Revised AFRA agreement on Nuclear Science; Former DMRE official & Glencore matters

Meeting report

The Chairperson noted apologies from the Deputy Minister. He pointed to two items that are not officially a part of the meeting agenda but required the Committee’s attention. He suggested that the Committee have a "snap chat" on the following issues at the end of the meeting:
• The appearance by the former DMRE Deputy Director-General in court for charges of fraud, corruption and money laundering. He does not want the Committee to keep quiet about this matter and pretend as though nothing happened. The Committee should decide if it should attend to this matter and what the approach should be if this is agreed to.

• The manipulation of state institutions by Glencore. The company is a South African company and the matter is within the Committee’s sector so this matter is of interest. The Committee should decide if there is a need for the Committee to handle this matter, noting that it is not on the Committee programme this quarter.

Another issue has been dealing with the fuel crisis. The Committee is at the deep end of this crisis. The work on this might be completed. These are the serious challenges the Committee is facing.

The suggestion was agreed to by Mr K Mileham (DA) and Mr M Mahlaule (ANC). Mr Mahlaule motivated this by stating that the Committee cannot be bystanders – a discussion should be had.

Revised AFRA: DMRE briefing
Mr Zizamele Mbambo, DMRE Deputy Director-General: Nuclear Energy and Management, tendered an apology from the Acting Deputy-General. Notable points from his presentation were:

The strategic goals to fulfil the AFRA mandate:
Goal 1 – to enhance the sustainable contribution of nuclear science and technology to meet the developmental needs and interests of member states.

Goal 2 – to entrench the culture of mutual assistance and regional cooperation in the effective utilization of available nuclear expertise and infrastructure.

Goal 3 – to deepen the culture of nuclear safety and security at regional and national levels in the gainful exploitation of nuclear science and technology.

Goal 4 – to interact continuously with and create awareness amongst decision makers, civil society, users, and general public on the peaceful application of nuclear science and technology.

Goal 5 – to institute good governance and excellence in the management of activities in the region.

The main amendments to AFRA are:
1. The Preamble where the parties replaced the 1990 agreement with this revised document states that the agreement shall continue to be in force indefinitely.

2. Paragraph 2 of Article XIV gives a member state an opportunity to withdraw from the agreement through written notification to the International Atomic Energy Agency (IAEA) Director-General which will take effect six months upon receipt of the withdrawal notification.

On the status of the ratification of the amended AFRA, Mr Mbambo stated that on March 2020 the IAEA Director-General received notifications of acceptance from three African countries in accordance with Article XIV(1) of the revised AFRA. To date, 17 countries have accepted it.

The fellowship programme has processed 61 students. Most of the placements are at Stellenbosch University. The fellowship is important as it demonstrates collaboration in the region. South Africa wants to leverage the existing institutions and facilities ensuring the knowledge and the strengthening of the benefits of the peaceful use of nuclear technology.

On the risks identified, a failure to ratify the amended AFRA posed a risk that South Africa may be limited in the opportunities to effectively participate in the AFRA programme and lose a leadership role on the continent in nuclear applications. It is crucial for South Africa to ratify the amended AFRA to mitigate this risk.

Mr Mbambo concluded with these recommendations to the Portfolio Committee:
1. Note that the Amended AFRA was submitted to both Department of Justice and the Office of the Chief State Law Advisor, as well as the Office of Chief State Law Advisors: International Law for advice. Both Departments confirmed that the provisions of the Amended Convention are consistent with the domestic laws of the Republic of South Africa and international laws.
2. Note that Cabinet approved the amended agreement to be tabled in Parliament in terms of section 231(2) of the Constitution.
3. Support the acceptance and ratification of the amended AFRA agreement.

Discussion
Mr Mileham asked what South Africa’s financial obligations are for this agreement.

Mr Mahlaule stated that the request to amend the two clauses is sensible as the clauses deal with time frames as one does not want to bottleneck the country into international agreements that are not well defined. He asked what is expected from the Committee about this amendment. The Committee need not waste any further time as the two clauses make sense. He did not want to waste time so that other issues can be attended to.

Ms P Madokwe (EFF) asked why the amendment is only being discussed now as the amendment was drafted in 2020. Why have fewer than 50% of the other countries accepted the amendment? What are their reasons for not accepting the amendment?

Ms V Malinga (ANC) asked if DMRE is certain that the two amendments are the only amendments. Is it satisfied that the entire document is correct and only the two clauses needed to be amended?

DMRE response
Mr Mbambo replied that South Africa is required to contribute financially to IAEA membership. South Africa paid R3.1 million in membership fees for 2022/23 as part of the AFRA programme. It is critical for South Africa to pay its membership fee to this organization because the country derives value for money in participating in nuclear science and technology research and development programmes. It is beneficial to South Africa in many areas relevant to the application of nuclear technology. He was of the opinion that participation in AFRA is important for South Africa to be at the cutting edge of nuclear technology. When the programme’s fellows come to South Africa they will be spending money that they come with, so it has a multiplying effect.

