Illegal Gold Mining Activities in South Africa: ‘Zama Zamas’
By Michael Kabai
Published on March 4, 2020
With gold prices mostly firm and the case for minerals wealth as competitive as ever, illegal gold mining is on the rise worldwide. The situation in South Africa is no different, where the surge in illegal gold mining activities in many parts of the country is concerning.
Illegal gold mining, or ‘Zama Zamas’ – a Zulu colloquial term used in South Africa, translating to ‘trying your luck’ – is lucrative. The rewards of this illicit activity are attractive and difficult for watchdogs to monitor as there are many illegal mining sites in the country. Illegal miners normally go into the decommissioned mines and try their luck, so to speak, to look for precious metals. In some instances, the decommissioned mines are guarded by security guards hired by the mine owners to preempt trespassers. In many other instances, there are no security guards.
II. Safety, Moral, and Social Challenges and Impact
In order for the illegal miners to find precious metals, they often have to remain in these mines for days, if not months, at a time. This poses many risks to the miners, such as harm from the mine caving in, exposure to mercury, and, given the high rate of crime in South Africa, the risk of being robbed or arrested and imprisoned.
Zama Zamas operations come with countless moral and social problems. Despite numerous attempts by the government to regulate the small-scale mining sector, most artisanal and small-scale gold mining operators work illegally with no official recognition. Young men between the ages of 16 and 36 dig shafts with chisels, spades, hammers and elbow grease looking for gold. These young men work day and night to find the precious ore on which they rely for their livelihoods.
The range of issues associated with ‘Zama Zamas’ activities is extensive. These activities can have negative individual and community impacts on health, the environment, and the economy.
III. Legal Context of Impact
South Africa’s Mineral and Petroleum Resources Development Act, 2002 (Act. No. 28 of 2002) (‘MPRDA’), specifically prohibits mining without the required statutory authorisation. Section 5A of the Act (as amended) is expressed in the following terms:
“No person may prospect for or remove, mine, conduct technical co-operation operations, reconnaissance operations, explore for and produce any mineral or petroleum or commence with any work incidental thereto on any area without—
(a) an environmental authorisation;
(b) a reconnaissance permission, prospecting right, permission to remove, mining right, mining permit, retention permit, technical co-operation permit, reconnaissance permit, exploration right or production right, as the case may be; and
(c) giving the landowner or lawful occupier of the land in question at least 21 days written notice”.
Therefore, illegal mining is a criminal activity, which also involves at least trespassing and/or theft.
a. Environmental Impact
The starting point must always be that the people of South Africa possess, by virtue of section 24 of the Constitution, an entrenched right to a fit and proper environment (The Constitution of the Republic of South Africa 1996).
This right, which chimes with a vigor of intergenerational equity, is expressed in the following terms:
Everyone has the right—
(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
According to the United Nations, artisanal and small-scale gold mining accounts for “the largest global use of mercury, and the largest source of mercury releases”.
“This type of mining relies on rudimentary methods and technologies, and is typically performed by miners with little or no economic capital, who most often operate in the informal economic sector, sometimes illegally and with little formal organizational or management structure.” – (UNEP, Global Mercury Supply, Trade and Demand, 2017).
In South Africa, it is also illegal pursuant to section 4 of the Precious Metals Act, 2005 (Act No. 37 of 2005), to be in possession of unwrought precious metal ore, platinum group metals, gold-bearing material and rough diamonds without the required statutory authorisation. ‘Zama Zamas’ have a habit of using exceedingly reckless and non-environmentally-friendly purifying methods and materials, which can result in permanent harm to the environment. Since any violation of environmental law constitutes an environmental crime, ‘Zama Zamas’ activities fall squarely within the definition of environmental crime as provided for by the National Environmental Management Act, 1998 (Act No. 107 of 1998).
However, and regrettably unsurprising, those performing ‘Zama Zamas’ (who as humans are also part of the environment) are also at grave risk – the use of mercury to extract gold from the ore may lead to various health issues, such as kidney problems, brain damage, birth defects or even death.
b. Economic Impact
Mining undoubtedly boosts economies. According to Statistics South Africa, mining is one of the key sectors that keeps the economic engine running. Mining allures foreign direct investment, which the government can benefit from to boost revenue and create more jobs.
However, illegal mining can have the opposite effect. ‘Zama Zamas’ costs the South African economy billions of losses in tax revenue, estimated at a loss of R7 billion a year. This inevitably results in the loss of income for legal miners and even retrenchments.
The Minerals Council South Africa (MCSA) claims that illegal mining and organized crime are inter-related. MCSA is of the view that, in many instances, illegal mining is led by globally connected criminal syndicates. There are many reports that reflect this. For instance, the South African Human Rights Commission has reported that, in Gauteng Province only, approximately 400 incidents involving the ‘Zama Zamas’ have been reported between 2013 and 2015.
There have also been reports that young girls and women are found around these areas working as prostitutes for illegal miners. Additionally, there have also been reports that the people who are illegally working in the mines are mostly from neighbouring countries, such as Zimbabwe, Mozambique, Malawi, and Lesotho.
The ‘Zama Zamas’ are well-organised and often armed. For the government, closing one shaft will not be a solution. A comprehensive approach that looks not only at the impact but also the causes is required.
c. Broader Health and Community Impact
‘Zama Zamas’ create a complex impact on health issues in South Africa. Specifically, ‘Zama Zamas’ causes irreparable harm to the environment and community health through its use of non-environmentally friendly purifying methods and materials. The use of these methods and materials, and their dangerous impact, must be comprehensively dealt with to create sustainable changes within the mining sector.
MCSA supports a finding that the use of these methods and materials result in a severe impact on environmental and community health. MCSA has found that ‘Zama Zamas’ activities have been detrimental to the communities surrounding illegally-mined areas, leading to environmental pollution. The Congress of South African Trade Unions has argued that, unless the illegal miners are given the opportunity to enter the legal market, it is unlikely that conditions will improve.
The current legislative framework pursuant to the MPRDA has many shortcomings, seen in how it does not adequately account for artisanal and small-scale mining. However, efforts are currently being made to account for such changes. For example, the Minister of Minerals Resources has indicated that his Department is looking into regulating ‘Zama Zamas’ in order to protect the productivity of the mining sector. Additionally, the International Council for Mining and Metals has urged countries to amend their laws to allow for small-scale mining permits. It is possible that, by decriminalising and regulating ‘Zama Zamas’, South Africa’s high levels of unemployment and harm to the environment and community health will shift for the better.
Michael Kabai LL.B (University of Limpopo) LLM (Unisa) LLM (NWU) is a legal practitioner, adviser and senior manager of the Market Infrastructure and SROs at the Financial Sector Conduct Authority in Pretoria. The views expressed in Mr Kabai’s article are his own and do not reflect the views of the Financial Sector Conduct Authority.
Article picture: Agricola, author of De Re Metallica. Source: Wikipedia.