Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

Char­ter will now at­tempt to pre­scribe to in­vestors ex­actly how BEE trans­ac­tions should be fi­nanced will do lit­tle to fill in­vestors with en­thu­si­asm.

Pre­vi­ously, sanc­tions would be im­posed by the De­part­ment of Min­eral Re­sources only if there was non­com­pli­ance with the Min­ing Char­ter and the Min­eral and Petroleum Re­sources De­vel­op­ment Act. The new char­ter in­tro­duces a deem­ing pro­vi­sion in that if you fail to com­ply with cer­tain obli­ga­tions in the char­ter, then you are deemed to have also breached the act.

Al­though this is con­cern­ing, the de­ter­mi­na­tion of the le­gal na­ture of the Min­ing Char­ter is key to whether the min­is­ter has the au­thor­ity to el­e­vate a breach of the Min­ing Char­ter to that of a breach of the Min­eral and Petroleum Re­sources De­vel­op­ment Act.

The pro­vi­sions of the act oblig­ing the min­is­ter to “de­velop a broad­based so­cioe­co­nomic em­pow­er­ment char­ter” clearly clas­sify a char­ter in the cat­e­gory of guide­lines or pol­icy. Whether or not a char­ter may be el­e­vated to the sta­tus of sub­or­di­nate leg­is­la­tion re­mains un­de­cided by our courts.

In­dus­try has 30 days within which to sub­mit writ­ten rep­re­sen­ta­tions to the min­is­ter and, one hopes, this will then sig­nal the start of the con­sul­ta­tion process be­tween in­dus­try, labour and the De­part­ment of Min­eral Re­sources.

Oth­er­wise, the fu­ture for Sas­suolo is less com­pli­cated: they can sim­ply find an­other goal­keeper.

Pic­ture: iS­TOCK

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