The agreement itself is identical to the original existing agreement of 1990. The two clauses being corrected have no material impact on the actual content of the agreement. What is requested of the Committee is its support for the amended agreement to be ratified in Parliament as it is not yet binding on South Africa.

The reason the amended agreement is only being presented now when it came into force in 2020 is that this matter required a process of approvals from different structures in government to ensure that the agreement becomes binding. The Department has been undertaking this process ever since the agreement came to force. It has been presented to various structures such as the Forum of South African Directors-General (FOSAD) cluster and the ministerial cluster. Cabinet only approved AFRA in August 2021. The Department has been following up with processes to ensure that the amended agreement is approved by Parliament. There has not been a delay on the department’s end in ensuring that the agreement is ratified by Parliament.

Mr Mbambo replied that he is not in a position to speak on behalf of other countries and state reasons for refusal but it is safe to say that other countries have accepted the amendments. South Africa actively participated in the negotiations on the formulations of the amendments. The technical working group that was hosted in South Africa in 2019 was in full agreement with the amendments. These amendments were recommended to the AFRA representatives. All the countries accepted the amendments. The agreement is currently going through the approval process in the different countries. They are not in the position to determine the reasons for other countries not accepting the agreement.

Mr Mbambo agreed that these are the only two clauses that require amendment. The Department has gone through a rigorous process to ensure that the agreement is subjected to legal review after it was technically reviewed by different structures of government. The Department of Justice and Constitutional Development agreed that the agreement is in line with domestic laws. The Department of International Relations and Cooperation agreed that it is in line with international law. The Office of the Chief State Law Advisor agreed that the agreement is in line with South Africa’s international obligations and international law. The Department is satisfied that these are the only amendments that are recommended for the AFRA agreement.

Ms Lerato Makgae, DMRE National Liaison Officer, added that one of the reasons member states decided to make the amendments were due to the challenges arising from the need to follow government processes every five years so the agreement can be acceded to. This has been a challenge in the past. The agreement has been renewed three times already and member states took the decision to have the agreement in force indefinitely to avoid such challenges.

Further questions
The Chairperson understood the Department's challenge in obtaining the approval of the public service. He noted the June 2022 engagements and that Goal 5 is to institute good governance and excellence in the management of activities in the region.

He took it that the DMRE submission is not an agreement, it is an amendment of an existing agreement that is being tabled. Two changes are being put forward. First, the signed agreement is no longer subject to a five-year revolving period and is now indefinite. Secondly, if a party seeks to withdraw from the agreement, that country must submit a withdrawal notice that requires six months to take effect.

He requested that the discussion go back to the amendments. He asked what the advantages of an indefinite agreement are. What mechanism will be used in the case of an indefinite agreement to review and make amendments? Does the 'indefinite' amendment mean that its enforcement is indefinite? At what point can the indefinite agreement be amended or reviewed?

Goal 4 states that it is to interact continuously with and create awareness amongst decision-makers, civil society, users and the general public on the benefits of the peaceful application of nuclear science and technology. He wants a better understanding of this goal as he lacks the benefit of knowledge of how the actual agreement was understood by Members of Parliament responsible for the original agreement.

Would it not be much better or more consultative if DMRE engages the Committee on the Department’s June conference? Not doing so, does not make Goal 4 practical. When such agreements are brought to Parliament, the Committee expects to be more informed on how the decision was reached. The problem is that when these agreements come for ratification, the Department does not provide in depth knowledge to the Members from whom approval is being asked. Does the Department not think that platforms like those are necessary for the Committee so when matters of this nature are brought for approval in future, the Committee is better informed?

DMRE response
Mr Mbambo replied about the advantages of an indefinite agreement. It was proposed because member states who are party to the AFRA agreement have been implementing the agreement for more than 20 years and realised that the need to renew the agreement every five years is a disadvantage. An indefinite agreement is an advantage as it eliminates the hurdle of having to renew the agreement every five years. It allows for continuity for regional members to execute the agreement. It strengthens collaboration and cooperation between member states party to the agreement. It creates a favourable platform for the African region to reach its strategic goal of becoming self-sufficient in the peaceful applications of nuclear technology.

Mr Mbambo replied that the Chairperson is correct and that there is going to be a regional nuclear energy management school from 20 June until 1 July where 44 experts will descend on South Africa to study nuclear management. Participation in the AFRA programme allows for this platform to happen. Portfolio Committee members can be invited to attend the conference so the Committee can see what this platform provides. There are a number of engagements that will be of interest. Stakeholders attending this programme have already been selected by IAEA. The courses will be beneficial and create advanced understanding of the skills required of a nuclear manager.

AFRA has a mechanism for reviewing the agreement which goes through a very rigorous process. It has to go through a technical working group. After it has been technically approved, it is recommended to the AFRA representatives. Even though it has been approved on a technical level, it is subject to ratification.

