Mineral Resources Minister Gwede Mantashe.(Rodger Bosch/AFP)
Several courts, including the constitutional court, have made consistent judgments about how our politicians and regulators should treat the democratic process.
As far back as 2006, the constitutional court, in the Doctors for Life case, held that the obligation to facilitate public involvement is a material part of the law-making process and failure to comply with it renders the resulting legislation invalid.
This judgment was followed by a host of others, including the Matatiele Municipality and Others vs President of the Republic of South Africa and Others (2006), Land Access Movement of South Africa and Others vs Chairperson of the National Council of Provinces and Others (2016), the Baleni (Xolobeni) judgment (2016) and the Maledu judgment (2018).
All these court judgments have consistently declared that meaningful consultation is not to be trifled with and is a sacrosanct pillar of our constitutional democracy.
And yet, we have Gwede Mantashe, the minister of mineral and petroleum resources, deliberately undermining, not only court judgments but the very essence of our constitutional democracy. All this is done in broad daylight, in a “slow-motion” stifling of our fragile lifeblood.
Since the minister took office, he has steadfastly avoided his constitutional obligation to provide what the courts call: “The constitutionally guaranteed right to equality as set out in section 9(1), Chapter 2, Bill of Rights, in the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) [and] which reads: ‘Equality 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.’”
The audi alteram partem (listen to the other side) principle is at the core of our principles of justice.
Even when parliament, on March 9 2021, asked Mantashe to meet mining-affected communities to hear their concerns, the minister, in a truly dishonourable act, committed to it, but never met the communities.
Despite numerous attempts by organisations such as Mining Affected Communities United in Action (MACUA) to meet Mantashe and the department he runs with an iron fist, he has failed to find the time or decency to fulfil his role as a minister to deepen and strengthen our democratic process.
His department has played “hot-and-cold” depending on Mantashe’s whims, but has steadfastly refused to accept its constitutional obligation to ensure equality before the law.
Mining affected communities across the country, as recently highlighted in communities such as Bethanie, Kraalhoek, Springbokpan, Disake, Thabazimbi, Nyakallong, Thabong, Kutlwanong, and many others, have all experienced first-hand the oppression of mines under the protection of the police and department of mineral and petroleum resources, which refuse to take responsibility for the indignities communities suffer every day.
Communities have held weeks of peaceful protests, even sleeping outside the gates of mining companies, while the department has been protecting polluting miners and their non-compliance.
With the state-authorised stifling of democracy and constitutional values for millions of people directly affected by mining, Mantashe now seeks to further undermine the rights of these communities by excluding them from being “meaningfully consulted” on proposed legislative changes he is concocting with the Minerals Council and other selected stakeholders.
The minister was on record during his budget speech to the Portfolio Committee of Mineral and Petroleum Resources, that he intends to submit amendments to the Minerals Petroleum Resources Development Act. As part of this process he has had regular meetings with both labour and mining companies, but has refused to meet affected communities, which the courts have consistently confirmed are affected parties and must be consulted.
The courts have interpreted the requirement for public participation to mean that consultation should be meaningful and occur before the legislation is introduced in the legislature. The public must have a real opportunity to influence the content of the legislation, ensuring that the process is inclusive and democratic.
Mantashe’s stubborn refusal to listen to the communities and ensure they are meaningfully consulted, is a deliberate attempt to undermine the voices of the most marginalised in society.
In a “democracy” where the governing coalition represents only about 25% of all eligible voters in South Africa, it is imperative to have a deeper democracy which hears the voices of the disenfranchised and marginalised.
If we want a democracy that is not merely a circus that comes around every five years, but is true to its intent to be the government of the people, by the people and for the people, then dangerous power-hungry politicians like Mantashe must be stopped.
Politicians have shown that ultimately they all have a vested interest in less democracy, not more, so it’s up to us, the people, to demand and fight for our democracy, before it’s too late.
Christopher Rutledge is the executive director of MACUA WAMUA Advice Office. MACUA-WAMUA organises and advocates for accountability of mining corporations who violate the human rights of marginalised and mining affected communities in South Africa.