Abolition of Lebowa Mineral Trust Bill; SADC Amendment Protocol on Trade

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Meeting report

Abolition of Lebowa Mineral Trust Bill; Protocol of Trade in South Africa

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This Report is a Contact Natural Resource Information Service
Taking Parliament to People, and People to Parliament


Select Committee for Economic Affairs
November 8 2000
Abolition of Lebowa Mineral Trust Bill
Amendment Protocol on Trade in the South African Development Community

Documents handed out:
Presentation notes from the Department of Minerals and Energy
Abolition of Lebowa Mineral Trust Bill

SUMMARY
The Committee heard presentations from the Department of Minerals and Energy. These presenters were:
Mr Jan Bredell
Mr Hennie Taljaard
Mr J Rocha
After some discussion, a technical illegality was noticed and the committee could not affect the Bill and did not review clause-by-clause. The members did pass a motion of desirability for this Bill. Before the meeting was adjourned the members also approved the Amendment Protocol on Trade in the South African Development Community (SADC).

MINUTES
After a short introduction from Chairperson Mr M Moosa, speakers from the Department of Minerals and Energy reviewed the content of the proposed Bill, ownership of mineral rights, and reasons for abolition. Mr Jan Bredell informed members that the Lebowa Minerals Trust (LMT) was established in 1991 to privately hold all mineral rights transferred to the government of the former Lebowa. In 1998 there was a ministerial investigation into the future of LMT and on 19 January 2000 Cabinet approved the abolition bill for introduction into Parliament. Reasons for abolition include that the mandate of LMT is limited to a territory, which is no longer recognized by the Constitution. The Constitution recognizes mineral matters as a function within national jurisdiction and seeks to establish a coherent nation-wide approach to mineral development for the benefit of the entire population - a goal that is circumvented by the existence of the LMT.

Mr Bredell then reviewed the proposed Bill clause-by-clause. He noted that the primary aim of abolition is clearly stated under Clause 2. Under Clause 3, which deals with vesting in the state, it is within the power of the Minister to grant mineral rights to a person or tribe who rightfully claim ownership. This Clause also stipulates the nature of adequate proof as title deeds. During public consultations and data collection initiatives, the Department did not find any minerals rights endorsed to an individual name or tribe and instead determined that all mineral rights were registered to the state. No individual claims to mineral rights are referred to in the proposed Bill, and the Department found no proof that mineral rights were being held for communities/individuals/tribes.

Under Clause 4, three methods of transfer of staff are proposed: post in public service, post in an associated institution (this must be an institution established by law and approved by the minister), and/or the retrenchment of staff as a last option. Mr Hennie Taljaard noted that the Portfolio Committee of Minerals and Energy recommended the latter option under Clause 4.3 be amended to delete "retrenchment" and read "…deal with such person subject to the Labour Relations Act, 1995…"

At this point Chairperson Mr M Moosa (ANC) inquired as to how many staff persons are involved with the LMT. Mr J Bredell replied that there are about 15 staff people in total. Clause 5 -8 deals with regulations, delegation of powers/duties, and the repeal of old legislation and the short title.

Mr J Rocha then reviewed the acquisition of mineral rights held by the government. The Proclamation R228 of 1986 outlined three separate methods of acquisition:
Transferred land including mineral rights to the Lebowa government.
Transferred land held in a trust for a black person, black tribe or community to the Lebowa government (no reference to mineral rights).
Transferred land vested in, or acquired by the SADT [South African Development Trust]… to Lebowa government.

"Government - owned mineral rights" is defined as all mineral rights transferred to the Government of Lebowa by or in terms of Proclamation R228 of 1986 and all such mineral rights which may subsequently be transferred to or acquired by the Government. Section 12(1) of the Proclamation reads that "…all Government-owned mineral rights shall vest in the Trust with effect from the date of coming into operation of this Act or the date on which such rights are acquired by the Government…" Mr Bredell stated that the objectives of the LMT is:
to take over all Government-owned mineral rights in respect of land situated in Lebowa,
to acquire mineral rights from the holders of such rights in Lebowa,
if required, to hold mineral rights as trustee on behalf of any private person or an association of person.

