The Committee first considered two separate petitions from the Winburg community and the AbaThembu tribe. It was then briefed by the Department of Mineral Resources and Energy.
Members expressed disappointment that the Masilonyana Local Municipality had not sent anyone to represent it at the meeting. Members agreed that the Committee would seek approval from Parliament to summon the municipality to another planned sitting in the following week.
During its consideration of the petition by the Winburg community, the Committee was informed that Masilonyana had not submitted its annual financial statements since 2016 and as a result, it was placed under administration in 2018. Members expressed their disbelief that residents in the community had to use their own money to provide themselves with service delivery. Members agreed that once they had received approval from Parliament, they would conduct an oversight visit in the area, to verify the claims made by the community members in the petition.
The Committee resolved to schedule a meeting with the municipality within seven days. The Free State Provincial Department responsible for local government would be requested to brief Members on the close-out report provided by the administrators. In addition, the Municipal Public Accounts Committee, the South African Local Government Association the current Municipal Manager and the Executive Mayor would be asked to attend the meeting.
The legal advisor to the Committee advised that it should not consider the petition filed by the AbaThembu tribe, as the petitioner was not a customary representative of theirs and the land restitution claim dated back centuries – whereas the Constitution only made provisions for such claims to be considered for land that had been wrongfully taken away from 1913. The petition was dismissed by the Committee.
The Department of Mineral Resources and Energy indicated that the legal matter between Gencor (and its subsidiaries) and its former workers were still ongoing. An agreement had been reached between both parties in 2003, and it was agreed that all former Gencor workers who had contracted asbestos-related diseases would be paid a settlement. However, many claimants said they had not yet been paid. As a result, the Department undertook to intervene in the matter and act as a facilitator between the two parties. Whilst its work had been disrupted by the Covid-19 pandemic, the Department committed itself to assist in ensuring that all claimants who qualified for compensation would be paid their settlement.
The Chairperson said that three Members had submitted apologies for their absence at the meeting. She then outlined the agenda of the meeting to the Committee.
The Chairperson said that neither the Executive Mayor nor the Municipal Manager (MM) of the Masilonyana Local Municipality had submitted apologies for their absence at the meeting.
Members were disappointed that the MM was not participating in the meeting and that he had not tendered an apology for his absence. The Chairperson said that the Member of the Executive Committee (MEC) for the Free State Provincial Department of Cooperative Governance and Traditional Affairs (DCOGTA) had tendered his apology.
Mr G Michalakis (DA, Free State) said that no apology had been provided by either the Executive Mayor or the MM to the Committee. It was reported that the Mayor had scheduled visits to local clinics and hospitals during the same time that the Committee meeting took place – and the municipality had only informed the Committee of this clash the previous night. The Committee expected that the Municipality would have prioritised attending the scheduled meeting. This had not been the first time that the Mayor had been absent from a meeting with Parliament. In a previous appearance in front of the Standing Committee on Public Accounts (SCOPA), the Mayor was also absent and only the Speaker and the MM had been in attendance.
Mr C Dodovu (ANC, North West) suggested that the Committee postpone the presentation of the petition until the municipality appeared before them. This would prevent the municipality from arguing that they had been unable to answer claims made against them without their presence. He was disappointed that no official from the municipality was present at the meeting. If the Mayor had been aware that he could not attend the meeting, he could have delegated someone either in the Mayoral Committee or the Mayoral Executive to attend.
The Chairperson asked Members to provide suggestions on how the meeting should proceed.
Mr Michalakis agreed that it would be preferable for the municipality to be present during the discussion, as this would allow Mr Landsman [the petitioner] to receive their responses. He proposed that the Committee ask the petitioner what steps should be taken. It was unfair that the municipality had continued to delay this process even further – as this had been a longstanding petition.
Mr I Sileku (DA, Western Cape) said that the objective of the meeting was for the municipality to provide answers to the petitioner. Furthermore, it was unacceptable that no delegate from the municipality had attended the meeting. It was an indication that the municipality had no respect for the procedures of Parliament. He informed the Committee that the petition had not been attended to by the municipality since 2009.
The Chairperson recommended that the petitioner brief the Committee on the petition – thereafter, the Committee would follow up on the municipality’s response. She also indicated that it was unacceptable that the municipality had not been present.
