For the past 30 years, Investing in African Mining Indaba conference has gathered mining professionals and stakeholders in the industry, becoming the premier event for mining companies, investors, industry leaders, legal advisors, and government officials looking to stay up to date with technological innovations, new mining practices, and investment opportunities, and to work together to shape the future by harnessing some of the massive opportunities on and for the African continent.
The theme of this year’s Mining Indaba, being held in Cape Town during the first week of February, is “Future-Proofing African Mining, Today”.
With the industry “on the precipice of a transformative era”, Africa Legal asked four leading experts from Webber Wentzel’s mining team for their insights and solutions for some challenges facing the modern mining sector.
How can lawyers help foster relationships between mining companies and governments or regulators for new mining, energy, and infrastructure projects?
Nomsa Mbere is a Webber Wentzel partner who advises on a wide range of corporate and private equity transactions. She has deep expertise in mining related commercial matters, including offtake agreements, integration of socio-economic development initiatives and renewable energy projects.
Nomsa shared eight ways lawyers can help foster good relationships.
Negotiating Agreements: Lawyers can help both parties (mining companies and governments) negotiate clear and mutually beneficial contracts, including mineral rights agreements, Power Purchase Agreements and related Eskom agreements, structuring of joint ventures and partnerships, and development agreements. Such contracts ensure the interests of both parties are represented and the terms are transparent, reducing potential for future conflicts.
Regulatory Compliance: A key role of lawyers is to help mining companies navigate complex and evolving regulatory landscapes to ensure compliance with the relevant laws, and help prevent disputes with governments and regulators. This proactive approach builds trust and fosters a cooperative relationship.
Environmental and Social Responsibility: Lawyers assist in ensuring that mining projects meet environmental regulations and social and community obligations. This could involve working with governments to establish clear environmental impact assessments (EIAs), ensuring local communities’ rights and concerns are addressed, and helping to avoid any legal roadblocks or delays that could arise from environmental issues.
Facilitating Communication: Lawyers act as a bridge between mining companies and government entities, helping to clarify each side’s legal, technical, and financial expectations. By ensuring effective communication, lawyers can ease misunderstandings and prevent conflicts from escalating.
Risk Management and Dispute Resolution: Lawyers help mitigate risks by identifying potential legal issues early in the project, and addressing them. They can also help resolve conflicts or disputes through mediation, arbitration, or litigation, ensuring any disagreements are managed in a way that minimises disruption to the project.
Advocacy and Policy Influence: Lawyers with deep knowledge of the industry can advocate for policy changes or improvements to regulations that may benefit both mining companies and governments. They might also engage in lobbying efforts, work on drafting new laws, or help the government shape mining policy to ensure that it is conducive to economic growth, environmental protection, and sustainable development.
Project Financing and Joint Ventures: Lawyers can help structure project financing agreements and joint ventures between governments and private companies, ensuring that all legal aspects of these collaborations are properly managed. This helps in creating stable, long-term relationships for large-scale infrastructure projects, including energy and mining.
Conflict Prevention: Through careful drafting of legal documents and advising both parties on potential areas of concern, lawyers can prevent conflicts from arising. This could involve things like handling land rights, addressing labour issues, or ensuring that all regulatory permissions are in place before a project begins
What are some of the ways mining companies and African governments could work together to help overcome the infrastructure deficit?
Rita Spalding is a Webber Wentzel partner who specialises in corporate transactions, mergers and acquisitions and restructurings in the mining industry.
Her expertise extends to specialised drafting of commodity supply, mine development, infrastructure and logistics agreements as well as providing regulatory advice on compliance with applicable legislation.
Rita says, “Collaboration is key to overcoming the infrastructure deficit. Government and mining companies must engage in respect of long-term planning initiatives as well as maintenance of existing infrastructure to ensure that existing bottlenecks are addressed, and resource allocation is optimised whilst reducing duplication and eliminating wasteful expenditure.”
“To attract investment, governments must ensure regulatory certainty and improve the ease of doing business. Legislative requirements must be clear with definitive time periods for the grant of relevant licences and approvals. Mining companies and governments must collaborate on eradicating corruption and the opportunities giving rise to such conduct.”
