The new amended Mining Charter – the agreement that governs black ownership in the mines – has been a festering sore for more than four years. The employers and unions have disputed it, lawyers have argued over it and yet no one seems to be able to agree on one of the most important documents in Africa’s most lucrative industry.
Love it or loathe it, the mining industry in South Africa employed more than 450,000 people, with a trickle down that supports an estimated 4.5 million people, contributing  7.1% to GDP, in 2016. In the same year, it racked up sales of more than $30 billion. It may be a far cry from the industry’s heyday in the 1980s, when it employed a million people, but it is still too big to ignore.
Cars run on South African-mined platinum, in their catalytic convertors, from New York to Paris; around half of all the gold on the fingers and locked in the bank vaults across the world was unearthed and refined in and around Johannesburg in more than a century of mining.
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This treasure trove of wealth is the main reason why the fight over the Mining Charter has been so intense and emotive. It is an agreement, not legislation, agreed by employers and government to foster black empowerment.
It came into force in in 2004 amid a blaze of publicity claiming the industry was going to be swiftly transformed, towards more black ownership, in a decade. Instead, when 2014 came around there was uncertainty, a lack of direction, and questions in the corridors of power whether the Mining Charter had achieved anything at all.
The mining employers fear the Mining Charter has scared off foreign investors and is part of a severe decline in this industry. In 2016, according to Statistics South Africa, the South African mining industry’s real GDP was 2.6% smaller than in 1994. The thriving financial services sector grew by 168% over the same period.
The Chamber of Mines – that represents 90% of South African mining companies – called the amendments the last nail in the coffin when they came out last year. The former mining minister Mosebenzi Zwane called the amended Mining Charter the key to changes in the industry that will benefit the black majority – for so many decades seen as mere cheap labor in the mines.
The zealots in the government – who were pushing the amendments – want radical change in mining. They see it as a pillar of the establishment in apartheid days where black sweated labor was used to create the wealth to keep the status quo.
When the amendments were released they were dramatic and controversial. An increase in black ownership from 26% to 30% with a rider that this be maintained at all times. The mining employers bridled at this clause because they argue for a “once empowered, always empowered” rule that stipulates that once they have borne the cost of transferring ownership to new black owners they are deemed to have done their job. One of the bugbears of the black empowerment game is dilution.
That is, after the lock-in period, black shareholders often cash in their stakes, which dilutes the overall black owned percentage, leaving the employers with the arduous task of starting again. If the “once empowered, always empowered” principle was upheld by the courts it would mean most of the major mining companies could claim they had done their job.
On top of this were a raft of amendments that the Chamber of Mines objected to and one or two the lawyers called illegal. Among them, a stipulation that 1% of the revenue be paid to black shareholders before any others are considered. Mining lawyers consider this to be an illegal flaw – in contravention of the Companies Act – in a Mining Charter that was rushed and poorly written.
