Category Archives: Parliament of South Africa

The Rubik’s cube of legislating the Mineral and Petroleum Resources Development Amendment Bill

By Abdul Waheed Patel (Managing Director) and Wisahl Jappie (Political and Communications Advisor)

Mineral and Petroleum Resources Amendment Bill

Amidst ‘chamber politics’ that has thwarted Parliament’s public perception and credibility, it is presented with a significant opportunity to exhibit its Constitutional powers and functions as the national legislative authority and platform for public consideration of issues and overseeing executive action.

On 16 January 2015, President Jacob Zuma referred the Mineral and Petroleum Resources Development Amendment Bill to the National Assembly – eleven months since the National Council of Provinces passed the Bill and Parliament transmitted it for Presidential assent and proclamation into law.

The President’s referral requires Parliament to exercise its Constitutional mandate to review within certain parameters and grounds, the process and legislative considerations it previously adopted in passing the Bill.

This presents Parliament with a legislative Rubik’s cube that corresponds with South Africa’s investor friendly pitch at the 2015 World Economic Forum – punting the viability and stability of South Africa’s mining, resources and energy sector.

There was no shortage of lobbying on the amendment bill. Some labeled it “controversial” and discouraging investment in South Africa’s embattled mining industry and the growth of the fledgling oil and gas sector. Stakeholders lamented the Parliamentary public consultation process, the redrafting of the Bill by the Department of the Mineral Resources and the timing of the Gazette notice publishing the amendments to the Act on 27 December 2012.

The President’s letter of referral addressed to the Speaker of the National Assembly, cites the following concerns regarding Bill’s ability to pass constitutional muster:

  • The definition of the Act elevating the Codes for Good Practice for the South African Minerals Industry, the Housing and Living Conditions Standards for the Minerals Industry and the Amended Broad-Based Socio-Economic Empowerment Charter for the Mining and Minerals Industry to national legislative status.
  • Inconsistency of the sections dealing with local mineral beneficiation, with South Africa’s obligations under the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA) as it relates to quantitative restrictions on exports.
  • Insufficient consultation by the National Council of Provinces and provincial legislatures, including the consultation period and the timeliness of notification of public hearings by provincial legislatures.
  • The need to consult the National House of Traditional Leaders with regard to customary law and customs of traditional communities, in respect of land owned or occupied by traditional communities where mineral or geological investigations are contemplated.

The President’s referral on these bases is significant. Prior to the May 2014 general election, the 4th ANC-led administration and Parliament stewarded the bill through the legislative process. This was aligned with the ANC elections manifesto for the transformation of the mineral and energy sector.

This drive towards advancing increased local beneficiation and industrialization finds its genesis in the objectives of the Freedom Charter, which proclaims that the mineral wealth of the country “be owned by the people as a whole”.

The ANC’s 2015 January 8 Statement reaffirmed the furthering of “radical socio-economic transformation” and in reference to the Mineral and Petroleum Resources Development Act (MPRDA) stated:

“The vast mineral wealth of our country, which lies beneath the soil, has been transferred to the ownership of the state on behalf of the people as per the Freedom Charter. However this has not yet translated to equal and full benefit of all South Africans. The ANC commits itself to continue working with our people to ensure that there is enhanced benefit from this ownership. This year we must finalise the amendments to the applicable laws to ensure that mineworkers and mining communities share, much more equally, in South Africa’s mineral wealth”.

All of these factors cascade into three distinct and interlinked messages.

Firstly, the ANC’s policy position on State participation in the minerals, oil and gas sector remains consistent with the original intent of the Bill and the principles of the Freedom Charter – notwithstanding the referral of the Bill back to Parliament. These are further echoed in the party’s 2014 elections manifesto and the 2012 National Conference resolutions.

In the Organisational Report to the party’s June 2012 National Conference, ANC Secretary-General Mr. Gwede Mantashe called for delegates to assess progress made in implementing the MPRDA in order to ensure compliance with the Act, in the context of maintaining the state’s strategic role in the mineral and energy complex as key sector of the economy.

In June 2015, the ANC National General Council gathers to assess the party’s mid-term progress and policy review to shape resolutions for adoption at its National Conference in 2017.

Any fundamental legislative realignment on the MPRDA and which deviates from the original policy intent is unlikely to occur in isolation of these party political policy processes which overlaps with the timing of the Parliamentary review process.

This represents the Parliamentary and legislative Rubik’s cube through which MPs are challenged to achieve a reasonable balance between their party policy objectives and ideologies, public policy and the differing interpretations of what constitutes policy certainty.

Secondly, Government is signaling to the investor, mining, oil and gas community, that the attainment of these policy objectives will not be pursued at the expense of legislation that disincentivises the investment inflow upon which Government’s quest for socio-economic transformation is dependent.

Thirdly, the State is communicating its sensitivity to the impact of sub-standard legislation that might be open to Constitutional challenge and which therefore undermines the ability of the State to advance its socio-economic objectives.

