Attempts by the Chamber of Mines and the Department of Mineral Resources to settle their legal battle over the Mining Charter out of court, have been dealt a blow.
Lawyer Hulme Scholes and his firm‚ Malan Scholes‚ brought an application in the Pretoria High Court on Friday to combine the chamber’s court action with theirs seeking to declare the charter unconstitutional and void.
Mineral Resources Minister Mosebenzi Zwane told the Mining Indaba last week a revised charter – the document’s third iteration – would be finalised by April.
This is now highly unlikely.
South African law allows two cases dealing with overlapping or similar matters to be consolidated into a single case.
In his application‚ Scholes argued a judgment in his case would mean the declaratory order sought by the chamber over the charter’s empowerment ownership obligations on mining companies, would “become irrelevant”.
The single most important dispute between the department and the chamber‚ and Scholes and the department‚ was the legal standing of the 2004 charter and the 2010 amended version‚ he said‚ pointing out that he and the chamber both argued these were “policy instruments or guidelines”.
“I maintain that this is one of the most fundamental and foundational disputes between the Chamber of Mines application and the Scholes application and the minister‚ because the determination of that dispute would determine the legal nature of the charters and their enforceability‚” he said in his application.
The chamber would “almost certainly” refuse to have its application consolidated with Scholes’s‚ said Peter Leon‚ a partner and mining lawyer at Herbert Smith Freehills.
“The chamber wouldn’t want their application to be contaminated by the Scholes application‚ which is a full-on attack on the charter‚” he said.
“If the court agrees to this latest application there would be absolutely zero chance of a settlement‚” he said‚ adding that if the court found in Scholes’s favour‚ a third version of the charter would be meaningless.
The chamber’s March 15 court hearing would probably be delayed by Scholes’s application.
Delegates at the Mining Indaba stressed that regulatory uncertainty was one of the most important obstacles to attracting new investment and expansion.
Zwane told the gathering the government was aware of these anxieties and wanted the declaratory process settled out of court and the revisions to the charter completed by April.
The chamber’s chief executive Roger Baxter told the indaba it was trying to resolve matters.
“The court stream and discussions are continuing.”
Last June‚ Scholes and Malan Scholes lodged the application to have the court set aside the Mining Charters of 2004 and 2010‚ arguing they were unconstitutional‚ vague‚ ambiguous and contradictory; and could not be “determined with any certainty”.
The Chamber of Mines approached the High Court in Pretoria for a declaratory order on the ownership portion of the charter and whether companies must perpetually structure new empowerment deals to retain 26% black ownership or if once was enough – even if the empowerment participants were no longer shareholders. — BDLive
Twist in Mining Charter case
Lawyer Hulme Scholes and his firm‚ Malan Scholes‚ brought an application in the Pretoria High Court on Friday to combine the chamber’s court action with theirs seeking to declare the charter unconstitutional and void.
Mineral Resources Minister Mosebenzi Zwane told the Mining Indaba last week a revised charter – the document’s third iteration – would be finalised by April.
This is now highly unlikely.
South African law allows two cases dealing with overlapping or similar matters to be consolidated into a single case.
In his application‚ Scholes argued a judgment in his case would mean the declaratory order sought by the chamber over the charter’s empowerment ownership obligations on mining companies, would “become irrelevant”.
The single most important dispute between the department and the chamber‚ and Scholes and the department‚ was the legal standing of the 2004 charter and the 2010 amended version‚ he said‚ pointing out that he and the chamber both argued these were “policy instruments or guidelines”.
“I maintain that this is one of the most fundamental and foundational disputes between the Chamber of Mines application and the Scholes application and the minister‚ because the determination of that dispute would determine the legal nature of the charters and their enforceability‚” he said in his application.
The chamber would “almost certainly” refuse to have its application consolidated with Scholes’s‚ said Peter Leon‚ a partner and mining lawyer at Herbert Smith Freehills.
“The chamber wouldn’t want their application to be contaminated by the Scholes application‚ which is a full-on attack on the charter‚” he said.
“If the court agrees to this latest application there would be absolutely zero chance of a settlement‚” he said‚ adding that if the court found in Scholes’s favour‚ a third version of the charter would be meaningless.
The chamber’s March 15 court hearing would probably be delayed by Scholes’s application.
Delegates at the Mining Indaba stressed that regulatory uncertainty was one of the most important obstacles to attracting new investment and expansion.
Zwane told the gathering the government was aware of these anxieties and wanted the declaratory process settled out of court and the revisions to the charter completed by April.
The chamber’s chief executive Roger Baxter told the indaba it was trying to resolve matters.
“The court stream and discussions are continuing.”
Last June‚ Scholes and Malan Scholes lodged the application to have the court set aside the Mining Charters of 2004 and 2010‚ arguing they were unconstitutional‚ vague‚ ambiguous and contradictory; and could not be “determined with any certainty”.
The Chamber of Mines approached the High Court in Pretoria for a declaratory order on the ownership portion of the charter and whether companies must perpetually structure new empowerment deals to retain 26% black ownership or if once was enough – even if the empowerment participants were no longer shareholders. — BDLive
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