The implementation of the revised Mining Charter, which was intended to transform the mining industry, has been halted pending the outcomes of an urgent application for an interdict by the South African Chamber of Mines.
The interdict proceedings are just the first step in what is likely to be a protracted review process. Vanessa Jacklin-Levin, a Partner at Dentons South Africa explains.
“We currently have two processes running in parallel – an application for an interdict and an application for judicial review,” says Jacklin-Levin. “The interdict application has been brought by the Chamber of Mines to halt the implementation of the Mining Charter pending the outcome of its application for judicial review of the Charter.
“The Department of Mineral Resources has agreed not to move forward on the implementation of the Charter in the meantime. Both parties have agreed to ask for the interdict application to be heard in September, which will give the Department time to file its answering affidavit in opposition to the interdict application.
The Charter is thus on ice until the interdict application is concluded but many people are not sure about what comes next.”
According to Jacklin-Levin, if the court grants the interdict, implementation of the Charter will remain suspended until the review process is completed. If the interdict is not granted, the Department could technically go ahead with implementation – but that would be risky as the review would not be complete by then.
“It seems unlikely that the Department would proceed with implementation of the Charter with the review unconcluded,” she said. “We know that the Chamber is going to apply for a review because that is specified in its interdict application,” she comments. “We should understand that the review is not a trial – no oral evidence is led, and the court will simply rely on affidavits from the various parties and heads of argument on the law.”
Jacklin-Levin concluded by saying if the review takes place, the court could declare Minister Mosebenzi Zwane’s decision to promulgate the Charter invalid on any of various grounds set out in section 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).