It was former Speaker of the National Assembly, Max Sisulu who vocally cautioned lawmakers during the 4th democratic about the perils of drafting poor quality legislation. During the 2013 Debate on Parliament’s Budget Vote, he bemoaned the number of laws passed by the National Assembly being returned for correction and being found unconstitutional as the consequence of “inadequate scrutiny”. He underscored the growing complexity and technicalities of legislating and the need for Parliament to draw on and maximise the availability of stakeholders to ensure access to specialized knowledge and information.

Parliament is Constitutionally endowed with powers to deal with legislation returned to it for review, as well as drafting new alternative legislation, private members legislative proposals and addressing constitutional concerns. In the case of the MPRDA, the extent of Parliament’s scope and oversight is restricted to the parameters of the constitutional concerns raised by the President.

By referring the matter to the Portfolio Committee on Minerals Resources, the Speaker of Parliament has delegated the Committee a formidable maiden legislative task, since its inception following the May 2014 general elections.

The Committee must familiarise itself with the principles and imperatives behind the legislation, the legislative and consultative process followed by its predecessors in the 4th Parliament and stakeholder input received.

Although the provisions exist for the Committee to expand its review of the legislation, it is premature to preempt the Committee’s approach to the referral and the intersecting political considerations, policy objectives and industry imperatives.

This process presents the Committee with a multifaceted piece of legislation that lends itself to the approach advocated by former Speaker Sisulu. It is a landmark opportunity for this Committee to initiate itself into Parliamentary affairs.

In recognizing the opportunity that this presents, stakeholders should be cognizant of the complex interplay between party policy, public policy, the separation of powers between the Executive as well as Parliament and its Constitutionally derived powers, functions and rules of procedures. All of these weave an intricate web of institutional arrangements comprised of Parliament’s legislative and oversight structures, party political parliamentary caucuses, Parliamentary and State legal advisors and Parliamentary programming structures. Unraveling these intricacies and the solutions to be crafted require a robust and constructive approach by decision-makers and stakeholders alike.

Published in Business Day, on Friday 6 February 2015.

‘Minerals Act a chance for Parliament to flex its muscle’

Tabling of 2013 Departmental Budget Votes in Parliament

Screen Shot 2013-05-07 at 3.52.58 PMFrom 7 May – 12 June 2013, Cabinet Ministers of all 32 national government departments and the Presidency will table and deliver their departmental 2013 Budget Votes in the National Assembly of the Parliament of the Republic South Africa.

The Budget Votes are of strategic importance and require proactive monitoring and analysis. The purpose of the Budget Votes are to give further detail to the framework provided by the Minister of Finance in the National Budget Speech delivered on 27 February 2013, for the manner in which government departments will spend and investment their revenue allocations and the returns that these aimed at realizing.

The Budget Votes are also an opportunity for Ministers to give provide Parliament (by virtue of its oversight, accountability and legislative mandate) and the nation with a status report on the performance of government department in pursuit of the Cabinet and Government’s performance and outcomes based agreements entered into with the President of the Republic.

As such, the occasion of the Budget Votes also provide Government to make a number of crucial announcements on key interventions in the various portfolios to enhance impact, development and delivery.

The ensuing political statements delivered and inevitable political debates that arise will provide value political intelligence to be further analysed and deconstructed in order for ongoing government relations, policy, legislative, regulatory and political advocacy and lobbying activities to be enriched and informed by it; as well as to develop an ongoing deep understanding and interpretation of key political issues and how these need to be navigated going forward.

Click here for a detailed schedule of budget votes, as frequently updated by Parliament: 2013 Budget Votes_08May2013

NOTE: Dates and details are subject to change without prior notification at the discretion of Parliament. Best attempts will be made to proactively monitor potential changes and to report and advise on these accordingly.

Special Economic Zones Bill: Parliament calls for submissions

Coega Industrial Development Zone & port

Coega Industrial Development Zone & port

The National Assembly Portfolio Committee on Trade and Industry has called on interested and affected parties to have their say on the Special Economic Zones Bill (B3-2013). The Committee is asking for submissions on the Bill after which parties will be invited to make oral submission during public hearings on the Bill. Unlike with other bills, Parliament has based on the viability of associated costs not advertised the call for public comments in the mainstream media.

The Bill provides for the designation, promotion, development, operation and management of Special Economic Zones. It further provides for the establishment, appointment of members and functioning of the Special Economic Zones Advisory Board.

The Bill also envisages to empower the Minister to establish the Special Economic Zones Fund, to regulate the application, issuing, suspension, withdrawal and transfer of Special Economic Zones operator permits, to provide for functions of the Special Economic Zones operator and to provide for transitional arrangements and to provide for matters connected therewith.

The Committee has invited interested individuals and groups wishing to comment to forward written submissions to the Committee by no later than Friday, 3 May 2013. Public hearings have been scheduled for 15 and 17 May 2013.

