Draft only please do not cite or distribute without author’s permission

Just Cause (New York, Rowman and Littlefield 2000);Cornell D, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New York, Routledge 1999);Cornell D, At the Heart of Freedom: Feminism, Sex and Inequality (Princeton, Princeton University Press 1998). Gordon and Sylvester (2004) 85 & 86.

98^ Modiri (2015) 242 referring to Van Marle K, ''No Last Word': Reflections on the Imaginary Domain, Dignity and Intrinsic Worth"' 2002 Stellenbosch Law Review 299-308.

99^ Gordon and Sylvester (2004) 81. They refer to experts such as economists, demographers, educators, anthropologists, sociologists, psychologists and specialists in agriculture, public health and nutrition that were involved in the promotion of modernisation as a project. Practitioners and academics involved in development were usually removed from the daily lives of those that were being targeted by development projects. Simon D and Narman A, Development as Theory and Practice: Current Perspectives on Development and Development Co-operation Taylor & Francis 2014).

100^ Gordon and Sylvester (2004) 81&82; Escobar (2011) 45.

101^ Gordon and Sylvester (2004) 83; Escobar (2011 41; Kothari U and Minogue M, Development Theory and Practice: Critical Perspectives (Hampshire, Palgrave 2002) 39.Some even view this as the continuation of the unequal relationship between the coloniser and the colonised.

102^ Gordon and Sylvester (2004) 85 & 86.

103^ Gordon and Sylvester (2004) 80.

104^ Gordon and Sylvester (2004) 75.

105^ The Mining Charter is created by the Minister of Mineral Resources in terms of s 100 of the MPRDA. See discussion below.

106^ Parpart J, 'Lessons from the Field: Rethinking Empowerment, Gender and Development from a Post- (Post-?) Development Perspective' in Saunders K (ed) Feminist Post-Development Thought (London & New York, Zed Books 2002) 44&45; Bank W, World Bank Participation Source Book (Washington DC, World Bank, Environment Department Papers 1995);Bank W, World Development Report (New York, Oxford University Press 1999) 153; Bank W, World Development Report: Attacking Poverty (New York, Oxford University Press 2000/1) v.

107^ Parpart (2002) 45, 52. Bank W, World Development Report: Attacking Poverty (New York, Oxford University Press 2000/1).

108^ This is the way in which mainstream institutions such as the World Bank understands “empowerment”. Parpart (2002) 45.

109^ Parpart (2002) 41.

110^ Broad-Based Black Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry 2017 (“2017 Mining Charter”).

111^ 2004, 2010 and 2017 charters as well as the 2016 draft charter.

112^ Reference to the title of Chapter 2 to of Commission BEE, Black Economic Empowerment Commission Report (Johannesburg, Skotaville Press 2001) 3.

113^ See in general Commission BEE, Black Economic Empowerment Commission Report (Johannesburg, Skotaville Press 2001). The BEE commission was established under the Black Business Council, an umbrella body representing major black business organisations, in May 1998 and chaired by Cyril Ramaphosa, current day vice president of South Africa.

114^ According to the BEEcom report, RDP has its origins in the Freedom Charter. The RDP is the result of various conferences, workshops and policy-making forums initiated by the ANC in the late 1980’s and early 1990’s and provides for the means to achieve national democratic transformation. The values underlying RDP are: meeting basic needs, developing human resources, building the economy and democratising the state and society. Commission BEE, Black Economic Empowerment Commission Report (Johannesburg, Skotaville Press 2001) endnote 9.

115^ BEECom Report (2001) 1. See in general Bond P, Elite Transition: From Apartheid to Neoliberalism in South Africa (London, Pluto Press 2000)

116^ BEECom Report (2001) 1.

117^ Tangri R and Southall R, 'The politics of black economic empowerment in South Africa' 2008 (34) Journal of Southern African Studies 703.

118^ BEECom Report (2001) 2; Horne R, 'Patterns of ownership and labour unrest within the South African mining sector' 2015 (40) Journal of Contemporary History 26.

