Executive Insight

South Africa’s proposed amendments to the Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”) could mark an important shift in the regulation of artisanal and small-scale mining by creating designated mining areas and a structured pathway for participation in the formal mining economy.[1] However, formalisation will depend on more than legislative recognition. The accessibility of the application process, institutional capacity, environmental compliance, technical support and effective implementation will ultimately determine whether the proposed framework provides a viable pathway for lawful artisanal and small-scale mining.

Introduction

Artisanal and small-scale mining (“ASM”) occupies a complex position within South Africa’s mining industry. Appropriately regulated ASM has the potential to broaden participation in the mineral economy, contribute to local economic development and advance the transformative objectives underpinning South Africa’s mineral regulatory framework.^[2] At the same time, illegal mining continues to present significant economic, criminal, environmental and governance challenges, increasingly associated with organised criminal activity, unsafe working conditions and the exploitation of vulnerable persons.^[3]

The events at the abandoned Buffelsfontein mine in Stilfontein further demonstrated the human and institutional consequences associated with unlawful mining activity.^[4] They also reinforced the need to consider whether enforcement measures alone can adequately address a problem that intersects with broader questions of economic participation, regulatory accessibility and mining governance.

A clear distinction must therefore be maintained between artisanal and small-scale mining and organised illegal mining. ASM describes a form and scale of mining activity and is capable of operating within a lawful and regulated framework. Illegal mining, by contrast, involves mineral extraction conducted outside the applicable legal framework and, in certain instances, may be associated with organised criminal networks.[5]Formalisation should therefore not be understood as legitimising unlawful mining. Rather, it seeks to create an accessible regulatory pathway through which legitimate artisanal and small-scale miners can participate lawfully in South Africa’s mineral economy.

South Africa’s existing mineral regulatory framework has historically provided limited differentiation for artisanal mining. Although section 27 of the MPRDA provides for mining permits applicable to mining operations of a limited scale and duration, the Act does not presently establish a distinct statutory authorisation regime specifically for artisanal mining.[6] The Artisanal and Small-Scale Mining Policy, 2022 acknowledges aspects of this regulatory gap and contemplates a differentiated framework aimed at facilitating lawful participation in the sector.[7]

The Mineral Resources Development Amendment Bill, 2025 (“Amendment Bill”) seeks to address aspects of this gap through, among other measures, proposed sections 7A and 9A of the MPRDA. These provisions contemplate the designation of areas for artisanal and small-scale mining and a mechanism through which applications may be invited in respect of those areas.[8]

Against this background, the proposed amendments raise an important question: will legislative recognition be sufficient to transform artisanal and small-scale mining into a viable and properly regulated component of South Africa’s mining industry?

This article examines the existing regulatory framework, the proposed amendments and the practical considerations that may ultimately determine whether the formalisation of ASM succeeds.

The Regulatory Gap: Distinguishing ASM from Illegal Mining

South Africa has long recognised the potential contribution of small-scale mining to economic participation and transformation. The 1998 White Paper on a Minerals and Mining Policy for South Africa identified small-scale mining as an area capable of contributing to economic development, while the Artisanal and Small-Scale Mining Policy, 2022 subsequently recognised the need for a more appropriate regulatory framework for ASM.[9]

The difficulty is that the existing statutory framework does not establish artisanal mining as a distinct category of mineral authorisation. Although section 27 of the MPRDA provides for mining permits, a mining permit is not synonymous with a dedicated artisanal mining regime. Artisanal and small-scale operators may therefore face regulatory, environmental, technical and financial requirements that are difficult to satisfy relative to their operational scale and resources.[10]

These regulatory barriers may contribute to the exclusion of legitimate artisanal and small-scale operators from the formal mining sector. At the same time, unlawful mining has developed into a significant enforcement challenge, with government increasingly linking certain illegal mining activities to organised crime, violence and other forms of criminality.[11] The regulatory challenge is therefore twofold: South Africa must maintain effective enforcement against organised illegal mining while simultaneously creating a realistic pathway through which legitimate ASM operators can enter and remain within the formal mineral economy.

The events at Stilfontein illustrate why the policy response cannot be confined to criminal enforcement alone. While effective law enforcement remains necessary to address organised illegal mining, the broader policy response must also consider whether the mineral regulatory framework provides legitimate artisanal and small-scale miners with an accessible route to lawful participation.[12] Formalisation and enforcement should therefore operate as complementary rather than competing elements of South Africa’s response to unlawful mining.

