https://www.miningweekly.com

Judgment shows courts won’t easily endorse Mining Charter III's blunt arithmetical quotas – Leon

19th July 2016

By: Martin Creamer

Creamer Media Editor

  

Font size: - +

JOHANNESBURG (miningweekly.com) – Mineral Resources Minister Mosebenzi Zwane would do well to ponder last Friday’s landmark Constitutional Court judgment as he and his department mull public comments on the draft reviewed Mining Charter that he sprung on the South African mining industry in a surprise April gazetting.

This is because, in the view of Herbert Smith Freehills’ Africa Practice partner and co-chair Peter Leon, the court's reasoning has significant implications for Mining Charter III, which inflexibly requires mining companies to apply rigid racial quotas in their employment and promotion practices.

In doing so, Leon sees it falling foul of the Constitutional Court's interpretation of legitimate affirmative action.

The July 15 judgment, he points out in a release to Creamer Media’s Mining Weekly Online, shows that the use of blunt arithmetical quotas will not easily be endorsed by the courts as legitimate measures to promote transformation. 

Struck down in trade union Solidarity's challenge of the Department of Correctional Services was an employment equity plan that imposed national demographics on regional departments, and thus excluded "overrepresented" coloured corrections officers in the Western Cape from the prospect of promotion.

In striking this down, the court effectively reaffirmed its finding in the unsuccessful case Solidarity brought against the Department of Police in 2014 – that it is unconstitutional to use rigid quotas, as opposed to flexible targets, to achieve transformation. (In Friday's judgment, the majority of the court found that the plan in question was not inflexible, and thus not a quota, but set it aside in any event on separate grounds.)

Among other changes, Mining Charter III also drastically increases the employment equity thresholds expected of mining companies.

While the existing 2010 charter requires at least 40% of management across all levels to be historically disadvantaged South Africans, the new draft charter not only increases the thresholds to 50% at board level and 88% at junior management level, but also reduces the pool of eligible empowerment candidates, by disqualifying all women and disabled people who are white.

In Leon’s view, these reforms not only create immense practical difficulties, but are also inconsistent with the Employment Equity Act and the Mineral and Petroleum Resources Development Act, both of which recognise white women and disabled people as qualifying for employment equity.

Being concerned exclusively with employment, the July 15 judgment has no clear implications for the charter's other requirements, such as perpetual 26% black ownership and increased procurement from black-owned enterprises.

Edited by Creamer Media Reporter

Comments

The content you are trying to access is only available to subscribers.

If you are already a subscriber, you can Login Here.

If you are not a subscriber, you can subscribe now, by selecting one of the below options.

For more information or assistance, please contact us at subscriptions@creamermedia.co.za.

Option 1 (equivalent of R125 a month):

Receive a weekly copy of Creamer Media's Engineering News & Mining Weekly magazine
(print copy for those in South Africa and e-magazine for those outside of South Africa)
Receive daily email newsletters
Access to full search results
Access archive of magazine back copies
Access to Projects in Progress
Access to ONE Research Report of your choice in PDF format

Option 2 (equivalent of R375 a month):

All benefits from Option 1
PLUS
Access to Creamer Media's Research Channel Africa for ALL Research Reports, in PDF format, on various industrial and mining sectors including Electricity; Water; Energy Transition; Hydrogen; Roads, Rail and Ports; Coal; Gold; Platinum; Battery Metals; etc.

Already a subscriber?

Forgotten your password?

MAGAZINE & ONLINE

SUBSCRIBE

RESEARCH CHANNEL AFRICA

SUBSCRIBE

CORPORATE PACKAGES

CLICK FOR A QUOTATION