High Level Panel recommendations for Mineral Resources: Dr Claassens briefing

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Mineral Resources and Energy

07 November 2018
Chairperson: Mr S Luzipho (ANC)
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Meeting Summary

Dr Aninka Claassens, the High Level Panel chairperson of the working group on land, spoke about the Panel’s recommendations that affected mining. The legacy of apartheid had left its mark by creating spatial inequality and it was in that context that the Mineral and Petroleum Resources Development Act (MPRDA) was looked at, as well as other laws on traditional leadership and land rights. The Panel held public hearings in all the provinces and how mining affected communities came up very strongly in the North West, Limpopo, Mpumalanga, KZN and the Eastern Cape where people complained about how they were dispossessed by mining and that the mining did not benefit them. The recommendations were outlined.

The Constitutional Court judgment of 25 October 2018 on Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Ltd had far reaching implications on how the MPRDA must be interpreted according to people’s surface or land rights. The HLP Report said that part of the solution was the Interim Protection of Informal Land Rights Act (IPILRA). The Maledu judgement was important because it said one had to balance the benefits of mining against the constitutional rights of those affected by the mining. The judgement said the MPRDA had to be read in consonance with IPILRA and this meant that the award of a mining right did not nullify occupational rights under IPILRA. The MPRDA had never been used to expropriate land in the former homelands, only to confiscate it.

The Maledu judgement applied only to the MPRDA, but there was another Bill currently in Parliament, the Traditional and Khoisan Leaders Bill (TKLB) which would give traditional leaders the right to sign deals with a third party. In the previous week amendments were proposed to that Bill in an attempt to over-ride IPILRA, rather than make TKLB subject to IPILRA, as the Maledu judgment has done with the MPRDA. A second amendment was proposed to the TKLB where a decision could be attained via a “majority of relevant community members” voting for it. This new reference to “a majority of relevant community members”’ operated within the framework of the TKLB and not with land rights holders, as IPILRA did. Getting a decision via the majority was inconsistent with IPILRA because the majority members were not necessarily those directly affected. The implications of the Maledu judgement for various stakeholders were outlined.

Members said the Maledu case opened a can of worms as the IDC had invested R3.2b into the mining company and this was a major problem. Members said the biggest difference the court case made was that of seeing the case as a matter of surface rights versus mineral rights. Members asked when the Xolobeni judgement was expected. What was the status of IPILRA and has IPILRA been enforced in any other way? Members asked the Department and the Minister to respond to the judgement and what was it going to do. Could traditional councils be used to block mining and was this not unconstitutional? Members asked if there were guidelines on the need to get the consent of a community and how consultations should take place with the people. How much power would be given to traditional leaders because some of these leaders inherited powers. Members were concerned about women in mining, where the 40% requirement was not being adhered to. Was there a way to enforce this? Members said the Committee was dealing with a very complex issue and they were concerned about the approach to the matter and how it was being dealt with.

The Chairperson outlined what the Committee’s next steps would be:
▪ request a briefing on DMR’s view on the Maledu court ruling and the steps it would take as a result
▪ engage with the South African Human Rights Commission on its report recommendations
▪ look generally at the conduct of the mining industry
▪ engage with the relevant stakeholders on their attitudes to the HLP recommendations
▪ look at other interventions apart from legislation
▪ engage with the Portfolio Committees dealing with land reform and traditional affairs.

The Committee reviewed its Committee Report of Oversight Visit to Shiva and Mintails Mines which it amended as much had happened at Shiva Mine since its visit. It then adopted the Report.
 

Meeting report

High Level Panel Recommendations Affecting Mining
The briefing on the Panel’s recommendations as it affected mining was given by Dr Aninka Claassens, Director: Land and Accountability Research Centre, University of Cape Town, was a member of the High Level Panel on Assessment of Key Legislation and Acceleration of Fundamental Change and chairperson of the working group on land.

Dr Claassens said the Panel worked through 2016 and 2017 and held public hearings in all the provinces. How mining affected communities came up very strongly in the North West province, Limpopo, Mpumalanga, KZN and the Eastern Cape where people complained about how they were dispossessed by mining and that the mining did not benefit them. The Panel focused on land, social cohesion, and poverty and inequality. The Panel decided and agreed that the cross-cutting theme was spatial inequality. The legacy of apartheid had left its mark and it was in that context that the Mineral and Petroleum Resources Development Act (MPRDA) was looked at as well as other laws on traditional leadership and land rights.

