February 2018


THE SOUTH AFRICAN MINING INDUSTRY IS CHANGING AND THAT’S A FACT Mining Feature February 2018

2017 was another tempestuous year for the South African Mining and Natural Resources Sector. The sector was disrupted by a range of changes and uncertainties, including the publication of the Reviewed Broad-Based Black Economic Empowerment Charter for the South African Mining and Minerals Industry, 2016 on 15 June 2017 (Mining Charter 3); the proposed moratorium on applications for new mining and prospecting rights, mining and prospecting right renewals and mining and prospecting right transfers; mine closures under instructions issued in terms of s54 of the Mine Health and Safety Act (29 of 1996) (MHSA); the ever-increasing involvement of stakeholders and environmental activists; and regulatory and policy uncertainty.

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SURFACE RIGHTS USE: TO AGREE OR NOT TO AGREE Mining Feature February 2018

Prospecting and mining companies are well-versed in the conflicts that arise with land owners regarding the use of their land for prospecting and mining operations. When the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) was enacted, the legislature provided that the state is the custodian of South African mineral resources but made very little provision for compensation to a landowner for the surface use of his property for the purposes of prospecting and mining operations. Landowners often take a very hard stance in negotiating access with the mining companies by way of so-called surface use agreements.

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CAN THE TRUST BE TRUSTED? Mining Feature February 2018

In 2017, the Broad Based Economic Empowerment Commission (BEE Commission) announced that more than 50% of BEE trusts registered are not compliant with the BEE regulatory framework. In addition, the BEE Commission stated that it had initiated approximately 17 investigations into possible contraventions of the Broad Based Economic Empowerment Act (53 of 2003) (BEE Act).

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COLLABORATION THE KEY TO SUCCESS Mining Feature February 2018

Corporate Social Responsibility (CSR) appears to be in the spotlight in the mining sector in South Africa, more so than ever before. It is an issue which mining companies will ignore at their peril. South Africa has taken significant steps towards ensuring that the benefits of the country's resources are shared more equally, although there is no doubt that there is still much work to be done.

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DECOMMISSIONING AND THE ENVIRONMENT Mining Feature February 2018

Many aging offshore oil and gas platforms are reaching end of life, and the decommissioning of these structures is on the increase. Some 600 structures will be decommissioned in the next five years and, according to IHS Markit, another 2 000 will be decommissioned between 2021 and 2040.

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THE FOX GUARDING THE HENHOUSE? Mining Feature February 2018

With effect from 8 December 2014, sections 38 to 42 of the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA) were repealed pursuant to the drive to create "One Environmental System".

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MINING OPPORTUNITIES IN A LOW CARBON ECONOMY Mining Feature February 2018

The South African government has committed to reducing greenhouse gas (GHG) emissions to meet its nationally-determined contribution commitments in accordance with the Paris Agreement. In order to achieve these objectives, the South African government needs to implement regulatory and other measures that encourage producers and consumers to undertake activities or purchase products that are more environmentally responsible.

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LANDMARK COURT DECISION SHAKES UP MINERAL ROYALTIES Mining Feature February 2018

In a high court decision handed down on 3 October 2017, Justice Meyer found in favour of the taxpayer, United Manganese of Kalahari Proprietary Limited (UMK). Justice Meyer issued a declaratory order pertaining to the manner in which UMK's "gross sales" must be determined for the purposes of calculating the amount of the royalty it should pay in terms of the Mineral and Petroleum Resources Royalty Act (MPRRA).

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LOSING CONTROL Mining Feature February 2018

In terms of s11(1) of the Mineral and Petroleum Resources Development Act (22 of 2008) (MPRDA): "A prospecting right or mining right or an interest in any such right, or a controlling interest in a company or close corporation, may not be ceded, transferred, let, sublet, assigned, alienated or otherwise disposed of without the written consent of the Minister, except in the case of change of controlling interest in listed companies" (own emphasis added).

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PROPOSED AMENDMENTS TO THE FINANCIAL PROVISION REGULATIONS Mining Feature February 2018

The introduction of the controversial "One Environmental System" substantially overhauled environmental management for mining in South Africa through, amongst other legislative amendments, the promulgation of the Regulations pertaining to the Financial Provision for Prospecting, Exploration, Mining or Production Operations (Financial Provision Regulations, 2015).

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Disrupting the legal professional Management February 2018

Technology is changing the world and we have become obsessed with it. We have labeled this change "disruption"; we are being disrupted in every facet of our lives. We are equally elated and mortified by the impact of technology. The legal profession is not exempt from this technological tsunami and is showing the first signs of being disrupted.

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A picture is worth a thousand insults Platteland Perspective February 2018

One of the big questions in the minds of Zimbabwe commentators must be whether the new administration will be as thin-skinned as the last. After all, few are likely to forget the way the law was used to keep critics of the notoriously sensitive former president, Robert Mugabe, under control.

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Tales from the US of A... - February 2018 International February 2018

Fugitive US lawyer captured in Honduras after connecting to wi-fi

A US lawyer has been captured in Honduras after fleeing the US to avoid sentencing for bribing a judge to order the government to pay more than USD550 million in lifetime disability payments. He was arrested leaving a restaurant after police learned of his location when he connected to the Pizza Hut restaurant's wi-fi. His arrest will be examined to see whether it was lawful and whether he can legally be returned to the US. A month after he fled the US, in July 2017, he was sentenced to 12 years in prison in his absence. The judge he bribed pleaded guilty and was sentenced to four years in prison. Another judge was convicted of conspiracy to retaliate against a former employee who provided information to investigators; he was sentenced to six months in prison. If the fugitive had not fled he might have reduced his 12 year sentence to 10 years and served 85% of the total. He will probably now serve the full 12 years. Debra Cassens Weiss December 5, 2017

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The World in December 2017 and January 2018 International February 2018

"American Gangster" famously portrayed the true life story of US Essex County assistant prosecutor, Richard Richie" Roberts (played by Russell Crowe) who helped convict a Harlem drug kingpin, Frank Lucas (played by Denzel Washington), of drug-trafficking crimes. Now 80-year-old Roberts has been handed a sentence of 10 months home confinement, 100 hours community service and three years' probation for failing to pay both his personal income taxes and the employer portion of federal payroll taxes for his law firm. He has been ordered to pay $224 962 in restitution. He and his former law partner, Geral Saluti are also facing charges in the state Superior Court for misusing more than $140 000 in client funds. Although Lucas was convicted and sentenced to 70 years in prison, he became an informant and was released early. Roberts and Lucas became good friends – perhaps not such a good idea?

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The element of wrongfulness Litigation February 2018

On 1 December 2017, the Supreme Court of Appeal (SCA) upheld an appeal against the decision of the court a quo of Donen AJ in the Western Cape Division in the matter of Stedall v Aspeling (1326/2016) [2017] SCA 172.

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