Mineral Resources Minister Mosebenzi Zwane would do well to ponder the recent 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 cochair 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.

Leon thus 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, 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 had 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 the latest 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.