Nuclear Energy & National Nuclear Regulator Bills: discussion

Meeting report

MINERALS & ENERGY PORTFOLIO COMMITTEE
19 October 1999
CONSIDERATION OF THE NUCLEAR ENERGY BILL [B 10-99]

Documents Distributed
Portfolio Committee on Minerals and Energy Proposed Amendments to Nuclear Energy Bill [B 10-99]
Portfolio Committee on Minerals and Energy Proposed Amendments to National Nuclear Regulator Bill [B 11-99]
CNS Motivation With Regard to Outstanding Issues Relating to the National Nuclear Regulator Bill
Proposed Amendments from CNS
[e-mail [email protected] for documents]

SUMMARY
The Committee went through the proposed amendments to the Nuclear Energy Bill. Certain issues were flagged and put on the agenda for the next day's meeting.

MINUTES
Dr De Waal, from the Department of Minerals and Energy, went through the proposed amendments to identify the issues that were troublesome and which needed to be flagged.

The Committee had rejected Clause 12 of the Bill and a new Clause 12 was proposed.

Mr Mongwaketse (ANC) was concerned about Clause 12 (a) of the amendment. He wondered if this section of the new clause suggested that there would be a build up of nuclear stations in the future. He referred to the Minister's comments made on the meeting of 18 October 1999 where she stated that there would be public appeal before something like this could happen. Mr Mongwaketse said that he thought this section might be encouraging future growth.

Mr Mokoena, from the Department of Minerals and Energy, replied that he thought the Minister had indicated that before any decision is taken to investigate the growth of nuclear power growth, a planning process should take place. The planning process, according to the Minister, should involve the wider society. Dr De Waal went on to explain that when a company wants to develop a power station they need to apply for a licence and then there is space for public input. The amendment was accepted.

The amendment for Clause 24 was accepted.

Mr Motubatse (ANC) was concerned with the wording in the new Clause 26. He asked the State Law Advisor, Mr Pienaar, if the clause should be changed by removing "The Corporation is deemed to be" from the beginning of the sentence and adding, "…will apply to the Corporation" at the end of the sentence.

Mr Pienaar replied that the rewording of the sentence would not change the clause from a legal position. The Clause was agreed to without the change.

The amendments to Clauses 27, 33, and 34 were accepted.

Mr Mokoena explained the Department's reasons behind the changes made to Clause 35. He explained that any international movement of nuclear material must have approval of the Minister. For example, if ESKOM wanted to buy something from France they would first have to receive permission from the Minister. According to Mr Mokoena this amendment goes above that and has the Minister consult with the South Africa Council for the Non-Proliferation of Weapons of Mass Destruction on any matter regarding chemical weapons or weapons of mass destruction. This amendment allows the Council to be fully aware of what is happening in South Africa.

Mr Davidson (DP) explained that in terms of the old Act the Nuclear Energy Board took the decision into these matters. However, the new Bill gives that power to the Minister and the Board is left out of the decision. He wanted to know why this change was being made.

Mr Mokoena agreed with Mr Davidson in that the Bill does seek to place authority with an elected representative. Mr Mokoena explained that this Bill is giving the authority to administer transport of nuclear matter with the recommendation of the Board. This provides for the national authority with the Minister and not an unaccountable institution.

Mr Davidson agreed that it is fine that the Minister has this power but he wanted to know why this power was taken away from the Nuclear Energy Board. The Chairperson, Mr Mohamed (ANC), told Mr Davidson that he could bring an amendment in on this issue if he liked. Mr Davidson replied that he did not want to amend the clause he simply wanted to know why the Board was no longer being consulted.

Mr Mokoena explained that it was a policy issue. The current legislation has the original authority with the Atomic Energy Corporation (AEC). The new legislation would shift the authority to the Minister. Mr Davidson wanted to know why the Board that has all the power now would not be consulted in the future.

