Mineral & Petroleum Resources Amendment Bill [B15D-2013]: negotiating mandates

NCOP Land Reform, Environment, Mineral Resources and Energy

18 May 2018
Chairperson: Mr O Sefako (ANC; North West)
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Meeting Summary

The provincial delegates presented the negotiating mandates given by their respective Provinces. While most provinces supported the Bill in light of their public hearings they did propose various amendments. However, the Western Cape did not support the Bill. Mpumalanga's many proposed amendments were all approved by the other provinces except by the Western Cape who complained that there seemed to be little cognisance taken of whether this mass approval was mandated by their respective Provinces.

Among the key points to emerge from the discussion on negotiating mandates were:
• The Province has set the mandate within specific parameters. The first parameter is whether or not the Province supports the Bill. Then there are parameters for negotiations concerning the proposed amendments which each specific Province wants the NCOP alerted to and taken into account. Ultimately, it is left to the provincial delegate’s discretion to interpret and analyse if what is proposed by the other Provinces reads into what the proposed amendment of their Province is. The legal advisor cautioned delegates to use that discretion wisely.

• A concern was raised that the Committee should not have to play the role of the Province. The Province has a responsibility when dealing with public participation to ensure that what is sent to the Committee has been considered. The Select Committee is not meant to deal with all the public submissions in a province. Those submissions are supposed to be considered and processed by the province. It would be a nightmare if this is allowed. The comment was made that it seemed as if the Select Committee is undertaking the mandating process for the first time, whilst the Committee is almost at the end of the Fifth Term.

After hearing the mandates, the Department of Mineral Resources said it would continue to avail itself in supporting the Committee going forward.

Meeting report

The Chairperson requested that Mpumalanga start the proceedings.

Mpumalanga Negotiating Mandate
Mr A Nyambi (ANC) indicated that Mpumalanga supported the Bill but some amendments are proposed.

Clause 1
Mr Nyambi read the first amendment to Clause 1 to insert after the definition of ‘beneficiation’ another definition (page 2).

Mr Sefako requested voting on the proposal: Eastern Cape, Free State, Gauteng, Mpumalanga, and North West supported the amendment, while Western Cape abstained.

Mr Nyambi proposed the insertion before the definition of ‘community’ another definition (page 2).

Mr Sefako requested voting on the proposal: Eastern Cape, Free State, Gauteng, Mpumalanga, and North West supported the amendment, while Western Cape abstained.

Mr Nyambi continued with the proposal to insert after the definition of ‘controlling interest’ another definition (pages 2 and 3).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while Western Cape abstained.

Mr Nyambi read  that after the definition of ‘discovery’ to amend the definition of ‘effective date’ (page 3).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while Western Cape abstained.

Mr Nyambi  read that before the ‘exploration work programme’ definition to add another definition (page 3).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while Western Cape abstained.

Mr Nyambi  next presented the proposal to delete the definition of ‘free carried interest’ (page 3).

All the provinces voted on the proposal: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, North West and Western Cape supported the amendment.

Mr Nyambi read the proposal to delete the definition of ‘historically disadvantaged South Africans’ (page 3).

All the provinces voted on the proposal: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed inserting a definition of ‘pending application’ after the ‘organ of state’ definition (page 3 and 4).

All the provinces voted on the proposal: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to substitute the definition of ‘prospecting area’ with another definition (page 4).

All the provinces voted on the proposal: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed inserting after definition of ‘residue stockpile’ another definition (page 4).

All the provinces voted on the proposal: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to substitute the definition of ‘State participation’ with another definition (page 4).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 5
Mr Nyambi proposed to substitute subsection (2) with another  subsection (page 5).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to delete subsection (5).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 8
Mr Nyambi proposed to insert the word 'prior' before the phrase ‘written consent of the Minister’ (page 5).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 12
Mr Nyambi proposed to delete subsection (2)(b) (page 5).

Voting took place: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi referred to the proposal to amend section 17 (4A) inserted by Act 49 of 2008 (pages 5 - 6).

Voting took place: Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 18
Mr Nyambi proposed to insert wording after the word ‘industry’ (page 6).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Discussion
Ms C Labuschagne (DA; Western Cape) asked if the provinces are still voting according to their negotiating mandates. Who is checking that the delegates are voting according to the negotiating mandates of their provinces?

