On 15 April 2016, the Minister of Mineral Resources published a further Draft iteration of the Mining Charter, pursuant to Section 100(2)(b) of the MPRDA. The content and unilateral nature of the Draft was largely met, again, with a sense of exasperation throughout most of the mining sector. The substance of material concerns are numerous and not evaluated here. We also do not address the Minister´s apparent misplaced understanding that he is in a position to “legislate” through Section 100(2)(b). We focus for the moment on the timing of the Draft and the propensity of regulators to drive administrative decisions though the pre-emptive publication or issuance of draft documents.

After publication of the Draft, the Minister remarked, “We knew there would be strong reaction and the reason we published it was to generate robust debate....”. Debate, indeed, is arguably the fulcrum of administrative decision making. The requirement to engage with affected parties and the need to take all relevant considerations into account are well established in common law, constitutional principles and other statutes. The placing of that debate in relation to the issuance of draft documents is however critical.

A smaller scale analogy is the issuance of compliance orders to individual industries under, for instance, enforcement provisions of the NEMA. Such orders are by law preceded by a so-called “pre-compliance notice”. The function of such a notice is to forewarn the targeted operator of an impending notice to take certain compliance steps and to allow the recipient to make representations before a final decision as to issuance or content of a final compliance notice is made. In many instances, clients receive pre-compliance notices that display little understanding of the current status of operations, physical site attributes and related facts. As a consequence, the recipient is compelled to expend countless man-hours in explaining the actual workings of its facility which, if it was heeded before issuance of the pre-compliance notice, would have negated the rationale for much of its contents. Let´s call this “robust debate”. No harm no foul some may argue. Once the representations are taken on board by the regulator, everyone is once more on the same page. Issuance of the intended final compliance notice is either averted or reduced to a few remaining matters, even though these could in many instances have been resolved through non-threatening and focussed enquiries by the regulator.

The fact remains however, that in the intervening period the potential financial and legal implications of a misguided pre-compliance notice may place substantial constraints on the management of a company, including its ability to trade unfettered, procure financing and confidently apply operating capital in the interest of its shareholders and employees, and for that matter, the national economy. These debilitating impacts are substantially elevated when pre-compliance notices are issued repeatedly.

When the same principles are extrapolated to the sector wide administrative decision making process in terms of Section 100(2)(a) of the MPRDA (i.e. the Mining Charter), the effects noted above are not only multiplied nationally but also has immediate international reach. The Minister may argue that absent a final decision, there is nothing unlawful about a draft document even if the content is potentially unrealistic, as the final version will (in theory) be the reasonable result of the intended “robust debate”. Assuming as much, this might be technically correct in terms of Administrative Law, but would miss the point entirely. The Minister´s acknowledgement that he expected “strong reaction”, but nevertheless published the Draft, is devoid of an appreciation for the actual reach and effect of such a reaction. The issuance of a blunt draft that does not already account for the realities facing the sector in a declining commodity market as well as other tax, trade and employment concerns as raised by various commentators, aids in sustaining the ongoing paralyses of uncertainty and the closing of capital taps.

Any draft administrative documents, and particularly those departing from existing expectations and scrutinised by the international community, must be the consequence of robust debate, not its catalyst.
 

Kind regards
Kenneth Cameron
(kcameron@macrobert.co.za)

NATIONAL LEGISLATION

Environmental and Mining

NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT (57/2003): DECLARATION OF LAND AS THE MOUNTAIN ZEBRA-CAMDEBOO PROTECTED ENVIRONMENT
Published under GNR 14 on 1 April 2016
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NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS ACT (57/2003): MOUNTAIN ZEBRA CAMDEBOO PROTECTED ENVIRONMENT REGULATION
Published under GNR 15 on 1 April 2016
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NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT (10/2004): BIODIVERSITY MANAGEMENT PLAN FOR THE CLANWIL-LIAM SANDFISH, LABEO SEEBERI
Published under GNR 406 on 15 April 2016
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NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT (10/2004): DRAFT BIODIVERSITY MANAGEMENT PLAN FOR HART-BEESSPRUIT ECOSYSTEM
Published under GNR 427 on 15 April 2016
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REVIEWED BROAD BASED BLACK-ECONOMIC EMPOWERMENT CHARTER FOR THE SOUTH AFRICAN MINING AND MINERALS INDUSTRY, 2016: PUBLICATION OF AND INVITATION TO COMMENT ON THE DRAFT
Published under GNR 450 on 15 April 2016
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ASTRONOMY GEOGRAPHIC ADANTAGE ACT, 2007: NOTICE OF INTENTION TO MAKE REGULATIONS ON THE PROTECTION OF THE KAROO CENTRAL ASTRONOMY ADVANTAGE AREAS
Published under GNR 453 on 20 April 2016
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NATIONAL WATER ACT, 1998: LIMITING THE USE OF WATER FOR IRRIGATION AND URBAN PURPOSES FROM THE OHRIGSTAD AND MKHOMBO/RHENOSTERKOP AND BUFFELSKLOOF SUBSYSTEMS/DAMS AND CATCHMENTS IN MPUMALANGA PROVINCE
Published under GNR 465 on 22 April 2016
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NATIONAL WATER ACT (36/1998): CLASSES AND RESOURCE QUALITY OBJECTIVES OF WATER RESOURCES FOR VARIOUS CATCHMENTS
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NATIONAL WATER ACT, 1998: RESTRICTIONS ON THE USE OF WATER FOR DOMESTIC, INDUSTRIAL AND AGRICULTURAL PURPOSES IN THE MZIMBUVU-TSITSIKAMMA WATER MANAGEMENT AREA (WMA 7) IN THE EASTERN CAPE PROVINCE
Published under GNR 496 on 29 April 2016
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PROVINCIAL LEGISLATION

Free State

DECLARATION OF PROVINCIAL HERITAGE SITES: FREE STATE
Published under PN 5 on 08 April 2016
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Western Cape

HERITAGE WESTERN CAPE: PROVISIONAL PROTECTION OF HERITAGE RESOURCES
Published under PN 102 on 08 April 2016
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FEES (HERITAGE WESTERN CAPE) REGULATIONS, 2016
Published under PN 143 on 21 April 2016
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LOCAL LEGISLATION

Mossel Bay Local Municipality

AMENDMENT: WATER SERVICES BY-LAW
Published under GNR 135 on 18 April 2016
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