Arguably the most significant development in the transformation of the mining industry took place on October 25 this year when the first two mining title conversions were approved.
That one decision removes much of the perceived "business risk" in the introduction of the new mining legislation, which requires the conversion of "old order" mining rights into "new order" mining rights within five years.
As Harmony CEO Bernard Swanepoel says: "It shows the system works and you can get your mining titles converted, provided you meet the rules."
The two mines are Harmony's Evander and Randfontein divisions. Harmony had the rest of its applications in by the end of last year.
AngloGold Ashanti already has all its applications in and is waiting to hear the outcome early this year.
There is evidence that getting approval for the conversions is not a straightforward process. In fact, meeting the 15%-26% equity ownership requirement by historically disadvantaged South Africans (HDSAs) is probably the easy part.
According to Harmony executives, the greatest challenges lay in the areas of the group's involvement in social investment and poverty-relief programmes. Government wants these to be co-ordinated with the programmes of local and provincial government and it returned Harmony's applications for revision because they did not meet requirements.
There are also issues surrounding "affirmative procurement" - the sourcing of goods and services from HDSA suppliers.
The system is working, but shortcomings in the new legislation - the Mineral & Petroleum Resources Development Act - are causing hiccups.
Some of those deficiencies result from oversights in the rushed finalisation of the legislation. Others result from what minerals & energy minister Phumzile Mlambo-Ngcuka has admitted is deliberate policy. Government wanted leeway to be able to negotiate and resolve any situations it had not foreseen and catered for in the legislation.
But such loose legislation can lead to problems when business prudence runs into patriotic government sensitivity about issues such as continuing perceptions of "business risk" in SA.
Government officials are upset that mining companies, including heavyweights such as Impala Platinum, Xstrata, Lonmin and Placer Dome, have issued notice of claims for possible expropriation of mining rights.
The amounts involved are believed to be about R100bn. Government's view is that these companies are being unpatriotic and are unreasonably damaging the country's investment image. That is a sore political point, judging by the way President Thabo Mbeki publicly attacked Anglo American CEO Tony Trahar over comments he made on business risk.
The mining companies themselves acknowledge it is unlikely they will have to sue government for compensation because they expect to have their existing mining titles converted.
Still, they point to the risk inherent in the shortcomings in how the legislation has been drafted, saying they must act to protect their shareholders' interests.
Failure to do so could result in the boards of directors and management being sued by shareholders if the company is negatively affected.
"The law is the law and when you identify a risk you have to act," says Impala Platinum director Cathie Markus.
The doomsday scenario is that this debate could end up in the constitutional court, but it is unlikely mining companies will take that step.
It is far more likely that an individual - probably a farmer who owned mineral rights and/or derived royalty income from mineral rights and has now lost those assets to the state - will be the one to launch the ultimate legal challenge.
Such gloomy views apart, the new dispensation is working and increasing numbers of black economic empowerment (BEE) deals are being done in the mining industry, though this in turn leads to the next political hot potato.
That is weighing government's stated intention of broad-based empowerment through these deals against what critics view as the enrichment of a few black "oligarchs" who are cornering most of the business.
That is a difficult issue, given the nature of capitalism, which rewards successful risk-takers such as ARM chairman Patrice Motsepe, who has become SA's first black mining billionaire.
But the right kind of deals are being done, such as Aquarius Platinum, which has just sold 26% of its SA business for R860m to a broad-based empowerment grouping. The money will be used to build Aquarius's third platinum mine in SA. Aquarius, which is an Australian company registered in Bermuda, is also taking advantage of relaxed foreign exchange rules to list its shares on the JSE.
That means its BEE partners will be able to convert their stake in the SA subsidiary into shares in the more tradable listed top company. Those are the sort of deals that will grow the SA mining industry and create meaningful BEE.
