A LANDMARK court case that starts on Tuesday will ask a judge to rule whether the need to reduce racial inequality trumps shareholder rights.
The Chamber of Mines is asking the High Court to back its view that the Mining Charter stipulates that companies should be credited with disposing of a minimum of 26% of their assets to black investors even if those stakes were later sold.
The original charter agreed to by the government and the mining industry took effect in 2004. The Department of Mineral Resources updated it in 2010 to make the minimum requirement permanent.
"It is going to be huge — if the chamber loses, everybody who’s been disempowered will have to be re-empowered," Andrew Mitchell, a partner at the Johannesburg-based legal firm Fasken Martineau, said. "The shareholders are not going to like it because it means they’ll get rediluted again."
The charter also sets targets for companies to boost the number of black people in management and improve training and benefits for communities near mines. No black South Africans lead the country’s eight biggest precious metals companies, all of which are headquartered locally.
The industry remains "dominated by white males," the Department of Mineral Resources said last year.
While the chamber says black control in mining averaged 38% by the end of 2014, the government maintains just 20% of companies had complied with the minimum requirement. The two parties used different criteria.
The chamber plans to argue that the mines ministry breached the charter by making the 26% requirement permanent, and if the government’s arguments are upheld, it could have "devastating" economic and reputational consequences for the companies, the court documents show. The group declined to comment on questions submitted by Bloomberg.
The chamber’s members include Anglo American Platinum, the world’s biggest platinum producer, South32, AngloGold Ashanti and Glencore. SA is the world’s biggest source of platinum and manganese and the continent’s largest gold and coal producer.
The chamber says that while its members would have met or exceeded the 26% shareholding target if all their black economic empowerment (BEE) deals worth R205bn since 2000 counted, a quarter could miss the required threshold if sold-down stakes are disregarded.
Companies that may fall short of meeting these conditions include Anglo American Platinum and Sibanye Gold, the chamber said in a letter to the Department of Mineral Resources that was included in the court papers.
Under apartheid, most South Africans were confined to "the role of suppliers of cheap labour to the mining industry", the department said last year when it announced it was in dispute with the chamber. "Meaningful participation in the broader economy by the country’s historically disadvantaged remains critical for the sustainability of our democratic ideals."
The court case will show what the law requires from mining companies, the ministry said in an e-mailed response to questions. Clarity on issues of "compliance will be beneficial to all stakeholders", it said.
The chamber argues that since the ownership target was a one-time requirement before the department’s revisions, penalising companies whose black investors sold their stakes should not be a reason to consider stripping an operator of its mining rights, according to the court documents.
"This will force mining companies to perpetually dilute other shareholders if the required partners cannot be found in the open market", the chamber said in a letter attached to court papers. "The consequences will be a shareholder revolt, significant divestment from mining companies and a significant constraint on companies to raise capital in the future."
Both the ministry and the chamber are opposing a separate application by Johannesburg law firm Malan Scholes to declare the Mining Charter unlawful. The firm wants the High Court to hear both applications together because it says some of the issues overlap.
BEE deals have been financed by various methods, including raising cash from shareholders as well as companies and banks lending money to black investors. While some black investors reduced their shares, others had their stakes diluted when they were unable to service loans as the slump in commodity prices dried up dividends.
The chamber also plans to argue that if the permanent requirement stands, it will cut the value of black investors’ investments because they would not be able to freely exchange them if companies sold the stakes on condition they were not traded. The government was also ignoring the economic empowerment that mining companies had brought about, it said.
"The fact that some of the BEE companies have sold out of their equity stakes — and so empowerment has been created in other areas of the economy due to mining — or that equity prices have fallen so as to challenge BEE deals, does not take away the significant efforts the industry has invested in meeting the requirements on transformation," the chamber said.
Resolving the dispute of shareholding obligations will take years to finalise because the losing party will probably appeal to higher courts, Mr Mitchell said.
"If you try to do it now, for some companies that will be the end," he said, referring to a second round of empowerment deals. "They won’t be able to raise the money."