Mr De Waal replied that there was no need for consultation with the Board because of the transformation of power. This issue was flagged until the Committee considered the Bill clause by clause. The amendments made to Clause 54 were accepted.

Mr Davidson was concerned with the first amendment made to Clause 55. He pointed out that in the legislation it was the authority's duty to consult expertise. The new amendment proposed that it could be done; not that it would be done. The issue was flagged until the Committee considered the Bill clause by clause.

The next two amendments made to Clause 55 were accepted.

Mr Mokoena explained that the rest of the clauses were simply changes that are consequential to the current legislation. Where the current legislation had AEC as an authority it had to be substituted, and there had been no change to the substance.

The Committee agreed to these final amendments. It was agreed to go through the Nuclear Energy Bill clause by clause, with the accepted amendments, not to pass anything but just to see where there are agreements and disagreements. There was no debate on the introduction to the Bill.

Before going through the definitions, Dr De Waal pointed out that the definition for "nuclear installation" was changed in the National Nuclear Regulator Bill and therefore would be changed in this legislation as well.

Mr Davidson asked the Department to comment on the disapproval expressed by certain groups that the definition of "radio active material" was too wide. Dr De Waal answered that the Department has gone through a process with many parties and they are satisfied with the definition. They feel that it is qualified throughout the legislation. All the definitions with the proposed amendments were agreed to.

Clauses 2 and 3 were agreed to.

Clause 4 was flagged to consider an amendment similar to that made in Clause 13.

Clauses 5 and 6 were agreed to.

Mr Nel (NNP) asked if it was necessary to have 'if any' in Clause 7(1).

Mr Pienaar said that it made no difference if it was there or not. It was agreed to remove it.

Clauses 8 to 12 were agreed to.

The Department agreed to come back to the next day's meeting with an amendment for Clause 13.

Mr Davidson was concerned about Clause 14. He wondered why there was no distinction made between long term and short-term loans. The procedure set out in the proposed legislation requires the corporation to have permission from two Ministers to receive a loan. Mr Davidson asked what would happen if a company went into overdraft. He felt that it would be cumbersome for a company to have to go to two Ministers just to go into overdraft. Companies go in and out of overdraft all of the time. Therefore, Mr Davidson felt that a distinction should be made between short and long-term loans.

Mr Mohamed thought that perhaps the clause was designed that way to avoid companies from getting into a large overdraft situation. Mr Mokoena explained that it was common practise to have Ministers required to give permission for loans. It is common to have current accounts governed by the banks and loans governed by the Ministers.

Mr Davidson (DP) reiterated that "raise loans" does not make a distinction between short and long term loans. The corporation will not be able to go into overdraft the way the Bill was phrased.

Mr Pienaar explained that this clause was not intended to stop companies from going into overdraft. Rather, it was simply making companies get permission from the Ministers.

Mr Davidson (DP) replied that if it was not the intention than it should be drafted clearly in the Bill. This issue was flagged to give the Department more time to reflect on the issue.

Clauses 15 to 18 were accepted.

Regarding Clause 19, Mr Mongwaketse (ANC) wondered in terms of transparency whether minutes should be available to the public upon payment of a fee. Mr Mohamed thought that the Open Democracy Bill being passed through Parliament now would provide for this but he asked the Department's advice.

Mr Mokoena thought that in terms of openness the Minister should be held responsible. He thought that maybe the right channel for distribution of public minutes should be through the Minister. Mr Mokoena pointed out that public minutes might be difficult to understand.

Mr Pienaar pointed out that in Clause 31 of the Bill the Chief Executive Officer has discretion to disclose information. Ms Motubatse (ANC) pointed out that generally the minutes are for people who are part of the industry and not for other stakeholders. It is not guaranteed that everyone would understand the minutes. She suggested that the annual report could be given out to the public. This was agreed to and it was decided not to make any changes to the clause.

Clause 20 was accepted.

