Publication of new Mining Charter exceeds Zwane’s powers: Chamber of Mines

18 October 2017 - 17:52 By Ernest Mabuza
subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now
Mineral Resources Minister Mosebenzi Zwane.
Mineral Resources Minister Mosebenzi Zwane.

Minister of Mineral Resources Mosebenzi Zwane has exceeded his powers with the publication of the 2017 Mining Charter.

This is the assertion contained in the founding affidavit of the Chamber of Mines‚ which wants the high court to review and set aside the third Mining Charter published in June this year.

The Chamber also said it was inconceivable that Zwane could honestly have believed that the publication of the charter constituted a legitimate exercise of power under section 100(2)(a) of the Mineral and Petroleum Resources Development Act (MPRDA).

The section provides for the minister to develop a broad-based charter that will set targets for entry of historically-disadvantaged South Africans into the mining industry.

The review application‚ which was filed on Tuesday‚ will be heard by the High Court in Pretoria on December 13 and 14 this year. The charter will not be implemented until after the review application has been finalised.

The chamber said in publishing the 2017 charter‚ the minister had purported to exercise powers which resided exclusively with Parliament.

One example the chamber cited was Zwane’s replacement of the definition of “historically disadvantaged person” in the MPRDA with his own definition of “Black Person”.

“In short‚ the Minister cannot replace the definition adopted by Parliament with one more to his liking‚” said Tebello Chabana‚ the chamber’s senior executive in charge of public affairs and transformation‚ in his founding affidavit.

Chabana said the minister did not have the power to change the scope of those whom Parliament had decided should benefit from its transformation policy on the mining sphere.

The chamber said Zwane had exceeded his powers under the Act and was in effect seeking to legislate through the backdoor by way of the 2017 Charter.

Chabana said section 100(2)(b) of the MPRDA did not require that the Charter prescribe‚ on an exclusive basis‚ what must be done to achieve the objectives of those provisions.

He said the Charter was not law.

“The Charter is not legislation or subordinate legislation. I am advised that national or provincial Acts and regulations are legislative instruments‚ whereas documents setting out government policies are not.”

Chabana said what the minister had attempted to do in publishing the 2017 Charter was to transform what Parliament intended to be a policy document into a legislative instrument.

“That is impermissible‚” Chabana said.

Chabana said every commentator‚ be it economists‚ ratings agencies‚ share analysts or mining lawyers‚ had concluded that the implementation of the 2017 Charter would be detrimental to the mining industry.

“The shock induced in all role players within the mining industry… has been so profound that an amount in excess of R50-billion was wiped off the market value of shares in listed mining companies upon the publication thereof.”

subscribe Just R20 for the first month. Support independent journalism by subscribing to our digital news package.
Subscribe now