119^ In addition to the ownership of businesses, BBBEE also focuses on human resource development, the preferential procurement of goods and services, representation of black persons on management levels of businesses and investment in black owned enterprises. See the definition of “broad-based black economic empowerment” in section 1 of Broad-Based Black Economic Empowerment Act 53 of 2003,

120^ BEECom Report (2001) 2. The BEEcom defined BEE as “…an integrated and coherent socio-economic process…located within the context of the country’s national transformation programme, namely RDP…aimed at redressing the imbalances of the past by seeking to substantially and equitably transfer and confer the ownership, management and control of South Africa’s financial and economic resources to the majority of its citizens…to ensure broader and meaningful participation in the economy by black people to achieve sustainable development and prosperity.” Broad-based black economic empowerment is provided for in the Broad-Based Black Economic Empowerment Act 53 of 2003,

121^ In the mining industry, for instance, a continued emphasis on BEE ownership deals (in spite of the implementation of BBBEE) is blamed for the labour unrest that took hold of the industry in 2012. See Horne (2015).

122^ Terreblanche S, A history of inequality in South Africa 1652-2002 (Scottsville, University of Kwazulu-Natal Press 2002) 56; Bond (2000) 13&14.

123^ The Freedom Charter of the African National Congress was adopted on 26 June 1955 at the Congress of the People in Kliptown. The charter sets out certain core principles or “freedom demands” agreed upon by the African National Congress and its allies. Available at http://www.anc.org.za/content/freedom-charter accessed on 30 July 2017.

124^ Terreblanche (2002) 106.

125^ Terreblanche (2002) 54-56; Bond (2000) 13&14.

126^ Programmes such as RDP and GEAR were based on models provided by the Development Bank of Southern Africa and the World Bank. Many commentators, however, argued that neoliberalist policies might not have been the most appropriate policies to address the problems South Africa faced at that stage. See in general Bond (2000) & Terreblanche (2002) chapter 11.

127^ BEECom Report (2001) 3&9.

128^ BEECom Report (2001) 9

129^ BEECom Report (2001) 3. See Terreblanche (2002).

130^ BEECom Report (2001) 48. The commission referred to the Poverty and Inequality Report prepared for the Executive Deputy President (1998). Making Democracy Work: A Framework for Macroeconomic Policy in South Africa (1993).

131^ BEECom Report (2001) 48. The report refers to the Global Poverty Report, July 2000, which was submitted to the G8 Okiniawa Summit by the African Development Bank, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank, International Monetary Fund and the World Bank.

132^ BEECom Report (2001) 48.

133^ Howard J, 'Half-hearted regulation: Corporate social responsibility in the mining industry' 2014 (131) The South African Law Journal 11; refers to the findings of the Truth and Reconciliation Commission of South Africa TRC, Truth and Reconciliation Commission of South Africa Report (2003) http://www.justice.gov.za/trc/report/ accessed on 6 March 2016 vol 6 (2003_section 2, chapters 5: Reparations and the Business Sector and 6: Reparations and Civil Society. The Truth and Reconciliation Commission (“TRC”) was created in 1995 by the Government of National Unity of South Africa to assist South Africans in dealing with the atrocities that occurred under apartheid. See http://www.justice.gov.za/trc/ accessed on 30 July 2017.

134^ Howard (2014) 11 referring to Crush J, Jeeves A and Yudelman D, South Africa's Labour Empire: A history of black migrancy to the gold mines (Cape Town, Westview Press 1991) 1 and Hamann R & Bezuidenhout A “The mining industry” in Fig D, Staking their claims: Corporate Social and Environmental Responsibility in South Africa (Scotsville, UKZN Press 2007). South Africa has the largest deposit of gold reserves, but the reserves are not of a high grade and require costly and labour intensive endeavours to extract from deep lying reefs.

135^ TRC Report vol 6, section 2, chapter 5 151 – 155.

136^ The Mining, Minerals and Sustainable Development (“MMSD”) Project identifies three types of communities affected by mining: “occupational communities” who consist of households or families dependent on mining for all or most of their income; “residential communities” which refer to households or families living in the geographical areas of the mine, having settled in the area either before the mining activities have commenced or as a result of the mining activities and “indigenous communities” referring to households or families with ancient or cultural links to the land where mining takes place. MMSD Final Report “Breaking New Ground: Mining, Minerals and Sustainable Development” chapter 9 “Local communities and mines” 2002.

137^ Sutton IB “The diggers’ revolt in Griqualand West, 1875” (1979) International Journal of African Historical Studies 41-43. Sutton describes the influence of the discovery of diamonds in Griqualand West, the development of practices regarding the employment of labour and racial division and how these practices where transferred to the Rand where gold mining took place.

138^ The 1875 revolt of white diamond miners in Griqualand West against British Rule is regarded as the start of the white trade union movement in South Africa. The diamond fields saw conflict regarding African labour between government and white diggers, which conflict was later mimicked by gold miners in the 1922 Rand Revolt. Sutton (1979) 40-42.

