12 December 2011

RECOMMENDATIONS ON THE REVISED MINING CHARTER (PER ORGANISATION)

CHAMBER OF MINES OF SOUTH AFRICA
•	“The revised Charter must be given opportunity to show results.”
•	“The mining companies need rapid feedback from the DMR.”
•	“A guidance document needs to be developed through consultation.”
•	“Where sectors interact, there should be alignment (e.g. BBBEE Code and procurement).”
•	“Independent verification is required.”

BLACK MANAGEMENT FORUM
•	“South Africa must adopt the hybrid investments strategy, in line with the economic value-adding model, in that the state-owned mining company should be established to co-exist with the existing mining companies.”
•	“The Council for Geoscience (CGS) needs to be mandated and adequately resourced to execute the task of classifying the geological terrains into the known, partially known and unknown resources.”
•	“Known and unencumbered terrains could be transferred to a State owned mining company to pursue expanded industrialisation in partnerships with Black Management Forum (BMF) investment vehicle and other emerging black entrepreneurship associations.”
•	“Consideration should also be given to transferring all state “known” and “partially-known” (but un-concessioned) mineral properties to the State-owned mining company, to be developed, possibly in partnership with the CGS, for on-concession (auction), once the resource degree of confidence is adequate, with the residual State-owned Mining share being a biddable variable with preference given to Broad Based Black Economic Empowerment Companies.”
•	“Existing mines to be aligned with the revised mining charter.”
•	“Coal, Uranium and other energy resources are strategic for security of energy supply and therefore should be reversed to be optimally exploited by the State-Owned Mining Company.”
•	“The 26 per cent equity ownership by 2014 must be treated as non-negotiable.”
•	“A new equity ownership thresh-hold of 52 per cent for Broad Based Black Economic Empowered Companies to be set from 2014 onwards.”
•	“Funding for new mining ventures is very capital intensive (exploration, prospecting, mining establishment etc.) and a dedicated mining fund must be established as a matter of urgency to assist Broad Based Black Economic Empowered Companies through the Industrial Development Corporation or via the DMR and a target much higher than the current R100million must be set if we truly want to transform this industry.”
•	“The same approach should apply to beneficiation which is very capital intensive.”
•	“A set target of 40 per cent Preferential Procurement spending on the total procurement budget must be introduced.”
•	“Much as the current mining charter talks about monitoring etc., very little have been done and no enforcement of transforming the mining industry took place. It is therefore important that the revised mining charter must be legislated more aggressively with pre-set enforceable goals in order to transform this industry effectively.”

BUSINESS UNITY SOUTH AFRICA (BUSA)
•	“Mining is a long-lead time industry on investment decisions - rules should be given a good chance and enough time for implementation to have an impact before being changed. Rules should be consistent.”

SOUTH AFRICAN MINING DEVELOPMENT ASSOCIATION (SAMDA)
Definitions:
•	“Broad-Based Socio-Economic Empowerment” should read as follows: 
“Broad-Based Socio-Economic Empowerment” means a socio-economic strategy, plan, principle, approach or act, which is aimed at: Redressing the result of past or present discrimination based on race, sex and disability in the minerals and petroleum industry, related industries and in the value chain of such industries; and of Black People in proportion to the racial demographics of such Black People in the Republic of South Africa.” 

