the revised mining charter

7/27/2019 The Revised Mining Charter

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SPRING 2010

EVERYTHING MATTERS

MINING

The long-awaited review of the Broad-Based Socio-EconomicEmpowerment Charter for the South African Mining and Minerals

Industry (Revised Charter) was released by the Minister on

13 September 2010. The intention behind the Revised Charter was

to clarify certain ambiguities and uncertainties which existed under

the original 2002 Mining Charter (2002 Charter) and to provide

more specific targets than the 2002 Charter had done, the 2002

Charter having been a more policy orientated document.

However, the Revised Charter has in some instances given rise tomore questions than answers. The first issue is the relationship

between the 2002 Charter and the Revised Charter. Does the

Revised Charter replace the 2002 Charter or must the Revised

Charter be read in conjunction with the 2002 Charter?

The title of the Revised Charter specifically records that it is an

"Amendment of the ....(2002 Charter)" as opposed to an Amended

Charter. This thinking is confirmed in the Preamble to the Revised

Charter which records that "...amendments are made to the Mining

Charter of 2002 in order to streamline and expedite attainment of

its objectives." These statements indicate that it would be necessary

to consider the 2002 Charter and the Revised Charter together in

order to ascertain one's obligations. However, a comparative review

of the Revised Charter and the 2002 Charter leaves one in little

doubt that the Revised Charter was in fact intended to replace the

2002 Charter and not merely to amend same.

The second preliminary issue is the following: What is the impact

of the Revised Charter on the Codes of Good Practice for the

Mining Industry (Code)? The simple truth is that by and large the

provisions of the Code have been ignored by stakeholders in the

mining industry. Inelegant drafting and the dubious legal validity

of the Code did little to promote the aims of the 2002 Charter.

However, the Code remains on the statute books as delegated

legislation. It has not been amended to reflect the provisions of

the Revised Charter and as such is likely to continue to be ignored.

If the Code has any relevance at all, it is likely to be in regard to

the general principles espoused therein. It is hoped that the Code

The revised Mining Charter 2010


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2 l Mining Matters 2010

will be wholly re-written in due course to be, in fact, a proper code

of good practice in accordance with international standards.

The third preliminary issue is: To what extent is the Revised Charter

a product of the consensual agreements recorded in the Stakeholders'

Declaration on Strategy for the Sustainable Growth and Meaningful

Transformation of South Africa's Mining Industry which was

signed on 30 June 2010 by the Department of Mineral Resources,

National Union of Mine Workers, Solidarity, UASA - The Union,

the South African Mineral Development Association and the

Chamber of Mines of South Africa (Declaration). In answer to this

question, we include in this comparative analysis a summary of

the most pertinent aspects of the Declaration. What is apparent

from this comparison is the fact that while the Department of

Mineral Resources seeks the co-operation of stakeholders, it is not

averse to adopting a coercive stance when it comes to empowerment

within the mining industry.

Possibly one of the biggest surprises was the fact that the Revised

Charter, despite the consensual nature of the Declaration, seemingly

provides that non-compliance with the provisions of the Revised

Charter will amount to a breach of the MPRDA that may result in

the suspension or cancellation of a holder's prospecting or mining

rights under section 47. Added to this is the fact that the Minister

will have the power to amend the 2002 Charter without consultation

and will therefore have a wide discretion to impose more onerous

obligations on the industry in the future. Not only does this

perpetuate regulatory uncertainty in the South African mining

industry but renders it more likely that the Revised Charter, as

delegated legislation, will be challenged as being unconstitutional.

However, the wording of the Revised Charter stipulates that "Non

compliance with the provisions of the Charter and the MPRDA

shall render the mining company in breach of the MPRDA ..." .

Therefore, if the holder must be in breach of both the Revised

Charter and the MPRDA before the right can be revoked, then this

provision would be more acceptable.

There are however a number of aspects to the Revised Charter

which we believe may inhibit deal-making within this sector.These aspects include:

* Deal participants will be required to engage with financiers

in order to determine the percentage of cash flow to be used

to service the funding of the structure and the amount to be

paid to BEE beneficiaries (barring any unfavourable market

conditions). There is therefore a requirement that a percentage

of cash flow must be paid to the BEE Shareholder prior to

finance having been repaid, thereby extending the funding

term and the financier's risk. This may result in financiers

being less enthusiastic to conclude BEE transactions.