139^ Between 2009 and 2015 labour unrest took place in reaction to low wages and poor working and living conditions. Horne (2015) 27.

140^ Mbatha P and Wynberg R, 'Mining and the Myth of Benefits in South African Rural Coastal Communities' in Wynberg R and Hauck M (eds), Sharing the Benefits from the Coast (Cape Town, UCT Press 2014) 66.

141^ The contribution of the mining industry to the GDP of the country has been declining steadily over the last two decades, but it remains important to SA’s economy. The mining industry currently contributes 8% to the country’s Gross Domestic Product and employs 5% of the formal workforce - Statistics South Africa “Mining: winners and losers of 2015” 2 March 2016; Statistical Release P 0441 “Gross domestic product – Fourth quarter 2015”; Statistical Release P 0277 “Quarterly employment statistics – December 2015”. The performance of the industry still dominates the JSE, as is evident from the effect the decline in the industry has on pension funds - Harvey R “Three mining changes that could net major investment” Business Day Live 8 February 2016 available at http://www.bdlive.co.za/opinion/2016/02/08/three-mining-changes-that-could-net-major-investment accessed on 31 July 2017. The mining industry is a great contributor in value to black economic empowerment and furthermore contributes extensively to the country’s foreign exchange earnings. - Smit C “The role of mining in the South African Economy” KPMG South Africa Blog 23 December 2013 available at http://www.sablog.kpmg.co.za/2013/12/role-mining-south-african-economy/ accessed on 31 July 2017.

142^ Southall R & Tangri R “The politics of Black Economic Empowerment” (2008) 34 Journal of Southern African Studies 703.

143^ 28 of 2002 (“MPRDA”).

144^ “Benefit sharing with poor mining communities through empowerment”.

145^ MPRDA s 1.

146^ The definition refers to “communities immediately hosting, affected by supplying of labour to the operations”.

147^ A “historically disadvantaged person” refers to a person or group of persons that was affected by unfair discrimination before the Constitution of the Republic of South Africa, 1996 came into force and includes associations and juristic persons in certain instances. MPRDA s 1.

148^ Broad-Based Socio-Economic Empowerment Charter for the South African Mining Industry, 2004 (GN 1639 GG 26661 of 13 August 2004) (“2004 Mining Charter”).

149^ Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry (GN 838 GG 33573 of 20 September 2010), (“2010 Mining Charter”).

150^ Broad-Based Black Economic Empowerment Act 53 of 2003, section 1. Reference to “HDSA’s” is replaced with “Black People”, as defined in the Broad-Based Black Economic Empowerment Act.

151^ Draft Reviewed Broad Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry 2016 (GN 450 GG 39933 of 15 April 2016), definition of Broad-Based Black Economic Empowerment 11.

152^ “(a) increasing the number of black people that manage, own and control enterprises and productive assets; (b) facilitating ownership and management of enterprises and productive assets by communities, workers, co-operatives and other collective enterprises; (c) human resource and skills development; (d) achieving equitable representation in all occupational categories and levels in the workforce; (e) preferential procurement from enterprises that are owned or managed by black people; and (f) investment in enterprises that are owned or managed by black people.”

153^ MPRDA preamble, section 2 (i) – it is an objective of the MPRDA to ensure that mining rights holders promote “the socio-economic development of the areas in which they are operating”.

154^ In the instance where a concept is not defined in the Charter, but it is defined in either the MPRDA or the BBBEE Act, the Charter must be read and interpreted together with the MPRDA and the BBBEE Act. 2017 charter 2.15, 27.

155^ In terms of the Mining Charter, a mining right holder must promote different elements to be regarded as compliant. The different elements represent the different levels on which broad-based empowerment should take place. These elements are ownership, human resource development, mine community development, procurement supplier and enterprise development, employment equity and sustainable development and growth.

156^ In terms of s25 of the Local Government Municipal Systems Act 32 of 2000, a municipal council must adopt an IDP regarding the planned development of a municipality. The IDP must align the municipality’s resources with the implementation of the plan, and it will serve as the policy framework on which the municipality’s annual budget must bet based. The IDP must furthermore be compatible with provincial and national development plans. The aim of the IDP is to overcome the legacy of Apartheid planning and the impact that it has on the poor. The plan is made for 5 years and must be reviewed annually. It should promote effective use of scarce resources, speed up delivery, attract additional funds (private investors, such as mining companies), strengthen democracy (by promoting participation), overcome the legacy of apartheid and promote co-ordination between local, provincial and national government.