•	“Black People” to read as follows: 
“Black People” means African, Coloured or Indian persons who are natural persons, and –citizens of the Republic of South Africa by birth or descent; or 
o	Are citizens of the Republic of South Africa by naturalisation before the commencement date of the Constitution of the Republic of South Africa Act No. 200 of 1993; or
o	Became citizens of the Republic of South Africa after the commencement date of the Constitution of the Republic of South Africa Act No. 200 of 1993, but who, for Apartheid policy would have been entitled to acquire citizenship by naturalisation prior to that date.
o	It was suggested that the following definition be included:
“BEE Entity” means an entity of which the majority of such entity’s issued share capital is directly or indirectly owned by Black People, as measured in accordance with the Flow-through Principle.
o	“Effective ownership”
•	Reference to HDSA be replaced by the word “Black People” as defined above.
•	“Ownership” should be defined to mean Net (Equity) = Unencumbered Net Value and or Unencumbered Ownership.
Ownership
•	The last paragraph of the ownership element, which reads, “The continuing consequences of all previous deals concluded prior to the promulgation of the Mineral and Petroleum Resources Development Act, 28 of 2002 would be included in calculating such credits/offsets in terms of market share as measured by attributable units of production”, should be removed. The reason is that this is equivalent to “Once empowered, always empowered”. E.g. Companies that concluded deals prior to the promulgation of the MPRDA are absolved from engaging further empowerment transactions.
Employment Equity
•	The 40 per cent target should be revised and new targets for black people, black women and black disabled employees should be set. These targets should be in line with the economically active population targets, as this will avoid over-representation.
•	The industry should dispense with HDSA targets as the definition of HDSA includes white women, Chinese people and Korean people.
•	The Charter must introduce specific interventions to increase the representation of women and in particular black women, in management and the industry at large.
Employee Share Ownership Schemes (ESOP)
ESOPs should not be short term schemes and should exist throughout the life of mine.
Procurement and Enterprise Development
There should be a procurement verification agency that will audit all procurement activities. The DTI, DMR, organised labour, organised business and rural communities should work towards creating a procurement agency.
Beneficiation
A beneficiation council consisting of the DTI, DMR, organised labour, organised business, Mintek and CSIR should be established to develop a mineral beneficiation strategy and to monitor the implementation and adherence to the beneficiation policies in the industry.
Enforcement
•	All monitoring and evaluation submissions and proofs must be co-signed with labour.
•	There must be a review of the verification certificates to avoid manipulation by verification agents.
Draft Score Card
All progress set for each year must run concurrently as follows
•	2010 progress achieved in March 2010 and not March 2011
•	2011 progress achieved in March 2011 and not March 2012

COSATU
Ownership
Greater emphasis must be placed on the broader-based elements of the transformation of the sector as a whole. Therefore, there is a need for a process to discuss how this may be realised to ensure that benefits are actually enjoyed more broadly, including through the use of more social forms of ownership.
Procurement and Enterprise Development
The interpretation and application of the provisions on procurement and enterprise development should be refined in order to promote the growth of local manufacturers and content, and thereby the creation of decent and sustainable employment. This should be distinguished from merely preferring procurement from local suppliers who simply supply imported goods. The principle of local production should have preference over narrow BEE. Empowerment should be implemented throughout the value chain.

Promotion of employment creation and transfer of skills specifically for the communities directly affected by mining operations, since economic activities in these locations tend to be fewer.
Beneficiation
This provision should be refined to distinguish those industries that are involved in the higher levels of beneficiation, especially the development of finished capital and consumer goods as well as strategic intermediate products that are vital as inputs for other local industries.
Employment Equity and Human Resource Development
More emphasis should be placed on the provision of educational opportunities and transfer of skills to ordinary workers employed at lower income scales. This should include for example greater emphasis on ABET.
Mine Community Development
There is a need to enforce delivery of undertakings to invest in specific identified projects.
There is a need to ensure that sustainable and decent employment is created that is not entirely dependent on the life of a mine.
Migrant Labour
In view of the hardships experienced by foreign migrant workers and xenophobia that is exacerbated by high levels of unemployment, it is recommended that this element be included in the revised Charter.

