Committee Legacy Report

NCOP Land Reform, Environment, Mineral Resources and Energy

30 July 2019
Chairperson: Ms T Modise (ANC, North West)
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Meeting Summary

Legacy Reports Fifth Parliament (2014-2019)

The Committee received a briefing from its Content Advisor on the Legacy Report of the previous Committee, and heard that there were eight unfinished issues that stemmed from the activities of the Fifth Parliament. These included:

  • Farmer support and the optimal utilisation of agricultural land;
  • Challenges with local government environmental competencies in the fields of air quality, waste management and waste water disposal;
  • Policy direction and impact for the land reform process;
  • The impacts of mining and the efficacy of the One Environmental System;
  • Policy challenges and opportunities, such as developing the oceans economy from a fisheries and aquaculture perspective;
  • The green economy, involving the policy and practice of the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Mineral Resources and Energy (DMRE);
  • Optimising the intergovernmental relations (IGR) and conditional grant (CG) policies, for the integration of the Social and Labour Plan (SLP) and the municipal integrated development plan (IDP);
  • The policy, legislation and regulatory impasse in the Department of Mineral Resources and Energy (DMRE).

Challenges that had hampered the smooth functioning of the Committee’s work were also highlighted, the most important of which was that the various departments that were part of the Committee’s oversight responsibilities tended to work in silos, and budgets earmarked for key targets were often scattered across departments, affecting service delivery outcomes.

The Content Adviser suggested that solutions to planning challenges would include fewer oversight priorities, so they could be covered in greater detail. There should also be continuous background research feeding known information into the body of reports for Committee consideration, progress on oversight reports continuing during constituency and recess periods, and oversight priorities resulting in Committee reports with clear recommendations on investigated topics.

Members commented that the report was a chilling reminder of the Committee’s inability to perform its oversight functions for various reasons, so it should be studied thoroughly by all the Members during the Parliamentary recess. It was also suggested that the Content Advisor should help to highlight areas of importance for the Committee to focus on, and to have a programme of action ready for them.

Meeting report

The Chairperson welcomed Committee Members and visitors to the meeting, and reminded them that the purpose of the meeting was to deal with the Fifth Parliament Committee’s legacy report, which had not been done before the end of the Parliamentary term. It had become imperative to deal with it now in order not to overcrowd the Committee’s activities during Parliament’s second term.

Mr Asgar Bawa, Committee Secretary, said three pieces of legislation had not been dealt with during the Fifth Parliament, and had been deferred for the current Parliament to deal with. They were:

  • Department of Mineral Resources. The Bill was the Mineral & Petroleum Resources Development A/B [B 15D – 2013] (s76). This was a remitted Bill that the Committee had dealt with, but which was stopped in the middle of the process because the Minister withdrew. However, this was not formally communicated to the Committee and Parliament. This Bill was still with the National Council of Provinces (NCOP), and they were in process of sorting out how to proceed.
  • Department of Environmental Affairs. The National Environmental Management Laws A/B [B 14D – 2017] (s76). The Bill had been referred to the Committee after the NOCP 2018 May deadline, so the Committee had therefore left the Bill over for the Sixth Parliament.
  • Department of Agriculture, Forestry and Fisheries. National Forests Amendment Bill [B 11B – 2016] (s76). This Bill had also been referred to the Committee after the NOCP 2018 May deadline, so it had been left over for the Sixth Parliament.

Legacy Report: Overview

Mr Jakobus Jooste, Content Adviser, said that because of time constraints, they would not be able to work on the five years of the Committee’s legacy this morning. What would be done, however, was to re-interpret the Committee’s legacy. There were two types of legacy -- content legacy and practice legacy, which dealt with the method of doing oversight. Some of the challenges the previous Select Committee faced in the discharge of their oversight functions would also be highlighted, and methods being considered towards reducing this challenges would also be stressed. This Committee oversees multiple departments, but the key issues it was mandated to oversee were to detect and prevent the abuse of arbitrary behaviour on the part of government and its entities, ensure fiscal responsibility and accountability, ensure government policies were delivered, improve government transparency, and enhance public trust.

The High Level Panel report commissioned by the previous Committee had stated in its report that the critical issue confronting policymakers with respect to the overarching policy goals of legislation affecting the shape and rate of growth of the economy, was the extent to which all of its key elements were compatible with one another. This Committee had different departments that it oversaw, and they all tended not to occupy the same space, and the compact ability of policy goals became an oversight challenge for it. These departments tended to work in silos, and budgets earmarked for key targets were often scattered across departments. This affected service delivery outcomes, so the compatibility challenge had to be addressed.

