Mining Charter High Court judgment: MINCOSA & Labour inputs

Meeting report

The Committee received an apology from the MINCOSA CEO, Mr Roger Baxter, as he was sick. The union, Solidarity, also submitted an apology dated 11 March 2022. Solidarity General Secretary, Mr Gideon Du Plessis, indicated that there is a lack of tolerance of different views in the Committee and they would not stand to be verbally abused by Members as had happened in its previous encounter.

Minerals Council SA briefing on Mining Charter judgement
Mr Tebello Chabana, MINCOSA: Senior Executive of Public Affairs and Transformation, emphasised its members remained fully committed to the transformation objectives of the MPRDA and noted the High Court judgement had set aside only certain provisions of the Mining Charter 2018 whereas the majority of the Charter would remain the same.

The High Court case emanated from the Minister’s attempt to create legal obligations through the Charter. This led to contradictions between what was stated in the Charter compared to what is incorporated in the MPRDA.

The Minister still had the prerogative to impose terms and conditions on mining rights as given to the Minister by section 23(6) of the MPRDA. Hence, MINCOSA’s view is that there is no need to make amendments to the MPRDA.

The 2021 total contribution of the mining sector to the country’s economy was provided to the Committee.

The progress in the Mining Charter from its 2004 version to 2010 version to the current 2018 version was presented to the Committee.

MINCOSA’s transformation progress report for 2019 shows that the mining sector underperformed in achieving 26% effective ownership/meaningful economic participation, 5% annual payroll in skills development and 100% community consultation and collaboration.

MINCOSA indicated that the weighted average ownership for historically disadvantaged South Africans was 39.2% which exceeded the Charter’s minimum requirement of 26%.

Women are still under-represented across all management categories in the mining sector whereas white men still dominate strategic positions.

MINCOSA listed the challenges which it deemed hindered transformation in the sector:
• Lack of standarised reporting templates for MC2018
• Lack of clarity on aspects of MC2018 and Implementation Guidelines.
• No guidance by DMRE on standardized reporting template since January 2019; therefore mining industry reports as per its interpretation.
• DMRE Regional Managers interpreting MC2018 differently and therefore request different data.
• DMRE state of readiness to process annual reports and provide BEE scorecards – refusal to allow independent verification and transparency.
• Licencing issues.

MINCOSA outlined the initiatives it undertook to support junior and emerging miners.

Lastly, it outlined the implications of the High Court’s judgement and proposed way forward.

National Union of Mine Workers (NUM) response
Mr Joseph Montisetse, NUM President, said NUM’s main concern is about the insufficient provision made to mineworkers. The 5% stake is inadequate for workers and for communities living in surrounding areas. The mineworkers are the main drivers of mining activities. The surrounding communities deal with the effects of mining such as water pollution and shortage of land for agricultural purposes. He decried the unfairness of such a low percentage. He also spoke about the lack of provision made to women and youth.

Mr Montisetse elaborated on compliance. The High Court declared that the tribunal’s decision will not suffice because the Mining Charter is merely a policy instrument. The implication of such a judgement is that mining companies cannot be held accountable. It is a loophole that the Committee should look into. He recommended the Mining Charter be legislated into the MPRDA given its importance in dealing with economic empowerment of historically disadvantaged communities.

Mr Montisetse said that employment equity non-compliance is not being effectively monitored by the DMRE as mining executives are continually ignoring this policy. In the mining industry, white people are being appointed to the maximum level whereas black people are appointed at the minimum level with no justification offered for such appointments.

Mr Montisetse urged the Committee to look at the salaries for mining executives. Some CEOs get a paycheque with a R65 million bonus whereas mineworkers are getting meagre salaries.

Ms Nkosazana Masiza, NUM Research Officer, was due to make the briefing. However, due to a technical glitch causing unnecessary delay, the Chairperson instructed UASA to present.

United Association of South Africa (UASA) briefing
Mr Franz Stehring, UASA mining union: Divisional Operations Manager, said South Africa is the world’s largest producer of platinum and has built a legacy as one of the most productive mining countries in the world, but legislation uncertainty has caused dwindling gold production, with investment in exploration across the mining sector reaching an all-time low of global exploration spend.

UASA believed that to bring investor confidence and boost the performance of South Africa’s mining sector, government must provide certainty in legislation. Thus, UASA backed the view of amending the existing MPRDA so that Mining Charter III can be incorporated into legislation.

