- The Department of Mineral Resources has told Parliament it will not appeal a judgment that set aside key aspects of the Mining Charter intended to drive transformation in the sector.
- As a result, companies face no penalties for not complying with the charter’s provisions, including certain empowerment requirements and procurement, supplier and enterprise development targets.
- The department will now seek to amend the Mineral and Petroleum Resources Development Act to drive a transformation agenda.
The Department of Mineral Resources and Energy will not appeal the High Court judgment that set aside key aspects of the Mining Charter intended to drive transformation in the sector.
Pieter Alberts, head of legal services for the department who was presented to the parliamentary portfolio committee on mineral resources and energy, said an appeal would not be in anybody’s best interest as it would take years to take its course and would cause prolonged policy uncertainty.
In September, the Gauteng High Court declared that the Mining Charter is a policy instrument and not binding legislation and held that the minister was not empowered to make law.
As a result, companies face no penalties for not complying with the charter’s provisions including certain empowerment requirements and procurement, supplier and enterprise development targets.
Alberts said transformation objectives could still be achieved through amendments to the Mineral and Petroleum Resources Development Act (MPRDA).
This was affirmed by the recent High Court judgment, which noted the Act empowers the minister to drive transformation.
"We are going to look at creating legal certainty through the parliamentary process rather than going through appeal and defending the position of the charter being law or not," he said.
Addressing transformation through the parliamentary process would be more speedy "rather than having a debate in court where the outcome may not be entirely in the hands of any of the parties", Alberts said.
Deputy Director General of Minerals and Petroleum Regulation, Tseliso Maqubela, said that in the interim the department would need to be particularly diligent in enforcing compliance with the MPRDA.
"We will do our outmost to make sure that with the tools given to us in terms of the MPRDA, we will be able to effect transformation. We must go an inspect and make sure that people comply with the obligations they have undertaken when granted mining rights," he said.
Members of Parliament were divided in their response, with many registering their concern over the department’s decision not to appeal as regressive.
James Lorimer of the DA however criticised the department’s intention to pursue transformation provisions through the MPRDA.
Lorimer said transformation and growth is mutually exclusive, as evidenced by record low mining exploration spend in South Africa which is "proof that current policy is not investor-friendly", he said.