THE ANC’s economic transformation committee head, Enoch Godongwana, says parties to the court dispute over the interpretation of the Mining Charter are poised to agree to withdraw legal action and negotiate a solution to the empowerment debate.
The Chamber of Mines is seeking a declaratory order on the interpretation of the ownership clause of the charter.
At issue is whether mining companies must perpetually top up their black ownership levels to 26% when black shareholders sell out, the interpretation government favours — or whether the industry view that it is sufficient to sell 26% to black shareholders once, should prevail.
The ANC’s recent national executive committee meeting recommended that a settlement be found. It made a similar proposal at its national general council meeting in October.
The ANC resolution stated that “the parties must be advised to withdraw the court proceedings”. It also urged that the Mining Charter no longer be part of the Mineral Petroleum Resources Development Act (MPRDA), but form part of the legislation’s regulations.
“This will ensure that the passing of amendments to the MPRDA are not further delayed,” the resolution states.
Godongwana on Friday said that he had been in engagement with all the parties. “They agree that a settlement is preferable…. To my knowledge, processes are in motion to deal with that. This is just a recommendation we have made. It is now up to them to operationalise it.”
Chamber of Mines president Mike Teke would not comment. Mineral Resources Minister Mosebenzi Zwane said that he had always preferred to engage on the matter rather than for it to be settled in court.
Godongwana said that it was unrealistic to expect a court to provide certainty on a major policy issue such as black economic empowerment. If for example, the court ruled against the government, the next logical step would be that legislators amended the law to ensure it gave effect to their intentions. This would only prolong regulatory uncertainty, he said.
The challenges in the talks include striking a balance between the desire of black shareholders to realise value by selling and the propensity of companies to lock black shareholders in or limit the options of to whom they can sell.
“These are complex issues … We are going to have an engagement with the relevant parties. But what is agreed will be informed by practicalities negotiated by the parties, not by ourselves,” Godongwana said.
The parties are already in discussions aimed at agreement on the “once-empowered, always-empowered” debate. The talks are part of a consultation on a new version of the Mining Charter gazetted for comment by the Department of Mineral Resources in April that took industry by surprise.
Deputy Mineral Resources Minister Godfrey Oliphant said in an interview last week that the talks were encouraging. “It is the prerogative of parties to go forward with the declaratory process in the courts … but we have been engaging with the affected parties to see if we can sort these things out,” he said.
“I can’t predict what the outcome will be, but we are satisfied and comfortable that we are starting to reach out to each other in a very positive way.”
Mineral Resources Department spokeswoman Ayanda Shezi said on Friday that the consultation would lead to the gazetting of a new charter.
“The aim is to finalise both the charter and MPRDA before the end of the year,” she said.
The ANC believed that its recommendation that the charter no longer forms part of the act would expedite the amendments to the resources act.