Mr Sefako explained the delegates are empowered to use their rights to engage. However, if there is anything that the delegates would like to raise for clarification, these questions should be raised.

On the mandate conferred to the delegate, Ms Labuschagne explained that in a previous meeting on mandates, it was determined that the delegate cannot vote as an individual in the Select Committee meeting. The delegates have a mandate that they have to vote according to. Why has that rule changed because there was no discussion with the Law Advisor on this? It is important to seek clarification. If the mandate is not exactly alike, but the meaning is the same thing, there can be concurrence. However, we cannot do this without discussion. Provinces cannot support proposed amendments from another province if they do not have the mandate from their own Province. There have been many discussions on this and the rules cannot change every time the Committee meets just because there is pressure for this Bill to be passed. The Bill can be challenged again because the Committee is not following the mandating procedure as it should. Who is checking that provinces are voting according to their mandates? If it is not being done, she would have to challenge it.

Mr Nyambi stressed that it is important to refrain from what is being done now. However, the reason there are learned people present is to answer questions of clarity. The understanding is that the delegates have a conferred mandate with some proposed amendments from different provinces as correctly put by Ms Labuschagne. Be that as it may, there is still a process that will unfold in Parliament and ultimately the Committee will have something that the Committee will agree to present to the House. Once it is presented to the House, it is still part of the process which the Committee has undertaken. If the process, once started, is questioned, if there is any confusion, the legal advisors assigned to the Committee should assist.  

Ms Z Ncitha (ANC; Eastern Cape) said that if there are Members who feel strongly that the Committee is doing something wrong in terms of this process, she has the right to take the notes and follow the necessary procedures when the time comes. But, as of now, can the Committee be allowed to finish this process? If there is anything that needs clarifying by the legal gurus, that can be clarified, but can discussion on this matter be closed and the Committee follow the necessary procedures when the time comes.

Mr Sefako stressed that the Committee must be very careful not to hold this process hostage.

Dr H Mateme (ANC; Limpopo) said that the process will not be delayed but a response is required. The input, the words, phrases, and the sentence construction by the Provinces may not be identical, but if the idea is the same, do we not agree?

Mr Sefako reiterated that he did not suppress anybody. After a submission has been made, it has been asked if there is any need for clarification. However, this process should not be held hostage unnecessarily.

The Committee Secretary explained that the Secretariat is here to ensure that the parliamentary process is adhered to. The Committee has proceeded thus far is in line with parliamentary process. The Secretary is not here to check whether members are voting in line with their mandate or not, or how they are interpreting their mandate. That is between the member and the legislature. The job of the Secretariat is to ensure that the parliamentary process is done in the proper manner. Thus far, the Committee has been doing this. The member has been reading the proposed amendments. The Chairperson has asked whether there are any points for clarity. If not, the Committee can proceed with the voting. The Secretary has checked whether there is a quorum. The Committee has a quorum. It is outside the Secretariat’s scope to determine whether a member is or is not in line with his provincial mandate.

The Parliamentary Legal Advisor had advised in the previous meeting about mandates. The Committee is dealing with provincial mandates. A mandate is an authority conferred upon the permanent delegate to vote on behalf of the Province. The Province has then set the mandate within specific parameters. The first parameter is whether or not the Province supports the Bill. Then there are parameters for negotiations concerning the proposed amendments which the specific Province wants the member to take into account and alert the Committee to. When the negotiating mandate is read out, the member then looks at the Bill, and will give or withhold their support. If there is a proposed amendment that is clearly not in line with the current Bill and there is no similar proposed amendment by the member's province, the member should rather not vote in support but abstain because the province has not indicated on that. But if it is something that is in line with the principle and spirit of the Bill as it is, because the Province supports it, it will support the clause. If it is similar, the member can support it. However, it is left to the member’s discretion because a lot of it is interpretation and analysis.  However, members are cautioned to use that discretion wisely.

Clause 20
Mr Nyambi proposed the insertion of alternative wording after the word ‘industry’ (page 6).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 22
To insert after the word ‘and’ in paragraph (c)

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi highlighted the proposal to substitute subsection (9) paragraph (a) and (b) with another  subsection (page 6).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Sefako said that there is a technicality with Northern Cape, which can only observe during the proceedings.

Mr Mlambo asked for an explanation on why Ms Oliphant cannot vote?

