PRETORIA - The High Court in Pretoria on Friday was unimpressed by Mineral Resources Minister Mosebenzi Zwane's failure to submit an answering affidavit in the Chamber of Mines' application for an urgent interdict against him.
Judge Ramarumo Monama lambasted Zwane for "disrespecting" the court processes at a time when millions of jobs are in the balance in South Africa's volatile mining sector.
"The minister has to give an explanation as to why, from the 25th of July to today, nothing was communicated to me, and why nothing was communicated in terms of exchange of documents to the applicant. No response has come from him, and this is one of our important sectors. It is so important a sector that foreign people are investing in it," said Monama.
"What message is he communicating? In my view, this is just disrespectful. It is disrespect for the Constitution. I want to tell you why this concerns me ... we live under the rule of law and this matter involves legality and the rule of law."
The Chamber of Mines told the court that Zwane, without communicating directly with them, took to social media channel Twitter to announce that he was not implementing the recently gazetted proposal to freeze the granting of new mining and permitting rights, as well as the transfer of mineral rights between companies.
"We had sought a written undertaking from the minister that he would not take the action contemplated in the Government Gazette [of July 19] and that was never given. What then happened was that last night we discovered that the minister had tweeted that he is not going to take the steps contemplated in that notice [the government gazette]. That was then followed by a media statement issued this morning to the same effect that they ...," said the Chamber of Mines' attorney Chris Loxton SC before Monama interjected.
"Sorry to interrupt you, but is that how the legal process operates in this country?" the judge asked.
Loxton replied that Zwane's conduct was "unusual".
"We got no formal communication by way of a letter, nor did we get an affidavit. What had happened is that my colleague Mr Motau [Advocate Terry Motau SC, counsel for Zwane] were in contact and we were attempting to make sense of the process. We met this morning and I confirmed with Mr Motau that it seems as if indeed the minister had stated that he would not be taking the steps contemplated in the notice," said Loxton.
"The Chamber's objective which was to prevent the issuing of the restrictions by the minister preventing the consideration of applications for new [mining] rights, renewals of rights and transfers of rights has now been achieved based on the media statement - though he has not communicated to us," said Loxton.
Monama remarked that this trend was "very prevalent in the United States of America".
Loxton responded: "Well, this was very reminiscent of Mr Trump and maybe it is catching on".
In the end, the court endorsed an agreement between the Chamber of Mines and the Department of Mineral Resources which noted that Zwane had formally stated that he does not intend to take any of the steps contemplated in the notice published in the Government Gazette of July 19.
"The DMR has therefore formally agreed not to pursue the contemplated suspension of the processing of section 11 applications, new mining and prospecting rights applications and renewals of existing rights," said the Chamber of Mines in a statement after the court session.
"Given that a media statement [issued by the department of mineral resources] does not in itself constitute a formal withdrawal, the parties reached an agreement setting out the Minister’s undertaking, which was made an order of court this morning [Friday]."
The court has has, however, asked Zwane to submit an affidavit, within 14 days, explaining his failure to file the answering affidavit.
The Chamber of Mines said while the court order was satisfactory, it did not take away the fact that "significant damage has been done to the confidence of the industry as a result of the minister's reckless actions".