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JOHANNESBURG - The Chamber of Mines’ battle to have the mining charter set aside is likely to get a boost after three community organisations approached the North Gauteng High Court to intervene in the matter, citing the lack of consultation.

This week the Centre for Applied Legal Studies (Cals) lodged an application on behalf of the Mining Affected Communities United in Action (Macau), Women Affected by Mining United in Action and the Mining and Environmental Justice Network of South Africa, challenging the validity of the charter.

The groups, who represent over 150 activists and community-based organisations, want the court to allow them to intervene in the chamber’s case and to force the Department of Mineral Resources (DMR) to consult meaningfully on the charter.

In its 43-page founding affidavit filed at the North Gauteng High Court in Pretoria, Macau said it had consulted Cals last month after a decision to intervene in the chamber matter.

Macau said that in discussions with Cals, it had made it clear that it did not support the case of the chamber, but wanted to intervene on the basis of the exclusion of mining-affected communities during the drafting processes of the 2017 Mining Charter.

“Our intervention is not aligned to that of the Chamber of Mines, neither do we find ourselves coming into this case from the same perspectives as the Chamber of Mines. “We cannot align ourselves with the Chamber of Mines because mining companies themselves have failed in their own processes to include mining-affected communities as stakeholders in mining.

“Our exclusion by mines is more pronounced in the drafting and implementation of social and labour plans,” read the affidavit. Mineral Resources Minister Mosebenzi Zwane gazetted the charter in June but suspended its implementation pending the court review in December

The chamber wants the 2017 Mining Charter to be set aside for lack of engagement after it blamed Zwane for gazetting the third version unilaterally, saying its implementation would destroy the industry.

In June Zwane described the charter as an "instrument for change", arguing that 60 stakeholders outside the government, including communities and large mining companies, had been consulted. He said that once gazetted, the charter would be “reflective of careful consultations”.

Peter Leon, partner and Africa co-chair at Herbert Smith Freehills, said yesterday that the Cals intervention might strengthen the chamber’s claim about the lack of consultation by the department. “My own sense is that the High Court is likely to grant the application as the communities concerned are interested and affected parties, although it is being launched quite late,” Leon said.

“Social and labour plans (SLPs) here still suffer from the fact that they do not require community consent and are negotiated between the DMR and mining companies,” said Leon. SLPs set out plans by the company to share mining benefits with communities. They are submitted to the DMR as part of their application for mining rights.

- BUSINESS REPORT