The mining industry is awaiting the proclamation of the date on which the Mineral and Petroleum Resources Development Bill, 2013, which has been approved by both the National Assembly and the National Council of Provinces, will come into operation. Recent news is that Mineral Resources Minister Ngoako Ramatlhodi is intent on postposing the commencement of the Amendment Bill and redrafting it to exclude sections relating to oil and gas, which, it is assumed, will be included in a separate piece of legislation. This process will require sending the proposed amendments to the Amendment Bill back to Parliament for approval.

The rationale for the introduction of the Amendment Bill was to clarify certain legislative uncertainty in the mining industry. There is speculation, however, regarding whether the current form of the Amendment Bill achieves this. One of the reasons for this speculation is the fact that more than 50 sections of the Amendment Bill make reference to administrative action that is to take place ‘in the prescribed form’, ‘in the prescribed manner’ or ‘as prescribed’. Further, references to specific timeframes for such action have been drafted as ‘in the prescribed period’. This wording contemplates a reference to regulations which are promulgated pursuant to an Act of Parliament to facilitate the administration of that Act. As far as can be ascertained, the industry has not had sight of any regulations for the Amendment Bill and, therefore, can assume that such regulations have not been drafted.

This then begs the question: What happens if the Amendment Bill is signed into operation in its current form and without such regulations being promulgated, as has happened with recent amendments to environmental legislation in South Africa?

The consequence of legislation being proclaimed as effective legislation without corresponding regulations was dealt with by the Constitutional Court in Pharmaceutical Manufacturers Association of South Africa and Others; In RE: Ex Parte Application of the President of the Republic of South Africa and Other [2000(3) BCLR 241 (CC)]. The Constitutional Court upheld the decision of the full bench of the Transvaal Provincial Division (as it was referred to at the time) that a proclamation which is made irrationally and which results in an unworkable outcome can be set aside by a court for the reason that it is null and void and of no force and effect.

In the event that the Amendment Bill is proclaimed as effective legislation prior to the promulgation of regulations, such a proclamation would, in essence, be premature and liable to being set aside for the same reasons as those in the pharmaceuticals case. The correct legal consequence would be to approach the courts to set aside the proclamation of the commencement of the Amendment Bill. The rationale for this court application would be that the necessary regulations have not yet been promulgated, rendering the practical implementation of the Amendment Bill impossible. The objective irrationality of proclaiming the Amendment Bill effective, when in practical terms it cannot be implemented without regulations, would grant a court the power to intervene and ultimately set aside the decision to promulgate the Amendment Bill as effective.

In the event that an applicant is successful in setting aside such proclamation, the court order would have to be confirmed by the Constitutional Court, in line with the provisions of the Constitution. Once confirmed, the resultant effect would be that the Amendment Bill will be deemed not to have been validly brought into effect and the Mineral and Petroleum Resources Development Act, 28 of 2002 (as amended by Act 49 of 2008) would remain effective legislation.

As is evident from the above, the process to set aside a proclamation is rather complicated and is not merely a quick fix. This may be the reason why certain legislation remains unchallenged despite its unworkable nature.

At this stage, all that the industry can do is wait and see whether President Jacob Zuma takes the decision to postpone the commencement of the Amendment Bill until such time as the regulations have been properly formulated. It is imperative that the proclamation the commencement of the Amendment Bill is made at an appropriate time – when all the subordinate legislation and regulatory infrastructure are in place to avoid any challenge to the promulgation of the Amendment Bill as effective legislation.