“For purposes of joint initiatives/PPPs, the contracting parties must be duly authorised and empowered to act. Red tape, which causes untold delays, must be reduced. Technology and innovation should be employed to ensure that all decisions are based on accurate available data. Mining companies house significant skills and knowledge, which governments can leverage off through collaboration.”
As global demand for critical minerals accelerates in the transition to a low-carbon economy, the mining sector must confront one of its most pressing challenges: ensuring that growth is not achieved at the expense of human rights. What steps can mining companies take to futureproof their operations, balancing critical mineral demand and human rights?
Pooja Dela is a Webber Wentzel partner who specialises in all aspects of dispute resolution, including mining and mineral law. She has also conducted significant business and human rights related risk and impact assessments and has expertise in reviewing governance structures and policies, conducting regulatory and institutional framework mapping as well as human rights due diligence.
Pooja says mining companies can future-proof their operations by taking several practical steps to balance critical mineral demand with human rights:
Conduct Human Rights Due Diligence (HRDD): Regularly assess human rights risks (including in relation to workers, communities, human rights defenders) within the operational footprint and across the supply chain, and implement mitigation strategies aligned with international standards like the UNGPs and OECD guidelines;
Meaningful engagement with communities: Adopt Free, Prior, and Informed Consent (FPIC) principles, particularly with Indigenous and marginalised groups, and build long-term partnerships for shared benefits with an aim of building resilient and thriving communities long after mining ceases;
Strengthen Worker Protections: Ensure fair wages, safe working conditions, and effective grievance mechanisms for employees and subcontractors.
Safeguard Human Rights Defenders: Develop policies to protect whistleblowers and human rights defenders, and work in collaboration with other institutions, law enforcement agencies and civil society organisations to enhance safety and advocacy;
Adopt Sustainable Practices: Reduce reliance on new extraction through recycling and recovery of critical minerals, and invest in technologies that minimise environmental and social impacts.
Be Transparent: Publish ESG reports, commit to independent audits, and participate in initiatives which promote transparency in the extractives industry.
Collaborate on Governance: Work with governments, civil society, and global organisations to combat systemic issues like corruption and weak regulation, ensuring sustainable and responsible practices.
These steps, Pooja says, ensure ethical operations while meeting global mineral demand in a way that respects human rights and supports sustainable development.
What are some ways mining GCs and external counsel can facilitate the speedy and efficient resolution of legal disputes?
Merlita Kennedy is a Webber Wentzel partner and commercial dispute resolution and litigation specialist. She has extensive experience advising on mining related matters, including being seconded to the leading South African Mining Houses' Group Legal team and helping the client develop an expedited dispute resolution model to facilitate the speedy and efficient resolution of their legal disputes.
Merlita says that Mining GCs and External Counsel are partners with a common purpose to achieve speedy and cost-efficient resolution of legal disputes in the best interest of the mining house in a procedurally fair and reasonable manner.
With this in mind, she proposes the following:
Well drafted contracts which are clear and easy to understand by all the contracting parties;
Address disputes promptly to avoid escalation;
Establish a dispute resolution process which is incorporated into all contracts utilizing dispute resolution clauses;
Continually review the dispute resolution process to ensure that it is fit for purpose and achieves speedy and efficient resolution of disputes;
Foster open communication to address issues promptly whilst ensuring that the appropriate stakeholders are engaged;
Embrace technology throughout the process either to interview witnesses, store and analyse data and where appropriate to adjudicate matters virtually;
Explore Alternative Dispute Resolution Methods and not be solely reliant on litigation as this is time consuming and the courts may not always be the appropriate forum for the issue in dispute and the parties involved. Court proceedings are also generally open to the public as are court documents.
By way of example and having regard to (i) the nature of the dispute; (ii) the quantum; (iii) the parties to the dispute; and (iv) the impact of the dispute operationally, financially and reputationally; then negotiation, mediation and/or arbitration could successfully be utilised.
Webber Wentzel’s team of leading mining experts is attending the 2025 Mining Indaba in Cape Town. You can find more information on Indaba, here
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