Resolution on the Mining Charter and its interpretation could face delays following a new court application which seeks to declare the charter “unconstitutional and void”.
Mining law specialist Malan Scholes Attorneys has lodged an application to the Pretoria High Court on Friday to consolidate its application for declaratory orders relating to aspects of interpretation regarding the Mining Charter with the Chamber of Mine’s application.
While the Scholes application seeks to declare the charter unconstitutional and void, the Chamber of Mine’s application does not do that.
Instead the Chamber of Mines seeks declaratory orders in regard to the correct interpretation of aspects of the Charter, primarily relating to whether the Charter contains an obligation that the holder of a mining right continuously restore the level of ownership by historically disadvantaged persons to 26% if after grant or conversion of the relevant mining right such level were to fall below 26%.
“The two applications cannot be consolidated in that the right to relief in the respective applications does not depend upon determination of substantially the same questions of law or of fact,” the Chamber highlights.
“The Chamber considers itself a partner in the Charter. The Chamber has been party to its development and implementation over the past 12 years and intends to continue in playing this role. We see it as a necessary and positive feature of the process of transforming the industry,” says Chamber of Mines’ CEO Roger Baxter.
He notes that the Chamber believes that the delay that would be caused by a consolidation of the applications would be prejudicial to the Chamber of Mines and would not be in the public interest.
The mining industry urgently needs certainty on what the correct interpretation of the Charter is, which is why the Minister and the Chamber had agreed that the declaratory orders which are set forth in the Chamber’s application should be sought.
The Chamber represents 90% of South Africa’s mining industry by value.