassens and Ben Cousins, Land, Power and Custom -Controversies Generated by South Africa’s CommunalLand Rights Act 218 (Cape Town: UCT Press 2008).

43 Id. Delius gives a convincing account of how chiefsmanaged land in pre-colonial times and these processesat the local level have continued in some African societiesespecially in Zimbabwe. In South Africa the apartheidland policies seems to have destabilized these processesdeeper. See also du Plessis, note 37 above at 56.

44 Samantha Enslin-Payne, ‘Wild Coast King FightsMining’, Business Report, 28 May 2012.

45 Ben Cousins, ‘Characterising ‘Communal’ Tenure:Nested Systems and Flexible Boundaries’, in Claasens andCousins, note 42 above at 116.

46 HWO Okoth-Ogendo, ‘The Nature of Land RightsUnder Indigenous Law in Africa’ in Claassens andCousins, note 42 above at 98 and generally BengwenyamaMinerals (Pty) Ltd and others v Genorah Resources (Pty)Ltd and others 2011 (4) SA 113 (CC).

Currently, issues regarding land redistribution andclaims based on historical customary possession areunresolved especially in South Africa. The Bafokengcase in South Africa is precisely about thiscontestation of customary land title. The issuetherefore is how to balance the interests of thetraditional claimants against the acquired rights(sometimes, but not always, legitimate) under theconquering legal systems? Pending litigation by theLegal Resources Centre (LRC) of South Africaincluding the Bafokeng communities’ land claimsillustrates the intractability of this issue.47 Similarlythere are multiple land claims on the land that CoAlAfrica is mining in Limpopo Province of South Africawith the Ga-Machete, Vhangona and Tshivulacommunities all staking claims. The distortion ofcustomary law and contestation of land ownershiphas continued into the post-colonial state. Mining andland law reforms have done little to rectify these legaldistortions.

Anecdotal evidence shows that usually colonial landdispossession laws reinforced mining laws. Thehistory of colonisation left South Africa andZimbabwe with certain common issues such as landdispossession, marginalised indigenous or localcommunities, and degraded environments, allflourishing in fundamentally flawed legalframeworks. Efforts to reform colonial mining andland laws and policies have been incremental in bothSouth Africa and Zimbabwe, with the former havingdone more work towards wholesale review of themining laws. It was hoped that some of the negativeimpacts of mining could be addressed throughenvironmental regulatory reforms. Butenvironmental law continues to play second fiddleto mining law, thus this has also been ineffective.

4.2 Post-Colonial Mineral PolicyReforms

The above developments saw hybrid regulatorysystems in South Africa and Zimbabwe whereAfrican customary law, legislation and Roman-

Dutch common law co-exist within a hierarchy.48

Since gaining political independence both countriesrevised the imperial mining laws to leverage thecontribution of mining to economic growth.

In South Africa the Mineral and PetroleumResources Development Act 2002 (MPRD) has beenhailed as a revolutionary piece of law promotingsustainable mining and black economicempowerment.49 Despite this hope, and alongsidereform of the mining laws, South Africa hasseriously considered the call to make miningsustainable by introducing environmental laws thatseek to rein in the sector.50 This has been ineffective,as the environmental laws have largely remainedperipheral to the mining sector in practice, due toinstitutional resistance and poor enforcement. Thesector, together with the relevant governmentdepartment, has consistently resisted attempts tosubject it to strict environmental regulations.51

Recently the Minister of Mineral Resources in SouthAfrica joined a mining company in arguing thatprovincial and local government spheres ofgovernment could not stop commencement ofmining activities once a mining company had beenissued with a mining licence under the MPRD Act.The Constitutional Court rejected this argument and

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47 The LRC is representing various community groups toclaim the benefits of platinum mining on their ancestrallands, and for history, see Bafokeng Tribe v ImpalaPlatinum Ltd and others 1999 (3) SA 517 (BH).

48 Anything inconsistent with the Constitution is invalid(S 2 Constitution of South Africa, 1996), while legislationcan change rules of common and customary law.Wilcombe and Smith, note 40 above, rightly observe thatthis pretence at the equality of sources of law in SouthAfrica does not reflect reality as customary law has oftenbeing relegated to the ‘other’ law. As far as ownership ofminerals is concerned it also seems that the Roman Lawis consistent with African customary law as endorsed bythe South African Constitutional Court in Alexkor Ltdand the Republic of South Africa v The RichtersveldCommunity and others 2004 5 SA 460 (CC) para 62 wherethe court ruled that ‘The community had the right touse its land for grazing and hunting and to exploit itsnatural resources, above and beneath the surface’.