NATIONAL UNION OF MINE WORKERS (NUM)
Beneficiation
•	Beneficiation should be dealt with concurrently with the amendments of the MPRDA and the Mineral Beneficiation Strategy.
•	Introduction of Minerals Beneficiation Commission to be under DTI and composing the following stakeholders: DHE, DMR. Mintek, CSIR, DTI, DST, Organised Business and Organised Labour in Mining. This Commission must be charged with the responsibility of developing Mineral Beneficiation strategies and ensuring focus on Mineral Beneficiation.
•	During amendments to MPRDA, consideration be made on possibilities of including penalty for failure to beneficiate minerals as per the mineral beneficiation strategy and imposition of extra tax on raw material exportation, this be included at section 99 of MPRDA.
Employment Equity
White women should not be beneficiaries of Employment Equity but could be beneficiaries only on employment of women underground.
Human Resource Development
Functional literacy
•	“Functional literacy should be engaged in line with the millennium development goals of the United Nations.”
•	“Parliament must call for companies to have focused and worker participatory process on Adult Basic Education and Training.”
•	“Whilst focusing on ABE, Companies must be compelled to have clear plans for training and development.”
•	“Life skills should be an integral part of ABET.”
•	“Parliament must insist that fighting illiteracy should not be compromised by productivity.”
Career Path
•	“Career plans and personal development plans should be developed for all the employees and not only for management.”
•	“Recognition of prior learning should remain an integral component of the industry career path approach.”
•	“The implied notion of blasting ticket and Onsetters’ ticket being the only career fields for black mineworker should be rejected by Parliament.”
•	“Parliament should call for the availability of bursaries for both mineworkers and their beneficiaries on the basis of career choices of the workers and their bursaries, and the release for full time study purpose of the employed workers without pay but with retention of their employment status.”
Mentoring of groups/individuals targeted for empowerment
•	Ensure that such groups/individuals are allocated mentors and deployed for practical work under supervision by mentors. “Mentoring should be combined with understudy in areas of transformation priorities.”
Sustainable Development and Growth of the Mining Industry
The industry needs a comprehensive approach that must outline, but not limited to, the following:
•	Growth, redistribution and employment
•	Ownership models and funding
•	Health, safety and environment
•	Role of mining in the economy through Growth Path, IPAP 2 and Industrial Strategy
•	Competitiveness
Mine Community Development
•	Parliament must consider mandating both DMR and the Department of Cooperative Government and Traditional Affairs (COGTA) on development of Mining Community Investment Policy.
•	TEBA Development Trust and MDA should be merged to form a new entity defined by legislation and given the mandate to engage on development of labour sending areas with specific purpose of business development, infrastructure development and special development needs for permanently disabled mineworkers. The new entity should be used as a Special Purpose Vehicle for labour sending communities.
•	Parliament must mandate DMR, in consultation with COGTA, to develop guidelines and approaches to govern the ethnographic community consultative and collaborative process prior to implementation of mining projects.
•	Parliament must mandate the Minister in DMR, in consultation with the ministers of Rural Development and COGTA, to develop guidelines and approaches to govern both the involvement of the mining industry in Municipalities’ IDP process and budget contribution. This must explore possibilities of recognising both Private-Public Partnerships and Private-Private Partnerships.
Ownership
Parliament should mandate the BEE Council and DTI to develop a common formula to be used when assessing ownership in the mining industry and that all parties involved should be compelled to use the same formula.
Housing and Living Conditions
Whilst encouraging companies to have home ownership programmes negotiated with Unions, Parliament has to discourage any attempt on the side of the employers to enter into this venture as a means of alternative income. This remains the social responsibility of companies towards their employees.

SOLIDARITY
Ownership
•	“Learn from the past”
•	“Ownership should not be controversial”
•	“Owners should have a vested interest in growth and development of the mining industry.
•	“BEE transactions shall be concluded with clearly identifiable beneficiaries in the form of BEE entrepreneurs, workers (including ESOPs) and communities.”
•	“Free shares and profit share, rather than loan shares.”
•	“Increase employee shareholding to five per cent.”
•	Penalise companies who fail to implement ESOPs, or sustainable ESOPs.
Procurement
•	“Procure 70 per cent of services and 50 per cent of consumer goods from BEE entities by 2014.”
•	“Utilise service providers and contractors for sustainable empowerment.”
•	Service providers to be earmarked as empowerment partners:
o	Catering
o	Cleaning
o	Maintenance
o	Gardening
o	Security
o	Facility management
•	Tender requirements for service providers:
o	Recruitment-local and retrenched mineworkers
o	Decent employment conditions and benefits
o	Development and learnership programmes
o	Management mentorship programme
o	Joint venture partnership
Beneficiation
•	Develop local expertise
•	“Establish a Beneficiation Agency”
Employment Equity
•	“Mining transformation CODESA”
•	“Focus on core and critical skills”
•	“Attract, develop and retain skills”
•	“Mentorship and career path programmes-Health and Safety development plan to safety officer.”
HR Development
•	“Link up with National Growth Path”
•	“Massive intervention required in FETs and technical training to achieve targets.”
Mine Community Development
•	“Portable skills for mine employees-SLP”
•	“Empowerment and skills development focus in local communities.”
•	Employment and empowerment by service providers and contractors.”
Reporting
•	“Remain on MIGDETT agenda: Established stakeholder forum, history of constructive robust debates, prevent media stand-off”
•	“MIGDETT to become a statutory advisory body under MPRDA”

