Transforming the mining industry: in search of legal certainty and meaningful empowerment

Abstract

The South African government adopted the Broad-Based Socio-Economic Empowerment Charter for the Mining Industry in 2004 pursuant to section 100(2)(a) of the Mineral and Petroleum Resources Development Act, 2002 to regulate empowerment in the mining industry. Since then, various iterations of the Mining Charter have been published. The legal challenges resulting from the different interpretations of the attainment of the goals set out in the Mining Charter have resulted in uncertainty regarding empowerment and have been the subject of much judicial attention. One of the fundamental issues with the Mining Charter is its status and the lack of authority of the Minister of Mineral Resources and Energy to publish subsequent updated iterations. The growing regulatory burden and uncertainty has increasingly hampered efforts to transform the mining industry. Considering the importance of transformation of the mining industry, this paper analyses the legal and policy impediments to achieving empowerment and proposes solutions to bring about certainty