49 Act 28 of 2002.50 These include the National Environmental Management

Act 107 of 1998 (the NEMA) and sector specificenvironmental legislation like the National Water Act36 of 1998 and other Specific Environmental ManagementActs as defined in section 1 of the NEMA.

51 Yolandi Groenewald, ‘Coal Mine Threat to WorldHeritage Site’, Mail and Guardian, 25 February 2009 (thenMinister of Environmental Affairs and Tourism said hecould not support the granting of the mining rights).

not prepared to resolve satisfactorily.56 The landrights conflicts are often accentuated by informationasymmetries and total lack of access to relevant,quality and accessible information by communitieson the extractive activities in their areas. Thus somecommunities relocated from Marange allege thatthey have no information on compensation anddelivery of promised social infrastructure. Oftenthey receive conflicting information from localgovernment officials and the mining companies.

In Zimbabwe mining is regulated by a number oflaws. Of these, the main law is the Mines andMinerals Act Chapter 21:05. There are other lawsthat govern the administration of trade and dealingin mineral resources. Communal land is governedby the Communal Lands Act Chapter 20:04 as readwith the Traditional Leaders Act Chapter 29:17 andthe Rural District Councils Act Chapter 29:13.Environmental laws do apply to mining activitiesas well.

Overall traditional leaders are responsible formanaging communal land, settling people withintheir areas under customary law while preventingillegal use of land and natural resources. Mining oftendisrupts this ‘natural order’ as in the relocation ofthe Marange communities. Some of the headsmensupported relocation while others opposed it orimposed conditions on the process. However,traditional leaders do not own the land, whichremains under state ownership. The Mines andMinerals Act trumps all these laws to the extent thatonce minerals are discovered and prospecting ormining rights granted; there is little in the law tostop mining activities. Again in Marange even theEnvironmental Management Agency (EMA) ofZimbabwe struggled to subject the miningcompanies to environmental impact assessment(EIA)57 requirements as they commenced mining

ruled that mining companies cannot just commencewith mining in a municipal area without complyingwith the applicable municipal planning and zoningregulations.52 Proposed environmental law reformsmay see further relaxation of the regulation of thisindustry.53 Mining is further regulated directly orindirectly by a number of other laws which are notnecessary to analyse in detail in this article.54

A body of laws particularly relevant to the sectorare laws on land redistribution. In South Africa, thekey legislation is the Restitution of Land Rights Act22 of 1994 under which communities dispossessedof land after 19 June 1913 can lodge a claim for theirland. Significantly, some of the land claims are beingmade to areas that are protected areas and areas onwhich mining companies already have mineral rightsor are already mining such as the MapungubweNational Heritage site.

The Marange diamonds saga in Zimbabwe showsthat communities suffer the consequences of insecuretenure as mining companies apply for, and often aregranted, mining rights on communal lands. Suchlands have been supporting communal livelihoodsover the years and mining and land laws routinelyignore the emotional and spiritual value of land tolocal communities.55 This, however, creates conflictsthat often the government and the mining sector are

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52 Maccsand (Pty) Ltd v City of Cape Town and others 2012(4) SA 181 (CC) and Le Sueur and Another v EthekwiniMunicipality and Others (9714/11) [2013] ZAKZPHC 6(30 January 2013).

53 National Environmental Management Laws AmendmentBill, General Notice 586 in Government Gazette No 34558of 26 August 2011 read with the Draft Mineral andPetroleum Resources Development Amendment Bill,2012 General Notice 1066 in Government Gazette No36037 of 27 December 2012.

54 Diamonds Act 56 of 1986, Diamond Export Levy Act 15of 2007, the Mineral and Petroleum Resources RoyaltyAc 28 of 2008 and the Mine Health and Safety Act 29 of1996. Among other things, these laws regulate the trade,dealing, import and export of mineral resources andrelated products. Some of these also regulate the revenuefrom mining.

55 The Marange communities in Zimbabwe have beenrelocated far away from their customary lands, forced torebury their dead, and abandon their subsistence way oflife to a semi-urbanised environment of mixed cultureswithout traditional leaders.

56 Gavin Hilson argues that ‘Mining land use conflicts aretypically most intense in the developing world, wherethe issue of land tenure – more specifically, clarificationof who actually owns land – is the cause of mostproblems’. See Hilson, note 31 above at 68.