JROCHA CONSULTING SERVICES (PTY) LTD
Preamble
“The preamble to the amended Mining Charter is drafted in style akin to “introduction and background” and not in the style that it accepted and understood in legislative drafting as preamble. The preamble to the original Mining Charter adheres fully to the drafting style of preambles.”
Mission
“The mission statement should be a clear and succinct representation of the amended Mining Charter’s purpose for existence. It should incorporate meaningful and measurable criteria.”
Definitions
“Broad-based socio-economic empowerment (BBSEE), EMP, Community, Demographics, labour sending areas, Mining Charter, shareholder, stakeholder, sustainable development. These are repetition of the definitions contained in the MPRDA. There is no need to repeat them in the Mining Charter. The Charter exists because of the MPRDA.”
Ownership
“It is imperative that the DMR develops a reliable system which allows for the simple and quick evaluation and analysis of the ownership data for the minerals and mining sector.”
Employment Equity
“DMR should develop a database on EE, BEE etc.”
Housing and Living Conditions
“It is therefore, critical that the targets contained in the amended Mining Charter are incorporated in the respective Social and Labour Plans.”
Sustainable Development and Growth of the Mining Industry
“This section should be re-incorporated into the Stakeholders declaration on Strategy for Sustainable growth and meaningful transformation of South Africa’s Mining Industry.”
Reporting
“Although the MPRDA regulations do not prescribe the period within which holders must submit the required Mining Charter and Social and Labour Plan Reports, it is only logical that such reports should be submit[ted] by or on the anniversary dates of the rights concerned.”

BRAVURA CONSULTING
Ownership
•	“BEE deals should apply only to employee schemes, communities, and actual producing entrepreneurs, who intend to mine or work in the industry in order to ensure that BEE benefits are not limited to the select, already wealthy, few.”
•	“Financing structures that lead to real cash flow benefits should be promoted. These include internal and external leveraged models where no funding is required on the part of the BEE partner and sustainable value is created.”
Procurement and Enterprise Development
•	“In order to achieve the objectives in a sustainable way, the Charter should require a contribution to broad based BEE from mining sector suppliers, which looks at more than just ownership. HDSA ownership does not ensure that the true cornerstone of transformation are being undertaken, namely job creation, skills development, business development and social development.”
•	“More clarification should be made with respect to enterprise development and how this is to occur. The Charter should stipulate that each mining company set up its own social fund for enterprise development, and manage it on behalf of their international suppliers, with their input and participation. This will help with implementation and impact as well as provide for ease of measurement. The fund should be used for local supplier development and skills development in local communities, thus facilitating actual enterprise development as well as leading to positive impacts in terms of future local procurement requirements. This type of strategy is inherently sustainable as it also carries a strong business case that ensures all sides benefit maximally.”
Beneficiation
•	“This element should be divorced from the Charter and a holistic, nationwide strategy should be agreed on by government, the mining industry and other key stakeholders to ensure that beneficiation is done properly and in a way that will create the maximum possible value addition and economic benefit.”
Mine Community development
•	“Although mines should consider national development objectives when creating SLPs, they should be created mainly through a consultative process between mining companies and the communities (and employees) in question, with the communities themselves driving and guiding this process.”
Employment Equity and HR Development
•	“The demographic requirements should be more realistically defined, especially as concerns the percentage of women in the sector being set closer to the world-wide standard.”
Reporting
•	“External bodies for verification of annual reports should be created, or bodies existing in the BEE industry should be used. These verification agents would help create a more standardised approach as well as take some of the pressure off [of] the DMR.”
Sustainable Development and Growth of the Mining Industry
•	“This element provides a high value creation opportunity for the mining industry to incorporate all the different elements of its operations in a holistic way, including environmental and socio-economic aspects. Holistic strategies should be encouraged.”
[Non]-Compliance
•	“It is not entirely clear what is meant by non-compliance – specifically if a score of over 50% or over 75% is required. Given the especially heavy potential consequences for mining companies it would be good to clearly state what constitutes compliance, since it would be legally difficult to revoke these without this.”
Definitions
•	“Some terms are not defined while others are either vaguely or problematically defined leading to confusion. The revised Charter should clarify all possible sources of confusion in order to ensure real transformation occurs.”

