Industry panics at draft Mining Charter

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Commodity prices are depressed; China is no longer growing as fast as everyone needs it to; and demand in the post-2008 global economy has not fully recovered.

In SA, these issues feel magnified, because it comes with the added complications of large electricity-price hikes, rising labour costs, and fractious industrial relations.

Jobs lost

Between 2012 and last year, the industry cut 47,000 jobs.

With the industry trying to respond to the current downturn, at least another 32,000 jobs are at stake.

Mining costs have risen 20% each year in the past five years, the biggest contributor to which has been electricity. Two months ago, the cost of power in platinum production was 80%, and for coal and gold mining, it was 50%.

The sector remains a leading employer, employing about 440,000 people directly, and as many again indirectly.

The panic being expressed by the industry is familiar. Each of the past iterations of the Mining Charter has elicited predictions of doom, and dire warnings about sterilising SA's investment environment.

But there is still investment in the mining sector. Mineral resources minister, Mosebenzi Zwane, delivered his budget last week, and said that about 7,000 jobs could be created out of social and labour programmes being run in mining towns.

In the past three years, the department had issued 84 mining licences and it was expecting that 20,000 new jobs could be created as a result.

Once empowered, always empowered

The changes that are being demanded in the draft Mining Charter, which was published for a 30-day comment period on April 15, are wide-ranging, and have serious implications for black economic empowerment (BEE) deals.

The government is now legislating to disallow lapsed BEE deals to count in mining companies' favour. The principle of "once empowered, always empowered" has been sidelined entirely.

This makes it plain that while there may now be a court challenge brought by the mining industry to seek legal clarity on recognition of past BEE deals, the department is clear that in future, this question does not arise.

Commenting on the Chamber of Mines' application for legal clarity, analysts at Deutsche Bank say the "new Mining Charter would supercede this (court process), and render it a moot point".

It is clear that the state is frustrated with the levels of compliance in the industry, and the spirit in which empowerment deals have been conducted, despite the gains that have already been made.

Mining companies have disbursed structured deals worth R200bn, that, according to the Chamber of Mines, has delivered R159bn in value to deal beneficiaries.

Direct response from the industry has been muted so far, with most companies choosing to be cautious. They are relying instead on the chamber, whose president, Mike Teke, said the release of the new proposal was just the beginning of a consultative process.

"We look forward to constructive interaction with (the) government and the other stakeholders. It is in all of our interests that a mutually acceptable version of the revised charter is finalised at the earliest opportunity."

No consultation

Neal Froneman, an industry veteran and CEO of SA's biggest gold-mining company, Sibanye Gold, did, however, criticise the department openly for not consulting with the industry before releasing the draft.

He said aspects of the new charter were not acceptable to the industry if they were implemented retrospectively.

"It is disappointing that the draft Mining Charter was published without extensive consultation, and while court procedures seeking to clarify elements of the previous Mining Charter are still in process," he said.

Analysts at CIBC were of a similar opinion. It told investors SA remained a "tough jurisdiction", because of the proposed changes to regulation.

The new charter's goal of keeping black mine ownership at 26%, "even if those stakes are subsequently sold. It is an unreasonable request in our view," CIBC says.

BEE issues won't go away

Commenting on the developments last week, Citi's mining analysts said that from past experience, the final outcome was never as bad as initially feared. "However, that is not to say that it will be a good outcome for the SA mining producers either. Investors in South African mining equities simply have to accept that the issues around BEE in the domestic mining industry are not going to go away."

It said investors had to realise the cost "of empowerment will likely increase rather than decrease over time".

"While the concept of 'once empowered, always empowered' will rage in legal circles for some time to come, politically we can never see this concept being acceptable to the government or its electorate. This point is made very clear in the 2016 draft Mining Charter," Citi says.

What will complicate the matter further are the new restrictions that the department wants to place on empowerment structures. There is to be a ban on financing the BEE trusts using all of their dividend income to pay for the financing of transactions.

The Mining Charter was always going to come up for review, and the state's plans for economic transformation have intensified as the economy has struggled. It is possible that, while this is the worst time, it may also be a good time to have this discussion. The government knows what has been happening in the mining industry and in mining towns. The industry is in a precarious state.

Negotiating new targets at a time when the industry it as its weakest may win the industry some reprieve from the department's more aggressive targets. But this will only be a reprieve.

Unstoppable train

Empowerment and the transformation programme is an unstoppable train. At no point in the future is it likely that the government will sit back and admire how far the fundamental change in ownership patterns has come.

Change and ever-growing BEE targets in areas of the economy where it can exert pressure to comply - the mining sector is specifically handy because of the licensing leverage the state has - will continue be an evergreen economic programme of the state.