Gas Amendment Bill: Debriefing on public participation

Meeting report

Opening remarks

The Chairperson referred to consultations held with the Committee’s administration – the Secretariat and research units – and commented that today’s meeting should have been held following the final public hearing on the Gas Amendment Bill. This had not happened, and the administration felt that a debrief was necessary before the Committee started with its work. The purpose of the debrief was to analyse the public hearing experiences, to consider which areas required the Committee’s attention, and to determine how the Committee should deal with these areas.

The need for this debriefing came about after Members felt that the Committee should review its decision to visit only seven of the nine provinces. Legal guidance was requested to help Members during this process by explaining the options available to them. For example, the Committee was supposed to discuss the reports in line with its programme, invite the Department of Mineral Resources and Energy (DMRE) to comment on the outcome of the public hearings, participate in a clause-by-clause exercise on any proposed amendments, and then comment on those amendments. Following the adoption of the reports, the question arose as to whether the Committee was then able to visit the remaining two provinces.

Public participation on Gas Amendment Bill

The Chairperson briefly advised Ms Fatima Ebrahim, Parliamentary Legal Advisor, what the Committee required guidance on -- for example, whether there was a legal duty on the Committee to visit the remaining two provinces. He added that Mr Sivuyile Maboda, a Committee Researcher, would be guiding the Committee at a substantive level on any additional matters relating to the decision to visit only seven provinces.

Ms Ebrahim said that public participation was a constitutional requirement, as known by the Members. Section 59 compelled the National Assembly (NA) and its committees to facilitate public involvement. However, the Constitution was not prescriptive, and in fact, even the NA rules required only that interested parties and institutions be given at least three weeks to comment on a draft Bill. Committees therefore could decide on their own methods of public participation, which may include oral submissions, and may be limited to written submissions where necessary.

When determining which method to use, a Committee would look at what was reasonable in the circumstances. Reasonableness was determined by several factors -- for example, the nature and extent of the legislation, the intensity of its impact on the public, and whether a Bill was wide-reaching or only affected a particular sector of society. For instance, the National Minimum Wage Bill was going to affect a far greater number of persons in the country than a Bill for circus animals or performers/actors. Together with these factors, a committee would also consider practicalities such as time and expenses. However, these practicalities alone would not be sufficient reason to limit public participation.

In the current matter, it was decided that public participation would happen in the form of oral hearings in the provinces, and that seven provinces would be given opportunities to submit them. It was known that holding hearings in the provinces had great value for those provincial communities because they provided the residents with the opportunity to be informed of the intentions of the legislature, and then to actively participate in the law-making process. While the National Council of Provinces (NCOP) would also have an opportunity through the provincial legislatures and through itself to hold hearings in the provinces that part of the process which happened at the NCOP stage was separate from what happened in the portfolio committees in the NA. Members would appreciate that what happened at the NCOP stage would not be known to them while they deliberated on their Bill.

This Committee, taking into consideration the wide impact of this Bill, had determined that it would visit the provinces. The question had then arisen as to whether it was reasonable to decide to visit only seven provinces instead of them all, with Limpopo and North West being left out.

There may be times when it would be appropriate not to visit all provinces. For example, if the Bill dealt with coastal matters, it may not be necessary to hold hearings in the inland provinces, since this may not take the matter any further. In this Bill, however, there did not seem to be a rational basis for excluding the two provinces. It would not be reasonable to exclude them at this stage, given that there was a high level of interest in the Bill and excellent turnout at all the hearings to date.

She advised, based on the requirement of reasonableness, that the Committee open the process further to the two provinces if this was still possible, taking into consideration practicalities such as the urgency of the Bill and the impact of COVID-19, if applicable.

Mr Maboda said he would attempt to answer the question as to why the two provinces that had not been visited should be considered. Members would recall that in selecting the seven provinces, the Committee considered whether a province was coastal with industrial economic zones – such as the Eastern Cape, Western Cape and KwaZulu-Natal – and whether there were existing gas activities or gas prospects in the area, such as in Mpumalanga and the Free State, which both contained Sasol refineries. There was also a gas pipeline that came from Mozambique that crossed over the latter two provinces.