UASA was firmly supportive of the transformation agenda. It endorsed the view that the Minister should have more power to inspect mining companies for compliance.

UASA also welcomed the “once empowered, always empowered” clause.

Association of Mineworkers and Construction Union (AMCU) briefing
Mr Krister Van Rensburg, AMCU Head of Organisational Development, pointed out the wrong conception of minerals which pervaded in South Africa that minerals are merely capital from the ground for mining companies to make pure profit. This conception is untrue because the Freedom Charter indicated that minerals belong to the people of the country. The social-economic impact of mines should be used to uplift the poor people from the impact of colonialism and poverty.

Mr van Rensburg described the mining sector as one of the most problematic sectors in the country. Mining companies have blood on their hands. This could be traced back to the late 1800s when this mining chamber was first established as a white boys’ club at the expense of the majority of black migrant mineworkers. AMCU’s position is that the minerals belong to the people and should be used to grow the economy and the country.

Mr van Rensburg said that the High Court’s judgement reaffirms AMCU’s long standing view that the Mining Charter is merely a code of compliance and White Monopoly Capital will never comply. Government has become a servant of capital and works with capital neglecting the people who voted them into office. He called those who believed that the non-enforceable Mining Charter could lead transformation are fools. There is a need to turn the charter into legislation so it becomes enforceable since capital only has one objective which is profit which is not aligned to the interest of people.

Mr van Rensburg asked Members to take a tour of the Marikana squatter camps and urged Members to question themselves why almost 20 years had passed and people still live in such horrible conditions.

Mr van Rensburg takes pride in the AMCU belief in socialism. And socialism advocates for a strong government.

AMCU does not support or advise DMRE to appeal this judgement as the prospects for winning are slim. Government must refer to s25 of the Mineral and Petroleum Resources Development Act (MPRDA) and the Minister’s power must be expanded so that the Minister can enforce compliance. DMRE must consult all social partners and it cannot be that capital is dictating all the affairs in the sector. The Minister must have the power to take away licences away from mining companies if they did not comply.

Mr Xolani Bokoloshe, AMCU National Chair for Health and Safety, appealed to the Committee as well as leaders of government to do something to help miners. The status cannot continue. AMCU cannot accept that CEOs in the mining industry are determining their own salaries where black mineworkers are getting killed. There are CEOs who are taking money from South Africa overseas and communities are not benefitting at all. Government needs to think seriously about how to move forward.

Mr Gift Antonio, AMCU Human Resource Manager, requested the Committee to permit him to make an oral submission. He reiterated AMCU’s position that the Mining Charter must be incorporated into the MPRDA and have a binding effect.

AMCU has requested DMRE to provide a list of those mines that are not complying with the Social and Labour Plan (SLP) requirement. His observation is that mines such as the Marikana and Two Rivers Platinum have zero compliance as squatter camps are literally everywhere. This makes people question the SLP commitment and compliance.

Mr Antonio reiterated that the 5% allocation given to mineworkers and to communities is insufficient. It is way too little and should be increased.

AMCU reaffirmed its position that the Mining Charter should become part of the legislation. Should non-compliance be picked up, the Minister should be able to take away licences from mining companies. Mineral resources do not belong to foreign investors, they should be at the behest of South African citizens and for the improvement of South Africa’s social economic environment.

Mr Antonio proposed the way forward and urged Parliament to make amendments to s1 and s25 of the MPRDA to incorporate Mining Charter III. Once it becomes law, it would dispel ambiguity around the legality of the Mining Charter and protect mineworkers’ interests.

Mr Antonio said resistance to transformation in the sector is obvious as evidenced by the sector’s slow pace in achieving transformation targets. In general, the sector scores very low in the implementation of employment equity and ownership such as those JSE-listed mining companies. In contrast, he reminded Members to look at the profit generated under COVID-19.

Money is generated under a “super cycle” of metals. Anglo American platinum reportedly has paid out R80 billion in dividends whereas workers got close to none. There is a strike at Sibanye-Stillwater because the CEO is being paid a massive paycheque. He recommended the Committee summon Sibanye to present its current governance composition. It can be described as a white boys’ club.

NUM follow-up presentation
Mr Montisetse stated that the Employee Share Ownership Plan (ESOP) is not assisting mining employees. It does not provide details on how mining companies should be structured. NUM maintains the 2018 Mining Charter provision that 26% of stakes in mining should be held by historically disadvantaged citizens in perpetuity. Mining shares held by black ownership can only be sold to black citizens.

