A recent Constitutional Court ruling will add another dimension to the draft reviewed Mining Charter, for which the Department of Mineral Resources is set to release an updated draft, suggests a Moneyweb report. The ruling, in favour of Solidarity and against the Department of Correctional Services (DCS), delegitimised the department’s employment equity plan, which imposed national demographics on regional departments. Peter Leon, partner at Herbert Smith Freehills’ Africa Practice, is quoted as saying the court effectively reaffirmed its finding in a prior case, that it is unconstitutional to use rigid quotas, as opposed to flexible targets, to achieve transformation. It thus poses a challenge for the draft charter, which unambiguously requires mining companies to apply rigid racial q uotas in achieving transformation. Leon adds: ‘While the existing 2010 charter requires at least 40% of management (across all levels) to be historically disadvantaged South Africans, the new draft charter not only increases the thresholds (to 50% at board level and 88% at junior management level) but also reduces the pool of eligible empowerment candidates, by disqualifying all women and disabled people who are white.’ However, notes Moneyweb, Leon does not believe the finding has any material implications for the issue of ownership and does not believe it will have an impact in so far as addressing the ‘once empowered, always empowered’ principle, nor will it affect aspects of the draft that require increased procurement from black-owned enterprises.

Full Moneyweb report  

The ruling has emboldened Solidarity to take on the Department of Mineral Resources on the Mining Charter draft, says a report in Business Report. The union has raised concerns over aspects of the draft, which require 26% black ownership of mining rights and that 2% of a company’s jobs be filled by black disabled workers. Solidarity’s Gideon du Plessis has claimed that the proposals were in contravention of the Employment Equity Act, as it relied on national racial demographics as guidelines for appointments. Du Plessis was adamant that the Constitutional Court case set a precedent for future litigation, such as the potential one against the draft Mining Charter. ‘We are not jumping the gun, thi s is a draft that was gazetted for public consultation. All we are saying is save yourself a lot of trouble by changing this; we will raise those issues that the Constitutional Court ruled upon last Friday,’ Du Plessis said. ‘We are saying be proactive and amend those aspects before they put it forward for discussion and debate through the parliamentary processes.’

Full report in Business Report