The breakneck pace at which the National Council of Provinces (NCOP) has processed changes to the country's mining and petroleum legislation has raised the spectre of a constitutional challenge.
The controversial Mineral and Petroleum Resources Development Amendment Bill was passed last Thursday in the face of persistent criticism from opposition parties and civil society, as well as disquiet from some industry players.
Parliament, however, denies the process has been irregular.
"We have serious concerns about the manner in which the Bill was rushed through Parliament and the NCOP," said Tracey Davies, an attorney for the Centre for Environmental Rights.
The centre, along with other organisations, has made numerous submissions on the Bill, questioning the appropriateness of giving the environmental management of mines to the department of mineral resources, and the lack of proper provision in the Bill for public consultation in the granting of mineral rights.
"The exceptionally short time frames within which the provinces were required to provide their mandates to the NCOP effectively excluded public participation in the NCOP process," said Davies.
According to Davies, under existing case law, the obligation of the NCOP to facilitate public involvement is "a material part of the law-making process in cases where the proposed legislation has generated significant public interest".
Failed in constitutional obligations
In the matter of Doctors for Life International v The Speaker of the National Assembly and Others, the Constitutional Court found the NCOP had failed in its constitutional obligations to hold public hearings, rendering the resulting legislation invalid, she said.
"On the face of it, the manner in which the Bill was rushed through the provincial legislative process would appear to open it up to constitutional challenge."
The Bill was passed by the National Assembly in mid-March, but required concurrence from the NCOP, including the holding of public hearings in all the provinces, before it could be sent to the president for assent. A process that ordinarily takes six weeks was completed in less than two.
The Democratic Alliance leader in the NCOP, Elza van Lingen, has written to NCOP chairperson Mninwa Johannes Mahlangu objecting to the rushed process. The DA has also objected to the suspension of parliamentary rules that require a three-day threshold between when a Bill is passed in the National Assembly and when the NCOP deliberates on it.
Van Lingen said it was "sad and short-sighted". The legislation would not only result in the withdrawal of investment, but also denied communities the "right to participate in any legislation and development in their area and on their land".
Five provinces voted in favour of the Bill: the Free State, Gauteng, Limpopo, Mpumalanga, Northern Cape and North West. In its final mandate submitted to the NCOP, Limpopo raised concerns about the speed of the process, which "did not give the legislature and the committee ample time to subject [it] to a comprehensive public participation process".
But Freddie Adams, the chairperson of the NCOP's select committee on economic development, which processed the Bill, denied there was undue pressure on provinces to finalise it. The Eastern Cape provincial legislature was unable to meet and submit a final mandate, because it was "done with [its] workings", whereas the KwaZulu-Natal legislature did not consider the Bill because its legislature had concluded its business for the year, according to Adams. These were ANC-controlled legislatures, and the NCOP respected their decisions.
Parliament spokesperson Luzuko Jacobs said the suspension of parliamentary rules was provided for under these very same rules. Similar suspensions had taken place before, including in 2013, when the NCOP considered at least five Bills for which the suspension of the three-day threshold was agreed to and implemented.
The department of mineral resources said it was confident the Bill would pass constitutional muster, having been certified by the chief state law advisor. Consultation, including dedicated community consultation, started as far back as 2011, said spokesperson Ayanda Shezi, and it was the department’s view that consultation had been sufficient.
The Bill also made provision for community participation, including requiring mines to consult with communities and affected parties when developing social and labour plans, the outline of which would be revealed in future regulation.
The Bill also has potentially significant implications for the country's oil and gas sector.
It sets aside a 20% free interest for the state in all new oil and gas ventures, with the scope to increase this share at a price agreed to with the state, rather than based on market values. This potentially leaves little equity for investors, who carry much of the financial risk.