The mining industry is not adhering to procurement of 70% local goods and 80% from black-owned companies. A predominantly white-owned company such as Albany is still supplying bread to most of the mining sector. DMRE is not sufficiently enforcing such rules.

He noted that mining licence holders are not voluntarily obliging to promote transformation. The Minister’s power to enforce such rules is instrumental to assisting mineworkers.

Mr Montisetse noted the MINCOSA remark that the industry has helped a lot to improve infrastructure. His view was that organised labour and workers are being sidelined. Instead, the industry bribes municipal officials to gain benefits.

Discussion
Mr J Lorimer (DA) noted MINCOSA’s remark that the mining industry had spent quite a lot of funds on infrastructure. He questioned if it is MINCOSA’s view that such infrastructure development should be the responsibility of the municipal and provincial spheres of government.

Mr Lorimer asked MINCOSA if it had engaged in any sort of discussions with the Minister or Department following the High Court’s judgement on the way forward.

Mr Lorimer asked MINCOSA if it was under the impression that government would find other means of enforcing the provisions that had been thrown out by the court.

Mr Lorimer asked DMRE to provide an explanation why it still had not produced a standardised reporting template. He suspected that DMRE deliberately had kept the extent of transformation vague so that it could perpetually hold the industry guilty of a lack of transformation. He emphasised the negative effect of that DMRE action as the perpetual hostility towards the industry which drives away both investment and jobs for South Africans.

Mr Lorimer addressed NUM saying he was sympathetic about the 5% share it had mentioned. However, the lion's share of the lucrative profits was being handed to BEE entrepreneurs who through various means had befriended government members despite their lack of stakes in the mining sector. He asked if AMCU was concerned about lack of mining investment, particularly in those big new mines, the size of the industry as well as the number of jobs that would be created by potential new investment. He asked if AMCU recognised that the Mining Charter was a disincentive to investment. In his view, companies are not investing in those new mines because of the Mining Charter. In view of AMCU’s hostility towards capital, did AMCU believe that any new mining investment should be driven by the state?

Mr M Mahlaule (ANC) asked MINCOSA about the employment of foreigners in mining towns. The current situation in South Africa’s mining towns is that South Africans had this feeling that foreign nationals are taking away their jobs. There are a large number of foreign nationals working in the mines. He understood that although mines are trying to contain and not proceed with the employment of foreigners, the existing replacement agreement which is a South African legacy is hampering that effort. To positively contribute to South Africa and to minimise clashes between South Africans and foreigners, he urged MINCOSA to work with its social partners as it was high time to make an amendment and do away with the replacement agreement. Such an amendment would be a great asset in assisting government to end further escalation of the opportunism of xenophobic attacks. He encouraged the mining sector to hire only South Africans.

Ms V Malinga (ANC) agreed with NUM that the 5% given to miners and surrounding communities is really insufficient and she could feel their plight. She criticised the full bench of Gauteng Court that had put profit before the livelihood of miners and the mining communities. She agreed with AMCU that minerals belong to the people and it was unfair that people get only 5% of its share.

Ms Malinga said the Mining Charter required that mining companies must purchase at least 70% of its goods and services from black-owned companies but the industry is not complying saying the target was unrealistic. What are mining companies doing to help capacitate local companies in surrounding communities with the skills to meet the procurement specification?

Ms Malinga noted that the Gauteng High Court ratified “once empowered, always empowered” but to what extent has this accelerated transformation in the mining sector.

Mr S Kula (ANC) noted the horrible living conditions that many mining communities had to endure as witnessed during the Committee public hearings on the Gas Amendment Bill. It was unacceptable that people are still not benefitting from those mines 28 years into democracy.

Mr Kula noted NUM’s diagnosis of the mining sector non-compliance caused not simply by lack of implementation but rather by poor monitoring by DMRE and lack of consequence management. He requested NUM to elaborate on that point to deepen the Committee's understanding to better perform its oversight work. NUM’s proposal is to establish a mining advisory body to monitor and enforce compliance and implementation. However, he wanted to understand how this proposed body would mitigate the challenges faced by mining workers and communities at present. He asked who should be held responsible for these challenges.