Mr Michael Landsman said that he would prefer to continue with his presentation. It was not the first time that the municipality had been absent in scheduled meetings with the Winburg community members. Despite court orders and interventions by ministers of several departments, the municipality had still not addressed the matters raised in the petition and neither had it attended any of the scheduled meetings.
Briefing on the Winburg community’s petition to the Masilonyana Local Municipality
Mr Landsman briefed the Committee on the grievances of the Winburg community. He indicated that there was no financial stability within the municipality and it that it had struggled to collect revenue. Since 2016, the municipality had not submitted its Annual Financial Statements (AFS) to the Auditor-General of South Africa (AGSA). As a result of its poor financial management, the municipality was placed under administration by the provincial government in 2018. However, the administration had not improved the capacity of the municipality and residents have not seen an improvement in its financial management. The community recommended that an independent forensic audit should be conducted on the municipality’s finances, to ascertain the extent of the problems and to assist with finding the correct remedies.
The community was disappointed that the municipality had not taken action against both the MM and the Chief Financial Officer (CFO) for their alleged involvement in the misuse of municipal funds. Both officials had since resigned from their positions.
With a poor state of finances – and a lack of internal capacity – the municipality struggled to deliver services to the community. In addition to paying their rates and taxes, members of the community have had to use their own resources to purchase fuel for vehicles belonging to officials, to ensure the delivery of services (such as water pumps). For several years, residents had tried to organise meetings with officials from the municipality to explain their grievances, but the officials refused to attend. The community had met with the Minister of the Department of Water and Sanitation and other political leaders of provincial Departments and it was agreed that the municipality would need to account to residents on the issues raised. However, the municipality continued to ignore the calls for a sit-down with the community. The residents hoped that the Select Committee would assist with ensuring that the officials would account to them on the plans they had to improve both the financial state of the municipality and the delivery of services.
The Chairperson opened the floor for discussion.
Mr Michalakis asked if the petition identified that the central challenge faced by the municipality had been poor financial management. He expressed his concern that members of the community had to use their own money to purchase petrol for the motor vehicles of officials from the municipality – to attend to service delivery issues.
He suggested that the municipality be asked that they provide written responses to all the questions posed by the community members in the petition, prior to their appearance before the Committee.
The Chairperson mentioned that once all the Members questions had been answered, the Committee would consider the suggestion.
Mr Sileku asked if the R3.7 million that was meant to be deposited into Eskom’s account had been deposited into to the wrong account.
What had been meant when it was stated that the Committee of Section 18 had not met.
Was the municipality’s adopted budget funded or unfunded? It was concerning that the municipality’s audit outcomes had still been outstanding.
Mr Dodovu repeated that it would be valuable for both the provincial government and the municipality to be present, so that the Committee could receive answers to questions they asked. He informed the Members that the municipality had been placed under administration in 2018 and that the administrator had to be recalled soon after – as he had faced several threats. The threats were so severe that the Head of the Provincial DCOGTA and the Director-General (DG) had to act as coordinators for the municipality during its administration.
He was aware that in September 2019, the municipality had to be subpoenaed to attend the scheduled meeting with the Portfolio Committee on Cooperative Governance and Traditional Affairs because it had missed several previously scheduled meetings.
The Chairperson asked if the non-participation of members of the public during the municipality’s consideration of its Integrated Development Plan (IDP) was due to the Council deciding not to include them. Had that been the case, the municipality would be against one of its mandates – which was to ensure that members of the public are included in the consideration of the IDP.
Mr Landsman indicated that it was correct that the Council had not followed the correct procedures during development of its IDP. For instance, it was agreed between members of the community and the municipality that Council would introduce prepaid meters – and not smart metres. However, the municipality provided no further feedback and unilaterally decided that it would rollout smart metres instead of the agreed prepaid metres. In all deliberations with community members, the municipality had not taken the concerns of the public into consideration when making decisions.
It was reported by both the municipality and the AGSA that the municipality had not submitted its AFS since 2016. Submission had not been possible as the former CFO and MM had left with important financial documents. No investigation had been instituted by the municipality to recover the documents. The community was concerned that the municipality had planned to compile its AFS with the Matjhabeng Local Municipality, as the municipality also had a poor record of its financial management. As there had been no accountability from officials, residents had not felt safe in the hands of the municipality.
