National Energy Regulator Bill: Department briefing and adoption

Meeting report

MINERALS AND ENERGY PORTFOLIO COMMITTEE
18 August 2004
NATIONAL ENERGY REGULATOR BILL: DEPARTMENT BRIEFING AND ADOPTION

Chairperson: Mr E Mthethwa (ANC)

Documents handed out
Department's Response to submission
National Energy Regulator Bill - Department Draft

SUMMARY
The Committee formally considered the Energy Regulator Bill, now re-titled the National Energy Regulator Bill. The Department of Minerals and Energy (DME) tabled a draft Bill that included its recommendations from the previous day's meeting. These recommendations were accepted and the Committee unanimously adopted the Bill.

MINUTES

Department presentation
The Department's Deputy Director-General: Hydrocarbons, Dr Rod Crompton, presented the Committee with a new draft of the Bill that included the Department's recommendations made at the meeting on 17 August.

Dr Crompton went through the new Bill clause by clause, informing Members of the drafting changes. New amendment proposed in addition to or altering those made at the meeting of 17 August consisted of:
- inserting a definition of "administrative action";
- providing that the Minister of Minerals and Energy should publish the commencement date of the Act in the Government Gazette;
- providing for the Minister to designate a Deputy-Chairperson for the Energy Regulator (ER);
- enabling the Chairperson to designate one of the part-time regulators to chair meetings in the absence of both the Chairperson and the Deputy-Chairperson;
- enabling the Minister to fill a vacancy on the ER for a period not exceeding twelve months;
- re-inserting the original wording of the Bill disqualifying a person "convicted of an offence involving dishonesty" from appointment as a regulator;
- providing that a regulator convicted and sentenced to a prison term without the option of a fine after his/her appointment, be removed from his/her position;
- clarifying that a portion of a meeting of the ER might only be closed to the public if the relevant information would create a record that would oblige the ER to refuse access to it in terms of the Promotion of Access to Information Act;
- providing that administrative actions by the ER may be taken under review by the High Court in terms of the Promotion of Administrative Justice Act;
- inserting that decisions of the ER may be appealed in the High Court in instances where the ER was sitting as a tribunal, and
- deleting the requirement that interested parties had to represent their views to the ER "at their own expense".

Discussion
Mr T Ngcobo (ANC) requested Dr Crompton to expand on the reasons for referring to the Promotion of Access to Information Act and the Promotion of Administrative Justice Act. Dr Crompton responded that because these Acts already existed and extended certain rights derived from the Constitution, it was unnecessary to include detailed descriptions of their provisions in the National Energy Regulator Bill. Mere reference to the Acts would suffice.

Mr Ngcobo was not entirely convinced, arguing that it was unnecessary to refer to the Acts at all because they formed part of the South African statute book. Dr Crompton conceded and added that the State Law Adviser shared Mr Ngcobo's views. However, the Department had felt it was necessary to place "signposts" in the Bill to assist those stakeholders that might not have access to legal expertise. Mr Ngcobo welcomed the Department's initiative and accepted Dr Crompton's explanation.

Mr C Kekana (ANC) asked why the Department was suddenly prepared to delete "at their own expense" after yesterday arguing that doing so would open the ER's proceedings to potential abuse and the possibility of being sued. Dr Crompton responded that the State Law Adviser had investigated the matter overnight and was now of the opinion that the ER would not be liable for stakeholders' costs. Such a precedent did not exist in any other legislation or case law.

The Committee then voted to adopt the Bill. Mr H Schmidt (DA) abstained on a technicality as he had not been able to obtain a mandate from his Party Caucus by the time of this meeting. He nevertheless indicated that he would recommend that his Party support the Bill.

The meeting was adjourned.