The Committee Secretary responded that on the ATC list, the Northern Cape is one of those provinces that does not have an alternate. The only people, in terms of the NCOP Rules, that are allowed to vote, is a special delegate from the Province and the provincial member and the alternate to this Committee. The NCOP cannot co-opt like the NA unfortunately. The Parliamentary Legal Advisor is here to confirm. In terms of the ATC, there is no alternate provincial member for Northern Cape.

Ms G Oliphant (ANC, Northern Cape) explained that she was told to come to the Committee to be an alternate for the permanent delegate.

The Parliamentary Legal Advisor explained, in terms of the Rules of the NCOP, Ms Oliphant is more than welcome to sit in the proceedings. She can participate but she is not able to vote in the Committee because she is not a member of the Committee according to the Committee list. The names of the alternate members are published in the ATC. Unfortunately, Ms Oliphant is unable to vote for Northern Cape.

Clause 35
Mr Nyambi continued with the proposal to insert paragraph ‘(f) has contravened…’ (slide 6).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 47
Mr Nyambi highlighted the amendment to omit the proposed amendments to section 70 of the Act.

Voting took place: Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Eastern Cape and the Western Cape abstained.

Clause 48
Mr Nyambi highlighted the amendment to omit the proposed amendments to section 71 of the Act.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 49
Mr Nyambi proceeded to the amendment to omit insertion of section 71A in line 40-46, 1-9.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 50
Mr Nyambi highlighted the amendment to omit the repeal of sections 72 and 73

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 51
Mr Nyambi proposed to omit the proposed amendment to section 74(1)(a)

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape is against the amendment.

Mr Nyambi proceeded to the proposal to substitute [“Regional Manager”] with “designated agency” in lines 34, 39, 43, and 47-48.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Discussion
Ms Labuschagne asked for clarity from DMR about the implications of the proposal to omit the proposed amendment to section 74(1)(a).

Ms Sibongile Malie, DMR Director: Policy Development, replied that the DMR supports the omission of the proposed amendment, which is the deletion of ‘designated agency’ and replacing it with ‘regional manager’. What the DMR supports is the omission of the proposed amendment.

Ms Labuschagne asked how can DMR support the omission, yet also support the deletion of ‘designated agency’ and replacing it with ‘regional manager’. What has been voted on is what the DMR does not support and then it supports the omission of the section.

Ms Malie repeated the proposed amendment under discussion, which states “To omit the proposed amendment…” The DMR supports this.

Ms Labuschagne pointed out that all the votes that have been passed from line 40 to 46 substitute ‘regional manager’ with ‘designated agency’. There is a contradiction. How will this be handled?

Mr Nyambi submitted that this is more of the same process issue. The Committee knows what was submitted by the DMR to the NCOP and also the public participation process. Ms Labuschagne, correctly so, raised a question on process. What is it the Committee is trying to achieve in this meeting where the delegates present have mandates from the different provinces? Clarity is needed because the delegates cannot change what they have received as a mandate from their Province.

Ms Ncitha said the Committee should try and avoid debating the Act here and now. It is important, now, to submit the mandates of the Provinces. It is for the Committee to ask for clarity on the intention of the DMR and for the DMR to clarify to the Committee and then the Committee votes accordingly. There will be time in the House to engage on the Act.

Mr Sefako stated that the requirement is clear. Each and every member from his/her province has the authority conferred to him or her to participate. However, this process cannot be held hostage.

Ms Labuschagne took exception to the suggestion that she is taking the Committee hostage, stating that she does not have the power to do so. If she could take the Committee hostage, it does not reflect very well on the other members. Let the Committee refrain from that kind of language in this Committee. The process here is, according to the Mandating Procedures of Provinces Act. It is a process of negotiating that is the process of law-making. If the Committee cannot debate about the principle as explained by the legal advisor to determine if the Committee all agree on the principle or not, so members can vote according to their mandates, then the members are just rubber stamps. This is not what the Committee members are supposed to be. It is not easy to understand how Committee members are not allowed to debate. Concerning Mr Nyambi’s point, it is uncertain what is going on now. A question was asked what the implication is of the omission in clause 52, in lines 21 and 22. There appears to be a conflict between what has been voted on before and the omission. This is all that needs clarity – whether this understanding is correct or wrong.

Mr Sefako asked if the DMR input is confusing and Ms Labuschagne confirmed this.

