JOHANNESBURG, Gauteng — As the South African government introduces strict new illegal mining legislation that includes mandatory jail time for offenders, industry experts warn the measures may fail to address the root causes of the crisis. David van Wyk, a senior researcher at the Bench-Marks Foundation, argues that deeply entrenched issues like labor brokering and restricted access to tailings will continue to fuel underground “ghost operations” despite the new legal framework.
The new legislative adjustments, recently announced by the Justice Minister, aim to police the mining sector and formally criminalize illegal mining activities. While van Wyk notes that establishing a legal framework for small-scale and artisanal mining is a welcome and long-overdue step, he highlights significant shortcomings identified during draft consultations alongside the National Association of Artisanal Miners, the Legal Resources Centre, and other civil society partners.
The ‘Ghost Operation’ Crisis and Labor Brokering
According to a recent study conducted by the Bench-Marks Foundation in Rustenburg, criminalization alone will not solve the issue. The study revealed widespread “ghost operations” occurring underground, driven by the industry’s heavy reliance on subcontracting and labor brokers.
Because major mining companies utilize labor brokers to secure cheaper, non-unionized workforces—a practice unions like the NUM and NUMSA, have protested for over two decades—it has become nearly impossible for shift bosses and mine captains to distinguish between formal mine employees, subcontracted workers, and illegal miners. Van Wyk stresses that limiting labor brokers is essential to gaining control over shaft security.
A Dangerous Skills Gap and Foreign Labor Restrictions
A major point of contention in the new artisanal mining laws is the exclusion of foreign mine workers. Historically, the South African mining workforce drew heavily from Mozambique, Zimbabwe, Malawi, Lesotho, and the Eastern Cape. Today, large-scale mining corporations like Anglo American are still permitted to recruit foreign labor from these regions. However, the new artisanal legislation explicitly bans small-scale miners from doing the same.
Van Wyk points out a critical disjuncture: South Africans from provinces like the North West, Free State, and Mpumalanga were historically excluded from mining ownership and technical roles, serving primarily as labor. Consequently, local artisanal miners often lack the specialized technical skills required to extract minerals safely. Without the ability to legally employ experienced foreign workers, this knowledge gap remains a severe safety hazard.
This lack of shared technical knowledge contributes directly to ongoing underground tragedies. This was underscored recently when 14 mine workers died in a rockfall in Rustenburg. Furthermore, mass retrenchments at the Karee shaft and other local mines over the past two years have left thousands of unemployed workers in informal settlements like Nkaneng. With few alternative livelihoods, many turn to illegal underground mining, perpetuating the cycle of danger.
The Tailings Monopoly: Where Do Artisanal Miners Go?
Under the proposed regulations, South African nationals can apply for artisanal mining permits. However, these permits are limited in operational size and explicitly prohibit underground mining, restricting permit holders to remining surface tailings.
The practical reality, however, is that the vast majority of profitable tailings have already been licensed to large-scale corporations. Companies like Mintails, Sibanye, and DRD Ergo hold massive remining licenses across the country. Van Wyk questions where small-scale artisanal miners are supposed to operate when the surface tailings are already monopolized by major industry players.
He also pointed out glaring regulatory inconsistencies, such as the Jagersfontein tailings dam—which yields diamonds—being classified by the Department of Mineral Resources as a water affairs operation rather than a mine, a loophole that allows large-scale extraction to bypass standard mining regulations.
The Push for Ongoing Mine Rehabilitation
Beyond the immediate policing of active shafts, the Bench-Marks Foundation is calling for an overhaul of mine closure and rehabilitation laws. Currently, mines are only legally required to rehabilitate and close shafts once their entire operations cease, a process that can take 20 years or more.
In the interim, individual shafts and tunnels are frequently abandoned and left unsecured, providing easy access for illegal miners. Van Wyk argues that the Department of Mineral Resources must mandate ongoing, proactive closure and rehabilitation of unused shafts, rather than waiting for a mine’s total end-of-life.
The public comment process for the draft legislation is set to close later this month, leaving industry stakeholders waiting to see if the government will amend the laws to address these systemic loopholes before they are finalized.
