Competition Commission gets to know LPG market

 DOE holds off on LPG regulatory changes…

Sent to clients 25 Oct….In a briefing to the Portfolio Committee on Energy on the report by the Competition Commission (CC) into the Liquified Petroleum Gas (LPG) sector, acting Director General of the Department of Energy (DOE), Tseliso Maqubela, has again told Parliament that the long-standing LPG supply shortages are likely to continue for the present moment until new import infrastructure facilities come on line.

He was responding to the conclusions reached by the CC but reminded parliamentarians at the outset of the meeting that the Commission’s report was not an investigation into anti-competitive behaviour on the part of suppliers but an inquiry, the first ever conducted by the CC, into factors surrounding LPG market conditions.

Terms of reference

In their general comments, the Commissioner observed that the inquiry commenced August 2014 on the basis that as there were concerns that structural features in the market made it difficult for new entrants and the high switching costs for LPG gas distributors mitigated against change in the immediate future.

They worked on the basis that there are five major refineries operating in South Africa, these being ENREF in Durban, (Engen);

refinery

engen durban refinery

SAPREF in Durban, (Shell and BP); Sasol at Secunda; PetroSA at Mossel Bay; and CHEVREF in Cape Town (Chevron). There are four wholesalers, namely Afrox, Oryx, Easigas and Totalgaz.

Wholesalers different

As far the wholesalers are concerned, in the light of all being foreign controlled, CC also observed that transformation was poor, but this was not an issue on their task list, they said. They had assumed therefore that BEE legislation was difficult to enforce and that the issue had been reported to the Department of Economic Development, the portfolio committee was told.

Price regulation at the refineries and at retail level is supposedly determined by factors meant to protect consumers, the CC said, but their inquiry report noted no such regulations specifically at wholesale level. This fact was stated as being of concern to the CC in the light of known “massive profits in the LPG wholesaling sector”.

Structures

Commissioner Bonakele said, “We started the inquiry because of the worrying structures of the market but in benchmarking our market structures with other countries and we found LPG in SA was not only unusually expensive but was indeed in short supply. Why? When it is so badly needed, was the question, he said

The CC established from the industry that about 15% of LPG supplied is used by householders and the balance is for industrial use.   In general, they noted that there were regulatory gaps also in the refining industry but regulatory requirements were over-burdening they felt and contained many conflicts and anomalies.

The CC had also reported that the maximum refinery gate price (MRGP) to wholesalers and the maximum retail price (MRP) to consumers were not regulated sufficiently and far too infrequently by DOE.

Contentious

There needed to be one entity only regulating the entire industry from import to sale by small warehousing/retailers, they said. The CC suggested in their report that the regulatory body handling all aspects of licensing should be NERSA .

As far as gas cylinders were concerned, Commissioner Bonakele noted in their report that there are numerous problems but their criticism was that the system currently used was not designed to assist the small entrant. The “hybrid” system that had evolved seemed to work but there was a “one price for all” approach.

DOE replies

In response, DG Maqubela confirmed that the inquiry had been conducted with the full co-operation of DOE into an industry beset with supply and distribution problems, issues that were only likely to change when there were “adequate import and storage facilities which allowed for the import of economic parcels of LPG supplied to the SA marketplace.”

When asked why local refineries could not “up” their supply of LPG to meet demand, DG Maqubela explained that only 5% of every barrel of oil refined by the industry into petroleum products could be extracted in the form of LPG. Therefore, the increase in LPG gas supplied would be totally disproportionate to South Africa’s petrol and diesel requirements.

Going bigger

Tseliso Maqubela, previously DG of DOE’s Petroleum Products division, told the Committee that two import terminal facilities have recently been commissioned in Saldanha and two more are to be built, one at Coega (2019) and one at Richards Bay (2021). These facilities were geared to the importation of LPG on a large scale.

He said, in answer to questions on legislation on fuel supplies, that DOE were unlikely to carry out any amendments in the immediate future to the Petroleum Pipelines Act, since the whole industry was in flux with developments “down the road”.
It would be better to completely re-write the Act, he said, when the new factors were ready to be instituted.

Rules

On the regulatory environment, DG Maqubela pointed out that for a new refinery investor it would take at least four years to get through paper work through from design approval to when the first spade hit the soil. This had to change. The integration of the requirements of the Department of Environmental Affairs, Transnet, the Transnet Port Authority, DTI, Department of Labour, Cabinet and NERSA and associated interested entities into one process was essential, he said.

On licencing, whilst DOE would prefer it was not NERSA, since they should maintain their independence, in principle the DOE, Maqubela said, supported the view that all should start considering the de-regulation of LPG pricing. He agreed that DOE had to shortly prepare a paper in on gas cylinder pricing and deposits which reflected more possibilities for new starters.

MPs had had many questions to ask on the complicated issues surrounding the supply, manufacture, deposit arrangements, safety and application of cylinders. In the process of this discussion, it emerged, once again, that LPG was not the core business of the refinery industry and what was supplied was mainly for industrial use. The much smaller amount for domestic use met in the main by imported supplies for which coastal storage was underway over a five-year period.

Refining

DG Maqubela noted that on Long Term Agreements (LTAs) between refineries and suppliers, DOE in principle agreed with the Commission that LTAs between refiners and wholesalers could be reduced from 25 years to 10 years, to accommodate small players. Again, he said, this would take some time to be addressed, as was also an existing suggestion of a preferential access of 10% for smaller players.

All in all, DG Maqubela seemed to be saying that whilst many of the CC recommendations were valid, nobody should put “the cart before the horse” with too much implementation of major change in the LPG industry before current storage and supply projects were completed.

However, the current cylinder exchange practice must now be studied by DOE and answers found, Tseliso Maqubela re-confirmed.
Previous articles on category subject
Overall energy strategy still not there – ParlyReportSA
Gas undoubtedly on energy back burner – ParlyReportSA
Competition Commission turns to LP gas market – ParlyReportSA

Posted in BEE, Energy, Finance, economic, Fuel,oil,renewables, LinkedIn, Trade & Industry0 Comments

Parliament may see delays on Mining Bill

Mining and petroleum bill to hit snags

Overwhelmingly evident is the cloud hanging over the Mineral and Petroleum Resources Development Amendment Bill (MPRDA), linked inextricably to a troubled Mining Charter, some movement on the MPRDA being necessary to restore stability to the mining industry in the form of legislative clarity.

Legislative clarity will also allow the petroleum and gas industry to hopefully go into a development phase.  Here the players need an equal playing field, the State in this case getting a free stake possibly at 20% but paying no development costs since the State now has ownership of the resources.

Free lunches

There is one further possible hurdle on the horizon.      Aside from issues surrounding the Charter, which is technically a non-parliamentary issue, the application of Parliamentary Rules regarding the great number of changes that are being made to the Bill raise procedural issues.

