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Mining charter challenge to be heard in South Africa this week

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The challenge by South Africa’s peak mining body to aspects of the country’s 2018 mining charter is set to be heard this week.

One of the Minerals Council South Africa’s issues relates to the “once empowered, always empowered” principle, with the charter imposing new Black Economic Empowerment obligations on the renewal and transfer of mining rights.

The council had called for a judicial review in 2019, citing various concerns with the charter, but after a one-day online hearing 12 months ago, the full bench of the High Court in Pretoria ordered other parties be joined to the action.

The council said it had joined all identified parties as respondents and reiterated it had brought the action over concerns about “some key issues” in the charter.

These included the non-recognition of the continuing consequences of previous transactions in respect of mining right renewals and transfers, and the practicality of the “inclusive procurement provisions” relating to local content targets for mining goods.

However it noted the council and its members fully supported other aspects of the charter.

It said the goal of its review application was to ensure “adequate policy certainty” to facilitate sector growth and give new impetus to confidence in new exploration projects, which had slowed drastically in recent years.

“A transformed, growing and competitive mining sector would be a significant catalyst for South Africa’s social and economic development and critical for the realisation of the ambitions of the National Development Plan,” council CEO Roger Baxter said on Sunday.

“But these goals will only be realised through a minerals policy framework that conforms to the rule of law and principles of legality; and by administrative action that is lawful, reasonable, procedurally fair and consistent in all respects with provisions of the country’s legislation.”

The council’s application for a judicial review and to set aside certain clauses of the charter, being brought under the terms of the Promotion of Administrative Justice Act, is set to be heard from May 3 to 6.

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