Mr Kula noted the lack of consultation by mining houses of mining communities and workers. He emphasised the important role of extensive consultation and gave the example of government’s extensive consultations. It was unacceptable that mining houses should get away with this. The minimal level of consultations held by mining houses was a smokescreen to disguise the fact that all important decisions had already been made prior to those consultations. MINCOSA should conduct sufficient consultation with unions, communities and other relevant stakeholders. The Committee should ensure that this issue is addressed immediately.

Mr Kula noted NUM’s appeal to prioritise the amendment of s100(2)(a) of the MPRDA. He insisted on a timeframe for this so the section would empower the Minister to take away mining licences from non-compliant mining companies.

Mr Kula found it hard to believe MINCOSA’s stated commitment to driving transformation since both the communities and organised labour accuse the industry of lack of transformation. The transformation standards should not be set by MINCOSA on its own whilst neglecting the views of unions and communities.

Mr Kula noted MINCOSA’s remark that the mining industry is lagging behind in employment equity, especially the employment of women. A commitment was made by MINCOSA that it would strive to ensure 50% of women at management level by 2025. It was 2022 now and time was not on MINCOSA’s side if it was seriously dedicated to driving women’s empowerment in the sector. He found it unacceptable that women are so under-represented in the mining sector despite women accounting for the majority of the population in South Africa.

Mr Kula said to MINCOSA that there was nothing to be celebrated if seven out of the 15 richest black South Africans had earned their fortune from mining. It was more important to empower communities rather than individuals because when a community is stronger, community members would be able to make a meaningful impact on the economy.

Mr Kula suggested MINCOSA strike a balance between building infrastructure and growing its own economic benefits. Good infrastructure would be beneficial to economic development.

Mr Kula agreed about the replacement agreement. He distinguished the context of the past when the replacement agreement had been made and the present unemployment context. Although the agreement had been relevant at that time, it is no longer relevant now. Given the high level of unemployment and the readily available mining skills in the country, he did not believe that there is a need to hire foreign nationals. He did not insinuate firing foreign mineworkers that are currently working but mining companies need to consider the unemployment issue in future.

Mr Kula urged MINCOSA to listen to the inputs brought forward by unions. For the very first time, he witnessed unions unanimously sharing the same voice. The “white boys’ club” must be urgently addressed as it cannot be fair that billions are paid out in dividends and CEO remuneration while workers are not paid a decent salary.

Ms P Madokwe (EFF) noted the MINCOSA concern that it was not getting a response from DMRE on the reporting template so it was unable to measure its transformation. In the same breath, she could argue that MINCOSA had not clearly stated if transformation targets were met or when those targets would be met.

She asked MINCOSA what conversations it had had with stakeholders such as workers, communities and unions to ensure that transformation targets will be met and there is compliance.

Ms Madokwe revealed that community forums in the mining sector are often short-term and forever changing with some communities being at the centre of fraudulent activities such as selling jobs She believed that engagements with those community forums are hampering the transformation goal and transformation conversations as some forums are convened only for self-enrichment. She urged MINCOSA to meaningfully engage with stakeholders in communities.

On the MINCOSA belief that the local procurement targets were impossible to achieve, she urged it to come up with solutions instead of casting them off. Why did MINCOSA not consider collaboration with social partners to achieve those targets? They need to have clarity on who should be held responsible for non-compliance.

Ms Madokwe remarked that the recent court judgement would be a blow for mining communities and unions advocating for transformation in the mining sector. Thus she urged the Committee to use this opportunity to review the shortcomings of the Mining Charter to see if there are more issues to be reviewed. She encouraged the public to continue having this conversation.

The Chairperson pointed out the dilemma between non-compliance due to non-legislation and disincentivising investment due to over-regulation. In this instance, mining houses are disobeying policy due to the Mining Charter being a policy document and not legislation. He was concerned about the lack of voluntary cooperation amongst stakeholders which would force legislators to legislate everything. This would lead to over-regulation which investors would not like.

MINCOSA response
Mr Chabana replied that MINCOSA had engaged with DMRE and reaffirmed its commitment to transformation. Whether or not the Mining Charter is a policy document and unenforceable is irrelevant to MINCOSA’s dedication to transformation. MINCOSA is fully aware of the legal standing of the Mining Charter and the MPRDA.

