Mining Mirror January 2019 | страница 19

Indaba preview Craig Atkinson, local partner in Global M & A at White & Case. the right decisions to assist with enticing global mining companies to come sink shafts in our country,” says Craig Atkinson, local partner in Global M & A at White & Case. “One of the key questions to consider is whether the provisions of the new Mining Charter are positively or negatively impacting on investment into mining in South Africa,” says Felthun. “We need to be cognisant of the fact that South Africa has to be competitive in the international environment and investors will generally want certainty around things like the new Mining Charter before they will be willing to invest,” Atkinson adds. “What South Africa needs is greenfields projects. New mines create more jobs, and that is what South Africa needs,” says Felthun. He remains positive about the outlook for the country. “Politically, most people believe that South Africa is heading in the right direction,” says Felthun. Burning question about land The expropriation without compensation issue, now referred to as EWC, has become an albatross around Ramaphosa’s neck. He has on many occasions said that the ANC’s decision to amend the constitution will not www.miningmirror.co.za Gary Felthun, partner at law firm White & Case and head of Mergers and Acquisitions. result in land grabs, and has promised that if the constitution is altered, restitution will take place in an orderly manner. Regardless, the business community remains pessimistic and the issue has reverberated around the world, with even US President Donald Trump getting involved. A number of CEOs trying to raise funds at international ‘roadshows’ for projects in South Africa, tell Mining Mirror that the first concern raised by international investors is about expropriation. It seems that EWC has seriously dented Ramaphosa’s mission to wow global investors. According to Martin van Staden, a legal researcher at the Free Market Foundation, private property rights are an imperative in any free and developing society. “On every index of human development, for example freedom, the rule of law, and ease of doing business, countries that rank highly have entrenched systems of secure property rights. Invariably, the countries at the bottom of these indices have virtually no, or very weak, protection for private property,” says Van Staden. “If South Africa wishes to attract foreign investment and develop into a prosperous first-world country, section 25 of the Constitution, if anything, must be strengthened — not weakened — to promote legal certainty,” he adds. Section 25(3), which the ANC has pledged to change, currently provides that “just and equitable” compensation must be provided when property is expropriated, and section 25(8) provides that no other part of section 25 may impede the State from redressing the results of past discrimination, on condition that such departure from the provisions of the property provision complies with section 36. Section 36 allows for the rights in the Bill of Rights, including the right to compensation, to be limited in pursuit of a legitimate government objective. These two provisions — section 25(3) and 25(8) — it is argued, thus already hypothetically provide for lawful EWC, and it is thus not necessary to change the constitution. What about foreign investment? “It is important to consider the effect EWC may have on not only foreign direct investment (FDI) but international law, says Peter Leon, partner and Africa co-chair: Africa Group at law firm Herbert Smith Freehills. “FDI is the lifeblood of any developing economy, and South Africa cannot afford to forego it. From 2013 to 2017, while FDI inflows into the country declined JANUARY 2019 MINING MIRROR [17]