Dr Claassens then spoke to the Maledu court judgement of October 2018 that had far reaching implications on how the MPRDA must be interpreted according to people’s surface or land rights, not in terms of mineral rights. The Maledu case was between a mining house and a community.

She said the entrenched structural inequality in SA came from mining. In the past homelands were created as cheap labour reserves and resulted in forced removals of people. The HLP felt that this structural inequality was being entrenched in the present partly through the MPRDA and through the Traditional Leaders Governance Framework Act (TLGFA). This was evident in the levels of poverty in the homelands as compared to the rest of SA.

Panel members were shocked when hearing the testimony of residents at the public hearings. The HLP Report said that part of the solution was the Interim Protection of Informal Land Rights Act of 1996 (IPILRA). Sections 25(6) of the Constitution protected those whose tenure was legally insecure because of past racially discriminatory laws and practices and section 25(9) placed the responsibility with Parliament which resulted in IPILRA where no person or community can be deprived of informal right to land without their consent except by expropriation. This meant that their informal rights became property rights. The law talked to occupation of for example a house, and thus it was a family right as opposed to a ‘communal’ right. It spoke to use of for example a field, which was also a family as opposed to ‘communal’ right. It spoke to access and thus communal right as for example shared access to grazing or forests. The starting point of IPILRA was the people who were affected.

She moved on to discuss the recommendations of the High Level Panel Report.

▪ On the benefit to the lawful occupiers, the recommendations were:
Where mining has already taken place on communal land and the directly affected community has not benefitted, the MPRDA must provide for compensation for individuals, households and communities to be calculated to put affected persons in the position that they would have been in had the mining not occurred.

▪ The MPRDA must be amended to ensure that both revenue from mining-related activities and opportunities generated by such mining activity are shared in an equitable and transparent manner amongst people whose land rights are directly affected.

▪ The MPRDA must be amended to include clear and binding financial and administrative protocols for entities that purport to represent community interests and companies that do business with them, including accountability mechanisms that align with customary law principles of transparency and accountability.

▪ The MPRDA must be amended to provide for a Charter to protect and promote customary and artisanal small- scale miners and set a framework for the participation of communities in the sustainable and equitable exploitation of the resources of their communal land.

▪ Section 47 (Minister’s Power to Suspend or Cancel Rights, Permits or Permissions) must be amended to expressly to provide for the suspension or cancellation of mining rights where a company has significantly failed to meet its Social and Labour Plan (SLP) and B-BBEE commitments. (This power has never been used, so must be made explicit to put the matter beyond doubt.)

▪ The MPRDA must also be amended to establish a mechanism to independently investigate and advise on community grievances in an efficient, democratic, and transparent fashion

On Dispossession the recommendations were:
▪ Section 10 of the MPRDA must be amended to expressly require that directly affected communities must be invited to negotiate and seek agreement on any mining application.

▪ The MPRDA must be amended to expressly require compliance with IPILRA as a condition for the grant of a mining- related right. (IPILRA rights are routinely ignored so compliance with IPILRA before a mining right is granted must be made explicit.)

▪ The MPRDA must be amended to specify the minimum information to be shared with community members, including full mining right applications and environmental impact assessments, prior to any decision to accept mining under IPILRA.

▪ The MPRDA must be amended to provide that a mineral-right applicant must, at its own expense, invite the community to appoint an independent expert(s) of their own choosing to assist in the IPILRA negotiation in communal areas.

▪ The MPRDA must be amended to provide that where more than one community is affected, each shall have the right to independently decide whether to grant or refuse its consent.

▪ Where mining requires the relocation of specific community members’ homes, insert a requirement that the majority of those to be relocated must consent to the mining activity.

▪ MPRDA is to provide that no person or community may be relocated to enable mining unless such relocation is unavoidable. Where relocation is unavoidable, and consent is granted, remedies and compensation must be clearly defined.

▪ Alternative land must be the default compensation and people must be offered living conditions equal to, or better than, their conditions prior to the relocation.

▪ Cash compensation must be based not on market value but on real value to affected people, taking into account the effective value of resources such as ploughing and grazing land, water access and cultural value.

▪ Amend section 5A (Prohibition relating to illegal acts) of the MPRDA to make it illegal to mine without community consent under customary law and in compliance with IPILRA.

