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MINERALS AND ENERGY PORTFOLIO COMMITTEE
1 November 2000
THE ABOLITION OF LEBOWA MINERAL TRUST BILL [B49-2000]: ADOPTION OF COMMITTEE REPORT
Documents handed out:
Committee Report - REP-B49.MIN (see Appendix 1)
Abolition of Lebowa Mineral Trust Bill
Portfolio Committee Amendments to the Abolition of Lebowa Mineral Trust Bill
The committee members reviewed the Portfolio Committee Report on the Abolition of Lebowa Mineral Trust Bill [B49-2000] to be submitted to the National Assembly. The report will be debated in the National Assembly on 3 November 2000. Concerns raised by the New National Party (NNP) and the Inkhata Freedom Party (IFP) were addressed and some changes to the document proposed. After a brief discussion period the committee adjourned the meeting.
Mr I O Davidson (DP) recapped for members the concern that the Department failed to carry out adequate public consultations. The committee performed their own consultations with radically different results. This should be extremely distressing to the committee and should be addressed in the committee report.
Mr M R Baloyi (ANC) expressed a desire for the committee to move forward with the proceedings as scheduled and encouraged members to avoid further debate on issues that have already been thoroughly discussed. Mr E J Lucas (IFP) supported this sentiment.
Mr Davidson commented that there is a fine line between what the committee has agreed to and the points they have disagreed on. He suggested that the subparagraph under Point 13 in the report, which states "Whereas the Committee is satisfied that it has ensured the rights of communities and individualsâ€¦" should be altered to read "Whereas the majority of the Committeeâ€¦". The paragraph as it stands assumes that all parties are in agreement and does not consider minority viewpoints.
Ms D S Motubatse (ANC) supported Mr Davidson's concern and said that the paragraph should be rephrased to reflect the concerns of all members.
Mr Davidson then mentioned that there is no need for the report to contain so much detail under Points 8-10, which refer to opposition from the DP and the NNP. He suggested that Point 9 read
"Two points need to be taken in this regard:
There is a factual dispute as to whether there are private holders of land rights.
Land restitution claims in the three categories mentioned are still outstanding."
Mr B G Bell (DP) added that Point 6 should end after "â€¦which declares mining and mineral matters an area of national competency" and a new paragraph inserted at this point. Since this would add a new Point 7 then all subsequent Points would have to be renumbered.
Mr Bell stated that the committee must ensure that all resources from the LMT are deferred to the Northern Province and that this sector does not lose resources because of abolition. He asked how much weight the report will carry to this end.
Mr G G Oliphant (ANC) suggested that the reference for the national steering committee programmes, the integrated rural development programme and the Northern Province Development Corporation to "link up" under Point 13 be strengthened.
Mr Baloyi (ANC) observed that under Point 13 it is unclear as to what the Committee refers to in the sentence "â€¦the Committee is satisfied thatâ€¦".
Mr Oliphant asserted that the document as it stands is fine and members need to continue with the proceedings as scheduled. His only concern was that the report ended too abruptly and suggested that they include an acknowledgments section to thank all key participants for their involvement. He then asked the members to move to adopt the proposed Bill with amendments.
The Chair then adjourned the meeting.
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1. Report of the Portfolio Committee on Minerals and Energy on the Abolition of Lebowa Mineral Trust Bill [B 49 - 2000] (National Assembly - sec 75), dated 1 November 2000:
The Portfolio Committee on Minerals and Energy, having considered the subject of the Lebowa Mineral Trust Bill [B49 - 2000] (National Assembly - Sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 49A - 2000].
The Committee further reports as follows:
1. During its deliberations on the Bill, the Committee received extensive briefings from the Department of Minerals and Energy (the Department) detailing the reasons for the abolition of the Lebowa Mineral Trust (LMT). When the Bill was still in draft form, the Committee also received a request from the Beneficiaries Forum of the LMT to brief the Committee on its concerns with the Bill. The committee afforded the Forum an opportunity to address it in Cape Town on 8 March 2000. Subsequent to this meeting, the Committee requested that the Department continue with its consultations with the affected communities to ensure that a lack of information regarding the content of the bill would not create confusion or misunderstanding. To this end, the Department also published the draft Bill on 17 March 2000 and invited comments thereon.
