AFTER waiting more than a month, the Chamber of Mines has instructed its lawyers to approach the high court to find out about the status of its application for a declaratory order around the ownership clauses in the Mining Charter.
The matter was scheduled to be heard before the court last month, but was delayed when mining lawyer Hulme Scholes and his firm Malan Scholes brought an application to consolidate the chamber’s case with their own, which sought to have the Mining Charter declared unconstitutional and void.
In mid-March, Judge Pierre Rabie said he would postpone the chamber’s case, while he decided on the Scholes application.
Since then, the Department of Mineral Resources has gazetted draft proposals for a revised charter, which sets out stricter criteria around ownership levels, removing ambiguity about whether companies need to maintain a minimum 26% black ownership component.
In a letter to the office of the deputy judge president dated April 25, law firm Norton Rose Fulbright said: “As you are aware, the Chamber application is of public importance and in the national interest.
“Both the mining industry and the government need certainty … on the correct interpretation of the Mining Charter, being the reason why the Chamber application was brought by agreement with the minister of mineral resources.
“The need for certainty on the outcome of the consolidation application is all the more urgent in light of the publication in the Government Gazette on April 15 of the revised charter.”
The draft charter stipulates every mining right must be empowered and ownership kept at 26%. The release of the charter, which also raised levels of black management representation and increased the levels of goods and services to be procured from BEE-aligned companies, caught the industry completely off guard.
Chamber CEO Roger Baxter has said the retrospective nature of the revised charter was unacceptable, a point the Norton Rose letter addressed, describing the ownership and other conditions as “onerous” for mining right holders.
The letter said the provisions in the revised charter around ownership went directly against the relief sought in the chamber’s application, which argued the minister had no power to develop an amended, reviewed or new charter, and there was no provision in the Mineral and Petroleum Resources Development Act underpinning the revised charter’s demands on empowerment.
“It is therefore in the Chamber’s and indeed in the national interest ot have the Chamber application heard before the Draft 2016 Charter comes into effect, since if the Chamber Application succeeds it would render the Draft 2016 Charter unlawful,” Norton Rose said.
There were talks earlier this week between Mineral Resources Minister Mosebenzi Zwane and the chamber, which were described in a statement as “frank and robust.”
“The minister is encouraged by the parties’ openness and willingness for frank and robust discussions. Engagements continue, and any further announcements will be made in due course,” the statement said.