Legal mechanisms for holding traditional authorities accountable for administering mining royalties in South Africa

Abstract

The aim of the study was to analyse the additional legal mechanisms that traditional communities can use to hold traditional authorities accountable for the administration of mining royalties. Mining activities poses severe social, environmental and health impacts on the lives of surrounding communities. In order to mitigate these severe impacts, mining royalties were introduced to improve the lives of those affected by mining activities and uplift their social life. The Traditional and Khoi-San Leadership Act empowers traditional councils to enter into agreement or partnership with anyone, including mining companies subject to a prior and informed consultation with the relevant community that they represent. The majority of the community members who attend the meeting must approve the agreement or partnership. The agreement or partnership must furthermore be based on good governance principles. Traditional authorities are often regarded by outsiders as the 'custodians of communities' and they are thus consulted. This is based on a misconception that they are the owner of the land that falls within their jurisdiction and therefore consent from the affected communities is not needed. Based on this misconception, mining lease agreements are negotiated and concluded. Proceeds flowing from these lease agreements in the form of royalties sometimes falls in the hands of these traditional authorities without the knowledge of the traditional communities. Accountability pertaining to the administration of mining royalties has been compounded by the conduct of some traditional authorities, underlying tensions and flaws in the legislation as well as lack of uniformity in the provinces pertaining to the regulation of traditional authorities. There have been several cases where mining royalties have been mismanaged and relevant traditional communities have not had any legal mechanism that they could use as a vehicle to hold their traditional authorities accountable. It is against this backdrop that this study sought to analyse mechanisms such as the Public Protector, Auditor General and The Special Investigating Unit as additional mechanisms that traditional communities can use to bring traditional authorities to account for the administration of mining royalties.