* BEE beneficiaries are required to have full shareholder rights.

This may conflict with the Companies Act in certain deal

structures as a company can only issue shares that are fully

paid up and this may also limit structuring flexibility.

We include below a summary of the most important provisions

of the Revised Charter and, for comparative purposes, the

corresponding provisions of the 2002 Charter, the Declaration

and the Code.

Allan Reid, Director


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THE REVISED MINING CHARTER

* Dealt with in Item 1 of the

Revised Charter.

* Seeks to

(a) promote equitable access

to mineral resources;(b) substantially and

meaningfully expand

opportunities for HDSA

to enter and benefit from

the mining and minerals

industry;

(c) utilise and expand the

existing skills base for the

empowerment of HDSA

and to serve the

community;

(d) promote employment

and advance the social and

economic welfare of mine

communities and major

labour sending areas;

(e) promote beneficiation; and

(f) promote sustainable

development and growth

of the mining industry.

THE REVISED CHARTER

2010


2002 Charter.

* Includes empowerment,

transformation and the

promotion of beneficiation.No reference to competitiveness

and sustainability.

THE 2002 CHARTER

* Dealt with in Part 1 of the

Declaration.

* Objectives include to promote

investment, enhance

competitiveness, drivetransformation, remove barriers

to sustainable growth and

transformation and commit to

effective implementation

strategy.

THE STAKEHOLDERS

DECLARATION

The Revised Charter


How does it affect you? A comparative analysis

THE CODE OF GOOD

PRACTICE

* Dealt with in the Purpose

of the Code.

* Includes facilitation of the

implementation of broad

based socio-economicaspects of the 2002 Charter

to give effect to section

100 (1)(b) of the MPRDA.

The Declaration The 2002 Charter The Code

OBJECTIVES

* Dealt with in Item 2.1 of the

Revised Charter. While

HDSA ownership of 26%

remains unchanged and is

required to be achieved by

March 2015, a new definition

of HDSA has been introduced

which includes the phrase

"..which should be

representative of the

demographics of the country."

Precisely what is meant

by this phrase is not clear.

Does this entail that a

holder's HDSA participation

should include all

demographically representedgroups or, for example, that

* Dealt with under Item 4.7 of

the 2002 Charter. Provides for

2 ownership targets of 15%

within 5 years and 26% within

10 years of 1 May 2004.


Declaration.

* Minimum target of 26%

HDSA ownership by 2014.

Meaningful participation

includes that BEE transactions

will be concluded with clearly

identified beneficiaries (BEE

entrepreneurs, workers and

communities).

The Revised Charter

* Dealt with under Item 2.1 of

the Code.

* Requires 26% HDSA voting

rights by 2014 plus 26%

HDSA economic interest

(on a modified flow through

principle) by 2014 plus a

net HDSA value of 26% by

2014. Net value defined so

as to exclude value of interest

still burdened by loans after

2 years.

The Declaration The 2002 Charter The Code

OWNERSHIP

Continued over page


4/14


South African Chinese

persons, although being

classified as HDSAs, may not

exceed 2 or 3% of a holder's

HDSA grouping? Or is it a

mechanism intended to limit

the number of white women

which can be included for

HDSA purposes? The

intention here is unclear.

* Although the Revised

Charter does contain a

limited degree of flexibility

as regards ownership in thatit states that ownership shall

vest within agreed time-

frames "taking into account

market conditions", the

March 2015 date for

achievement of 26% HDSA

ownership is hard-coded.

There is no applicable

weighting to this criterion in

the scorecard. A holder will

either have met the target or

will have failed to do so.

* "Effective ownership" is

defined as "the meaningfulparticipation of HDSAs in

the ownership, voting rights,

economic interest and

management control of

mining companies".

* Requires a minimum target

of 26% "meaningful

economic participation"

(as defined)1and 26% full

shareholder rights for HDSA

by March 2015.

* The value of beneficiation,

as provided for by Section

26 of the MPRDA and

"elaborated in the mineral

beneficiation framework",

can be offset to a maximum

of 11% of ownership target.

* Continuing consequences of

all previous deals concluded

prior to 1 May 2004 can be

included in calculating such

credits/offsets in terms of

market share as measured by

attributable units of production.