2. On 17 August, the Bill was introduced in the National Assembly and referred to the Committee. The Committee, together with the Select Committee on Economic Affairs of the National Council of Provinces, held public hearings on the Bill in the Northern Province on 21 September. These public hearings were advertised nationally and locally, in the Northern Review Newspaper and on Radio Thobela. In addition, an invitation was also extended to the provincial government, as well as to the relevant provincial committees, of the Northern Province and Mpumalanga to attend the public hearings and to give their views on the Bill, should they deem it necessary. This was done as most of the former Lebowa falls within these two Province, and there are also a few areas which now form part of the North-West Province.
- The following persons made oral presentations during the public hearings:
- Mr Dennis Nkosi, on behalf of the Mpumalanga Provincial Government;
- Mr M G Ratlabala, on behalf of the LMT Board;
- Mr I W Modisha, on behalf of the staff of the LMT;
- Kgoshi M Lehwelere, on behalf of the LMT Beneficiaries Forum;
- Kgsohigadi M R Mothapo;
- Ms M M Ramoraswi, on behalf of Sefagafaga Mining Investments;
- Adv T P Moloto, on behalf of the Mineral Rights Association of Indigenous People of South Africa;
- Mr M H Malaza, on behalf of the Dilokong Land and Minerals Forum;
- Mr V Majolopa, on behalf of the Leolo Mining Corporation;
- Mr P G Betz;
- Adv T P Moloto, on behalf of the Bopedi Kingdom;
- Kgoshi T Setlamorago, on behalf of CONTRALESA;
- Mr T Boya, on behalf of NAFCOC (Northern Province);
- Mr M Mphalele, on behalf of Northern Resource Management and Maaparanke Holdings.
- The Committee also received the following written submissions:
- Mr C Corser;
- Ms A Makhubedu;
- Mphalele Traditional Authority.
- A key area of concern for the Committee during its deliberations was that the LMT is currently duplicating functions falling within the ambit of the Department. Many of the issues raised with the committee during the public hearing were rooted in concerns of benefiting groups individuals that they would lose the benefits accruing from the LMT. The Committee understands that the projects currently funded by the LMT Board will be taken over by the Department.
- Land restitution claims in the three categories mentioned are still outstanding. These land claims could well have mineral rights attached thereto. Should any of the above lands have mineral rights attached thereto, the vesting of such rights in the State would infringe the property rights provisions of the Constitution.
- Lastly, the DP and the New NP were of the opinion that the Bill was premature. It was felt that this Bill should have been presented to Parliament after the Minerals Development Bill, which is due to come before Parliament next year. This latter Bill will translate the White Paper policy into law. More specifically, that Bill will deal with the vesting of mineral rights in the State.
- The Bill has the effect of arbitrary confiscation of property and/or rights without compensation by the State.
6. The ANC and the IFP agreed that the Bill constitutes an administrative adjustment intended to bring the administration of mineral rights in line with the Constitution, which declares mining and mineral matters an area of national competency. The Committee is of the opinion that a careful investigation into the matter of mineral rights ownership in the region should be undertaken. To this end, it should be noted that the Committee amended the Bill to the effect that the regulations to be prescribed by the Minister in respect of the nature of proof required when claiming ownership of mineral rights will only be made after consultation with the Committee. Furthermore, based on discussions with the Ministry of Minerals and Energy during deliberations on the Bill, the Committee was assured that this proof will not be confined to of title deeds. The various lists given to the Committee during its deliberations will also have to be consolidated before being used as a basis to verify the authenticity of claiMs
7. It was also noted that the genuine concerns among the communities of the region about job creation, sustainable development, community input into the development process, poverty alleviation and the future of joint venture agreements, which were raised with the Committee during the public hearings, must be viewed in a serious light when decisions around the Bill are taken.
