The Chamber of Mines applied to the High Court Gauteng Division yesterday for an urgent interdict to prevent the implementation of the Reviewed Mining Charter, as published by the Department of Mineral Resources (DMR) earlier this month.
The chamber said an application to have the updated mining charter reviewed in terms of the Promotion of Administrative Justice Act would follow in due course.
The charter sets new black ownership targets for the industry. These include new mining rights holders having 30% black ownership to be shared among employees, communities and black entrepreneurs. Those applying for prospecting rights would be required to have a “minimum of 50% plus one black person shareholding.”
The chamber’s high court application noted that its members were fully committed to the transformational objectives of the Minerals and Petroleum Resources Development Act (MPRDA).
But the chamber said it was opposed to the DMR’s mining charter as it “attempts to subvert those objectives by the unlawful publication of instruments which purport to give effect to such objectives but in fact undermine them”. It noted that should the DMR’s charter be implemented in its current form, it would “destroy the very industry whose survival is necessary to give effect to the objects of the MPRDA”.
The application argues that the publication of the 2017 charter was obviously beyond the powers of Mineral Resources Minister Mosebenzi Zwane and that, in publishing it, the minister had purported to exercise powers which reside exclusively with Parliament.
The chamber contends that the DMR’s 2017 charter is “so confusing and confused, and so contradictory in its core provisions, that not only are the mining companies who are supposedly obliged to comply with the 2017 charter perplexed as to what they are required to do, but legal experts themselves are confused and find themselves unable to provide clear advice to their mining and investment clients as to its meaning and effect”.
The application concludes: “In summary, the 2017 charter represents a most egregious case of regulatory overreach. The act of publication was and is harmful not only because of the content of the 2017 charter, and the vague and contradictory language employed to convey that content, but also because of the clear threat to the separation of powers which that act presents.”