THE South African government’s latest mining regulatory shock is to make a wholly unsurprising appearance in court after the Chamber of Mines filed an urgent application to have a July 18 notice in the Government Gazette set aside and interdicted.
The notice effectively stopped new prospecting and mining licence applications in their tracks as mines minister, Mosebenzi Zwane, sought to seize the initiative back from the Chamber which had earlier interdicted his June 15 Mining Charter redraft.
The Chamber’s action comes a day after Zwane’s Department of Mineral Resources (DMR) enjoyed a rare legal victory following a judgement by the Constitutional Court which found the DMR’s efforts to control the movement of unpolished diamonds was constitutional.
The matter had been opposed by the South African Diamond Producers’ Organisation which objected to the insertion of a section in the Diamond Act which stopped the intervention of unlicensed traders in the rough diamond industry.
In terms of the July 18 notice, however, the Chamber had asked the minister to withdraw the notice by July 24.
“The Chamber of Mines advises that Mineral Resources Minister Mosebenzi Zwane regrettably failed to withdraw the notice that appeared in the Government Gazette under his name on 19 July 2017,” the Chamber said in a statement today. “In the notice he invited submissions on his intention to suspend the processing of new section 11, mining and prospecting rights applications or their renewal.
“The Chamber has therefore today issued and served an urgent application with the Pretoria High Court to review and set aside the notice and to interdict the Minister from taking any decision or issuing any directive contemplated in the notice,” it said.
The Chamber added that the matter would need to be heard in urgent court on August 4 which is the date Zwane gave members of the public to respond to his notice.
The Chamber will seek the urgent setting aside of the notice on one of two bases, namely either the Promotion of Administrative Justice Act (PAJA) or the constitutional principle of legality, it said. Zwane’s notice constituted an unlawful action because of the damaging impact of the notice itself and its proposed further action on the mining sector and that he was acting ultra vires, meaning beyond his powers under the Mineral and Petroleum Resources Development Act and unconstitutionally by issuing the notice.
“The Chamber notes, with regret, that the industry has no option but to proceed with court action to ensure that the Minister acts within the law, and in the best interests of the industry and the country,” it said.
Commenting on the Constitutional Court ruling in respect of uncut diamond trading, the DMR said the judgement was “… a positive move for the advancement of transformation of the mining industry.
“In particular the Minister welcomes the significance of the Court finding that section 20A of the Diamonds Act, 1986 (as amended) is not unconstitutional, thereby confirming the legitimacy of Government’s authority to monitor the movement of unpolished diamonds, thereby effectively putting an end to the illegal practices at tender houses,” it said.
“The highest Court in the land has upheld the transformative provisions in the Diamonds Act, which bodes well for our efforts to sustainably and meaningfully transform the diamonds sector specifically, and the mining industry broadly,” said the DMR, citing Zwane.
