MINES AND ENERGY MERGER: TOO MUCH ON GWEDE MANTASHE’S PLATE? – LEYDEN

Author: Patrick Leyden

In a move that is likely to be welcomed by the mining industry, President Ramaphosa has appointed Gwede Mantashe as the Minister of Minerals and Energy (which now combines the Ministries of Mineral Resources and Energy).

During his short erstwhile tenure as Minister of Mineral Resources, Mantashe made significant progress in addressing several fundamental issues that have hampered investment into the South Africa mining industry over the last five years. His decisive action in addressing corruption and maladministration within his Department as well as taking steps to promote regulatory certainty were positively received by both domestic and international investors alike. As a result, South Africa gained twenty seven places under the Policy Perception Index and also made considerable gains under the overall Investment Attractiveness Index in the Fraser Institute’s most recent Mining Investment Survey.

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DECISIONS BY REGIONAL MANAGERS WITHIN SOUTH AFRICA’S DEPARTMENT OF MINERAL RESOURCES MAY BE UNLAWFUL

Author: Dr Matthew Burnell 

We have recently come across decisions made by Regional Managers within South Africa’s Department of Mineral Resources (“DMR”) in terms of sections 24P (Financial provision for remediation of environmental damage) and 28 (Duty of Care) of the National Environmental Management Act (“NEMA”). The Regional Manager does not have the requisite authority to make decisions in terms of these sections and, as a result, any such decisions are unlawful and can be challenged and overturned or (in certain instances) revoked.

Section 24P – Financial provision for remediation of environmental damage

Section 24P regulates financial provision for remediation of environmental damage arising from prospecting or mining activities. Prior to 2 September 2014, financial provisioning was regulated by section 41 of the Minerals and Petroleum Resources Development Act (“MPRDA”) read with regulations 53 and 54 of the MPRDA Regulations. These sections and regulations requires that a prospecting / mining right applicant make financial provision for the rehabilitation of negative environmental impacts arising from their mining activities. If the right holder fails to fulfil their remediation obligations in terms of the Environmental Management Plan / Programme, the DMR could implement these obligations using the financial provision.

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SOUTH AFRICA’S MINING CHARTER III; CERTAINTY AT WHAT COST

Authors: Peter Leon, Patrick Leyden, Ernst Müller and Michelle Mudzviti

The Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry, 2018 (Mining Charter III or the Charter)1 came into force on Friday, 1 March 2019 – almost three years after the publication of the first draft.2 This brought to a close nearly three years of uncertainty and speculation regarding the nature and content of the final version of South Africa’s third official Mining Charter.3

However, in spite of the extensive public participation and negotiation process which preceded the publication of the Charter (on 27 September 2018),4 it still contains a number of provisions that are a cause for concern. These include:

  • onerous re-empowerment obligations for the renewal and transfer of existing mining rights;
  • the BEE Shareholding top-up requirements for pending applications;
  • the absence of provisions for the amendment of existing mining rights; and
  • the Minister’s seemingly unlimited ability to review and revise the obligations imposed under the Charter from time to time.

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