Legal Memorandum on Institutional Racism and

Apartheid Era Mining Legislation

INTRODUCTION

1. Richard Spoor Incorporated (“RSI”), an attorneys firm, has requested that I

draft a legal memorandum pertaining to the topic of “institutional racism in

apartheid-era mining legislation which is actionable against the mining

companies.”

2. For the purposes of this memorandum institutional or systemic racism will

mean the processes whereby social structures advance or perpetuate race

based hierarchies of advantage and disadvantage. 1 This conception of

institutional racism encompasses but is not reducible to intentionally racially

discriminatory policies (explicit manifestations of racism), unintentional or

1
Note that the concept, or at least the term, institutional racism was first deployed
by Stokeley Carmichael and Charles V Hamilton. They conceive of institutional
racism as originating “in the operation of established and respected forces in the
society. It relies on the active and pervasive operation of anti-black attitudes and
practices. A sense of superior group position prevails: whites are 'better' than
blacks and therefore blacks should be subordinated to whites. This is a racist
attitude and it permeates society on both the individual and institutional level,
covertly or overtly"(Black Power: the Politics of Liberation in America, Penguin
Books, 1967, pp 20-21). The concept of institutional racism applied in this
memorandum focuses on the operation of social forces such that a racial group is
maintained in a superior position. This notion allows but does not require that
racism is also a ubiquitous attitude.
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indirect racial discrimination and the failure to adopt remedial action to redress

racial inequities.

3. This memorandum will identify intentionally racist provisions in mining

legislation which have been removed from the statute books as part of the

transition from apartheid to democracy.

4. Prospects for obtaining compensation for the wrongful harm which was

brought about by these provisions, while they were in force, from mining

companies will then be examined in this document.

5. Finally, this memorandum will explore legal means for addressing the racially

structured distribution of burdens and benefits fostered by these racist

provisions and for combating indirect but otherwise similar racial discrimination.

Revoked Racist Legislative Provisions

6. I have been provided with the following documentation by RSI:

6.1. The Mines and Works Act 27 of 1956 (“the MWA);

6.2. Regulations framed under the MWA operative from 1 st October 1962 (“the

1962 Regulations”);

6.3. Regulations framed under the MWA operative from 26 June 1970;
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6.4. The Occupational Diseases in Mines and Works Act 78 of 1973 (“the

ODMWA”).

7. According to the preamble to the MWA, its purpose was “to consolidate and

amend the laws relating to the operating of mines and works and of machinery

used in connection therewith.”

8. Section 12(1)(n) of the MWA empowered the Governor General to make

Regulations pertaining to “certificates of competency required for employment

in any particular occupation in, at or about mines” while section 12(2)(a)

expressly permitted that any regulation “under paragraph (n) of subsection (1)”

could specify that such certificates would only be granted to ‘Europeans’,

‘Cape Coloureds’, ‘Cape Malays’ or ‘Mauritius Creoles or St Helena persons or

their descendants’.

9. Both the 1962 and the 1970 Regulations define a scheduled person as “any

person of any class referred to in paragraph (a) of subsection (2) of section

(12) of the Act” and then define certain skilled, supervisory or managerial

positions as meaning a ‘scheduled person’ with certain other essential

attributes.

10. These positions were thereby reserved for white or coloured persons based

on the basis of their race and concomitantly black mine employees were

thereby excluded from these positions. Since competency certificates,

including blasting certificates, could only be acquired by scheduled persons the

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regulations “denied Black people jobs ranging from miners and developers to

mine managers”2.

11. The scheduled person definition was repealed via the Mines and Works

Amendment Act 38 of 1987, which would come into effect a year later, thereby

putting an end to job reservation on the mines. 3

12. Akin to the MWA, the ODMWA arbitrarily distributed advantages purely and

expressly on the basis of race.

13. The ODWMA regulated medical surveillance and compensation of miners

working at controlled mines with respect to certain ‘compensatable’ respiratory

diseases.

14. While white and coloured workers were required by law to undergo initial,

periodic and interim medical examinations 4 and were to be issued with

certificates of fitness which were to be valid over a 12 month period pursuant

to such examinations, section 38(1) of the ODMWA provides that “the

Minister(of Mines) may make regulations prescribing or providing for” medical

examinations of “Bantu persons”, the “particulars to be recorded by the owner

of a mine...in connection with Bantu persons employed by him” 5.

