Mosebenzi Zwane. Picture: GCIS
Mosebenzi Zwane. Picture: GCIS

In a brutal judgment, Judge Ramarumo Monama tore strips off Mineral Resources Minister Mosebenzi Zwane in his treatment of the court in the urgent interdict brought by the Chamber of Mines to stop a proposed moratorium of mineral and prospecting rights and transfers.

Zwane said late on Thursday night that the department would not proceed with the moratorium he gazetted on July 19 after taking consideration of public submissions received by the department ahead of the August 4 deadline.

The tweet from Zwane and a later media statement, which was not communicated to either Judge Monama or to the chamber’s lawyers, was a source of anger for the judge, who accused Zwane of behaving like US President Donald Trump — who makes important statements via Twitter.

But it was Zwane’s lack of answering affidavit to the chamber’s founding affidavit — which accused the minister of acting outside the powers granted to him under the Mineral and Petroleum Resources Development Act as well as acting illegally — that fired up Judge Monama, who gave Zwane 14 days to submit a written explanation of his behaviour and his failure to submit an affidavit.

“I’m horrified the court procedures have been flouted like this,” Judge Monama said.

Judge Monama said the “disrespect” shown by Zwane to court procedures was troubling

The fact that Zwane had not answered extremely serious allegations in the chamber’s founding affidavit demanded an explanation, he said.

The chamber and department came to a signed agreement to make an order of the court Zwane’s statement of not implementing an indefinite moratorium on rights issues.

The moratorium would have a devastating impact on a sector that is facing more than 20,000 job cuts in coming months.

The department said in a statement late on Thursday night: "As a result, and based on the reasoned submissions made, the Department of Mineral Resources will not pursue the moratorium. The department will instead opt for other legal instruments at its disposal, in line with the MPRDA and other applicable legislation, to achieve its objectives of socioeconomic development."

Judge Monama said the “disrespect” shown by Zwane to court procedures was troubling and set a bad example for other South Africans, tarnishing the country’s image with international investors.

“Court orders and processes must be respected particularly by a person who is acting in terms of constitution,” he said.

Peter Leon, a partner at Herbert Smith Freehills, said Zwane’s last-minute withdrawal of his notice on the moratorium was to be expected because it was seriously flawed and could not be legally defended.

“It is obviously a sensible capitulation by the minister and the department, who should never have issued the notice in the first place! I think that this is more likely the result of independent legal advice than being a responsive and caring government,” he said, referring to a comment in the department’s statement.

The chamber has not terminated its interdict, but kept it open indefinitely in case the minister breached the agreement that was reached on Friday morning just minutes before the start of the court case in the Pretoria High Court.

The next two legal hurdles for the chamber and department are the interdict and judicial review brought by the industry body against the third iteration of the Mining Charter that Zwane gazetted on June 15 but subsequently suspended; and the declaratory order process in which the chamber wants the courts to decide on whether the first two charters allow for the concept of once-empowered always-empowered or whether mining companies must perpetually maintain black ownership levels. 

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