The enforceability of social and labour plans in the South African mining industry

Abstract

The systematic marginalisation of the majority of South Africans, facilitated by the exclusionary policies of the apartheid regime, prevented Historically Disadvantaged South Africans (HDAs) from owning the means of production and from meaningful participation in the mainstream of the economy. To redress historical inequalities, and thus give effect to section 9(equality clause) of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution), the democratic government has enacted, among other things, the Mineral and Petroleum Resource Development Act 28 of 2002(MPRDA). The objective of the MPRDA is to facilitate meaningful participation of HDAs in the mining and minerals industry. The objects of the MPRDA are, among other things, to promote equitable access to minerals resources; Expand opportunities for HDPs to benefit from the mining industry; Promote employment and advance the social and economic welfare of all South Africans; Ensure that those holding mining rights contribute to socio-economic development in their operating areas. To this end, the SLP regime was promulgated to achieve the objective of the MPRDA as stated above. The SLP compliance regulations and guidelines are not clear of the threshold regarded as achievement nor do they have a grievance mechanism for aggrieved parties in this regard. This research will argue that the SLP regulations must stipulate a level of fulfilment of the targets in the SLPs, as things stand it is unclear when and how do you meet the set targets or goals set in the SLPs. SLPs should also, be included by the DMR in their list of automatically available documents published in terms of section 15 of PAIA and this availability must be free from restrictions regarding who can see the documents and which parts it includes. Future amendments of the MPRDA and the regulations should rectify this. Another problem is the absence in the the Act and regulations that specify recourse mechanisms for workers and community members who are aggrieved with the implementation of the SLP. Any amendments to the Act and regulations, therefore, need to provide formal grievance mechanism about SLP commitments and which need to explicitly specify both the structure and the process of the Mining Charter. The regulations must also provide a grievance mechanism through which aggrieved parties communities can use to address their grievances.