15. Whereas the surveillance regime for white and coloured miners was relatively

comprehensively specified by the statute itself, the development of detailed

2
(1994) The South African mining industry in the 1980s, South African Journal of
Economic History, 9:2 pp 62
3
ibid
4
See sections 23,25 and 26 of the ODMWA.
5
See section 38(2)(a) and (f).
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regulations governing the medical surveillance of black miners was not even a

duty imposed on the Minister. The Minister was merely empowered to make

regulations. This clear devalues of the lives of black miners as compared with

their white or coloured counterparts.

16. This denigration of the value of black life and health is also apparent from the

provisions pertaining to compensation for white, coloured and black miners.

17. Chapter VI of ODMWA is headed ‘Compensation to White and Coloured

Persons, Generally’ while the subsequent chapter is headed ‘Compensation to

Bantu Persons’.

18. White and coloured persons as well as dependants of deceased white or

coloured persons could be entitled as of right to receive pensions 6 whereas this

was not the case for so called Bantu persons in terms of the ODMWA. 7

19. Similarly whereas benefits are awarded to “such person’ with respect to white

or coloured workers8 as regards black workers benefits are to be paid to the

“Bantu affairs authority”.9

20. The provisions of the ODMWA further establish a hierarchy of value with

regards to life and health with white people at the apex, followed by coloured

people and then Bantu persons.

6
If they had been so entitled immediately prior to the commencement of the ODMWA.
7
In this regard please refer to sections 79(1), 84(1), 86(1) and 92(1) of ODMWA.
8
For example see section 87(1) and 87(3) of ODMWA
9
See section 108(1) of ODMWA.
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21. With respect to equivalent conditions coloured persons would, the ODMWA

tends to prescribe that coloured people be awarded about half as much as

white people while black people would earn a tiny fraction of the amount which

white people would receive.

22. At least as originally enacted, whereas in terms of ODMWA white and coloured

persons receive more should they suffer from a compensatable disease in the

second degree rather than the first there this is not provided for with respect to

Bantu miners.

23. While a white person would be awarded R18000 if they had not received any

previous benefits and were suffering from a compensable disease in the

second degree10, a coloured person would receive R9000 under the same

circumstances11 and a black person would ultimately receive benefits of R1000

“in the case of a compensatable disease other than tuberculosis”. 12

24. In the dying days of apartheid, the Occupational Diseases of Mines and Works

Amendment Act 208 of 1993, which came into effect in January 1994, removed

“racial differentiation” from the relevant act, introduced a single system of

medical surveillance and also provided for a salary instead of a race based

compensation regime.13

10
See section 80(3) of ODMWA.
11
See section 87(3) of ODMWA.
12
See section 106(a) of ODMWA.

1994 Fareed, A Occupational Diseases of Mines and Works Amendment Act South
13

African Medical Journal 84(3)

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Crafting a Compensatory Remedy for Racial Discrimination During

Apartheid

25. While the Constitution of the Republic of South Africa 108 of 1996 (“the

Constitution”) recognises in its preamble the injustices of the apartheid and

colonial past and in terms of its very first founding provision is committed to the

achievement of equality and to non-racialism 14 as founding values, while

manifestly racist legislation was in force neither the Constitution in its final form

nor the Constitution of the Republic of South Africa Act 200 of 1993 (“the

Interim Constitution”) had come into effect. 15

26. Both the Constitution and the Interim Constitution contain clauses affirming the

supremacy of the respective constitutions over all other laws 16 such that “as

law inconsistent with the supreme law is invalid as well as judicially

enforceable equality rights containing anti-discrimination provisions 17.

27. Nevertheless, since neither of these two Constitutions was in force while the

blatantly racist versions of ODMWA and the MWA were in effect and since

state sovereignty inhered in parliament, which could therefore pass whatever

legislation it liked, it would appear to be a legal fiction to maintain that these

statutes were in some sense illegal or not proper law.

