Get more Mail & Guardian
Subscribe or Login

Court grants declaratory order on ‘once empowered always empowered’ BEE transactions

A High Court has granted a declaratory order on the “once empowered always empowered” rule for BEE ownership transactions related to the mining industry.

The order was made on Wednesday afternoon – the matter was heard in November 2017 by a full bench of judges at the North Gauteng High Court which included Judge Peter Mabuza, Judge Tina Siwendu and Judge Frans Barrie.

The respondents, the Department of Mineral Resources (DMR) and the deputy director general will have to cover the costs of the application.

The applicant, the Chamber of Mines, had disputed a provision in the 2017 Mining Charter which required holders of mining rights to top up black ownership of its mines to 30% if ownership fell below the level.

This meant that if a BEE partner had exited a partnership or if shares were sold to someone who was not historically disadvantaged then the mining company would have to top up the BEE ownership level back to 30% within a 12-month period.

READ MORE: Mantashe takes on mining laws

The Chamber’s legal counsel argued that the top up provision is unconstitutional as it is vague and uncertain and would steer away investment.

The declaratory order recognises the continuing consequences of previous BEE ownership transactions, the Chamber said in a statement.

“The Chamber notes and accepts the High Court judgment. The Chamber is engaged in meaningful processes with other stakeholders, including the DMR, to shape and develop a new Mining Charter that all stakeholders can support and defend,”said Chamber president Mxolisi Mgojo.

“This new Charter needs to help the mining sector to achieve stability, competitiveness, transformation and growth, and to ultimately enable the sector to realise its true economic and transformational potential.”

READ MORE: Mining ends Gwede’s mantashing

Various stakeholders are re-engaging to finalise the Charter. New Mineral Resources Minister Gwede Mantashe hopes to finalise the Charter in three months.

President Cyril Ramaphosa has also committed to ending the impasse on the Charter during his State of the Nation Address in February. He told Parliament in March that the new Charter should benefit South Africans and not a select few.

He was hopeful that an agreement on the Charter could be reached within the three-month timeline. Mantashe has been engaging with various stakeholders to address the matter. – Fin24

Subscribe for R500/year

Thanks for enjoying the Mail & Guardian, we’re proud of our 36 year history, throughout which we have delivered to readers the most important, unbiased stories in South Africa. Good journalism costs, though, and right from our very first edition we’ve relied on reader subscriptions to protect our independence.

Digital subscribers get access to all of our award-winning journalism, including premium features, as well as exclusive events, newsletters, webinars and the cryptic crossword. Click here to find out how to join them and get a 57% discount in your first year.

Lameez Omarjee
Lameez Omarjee
Parliamentary reporter at

Related stories


If you’re reading this, you clearly have great taste

If you haven’t already, you can subscribe to the Mail & Guardian for less than the cost of a cup of coffee a week, and get more great reads.

Already a subscriber? Sign in here


Subscribers only

Zondo may miss chief justice cut

The deputy chief justice is said to top Ramaphosa’s list but his position as head of the state capture commission is seen as too politically fraught

Government fails to act on officials implicated in R3bn SIU...

Half of the 127 managers incriminated in gross procurement corruption have yet to be disciplined

More top stories

‘The Making of Mount Edgecombe’: A view of history from...

Indian indentured labourers’ lives are celebrated in a new book, Sugar Mill Barracks: The Making of Mount Edgecombe

Case of men arrested with 19 rhino horns is postponed

Alleged rhino kingpin and a Mpumalanga businessman appeared in court on charges of the illegal possession and selling of rhino horns

Zuma’s rescission application dismissed with costs

Former president Jacob Zuma fails to meet requirements in his application to set aside his contempt order and prison sentence

Plastic pollution in 2019 cost South Africa staggering R885bn

Yet plans are underway to import more plastic waste into the country and it has not signed global plastics treaty

press releases

Loading latest Press Releases…