Committee Oversight Report of Western Cape Small Harbours; Expropriation Bill inputs by National House of Traditional Leaders

Public Works and Infrastructure

05 September 2017
Chairperson: Mr F Adams (ANC)
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Meeting Summary

The Portfolio Committee on Public Works met to be briefed by the Parliamentary Legal Services (PLS) on the legal implications of the letter from the President on the return of the Expropriation Bill.

The Parliamentary legal advisor said the version of the Bill that had been returned by the President -- Expropriation Bill 4D of 2015 -- became the only valid version of the Bill. The implication of the letter was that the National Council of Provinces (NCOP) and the Portfolio Committee on Public Works must work together to decide a way forward, based on sec 76 of the Constitution. Although the Committee had not been referred to in the letter, the Joint Rule (Rule 203) indicated that the failure of one House was the failure of all, so the Committee was involved. The Constitutional reservation of the President had been that there was a procedural problem with the process employed by the NCOP for public consultation. Given how the letter was written, it implied there was both a procedural and substantial defect, and that there might also be a need to consult the National House of Traditional Leaders (NHTL).

The former Deputy Minister of the Department of Public Works (DPW), now an ANC Member of the Committee, explained that the process adopted by the NCOP for public consultation had not been adequate and had raised questions from Members of the Democratic Alliance (DA) before the submission of the Bill to the President. The problem had been that the NCOP had not been properly briefed by the DPW on the complexity of the Bill. However, a lot of good work had been put into the Bill and he encouraged the Committee to collaborate with the NCOP and the Parliamentary legal services in a workshop to decide on the way forward.

The Committee asked several questions on the implications of the President’s letter. They asked to have a copy of the letter so that they could also gain a personal understanding of its contents in order to engage further on it. It was decided that the Committee would ask for two terms in 2018 to be able to properly deliver on the expectation of the request.

The Committee also considered the reports of the two oversight visits to three harbours in the Western Cape. Corrections were made to both reports, and they were adopted with amendments.

Meeting report

The Chairperson welcomed the Mr D Ryder (DA), who replaced Ms D Kohler Barnard (DA) on the Committee He said the agenda would be swapped and the first item on the agenda would be the briefing by the Parliamentary Legal Services (PLS) on the Expropriation Bill. He said the Bill had been returned, not signed, to the National Assembly by the President because he had some reservations. The Committee had asked the legal department of the Parliament to look into the reason given by the President for not signing the Bill, as indicated in his letter. He also said the implication of the Land Access Movement of South Africa (LAMOSA) judgment was that the failure of one house was the failure of all. He invited the legal advisor from the Parliamentary Legal Service (PLS) to advice on the letter and the way forward.

Expropriation Bill

Ms Phumelele Ngema, Parliamentary Legal Advisor, said the Expropriation Bill (4D) of 2015 had become the only valid version of the Expropriation Bill. It had been ready for assent, but the President had not signed it because he had a constitutional reservation which was indicated in his letter. Therefore the Bill had been returned to the national legislature. It had been referred back in terms of Section 79 of the Constitution. The provisions of Section 79 stipulated that the process of re-consideration of a Limited Bill must be outlined in the relevant Rule of Parliament -- in this case, the Joint Rule (Rule 203). The rule stated that when the Committee received a Limited Bill, it must consider the reservation of the President, which was based on Section 76. The implication of this was that more power and more input was expected from the National Council of Provinces (NCOP) and from the extensive engagements of the provincial legislatures, taking into account the submissions and inputs from the whole country. The letter based the reservation mostly on the lack of public participation and the processes of the NCOP.

The President had also quoted from the judgment of LAMOSA. The summary basically meant that the President was not satisfied with the public participation in the processing of the Bill. Public participation meant that every legislature -- national, provincial and local government -- must have meaningful engagement with the public so that the input of every individual is considered in the process of the Bill. Therefore, it was important for the National Assembly (NA) and the NCOP to engage to facilitate public participation during the legislative process.

The Joint Rule of Parliament allowed Parliament to look at the reservation of the President and decide whether the reservation of the President is a procedural defect or a substantial defect. The Bill had been returned to Parliament on the basis of both procedural and substantial defects. In this case, it was difficult to separate the procedural aspect from the substance of the Bill.