▪ Should mining commence or a right be granted without the consent of the community, that community shall have the right to set aside the licence and to be paid compensation for the full damages suffered, or to consent to the mining retrospectively through the process to be set out in the MPRDA - including the negotiation of compensation, and to recover all compensation that would have been owed to it had the community’s consent been received from the outset.

▪ Communities are to have a right to revoke their consent should mining activities be conducted in a manner contrary to the MPRDA and its regulations, with communities then entitled to compensation for the full damages suffered by all mining activities.

Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another
Dr Claassens discussed the Constitutional Court judgment of 25 October 2018, saying that the statement by Frantz Fanon in his book titled “The Wretched of the Earth” is, in the context of this case, apt. It neatly sums up what lies at the core of this application. He said, “For a colonised people the most essential value, because the most concrete, is first and foremost the land: the land which will bring them bread and, above all, dignity”. Thus, strip someone of their source of livelihood, and you strip them of their dignity too.

The Maledu judgement was important because it said one had to balance the benefits of mining against the constitutional rights of those affected by the mining. The judgement said mining was one of the major contributors to the national economy, but there was a constitutional imperative that should not be lost from sight, which imposes an obligation on Parliament to ensure that persons or communities whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices are entitled either to tenure which is legally secure or to comparable redress.

The judgement was also important because it said the MPRDA had to be read in consonance with IPILRA and this means that the award of a mining right does not nullify occupational rights under IPILRA. There is no conflict between these two statutes; and both statutes make provision for expropriation of land if all else fails. She noted that the MPRDA had never been used to expropriate land in the former homelands, only to confiscate.

IPILRA was introduced in 1996 partly because tribal resolutions were introduced in apartheid where if a magistrate certified these resolutions, it was deemed to be true. In practice IPILRA has been ignored and there was a return to the previous condition, where if a traditional leader signed an agreement it implied there had been proper consultation. In paragraph 108 of the judgement, the court confirmed that there had to be proper consultation and that an agreement by a traditional leader and a mining company had no effect as it was not in conformity with IPILRA.

She said the key outcomes of the Maledu judgement were that:
▪ The MPRDA must be read concurrently with IPILRA and that those directly affected must be consulted and consent to any deprivation of their informal land rights, house, field and grazing; and that
▪ No evictions were possible until remedies provided by section 54 were exhausted. This referred to providing compensation.
▪ Once a section 54 dispute about compensation was lodged, mining may not proceed until compensation is agreed on.

Dr Claassens said that no section 54 agreements had ever been issued and that once mining commenced, it undermined the value of land and changed the balance of power. Now mining must be held back until people consent and compensation is decided up front. The expropriation of land rights was possible in terms of both IPILRA and MPRDA and the court determined the compensation in such cases so uncompensated confiscation was no longer allowed.

The judgement applied only to the MPRDA, but there was another Bill, the TKLB which gives traditional leaders the right to sign Bills with a third party and in the previous week amendments were proposed to that Bill. The amendment was that “(3) Any partnership or agreement entered into by any of the councils contemplated in subsection (2) must be in writing and, notwithstanding the provisions of any other national or provincial law”. She said this was an attempt to over-ride IPILRA rather than make TKLB subject to IPILRA, as Maledu judgment has done in relation to MPRDA.

She said there was a second amendment concerning getting a decision via a majority of relevant community members. It read, “(ii) a decision in support of the partnership or agreement taken by a majority of the relevant community members present at the consultation contemplated in subparagraph (i) ...” . she said the new reference to ‘a majority of relevant community members’ takes us nowhere because it operates within the framework of the TKLB. This does not start with rights holders as IPILRA does. It starts with councils and traditional leaders who represent the ‘traditional communities’ formerly named ‘tribes’. She said getting a decision via the majority was inconsistent with IPILRA because the majority members were not necessarily those directly affected. The relevant community was that represented by the council, according to old Bantu Authorities Act delineations. This would trump IPILRA’s focus on the people directly affected by mining who are never whole ‘tribes’ but always families and sub-groups whose homes, fields and grazing land are targeted for mining activities

She said the Maledu judgement had implications for:
▪ current mining agreements because agreements were invalid but only insofar they were challenged in court.
▪ future mining agreements because people needed to be properly consulted and give their consent
▪ the role of different parts of government through their tacit support in abrogating IPILRA and the lack of accountability.
▪ the Department, DRDLR, and Provincial Premiers who were all compromised because they knew that the agreements were not legal
▪ the role of mining houses, banks, legal firms, auditors as the above comments also included them
▪ the elite whose interests were privileged at the expense of the basic citizenship and property rights of poorest South Africans who bear the costs of damaged environments and destroyed rural livelihoods and the loss of money to SA as money was taken out of the country.