157^ To be submitted by an applicant for a mining right in terms of the Regulations in terms of section 107(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (GNR 527 GG 26275 of 23 April 2004). Regulations 40-46 provide for the objectives and contents of SLP. The objectives of the socio-labour plan are to “promote employment and advance the social and economic welfare of all South Africans; contribute to the transformation of the mining industry; and ensure that the holders of mining rights contribute towards the socio-economic development of areas in which they are operating”. The content of a socio-labour plan entails measures promoting employee and local economic development.

158^ “Stakeholders” is not defined, but it can be accepted that reference is made to the mining company and mine communities.

159^ 2004 Mining Charter 12.

160^ 2004 Mining Charter 9. “Ghost towns” are described as areas, previously economically dependent on mining activities to such an extent that the closure of such mining activities threatens the survival of these towns.

161^ 2004 Mining Charter scorecard.

162^ Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry (GN 838 GG 33573 of 20 September 2010), 6.

163^ 2010 Mining Charter 6. “International best practice” is not defined.

164^ 2010 Mining Charter 4. “Labour sending areas” is defined as “areas from which a majority of mineworkers, both historical and current are or have been sources”.

165^ “a coherent, social group of persons with interest of rights in a particular area of land which the members have or exercise communally in terms of an agreement, custom or law”. The definition is similar to the definition included in the MPRDA.

166^ 2010 Mining Charter 3. Traditional communities are recognised in terms of the National Traditional Leadership and Governance Framework Act 41 of 2003 if specific requirements are met as set out in section 2 of the Act.

167^ 2010 Mining Charter 6.

168^ 2010 Mining Charter scorecard.

169^ Assessment of the Broad-Based Socio-Economic Empowerment Charter for the South African Mining Industry, 2015 .

170^ 2016 Draft Mining Charter ii -“a proliferation of communities living in abject poverty continues to be largely characteristic of the surroundings of mining operations”.

171^ 2017 Mining Charter ii - “a proliferation of communities living in abject poverty continues to be largely characteristic of the surroundings of mining operations”.

172^ 2016 Draft Mining Charter 1; 2017 Mining Charter 7. The charter claims that the 1% requirements is “(C)onsistent with international best practices”.

173^ 2016 Draft Mining Charter 23.

174^ 2016 Draft Mining Charter 23.

175^ 2016 Draft Mining Charter 29.

176^ 2016 Draft Mining Charter 13.

177^ 2016 Draft Mining Charter 12.

178^ 2016 Draft Mining Charter 14.

179^ 2010 Mining Charter definition “Social fund”.

180^ 2016 Draft Mining Charter 18.

181^ 2017 Mining Charter 18.

182^ 2017 Mining Charter 18.

183^ 2017 Mining Charter 5.

184^ 2017 Mining Charter 4.

185^ Taking into consideration the provisions of clause 2.15 of the charter, the MPRDA definition will probably apply. The definition of “community” as included in the MPRDA is however amended in terms of the Mineral and Petroleum Resources Development Amendment Bill 2013, which bill has not yet been passed.

186^ 2017 Mining Charter 18.

187^ 2010 Mining Charter 10.

188^ 2017 Mining Charter 19.

189^ 2017 Mining Charter 19. The 2010 social fund/social development fund referred to the SLP, but did not form part of mine community development.

190^ 2017 Mining Charter 2.16 Scorecard: Mining Charter review 4.

191^ 2017 Mining Charter 2.16 Scorecard: Mining Charter review 1.

192^ 2017 Mining Charter 2.12.27. Ring fencing an element means that if the holder of a mining right does not score between levels 5 and 8 of the Scorecard for any of the ring-fenced elements, it will be regarded as non-compliant with the Mining-Charter. Non-compliance is dealt with in terms of sections 47, 93, 98 and 99 of the MPRDA.

193^ 2017 Mining Charter 5.

194^ 2017 Mining Charter 5. Paragraph 2.11(a) provides for a transitional period of 12 months as from the date on which the charter is published.

195^ See discussion below.

196^ 2017 Mining Charter 8. The agency is furthermore mentioned as part of the human resource development element that requires that 2% of the leviable amount on essential skills development be contributed towards the agency. 2017 Mining Charter 18.

197^ Kennedy D,