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Chamber files for review of 'disastrous' Mining Charter

Oct 18 2017 11:47
Lameez Omarjee

Johannesburg – The Chamber of Mines filed an application in the North Gauteng High court on Tuesday to have a judicial review and setting aside of the Mining Charter.

According to the founding affidavit, the Charter released by Mineral Resources Minister Mosebenzi Zwane on June 15 had, and continues to have, a “disastrous effect” on the mining industry, including on investors and employees.

“The shock induced in all role players within the mining industry, including financial commentators, has been so profound that an amount in excess of R50bn was wiped off the market of shares in listed mining companies,” the affidavit reads.

The Chamber also made reference to the fact that ratings agency Moody’s characterised the Charter as “credit negative”.

“The 2017 Charter has been an unmitigated disaster, both for the mining industry as a whole and South Africa.”

The affidavit further unpacks the grounds of review, among these being that it is unconstitutional in that it usurps the functions of the legislature. The Chamber pointed out that the publication of the Charter was beyond Zwane’s powers.

“It is incomprehensible that he could honestly have believed that such publication constituted a legitimate exercise of power under section 100(2)(a) of the MPRDA.”

By publishing the power the minister exercised powers exclusively to Parliament, the Chamber claims.

The Chamber also criticised the Charter as being confusing and contradictory to its core provisions.

“Not only are the mining companies who are supposedly obliged to comply with the 2017 Charter perplexed as to what they are required to do, but legal experts themselves are confused and find themselves unable to (determine) the meaning and effect of the 2017 Charter.”

The Charter represents a “most egregious” case of regulatory over-reach, the Chamber said. Further, it has been harmful, not only because of its content, but also because it is a clear threat to the separation of powers.

The Chamber further reiterated its commitment to transformation in the industry and its contributions to policy reforms since 1992. It explained that it was against attempts to subvert the rule of law and the Mining Resources and Petroleum Development Act and its objectives by the unlawful publication of instruments like the Charter.

The Chamber warned that the Charter’s implementation would “destroy” the mining industry. 

Previously CEO Roger Baxter said that the Chamber would conduct its engagement with the Department of Mineral Resources (DMR) through the courts.

The DMR has said the minister is open to consultation. But in response to this, Baxter said that it was a “pity” that Zwane opened up his arms for engagement "after the horse had bolted".

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