SOUTH Africa’s Chamber of Mines was contemplating the launch of a second interdict against the government in as many months following a notice in the Government Gazette yesterday which critics say would cripple the industry.
Relying on certain discretional powers set down in Section 49 of the 2010 Minerals & Petroleum Resources Development Act (MPRDA), mines minister, Mosebenzi Zwane, planned to suspend all new mining and prospecting licenses.
The move was interpreted by law firm Webber Wentzel as an effort to “… force the industry to ultimately bow to the minister’s whim in respect of Mining Charter III”.
On June 15, Zwane published a redraft of the Mining Charter which set down transformation targets the Chamber said were unworkable and prepared without any industry input. It subsequently applied for an interim interdict.
Zwane responded by suspending the Mining Charter redraft for two months whilst his Department of Mineral Resources (DMR) prepared a responding affidavit to the interdict application.
The Chamber said today it was “… writing to the minister to request his immediate withdrawal of the notice, failing which the Chamber will apply for an urgent interdict to suspend and review the notice”. Interested and affected parties were given until August 4 to make submissions to the DMR, according to the notice in the Government Gazette.
After taking legal advice, the Chamber said the notice constituted “an unlawful action” for a number of reasons including the damaging impact of the proposed action on the mining sector and that the minister was acting ultra vires or beyond his powers under the MPRDA.
“The effect of the notice is to pave the way for the minister to issue a further notice to prevent the issuing of new mining and exploration rights which will have an immediate negative impact on investment in the sector,” it said.
The other effect in Section 49 is that it vests all powers to receive and grant various rights to the minister “on invitation” by minister. This prevents companies making applications in the ordinary course of business as is normal under the MPRDA’s other provisions, and may well allow “friends” to make applications which will be entertained, said Brandon Irsigler, an attorney for Stata Legal.
