Minerals Council of South Africa v Minister of Mineral Resources and Energy

The Minerals Council of South Africa sought to review and set aside certain clauses of the Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry, 2018 ("the 2018 Charter") published under section 100(2) of the Minerals and Petroleum Resources Development Act 28 of 2002 ("MPRDA"). The applicant challenged the Charter under PAJA and, alternatively, on the basis that it was inconsistent with the principle of legality in section 1(c) of the Constitution. The Minister, supported by the Regulator and various trade union respondents, contended that the 2018 Charter constituted a sui generis form of subordinate legislation binding on mining rights holders. The Minerals Council argued it was merely a policy document binding on the Minister when considering applications for mining rights under section 23(1)(h) of the MPRDA. Community respondents who were joined to the proceedings did not oppose the relief sought by the Minerals Council but sought additional relief on grounds of inadequate consultation and failure to adequately address environmental degradation and inequalities affecting mining communities. The matter had previously been heard by a Full Court which ordered joinder of various respondents before the merits were heard.

• Whether section 100(2) of the MPRDA empowers the Minister to make law in the form of binding subordinate legislation or merely to develop policy
• Whether the 2018 Mining Charter constitutes law or policy
• Whether the development of the 2018 Charter constitutes administrative action reviewable under PAJA or is to be tested against the principle of legality
• Whether the challenged clauses of the 2018 Charter are unconstitutional for lack of legislative power
• Whether community respondents, as co-respondents rather than applicants, are entitled to seek relief on grounds not raised by the applicant
• The proper interpretation of section 100(2) of the MPRDA in light of its language, context, purpose, and the constitutional values
• The enforcement structure and mechanisms under the MPRDA and their implications for the legal status of the Charter

1. The challenged clauses of the 2018 Mining Charter (clauses 2.1 introductory sentence insofar as it provides mining right holders "must comply", 2.1.1.2, 2.1.1.4, 2.1.1.5, 2.1.1.6, 2.1.3.2, 2.1.4, 2.1.5.2, 2.1.6.1.1-2.1.6.1.4, the heading of 2.1.6, the definition of "beneficiation" and clauses 2.1.7.1 and sub-clauses, clause 2.2, clauses 4, 6.2, 7.1, 7.2, 7.3, 8.7, 8.8, 8.9, 9.1 and 9.2 insofar as they relate to existing or new licences under the Diamonds Act and Precious Metals Act) were reviewed and set aside under sections 6(2)(a)(i), 6(2)(d), 6(2)(e)(i), 6(2)(e)(iii), 6(2)(e)(vi), 6(2)(f)(i), 6(2)(f)(ii), 6(2)(h), and/or 6(2)(i) of PAJA. 2. The Minister was ordered to pay the costs of the application, including the costs of three counsel. 3. The community respondents' claims for additional relief were dismissed as they were not entitled to seek relief against a co-respondent without joining as applicants.

Section 100(2) of the MPRDA does not empower the Minister of Mineral Resources to make law. The 2018 Mining Charter is not binding subordinate legislation but an instrument of policy. This interpretation flows from: (1) The ordinary grammatical meaning of the language used in section 100(2) - "develop" (not "make"), "charter" (not "regulations"), and "can" (not "must"); (2) The context within the MPRDA - the existence of section 107 providing express power to make regulations, the omission of "charter" from the definition of "Act" in section 1, and the comprehensive enforcement structure through incorporation of charter requirements as terms in mining rights; (3) The purpose of the provision - while aimed at transformation, this objective does not require the charter to be subordinate legislation and can be achieved through the MPRDA's enforcement mechanisms; (4) Constitutional principles - interpreting section 100(2) as delegating unbridled legislative power would offend the separation of powers doctrine; (5) The Original Charter of 2004 was understood and implemented as a policy pact between government and industry, not as law. The charter becomes binding on mining rights holders only to the extent its terms are lawfully incorporated by the Minister into mining rights as terms and conditions, which can then be enforced through section 47(1)(b) (suspension or cancellation for breach of material terms). This interpretation is consistent with the objects of the MPRDA as required by section 4(1) thereof and promotes the Bill of Rights as required by section 39(2) of the Constitution.

The Court made several obiter observations: (1) The question of whether the cuius est solum principle (ownership of minerals) has been abolished by the MPRDA was not necessary to decide and was left open, though the Court noted the MPRDA extinguished the right to exploit minerals while the private law ownership question remained unclear; (2) If there is a lacuna in the MPRDA preventing the Minister from making binding subordinate legislation to achieve transformation objectives, only the Legislature (not the courts) can cure such lacuna - notably, a previous amendment Bill had attempted to include "charter" in the definition of "this Act" but was not proceeded with; (3) Evidence of lack of transformation in the mining industry since the MPRDA's enactment, relied upon by the Minister, could not be considered as post-enactment events are not admissible in statutory interpretation; (4) The balancing act between transformation objectives (sections 2(c), (d), (e), (f), (i)) and security of tenure (section 2(g)) is central to the MPRDA's framework, and security of tenure is essential to achieve transformation by encouraging investment; (5) The Minister's failure to prescribe regulations under section 107 or to require incorporation of appropriate terms beyond standard term 17 undermines his argument that transformation objectives cannot be achieved without the charter being subordinate legislation; (6) The interpretation does not preclude achievement of constitutional norms and values embodied in the MPRDA's transformational objects - an executive policy measure giving content to these objectives through guiding principles is consistent with constitutional values; (7) The doctrine of subsidiarity precludes the Minister from seeking to derive law-making powers directly from constitutional values when the MPRDA was enacted specifically to give effect to those values.

This judgment provides critical clarity on the scope and limits of the Minister of Mineral Resources and Energy's regulatory powers under the MPRDA. It establishes that section 100(2) empowers the Minister to develop policy instruments, not to make subordinate legislation. The 2018 Mining Charter is therefore not directly binding law but rather a policy framework that guides the Minister's exercise of discretion in granting mining rights under section 23(1)(h) and becomes binding on mining rights holders only insofar as its provisions are lawfully incorporated as terms and conditions of their mining rights. The judgment reinforces fundamental constitutional principles including the separation of powers doctrine (preventing unbridled executive law-making), the principle that delegated legislative powers must be clearly conferred and constrained, and the importance of security of tenure as a counterbalance to transformation objectives in the MPRDA framework. It clarifies the enforcement mechanisms available under the MPRDA (incorporation of charter requirements in mining rights terms, reporting obligations, and suspension/cancellation powers) and confirms these are sufficient to achieve the Act's transformative objectives without the charter being subordinate legislation. The judgment also establishes important procedural principles regarding the rights of joined respondents and the limits on co-respondents seeking relief against each other. This case will be central to future mining rights applications and disputes, and provides guidance on purposive statutory interpretation that remains faithful to legislative language while promoting constitutional values.