Dr Claassens said any property right goes with a decision-making ability on that property. People blamed the politicians, not the traditional leaders because the politicians had not held the traditional leaders to account.

Discussion
The Chairperson thanked the presenter for providing input on developments subsequent to the HLP Report.

Mr H Schmidt (DA) said the Maledu case opened a can of worms. The IDC had invested R3.2b and this was a major problem. He said the biggest difference the court case made was that of seeing the case as a matter of surface rights versus mineral rights.

Mr J Lorimer (DA) asked when the Xolobeni judgement was expected. What was the status of IPILRA and has IPILRA been enforced in any other way? He wanted to ask that the Department respond to the judgement and what was it going to do. Could traditional councils be used to block mining and was this not unconstitutional.

The Chairperson said the Committee had requested the Department to present on many of the cases and should add this case as a priority matter. On the urgency, he said that the speed was dependent on Parliament and the Speaker’s Office and not the Department. The MPRDA Bill had not been withdrawn as it was still with the NCOP.

Ms Y Yako (EFF) asked if there were guidelines on the need to get the consent of a community and how consultations should take place with the people. How much powers would be given to traditional leaders, because some of these leaders inherited their powers. She was concerned about women in mining, where the 40% requirement was not being adhered to. Was there a way to enforce this? She wanted the Department to discuss the Maledu judgement.

Dr Claassens replied that all the recommendations on land were in the chapter on spatial inequality in the HLP Report. These recommendations were the ones that were relevant to the MPRDA.

On surface rights versus mineral rights, she replied there was nothing in law that said that mining rights trumped surface rights, it was only an assumption within the legal fraternity and there was no authority for such a statement. Court cases had never said explicitly that mining rights trumped surface rights. The Maledu judgement said that one had to balance mining rights with constitutional rights.

She replied the Xolobeni judgement was expected within the next few months. The Xolobeni case arguments were brought into the Maledu case as an amicus of the court. So, the Xolobeni judge had been waiting for the judgement in the Maledu case to be given.

Dr Claassens replied the status of IPILRA was that it was enacted in 1996 in anticipation of a new Land Rights Bill, but that Bill was shelved in 1999 and replaced by the Communal Land Rights Act. Until then the people were the owners of the land. She argued that a shift was driven by the MPRDA, where government returned to the old exclusions of people and undermined people citizenship and property rights in return for a cut in mining profits. IPILRA, then, was a thorn in the flesh of government and could not be repealed as it gave the right to tenure security under section 26 and section 25(9) of the Constitution and was very current, having to be renewed each year. Government’s response was to not enforce IPILRA. One of the recommendations of the Panel was that IPILRA had to become permanent.

There were a few other cases involving IPILRA but not many because government had not enforced it.

Dr Claassens replied that the timeline was urgent and the Committee should not wait for the Department to draft legislation to give effect to the Maledu and Xolobeni judgements. She hoped the Committee would also discuss the devastating SA Human Rights Commission report on mining. IPILRA did not give people the ability to block mining, because if they did not consent, they might face expropriation.

On the question of whether it was fair that people with informal rights was stronger than those with title rights, she said the Constitution gave rights to people who were structurally vulnerable and the Maledu judgement allowed people to get compensation. She believed it was correct that people with informal rights had stronger rights than those with title rights. Those whose land had been taken did not get the benefit of the mineral rights vested in the land since the advent of the MPRDA and this was the view of the Minister for Land Affairs at the time of the MPRDA’s introduction. People with title were in a better negotiating position. She said fat mining profits should not be used to buy off BEE partners, it should be for the people directly affected by dispossession.

The public hearings were shattering for the Panel. She said people expressed their disillusionment and felt betrayed and people wanted traditional leaders to account for their actions, it was not a question of doing away with traditional leaders.

She said IPILRA’s consultation processes were put in place by the Department of Land Affairs. Government did not have the capacity to implement IPILRA’s processes, so one needed to get mining companies to pay for independent contractors to oversee the processes. Sometimes IPILRA was not implemented because officials were corrupt.

