An uneasy peace prevails
WHILE the situation between hundreds of illegal miners, currently operating in and around Kimberley, and mine security remains tense, the final decision on the continued processing of mineral resources, left by De Beers after nearly a 150 years of diamond mining, will be made by the Constitutional Court.
Last week saw armed security personnel of Kimberley Ekapa Mining Joint Venture (KEM-JV), in full riot gear, called to a site adjacent to Samaria Road, where about 200 illegal miners are mining a piece of land belonging to KEM-JV despite a high court order prohibiting them from doing so.
This ruling has already gone to the Supreme Court of Appeal (SCA) and is now before the Constitutional Court after the illegal miners filed for leave to appeal earlier this month.
Attempts to have them removed on Thursday lead to a stand-off between the miners, security and the police, but the situation was eventually defused without major incident.
It was agreed to wait for the Constitutional Court’s decision before determining the way forward.
On Friday afternoon, the chairman of the Kimberley Artisanal Mine Workers (KAMW), Lucky Seekoei, said that while the parties involved had been able to reach a consensus, which would see operations continue as they have been, the matter was far from being resolved.
“For now both parties have gone back to work and we have put our differences aside,” Seekoei said. “But this is still an ongoing struggle and for now we are awaiting further instructions from our legal representative along with the date for our next court appearance.
“We have a right to mine at that site and have applied to be able to do so.
“Unfortunately, the Department of Mineral Resources is failing us, while Ekapa continues to be both player and referee, taking away our livelihoods in the process.”
In January, the Northern Cape High Court ruled in favour of Ekapa, ordering that the illegal miners be prohibited from entering, occupying or mining at various erfs, covering an area of roughly 100 square kilometres, in and around the city.
On July 13, Seekoei and others saw their initial leave to appeal this ruling dismissed with costs by the SCA when the court was of the view that they had little chance of success with their appeal and had failed to justify a hearing.
Earlier this month the illegal miners again filed for leave to appeal, this time with the Constitutional Court, which is yet to make a ruling on the application.
Speaking on behalf of the illegal miners in his founding affidavit to the Constitutional Court, Seekoei argued that the tailing mineral resources (TMRs) belonged to the people of South Africa, as per the Mineral and Petroleum Resource Development Act (MPRDA), and preventing them from conducting their operations violated their constitutional right to dignity (excluding them from the land would leave them destitute) as well as the right to choose a trade/profession/ occupation (excluding them from the land would prevent them from plying the only trade available to them).
“This case raises clear constitutional issues surrounding the interpretation of the MPRDA, the purpose of which is to ensure that previously disadvantaged individuals have fair access to South Africa’s mineral resources,” Seekoei stated.
“If the MPRDA permits the mining companies to exclude us from the properties in order to give effect to rights that the MPRDA says in express terms that the mining companies do not have, then the basic purposes of the MPRDA will be frustrated, and its objects – to transform the mining sector and end unfair discrimination in it – will be left unfulfilled.”
Responding in his answering affidavit, Ekapa Minerals and Super Stone Mining CEO, Jahn Hohne, disputed the illegal miners’ claims as he stated that they had no legal right to be present on the sites, nor to process the TMRs, which Ekapa had purchased from De Beers as per a sale of business agreement.
Hohne further claimed that their activities were in contravention of the Diamond Act and were depleting the TMRs of millions of rands in value while Ekapa was left to carry all the risk.
“The high-water mark of the application for leave to appeal is that they acknowledge that their conduct is currently unlawful but they hope that, at some undisclosed point in the future and on the basis that is wholly speculative, their currently unlawful conduct will be regularised and contractual rights to the properties and TMRs will be overridden,” Hohne added.