ERIN-DIANNE RICHARDS: Joint approach needed to dismantle human trafficking and illegal mining

SA’s illegal mining sector has been reported as among the most violent and profitable on the continent. The Minerals Council of SA previously indicated that lost sales, taxes and royalties attributable to this sector likely exceed R21bn a year.

The escalating zama zama crisis stems from a world of organised violence, corruption, criminality and exploitation. While some illegal miners willingly enter this sector, many adult miners and undocumented minors find themselves trapped by circumstances beyond their control.

According to media reports, many miners are coerced into this work by syndicates that profit enormously from the illicit trade in gold and other precious metals extracted from these operations. Their entanglement in a web of corruption, violence, human trafficking, tax evasion, smuggling and money laundering is largely inevitable, with their continued exploitation ensured by gang control.

The government has taken a hard-line approach, deploying police to arrest and subdue the miners. This stance is controversial — commended by some for its decisiveness, yet denounced by others for its severity, insensitivity and failure to assist investigating authorities in the identification of those in the higher echelons of the criminal entities and structures sustaining the sector. 

Much of the public’s perception of zama zamas is negative, casting them as illegal nuisances responsible for numerous social problems. This perception can lead to xenophobic reactions and it overlooks the criminal reality behind the zama zama phenomenon.

Research suggests that the illegal mining syndicate hierarchy in this context comprises at least five tiers: individual miners, gangs and illegal mining bosses, bulk buyers, front company exporters and international intermediary companies and buyers. 

Zama zamas, positioned at the bottom of this hierarchy, are sometimes recruited in their home countries, unaware of the job’s illegality until they arrive in SA. They incur substantial debts for necessary equipment and sustenance, with these costs deducted from their earnings.

The miners are simultaneously the most vulnerable tier, and the most easily replaced by those exploiting them, rendering the blunt arrest-and-detain strategy largely ineffective. 

A paradigm shift in addressing the crisis is called for. The singular focus on the criminal conduct of the miners appears unhelpful. Instead, attention should be directed towards understanding how they entered the sector and the country. If miners’ testimonies and press reports are accurate, and if they were indeed coerced as they claim, these individuals have likely been trafficked into the country.

Should this be confirmed it would place them within the scope of the Prevention & Combating of Trafficking in Persons Act. This law defines “trafficking” to include the delivery, transport or recruitment of individuals within or across SA’s borders through various means, including abuse of vulnerability, abuse of power, deception, or the provision of compensation aimed at exploiting the individual concerned.

As an alternative to the government’s policy this act proposes a more integrated, targeted, humane and dignified approach. It empowers the home affairs minister, in collaboration with the department’s director-general, to issue temporary visitor visas to illegal miners who, as determined by the national commissioner of the SA Police Service (SAPS), can assist in police investigations into trafficking.

Instead of arresting the trafficked miners for, among other things, contraventions of the Immigration Act, these visas provide for a three-month period of reflection and recovery within SA borders. This allows miners to access resources designed to aid them in making a considered decision on whether they wish to co-operate with law enforcement in their pursuit of those involved in trafficking.

On the expiry of the temporary visa miners can choose whether to assist the authorities. Those who consent in writing to
co-operate with authorities — provided that their co-operation is deemed necessary for any relevant investigations — can be issued with further visas. Miners who elect not to aid the authorities can be repatriated, provided the director-general is satisfied with the individual’s safety upon their return, or otherwise arrested and prosecuted where appropriate.

Those who choose to assist in investigations open up potential pathways for themselves for further residence in the country, possibly even permanent residence. Section 17 of the act allows the national commissioner of the SAPS or the national director of public prosecutions to support foreign victims of trafficking who have assisted the police or National Prosecuting Authority before or during any criminal proceedings, to apply for permanent residence under section 31(2)(b) of the Immigration Act.

This is applicable if, as a result of their assistance, the victim may face harm or death if repatriated to their country of origin or the country from which they were trafficked.

Though not without its challenges, this collaboration and strategy could enhance miners’ willingness to co-operate. It incentivises co-operation with authorities more effectively than the present course of action and may well result in some of the trafficked miners disclosing details about those involved further down the supply chain. It may also reduce public discomfort with the government’s approach.

The director-general’s ability to issue these visas is governed by regulations made by the home affairs minister under section 43 of the act. Despite being enjoined to do so, the minister has not yet regulated under this section. The crisis presents an opportunity for the minister to regulate, helping to develop a more co-ordinated and targeted approach to the crisis.

Undoubtedly, this is no panacea. It represents merely one facet of the multifaceted strategy required to effectively address illegal mining. Those solving this problem have an impossible task ahead of them. Regardless of how the authorities choose to manage this crisis, any approach that strains the dignity and humanity of the exploited miners must be discouraged. Such measures are not only unnecessary but will inevitably compromise the effectiveness of any strategy ultimately implemented.

• Richards is an advocate specialising in constitutional and administrative law.