2022-02-08

BBBEE Mining charter is policy, not law

The recent Pretoria High Court judgment found that the current BBBEE Mining Charter constitutes a policy, not a law.

As the judgment indicated that as the Charter did not constitute law, it followed that it was not binding.

ANC MPs in the Portfolio Committee wanted an urgent appeal to be made against the judgement, which “took the industry and the country backwards”.  The Department of Mineral Resources and Energy (DMRE) advised against it, preferring the legislative route to create legal certainty through the parliamentary process.  This would also allow the licensing of mining rights to be part of the empowerment toolbox. 

The judgement also found that mining right holders are not legally obliged to achieve targets on inclusive procurement and supplier and enterprise development. 

The DMRE has had engagements with its social partners in the industry on the subject.  There was broad commitment from them that the judgment should not be taken as a cue to veer away from the transformation goal. 

The debate  centred around BEE procurement matters, and on transformation generally , and the need for better results from business and industry.

It is noted that the judgment from the High Court comes at a time when the Employment Equity Bill sets sectoral targets for BBBEE and raises the level of debate with business and industry surrounding ministerial powers to legally enforce the pace of transformation generally on employment issues. 

The Minister can still use the Minerals and Petroleum Resources Development Act (MPRDA)  to ensure compliance and invoke penalty provisions in the case of non-compliance, as well as reserve the right to renew a mining licence and who has as final say on this.

Reference: www.parlyreportsa.co.za

Mark - 08:51 @ common, B-BBEE | Add a comment

 
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