PRECEDENT FOR ANGLO PLATINUM LIMITED THREAT?
As such, there is clear precedent for the Minister’s using her powers to enforce the mining work programme and social and labour plan commitments which are incorporated into the mining right itself to ensure resources are “optimally exploited”. A mining rights holder is obliged in terms of section 25(2) for the duration of the mining right to “actively conduct mining in accordance with the MWP”.
The MWP, drawn up by an applicant for a mining right, describes how the holder intends going about exploitation of the resource. At a basic level it is drawn up taking into account factors such as the location and composition of the resource and what is financially feasible and viable for its exploitation. If there are downturns in the price of the mineral mined or other factors which make mining in a particular way or at a particular rate less feasible, the holder would be entitled to apply for the amendment of the MWP. The Minister would have to reasonably consider any such request, which would be made in terms of section 102 of the MPRDA.
Section 52 of the MPRDA gives the Minister further powers in the case of a scaling back in mining operations.
This section provides that the holder of a mining right must, after consultation with any relevant trade union notify the Minerals and Mining Development Board if any mining operation is to be scaled down or to cease with the possible effect that 10 per cent or more of the labour force or more than 500 employees, are likely to be retrenched in any 12-month period. There is a similar requirement where the mine is no longer profitable.
The Board must consult and investigate the matter particularly the socio-economic and labour implications thereof and make recommendations to the Minister. The Minister may, then direct the holder of the mining right take such corrective measures subject to such terms and conditions as the Minister may determine.
If the directives are not complied with, the Minister can apply to a court for judicial management of the mining operation.
This section does not give the Minister the direct power to cancel the mining right. Such a power would flow from the enforcement provisions discussed above. If a person fails to comply with the mining right, and particularly the MWP and SLP, the Minister may cancel a mining right, but only after a full notice and comment period has been followed. Any such decision would have to take into account the realities facing the miner and would have to be fairly and reasonably taken. Any such decision could be taken on review to the High Court.