National Council of Provinces - 13 November 2000
MONDAY, 13 NOVEMBER 2000 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:03.
The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICES OF MOTION
Mr M I MAKOELA: Chairperson, I give notice that I shall move at the next sitting of the Council:
That the Council -
(1) expresses its shock and disappointment that, while the public is still traumatised by the viewing of video footage of racist police brutality, a white teacher has decided to select, for black children, a debating topic that read thus, ``The year 2010: A Black-Free South Africa - Viva Aids’’;
(2) refuses to agree to the explanation by the teacher, as it does not sufficiently deduct from the fact that it is a racist topic, which implies that Aids is a black persons’ disease, destined to wipe all black people from the face of South Africa, thereby leaving it lily white; and
(3) calls on the school to apply the strongest censure, more than the verbal reprimand that the principal of the school would like the country to believe took place and on the department concerned to follow up the matter, to ensure that such inflammatory incidents are not repeated, and such racist elements do not find solace in our education system.
Mr G R KRUMBOCK: Chairperson, I move as an amendment that the word
white'' before the wordteacher’’ be deleted. I do not think the racial
category of the teacher is at issue here.
The CHAIRPERSON OF THE NCOP: Order! That was notice of a motion, not a motion.
Mr P A MATTHEE: Chairperson, I give notice that I shall move at the next sitting of the Council:
That the Council -
(1) notes that -
(a) analysts estimate that an average of about 1 000 people enter
the job market in South Africa every day;
(b) about 408 jobs are on average being lost in our economy every
day;
(c) since 1994 about 500 000 jobs have been lost;
(d) it is estimated that only about 15 out of every 1 000 new job-
seekers will find formal employment in South Africa; and
(e) the only way to create lasting new jobs and to address poverty
is through economic growth by, inter alia, making it cheaper and
more attractive to do business in South Africa;
(2) therefore urges the national Government to urgently review and amend the labour legislation, to relax exchange controls and to urgently reduce the unacceptably high levels of crime to encourage greater international and domestic investment; and
(3) is of the opinion that at local level economic growth and jobs can only be created by stimulating local growth.
Mr J L MAHLANGU: Chairperson, on a point of order: Is the word rubbish''
allowed to be used in this House? The hon member Krumbock used the word
rubbish’’ to the member reading the motion. Is it parliamentary for a
member to use that word?
The CHAIRPERSON OF THE NCOP: Order! I did not hear Mr Krumbock express such a viewpoint. The hon member heard him, but it was not directed at the Chair, nor directed in an audible way at the member in the House. Therefore I am not able to rule, but I take it that members are fully aware of the Rules as they operate within the National Council of Provinces, and that notice of a motion is not open to amendments. It is not a formal motion being tabled and therefore the assumption that one can rise and seek to amend is actually a misunderstanding of the Rules. Perhaps it is important that as members we acquaint ourselves with the Rules. That would be my view on what happened a few moments ago. It is extremely difficult for the Chair to rule on what members heard. Really, one would have to rule on the basis of what has been conveyed by a member, and unless it is a word or statement that is extremely offensive to members, I really would not entertain seeking to rule on a word such as the one you say the member spoke.
VICTORY OF SPRINGBOKS OVER PUMAS
(Draft Resolution)
Mr N M RAJU: Chairperson, I move without notice:
That the Council -
(1) congratulates the new Springboks on their winning performance in the one-off test against the Pumas of Argentina last night;
(2) is of the view that the score of 37-33 in favour of the Springboks, though decisive, was not convincing and that this should be a reminder that the Springboks must not take their superiority for granted; and
(3) further expresses the view that a more concerted effort is called for in the next part of their tour of Europe, especially in the matches against Ireland and England.
Motion agreed to in accordance with section 65 of the Constitution.
FAILURE BY MINISTERS OF EDUCATION TO SPEND EUROPEAN UNION FUNDS
(Draft Resolution)
Mr A E VAN NIEKERK: Chairperson, I move without notice: That the Council -
(1) expresses its grave concern and shock that the respective Ministers of Education have failed to make full use of the extensive funding of the R960 million received between 1995 and 2000 from the European Union;
(2) notes that the Department of Education was set to lose millions of rands’ worth of foreign donor aid because of its failure to utilise the extensive donor funding; and
(3) urgently calls upon the Minister of Education, Mr Kader Asmal, to give immediate attention to the spending of funds received from the European Union and other donors on much-needed educational projects in respect of which his department regularly complains that there is a lack of funds.
The CHAIRPERSON OF THE NCOP: Order! Is there any objection to the motion?
Mr D M KGWARE: Chairperson, I object to the motion. The CHAIRPERSON OF THE NCOP: Order! The motion will therefore become notice of a motion.
CREATION OF TRANSFRONTIER PARK IN SOUTH AFRICA, MOZAMBIQUE AND ZIMBABWE
(Draft Resolution)
Mr K D S DURR: Chairperson, I move without notice:
That the Council -
(1) congratulates the governments of South Africa, Mozambique and Zimbabwe on the agreement signed on Friday, 3 November 2000, to establish a huge transfrontier park linking the Kruger National Park, the Coutrader 16 Park in Mozambique and the Gonarhezou National Park in Zimbabwe, which together will become the largest protected wilderness area in the world;
(2) notes that the benefits to conservation, tourism and regional growth and stability are far-reaching and great; and (3) congratulates Dr Anton Rupert and the Peace Parks Foundation for their sterling work, vision and finance over 10 years to help bring this outstanding project into being.
Motion agreed to in accordance with section 65 of the Constitution.
UNIFICATION OF CHAMBERS OF COMMERCE
(Draft Resolution)
Mr J L THERON: Chairperson, I move without notice:
That the Council -
(1) congratulates the SA Chamber of Business (Sacob) and the National Federated Chamber of Commerce (Nafcoc) on the signing of a memorandum of understanding as a precursor to the unification of South Africa’s divided organised business community;
(2) is of the view that a unified nonracial business chamber will certainly enhance the development of private enterprise, stimulate job creation and attract foreign business investment;
(3) notes that the new organisation is expected to be called New Company or Newco and that executives of Sacob and Nafcoc will serve in Newco; and
(4) expresses the view that this is a move in the right direction and applauds those involved in responding so swiftly to Minister Erwin’s plea for a united chamber of commerce.
Motion agreed to in accordance with section 65 of the Constitution.
KIDNAPPING OF LIBYAN DIPLOMATS
(Draft Resolution)
Mr J L MAHLANGU: Chairperson, I move without notice:
That the Council -
(1) notes with shock the incident during which two Libyan diplomats were kidnapped in Sunnyside, Pretoria, over the weekend;
(2) notes that the diplomats were held in Hammanskraal and R50 000 was demanded for their release;
(3) congratulates the South African Police Service for acting swiftly and with due care in times of need, which resulted in six men being arrested and four firearms and three vehicles confiscated;
(4) calls upon the prosecution authorities to diligently use all the evidence at their disposal so as to show the perpetrators of this heinous act that crime does not pay; and
(5) reaffirms the fact that the Government of this country will not tolerate any form of criminal behaviour.
The CHAIRPERSON OF THE NCOP: Order! Ms Mahlangu, could I ask you to put away your keys, because they are making quite a noise, which makes it difficult to concentrate. Motion agreed to in accordance with section 65 of the Constitution.
TRAGEDY OF FIRE IN FUNICULAR TRAIN IN THE AUSTRIAN ALPS
(Draft Resolution)
Prince B Z ZULU: Chairperson, I move without notice:
That the Council -
(1) notes with a great sense of regret and shock the incident in which 170 people, many of them teenagers, were killed after a fire swept through a funicular train carrying skiers through a tunnel in the Austrian Alps early on Saturday;
(2) expresses its heartfelt condolences to the families of the deceased and wishes a speedy recovery for those injured in the incident; and
(3) welcomes the efforts of the volunteers and the rescue teams who risked their lives in order to save others.
The CHAIRPERSON OF THE NCOP: Order! I can see Ms Mahlangu is writing me a note. If it is not Ms Mahlangu, could the member who is making a noise, whoever it is, please desist.
Motion agreed to in accordance with section 65 of the Constitution.