However, he commented that the Committee had made a mistake in using these criteria since it became apparent during the public hearings that the Bill affected everyone, and not just people or companies that were already in the industry. For example, one of the aims of the Bill was to promote entry into the industry by anyone. It did not promote entry only to those who already had licences in the industry. The Bill introduces new technologies such as landfill gas, and these developments may attract more investment into the gas sector and more South Africans to the industry. Therefore, limiting the hearings to the above criteria was an oversight on the Committee’s part.

Another example was that currently, there were no reported gas activities in the North West province. However, it could not be assumed that those in the province would not be interested in the Bill. As mentioned, one objective of the Bill was to promote participation and development of the gas industry and failing to hold hearings in provinces where there was no gas activity did not further this objective. Also, for the sake of completeness and fairness of the process, and to avoid any litigation from interested and affected parties, it made sense for the Committee to visit the remaining two provinces. Currently, potential litigants had a solid argument to make, and it would be difficult for the Committee to argue against them.

In Limpopo, there was a coal-bed methane project in the Waterberg area, run by Anglo Coal. They had already begun the drilling process and expected to produce gas by 2025. This meant that Limpopo met the criteria for public hearings. Also, in the Makhado Local Municipality, a feasibility study had been completed on oil and gas by a 100% black-owned company, Booi Brothers Petroleum. The drilling process was set to follow. This added to the need for the Committee to visit the remaining two provinces.

Discussion

The Chairperson said he had discussed the topic of public hearings with the House Chairperson, whose view was that in its deliberations, the Committee should note that the test for deciding whether to visit the remaining two provinces should be based on whether any new opinions and views could be heard. The Committee should not visit them simply for the sake of saying that it had visited all nine provinces.

Mr M Wolmarans (ANC) believed that no one in the Committee, Department, or otherwise was at fault in this matter. There was no harm in considering visiting the remaining two provinces, given what the Committee knew now after visiting the other seven. It was a question of hindsight.

The presentations by Ms Ebrahim and Mr Maboda supported the view that the remaining provinces should be visited, given the presence of interested and affected persons. If those who were affected were not given opportunities to participate, those who were interested must be. On the facts, Limpopo must be visited because it met the criteria set out by the Committee.

The Bill itself spoke about drilling and activities affecting the environment. It also dealt with storage and transportation, and the fines related to breaking the law on those arrangements. This affected the entire country. For example, the transportation of gas in any form went along the N4 to Botswana and the other related areas, and then through the North West. If there was a problem, the hazardous materials unit would have to be called in. The gas would also be transported to certain mines around the North West, Limpopo, and many other areas. There was thus a good case to be made for visiting those provinces.

He agreed with the opinion of the House Chairperson that the Committee did not have to visit every single person in the country. Public participation could take place through community radio stations and various publications. Right now, however, visiting the two provinces would not do the Committee any harm, and would enrich its deliberations.

As to whether the Committee would discover anything new during these visits, Members would have to be ‘sangomas’ to be able to tell the public that they would not get any new information. From their own experiences, Members had not even got information that they had expected to receive from certain provinces visited. The Committee should focus on whether communities had participated, and in this regard should follow the advice of Ms Ebrahim and Mr Maboda, and visit the two remaining provinces.

Ms P Madokwe (EFF) observed that a lot of lessons had been learned from the public hearings. As the Committee conducted more visits, the more it was able to improve the quality of the hearings. This was clear when comparing this year’s hearings to last year’s.

She noted that while there was an excellent turnout at the public hearings, the content was not what the Committee had expected. A lot of people had gone to the hearings because Parliament and the DMRE were going to be there. Many went to speak on issues of mining and service delivery, and others went to disrupt the hearings. Very few understood why the hearings were being held. It was important to analyse how people were mobilised because the Committee was not interested in filling halls – it was interested in engaging with people who were going to give input on the Bill.

The Committee must discuss with the parties to which it had delegated the mobilisation of community members, to understand what message was being told to the community. Did these people know that they were at these hearings to give input on the Gas Amendment Bill? The Committee was responsible for ensuring that the participants were at the hearings for this reason.