It is indeed a very different Bill to that which was voted through Parliament earlier and passed by the National Assembly.

For the moment, now that provincial opinion on the more recent changes to the MPRDA have been returned,  the provinces each having voted and recorded their nine mandates on the subject, the idea is that the Bill can then finally be returned to the Presidency, possibly via the NA Committee to lodge the changes.

First things first

There is a sense emerging that the offshore gas industry is a little happier with the free carry proposals but on the other side of negotiations it appears, from the media, that the Chamber of Mines is struggling to find common ground with Minister Zwane on the Mining Charter, referred to in the MPRDA but not legislatively part of it.

It is difficult to imagine any Mining and Petroleum Resources Development Act, as amended, being in force without an agreed and new Mining Charter in place. However,  developments in this area will have to be watched.

Last in queue

In the list of Bills before Parliament the MPRDA has been listed last (and therefore the longest under debate) for nearly three years, except for a short period when it went to the President.   This reflects the long tussle involved.

The four major hindrances were the extended negotiations with the offshore petroleum industry on the free carry issue; the fact that President Zuma returned the Bill approved unsigned insisting that it be considered by all nine provinces; issues surrounding what the Minister has defined as “strategic minerals”; the thorny question of mineral beneficiation and the completion of the mining charter, to which the MPRDA refers but remains not incorporated.

Next process

Many more issues have still to be debated, whilst the basic parameters will have to come to a head on the parliamentary “rules of the game” regarding the passage of the legislation itself.    Meanwhile, NCOP hearings on the Bill have been scheduled for the last two weeks of June 2017.

Throughout, the “elephant in the room” for the mining industry has remained the Charter itself which Minister Zwane has stated will be “the most revolutionary Charter ever produced.”

Possible slow down

Meanwhile on the MPRDA, Opposition members will no doubt study closely the Rules of Parliament which state, as was the case with the FICA Bill, that if a Bill is returned unsigned then only the issues for which the Bill was returned may be altered and then only once.

However, unlike the FICA Bill which was returned on the basis of one issue, that of unwarranted searches the MPRDA Bill was returned on the basis of lack of consultation with the provinces.

To amplify, if the President only returned the Bill on the basis that the NCOP and National House of Traditional Leaders had not been consulted, it may be a contested issue as to whether the Bill will be challenged under these Rules. This is a legal issue.

The Legal Resources Centre is quoted as being interested in such a challenge.

Looking ahead

For years, it has been the view of many that both industries that each should have its own “MPRDA”, especially in the light of the fact that both have their own specific and very different Charters.

Whilst crude oil, subsequently refined to petroleum and gas, are certainly natural resources now owned by the State, theoretically the only resources that are ‘mineral’ are those which have a crystalline molecular structure and are “mined”.     This would naturally exclude extracted crude oil and gas.

Two is not one

Consequently, both industries, which fall under two government departments and which are distinctively different from one another, have historically been under one piece of legislation governing all geological resources.

This difference between the two industries is expressed in many ways.   The petroleum industry is centred around its refineries, very much technical industries with ‘upstream’ components in importation and exploration and ‘downstream’ interests  involving distribution, retailing and property interests. Their product is very directly linked to the cost of doing business and the cost of living.

Meanwhile, the mining industry is essentially involved in extraction with massive labour factors, high capital costs, sophisticated export involvements and beneficiation.  Its product is closely linked to the survival of industry in general and is directly linked to GDP.

Legislatively, therefore, one garment certainly does not fit all  –  despite each industry having its own charter.  Inevitably separate legislation will have to be developed but such changes are seen as being down down the road for the moment.

Damaging delays 

Whatever route the Bill now takes in Parliament, any challenge to its progress will be particularly frustrating for investors if there are more delays.    Those issues mainly arise in the mining sector where far more is at stake and consequently rating agencies are flagging Minister Zwane’s actions.  The gas exploration industry is clearly tired of waiting.

The results of three days of parliamentary hearings on the Bill, which have included some side issues such as Shell SA on the future of shale gas and any demands from the House of Traditional Leaders, should prove interesting.

The major issue remains as to what is government policy is on the whole particularly regarding labour  as distinct from just Cabinet ambitions for BEE participation percentages.

Next stages

Most attention will now fall upon the complementary non-legislative document, the Mining Charter, despite the unclear parliamentary situation.   Following the public hearings, the NCOP Select Committee will summate these meetings and the relevant departments will respond over the following days.

Possibly, at some stage, Minister Zwane will address Parliament on the issue to clarify the situation of government’s view and relevant comment on the Bill will also no doubt arise from media briefings by the Ministry on both subjects. For the moment, much of the issue will be dictated by events outside of Parliament.

Previous articles on category subject
MPRDA Bill returned to National House of Leaders – ParlyReportSA
MPRDA Bill to be amended urgently – ParlyReportSA
MPRDA Bill brings changes in BEE and exploration rights – ParlyReportSA
Mineral and Petroleum Resources Bill halted perhaps – ParlyReportSA

Posted in BEE, Finance, economic, Fuel,oil,renewables, Labour, LinkedIn, Mining, beneficiation, Special Recent Posts, Trade & Industry0 Comments

Broadband allocation on its way

Minister wants BEE ownership in broadband…..

sent to clients 20 March….As if nobody knew already, the Minister of Telecommunications and Postal Services,cwele Dr Siyabonga Cwele, told Parliament that broadband allocation is perhaps the biggest regulatory bottleneck in the South African deployment of wireless technologies.     He said, at the same time, he wants to see Black owned companies have their fair share of allocation.

However, both he or his department (DTPS) and the regulatory body ICASA seem to be at odds on the system needed to allocate the spectrum, particularly in the area of setting aside sufficient spectrum to support Black broadband development and ownership specifically.    The fight to deliver urgently more high-speed bandwidth to South Africans generally is being slowed down it seems by this difference in opinion expressed.

global broad bandPresumably, the delay is all about whose satellites we use – Chinese, Russians or the US accompanied by an intelligence risk – or do we go via the masts owned by the private sector. Minister Cwele probably suspects any such deal with the private sector will not serve black interests in the proper manner. Digging trenches and laying down optic line cannot be any kind of answer.  In telecommunications all is political, rather like the nuclear issue and the similar problems faced by department of energy – the political structure overlays the practical answer.

Dr Cwele has now said the final policy paper is on its way to Cabinet.

One on one

In an extraordinary meeting with the Portfolio Committee on Telecommunications and Postal Services, both parties explained their views with the views of MPs to be added to what has become a national debate dominated to an extent by Minister Cwele’s views.

