Mining Charter’s day in High Court snared by technicalities

Hulme Scholes, partner, Malan Scholes Inc.

SOUTH Africa’s High Court has reserved judgement on an application by mining lawyer Hulme Scholes to have the country’s Mining Charter declared invalid, but this decision was made without getting into the merits of the case at this stage.

Instead, Judge Philip Makwena will first assess two key side issues – known legally as “points in limine” – raised by the Department of Mineral Resources (DMR) – which have to be dealt with because of their bearing on the case.

Scholes told Miningmx that the first point concerned his standing or locus standi to actually be able to bring the application before the court because the DMR alleged he did not have sufficient interest in the mining industry to do so.

Scholes commented: “I believe that given my long experience as a lawyer dealing in mining legislation, I do have such standing but, if the DMR succeeds on this point, then the application could be dismissed without the court having to get into the merits of the case”.

The second point in limine is that the DMR believes Scholes should have joined the Chamber of Mines and other interested parties to the application he was making.

In March last year. Scholes attempted to have the application joined with one being prepared by the Chamber of Mines which had sought a declaratory order on the issue of ‘once-empowered, always-empowered’.

That application failed and, subsequently, the Chamber of Mines did not proceed with the declaratory order instead continuing to negotiate with the DMR on a redraft of the Mining Charter.

Scholes added: “The judge may rule that the Chamber should be joined to my application. He may also rule that certain other interested parties should be joined as well. Those parties include the National Union of Mineworkers, Solidarity and the South African Mining Development Association (SAMDA) all of which signed a stakeholders’ declaration that the Mining Charter should be revised”.

“It was surprising that so much time was taken up today regarding the points in limine and that we did not get into the main arguments. However, these points need to be dealt with and the judge has reserved judgement while he decides upon them”.

A key development that could be affected by today’s legal action – which was heard in the Pretoria High Court – is the publication of the third redraft of the Mining Charter which could be gazetted in Parliament during March by mines minister Mosebenzi Zwane.

Asked what course of action he would take if such a third redraft was gazetted, Scholes told Miningmx this would depend on the content of the revised draft.

He commented: “If it’s a reasonable document which makes commercial sense for the mining industry then there will be no need to challenge it”.

But Scholes added that if the third version of the Mining Charter was not reasonable. then he would move to interdict it pending the outcome of his present application to have the Mining Charter declared invalid.

Scholes stressed that his legal action to declare the Mining Charter invalid was not about “blocking empowerment” – as some had alleged – but was instead about blocking “bad law”.


  1. I am curious about the intent of this litigation. Is it simply to have on record for future generations to see that “at least we tried to do something”? We know that this corrupt government pays no attention to court rulings so, even if the lawsuit was successful (finding against the charter), it will simply be ignored by government…

    • Hi – A lot of debate about this. Critics say it gives Govt a blank cheque to re-write more strident legislation in keeping with government’s radical economic transformation plans. Malan Scholes, however, might argue that new mining related legislation would be more coherently written.

  2. The claim that the government doesn’t respect court rulings is patently false.

    What’s interesting here is that even the Chamber disagrees with Malan Scholes.

    So if both the Chamber and the DMR disagree with Malan Scholes it is unclear in whose interests is Malan acting.

    • Patently false sir? Take off your ANC blinkers and think for yourself. Anyone who cares to look can see that the corrupt government does not respect any court ruling that does not favour them or their friends and families…
      You sound like an intelligent person, surely you do not intend ignoring the obvious for the sake of a long forgotten dream?