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.