FOLLOW-UP ACTION IN RESPECT OF POLICE DOG UNIT ATTACK
(Draft Resolution)
Rev M CHABAKU: Chairperson, I move without notice:
That the Council -
(1) notes with concern that the six police dog officers were speedily taken to court to apply for free bail, whereas many other prisoners languish for months in jail before their bail applications are considered;
(2) urges that the same speed of process be extended to all other prisoners equally and speedily;
(3) commends all the agencies that brought the victims of this horrific experience to the notice of the public; and
(4) requests that practical ways of compassion be shown to these brothers of ours even though there may be many similar or worse incidents.
The CHAIRPERSON OF THE NCOP: Order! Is there any objection to the motion?
Mr A E VAN NIEKERK: Chairperson, I am just concerned that the case which was referred to at the beginning of the motion is sub judice, and that we should not adopt such a motion.
The CHAIRPERSON OF THE NCOP: Order! Is the case in fact sub judice?
The CHIEF WHIP OF THE COUNCIL: Chairperson, with respect, the member is not commenting on the merits of the case. The motion concerns the principle that people should be able to exercise their rights to apply for bail.
The CHAIRPERSON OF THE NCOP: Order! I also thought that the matter referred to hearings on bail rather than the proceedings of the case.
The CHIEF WHIP OF THE COUNCIL: Well, that is my view, Chairperson.
The CHAIRPERSON OF THE NCOP: Order! I therefore do not believe it falls within the ambit of the sub judice Rule. As far as I am aware, a charge has not been pressed as yet. I am not aware that a charge has been put. This is the difficulty I have. I will look into the matter, and should I have to change my ruling I will table a view tomorrow. Given that there is no objection, therefore, the motion is agreed to at this point, with the caution that has been sounded by Mr van Niekerk, which we will report on tomorrow.
Motion agreed to in accordance with section 65 of the Constitution.
STATEMENT OF PRESIDENT MBEKI ON THE SITUATION IN THE MIDDLE EAST
(Draft Resolution)
Mr M I MAKOELA: Chairperson, I move without notice:
That the Council -
(1) fully supports the statement by the President of this country, the honourable Thabo Mbeki, at the ninth conference of the Organisation of the Islamic Confederation, namely that the United Nations Organisation implement all resolutions taken about the crisis raging in the Middle East;
(2) notes that all displaced Palestinians be allowed to return peacefully to their rightful land and that Jerusalem be designated the Palestinian capital; and
(3) notes that those in this country, if any, who object to the President’s statement, should stand up and do so in public.
The CHAIRPERSON OF THE NCOP: Order! Is there any objection to the motion? [Interjections.] There is an objection. The motion therefore becomes notice of a motion. Mr M I MAKOELA: Chairperson, with due respect, since the ANC is moving this motion, can those who object to this motion identify themselves so that we know where they belong.
The CHAIRPERSON OF THE NCOP: Order! Well, I can tell you who has objected. It has never been practice to identify who has objected. The members merely state their objection. However, if you wish to know, Mr Makoela, for the record, two members stood up, Mr Theron from the Free State delegation, and Mr Krumbock, who represents the DP in the Mpumalanga delegation. For the record, you have those two members who have objected. Do you require further evidence, Mr Makoela?
Mr K D S DURR: Chairperson, on a point of order: Since you are correcting the record, I also raised my hand.
The CHAIRPERSON OF THE NCOP: Order! Well, I did not note you. I am indicating those I have noted, Mr Durr, and the two are sufficient.
HOME LOAN AND MORTGAGE DISCLOSURE BILL
(Consideration of Bill and of Report thereon)
Chief M L MOKOENA: Chairperson, in the village called Mganduzweni in Mpumalanga there is one old lady called LaNgomane, a single mother with four school-going children. She is running what is commonly known as the spaza shop. She opened a banking account in one of the banks in White River. The account has been running for 11 years. Whenever she went to do her banking nobody questioned her credibility. This year in June she went to the same financial institution to ask for a home or housing loan. Believe it or not, she was told that she does not qualify and was also told that she is not credible. The same thing happened to Mrs Motale of the Northern Province, who banks at one of the banks in Louis Trichardt. She was told the same thing. Another example is Mrs Molapo of Orange Farm in Gauteng. She also went through the same ordeal.
Let us be realistic. Is there any sober or reasonable government that can sit back and watch while its loyal citizens are marginalised?
Re lapisitswe ke boseila-kgaka-senwa-moro. [We are sick and tired of hypocrites.] It is therefore necessary to act decisively before it is too late. That is why we say the time to repair the roof is when the sun is shining. Apart from just being worried, we had to do something. Worrying is like a rocking chair: it gives one something to do, but does not get one anywhere. [Laughter.] The Home Loan and Mortgage Disclosure Bill is the instrument which will deal with such examples.
In the past financial institutions have discriminated against applicants, contrary to the provisions of section 9(3) of the Constitution. When considering or granting a home loan, they put applicants through the above- mentioned ordeal, whereas in terms of section 32(1) of the Constitution everyone has the right of access to any information held by the state or any other person and that is required for the exercise and protection of any right.
We do not need more leadership training; we need more followership''
training. Some people have to change their attitudes. Hon members are aware
that any plant growing in the wrong place is a weed. We do not need those
people who are always sayingif one does not know where one is going then
any road will get one there’’.
The Bill seeks to promote fair lending practices on the part of financial institutions which provide home loans. It ensures the disclosure by financial institutions offering home loans of information regarding such loans in their annual reports and financial statements.
The Bill also establishes the office of disclosure. This office will monitor activities by financial institutions to identify any possible discriminatory lending patterns or practices, and to make available to the public information that indicates whether or not financial institutions are serving the housing credit needs of their communities. Financial institutions will be rated or graded according to their performance.
There is no stress in the world; it is only people who have stressful thoughts. To allay these fears, it is not the intention of this Bill, as stated in the Bill, to promote in any way unsound lending practices by financial institutions in the business of providing home loans.
It will be a sad day when any financial institution contravenes or fails to comply with any provision of this Bill, because it will be guilty of an offence and will be liable to a fine not exceeding R100 000. This clause is meant for cheaters; loyal people need not fear. God sends no one away except those who are full of themselves.
On behalf of the Government, the departments and the select committee, I am formally submitting the Bill to the House for consideration and approval. [Applause.]
Debate concluded.
Declaration of vote:
Dr P J C NEL: Mevrou die Voorsitter, die Nuwe NP onderskryf wel die onderliggende doelstelling van die wetsontwerp, naamlik om onbillike diskriminasie aan die lig te bring en om hierdie praktyk met wortel en tak uit te roei. My party het egter sy bedenkinge of hierdie stuk wetgewing wel die gewenste uitwerking gaan hê.
Om die waarheid te sê, ons glo dat hierdie stuk wetgewing heeltemal onnodig is omdat artikel 9 van die Grondwet die kwessie van onbillike diskriminasie reeds volledig dek en omdat daar tans ‘n bankkode in werking is wat opgestel is deur die Banking Council of SA, wat ‘n wakende oog hou oor die etiese optrede van banke teenoor kliënte. Verder het kliënte wat voel dat hulle onbillik behandel word ten opsigte van ‘n beslissing van ‘n bank ‘n instrument in die vorm van die Bankombudsman om hul saak te ondersoek en uitspraak te lewer. Dit gebeur gereeld met groot sukses.
Verder glo ons dat die kriteria wat banke gebruik by die toekenning van banklenings, naamlik die finansiële vermoë van die persoon, die realistiese waarde van die eiendom en die ligging van die eiendom, nie deur hierdie wetgewing verander sal word nie. Dit sal tog belaglik en baie onverantwoordelik wees van ‘n bank teenoor sy aandeelhouers en die gemeenskap wat hy dien om ‘n lening aan iemand toe te ken wat nie die vermoë het om die lening te diens nie.
Dit is ook onbillik om ‘n lening toe te staan aan ‘n oningeligte aansoeker wat nie al die implikasies wat huiskoop behels, besef nie. Dit kan lei tot groot verleentheid en finansiële verlies vir die persoon. Die Regering moet liewer aandag gee aan hierdie aspek, en strukture in plek kry waar voornemende kopers in dié verband opgelei en ingelig kan word.