There was also a trade-off challenge, meaning which department got its way and which did not. If mining was pushed forward, it did not mean that agriculture or land reform remained optimal. The departments that comprised this Committee did not work together in synergy and this had presented an oversight challenge.

In summing up, the oversight challenges were departmental planning, resource allocation, the impact of national objectives and citizens’ expectations and rights. Besides these factors, the High Level Panel report stated:

“The Panel has been confronted, from the testimony of the public and experts alike, with evidence of weaknesses on the part of government to execute policy and legislation. There were many areas where submissions to the Panel lauded the direction and the substance of policy and legislation, and found no fault with its content, but raised fundamental concerns about the implementation and enforcement of existing laws.

“These breakdowns in execution occurred despite an extensive machinery designed to monitor the executive and to hold it accountable for outcomes. This brings into focus questions concerning the effectiveness of governance and accountability mechanisms, including the role of Parliament in providing oversight.”

Mr Jooste said that historically, the Department of Environmental Affairs (DEA) had not received its fair share of oversight attention from the Committee. This was due to the dominance of Mineral Resources, Land Reform and Agriculture in the government’s focus, as well as the impact of legislation before the Committee. The latter took precedence over all other scheduled activities.

The DEA had a number of shared national/provincial and local government competencies which were of interest to the Committee. These include air quality management and monitoring, waste management, and provincial and municipal conservation management (provincial and municipal parks and nature reserves).

The Department of Rural Development and Land Reform was most commonly associated with the land reform process, but was also responsible for rural economic development and matters related to security of tenure for people living in communal land or on land that they did not own. All of the responsibilities of this Department had been subject to Committee oversight, with the land reform process receiving the majority of focus.

There had been widespread non-compliance with Extension of Security of Tenure Amendment (ESTA) Act, with a “disturbing lack of knowledge of ESTA by all role players,” according to a 2003 South African Human Rights Commission (SAHRC) report. The Commission had also reported a “complete lack of compliance with the legislative provisions of ESTA in some court proceedings, resulting in farm workers being evicted in terms of common law.” Other factors were:

  • The high number of evictions associated with a change of farm ownership;
  • A failure by the state to adequately train its officials to implement legislation, resulting in a high rate of illegal evictions;
  • A lack of access to adequate housing for many farm workers. The SAHRC report had noted that the Department of Housing had “demonstrated little understanding of the rural context,” and that they were “clearly not grappling with the issues of farming communities;”
  • The report stated that there was inadequate provision of emergency housing, and required that “relevant government departments submit a reasonable plan to the SAHRC that addresses people in crisis situations after an eviction.”

Although the Department of Mineral Resources (DMR) was traditionally not the focus of the Committee, it had become part of its portfolio during the Fifth Parliament. The DMR was constituted on a national mandate only, with a provincial presence only in the form of regional offices. This had caused many intergovernmental relations (IGR) challenges for the Committee, with local and district municipal offices complaining that the Department acted in isolation. Local government needed closer co-operation with the Department during the development of municipal integrated development plans (IDPs) and Local Economic Development (LED) plans. The DMR was seldom forthcoming during such planning exercises.

Mr Jooste said that solutions to planning challenges would include fewer oversight priorities, so they could be covered in greater detail. There should also be continuous background research feeding known information into the body of reports for Committee consideration, progress on oversight reports continuing during constituency and recess periods, and oversight priorities resulting in Committee reports with clear recommendations on investigated topics.

Outstanding issues from Fifth Parliament

Mr Jooste presented the Committee with a list of issues which represented “unfinished business” from the previous Committee. These included:

  • Farmer support and optimal utilisation of agricultural land;
  • Challenges with local government environmental competencies in the fields of air quality, waste management and waste water disposal;
  • Policy direction and impact for the land reform process;
  • The impacts of mining and the efficacy of the One Environmental System;
  • Policy challenges and opportunities, such as developing the oceans economy from a fisheries and aquaculture perspective;
  • The green economy, involving the policy and practice of the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Mineral Resources and Energy (DMRE);
  • Optimising the IGR and conditional grant (CG) policy, for the integration of the Social and Labour Plan (S&LP) and the municipal IDP;
  • The policy, legislation and regulatory impasse in the DMRE;
  • Biodiversity loss.

The biggest oversight constraint was that the NCOP timetable did not allow for sufficient meeting opportunities. On average, 24 to 30 days started out as being earmarked for meetings and oversight visits. However, plenaries, timetable changes, sectoral events and legislation severely impacted on the activity of the Committee. A strategy shift towards fewer objectives should be considered in order for the Committee to have measurable impact

The reality of the number of outstanding issues was that they represented most of a year’s activity, when budget, annual performance planning, strategic planning, sectoral Parliaments and oversight visits were considered. Planning in this way by the previous Committee merely created an unrealistic schedule of single meetings that had not resulted in recommendations flowing from the Committee to the House regarding policy, legislation, mandate, or the identification of budget challenges.