BELL DEWAR
Definitions
•	“…the revised definition of HDSA be further amended to indicate which demographic factors stakeholders will be required to take into account when meeting their obligations under the Revised Charter.”
•	“Clarity is … needed with regards to the geographic demographics which the Department intends using in its application of the demographic requirement.”

METSANA MINING
•	“Nationalise all mining operations so that Government[s] should have a share in mines and monitor any wrong doing by [but] the existing mining companies.”
•	“Issue mining licenses to companies with proper financial records or technical expertise to manage the mine.”
•	“DMR and government must appoint directors like they did with the Soccer World Cup [in making] to make sure that State resources are managed with care.”
•	“Legislation must change to involve[ment] communities as owners of any prospecting and mining licences during the application stage. (e.g. Bafokeng Resources)”
•	“Individuals, companies and groups that front and do not comply or implement the DMR regulations [was] must be banned from doing business with government and any other institute of the State.”

WEBBER WENTZEL
•	“The section 100(2)(a) of the MPRDA must be amended to give the Minister the requisite authority to amend the original Mining Charter.”
•	“Clause 4 of the revised Mining Charter states that “[t]the [Minister may amend the Mining Charter as and when the need arises”. We suggest that clause 4 of the revised Mining Charter should be amended for the following reasons:
o	This clause may be ultra vires, …, section 100(2)(a) of the MPRDA, which authorises the development of a broad based socio-economic Charter, does not grant the Minister the power to alter, vary or in any other way amend such a Charter, but merely to “develop” one; and
o	The phrase “as and when the need arises” is vague, and arguably, both the content of amendments that the Minister might make to the revised Mining Charter, as well as the timing of such amendments, as a result of the vagueness of clause 4, is left wholly to the discretion of the Minister thus heightening regulatory uncertainty.”
Definitions
•	“The revised Mining Charter must be amended to include a definition of the “flow through principle” under its definition section or at the very least a reference to the definition in the Generic Codes. This will promote legal certainty.”
•	Demographics: 
o	“as demographic statistics fluctuate, it is unclear whether or not a mining company is required to continuously alter the percentage allocation of the annual payroll: we submit this interpretation of “demographics” which requires continuous and strict adherence to South Africa’s demographic statistics is onerous and prescriptive, and should be avoided.”
o	“we suggest that the revised Mining Charter be amended to either clarify the definition of “demographics”, in order to avoid an onerous and prescriptive definition, or remove it entirely from the definition of HDSAs, clause 2.4 (employment equity) and clause 2.5 (human resource development) of the revised Mining Charter, and thus bring it into line with other legislation relating to black economic empowerment.”
•	Meaningful economic participation: “The language of the definition of Meaningful economic participation regarding the financing by third parties of BEE transactions should be brought into line with the language of the Generic Codes and the concept of “net value” espoused therein, which states that:
o	Ownership Fulfilment occurs:
•	On the release of all black Participants in a Measured Entity from all third-party rights arising from the financing of their transaction with the Measured Entity, or
•	If all black Participants in the Enterprise have never been subject to any such third-party rights…”
•	“We submit that the phrase “BEE shall have full shareholder rights…” is unintelligible. We submit that a noun should be inserted after “BEE” in order to rectify this error. We further submit, however, that this word should not be “beneficiaries” as this would lead to an untenable situation in which all BEE beneficiaries would be eligible for shareholders’ rights, despite the fact that they may not be members of a company with share capital. To align this definition with section 37(2) of the Companies Act, we submit that the word “entities” be inserted after “BEE” in “meaningful economic participation” and the language used should be more prescriptive in order that mining companies understand exactly what requirements they are obliged to fulfil.”
•	“The revised Mining Charter needs to be amended to include definitions of the following terms in order to promote regulatory certainty, and prevent these clauses being taken on judicial review as a result of the wide and unguided discretion given to the administrator as a result of such vague clauses:
o	“services” and “consumer goods” as used in clause 2.2 (procurement and enterprise development) of the revised Mining Charter, and which are not defined in the revised Mining Charter, nor is there a standard industry definition on which to rely;
o	“core and critical skills” as used in clause 2.4 of the revised Mining Charter, which is undefined; and
o	“material constraints” as used in clause 2.9 (Reporting-monitoring and evaluation) of the revised Mining Charter, which is undefined. It is not clear if, by reference to “material constraints”, the DMR wants to assess economic conditions, global trends or operational issues. Again this allows the DMR an almost unfettered discretion in the evaluation process.
