South Africa’s contentious
Mineral and Petroleum
Resources Development Act
(MPRDA) will in all probability
land up in court.
This after years of being
sent back and forth along
Parliament’s
legislative
pipeline.
According to Lizel
Oberholzer, director at Norton
Rose Fulbright South Africa,
the MPRDA was sent back to
Parliament in January 2015
by the president as it was
procedurally flawed – and he
also had substantive concerns
about the bill.
“Essentially it was felt
that it had not followed a
proper public consultation
process and that it might be
incompatible with certain
trade agreements.”
Oberholzer said for the
past two years a lengthy
public consultation process
had been followed, with
the last meetings and
negotiations scheduled
for October this year after
which the bill goes back
to the national assembly
for a final decision and
then to the president for
promulgation.
“We don’t foresee this
happening until next
year,” she said.
Commenting on whether
this indicated an end to the
contentious bill which has
introduced real uncertainty
into South Africa’s mining
sector, Oberholzer said it was
far from over, predicting that
the bill was headed for court.
“The Department of Mineral
Resources (DMR) has proposed
a host of amendments to the
bill but the rules of parliament
state that they can only make
changes on those issues
highlighted by the president
when he sent it back,” she said.
According to Oberholzer
there are several scenarios that
can now play out and just about
all of them end with litigation.
“Option one sees all of
the proposed amendments
incorporated into the bill. This
could see a legal challenge
brought against the entire bill,
the additional amendments and
the public participation process
followed,” she said. “Option
two sees them incorporating
only amendments raised in the
public participation process and
includes amendments already
made legally under Operation
Phakisa – excluding the DMR’s
changes. But this could still see
the bill challenged in court.”
The third
option,
where no
amendments
are
incorporated,
will
undoubtedly
end up in
court and
could even
see the bill
scrapped
completely
with it all
having to start
from scratch. Oberholzer said
this scenario was not likely to
play out.
“The fourth option is exactly
that – to scratch the bill as
it currently stands and start
afresh, but should we do this
then there is no doubt that
opportunity in the oil and gas
sector will pass South Africa
by completely.”
Oberholzer said depending
on what the parliamentary
committee decided, the
president – on
receiving the
bill – still had
the option to
refer it to the
Constitutional
Court.
“I think
the consensus
is that the
MPRDA in its
current form is
headed for the
Constitutional
Court. If that
is the case it
will be over as the court is
renowned for getting to the
heart of matters,” she said. “If
the president passes this bill I
don’t see any way of preventing
legal challenges. It will be
taken to court.”
There are several
scenarios that can
now play out and just
about all of them end
with litigation.
– Lizel Oberholzer