Ms Makgae expanded on the nuclear management school. It is part of a training course provided for the regional members. It is hosted by South Africa and hosts attendees from other member states. Participants will be given an international perspective as well as the lessons learned and best practices from IAEA. The training will be provided by IAEA experts and local experts. Participants will be grouped with mentors. The Department will have a visit by the IAEA director of technical cooperation alongside the energy management school. This is part of the oversight function. What is planned with him for Goal 4 is a nuclear lecture at the North West University in Mafikeng. They will be engaging with youth in and around the university on nuclear issues. They will invite maths and science learners from different schools to raise awareness on the nuclear field and its career prospects. The director will do site visits to the South African Institute of Welding and another organisation.

She agreed that the Chairperson is correct that communication and awareness raising needs to be fostered with the stakeholders listed in Goal 4. This is one of the areas where even AFRA impresses on them that decision-makers must also be included in events. The Department will try to look into that. The nuclear energy management school is open to Members if they would be interested to attend.

The Chairperson thanked the DMRE delegation and stated that some of the issues will require the Committee to continually interact with them. He clarified that the reason he raised his questions was because DMRE must assist the Committee from time to time. The Committee must not be reduced to merely ratifying what has been decided on, without it testing the need or demand for such ratification.

Snap chat on former DMRE official arrest and Glencore
The Chairperson said he will come with his own input once Members have expressed their views. The point is the matter cannot be discussed now. There are issues in the public domain and they reflect the portfolio for which the Committee is responsible. He asked for Members' views on whether the Committee should attend to these matters.

Mr Mahlaule said that he is not well qualified to speak on the arrest of the former DMRE deputy director-general. He was not privy to what happened before he became part of the Committee. The law enforcement agencies are dealing with the matter. He was trying to understand the role of the Committee on the issue. He is struggling to understand this role.

On Glencore, Mr Mahlaule stated that the Committee cannot be driven by media reports. The best thing they can do is to provide a platform for the people involved to come and explain their actions. Their actions brought the country and sector into disrepute. They have admitted to their wrongdoing. The issue is why did they do it? To what extent did Glencore do this in South Africa? It is a criminal offence to bribe people in South Africa. Glencore needs to appraise the Committee on why these acts were done. We cannot let it slide.

Ms Madokwe agreed that the Committee culture and responsibility should be to respond to and discuss whatever minerals and energy matters are in the public domain even if it is not in the Committee schedule. This includes the matter of the former Deputy Director-General as some of the decisions made at that time did affect and contribute to the challenges we are now facing as the Committee and the Department. Thorough discussion and investigation could lead to the Committee finding out that some of the people implicated are still serving in the Department or its entities right now. It is important for the Committee to discuss and probe both issues and find out what needs to be done about them.

Ms Malinga stated that the matter of the Deputy Director-General might be a challenge for the Committee as it is still sub-judice. She agreed that time must be made for the people implicated in the Glencore matter to explain themselves to the Committee. She was not sure about discussing the other matter as the court has not made a decision yet.

Mr J Lorimer (DA) stated that Mr Mahlaule had an interesting point. He did not know if the Glencore admission of bribery covered South Africa. If the implicated people were guilty of bribing people in numerous countries, who is to say they have not done the same thing in South Africa but just have not been caught yet. Having them account to the Committee is a good idea.

The matter of the Deputy Director-General highlights mine rehabilitation funds. He asked for an updated briefing by the Department on the status of mine rehabilitation funds in general. This will inform the Committee about the issue without the worry about contravening the fact that the matter is in the court.

The Chairperson remarked that Parliamentary Legal Services have pointed out in the past that just because a matter is sub-judice does not mean that the Committee cannot deal with it. What they cannot do is to deal with the merits of the case. Will it not help the Committee to receive guidance from the researcher in consultation with Legal Services on how the Committee can handle the Deputy Director-General allegations and the Glencore case. Once guidance is received, Members can consider who to invite and how to approach this. Based on that guidance on the facts that are undisputed and legal advice, the Committee can then agree on a way forward. Will that not help?

Mr Lorimer believed that the Chairperson is correct about getting advice. He believed that the Committee must not restrict this to State Capture. It is quite possible that there was bad behaviour outside of State Capture.

The Chairperson corrected Mr Lorimer's statement and said that he should leave State Capture as there has already been a decision by Parliament on the process for that. What he is saying is that the legal advice would tell the Committee what more they can do beyond what they are talking about now. We can put political parties aside and see what we can deal with as a committee as per the advice of Legal Services as well as the information at our disposal. He agreed with Mr Lorimer that the Committee cannot be constrained to State Capture as they have a duty beyond that.

Mr Lorimer said he would appreciate a briefing on the current status of mine rehabilitation funds.

An ANC Member seconded Mr Lorimer’s request for a briefing.

The Chairperson agreed that this will be included in the Committee's next quarterly programme.

Committee Report on Revised African Regional Co-operative Agreement for Research, Development and Training Related to Nuclear Science and Technology (AFRA)
The Committee adopted its Committee Report requesting the National Assembly ratify this.

After the Committee adopted the minutes of 24 May 2022, the Chairperson said that he will revert to the Committee on its decisions on the other matters and adjourned the meeting.