Issued by Ezra Mendel on behalf of the FW de Klerk Foundation on 04/12/2024

The recent developments in Stilfontein have exposed a deep, raw nerve in South Africa’s socio-economic and legal fabric. The town, like many others across South Africa, finds itself besieged by illegal mining activities, facing an escalating crisis that cuts across human rights, environmental protection and social justice. Stilfontein is a flashpoint where the Constitution’s progressive ideals clash with the grim South African reality. The outcome of this will shape the broader debate on how to reconcile the rights of South Africa’s most vulnerable citizens.

Attracting a wide spectrum of views on the issue, the crisis reveals different expectations on Constitutional responsibilities, a sort of constitutional duality. On the one hand, it guarantees safety, security and dignity for all. Section 12 ensures everyone has the right to freedom and security, including protection from violence and crime. Communities living near illegal mining sites in Stilfontein suffer daily from violence, environmental degradation and economic instability. They have a constitutional right to live in peace, without fear of gang warfare, collapsing land, or polluted water sources. On the other hand, section 10 of the Constitution guarantees the right to dignity, a right which applies equally to desperate individuals who, out of sheer necessity, engage in illegal mining. Many of these zama- zamas—migrant workers and impoverished South Africans—have been pushed to the margins of society, excluded from formal employment and forced to risk their lives in dangerous, makeshift mines. The Constitution calls for the protection of their dignity, recognising that their participation in illegal mining is a symptom of a much larger failure, one rooted in South Africa’s ongoing battle with inequality, poverty and a lack of economic opportunity.

Here lies the dilemma: How do we protect communities that are being ravaged by crime and environmental harm instigated by zama-zama’s, while also upholding the dignity and human rights of the very individuals perpetrating the illegal mining, albeit out of desperation? One voice demands the protection of law-abiding citizens and communities, while the other urges us to look deeper, addressing the systemic causes of illegal mining with empathy and understanding. This is a constitutional grey area. For the residents of Stilfontein, illegal mining is not an abstract legal issue, instead it is a daily nightmare of crime, lawlessness and fear. They demand, rightfully, that the state protect their rights to safety and security. However, for the zama-zamas, the choice is between illegal mining and starvation. Their plight reveals the socio-economic cracks in South Africa’s democratic project, where the promises of equality and opportunity remain unfulfilled for many.

The temptation to crush illegal mining through brute force is strong. Communities, fed up with lawlessness, are demanding decisive action. However, a purely militarised response risks trampling the very constitutional values we seek to protect. Law enforcement must be robust, but it must also be just. Excessive force against zama-zamas would not only violate their human rights, but also fuel resentment, deepening the social divide and perpetuating the cycle of poverty and crime. The state must walk a fine line between protecting its citizens and safeguarding the rights of vulnerable individuals. A heavy-handed response that ignores the socio-economic realities of illegal mining will not resolve the crisis—it will only delay its inevitable resurgence. The Constitution demands that we do better.

Despite the complexity of the Stilfontein crisis, there is cause for optimism. The Constitution provides a blueprint for a balanced and humane solution. It is a living document that acknowledges the difficult trade-offs inherent in building a just society. First, the state must restore peace and security, not only in Stilfontein, but in all communities alike. Communities have the right to protection from violence and environmental harm and the rule of law must be upheld. However, this enforcement must be accompanied by a parallel commitment to addressing the root causes of illegal mining. The government must invest in sustainable development, create formal employment opportunities and consider policies that formalise and regulate small-scale mining. This approach will provide an alternative for those who are currently forced into illegal and dangerous work.

Moreover, the Constitution reminds us that no group’s rights can be sacrificed for another’s. True justice lies in the delicate balancing of competing interests. This is not a zero-sum game. The rights of communities and zama-zamas are not mutually exclusive, they are interdependent. A lasting solution to the Stilfontein crisis must protect both the safety of communities and the dignity of individuals, without compromising either. Let us safeguard the Constitution, respect it and let it guide us toward a solution that upholds the dignity and rights of all South Africans.