MacRobert News Flash

MacRobert wishes to draw your attention to the following important notice
published on 19 July 2017

The Minister of Mineral Resources, Mr. Mosebenzi J Zwane, has invited representations from relevant stakeholders on his intention to restrict the granting of any new applications for a prospecting or mineral right, in terms of section 16 and 22 of the Act, and the processing of applicatins for the renewal of a prospecting or mineral right, in terms of section 18 and 24 of the Act, and the granting of applications made in terms of section 11 of the Act in respect of all provinces. Comments are due by 4 August 2017 and may be sent to joel.raphela@dmr.gov.za.

The intended restriction will not be applicable to applications received and accepted before the publication of this notice, subject to the condition that such applications, should they be granted, shall not immediately upon granting subject the right holder to the requirements of the Mining Charter, 2017.

The intended restriction appears to us to be in reaction to the minister's hand being forced in the suspension of implementation of the mining charter, after a court challenge launched by the Chamber of Mines, and is highly questionable in law on at least three counts. Firstly, we do not believe that the section cited (Section 49(1)) empowers the Minister to halt the processing of applications and renewals on such a scale, as the section is intended to be applied in a restrictive context with deference to a particular area and/or mineral and localised rationale. As such, the restriction would be ultra vires. Secondly, even if a nationally applicable discretion is conceivably allowed within the ambit of section 49(1)(a), the intended restriction would clearly exceed any bound of reasonability in terms of administrative law and arguably violates the very mandate of the Department of Minerals and Energy. As such, the minister would in our view not be in a position to offer any justifiable reasons for putting the brakes on all new mining development and renewal of existing rights on nationally. Finally, the intended restriction also embodies an unlawful national moratorium on the receipt of applications for ransfer and encumbrance of prospecting and mining rights under section 11 of the MPRDA, which powers are also not within the ambit of section 49(1).

For any queries you are welcome to contact our environmental and mining law division:

MINERAL AND PETROLEUM RESOURCES DEVELOPMENT ACT