* Barring unfavourable market

conditions, some cash-flow to

service the funding structure,

the remaining cash-flow to be

paid to the BEE beneficiaries.

* Ownership must vest within

agreed time-frames of the

BEE transactional structure

(taking into account the

prevailing market conditions).

* BEE participant shall have

full shareholder rights, eg

full participation at annualgeneral meetings and exercise

of voting rights, regardless of

legal form of instruments used.

The Revised Charter The Declaration The 2002 Charter The Code

1 Incudes key attributes such as (a) BEE beneficiaries must be clearly identifiable in the form of BEE entrepreneurs, workers (including ESOPs) and communities, (b) barring unfavourable conditions,a portion of cash flow should be used to service the funding structure and a portion should flow to the BEE partner, (c) BEE partner should have full shareholder rights, full participation at AGMs,

exercise of voting rights, regardless of legal f orm and (d) ownership should vest within time-frames, agreed with the BEE entity, taking into account market conditions.


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Revised Charter. These

targets are exclusive of

non-discretionary procurement

spend (expenditure that

cannot be influenced by a

mining company, such as

procurement from the public

sector and public enterprises).

These targets are high, given

that the exact manner in

which such procurement isto be measured is not clear.

There is, for example, no

inclusion of the measurement

provisions of the Code 500

which allows procurement

from certain BEE entities to

be measured at 120% of

procurement spend.

* While the ramp up over

five years is welcomed, the

ability of BEE entities to

supply requisite goodsand services of quality at

competitive prices in

accordance with demand is

questionable, given the

specialized nature of mining.

* BEE entity = entity with

25% + 1 vote of share capital

owned by HDSAs under

flow-through principle.

* Procure a minimum of 40%

of capital goods from BEEentities by March 2015

(Scorecard requires 5% by

March 2011, 10% by March

2012, 20% by March 2013,

30% by March 2014 and

40% by March 2015).

* Procure 70% of services from

BEE entities by March 2015



2012, 25% by March 2013,

40% by March 2014 and50% by March 2015).

* Dealt with in Part 11 of

the Declaration.

* Promotes adherence to

fundamental principles of

enterprise development,

irrespective of mining

companies' turn-over; agrees

to develop mechanisms for

multi-national suppliers of

capital goods to the mining

industry to contribute towards

social development.

* No targets set.

* Dealt with in Item 4.6 of

the 2002 Charter.

* Companies undertake to give

HDSAs preferred supplier

status; commit to a

progression of procurement

over 3 - 5 year time-frame;

no specific targets set.


the Code.

* Establishes preferential

score-card of purchasers of

goods and services from

BEE compliant suppliers.

* Score-card requires, within a

6 - 10 year target, 30% BEE

procurement spend for capital

goods; 70% BEE procurement

spend on services; 30%procurement spend on

consumables; 20% procurement

spend from local SMME's and

20% procurement spend from

suppliers that are more than

50% black owned or suppliers

that are more than 30% black

woman owned.


PROCUREMENT AND ENTERPRISE DEVELOPMENT

Continued over page


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Revised Charter. The only

off-set allowed against the

ownership target is that for

beneficiation, to a maximum

of 11%. Whilst this is to be

welcomed, the entire issue

of beneficiation remains

somewhat clouded. The

Charter refers to the "mineral

beneficiation framework".

This was not mentioned in

the Minister's speech or, as

far as we can ascertain,

anywhere else. We believe

that this may be a framework


Declaration.

* Records the stakeholder

agreement to support local

beneficiation, consider

establishing a national

beneficiation agency, procure

the support of international

partners to facilitate skills and

technology transfer for local

beneficiation.

* No targets reflected.


2002 Charter through general

statements.

* No targets set.

* Allows for beneficiation

off-sets against HDSA

ownership commitments

without details as to how this

is to be achieved.

* Set a compliance target of

42% of annual production

measured from the refined stage.


BENEFICIATION


* Procure 50% of consumergoods from BEE entities by

March 2015 (Scorecard

requires 30% by March 2011,

40% by March 2012, 50%

by March 2013, 60% by

March 2014 and 70% by

March 2015).

* In addition, "multinational

suppliers" must contribute

0.5% of procurement spend

by SA mining companies to

a "social development fund."