Mr Chabana cautioned the Committee that some of the arguments made in this meeting were not based on fact whereas MINCOSA was presenting facts. By presenting those facts, MINCOSA is trying to find ways to accelerate the progress of transformation in the mining sector. The Minister needed to inform MINCOSA of the actions he wanted it to take based on the presented facts.

MINCOSA’s position is it clearly objects to making amendments to the MPRDA. The Minister is already empowered in the MPRDA, although not through s100(2) but through other provisions of the Act. Mr Chabana indicated his interest in DMRE's position on amendments.

Mr Chabana lamented the lack of a standardised reporting template which he described as the biggest challenge for monitoring transformation in the mining industry. He called it the biggest tragedy as DMRE and the Committee are contemplating confiscating mining licences whilst the industry is not yet in possession of all the facts and provided with a standardised regulator. The BEE verification used for every other sector to measure transformation has been denied to the mining sector. He thus appealed to Parliament to look into that.

MINCOSA agreed with the unions’ view that 5% provision was insufficient. The target for 30% BEE on new mining rights remains uncontested. If stakeholders of a mine within a community decide to give someone 5,10 or 15% of the mining share, it is within their rights to do so as it is a negotiating process. What MINCOSA asks is why certain stakeholders are restricted to certain percentages. He corrected Members and unions’ view by pointing out that MINCOSA is trying to open up communities for greater shares.

MINCOSA does not object to local content and is encouraging mining companies to continue to do this. The challenge is about the rigid percentage for local content. He could speak at length about the various programmes by mining companies under MINCOSA showing communities of the various specialised contracts available to local communities. However, the outcome is not great as some of the specialised heavy machinery is just unable to be procured locally. On that point, he agreed with Mr Kula’s view that the sector’s focus should be on empowering communities rather than empowering black industrialists. It was indeed DMRE and the government that are empowering black industrialists rather than communities. Hence, even though communities are accusing mining companies of not doing enough, the Committee needed to know that mines can be a catalyst but cannot be the only solution to resolve the poverty that the country faces.

Mr Chabana disputed Mr Kula’s remark that the mining industry is all talk and no action. In this meeting, MINCOSA has put everything on the table for the Committee to decide if the industry has transformed or not. He also disagreed that MINCOSA was picking and choosing which standards to comply with. MINCOSA firmly believed that standards should be set out by government as it is its prerogative to set out reasonable standards. However, the emphasis should be on reasonable standards. In a constitutional democracy such as South Africa, citizens are entitled to challenge unreasonable laws. MINCOSA is not objecting to the set BEE targets but rather to the percentage of local content as it believed that a 60% requirement was unrealistic.

Mr Chabana explained that it would require time and investment for the mining sector to get there. He used automobiles as an example to demonstrate his point. Government had given the automobile industry up to 21 years to reach that 60% local content requirement. The industry has also received intensive funding from the Department of Trade and Industry (DTI) to ramp up the speed. The automobile industry is currently at about 39% local content which still falls short of the 60% requirement. In the mining sector, MINCOSA tried to engage with DMRE on that matter. The DTI and MINCOSA had undertaken a study to assess what goods can be produced in South Africa within a reasonable period of time. The findings of the study were presented to DMRE but were ignored. MINCOSA is saying that government needs to have targets that are informed by facts. To ask the mining sector to achieve 60% local content in a five-year period is unreasonable and unrealistic.

In response to Ms Madokwe, Mr Chabana confirmed that conversations had been taken place with other stakeholders as MINCOSA was eager to explore ways to improve transformation. It has started the conversation by engaging with union leadership such as NUM and Solidarity. MINCOSA intends to take such engagements to a deeper level. It urged DMRE to establish a transformation council to include community, labour, industry and the Department so that all parties can meet quarterly to discuss transformation in a structured manner based on facts.

Mr Chabana replied about the industry’s assistance to help local communities produce to achieve the 60% local content quota. Mining requires manufacturing of the most highly-technical and capital-intensive heavy goods. Those goods cannot be produced by those local communities even with the industry’s help. He questioned if it is fair to ask communities to produce a Mercedes Benz. He believed that the correct approach should be that mining companies must support local content which can be produced locally. He assured the Committee the industry is exploring programmes to get manufacturers, DTI and DMRE on board to discuss what goods can be produced locally.

It is impractical and impossible that those large manufacturers from which the mining industry procures its heavy machinery would relocate to South Africa given that this market accounts for less than 5% of their market.

