THE Chamber of Mines of South Africa said it had applied for an urgent interdict to stop the implementation of the Mining Charter which it styled “… a most egregious case of regulatory overreach”.
In its application, made to the High Court of South Africa (Gauteng), the Chamber delivered a scathing and eviscerating assessment of a confusing, clouded and damaging document so contrary in meaning that it even perplexed legal experts.
Whilst the mining industry supported the notion of transformation, the latest redraft of the Mining Charter, published on June 15 without much industry consultation, attempted to “… subvert those objectives by the unlawful publication of instruments which purport to give effective to such objectives, but in fact undermine them”.
An application to have the Mining Charter reviewed in terms of the Promotion of Administrative Justice Act (PAJA) would follow in due course, while a declaratory order aimed at winning a decisive legal directive on the ‘once-empowered, always-empowered’ principle had been re-enrolled with the deputy Judge President of the High Court.
The declaratory order will seek to clarify whether previous empowerment deals that may not be on the books of mining companies through direct holdings – for whatever reason – can be recognised, or whether the mining industry is required to perpetually re-empower themselves.
But it was the Mining Charter redraft that received the full blast of the Chamber’s anger.
“In summary, the 2017 Charter represents a most egregious case of regulatory overreach,” it said – a comment on certain aspect of the document that were “so obviously beyond the powers of the Minister [of mines, Mosebenzi Zwane]” as he was attempting to exercise powers that “… reside exclusively with Parliament”.
“The act of publication was and is harmful not only because of the content of the 2017 Charter, and the vague and contradictory language employed to convey that content, but also because of the clear threat to the separation of powers which that act presents,” the Chamber said.
It added that the Charter is “… so confusing and confused, and so contradictory in its core provisions, that not only are the mining companies who are supposedly obliged to comply with the 2017 Charter perplexed as to what they are required to do, but legal experts themselves are confused and find themselves unable to provide clear advice to their mining and investment clients as to the meaning and effect of the 2017 Charter.”
Zwane said last week that his department was prepared to consult with mining companies on the charter but doubted whether any of its provisions would be altered – a comment that enraged the Chamber which asked why it had not been consulted before the document was gazetted.