An issue of transport had been raised in the Eastern Cape and Bloemfontein, where there was a situation of participants arriving at the hearings just before they were about to be finished. The Committee should follow up on this issue and engage with its service providers to ensure that they met their responsibilities of transporting people to the hearings. Some people had waited from 06:00 for transport and still arrived late to the hearings. The Committee should not be paying for services that were not being rendered. Transport issues could render the entire public hearing process pointless.

She recognised that municipalities played a role in helping to mobilise people to the hearings. The Committee should not wait until the day before the hearing to make sure the community was prepared. It should request reports from municipalities at least a week before, detailing what they had done to ensure that the hearings were going to be successful. Who had they spoken to? What had been confirmed? This would give the Committee at least a week to implement any measures necessary to ensure the success of the hearings. It needed as much information as possible for the sake of the Bill.

Ms V Malinga (ANC) agreed with Mr Wolmarans that no blame should be put on anyone. This was the first time this Committee had conducted public hearings, and therefore it had thought only of those people who were affected by gas activities. It had not considered ‘users’ of gas, which was the word used in the Bill where it mentioned the transportation and distribution of gas.

The Chairperson should have listened to those who had presented on licences. It would have been clearer that a person from Limpopo who had a small, medium and micro-enterprise (SMME) may want to venture into the gas industry, and they might have some input that they wanted to submit. Someone like this may not have access to the internet, and may not have been able to submit written submissions. Even at the public hearings, some wanted to give their written submissions to the Committee but had been unable to because the window had closed.

Going to the North West and Limpopo would give the Committee a sense of what the people thought. It was a national law that was being amended. She appreciated and agreed with the example made by Ms Ebrahim about the National Minimum Wage Bill and a Bill about actors, and agreed that it would not harm the Committee for the Chairperson to resubmit to the Chair of Chairs, putting forward the legal advice given by Ms Ebrahim.

The Committee disliked litigation and discouraged it, even in the Department. The Committee should not assume that the people in Limpopo or North West would provide a different perspective from those already received from the other seven provinces, but it should still visit them. There were companies and people who were affected by this Bill, who would take the Committee or Parliament to court and argue that they had not been consulted on the amendments.

Mr M Mahlaule (ANC) disagreed with the view of the House Chairperson. He said the Committee had been commended for taking Parliament to the people and not assuming what they were going to say. If the Committee were to assume, it would face accusations that it had participated in a box-ticking exercise and that it was not interested in what people had to say. It was wrong to pre-empt that those in Limpopo and North West would not add any value to the public hearing process. The Committee should not take the advice of the House Chairperson and should visit the remaining provinces.

He recalled that in Graaff-Reinet or another area, someone had pointed out that the differential pricing of gas, and the unregulated way it was happening, was a problem in all provinces, not only in areas where gas was mined. People used gas in Limpopo and the North West. Gas was transported across their roads, and they must know what would happen if a truck transporting gas were to be in an accident. Was their environment taken care of? What would happen? They must understand the health hazards of such an accident.

This Bill was not only about regulation. It also educated people on how to use gas and the health hazards related to gas. Therefore, it must be taken to all the provinces.

When the Committee visited the Free State, it had been accused of visiting only two of the five or six regions in the province. At the time, the Chairperson had responded that when the Committee visited KwaZulu-Natal, it had visited only two or three of its eleven regions. Many people were interested in making submissions, and if the Committee received backlash for visiting only a certain number of regions in a province, it would be disastrous if it did not visit a province altogether. It would lead to litigation which the Committee did not want. The public hearing process should be transparent.

There was a general accusation that the Department, in drafting this Bill, had not consulted anyone. If the Committee did not visit the remaining provinces, it would almost certainly be accused of the same thing. He urged the Chairperson to put forward the view that the remaining provinces must be visited, and not as a box-ticking exercise, but as a genuine attempt to solicit the knowledge of the people.

