THE Department of Mineral Resources is working to find an out-of-court settlement with the Chamber of Mines on the question of the “once empowered always empowered” principle in the Mining Charter.
Deliberations were at an advanced stage and were based on the injunction by President Jacob Zuma to the department to find a solution outside the courts, members of the National Council of Provinces’ select committee on land and mineral resources heard on Tuesday.
Acting director-general David Msiza said the department had filed its responding affidavits in both the case brought by the Chamber of Mines and that brought by an independent law firm, but “a process of resolving the matter has been initiated and deliberations are at an advanced stage”.
The chamber confirmed on Tuesday that the discussions had advanced. “The chamber is hopeful that the matter will be resolved through this interaction rather than through the courts. A court date has not been set at this stage,” chamber spokeswoman Charmane Russell said.
The Chamber of Mines is seeking a declaratory order from the courts on the ownership element of the Mining Charter, while the law firm is contesting the legal validity of the charter.
The issue of concern to the chamber is whether mining companies need to maintain black ownership at 26% for every mining right at all times, even if the black stakeholders sell their shares. This would require them to top up empowerment levels if they fell below 26%.
Deputy director-general Mosa Mabuza added that the aim of the talks was to make the Mining Charter “better understood and less ambiguous”. Any agreement reached would be incorporated into the review of the Mining Charter currently under way.
The aim of the review is to align the charter with the provisions of the Broad-Based Black Economic Empowerment (B-BBEE) Act, the codes of good practice and the Employment Equity Act. The review would also seek to remove interpretational ambiguities.
Mabuza was confident that the review would be concluded by the end of October, when the mining industry’s exemption from the trumping clause of the B-BBEE Act expired. The trumping provision — which was introduced through legislative amendments to the main act — states that the act will take precedence over any other law that was in force prior to the date of the commencement of the act in the event of any conflict.
Mabuza noted that the department had received inputs from the mining industry on the revised charter and had held engagements with it. The department issued a revised draft of the charter in April for public comment.
The department had taken strong action against mining companies that failed to comply with their obligations. It had already issued more than 400 orders.
An assessment of the progress made in implementing the charter — which was first implemented in 2004 and amended in 2010 — indicated a number of mining companies had not met the targets.