Ons voorsien verder dat hierdie 10 persone in die kantoor vir bekendmaking nie in staat sal wees om die massiewe aantal transaksies wat daagliks deur banke oorweeg word te hanteer nie. [Tyd verstreke.] (Translation of Afrikaans paragraphs follows.)
[Dr P J C NEL: Madam Chairperson, the New NP indeed endorses the underlying objective of the Bill, namely to review unfair discrimination and to eradicate this practice entirely. However, my party does have its misgivings about whether this piece of legislation will have the desired effect.
In all honesty, we believe that this piece of legislation is entirely unnecessary, because section 9 of the Constitution already entirely covers the issue of unfair discrimination and because there is currently a banking code in operation which was compiled by the Banking Council of SA, which keeps a watchful eye over the ethical conduct of banks towards their clients. Furthermore, clients who feel that they are being treated unfairly with regard to a decision of a bank have an instrument in the form of the banking Ombudsman to investigate their case and to return a verdict. This happens regularly with great success. We furthermore believe that the criteria which banks are using in the allocation of loans, namely the financial capacity of the person, the realistic value of the property and the location of the property, will not be changed by this legislation. It will surely be ridiculous and very irresponsible of a bank towards its shareholders and the community which it serves to grant a loan to someone who does not have the ability to service the loan.
It is also unfair to grant a loan to an uninformed applicant who does not realise all the implications of buying a house. This could lead to great embarrassment and financial loss for the person. The Government should rather pay attention to this aspect and should put structures in place where prospective buyers can be trained and informed in this regard.
We furthermore foresee that these ten people in the office of disclosure will not be able to cope with the huge number of transactions which are dealt with by the banks daily. [Time expired.]]
Bill agreed to in accordance with section 75 of the Constitution (Democratic Party and New National Party dissenting).
SOUTH AFRICAN RAIL COMMUTER CORPORATION LIMITED FINANCIAL ARRANGEMENTS BILL
(Consideration of Bill and of Report thereon)
The MINISTER OF TRANSPORT: Chair, it is once again a privilege for me to be with you, and also to be given the opportunity of addressing the House.
Allow me to begin by thanking members of the Select Committee on Public Services for the ongoing support my department and I have received with regard to transport matters. I value the critical approach of the select committee and also its contribution. I want to thank all members of the House and delegates as well.
It will be recalled that during the debate on the National Land Transport Interim Arrangements Act an indication was given that my department, in collaboration with the Department of Finance, was in the process of addressing the funding crisis in the commuter rail industry. The first step in this regard was to relieve the SARCC of its debt burden, and for the debt to be taken over by the Treasury.
The legislation before the Council today is designed to provide for the total debt of the SARCC to be taken over. Cabinet had earlier decided to take over the loan debt of the SARCC, and to withdraw its borrowing powers, except for bridging finance. It was also decided that in future the SARCC’s capital allocation would be included in the budget of the national Department of Transport.
Since the establishment of the SARCC in 1990, and before 1993, the SARCC had been obliged to fund its capital needs, and also part of its operational needs, by borrowing from the financial markets. Perhaps I should remind hon members that the SARCC provides a very important socioeconomic service to the poorest of the poor. It is for this reason that the Rail Commuter Corporation receives a subsidy of about 65% of its operational expenditure.
The fare revenue has never been sufficient to cover operational expenditure, let alone make a contribution to capital expenditure. The reality of the situation is, therefore, that if the full shortfall is not met by Government, the SARCC will have to fund the difference by incurring debt. The only other alternative would have been to close down rail services altogether.
This is obviously a very serious situation. We cannot allow or afford our rail services to go under. Indeed, my view is, and it is a view shared by Cabinet, that we should make our rail services the preferred mode of transport wherever possible. We must make it more attractive, safe, efficient and as affordable as possible.
One of the things that we need to do is to deal with the Rail Commuter Corporation’s debt burden. The total debt and net liabilities of the Rail Commuter Corporation currently amount to R2 500 million or R2,5 billion. The Department of Finance has, in its current budget, provided for the taking over of the loan debt as at 30 April 2000. An amount of R2 281 million or R2,281 billion, as well as interest on the debt from the said date until the actual takeover has been provided for.
I should indicate that that will leave an amount of R219 million still to be provided for. This represents noninterest-bearing debt due to various creditors. The arrangement is that the sum of R219 million will have to be funded from the budget of my department. Difficult as it is, we will just have to find the money.
The Bill before us also amends the legal succession to the South African Transport Services Act of 1989 by removing the borrowing powers of the SARCC. This is to be achieved by removing provisions which give the SARCC borrowing powers. This will effectively end the power of the SARCC to borrow, except for the purpose of bridging finance only, but subject to a maximum amount approved from time to time by the Minister of Finance.
We have already received a very clear signal that the Minister will not approve borrowing for the purpose of bridging finance without very good motivation. Obviously the Minister will take all the necessary information into account, but such consent will not be lightly given.
I would like to emphasise that this takeover of debt has no pension fund implications. The Metrorail portion of the Transnet pension fund shortfall, for which the SARCC was made responsible, has been fully funded since 1996. The effect is that the SARCC has no pension fund shortfall of its own.
As previously reported, the Department of Transport and the SA Rail Commuter Corporation are involved in a number of initiatives to increase efficiency and to rationalise services.
As much as possible, we would like to reduce dependency on subsidies. In view of the terrible legacy of poverty, unemployment and spatial disparities which we inherited from over 100 years of segregation or apartheid, subsidies remain necessary. We are considering the possible concessioning of certain services and the rationalisation of all public transport services in terms of the National Land Transport Transition Act, Act 22 of 2000 which, hopefully, will reduce such dependency. A pilot project is envisaged for the area of eastern Gauteng services council, which represents approximately 8% of the total number of commuter rail services in the country.
We are, however, looking very carefully at this situation, as well as the needs of the country before proceeding in this direction. I am very conscious of Government’s responsibility to provide safe, efficient and affordable transport to the poor. Of course, everyone is entitled to access to transport, but we have a particular responsibility to the millions of poor people who, during the apartheid years, were forced to move to areas far from their places of work. They, therefore, have to travel very long distances. Is it not strange that those who can least afford it are forced to travel the longest distances? In my view, a commuter rail service is the most affordable and most efficient of all public transport modes.
Our ability to deliver and extend services, rather than closing them down, is hampered by the constant underinvestment in the rail system, which has been a feature for many years. The rolling stock and other infrastructure are aging and outdated. Furthermore, the current network does not service the fastest-growing residential and industrial areas. I must also bluntly say that the commuter rail system is in desperate need of an injection of new capital and commercial skills to enable us to maximise the utilisation of the system. We are currently engaged in a study to quantify the magnitude of the funding required so as to ensure that our system is renewed and placed in a sustainable position. The SA Rail Commuter Corporation should never have been put in a position of being forced to borrow. I see this taking over of the debt as the first step in addressing the funding crisis in the commuter rail industry. I record my appreciation to the Minister of Finance in dealing with the SARCC’s funding problem.
I conclude by referring to the recent train accident which took place in Gauteng in which four persons were killed and 107 were injured, four of them very seriously. I would like to express my shock at the incident and convey my deepest condolences to the families of those who were killed. I also express my sympathies to all those who were injured. I want to wish them a speedy recovery.
I want to indicate that I have already conveyed my good wishes to them and sympathies to the families and, through the MEC of Transport in Gauteng, the scene was visited and the injured were also visited. Today, the MEC, on my behalf, is meeting with the trade unions and staff associations concerned. So, we are very concerned about the situation.
What gives one sleepless nights is the fact that the accident could have been much worse. Therefore, we must leave no stone unturned to ascertain the causes and to deal with them effectively.
There have been a couple of other accidents, albeit minor ones, which have not been mentioned in the recent reports, because there were no casualties. I want to give the House the assurance that Government regards the matter in a very serious light and will take appropriate action.
Let me just briefly explain. As members know - and I am saying this because I believe that I must account to the House, as I need to account to the people generally - there is no independent rail safety regulator in South Africa. There never has been one.
Throughout its history the rail operator has also been the regulator, in many ways. Put in another way, the player - the operator in this instance - has also been the referee. We obviously cannot have a situation where the operator is referee and player at the same time. This we recognised some time ago to be an untenable situation, and therefore, together with the Minister of Public Enterprises, Mr Jeff Radebe, and other role-players, we set up a task team to prepare draft legislation which would make provision for the establishment of a rail safety regulator.