The background to the impasse is that the Electronic Communications Act empowers the Minister to issue policy directives but ICASA does not necessarily have to accept such. To distill the views of each into a few words is difficult but clearly the driving principle behind Dr. Cwele’s approach is an allocation which favours black transformation in control of spectrum whereas ICASA prefers an allocation more on an “auction” basis, whereby bidders not only name their price but then add their additional contributions to Black upliftment and general social development.

cell phone mast graphicVodacom, MTN, Telkom, Cell C and Neotel have in the past sunk enormous sums into the development of communications structures but the current delays in allocation are, according to reports, hurting the industry but their BEE structures are shallow, say insiders.

Dedicated view

Industry sources said before the meeting “Minister Cwele is seized with the need to transform the sector to ensure meaningful Black participation but spectrum allocation cannot be granted in the same way as the granting of concessionary mining licences, for example, if Black empowerment is the goal.”

The principles of the allocation process as stated by DTPS are indeed noble, as quoted in the relevant draft Policy Paper before Parliament, which state that the aims of the allocation policy are to:

• Promote the effective and efficient management of spectrum to ensure
  agility, flexibility and adaptability in spectrum administration
• Reduce bureaucracy and streamline processes for spectrum assignment
• Support the attainment of the national broadband targets set out in the
  South Africa Connect programme at speeds and in the time frame outlined
• Provide clarity on the treatment of spectrum in instances where demand exceeds supply
• Set aside spectrum for use on an open access basis with joint private sector investment
• Support the provision of, emergency services, safety and security and sector-specific operations

Milder

In the parliamentary debate, Sipho Mjwara, Acting DG, DTPS, was more conciliatory and said the spectrum was a public resource belonging to all people and DTPS had to apply itself on how to deal with this for the benefit of all. Currently the spectrum was operating on a first come, first serve basis but this principle certainly did not benefit all. He said there were “barriers to entry for small companies and artificial monopolies helped little.”

This was followed by comment from the Deputy Minister, Prof Hlengiwe Mkhize, who said it was “more logical” not to shrink away from exercising the mandate of DTPS to follow the NDP on broadband roll out. “The pillars that need to be in place must include those that had previously been excluded”.

Money must talk

Pakamile Pongwana, CEO of ICASA, responded that from an international perspective it was no longer the policy,icasa ceo as had been the case in the past, of getting maximum fees into the fiscus but the needs of complete coverage of the country. It was a combination of coverage and fees, Pongwana said.

Germany had raised money from the spectrum divide, he said, but they had included a proviso that bandwidth would only be released when rural areas had been covered. He added that other countries were already looking at 5G networks while South Africa was still looking at LTE use. “We have to stop playing catch-up”, he said.

War of words

From the debate between all groups, DTPS, ICASA and parliamentarians, it became obvious that there is an ideological battle going on. The industry sees the independence of ICASA as regulator at stake, industry sources say. The Minister said he had looked at the idea of the allocation of “set asides” for high demand spectrum but added “the Department wants the whole pie to be available for all South Africans. We are in a situation where a duopoly owns 80% of the spectrum.”

However Pongwana concluded, “The allocation of spectrum was the country’s policy choice and the assignment would be by the Regulator and be in line with procedures. While there was long term licensee allocation there was short term spectrum allocation and the Department wanted to give certainty to licensees.”

Money, money, money

moneyOn the question of infrastructure spend, DDG for ICT Infrastructure in the DTPS, summarised government views in the meeting when he said that in a country like South Africa with infrastructure and access gaps, the question had to be asked whether the country wanted to raise money as its main goal. He said it was more about service and reaching all South Africans as part of the NDP but in an equitable manner.”

Whether it would be for free or go to the highest bidder were questions the DTPS was considering as it looked at all approaches. It would probably not be for free, he said, but there had to be a compromise where small companies are not at the mercy of big companies “because of market power relations.”

The Minister concluded that all in DTPS were listening to the views of the public and industry.

Ministerial clusters.

The next step before submission of the new Spectrum Policy to Cabinet during March was to consult with the particular clusters as part of the ICT Policy White Paper procedure. Once the Spectrum Policy had been approved by Cabinet and gazetted as part of the ICT White Paper, ICASA could proceed with the licensing process on the agreed basis.
Previous articles on category subject
Lack of skills hampering broadband rollout – ParlyReportSA
Overhaul of broadband policy underway – ParlyReportSA

Posted in BEE, Communications, Facebook and Twitter, Finance, economic, LinkedIn, Public utilities, Special Recent Posts, Trade & Industry0 Comments

SA’s economic woes not BEE, says DTI

BEE and economic climate not connected…..

lionel october 3In his introduction to the Department of Trade and Industry (DTI) presentation to Parliament on the current position with regard to the implementation of Black Economic Empowerment (BEE) as of August, 2015,  DTI’s DG, Lionel October, said that contrary to some claims, BEE was nothing to do with the many economic problems that beset South Africa.
In his overview, before discussing the detail of the B-BBEE Act, the Codes and Sector Charters, October said he wanted place the need for urgent transformation in its proper context. He said that indeed South Africa, as an emerging economy, had been hurt by global factors recently by Chinese currency interventions and originally by its own energy supply problems.

Key to future, says DTI

However, he said, economic transformation in the form of black advancement, procurement from black entrepreneurs, the transfer of basic mineral wealth into beneficiated products and a rebuilt and transformed manufacturing sector held the key to development.   BEE was nothing to do with the pervading “doom and gloom” scenarios that were persisting in business and industry circles.

Lionel October said “things now needed to be speeded up”. He claimed that the country now had all the legislation, tools and direction needed to contribute the shortage of jobs and quoted JP Landman by saying that South Africa faced a further problem that population growth of 200,000 births a year more than the previous year every year was as much a problem currently, he said.

The big sell

In tracing the development of BEE since the commencement of the B-BBEE Amendment Act in 2014, the adoption of the B-BBEE Codes of Good Practice in May this year, DTI had held 46 workshops to explain and help in the development and understanding of the need for black empowerment. It was not a racial issue, he insisted, but a programme of necessity if South Africa was to survive economically.

He said that the process of establishing at BEE Commission was at “an advanced stage” – the new acting commissioner having been announced recently.

B-BBEE ACT trumps all

Acting chief director of BEE at DTI, Liso Steto, then reported that the new “trumping” provision in the Broad-Based Black Economic Empowerment Act will take effect in two months time when the 12-month transitional period expires. An example of “trumping”, he explained to MPs, was if, for example, a government department put out for tenders and ignored the provisions of the B-BBEE Act. In that case, the Act would “trump” any regarding the tenders.
This trumping therefore, he said, will take precedence over any other law and relates to all other instruments of black economic empowerment, such as Codes of Good Practice and Sectoral Charters. The provision would come into effect in October 2015, by regulation.

