The full bench effectively found the charter was a policy not legislation and ruled to remove or set aside aspects which had been challenged, including the requirement to top up black economic empowerment shareholdings to 30%.
The Minerals Council South Africa had challenged parts of the charter in 2019, including seeking to maintain the “once empowered, always empowered” principle and remove “unachievable” procurement provisions of 70% of goods and 80% of services from BEE enterprises.
The council welcomed the regulatory certainty however Tuesday’s judgement could be appealed, South Africa-based law firm Webber Wentzel said.
“The High Court has ruled that the 2018 mining charter is policy, not law, and has set aside various aspects of the charter as unconstitutional,” WW lawyers said.
“While sound, this judgment is likely to be appealed.”
The MCSA said it and its members were “fully committed to the transformational objects of the Mineral and Petroleum Resources Development Act (MPRDA), but the objectives must create policy and regulatory certainty for long term investment and inclusive growth in the sector”.
“The minerals council will continue to engage the DMRE on a constructive basis to create the necessary policy and regulatory certainty and to attract much greater investment into the exploration and mining sectors,” it said.