SOUTH Africa’s lawmakers should take heed that they do not rush legislation through parliamentary processes without proper public consultation, said Peter Leon, Africa co-chair and partner at Herbert Smith Freehills South Africa.
The Constitutional Court’s recent decision to strike down the Restitution of Land Rights Amendment Act (Restitution Act) is a case in point, he said.
On 28 July, the court found that the Restitution Act lacked meaningful public participation when the National Council of Provinces (NCOP) deliberated the legislation that resulted in an “accelerated adoption”.
“[The judgment has] significant implications for several other pending laws affecting property rights,” said Leon, citing as examples the Mineral and Petroleum Resources Development Amendment (MPRDA) Bill, passed shortly before the May 2014 elections, and the Expropriation Bill passed in May this year.
“[These] bills have significant and complex economic implications, but they have not yet become law as President Jacob Zuma hesitated signing them into law,” said Leon.
In order to avoid the fate of the Restitution Bill, he said that meaningful public participation process should precede the adoption of legislation, such as the MPRDA Bill, which substantially widens the discretionary powers of mines minister Mosebenzi Zwane.
“[The Bill] specifically empowers him to ‘designate’ minerals which must be offered at discounted prices to local manufacturers, failing which they may not be exported without his prior consent,” said Leon.
Zuma”s reasons for referring the MPRDA back to parliament in January 2015 for reconsideration included concerns that the beneficiation clauses could contravene South Africa’s trade agreements with the World Trade Organisation (WTO) and the European Union.
Since the about-turn on the MPRDA, there has been very little progress, as both houses of parliament – the National Assembly and the NCOP – had been in recess for two months in preparation of the local government elections that took place on August 3.
In May this year, the portfolio committee on mineral resources heard a submission from the National House of Traditional Leaders argued that the MPRDA Bill should be regarded as a ‘Section 76’ bill, meaning the draft legislation affects provinces and should therefore be referred back to the NCOP.
Should it go the NCOP route, public hearings will have to take place before the Bill could be referred back to the National Assembly.
DA member of the portfolio committee on Mineral Resources, James Lorimer, earlier expressed doubt that the MPRDA would be completed by the end of 2016.
“I think because there is contestation within the ANC we’re probably not going to see legislation soon, unless there’s unanimity and the political will to get it done. While the ANC is still contesting it internally it won’t happen this year,” he told Miningmx.