2024 is a seminal year for South Africa. It is a year that celebrates 30 years of democracy. This is a major milestone for any country, particularly for one with a history of political turmoil, apartheid and all the ills that accompany it. In the mining industry, 2024 also marks the 20th anniversary of the enactment of the MPRDA. This too is a major milestone in a country that has been heavily shaped and influenced by the mining industry. To mark the 20th anniversary of the MPRDA, I have decided to reflect on a handful of significant experiences and milestones. I have the privilege of reflecting on this because I was there at the very beginning when the MPRDA was first referred to as 'the new Mining Act'. These days, no one ever says that.
In August 2005, a listed, senior gold producer announced that it had been granted a converted mining right, the very first one under the MPRDA. The task of 'executing' this mining right fell upon my then mentor, principal and supervisor, (the doyen of mining law in South Africa), Dr Michael Dale. At the time, I was tasked with much of the preparation for the execution. The new mining rights were to undergo notarial execution. Dr Dale and the then officials of the Department of Minerals and Energy (as it was known then) were at loggerheads regarding the information the DME should provide the notary public. After considerable debate and much disagreement, unwittingly, we created a precedent for all future executions.
Since then, hundreds of prospecting rights and mining rights have been executed based on the 'arrangement' established during the time that we executed the very first mining right. Reflecting back, I realise that witnessing that moment was pivotal in shaping my career as a mining lawyer, but it was a fact that I did not fully appreciate at the time.
Over the years, I have witnessed many epic moments as the MPRDA was taking root in the heart of mineral regulation. One unforgettable episode involving many heated debates between the DME and our team about the legal nature of 'old order mine dumps'? De Beers even took the DME and a prospecting right holder to court, over a right granted by the DME in respect of De Beers' old mine dump. At the time of consulting on this matter, I once again did not fully appreciate the impact that we were about to make by addressing the vexed question of the legal nature of a mine dump.
From judicial reviews about the powers of the Minister to delegating authority to DME, and the interpretation of whether the MPRDA expropriated mineral rights or not, I have seen it all.
As I reflect on the 20 years of the MPRDA, the following lessons are noteworthy.
Firstly, the MPRDA has had a profound impact on the mining industry, driving transformation and enabling the formation, emergence and growth of black-owned mining companies. Companies like African Rainbow Minerals, Shanduka, Mvelaphanda, Eyesizwe, Exxaro, Seriti Resources and others owe their existence, in part, to the MPRDA. A fact that is to be celebrated. At the 2024 Mining Indaba, it was noted that South Africa's mining industry is now 39% black-owned.
The MPRDA has also been a source of headaches in mineral regulation. From the double- granting of rights for the same mineral and land, to the unlawful refusal of legitimate applications for rights, the MPRDA has shown that good law is not an end in itself but that it must also be administered competently. It is at this juncture that I should mention the fact that I was once scolded by the DME official for stating out loudly that "it is incompetent for a Regional Manager to accept and process a competing application where there is a prior holder for the same mineral and land!"
Despite South Africa having extensive mining experience, for some inexplicable reason, the cadastral system is only now being attended to. That is one of the many things that could have been resolved 20 years ago to ensure that the industry avoids all the same headaches of yesteryear.
Then there is the long-standing issue of regulatory uncertainty. This topic has several facets, ranging from the uncertainty of the legal status of the Mining Charter to the evolving ownership requirements of the various versions of the Mining Charter. The delays in the implementation of the 2008 amendments and the introduction of the one environmental system are all issues that have contributed to the uncertainty. As a result, mining companies have been trying to understand their regulatory obligations under the MPRDA.
The MPRDA has also brought forth Ministers of varying talents. From Dr Phumzile Mlambo- Ngcuka who negotiated the first mining charter with the NUM and the then Chamber of Mines, to Mosebenzi Zwane who introduced the short-lived but totally controversial 2017 mining charter, we have witnessed it all. In between the two of them, we also saw Buyelwa Sonjica, Susan Shabangu, Ngoako Ramatlhodi and others take the reins, with varying degrees of success and controversy. To complete the circle, the current minister, Gwede Mantashe, was a signatory of the first mining charter (in his capacity as the leader of the NUM) in 2002.
Having come full circle, and celebrating its 20th anniversary, my assessment of the MPRDA is that it has brought us so near, yet so far – a bittersweet reflection. While it has facilitated black ownership and the transfer of mining wealth to black people, it has also given unscrupulous officials opportunities for poor and illegal behaviour. The legislation has contributed to regulatory uncertainty, and it has also prevented the mining industry from leveraging and benefiting from commodity booms. In conclusion, the MPRDA has presented us with the gift and the curse of competent and incompetent leaders within the mining sector and the regulators.
As I look forward towards the next 20 years, I yearn for a climate where the rule of law prevails; where there is both regulatory certainty and administrative capacity to enable the mining industry to become a beacon of hope and reach its full potential.
In celebration of the 20th anniversary of the MPRDA, visit the page here.
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