Abstract:
Artisanal and small-scale mining (ASM) is a contentious but highly topical phenomenon that occurs in South Africa. The Mineral and Petroleum Resources Development Act of 2002 (the ‘MPRDA’) is responsible for much of the confusion that surrounds ASM because it defines illegal mining as any mining that takes place without a mining permit. Therefore, in terms of the way in which the MPRDA has been drafted, ASM is regarded as illegal mining, and this results in immense challenges and tensions coming to the fore. This dissertation finds that ASM can, in fact, be used as an excellent poverty alleviation activity in South Africa (a country where poverty is rife), especially by women in ASM communities; however, the way in which the MPRDA is currently being interpreted by lawmakers prevents ASM from being used as such. The dissertation finds that formalisation is not the key to relieving the challenges associated with ASM and, in order to determine what it would take for ASM to be understood as a poverty alleviation activity, ASM is examined as an a-legal activity through relying on the work of Hans Lindahl which focuses on the boundaries, limits, and fault lines that the law is capable of creating. It is found that ASM is able to expose normative claims that fall outside the scope of a collective’s practical possibilities in terms of the MPRDA. Therefore, through understanding ASM as an a-legal activity, a whole new realm of practical possibilities is evoked. One of these practical possibilities is the ability to understand ASM as a poverty alleviation activity. Once it is accepted that ASM is an a-legal activity, Jennifer Nedelsky’s relational approach is applied in order to emphasise the importance of the relationships that could be created through using the other practical possibilities that a-legality exposes in terms of ASM. The relational approach is advantageous because it is able to ascertain whether law undermines or promotes core values. Through relying on Nedelsky’s work, I suggest a move away from a court-centred approach when addressing a-legal activities such as ASM, and I suggest Nedelsky’s Alternative Social Charter as a forum that could be used to address a-legal behaviour such as ASM because of its central focus on poverty and disadvantage, as well as its emphasis on the importance of law’s relations.