Ms Ngema said although she was aware that the Committee had consulted the National House of Traditional Leaders (NHTL) when the Bill was returned, the Bill contained communal land issues and Section 18 of the Constitution made it a compulsory requirement that the NHTL be consulted on issues that concerned customs and customary law during the processing of a Bill. She added that the substance of the Bill could not be opened up by the process of reconsideration.

Constitutionally, it was solely the decision of the Committee, based on Section 76, to determine how to go about the process or re-consideration.

The Chairperson said the President had not specified which of the Houses of Parliament had failed to conduct public engagement to satisfy the constitution. The process would have to be taken further at another time because of the Committee’s schedule. He was not aware that the Bill should not be tampered with, but his understanding was the need to make necessary input to the Bill through public participation. He invited Members to ask questions.

Mr K Sithole (IFP) said he had difficulty understanding the reservation of the President, because the Members of Committee did not have a copy of his letter.

Mr M Figg (DA) said that if the problem lay with the NCOP, why was the Bill with the Portfolio Committee on Public Works? He asked if there was a problem with the actual content. He also asked why the opinion letter had not been signed.

Ms C Madlopha (ANC) said that after understanding the legal interpretation of the letter, the Committee Members needed the letter from the President to make out their own interpretation of the content so that they were empowered to engage on the issue. She asked if the President’s concern was only on the process of the NCOP and not on the process of the National Assembly. Also, regarding the letter from the President and the LAMOSA judgment, what did it mean to follow Section 76?

Ms E Masehela (ANC) also asked for a copy of the letter and the LAMOSA judgment referred to by the legal advisor. She observed that the reason the President had requested public participation might have been because the Committee had not gone out to the public but had invited organisations.

Ms P Adams (ANC) said there were three levels of government, and the legal advisor had pointed out that the local government could conduct consultations. She asked if the input of NHTL could be taken as public participation. Public participation was a wide term, and she would propose a workshop with the President so as to have a clear understanding of what the government meant by public participation. LAMOSA should also engage with the Committee. The Bill would affect all the people in South Africa and the Committee must go beyond party politics to ensure that the people could be served in the best way possible.

Mr M Filtane (UDM) also requested a copy of the President’s letter. He said public participation meant a meaningful engagement with the public. He asked what was meant by meaningful public engagement in the constitution, so that the Committee could check if it had conducted sufficient public participation by inviting certain institutions. The Spatial Planning and Land Use Management Act (SPLUMA) empowered local municipalities to take more control over the process of planning for land use, and he asked which Act gave control to traditional leaders over communal land. During the consultations, the South African Local Government Association (SALGA) had made a presentation, but SALGA was a top structure and local governments must be made to feel that they had been consulted. Which people should be consulted -- was it the traditional leaders or local government? What if the traditional leaders had a local standing as an institution which overrode the views of the common man? All these concerns had to be clarified to know the way forward.

The Chairperson said the arrangement was that the PLS would brief the Committee, and the other processes would continue after the Budgetary Review and Recommendation Report (BRRR), which will take place from 3 to 13 October. There would be a need to ask for two terms next year to deal with the issue of the Act. There was a possibility for the Portfolio Committee to engage further with the public. He thanked the legal advisor, and said there would be a need for a workshop.

Mr J Cronin (ANC) said it was true that there had been only three days of public hearings, but there had been over 50 submissions. It was not possible to consult 55 million South Africans. The DPW had had a thorough process, but had failed by not sufficiently advising the NCOP about the complexity of the Bill. The NCOP had been rushing towards the shutdown ahead of the August local government elections last year. It had not been a satisfactory process in the view of the Department. The Democratic Alliance (DA) in the Select Committee had earlier raised some technical issues on the late submission of reports from some provinces. There had been five public participations in different provinces at the same time, and the DPW had lacked the capacity to facilitate the participation adequately. The process had shortcomings, and the DA had promised to raise the matter. Although some of the parties had objected, the Bill had gone to the President. The President had received two objections, which were over the NCOP and the issue of the NHTL. The President had written to the Chairperson of the NCOP and the Speaker of Parliament, and he had copied the Minister. The response from the Chairperson and the Speaker had been that the process was fine.