The Existing Legislative Framework

South Africa’s mineral resources are principally regulated under the MPRDA. Section 3 provides that mineral and petroleum resources are the common heritage of all the people of South Africa, with the State acting as custodian thereof for the benefit of all South Africans.^[13] The objects of the MPRDA include promoting equitable access to mineral resources, substantially and meaningfully expanding opportunities for historically disadvantaged persons to participate in the mineral industry and giving effect to section 24 of the Constitution by promoting the sustainable development of mineral resources.^[14]

The MPRDA establishes several forms of mineral authorisation, including reconnaissance permissions, prospecting rights, mining rights and mining permits. Section 27 provides for mining permits where, among other requirements, the mineral in question can be mined optimally within the prescribed area and the mining operation can be completed within the period permitted under the MPRDA.^[15] However, neither section 27 nor the broader existing authorisation framework establishes a distinct statutory regime specifically tailored to artisanal mining. The Artisanal and Small-Scale Mining Policy, 2022 expressly seeks to address the regulatory and developmental challenges facing the ASM sector and provides the policy foundation for a more differentiated approach.[16]

Designated ASM Areas: Proposed Section 7A

Proposed section 7A would empower the Minister, after consultation with the Council for Geoscience, to designate areas for artisanal and small-scale mining.[17] The proposed mechanism is significant because it moves beyond merely recognising ASM as a policy objective and introduces a statutory mechanism through which particular mineral-bearing areas may be identified for participation by artisanal and small-scale miners.

The involvement of the Council for Geoscience may also assist in ensuring that the designation of areas is informed by geological information. However, the effectiveness of this mechanism will ultimately depend on how areas are identified, the quality and accessibility of geological information available to prospective applicants, and the administrative process through which designated areas are made available.

Applications for ASM: Proposed Section 9A

Proposed section 9A complements the designation mechanism by empowering the Minister to invite applications for artisanal and small-scale mining in designated areas and, subject to the terms of the Amendment Bill, in areas associated with rights that have been abandoned, cancelled or surrendered.[18]Applicants would nevertheless remain subject to the applicable requirements of the MPRDA.

Read together, proposed sections 7A and 9A seek to establish a more structured pathway through which ASM participation may occur within the formal mineral regulatory system. Importantly, however, the creation of an application pathway does not itself guarantee accessibility. The practical value of the framework will depend on whether prospective ASM participants can realistically satisfy the regulatory requirements and whether applications can be processed efficiently and transparently.

Assessing the Proposed Framework: Five Implementation Tests

The proposed amendments represent an important step towards expressly accommodating artisanal and small-scale mining within South Africa’s mineral regulatory framework. Their success, however, will depend less on statutory recognition alone than on whether the framework can operate effectively in practice.

1. Accessibility

A formal ASM regime will only achieve its purpose if legitimate artisanal and small-scale miners can realistically access it. Application procedures, regulatory requirements and associated compliance obligations must therefore be capable of implementation by operators whose financial, administrative and technical resources may differ materially from those of established commercial mining companies.[19]

2. Regulatory Proportionality

Formalisation does not mean that ASM should operate outside environmental, health, safety or mineral governance requirements. However, the regulatory framework must consider whether the manner in which those obligations are implemented is proportionate to the nature and scale of ASM operations. A framework that creates legal recognition while retaining impractical barriers to entry risks reproducing the regulatory exclusion that formalisation seeks to address.[20]

3. Institutional Capacity

The effectiveness of proposed sections 7A and 9A will depend substantially on administrative implementation. Designated areas must be identified, applications must be processed, regulatory compliance must be monitored and unlawful operations must continue to be addressed.[21] The proposed statutory framework must therefore be accompanied by sufficient institutional capacity to administer the regime effectively.

4. Access to Technical and Financial Support

Legal authorisation is only one component of a viable mining operation. Artisanal and small-scale miners may also require access to geological information, technical expertise, appropriate financing and support necessary to comply with applicable mining and environmental requirements.[22] Without addressing these practical considerations, formalisation may exist in law without translating into sustainable lawful operations.

5. Effective Enforcement

Finally, formalisation must operate alongside effective enforcement. Creating a legitimate pathway for ASM should make it easier to distinguish compliant artisanal and small-scale operators from persons and organised networks engaged in unlawful mineral extraction. The success of the framework should therefore be assessed not only by the number of areas designated or applications received, but also by whether it contributes to a clearer, more enforceable distinction between lawful ASM and illegal mining.

Practical Implications for the Mining Industry

The proposed amendments have implications beyond artisanal miners themselves.

For artisanal and small-scale miners, the proposed framework may create a clearer route into the formal mineral economy. Formal participation will, however, carry corresponding regulatory responsibilities, including compliance with the mineral, environmental and other legal requirements applicable to authorised mining activities.