Ms Daksha Kassan, Parliamentary Legal Advisor, explained the effect of substituting the words ‘regional manager’ for ‘designated agency’ and now the newly worded way to omit the proposed amendment, the effect is the same. The intention is to no longer provide for ‘designated agency’ to be taken out of the Bill. In other words, the intention is to keep the word ‘designated agency’ in the Bill. If one looks at page 30 of the Bill, line 46, there the Committee will see that ‘designated agency’ is in bold. That means the Bill has taken out that phrase from the Act, while ‘regional manager’ is underlined, meaning the Bill is including that phrase. Now, from the preceding lines, the wording was to substitute ‘regional manager’ with ‘designated agency’. In other words, to now keep ‘designated agency’ and remove ‘regional manager’. That is the intention there. In clause 52, in lines 21 and 22, it now states ‘pay the prescribed fee to the designated agency’ and ‘designated agency’ is taken out and ‘regional manager’ is put in. DMR and the Province are now supporting the omission of that proposed amendment, but the effect is the same.

Clause 52
Mr Nyambi proposed to omit the proposed amendment to section 75(5)(c) of the Act (page 7).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 53
Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” in lines 37-50.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 56
Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” in lines 23-45.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 57
Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” in line 17.

Voting took place: Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi continued with the amendment to substitute subsection (2A) (page 7).

Voting took place: Eastern Cape, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 58
Mr Nyambi proposed to omit the proposed amendment to section 81(1)(a).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to include the following subsections (2A), (2B), (2C) and (2D).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 59
Mr Nyambi proposed to omit the proposed amendment to section 82(2)(e) of the Act (page 8).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to substitute paragraph (g) with another  paragraph (page 8).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, and North West supported the amendment, while Limpopo and the Western Cape abstained.

Mr Nyambi proposed to insert the words ‘where appropriate’ before the words ‘applied for’ (page 8).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 61
Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” for lines 9-22, and 26-27.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 62
Mr Nyambi proposed to insert the following subsection (1A) (page 8)

Voting took place: Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Eastern Cape and the Western Cape abstained.

Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” (page 9).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 63
Mr Nyambi referred to the proposal to omit the proposed amendment to section 85(1)(a) of the Act (page 9).

Voting took place: Free State, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Eastern Cape and Western Cape abstained.

Mr Nyambi continued with the proposal to insert a paragraph after the subsection (2)(d) (page 9).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape was against.

Clause 65
Mr Nyambi proposed to substitute section 86A with another section (page 9).

Ms Labuschagne asked DMR what the implications are of supporting this.

Mr Sibusiso Kobese, Deputy Director Mineral Policy Development: Department of Mineral Resources, explained that the implications of the DMR supporting this proposal are positive. It is an improvement of what is contained in the Bill in its current form. It is a negotiated proposal with industry.

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 66
Mr Nyambi proposed to omit the proposed amendment to section 87 (page 12).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 67
Mr Nyambi proposed to substitute [“Regional Manager”] with “designated agency” (page 12).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 68
Mr Nyambi proposed to omit the proposed amendment to section 89 (page 12).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Clause 71
Mr Nyambi proposed to insert “subject to subsection (1A)” before “Any person” (page 12).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to insert after subsection (1) another subsection (page 12).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi proposed to insert after “subsection (1) the following “or subsection (1A)” (page 13).

Voting took place: KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Eastern Cape, Gauteng and the Western Cape abstained.

Mr Nyambi continued with the proposed amendment to insert after “the Minister” the following phrase “or the appeals panel, as the case may be” (page 13).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Mr Nyambi reiterated the proposal to insert after the words “subsection (1)” the following phrase “or subsection (1A)” (page 13).

Voting took place: KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Eastern Cape, Gauteng, Western Cape abstained.

Clause 74
Mr Nyambi proposed to insert another subsection (page 14).

Voting took place: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, and North West supported the amendment, while the Western Cape abstained.

Free State Negotiating Mandate
Mr P Parkies (ANC; Free State) said that he has been given the authority and the mandate to support the package of submissions made by stakeholders who participated in the Free State public hearing process.

Mr Sefako remarked that this was the mandate of the Free State. There are no issues or need to vote clause by clause.

Dr Mateme asked for clarity if the Committee is not meant to read the proposed amendments into the record?

Mr Sefako said that the mandate from Limpopo is more or less similar.

Northern Cape Negotiating Mandate
Mr Sefako indicated that, in the absence of a Northern Cape delegate, he would read the negotiating mandate. The Northern Cape has no issues for amendment, save to afford a permanent delegate to vote in favour of this Bill.

