JOHANNESBURG (miningweekly.com) – Local law firm Malan Scholes has lodged an application at the Pretoria High Court, seeking to declare the country’s Mining Charter unconstitutional and void.

It also sought to consolidate its own application with the Chamber of Mines’ (CoM’s) court application for declaratory orders relating to aspects of interpretation.

In June last year, the CoM approached the High Court for a declaratory order to provide guidance on the principles applicable to the assessment of the ownership element of the Mining Charter, particularly in respect of the continuous consequences of previous black economic-empowerment (BEE) deals.

The CoM noted in a statement at the time that, subsequent to the March 2015 announcement that the mining industry and the Department of Mineral Resources (DMR) would jointly seek court resolution on the matter, it had become clear that the legal mechanism available to the parties necessitated a clear applicant and respondent, with an identifiable and clear point of dispute.

The chamber on Monday said it did not believe that its own application could be consolidated with the application lodged by Malan Scholes, as the right to relief in the respective applications did not depend on determination of substantially the same questions of law or of fact.

The Scholes application sought an order to prove that the conduct of the Mineral Resources Minister responsible for developing the Mining Charter was beyond the Minister’s legal power or authority, unconstitutional and invalid.

The CoM argued that its application instead sought declaratory orders in regard to the correct interpretation of aspects of the charter, primarily relating to whether the charter contains an obligation that the holder of a mining right continuously restore the level of ownership by historically disadvantaged persons to 26% if, after grant or conversion of the relevant mining right, such level was to fall below 26%.
 
“The chamber considers itself a partner in the charter. The chamber has been party to its development and implementation over the past 12 years and intends to continue in playing this role. We see it as a necessary and positive feature of the process of transforming the industry,” CoM CEO Roger Baxter said.

He added that the delay that would be caused by a consolidation of the applications would be prejudicial to the chamber and would not be in the public interest.

“The mining industry urgently needs certainty on what the correct interpretation of the charter is, which is why the Minister and the chamber have agreed that the declaratory orders which are set forth in the chamber’s application should be sought.”