Minister’s request for exclusion of ports from coastal public property into s27(4) of National Environmental Management Act: Integrated Coastal Management Act

NCOP Land and Mineral Resources

16 February 2009
Chairperson: Rev P Moatshe
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Meeting Summary

The Department of Environmental Affairs and Tourism presented for consideration the request from the Minister of Environmental Affairs and Tourism that certain land be excluded from coastal public property in terms of Section 27(4) of the National Environmental Management: Integrated Coastal Management Act. When the Act was still a Bill in Parliament, the Portfolio Committee on Environmental Affairs had been opposed to the Lexshell/Transnet proposal calling for the exclusion of the V&A Waterfront and all ports from the Act. Since each of these ports were extensive with larger reserved areas, the Portfolio Committee had felt this proposal could not be permitted.

The Portfolio Committee had felt that there had to be certainty as to what would be excluded. The Portfolio Committee thus introduced Section 27(2) -27(4) which allowed exceptions by ministerial proclamation and ratification by Parliament. There was thus agreement for the exclusion of confined port areas, namely the footprint of ports where the actual work was being done. The exclusion did not include the extended areas.

Since the Act had been enacted, Transnet had submitted a formal application for the exclusion of nine ports with co-ordinates that covered only the footprint of ports where the actual work was being done. The request did not include the extended areas of each port. In reply to a question on the V&A Waterfront, DEAT explained that this application did not include the V&A Waterfront. The V&A Waterfront did not form part of the footprint of the area to be excluded. The V&A Waterfront would have to come back to Parliament if it wished to be excluded. The excluded areas were to allow for the development of port operations. Transnet needed to lease its property out for more than twenty years in order to make it financially viable. DEAT therefore appealed to the Committee to ratify the decision by the Minister.

However, Members did not feel comfortable in ratifying the Minister’s decision without discussing the issue with their respective provinces first. Hence the matter was deferred for discussion at a later time.

 

Meeting report

Minister’s request for exclusion from Coastal Public Property ito s27(4) of National Environmental Management Act: Integrated Coastal Management Act 2008: Department briefing
The presentation was done by Adv Radia Razack, DEAT Director Legal Services, Mr Ishaam Abader DEAT Deputy Director General and Mr Niel Malan DEAT Deputy Director Integrated Coastal Management.

Adv Razack pointed out that a great deal of discussion had ensued over the Act. The Portfolio Committee on Environmental Affairs had been opposed to the suggestion of calling for the exclusion of the V&A Waterfront and all ports from the Act. The issue was about the jurisdiction of the ports. The ports had larger reserved areas which the Portfolio Committee felt could not be excluded. The Committee had said that there had to be certainty as to what could be excluded.

The Portfolio Committee thus introduced Section 27(2) -27(4) which contained exceptions. The Minister could exclude from coastal public property if for government purposes, but did not include donation, alienation or leases for more than twenty years or alternatively the Minister could exclude for any other purpose by ratification by Parliament. There was thus agreement for the exclusion of confined port areas, that is, the footprint of ports where the actual work was being done. The exclusion did not include the extended areas.

Ports however had to still comply with other provisions of the Act and other environmental laws. Transnet submitted a formal application for the exclusion of confined ports with agreed co-ordinates. Transnet needed to lease its property out for more than twenty years in order to make it financially viable. Hence the ratification by Parliament was needed.

The DEAT therefore appealed to the Committee to ratify the decision by the Minister. Mr Malan concluded the presentation by showing the Committee on maps where the excluded port areas were located. The decision to exclude areas within the ports was for operational reasons.

Discussion
Mr L Van Rooyen (ANC, Free State) stated that the Portfolio Committee on Environmental Affairs had during the public hearings on the original Bill, had not wished for the V&A Waterfront to be excluded specifically. He felt that the Committee was now going contrary to that decision. Mr Van Rooyen asked what was the basis for Transnet’s complaint that the exclusions would prevent it from obtaining loans, when the reality was that Transnet had a very good credit rating to obtain loans.

Ms Razack responded that the V&A Waterfront was particularly excluded from the confined port area. The issue was about contractual obligations. The V&A Waterfront did not form part of the footprint of the area to be excluded. Hence the actual V&A Waterfront area was not excluded from the application of the Act. The V&A Waterfront would have to come back to Parliament if it wished to be excluded. The excluded areas were to allow for the development of port operations. The excluded areas related more to port operations, such as docking of ships.