57 Required in terms of section 97 read with the FirstSchedule of the Environment Management Act, Chapter20:27.

without EIA studies.58 Marauding illegal miners hadalready defaced the area anyway.

4.3 Indigenisation or Nationalisation:The Inconclusive Debate

Zimbabwe and South Africa are reviewing laws toaddress the dispossession of local communities oftheir lands and attached mineral resources. Strategiesvary from voluntary empowerment deals to outrightmandatory local ownership of companies.59 Thedebate on nationalisation in South Africa andindigenisation in Zimbabwe rages on. There havebeen vocal calls for nationalisation in South Africa,until 10 February 2012 when President Zumapointed out that nationalisation is not yet a policy.60

In 2012 there was considerable policy discord inSouth Africa as some officials said nationalisationwas off the table while others pledged thatnationalisation would only happen over their deadbodies.61 Playing down Minister Trevor Manuel’sspeech62 at the Mining Indaba, the ANC SecretaryGeneral, Gwede Mantashe urged that:

What is important is what [are] the best practicesinternationally in terms of managing mineralresources… Why are investors and companiesprepared to go 50-50 in diamond mines in Botswana,[but] say that we must not even discuss that? Whydo companies say that they can work with a statecompany in Chile and in Brazil [but] if it is in SouthAfrica [discussing it] is a no-no?63

Apart from the politics, it is important to understandthe comparative context that Mantashe alludes to.Indeed in countries such as Botswana and Chile, thestate has negotiated some form of partnership withthe extractives sectors.64 The governments of thosecountries are involved in the sector, through taxationmechanisms or direct or local ownership.65

Ultimately at its policy conference in June 2012,66

the ANC government decided against outrightnationalisation, opting to use economic instrumentsto promote equity in the sector.

The irony in South Africa is that calls for nationalisationof mineral resources are being made in the backdropof the MPRD Act which, by making the state thetrustee of all resources in the country, nationalisedmineral resources. Section 3 provides that:

(1) Mineral and petroleum resources are the commonheritage of all the people of South Africa and theState is the custodian thereof for the benefit of allSouth Africans.

(2) As the custodian of the nation’s mineral andpetroleum resources, the State, acting through theMinister, may –

(a) grant, issue, refuse, control, administer andmanage any reconnaissance permission,

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58 George Maponga, ‘Diamonds Discovered in Bikita’, TheHerald, 11 March 2013. (A Chinese and Zimbabweanconsortium mining company reportedly discovereddiamonds, started mining activities and buildingassociated infrastructure before applying for the miningrights or environmental authorisations).

59 Zimbabwe’s indigenisation law of 2010 requiresinternational companies to surrender 51 per cent to localsin terms of equity ownership.

60 State of the Nation Address by Jacob G Zuma, Presidentof the RSA on the occasion of the joint sitting ofParliament, 9 February 2012, available at http://www.anc.org.za/show.php?id=9374.

61 Trevor Manuel endorsed the Minister of Mines’ positionthat nationalization will only happen over her dead body,while the next day Gwede Matanshe, the ANC SecretaryGeneral hastened to say that nationalization is not offthe table and the ANC ‘will not be bullied into stoppingdiscussion on the nationalisation of mines because it willscare off investors’. See Amukelani Chauke, ‘We Won’tbe Bullied: Gwede’, The Times Live, 7 February 2012.

62 Trevor Manual is a Minister in the President’s Office whoheads the National Planning Commission (NPC). He said‘The minister [Susan Shabangu] was pretty forthright insaying that there will be nationalisation over her deadbody. Now you couldn’t ask for a clearer statement thanthat’, he told the Investing in Africa Mining Indaba inCape Town’. See Staff Reporter, ‘Nationalisation Isn’tthe Way for South Africa, says Manuel’, Mail andGuardian, 7 February 2012.

63 Chauke, note 61 above.64 Anthony Bebbington, ‘Extractive Industries in the

Andean Region: Issues, Actors, Challenges’ (Unpublishedbackground paper, Procasur July 2011).

65 Debtswana is often pointed to as a shining example ofhow a state private sector partnership. However there isa lot of foreign opposition to such initiatives in SouthAfrica and Zimbabwe.