Limpopo Negotiating Mandate
Dr H Mateme (ANC; Limpopo) commented that Limpopo supports the Bill. The views of the Province are recorded in the mandate. If it is agreed to, it need not be read into the record.

Dr Mateme reiterated the question she had asked about the Free State Province mandate. Would the Limpopo proposed amendments (even though the mandate has not been read out) be put on record?

The Committee Secretary replied that the Free State mandate contained the stakeholder inputs from the public hearing. The Province was contacted and they said that the Free State mandate supported the Bill with no amendments. What they put in the report was the process which was followed and the submissions made by the stakeholders. There were no proposed amendments from the Free State Province.

The Committee Secretary said the Limpopo mandate in Point 4 on stakeholder participation at the public hearing, gives the stakeholder proposals. But the mandate does not state if those are proposed amendments by Limpopo Province. The Province has been contacted and it has been brought to its attention. It was put to the Province that if they want to change the wording to have these viewed as ‘proposed amendments’, they should send the Secretary a reworded document that stipulates this. This was done for the case of North West as well and North West sent a revised mandate. Unfortunately, nothing has been received from Limpopo Province. However, it is up to the delegate to proceed and read the mandate as she sees fit.

Dr Mateme replied that there could have been a communication breakdown as she has the reworded mandate and she thought it had been circulated.  It had been indicated that the previous format used was not the accepted one. Be that as it may, it would not be fair for the Province to feel disadvantaged and, at the same time, dissonance between the Office of the Chair and the Limpopo permanent delegate should be avoided. The reworked mandate, however, is here.

Mr Nyambi stated that the Select Committee cannot play the role of the Province. The Select Committee has played its own part in the NCOP to deliver public hearings. It has processed the submissions that came to the Select Committee. The Provinces had their own public participation. The Provinces cannot send their unprocessed public submissions to the Select Committee. This is complicating the process. The Province has a responsibility when dealing with public participation to ensure that what is sent to the NCOP Committee has been considered. The Select Committee is not meant to deal with all these submissions that should be processed by the province. It would be a nightmare if this is allowed. The Secretary was correct in the part that he played. The Committee is getting lost. It is as if the Committee is undertaking the mandate process for the first time, whilst the Committee is almost at the end of the Fifth Parliament.
           
The Committee Secretary commented that at 9.44 am he received a SMS from the Limpopo Provincial Liaison Office: “Hi, I am still awaiting the revised mandate. They sent one which was wrong and I am now correcting it. Will I still make it for the meeting? Mpho”. There was no miscommunication between the Office of the Chairperson and the Provincial Liaison Officer. The Committee Secretary said he had done his part and followed up with all Provinces as best as he could.

Mr Sefako asked the Committee if he could take the same approach with Limpopo as was taken with the Free State. This appeared to be accepted.

After Ms Ncitha ensured there was a quorum, the North West was invited to present its negotiating mandate.

North West Negotiating Mandate
Mr O Sefako (ANC; North West) noted the proposal to insert a definition for ‘customary law’ (page 2).

Ms Ncitha led the voting on the proposal: Eastern Cape, Free State, Limpopo, Mpumalanga, and North West supported the amendment, while KwaZulu-Natal abstained.

Discussion
Ms Malie said that the DMR is a bit concerned about the proposed amendment. It is uncertain whether it is in line with the objectives of the MPRDA, the goal of which is to regulate South Africa’s mineral resources, not ‘customary law’. Nowhere does the Bill talk about ‘customary law’.

Mr Theo Hercules, State Law Adviser, Office of the Chief State Law Advisor (OCSLA), added that, with regards to the proposed amendment of the insertion of the definition of ‘customary law’, as the DMR indicated, the Bill does not deal with ‘customary law’. However, when it comes to the interests of communities, then "community" is taken into account. The purpose of having a definition is if the term is actually used in the Bill.

Ms Ncitha confirmed that there is consistency of understanding among all the law advisors at the meeting.

The Parliamentary Legal Advisor noted that the term ‘customary law’ is not included in the definition of ‘community.’ As the State Law Advisor pointed out, only terms that are actually used in the Bill are meant to be defined.

Ms Ncitha suggested that after this explanation by the legal experts, Committee members redo the voting on the North West proposed amendment.

Mr Parkies asked for more context on the submission.