14
See sections 1(a) and (b) of the Constitution.
15
The Interim Constitution came into effect on 27 April 1994.
16
Section 2 of the Constitution and 4 of the Interim Constitution.
17
See section 9(3) of the Constitution and section 8(2) of the Interim Constitution.
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28. It therefore appears that for example, a black miner could not either their

former employer or the state on the basis that had not been provided with the

opportunity during apartheid to obtain a competency certificate or on the

grounds that similarly situated white or coloured miners had received larger

pay-outs in terms of ODMWA purely on the basis of direct racial discrimination.

29. In the case of Veldman v Director of Public Prosecutions 18 the Constitutional

Court per Mokgoro J affirmed “That legislation affect only future matters and

not take away existing rights is basic to notions of fairness and justice which

are integral to the rule of law, a foundational principle of our Constitution. Also

central to the rule of law is the principle of legality which requires that law must

be certain, clear and stable”.

30. At the very least the principle that law must be certain, clear and stable

militates against the notion that the Constitution “was operative as of a time

prior to its enactment. It makes the law different from what it was during the

period prior to its enactment”.19

31. This appears to suggest that specific racist wrongs of apartheid are not

susceptible to compensatory civil actions but only to litigation attempting to

obtain damages for past wrongs. Addressing the wrongs of the past in this

manner seems to require the enactment of remedial legislation.

32. The notion that compensatory damages claims for past racial discrimination

would amount to retroactively making the law different than what it was is
18
Veldman v Director of Public Prosecutions, Witwatersrand Local Division 2007 (3) SA
210 (CC) para 26.
19
Drieger 1983 Construction of Statutes of Statutes 185-186
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disputed by Roederer and Hopkins on the basis that the systematic racial

discrimination was “always illegal under binding rules of customary

international law”. 20

33. According to Roederer and Hopkins, since section 232 of the Constitution

provides that “Customary international law is law in the Republic unless it is

inconsistent with the Constitution or an Act of Parliament” this means that the

peremptory norm prohibiting systematic racial discrimination was always part

of South African municipal law.21

34. Since the apartheid regime provided conducive conditions for certain private

companies to accumulate wealth providing them “with cheap and disposable

(black) labour to exploit” through a “labour regime that systematically

discriminated against black workers”, such companies, including the mining

houses, can properly be considered profiteers which derived benefits from the

violation of municipalised international common law. 22

35. Such profiteering amounts to a form of unjustified enrichment at the expense of

another, those subject to racial discrimination. 23

36. The authors of the article recognise that there is no general claim for unjust

enrichment and therefore as the law presently stands that unjustified

20
Kevin Hopkins & Christopher Roederer Righting the Wrongs of Apartheid: Justice
for Victims and Unjust Profiteers Theoria 51 (105):129-153 (2004) pp 135
21
Ibid pp 134
22
Ibid pp 144
23
Ibid page 145
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enrichment cannot ground a common law claim against enrichment through

discrimination.24

37. The four general elements are that the defendant must be enriched, the

plaintiff must be impoverished, the enrichment of the defendant must have

been at the expense of the plaintiff and the enrichment must have been

unjustified, there can “be no legally recognised ground for the enrichment”. 25

38. Section 39(2) is relied upon by Roederer and Hopkins whereby they suggest

that if the common law were developed to “promote the spirit, purport and

objects of the Bill of Rights” this would lead to the courts crafting a general

unjustified enrichment claim26.

39. This is arguably not necessary to provide a basis in unjustified enrichment

against those who have profited from discrimination.

40. Although they wrote prior to the seminal case of Barkhuizen v Napier,

judgment strengthens Roederer and Hopkins arguments in favour of the

development of the common law, in that the Constitutional Court recognised

that all courts “a constitutional obligation to develop common law, including the

principles of the law of contract, so as to bring it in line with values that underlie

our Constitution”27.

24
Ibid page 151
25
1999 Eiselen, Pienaar Unjustified Enrichment: A Casebook pp 25 and 26
26
Barkhuizen v Napier 2007 (5) SA 323 (CC) para 35

27
Barkhuizen v Napier 2007 (5) SA 323 (CC) para 35.
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41. It would not be essential to develop a general unjustified enrichment claim, the

courts could merely develop an anti-discrimination claim incorporating the

general elements of unjustified enrichment.