For existing mining right holders, the proposed availability of certain areas associated with abandoned, cancelled or surrendered rights highlights the importance of understanding the legal consequences that may follow the relinquishment or termination of mineral rights.[23]

For mining entrepreneurs and prospective investors, a more formalised ASM sector may create opportunities for lawful participation, partnerships and sector development. Those opportunities should nevertheless be approached through appropriate legal, regulatory and geological due diligence.

The broader significance of the amendments is therefore not merely that they recognise ASM. Their importance lies in whether they can create a functioning regulatory ecosystem in which lawful smaller-scale mining can develop while maintaining appropriate environmental, governance and enforcement standards.

Conclusion

The proposed amendments represent an important development in South Africa’s evolving approach to artisanal and small-scale mining. Proposed sections 7A and 9A could provide a clearer statutory mechanism through which areas are designated for ASM and applications are brought within the formal mineral regulatory framework.[24]

However, formalisation cannot be achieved through legislative recognition alone. A regulatory pathway that exists in law but remains inaccessible, administratively burdensome or difficult to implement may do little to encourage legitimate artisanal and small-scale miners to enter the formal economy.

The ultimate test of the proposed framework will therefore lie in implementation: whether South Africa can establish a system that is accessible enough to encourage lawful participation, sufficiently robust to maintain appropriate environmental and mineral governance standards, and effectively enforced so that legitimate ASM can be distinguished from organised illegal mining.

If that balance can be achieved, the formalisation of artisanal and small-scale mining could become more than a regulatory response to illegal mining. It could provide a meaningful mechanism for broadening lawful participation in South Africa’s mineral economy while advancing the transformation and sustainable-development objectives underpinning the MPRDA.[25]

[1]           Mineral Resources Development Amendment Bill, 2025, proposed ss 7A and 9A.

^[2]          Mineral and Petroleum Resources Development Act 28 of 2002 (“MPRDA”), s 2; Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022, GN 1938 in GG 46124 of 30 March 2022.

^[3]          SA News, “Illegal mining bleeds billions from economy, says Mantashe” (2026); Chamber of Mines of South Africa, Illegal Mining (2016) https://www.mineralscouncil.org.za/reports/2016/download/CM-IR16-focus-illegal-mining.pdf

^[4]          Daily Maverick, “Reflections ahead of Junior Mining Indaba: Formalising artisanal and small-scale mining in South Africa” (4 June 2026) https://www.dailymaverick.co.za/article/2026-06-04-reflections-ahead-of-junior-mining-indaba-formalising-artisanal-and-small-scale-mining-in-south-africa/

[5]          Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022; SA News, “Illegal mining bleeds billions from economy, says Mantashe” (2026) https://www.sanews.gov.za/south-africa/illegal-mining-bleeds-billions-economy-says-mantashe

[6]           MPRDA, s 27.

[7]          Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[8]           Mineral Resources Development Amendment Bill, 2025, proposed ss 7A and 9A.

[9]          Department of Minerals and Energy, White Paper: A Minerals and Mining Policy for South Africa (1998); Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[10]         MPRDA, s 27; Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022; S Ndlazi, “‘Alone in the Dark’: How the Current Mining and Minerals Legal Regime Continues to Fail Artisanal and Small-scale Miners in South Africa” (2021).

[11]         SA News, “Illegal mining bleeds billions from economy, says Mantashe” (2026) https://www.sanews.gov.za/south-africa/illegal-mining-bleeds-billions-economy-says-mantashe

[12]         P Gastrow, “Stilfontein mine disaster: the deadly cost of information failure” Institute for Security Studies (2026); Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

^[13]         MPRDA, s 3(1).

^[14]         MPRDA, s 2(c), (d) and (h).

^[15]         MPRDA, s 27.

[16]         Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[17]         Mineral Resources Development Amendment Bill, 2025, proposed s 7A.

[18]         Mineral Resources Development Amendment Bill, 2025, proposed s 9A.

[19]         Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022; S Ndlazi, “‘Alone in the Dark’: How the Current Mining and Minerals Legal Regime Continues to Fail Artisanal and Small-scale Miners in South Africa” (2021).

[20]         Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[21]         Mineral Resources Development Amendment Bill, 2025, proposed ss 7A and 9A; Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[22]         Department of Mineral Resources and Energy, Artisanal and Small-Scale Mining Policy, 2022.

[23]         Mineral Resources Development Amendment Bill, 2025, proposed s 9A.

[24]         Mineral Resources Development Amendment Bill, 2025, proposed ss 7A and 9A.

[25]         MPRDA, s 2(d) and (h).