Revenue collection could not occur, as the municipality had not set up accounts that the residents could pay into. For the residents who did have accounts, their payments had not reflected on their accounts and if they had, there were errors in their accounts. This had caused the municipality’s debt to Eskom to increase by R20 million per year.
Mr Landsman confirmed that the community had to contribute to the purchase of fuel for vehicles belonging to the officials, so that they could transport water pumps to the area.
The municipality had incorrectly transferred R3.7 million, which had been meant to service its debt to Eskom, to an account of an unidentified woman. The matter was still under investigation and the residents were not aware if the money had since been transferred to Eskom’s account. They had requested that the municipality institute an investigation into the matter and that it be made public. An investigation by the Standing Committee on Public Accounts (SCOPA) indicated that since the money had not been paid to Eskom’s account, the entity would implement load reduction in the municipality.
The Chairperson thanked Mr Landsman for his briefing on the petition compiled by the Winburg community. All the information that had been collected would assist the Committee once it had taken the matter forward. Once the Committee had taken a decision on what it would do next, it would communicate its decision to Mr Landsman in writing.
She asked the Members whether the municipality should be invited to appear before the Committee in the following week. Also, if the Members should conduct an oversight visit in Winburg afterwards?
Mr Dodovu made four proposals. His first proposal was that the Committee should request Parliament to allow them to summon the municipality to appear before them in the following week.
His second proposal was that both Eskom and the AGSA should be invited to the same meeting, to provide further details on the accusations levelled during the meeting.
His third proposal was that the Free State Provincial DCOGTA should also be invited to the meeting, to brief the Committee on the close-out report of the 2018 intervention in the municipality.
His final proposal was that the Committee’s next oversight visit – once Parliament had approved their request to summon the municipality – would be in the Free State and a visit to Masilonyana should form part of the visit.
Mr Michalakis seconded Mr Dodovu’s proposal. He added that the Committee should act with urgency on the matter. He proposed that the petitioner also be present during the planned meeting and that the municipality should respond to all the questions asked by the residents.
Ms C Visser (DA, North West) agreed with the proposals of both Members and asked that the Free State Provincial DCOGTA be asked to provide the Committee with a close-out report from the administrators on what had happened during the intervention.
The Chairperson agreed and said that the Committee would schedule a meeting, within seven days, with the municipality. The Free State Provincial DCOGTA would be requested to brief Members on the close-out report provided by the administrators. Furthermore, the Municipal Public Accounts Committee (MPAC), the South African Local Government Association (SALGA), the current MM and the Executive Mayor would be asked to attend the meeting. The presence of the MM would be important, as he is one of the custodians for the finances of the municipality and he would expect to have the information on what financial mismanagement had occurred. She agreed that Mr Landsman should be invited to the scheduled meeting.
She suggested that members of the community should be given the opportunity to make their own submissions on the matter. That would assist the Committee to make informed decisions. She asked whether Members agreed with her proposal.
Mr Dodovu seconded her proposal.
The Chairperson indicated that the work on the petition had been completed and the Committee would then attend to the AbaThembu petition first, before breaking for recess.
Mr S Mfayela (IFP, KZN) seconded the proposal.
Meeting was in recess for five minutes.
Briefing on the legal validity of the petition submitted by the AbaThembu people
Adv Nathi Mjenxane, Parliamentary Legal Advisor, asked if the Members had looked at the draft document on the petition submitted by the AbaThembu people.
The Chairperson indicated that they had.
Adv Mjenxane said that his presentation would focus on the legal validity of the petition and to inform the Committee whether the process they followed in considering the petition had been anchored by the law.
Adv Mjenxane briefed the Committee on the legal validity of the petition submitted by the AbaThembu. He began by stating that all obligations imposed by the Constitution are binding and any conduct that is inconsistent with the obligations, are invalid. Furthermore, the Constitution indicates that Parliament had the right to receive and consider petitions submitted by member of the public.
