The commencement of the Mineral and Petroleum Resources Development Act, in April 2004 radically transformed the law governing rights to mineral resources in South Africa and has caused a significant increase in the transactions in this sector.
Bowman Gilfillan has been well placed to take advantage of this upsurge and has represented a number of foreign companies seeking a foothold in the lucrative South African mining sector as well as represented a number of BEE companies given an opportunity to acquire a stake in the wealth of South Africa’s natural resources.
MINING ADVICE
The firm acts for a number of listed and unlisted mining companies. In addition we frequently advise in a transactional context on transfers of mining rights, protection of mining assets and sales of mining companies. For example our work in this sector covers the following:
- Advising on mining assets and the conversion, acquisition and disposal of mining rights and titles (see a sample of the Bowman Gilfillan deals in which this advice has been given below).
- Advised in a transactional context on the validity and transferability of mineral rights, the manner in which transactions should be structured to protect the mineral rights etc (see deals below).
- Opinion work in a transactions and day to day context on the Mining Charter, how it fits with the Broadbased Black Economic Empowerment Act, the BEE Codes of Good Practice, how the DME approaches BEE, what the MPRDA actually provides with regard to BEE etc (see deals below).
- Drafting opinions for the National Department of Minerals & Energy to draft legislation that completely replaced the existing regime in respect of minerals and mining.
- Successfully pursued numerous appeals against decisions of the Department of Minerals and Energy regarding the grant of prospecting and mining rights. The DME from time to time takes decisions that are ultra vires the Minerals and Petroleum Resources Development Act unlawful in other ways, not taken in terms of the requirements of the Promotion of Administrative Justice Act, 2000 etc.
- Instituted review proceedings in the High Court against the Minister of Minerals and Energy in respect of such decisions and are presently pursuing an order to compel the Minister to act as she is required to do by the MPRDA. We have acted for local and overseas clients in this.
- Advised on and obtained Ministerial consent in terms of section 11 of the MPRDA for the transfer of an interest or control in a licence holder.
- Pursued the cancellation of a mineral right granted over a community's property in an improper way and pursued the cancellation of a mining right that lapsed on behalf of a company with wished to apply for the right itself.
- Advised on the interaction of environmental statutes and mining statutes and the environmental requirements of mining.
- Advised on beneficiation and royalty issues.
- BG is frequently asked to speak on these issues at conferences and is presently lecturing at Wits on mining rights and the interaction of environmental and mining statutes. We have a good relationship with the Department of Minerals and Energy in Pretoria and a relationship with officials in a number of regional offices.
- Author of the Mining and Minerals Chapter in the widely used Butterworths Forms and Precedents series.
SAMPLE OF TRANSACTIONAL WORK IN THE MINING RELATED AND BEE CONTEXT
The corporate department of Bowman Gilfillan headed by Ezra Davids has advised on a number of high profile deals in South Africa including many in the mining sector we set out a sample of these significant BEE deals below. Bowman Gilfillan is the main corporate advisor to listed mining groups such as Mvelaphanda Group headed by Tokyo Sekwale which has a wide range of mining interests, former Bowman Gilfillan partner Patrice Motsepe’s, African Rainbow Minerals Group and the Metorex Group.
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