JOHANNESBURG (miningweekly.com) – Mineral Resources Minister Gwede Mantashe’s application for leave to appeal the Pretoria High Court’s decision on the ‘once empowered, always empowered’ principle under the Mining Charter is regrettable, says Herbert Smith Freehills co-chairperson and partner Peter Leon.

He added that the Minister’s actions were particularly disappointing after he had originally indicated that the judgment would not be appealed.

The Department of Mineral Resources on Tuesday confirmed that it had approached the Supreme Court of Appeal to appeal the judgment handed down by the High Court, on April 4, in respect of the application for declaratory orders in relation to the original Mining Charter, 2004 and the revised Mining Charter, 2010.

The High Court had ruled that the first two versions of the country’s mining charter had not required producers to top up their black shareholding levels in perpetuity if they previously met the minimum 26% requirement. 

“The department is concerned by the implications of the majority judgment on the attainment of the objective to sustainably transform South Africa’s mining industry by bringing in new entrants and empowering workers and communities in mining towns.

“The judgment has dire implications for the economic transformation imperatives of the Constitution, the mining sector and South Africa at large. It further has the potential of extending regulatory and policy uncertainty, and sterilisation of our mineral resources, with grave economic growth and employment implications,” the DMR said in a statement issued on Tuesday.

Leon, meanwhile, pointed out that any appeal is unlikely to be heard by the Supreme Court of Appeal until early next year and that any decision taken by that court is likely to be appealed, in turn, to the Constitutional Court.  

“This means that any imminent conclusion over the Mining Charter 3 negotiations is unlikely, which is not conducive to regulatory certainty. This looks like a lost opportunity,” he said.

Mantashe has, on several occasions this year, said he wanted Mining Charter 3 to be finalised within a few months.