Mining Affected Communities United in Action (MACUA) welcomes and celebrates the Constitutional Court’s landmark judgment in Sustaining the Wild Coast NPC and Others v Minister of Mineral Resources and Energy and Others; Natural Justice and Another v Minister of Mineral Resources and Energy and Others.

The judgment represents an important victory not only for the communities of the Wild Coast who have fought for years to defend their land, livelihoods, culture and environment, but for mining-affected communities across South Africa.

It sends an increasingly unmistakable message: communities are not obstacles standing in the way of mineral development. They are rights-holders whose dignity, agency, land rights and participation must form part of decisions that determine what happens to their land, livelihoods and futures.

The Constitutional Court has reaffirmed that meaningful consultation cannot be reduced to administrative box-ticking.

Affected people must be provided with the information necessary to participate meaningfully and afforded a genuine opportunity to influence the decision-making process at a stage when the decision remains open to influence.

The judgment also rejects the proposition that consultation required at the legally relevant stage can simply be postponed and treated as cured by consultation undertaken only after that decisive stage has passed.

In other words: Government cannot grant first, consult later and then expect communities to accept the consequences.

The judgment builds upon an increasingly important body of jurisprudence developed through cases including Bengwenyama, Maledu and Baleni.

Together, these judgments have progressively established that mineral development does not exist outside the Constitution; that the granting of a mining right does not simply extinguish legally protected informal land rights; that meaningful consultation requires substantially more than notification or an opportunity to comment; and that, where IPILRA requires consent for the deprivation of informal land rights, consultation under the MPRDA cannot substitute for that legally required consent.

The significance of the new judgment is therefore not that these obligations suddenly appeared in August 2026. It is that the Constitutional Court has now reinforced a jurisprudential direction that government has had years to incorporate into mineral-law reform.

GOVERNMENT APPEARS TO BE MOVING IN THE OPPOSITE DIRECTION
It is therefore deeply concerning that, at precisely the moment when the courts are strengthening the rights and agency of mining-affected communities, the Department of Mineral and Petroleum Resources (DMPR), supported through the broader government legislative process, is advancing proposals that risk moving mineral governance in the opposite direction.

The Mineral Resources Development Amendment Bill (MRDAB) and the General Mining Laws Amendment Bill (GLAB) must now be reconsidered against the constitutional standards articulated by the courts.

The MRDAB provides government with an opportunity to finally bring South Africa’s mineral legislation into alignment with jurisprudence developed over more than a decade. Instead, MACUA is concerned that important aspects of the Bill risk codifying standards that fall below the protections the courts have progressively established.

The Bill cannot define “meaningful consultation” as little more than an opportunity to comment. The jurisprudence requires affected people to be given sufficient information and a genuine opportunity to influence the decision-making process at a stage when the decision remains open to influence.

Its proposed definitions of “community” and “interested and affected persons” also risk narrowing rather than expanding the category of people whose voices must be heard. Mining impacts do not respect property, cadastral or municipal boundaries, and statutory definitions should not exclude people whose land, water, livelihoods, environment or other rights may genuinely be affected before the consultation process has even begun.

Most seriously, the proposed framework still fails adequately to confront the legal distinction between consultation and consent arising from IPILRA and the jurisprudence developed through Maledu and Baleni.

This is no longer an issue government can reasonably claim not to understand.
The DMPR is developing and advancing legislation against an established body of jurisprudence that it can no longer reasonably ignore.

WHILE COMMUNITY PROTECTIONS REMAIN INADEQUATE, CRIMINALISATION IS BEING STRENGTHENED
The contradiction becomes even more disturbing when the MRDAB is considered together with the General Mining Laws Amendment Bill. These Bills should not be treated as unrelated legislative interventions.

The MRDAB determines, among other things, the conditions under which people may enter the lawful mineral economy, including the pathway through which artisanal miners are expected to become formalised.

The GLAB determines what happens to those who remain outside that system.
The proposed GLAB expands criminal offences relating to unauthorised mining, extends the reach of criminal liability to persons who directly or indirectly assist or provide services enabling prohibited mining activity, expands the role and powers of SAPS, and provides for penalties potentially reaching R100 million and 30 years’ imprisonment.

MACUA recognises the serious harms associated with organised criminal mining, including violence, exploitation, environmental destruction, corruption and illicit mineral trafficking. The State has both the right and the responsibility to combat those harms.

But the existence of those harms does not justify collapsing fundamentally different forms of mining activity into a single category of criminality.