Ms Ncitha proceeded to redo the voting: Free State and North West supported the amendment, while the Eastern Cape, Mpumalanga, KwaZulu-Natal, Limpopo and Western Cape abstained.

Mr Sefako continued to present the North West proposed amendments. There was a proposal to insert the definition ‘directly affected community’ (page 2).

Ms Malie explained that the intention of the definition ‘community’ in the MPRDA Bill is to include all the communities that are directly affected, whether they were previously deprived of their rights or not. This definition of definition ‘directly affected community’ is limiting. It will exclude those communities, people living around who were previously not deprived of their rights.

Ms Ncitha proceeded with voting: North West supported the amendment, while the Free State, Western Cape, Mpumalanga, Limpopo, and KwaZulu-Natal abstained. Eastern Cape voted against the amendment.

Mr Sefako presented the proposal to insert a definition of 'communal land' (page 2).

Mr Hercules explained that once again this term is also not used in the Act or the Amendment Bill. Therefore, one cannot support the amendment because only words that are in the legislation are defined. Moreover, in respect of land which is held by communities under the Protection of Informal Land Rights Act, it is protected because it is national legislation.

Ms Ncitha proceeded with voting on the proposal: Free State, KwaZulu-Natal, and North West supported the amendment, while Mpumalanga, Limpopo, Eastern Cape and the Western Cape abstained.

Mr Sefako presented the proposal in section 2(d) to retain the deleted phrase ‘women and communities’ .

Dr Mateme asked the team to unpack the text.

Ms Malie responded that the National Assembly had voted for its substitution to ‘historically disadvantaged people’ and DMR has supported that adoption. This will ensure that it is all-encompassing, including women and communities.

Ms Ncitha proceeded with voting on the proposal: Limpopo, Free State, and North West supported the amendment, while Mpumalanga, KwaZulu-Natal, Eastern Cape and the Western Cape abstained.

Mr Sefako presented the proposal in section 2 to insert another paragraph after paragraph (i) (page 3).

Mr Sibusiso Kobese, Deputy Director: Mineral Policy in the Department on Mineral Resources, replied that there is an earlier process in section 54 that caters for the rights of landowners for access to land and surface use rights. Section 54 says that if any person wants to enter another person’s land and that is disputed, there must be a process led by the regional manager to then mediate with the parties. If that mediation process fails, it provides for a process of expropriation and a process through the courts. This proposal is already catered for in section 54. Landowners are covered in the view of the DMR.

Dr Mateme asked if ‘surface use’ contradicts the fact that the mineral wealth belongs to the ordinary people? Can you unpack what are sub-surface rights?

Mr Sefako clarified that for the community in a particular area, even the subterranean clean water needs to be protected because the degradation of the environment also contaminates the subterranean water, which will affect the well-being of the community in the area.

The State Law Advisor explained that it is important for the Committee to note that there are certain rights when it comes to communities that are fully provided for in legislation. In this proposed amendment, reference is made to the Interim Protection of Informal Land Rights Act (1996). That Act still applies and the protection of the rights of communities with respect to land issues are addressed. Therefore, this proposal is not necessary because it is already provided for in existing legislation.

Ms Ncitha proceeded with voting on the proposal: North West supported the amendment, while the Free State, Limpopo, Western Cape, and the Eastern Cape abstained. Mpumalanga and KwaZulu Natal voted against the amendment.

Mr Sefako presented the proposal in section 5A to insert another paragraph after paragraph (c) (page 3).

Ms Ncitha proceeded with voting on the proposal: Eastern Cape, Free State, Limpopo, and North West supported the amendment, while KwaZulu Natal, Mpumalanga and the Western Cape abstained.

Mr Sefako presented the proposal in section 10 to insert in subsection (1)(b) another paragraph (pages 4-5).

Ms Malie responded that DMR maintains that the minerals belong to all the people of South Africa and the consent principle is therefore applicable for the development of mineral resources. Most of the North West proposals read out by Mr Sefako relate to consultation. DMR has prescribed the consultation process in the Regulations and it has already committed that it will review that consultation process.  Some of the North West proposed amendments can find their way into the Regulations.

Ms Ncitha proceeded with voting on the proposal: North West supported the amendment, while Free State, KwaZulu Natal Limpopo, the Eastern Cape, and the Western Cape abstained. Mpumalanga voted against the proposed amendment.