66 Maximising the Developmental Impact of the People’sMineral Assets: State Intervention in the Minerals Sector(Report prepared for the ANC Policy Institute, 2012),available at http://www.anc.org.za/docs/reps/2012/simsreport.pdf.

prospecting right, permission to remove, miningright, mining permit, retention permit, technicalco-operation permit, reconnaissance permit,exploration right and production right; and

(b) in consultation with the Minister of Finance,determine and levy, any fee or considerationpayable in terms of any relevant Act ofParliament.

3) The Minister must ensure the sustainabledevelopment of South Africa’s mineral andpetroleum resources within a framework of nationalenvironmental policy, norms and standards whilepromoting economic and social development.67

As trustee of the country’s mineral and petroleumresources, South Africa has virtually nationalisedthese resources. The real issue is how the governmentis managing its role as trustee in regulating licencingand access to the mining industry. In this regard,persistent marginalisation of local communities isnot a problem of the multinational miningcorporations per se, but of the government and itshesitation to exercise its section 3 powers.68

Increasingly scholars are questioning if there is a clearunderstanding of the public trust doctrine asimported into South African law.69

In Zimbabwe the state has taken the path ofindigenisation through compulsory local equityownership in certain sectors, not only mining. Interms of the law all companies must have a certainpercentage of their equity in the hands of indigenous

Zimbabweans. Contentious issues that have croppedup include how to define ‘indigenous Zimbabwean’and the equity and fairness of the whole scheme.70

The definition of ‘indigenous’ in the Zimbabweanlaw is very context specific.71 What is clear thoughis the attempt to use the colonial history ofmarginalisation to address some of the impact ofmining on communities. The contestation of‘indigeneity’ and the temporal and space variabilityof this concept make it impossible to universaliseits application.

The complexity of defining ‘indigenous peoples’ and‘previously disadvantaged communities’ makes itdifficult to craft laws that are exclusively aimed atbenefitting the target groups. Often it leads toopportunists hijacking opportunities meant for thelocal communities. In South Africa for instance thereis a general perception that the black economicempowerment laws (BEE) have largely benefited theupper middle class elites,72 and nationalisation islikely to lead to the same result. Very few benefitsof empowerment have in fact empowered the poorand the historically disadvantaged.73 One has toacknowledge that there has been some progress butit could be better.

This bleak picture of equity and black economicempowerment progress in South Africa directlyreflects the inequities of the relations of productionin the extractives sector, which has recentlyimploded in the platinum-rich North West Province.These relations of production have notfundamentally transformed from the colonialexploitative relations in which blacks are seen ascheap labour and multinational corporations arepreoccupied with paying dividends to shareholders.The regulatory framework for mining has served toentrench these socio-economic relations and

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67 MPRD Act 2002, Section 3.68 The state’s approach betrays a fear of and capture by

powerful mining corporations. Unfounded threats ofeconomic instability and investment flight are used toscare the state from an interventionist regulatoryapproach.

69 Tumai Murombo, The Public Trust Doctrine in SouthAfrican Environmental Law: A Reappraisal (Paperpresented at the Annual Conference of theEnvironmental Law Association, September 2011),Loretta Feris, ‘The Public Trust Doctrine and Liabilityfor Historic Water Pollution in South Africa’ 8/1 Law,Environment and Development Journal 1, 3 (2012) andPatricia Kameri-Mbote, ‘The Use of the Public TrustDoctrine in Environmental Law’ 3/2 Law, Environmentand Development Journal 195, 197 (2007).

70 Indigenisation and Economic Empowerment (General)Regulations Statutory Instrument (SI) 21 of 2010.

71 Id.72 Grietjie Verhoef, ‘Economic Empowerment and

Performance: Strategies towards Indigenisation/BlackEconomic Empowerment and the Performance of SuchEnterprises in Nigeria and South Africa, Since the Early1970s to 2002’ 29 Journal for Contemporary History 92,109 (2004).

73 The Employment Equity Act 55 of 1998.

therefore needs a complete overhaul if mining is tobe sustainable.

This status quo is an obstacle to sustainabledevelopment generally and in the extractives sectorparticularly. This is exacerbated by environmentaldegradation wrought by mining activities, amongother unsustainable activities. The mineworker findshimself working in squalid conditions, penniless,living in equally squalid crowded conditions, in anenvironment that may pose harm to health andwellbeing.74 This cycle of want and impoverishmentextends and reproduces itself into the family of theminer, as he may not be able to afford goodeducation for his children, who then end up goingdown the shaft to toil for a miserable existence. Thusthe owner of the means of production locks theworking class in this capitalist ecosystem adinfintum. Mining laws, among other socio-economicregulatory instruments, legitimise this situation. Tochange this status quo reform of mining laws mustbe embedded within sustainability, social equity, andcommunity participation. Challenges to theoverhaul of mining codes manifest variously inSouth Africa and Zimbabwe. The challenges, whichare also the symptoms of archaic legal frameworks,show that reforms must focus on more than justmining codes. The process must be inclusive,extending to corporate governance, land use laws,and communal land tenure and fiscal systems tomanage revenue from mining. The next sectiondiscusses how some of these challenges manifest andproposes solutions.