Precisely what this fund is,

who will benefit therefrom

and who will administer this

fund remains to be clarified.

The weighting of this item is

3% in the mining company's

scorecard, yet it is the

supplier who must make this

contribution, not the mining

company. How then can the

mining company meet its

obligations and what will

the position be where no

procurement is made from

such multinational suppliers?

One fears that the mining

company will merely have

to lose the 3% from its

scorecard.


Continued over page


7/14


Declaration.

* Stakeholders undertake to

create an environment to

promote and encourage

diversity to retain an increase

of requisite skills.

* Minimum target of 40% by

2014 in all of top management

(board); senior management

(EXCO); core and critical

skills; middle management,

and junior management.


2002 Charter.

* Companies to aspire to 40%

HDSA participation in

management within 5 years;

companies to focus overseas

placement and/or training

programmes on HDSA's.

* Identification of talent pool

and fast tracking and ensuring

inclusiveness and

advancement of woman.

* No measurement of

management control.

* Dealt with in Items 2.2 and

2.3 of the Code.

* Provides management control

score card in respect of board

participation and 40%

representivity of HDSA's

on executive committee.

* Also provides employment

equity score card requiring

compliance target of 40%

in top management, senior

management, middle

management, junior

management and woman

in mining (10%).


EMPLOYMENT EQUITY


Revised Charter.

* By March 2015, achieve a

minimum of 40% HDSA

demographic representation

at each of executive

management (board) level

and senior management

(EXCO) level (Scorecard

requires both levels at 20%

by March 2011, 25% by


2013, 35% by March 2014

and 40% by March 2015),

middle management level



2012 and 40% by March

2013), junior management

level (40% by March 2011

and beyond) and core and

critical skills (Scorecard

requires 15% by March

to replace the long-awaited

Beneficiation Bill which

never saw the light of day

and which has been

scrapped. The entire

mechanism in terms whereof

beneficiation is to be

measured and calculated

requires urgent clarification.

In addition, companies which

already undertake

beneficiation may be

prejudiced in that the

measurement for this item isthe "additional production

volume contributory to local

value addition beyond the

base-line". If a company

already has a high base-line

and is already beneficiating

most of its product in South

Africa, it may be difficult to

achieve significant additional

production volumes of

beneficiation.

* "Beneficiation" is defined as

the transformation of a

mineral (or a combination of

minerals) to a higher value

product, which can either be

consumed locally or exported.

The term is often used

interchangeably with "mineral

value-addition" or

"downstream beneficiation."

* Mining companies may off-

set the value of the level of

beneficiation achieved by thecompany against a portion of its

HDSA ownership requirements

not exceeding 11%.

* Compliance target is any

additional production volume

of local value addition over

and above the base-line.

Determination is unclear.

"Mineral beneficiation

framework" is awaited.



Continued over page


8/14



Declaration.

* Provides for the conduct of at

least two skills audits by 2014

and assessment of institutional

and organisational absorptive

capacity by December 2010.

* Invest an incremental

percentage of annual payroll

in skills development

activities from 3% in 2010

to 5% in 2014.

* Ensure effective spend of

mandatory skills levy.

* Dealt with by Item 4.1 of the

2002 Charter.

* Provides for education,

training and scholarships to

up-skill HDSA employees to

provide HDSA employees

with skills required by themining industry.


the Code.

* Provides for measurement

through the score card,

through a 100% compliance

of skills development

expenditure, learningprogrammes and functionally

literate and numerate

programmes.


HUMAN RESOURCE DEVELOPMENT


Revised Charter.

* Invest a percentage of annual

payroll (Scorecard requires

3% by March 2011, 3.5% by


2013, 4.5% by March 2014and 5% by March 2015); in

essential skills development

activities reflective of the

demographics, but excluding

the mandatory skills levy,

including support for South

African based research and

development initiatives

intended to develop solutions

in exploration, mining,

processing, technology

efficiency (energy and water

use in mining), beneficiation

as well as environmental

conservation and rehabilitation.

* Weighting very high at 25%.


2011, 20% by March 2012,

30% by March 2013, 35%

by March 2014 and 40% by

March 2015).

