Mantashe, council lock horns
Certain aspects of the charter challenged
Minister of Mineral Resources Gwede Mantashe and the powerful Minerals Council South Africa (MCSA), formerly the Chamber of Mines, this week faced off in the North Gauteng High Court over the contentious Mining Charter.
A full bench of the court, led by judge president Dustin Mlambo, Bashier Vally and Elmarie van der Schyff reserved judgment after hearing arguments from both sides.
MCSA’S spokesperson Charmane Russell said the council wants a judicial review of certain aspects of the Mining Charter gazetted in September 2018.
“It will be recalled that the application was lodged on 27 March 2019, when the 180-day time limit came into effect for reviews in terms of the Promotion of Administrative Justice Act,” Russell said.
“Prior to that date and thereafter, talks were held between the minerals council and the department in an effort to reach consensus on these matters. Unfortunately, those efforts were unsuccessful.”
One of the clauses in the charter that the MCSA has taken issue with is that under the charter, new mining rights require a minimum of 30% BEE shareholding.
The charter also demands that companies must spend a minimum of 70% of mining goods procurement and 80% of services procurement on South African companies. The targets must be reached within five years.
Another sticky issue is the current version of the “once empowered, always empowered” clause which applies only to existing mining rights.
This implies that any application for a renewal of a mining right would require a restructuring of black economic empowerment structures to meet the requirements of the
The minister cannot decree and elevate the Mining Charter’s status to that of legislation
charter if the previous levels of empowerment were no longer compliant.
The MSCA wants these requirements and others to be declared unlawful.
“The minister cannot decree and elevate the charter’s status to that of legislation and cannot by decree provide in the charter that non-compliance therewith shall render the mining company in breach of the MPRDA [Mineral and Petroleum Resources Development Act] and subject to the provisions of section 47, 93, 98 and 99 of the MPRDA,” reads the MCSA’S founding affidavit deposed by Tebello Chabana, a senior executive at the organisation.
Mantashe, in his answering affidavit, asked the court to dismiss the MCSA’S application with costs. “First, to permit mining right holders to offset 100% of their targets would defeat the whole purpose of transformation, being to bring historically disadvantaged South Africans into the mainstream economy,” reads Mantashe’s affidavit.