We have secured the assistance of the government of Canada and, thanks to Canadian expertise, we will be able to come up with legislation and a mechanism which will be equal to the best in the world. We are looking at other international experiences as well and we will take them into account. Hopefully the draft legislation will be completed by early next year and will be tabled in Parliament as soon as possible thereafter.
The function of this regulator will be not only to deal with situations such as the one which has just arisen, in other words, dealing with the problem after the event or accident, but also to deal with it in a proactive manner to ensure that there is an enforced system of safety compliance across the rail network, both for freight and passenger operations - that is our objective.
With regard to the most recent accident, I want to express my appreciation to all the role-players - Metrorail, the SA Commuter Corporation, the SA Commuters Association, staff associations and unions. I am especially grateful to the MEC for transport in Gauteng, Mr Khabisi Mosunkutu, who, on my behalf, visited the scene of the accident and has been meeting with the unions. He is meeting with them again this afternoon. He and I will be together tomorrow in Pretoria to make an announcement on the setting up of an independent inquiry into the accident, its causes, its results and steps which need to be taken to ensure that such accidents do not occur again.
A process of consultation is unfolding today. I have also consulted with the Ministries of Labour and Justice, and we will be ready to make an announcement tomorrow. I was hoping that it could be today, but the process of consultation, I think, is important to ensure that whatever we do enjoys legitimacy and support. The MD of Metrorail, Mr Honey Mateya, and his team and the Acting MD of the SA Rail Commuter Corporation, Mr Ben van der Ross, have given us their full co-operation. Metrorail has already set up its own investigating team which will co-operate fully with the commission of inquiry which Government intends to set up. From Government’s point of view, we want such investigation to be independent, impartial and totally transparent, because of our determination to make our rail transport the safest in the world.
May I conclude by thanking members of the Council for the role they are playing in dealing with important legislation on transport issues and, in this instance, the SA Rail Commuter Corporation Limited Financial Arrangements Bill. I thank hon members for the opportunity to clarify Government’s position with regard to the accident which occurred recently. I move. [Applause.]
Chief M L MOKOENA: Chairperson, as correctly stated by the Minister, the SA Rail Commuter Corporation is in a serious crisis. Like many other institutions or parastatals, in order for them to survive they need a serious financial injection. In the absence of such, they are doomed to fail or collapse. As we speak, the SA Rail Commuter Corporation is in the red to the tune of R2,5 billion.
We should, however, remember that anyone who has never made a mistake has never tried anything new. In the same breath, even if one is on the right track, one will get run over if one should only sit there.
After a thorough assessment, the department was left with no choice but to intervene in the form of this legislation. As hon members all know, good resolutions are like babies crying in church - they should be carried out immediately. [Laughter.]
The main aim of this Bill is to remove the power from the SA Rail Commuter Corporation Ltd to borrow money. Now it can only borrow money for the purpose of bridging finance in limited circumstances. That also can only be done with the Minister of Finance’s consent. The Bill also removes, as said by the Minister, the power of the corporation to guarantee or secure the debt or the obligation of persons who are not wholly owned subsidiaries of the corporation.
The Bill also allows the state to take over, in specified amounts, all loan obligations and net liabilities of the corporation. But, the question in our minds is how this huge debt is going to be settled. It is consoling to note, from what the Minister said, that the Department of Transport will squeeze that into their budget. They do not have a choice. They just have to do it. The man who wins may have been counted out several times, but he did not hear the referee. It is true that one must learn to laugh at one’s troubles and one will never run out of things to laugh at. We would like to make this call to other institutions to put in place mechanisms which will improve their financial arrangements. For how long are we going to bail them out? The sooner they start managing their finances properly, the better, because we cannot push anyone up the ladder unless he or she is willing to climb a little. One will never get ahead of anyone as long as one tries to get even with him, because the best helping hand one will ever find is at the end of one’s arm.
On behalf of my committee, we support the Bill. [Applause.]
Debate concluded.
Declaration of vote:
Dr P J C NEL: Mevrou die Voorsitter, die hoofdoel van hierdie stuk wetgewing is om die Regering in staat te stel om die uitstaande skuld oor te neem wat opgehoop is deur die lenings wat oor die jare heen deur die korporasie aangegaan is. Die bedrag beloop R2,5 miljard. Dit is inderdaad ‘n geweldige groot bedrag geld en dit getuig beslis van ‘n gebrek aan die toepassing van sakebeginsels deur die korporasie in die verlede.
Dit is ook duidelik dat die korporasie nooit in staat sal wees om hierdie lenings wat aangegaan is terug te betaal nie. Die toestand wat ontstaan het, was waarskynlik onder meer die gevolg van ‘n tekort aan kundigheid. As ‘n mens in ag neem dat 3 miljoen passasiers daagliks van die treindienste in Suid-Afrika gebruik maak, dan is dit duidelik dat dit spesifieke kundigheid verg om suksesvol te wees met ‘n onderneming van dié aard. Die Nuwe NP wil die hoop uitspreek dat die agb Minister in die toekoms sal toesien dat die korporasie ruim voorsiening sal maak vir die opleiding van bestuurspersoneel.
‘n Doeltreffende, verbruikersvriendelike passasiersdiens is absoluut noodsaaklik vir die ekonomie van Suid-Afrika en vir ‘n beter lewe vir almal wat daarvan gebruik maak. Ons hoop en vertrou dat die goedkeuring van hierdie wetsontwerp vandag sal bydra tot die skepping van so ‘n diens.
Die Nuwe NP wil ook die hoop uitspreek dat die agb Minister sal toesien dat die onaanvaarbare situasie wat in die verlede ontstaan het, hom nie weer sal herhaal nie en dat dit nie weer nodig sal wees vir die Regering om pa te staan vir die gevolge van die swak bestuur van die korporasie nie.
Om dié rede is die Nuwe NP van mening dat hierdie stuk wetgewing baie nodig is en lankal reeds in plek moes gewees het. Die party steun die wetsontwerp. (Translation of Afrikaans paragraphs follows.)
[Dr P J C NEL: Madam Chairperson, the main objective of this piece of legislation is to enable the Government to take over the arrears accumulated through the loans that were incurred by the corporation over the years. This amounts to R2,5 billion. Indeed, this is an enormously large amount of money and this definitely attests to a lack of application of business principles by the corporation in the past.
It is also clear that the corporation will never be able to repay these loans that have been incurred. The situation that developed was probably, inter alia, due to a lack of expertise. When one considers that 3 million passengers use the train services in South Africa daily, it is clear that specific expertise is required to be successful with an enterprise of this nature. The New NP would like to express the hope that the hon the Minister will see to it in future that the corporation makes ample provision for management training.
An effective, consumer-friendly passenger service is absolutely necessary for the economy of South Africa and for a better life for all who make use of this service. We hope and trust that the passing of this Bill today will contribute to the creation of such a service.
The New NP would also like to express the hope that the hon the Minister will see to it that the unacceptable situation that developed in the past will not repeat itself and that it will not again be necessary for the Government to be answerable for the consequences of the poor management of the corporation.
For this reason the New NP is of the opinion that this piece of legislation is very necessary and should have been in place a long time ago. The party supports the Bill.]
Bill agreed to in accordance with section 75 of the Constitution. SEA TRANSPORT DOCUMENTS BILL
(Consideration of Bill and of Report thereon)
The MINISTER OF TRANSPORT: Chairperson, hon members and delegates, transport by sea is the mode of transport for a very large proportion of goods imported to or exported from the Republic of South Africa. In the very great majority of cases the carriage of those goods is in accordance with either a bill of lading or some other document serving a similar purpose.
The functions of bills of lading and other documents included in the definition of sea transport documents in the Bill make it necessary that the law concerning them should be up to date and in accordance with generally accepted international standards. The Bill is designed to achieve the object of bringing the law up to those standards. It is necessary that there should be legislation to do so because the present law is governed by out-of-date and inappropriate legislation.
At present, generally speaking, the subject matter of the Bill is dealt with by the United Kingdom legislation enacted in the year 1855, that is, the Bills of Lading Act, 1855. Numerous difficulties arose in the United Kingdom with regard to that Act, leading to it being superseded in the United Kingdom by legislation in 1992.