* However, each level has its

own weighting. Many

companies, particularly

junior miners and prospecting

companies, have only two of

these levels, alternatively the

distinction between levels is

blurred. How the scorecard

will affect such companies is

unclear. Also, there is no

indication as to what is meant

by "core and critical skills"

or whether "demographic

representation" must be also

be applied within each level.

These aspects too require

clarification.

* In addition, existing talent

pools mining companies

must be identified and

fast-tracked to ensure high

level operational exposure

in terms of career path

programmes.


9/14


Declaration.

* Provides for developing

guidelines and adherence to

community consultation

processes.

* Intention to develop a

partnership approach towards

mine community and major

labour-sending areas,

development and considerregional (social) developments

funds for effective

implementation of social and

labour plans.

* Implement and monitor social

labour plan undertakings.


2002 Charter.

* Stakeholders undertake to co-

operate in the formulation of

integrated development plans

for communities where

mining takes place and for

major labour-sending areas,

with special emphasis on

development of infrastructure.


the Code.

* Creates target of 1% of net

profit after tax to develop

mine community and rural

development elements.


MINE COMMUNITY DEVELOPMENT


Revised Charter.

* Must invest in ethnographic

community consultative and

collaborative processes

consistent with international

best practices in terms of

rules of engagement and

guidelines prior to the

implementation/development

of mining projects.

* Must conduct an assessment

to determine the developmental

needs in collaboration with

mining community

development in line with

IDP's, the cost of which

should be proportionate to

the size of the investment.

* Projects will be fully detailed

in mine's social and labour

plan following consultation,

assessment and implementation.

* Scorecard compliance = up-to-date project implementation,

scored heavily at 15%.



the Declaration.

* Attain occupancy rate of

1 person per room by 2014.

* Upgrade or convert hostelsinto family units by 2014.

* Promote home ownership

options and provide balanced

nutrition.


2002 Charter.

* Establishes measures for

improving housing, including

upgrade of hostels,

conversion of hostels to

family units and promotion

of home ownership options;

establishes measures for

improving nutrition of mine

employees.

* Dealt with under Item 2.8

of the Code.

* Establishes a score card which

does not reflect the general

principles.

* Deals with upgrading housing

and equitable and sustainable

proper nutrition, food and

water.

* 100% of all hostels to be

upgraded to single

accommodation and/or

converted into housing units

by 2014.


HOUSING AND LIVING CONDITIONS


the Revised Charter.

* Convert or upgrade all

hostels into family units by

March 2015.

* Attain the occupancy rate of

one person per room by

March 2015.

* Both require compliance

(from base-line at March

2011) of 25% by March

2012, 50% by March 2013,


100% by March 2015).

* Facilitate home ownership

options for all mine

employees in consultation

with organised labour by2014. (Not scored).


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the Declaration.

* Declares intention to develop

regional approaches to

environmental impacts,

particularly acid mine

drainage.

* Research on mine closure and

mining legacies, establish a

task team to accelerate

prospecting investment, adoptan integrated development

approach through pooling of

resources, work towards a

"Mining Vision 2030."

* Not dealt with in the

2002 Charter.

* Not dealt with in the Code.


SUSTAINABLE DEVELOPMENT AND GROWTH OF THE MINING INDUSTRY


Revised Charter.

* Sustainable development

defined as the integration

of social, economic and

environmental factors into

planning, implementation

and decision-making to

ensure that the mineral

resources development serves

present and future generations.

* Mining company must

implement elements of

sustainable development

commitments included in the

"Stakeholders' Declaration on

Strategy for the sustainable

growth and meaningful

transformation of South

Africa's Mining Industry

of 30 June 2010 and in

compliance with all relevant

legislation", as follows:

* Improvement of the industry'senvironmental management

by:

implementing

environmental management

systems that focus on

continuous improvement

to review, prevent, mitigate

adverse environmental

impact;

undertake continuous

rehabilitation on land

disturbed or occupied

by mining operations in

accordance with appropriate

regulatory commitments;

provide for the safe storage

and disposal of residual

waste and process residues;

design and plan all

operations so that adequate

resources are available to

meet the closure

requirements of all

operations. (The above being

scored by progress achieved

against approved EMPs.Weighting 12%).