Codes get to nitty gritty

On Codes, Steto said, the major development had been the issue of relating “employment equity” to “management control”, with the latter now being the uniform name. Also “preferential procurement” and “enterprise development” were merged for evaluation into one element re-named “enterprise and supplier development”.

Minimum requirements had been introduced for “ownership”, “skills development” and “enterprise and supplier development”, as above.

Fighting “fronting”

Acting DG Steto re-confirmed that 25.1% remained as the target for black ownership. Emphasis was laid on the expression “true ownership” when explaining the 40% sub-minimum applicable on the net value of ownership in the hands of black people. Only investments regulated and based in South Africa will qualify as a “mandated investment”.

On Sector Codes, it was confirmed that ten sectors had been given extensions since 2013 but the final, final date was now October 2015 for all sectors. To date tourism, property, agriBEE, forestry, the media, advertising and communication were in line for approval. The process of aligning the mining charter with the liquid fuel charter had begun.

Split must come

Rumour has it “in the corridor” that these will eventually be split but the whole issue of the implementation of the Minerals and Petroleum Resources Development amendments have to be resolved before such an event can even be considered, resulting in this be an issue way into the future.
Questioning from MPs was limited, a concern being expressed by parliamentarians that the whole issue of verification agencies had to be speeded up by DTI and re-clarified. Lionel October said this was a priority.
MPs also complained that the threshold increase for BEE exempt micro enterprises, now being introduced, from R5m to R10m seemed a strange move if the idea was to develop more small manufacturing businesses but DTI responded that their view was different and the necessity to reduce red tape in the SMME world was essential.

Other articles in this category or as background
25.1% is maximum BEE control, says DTI – ParlyReportSA
DTI does flip flop on B-BBEE codes – ParlyReportSA
Equity quotas court ruling affects BEE legislation – ParlyReportSA
B-BBEE Codes of Good Practice far more onerous – ParlyReportSA
One year to implement B-BBEE Codes – ParlyReportSA
Liquid fuels industry short on BEE charter – ParlyReportSA

Posted in BEE, Finance, economic, Fuel,oil,renewables, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

25.1% is maximum BEE control, says DTI

DTI upbeat on implementation of BEE codes…..

lionel october 3

In a report to Parliament on the amended BEE Codes of Practice and their implementation as from 1 May 2015, Lionel October, Director General of Department of Trade and Industry (DTI) and his B-BBEE staff team, emphasised that the generic scorecard was aligned to government’s key priorities. He also said the State had no ambitions to take their target on black control beyond 25.1% of ownership.

Supplier Development is new title

DG October said the main emphasis of the codes had now switched to greater emphasis on what was previously termed procurement – now referred to as “supplier development”. This approach was more in alignment with the National Development Plan (NDP) objectives, DG October said, simply because that was the main direction needed to empower the development of black enterprises and build the economy on a stable growth path.

“In fact the German auto industry working with the German Chamber of Commerce had established a fund

BMW-Werk Südafrika

in South Africa”, he said, “for financing, training and building expertise in black businesses to supply the auto industry”.

There was considerable discussion on this by members and DG October said that there had been a general recognition in business and industry of the word “must” had replaced “may” in terms of B-BBEE requirements; that level four had to be reached for incentives and in general now “certainty” had been restored to the business environment on BEE issues, he felt.

Five “Elements”

The generic scorecard now had five elements, he said, which all companies, except those micro-exempted, had to comply with for recognition. All employment equity and management control had now been merged into one of those elements, now termed “management control”.    Sector codes were now to be aligned by 1 Nov. 2015, as set out in Code 003.

He said that “in response to public submissions” the import exclusion principle would be maintained and that the definition of an “empowering supplier” in the context of code alignment was a compliant entity which could demonstrate that its production and/or value adding activities were taking place in this country.”

DTI said that that “deviations of sector codes in terms of targets must be over and above those of generic codes and companies that derive more than 50% of revenue from sectors where there is already a sector code must be measured in terms of that sector code.”

DTI has no doubtful intentions

George Washington, having cut down the cherry tree, with his fatherIn general, DG October said in response to questions from MPs about the amendments, it had been his impression that business seemed to accept there were no political mala fides on the part of DTI; just a wish to get on with the planned NDP growth path which required the co-operation of business and industry on black empowerment.

The funding of Sector Charter Councils was a “joint responsibility between government and the private sector and entities must report annually on their B-BBEE status to sector council who will in return reports to the BEE Commission”, DTI said.

New sectors in the sights

Sector codes were being considered for the tourism, which had reached the stage of gazetting for public comment; “alignment” was being reached in the construction, integrated transport, ICT, financial services and chartered accountancy sectors; the property and forestry sectors had reached gazetting stages and marketing, advertising and communication were with their appropriate ministries for approval.

DG October mentioned the fact that the manufacturing industry stood alone as there were so many different sectors but over a period, aspects would be dealt with such as the film industry and textile and clothing industry.

DTI concluded their input to the meeting by advising that a technical assistance guide to B-BBEE was in process and DTI were in the process of finalising the B-BBEE verification manual.

Recent faux pas

rob davies2Opposition members asked how it was that DTI went so wrong with the question of  downgrading the pointing system for employment schemes and why it was that the Minister of Trade and Industry, Dr Rob Davies, had to retract that portion of the amendments which were not gazetted for public comment.

Chairperson Joan Fubbs intervened at this point, noting the Minister had taken the blame, had apologised for the mistake and could do no more than admit that DTI had been wrong.

DG October added that at a DTI workshop on the subject with “some stakeholders” this direction had been considered as a good option for broader rather than narrow empowerment but it had now been recognised by DTI that “they had gone down the wrong route as far as investor confidence was concerned”.

DTI had now reversed everything with the promise that this would not occur on the agenda again.

Better ideas could come

It had also been realised that such a move could also destroy imaginative plans for black management control such as that pitched by Standard Bank where 40% shareholding went to staff who could have representation on the board; 40% went to recognised BEE shareholders and 20% went into community organisations and trusts.

In answer to direct questioning by MPs, DG October confirmed that by the term “black”, DTI translatedlionel october this as African, Coloured, Indian and Chinese. He also confirmed that all these groups, if foreign and not South African citizens, were excluded.

More than 25.1% “unrealistic”

DG October, when asked by ANC MPs whether the 25.1% target for black ownership was realistic and fair considering that the demographics in South Africa demonstrated a far larger proportion of black people, he said that 25.1% could be considered as a “basic critical mass to engender a solid forward movement”.  To go any further would be unrealistic, he added.

In Malaysia, he said, local ownership was considered fair at 30% and other African countries as high as 50%, but he felt that in South Africa, where the need for the transfer of skills and training from large to small companies, especially through supplier development by state utilities and large businesses, was essential, this was a fair percentage assumption and which called for co-operation and fairness between all parties, all bearing in mind “a pretty hideous past”.