Mr Chabana reiterated the mining industry’s track record on transformation despite its understanding that the Mining Charter was not legislated. He asked Members to look at the progress in transformation since the 2004 Charter. Those achievements show that the industry is willing to transform. Government needed to enable this transformation. The mining industry is open to conversations with anyone that is disputing its commitment to transformation so they can figure out a way to see what needed to be improved.

MINCOSA’s position is not a matter of picking or choosing targets but rather pointing out that the industry cannot be forced to achieve unrealistic targets. The industry also cannot tolerate the Mining Charter contradicting the MPRDA itself. He spoke of the importance of South Africa being an ideal investment destination.

Mr Nikisi Lesufi, MINCOSA Senior Executive, replied about migrant labour stating that there is no active programme at the moment to recruit foreign mining labour into the country. He recognised the legacy issue which MINCOSA is attending to. There were about 140 000 foreign workers in mining in 2010. This figure had dropped to 35 000 as of the day before. MINCOSA agreed that it should be looking at the phasing-out strategy. By MINCOSA’s estimate, natural attrition such as age and retirement would lead to most of the foreign mining workers retiring in the next five to ten years and there would only be about 5000 foreign employees by 2030. He did not think it was a real issue of concern.

Mr Alex Khumalo, MINCOSA Head: Social Performance, acknowledged the mining industry has committed quite a lot of funding to improving mining town infrastructure such as building roads and clinics. However, the type of jobs created by such activities are usually short-term. If a mining company decides to build a school or a road, it employs local labour for a period between 18 to 24 months. The presentation indicated that the industry spent about 1.8% of its investment on infrastructural programmes whereas one of the biggest challenges in those communities is unemployment. In some areas, the industry had to fork out R80 million to help build their water supply infrastructure to benefit local communities. Although the industry is willing to work with government on infrastructural development, the industry’s view is that it should still be the sole responsibility of the government as provided by s157 of the Constitution to lead such development. If various spheres of government can be more proactive in the development of infrastructure, then industry would have more time and resources to focus on assisting local entrepreneurs who can then boost local economic growth.

Mr Khumalo commented on community engagement and the business forums. He recognised the lack of extensive engagements with communities and guaranteed that the industry is aiming to intensify its consultations in future. The challenge about consultation is that sometimes when the Social and Labour Plan (SLP) had been signed off by stakeholders, the level of engagement became insignificant. This is one of the areas the industry needed to improve on. The Mining Policy Framework regulations of 2019 require mining companies to engage with communities at least three times a year. The purpose of such engagements is for communities to receive regular updates and to empower the voiceless for their voice to be heard.

On business forums, Mr Khumalo believed that those forums wrongly believed that they are the legitimate voice because of the gap of meaningful engagements with communities. To solve the problem, the industry need to work together with the regulator to ensure that the voiceless such as women, youth, traditional authorities as well as those aspirant entrepreneurs are heard.

Ms Fundiswa Ndaba, MINCOSA Senior Policy Analyst, agreed with the Committee and it has always been MINCOSA’s view that women are under-represented in the mining sector. This huge challenge is not unique to South Africa but found in most jurisdictions. Women were only permitted to work in mines from 1996. Today, the female workforce accounts for about 14% of the total workforce. The industry took a long time to achieve this 14% which is on par with advanced economies such as Canada and Australia.

MINCOSA has set targets on what the industry is able to achieve in the next ten to fifteen years. By 2035, the target is 30 to 40% of all workers in mining should be women. The industry is even targeting at 50% of female representation in mining management positions. Ms Ndaba emphasised that those targets are well above both the current legislation and the Mining Charter.

Ms Ndaba highlighted the need for the industry to deal with patriarchy, cultural issues, sexual harassment, safety and PPE that are conducive to women employment. The supply of women miners also needed to be looked at. It is great news that more female students are taking part in mining, engineering and geology related studies at universities; however, it will take time before they can be appointed to management positions. The Fourth Industrial Revolution would have a huge role in shaping how women are represented in the industry.

The Chairperson remarked that MINCOSA had taken much of the time for its response. Some items should have been stated more clearly in the presentation.

NUM response
Mr Montisetse noted the absence of the issue of the death of foreign mineworkers. NUM represents all mineworkers regardless of their nationality. However, it does hold the view that when a non-citizen miner leaves the mine without any justifications such as accidents or occupational disease, that miner should not be replaced by someone from outside of South Africa.

