The department of mineral resources claims meaningful empowerment is impossible if a recent high court declaratory order, which severely reduces the reach of the latest draft of the Mining Charter, is allowed to stand.
The department, under the leadership of newly appointed minister Gwede Mantashe, quietly lodged an application for leave to appeal last week. The Chamber of Mines confirmed this on Monday.
Mantashe wants to the Pretoria High Court to reverse its April 4 ruling that had split a Bench of three judges.
The chamber and the department approached the court for a declarator on the principle of once empowered, always empowered.
The high court’s ruling endorsed this principle as the mines had hoped, meaning they would not be forced to permanently “top up” the black shareholding of mines if existing black shareholders sell out.
The main judgment, however, went much further than the chamber had hoped or asked for. Judges Peter Mabuza and Frans Barrie questioned what legal power the existing mining charters have to begin with.
They questioned the legality of there having been a second charter in 2010, after the first one in 2004. They said the charter only had legal weight if its terms and conditions were captured in mining rights, when these were issued.
While the mines have said they do not support this view, it has significantly strengthened their hand in the new negotiations for a new mining charter to replace the controversial one former minister Mosebenzi Zwane produced last year.
In the department’s application for leave to appeal, it claims the April 4 judgment was “anchored erroneously” on the Interpretation Act – an old piece of legislation that the department argues is superseded by the Constitution.
This accords with a minority judgment by Judge Tina Siwendu, who vociferously challenged her two colleagues’ findings.
All interpretations of law have to be in line with the Bill of Rights and the Mineral and Petroleum Resources Development Act, said the department.
“A proper reading of the act makes it plain that compliance with the objects of the act is not an optional ‘term’ or ‘condition’ but, rather, mandatory,” it said.
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