Redress of the past in all preambles

joan fubbsAt this point, Chairperson Joan Fubbs referred to the South African Constitution, reading out the clauses which not only stated that all were equal despite race colour or creed but that discrimination was possible if it was fair and she reminded MPs that redress of the past was “fair”.

She asked for all “not to isolate clauses in the Codes to determine personalised interests but get on with job of re-aligning communities that had been excluded from ownership for over 300 years”.

One ANC MP asked that the focus on big businesses be less emphasised and that DTI rather spent considerably more time with the job of developing ownership of black small business, which he stated could be “the power house of South Africa”.

He called for legislation that enforced government and public utilities, “as custodians of state power” to set an example on supplier development since, he said, one could hardly expect the private sector to follow suit, if the SOEs did not lead the way on this issue.

Incentives needed, not law says DTI

DG October said such sort of things were “impractical in the real world” and said the main challenge was a phased process of change which now had the support of many in positions of power in business. He also emphasised that B-BBEE had to tie in business and industry with incentives rather than with the law.

When asked about his recent public statement that he had set DTI’s target to produce “100 black industrialists”, he was referring rather to 100 black industrial leaders “financed and supported by DTI initiatives”.

Other articles in this category or as background
BEE comes under media scrutiny – ParlyReportSA
Rumblings in labour circles on BEE – ParlyReport
B-BBEE Codes of Good Practice far more onerous – ParlyReportSA
One year to implement B-BBEE Codes – ParlyReportSA

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DTI does flip flop on BEE codes

B-BBEE codes changed on “management control”…

Rob+DaviesA  lack of understanding of the effect of B-BBEE Codes on business and the industrial environment, despite a workshop on the subject, was demonstrated when the department of trade and industry (DTI) amended its own amendment in a matter of days on the point scoring issue in terms of broad- based employment share ownership schemes.

More emphasis has been placed in the Codes generally on procurement from black business, now referred to as “supplier development”.

As you were…

However, the minister of trade and industry, Dr Rob Davies, confirmed in a statement that the second amendment corrected the changes as far as employment schemes were concerned and any such changes would not be retrospective on deals already done, such earlier deals continuing to reap the same benefits under B-BBEE Code pointing as before.

Control is everything

Minister Davies said that DTI still had a think tank operating on how further to make BEE in generalplan BEE more effective insofar as pressure on business was concerned to effectively ensure that management, control and ownership by black persons was increased.  His task team appointed would report back by the end of the month. He repeated this in his budget vote speech.

DTI completely avoided established government procedure by issuing an “explanatory notice” to a gazetted publication on B-BBEE procedures by announcing a completely new aspect on the rules on B-BBEE award-pointing, in this case termed as “amending guidelines”, thus avoiding the issue of public comment.

Most worrying was the fact that minister Rob Davies failed to make any reference to this in his earlier introduction to DTI’s strategic plan to Parliament a week before, subsequently presented to the portfolio committee on trade and industry by DG Lionel October and then to the select committee on economic affairs in the NCOP.

Forgot the union movement

Just as as business leaders were, so was the trade union movement, many of whose members are part of share employment schemes, options or not, and are therefore touched on the issue of reduced profit and dividends.

As far as not mentioning this in a budget vote speech, which was an excellent opportunity to inform business, there is fine line, say opposition members, between failure to disclose to Parliament and avoiding a contentious disclosure to Parliament that that might compromise a negotiation but in this particular case of changes to B-BBEE, the matter  appears to have only involved some members of cabinet and certainly none of the large spectrum of stakeholders involved. It all came as a big surprise.

The minister has published two further notices on the amended B-BBEE Codes regarding the second phase now implemented. The Chamber of Mines was yet another body caught by complete surprise, thinking that their relationships, in this case the minister of mineral resources, were far better than they actually now seem to be. There seemed to be a vacuum in communications.

DTI has now reported to Parliament on subject

To the rescue...

To the rescue…

DTI, in the form of DG Lionel October, has since reported to Parliament on the subject of the amended B-BBEE Codes of Good Practice and explained that Minister Davies had admitted that DTI had taken the wrong route with all good intention “to take a narrower view on black management control” but now had apologised for the descision, now reversed, on this aspect of the pointing system. All is reversed, retrospectively as well.

A full report is with our clients with further comments by DTI on the Codes and their application as revised “after the event”.     This analysis of DTI’s presentation will be archived to this website in the course of time.

In the meanwhile, we note that there is useful extra-parliamentary political comment on http://www.polity.org.za/article/da-geordin-hill-lewis-calls-for-debate-in-parliament-over-elitist-bee-codes-2015-05-08

Other articles in this category or as background on this website
http://parlyreportsa.co.za/bee/dti-earns-ire-parliament-bee/
http://parlyreportsa.co.za/bee/liquid-fuels-industry-short-transformation/
http://parlyreportsa.co.za/bee/one-year-implement-b-bbee-codes/
http://parlyreportsa.co.za/bee/b-bbee-codes-of-good-practice-far-onerous/

Posted in BEE, Earlier Stories, Facebook and Twitter, Finance, economic, Labour, LinkedIn, Trade & Industry0 Comments

Budget vote speeches: Out of touch with each other

Editorial….

DTI does flip flop on B-BBEE pointing…..

elephant and bayThere have clearly been were two big elephants in the room during budget vote speech time in the National Assembly over the last two weeks – Eskom and BEE.    Then, suddenly, with DTI reversing their decision to reduce B-BEE pointing award benefits for broad-based employment schemes – one of the elephants disappeared.  It was an amazing flip flop in government policy.

But in actual fact this represents no change, in reality – just simply the fact that the whole structure of what was proposed was seen by all as impractical, unenforceable and to industry, unacceptable.

Backstage dramas

Whether it was business and industry pressure that forced the change, the Chamber of Mines or even the trade union movement itself, after two surprising gazettes announcing reduced awards in terms of black empowerment for broad based shareholder schemes, including employee schemes so carefully Rob+Daviesworked out in the last two years, and the second gazette correcting the fact that such changes were not retrospective, what happened behind the scenes will never be known. We think it was minister Rob Davies himself who put his foot down.

In a private comment, when sympathising with the minister for having to reverse his department’s announcements so publicly, his answer was “When something goes wrong you have to put it right.”  We admire for that and told him so.

Energy issues remain at the core

As far as the first elephant in the room, the energy crisis, it remains.    Unusually, this year despite all the speeches, the amount of media briefings and portfolio committee debates, including the millions of rands spent on airfares with some forty odd departments and SOEs fielding full teams reporting, it was only the minister of energy, Tina Joemat-Pettersson, who really tackled electricity and the issue of Eskom – all the other ministers appearing avoiding the issue like the plague, even public enterprises.