Challenges

Mr Jooste said that to deal with the oversight challenges, an idealised oversight and oversight timetable had been prepared, based on the budget circle of the Department. There were two Houses performing this function in collaboration, but in theory everything was covered from the policy budget allocation that allowed viable projects in the end to reach policy attainment. The Committee’s oversight at the moment was structured on this assumption, although the experience was that there were impediments sitting between policy and budget and service delivery at the lower government level. Between the national executive planning and budget allocation and service delivery lay numerous potential barriers to the attainment of that service delivery, such as the amount allocated to a task, the staff from national departments, or provincial structures. The ideal service delivery programmes did not take these challenges into account, so the specific Committee oversight needed to take them into account.

National departments therefore needed to align and design strategies to feed into national policies. Annual planning cycles, budget allocations, international agreements and legislation, were centred on those objectives. What Select Committee oversight often lacked was its influence at local and provincial government levels. In the public engagements and the sectoral events sphere, there was a lack of understanding of the inputs that could be gleaned from these events, and also a lack of a feedback mechanism that allowed the Committee to feed these experiences back to the oversight reporting system.

Early next year, committees could start planning according to the new oversight strategy. What this meant in effect was -- if one took the Department of Agriculture as an example -- more than 50% of its budget would be transferred to provinces as a conditional grant, and other departments would also have such transfers. Provincial departments that financed these transfers perform this function and report back to national government, but until now there was no synergy between the portfolio committees’ annual reporting cycle, which looks at quarterly performances. Budget allocations and transfers at the national level did not filter down to the select committees’ oversight.

This cycle did not mean that the Committee would not perform its statutory functions and focus only on financial tracking, but rather meant that when there was a matter to be looked at the national level, the answer could very often be found in the local and provincial government sphere. Joint oversight had been suggested in the Fifth Parliament, but there had been no strong mechanism for it. This was a mechanism that should be explored. When a National Assembly committee identified a challenge, and it involves a local or provincial government entity, the only way to completely understand the problem was for the portfolio and select committees to work together and to apply joint oversight, reporting and planning in order to better understand the service delivery challenge.

In the Fifth Parliament, Committee Members had raised concerns about overstepping into other spheres of government and thus triggering a separation of powers concern. The country’s legislation and constitution, with the Division of Revenue Act, the Municipal Systems Act, the Municipal Structures Act and the Public Finance Management Act (PMFA), all contain mechanisms through which the national departments are responsible for ensuring that the funds are spent as required. This did not mean that the national department would just transfer funds to a provincial entity, cite the separation of powers, and then step back and ask for feedback only at the end of a financial term. It was actually responsible for monthly tracking of expenditure, and for allocation and performance monitoring. This Committee had not focused on those channels of oversight at all, because there simply was not time and there was not a national cycle that matched the quarterly performance reviews. Therefore, during the duration of the Fourth and Fifth Parliaments, questions on how grants and funds were applied in provinces were put to the national departments. What happened then was that the national departments would normally come to the committee to reassure them that their own oversight structures did exist.

One of the challenges that the Committee was well aware of was the staffing challenge at the local government level with regard to financial management. One of the requirements of the Division of Revenue Act was that no funds could be allocated to municipalities that did not have a financial manager and accounting structures. The Committee could take this as a first oversight criterion when assessing how many municipalities had those accounting structures in existence compared to how many receive grant funding. Without a ring-fenced mechanism that was carefully monitored and studied, and a system of controlled transfers, what happened was that the money disappears into a joint account budget, and the likelihood of it not being spent exactly as the national department mandated was very high.

Committee schedule

Mr Jooste said that at present the Select Committee’s full schedule for the remainder of this year was not known, and there were not significant oversight windows left. The reality was that the moment some piece of legislation was referred to Committee, it would likely consume most of the remaining year of oversight work. Between 24 to 30 days of the Tuesday slots were allocated to the Committee annually. If one took into account the four votes the Committee had -- now five with the energy department added to it – and adding the basic APP and budget meetings, performing the basic sectoral events such as “taking Parliament to the people” and provincial weeks, and carrying out the legislative oversight that typically was required of the Committee, those 24 to 30 days were gone. The Committee had so far barely touched a province or any entity, and had not had the opportunity to study even one of the critical challenges identified in its strategic planning.

