South African gold mining company Sibanye expressed immediate dis-appointment that the draft revised Mining Charter was gazetted without prior consultation, while Anglo American described the move as “premature”.

In a unilateral action, Minister Mosebenzi Zwane on April 15 gazetted the draft reviewed broad-based black economic-empowerment Mining Charter, which prompted the Chamber of Mines (CoM) to obtain Ministerial commitment to deal with the content of the charter’s revised version in a process over the coming month, “or beyond if necessary”.

Both Sibanye and AngloGold Ashanti published stock exchange news service notices to draw shareholder’s attention to the unilateral action by the Minister, and Harmony Gold put out a release promising to “actively participate” in the discussions.

Anglo American said it viewed the decision to publish the draft review prior to seeking input from the mining industry as premature.

“Furthermore, the retrospective application of the draft charter to our existing mining rights is subject to the same principles as the application brought by the CoM, which is currently before the North Gauteng High Court. “The current draft review of the charter represents solely the view of the Department of Mineral Resources (DMR) and needs to be comprehensively reconsidered to ensure that South Africa can once again be a preferred investment destination for the mining industry,” Anglo said in a statement.

However, the National Union of Mine-workers (NUM) welcomed the draft and expressed the hope that it would ensure mineworkers of employee share ownership schemes, human resources development, home ownership and employment equity.

Sibanye CEO Neal Froneman said it was disappointing that the draft charter had been published without extensive consultation and while court proceedings were still in place to obtain clarity on aspects of the the previous charter.

He said that the proposed revision contained aspects that were “not acceptable” if applied retrospectively.

As required by law, the draft was open for public comment for 30 days, during which time “and possibly beyond if required”, the Minister had committed himself to engaging with the mining industry, organised labour and other affected parties.

Sibanye said it was committed to supporting the chamber in its engagement.

AngloGold Ashanti said it was currently analysing the provisions contained in the document and would, through the chamber, engage with the Minister and the DMR to provide comments and representations.

The Ministry said the draft sought to strengthen the charter’s efficacy to effect meaningful transformation of South African mining.

It also aimed to integrate government’s transformation policies and legislation in order to “enhance the ease of doing business and create regulatory clarity, predictability and certainty”.

It was aligned, the Minister said, to the provisions of the Broad-Based Black Economic Empowerment Act (BBBEE) of 2003 and the Codes of Good Practice of the Department of Trade and Industry (DTI).

It would be published for 30 days from last Friday and written comments should be submitted by May 31.

In its response, the chamber noted the publication would be used as the basis for engagement between the DMR and key industry stakeholders.

It added that the Minister and the chamber team had agreed on a process to deal with the content of a revised version of the Mining Charter, the original version of which was the instrument that gave effect to the intentions of the Mineral and Petroleum Resources Development Act (MPRDA).

It initially came into effect in 2004 and a revised version was gazetted in 2010.

Chamber member companies continued to be committed to the achievement of all the charter’s transformation objectives and had, for the most part, met the targets set by the 2010 version.

A further factor to be considered was that clarity through the High Court on the interpretation of black economic empowerment-ownership transactions carried out between 2004 and 2014 was currently under consideration.

This decision was expected only later this year and would undoubtedly influence both the assessment of the industry’s historical ownership performance and the way forward and could significantly influence the latest draft version.

Meanwhile, trade union Solidarity denounced the proposed new mining charter, warning it could have devastating consequences for the ailing mining industry. General secretary Gideon du Plessis said the timing of the new proposed charter was “perturbing in the wake of the retrenchment bloodbath that is prevailing in the mining industry at the moment”. He added that the draft provision on raising black representation levels to 88% was “extremely inflexible and unrealistic”. “The mines are already locked into a struggle for survival and the fact that they now risk losing their mining licences due to noncompliance with the charter, will mean that international and local investors will no longer fund capital projects. Mines will also be reluctant to embark on any new development and exploration projects. This will prevent the creation of new jobs, whereas existing jobs in the industry could be lost,” Du Plessis said. He also warned that the charter, in its present form, created the potential for numerous court actions due to “unconstitutional, illegal and unfair clauses”.

The NUM described the draft as being in line with Section 100 of the MPRDA and putting the industry “well on time” to achieving alignment process with the BBBEE Act and the DTI’s Codes of Good Practice, gazetted in 2015.

The NUM said its national office bearers would engage with the Minister during the prescribed 30-day consultation period and undertook to prepare a substantial response within the prescribed period.