•	“Clause 2.1 also states: The continuing consequences of all previous deals concluded prior to the promulgation of the MPRDA would be included in calculating such credits/offsets in terms of market share as measured by attributable units of production. - We submit that these aspects of this clause be rephrased in clearer language so as to promote regulatory certainty.”
•	“Mine Community Development: We submit that a number of aspects of clause 2.6 (Mine community development) are vague and require clarification”:
o	“International best practices in terms of rules of engagement and guidelines” - there is no indication of the content or source of international best practice.
o	“ethnographic community consultative and collaborative processes”
o	“Proportionate to the size of investment” – no further explanation is provided in clause 2.6 as to what is meant by “proportionate” or “investment”.
o	“Integrated Development Plans” – “It is suggested that the reference to Integrated Development Plans, although not clearly indicated, refers to integrated development plans created under section 25 of the Local Government: Municipal Systems Act, 2000.We submit that if this in indeed the intention of the drafters of the Mining Charter that reference be clearly made to section 25 of the Local Government: Municipal Systems Act as follows:
[m]ining companies must conduct an assessment to determine the developmental needs in collaboration with mining communities and identity projects within the needs analysis for their contribution to community development in line with the relevant Integrated Development Plan (IDP) created under section 25 of the Local Government: Municipal Systems Act, 2000, the cost of which should be proportionate to the size of investment.”
(Underlined words are the suggested insertion)
•	Procurement
Procurement targets should be governed by the Generic Codes.
•	Sustainable Development and growth of the mining industry
o	“We submit that reference be made to each of the relevant legislative provisions with regard to each requirement under clause 2.8 of the revised Mining Charter.”
o	Clause 2.8 of the revised Mining Charter requires that: “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 South African based facilities for the analysis of samples across the mining value chain.”
“This requirement may prove unfeasible given the lack of necessary expertise and skills to perform such sample analysis of South African based research facilities, and thus we submit that this requirement be removed from the revised Mining Charter.”
•	Mining Charter scorecard
o	“We propose that the revised Mining Charter be amended to clarify the scorecard’s relationship to the revised Mining Charter, and that the scorecard be expressly defined as the binding criteria for assessment of compliance with the revised Mining Charter.”
o	“It is suggested that compliance with a percentage measured requirement be determined as a binary option, with compliance resulting in the full percentage weighting being awarded to the relevant mining company and anything short of full compliance resulting in zero per cent award.”
o	“As the percentages allocated to the percentage measured requirements add up to 100, it is assumed that the scale only measures a mining company’s compliance with the percentage measure requirements, and not the ring-fenced requirements. We suggest that this assumption be explicitly stated in the revised Mining Charter as part of the explanation on how to apply/interpret the scorecard; and
o	“It is not clear at which level of “performance”, whether “marginal to acceptable performance” or “excellent Performance”, is required to constitute “compliance” with the percentage measured requirements. There is no defined point at which compliance is recognised. We propose that the revised Mining Charter be amended to explicitly include a definite point on the scale which indicates that a mining company has complied with the percentage measured requirements.”
o	It is suggested that the ring-fenced requirements and the percentage measured requirements be set out in two separate tables, “A” and “B” respectively, and that the following paragraph be inserted into the revised Mining Charter:
“Every mining company, in order to be said to comply with, and not be in breach of the provisions of the revised Mining Charter, must:
(a)	Comply fully with every requirement listed in Table A, annexed hereto; and
(b)	Achieve a total score of 50 per cent or more, with respect to the requirements listed in Table B, annexed hereto. A mining company’s total score is the sum of the percentage scores allocated to each of the requirements listed in Table B, with which the relevant mining company has complied.
With regard to sub-clause (b), if a mining company id held by the authorised official of the DMR to have complied with one of the percentage measured requirements listed in Table B, the mining company will be awarded the full percentage measurement allocated to that requirement. If the mining company is held not have complied to any degree with one of the percentage measured requirements listed in Table B, it will be awarded nothing in respect of that requirement.
If a mining company fails to comply with sub-clause (a) or (b), it will be deemed to be in breach of the revised Mining Charter, and will be subject to clause 3 of the revised Mining Charter.
•	The non-compliance penalty
“We suggest that clause 3 of the revised Mining Charter be amended as follows: [n]on-compliance with the Charter as set out under the scorecard, shall render the mining company in breach of section 2(c), (d), (e), (f) and (i) of the MPRDA, and subject to the provisions of section 47 read in conjunction with sections 98 and 99 of the Act.”