Regarding Clause 21, Mr Nel (NNP) pointed that there was an amendment made to the National Nuclear Regulator Bill on this point that added "on recommendation of the board" after "officer of the Corporation". The representatives of the Department did not recall this change. They did point out in Clause 12 there were changes from "consultation" to "on recommendation". They agreed to consult the Minister on this issue.

Ms Motubatse asked for clarification of "subdelegation" on section 20 (2)(c). It was not clear to her whether the Minister can give powers to the Board and then further "subdelegate". Mr Mokoena explained that the Board has to represent the interests of the shareholders, while they can delegate assignments they can never delegate responsibility. This was made clear in Section 21(b) of the Bill.

Ms Motubatse asked if the delegation of powers and assignments could be looked at as she was still unclear on how they were delegated.

Clauses 24 through to Clause 32 were accepted.

In regards to Clause 33(d), Mr Mongwaketse said that he felt maybe the word "may" ought to be replaced with "must". The representatives of the Department explained that if they used the word "must" than it would become an obligation. There was meant to be discretion, hence the use of the word "may". The committee agreed to the clause.

Clauses 34 and 35 had been flagged in the amendment process so they remained flagged until the next meeting.

Clauses 36 to 44 were accepted with no debate.

Mr Davidson (DP) asked about Clauses 45 and 46. He did not feel that the clauses make clear what body under the Minister was going to discard the nuclear waste. The Department pointed out the Section 45(2) of the Bill enabled the Regulator to make this clear.

Mr Davidson (DP) asked for clarification on the implementing agent. The Department explained that they do not have a clear programme for radioactive waste management. The Minister will have the power to assign the problem to someone since the Minister has the power to delegate certain functions.

Mr Mohamed pointed out to the committee that the problem of long term radioactive waste management is an international problem, and not just a problem in South Africa. Mr Mokaba (ANC) asked whether or not South Africa could develop greater control of pollution and radioactive waster management.

The Department officials believed that there was a problem and that an overall framework needed to be developed. Dr De Waal said that there needed to be a strategy made up to be discussed by the appropriate parties.

Mr Mohamed concluded the debate by saying that it will have to be a decision with the Regulator and the other interested parties. The Minister will have to work with them to develop a waste management policy.

There were not debates surrounding Clauses 47, 48, 49, 50, 52, and 53.

Mr Mongwaketse asked Mr Pienaar if he could check Sections 34 and 32 of the Constitution to see whether they conflict with Clause 51 of the Bill. Mr Pienaar responded that they had already consulted the Constitution while drafting Clause 51 and they are satisfied that it is consistent with the Constitution.

Mr Oliphant (ANC) asked about the relevance of , "However, no term of imprisonment in excess of six months may be so specified." in Clause 54. Mr Mohamed (ANC) agreed that the sentence looked out of place, and that he felt that it should be changed to follow everything else. Dr De Waal responded that they could insert a semi-colon and a "h" for the "H".

Mr Oliphant (ANC) explained that he was not concerned about the construction of the sentence, he did not see why they had added a prison term of six months. Mr Pienaar explained that the Minister could not be given carte blanche, and that some perimeters had to be set. However, the perimeters can be changed if the committee disagrees.

Mr Mokoena pointed out that the language in the sentence should be changed regardless as suggested by Dr De Waal. The Chairperson, Mr Mohamed (ANC) decided to leave it until the next meeting.

There were no disagreements concerning Clauses 55 to 60.

Mr Mohamed was concerned about the use of "etc." in section (b) of the Memorandum. Mr Pienaar pointed out that the Memorandum is not subject to legal interpretation. The representatives of the Department thought that because "e.g." was used there was no need to add "etc.". Mr Mohamed decided that they would leave it for the Department to look over and get back to the committee.

Finally, Mr Mohamed encouraged all the members and the stakeholders to bring any more amendments to the next day's meeting. The meeting was adjourned.

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