Reflections ahead of Junior Mining Indaba: Formalising artisanal and small-scale mining in South Africa

As the Junior Indaba approaches, it is useful to reflect on the evolution of South Africa’s ASM framework and the direction of recent policy and legislative reform.

1. From a policy perspective, the ASM industry received official recognition in democratic South Africa through the development of the White Paper, A Minerals and Mining Policy for South Africa, 1998. Chapter 1 refers to foundational concepts such as ASM being a means to increase access to mining and the definitional distinction between artisanal and small-scale mining respectively; the former being the extraction of minerals with the simplest tools on a subsistence level, and the latter which ranges from small operations for subsistence living to junior miners where subsistence living is not the prime motivator. Reference is also made to the potential for well managed small-scale miners to take over and mine ecologically where large-scale mining is unable to operate profitably, and the interests of a country and community requiring that all forms of mining including ASM be subject to the same requirements in respect of licensing, health and safety, and the environment.
2. The Chapter of the White Paper dedicated to ASM translated to the provision for mining permits in the Mineral and Petroleum Resources Development Act, (“MPRDA”) 2002 . In terms of section 27 of the MPRDA, a mining permit may be issued only if the mineral can be mined optimally within two years in respect of an area which may not exceed 5 hectares. An applicant for a mining permit must simultaneously apply for an environmental authorisation, and if a mining permit application is accepted, the applicant must consult with the relevant landowner, lawful occupier and any interested and affected party, and submit the relevant environmental reports in terms of the National Environment Management Act, 1998. Furthermore, a mining permit endures for two years and may be renewed for three periods each of which may not exceed one year. However, the MPRDA has been regarded by a number of stakeholders as presenting practical challenges to the development and formalisation of ASM due to the absence of definition of concepts and reference to artisanal mining, the treatment and threshold for compliance to that of large scale miners, and other limitations such as the non-transferability of mining permits.
3. In 2022, the ASM Policy was published amidst calls for policy and legislative intervention by industry stakeholders and interested and affected parties. The publication of the ASM Policy marked a significant step in the government’s efforts to establish a dedicated framework for ASM and outlines its interventions to address challenges associated with ASM. The potential for ASM to contribute to socio-economic development and improve the livelihoods of South Africans, the alignment of South Africa’s legislative framework with regional and international jurisdictions on formalisation of the ASM industry, and the growth of incidences in illegal mining, form part of the context in which the ASM Policy came about.
4. The ASM Policy defines artisanal mining as traditional and customary mining operations using traditional or customary ways or means including the use of rudimentary mining methods, manual and rudimentary tools to access mineral ore usually available on surface or at shallow depths. Small-scale mining is defined as prospecting activities or mining operations which do not employ specialised prospecting, mechanised mining technologies. Various comparative jurisdictions, namely Kenya, Zambia and Ghana, were considered and recommendations for South Africa include reservation of ASM permits for locals, definition of concepts, graduation provisions (from artisanal mining to small-scale mining and from small-scale mining to large-scale mining), and transferability and encumbrance of permits. There is recognition of other State departments, apart from the Department of Mineral and Petroleum Resources and the approved structure of the Small-Scale Mining Directorate, to support the ASM industry, including the Department of Trade Industry and Competition and the Department of Small Business Development.
   
   Furthermore, the ASM Policy sets out that the ASM industry is not absolved from the obligation to pay taxes and royalties and must contribute to socio-economic growth, and also recognises the technical and financial challenges faced by ASM miners in compliance with environmental management, health and safety, and water use requirements. The government’s stance on illegal mining is canvassed in Chapter VIII. Importantly, the ASM Policy recognises that illegal mining and ASM are distinct concepts and that measures aimed at addressing unlawful mining activities should not undermine the development of a lawful and regulated ASM sector. The ASM Policy sets out that laws relating to the criminalisation of illegal mining should be bolstered and that the creation of dedicated prosecutorial expertise in respect of illegal mining matters should be explored.
5. In 2025, the Draft Mineral Resources Development (“MRD”) Bill was published for public comment and seeks to amend the MPRDA to make provision for artisanal and small-scale mining amongst other aspects. There are various proposed amendments which mirror parts of the White Paper and the ASM Policy. The definitions of artisanal mining and small-scale mining in the ASM Policy have been proposed as new definitions in the MPRDA. The proposed amendments to section 27 of the MPRDA include amending the term mining permit to small-scale mining permit, increasing the duration of a permit to five years with the possibility to apply for renewal for a further five years, the transferability of a permit subject to Ministerial consent, and the introduction of additional criteria when the Minister grants a permit including that mining will not result in unacceptable pollution, ecological degradation or damage to the environment. Furthermore, the Draft MRD Bill proposes a new section 27A which seeks to provide for the application, issuing and duration of artisanal mining permits. It is suggested that an artisanal mining permit be issued only if the mineral can be mined optimally within two years in respect of a mining area which does not exceed 1.5 hectares.
   
   An artisanal mining permit applicant would be required to simultaneously apply for an environmental authorisation and consult with interested and affected parties and submit environmental reports, if the application is accepted. Furthermore, an artisanal mining permit would be valid for two years with the possibility to apply for renewal for a further two years. The Draft MRD Bill also proposes the designation of certain areas for small-scale and artisanal mining and additional prohibitions relating to illegal prospecting and mining activities and the possession and transportation of minerals. Viewed collectively, the proposed amendments suggest a move towards a more tailored legal framework which seeks to facilitate the growth of ASM whilst maintaining environmental safeguards and regulatory oversight.

The evolution of South Africa’s ASM framework reflects an ongoing effort to balance broader participation in the mining sector with the requirement for appropriate environmental and health and safety safeguards. From the White Paper, to the ASM Policy, and now the Draft MRD Bill, the direction of legal formulation has been geared towards greater recognition and formalisation of ASM as a legitimate component of the mining industry. While the challenges remain, particularly in distinguishing lawful ASM activities from illegal mining, recent policy and legislative developments suggest a growing recognition that although ASM and illegal mining may at times arise in overlapping contexts, they require distinct policy and regulatory responses.

The continued formalisation of ASM has the potential to support socio-economic development, improve legal compliance and create pathways for emerging miners, while preserving the integrity of South Africa’s legal mining framework and protecting the interests of existing mining right holders. As discussions commence soon at the Junior Indaba, the success of South Africa’s ASM framework will ultimately depend on legal certainty, effective implementation, and meaningful collaboration between government, industry and affected stakeholders. A clear, predictable and appropriately tailored regulatory framework will be essential to attracting investment, supporting emerging miners, and ensuring that formalisation occurs alongside responsible environmental and social governance. DM

Authors: Andrea Cabanac, Executive: Natural Resources and Environment, and Minenhle July, Candidate Legal Practitioner: Natural Resources and Environment