Regulatory failure, not criminality, lies at the heart of SA’s mining crisis

Tragedies at abandoned mines highlight a severe regulatory failure: South Africa’s government continues to criminalise impoverished artisanal miners while letting mining corporations evade statutory rehabilitation duties.

Phyllia Ngoatje is an attorney at Lawyers for Human Rights, working in the Environmental Rights Programme.

Fourteen miners were recently victims of a tragic incident in an improperly closed mine in Nkaneng, near Marikana, in North West. While the current narrative is that this is a matter of illegal mining activity, the real issue is the state’s sustained failure to regulate mine closure and hold the mining industry accountable.

With more than 6,000 abandoned and derelict mines across South Africa, the Department of Mineral and Petroleum Resources (DMPR) escapes accountability in a stark display of regulatory failure. The department operates in a vacuum, evading responsibility for its failure to enforce proper mine closures.

The minister of mineral and petroleum resources, Gwede Mantashe, has said that the government has “ no obligation to rehabilitate anything”, regarding disused or ownerless mines. This position, articulated before the South African Human Rights Commission, demonstrates a profound misunderstanding of the state’s constitutional obligations and its duties under international human rights law.

When transnational corporations and mining companies commit these harms, the impacts are far-reaching. They expose the intersection of private-sector conduct and state abdication, revealing an inadequate legislative framework that allows corporate flight without properly closing and rehabilitating the mines they have worked for years on end.

Worse still, mining companies fail to account to the host communities they abandon – leaving them impoverished, without recourse and lacking alternative livelihoods. Furthermore, an industry cannot genuinely be branded “illegal” when adequate laws to govern it do not exist in the first place. What we are seeing is an unregulated sector that the state, until now, has simply lacked the political will to govern properly.

Over the years, Lawyers for Human Rights , along with others, has tracked the human toll of improper mine closure through the release of various reports.