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MINERALS AND ENERGY PORTFOLIO COMMITTEE
27 September 2000
THE ABOLITION OF LEBOWA MINERALS TRUST BILL: DISCUSSION
Documents handed out:
Submission to the Portfolio Committee by MM Ramodike
Presentation by the Northern Resource Management
The committee reviewed some of the concerns regarding the submissions collected at the public hearings held last week. The state law advisers then accepted questions and provided clarifications on the legalities of the proposed bill. Chairperson Nkosi then decided to allow committee members to reconvene next week Wednesday, 3 October 2000.
Chairperson Mr D M Nkosi (ANC) said that the meeting will aim to review the submissions of the public hearings and then look at proposed amendments.
Mr E J Lucas (IFP) asked what the effect the court case against the Minister will have on the proceedings at hand. Mr Nkosi responded that the law advisers addressed this yesterday and recommended that it is within the committee's rights to go ahead as scheduled. He also stated that the issue will most likely be dealt with out of court, and it is primarily a matter between the executive and the people pressing charges.
Mr I O Davidson (DP) then emphasised the state law adviser's statements that there may be unconstitutional elements within the bill. He expressed concern about the moral authority of the government to carry out the bill as it is written. He said that while it is important to recognise the conditions under which the Lebowa Minerals Trust was created, he differentiated between "modern history" and "ancient history". He stated that the LMT holds mineral rights privately in a statutory trust. If this is a private trust then why are the Magoshi (tribe in Northern Province) being treated differently by the standards set in this bill. The bill as it stands does not deal with issues of compensation or transitional arrangements at all. The committee was advised last meeting that beneficiaries have no legal rights if the LMT is abolished. What is the government's moral authority and why are different people being treated differently? He urged the committee that this bill contradicts everything the new South Africa is about and they are obliged to oppose it. He avowed that this bill as it stands throws the constitution out the window and the government should be ashamed. The Department did not look hard enough when they told this committee that they did a survey and found no evidence of individual rights to compensation, because these rights are there and they are legitimate.
Mr Davidson further stipulated that the committee should be trying to establish a mechanism whereby people may establish their rights to the land and minerals. Instead this bill puts the onus on the individual to prove the validity of their claims to the government. The Government seems intent on taking mineral rights away from these people in the former Lebowa area and that the bill was written up in haste. Mr Davidson recommended the committee delay processing this bill in order to better establish individual claims to mineral rights. Members may also prefer to transfer the LMT entity into a development agency. He commented that the Northern Province is the poorest region in the country and they cannot take away what little they have.
Mr A H Nel (NNP) added support to the comments of Mr Davidson, and pointed out that the aim of the government is to empower previously disadvantaged peoples. For this reason alone, the committee cannot go on processing the bill.
Mr M N Ramodike (UDM) then clarified for the committee that the statement he presented at yesterday's meeting was not given as a representative from his party, although the UDM does not support the bill as it stands. He then expressed support for the comments from Mr Davidson and Mr Nel. He cautioned the committee that the Department did not investigate issues of land ownership fully and they may encounter further lawsuits as a result.
Ms C Dudley (ACDP) notified the members that her party does not support the bill as it currently stands.
At this point chairperson Nkosi noted that during the public hearings, it appeared that people were very concerned about what would happen to resources and staff should abolition go through. What will happen to the economy of the North?
Mr J H Nash (ANC) recommended that the bill should be sent back to the Department for modification.
Mr M R Baloyi (ANC) asked for clarity on the procedure of this meeting and at what step the committee was at.
Chairperson Nkosi informed the members that right now they should express their true thoughts and feelings on the bill in front of them and present any questions they need to ask. After this free-for-all the members will hear from the state law advisers again and then go back to reviewing the bill. He advised that for now they are to use their hearts and then later they will use their heads.
Law advisers Mr Taljaard and Mr Rocha then commented that mineral rights belonging to Lebowa were given in the form of a trust on behalf of the government. The bill as it stands says that the Minister may grant mineral rights to persons with proof, but it does not stipulate what kind of proof will be good enough. They recommended that the bill be rectified to address the mineral rights of these individuals and to include more comprehensive avenues of recourse. They then referred the committee to a rough list of possible individuals/ tribes claiming ownership to mineral rights under Lebowa. Mr Taljaard noted that the Department is finding it difficult to establish a comprehensive list of individuals holding mineral rights, especially because when the consultations were held they did not find any adequate claims. Since then they have collected three lists of possible claimants, each supposedly more comprehensive than the last. The Department is aware of the necessity to ensure all legitimate claims are included and guard against the granting of illegitimate claims. The LMT is unique compared to all the unconstitutional legislation that was repealed after 1994 which dealt with administration of rights, not ownership issues. This bill deals with restructuring an institution of government and addresses the ownership of privately held minerals. The difficulties occur because although the LMT may have held mineral rights for individuals, the deeds office did not require registration of these which is why the Department was unable to find any records of them. Mr Taljaard emphasised the importance of Clause 3c which allows the minister to rectify any situation in which mineral rights owned by individuals may be reinstated.
