On 15 June 2018, exactly one year to the day after the publication of the previous draft, the new South African Minister of Mineral Resources, Gwede Mantashe (the “minister”), published for public comment the Draft Broad-Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry, 2018 (the “Draft 2018 Mining Charter”). Although there were some indications of the minister publishing the charter content in the form of delegated legislation, the minister has instead opted to retain the form of a charter and hopes to have his day in court in his appeal of the recent “once empowered, always empowered” High Court judgment.
Below are the most salient features of the Draft 2018 Mining Charter:
This is a carbon copy of the 2017 version, except for the following inculpatory statement, “[t]hrough its continued support and implementation of discretionary policies and practices, the mining and minerals sector, which dominated the South African political and socio-economic order, brought about inequalities in the mining industry”.
Broad-based black economic empowerment arrangements for prospecting right holders
Currently, there is no legal requirement for there to be historically disadvantaged South African (“HDSA”) shareholding for a prospecting right to be issued to an applicant, unless the minister requests that the empowerment objectives in the Mineral and Petroleum Resources Development Act, 2002 (“MPRDA”) be given effect to in terms of section 17(4) of the Act. The 2017 version determined that for new prospecting rights to be issued, there will be a requirement for the prospecting right to be held 50% plus one vote (ie, majority owned) by HDSAs. The Draft 2018 Mining Charter now merely states that it will apply to prospecting rights as contemplated in section 17(4) of the MPRDA. On the face of it, this is consistent with the MPRDA and must be welcomed