5MANIFESTATION OF CHALLENGESTO LEGAL REFORMS

The extractives industry in South Africa andZimbabwe remains a thorny issue for governments

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and the people.75 Some communities believe thatthe presence of minerals is a curse. The experienceand perspectives of local communities are by nomeans homogeneous. As seen in the relocation inMarange, some members of the community arehappy to have been relocated while others resist orregret the move. This mixture of views is a challengeto civil society interventions that depend oncommunity collective action while it is anopportunity for the state and corporate actors whothrive on divisions within the communities.

The state and communities are concerned with thedistribution of revenue from mining activities.Communities are also unhappy with poor land useplanning, which often disregards spatial plans; thefailure of governments and mining companies toengage the communities when entering miningcontracts that affect them; the continued uncertaintyregarding tenure rights of communities especiallyunder customary law; and the environmentalimpacts of mining. These grounds of communitydissatisfaction are symptoms of the deficiencies inmining laws. By addressing them through legal andpolicy reforms they have the potential to producedouble impact, firstly by modernising the law andsecondly by mitigating the impacts of mining.

5.1 Mining Revenues, Land Rightsand Community Exclusion

Whether mining corporations share enough of theirprofits with their host countries and communitiesremains a contentious issue. Both South Africa andZimbabwe’s legislation provide for miningcompanies to pay royalties to the state. The key issueis how much is paid in royalties and other taxes?

74 Right to an environment not harmful to health and well-being is protected in section 24 of the Constitution ofSouth Africa 1996.

75 South Africa and Zimbabwe are arguably representativeand sometime have better experiences relative to otherSouthern African countries like Democratic Republic ofCongo, Zambia, and Malawi. In the DRC poor regulationof mining has gotten entangled with conflict, geopoliticsand a resurgence of the scramble for Africa. Botswana isportrayed as a paragon of sustainable use of naturalresources. See Poteete, note 32 above. Yet developmentsshow how indigenous communities in that country havebeen adversely impacted by mining. See Sesana and Othersv Attorney-General (2006) AHRLR 183 (BwHC 2006).

Furthermore, to what extent does the central stateshare the royalties with the relevant communitiesaffected by mining? Some countries split the royaltybetween central government and localcommunities.76 While the central government mightbe benefiting, in South Africa many miningcommunities complain about the lack ofdevelopment and investment in their areas by bothmining companies and the government.77 To thecontrary often the mining companies leave a trail ofdamage to the environment, which they cannot orare unwilling to rehabilitate.78 For instance despitehuge profits made over centuries gold miningcompanies are unable to rehabilitate theJohannesburg area (Witwatersrand) inundated byacid mine drainage (AMD). While most of thecorporations involved accept responsibility theysimply claim inability to finance the clean-up costs.79

The Zimbabwe government has been at war withitself regarding control of the revenue streams fromMarange diamonds often with conflicting numbersbeing indicated by the actors involved.80 What rolecan civil society and the public play in monitoring

revenue and promoting transparency?81 Is thispossible without accountability and informationdisclosure regarding contracts concluded betweenthe state and corporations being made public?82

Certainly not, based on the history and trends ofregulation of mining in South Africa and Zimbabwe.

A major problem is the absence of effective legislativeprovisions in mining or fiscal laws to ensuretransparency and accountability in how governmentsdecide and collect taxes, royalties and other revenuefrom mining companies. In particular the public oftendoes not know how much profit is made by miningcompanies and what proportion of that goes to thestate. Compounding this problem, most mining lawsdo not require mining companies and the governmentto disclose the terms and conditions of miningconcession contracts they enter into. Access toinformation laws in both South Africa andZimbabwe have proved ineffective as tools to obtainsuch information.83 Transparency would enable thepublic and local communities to demand that thegovernment provide social services and funds toaddress environmental problems caused by mining.84

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76 Thomas Akabzaa, ‘Mining in Ghana: Implications forNational Economic Development and PovertyReduction’, in Campbell, note 4 above at 25, 36. Contrastwith Amy Poteete and Jesse Ribot, ‘Repertoires ofDomination: Decentralization as Process in Botswana andSenegal’ 39/3 World Development 439, 439 (2011) andBebbington, note 64 above arguing that the Peruexperience shows that decentralization is not necessarilybetter.

