JURY STILL OUT ON WHETHER CLAUSES OF THE MINING CHARTER WILL BE SET ASIDE

THE JURY is still out on whether certain clauses of the 2018 Mining Charter will be reviewed and set aside. The Pretoria High Court reserved judgment on the issue yesterday following a three-day hearing held virtually. The Minerals Council South Africa approached the court for a judicial review and the setting aside of the 2018 Mining Charter, saying the document did not recognise past empowerment deals. Among the elements of the charter is that new mining rights require a minimum 30 percent black economic empowerment (BEE) shareholding, distributed to qualifying employees, communities, host communities and BEE entrepreneurs. Advocate Christopher Loxton, representing the Minerals Council, told the court yesterday that the charter was not the sole source of community rights and did not operate in isolation.

“It is wrong to see the Mining Charter in isolation when you are looking at whether host communities are protected or whether they are enjoying the benefits of transformation,” Loxton said. “You have got to look at the conglomeration of legislation, including the Mineral and Petroleum Resources Development

Act, when you look at the role of the charter,” said Loxton. The mining industry argued that the charter was detrimental to growth. The Minerals Council argued that the minister had no power after the granting of a mining right to impose new obligations on mining companies through the charter. The council was concerned about some key issues in the charter, including the non-recognition of the continuing consequences of previous transactions in respect of mining right renewals and transfers, the practicality of the inclusive procurement provisions relating to local content targets for mining goods and other ancillary aspects of the charter. Arguing on behalf of the Department of Mineral Resources and Energy, advocate Cassie Badenhorst said yesterday that the charter was a document created by human beings that would likely have deficiencies which would be cured in due course if it was required by the courts. “What is fundamental, and we call it the central question, is what do you do with section 100(2), and obviously that is in the interest of all parties that the courts answer this question first and foremost. If you find that that section does not create a document with lasting and effective legal consequences, then, of course, for the minister to adjust the wording will be like rearranging the chairs on the deck on the Titanic. It would not be effective,” said Badenhorst. |