Covid-19 opens the door for government to rebuild public participation in mining

The Covid-19 pandemic has forced citizens and observers alike to critically analyse governance processes and unpack the levers of power on a national, regional and international level. Many observers worry that the South African extractive sector’s national commitments to improved governance will diminish in response to – and recovery from – the global health and economic crisis, largely because the commitments were never that strong.

There are concerns about heavy-handed government responses and the erosion of civic space, which would lead to reduced accountability in the sector. There are also fears of an increased risk of corruption, as oversight institutions weaken and shady deals loom. Additionally, there are fears about diminishing transparency, with the possibility of reduced commitment to openness as other priorities take precedence during this pandemic.

Civil society organisations (CSOs) working in the mining sector have sought to challenge systemic corruption and human rights violations as experienced by mine-affected communities. Government and industry are all too familiar with communities’ pleas for social justice and a better deal.

In this call for greater accountability, the judiciary has provided a different tone and allowed redress for mine-affected communities to find some expression. This tone, even in such uncertain times, is the only accountability mechanism available to ensure the rights of mine-affected communities.

Courts lend weight to communities’ pleas

The judiciary displayed its impact earlier last month by handing down judgment on the Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy. The labour court ordered that government is obliged to have “meaningful engagement” with affected communities before publishing a new notice setting out how mines must protect workers.

This judgment came after civil society organisations challenged the Department of Mineral Resources and Energy regulations regarding health and safety guidelines for operating mines and mineworkers during Covid-19. CSOs stated that the reopening of mines during the pandemic has profound implications for not only the country, but especially for mineworkers and mining-affected communities – therefore all stakeholders must be consulted.

The court, even in these exceptional circumstances, affirmed and emphasised the right of mine-affected communities to consultation. The Labour Court judgment echoes that of the landmark Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another 2019 (2) SA 1 (CC) and the popularly known Xolobeni judgment which confirms the right to both engagement and consent for mine-affected communities.

Since President Cyril Ramaphosa announced the steady reopening of mines and resumption of operations, the rate of infection in mines has increased, while Covid-19 hotspots have developed in mining communities. By the end of May, the Minerals Council announced over 320 recorded cases of the coronavirus in operating mines ahead of the easing of restrictions and movement to Level 3. Impala Platinum Marula mine in Limpopo, Sibanye-Stillwater operations in Free State, and Gauteng’s AngloGold Ashanti Mponeng mine have all reported concerning numbers of positive cases.

With the Africa Centres for Disease Control and Prevention stating that the African continent is currently in the mid-morning of impact of the Covid-19 pandemic, the situation in mining communities could lead to a perfect storm scenario – where there is a rapid, large-scale infection with ineffective responses.

The Labour Court judgment, if applied, may significantly mitigate against this doomsday scenario by requiring government engagement with mine-affected communities. Such engagement would centre not only on occupational health, safety and hygiene measures, but also on transparency in localised socioeconomic issues that would ordinarily create an obstacle to managing the virus.

Empty promises, desperate communities

The issue of consultation in this space has always been vexing and inadequate, with government falling short of fulfilling our democratic promise. Mineral Resources and Energy Minister Gwede Mantashe said at the Mining Indaba 2020 that mining companies “must take seriously the communities on whose land they mine”. We have seen major mining companies such as Anglo American echo the same sentiments during this pandemic – CEO Mark Cutifani, writing for Business Day’s “Business Beyond Covid” series, stated that “more than before, miners must be partners with host communities”. Cutifani went on to say that “mines and host communities are deeply connected and operate together as an ecosystem and both must be healthy in order to prosper”.

However, these assertions by the minister and bold statements by Cutifani are of little value if mine-affected communities are forced to rely on court processes for enforcement of their constitutional rights. The sheer power imbalance between industry on the one hand and labour and communities on the other means that the need to resort to the courts to exercise basic rights is a travesty of justice.

The Department of Mineral Resources and Energy has consistently displayed its resistance to entrench transparency and accountability mechanisms between the industry and community relationship dynamic – and never as pronounced as in the community engagement space where there is a tumultuous history of significant undercutting of the participation rights of communities.

Looking beyond Covid-19

The reality is that consultation by its very nature is a process and requires those administering the levers of power to create a conducive environment for engagement. One way to achieve this is through transparency and ensuring that proper governance and accountability measures are in place. Societies cannot thrive when our most vulnerable groups are exploited. Embedded in the management and recovery of the Covid-19 upheaval must be government’s focus on ensuring the mitigation, rather than amplification, of existing injustices and inequalities.

The Labour Court judgment can and should be a resurgent point regarding consultation between industry, communities and government. Perhaps this pandemic provides an opportunity for government to build from the errors that have categorised the South African mining sector and focus on improving responsiveness to the inadequacies in public participation.

The government must reshape the policy around public participation, not only in response to the pandemic but with a long-term view of safeguarding the rights of those most affected. DM

Mashudu Masutha is legal researcher at Corruption Watch.