Responses by legal advisor and Committee researcher

Ms Ebrahim stated that the reason why public participation requirements were not prescriptive was that it was an organic process. What may appear at the beginning to be a Bill that may not generate much interest could change over time, which was why things were flexible. Nothing would stop a Committee, for example, from introducing other forms of public participation if it wanted to, even during an ongoing process.

The Committee need not feel tied to what it had decided at the beginning. The public participation process would be influenced by many things as it proceeded. At the end of the day, the most important thing was that the Committee must be convinced that whatever decision it took at this point must be reasonable. The Committee must be able to defend its decision. The following factors may all be considered in the making of the decision – whether the Committee was of the view that no new information would come out of holding hearings in the remaining provinces; that the Committee did not have the time; that the Bill was urgent for whatever reason; or that there were other practical difficulties which made it impossible to hold the hearings.

Mr Maboda agreed with Members that the test should not be whether any new information could be gathered, as it was impossible to know that beforehand. He also mentioned the coal-bed methane project in Limpopo again and said that this sort of project had never been experienced in any other province.

Chairperson's summation

The Chairperson said that when dealing with the tagging of the Bill, it had become apparent that the Committee was not dealing with section 4 of the Constitution. This had become the overriding issue, which Mr Maboda raised when speaking about the consideration of the provinces, especially the coastal provinces. After the coastal provinces, the Committee had considered the inland provinces. It had considered Gauteng – which was one of the major areas utilising and being impacted by gas – and then Mpumalanga, Free State, and KwaZulu-Natal.

When the Committee started visiting the provinces, and even in areas such as KwaZulu-Natal, the public hearings were not possible because people were struggling to understand the technical nature of the Bill. The Committee itself was still trying to familiarise itself with the main content of the Bill. Therefore, the experience was educational, even to the Committee.

He accepted Ms Ebrahim’s explanation that the public hearing process was organic and that the correctness of the decision could be assessed as the process developed. In his view, it had become apparent that the Bill was very technical, and people had started to feel that they could contribute towards it in a major way. The Committee had not yet done an in-depth analysis of the contributions. However, a significant amount of people were starting to participate. This was in contrast to the many disruptions and tension during the earlier hearings, which had impacted the inland provinces.

The fact that the Committee was satisfied with the reasonableness of its decision did not necessarily mean that its decision would survive judicial scrutiny. Any Bill of Parliament, as Members had been told, must be given high priority by the Committee. It was prioritising the Bill, but if it was urgent, it would not have been brought to the Committee at this time. The Committee would work according to the pace of the other matters relating to the Bill.

The many factors which the Members and presenters had raised showed that the decision to exclude the two provinces was incorrect. These factors would be included in the letter of motivation to be sent to the House Chairperson when requesting to visit the remaining two provinces, together with the factor of the wording of the Bill, and its use of the term ‘trade.’ The latter factor had previously been raised by the Committee’s legal advisors in May 2021. This topic of trade -- and cross-border trade specifically, such as between Limpopo and Zimbabwe -- had not been an issue during the other public hearings.

Members agreed with the Chairperson that this information would be contained in the summary to be sent to the House Chairperson.

Revised first term Committee programme

The Chairperson briefly mentioned certain amendments to the Committee's first term programme. The Committee Secretary took the Committee through the revised programme.

There were no amendments. Mr V Zungula (ATM) moved adoption of the programme, and Mr Mahlaule seconded.

Adoption of Committee minutes

The Chairperson took the Committee through the minutes of its meeting of 7 December 2021.

Mr Mahlaule noted two wording errors.

Ms Malinga moved the adoption of the minutes, with corrections, and Mr Mahlaule seconded.

Progress on inquiry

Mr Mahlaule asked for an update on the progress of comparing the cost of having the inquiry in Cape Town or Johannesburg and on the progress of the application from the office of the House Chairperson on the evidence leader.

The Chairperson responded that he would come back to Mr Mahlaule on the evidence leader. There had been discussions between himself and the House Chairperson, but nothing had been put into writing yet. They had agreed to report back to the Committee officially at a later stage.

The cost comparison was a technical challenge, but the Committee had agreed to do the enquiry in person rather than virtually.

The meeting was adjourned.