This is an edited version of the address given to the diplomatic members of the South African Institute of International Affairs, on 3 December 2015 at Villa Sterne, Pretoria.
South Africa's mining industry has long been one of the economy's most visible drivers but recently regulatory uncertainty, labour strife, the lack of a social compact between the government, labour and business, an accelerated global downturn in commodity prices and a move towards increased local benefication, have created a difficult operating environment for mining companies. This, in turn, has led to substantially lower levels of investment in the sector than anticipated.
The Precious Metals Act (37 of 2005) (PMA) is applicable to gold, platinum and other precious metal miners in South Africa.
The PMA defines "precious metals" as gold, any metal of the platinum group and the ores of such metals, as well as any other metal that the Minister of Mineral Resources has declared, by notice in the Government Gazette, to be a precious metal for the purposes of the Act. To date the minister has not declared any other metals as "precious metals" for purposes of the PMA.
Over the past few years there has been a significant slow-down in mining M&A activity internationally and in South Africa.
Acid Mine Drainage (AMD) became a big media issue in the last decade but seems to have faded from the agenda somewhat. But it is instructive to know where the AMD management debate is, because it is about to become active once again.
The Mineral and Petroleum Resources Act (28 of 2002), as amended (the MPRDA), provides that the state, as custodian of the nation's mineral resources, may not grant a mining right for more than 30 years. Although the mining right holder has the exclusive right to apply for the renewal of the mining right at its end, it appears that the MPRDA compels the state to renew the mining right for up to another 30 year period, if the holder is compliant with mineral legislation and the conditions of the right.
The mining industry is a high risk industry, requiring significant capital expenditure and long development timelines before a mining company begins to realise returns. In this article, we will explore certain of the key matters investors consider when deciding whether, and where, to invest and consider what South Africa can do to increase investor enthusiasm.
If you conclude a commercial transaction with someone who holds a right issued by the Department of Mineral Resources in terms of the Mineral and Petroleum Resources Development Act (28 of 2002) (MPRDA), you must ensure that the required regulatory approvals for the implementation of the transaction have been granted.
Unfortunately industrial action in South Africa has been characterised by strike violence. Although the mining industry is not alone in suffering the consequences of strike violence, it has received the most publicity because of the unfortunate events surrounding Marikana.
The constitutionally entrenched right to fair labour practices, and the advent of fairness as the adjudicative standard in labour matters, seeks to balance the inherently unequal bargaining position between employer and employee. To a large extent the legislative intention is achieved by curbing the employer's power to exploit workers. However, where trade unions take the law into their own hands and embark on unprotected strike action, are the appointees who are responsible for the health and safety of employees and who were appointed under statute, absolved of liability or left completely exposed by actions out of their control?
In the recent decision of Assmang Limited (Assmang Chrome Dwarsriver Mine) v Commission for Conciliation, Mediation and Arbitration & Others (unreported case number JR2584/2012 dated 14 January 2015), the issue before the court was whether a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner had committed a gross irregularity by failing to consider the probability and credibility of witness evidence before finding whether an employer's onus was discharged.
According to PwC's annual review of the trends in the mining industry, "Mine 2015", the market capitalisation for the world's top 40 mining companies at the end of 2014 was $791 billion; the same level at which it stood 10 years ago. This was the first time that no South African company made the top 40 list, which is indicative of the hardships currently facing numerous mines in the country. In a media statement on 12 May 2015, the then Minister of Mineral Resources, Advocate Ngoako Ramatlhodi, announced his concern over the high rate of retrenchments in the mining sector.
Section 53 of the Mineral and Petroleum Resources Development Act (28 of 2002), as amended, (MPRDA) provides a mechanism for ensuring that, inter alia, the mining of mineral resources is not detrimentally affected through the use of the surface of land and which may, for example, result in the sterilisation of a mineral resource.