SCA clears cross-border mining amalgamations; draft waste exemption regs open for comment

The Minister of Forestry, Fisheries and the Environment has published draft National Waste Exemption Regulations under sections 74–77 of the NEM: Waste Act (Act 59 of 2008). The regulations create a new formal framework for lodging and processing waste exemption applications, prescribing application requirements, a mandatory 30-day public participation process per application, a 60-calendar-day decision timeline for the Minister, and a hard two-year cap on exemption authorisations. Transfer of exemptions is regulated. Criminal penalties are severe: up to R5 million and five years' imprisonment for a first offence, escalating to R10 million and ten years for subsequent offences. The public has 30 days from 11 March 2026 to submit written representations or objections.

Nkwe Platinum, a Bermuda-registered company holding a 74% interest in the Garatouw mining right in South Africa, was amalgamated with another Bermuda company under Bermuda law. The majority shareholder, Zijin, retained its controlling interest throughout. Genorah Resources, a joint holder of the mining right, obtained High Court orders declaring that the amalgamation triggered sections 11 and 56 of the MPRDA, effectively holding that the mining right interest had lapsed or required ministerial consent.

The court held: The SCA upheld the appeal and set aside the High Court's orders. It held that under Bermuda law the amalgamating companies continued to exist within the amalgamated entity — Nkwe was not dissolved or deregistered, so s 56 was not triggered. Because assets vested in the amalgamated company by operation of law rather than by transfer or contract, and Zijin retained its controlling interest throughout, no provision of s 11 was engaged. On the procedural point, the court applied the Airports Company principle that a settlement agreement on appeal involving an order in rem must be sanctioned by the court on the merits, and proceeded to determine the appeal substantively.

Legal impact: This judgment develops the law on how cross-border corporate restructurings interact with the MPRDA. It establishes that a foreign amalgamation that preserves the mining right holder's legal identity and does not alter the controlling shareholder does not trigger the ministerial consent or lapse provisions of the MPRDA. This provides significant certainty for foreign-structured mining investments and planned corporate reorganisations. It also confirms the application of the Airports Company framework to orders in rem on appeal.