Mining charters defy constitution, court hears
Lawyer in bid to have ‘ambiguous’ and ‘irrational’ documents set aside to avoid client confusion
The ambiguous wording of the mining charters, which the Department of Mineral Resources enforces with vigour, affects the entire mining community and the administration of justice by courts of law, says advocate Leon Bekker.
It was in the interests of justice and the economy that certainty was obtained on the legality of the Mining Charters of 2004 and 2010, Bekker told the High Court in Pretoria on Tuesday.
He said this was also important for courts that had to adjudicate disputes arising from the charters.
Bekker was representing mining lawyer Hulme Scholes and the firm Malan Scholes, at which Hulme is a director.
Scholes and his firm first brought an application in August 2015 against the then minister of mineral resources, Ngoako Ramatlhodi, which seeks to have the Mining Charters of 2004 and 2010 set aside on the basis that their vague, contradictory and "irrational provisions" are contrary to what the constitution requires for the principles of the rule of law.
The minister, now Mosebenzi Zwane, is the sole respondent in the case.
Chamber of Mines President Mike Teke discusses tensions between the Chamber and the Department of Mineral Resources over pending changes to the Mining Charter.
The Mineral and Petroleum Resources Development Act (MPRDA) makes provision for a charter to set the framework for effecting the entry of historically disadvantaged South Africans into the mining industry.
Malan Scholes, which focuses on mining and environmental law, did not take issue with the need to effect transformation in terms of the MPRDA, but was concerned only with the way in which this was done, said Bekker.
Scholes had had to qualify legal opinions given to clients because the ambiguous wording of the charters meant he could not determine how clients should best comply with them, Bekker said.
This was particularly perplexing as the department prosecuted mining companies that did not comply with the charter, he said.
But lawyers for the minister argued that Scholes and his firm did not have legal standing to bring the application in the first place.
The applicants were seeking to obtain certainty on the provisions of the mining charters in order to protect their own commercial interests and not because their constitutional rights were under threat, said advocate Ishmael Semenya, counsel for Zwane.
The charters might threaten or infringe on the holders of rights under the MPRDA, namely mining companies, but the applicants were not holders of these rights under the act, he said.
"It is their clients’ interests that may be affected, not their own that are directly affected," Semenya said.
The applicants had not brought the court a "live dispute" that they were having with the department in relation to the MPRDA and the charters, he said. "The dispute must lie between two parties, otherwise it is hypothetical and academic."
Semenya also submitted that signatories to the charters, including the Chamber of Mines and unions, should have been joined to the application as respondents.
Bekker said the power to create and promulgate the charter vested only with the minister.
On the issue of standing, Bekker said that earlier Constitutional Court rulings had given an expanded approach to legal standing, permitting applications where the applicant had only an interest in the right of a third party that was being infringed.
In other words, Scholes did not have to show it was his own right being infringed, as he had an interest in the matter insofar as he was giving legal advice to clients on how to interpret the charter, Bekker said.
He was also a director at several mining companies, he said.
Judge Phillip Mokoena reserved judgment on Tuesday in order to deal with the issues of legal standing and the non-joinder of parties that may be necessary to the action.
He will first have to pronounce on these two issues before the merits of the application are considered.
Speaking at the Mining Indaba on Tuesday, Zwane said a third iteration of the Mining Charter would be published by the end of the first quarter.