Scholes pressing ahead with High Court challenge to have Mining Charters II & III scrapped

Hulme Scholes, partner, Malan Scholes Inc.

MINING lawyer, Hulme Scholes, is pushing ahead relentlessly with his legal action to have South Africa’s latest versions of the Mining Charter scrapped and expects it to come before the High Court “early in the second half of this year”.

This is despite some apparent progress being made in negotiations between the Minerals Council of SA (formerly the Chamber of Mines) and the South African government on the latest versions of the Mining Charter where more limited legal action is also underway.

In March last year the Minerals Council filed an application for the judicial review and setting aside of certain clauses of the 2018 Mining Charter.

Scholes wants the entire 2018 Mining Charter scrapped and is continuing his drive to achieve this after earlier declaring in April 2018 that: “I will withdraw my application immediately if I see sanity emerging from those negotiations” in a reference to negotiations underway at that time between the Minerals Council and government.

Since then Scholes has overcome a point raised by the Department of Mineral Resources and Energy (DMR) to dismiss his case on the grounds that he did not have “locus standi” because he did not sufficient interest in the mining sector to bring the case.

Scholes originally challenged the validity of the Mining Charter in its entirety, but he amended the action last year to have only Charters 2 and 3 set aside.

He told Miningmx in August his amended view was that the first version of the Mining Charter was the only one that the minister had the power to implement in terms of the Mineral and Petroleum Resources Development Act.

At the same time he overcame the “locus standi” challenge Scholes was instructed by the Court to join other interested parties to his case. He tells Miningmx that: “I subsequently joined the Minerals Council, the National Union of Mineworkers, Solidarity and others to my action. The Minerals Council subsequently filed an affidavit to clarify their position with respect to my application.

“Pleadings on my application have now closed and the matter is now ready to be heard.  The next step will be the publishing of the heads of argument which is a legal summary of the action and that should take place in the next six weeks. Then we apply for a date for the action to be heard.”

Asked why he was pushing ahead with the action despite an apparent lack of full support from the Minerals Council Scholes replied: “The Minerals Council needs to stand up firmly to government instead of blowing hot and cold as they have done up until now.

“Government is intent on forcing the mining industry to bear the cost and responsibility for providing social services and infrastructure that the government itself should be providing. Under [former mines minister Mosebenzi] Zwane the glass was half-empty. Under Mantashe the glass is half-full but it’s still only half.”

Scholes added he had deliberately kept a low profile over the past 18 months as he pushed ahead with his action commenting: “I win my battles in court. I can win a legal battle but I cannot win a political battle in public.”

2 COMMENTS

  1. Maybe this is the best thing to do right now. The mining industry is going nowhere without ESKOM, so sort out the mining charter and when we got sufficient energy again in 50 years or so the mining industry will become investable gain.

  2. SA desperately needs the mining regulatory regime to be reset. And that needs to be done through a full legislative process. Green Paper, White Paper, formal public consultation, Portfolio Committee work, outside expert economic advice etc. Having the Minister and his compromised and corrupt officials rush around mining communities, consulting haphazardly with them and other stakeholders, and then simply issue mining charters 3, 4, 5, 6 ad infinitum all followed by 20 page clarification memoranda because the charters themselves are unintelligible – is just inept.

    The governing party gets to choose which ever ideologically driven policy it wants – but at least lets have policy making with some degree of competence.

    All strength to Mr Scholes – he seems to understand this and is trying hard to reach for that reset button.

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