MINING RIGHTS

THE SOUTH African government’s faces a real risk of being challenged in court and in the extreme case in international investment tribunals for potential breaches of the guarantees under applicable bilateral investment treaties (BITs) and/or multilateral investment treaties based on certain of the provisions of the Reviewed Broad Based Socio Economic Empowerment Charter for the South African Mining and Minerals Industry, 2017 (Revised Mining Charter 2017).

The Revised Mining Charter 2017 could, in respect of certain provisions thereto, result in BIT guarantees for qualifying foreign investors being infringed.

The retroactive application of the Revised Mining Charter 2017 to existing mining right holders, in particular the increase of the black economic empowerment (BEE) threshold from 26 percent to 30 percent for existing rights holders could prima facie be a BIT violation. In