The MPRDA legislative framework in the form of section 27 which only deals with small scale mining has proven to be inadequate to fully respond to the needs of the ASM industry. This framework was largely designed for large scale operations and has not taken into consideration the peculiarities of the ASM industry and is thus not suitable. Small scale miners have over the years experienced challenges with the current system including (i) accessibility and ease of use of the online SAMRAD application system (ii) resources requirements (iii) the locality of DMRE offices (iv) access to information (v) access to funding (vii) onerous compliance requirements and (viii) lack of support from government (institutional support, funding, capacity building, infrastructure, market, access to land, etc).

In terms of international good practice, an Artisanal and Small-Scale Mining policy and legal framework must be clear and rational. License categories should be workable with respect to tenure, duration, rights and obligations. The licensing criteria, processes and systems should be simple and clear to comprehend and use.

Government policy proposals:

In order to ensure that the licensing regime and administration for the Artisanal and Small-Scale mining industry conforms to international best practice and benefits the people of South Africa, Government proposes the following measures:

The dedicated policy and legal regime will provide for two types of permits for 1) artisanal mining and 2) small-scale mining.

A dual licensing process is proposed. The current first come first served application process will be retained as a default licensing method. However, Government will be empowered to invite applications for artisanal mining or small-scale mining in designated areas. This invitation system will be developed after consultation the Council for Geoscience (CGS).

(c)        Licensing criteria

Licensing for ASM operations to be undertaken in a fair, equitable and transparent manner considering the need to:

The legal nature of an Artisanal Mining Permit and a Small-Scale Mining Permit must be clarified.These permits should be limited real rights granted and registered by the Department and capable of being transferred, mortgaged and capitalised, as is the case with mining rights granted in terms of the MPRDA. A permit holder should be able to enforce his rights in terms of the permit against third parties.

Considering the rudimentary nature of artisanal mining and particularities of small scale mining the duration and size of permits should be determined taking into consideration factors such as but not limited to the type on mineral being mined, technical and financial resources required and the environmental impacts associated with the extraction of that mineral.

The determination of the duration of ASM permits should ensure the guarantee to security of tenure to permit holders. This should also include principles of sustainability and optimal exploitation of resources while benefits should accrue to permit holders as early as possible.

The Minister will be empowered to designate or demarcate certain areas as artisanal or small-scale mining areas. The designation or demarcation wilt be informed and supported by geological data from the CGS and also by the prevalence of ASM activities in a given area. This approach will assist with optimisation and pooling of resources, sharing of risks and benefits amongst the players.

The Minister may also collaborate with the departments responsible for environment , Forestry and Fisheries and Water affairs to undertake feasibility studies on an identified area to determine the risks, potential impacts, water resources before a decision on reservation of an area for ASM is made.

Artisanal Mining Permit and a Small-Scale Mining Permit must be reserved for South Africans, as defined. The presence of illegal immigrants within the artisanal and small-scale mining space must be addressed through transitional provisions to eliminate illegal mining activities. A transitional period for all illegal miners to come forward and subject themselves to the process of formalisation must be explored. If the illegal miners do not take advantage of this transition window then law enforcement agencies will have to step in.

(i)        Issuing of permits to individuals or Co-operatives

Although licensing to private individuals will not be prohibited, Government will prioritise the issuing of Artisanal Mining Permits and Small-Scale Mining Permits to co-operatives . Co-operatives are preferred due to their potential for a much wider impact to spread the economic benefits wider and ensuring sustainability through the sharing of risks.

Artisanal Mining operations and Small-Scale Mining operations should be limited to surface and open cast mining. Consideration will be made to design a risk-based system of mining considering the depth and mining methods to be used by artisanal and small-scale miners. This will be guided by health and safety aspects of operations together with environmental management and necessary rehabilitation measures.

A holder of an Artisanal Mining Permit and a Small-Scale Mining Permit should be afforded a right to transfer or encumber in part or whole the permit subject to the Ministers consent. This will assist permit holders in raising capital for the sustainability of operations and even to spread the benefits to other persons who have an interest in ASM. The transfer of permits should be done in a fair, equitable and transparent manner. The transferee must demonstrate their ability to carry out the mining operation and comply with the requirements of the permit.

The policy and legal framework should empower holders of ASM permits to add value to their minerals, trade in the open market and be involved in the complete value chain of mineral development. Consideration should be made for the establishment of a regulated market or a central buying agency to afford artisanal and small-scale miners a platform to legally sell and trade their mineral products in a transparent and protected environment. This will assist with elimination of unscrupulous syndicates who profit unduly from hard labour of artisanal and small-scale miners and the proliferation of underground/ black markets that undermine the financial systems.

Co-existence between large scale operators and artisanal and small-scale operators should be enabled in the form of Tributing Agreements. These may include shedding and identifying land for ASM activities within the large-scale operator's concessions and exploring the potential for tribute and buy-back arrangements, sharing of liabilities and responsibilities, technical support, equipment leasing schemes and opportunities for ASM to process and refine their ores, thus making them part of supply chains.

Very important is that co-existence must only take place where the large operator still operates. This will ensure and protect the ASM operators against inheriting environmental liability which may have been incurred by the large operator. The framework should also provide for incentives and off-sets to encourage large scale operators to co-exist with artisanal and small-scale miners.

A framework for ASM to have access to the mining of tailings dumps and historic residue deposits and stockpiles should be developed in line with existing jurisprudence as outlined by judicial decision on the matter. Owners of these tailings and dumps should be encouraged to work with artisanal and small-scale miners considering the applicable environmental management and water related legal instruments.

Access to land remains a contentious issue which requires collaboration with responsible Government departments. The process to obtain access to land from the landowners and lawful occupiers including holders of informal land rights must be clarified in line with the prevailing regulatory framework. Provision for access not to be unreasonably denied should be incorporated. In this regard the framework must provide for safeguards in the form of meaningful consultation requirements, negotiation of compensation for access land with landowners and lawful occupiers resettlement or relocation and dispute resolution mechanisms. This also include compliance with requirements for zoning of identified land for mining purposes as the case may be.