The mining industry and its stakeholders cannot fault the revised Mining Charter lll and forget that the original mining charter was also flawed, these are the words of Hulme Scholes, the Director of Malan Scholes, a law firm specialising in mining & environmental dispute resolution.
Scholes said during a panel discussion at the Joburg indaba that the original mining charter was also imperfect, but it tried to improve the issues of imperfection in the industry by focusing on administration rather than politicising legislation.
Scholes made criticism of the Chamber of Mines (COM) and the Department of Mineral Resources (DMR), saying the industry needed to go back to the mother and father of the mining charter, the MPRDA, and allow the charter to be led by existing policy. He said the MPRDA was a well thought out and well-designed piece of legislation.
He said the industry had to look at what had already been done, what has not been implemented, and what has not been successful, and from there, both the COM and the DMR would be able to address the gaps.
To Minister Mosebeni Zwane, he said a 51% of prospective rights for BEE would not fly in the industry and it would most certainly have to be taken out from the mining legislation.
Scholes said the DMR had to look at transformation that would improve the industry, which unfortunately Minister Zwane had no motivation to do, and so he too had to be taken out of his position.
He named former Mine Health and Safety Council acting chairman, David Masiza as a qualified alternative to head up the DMR, saying he believed a qualified geologist, with the necessary skills and expertise would be the right fit to re-energise the industry.
The panelists agreed, saying the Minister in drafting the mining charter had forgotten that South Africa was a democracy, and moreover, was a constitutional democracy.
The panellists noted that without forgetting the chaos created by the apartheid regime, the mining foundation had been successfully laid and the current mining ministry was destroying that foundation.
They noted that coming with legislation that contradicted Section 77 of the constitution would mean legislation would be converting the charter into a money bill. And that was unconstitutional.
Jacinto Rocha, Director, Mineral Investment Advisory Services, added that if he were able to whisper into the minister’s ear, he would plead with the minister not to destroy what had been built over the years.
“If we want to be successful in this so called radical economic transformation, we need institutional capacity. If you destroy that capacity, you shoot yourself in the foot,” said Rocha. “Don’t bring people into the mining industry who do not have experience or knowledge.”
Rocha added, once stakeholders have dealt with the industry at an institutional level, then the industry could look at the regulatory framework.
“If you look at the South African MPRDA and the Mining Act of Botswana, there is no difference. Botswana is praised for its mining industry and its mining legislation, because it is strict on conduct. When you want to change, you need to learn what you need to change; the minister must go,” he concluded.