Against this background, the Maritime Law Association in 1994 decided that it would initiate steps to bring the law up to date. A draft Bill was prepared and discussed at a meeting of the Maritime Law Association. Members of the Department of Transport, the then Chief Directorate: Shipping, were present at that meeting and indicated that the department would be willing to join in the promotion of the Bill.
The Bill was discussed at several meetings of the Maritime Law Association, which has amongst its representatives not only people of the legal profession, but also of the shipping industry. A draft of the Bill was published for comment in December 1997 already. Interested parties made representations with regard to the Bill and those representations were incorporated in the amendments to the draft.
Bills of lading have featured in sea transportation for many hundreds of years. In the earliest stages of their development they served merely as a receipt to show that the goods to which they referred had in fact been shipped on board the vessel and were to be carried to the port of destination. In time, however, bills of lading came to serve not only as receipts but also to fulfil other purposes, mainly to reflect the terms of the contract under which the carrier agreed to carry the goods shipped, and also to serve as a method by which a transfer of the rights to the goods which had been shipped could be effected.
Originally a bill of lading referred to carriage from the port of shipment to the port of discharge in a vessel referred to in the bill of lading. It was, however, on occasions desired that the transport should be by one vessel to a port where transshipment would be effected to another vessel, which would then carry the goods to the final port of destination. As modes of transport developed, this meant that a portion of the transportation might be performed on land or by air. The documents covering those forms of transportation are known as bills of lading or combined transport bills of lading.
One or other forms of those bills is used if, for instance, the place from which the goods start their journey is not at a port but is inland, or where the final destination is inland and not at a port, or where both the origin and the final destination are inland with an intervening sea transportation.
In addition to the documents mentioned, there are other documents, for instance seaway bills and consignment notes, which serve one or more of the purposes of a conventional bill of lading, but have differences in their application.
In practical terms for every contract for the supply of goods which are to be transported to a destination chosen by the buyer, arrangements are made for payment for the goods to be effected on the presentation of documents showing that the goods have, in fact, been placed on a means of transportation to the destination chosen by the buyer. The documents virtually always include a bill of lading or similar document to prove shipment. Where financing is arranged by means of commercial credit, the bill of lading is among the documents presented to the bank in order to obtain payment.
The provisions of the Bill deal, in the main, with principles arising from the functions of sea transport documents, as described earlier. The Bill recognises that there may be documents which are transferable, that is to say, the rights under them may pass from original parties to other parties to whom the rights are transferred.
Clauses 3,4, 5 and 6 deal particularly with questions of transfer, meaning a person who, in good faith, has taken transfer of a document, is, in general, regarded as being entitled to regard the document as being what it says it is. If, for instance, the goods reflected in it have not been shipped to a transferee, in good faith, the person is entitled to proceed on with the document as if the goods had been shipped.
Furthermore, as the transferee obtains transfer of the rights under the document, the Bill provides in clause 4 that the transferee of rights is, generally speaking, subject to the obligations under the document which confers those rights.
Difficulties have arisen with regard to the rights of persons presenting what appears to be a bill of lading in respect of goods to have delivery made of those goods. This difficulty may arise either because, as is usually the case, there is more than one copy of the bill in existence, or because, as is not unknown, the document presented is not a genuine document. At the suggestion of the shipping industry, clause 7 makes provision for dealing with cases of that nature.
The Bill deals generally with the position whereby there are documents relating to the carriage. In the electronic age, however, the notification of shipment is frequently transmitted electronically and there may be no actual document in existence. This development is still in a comparatively early stage. In those circumstances, clause 9 provides that the subject matter may be dealt with by regulation.
An allied topic is dealt with in clause 10, namely the position of someone who is operating the vessel with full control of the vessel and its crew, that is, a charterer by demise. Generally speaking, such a person is regarded as the owner of the vessel for the purposes of actions arising out of the operations of that person. This is dealt with in clause 10. Finally, what has been sought to be done by the Bill is to modernise the law, but in accordance with the law generally accepted, it is provided in clause 2 that the Act applies to a document issued in the Republic, whether or not before the commencement of the Act and to proceedings in the Republic, whether or not the proceedings relate to a course of action arising before the commencement of the Act.
As there is no fundamental departure from generally accepted existing principles, this is not a case of true retrospectivity, but merely a clarification of the position to avoid fruitless disputes at a later stage, and to avoid confusion.
The Bill represents a most commendable degree of co-operation in the true sense of working together between the Maritime Law Association of South Africa and the Department of Transport. It is not the first enactment, which is an example of that co-operation, and it is certainly hoped that it will not be the last. [Applause.]
Chief M L MOKOENA: Mr Chairperson, the always focused, considerate and constructive Select Committee on Public Services and Transport unanimously agreed not to engage in unnecessary filibustering. We agreed to push this Bill through. This is one of the shortest Bills and with as few amendments as this committee has ever had to consider. So, why waste time?
In its deliberation, the committee had a serious problem with the
definition of the Republic.'' Common sense will tell one that
Republic’’ should mean the Republic of South Africa, but in this Bill
``Republic’’ includes the Prince Edward Islands referred to in section 1 of
the Prince Edward Islands Act of 1948. However, the department satisfied
the committee with its explanation that this is the trend in all countries
that have a similar arrangement. We therefore did not see any reason to
pursue the matter any further. I wonder if it is true that as soon as one
discovers that one is going in a wrong direction, one should just turn
around and then find that one is facing the right direction. [Laughter.]
The Bill seeks to clarify and modernise the law relating to various documents, including the bills of lading commonly used in connection with the Carriage of Goods by Sea Act of 1992 currently in force in the UK. There are at present movements of goods at sea from point A to point B. Sea documents usually accompany the ship. These sea documents, in some cases, do not correspond with the goods on those ships. Some carriers will go to the extent of denying any knowledge of the goods in those ships. The destination of those ships does not always correspond with the sea documents.
With this legislation, all these shortcomings will be a thing of the past. We cannot fail, as we are aware that in order to succeed, a person should jump as quickly at opportunities as he or she would to conclusions. I have a question, if I may pause here.
If one is engaged in a tense discussion with someone, and that someone immediately takes out a piece of paper and pastes it on his forehead, reading thus: ``Going out of my mind. Back in five minutes,’’ what can one do? [Laughter.]
This Bill deals with the question of transferring the rights of another person. This transaction was not well co-ordinated before. The situation will now be normalised. We are not going to fail. People who say that something cannot be done should not interrupt those doing it, because laziness travels so slowly that poverty soon overtakes it, unlike those who like to twist things, and then say: ``When the future is bright, you have got to wear shades.’’
The co-operation I got from my colleagues, committee members from all political parties, was immeasurable. Having to deal with these many, many Bills in a short space of time was really not child’s play. I am aware it was exhausting, taxing, demanding and, at times, frustrating, but, as a solid, balanced team, we championed the process through. That is why I do not agree with those who used to say politicians and nappies need changing often, for similar reasons. [Laughter.] Leaders walk the talk. On behalf of my committee, the humble committee, I move that this Bill be approved by this Council. [Applause.]
The CHAIRPERSON OF THE NCOP: Order! I am glad, Mr Mokoena, that I do not have to ask you to explain a great many of your comments.
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution.
GENERAL INTELLIGENCE LAW AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Chair, I apologise for having to fiddle with the microphone like that. In 1994 we, as a people, embarked upon a journey in which the quality of life and the security of our people, the practice of democracy and the promotion of an internal and international climate of peace and stability became the focus and priority of our Government. Accordingly, we moved from a narrow, militaristic notion of security to a wider, more human and people-centred definition and understanding of security.
For the first time in our history, freedom from fear and freedom from want became the backdrop to, and motivation for, the security and intelligence agenda. To this end, we adopted a new vision and mission for the South African intelligence community that was in line with the new nonracial, nonsexist, democratic order in which security of the individual, the state and the government would become the primary motivations and raison d’etre of the intelligence community. This approach was adopted by Parliament in the White Paper on Intelligence that articulated nine core principles, and which served as a foundation for the operational performance of the intelligence community. These principles include, inter alia, the following: the principle of political neutrality; the principle of legislative sanction, accountability and parliamentary control; the principle of balance between secrecy and transparency; the principle of separating intelligence from policy-making; and the principle of effective management, organisation and administration.