Interested and affected parties who wish to make submissions on the Bill and/or engage with and stay abreast of the parliamentary process and proceedings, can get into contact with us for assistance and facilitation on: intouch@ethicore.co.za

A full copy of the Bill and an overview is attached on the link below for convenience.

b 3 – 2013 (special economic zones)

Overview of the Special Economic Zones Bill_29April2013

State of the Nation Address 2013: Pre-Analysis

Screen shot 2012-02-09 at 9.32.41 PMOn the eve of the 2013 State of the Nation Address (SONA), ETHICORE commends Parliament on its adoption of the theme “Socio-economic development through oversight and public participation” for the 2013 SONA.

Citizen activism and engagement is a central feature and tenet of the National Development Plan (NDP) recently endorsed and adopted by Government and the ruling African National Congress, and which has been coalesced around by key sectors of society (e.g. business, labour, civil society and political parties) as the official blueprint for the country.

Effective parliamentary oversight of government, policy implementation, legislative compliance and regulatory efficiency, as well as facilitating dynamic and robust public participation and consultation with citizens and key sectors of society, is a fundamental Constitutional requirement of the legislature as a whole, in order to give practical effect to the Constitutional requirements of cooperative governance and a people-centred Parliament.

When undertaken effectively, such dynamic parliamentary oversight and public participation significantly enhances the prospects for improved government performance, accountability and quality legislative and policy decision-making. Effective public and citizen advocacy can significantly contribute to enriching the quality of dialogue and debate on issues of key national importance.

The 2013 State of the Nation address should set the tone for how Parliament needs to capacitate and integrate its structures, processes and procedures to improve Parliamentary oversight of and engagement with the NDP, and the role of public participation and consultation therein. This includes ensuring that Parliamentary oversight; as well as parliamentary public and stakeholder consultation on the NDP is aligned with departmental budget allocations and strategic plans and priorities.

The extent of the focus on the NDP in the 2012 SONA, therefore has the prospect of fundamentally reshaping the parliamentary landscape from an oversight and participatory perspective – a most challenging and demanding litmus test for the 2013 parliamentary SONA theme and the context for Parliament’s work over the remainder of 2013 and the run-up to the 2014 general elections.

Issued by: Abdul Waheed Patel
Managing Director
079 888 0452
awpatel@ethicore.co.za

Enquiries: Wisahl Jappie, Consultant
072 227 1144
wjappie@ethicore.co.za

ETHICORE Political Consulting is a leading and preeminent South African political consultancy, principally specializing in all aspects of political analysis, advocacy and lobbying, governmental relations, parliamentary affairs and political communications.
http://www.ethicore.co.za

ETHICORE Political Consulting statement on election of ANC top 6

2012 Top 6ETHICORE Political Consulting extends its congratulations to the newly elected and some reelected top six leadership of the African National Congress, elected at the party’s 53rd national and elective conference currently underway in city of Mangaung. We wish all candidates well in the fulfillment of their duties and responsibilities to the party and the nation at large.

In particular, ETHICORE welcomes the certainty and end to speculation and anticipation that that the confirmation of their appointment brings with it.

Going forward, ETHICORE looks forward to constructive engagement with the newly elected party leadership.

ETHICORE would like to encourage the new leadership of the party to ensure that:

1. The party is stabilized so as to ensure the stability of society more broadly, given the party’s dominant position in broader South African society.

2. The credibility and integrity of Parliament as the national legislative and oversight authority and forum for dialogue, engagement and public participation on issues of national interest and importance.  This includes the review of the rules of Parliament; consideration of electoral reform to a constituency based parliamentary system to improve accountability, public participation and consultation; citizen advocacy and activism so as to strengthen and enhance the role of Parliament in overseeing quality policy-making and implementation, law-making and regulation. Critical in this regard, is the non-politicization of constructive suggestions for Parliamentary consideration and decision-making irrespective of their origin, which are fundamentally in the national interest, sound, evidence based, demonstrably viable and feasible and rational, which have the potential to meaningfully contribute to enhancing the achievement of national development priorities and challenges.

3. Ensuring policy clarity and certainty, with consistency and flexibility as required. For example, the role of the state in the economy, particular strategic economic and industrial sectors and the party’s position on the National Development Plan as the blueprint for the country and the economy.

Not only is policy clarity and certainty imperative, so too is policy consistency between the various aspects of Governments economic and development policy mix, in both prevailing policy options and future policy trajectory. These are necessary for mitigating against possible competing and duplicating policy interests and to maximize the cumulative impact of mutually inclusive policies.

As the focus of the conference shifts to the finalisation of the remainder of the 80-member ANC national executive committee and the conclusion of policy resolutions, ETHICORE wishes ANC delegates well in the remainder of their conference deliberations and looks forward to the outcome of these.

Issued by: Abdul Waheed Patel (Managing Director) – 079 888 0452

Enquiries: Wisahl Jappie – 072 227 1144

ETHICORE Political Consulting is a leading and preeminent South African political consultancy, principally specializing in all aspects of political analysis, advocacy and lobbying, governmental relations, parliamentary affairs and political communications.