Modern Quarrying

The most recent controversy, surrounding the publication of the Reviewed Broad Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry, has had a dramatic impact, which was worsened by the publication by Minister Zwane of the Notice of Intention to stop prospecting and mining right applications, and applications in terms of Section 11 of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (MPRDA).

Charter controversy continuesAccording to the Chamber of mines, the unilaterally designed Charter will destroy investment and jobs to the benefit of select few

On August 7 the DMR issued an aggressive statement making judgments that are properly the province of the High Court. The Chamber of Mines has noted the media statement issued by the DMR announcing the late filing of its answering affidavit to the High Court in response to the Chamber’s urgent application to interdict the implementation of the DMR’s Reviewed Mining Charter.

According to the Chamber: We will seek to limit our comments to matters of fact and of public policy.The DMR in its statement continues to claim that we are opposed to transformation. This is simply not true, and the ongoing changing of the face of the industry over many years demonstrates
that. The Chamber’s only proviso is that real transformation must be implemented with due regard to what is achievable bearing in mind the realities of the situation the industry faces.”

In contrast, the transformation advocated by the DMR in its Reviewed Charter is designed to benefit the interests of a select few while killing any appetite for investment and leading to further job losses in an industry that has already experienced a significant reduction in employment levels over the past few years.

The DMR’s Reviewed Charter is designed to extract billions of rand in revenues annually from mining right holders into an agency controlled solely by the Minister of Mineral Resources. This agency has no governance in place and the irresistible conclusion is that its purpose is not to benefit transformation. There is no transparency or, indeed, any indication as to who will ever have the opportunity to access these funds, and how the funds will be applied in a publicly accountable manner. This is further an unconstitutional attempt to collect an additional tax.

Claims that the DMR and the Chamber have met on 17 occasions between April 2016 and March2017 are misleading. The DMR disingenuously confuses the meetings held to resolve the declaratory order court process to resolve the issue of continuing consequences of previous black economic empowerment transactions, which was started long before the first draft of the unilaterally developed.

The Reviewed Charter was published by the DMR with actual discussion about the Reviewed Mining Charter. According to the Chamber’s records and detailed notes from each meeting, only two meetings in 2016 were related to non-ownership aspects of the Reviewed Mining Charter. In each of these meetings the DMR only listened to the Chamber’s input without providing input or taking these into account. During 2017, the Chamber met with the DMR on six occasions where some non-ownership elements were discussed, but the primary focus was on the declaratory order court application.

The DMR then published another version of its Reviewed Charter on 15 June 2017, which was substantially different to the version published previously. Again, this was the first time the Chamber had sight of the document which contained substantive provisions never before discussed between the parties. This cannot honestly be described as consultation. This is unilateral determination. The DMR’s Reviewed Charter will not serve the interests of South Africa. It is aimed at benefitting a select few, will destroy investment, lead to further job losses and will cause irreparable damage to the mining industry.

Replying affidavit served

On August 18, the Chamber of Mines served its replying affidavit in the High Court of South Africa (Gauteng, Division, Pretoria) interdict application, in response to the answering affidavit delivered by the Minister of Mineral Resources on Monday, August 7, 2017. This is in respect of the Chamber’s application for an urgent interdict against the implementation of the DMR’s Reviewed Mining Charter.

The Chamber notes that the Minister’s response does not deal with the matter at hand – that is the shortcomings of DMR’s Reviewed Charter. Instead, the Minister focused on trying to undermine the credibility of the industry’s transformation journey.

The Chamber reiterates its continued commitment to real transformation, implemented with due regard to what is achievable, bearing in mind the realities of the situation the industry faces. The unilateral development and implementation of the DMR’s Reviewed Charter would not serve the interests of South Africa and its people. It is aimed at benefitting a select few, will destroy investment, lead to further job losses and will cause irreparable damage to the mining industry.

Primary issues dealt with

The legal documents related to this matter may be found at http://www.notourcharter.co.za/. The full replying affidavit will be made available in due course and may be accessed at the same location. The interdict application will be heard on 14 and 15 September, 2017.

Contact Modern Quarrying

Title: Editor
Name: Dale Kelly
Email: dalek@crown.co.za
Phone: 083 419 9162


Title: Advertising Manager
Name: Bennie Venter
Email: benniev@crown.co.za
Phone: (011) 622-4770
Fax: (011) 615-6108

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