Alex Rose-Innes

Judges Kathree-Setiloane, Van der Schyff and Ceylon heard an urgent application by The Minerals Council of South Africa (MINCOSA), to set aside certain provisions in the latest (2018) Mining Charter.

The application was supported by Mining Environmental Justice Community Network of South Africa (MEJCON-SA), the Centre for Environmental Rights (CER) and Mining Affected Communities United in Action (MACUA) and represented by the Centre for Applied Legal Studies (CALS).

The three-day virtual hearing saw a submission against non-compliance by mining companies in a loophole created by the Minister of Mineral Resources and Energy, Gwede Mantashe. The application put forward its understanding of the Promotion of Administrative Justice Act of 2000 and the Constitution and showed that Mantashe exceeded his powers in contravention of these.

The main argument for the review rested on MINCOSA’s surmise that the Mining Charter is only a guiding policy document which does not redress inequalities and not able to enrich more than a small minority.

MEJCON-SA argued that the SA mining industry had the most adverse effects on the most vulnerable local communities, but who are not properly consulted when mining applications are made. This is despite a 2018 c order declaring mining communities as key stakeholders to be consulted on laws and policies with a direct impact on their lives.

MEJCON-SA asserted that the 2018 Mining Charter is reviewable on the basis that public participation conducted in the drafting of the 2018 Charter was flawed. The organisation called for a Charter with a proper and legal framework, targets and timetable to ensure disadvantaged South Africans could benefit from the mining industry and mineral resources.

The Mineral and Petroleum Resources Development Act, 2002 (MPRDA) underscores section 24 of the Constitution, ascertaining human rights to an environment not harmful to health or well-being. This is one of the objectives addressed during the hearing for reviewing of the existing Charter.

According to MEJCON-SA , the Charter in its present format and structure, “lacked an environmental justice imperative and a gender justice imperative to address historical social and economic inequalities.”

The findings would be published in the media as it was stressed that no environmental justice could be attained without gender justice.