There were 18 points of unfinished business from the Fifth Parliament, some of which had been dragged over from the First Parliament. If it was proposed to the Committee that the unfinished business be considered first, it would be towards the end of 2021 that anything new could be touched. Meanwhile, there were many issues, such as air quality management that had even led to litigation that had not been touched, but had consistently been in the Committee’s agenda. There were also the cooperatives and communal property associations (CPAs) that had been on the roster for nine years. There was the impact on mining of land utilisation patterns as well. Consultation with communities affected by mining was not a new challenge, but it remained an unfinished line item in the Committee’s strategic plan from the entire Fifth Parliament.

If one wanted to take anything from the legacy of the Fifth Parliament, it was that the last Committee did not waste its oversight meeting windows. This should be highlighted as the legacy of the past Select Committee. It should not be remembered for what it had been unable to deal with.

Mr Jooste gave a summary of the Committee’s experience with the departments in its portfolio.

He said that stable policies and implementation by the Department of Agriculture, Foresty and Fisheries had not been as they should have been. This Department did not have a track record of having White Papers in place for everything that the financial allocation was being made for in its budget. This was a concern, because over time the Department would change focus, shift money around and prioritise food security, but there was no overarching White Paper on addressing food security. It was not mismanagement to do that, but it was very difficult to create a logical project management cycle with the lack of a White Paper to back it up, because each new Minister and Director General (DG) responsible for an area had to plan without a guiding national policy document.

Subtle shifts on how finance was used, and what type of projects was considered more important, had been seen. If projects were not finished, the budget that flowed into it for a number of years got directed to somewhere else, and this meant that there was no measurable impact or attempts made further to carry that impact forward to the next project. Reporting to the Committee had also been fragmented and light on content. The Auditor-General (AG) and fiscal committees had consistently stated that the Department used targets that were not measurable. If there were no measurable targets, it made it almost impossible to evaluate service delivery because the impact could not be evaluated. The Department continued to use vague targets, and related to that was the fact that Stats SA had changed the questions it asks in agricultural surveys and the employment census etc. This presented a critical challenge, because when a question was no longer asked, it became difficult to measure an impact, and it stopped the data flow.

There was a serious challenge with the national development plan (NDP) targets for agriculture. The target for irrigated agriculture had not taken into account that there was no water for that, and the million jobs to be created in the agricultural sector did not take into account that 700 000 jobs had been lost. Did this then mean a million jobs starting from that point, or after making up for all the job losses?

In the Environmental Affairs sector, air quality management and monitoring, waste management, and provincial and municipal conservation sections were woefully under-staffed.

The last White Paper on Rural Development and Land Reform had been in 1997. There had been a short Green Paper that was devoid of targets published in 2011, but it did not flow into a change in policy. This meant that almost everything that Rural Development was doing now had shifted away from its White Paper. Recapitalisation did not exist in its White Paper, and it still spoke of small parcels of land for subsistence farmers. In the last briefing that was held, the Department was giving out 480 hectares for smallholder farmers because they were now classified as commercial farmers, which was a big shift from the White Paper.  It was also a shift from what they could be evaluated against, apart from the under-funding that was also a big challenge for the Department.

Contrasting the activity between rural development and agriculture, commercial agriculture was down to about 35 000 farmers, and they spent about R110 billion a year to farm. Rural Development and Agriculture did not have even a tenth of that amount, and that sector could never be transformed with the money it had. The policy now being used was destined to fail.

The Chairperson then suggested that because of time constraints, the Committee would devote about 15 minutes of the next Committee meeting to deal with matters that had not been dealt with today. It was important to understand what was happening in the departments so that Members were familiar with the challenges they faced and meaningful engagement could take place.

Minutes of the previous meeting were adopted with amendments.

Discussion

Mr M Nhanha (DA, Eastern Cape) said the legacy report had been a chilling reminder of the Committee’s inability to perform its oversight functions for various reasons. He suggested the Committee read the entire report with utmost attention. The Content Adviser had done an amazing job in writing it, and the Members would be doing a disservice by merely glancing over it. He proposed that it formed the basis of the Committee’s plan of action, and that Members should use the break to read it thoroughly. He requested the Content Adviser to provide more proposals and guidance to the Committee .

Mr T Matibe (ANC, Limpopo) said just rushing over the unfinished business of the last Parliament would not do justice to the document. The Content Adviser should help to highlight areas of importance for Members to look at, and have a programme of action for the Committee.

Ms N Koni (EFF, Northern Cape) was of the view that this was one of the most important select committees in the NCOP, and said she was happy that the Chairperson had emphasised after her election that priority would be given to the unfinished business of the previous Parliament. The Committee must be proactive and put emphasis on ensuring that departments implemented its recommendations. She seconded the suggestion that a full day be allocated to deal with the matters not dealt with today when Parliament reconvened.

The meeting was adjourned.

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