The General Intelligence Law Amendment Bill seeks to give effect to the latter principle, and to create a climate for adherence to all the other motivating principles. It seeks to ensure that managers manage and take full responsibility for their actions or inactions.
Furthermore, the Bill seeks to ensure the creation of an environment that encourages our intelligence cadres to act in the best interests of national security within a framework that takes into account the imperatives of our Constitution and the human rights framework laid down in the Bill of Rights. Such an environment will enable the women and men within the intelligence community to commit themselves to the highest degree of integrity and objectivity and to the unbiased evaluation of information and data. It will also promote a climate of mutual trust between policy-makers and intelligence professionals.
In the National Assembly debate on this Bill, parliamentarians spoke with one voice about the desire to ensure that the operational effectiveness of the intelligence services does not become compromised by undue external influences. In this regard, we have expressed concern about the influence of organised labour on the operational integrity of the intelligence services. While we, as a Government and as parliamentarians, fully appreciate and understand the need for labour unions to represent workers in the workplace and their critical role in the transformation of our society, we also understand the highly specific nature of the intelligence services, and are convinced that the two sectors are incompatible. We remain convinced that the introduction of unions into the intelligence service could severely compromise and weaken the security and integrity of the intelligence services.
In keeping with this view, the principal objectives of the Bill are: firstly, to align intelligence legislation with the Constitution of the Republic of South Africa; secondly, to align the disciplinary code and the conditions of service of the intelligence services with recent trends in the labour law arena; thirdly, to make provision for the regulation of strikes within the intelligence services; fourthly, to create consultation forums to deal with conditions of service and grievances; and fifthly, to regulate the activities of former members of the intelligence services.
Accordingly the Bill contains a clause that regulates strikes in intelligence services. In addition, the Bill requires the Minister to establish internal mechanisms with a view to establishing and perpetuating fair labour practices and appropriate consultations on the conditions of service within the intelligence services.
The Bill also regulates the activities of former members of the intelligence services and provides for the Minister to issue regulations to determine how former members conduct themselves after their departure from the department. This provision in the legislation attempts to ensure that the behaviour of former members of the service in no way impinges upon, or adversely affects the interests of, the intelligence services and/or national security. To this end, the Bill establishes an intelligence review board that will occupy itself with the administrative matters related to this issue.
As was argued in the White Paper on Intelligence, the intelligence services should accept the primacy of the authority of the democratic institutions of society and those constitutional bodies mandated by the civil community to participate in and/or monitor and determine intelligence priorities. They should accept that changes to the doctrine, structures and procedures of the national security framework are illegitimate unless approved of by the people and their representative bodies and they should bind themselves to the contract entered into with the electorate through a mutually agreed set of norms and code of conduct.
The Bill strengthens the spirit of these motivating principles and it seeks to take our intelligence services forward until they are among the best and most progressive in the world. I would like to thank the select committee for their energetic deliberations on this Bill and the efficiency with which they guided this legislation through the committee processes. I would also like to thank the officials in the department who assisted in the drafting and the formulation of this legislation.
Mr Chairperson and hon members, I stand to table the General Intelligence Law Amendment Bill of 2000 and anticipate this Chamber’s full support for this legislation. [Applause.]
Mr J L MAHLANGU: Madam Chairperson, the ad hoc committee that dealt with this Bill agreed that there was only going to be one person to make a presentation, because all parties support the passing of this legislation.
Countries the world over accord security services high regard. I am glad that our Parliament has avoided the temptation to micromanage the intelligence services of our country. Members have also avoided the temptation to turn the services into a political football. In terms of section 198 of the Constitution, national security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life.
On Friday last week, we passed The National Prosecuting Authority Amendment Bill, popularly known as the Scorpions Bill. One of the features of that Bill had to do with the labour relations aspect. In terms of the Bill, the national prosecuting authority is an essential service and can therefore not engage in a strike, nor can any member induce others to go on strike. Similarly, the intelligence services are an essential service and, as mentioned by the Deputy Minister, members cannot go on strike.
Mechanisms have been and will have to be drafted, both in the Bill and in the regulations, in order to create internal mechanisms with a view to fair labour practices. It is also expected that proper consultation on the conditions of service within the intelligence services will be drafted, after proper consultation in this regard between the relevant services and the department.
We believe that this mechanism will meet the necessary test required in terms of the judgment in a matter between the Department of Defence and the unions, which had applied for that kind of mechanism in the defence community.
The Bill envisages the regulation of activities of former members. The Deputy Minister has also alluded to this. The Bill empowers the Minister to make regulations with respect to those members and their activities. Members serving in the services are privileged to gain access to highly confidential information whose disclosure could be damaging and detrimental to the security of the Republic. Therefore the Minister is authorised to regulate and prescribe how former members must conduct themselves.
One other issue I would like to address is the authority and powers that this Bill gives the Minister. The Minister is empowered to make regulations which deal with the protection of sensitive information belonging to the state, which is in the possession of the state or statutory bodies, in keeping with the minimum information security standards. I hope that in the near future we will be privileged, as Parliament, to be taken on board with regard to these minimum security standards, because they also apply to us.
Lastly, contrary to the general norms in terms of which regulations are published in the Gazette, with regard to the Bill before this House this afternoon, regulations will have to be communicated to persons to whom they apply. This is in keeping with the process of keeping our services secure. As the Deputy Minister indicated, foreign bodies and services would like to know what is happening within our service, and therefore regulations will be directed at the relevant people and not be published in the Gazette, as happens in other cases.
From all political parties as well as the ad hoc select committee there is general support for the Bill, and I therefore propose that the House adopts the Bill as amended. [Applause.]
Debate concluded.
Declaration of vote:
Mr P A MATTHEE: Chairperson, although the New NP initially had some reservations about certain clauses, these were amended, so that the Bill before us today makes it possible for people who have been in the employment of the agencies to still use their skills in a private capacity by applying for a clearance certificate to the Director-General of Intelligence. It is important to note, as has been highlighted, that it is totally unacceptable for employees in the intelligence services to go on strike, and we support the fact that this Bill now makes provision for internal mechanisms.
We are satisfied that the amendments contained in this Bill are necessary to improve the efficiency of the intelligence services, and we therefore support it. A strong, effective and highly disciplined intelligence community which serves to protect the security of the state and the whole nation is absolutely necessary for a proper and flourishing democracy. We will therefore support it.
Bill agreed to in accordance with section 75 of the Constitution.
ABOLITION OF LEBOWA MINERAL TRUST BILL
(Consideration of Bill and of Report thereon)
Mr M V MOOSA: Chairperson, the Abolition of Lebowa Mineral Trust Bill relates to the Lebowa Mineral Trust which was established in two phases, in 1986 and 1992, in order to take all the mineral rights that existed in all the land of the then Lebowa and put them into a mineral trust to be held in favour of the people of Lebowa. As we know this has become quite a controversial Bill, and I am going to outline the reasons very briefly.
In the old days when we had the homeland system, what we had was the creation of little pockets of land which were transferred to governments that were created in order to manage that land. In the instance of the Lebowa area, the Lebowa government was created and certain pockets of land
- in fact, as members know, Lebowa itself was not one piece of land, it was lots of little pieces of land which included certain towns and excluded others - were put together in order to create the then Lebowa. For the benefit of members of the House, when such a mechanism takes place the land that is transferred attaches to all the rights that are transferred with the land. In this instance, the rights, which are usually mineral rights such as platinum, gold, diamonds, whatever the case may be, get transferred with that land to the homeland created at the time.
What subsequently happened was that the then Lebowa government created the Lebowa Mineral Trust, and they took all the rights of mining and prospecting for minerals in the land of the then Lebowa area and put them into the mineral trust. Just to briefly tell members what the objects of the trust were, they were to take over all the Lebowa government-owned mineral rights, to acquire mineral rights from private holders in the former Lebowa area and bring them into the trust, to hold the mineral rights vesting in the trust for the benefit of Lebowa - that is the key issue here - and, if required, to hold mineral rights as a trustee for any private person or association of persons. This is a typical anomaly that can only happen in a country like South Africa.
