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The Department of Mineral Resources has approached the Supreme Court of Appeal regarding the judgment handed down by the High Court of South Africa in respect to the application for declaratory orders in relation to Mining Charter, 2004 and the revised Mining Charter, 2010.

The Department of Mineral Resources is concerned by the implications of the majority judgment on the attainment of the objective to sustainably transform South Africa’s mining industry by bringing in new entrants and empowering workers and communities in mining towns.

The judgment, the Department of Mineral Resources believes, has dire implications for the economic transformation imperatives of the Constitution, the mining sector and South Africa at large.

It further has the potential of extending regulatory and policy uncertainty, and sterilisation of mineral resources, with grave economic growth and employment implications.

"The application for leave to appeal by the Minister of Mineral Resources against the Pretoria High Court’s decision on the ‘once empowered always empowered’ principle under the Mining Charter is regrettable, not least after the Minister originally indicated that the judgment would not be appealed," comments Peter Leon, partner and Africa co-chair at Herbert Smith Freehills.

"Any appeal is unlikely to be heard by the Supreme Court of Appeal until early next year and any decision by that court is likely to be appealed in turn to the Constitutional Court.

"This means that any imminent conclusion over the Mining Charter III negotiations is unlikely which is not conducive to regulatory certainty.

"This looks like a lost opportunity."