The government intends appealing a court judgement handed down on April 4 on the crucial “once empowered – always empowered” principle which ruled in favour of the Chamber of Mines.
This is despite Minster of Mineral Resources Gwede Mantashe stating at a platinum investment conference in Johannesburg on April 10 that the Department of Mineral Resources (DMR) would not appeal against that judgement. In a press conference after his address to the Joburg Indaba Platinum Industry Seminar Mantashe said, “We won’t appeal. We are engaging and we will come up with a formulation with the Chamber. “
But Mantashe did add some qualifications to his position. He said there should not be “blanket recognition of past deals” and he added that compliance with the Mining Charter ought to be done on a “case by case basis.”
Mantashe commented, “if we have to go to the court every day, then so be it.”
In response to a query on why the Chamber thought Mantashe had performed this “about-face”, spokesperson Charmane Russell commented,” the Chamber respects the right of the Minister and the DMR to lodge an application to appeal the judgement. The Chamber is continuing to engage with the DMR in good faith in developing a new Charter, and is confident that a constructive, sustainable outcome can be reached.”
DMR spokesperson Ayanda Shezi could not be reached for comment.
In its ruling the High Court agreed with the Chamber of Mines which had asked it for a declaratory order that previous empowerment deals ought to be recognised as compliant with the Mining Charter even if partners had traded out of their positions or transactions had failed by dint of market forces.
In a statement released today the Chamber commented it was “ currently reviewing the specified grounds of appeal, although the DMR’s appeal appears to centre on the major Judges’ ‘obiter dictum’ comments about the legality of the 2010 Charter and the enforceability of the Charters.
“The Chamber has continued to state that it fully supports the 2004 and 2010 Charters as it was party to developing these Charters and the industry has created substantial transformation through applying these Charters.”
The Chamber added it continued to see the 2004 and 2010 Charters as “an important instrument for achieving the transformation of the sector and therefore does not question its legitimacy”
For those reasons the Chamber said it had agreed to join the application being brought by MalanScholes attorney Hulme Scholes to scrap the Mining Charter but as a respondent. The Chamber commented “the Scholes application challenges, amongst others, the validity of both the 2004 and 2010 Mining Charters. The Chamber does not share this view.”