Correcting the past

What indeed was noticeable, at portfolio committee level as well, that each reporting team and each minister seemed to be more anxious to report on transformation and state ownership issues, as if some very clear dictate had been received that the ANC was not delivering on its election mandate in these areas and this was really the main priority.

Whilst lip service seems to have been paid, and then only in some instances, to the need for foreign investment and issues of the country’s rating image, the lacklustre address by the minister of trade and industry gave only more credence to the belief that redress for past injustices was the only big elephant in their lives and in Union Buildings.

Transformation not economics at forefront

In the committees, where all departments have been reporting on progress towards annual targets, this now being the last quarter, the most important slide in any PowerPoint presentation (following clarity on the audit process) was always the racial makeup of the department concerned in terms of reaching transformation targets and what race ratios currently existed. The theme was obvious.

We have listened to many thousands of words spoken over the month and more is yet to come as we write, but it is all too evident that there is a massive discord between business and industry and President Zuma’s cabinet on priorities.

Final word

Trade and industry minister, Rob Davies, warned parliamentarians in his budget vote speech, when mentioning BEE matters , that members should  be aware that the President had indicated that the central task was to bring about radical economic transformation.      Which really said it all.

Posted in BEE, cabinet, Cabinet,Presidential, earlier editorials, Finance, economic, Fuel,oil,renewables, Trade & Industry0 Comments

DTI earns ire of Parliament on BEE

 

Lack of BEE transformation flagged….

plan BEEThe divergence of views on BEE between the parliamentary committee on trade and industry and the department of trade and industry (DTI)  heightened recently with committee chairperson, Joan Fubbs, demanding that within seven days a “technical explanation” as to why  DTI was not hastening speedy transformation within South Africa.

A full report on Broad-Based Black Economic Empowerment (BBBEE) had to be submitted. to all the members of her committee on progress, or the lack of it in certain areas and the reasons why,  she said, and this was to be submitted before the Christmas recess for further debate in the New Year first session.

Uphill presentations

After a presentation on the current position regarding BEE as a broad subject, Ms Nomonde Mesatywa – chief director of DTI’s BEE secretariat – ran into heavy traffic upon her failure to quantify the nature and amount of research that had been conducted on the success or failure of BEE and the total lack of data on its implementation in her presentation.

The governing party MPs bitterly complained regarding the “soft nature” of recent BBBEE legislation, including the recent BEE Amendment Bill and the powers and suspected lack of ability of the proposed BBBEE Commission to enforce any of the current legislation.

Ms Mesatywa went through the standard briefing for the benefit of newer MPs to explain that the Act had been amended and promulgated in January 2014 to ensure standardisation in reporting from all sources reporting across the economy; the BBBEE Commission having been established to monitor and evaluate BBBEE processes.

The new amendment, she said, aligned the anchor legislation with other legislation impacting on BBBEE and with the Codes of Good Practice.  All the provisions had come into effect on 24 October 2014, she said, except for the trumping clause (section 3), which had been deferred for 12 months and would come into force in October 2015.

DTI said the alignment of sector charters was at an advanced stage and included the construction, property, tourism, transport, financial, mining, chartered accountancy, forestry, agriBEE and IT charters.

Elite only benefitting

Committee members from both the opposition and governing party both lodged complaints that there was a public perception that it was only the black elite who benefited from BEE programmes and there was little factual evidence to the contrary that “ordinary black South Africans” were benefitting.

The Democratic Alliance said it was totally offensive that the state offered a reward to companies only if they complied with BEE regulations and if they did not do so, not only could they not do business with the state but also not with any other companies that dealt with state. The DA described this as “awful”.

The EFF was called to order for suggesting that economic transformation would only be realised “if the ANC was taken out of power” but it was the ANC who sought clarity from DTI on how the new mechanism of using a commission in terms of the new Bill could possibly monitor and evaluate compliance “to ensure that the Codes of Good Practice were taken seriously.”

Long term view

DTI responded on the basis that they had been “overseeing, monitoring, and evaluating black empowerment for a long time” and they wished to assure parliamentarians that they had the experience to do this.

With regard to research generally on the subject of BEE compliance, DTI said their the original survey of some ten years ago showed pretty dismal results at around “level four” but DDG Mesatywa said the latest surveys were on the DTI website and had risen to “level eight”.

The chair commented that such kind responses were vague and unhelpful and the nature and lack of adequate quantitative results was unacceptable and, rather than return for a further presentation in view of the Christmas recess, DTI were instructed to respond in writing to Parliament giving exact numbers on it success or failure, sector by sector, within seven days.

ParlyReport will ask for this document.

Other articles in this category or as background
http://parlyreportsa.co.za/bee/court-ruling-equity-quotas-affects-bee/
http://parlyreportsa.co.za/bee/liquid-fuels-industry-short-transformation/
http://parlyreportsa.co.za/bee/one-year-implement-b-bbee-codes/
http://parlyreportsa.co.za/bee/bee-comes-under-scrutiny/

Posted in BEE, Facebook and Twitter, Finance, economic, Labour, LinkedIn, Trade & Industry0 Comments

Karoo Fracking

Fracking, shale gas gets nearer

Mineral resources gives update on fracking, shale gas

In what appeared to be justification for cabinet’s support of the furtherance of shale gas exploration, director general of the department of mineral resources (DMR), Thibedi Ramontja, told Parliament recently that the discovery of gas deposits in the Karoo “was an exciting opportunity to create jobs and that this was going to make a difference to people’s lives in terms of the NDP”.

He was briefing the select committee on land and mineral resources on the department’s budget vote, his audience representing a different cluster and a more inclusive one than when DMR briefed the National Assembly’s portfolio committee the week before.

Whilst a gazette had been published in February 2014 imposing certain restrictions on the granting of new applications for shale gas “reconnaissance”, DMR said that current approvals did not yet authorise hydraulic fracturing itself.     If this was allowed, “certain amendments” would be made to the appropriate Act.

EIA to come

An environmental impact assessment would be completed in conjunction with the department of water affairs “within the second quarter of 2014/5” to determine “responsible practices” for hydraulic fracturing and to “provide a platform of engagement with stakeholders”.   DMR said that this process would be “streamlined”.

It was noted by DMR in their presentation to parliamentarians that both shale gas exploration and production, together with coal bed methane, will be authorised under environmental impact regulations.

Warning on BEE

The briefing on the DMR strategic plan for five years and this year’s budget vote for the department was preceded by a statement by the deputy minister of mineral resources. Again the warning was conveyed to the mining and petroleum industry that it was generally in default of the mining charter.