The petitioner indicated that he was a representative of the AbaThembu, and as such, he had filed a land claim on land the tribe believed belonged to them. The petitioner indicated that the AbaThembu people had been persecuted by both the justice system and the government (particularly the Department of Human Settlements). He informed the Committee that the petitioner did not have the legal capacity to represent the AbaThembu people in the land claim, as the leaders of the AbaThembu people denied that he acted as their customary representative. This was a requirement of the legal prescripts. Furthermore, the claim made was on land the petitioner had alleged was taken away from the AbaThembu centuries ago. This claim would not be valid, as the Constitution only made provisions that an individual or a community had a right to claim land restitution for land taken from 1913.
He added that the process taken by the Committee is line with the rules and laws prescribed by the Constitution (in considering the petition). There had been sufficient consultation with the broader public to meet constitutional requirements. The Committee had recognised the AbaThembu people, which was in line with Chapter 12 of the Constitution.
He advised that based on those two issues, the petition should not be considered by the Committee.
The Chairperson indicated that it was important that the Committee had complied with the law when going through the consideration of the petition. She asked Members whether the Committee should dismiss the petition.
Mr Dodovu said that the Committee should abide by the legal opinion that the petitioner lacks the locus standi to submit the claim and as such, the Committee should dismiss the claim. However, that had not meant that the Committee would ignore future land claims made. It should be stated that those lodging such claims should take the process seriously. It was important that land restitution was attained through Constitutional means. He recommended that as part of the resolution, the petitioner should be advised to refer the matter to the Section 25 Ad Hoc Committee, as the matter was not in the Select Committee’s jurisdiction.
The Chairperson mentioned that the Committee would process the report and inform the petitioner on the outcomes. She asked if there was agreement on the report.
Mr E Mthethwa (ANC, KZN) agreed with the contents of the report. Mr Mfayela seconded the proposal.
The Chairperson said that the report would be presented in the House.
Undertaking made during the NCOP Plenary 10 October 2019
The Chairperson asked if officials from the Department of Mineral Resources and Energy (DMRE) were present in the meeting, so that they could engage on their report.
The Secretary of the Select Committee said that the Minister would be present at the meeting at 3pm.
The Chairperson suggested that the meeting go on recess until 3pm.
Mr Mafayela agreed with the proposal. Mr Dodovu seconded the proposal.
The Director-General of the DMRE, Mr Thabo Mokoena, indicated that the Minister could not attend the meeting as he had been involved in a Cabinet meeting.
The Chairperson asked why the Department had indicated that he would be present at the meeting when they knew that he’d be at the Cabinet meeting. She added that it was against Committee rules to allow a DG to brief the Committee on Executive undertakings.
Mr Dodovu said that the Committee had set a precedent that if neither the Minister nor the Deputy Minister (DM) were present, the DG could brief the Committee on Executive Undertakings; and with the death of the previous DM, that precedent should be followed in the meeting.
The Chairperson indicated that whilst the Committee rules did not allow for DGs to brief them on Executive undertakings, they would allow it in this instance because of the death of the DM.
Mr Mfayela seconded the proposal.
Mr Mokoena briefed the Committee on the Department’s undertaking made during the NCOP Plenary 10 October 2019. He indicated that two trusts – the Asbestos Relief Trust (ART) and the Kgalagadi Relief Trust (KRT) – were established to implement a legal settlement reached between mineworkers and the Gencor group of Companies. According to the agreement, mineworkers who had suffered from asbestos-related disease would be compensated through both trusts. It was agreed that R650 million would be made available for their compensation – however, individuals associated with the Kgatelopele Community Asbestos (KCA) group approached the Department, arguing that they had not yet been compensated. Thereafter, the Department instituted a meeting between KCA and the law firm that handled the litigation against the Gencor group of companies. Out of 517 members of the KCA group, 67 submitted claims and had since been compensated.
The Department committed itself to continue to monitor the implementation of the litigation settlement against the Gencor group of companies. Furthermore, it would try to ensure that the matter is concluded by the end of the current financial year.
The Chairperson opened the floor for discussion.
Mr Dodovu said that the agreement between the two parties was made 17 years ago and it was disappointing that there had been no conclusion to the matter. The President had previously mentioned that the government would follow up on the matter and that it would ensure that the commitments agreed upon would be fulfilled.
He asked four questions.
What programme had the Department used to assist the claimants during the process?
How much money had each claimant received from the mining companies?
How much had been spent on environmental rehabilitation by the mining companies and how was it spent?
