Centre for Environmental Rights – Advancing Environmental Rights in South Africa

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

• Case Number: 20341/19
• Court: High Court of South Africa, Gauteng Division, Pretoria
• Coram: Kathree-Setiloane J (Van der Schyff J and Ceylon AJ concurring)
• Neutral citation: Minerals Council of South Africa v Minister of Mineral Resources and Energy and Others ZAGPPHC 623 (21 September 2021)
• Date judgment handed down: 21 September 2021
• Order: 2018 Mining Charter declared to constitute policy and not law, certain prescriptive clauses reviewed and set aside.

Summary:

This matter concerned the ambit of the powers of the Minister of Mineral Resources and Energy under the Mineral and Petroleum Resources Development Act (MPRDA) to make law in the form of subordinate legislation, and the legal nature and role of the 2018 Mining Charter in the context of the MPRDA.

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 was that the Mining Charter is mere policy that should guide the Minister when deciding whether or not to grant a mining right. MINCOSA argued that by creating sanctions for non-compliance with the Charter, the Minister had sought to go beyond policy making and had unlawfully sought to make subordinate legislation. MINCOSA argued that the Charter stood to be reviewed under the Promotion of Administrative Justice Act or in the alternative, under the principle of legality under section 1(c) of the Constitution.

The Minister argued that the Mining Charter constituted law (not policy) and that the transformational objects of the MPRDA could not be achieved unless the Charter constituted binding subordinate legislation.

The court considered the wording of the empowering provision in the MPDRA under which the Charter had been developed (section 100(2)). It also recognised the decision of the drafters of the MPRDA to use the word “Charter” rather than “Regulations,” the definition of “Act” provided in section 1 (which did not include reference to a Charter), and considered the fact that the original 2004 Mining Charter was a pact between the State and the mining industry where the parties committed to empowering historically disempowered individuals.

Judge Kathree-Setiloane for the unanimous court concluded that the 2018 Mining Charter was indeed policy (and not law) and set aside a number of its provisions which contained prescriptive requirements and sanctions for non-compliance. The Charter was reviewed under PAJA. The Minister was ordered to pay the costs of MINCOSA including three counsel.

*Note that the MPRDA provides that the Minister may only grant a mining right if the granting will further the objects of the Act in accordance with the Mining Charter. Terms relating to empowerment requirements are usually incorporated into each mining right and are binding on holders of mining rights since the Minister may cancel a mining right if any of its material terms are breached. In addition, the Minister has the power to make Regulations under section 107 of the Act relating to the transformational objectives of the MPRDA.

*A number respondents joined the application (three host communities who are affected by mining operations, three organisations which represent such communities and two trade unions), however, the court found that these parties were not entitled to the review of the Charter and other consequential relief which they sought.