President Jacob Zuma sent back the Mining and Petroleum Resources Development Amendment Bill to the National Assembly for reconsideration last week as he is of the view that as it stands right now, it does not pass constitutional muster.
The President sent it back in terms of section 79(1) of the Constitution, on the following basis:
a. The definition of “This Act” is likely unconstitutional in that the amended definition elevates the Codes of Good Practice for the South African Minerals Industry, the Housing and Living Condition Standards for the Minerals Industry and the Amended Broad-Based Socio-Economic Empowerment Charter for South African Mining and Minerals Industry to the status of national legislation. In addition, in terms of Section 74 of the Amended Act, the Minister is given the power to amend or repeal these instruments as and when the need arises effectively by-passing the constitutionally mandated procedures for the amendment of legislation;
b. As amended, Sections 26(2B) and 26(3) appear to be inconsistent with South Africa’s obligations under the General Agreement on Trade and Tariffs (GATT) and the Trade, Development and Cooperation Agreement (TDCA) insofar as they appear to impose quantitative restrictions on exports in contravention of GATT and TDCA and in so doing render the state vulnerable to challenges in international fora;
c. The NCOP and the Provincial Legislature did not sufficiently facilitate public participation when passing the Amendment Act as required by Section 72 and 118 of the Constitution in that the consultation period was highly compressed and there appears to have been insufficient notice of the public hearings held by the provincial legislatures;
d. The President is of the view that the Bill should have been referred to the National House of Traditional Leaders for its comments in terms of Section 18 of the Traditional Leadership and Governance Framework Act in that the Bill impacts upon customary law or the customs of traditional communities by:
i. allowing persons to enter upon land to conduct an investigation after notifying and consulting with the owner, occupier or person in control in terms of Section 50 and in so doing ignores the consent principle in customary law;
ii. amending the definition of “community” in Section 1 of the Amendment Act.
Enquiries:
Mac Maharaj
Cell: 079 879 3203
E-mail: macmaharaj@icloud.com