42. If this entire chain of reasoning is correct it would allow black mine workers to

sue both the state and their erstwhile employers for compensatory damages in

terms of an anti-discrimination unjustified enrichment claim.

43. The worker in question would have been impoverished and this

impoverishment and since this impoverishment would have come about

through systemic racial discrimination it would be devoid of a legitimate legal

ground.

44. It could be argued, however, that individual mining companies were not

enriched through the operation of the discriminatory ODMWA scheme in that

the Compensation Fund set up under ODMWA and not particular mines was

able to preserve its assets since it did not as compared with the proportional

decrease in assets which it would have undergone had the scheme been run

on a non-discriminatory basis.

45. As recognised by the Constitutional Court in Mankayi v AngloGold Ashanti

Ltd28, where a compensation scheme is funded through levies upon

corporations, lower levies contribute to employer savings.

28
Mankayi v AngloGold Ashanti Ltd (3) SA 237 (CC) at para 88.
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46. Particular mining houses would thus have enjoyed savings due to lower levies

which were enabled by systematic and discriminatory underpayment against

black workers. There was therefore an unjustified enrichment of particular

mines at the expense of workers subject to discrimination.

47. It could therefore be argued that actionable claims lie against both the state

and specific mining houses on this approach.

48. This could provide compensatory restitution for at least some miners who were

subject to systemic discrimination and therefore institutional racism.

49. On the other hand, as regards the MWA it would be difficult to prove in the

case of any particular black worker that a mine would was enriched by some

quantifiable amount given that the worker was denied employment in reserved

occupations.

50. Even the logic as sketched out above probably would not provide an adequate

basis for a claim of compensatory damages pertaining to discrimination under

the MWA.

51. Unfortunately, this entire argument is based on circular reasoning.

52. Only if section 232 itself has retroactive effect would international law

constitute law in the Republic during apartheid.

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53. This is a classic case of begging the question in that the premises presume the

conclusion.

54. Furthermore, while it is the case that the norm against systematic

discrimination is a source of obligation between states, it need not follow from

this that such norms form part of the municipal law of specific states.

55. Even if an unjustified enrichment claim grounded in international law existed, it

is likely that any such claim with respect to either the MWA or the ODMA would

have prescribed.

56. Section 10(a) read with section 11(d) of the Prescription Act 68 of 1969 (“the

Prescription Act) provide that a debt shall be extinguished by prescription if a

period of three years from the debt having arisen have elapsed.

57. It may be the case that with regards to certain workers, it could be

demonstrated that certain workers reasonably did not know that their employer

could be a debtor for the purposes of an anti-discrimination unjustified

enrichment claim against ODMWA differential treatment or that they simply did

not know that black or coloured people received less than white people and

therefore that through the operation of section 12(3) debts were not yet

deemed to be due and thus the prescription period would not have

commenced.
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58. At any rate is more likely than not that in any given case, prescription would

prove an insuperable legal obstacle to a claim for most common law unjustified

enrichment anti-discrimination damages claims.

59. In order for actionable damages claim against employers for apartheid era

discrimination under ODMWA to succeed, the Constitutional Court and lower

courts would have to accept that South African law during apartheid was

radically different from how it operated as an actual legal system and would

also be required to accept the retroactive operation of the Constitution while

also substantially developing a novel unjust enrichment claim.

60. The contentions underpinning each of these points in the argument is highly

debatable and it is therefore unfortunately unlikely that it is possible to develop

common compensatory remedies which would provide restitution for apartheid

era discrimination.

Perpetuation of Racialised Disadvantage

61. As regards the perpetuation of racialised disadvantage as institutional racism,

this could either take the form of indirect discrimination on the basis of race,

direct discriminatory practices or the failure to address durable negative

consequences which have arisen as a consequence of past discrimination.

62. The equality right enshrined in section 9 of the Bill of Rights guarantees

equality before the law and equal protection of the law 29, provides for legislative

29
Section 9(1),
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and other measures to protect or advance social groups subject to historical

discrimination30, stipulates that no person may be either directly or indirectly

unfairly discriminated against31 and provides that discrimination on the basis of

race and other grounds is presumed to be unfair. 32

63. To the extent that this memorandum is required to examine the potential for

actionable cases against mining companies as regards institutionalised racism,

it seems highly improbable that any such matter would arise with respect to the

distribution of benefits under ODMWA.

