Mineral and Petroleum Resources Development Amendment Bill [B15-2013]: tagging issues & compliance with Section 249 of the Rules of the National Assembly

Meeting report

Opening Remarks
The Chairperson said two issues had to be dealt with before the clauses in the Mineral and Petroleum Resources Development Amendment Bill (MPRDAB) could be deliberated upon. The first issue concerned the tagging of the MPRDAB. There was a need to ascertain why the MPRDAB had been tagged as a Section 76 Bill, instead of it being tagged as a Section 75 Bill. The second issue was in respect of Section 249 of the Rules of the National Assembly, which concerned the additional clauses sought for incorporation into the MPRDAB.

The Chairperson asked the Parliamentary Legal adviser, Ms Desiree Swartz, to clarify the matter concerning the tagging of the Bill.

Tagging of the Bill
Ms Swartz replied that a decision regarding the tagging of the Bill had been taken by the Joint Tagging Mechanism (JTM) after various opinions had been sought from different quarters.  She said that the MPRDAB had been rightly tagged as a Section 76 Bill, because of the beneficiation provisions in the MPRDAB. The provisions gave the Minister the power to set a percentage in respect of the raw materials and mineral products which could be precluded from been sold overseas.

Mr J Lorimer (DA) sought clarity concerning the MPRDAB, and asked if its tagging as a section 76 Bill should be regarded as permanent.

The Chairperson responded that in light of the explanation offered by the Parliamentary Legal Adviser, it appeared that the MPRDAB would remain as a Section 76 Bill.  Furthermore, she observed that the Committee did not have the power to change the tagging of the MPRDAB.

Mr Lorimer asked if there was any need for the Bill to the National House of Traditional Leaders. It appeared that certain provisions in the MPRDAB dealt with the alienation of land, which connected those provisions to the issues of customary law and traditional duties.

Ms Swartz replied that the need to refer the MPRDAB to the National House of Traditional Leaders would arise only if there were an interference with the customary law of communities.  There was no provision in the Bill which affected the customs of any community. As a result, it was not necessary for the Bill to be sent to the National House of Traditional Leaders
Mr Lorimer commented that the MPRDAB appeared to contain some provisions which related to how the traditional communities could utilise their lands. He felt that this warranted a need for the MPRDAB to be referred to the National House of Traditional Leaders for deliberation.
Ms Swartz reiterated that the MPRDAB could be referred to the National House of Traditional Leaders only if the provisions in the Bill referred specifically to the issue of custom. The provisions in the MPRDAB did not suggest that the issue of custom had been particularly referred to.
Adv H Schmidt (DA) asked what the consequences would be if the MPRDAB had to be referred to the National Council of Provinces (NCOP) for consultation. He observed that Parliament would soon be going into recess in the month of March and that by his understanding, a Bill would lapse at the end of the Parliamentary term and would have to be re-introduced in the new term. It was possible that the members constituting the Committee in the new term could be different from the present members.  In view of this, he sought to know the possibility of reaching a conclusion in respect of the MPRDAB, if it still had to be referred to the NCOP.  He suggested that it might be necessary to set a deadline for the conclusion of deliberations in respect of the Bill.
The Chairperson replied that it was possible that the Committee could run out of time before reaching a conclusion in respect of the MPRDAB.  The Committee would continue to deliberate on the Bill within the time frame available to it. However, prioritisation would be given to the areas of common interest in the MPRDAB.
Section 249 of the Rules of the National Assembly
The Chairperson proceeded to consideration of the second issue before the Committee. She said that it was pertinent to consider the provisions of Rule 249 in relation to the processing of the MPRDAB. This was necessary in respect of the additional amendments sought to be made to the Bill.  Rule 249 (3) (b) provided that ‘The Committee...if it is a bill amending provisions of legislation, may seek the permission of the Assembly to inquire into amending other provisions of that legislation...’.  She asked for opinions on the necessary procedure to be followed in relation to the provisions of this rule.
Mr Schmidt commented that the interpretation of section 249 appeared to be that where a proposed amendment Bill had been submitted to Parliament for the purpose of amending a principal Act, and further amendments were sought to be made to the provisions of the Act which were not in the original proposed amendment Bill, then the permission of Parliament would have to be sought before the further amendments would be allowed.
The Chairperson concurred with the opinion of Mr Schmidt. She saidd that the additional clauses sought to be added to the MRDAB would have to be referred to the Speaker, who would probably have to consult with Parliament. This would appear to be the way forward. She asked for further comments from the members.
Mr Schmidt agreed that the Speaker would have to be consulted in respect of the additional clauses sought to be incorporated into the MPRDAB.
The Chairperson asked the Parliamentary legal adviser to explain to the Committee why the additional clauses were necessary.
Ms Swartz explained that the additional clauses sought to be incorporated into the original MPRDAB were necessary because of certain developments in respect of environmental legislation, which had far-reaching effects on the MPRDAB. It was therefore necessary to incorporate the new clauses to reflect and accommodate these developments. This was what necessitated the need for compliance with Rule 249 (3) (b) to seek permission from Parliament to incorporate the additional clauses into the MPRDAB.
The Chairperson said that the additional clauses would be sent to the Speaker. She hoped that a speedy response would be received concerning the additional clauses.
Mr Lorimer said that he had earlier asked for a written opinion in respect of the constitutionality of the MPRDAB. The opinion was necessary in light of the concerns and reservations expressed by two of South Africa’s prominent legal firms concerning the constitutionality of the MPRDAB, and whether it violated international trade treaties. Furthermore, it would be very embarrassing for the Committee if the MPRDAB was passed by Parliament, but was later found to be unconstitutional by the courts. The written opinion would therefore provide the Committee with the necessary evidence to prove that the issue of the MPRDAB’s constitutionality had been considered.
Mr Theo Hercules, Principal State Law Adviser, responded that the he had earlier submitted the written opinion to the secretary of the Committee.
The Committee secretary confirmed that she had received it, but that the Chairperson had stated that she wanted to take a look at the opinion before it was circulated.
The Chairperson stated that she would ensure that Members received the opinion.
The Chairperson instructed the Parliamentary Legal Adviser to present the additional clauses sought to be incorporated into the MPRDAB.  The Committee would decide whether the additional clauses would be accepted or not.
Mr Hercules said that the first additional clause concerned section 9 of the principal Act, which dealt with the invitation for applications.
The second additional clause concerned further amendment to section 102 of the principal Act, which was in respect of rights, permits, programmes and plans.
The third additional clause concerned section 26 of the principal Act, which was in respect of the words ‘mine gate price’. There was a need to refine the definition of the words in order to give them more clarity within the context they had been used.
The fourth additional clause concerned section 26 (3), which was in respect of the export of designated minerals.
Mr Hercules stated that these were the additional clauses which sought to be incorporated into the MPRDAB.
The Chairperson asked Members to make their comments in respect of the additional clauses.
Discussion on Section 26 (3)
Mr C Gololo (ANC) sought clarity in respect of section 26 (3). He asked for examples of minerals and products which could not be exported.
 
