Picture: THINKSTOCK
Picture: THINKSTOCK

THE Chamber of Mines said on Monday it would oppose a politically damaging attempt by mining lawyer Hulme Scholes to drag the chamber into his court battle with the Department of Mineral Resources to scrap the Mining Charter.

It disagreed with the application filed last week by Mr Scholes and the law firm he works for, Malan Scholes, to have court action seeking a declaratory order on the empowerment aspect of the Mining Charter consolidated with legal action brought by Mr Scholes. He wants the courts to declare the charter unconstitutional and void.

The consolidation application, if successful, would derail any attempts by the chamber and the Department of Mineral Resources to settle their dispute out of court.

“The chamber does not believe that the two applications can be consolidated. The right to relief in the respective applications does not depend substantially on the same questions of law or of fact,” it said.

While the Scholes application argued the minister had acted outside his or her powers and that the charter was unconstitutional and invalid, the chamber’s application did not make that argument, chamber CEO Roger Baxter said.

“Instead, it seeks declaratory orders in regard to the correct interpretation of aspects of the charter, primarily relating to whether the charter contains an obligation that the holder of a mining right continuously restore the level of ownership by historically disadvantaged persons to 26% if, after grant or conversion of the relevant mining right, such level were to fall below 26%,” he said.

Mr Scholes’s application to consolidate the two court processes also dealt a body blow to Mineral Resources Minister Mosebenzi Zwane’s aim for a revised charter, the third iteration, to be finalised by April. Mr Zwane said this at the Mining Indaba last week.

“The application to consolidate the hearing of both will result in the hearing of the chamber’s application being postponed. Given the unsettled and uncertain policy and legislative framework currently prevailing in the mining industry, we would prefer to have a court rule on the ‘once empowered, always empowered’ principle as soon as possible,” Cliffe Dekker Hofmeyr director Allan Reid said.

Mr Scholes and his firm went to court last August to set aside the mining charters of 2004 and 2010, arguing that they were unconstitutional, vague and contradictory, allowing for abuse by the mineral resources minister and officials.

Mr Baxter said: “The chamber considers itself a partner in the charter. The chamber has been party to its development and implementation over the past 12 years and intends to continue playing this role. We see it as a necessary and positive feature of the process of transforming the industry.”

The chamber will argue that the delay caused by the application to consolidate the two applications would be “prejudicial to the chamber and would not be in the public interest”. “The mining industry urgently needs certainty on what the correct interpretation of the charter is, which is why the minister and the chamber had agreed that the declaratory orders which are set forth in the chamber’s application should be sought,” the chamber said.