Mr Sefako presented the proposal in section 10C on Composition of Regional Mining Development and Environmental Committee, to insert alternative wording at the end of section 10C(1) (page 5).

Dr Mateme asked DMR to unpack it further.

Mr Kobese explained that section 10C on Composition of Regional Mining Development and Environmental Committee, which a Committee that deals with objections received on applications that are being processed. In terms of the composition, this Committee can be comprised of representatives of government departments at all levels, national, provincial and local. The proposal that it must include the regional land claims commissioner is covered because this Committee can be comprised of representatives of government departments at all levels. The Committee cannot proceed without the commissioner. The Committee will deal with various issues and it will determine who must come to the particular sitting, depending on the nature of the case that is being looked at. It cannot be proscribed who must be in the committee because it is not a standing committee. It gets constituted depending on the issues at hand.

Ms Ncitha proceeded with voting on the proposal: North West supported the amendment, while the Free State, KwaZulu-Natal, Eastern Cape, Limpopo and Western Cape abstained. Mpumalanga voted against the proposed amendment.

Mr Sefako requested Limpopo to be on record with the position of Limpopo.

Dr Mateme responded that she thought it was already on record that the Office did not receive the reworked mandate.

Western Cape Negotiating Mandate
Ms C Labuschagne (DA; Western Cape) explained that the Western Cape mandate does not go clause by clause, which can be somewhat confusing. However, it has subheadings which can be read.

Ms Sefako asked Ms Labuschagne to read the mandate to the Committee.

Ms Labuschagne indicated that the Western Cape Standing Committee “confers on the Western Cape’s Permanent Delegate in the NCOP the authority not to support the Bill for the attached reasons”. The reasons were read out (see mandate).

Discussion
Mr Sefako explained that since the Province does not support the Bill, there is no need to vote.

Ms Labuschagne continued that, as has been explained by the legal advisor, any acceptance of proposed amendments, must be in line with the mandate. Despite the Bill not being supported, the aim in the end is to arrive at a Bill that is workable. The Committee is at the negotiating mandate stage. Even if the Western Cape does not support the total Bill, there are clauses in the Bill that can be amended, whether the Bill is supported totally or not. To say that the Western Cape proposals cannot be voted on during the negotiating mandate phase – this is not agreed to by the Western Cape. In the final mandate, the Western Cape may, depending on what is amended, change its mind. Amendments are supposed to take place here.

Mr Sefako asked the legal advisor if it is necessary to go through the Western Cape suggested amendments if the delegate is mandated not to support the Bill.

The Parliamentary Legal Advisor responded that the Western Cape rejects the Bill and reading the mandate there are eight pages of reasons under specific headings why the Bill is not supported. The mandate of the Western Cape does not say ‘these are our proposed amendments’. In another meeting, it was advised that it should be revised. The Member said she has another document. If the Member has submitted a document which says the Province rejects the Bill but provides parameters of negotiation on the basis of the rejection of the Bill, then the Committee can consider it.

Mr Nyambi said that legal team has clarified that in the Western Cape mandate, there are no parameters for something to consider as with the other provinces. What is trying to be done here is to come up with something outside the process of negotiating mandate. The Chairperson’s ruling was correct and the legal team has confirmed that. What has created some confusion was that Ms Labuschagne said there is another document. What is that ‘something else’ she was referring to? The legal team confirmed what is known to the Committee and the Chairperson was right in how he addressed the matter.

The Committee Secretary noted that because the Western Cape was the only Province that did not support the Bill, he looked at the wording. The Bill states that the Standing Committee “confers on the Western Cape’s Permanent Delegate in the NCOP the authority not to support the Bill for the attached reasons.” What is ‘attached’ are the reasons why they did not support the Bill. In other mandates, it reads that the Bill supported with amendments. The Province was approached and asked to clarify if these are the proposed amendments. The Western Cape mandate says that the Province does not support the Bill for the ‘attached reasons’. What is attached are the reasons why the province did not support the Bill.

Mr Sefako reiterated that there are no suggested amendments from Western Cape and ruled that the Committee should proceed. The Committee is grateful for the mandates given by the Provinces. The Committee is done with the processing the negotiating mandates. Limpopo has made its position.

Ms Malie appreciated the process conducted by the Select Committee and DMR would continue availing itself in supporting the Committee going forward.

The Committee Minutes were adopted and seconded.

Thereafter, the meeting was adjourned.

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