Mr Cronin said the previous Minister of Public Works had responded that the DPW shared some of the concerns -- that the process had been rushed and was vulnerable -- so it had accepted some of the responsibility for the predicament. One of the issues raised at the beginning was that there was no need to consult the NHTL because it would be necessary only if customary law would be impacted upon. Although a lot of good work had gone into the Bill, the Bill was complicated and there was a need to be cautious. It was a good product, and he would not want people to be discouraged. He asked that the Public Works Portfolio Committee and the NCOP combine forces and set a time for next year, and bring a panel of experts to facilitate a public hearing.

Ms Ngema said the letter from the President would be read and made available to the Committee Members. The legal opinion document had not been signed because of logistics and the urgency to get the document across to the Committee before the meeting started. The signed copies were now available to the Committee.

She observed that most of the questions were asked because the Members did not have the President’s letter on the issue. A workshop could be arranged and the PLS would be willing to be a part of the process undertaken by Parliament and other stakeholders. The lack of consultation with the NHTL was not a sufficient issue to prevent the Bill from sailing through, but it was just by the way, because the Bill had no customary content. The way the rules and the constitution were phrased enabled Parliament to dictate the best action and how the action would be taken.

She said that mentioning LAMOSA referred to a judgment, although the judgment spoke to a specific Bill. The judgment had been mentioned so that the Parliament could learn from it to get a clear direction. There was no provision that made consultation with the NHTL sufficient for public consultation. The reservation did not mean that the previous consultations were not regarded as public consultation, but there was a lack of proper consultation by the NCOP, implying that the failure of one house was the failure of all.

Ms Madlopha said the NCOP should also be included in the workshop so that they could have clarity on the issue.

The Chairperson said he agreed with Ms Madlopha, and added that provincial and local governments must also be involved in the workshop. The letter must be read and addressed together, to get a common understanding by everyone involved.

Oversight visit to small harbours in Western Cape – 19 to 21 June

Members were asked to review the oversight report for the Committee’s visit to small harbours in Western Cape from 19 to 21 June 2017.

The Chairperson said they should note errors page by page, and should refer the grammatical errors to the appropriate people for correction.

Mr Figg said the statement on Page 3 looked like the municipality had decided to do certain repairs and had later requested to be paid by the DPW.

Mr Shuaib Dennysen, Committee Content Adviser, said the issue was that there was a feud between the municipality and DPW over the repair. The DPW claimed that they had not been consulted before the repairs were done and had been told to pay for the repair afterwards. The sentence in the report meant that the municipality had done the specified repairs on its own without consulting the DPW but had subsequently requested money from the DPW.

Ms Madlopha said the municipalities did not present any documents when documentation was requested

Mr Dennysen said some documents had been sent, but these had been communications between the municipalities and some people over the payment. He confirmed that there was no agreement to pay by the DPW in the documentation.

Ms Madlopha asked why it had been written as a ‘commitment.’ She asked if it was a commitment to pay the R800m spent on the repair to the municipality. She asked that the statement should be specific on what the commitment from the DPW to the municipality had been.

The Chairperson said the understanding was that the DPW would assist in getting investors to the harbours, and this was the commitment made by the DPW. However, this had been made after the work had been completed, and the municipality had requested the DPW to pay for the work done. The DPW had responded that they had no obligation to pay as there was no agreement between the two parties prior the work done.

Mr Dennysen said the word ‘facilitate’ would be better, rather than ‘commitment,’ so that it would read that ‘there would be a facilitation of economic growth’ rather than ‘a commitment of economic growth,’ since the DPW did not intend to pay for the repair.

Mr Ryder said the DPW should take some responsibility for the repair done, because it had been as a result of damage caused by the DPW. It would also depend on the type of repairs that had been done – whether they had been aesthetic or repairs to put the harbour in a working condition.

Ms Madlopha said the Committee was also sympathetic with the municipality, but the municipality had not been honest with it. The municipality had been supposed to write the DPW on the repair before it was done. The Committee had asked the municipality to provide the agreement documentation so that it could hold the DPW liable for the cost of the repair done. No documentation for an agreement between the municipality and the DPW had been sent to the Committee.

Chairperson said the Mayor had promised to send the documentation.

Mr Dennysen said the Director General (DG) had made it clear that the DPW would not pay because there was no agreement, but DPW would make sure there were investments in the area as a return for the municipality’s expenses on the repair.