Mr V Windvoel (ANC, Mpumalanga) asked whether all nine ports had contractual obligations that would be affected by the exclusions. He asked what about those ports not affected. Mr Windvoel also asked what the duration of these leases were. Information was needed in order to determine what the implications were. He further asked what impact the current global recession had on Transnet’s contractual obligations. Mr Windvoel additionally asked what the size of the intended excluded land was to be. He emphasized that the Committee was just as concerned over the issue as the Portfolio Committee on Environmental Affairs was.

Ms Razack stated that the exclusions were allowed for the development of port operations and was not because of specific contractual obligations that the nine ports had. She noted that the Department could source the information relating to the duration of leases etc and could then forward it to the Committee.

Ms Razack could not off hand comment on the impact of the global recession but agreed to report back on the issue.

Mr Abader reiterated that the exclusions were about economics, such as the development of port operations given the many ships that berth in ports.

Ms Razack noted that if these areas were not excluded the DEAT would have to administer the leasing of these areas itself. She understood that the Committee was just as concerned over the issue as the Portfolio Committee on Environmental Affairs was.
 
Ms M Oliphant (ANC, KZN) felt that the Committee could not make a decision using a final version of the Bill. The Committee had to use the Act itself which Members at this point in time did not have. She asked whether the Department had discussed the issue with the affected provinces. Ms Oliphant proposed that the issue be deferred until such time that the Committee was able to obtain copies of the Act itself. It did not matter whether it was before or after the upcoming elections.

Ms Razack pointed out that the Department was not calling for an amendment to the Act. She noted that Parliament did not have copies of the Act available when copies were requested. The Act and the Bill had exactly the same provisions. There were no changes. All what was being requested of the Committee was ratification.

Mr A Watson (DA, Mpumalanga) referred to ships anchored outside of ports before entering and asked how the exclusions would affect these ships.

Ms Razack said that the mooring of ships was fine. Transnet’s jurisdiction and control was not the issue. She did note that dredging did impact upon the environment and hence Transnet would have to still obtain permits from DEAT to do it.

Mr Windvoel asked what the specific areas that were to be excluded were.

Mr Van Rooyen reiterated that Transnet’s complaint about their ability to obtain loans being affected by the Act did not hold water, as they had an excellent credit rating. He asked the Department to define “confined port areas”.

Ms Razack explained that the maps showed exactly what the "confined ports areas" were. It had the proper co-ordinates that were mapped via a Global Positioning System (GPS).

Mr R Tau (ANC, Nothern Cape) could not understand what Transnet’s gripe now was, given that in the last meeting dealing with the Bill they had agreed to the proposals.

The Chair said that it raised doubts as to what was happening. He asked the Department to come back to the Committee in the future with new facts.

Mr Moatshe said that issue needed to be discussed in the provinces.
 
Ms Razack stated that DEAT had dealt with both Transnet and the Department of Public Enterprises (DPE). The interaction with Transnet had gone nowhere as Transnet had asked for the total exclusion of extended areas. In response DEAT had asked for exact co-ordinates of their areas that would be affected. Eventually the Department of Public Enterprises (DPE) approached DEAT and pointed out some practical issues that had arisen. The DPE was not too concerned about the V&A Waterfront issue as more important issues had come to light. Section 11 of the Act dealt with the ownership of coastal property and vested it as the property of the citizens of SA. Transnet did not own the land and hence they took issue with the provision. Transnet said that it would detrimentally affect its credit rating as it could no longer use the land as surety when obtaining loans. The Department was sensitive to the concern and thus excluded coastal port property. Transnet was therefore still the owner of property at ports and could therefore use these pieces of property as collateral when raising loans etc.

Mr Windvoel proposed that DEAT furnish the required information to the Committee. He said that the issue needed to be discussed by Members with their respective provinces. Mr Windvoel also remarked that if not all the ports were affected, why was the issue being rushed?

Mr Tau agreed that the issue needed to be discussed with the provinces. He was concerned that the current Parliamentary Programme would not allow the Committee to do justice in discussing the issue, as Parliament was nearly coming to a close. Mr Tau suggested that the meeting be adjourned and that the issue be discussed at a later time.

Mr Watson stated that the issue did not only affect some of the ports but all of them.

Mr Abader said that the process as it stood was what was agreed to by the Committee.

The Chair said that it would seem that Members had concerns and that the issue would not be concluded in the present meeting. He asked if Members would avail themselves at a later time to conclude the issue.

Mr Abader raised the concern that if the issue was carried over until the next Parliament, the process would have to be started anew. DEAT would appreciate wrapping up the issue before the Committee finally rose. DEAT was willing to assist wherever and whenever it could.

The Chair said that the Committee would try its best and would be in contact with DEAT.

After adopting Committee Minutes of 3 February 2009 as amended, the meeting was adjourned.

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