All the acrimony around the Minerals and Petroleum Resources Development Bill should not obscure one central fact — there was no way a majority-rule South Africa could hang on to the mineral rights regime of the past. More than any other industry, with the possible exception of agriculture, the mines symbolise white domination of the economy and the labour repression of the colonial and apartheid eras.
It is this that explains the ecstatic jubilation among black MPs after the passage of the Bill this week. State custodianship of mineral rights, coupled with new requirements for permit applications aimed at advancing black ownership and participation, were felt to be a triumphant assertion of the Freedom Charter’s promise that mineral resources would return to the people.
This potent symbolism meant that the mining houses’ demands for the automatic renewal of 30-year mining leases was unlikely to be met — however well-founded their argument that continuity of tenure was needed to encourage investment. As argued by a black mining executive in this edition of the Mail & Guardian, the government could not be seen to put the interests of foreigners before those who put it into power.
The new law will undoubtedly have the effect of forcing established interests to forge partnerships with black mining companies, and this is right and inevitable. But South Africans should be realistic enough to recognise that there is likely to be a cost — the industry’s warnings about foreign investment are more than mere scare tactics aimed at entrenching its privileged position. While state custodianship of mineral rights is pretty much the world norm, the permit requirements in a mining country such as Chile are clear, objective and not excessively onerous. In our Bill the transformation criteria are vague and wide-ranging — raising the fear that undue ministerial discretion has been reimported through the back door.
Both sides show signs of accepting the realities, and the focus must now shift to implementation. If the permit system is carefully and sensitively handled, foreign perceptions that the law is a veiled nationalisation, like that of Cuba in 1960, can be softened. Key to this will be the empowerment charter the government has proposed as a way of fleshing out the law’s transformation goals.
Imposing a charter by regulation, as Minister of Mineral and Energy Affairs Phumzile Mlambo-Ngcuka has threatened, will send out all the wrong messages. The model is the liquid fuels industry, where empowerment targets were negotiated in a way that has satisfied everyone.
Ngema overkill
Mbongeni Ngema’s AmaNdiya is a bad song that is offensively anti- Indian and was probably intended to boost sales by stirring controversy. But it raises provocative questions about “hate speech”, which our Constitution bans.
The Broadcasting Complaints Commission’s air-play ban, on the grounds that the song constituted hate speech, was a clear case of overkill. There is a suggestive coincidence between the commission’s ruling and President Thabo Mbeki’s condemnation of the “Kill the Boer! Kill the farmer!” chant. Could it be that commission chairperson Kobus van Rooyen, not famed for his ferocious independence of mind, was picking up his cue from the big boss?
AmaNdiya probably qualified as “advocacy of hatred based on race”. But the constitutional definition goes further, stating that such advocacy must amount to “incitement to cause harm”. Context is critical here — in Rwanda’s pre-genocide cauldron of ethnic hatreds, a song of this kind would undoubtedly have incited harm. But in the South Africa of 2002? One likes to think that eight years after our “independence” election, race relations here are a little more robust.
The crisp point is that one man’s hate speech can be another’s political agitation. Apartheid statutes from as early as 1927, including the notorious Terrorism Act, banned speech calculated to arouse hatred between the race groups, with the clear purpose of criminalising vocal opposition to white minority rule. An overly restrictive reading of the Constitution could have the effect of dampening vigorous political exchange in South Africa.
Do we need the hate speech provision? The United States manages without it, but most other democratic states, including Britain, France and Canada, have outlawed the public advocacy of hatred based on race, ethnicity or religion.
The statutes are not much used, however, and there is a strong school of thought that efforts to criminalise hate speech potentially threaten the core right of free speech, while not being particularly effective. The emphasis here is on lesser, private counter-measures, like damages suits, and on public education.
In South Africa, haunted by the violent conflicts of the past, it may be symbolically important for our foundation law to set its face against hate speech. After all, the Constitution lays heavy emphasis on the right to dignity and equality. But it must be seen as covering all South Africa’s ethnic communities. One cannot help feeling that if a white had sung about black people as Ngema has sung about Indians, there would have been far more public outrage.