Go back to 'parents' of Mining Charter to avert destruction - analyst

Oct 07 2017 08:00
Lameez Omarjee

Johannesburg – In dealing with the Mining Charter, stakeholders have to go back to the “mother and father” of it, the Mineral and Petroleum Resources Development Act (MPRDA), said an analyst.

Advocate Jacinto Rocha, former director-general of the Department of Minerals and Energy, told delegates at the Joburg Indaba this past week that introducing changes to legislation simply to be radical will be destructive of the progress which has been made.

“In our case, when you want to change you must learn and understand why you want to change… A foundation has been made, build on that foundation.”

Rocha explained that the MPRDA was a foundation, although imperfect, the changes being introduced now is a destruction of that foundation. “They are not building on the foundation.”

Imperfect Charter

Rocha said that previous charters were imperfect, but those imperfections have to be improved on.

“When you try throw away the imperfection instead of improving on it you then start creating a problem,” he said.

He criticised Mineral Resources Minister Mosebenzi Zwane of introducing changes to legislation and policy that were unconstitutional.

“They forget South Africa is not just a democracy. South Africa is a constitutional democracy where the Constitution is the supreme law of the country. Whatever we do, legislation and policy must obey the prescripts of the Constitution.”

Elements of the charter which will “not fly” with a constitutional democracy will be taken out, said Rocha. “Don’t have something in a document that will never take off because it is unconstitutional.”

In turn, policies should also be guided by White Paper, he added. “The unfortunate thing is what has been happening.”

Rocha called on the Chamber of Mines to consult with its past members who were part of drafting the first and second charter, in order to get guidance in resolving the issues that had arisen from those policies.

Rocha criticised DA leader Mmusi Maimane’s view that the Charter and MPRDA should be torn up and rewritten.

“You can’t rewrite something that has been torn. If you have torn it, it is gone,” said Rocha. “You have to go back to the mother and father of the charter, which is the MPRDA.”

Stakeholders need to evaluate aspects from the old charters which have not been implemented and why we have not been successful in the past.

Delay of MPRDA sign-off

The Presidency on Thursday issued a statement on the status of the MPRDA, which President Jacob Zuma referred back to the National Assembly in 2015 on the grounds that elements of the bill were not constitutional.

The signing of the bill has been delayed as it is still with the National Council of Provinces (NCOP), spokesperson Bongani Ngqulunga told Fin24.

The act is unconstitutional in that it elevates the Codes of Good Practice for the South African Minerals Industry, the Housing and Living Condition Standards and the Amended Broad-Based Socio-Economic Empowerment Charter to the status of national legislation, the presidency explained.

Further the minister is given the power to amend or repeal these instruments as the need arises, effectively by passing constitutionally mandated procedures.

The President is also of the view that the NCOP and Provincial Legislature did not “sufficiently facilitate” public participation in passing the amendment act. “The consultative period was highly compressed and there appears to have been insufficient notice of the public hearings held by the Provincial Legislatures,” the statement read.

The President also wants the bill to be referred to the National House of Traditional Leaders for comment.

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mining charter  |  mprda



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