Continued over page


11/14


* Improvement of the industry'shealth and safety performance

by:

implementing a

management system

focused on continuous

improvement of all aspects

of operations that have a

significant impact on the

health and safety of

employees, contractors and

communities where mining

takes place;

providing all employees

with health and safety

training and require

employees of contractors

to have undergone such

training;

implement regular health

surveillance and risk-based

monitoring of employees.

(the above being scored by

progress achieved against

commitments "in the

tripartite action plan

on health and safety."

(Weighting 12%).

* Stakeholders undertake to

enhance the capacity and

skills in relevant South

African research and

development facilities in

order to ensure quality,

quick turn around, cost

effectiveness and integrity of

such facilities. To this extent,

mining companies are

required to utilise SouthAfrican based facilities for

the analysis of samples across

the mining value chain.

(The above being scored by

"percentage of samples in

SA facilities". Base-line

established at March 2011.

Thereafter 25% by March

2012, 50% by March 2013,


100% by March 2015).



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Declaration.

* Confirms adherence to

effective implementation of

agreed strategy.

* Comply with annual progress

reporting requirements.

* Monitor and take into account

the impact of constraints

beyond the stakeholder's

control which may result in

not achieving set targets.


2002 Charter.

* Companies undertake to

report on an annual basis.

* Stakeholders agree to

participation in annual forums

for monitoring implementation,

developing new strategies,

government/industry

interaction; developing

strategies for intervention;exchanging experiences,

problems and solutions.

* Arriving at joint decisions;

reviewing the 2002 Charter.

* Monitoring and evaluation of

the various items under the

Code is done through the

Code score-cards.


REPORTING (MONITORING AND EVALUATION)


Revised Charter.

* Revised score-card is

applicable.

* Must report level of

compliance with the Revised

Charter annually, as provided

for by Section 28(2)(c) of the

MPRDA in accordance with

Reporting Template.

* DMR shall monitor and

evaluate, taking into account

the impact of material

constraints which may result

in not achieving set targets.



the Declaration.

* Reflects stakeholder

agreement to strengthen

MPRDA architecture to

improve efficiency and

effectiveness by 2011.

* Strengthen enforcement,

monitoring and evaluation.

* Streamline administrative

processes and eliminateinconsistent application of

regulatory frame-work.

* Harmonise with other related

legislation; finalise 2002

Charter review by August

2010; explore single authority

for environmental regulation;

transparent compliance; and

message the positive regulatory

framework to promote South

Africa as an investment

destination.

* Dealt with under Item 4.13

of the 2002 Charter.

* Merely states that the

regulatory frame-work and

industry agreements shall

strive to facilitate the objects

of the 2002 Charter.

* Not dealt with under the Code.


NON COMPLIANCE


Revised Charter.

* Non-compliance with the

provisions of the Charter and

the MPRDA shall render the

mining company in breach of

the MPRDA and subject to

the provisions of Section 47

read in conjunction with

Sections 98 and 99 of the Act.

(This provision could be open

to legal challenge as

unconstitutional. Also flauntsthe consensual nature of the

Declaration).


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the Declaration.

* Stakeholder agreement to

assess current research and

development, resuscitate

and research development

culture in the mining

industry, and strengthen

partnerships with research

institutions.


2002 Charter.



INNOVATION

* Not dealt with in the Revised

Charter except as an adjunct

to Human Resource

Development.



Declaration.

* Provides for the identification,

evaluation and engagement

with national stakeholdersregarding critical infrastructure

such as rail, ports, electricity

and water supply.


2002 Charter.



INFRASTRUCTURE


Revised Charter.


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Mondo Ntlha

DirectorNational Practice Head:CompetitionT +27 (0)11 290 7128E [email protected]

Joz CoetzerDirectorNational Practice Head:Finance, Projects and BankingT +27 (0)11 290 7109E [email protected]

Terry Winstanley

DirectorNational Practice Head:

EnvironmentalT +27 (0)21 481 6332E [email protected]

Charles Ancer

DirectorCorporate and CommercialT +27 (0)11 286 1313E [email protected]

Banzi Malinga

DirectorCorporate and CommercialT +27 (0)11 286 1192E [email protected]

Willem JacobsDirectorCorporate and CommercialT +27 (0)11 290 7125E [email protected]

Allan Reid

DirectorCorporate and Commercial

Sector Head: Mining and MineralsT +27 (0)11 290 7171E [email protected]

the revised mining charter

Documents