THE ROYAL HLANGWANA HOUSE
Ownership
“In determining this policy charter will have to look into three ownership method used by rules of rights inland i.e.
•	The Trust title in successors as ownership
•	The CPA communal beneficiation/ as ownership
•	The State Land as custodian of or public enterprise and Department of Public Works as Register of Land belonging to title invention and founder of Land name to their ownership and demarcations of land by Municipalities Board which act as strategic boundary controller of patterning title invention of Name land belonging to ownership of rights where this prospectus rights mining are being awarded or issued by the policy of mining charter of which in our view is totally flawed process of the process that are whole sticky undermines the rightful beneficiation models that can be taken or discussed!!!”
“The certificate must only be issued by the Department of Mineral Resources to the ownership of Land specifying the right of land and the beneficiation attached to ownership of Minerals.”

BATLHAPING BAGA PHUDUHUCWANA TRADITIONAL COUNCIL AND BATLHAPING BAGA MAIDI TRADITIONAL COUNCIL
Procurement and Enterprise Development
Clarity on the functions of the proposed Social Development Fund and how it will be managed is required.
“We recommend the following:
•	Government will share with traditional leaders and their structures for development all information as to mineral resources on traditional land.
•	Government and industry shall establish a fund that will provide grants, loans on favourable terms and technical assistance to communities to enable them to-
o	Obtain prospecting and mining rights
o	Mine
o	Develop skills
o	Engage in beneficiation and marketing
o	Create and manage trust funds to ensure that the profits of mining are used for the benefit of the community
o	Complete Development Strategies within the framework of government policies and programmes for sustainable growth and development

MERAFONG COMMUNITY MINING FORUM
“We propose that:
•	A 50:50 employment quota for local residents of Merafong and must be achieved in the next five year cycle of the Mining Empowerment Charter. The culture of JOBS FOR SALE must end in all mining operations and Unions officials must not be used as recruiters.
•	Mining houses must invest in the social infrastructure of our communities such as our schools, our clinics, sports facilities and people development centres.
•	A mandatory percentage figure vis-a-vis the profit of mines must be legislated for purposes of reinvestment into mining hosting communities.
•	The doors of technical skills development training centres that mines run must be open to suitably qualified young people of Merafong so as to impart artisan skills to locals.
•	Mining houses must avail suitable land to promote medium and small scale farming as well as large scale agricultural industry to ensure development independent of mining.
•	The environmental rehabilitation of dormant and active operational mine dumps must be undertaken by all mines operating in Merafong.
•	Learnerships and bursaries that Mines in Merafong offer must be biased to grade 12 graduates of Merafong.
•	Mining houses in Merafong must financially and technically support new and sustainable enterprises to ensure future jobs security in Merafong.
•	The people of Merafong City must be beneficiaries of the Broad Based Black Economic Empowerment initiatives in the next phase of the Charter implementation.
•	50% of the revenue that comes from mining royalties must be used to develop mining host communities.
•	Mining houses must not contract labour brokers as they employ illegal immigrants whose human rights are daily exploited.
•	Mining males only hostels must be abolished for a community friendly housing solution.
•	We call for all mining stakeholders to implement the minerals beneficiation strategy and develop a robust value adding industry in hosting communities.
•	A Mineral Regional Development Agency for the West Rand that will develop a sustainable integrated development strategy of the region must be established. The agency must be representative of government, mines, labour and communities. The agency must consultatively align Social Plans of Mines and Local Government Integrated Development Plans. The Agency must ensure accountability and be the competent authority on issuing Social Licenses to operators.”

ESKOM
Non-Compliance
•	“The process of cancellation on the part of the Minister will have to be clearly spelled out and the degree to which non-compliance would constitute a breach of the MPRDA will have to be articulated.”
Reporting (Monitoring and Evaluation)
•	“The criteria of materiality need[s] to be defined at the outset as mining companies are required to report annually on its level of compliance in terms of the MPRDA.”
General
•	“In order to avoid the possibility of a further extension for the achievement of targets set, the revised Mining Charter must address what happens if the targets are not achieved by 2014.”
•	“Further, the impact of the revised Mining Charter on other policies and pieces of legislation setting out government’s plans and targets needs to be clarified. For example, the interrelationship between the revised Mining Charter and the Code of Good Practice for the Mining Industry (Code) has not been addressed in the revised Mining Charter.”
•	“…, the need to establish security of supply of primary energy minerals for the domestic electricity industry perhaps requires reflection as a specific compliance target.”

