Research Focus Group 2010 THE RESPONSIBILITIES AND REMEDIES OF THE STATE IN ILLEGAL MINING Claire Berry

RESPONSIBILITIES AND REMEDIES OF THE STATE IN

‘ Illegal mining is the author of a remorseless tale of death, violence, theft, loss in production, labour concerns and, ultimately, unsafe and unhealthy mining conditions.’

1: SA ‘s rich mineral resources demand clear, efficient legislation to protect and regulate the use of the minerals whilst allowing for effective mining practices.

ZAMA-ZAMAS LOCAL GANGS EXPORTERS INTERMEDIARY INTERNATIONAL BUYERS

2: The notion of ownership of minerals and mineral resources has been turned on its head by s 3 of the MPRDA.

3: In terms of the MPRDA, the State controls access to and control over mineral resources by a process of administrative decision-making. The MPRDA is unclear and vague as to the issue of where ownership of the mineral resources lie.

4: From the preamble of the MPRDA, it is clear that the purpose of this piece of legislation is to acknowledge “that South Africa’s mineral and petroleum resources belong to the nation and that the State is the custodian thereof.” The idea of custodianship means that the State manages the resources on behalf and for the benefit of the citizens of this country. Illegal mining is costing our country billions of Rands which cannot be said to be benefitting the people as a nation.

5: With the idea of custodianship it may be possible that those landowners who do not pronounce their minerals to the state, but who do small-scale mining on their land may fall within the definition of illegal mining.

6: As illustrated with reference to Water Law ( Mostert Snr and Another v S (2009)) theft of resources depends on clear indication as to ownership over such resources.

”But I do not see how the fact that government now exercises administration and control over water flowing in a river means it must now be regarded as capable of being owned and thus capable of being stolen....The legislature created various statutory offences under the 1998 Act and, if it had wished to create the offence of theft of water, it could easily have done so. It did not.

Accordingly, my prima facie view is that water flowing in a stream or river is not capable of being stolen, so that a riparian owner who abstracts more water from such a water resource than that to which he or she is legally entitled may commit a statutory offence under s 151 of the 1998 Act but does not commit the offence of theft.

7: This places the issue of illegal mining in SA in harsh perspective. There are demonstrable social, legal and economic problems arising from the phenomenon, yet there is no legal mechanism in the MPRDA addressing the root of the cause.

8: Other options include a certification system along with a source identification system as has been used in the DRC in an attempt to stop the smuggling of gold

9: Government appears to be determined to take positive steps toward the eradication of the problem of illegal mining. It is now a matter of practicing what they preach and putting into place the much-needed regulations and over-seeing the effective enforcement thereof.

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SELECTED BIBLOGRAPHY: Primary Sources: Mostert Snr and Another v S (338/09) [2009] ZASCA 171 (1 December 2009). Secondary Sources: Badenhorst (Franklin) ‘Mining and Minerals’ LAWSA First RE-issue vol 18 § Burchell, J Principles of Criminal Law 3 ed (2005). Du Bois, F Wille’s Principles of South African Law 9ed (2007). Irin ‘Mail & Guardian online’ We need to target the syndicates. June Available at Viewed on 3 March

Shabangu, S : Address by the Minister of Mineral Resources, to the National Council of Provinces in the debate on Illegal Mining. 16/ Available at Viewed on 10 March Snyman, CR Criminal Law 4ed (2002) Butterworths. Swanepoel, E ‘Mining Weekly’ SA Looking to Implement Legislation to Criminalise Illegal Mining. June Available at Viewed on 12 March