Mining Charter Case

Minerals Council of South Africa v Minister of Mineral Resources and Energy & others (Case Number: 20341/2019)

The Minerals Council of South Africa (MINCOSA) brought an application to review and set aside particular provisions of the 2018 Mining Charter. The main argument and basis for review is that the Mining Charter is a mere policy that should guide the Minister when deciding whether or not to grant a mining right. MINCOSA emphasises that in creating provisions which would have sanctions for non-compliance for mining companies the Minister is in contravention of PAJA and in the alternative section 1(c) of the Constitution.

CER represents MEJCON-SA as it joins the review application. MEJCON–SA argues that the South African mining sector, despite being underpinned by the Constitutional imperative to “redress inequalities”, has been unable to do more than enrich a minority. The MPRDA prescribes that in order to redress historical social and economic inequalities, the Minister must publish a Charter that sets a framework, targets and timetable that will allow historically disadvantaged South Africans to enter into and benefit from the mining industry and mineral resources. That Charter must articulate how the objects of the MPRDA can be achieved.

One of the objects of the MPRDA is that it must give effect to section 24 of the Constitution – the right to an environment not harmful to health or well-being. By virtue of the detrimental impact of mining on communities’ health, well-being and livelihoods, MEJCON-SA asserts that the failure in the 2018 Mining Charter to address the environmental objective renders the Charter reviewable. That it lacks an environmental justice imperative and a gender justice imperative renders it inappropriate to address, as it must, historical social and economic inequalities. There cannot be equality without gender equality, and there cannot be environmental justice without gender justice.

MEJCON-SA also assert that the 2018 Mining Charter is reviewable on the basis that public participation on the Charter was flawed.

Pleadings:

Notice of Motion
Founding Affidavit
Fifth Resondent’s Notice to oppose
Sixth, Eighth and Ninth Respondents’ Answering Affidavit
Tenth Respondent’s Answering Affidavit
Twelfth Respondent’s Answering Affidavit

Judgment of the High Court, Gauteng Division, Pretoria (21 September 2021)