At this point Mr Davidson (DP) urged members to recognise the issue as a simple one of morality and equity, and expressed concern regarding the power relations established by the document. He claimed that the Department cannot act as if history began in 1986 when the LMT was created because tribal rights to the land and minerals go back much further. There is evidence that tribes are "sitting" on mineral rights and refuse to exploit them, and asked if the Department consents that these people own the land although they do not want to allow them the minerals within it. Mr Davidson stipulated that the LMT has not been very efficient in its operations and that probably transformation would be beneficial. But he discouraged the Department from using this bad management as an excuse to take away rights. There must be a decision on which tribes have legitimate rights and which do not before proceedings may continue.
Mr G G Oliphant (ANC) then asked for clarification regarding the terms "transfer", "transformation" and "abolition". He also asked the advisers why entrenchment is included in the bill when it should be considered after options such as retraining. Section 4 (12) regarding transfer and salaries does not stipulate if this will relate to staff and what other options may be gathered.
Mr E J Lucas (IFP) then noted that the LMT Act has been transformed to a national Act under the obligations of the minister. Do the LMT beneficiaries have any titles?
Mr J H Nash (ANC) compared the way the Department has dealt with this issue to a liver sausage, in that when you squeeze it a little bit comes out and then you must squeeze it again to get more. This has effected the discussions. He referred the committee to the Ngonyama proceedings which were held in 1997 to transfer it's legal status to fall under the Minister of Land Affairs. The LMT bill now does what Ngonyama did in 1997. He pointed out the committee is assuming that the Minister will not act responsibly when considering land claims. If the members have reservations regarding the Minister's authority then that is another matter and it's up to the committee to emphasise the importance of the issues. In essence, the Bill is only seeking to change the authority of the LMT so that now the government of South Africa will take over legal responsibility. The debate must lie upon these lines. He questioned why the members are already debating on issues of displacement and transformation when the Bill is merely proposing a change of authority.
Ms D S Motubatse (ANC) lent support to Mr Nash's statements and expressed a desire for the committee to focus the discussion.
Mr M N Ramodike then stated that the Department is trying to convince the committee to see no difference between transformation and abolition. He pointed out the Bill clearly refers to abolition, not transformation which would imply a process of upgrading.
Chairperson Nkosi asked the Departmental advisers to be clear as to what exactly they are proposing to the members and requested the members to be very clear about amendments they will propose. As it stands, there is no agreed list on mineral rights afforded to tribes and individuals so the committee must focus on legislation and process. He reminded members that after legislation is passed through the committee it becomes binding and will effect every person in the country. It is crucially important to cover all avenues of recourse and alternatives in the legislation before it leaves the hands of members.
Mr I O Davidson observed that the list provided by the Department is "shrouded in a cloud of uncertainty". He noted the importance of clarity regarding who is entitled to mineral rights and who is not, and prompted the Department to properly establish deeds rights. Mr Davidson then argued that the provision of title deeds should not be the only means recognised of establishing a claim.
Mr A H Nel (NNP) then noted that under the proposed bill the Minister may expropriate rights without compensation. He reiterated that there is no reference to compensation in the bill and that the Department failed to conduct proper consultations. He pointed out that many people in Lebowa did not even know that the LMT existed.
Mr M N Ramodike informed the members that the UDM is against the bill.
Mr E J Lucas referred to Clause 3c, which intends to protect individual ownership, and stated that this contradicts with the introduction of the bill. He inquired what the real intention of the bill is. He said that during the public hearings in the Northern Province there was a concern from the local community regarding job creation and sustainable development. This signifies a need to look at the bill's intention more deeply. He encouraged members to delay the passage of this bill in order to clarify the issues.
Mr G G Oliphant (ANC) suggested that parties present their specific issues in writing and then work to set up mechanisms which would deal with these more effectively.
At this point state law adviser Mr Rocha mentioned that Section 3(1c), which deals with staff transfer, may be adjusted. Mr Davidson interjected that there must be a process whereby individuals may establish their rights before the bill goes through. Mr Rocha then noted that although Section 3(1c) does not stipulate what kind of proof is needed, any proof that is available will be adequate. He also differentiated this from the process of land restitution.
Chairperson Nkosi then noted that if those rights that were transferred to the LMT are given back by the same route then the committee finds this acceptable. But rights that were acquired by the LMT during its life must be considered separately. He asked the committee to focus upon issues relevant to the bill on the table and encouraged members to steer clear of related issues that do not affect proceedings. He recognised that there is an uncertainty as to what kind of impact abolition will have especially regarding the mining industry in the area. Mr Nkosi suggested that the advice of the Minister be sought in regards to joint venture agreements. Also, in light of the LMT's poor management practices, it may be pertinent to consider maintaining the two separate systems of management currently in place to ensure that operations run smoothly. Although the LMT has not done much in the past, it is rich in resources and potential for development. Mr Nkosi closed the meeting by assuring members that "it is only the past that is uncertain, the future is certain. I am sure of it".
The committee will meet again on Wednesday, 4 October 2000.
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