PARLIAMENT’s mineral resources committee has decided that President Jacob Zuma had no grounds for concern over the constitutionality of the Mineral Petroleum and Resources Development Amendment (MPRDA) Bill.
The committee on Wednesday reaffirmed the disputed contents of the bill, in the form it was originally passed by Parliament in 2014.
The president referred the bill back to Parliament in January 2015 on both procedural and substantive grounds. Parliament is in the process of addressing the procedural flaws in the original passage of the bill through the legislature, but the committee has decided that, on the basis of advice from the state and parliamentary law advisers, the original bill is sound on the substantive issues.
These related to the compliance of the bill with international trade agreements and the inclusion of the mining charter in its definition of the act.
Zuma had raised concern that the sections of the bill dealing with beneficiation were inconsistent with SA’s obligations under the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Co-operation Agreement because they placed quantitative restrictions on the export of strategic or designated minerals so that these could be used for local manufacturing.
Another substantive concern was that the definition of the Act elevated the mining charter to the status of law. The concern of the industry is that if the mining charter has the status of law, then noncompliance with the Act could result in the withdrawal of mining licences.
On a procedural level, the president felt there had not been sufficient public consultation by the National Council of Provinces (NCOP) and no consultation at all with the National House of Traditional Leaders. The committee has now considered submissions by the council and the NCOP will hold public hearings.
Committee chairman Sahlulele Luzipo said it believed the president’s concerns were not constitutional matters, especially regarding SA’s international trade obligations.
Luzipo believed there had been wide consultation on the bill with other arms of the executive namely the departments of Trade and Industry, International Relations and Co-operation and the Treasury.
On the question of the mining charter, Luzipo said that, as a tool of transformation which had to be complied with, the charter could not be excluded from the bill.
Mining lawyer Peter Leon, of international firm Herbert Smith Freehills, agreed with the presidential law advisers on the bill’s violation of SA’s commitments under GATT. He said if the bill was sent back to Zuma without any change, the president would have no other option than to submit it to the Constitutional Court for review.
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He noted this had happened under former president Thabo Mbeki when Parliament did not agree with him.
Leon said the public hearings by the NCOP committee would allow stakeholders to air their views.
DA mineral resources spokesman James Lorimer also believed the committee had made a mistake and that the president had sound reasons for referring the bill back to Parliament. "The bill will end up in the Constitutional Court," he said.
Of concern was the continued uncertainty that the prolonged delay in having the bill promulgated would cause investors.
Chamber of Mines spokeswoman Charmane Russell said the chamber was very concerned about the continued uncertainty over the bill and was anxious for a final resolution on the matter.
Norton Rose Fulbright associate attorney Jane Blomkamp agreed with the committee’s view that any contravention of the government’s international obligations did not constitute a constitutional defect in the bill and was not valid ground for referring the bill back to Parliament.
The committee will adopt a report on the bill at its next meeting and this will be submitted to the National Assembly for approval before the matter is sent to the National Council of Provinces, which is expected to hold public hearings on it.