An organised criminal syndicate and an impoverished artisanal miner trying to survive are not the same thing simply because neither possesses a permit. This distinction becomes particularly important where government simultaneously claims that it intends to formalise artisanal mining.
Formalisation cannot be measured merely by whether Parliament creates a permit bearing the name “artisanal mining permit”. The real test is whether people currently engaged in artisanal mining can realistically access, comply with and remain within that system.

Government cannot claim to be formalising artisanal mining while constructing a pathway into legality that many artisanal miners may struggle realistically to access, and then dramatically escalate the criminal consequences of remaining outside that system.

Formalisation that exists only on paper is not formalisation. It simply redraws the boundary of illegality.

The constitutional implications of these two Bills must therefore be considered together.
If one part of government’s legislative programme determines the conditions for entry into legality while another dramatically intensifies the consequences of failing to achieve that legal status, then Parliament must ask whether the pathway into the lawful mineral economy is sufficiently accessible, rational and constitutionally compliant to justify the severity of the coercive consequences imposed upon those who remain outside it.

TWO STANDARDS OF ILLEGALITY?
The Constitutional Court judgment also raises a deeper question about the direction of South Africa’s mineral-governance system. When poor and informal miners operate without the required authorisation, government proposes increasingly severe criminal sanctions, expanded police powers and imprisonment potentially extending to decades.

But when the State unlawfully grants economically valuable mineral rights following defective consultation, inadequate consideration of community rights or other serious administrative failures, affected communities are generally left to organise themselves, secure lawyers and approach the courts to enforce rights that should have been protected before the decision was made. These forms of unlawfulness are legally different, and MACUA does not suggest that they require identical sanctions or remedies.

The concern is not equivalence. It is institutional asymmetry.

Why is government demonstrating such extraordinary legislative urgency and precision in strengthening punishment for illegality committed by people outside the mineral-rights system, while failing to build equally effective mechanisms to prevent, detect and remedy unlawful decision-making within the State’s own licensing system?

Sustaining the Wild Coast demonstrates that unlawful mineral decision-making is neither theoretical nor insignificant. It also confirms the constitutional seriousness of failures affecting consultation and the rights of communities when economically valuable extractive rights are granted.

Yet when those failures occur, the burden of enforcing the law too often falls upon the very communities whose rights the regulatory system should have protected in the first place.

The State appears to be strengthening its capacity to punish regulatory illegality from below without creating equally effective mechanisms to prevent and remedy unlawful mineral decision-making from above.

The rule of law cannot operate only at the point of enforcement against the marginalised. It must apply with equal seriousness to the State’s own exercise of mineral regulatory power.
Communities should not have to return repeatedly to the courts simply to force the State to comply with principles that our courts have already established.

GOVERNMENT AND PARLIAMENT NOW HAVE A CHOICE
The Sustaining the Wild Coast judgment should therefore be treated as an opportunity.
The DMPR can continue advancing legislative reforms that risk reproducing the weaknesses and exclusions that have repeatedly brought mineral decision-making before the courts. Or government can use this moment to bring the emerging mineral-governance framework into alignment with the Constitution.

MACUA calls upon the DMPR and broader government to urgently reconsider both the MRDAB and the General Mining Laws Amendment Bill in light of Sustaining the Wild Coast and the broader jurisprudence concerning meaningful consultation, informal land rights, consent and community participation.

Parliament, in turn, must rigorously interrogate whether the legislative framework ultimately placed before it gives proper effect to those constitutional standards.

At minimum, the emerging legislative framework must:
• guarantee informed and meaningful participation before relevant decisions are made;
• expressly recognise the continuing application of IPILRA and consent wherever the law requires it;
• ensure that actual rights-holders and affected communities cannot simply be replaced by convenient intermediaries;
• prevent statutory definitions from excluding people genuinely affected by mining;
• create a genuinely accessible and developmental pathway through which artisanal miners can enter the lawful mineral economy;
• differentiate livelihood and community-based artisanal mining from organised criminal mining;
• ensure that criminal liability is sufficiently clear and appropriately targeted; and
• ensure that criminal sanctions and police powers are proportionate to the nature of the conduct, harm and culpability involved.
The Constitutional Court has once again pointed South Africa towards a mineral-governance system founded upon dignity, agency, meaningful participation and constitutional accountability.

The objective should not be merely to produce mineral legislation capable of surviving a future constitutional challenge. It should be to enact legislation that gives effect to the Constitution from the outset.

The Constitution does not stand in the way of mineral development. It determines the conditions under which mineral development may lawfully take place.

The question now is whether the DMPR and Parliament will follow the direction established by our courts, or force mining-affected communities once again to return to those courts to defend rights that should already be reflected in our law.

Issued by:
Mining Affected Communities United in Action (MACUA) & Women Affected by Mining United in Action (WAMUA)

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