77 The Bafokeng experience in North West Province ofSouth Africa is a clear case of this.

78 Green Renaissance, Mining is in my Community: Mining,Communities, Environment and Justice (Centre forEnvironmental Rights (CER) and Lawyers for HumanRights (LHR), 2012).

79 Mine Water Management in the Witwatersrand GoldFields with Special Emphasis on Acid Mine Drainage(Report to the Inter-ministerial Committee on Acid MineDrainage, Prepared by the Expert Team of the Inter-Ministerial Committee under the Coordination of theCouncil for Geosciences, December 2010), available athttp://www.dwaf.gov.za/Documents/ACIDReport.pdf.

80 These actors are the Ministry of Finance, the MineralsMarketing Corporation of Zimbabwe (MMCZ), and theZimbabwe Mining Development Corporation (ZMDC).Previously no such issues have been raised with othermining companies in Zimbabwe, including with existingdiamond mining companies.

81 Sifelani Tsiko, ‘Conflicting Mining Royalty Figures SparkDebate’, Sunday Mail, 14 September 2011 (praising theZimbabwe government’s adoption of the ZMRT on theback of initiatives by the Zimbabwe Environmental LawAssociation (ZELA) to improve transparency in thewhole natural resources sector in the country) and MusaAbutudu and Dauda Garuba, Natural ResourceGovernance and EITI Implementation in Nigeria(Uppsala: Nordiska Afrikainstitutet, 2011).

82 Accessing this information is quite a challenge given thecomplexities of contract law and privity of contract. It isargued that the contracts should be disclosed by the stateacting as trustee for the people as they affect the public interest.

83 Centre for Environmental Rights, Turn on the Floodlights:Trends in Disclosure of Environmental Licences andCompliance Data (South Africa: Center for EnvironmentalRights (CER), 2013), available at http://cer.org.za/wp-content/uploads/2013/03/Turn-on-the-Floodlights.pdfand Centre for Environmental Rights, Unlock the Doors:How Greater Transparency by Public and Private Bodiescan Improve the Realisation of Environmental Rights((South Africa: Center for Environmental Rights (CER),2012), available at http://cer.org.za/wp-content/uploads/2012/04/Unlock-the-Doors.pdf.

84 Shamiso Mtisi et al., Extractive Industries Policy andLegal Handbook Analysis of the Key Issues inZimbabwe’s Mining Sector: The Case Study of the Plightof Marange and Mutoko Mining Communities 9 (Harare:Zimbabwe Environmental Law Association, 2012).

The opaqueness of mining revenue has led toallegations that unscrupulous politicians inZimbabwe are pilfering such revenue.85

While in South Africa the situation is perceived tobe better than in Zimbabwe, it is often alleged thatmining companies externalise profits made frommining while they pay employees low wages and donot provide adequate social services.86 Theimplosion in Marikana and its aftermath have beenattributed to these exploitative tendencies of miningcompanies. The failure of mining and fiscal laws toprovide effective revenue management has led civilsociety to take initiatives to promote transparencyand accountability in the extractive sectors. Theinitiatives by non-state actors should by no meansbe substitute for much needed legislative reforms ofout-dated mining laws. Anything short of legislativeinterventions is not sufficient to dislodge theeconomic relations and loopholes entrenched inexisting mining laws and policies.87

Lack of transparency and accountability is also amanifestation of the limited rights that communitiesand the public have legally to demand suchentitlements from their governments and miningcompanies. There are other aspects that weaken thelegal position especially of local communities.

In most countries communities do not own the landon which they have lived for centuries. There arefew exceptions to this in many developing countries.As noted above African customary law vestedcommunal land in traditional leaders. This meansthat their insecure tenure excludes them from crucialconsultation and consent processes that the law

affords to landowners where extractive activities areabout to commence. The rights of mere occupiersof land are weaker than those of landowners. Thisdistortion of tenure rights is also a result of thedistortion of customary and indigenous laws byWestern colonial laws that continue to inform theapproach to extractives sector regulation. Theconcept of ownership brought by Western stylelegislation is foreign to African customary law. Thenotion of ‘ownership’ under customary law has beenerased from legal history and in its place substitutedwith individual title. Mining laws have been anintegral part of this redefinition of land and mineralresources ownership. Local communities entrusttheir lives into the hands of their traditional leaders,recognising that they are the successors of their oldcaring unpaid customary leaders. The leaders are atthe same time the port of call for proposed miningprojects, and some of them willingly cooperate withmining companies.