The LMT was designed to hold the mineral rights of the former Lebowa Government in a trust. "Lebowa" is defined as the self-governing territory of Lebowa within the Republic of South Africa. It was legislated in Clause 2(2) of the Proclamation that the Trust "shall be administered…for the material benefit, and moral welfare of Lebowa" and under Clause 3(c) "to hold mineral rights vesting in the Trust… for the benefit of Lebowa". The LMT is a statutory/public trust and shall, in respect of mineral rights and for the purpose of any legislation governing mineral rights and exploitation of mineral resources be in the same position as a private holder of mineral rights…" (Clause 14).

Mr Taljaard also mentioned that under the South African Development Trust Act of 1936 (SADT) it was legislated that the LMT shall "be administered for the settlement, support, benefit, and material and moral welfare of the natives of the Union." Under Clause 23(3) of the SADT it is also stated that the LMT shall "in respect of mineral rights held by it be in the same position as any private holder of mineral rights". Mr Rocha talked about the LMT Beneficiaries Forum that was created this year. He emphasized that the LMT Bill was published for public comment and the Department received only two responses. There is always the debate around if the Department has satisfactorily fulfilled its obligation for thorough public consultation, but he suggested that the Department feels it did all it could do at the time. The speakers from the Department concluded with four points:
LMT is a statutory/public trust
LMT Act, 1987 is not a trust instrument
Mineral rights are held by the LMT
Abolition brings the old order in line with the Government policy;
"Intermediate statutory regulatory institutions, such as mineral trusts, will be phased out".

Chairperson Moosa asked who the beneficiaries are assumed to be by the trust document. Mr Rocha said that the beneficiaries are the inhabitants of Lebowa.

Mr S Fenyane (ANC) asked for clarity on the difference between the different types of land that were transferred to the LMT. Mr Rocha replied that according to research on title deeds, the difference depends on ownership. Landowners are either the Republic of South Africa or individuals.

Chairperson Moosa then asked if mineral rights were transferred to other Bantustan governments and if they were then what happened to them. Mr Rocha confirmed that other transfers did take place but that those were automatically reverted back to the South African Government. The exception to this is the Gazankulo (??) Mineral Trust which was signed but did not become an Act and so was never activated. Mr Rocha noted that the English version of the SADT says that the beneficiaries are "Lebowa and its inhabitants" while the Afrikaans version stops after the word "Lebowa". The Afrikaans version is the one that was signed.

Chairperson Moosa asked if the people in Lebowa were recognized as a generic group of people before the territory was established in 1972.

Mr N Raju (DP) noted that even though the territory of Lebowa is not recognized by the Constitution, the people are still there and that this is what is important.

Mr M Bengu (IFP) suggested that these concerns are quite philosophical and will not have bearing on the proceedings at hand.

Chairperson Moosa disagreed and said that his question has an important legal basis. He asked again if there is a generic class of people of "Lebowans" that will qualify as beneficiaries. If there is a person that is outside the boundaries of Lebowa but still wishes to claim land rights, what are the processes available to this person? The issue at hand based on boundaries and how people have been affected by them.

Mr Bredell clarified that mineral rights were never owned by individuals or tribes. State-owned mineral rights were transferred to the Trust, but this transference did not change its ownership status. The Bill tries to provide for exceptional cases where individual cases of ownership may be followed up on. Although the Department did perform thorough public consultations, it may still be expected that individual cases may arise in the future.

Another member of the committee inferred that there is a need to discern land ownership from mineral ownership. He asked what is really meant when one says "this land belongs to me". The LMT owns mineral rights on behalf of and in trust for certain tribes.

Dr E Conroy (NNP) said that the beneficiaries of the LMT are the inhabitants of the former Lebowa territory. If that territory is no longer geographically recognized as such, the beneficiaries become the people of South Africa.

Mr Rocha asserted that when the Department did its deed search, they identified that mineral rights are under the ownership of South Africa and that individuals and businesses also own them privately. He referred to "Quitrent land" which is land that is owned but that the mineral rights on that land are dealt with separately. Beneficiaries are stipulated to be "inhabitants" who are different from "citizens", as citizenship assumes residency. The LMT is a statutory board and upon abolition all its liabilities and assets will be accorded to the National Government.