Mr Montisetse suggested the composition of the tribunal or advisory body should be placed under DMRE but there needs to be assurances that legal representatives from organised labour should be on board to monitor the implementation of the Mining Charter.

Mr Montisetse lamented the lack of implementation of the Mining Charter through the SLP. After the Employee Share Ownership Scheme (ESOP) disbanded, mining companies did nothing to implement the charter in terms of ESOP for workers. He further accused ESOP of not reflecting the true profits that mining companies accumulated. For instance, Sibanye had generated a profit of R28 billion in the 2021/22 financial year whilst workers gained nothing. In mining towns across many parts of the country, mining companies did nothing to assist basic infrastructure such as potholes. He further disputed the argument that asking mining companies to assist communities would disincentivise investment because it has been the practice in countries such as Canada, Botswana and Ghana. In those countries, no mining development is permitted until mining companies have given something to local communities.

Mr Montisetse emphasised the urgency of incorporating the Mining Charter into the MPRDA and that punitive measures must be in place for non-complying mining companies.

AMCU response
In response to Mr Lorimer, Mr van Rensburg expressed doubt that investors are not investing in South Africa because of the measures in place to protect communities. He argued that should it be the case – although he very much doubted – then South Africa needed to have greater policy certainty. Thus it is of great importance to formalise the Mining Charter in the MPRDA. His observation is there were more whispers from potential investors who wanted greater certainty so that they could comply. Hence, for the sake of attracting investment, he endorsed the motivation to amend the MPRDA and incorporate the Mining Charter.

On the paranoia of Foreign Direct Investment, Mr van Rensburg pointed out that the South African Mining Development Association (SAMDA) had previously indicated that there were a lot of black entrepreneurs who are interested in investing in mines. There are many young black start-up miners out there who are interested but lack capital. Those people are in need of government’s help to get the capital to start their own business. Assisting those start-up young entrepreneurs is closely aligned to growing South Africa’s own capacity. The country should not be overly fixating on foreign direct investment.

Mr van Rensburg indicated to Mr Lorimer that AMCU is doing a lot to fight for mineworkers’ rights. He appealed to the Committee about the vast wage gap in the mining sector. AMCU is currently in court with Sibanye-Stillwater about the underpayment and overtime payment of workers for years. He highlighted the urgency to address the legacy of inequality in the country.

Mr van Rensburg explained to Ms Madokwe what AMCU had done to push transformation in the sector. For example, AMCU had tried to ensure the safety of mineworkers during the harshest period of COVID-19 in early 2020. He found it ironic that the Minister very quickly declared mining an essential service after the lockdown was declared without thinking of the impact of diseases on mineworkers. To protect workers, AMCU had to go to court to ensure there were Disaster Management regulations for the sector. Fortunately, AMCU had won the case and the court instructed DMRE to legislate minimum safety standards such as social distancing, hygiene, testing, screening and the types of masks for mineworkers.

AMCU is not here to criticise DMRE, but rather it is urging the Committee to give the Minister more power to enforce the bigger socio-economic issues such as transformation. AMCU wanted the Minister to be empowered to inspect mines to ensure compliance and penalise non-compliance.

Mr van Rensburg agreed with the Chairperson’s view that there is a lack of trust among social partners in the mining sector. The root cause is that the industry pays lip service to compliance such as those 'coffee and tea sessions' to fulfil the consultation requirement whilst there is no compliance.

Mr Bokoloshe stated AMCU’s position is the country needs to do away with the replacement agreement. He indicated the urgency to give basic salaries to beneficiaries such as providing for wives and children until pensionable age. He spoke about the number of women workers in the mining industry which led to a large number of children being left at home unattended. Instead of providing material compensation, the industry decided that women workers must bring their children to the mines. The industry refuses to take the responsibilities that it ought to take.

UASA response
Mr Stehring appreciated the robust discussion today among organised labour, industry and government. It is an indication that all these stakeholders can work together to reach an agreement. He believed that it was vital to engage in constructive discussion to get a collective agreement rather than using legislation as it usually takes longer. He appealed to all stakeholders to do the right thing and get the Mining Charter III signed off as part of the collective agreement.

The Chairperson thanked everyone for their inputs. What are the alternatives? If matters go to court, it will result in fraught relations; a consultative process is a better option.

The Committee minutes for 15 March 2022 was adopted and the meeting was adjourned.