Mining Charter heading back to court after Minerals Council seeks judicial review

SOUTH Africa’s Mining Charter is heading back to court.

The Minerals Council South Africa announced today it had filed an application for a judicial review of the charter which, when it was gazetted in December, was welcomed in the main although concerns were voiced about a requirement for re-empowerment.

Roger Baxter, CEO of the council, said in a statement today that discussions over elements of the charter continued with mines minister, Gwede Mantashe, but legal action was necessary in terms of the Promotion of Administrative Justice Act (PAJA) which allows 180 days to call a judicial review in the event discussions may head for exhaustion.

The council said Mantashe has been kept aware of the potential for renewed court proceedings and that discussions with the Department of Mineral Resources “may yet bear fruit”. The decision to apply for a judicial review “… was very reluctantly taken by the Minerals Council Board,” the council said.

The DMR said in response it would oppose the application. Responding papers would be filed in due course. “Approaching the courts implies a conflictual relationship, that requires intervention by an external party; yet we could – collectively – find the solution,” said Mantashe in a DMR statement. He urged the council to return to discussions with the court application described as “disconcerting”.

The rationale for the review – which reopens a fresh chapter of uncertainty over the country’s minerals dispensation – is essentially about a requirement in the Mining Charter that mining firms re-empower themselves in order to renew mining licences or transfer a mining right.

“This application is fully aligned with the Minerals Council’s previously stated view that most aspects of the Charter represent a reasonable and workable framework, but that the provision that the charter does not fully recognise the continuing consequences of previous empowerment transactions, particularly in respect of mining right renewals and transfers of these rights, remains untenable,” said Baxter in a statement.

“Not only does this provision in particular have a severely dampening effect on the attractiveness of mining in the eyes of investors, but it is also, in our view, a breach of the declaratory order on the matter issued by the North Gauteng High Court in April.”

Said Baxter: “The Minerals Council and its members remain fully committed to transformation of the mining sector in South Africa, with the aim of achieving job creation, economic growth, competitiveness and social upliftment and development”.

“But these goals will only be realised through a minerals policy framework that conforms to the rule of law and principles of legality; and by administrative action which is lawful, reasonable and procedurally fair and consistent in all respects with provisions of the country’s legislation. The rule of law, regulatory certainty and the fair and even-handed administration of laws are of the utmost importance in sustaining the mining industry, and indeed the economy as a whole,” he said.

Minerals Council vice-president, Neal Froneman, said that whilst the new Mining Charter was “more acceptable” the issue of once-empowered, always-empowered, represented “unfinished business”. The council had now “run out of time”.
“We cannot expose the Mineral Council members to these things without actually drawing a line in the sand,” said Froneman today.
“We were hoping that the minister would actually implement the charter but expressly omit those things which we didn’t agree with so we could continue discussing it.
“But he refused to give us a letter today. Therefore we have no option but to make we cover our legal position,” he said.
With additional reporting from Ed Stoddard.

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