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Opportunity Issue 101

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2018 Mining Charter is policy, not law 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. While sound, this judgment is likely to be appealed, as Jonathan Veeran, Bruce Dickinson and Rita Spalding from Webber Wentzel argue in this article. Having certainty about mining rights is a vital element for investors. Kumba Iron Ore engaged in a long legal battle to secure their rights to the Sishen iron ore mine. Credit: Anglo American On 21 September 2021, the High Court of South Africa, Gauteng Division, Pretoria, handed down judgement in the matter between Minerals Council South Africa the Minister of Mineral Resources and Energy and Others (case no 20341/18). The Minerals Council had brought an application, under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), seeking to review and set aside certain clauses of the Broad-Based Socio- Economic Empowerment Charter for the Mining and Minerals Industry, 2018 (the 2018 Charter). In the alternative, the Minerals Council sought a declarator that the challenged clauses are inconsistent with the principle of legality and should be set aside. The application was previously heard on 5 May 2020, after which the Court ordered the joinder of the joined respondents and postponed the merits for hearing. The joined respondents comprise host communities affected by mining operations, organisations representing those mining communities and trade unions. The trade union respondents opposed the relief sought by the Minerals Council. The communities did not oppose the relief sought by the Minerals Council but sought additional relief on the basis that: (i) there was inadequate consultation with them prior to the publication of the 2018 Charter; and (ii) that the 2018 charter fails to substantially address environmental degradation and gender-based injustice www.opportunityonline.co.za | 25

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