With the tenth anniversary of the charter now present, DG Ramontja said, findings by DMR indicated that whilst some targets had been partially achieved in terms of BEE and the charter, others were very much lagging. “Action will be taken”, she said.

Other articles in this category or as background
http://parlyreportsa.co.za//energy/shale-gas-exploration-gets-underway/
http://parlyreportsa.co.za//energy/move-by-minister-to-qualify-shale-gas-exploration
http://parlyreportsa.co.za//energy/fracking-regulations-enhance-safety/

Posted in BEE, Electricity, Energy, Enviro,Water, Facebook and Twitter, Fuel,oil,renewables, LinkedIn, Public utilities, Trade & Industry0 Comments

Back comes gender equality bill for re-think

Gender equality bill still on the cards…

The controversial Women Empowerment and Gender Equality Bill was withdrawn by the new minister of women, Susan Shabangu just before the recent short recess in Parliament.   The legislation in its present form would have obliged companies to progressively achieve 50% representation for women in top levels of management.

Business has termed the Bill as having clauses which are impractical, others unenforceable.

The Gender Equality Bill was pushed through the National Assembly (NA) just ahead of the March elections, having been tabled by former minister of women, children and people with disabilities, Lulu Xingwana.    However, President Jacob Zuma had not yet signed the Bill into law and has now obliged minister Shabangu.

She told the portfolio committee on women in the Presidency during her department’s budget vote presentations that the Bill had been tabled without sufficient consultation and would be re-introduced when more consultation had taken place.

Focus to change

susan shabangu2The revised bill would focus less on equal representation between men and women numerically, she said, and added that there had to be mechanisms to achieve “proper and effective representation” and that “excellence” had to be a qualification.

As the flagship project of previous minister Xingwana, the  Women Empowerment and Gender Equality Bill was surprisingly hammered through Parliament with a hefty ANC majority of the last government despite being rejected by all social partners in Nedlac, due to its “vagueness and ambiguity”.

The Bill stipulated that all public and also “designated bodies” nominated by the minister at the time would have to submit plans for progressively achieving 50% representation for women in their decision-making structures.

Criminalisation

The proposed fines are stated as a maximum of 10% of annual turnover for continuous offenders, whilst the directors or CEOs of designated bodies could be liable on conviction to imprisonment for a period not exceeding five years.   The Bill, as presently worded, overrides all other laws dealing with empowerment.

Subsequently, within the NA at final reading, ANC parliamentarians caused a failure to form a quorum, with DA members not attending on principle.  However, later, after ANC party whips applied pressure, it was passed by a small majority of hands.

There was strong opposition from business and industry at public hearings who complained that the Bill, which so heavily criminalised offenders, was at the same time both “impractical”, “unattainable” and “misguided in business terms”.

It was also submitted that there was in many cases no possibility of labour pools to meet such targets in many sectors over the time frame set by the Bill.

Other articles in this category or as background
http://parlyreportsa.co.za//bee/women-empowerment-bill-gets-new-minister/
http://parlyreportsa.co.za//bee/women-empowerment-bill-powered/
http://parlyreportsa.co.za//cabinetpresidential/womens-constitutional-rights-to-be-followed-up-at-law/

Posted in BEE, Facebook and Twitter, Public utilities, Special Recent Posts, Trade & Industry0 Comments

Liquid fuels industry short on BEE charter

Fuel industry attacked on BEE …

On the subject of black economic empowerment  (BEE), acting director of the department of energy (DoE), Tseliso Maqubela, told Parliament, before it went into short recess, that the major target for his department was to ensure a more immediate transformation of the liquid fuels industry.   Economic transformation in the energy sector was a top priority, he said, and he told the portfolio committee on energy that much more was needed to be done by this sector to improve the situation.

This was reminiscent of similar complaints made of the mining industry under the same BEE charter by the director general of the department of mineral resources.

Victor Sibiya said, as DoE’s  deputy director of petroleum products, also acting, that one of the three pillars of his department’s programme was compliance, monitoring and enforcement and whilst 30% of petroleum licensing permits showed around a 50% compliance factor this was not enough and new legislation was on its way to “toughen up” on B-BBEE regulations.

New code called for

The challenge at present, he said, was that the process of penalisation was far too cumbersome and did not deal sufficiently with repeated offenders.   A revised code was urgently required, he added.

On a separate subject, Sibaya said that as far as the basic fuel price (BFP) was concerned all calculations were based as if the final product had been produced in South Africa.  DoE was at work, he said, on a paper studying the various elements that contributed to the BFP, particularly with regard to smoothing out fluctuations to the consumer and attempting to align municipalities to the magisterial zones which governed the distribution.

Retail margins were also being studied in a second round of estimations working with operations carried out by what was referred to as the “DoE model service station”. Other factors included the shortly to be published biofuels price schedule which would govern the mix with petroleum products.

Reaching out

Further to economic transformation programmes, Sibaya spoke of a programme to establish fuel stations in deeper rural areas supplying other forms of energy needed by households such as LPG and extending services to include food, household retail goods and community services to improve quality of household life amongst the poor, another NDP priority.

In broad terms the acceleration of LPG supplies to rural areas, in fact to all areas in general, would contribute greatly, he said, to this objective.

Acting DG Tseliso Maqubela said he would respond to the parliamentary enquiry on the volatility of fuel prices in a prepared paper shortly, as this issue was also in the process of being studied at present. When asked about the levy on purchase of vehicles and where the funds went, Maqubela said this was in national treasury’s domain and was “probably an attempt by treasury officials to mitigate on carbon emissions”.

Refinery decisions

Touching on petroleum issues, DG of energy policy, planning and clean energy, Ompi Aphane, told the committee that a decision would be taken during 2016 on expanding oil refining capacity in South Africa based on the conclusions of the liquid fuels infrastructure plan.

Contributing to the basic costs of energy at the moment in South Africa, he said, were current world tensions particularly in the Middle East.   Self-dependency, however, was unfortunately only a long-term goal, he said.

A similar plan to increase refining was an increase in gas supplies based on the current gas usage master plan that had been started and this programme would be concurrent with an urgent expansion of gas storage facilities in the country.

Minister weighs in

Most of parliamentary question time was occupied by the new minister of energy, Tina Joemat-Pettersson, who spoke broadly on energy issues; the fact that she recognised the need for urgent decisions by her ministry; and the necessity for her recently launched ministerial advisory committee on energy to receive input “in order that the opinions of all stakeholders can be considered.”

Such a ‘brains trust’, she said, should also include representation from the portfolio committee on energy itself.

Other articles in this category or as background

http://parlyreportsa.co.za//?s=bee+liquid+fuels

http://parlyreportsa.co.za//bee/eskom-black-owned-coal-mining/

 

 

Posted in BEE, Energy, Facebook and Twitter, Finance, economic, Fuel,oil,renewables, LinkedIn, Mining, beneficiation, Special Recent Posts, Trade & Industry, Transport0 Comments

Women Empowerment Bill gets new minister

Women Empowerment Bill in the queue….