In 1994 we had a new Constitution and the homeland of Lebowa and its boundaries were abolished, but the mineral rights of Lebowa were still entrusted in an organisation called the Lebowa Mineral Trust. Unbeknown to everybody, this trust continued to operate as the Lebowa Mineral Trust for six years on an object such as this one, which is to hold all the mineral rights vesting in the trust for the benefit of Lebowa. Somewhere along the line some wise person asked: But, where is Lebowa? It is now the year 2000. What is Lebowa?
Suddenly, people realised that there is a trust that exists holding mineral rights for people that no longer exist, in a metaphoric sense, because all of those people are now, as rightfully so and has always been the case, citizens of the Republic of South Africa. If anybody in this country is to hold mineral rights on behalf of people, they should be holding those mineral rights on behalf of the people of South Africa.
Of course, when that discovery was made, and the Ministry started putting processes into motion in order to make sure that those mineral rights were vested in the Government of South Africa and the Republic of South Africa for all the people of South Africa, certain vested interests became quite unhappy about it.
A number of public hearings were held, and so forth, and some interesting things happened. For instance, some individuals in the former Lebowa area put together a list of names and said that those were the beneficiaries of the trust. That, I think, is where the problem really started.
Of course the trust document indicates very clearly that the beneficiaries of the trust are the people of Lebowa. If one abolishes the Lebowa boundaries and borders, the trust de facto does not exist and must be abolished. If there are any mineral rights that are attached to land that belonged to the then Lebowa, those mineral rights must attach to the land that is now part of the Republic of South Africa.
It sounds quite simple, but in fact it is not as simple as that, because added to that are a whole lot of other questions that are beginning to emerge, which we will see over time. All the deals that the Lebowa Mineral Trust may have struck and signed, from the time the new Constitution came into effect until today when the trust is being abolished, are all up in the air.
If they sold off R100 million’s worth of mineral rights to mine coal, platinum or something else in that land to some company, then did they have the right to do it? This is because the big question is: Did they exist in proper legal terms? Those are the kinds of issues that are beginning to play themselves out.
The assurance that we have from the Department of Minerals and Energy is that there is no specific individual who will be prejudiced by the abolition of the Lebowa Mineral Trust, because there is no specific individual who is a beneficiary of this trust. Therefore, no specific individual or organisation, or even specific tribe - if one wants to take it as far as the issue of tribal lands - has been named as a beneficiary in this trust. Therefore there is thus no such person, persons, or organisation that will be prejudiced in any way by the abolition of the Lebowa Mineral Trust. [Time expired.] [Applause.]
Debate concluded.
Declarations of vote:
Mr N M RAJU: Madam Chair, the DP does not support the Bill. The DP’s objection to the Abolition of Lebowa Mineral Trust Bill revolves mainly around the Bill’s objective to take away the rights held by the trust and vest them in the state. The rationale for the transfer of assets, liabilities, rights, obligations and staff to the Minister and to the state on the basis that the mandate of the Lebowa Mineral Trust was limited to the former self-governing territory, which is no longer recognised by the Constitution, is implausible. [Interjections.]
It is true that we do not have self-governing territories anymore. They have dissolved into thin air, but the people are still alive and kicking. [Interjections.] Furthermore, it is the considered opinion of the DP that the Abolition of Lebowa Mineral Trust Bill is the Trojan Horse of the controversial mineral development Bill, yet to be tabled in Parliament some time next year. [Interjections.] This Bill is intended to vest all mineral rights in the state, and establish the ``use it or lose it’’ principle.
Why can the Government not proceed with the mineral development Bill first, and then deal with the Abolition of Lebowa Mineral Trust Bill? Our contention is, therefore, that the Lebowa Mineral Trust should rather, firstly, be transformed into a mineral development agency; secondly, that the mineral rights currently held by the LMT in trust should be given back to the beneficiaries, that is the individuals and tribes in the areas; and thirdly, that the reformed trust facilitate the development of the mineral rights for the benefit of all the people of the Northern Province. After all, the Government does have poverty alleviation as one of its priorities. The Northern Province does qualify, being one of the poorest provinces in our beloved Republic.
Please note the objection of the DP to the Bill.
Mr K D S DURR: Madam Chair, the ACDP is not against the dismantling of the trust. We think it is a natural consequence of the political evolution of our country, but we are against vesting all mineral rights and property rights concerned in the state.
We are not convinced that there has been adequate and comprehensive consultation, particularly with the local people. I heard today that there might be a challenge in the courts from some of the directors.
We are also not convinced that a simple transfer to the central Government is the correct way forward, or even that the central Government is necessarily the successor or entitled to it. It might well be the provincial government. We would rather see consideration given to unbundling the trust into its constituent parts. What remains, if anything, can go to the state. We believe that management buyouts or leaseholder buyouts of commercial and mining activities should take place where necessary, and/or that the assets should be sold by public tender.
Existing rights such as mineral rights should continue to vest. Funds can revert to the province or to the central Government, depending on the source of the funds employed. Social services undertaken by the trust can be returned to the province as funded activities. We oppose this measure.
Dr E A CONROY: Madam Chair, the New NP also opposes this Bill and I concur with the two previous speakers on the same grounds.
The CHAIRPERSON OF THE NCOP: Order! Dr Conroy, was that a declaration?
Dr E A CONROY: A very short declaration, Chair. [Laughter.]
The CHAIRPERSON OF THE NCOP: Order! Hon members, we need to understand the processes we are engaged with. Rule 63 asks political parties to table a declaration of vote, that is, the underlying rationale for the manner in which they intend to vote. Once we come to the decision, political parties are then able to rise and ask the presiding officer that their objection be noted when the decision has been handed down by the House. We are at the point where we are asking for a declaration by political parties, the underlying rationale that signals your intention. We have not as yet come to the decision.
I will, however, move on, and at an appropriate stage, I suppose, the New NP will indicate its perspective with respect to their decision.
Mr M V MOOSA: Chairperson, the ANC supports this Bill for the following reasons. Firstly, we support this Bill because the beneficiaries of the Bill no longer exist in terms of the new Constitution. Other political parties that have taken the position that the LMT must continue to exist have given no explanation to us about who the possible beneficiaries are of the Bill if the LMT continues. If they say that the LMT must become the property of the Northern Province, then they are creating another trust. They are entitled to create another trust. They should draft a Private Member’s Bill and table it in Parliament to create another trust.
But, the object of this particular trust is to provide for the beneficiaries of the people of Lebowa, and there are no people of Lebowa. They are people of South Africa now. The main object of the trust has fallen away.
The second reason the ANC supports this Bill is that the ANC believes that all mineral rights should be vested in the state, unlike the belief of the ACDP. In all other countries all over the world, mineral rights vest in the state, and private companies and organisations that wish to mine purchase those rights from the state. That is international practice. That is how it happens all over the world. I do not know how on earth the ACDP believes that, in South Africa, mineral rights should vest in individuals other than the state before even those rights have been sold off to anybody.
The simple truth of the matter is that the Lebowa Mineral Trust’s de facto reason for existing ceased to be in 1994. If anybody had a problem with that, then at the time we were drafting the new Constitution, we should have put some clauses in the new Constitution to allow institutions created by the boundaries of the former homelands to continue even though the homelands were being abolished. How on earth does one abolish a homeland and continue with structures around which they operated?
Basically, for those reasons, the ANC believes that it is very prudent to abolish the Lebowa Mineral Trust Bill. Further matters regarding mineral rights in this country will be discussed in the development Bill and, at that time, we can engage in a greater debate around the philosophical issues raised by Mr Durr. [Applause.]
Bill agreed to in accordance with section 75 of the Constitution (African Christian Democratic Party, Democratic Party and New National Party dissenting.)
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON ECONOMIC AFFAIRS - SADC TRADE PROTOCOL
Mr M V MOOSA: Chairperson, this is fortunately a happier matter. The Southern African Development Community, as hon members know, has been operating and co-operating on all sorts of economic issues in the economic subregion for some time now. If hon members still remember, in 1999 we as a Chamber had become part of the process of discussing the SADC protocols, and we adopted such protocols in this House as a broad framework in terms of which we would trade with countries in the subregion.