In countries like Zimbabwe traditional leaders havebeen co-opted into the local government structuresdespite the pretence of keeping them ‘traditional’.In this political minefield it is often difficult forcommunities to know who to trust. Traditionalleaders are now information gatekeepers whoroutinely make decisions for the community. In thecontext of mining laws and without legal title to land,the whole notion of prior informed consent becomesa meaningless concept to rural folks. Legallyspeaking no consent from the affected communitiesis required by many of the mining laws. Thecommunities are only ‘consulted’, which is oftenconstrued as a rounding of the community to ameeting where they are fed and the mining projectis sold to them on the platter of jobs anddevelopment. The information shared iscomplicated, technical, full of jargon and localcommunities seldom understand it.88

Despite the constraints caused by tenure systems anda weakened bargaining position, mining laws inSouth Africa and Zimbabwe do provide for some

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85 Farai S. Mtondoro et al., Research paper on the powerdimension to mineral related corruption: Preliminaryfindings on the state of corruption in the Mining Sector:The case of Gold Diamond and Platinum mining inKwekwe, Gwanda, Marange and Mhondoro-Ngezi(Transparency International- Zimbabwe (TI-Z), 2013).

86 The South African government through state ownedenterprises is also known to give big companies unrealisticsubsidies to attract investment. See for example VishwasSatgar, ‘Beyond Marikana: The Post-Apartheid SouthAfrican State’ African Spectrum 33, 51 (2012).

87 Farirai Machivenyika, ‘Need to Amend Mining Laws’,The Herald (Zimbabwe), 14 February 2013.

88 This is a structural problem with mining andenvironmental laws that attempt to bring Westerndemocratic processes in a context where the social andcultural processes do not permit free will.

consultation with landowners,89 although theprovisions are mostly weak in that they do notnecessarily oblige the mining company to obtainconsent – only to consult and often notify of theirintention to mine.90

Balancing the interests of customary landowners andmining companies in an environment where the lawfavours extractive activities is complex. Africancustomary law and environmental law have beensubordinated to mining legislation. The entrenchedlegal regulatory systems governing the miningindustry marginalise local and indigenouscommunities, while favouring the state andmultinationals. As noted above the South AfricanMPRD Act has removed communities from theequation by assuming that the state can and willrepresent their interests as trustee and custodian ofextractive resources. Nevertheless in South Africacourts were quick to confirm customary mineralrights.91

Coupled with the disempowering legal framework,there are environmental and land use planning lawsthat attempt to create room for public participationand consultation.92 Nevertheless, these laws areproving ineffective in the extractives sector asdemonstrated by the commencement of miningactivities by CoAl Africa in Limpopo (South Africa)and companies in Marange (Zimbabwe) without

EIAs and other environmental authorisations. Alarge number of mines in South Africa operatewithout water use licenses required under theNational Water Act 1998 due to the de factodominance given to the MPRD Act and extractiveactivities.93 Environmental laws could be useful toregulate pollution, health and safety threats andenvironmental damage from mining activities.

5.2 In Defence of the Environmentand Communities

The challenges discussed above and the deficienciesin current mining laws inevitably lead to conflict atvarious levels.94 It is generally important to assessthe extent to which mining laws provide forresolution of these conflicts. Generally manyconflicts regarding the granting of mining rightsoften end up in the ordinary courts or administrativecourts. However most of the social and communalconflicts resulting from extractive activities have tobe negotiated outside the courts. Conflicts that cometo mind include conflicts relating to control andaccess to land and other natural resources. In mostcases the government and companies do not haveappropriate legal and policy instruments in place toproperly handle such conflicts.95 The assumptionsare that the mining companies will deal with suchproblems. On the contrary, many of the provisionsin mining laws worsen conflict by leaving communaland even private landowners to the whims of theholders of mining rights. Landowners andcommunities are left to negotiate access,compensation and relocation with powerful mininghouses.96 In this bargaining environmentcommunities are often left with the option oflitigating their rights – assuming they have funds ora public interest organisation to assist them. As alast resort, those without legal options may have toresort to protest action to defend their rights or tobargain with government and mining

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89 For example, Sections 5(4) (c), 10, 16 (4) (b), 40, and 79of the MPRD Act and Sections 31, 34 and 38 of the Minesand Minerals Act (Zimbabwe) show how privatelandowners have better entitlements than communalrural land dwellers. Contrast with sections 5 (4) (c) and27(7) (a) MPRD Act as applied in Joubert and others vMaranda Mining Company (Pty) Ltd [2009] 4 All SA 127(SCA) para 13 and Meepo v Kotze and others 2008 (1) SA104 (NC) para 13 and 17.

