In March 2019, the Minerals Council of South Africa instituted an application in the High Court, Pretoria, for a judicial review and setting aside of certain provisions of the Broad Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry 2018 (Mining Charter 2018). A copy of our bulletin on the salient features of the Minerals Council’s challenge is available here.
The Minerals Council only cited the Minister of Mineral Resources [and Energy] and the South African Diamond and Precious Metals Regulator as respondents in the application (Respondents). In response to the application, the Respondents contended amongst others that:
- the Minerals Council failed to join important, necessary and relevant parties to the matter, i.e. certain community parties and social partner parties who were previously party to the legal challenge to the draft Mining Charter 2017; and
- such parties must be joined as respondents to the application prior to the court making a pronouncement on the merits.
On 6 July 2020, the High Court delivered its judgment in the matter, but did not deal with the merits of the Minerals Council’s application. It held that amongst other things, mining affected communities and trade unions have direct and substantial legal interests in the proceedings. It consequently held that those mining affected communities and trade unions which were party to the proceedings in relation to the draft Mining Charter 2017 should be joined to the application, following which the court will proceed to consider the merits of the Minerals Council’s challenge.
The parties to be joined to the application pursuant to the judgment are Mining Affected Communities United in Action, Women Affected by Mining in Action, Mining and Environmental Justice Community Network of South Africa, Bakgatla Ba Sefike Community, Lesetlheng Community, Babina Phuti Ba Ga-Mokola Community, Kgatlu Community, AMCU, UASA, NUM, Solidarity and SAMDA.
In response to the judgment, the Minerals Council has issued a media statement in which it gave an undertaking to give effect to the court’s order.
The judgment does not assist in bringing about the long awaited finality in relation to the provisions of the Mining Charter 2018 which have been challenged by the Minerals Council and others. Consequently, Mining Charter 2018 will continue to be applied as is until the matter is finalised by the courts.
Fasken is following this matter closely and will continue to keep you updated in relation to any developments.
Please contact us should you require further details regarding the Minerals Council’s application and the judgment.
This newsletter was prepared by senior associate Mmaphuti Morolong and candidate attorney Lungelo Mkhize.