Mr Mosa Mabuza, Deputy Director General: Mineral Policy and Promotion, DMR, replied that an example could be found in the scenario where an independent beneficiator set up a company in South Africa. In such a situation, section 26 (3) provided for the security of supply of minerals to such a company.
Mr Schmidt commented in respect of section 26 (3). He sought more clarity in respect of the meaning of the words ‘mine gate price,’ as used in the section.
The Chairperson also asked for more clarity in respect of the meaning of the words ‘mine gate price’.  The present definition offered in the section was not sufficient.
Mr Martin Nicol, Parliamentary Researcher, responded to the question in respect of ‘mine gate price’. He explained that the words were a term used in mining contracts. It was an internationally recognised term. The words basically referred to the price at the mine gate, without taking into consideration any values for insurance, transport, or port fees. It was a way of specifying exactly when the determination of price was made. 
Mr Schmidt further asked for more clarity in respect of the ‘mine gate price’, as the explanation offered by the researcher did not entirely explain the meaning of the words.
The Chairperson concurred with Mr Schmidt.  More explanation and clarity would be required in respect of the words. She asked the researcher to make further findings in respect of an adequate definition of the ‘mine gate price’.
The Chairperson asked Members if they had any more questions, but there were none.
The Chairperson said she would draft a letter to the Speaker in respect of the relevant additional clauses sought to be incorporated into the MPRDAB.   The Committee would wait for the response of the Speaker, which meant that the Committee would not be able to commence with the clause by clause deliberations in respect of the Bill.
Mr Schmidt said it was important to seek an audience with the Speaker to ascertain if there was any need for the Committee to start deliberations in respect of the clause by clause consideration of the Bill. This was because he was of the opinion that the Committee would not be able conclude consideration of the clause by clause deliberations before the end of the parliamentary term.  Proceeding with the MPRDAB would be tantamount to repetition in the new term.
The Chairperson replied that she would consult with the Speaker and make her findings known at the next meeting.
The meeting was adjourned.