JOHANNESBURG (miningweekly.com) – The court judgment that the Mining Charter is policy and not law goes a long way towards providing regulatory certainty, says NSDV mining law senior associate Muhammed Khan – but it is not the end of the road, he cautions in a 1 500-word analysis entitled The Great Mining Charter Debate.
Khan highlights how the submission that the 2018 Mining Charter is binding subordinate legislation has had the carpet pulled from under it by the full bench of the High Court of South Africa, Gauteng Division. Hoisted high instead is the finding that it is an instrument of policy.
Khan, who will be writing more articles as issues develop, notes the court stating that the word 'regulation' – and not the word 'charter' – would have been used had the legislature intended it to constitute subordinate legislation, in Section 100 of the Mineral and Petroleum Resources Development Act (MPRDA).
Another over-reach was the use of the 2018 Mining Charter to repeal the previous charters and adopt a prescriptive approach by imposing sanctions for noncompliance.
Moreover, it was an attempt to change the interpretation held by all concerned since the commencement of the MPRDA.
The court further concluded that the use of the words ‘developed’ and ‘can’ in the MPRDA's same Section 100 reinforced the contention of this being policy and not law.
Treating it as law would clash with the doctrine of the separation of powers and also amount to absolute legislative power delegation vesting outside of the legislature, where it belongs.
Khan highlights the court’s criticism of the argument that the transformation objectives of the MPRDA cannot be achieved unless the 2018 Mining Charter is legally binding, as it ignores the MPRDA’s inherent enforcement structure.
The upshot is that the charter, as an instrument of policy, does not empower law-making.
Accordingly, the court granted the order sought by Minerals Council South Africa and set aside several sections that make holders of mining rights susceptible to the suspension or cancellation of those rights.
Khan's comment that this judgment "is not the end of the road" reflects the options still open to the Minister, which include appealing the judgement to the Supreme Court of Appeal and rendering charter compliance as a condition of new mining rights.
"An application for leave to appeal would have the effect of suspending the judgement unless the court, under exceptional circumstances, ordered otherwise,” Khan states.
If compliance with the 2018 Mining Charter were included as a term of new mining rights, he expresses the view that this inclusion would likely constitute administrative action and could be subjected to judicial review.
The MPRDA could also be amended through the enactment of an amendment Bill to place an obligation on the holders of mining rights to comply with the 2018 Mining Charter.
“It is compliance with the 2018 Mining Charter, as amended by this judgement, that will be included as a term in new mining rights. Remember, that for the grant of new mining rights, the Minister must still be satisfied that the granting of such mining right will further the objects referred to in section 2(d) and (f) of the MPRDA in accordance with the charter contemplated in terms of section 100(2) of the MPRDA," he states.
Considering the various moving parts, the mining industry should still take cognisance of the 2018 Mining Charter, particularly when applying for new mining rights, he concludes in his release to Mining Weekly.