[miningmx.com] – THE National Union of Mineworkers (NUM) said it could not rule out mass action to protest against the South African government’s decision to jointly seek legal clarification on aspects of the mining charter.
The union said it was “… disturbed by the hasty decision adopted by the Chamber of Mines and the Minister of Mineral Resources…” in asking for a legal ruling on once-empowered, always-empowered – the principle that mining companies would be permitted to claim compliance with the mining charter even if black- owned companies they helped create by selling shares no longer existed.
One of the targets stipulated by the 2004 mining charter was that companies would sell 26% in units of production or shares in their listed structures by 2014. The Department of Mineral Resources (DMR) said on March 31 in its audit of compliance that it believed mining companies have failed to meet this target.
However, mines minister, Ngoako Ramatlhodi, added that instead of having to face a series of court appeals, his department would seek an ex-parte (joint) ruling, probably from the High Court, on whether ‘once-empowered, always-empowered’ was allowed in terms of the Mineral & Petroleum Resources Development Act (MPRDA) of 2002.
The NUM said it was the minister’s discretion to impose his interpretation of the mining charter, a position he had relinquished which it believed was “a travesty of justice”.
Ramatlhodi told Miningmx that in allowing the courts to decide, he would avoid protracted legal appeals, although he could not rule out appeals anyway in the wake of the declaratory order from the High Court.
Said NUM in a statement: “The above mentioned act empowers the Minister of Mineral Resources, not the Chamber of Mines or the individual mining right holders in London, Switzerland or Sandton.
“Hence we are taken back by the DMR’s acceptance of the possible ambiguity in law passed by the National Assembly, the next thing the mining right holders will contest is the Minister’s powers to impose sanctions against no compliance”.
“We will thus ensure our legal team monitors the events leading up to the finalisation of this declaratory order, we cannot rule out a mass action and picketing against this anti transformative and regressive gesture by the Chamber of Mines,” said Luthando Brukwe the NUM head of transformation.
“As the NUM we find this completely unacceptable and bordering on a travesty of justice for the rest of South Africans,” he said. The NUM represents about 275,000 mineworkers in South Africa.
Attorneys approached by Miningmx regarding how the principle might be interpreted said it was difficult to call. Werksmans Attorneys director, Chris Stevens, said the charter was a “… very nefarious, nebulous document”.
“Apparently the senior council of the Chamber of Mines is of the opinion that this principle does apply, but the charter is silent on whether you need to maintain your empowerment status,” he said.
Stevens’ personal view is that it would be “irrational of government to tell the mining companies they have to maintain their 26% black economic empowerment (BEE) status ‘forever and a day'”.
“It affects mining companies’ marketability of the shares and the equity they hold and I think it’s incredibly unfair on the BEE partner to expect them – if you’ve done a genuine BEE deal – to have maintained their 26% up until the end of 2014,” he said.
