By Rex van Schalkwyk is a former judge of the Supreme Court of South Africa, chair of the FMF’s Board, and chair of the FMF’s Rule of Law Board of Advisers. He is the author of three books. The first is a novel. The second, One Miracle is not Enough (1998), deals with the failures then already evident in the South African democracy. The third, Panic for Democracy (2009), deals with the equivalent failures evident for many years in the democracy of the United States.
Gwede Mantashe’s unlawful attempt at coercion fails the test of the Rule of Law.
In purported compliance with section 47 of the Mineral and Petroleum Resources Development Act, the minister has threatened the possible revocation of the Sibanye / Stillwater mining licence.
For the past three months there has been a strike at the Sibanye gold mines which has effectively halted mining operations. Various attempts have been made, the most recent no more than a week ago, to bring the strike to an end. This last one ended, like the others, in failure to reach agreement.
After the most recent failure Sibanye issued a rhetorical flourish to the effect that it had sufficient resources to overcome a strike even if it was to last for years.
In a statement before a select committee of the National Assembly, the minister seized upon Sibanye’s rhetoric to issue the threat. This is what he is reported to have said: “…(T)he message he is sending to us is that he is not ready to actually mine gold. He has enough money to fight the strike and stop production for years and years…” This the minister interpreted as a “message” (sic) that the department “…look into the possibility of the application of section 47. A mine that does not want to mine, but sit on the properties…so that we can give that property to companies that want to mine gold.” (Emphasis added)
The first observation that must be made is that there is no substance whatsoever to the minister’s assertion that “(Sibanye) does not want to mine…” Neither is it possible to interpret the words of the flourish in this way. What is evident from the statement is that Sibanye was engaging in a form of hyperbole, of a kind frequently adopted in intense negotiations, where the stakes are high, in an attempt to accomplish an acceptable compromise.
The suggestion that Sibanye does not want to mine is contradicted by the plain facts. It has been actively and continuously engaged in gold mining for decades past, in a multitude of successful ventures where capital investment of billions of rand has been committed, and to a point at which it now has more than 84 000 miners and related employees, 31 000 of them in the gold mining sector alone.
The suggestion that Sibanye does not want to mine is patently absurd and has been made only for effect.
The assertion that Sibanye “…is not ready to actually mine gold…” is incompatible with the circumstances readily observable at any of the mines where Sibanye has been actively mining for many years.
The question then is, what is to be made of statements of this kind? It is clear that it was seriously intended and that it was expected to be acted upon. Assertions of this sort are not made by a minister, before a body of the National Assembly, if not seriously intended.
The obvious answer to the question is that Mantashe was throwing his considerable weight behind the cause of the striking miners, in an attempt to goad Sibanye into a settlement that the miners demanded. Was this an appropriate use of the minister’s influence, and of the threat that was uttered?
First, the threat: The power invested in the minister in terms of section 47, to cancel or withdraw an existing mining licence may only be exercised, if done in good faith and for good and valid reasons. The minister must at all times be seen to be acting even-handedly, in the interests of the relevant parties, and in the broader interest of the mining industry. There are no circumstances in which the exercise of the considerable powers may be used for an ulterior or dishonourable purpose.
By his words the minister has discredited his intention. His assertion derives from a false premise: that Sibanye “…does not want to mine…” Any decision based upon an assumption so patently wrong would be afflicted by unlawfulness and would be remediable by a court of competent jurisdiction.
The minister’s bias in favour of the striking miners is also manifest from the circumstances under which the threat was uttered. This is unbecoming conduct from the minister, but it also bears all the hallmarks of unlawfulness.
In having uttered the threat of cancellation of its mining licence the minister is in violation of the Rule of Law; if that threat should be carried into effect for the reasons given, the violation will become aggravated.
The Rule of Law Board of the Free Market Foundation has formulated ten imperatives of the Rule of Law. The fourth imperative reads:
“All law must be applied fairly, impartially, and without fear, favour or prejudice”. This principle, which complies with common sense, is so well-known that it barely requires repetition. However, it is sometimes necessary to remind officialdom of its applicability.
The Rule of Law is the barrier that the law sets against tyranny. Tyranny, at the hands of an officialdom, is any form of autocratic, capricious, or high-handed action which has an adverse effect upon one who is subject to that authority.
Until it is remedied, preferably by a retraction from the minister himself, he will have cast himself in the role of the tyrant, with Sibanye his potential victim.