I would like to quickly state who the countries of the SADC region are: They are Angola, Botswana, the Democratic Republic of Congo, the Kingdom of Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, the United Republic of Tanzania, Zambia and Zimbabwe. These countries have been talking from time to time and have come together to deal with the question of trade across our borders.
Let me use a simple issue to explain the matter. If we are busy manufacturing textiles, say cloth to make shirts, in this country, we want to be able to get the best price for this cloth in our own market. We also want to be able to be competitive enough to get the best price for this cloth in subregional markets, say, and even in international markets, Malawi, for example, if we can. Now one of the issues that the SADC protocols deals with is the question of the rules of origin, namely where the primary materials that make the cloth which we want to sell at the best price we can sell, come from.
There are two reasons why we ask that question when we decide on how protocols should work. The first is that we want to ensure that we create sufficient labour in our subregion in order to ensure that resources and the secondary economy in the subregion are encouraged by the fact that the primary materials that go into making the product on sale are coming from within the country. The other thing we could quite easily do is import cloth from the Far East at a lower price than it would cost for us to make it ourselves, manufacture the shirts and then flood the subregion and put everybody else out of employment. That is one of the things that this protocol deals with. In fact, the rules of origin as set out in the SADC protocols have been tightened.
I would like to just go through some of the other issues that have been tightened in the protocols. We are dealing with the question of customs co- operation. I think everybody knows the problems around customs - the to and fro of goods between our borders, the nature of the goods that pass between our borders, and the customs and excise duties that need to be paid on those goods and so forth. A whole series of clauses are being amended in this document that we are adopting today on co-operation between our different countries by the customs authorities.
This document also puts together a dispute-settlement mechanism in case there are disputes about rules of origin or any other matter, such as custom issues, between the SADC countries. In this document is contained a dispute-settlement mechanism which will be utilised by the different countries when they have a dispute of one sort or another which they feel they need to sort out.
The protocol also goes into some detail regarding the sugar market access and co-operation agreements. As members know, sugar is a big issue in our subregion. The primary economy of a country such as Mauritius depends for 80% to 90% on sugar, with the balance depending on marine and other resources. If sugar is brought into this subregion from other global players, or if this subregion begins competing unfairly with other members of this subregion regarding sugar, one could easily destroy an economy in the subregion or at least create unstable industrial sectors in our SADC region, resulting in job losses, instability and loss of wealth.
What this particular agreement does, therefore, is to put together a whole range of market-access and co-operation agreements on the sugar industry. There are a whole series of miscellaneous provisions as well. In a nutshell, without going into the detail of each one of these different clauses and agreements, that is what the SADC Trade Protocol amendment is all about. I urge the Council to support it. [Applause.]
The CHAIRPERSON OF THE NCOP: Thank you, Mr Moosa. I must thank you for having given that insight into the SADC Trade Protocol. The matter came up for some debate at the recent SADC Parliamentary Forum. It was very clear in the process of the meeting that not all members study protocols that they vote on. It was therefore signalled as vitally important that members of Parliament do begin to familiarise themselves with international obligations that Parliament accedes to, because we should be wary of putting a parliamentary stamp on treaties and protocols that we do not ourselves understand or that we cannot explain before the public. So, I am very pleased that you have made this statement to alert members to these issues, because it is important.
Debate concluded.
Report adopted in accordance with section 65 of the Constitution.
REDETERMINATION OF THE BOUNDARIES OF CROSS-BOUNDARY MUNICIPALITIES BILL
(Consideration of Bill and of Report thereon)
Order disposed of without debate.
Bill agreed to in accordance with section 75 of the Constitution.
MARINE LIVING RESOURCES AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mrs A M VERSVELD: Chairperson, the DP supports the essence of this Bill, but not in its current form. The fishing rights awarded for 2000 were awarded under a substantially flawed allocation process and the industry remains rife with serious allegations of corruption. The responsible Minister consistently fails to respond to those who have presented him with substantial evidence of corruption.
The intelligence report from the publicly funded yet publicly unannounced R558 000 investigation into corruption in the industry remains withheld from public scrutiny. The Minister obtained Cabinet’s approval that all the rights can be further extended for the 2001 fishing season as well. The DP agrees with this for the sake of the industry, but not without reservation.
Therefore the DP calls on the President, before granting his assent to the Bill, to refer it to the Constitutional Court for ratification and/or amendment to include the clause proposed by the DP, namely where any evidence of irregularity relating to the allocation of any fishing rights exists and/or where any evidence of participation in the destruction of any marine resource exists, such fishing rights are, with immediate effect, to be suspended, pending thorough investigation of such evidence by, and the consequent findings of, a judicial commission of inquiry into allegations of corruption in the fishing industry or a court.
The DP is of the opinion that the amending Bill, in its present form, is constitutionally unenforceable and that urgent interdicts will simultaneously be brought before the Constitutional Court and the High Court to overturn the Bill, which will have devastating consequences for the entire industry and particularly for the honest participants.
The DP cannot vote for this Bill in its current form and will abstain.
Mr D M KGWARE: Chairperson, hon Deputy Minister, hon members, the committee met and we looked at the amendment. We discussed it and of course it has been conveyed to the DP that the committee was not able to support it.
We looked at the amendment as it was and we agreed in full that we need to accept it and to pass it, especially because we were not dealing with the principal Act. We can normally make an amendment at that level, not when we deal with the actual amendment.
On behalf of the ANC, I want to …
The CHAIRPERSON OF THE NCOP: Order! Mr Kgware, if you could take your seat. Is that a point of order?
Mrs A M VERSVELD: Yes, Chairperson, it is a point of order. I think the hon member is deliberately misleading the House. I had advice from the state law advisers that I was procedurally correct in putting this amendment on the table.
The CHAIRPERSON OF THE NCOP: Order! That is not a point of order. Proceed, Mr Kgware.
Mr D M KGWARE: Chairperson, let me continue. I think I made the point on the committee clear, because I am actually speaking here on behalf of the chairperson of the committee.
On behalf of the ANC I want to make use of the opportunity to express our appreciation for the excellent work being done by the Minister of Environmental Affairs and Tourism and his department towards the restructuring of our marine living resources for the benefit of all our people. I also want to assure the Minister of our continued support in his endeavours to further restructure the fishing industry.
We acknowledge the enormous difficulties facing the Minister in restructuring the industry. There are three broad challenges that are facing the Minister. Firstly, he has to fulfil the rising expectations of the historically excluded communities who want to have full access to the marine resources of the nation. Secondly, he has to balance the broadening of access with the need not to replenish what is ultimately a limited resource. Lastly, he has to ensure that our fishing industry becomes internationally competitive.
The current Marine Living Resources Amendment Bill has to be seen in the context of the three broad challenges I have outlined above. Also, with the rapid changes occurring in the fishing industry, it is essential that we tailor our existing legislation to the demands placed upon us by these changes.
The recent approval by Government of a new allocation policy has meant that we need to revisit certain aspects of the Marine Living Resources Act. Section 18 of the Marine Living Resources Act provides that the right to undertake commercial or subsistence fishing remains valid for a period determined by the Minister. This period can be anything from 1 to 15 years.
Because of the fact that the new allocation policy will take time to be implemented, it could result in some unfairness. If, for example, the Minister has determined that the period to undertake subsistence fishing is three years and the new allocation policy takes four years to be implemented, it would mean that such persons would not benefit from the new allocation policy.
Since the Marine Living Resources Act does not provide for an extension of the right to undertake commercial or subsistence fishing, it becomes necessary to amend the Act so as to ensure that all commercial or subsistence fishing concerns share in the benefits bestowed by the new allocation policy.
We, therefore, support the Marine Living Resources Amendment Bill, Bill 68B of 2000. [Applause.] [Laughter.]
The CHAIRPERSON OF THE NCOP: Order! Mr Ackermann, I think enough has been done. Perhaps you should stay in your seat. [Laughter.]
Debate concluded.
Declaration of vote:
Mrs A M VERSFELD: Chairperson, I am sorry, but my speech was the declaration of vote on behalf of the DP.
The CHAIRPERSON OF THE NCOP: I have noted that.
Bill agreed to in accordance with section 75 of the Constitution (African Christian Democratic Party and Democratic Party abstaining).
The Council adjourned at 15:54.