8. The DP and the New NP were opposed to the Bill. The basis of their opposition was one of principle. The following points were noted:
(1) Section 14 of the Lebowa Minerals Trust Act states:
"The Trust shall, in respect of mineral rights and for the purpose of any legislation governing mineral rights and the exploitation of mineral resources be in the same position as a private holder of mineral rights". The Bill before Parliament seeks to take those rights currently vested in the LMT and vest them in the State. No compensation is offered . This was viewed as an infringement of the property rights of private mineral rights holders and therefore renders the Bill subject to a constitutional challenge, as the objective of the Bill is contrary to the property rights provision of the Constitution.
(2) Prior to the formation of the self-governing state of Lebowa, four categories of land owners existed in the area, namely land owned by -
(a) the Government of the Republic of South Africa;
(b) the South African Development Trust (SADT);
(c) the provincial administration; and
(d) private individuals.
The Department advised the Committee that land held in these four categories was transferred to the former Lebowa and the mineral rights attached were under the jurisdiction of the LMT. These rights were to be administered for the material benefit and moral of the people of Lebowa.
9. The DP and the New NP also noted the following:
(1) There is a factual dispute as to whether there are private holders of land rights, and therefore of mineral rights in the first three categories mentioned above. Documentation in this regard was supplied to the Committee, citing title deed numbers evidencing private ownership of land by individuals and tribes.
10. The DP and the New NP had two further points of opposition related to process:
(1) Clause 3(1) (c) of the Bill empowers the Minister, on application by any person who claims any rights to minerals, to grant such rights to the person on production of appropriate proof. During the course of the consolidation of the Bill, the NP and the New NP expressed concern at the way in which the Department had investigated claims of ownership. It could not be established whether the land cited in the title deeds had mineral rights attached. The DP and the New NP felt that an impartial tribunal should be established to facilitate the process and adjudicate ownership.
The DP and the New NP accepted the fact that the LMT was an anachronism, and therefore believed that it should be transformed into a mineral development agency. This agency would be in a position to develop minerals in the Northern Province for and on behalf of its inhabitants, either collectively or individually, if rights are established.
11. The UDM rejected the abolition of the LMT. It adopted this stance mainly for the following reasons:
(1) The Minister of Minerals and Energy is the champion of this course of action, whilst she holds office as a delegated trustee of the LMT. Her essential duty in this capacity is to protect and further the rights of the inhabitants of the former Lebowa, not to deprive them of their rights and assets.
(2) The Bill effectively abolishes the LMT and thus deprives the inhabitants of the former Lebowa of the benefits accruing from the trust.
The UDM supported the inhabitants of the former Lebowa and their traditional authorities in seeking for a redress in a high court and the Constitutional court. The UDM did, however, support the restructuring of the LMT in order to make it compatible with the present Constitutional arrangements in the country.
12. The ACDP is, in principle, against State ownership of property, and on these grounds opposed the Bill. In addition, it felt that it was evident from the submissions made during the public hearings that the people in the area and those benefiting from the LMT are concerned that the Northern Province, despite its enormous mineral wealth, is one of the poorest provinces in South Africa and that it will be further deprived of what little hope it has of development and wealth creation. The ACDP did not see the Bill as giving any assurances to the people of the area that they would not be further disadvantaged. The ACDP supports restructuring and reformation of the LMT. The ACDP proposed that a new Bill, guided by the recommendations in the detailed submissions, be drafted and presented to the Committee. A primary objective of the new Bill must be to ensure that those who should rightly benefit, in fact do benefit.
13. The Committee will, in line with minerals development, need to discuss the role of provincial Finance MECs in ensuring that further economic development through mining occurs in the region. The Department and the Northern Province Development Corporation are best placed to offer support to this. Furthermore, the national steering committee programmes for mineral development, the integrated rural development programme and the Northern Province Development Corporation must link up in order to build the local economy.
Whereas the Committee is satisfied that it has ensured the rights of communities and individuals to claim those mineral rights to which they are legitimately entitled, it will continue to monitor the status of joint venture agreements in the former Lebowa and progress with regard to integrated rural development. In this regard, the Committee recommends that the Department of Minerals and Energy be requested to keep it informed on these matters.
Report to be considered.
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