One week Minerals Minister Mosebenzi Zwane signs a written undertaking that neither he nor his Department of Mineral Resources (DMR) will apply or implement his controversial Mining Charter Three gazetting and the next he pulls the carpet from under the underlying purpose of his signed agreement by stopping all the expansionary corporate and transactional activity that characterises the minerals business.
In the wake of his errant gazetting, lawyer after lawyer describes his actions as illegal, irrational and unreasonable.
In playing politics for a factionalised audience, he obviously believes that he will win support for what he is doing and improve his ratings.
But, because the faction that he is playing to appears to be losing influence and political standing, the chances are he will shorten his political career rather than boost it.
Notwithstanding his second rights-moratorium gazetting earlier this month, at industry level, the Minister has lost round one resoundingly.
Full of indignation at being forced to give a written undertaking not to implement Mining Charter Three “in any way”, until the High Court interdict application is heard in September, he retaliated lamely by again publishing gazette notices that, in the unanimous view of lawyer after lawyer, are well outside of what he is empowered to do under the Mineral and Petroleum Resources Development Act (MPRDA).
Herbert Smith Freehills Africa partner and co-chair Peter Leon views his latest minerals activity moratorium gazette notice as inferring an intention to circumvent the underlying purpose of the agreement reached with the Chamber of Mines,
In particular, it appears that the Minister intends using the notice to coerce the chamber into a possible settlement of its injunctive proceedings, Leon added in a release to Creamer Media’s Mining Weekly, in which he made the point that one could deduce that the Minister’s intention is to find a way around fulfilling the agreement’s purpose.
The latest gazette notice sidesteps the written agreement and invites interested parties to make submissions on the imposition of a moratorium on the granting of applications for prospecting or mining rights; the processing of applications for the renewal of such rights; and the granting of applications for the transfer of prospecting and mining rights, or the sale and transfer of a majority shareholding in holders of these rights.
The Minister’s decision to invite submissions on the gazette notice does not necessarily constitute administrative action under the Promotion of Administrative Justice Act, 2000, but any sub- sequent decision to implement the moratorium will.
Such a decision will only be lawful if it is reasonable, procedurally fair and within the Minister’s powers under Section 49 (1) of the MPRDA, which provides that the Minister may restrict the granting of rights, but, in doing so, is obliged to specify the land, period and minerals to which the restriction will apply.
In addition, the Minister is obliged to exercise this right by having regard to the national interest, the strategic nature of the minerals in question and the need to promote the sustainable development of South Africa’s mineral resources.
None of these requirements appears to have been met.