NATIONAL YOUTH DEVELOPMENT AGENCY
•	“The Charter should set targets for youth as a designated group outlined by the Broad Based Black Economic Empowerment (BBBEE), Act 53 of 2003 and Codes of Good Practice championed by Department of Trade and Industry. We propose that the target for youth should be set at 5% for all components of the Charter. This target is supported by the recommendations of the Youth Development Strategy of the Department of Mineral Resources.”
•	“The Charter should also set a target for disabled people as one of the designated group for all components that is set to achieve.”

JOY GLOBAL AFRICA
Procurement and Enterprise Development
“…the Mining Charter be adapted so that:
•	Preference is given for SA manufactured product
•	Recognition, in the form of bonus points, can be obtained for South African procurement and content
•	The Mining Charter is revised to align preferential procurement requirements with broad-based empowerment codes.”

CAPITAL EQUIPMENT EXPORT COUNCIL
Procurement and Enterprise Development
•	:…adapting the Mining Charter so that preference is given for SA manufactured product as that will do the most in addressing socio-economic challenges facing South Africa.”
•	“… by setting targets for procurement of locally manufactured equipment, with a local content of say at least 50%, by Mining Companies and Contractors to Mining Companies.”

SOUTH AFRICAN INSTITUTE OF INTERNATIONAL AFFAIRS
Procurement and Enterprise Development
•	“In order to support entrepreneurs we recommend that special attention be paid to ways mining companies can support and procure consumer goods and relevant services from SMMEs.”
Mine Community Development
•	“More active research has to be done on relevant and sustainable development initiatives in and around SA mining communities and further clarification of the structure and management of the proposed “social development fund” is needed.”
Non-compliance and Amendments
•	“… the last two points of the Charter on non-compliance and amendments should be revised to counterbalance the wide discretion granted to the Minister of Mineral Resources by these two clauses with mechanisms to appeal for companies in breach of the provisions of the Charter and a requirement for wide consultation before any further amendments to the Mining Charter are made.”
Sustainable Development and Growth of the Mining Industry
•	“… Further principles and best practice, in terms of setting environmental and social responsibility standards in mining, be incorporated into the Charter, drawing specifically from the African Union’s Mining Vision 2050, adopted by the Assembly of Head of State and Government of the AU in 2009.”
General
•	“Enhancing competitiveness should be mentioned as an objective of the Mining Charter, as it is in the Stakeholders’ Declaration on Strategy for the Sustainable Growth and Meaningful Transformation of South Africa’s Mining Industry.”

SIDNEY ON VAAL BENEFICIARIES
•	“We are of the view that interviews and information sessions be conducted before issuing of any prospecting or mining rights in areas of land claims.”
•	“Mineral beneficiation and Black Economic Empowerment should be vigorously monitored by the DMR and special unit be created for that purpose.”
•	“Mineral audits be conducted in all areas of land claims and greedy investors should stop to mine areas of land claims in order for aspiring beneficiaries to mine their areas with assistance of Mintek.”
•	“Double issuing of rights and rejection of beneficiaries to mine should be revisited to correct the wrongs by DMR-RM in our region.”
•	“Beneficiaries should own mineral rights and those with mining interest should be allowed to do so without any red tape.”
•	“Small scale miners should be empowered with training and assisted by Mintek to mine their areas of preference successfully.”
•	“Social and Labour Plans should be monitored and practiced for economic projects aimed at infrastructure development.”

PAUL JANISCH
•	“A beneficiation matrix should be drawn up with the set-off percentages listed.”
•	“Adopt the [DTI] generic codes’ definition [of BEE entity] with a ramped percentage of purchases from the community.”
“Reduce the [percentage of annual payroll investment into skills development initiatives] figure to 3% and include a very comprehensive code of good practice which talks specifically to the skills shortage in mining sector and provide very strong guidelines as to how to achieve this. Code 400 (DTI’s codes) should form the basis of this guideline-with strong input from the SETA and busin