The Chamber of Mines applied to the high court Gauteng Division on Monday 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 (PAJA) will follow in due course.
The Charter sets new black ownership targets for the industry. The targets include new mining rights holders having 30 percent 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 percent 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 further noted that should the DMR’s Charter be implemented in its current form, it will “destroy the very industry whose survival is necessary to give effect to the objects of the MPRDA.”
The application further argues that the publication of the 2017 Charter was so obviously beyond the powers of Mineral Resources Minister Mosebenzi Zwane and that, in publishing the 2017 Charter, 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 the meaning and effect of the 2017 Charter”.
The application concludes that, “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.
“The vast and systemic damage which the publication and threatened enforcement of the 2017 Charter has and continues to inflict upon the financial and reputational interests of not only the Chamber’s members, their employees and investors but also the country as a whole, requires, it is submitted, urgent redress.
Such redress, in the short term, can only be had by way of an urgent interdict. In due course, this court will be asked to set aside the 2017 Charter as an unlawful exercise of power. But in the interim, and in order to avoid further harm and hopefully restore a degree of confidence not only in the mining industry as an investment opportunity but also in this country’s institutions, urgent relief is necessary.”