On the question of the power and capacity of traditional leaders, she replied that some traditional leaders were brave to oppose mining and it was wrong to say all traditional leaders were the same.

She said traditional councils should comprise one third of women and without that component traditional councils had no legal standing. In 2018, the TKLB Bill would however extend this by two years as this was the time traditional councils would have to comply with the one third requirement and remove the consequences of invalidity.

The Chairperson said the Committee may need to look at the SA Human Rights Commission Report (SAHRC) and to take into consideration other portfolio committees. The Committee would have to report to Parliament and Parliament would decide. The licensing of minerals would require the input of other committees as well and a special intervention would be needed to be able to do something in the near future.

Mr M Matlala (ANC) said the Department and the Minister had to be called to discuss the HLP Report and be held accountable. He said the Committee needed to meet with the Land Reform Portfolio Committee.

Ms Nyambi (ANC) agreed with the sentiments of Mr Matlala.

Mr I Pikinini (ANC) said traditional leaders worked amongst their own community and one assumed they knew their views, but they still took decisions which favoured them personally. Consensus should be reached on cross border boundaries. How was this going to be resolved? How could historical legacy challenges be dealt with?

Dr Claassens said the SAHRC Report dovetailed with the HLP Report. The SAHRC report focussed on social and labour plan (SLP) failures and how mining was approved where long term damage to the environment was caused at the expense of short-term profits. There were no studies of what alternative uses there were for the land.

She said people did believe in customary land rights and systems. Without customary land rights they would have had no land rights because they were denied common law and statutory rights. People were arguing for a different version of customary law, because customary law was accountable, and decisions were made at a lower level. It was about how national law was distorting and undermining customary practices by enabling people to get away with crookery through officials not implementing laws. One of the positives of the report was the need to give people land rights, because 60 percent did not have land rights. Customary laws were family based and inclusive as opposed to individual rights which were exclusive.

On cross boundary areas, she said the TLGFA 2003 resuscitated the old tribal authority boundaries established in 1951. Later there were massive forced removals to make up the homelands. These homeland boundaries were deeply illegitimate, and title was vested in the tribe. So, there was conflict between municipal boundaries and traditional council boundaries and it made the decision-making unit the tribe, which had different implications in different provinces because of their different histories. She asked if the Committee in its oversight visits heard stories of dispossession where people had to go to court all the time to get anywhere. People did not trust politics anymore and the Department was seen to be part of the problem.

Mr N Mandela (ANC) said the Committee was dealing with a very complex issue. He spoke about the impact of land dispossession historically and the resistance to it by traditional leaders who had been stripped of their land and imprisoned. He asked if a study had been done of uncolonised South Africa. The discussion on traditional leaders and on land dispossession was much more complex than appeared to the eye. In the Xolobeni case, for example, the Pondo were a nation not a tribe. There was a need for a detailed engagement on tribal names, communities, traditional leaders and title holders. Dispossessed land was, for example, restored to someone only for that land to be dispossessed once again and given to someone else, later to be dispossessed and given to someone different and so on. He was concerned about the approach to the matter and how it was being dealt with. The discussion therefore had to include the Department of Mineral Resources as well as other relevant departments.

The Chairperson spoke to the effectiveness of Parliament and it being circumscribed to the authority of traditional leaders.

Dr Claassens said the report did have a chapter on Parliament and it made recommendations. The chapter said that Parliament made all these laws and the laws were not enforced as Parliament lacked capacity. It needed more legal capacity, so they could draft laws and not be dependent on the Department. Structurally Parliament was in a difficult position to exercise oversight and execute its mandate to develop law because currently it was dependent on the executive to develop law.

She said that as a white person, she was not the right person to answer Mr Mandela’s questions. She said she agreed that racial dispossession was what had caused South Africa to be in the situation it was in. In law the word ‘tribe’, which was used in the Native Administration Act, meant traditional community. It was a misnomer, but it was being now reinforced by law.

On Mr Mandela’s comments on Fanon and on the Xolobeni struggle, Dr Claassens said there were links to the strengthening of resistance like the Pondo revolts and what was currently happening.

On the history of the land, she said there were some court judgements in history where basically colonialists said that traditional leaders had the power to make decisions for the tribe. People like Sol Plaatje argued that the decisions were not taken unilaterally; they were taken at different levels. This issue was being researched at the moment.