90 Bengwenyama Minerals (Pty) Ltd and others v GenorahResources (Pty) Ltd and others 2011 (4) SA 113 (CC) para62-68.

91 Id.92 Legislation governing environmental impact assessment

and issuing of water use licenses falls into this category.While commendable the provision for community/public participation and consultation in these statutessuffer from the general limitations of alienating localcommunities who have no clue of the science andtechnical aspects of project documents and reports.

93 In South Africa 46 mining companies operate withoutwater use licences as of July 2012.

94 Hilson, note 31 above.95 Id.96 For instance the MPRDAct leaves issues of compensation

for loss of surface use to the miner and the landowner aswell as access issues.

corporations.97 The rest reconcile themselves to thefate of relocation. No wonder why we haveMarikana and the wild cat strikes in the North WestProvince in South Africa.

The challenges faced by local communities can beaddressed from many angles using variousapproaches including using mining laws. Publicinterest organisations have been exceptionallyhelpful in empowering local communities to defendtheir socio-economic and environmental rights inthe face of the unrelenting desire to mine.Nevertheless it must also be stated that publicinterest organisations do not always see what is inthe interests of indigenous communities. Hence theshifts towards programmes that in fact benefitcommunities and let them own the processes toreclaim and enforce their rights. Often, publicinterest organisations see every incident or disputeas an occasion calling for radical action whensometimes measured negotiation and alternativedispute resolution mechanisms would achieve betterresults for the community.

While public interest litigation is necessary, there isneed for introspection by public interest actors toassess strategies that have worked before and thosethat left indigenous communities worse off fromunintended consequences. Understanding thisdilemma of public interest actors brings insights intotheir work and enables shaping of new community-based interventions. Commitment to accountabilityin both countries is necessary if extractives are tobring mutual benefits to local communities.However even these strategies work where there areenabling laws, and mining and environmental lawsshould play this enabling role. The laws need notenable civil society and communities only, but alsothe state actors so that they negotiate better dealsand are effective in implanting and monitoringcompliance with the laws.

6CONCLUSION

This article has discussed the historical origins ofthe extractive regulatory frameworks in Zimbabweand South Africa, noting how these remain focusedon maximum extraction of mineral resources.Extractive activities are often executed withoutregard to the rights of communities residing inmining areas. Also this is done in unsustainable waysas the corporations involved are focused on profit.While this situation has a colonial background, thepost-colonial states in South Africa and Zimbabwehave done little to reform the mining regulatoryenvironments to incorporate sustainabledevelopment, community participation andtransparency. Rather, the manifestation of thedeficiencies in the legal frameworks indicate that thepost-colonial state, together with powerfulmultinational and empowerment mining entities,have teamed up against local communities andenvironmentalists, often under the guise of socio-economic development and sovereignty over naturalresources.

What is apparent from the discussion is that theextractives industry is not a bad industry per se.Mining can contribute to economic growth anddevelopment but it must be appropriately andeffectively regulated. This article concludes that thiscould partly be done by strengtheningenvironmental regulation of mining activities andthe rights of communities affected by mining. It isnot only communities who suffer, but even the state,as it is unable to extract maximum benefit fromextractive activities whilst burdened with rectifyingthe environmental and social damage caused bythem. The onus still lies with the state to developgood laws and effectively implement them andempower the communities.

Law, Environment and Development Journal

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97 Examples here include disturbances in Rustenburg due tostrikes by underpaid mine workers and also the few familiesthat have stayed put in Chiadzwa despite orders to relocateto ARDA Transau farm resettlement area.

LEAD Journal (Law, Environment and Development Journal) is jointly managed by theSchool of Law, School of Oriental and African Studies (SOAS) - University of London

http://www.soas.ac.uk/lawand the International Environmental Law Research Centre (IELRC)

http://www.ielrc.org