[miningmx.com] – MINES minister Ngoako Ramatlhodi‘s decision to co-operate with the mining industry in seeking a legal determination on the contentious ‘once-empowered, always-empowered’ principle is a bold step and full of political verve.
Bending to the will of the mining sector and accepting its point of view that past but now extinct black economic (BEE) transactions are still valid would been political suicide for Ramalthodi and a betrayal of ANC values and ideas.
Fighting the matter in court, however, would be bloody and fruitless. The South African government has an abominable track-record of fighting ownership cases related to the mining sector in court.
As a lawyer, Ramatlhodi probably knows a bit about the mining charter and the Mineral & Petroleum Resources Development Act (MPRDA), perhaps even agreeing with many mining lawyers who think it’s poorly written legislation.
As Hulme Scholes of MalanScholes was quoted to have said in respect of his encounters with Ramatlhodi’s predecessor, Susan Shabagu and her Department of Mineral Resources (DMR), in court on mineral cases: “Last year the score was Hulme Scholes 10, the minister, nil”.
In contrast, taking the matter to the court co-operatively, Ex parte, for a definitive decision – whilst acknowledging the DMR and the Chamber of Mines still had recourse to an appeal – sees Ramatlhodi relax his powers of ministerial discretion in favour of legislative and regulatory certainty.
It’s hard, therefore, to agree with the Democratic Allliance MP and shadow mines minister, James Lorimer, who said Ramatlhodi should have simply accepted once-empowered, always-empowered principle so that the mining industry could flourish. That wouldn’t do and, anyway, the minister has said since May that regulatory uncertainty ought to be banished from South African mining.
In any event, one senses there are bigger fish to fry.
During today’s press conference, a question was posed to Ramatlhodi regarding the interplay between the Department of Trade & Industry’s broad-based black economic empowerment legislation (BBBEE) which may have the power to trump the MPRDA, especially as the latter is not a code whereas BBBEE is a code.
Ramatlhodi responded: “I am expecting compliance [with the mining charter] on the basis of existing law which is the prevailing law of the country.
“The importance of that statement is that you don’t change the rules in the middle especially when people put money in the ground”.
However, he then added: “BBBEE codes should not apply retrospectively; they would apply going forward”.
Statements from the mining sector, including Harmony Gold, Anglo American and Kumba Iron Ore have all pointed towards their ongoing of support for BEE into the future which, on the face of Ramatlhodi’s comments today about BBBEE, will continue to be challenging for them and their investors.