Mr Ryder said the statement should be changed from ‘ensuring investment’ to ‘facilitate investment.’

Mr Figg said the Committee should not go into the payment or non-payment issues, but limit itself to just reporting the situation during the oversight visit, because one of the parties had been dishonest.

Ms Madlopha said she believed that the municipality not telling the truth, so the statement should be changed to reflect that there had been no agreement.

Ms Masehela said it would be better to check if there was an agreement of not.

Ms Adams said the municipality had brought an envelope to the Committee Members. She was not sure if it had been the agreement or not, but suggested that the issue should be reported as it was told to the Committee.

Ms Madlopha said it should be reported that there was contention over the payment for repairs done by the municipality.

Mr Dennysen said documents had been sent, but they were communications about different types of payments, and no agreement had been included.

Mr Sithole said the sentence did not give a clear understanding of the issue, so it would be better to re-phrase and say, ‘the DG said there was no agreement.’

Mr Dennysen said re-phrased statement would read: ‘The DG said the DPW would not pay, however, he said the DPW would assist by bringing investors.’

Ms Madlopha said the statement must also indicate that there was no agreement, because the DPW had indicated from the outset that there was no agreement.

Mr Dennysen the rephrased statement to include ‘because there was no agreement to repay.’

The Chairperson noted that the R400m mentioned in 4.5.1 had been decreased to R192m, and this should be reflected in the report.

Ms Madlopha said what was written down was R400m.

Mr Figg said that he agreed with Ms Madlopha -- that R400m was what was officially written.

Ms Nola Jobodwana, Committee Secretary, said R400m was indicated when the Committee went on the first leg of the oversight visit, and it should be written in the first report as R400m. The R192m came up during the deliberations on the second leg of the oversight, so it should be written in the second report as R192m.

Ms P Adams said it should also be noted that the money was allocated over a period of three years.

After other minor grammatical and clarification corrections were made, Ms Madlopha moved the motion for the adoption of the first report with amendments, and this was seconded by Mr Adams.

Oversight visit to small harbours in Western Cape – 30 July to 3 August

Members were asked to consider and adopt the oversight report for the Committee’s visit to small harbours in Western Cape from 30 July to 3 August.

The chairperson said the end date came before the start date of the oversight on the front page. This should be swapped. Also, the names of Members who went on oversight should be included in the report.

Mr Adams noted the inappropriate use of commas in the whole document

Ms Madlopha asked if there was anyone responsible for editing the Committee’s documents before they came to the Committee. This would be important to avoid time wastage on grammatical corrections.

The Chairperson said some Members would be selected to help with editing documents before they were presented before the Committee.

Ms Madlopha said that in all the places where names were abbreviated, the name must be written in full for the first time for reasons of clarity, because the documents would ultimately become public documents.

Mr K Sithole said a particular R120m had not been mentioned in the document

Mr Figg said it had been mentioned on Page 10 (i).

Mr Sithole asked what the recommendation of the Committee was on the issue

The Chairperson said the recommendation of the House was that the harbour must be used.

Mr Filtane said it would be important for the Committee to plan a meeting with the Department of Environmental Affairs, the Department of Police and Military Veterans and the Department of Home Affairs to discuss the security challenge that the Committee had come across at Hout Bay during its oversight function. The Committee must ask what the role of the Sea Patrol was.

Mr Dennysen said the Committee resolution which was written at the end of the second report should be written as a recommendation to the executive.

Chairperson appreciated the input of Mr Dennysen, and asked if it was possible to combine both reports since they were both on small harbours. The only difference was the date of the oversight visits.

Mr Dennysen said the two oversights were two different mandates and may not be combined.

Ms Madlopha asked if there was any policy prohibiting the combination of the two reports, or was it just because they had different dates.

Ms Jobodwana said there should be a report within seven to eight days after an oversight visit funded by the Parliament.

Chairperson said there had been similar experiences on both visits and the recommendations in the second report should also be in the first report.

Mr Filtane said if the two reports could not be combined then it would be important to leave the recommendations as they were.

Mr Dennysen said it would be good to include the information that the resolutions for the actions of the Committee were contained in Report 2.

After other minor grammatical and clarification corrections had been made, the report was adopted with amendments, proposed by Ms Madlopha and seconded by Mr Sithole.

The meeting was adjourned.

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