Why it doesn’t make sense that all informal mining is deemed illegal

Legalising the small-scale and artisanal mining sector may unlock entrepreneurship opportunities. Reuters/Luc Gnago

Throughout Africa artisanal and small-scale mining, whether legal or illegal, has been associated with social problems such as conflict, environmental damage, health risks and child labour. Although there are no exact numbers of how many people participate in such mining activities, it is evident that it is widespread.

Despite its negative aspects, the contribution of small-scale mining to the resource sector and social development cannot be disputed. About 15% to 20% of the world’s non-fuel mineral production comes from this sub-sector. An example of this can be seen in Ghana, where small-scale mining has contributed US$460 million since 1989 and is estimated to employ 300,000 to 500,000 individuals.

In South Africa, illegal mining as it currently stands covers all aspects of unpermitted mining. But this definition does not allow for differentiation between invasive illegal mining and informal community miners. Invasive mining occurs when miners illegally enter the old mine workings of decommissioned mines. Informal mining is community based mining that typically follows customary law.

The two are very different types of mining but have the same illegal status under the law. This gives rise to a fundamental question: is all informal mining illegal and is it all the same? The answer is no.

Informal versus illegal mining

Both types of mining, because of their attributes, can be classified as artisanal and small-scale mining. In sub-Saharan Africa the artisanal and small-scale mining sector is the oldest form of mineral extraction and processing. It continues to be widespread and active despite the advent of large-scale mechanised mining, which began in the late 19th century. But the sector is not homogeneous and to curb the scourge of illegal mining, a distinction between illegal mining and informal mining must be made.

As the law in South Africa stands, a group of women mining the semiprecious tiger’s eye quartz as a community in the Northern Cape province is considered equivalent to illegal miners who trespass on old abandoned mines. In addition, individuals who use rudimentary techniques and mine without permits are also considered to be illegal miners, even when no trespassing or invasion of old mines takes place.

The South African Mineral and Petroleum Resources Development Act of 2002 requires a mining permit from the Department of Mineral Resources for small-scale mining to be deemed legal. Because of this, any activity that takes place without a permit is illegal, despite the context in which it takes place.

South Africa’s ‘zama-zama’

Illegal mining in South Africa has dominated the news from the late 1990s, when large-scale gold mines in the the Witwatersrand Basin were decommissioned. Most of these closures were the result of declining gold prices. The depths at which mining was taking place made many mines uneconomical. Many of the workers who were laid off turned to illegal mining in the region to eke out an existence. They are known as “zama-zama” miners, derived from the Zulu word “zama” which means “to try”.

These chance-takers spend long periods of time underground digging for gold. The dangers they face include rock falls, methane poisoning and underground fires. Gang activity is also synonymous with zama-zama mining. The gangs are typically differentiated along ethnic lines. The Chamber of Mines of South Africa has equated zama-zama mining with the illegal drug trade or sex trafficking due to the way that kingpins run the sector.

Zama-zama mining has become a widespread problem. Deaths and underground accidents are common. Responsibility for rescuing underground zama-zamas, or recovering bodies, lies with the mining companies that own the disused mines or the government. Because of the sector’s organised nature, arrested miners quickly get replaced because the kingpins themselves are still free. This results in a futile exercise for law enforcement.

The illegality of zama-zama mining is not only because miners operate without a permit. It is also because they trespass on the land of large-scale miners and are in possession of unwrought gold. This is illegal under the Precious Metals Act of 2005.

But these activities are very different from customary mining practices, which are in fact recognised by the Department of Mineral Resources. It has campaigned for these activities to be formalised and recognised under South African law, but this hasn’t happened – possibly due to the lack of capacity in the small-scale mining sector.

Customary practices

In South Africa, customary practices are governed by the Traditional Leadership and Governance Framework Act of 2003 and overseen by the Department of Cooperative Governance and Traditional Affairs.

There are many communities that are considered traditional communities under the law. They are led by chiefs and headmen who are recognised by the law. These communities are governed by customary practices and law, and permission to mine falls under these practices. Community members assume that once they have permission from the chief, who acts as the custodian of the people, they can mine freely. This customary practice is informal, but no invasion of land or trespassing takes place. Examples include the women mining tiger’s eyes in the Northern Cape and the mining of coal in rural parts of Mpumalanga province.

In these cases customary law has been followed, but mining is still deemed illegal because it occurs without a mining permit from the Department of Mineral Resources.

A distinction needs to be made between the two. By doing this, South Africa can start to formalise the informal sector that is typically based on customary law. By using these informal structures, the country can start to formalise the sub-sector of artisanal and small-scale mining. This “partial formalisation”, as I call it, would bring clarity by allowing invasive mining to be dealt with as illegal while enabling artisanal mining to be developed.

Creating a legal artisanal and small-scale mining sector creates an opportunity for entrepreneurship for traditional communities and individuals. It can also play a role in development and poverty alleviation.