What reasons had the mining companies provided to justify their reluctance to pay the claimants. As it had seemed that the companies had reneged on the original agreement to duly pay the claimants.?
The Chairperson said that the presentation did not indicate the total number of payments made to the claimants. She asked if the 23 claims that were still pending formed part of the total number received.
It was mentioned that R650 million was set-aside for payments to the claimants. She asked how much of that money had been spent on the claimants.
She asked whether the Department had a communication strategy that would assist it with identifying other beneficiaries and if so, could they explain how that had communicated to each beneficiary.
Mr Dodovu asked whether the mining companies had implemented their social and labour plans, to ensure the socio-economic growth of the communities they were based in. In addition, were the companies still operating in the same communities?
Mr Mokoena explained that the Department only attended to the matter once the claimants had staged a protest in Pretoria. Prior to that, the then DM had tried to assist the claimants but decided not to go any further, as it was a private matter. The Department had been under the impression that the matter had been progressing well until the matter came to their attention and that is why they intervened. The Department made the commitment to assist in October 2019, and work had commenced, until it was disrupted by Covid-19.
Each beneficiary was paid according to the findings from their medical examinations, and the amount paid had varied. He indicated that the Department would provide the full details to the Committee in writing.
Due to the fact that there had previously not been a provision for environmental rehabilitation, the mining companies had not enacted such measures and the Department could not take legal action against them. However, as the Department had since implemented the Derelict and Ownerless (D&O) mining program, it had been able to ensure that mine sites are subject to environmental rehabilitation measures.
Engagements between the legal representatives of the claimants, the mining companies and the Department had been ongoing. Neither had explained why there had been a delay in paying outstanding beneficiaries. During the engagements, the Department had to consider two points. First, that the legal firm alleged that they had not used the members of the KCA as part of their submission. For one to qualify as a beneficiary, they had to have been an employee of Gencor and its subsidiaries. He confirmed that there was still money available to pay outstanding claimants, but the challenge was to ensure that the Richard Spoor Attorneys (RSA) did not waste the funds before they are paid out.
Second, the Department had to consider the fact that several of workers had not contracted asbestos-related diseases – based on the medical examinations. As a result, it had to recommend that those who were found not have contracted asbestos-related diseases to have a medical re-examination.
The Department was only aware of the 517 claimants on the list provided by the KCA. However, it would provide a written response on the total number of claimants in the matter, as many of the claimants were not under RSA. The Department would ensure that the people are paid their money.
With the disruption caused by the pandemic, the Department’s intervention in the matter had been delayed. Nonetheless, the Department had recently designated the Deputy Chief Inspector of Mines to look at its communication strategy, to aid in identifying beneficiaries.
As the agreement had been reached in 2003 – which was before the Mineral and Petroleum Resources Development Act had come into effect – the mining companies were not required to implement social and labour plans. Since the law took effect, the Department had informed mining companies that they should be responsive to the needs of the people within the communities that they operate in. Furthermore, they were informed that their mining activities must be line in with the law. He committed to providing the Committee with a report on the status of the dialogue between the Department, the mining companies and RSA.
The Chairperson asked if the Members had additional questions for the Department.
Mr Dodovu said that the Committee should appreciate the fact that the Department offered to act as a facilitator during the process and there had been progress in that respect. It was important that the Department finalise the process and ensure that the terms on the agreement where fulfilled by the mining companies. It could be seen as opportunistic that the mining companies had reached an agreement with the miners but had suddenly tried to exclude them from the matter affecting them.
He encouraged the Department to continue assisting communities where mining activities were taking place. It was their responsibility to ensure that the mining companies complied with their social and labour plans, so as to prevent the stagnation of communities. Much damage had been caused in Klerksdorp by mining companies and they had not been held accountable.
The Chairperson appreciated that the Department would provide the Committee with the information on all outstanding matters. That would ensure that when the Committee conducted its oversight work, it would have accurate facts on hand. She asked if the Department had final comments.
Mr Mokoena said that the Department remained committed to solving the matter and hoped that it would be able to close the matter by the end of this financial year. He confirmed that all the information would be provided to the Committee.
The Chairperson asked that the Department ensure that all mining companies implement their social and labour plans in the communities in which they function.
The minutes of 27 August 2020 and 2 September 2020 were adopted.
The meeting was adjourned.
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