By Johnathan Paoli
The North Gauteng High Court has rejected an application by the community organization Mining Affected Communities United in Action (MACUA) to compel the state to provide food and water to trapped miners in Stilfontein, North West province.
Supported by Lawyers for Human Rights, MACUA appeared before the North Gauteng High Court on Friday, seeking urgent intervention in the humanitarian crisis. The application targeted multiple government entities, including the North West MEC for Community Safety and Transport Management, and the Ministers of Mineral Resources, Police, and Social Development.
Annamarie de Vos, counsel for the organization, argued that the responsibility to rescue the miners rests with the state, represented by the police.
“You can never say that any right supersedes the right to life, and without food these miners will die. The Constitution says the State is responsible for protecting lives and under Section 5, the police have a duty to protect human life,” de Vos argued.
She further argued that it cannot be true that the State doesn’t have the responsibility in light of them being illegal, and that as long as adequate care is given, the issue of responsibility could be settled later.
De Vos stressed that members of the surrounding communities and other small organisations have run out of resources, thus requiring desperate assistance from the government.
Counsel for the state, Cassie Badenhorst, based his case on the logistical difficulty of an adequate rescue mission at shaft 11, citing government funding limitations.
Badenhorst said that a quotation by a mining rescue service provider estimated R11.3 million for eleven days and not including the road that has to be build inn order to accommodate 45 tonnes equipment to save the miners and needing days of preparation and millions of rands.
Additionally, he argued that under the Mining Safety Act, the owner or operator of a mine that is not being worked, but without a closure certificate, must take reasonable steps to continuously take steps to prevent damage, injury or death occurring at or because of the mine.
Buffelsfontein Mining company does not posses a closure certificate since the shaft stopped operation in 2015.
Despite being named, along with Harmony Gold, among the respondents, the application focused on the state, a point Badenhorst highlighted, suggesting a determination by the court.
Judge Mamyeni Mazibuko, hearing both arguments, ruled that an adequate argument for constitutional relief had not been illustrated.
Mazibuko said that the fact that police had charitably supplied food in the past, did not automatically convey an obligation in terms of the constitution.
“There was no evidence or facts brought before me that there is a duty or responsibility upon the police to supply food under the circumstances to the trapped miners. However, I do assert that the miners need to have access to whatever humanitarian aid they could receive,” the judge said.
She said having listened to the applicant, she could not find that the respondents should be ordered to supply food, but agreed with the original order that the respondents should allow any community member or persons to provide humanitarian aid to the miners, including food, water, medication or any other that is needed.
The application was dismissed with costs, but the previous case remains intact, with the hearing to be held on 12 February, pending that the 1st and 5th respondent have to allow water and food, on Mondays-Fridays, between 8-5, and certain items are not allowed.
Speaking before the hearing, spokesperson Magnificent Mndebele said at the heart of their application is the demand for state authorities to uphold their constitutional obligations while addressing the plight of hundreds of miners trapped underground in an abandoned mine at Stilfontein.
He insisted that law enforcement and humanitarian rights are not mutually exclusive, urging the government to ensure that their actions do not violate the fundamental rights of the affected miners.
“The South African Government cannot claim to uphold law and order while disregarding the Bill of Rights and humanity of the very individuals they seek to police. This contradiction lies at the heart of the crisis,” Mndebele said.
Mndebele thanked the Khuma community in Stilfontein for stepping up to provide humanitarian relief, with donations of food, money, and essentials, while organisations such as the Mahlasedi Foundation and the Red Cross have also contributed, and a crowdfunding campaign on BackaBuddy raised over R75,000 to support rescue operations.
However, he said that these efforts are unsustainable, with supplies running low and funds exhausted, the community’s capacity to continue providing aid is diminishing.
The organisation has also pledged its support to the Stilfontein community as they prepare to march to the Mineral and Petroleum Resources department in Klerksdorp to demand accountability and action next week.
So far, in total, 29 miners have been rescued from Shaft 11, with 11 bodies being recovered.
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