The role of South African mines in contributing towards realising the right of access to healthcare services in host communities

Abstract

Mining has historically played a crucial part in South Africa's development. It is the biggest contributor to the country's GDP. However, some mines operate in impoverished communities with insufficient access to healthcare services. Against the backdrop of the United Nations (UN) Guiding Principles on Business and Human Rights (2011), the Constitution of the Republic of South Africa, 1996 and the Mineral Petroleum Development Act 28 of 2002 (MPDRA), this study examines the role of South African mines in contributing towards the realisation of the right of access to healthcare services in host communities. This research is motivated by the fact that in addition to the expectation of corporatesocial responsibility (CSR), there appears to be a human rights duty on businesses such as mining companies to contribute towards the realisation of human rights. With this objective in mind, the researcher adopted a qualitative research approach that entailed an integrated analysis of the primary sources of law, including legislation, international treaties, case law as well as secondary sources such as academic books and journal articles. The research showed that while international and African human rights instruments impose both negative and positive obligations on States to realise the right of health care services, non-state actors are only obligated to refrain from violating the enjoyment of the right of access to healthcare services. Therefore, while the government of South Africa bears the primary responsibility to protect and fulfil the right of access to healthcare services, international and African regional human rights instruments do not impose binding legal duties on private businesses such as mines to contribute towards the realization of the right to healthcare services. The study further established that South African human rights law follows a similar approach to the position adopted at the international and African regional level despite the horizontal application of the rights guaranteed in the Bill of Rights. Mining companies do not have a positive obligation in terms of the Constitution or legislation to contribute towards realising the right to health care services in communities where they operate. They must respect the right of access to health care services. However, where they are contracted by the state to provide healthcare services, they bear constitutional duties like the state. In addition, the study shows that CSR is rooted in the Constitution and that this imposes responsibilities on juristic persons to contribute towards realising fundamental rights such as health rights for host communities. While this view gets strong support from some scholars, the duty is not legally enforceable. The study argues that the mining companies can use their social and labour plans (SLPs) prescribed by the MPDRA to respond to community needs such as accessibility of health care services. The study shows that some mining companies, such as Sibanye-Stillwater, expressly provides for health services infrastructure for communities such as clinics in their SLPs. Bushveld Vametco Alloys expressly provide health services to their employees. These mines therefore contribute towards realising the constitutional right to healthcare services through their SLPs. Another example is that of Eland Platinum mine, which provides crucial infrastructure for water services, the treatment of sewage, and they provide housing benefits for their employees. Projects that fall within these categories are important as they speak to key health determinants. Given the findings of the study, recommendations are made to improve the extent to which mining companies can contribute towards the provision of healthcare services to host communities.