“It is open to discretion, with very unclear rules that make it very difficult to invest with that level of uncertainty and that is the long and short of it,” says Peter Leon, mining law expert with Herbert Smith Freehills in Johannesburg. He also considers another clause about the writing off of dividends, to be repaid by black shareholders in fees for shares, to be tantamount to expropriation.
The Chamber of Mines claims the Mining Charter is unconstitutional and written without proper consultation. Its lawyers were ready to argue this in a three-day judicial review of the Mining Charter by a powerful bench of three judges, at the High Court in Pretoria, on February 9, 10 and 11.
At the eleventh hour, South Africa’s new president Cyril Ramaphosa – a mining man to his boots – made good on a promise in January at the World Economic Forum in Davos to intervene. His officials persuaded the Chamber of Mines to hold off with its legal challenge to give negotiation another chance.
It means the regulation of the industry will fall back on the previous charter, with its 26% black ownership target, that most companies had priced in and come to terms with.
Outside the court on the day was a throng of singing and dancing protestors who could prove a fly in the ointment. These were the people who live with the mines and their dust and disruption.
They had traveled for hundreds of kilometers, with their lawyers in tow, from tiny villages across South Africa to make their point in Pretoria. They wanted a seat at the negotiating table and the court ruled that they should get one.
The mining communities making their debut in the Mining Charter talks, alongside government, unions and mining employers, could add more time and dimensions to what is already likely to be a complex debate.
The Chamber of Mines has flagged this as a difficulty in negotiations. Mining companies often struggle to deal with power shifts and conflicting leadership claims in communities around mining – especially when the money starts flowing.
<a href="http://www.forbesafrica.com/focus/2018/03/12/new-kids-mining-block/" target="_blank" rel="noopener">READ MORE: New Kids On The Mining Block</a>
This puts the prediction of wrapping it all up by June, made by the new mining minister Gwede Mantashe, in severe doubt.
“We will finish it within three months, I am putting that timeframe for myself,” says Mantashe.
&#8220;A new Mining Charter that is well designed and reached through an inclusive negotiation process needs to be finalized as soon as possible,&#8221; says the Chamber of Mines in response.
In many ways, a crumb of comfort for the employers is that the new man Mantashe is also a mining man down to his boots and a world away from his disliked predecessor Zwane. Mantashe, the former leader of the biggest union in Africa, the National Union of Mineworkers (NUM), is known in the industry as an honest broker and skilled negotiator.
“You could say Gwede has mining in his blood,” says Elize Strydom, a former legal head and chief negotiator at the Chamber of Mines, who sat across the table from Mantashe in wage talks for nearly a decade.
“The good thing always was when Gwede said you had a deal, you had a deal, and you could go home and sleep soundly.”
Mantashe, who is also the chairman of the ruling African National Congress, will have his work cut out for him over the next three months to make good on his promise and sort out what is probably the most tricky and crucial set of regulations in one of Africa’s biggest economies. It is not going to be easy reconciling the wishes of a multi-million-dollar investor and a poor villager living in the shadow and dust of a mine.
Any foreign investor or any African business connected to mining will hope Mantashe does so.