Mr Rocha compared the Ingonyama Trust (INT) with the LMT. INT deals specifically with land rights, while the LMT deals with mineral rights. INT also clearly mentions certain beneficiaries being certain communities and tribes, and does not qualify stipulations for residency.

Mr Fenyane (ANC) asked that in the coincidental circumstance that minerals are attached to land purchased, what happens to these rights.

Mr Rocha mentioned that the Mineral Development Bill (MDB), which is scheduled to be debated next year, would deal with mineral issues more extensively.

Mr Fenyane (ANC) asked why the committee is being asked to deliberate this Bill when the MDB will cover the same issues.

Mr Rocha replied that in the proposed Bill they are dealing with the abolition of an institution. Under Common Law, when you buy land you potentially buy the mineral rights as well but that there are circumstances when the two may be dealt with separately. Mr Bredell added that there is an obligation to abolish the LMT because it is unconstitutional. The Department could have provided for this abolition within the MDB but it was thought that this would create an "anomaly". The MDB will be a very influential piece of legislation and will take the new South Africa into the next 40-50 years. It is undesirable to have it littered with extraneous issues that will never be looked at again once they are finalized.

Chairperson Moosa noted that the people of Lebowa are not confined to a specific tribe but that they are made up of many groups of different peoples. He asked again if there is a generic class of people that may be considered to be "Lebowans".

Mr Raju (DP) asked if the Department anticipated any difficulties processing tribal claims on mineral rights.

Mr Fenyane (ANC) referred to the amendment made by the Portfolio Committee to delete the word "retrenchment" from Clause 4.3 and replace it with the phrase ". deal with such person subject to the Labour Relations Act, 1995…" He noticed that this amendment implies that Clause 4.1 and 4.2 will not be dealt with in terms of the Labour Relations Act. Another member asked if the Department foresees a situation in which an individual will try to process a claim. Clause 3C suggests that there may be the existence of beneficiaries since it provides for avenues of claiming ownership. It may be that some people are unaware of the process provided for them or will be unable to make claims based on the existence of title deeds.

Mr Bredell reiterated that the Bill provides for claims to be dealt with as they arise. He said there probably would be some individuals that will claim mineral rights. In regards to the amendment to Clause 4.3 made by the Portfolio Committee, the change will not have a great effect on the way staff is transferred because the Labour Relations Act already provides for conditions of transference even if it is not explicitly stipulated in a Bill. People will be given choices, they cannot be transferred without their consent. He referred the committee to the explanatory memorandum in the Bill for an outline of the financial implications of this. Point 4 in the explanatory memorandum states that there are no financial implications for the State. The LMT "has assets and a credit balance in its bank account. After its obligations have been met its funds are to be paid into the national revenue fund".

Chairperson Moosa made the members aware that there is a technical illegality in the Bill under Clause 5A which refers to the "relevant Portfolio Committee of Parliament". He says there is no such structure as the National Assembly is not part of "Parliament", and recommended the Clause to read "the relevant committees of Parliament". For this reason he said the committee cannot affect the Bill today and will not go through clause-by-clause until after this concern is rectified. He asked the law advisers for assurance that they will fix the technical illegality in Clause 5A, to which they responded affirmatively. Mr Moosa noted that other than this, the committee has no serious objections to the Bill as it stands. On another note he stated to the members that on the day the Constitution was activated, the LMT ceased to exist. And that all salaries received after this date, and all agreements made on behalf of the LMT, were unauthorized.

Another committee member asserted that it seems that even though the Department assures that they did perform adequate public consultations, it still feels that there may be some claims to mineral rights out there. Chairperson Moosa interjected that the Department representative have already stated that they did a thorough deeds search and that there had been no evidence of any individual claims. If there are claims in the future the Bill includes provisions of proof.

Mr Raju (DP) expressed concern for traditional leaders wanting to make claims on behalf of their tribe, but that these legitimate claims may not be enlisted on any deeds register. How will these traditional leaders be provided for?

At this point Chairperson Moosa noted that the DP and the NNP opposes the Bill without amendments. All other parties agree to the Bill without amendments. At this point a motion of desirability for the Bill was passed. Before the meeting was officially adjourned the committee also passed the Amendment Protocol on Trade in the South African Development Community.

The copyright in this material subsists with the Contact Trust. Further distribution or copying of this material is prohibited without the prior agreement of the Contact Trust.
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