The first three months of 2018 will be crucial to the flickering fortunes of Africa’s most advanced mining industry. They are likely to be months littered with litigation argument and acrimony.
The resource rich industry of South Africa – once a world leader in mining employing a million people and producing more than half of the world’s gold –has seen more than two decades of decline. Corruption, falling productivity, rising costs and dithering over regulation have taken a heavy toll.
In 2016, according to Statistics South Africa the South African mining industry’s real GDP was 2.6% smaller than it was in 1994.The financial services sector grew by 168% over the same period. On top of this, the South African mining sector has slid, according to Fraser Institute Investment Attractiveness Index that measures best practice in policy, legislation, regulation and operating environment.
Hanging above all of this is a court result and a judicial hearing regarding a controversial rewrite of the Mining Charter that has taken more than five years to get nowhere. It was released in April, after minimal consultation, to outrage from the Chamber of Mines. The mining companies objected to the increase of black ownership from 26% to 30% to be maintained at all times.
This is the issue that the Chamber of Mines took to the Gauteng High Court in November. The mining companies argue that a “once empowered always empowered” principle should apply; in that once a mining company has borne the cost of transferring shares into black ownership it is deemed to have done its job regardless of any dilution of the stake. The Chamber of Mines hopes for a judgement in the first quarter of 2018-victory in court could send the Mining Charter back to the drawing board.
“A full bench of three judges heard this case. This is one reason why the decision is going to take a while. The three judges have to arrive at a majority decision and that takes time, but we are hoping to have a decision by the end of March. I think it was a difficult case and not easy to argue from a legal perspective. I am optimistic, but it will be a tough one,” says Elize Strydom, the head of legal for the Chamber of Mines.
The mining employers pin higher hopes on the judicial review of the amended Mining Charter, set for February 19 20 and 21, again at the Gauteng High Court, again before a full bench of three judges led by senior High Court Judge Dunstan Mlambo.
Observers believe this case, in particular, is likely to bring a lot of pressure down on Mining Minister Mosebenzi Zwane. In this judicial review, it will not merely be the mining employers against the Mining Charter, there will be seven organisations that number the unions, including the National Union of Mineworkers and Solidarity, plus Lawyers for Human Rights representing communities who live near the mines.
“I think the review is a lot easier for us because there are so many flaws and measures in the Mining Charter that are beyond the powers of the minister. For instance, the minister indicated that 2% of the proposed 5% skills levy is to go to an empowerment agency that he has yet to create. This is not in his power to do this – that is within the power of the minister of finance. What we hope is that the minister will have to start again from scratch. Then we can sit down with the unions and interested parties to come up with something that we can all work with,” Strydom said.
Whether minister Zwane will be there to negotiate is another question amid the uncertainty. Moves are growing apace to encourage President Zuma to resign early in a dignified exit that will mean the dissolving of cabinet.
A new broom could mean renewed confidence among foreign investors with president-elect Cyril Ramaphosa being painted as the mining-savvy, business-friendly, leader.
Whoever takes over, at least one political analyst believes the damage has been done more than a decade ago with the advent of the Minerals Resources and Petroleum Development Act. The legislation ushered in black empowerment and virtually nationalised the country’s mineral rights overnight.
“I think foreign investors have been fighting shy of South African since the mineral resources were taken over by the government in the early 2000s. I don’t think the removal of one man is going to suddenly make the mining investors in Toronto and London think we are a great place to invest. I think the country has to improve its economic fundamentals first. The country has massive unemployment, too much spending on welfare and this lingering political chaos,” says Moeletsi Mbeki, a political analyst.
If the Chamber of Mines carries the day at the judicial review it is likely judges will instruct that the Mining Charter be torn up. That could trigger a rewrite process that could take even more years and with it bring even more uncertainty.
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