Dr Claassens acknowledged the brave leaders of the past and said there were also leaders like Chief Albert Luthuli, who opposed the Bantu Authorities Act. She said the North West Traditional Leadership Act contained countless pages of the old Bophuthatswana laws and was in effect resuscitating a version of custom that had nothing to do with the inclusive version of custom which had enriched their lives.

She said traditional land rights should recognise that land ownership was not just through tribes. Some people in the past used to club together to buy land. There were many ways people resisted dispossession by using other forms of land rights. The narrative of one history did not do justice to the many ways people resisted.

The Chairperson said that if one went to Xolobeni one would find around ten groups, comprising development trusts, foundations and the like which made it difficult to decide who to deal with.

The Chairperson outlined what the Committee’s next steps would be:
▪ request a briefing on DMR’s view on the Maledu court ruling and the steps it would take as a result
▪ engage with the South African Human Rights Commission on its report recommendations
▪ look generally at the conduct of the mining industry
▪ engage with the relevant stakeholders on their attitudes to the HLP recommendations
▪ look at other interventions apart from legislation
▪ engage with the Portfolio Committees dealing with land reform and traditional affairs.

He still believed the HPL Report did not go deep enough as there was limited capacity within the Portfolio Committee which had only a researcher and content advisor.

Mr Schmidt agreed and noted that Dr Claassens had said that there was legal counsel willing to assist, from a legal perspective, to get a view on what to do

Dr Claassens said the advocate in the Maledu and Xolobeni cases and who was also a High Level Panel member could be invited as he would be able to give a clear explanation of the implications of the judgement.

The Chairperson said the advocate, in his capacity as a High Level Panel member, would be considered, as would other people.

Committee Report of Oversight Visit to Shiva and Mintails Mines
The Chairperson said that a lot had happened at Shiva Mine since their visit and the report did not reflect the current situation which had become worse. He listed the Committee’s recommendations to the DMR:
▪ identify the gaps between mining insolvency and company law that has led to this ongoing situation where the polluter does not pay, and the state ends up paying.
▪ get specific legal opinion on these complex issues.
▪ report to the Committee what it needed to do differently in future so this does not continue
▪ report on what efforts they have made to hold directors and shareholders of Shiva and Mintails liable for the environmental debts of the failed ventures
▪ actively ensure that the licensing of mines goes with responsibility and accountability
▪ explore regulatory gaps resulting from the business rescue process and come up with regulations that ensured environmental compliance when mines experienced financial distress.
▪ design and implement a standardised approach when dealing with the relaxation of environmental financial provisions for mines that undergo business rescue processes.

He said subsequent to their visit, one of the two business rescue practitioners / liquidators had left. He had not included the recommendation on the need to meet with IDC on its development objectives as they were in liquidation. He had read in the media that cable theft was even worse and that illegal mining was at its highest level and there might have been a complete takeover of the mine.

Mr Schmidt agreed that the recommendation about IDC must not be part of the report. He said the loss of R30m was not a minor incident, so the word minor should be removed. On the IDC loan, he said the IDC had not paid R38m and this fact need to be confirmed.

The Chairperson said the loan had been guarantees and it would be checked.

The Committee adopted the Report with amendments.

House Chairperson response to request for Inquiry
There was a discussion on the reply of the House Chairperson, Mr Frolick, to a letter sent by the Committee requesting funds to do oversight on allegations of corruption in the Department.

The Chairperson said the House Chairperson’s objections had not been about the funds, but due to the National Assembly’s processes. Parliament should have concluded its work and not be starting new work at this point. The letter did however add that the Committee could deal with the matter as part of its normal oversight function.

Mr Schmidt said the letter said the matter should have been dealt with in 2017. The DA objected to the House Chairperson’s response because no investigation had been done at all.

The Chairperson said the Committee had been in agreement on what needed to be done; it was only the question of how it would be done and legal advice had been sought. Mr Frolick’s letter was saying that it could not be done through an enquiry, but it could be done through the Committee’s oversight role.

Mr Mandela (ANC) said the process to uncover maladministration had started with the old Minister and continued with the new Minister.

Mr Schmidt said little had been done to bring the Department to account and his objection to the letter was that it closed down the investigation.

The meeting adjourned.

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