Rights of Illegal Miners
Thousands of illegal miners, most of whom were undocumented foreigners, were trapped in shafts 10 and 11 of the old Buffelsfontein gold mine in Stilfontein, Northwest, from approximately August 2024 to January 2025. During this period, authorities attempted to “smoke out” the miners out by cutting off supplies and blocking various entrances, creating a single exit point through which they could seize and arrest those seeking freedom from the mine. As a result, the miners remained underground for months, leading to starvation, illness, psychological trauma, and death.
Authorities argued that the miners had the freedom to leave the mines but chose not to do so out of fear of arrest and rejected claims that they were responsible for the miners’ ongoing suffering.
The situation has sparked significant criticism, particularly regarding the methods used by authorities, such as cutting off essential supplies and blocking entrances. Some argue that these actions contributed to the miners’ suffering and, in some cases, death. However, authorities maintained that the miners had the freedom to leave and argued that providing supplies would have “allowed criminality to thrive”.
In December 2024, the Pretoria High Court dismissed an application by the Society for the Protection of Our Constitution, which sought to compel the government to provide emergency relief to the miners. The court’s ruling suggested that offering emergency relief might inadvertently encourage unlawful mining activities, leading to long-term risks to public safety and governance.
Conversely, in January 2025, the Pretoria High Court granted an application brought by the sister of one of the miners, which sought to compel authorities to take immediate action to rescue those still in the mines. The court, in this case, emphasized the constitutional rights to life, dignity, and safety, and led to the recovery of the remaining miners and bodies from the mine.
The conflicting judgments issued by the courts reflect the uncertainty and complex questions raised by this situation. A central issue is whether the authorities were justified in their actions to stop supplies and restrict exits, effectively limiting the rights of the miners.
Do Illegal Miners have Rights?
The Bill of Rights applies to “everyone” in several sections, including section 9 (right to equality), section 10 (right to dignity), section 11 (right to life), and section 12 (right to freedom and security of the person).
However, the Bill of Rights also limits certain rights to specific groups under particular sections, such as section 19 (political rights) for citizens, section 23(2) (labour relations rights) for workers, and section 28 (children’s rights) for children.
As a result, the Constitution reserves some rights in the Bill of Rights for specific groups of people, while guaranteeing other fundamental human rights to everyone simply by virtue of their humanity.
Can Rights be Limited
The Bill of Rights includes a limitation clause under section 36, which outlines how and to what extent certain rights may be restricted. This section mandates that any limitation on a right must be reasonable, justifiable, and proportionate within an open and democratic society based on human dignity, equality, and freedom. It further requires that when determining whether a limitation is justified, factors such as the nature of the right, the importance of the limitation’s purpose, and whether less restrictive means could achieve the same objective must be considered.
The Constitution also distinguishes certain rights as non-derogable, meaning they cannot be restricted or limited under any circumstances. Notably, the right to freedom and security of the person—specifically the right not to be deprived of freedom arbitrarily, or without just cause, and not to be detained without trial—is excluded from the list of non-derogable rights.
Arrests are one of the justifications for depriving someone of their freedom. The Criminal Procedure Act 51 of 1977 (CPA) allows arrests to be made without a warrant under certain circumstances. Specifically, section 40(1)(b) of the CPA permits arrests based on suspicion, stating that police officers may arrest a person without a warrant if they reasonably suspect that the individual has committed a scheduled offense. This principle was confirmed in the case of Mabona and Another v Minister of Law and Order and Others (1988) 2 SA 654 (SE), where it was held that only suspicion of committing a Schedule 1 offense is required for an arrest.
“Smoking out” the miners
The presence of illegal miners in the mine is considered a Schedule 1 offense of trespassing, which arguably gave authorities a sufficient reason, under the limitation clause, to restrict their freedom and take necessary steps to make an arrest, even without a warrant.
Although the authorities offered the miners the opportunity to leave the mine, it came with the immediate consequence of arrest. What wasn’t fully anticipated, however, was that the miners would endure the mine longer than expected, leading to the situation that followed. While there may be other factors at play which have not yet been discovered, it’s clear that desperation drove some miners to leave, while others chose to stay behind. The situation at Buffelsfontein mine highlights the difficult balance between enforcing the law and protecting fundamental human rights. While authorities aimed to address illegal activity, the severe consequences for the miners raise questions about whether their rights to life, dignity, and safety were adequately upheld. However, the authorities’ actions can be seen as justified in light of their duty to uphold public safety and prevent further unlawful activities.