Aerial view of a quarry, Johannesburg, South Africa

Mining Charter Back To Square 26

If Zimbabwe’s economic problems hang like a cloud, you could argue that mining is the platinum lining. Platinum investment has poured into Zimbabwe—a country where mining contributes 13% to the GDP and accounts for 60% of export earnings.
Zimbabwe may be rich in resources but it is poor in policy. Most Zimbabweans have seen little of the wealth mined from beneath their feet. The irony is the unpredictable policies aimed at tackling this problem are putting off the foreign investors needed to fuel the long-term, capital-intensive business. Zimbabwe has, for the past decade, recorded among the lowest foreign direct investment (FDI) inflows in the sub-Saharan Africa region. In 2011, it didn’t even see $400 million in investment, compared to South Africa, Zambia and Angola, which received more than $1 billion apiece.
Platinum claims by government under the Mines and Minerals Act are a prime example. This year, the government acquired nearly 28,000 hectares of platinum claims held by Zimplats—a subsidiary of South Africa’s Impala Platinum—in the Mhondoro-Ngezi district. Earlier, the state had acquired Anglo American Platinum claims, in Shurugwi, to pave way for Todal Mining—a Russian-linked subsidiary of Central African Mining and Exploration Company. Government heavyweights are linked to the acquisition.
“It’s pointless to grab claims that you can’t make good use of,” says a mining engineer based at neighboring Zimasco chrome mine, which was taken over in 2007 by the Chinese.
There is talk that Chinese investors have been eyeing Anglos Unki Mine in the heart of the mineral-rich Great Dyke. This talk, along with the grabbing of the platinum claims, is enough to cause disquiet among investors.
“It will send a negative signal on security of investments in the country and will likely result in a slowdown in FDI into the sector. Mining is generally a long-term investment and investors want security that they will be able to recoup their investments without fear of repossession of their assets. The impact of this uncertainty has already been seen on the local stock market, where mining firms have struggled to raise funding from both local and foreign investors, while trading in these stocks has been quite subdued as the sector sometimes goes for days without recording a single trade,” says Isaac Isaki, head of sales and trading desk at EFE Securities.
With the benefit of foresight, perhaps none of the companies would have invested in the first place. Instead of taking the claims, Isaki argues that the government should have traded the excess claims in partial fulfillment of the indigenization laws, rather than force companies to comply with indigenization laws and then take away the claims.
Zimbabwe has the second largest platinum reserves, which Anglo, the world’s largest platinum producer, tapped into. While it is divesting in its core operations in Zimbabwe, it will keep its gold and platinum production going. Recently, Anglo ceded around 51% of its stake to black Zimbabweans, in a move that created ructions in the financial sector.
Impala Platinum, Zimplats’ owner, and Mimosa Platinum have also conceded to government’s indigenization demands. Once Anglo American had pumped $300 million into its Unki Mine operation, the government cajoled them into an empowerment deal, which, according to legal experts and analysts, had many holes.
Under the empowerment deal: the Tongogara Community Share Ownership Trust; the Unki Employee Trust; and the ‘strategic indigenous investors’ will receive 10% each of the shares. The government will acquire 21% through an indigenous empowerment board through decade-long loans. The Tongogara Community Share Ownership Trust, launched in 2011, was also given $10 million, with $1.3 million spent so far on schools, mortuaries and irrigation schemes.
Harare-based economist John Robertson, who has been studying mining in Zimbabwe for more than four decades, criticizes the empowerment laws.
“I regret that community share ownership schemes will probably make only modest contributions to rural societies, given the fact that their funds will be derived from dividends that will be paid only if and when the companies whose shares are owned by the schemes make profits big enough to justify dividends. If these dividends can be accumulated for long enough to pay for needed social infrastructure, such as roads, schools, dams, water purification plants and hospitals, the benefits will be important, but the word transform might be too extravagant to use to describe the benefits,” he says.
There is a strong perception in the market that the indigenization demands amount to legalized theft.
“Government has passed a law that states all foreign investors have to hand over 51% of their shares. What is the difference between this and a mugger demanding that you let him take half the money out of your wallet? It is wrong and passing a law to legalize it does not make it right,” says Robertson.
Despite these economic setbacks, the country’s future appears to lie in platinum. According to Anglo general manager, Walter Nemasasi, Unki Mine produced 62,692 equivalent platinum-refined ounces in 2012, with projected annual increases.
So far, Anglo has pumped in nearly $350 million into the operations, with the bulk going into a new raw water supply dam and a 17km-long tar road to the mine. At the very least, this investment is turning remote villages into booming towns.
The question is whether these government-brokered empowerment share ownership deals will bring the much needed development and give Zimbabweans a share of the wealth of their land. That is a question likely to be asked ahead of this year’s elections.
<h4>REFERENDUM</h4>
Hope, fear, optimism and change. These are some of the things that precede the Zimbabwean elections expected to be held later this year following the successful signing of a constitutional referendum that saw the three parties in the country make compromises.
With reportedly 3.3 million Zimbabweans having cast their vote in a referendum on a new constitution that seeks to curb presidential powers and strengthen human rights in their country, the spotlight is on Zimbabwe to see if democracy and change will be attained. 
Leaders in the country are seeing the agreement as a stepping stone to new beginnings but political commentators are not convinced it will yield the desired results. Gabriel Shumba, a human rights lawyer and political analyst from Zimbabwe is not celebrating just yet. 
Shumba believes if the Southern African Development Community (SADC) does not step in to assist leading to the elections, history could repeat itself and violence could erupt. 
“We are going to see violence preceding the next elections if precautionary measures are not taken by SADC to prevent violence that is already evident on the ground. The arrest of the human rights activist [Beatrice Mtetwa] is evidence that the next elections won’t be different from those of the past. We have to keep in mind that it is not a constitution that prevents violence or rigging, it is political will,” he says.

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Mining Charter Back To Square 26

A Fair Share Or Legalized Theft?