Geosciences Amendment Bill: briefing

Meeting report

MINERALS AND ENERGY PORTFOLIO COMMITTEE
19 February 2003
GEOSCIENCE AMENDMENT BILL: BRIEFING

Chairperson: Mr M Goniwe (ANC)

Documents handed out:
Department of Minerals and Energy Briefing on Geoscience Amendment Bill (Appendix )
Geoscience Amendment Bill [B7-2003]
Committee Programme 2003

SUMMARY
The Geoscience Amendment Bill makes provision for property utilised by the Geological Survey Branch of the former Department of Minerals and Energy Affairs prior to the commencement of the Act on 1 November 1993 to be deemed to have been transferred to the Council for Geoscience before that date.

MINUTES
Briefing on Geoscience Amendment Bill
The Committee was briefed on the Bill by Advocate Alberts, Legal Officer for the Department of Minerals and Energy.

Advocate Alberts outlined the background to the proposed amendments, which seek to address the status of property utilised by the Geological Survey Branch of the former Department of Mineral and Energy Affairs prior to the commencement of the Geoscience Act of 1993. In terms of Section 26 (1) of this Act, State property being utilised for services falling under the new Council for Geoscience should have been designated to the Council prior to the commencement of the Act on 1 November 1993.

The property concerned had not been transferred to the Council for Geoscience until April 1994. In the view of the Auditor-General, the former Department of Minerals and Energy Affairs had therefore failed to comply with the Act as no property had been designated that could have devolved to the Council on the date of commencement of the Act. The view of the Department had been that, since the Act did not authorise any administrative action prior to its commencement, any such designation would have been ultra vires.

The Committee was advised that, in terms of the proposed amendments, the property in question will be deemed to have been transferred from the former Department of Minerals and Energy Affairs to the Council for Geoscience prior to the commencement of the Act.

Discussion
Mr S Louw (ANC) sought confirmation from Advocate Alberts that, if promulgated, the proposed Amendment Bill would adequately address concerns around the designation of the property in question. Advocate Alberts assured him that it would.

The Chairman then asked Advocate Alberts to present the proposed amendments clause by clause, after which questions and comments were invited from members of the Committee.

Item 1c:
Mr M Bell (DA) suggested that, since the title 'Minister of State Expenditure' no longer applies, it should be replaced with the title 'Minister of Finance'. This query was referred to a State Law Advisor in attendance at the meeting, who explained that reference to the Minister of State Expenditure had been used retrospectively and was therefore correct.

The amendments proposed in the Geosciences Amendment Bill (B7 - 2003) were accepted without further discussion.

Committee Programme - 2003
Noting that this programme would need to be formally adopted by the Committee, the Chairman asked for comments from the floor.

Mr M Bell (DA) expressed concern that no provision appeared to have been made for a briefing by the Department on the issue of In Bond Landed Costs (IBLC).

In response the Chairman explained that no decision had been reached at Cabinet level on the issue of ILBC by the time the programme had been compiled. The Department had therefore requested that the necessary briefing be deferred until a suitable date could be agreed. The Presidential Address and subsequent media briefings had since drawn public attention to the ILBC and related issues, creating the impression that the Committee had been excluded from the process. This would need to be addressed with the Minister concerned. He advised the Committee that discussions were already underway on the possibility of moving the briefing on the financing of black economic empowerment (BEE) in the gas industry (scheduled for 26 February 2003) to 17 March 2003, when it would form part of composite briefings on the financing of BEE in the minerals and energy sector as a whole. This would leave 26 February 2003 open for a briefing on the issue of IBLC. However, this proposed arrangement had yet to be confirmed.

Mr A Nel (NNP) drew the Committee's attention to the need for a briefing on the component parts of the Auditor-General's report on the Diamond Board. Since this report had not been particularly complimentary, in keeping with their oversight role members of the Committee might also need to consider calling upon the Board to clarify their position.

The Chairman suggested that, noting the gravity of this matter, a briefing on the Diamond Board might need to be arranged for the same day as the ILBC briefing proposed for 26 February 2003. Alternatively, a Diamond Board briefing could possibly be arranged for Friday 28 February. He dismissed a concern expressed by Mr S Louw (ANC) that Friday meetings would leave members insufficient time for reporting back to their constituencies.

Noting that Budget briefings by the Department were scheduled for 5 and 12 March 2003, the Committee programme for 2003 was formally adopted subject to the amendments proposed.

Mr Davidson endorsed concerns expressed earlier by the Chair around issues of process, suggesting that the Committee could be in danger of being bypassed. The Minister's release of a Mining Charter scorecard the previous day - before the Committee had been given an opportunity to consider this matter - was a case in point. Every effort should therefore be made to ensure that members are fully appraised of any development likely to become the subject of a public announcement before that announcement takes place.

The Chairman undertook to convey this concern to the Department.

When requesting clarity on a procedural matter relating to the availability of minutes and their approval before attending to the business of the day, Professor I Mohamed (ANC) was reminded that, there being no official requirement for committee meetings to be recorded, no procedure is yet in place to deal with the minutes now being especially produced at the Committee's request.

Meeting was adjourned.

Appendix
BRIEFING BY DEPARTMENT OF MINERALS AND ENERGY ON THE GEOSCIENCE AMENDMENT BILL
1. OBJECT OF THE BILL
The object of the Bill is to effect the lawful transfer of movable and immovable property from the Department of Minerals and Energy to the Council for
Geoscience.

2. BACKGROUND AND DELIBERATION
Section 26(1) of the Geoscience Act, 1993 (Act No.100 of 1993) provides that movable and immovable property belonging to the State and which immediately prior to the commencement of Act was being utilized by the Geological Survey Branch of the Department and which the Minister, with the concurrence of the Minister of State Expenditure, and where applicable, the Minister of Public Works, may designate shall on the said date of commencement devolve upon the Council without any compensation being payable in respect thereof by the Council.

The Department and the Council for Geoscience, compiled a detailed list of assets to be transferred, after which the said movable and immovable property were designated during April 1994.

The Auditor-General informed the Department that the designation of the above property should have taken place before 1 November 1993, and that the Department did therefore not comply with the provisions of section 26(1) of the Act, as no property was designated which could have devolved on the Council on the date of commencement.

The Department advised that designation of the said property could not have taken place before 1 November 1993, because the Act does not explicitly authorize the exercise of any administrative action prior to its commencement date. Such designation would in any event have been ultra vires.

In order to obtain legal certainty on this, the Chief State Law Adviser was subsequently requested to furnish the Department and the Auditor-General with a legal opinion. The Chief State Law Adviser confirmed the view of the Auditor-General that the Department did not comply with the provisions of section 26(1) of the Act, in that no property was designated which could have devolved on the Council on the date of commencement. The Department was further advised that the designation of property prior to the commencement of the Act, was legally possible, despite the fact that the Act does not specifically provide for such action prior to the commencement date.

An amendment of section 26 has therefore now become necessary to rectify the matter.

3. ORGANISATIONAL AND PERSONNEL IMPLICATIONS
None
4. FINANCIAL IMPLICATIONS
None
5. COMMUNICATION IMPLICATIONS
None.

6. CONSTITUTIONAL IMPLICATIONS
None.

7. OTHER ENTITIES CONSULTED
The Department of Finance, the Department of State Expenditure, the Council for Geoscience and the Auditor-General were consulted and are in agreement with the proposed amendment.

8. PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Minerals and Energy are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

9. RECOMMENDATION
It is recommended that Committee agree to the Bill.