64. This is because the standard of compensation under this Act is not determined

by mining companies. This effectively rules out both direct and indirect

discrimination with regards how compensation is calculated. Furthermore, in

the preceding section of this memorandum it was demonstrated that no

actionable claim in common law could address the negative consequences

which have arisen as a result of Apartheid era ODMWA discrimination.

65. Both the Promotion of Equality and the Prevention of Unfair Discrimination Act

4 of 2000 (“PEPUDA”) and the Employment Equity Act 55 of 1998 (“EEA”) are

legislative measures as envisaged by section 9(2) of the Constitution.

66. Since mining companies are employers with respect to the type of

discrimination against mine workers under the MWA, only the EEA is pertinent

30
Section 9(2)
31
Section 9(3)
32
Section 9(4)
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to the issue of continuing racial disadvantage which originally arose as a

consequence of the previously discussed racist provisions.

67. The purpose of the EEA is stipulated explicitly in that in section 2 of the Act, it

is meant to eliminate unfair discrimination in the employment context and to

implement affirmative action measures in order to redress systemic

disadvantage.33

68. Section 6(1) of the EEA prohibits direct and indirect unfair discrimination of any

employee on the basis of race.

69. If any mine personnel were to prevent or render difficult the promotion of black

workers to supervisory managerial or other skilled positions, this would amount

either direct or indirect discrimination on the basis of race and the appropriate

remedy would, therefore, be the referral of an unfair discrimination dispute, in

terms of section 6 of the EEA, to the MEIBC for conciliation and subsequently

to the Labour Court.

70. Of possibly greater import are the affirmative action provisions in the EEA as

these could address continuing racial discrepancies which have arisen due to

statutory job reservation.

71. Whereas the Mining Charter34 contains provisions concerning employment

equity and targets to be reached in various managerial positions and work

33
Sections 2(a) and (b) of the EEA
34
Broad Based Socio-Economic Empowerment Charter for the Mining and Mininerals
Industry, 2018
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involving core skills, since it has been found that the Charter is merely policy

and not subordinate legislation35 in terms of the Mineral and Petroleum

Resources Development Act 28 of 2002 (“MPRDA”), the provisions in the EEA

remain the only directly enforceable mechanisms for remedying racial

inequality in the mines.

72. Most, if not all mining companies would be designated employers since they

employ in excess of 50 people and have extensive total turnovers. As such,

the provisions pertaining to affirmative action in Chapter 3 of the EEA apply to

mines.

73. Section 15(2) specifies that affirmative action measures must include

measures to identify and eliminate employment barriers, to further diversity

in the workplace and to ensure equal opportunities to people from

designated groups by making reasonable accommodation for them. 36

74. Further, section 15(d) of the EEA is focussed upon the retention,

development and training of persons from designated groups. Furthermore,

section 20 of the Act provides the methodology for the formulation of

employment equity plans which are meant to achieve the goals specified in

section 15(2). Section 21 and 22 of the Act provide for the formulation of a

report pertaining to the fulfilment of the plan.

35
In the matter of Minerals Council of South Africa v Minister of Mineral Resources and
Energy and Others 2022(1) SA 535, the court held, at paragraph 59, that section 100(2) of
the MPRDA does not empower the Minister to make law and, therefore the Charteris not
binding subordinate legislation but an instrument of policy.
36
Sections 15(a) through to (c) of the EEA
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75. While employment equity plans have not been subject to court challenges

on the basis that they do not adequately address inherited racial

disadvantages, there is no barrier in law for bringing such a dispute.

76. It is precisely this type of case which would challenge mining companies for

failing to address racial disparities in the workplace which have arisen as a

consequence of Apartheid job reservation.

Conclusion

77. It is probably impossible to obtain compensatory damages as redress for

impoverishment arising from racist distribution of advantages in terms of

ODMWA. This issue should be addressed by legislation.

78. Continued racial disparities which have arisen as a consequence of MWA

provisions denying access to skilled and supervisory work for black miners

may be challengeable where employers, specifically mines, do not

adequately factor in past discrimination in the formulation of their

employment equity plans.

DATED AT JOHANNESBURG 19 JULY 2022

____________
K. PORIAZIS
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