Under the previous government, the improbable Women Empowerment and Gender Equality Bill, which contemplates tough laws to enforce gender transformation compliance in the private and public sectors, was virtually bulldozed through the National Assembly (NA) to be implemented as early as 2015. The Bill was promoted by former minister of women, children and people with disabilities, Lulu Xingwana, and looked suspiciously like a last minute attempt to retain her cabinet post.

The Bill now sits for enactment but it may be some time before the new minister of the newly formed ministry of women, Susan Shabangu, who takes over the re-named ministry, gets around to implementing it by regulation should President Zuma add his stamp. The new ministry of women is attached to the President’s office.

Decision making women

Under the new proposed legislation, government departments and private entities will be required to fill a minimum of 50% of all senior and top management positions, described in the Bill as “decision making positions”, with women.

As Parliament closed, the Bill went to the National Council of Provinces (NCOP) for concurrence, the NCOP running to extended period of a fortnight to allow the passage of some ten Bills to finality and presidential assent before the elections.

Unusually, this particular Bill had been returned to the NA portfolio committee for approval in respect of a couple of minor alterations.   Consequently, the Bill still remains as outstanding business for the President to consider signing.

Limping through

Opposition parties have described the Bill as “unworkable and unachievable” and voted against the Bill in the NA after the Bill had to be introduced twice by the Speaker, the chamber initially failing to form a quorum.   ANC members had to be found to put their hands up.

This Bill, with a number of others, represented a handful of pieces of legislation that were “fast tracked” before closure, ANC party whips using their majority position in the NA.

Resources limited

As far as the practicality of the Bill is concerned, opposition members have repeatedly pointed out that there is neither the labour pool in many industries and sectors to meet such targets as envisaged, either now or in the future, and have queried the fate of male black employees, already under siege in the job market to provide for families.

Nevertheless, minister Xingwana was furiously attached to her objectives after Cabinet’s approval of the Bill, despite a Nedlac rejection.
ANC chief whip, Stone Sizane, issued (unusually for a party whip) a statement following the Bill’s approval by the NA before it went to the NCOP, having so energetically guided the legislative voting.   He said, “The Bill represents a significant turning point in our endeavour to liberate women from all forms of discrimination and oppression.”

“It is firmly in line with the provisions of our constitution and will enforce 50% gender representation, thereby empowering women by ensuring that they participate meaningfully in our economy.”

Criminalization

Sizane concluded, “Unlike the existing legislation on women empowerment and gender equality, which has suffered challenges such as lack of enforcement and implementation, this Bill provides for a fine of about 10% of companies` annual turnover and/or imprisonment for non-compliance.”

The Bill also requires the relevant minister to annually publish a report to recognise those who comply with the Act and name and shame those who do not.”

Other articles in this category or as background
http://parlyreportsa.co.za//bee/women-empowerment-gender-equality-bill/
http://parlyreportsa.co.za//bee/women-empowerment-bill-powered/
http://parlyreportsa.co.za//bee/employment-equity-act-regulations-cause-shock/

Posted in BEE, Facebook and Twitter, LinkedIn, Public utilities, Trade & Industry0 Comments

Mineral and Petroleum Resources Bill halted perhaps

Mineral and Petroleum Act extends State rights…

New MPRDA starts with 20% free carry, maybe more….

oil rigThe Mineral and Petroleum Resources Development Amendment Bill, the legislation that will give the state a right to a 20% free carried interest in all new exploration and production rights in the energy field, has been passed by Parliament before it closed and sent to President Zuma for assent. According to press reports, new minister of mineral resources, Ngoako Ramatlhodi, may have halted the process by request, however, in the light of public sentiment and opposition moves to challenge the Bill’s legality.

Section 3(4) of the Mineral and Petroleum Resources Development Act (MPRDA) currently states that the amount of royalty payable to the State must be determined and levied by the Minister of Finance in terms of an Act of Parliament. This Act, in force, is the Mineral and Petroleum Resources Royalty Act 28 of 2008 but considerable uncertainty always surrounded how this would work and what was actually meant.

Any uncertainty has now been removed and the MPRDA amendments now passed have brought to an end a process which started when the draft Bill was first published for comment in December 2012.

Beneficiation of minerals included

mine dumpThe legislation seeks to “regulate the exploitation of associated minerals” and make provision for the implementation of an approved beneficiation strategy through which strategic minerals can be processed locally for a higher value – the exact definition of the word “beneficiation” yet having to be defined.

Importantly, the new Act will give clear definitions of designated minerals; free carried interest; historic residue stockpiles; a mine gate price; production sharing agreements; security of supply and state participation generally.

Stockpiles and residues affected

The new Act also states that regulations will apply to all historic residue stockpiles both inside and outside their mining areas and residue deposits currently not regulated belong to the owners. Ownership status will remain for two years after the promulgation of the bill.

In addition to the right to a 20% free carried interest on all new projects, ownership by the state can be expanded via an agreed price or production sharing agreements.

The NCOP concurred with Bill on its passage through Parliament and made no changes.

Legal commentators note that the Royalty Act, at present in force, triggers payment in terms of the MPRDA upon “transfer”, this being defined as the consumption, theft, destruction or loss of a mineral resource other than by way of flaring or other liberation into the atmosphere during exploration or production.

The Royalty Act differentiates between refined and unrefined mineral resources as “beneficiation”, this being seen as being important to the economy; incentives being that refined minerals are subject to a slightly lower royalty rate.

Coal and  gas targeted maybe

Nevertheless it appears, commentators note, that in terms of mineral resources coal is being targeted and also zeroed in on is state participation in petroleum licences. Others have pointed to the possible wish of government to have a state owned petroleum entity such as PetroSA to be involved fracking exploration.

Earlier versions of the Bill entitled the State to a free carried interest of 20% and a further participation interest of 30%, with the total State interest capped at 50%; however, the version that Parliament approved removed the reference to a 30% participation interest as well as the limit of 50%, effectively giving the State the right to take over an existing petroleum operation, law firm Bowman Gilfillan explained in a media release earlier this month.

Democratic Alliance (DA) Shadow Minister of Mineral Resources, James Lorimer said in a statement that the Act, “would leave the South African economy in a shambles”, adding that this would lead to people losing their jobs.

The DA has said it has now begun a process to petition President Zuma, in terms of Section 79 of the Constitution, to send this Bill back to the National Assembly for reconsideration,” he said.

Chamber opinion differs

Surprisingly, the Chamber of Mines stated that it “generally welcomed and supported” the approval of the MPRDA Amendment Bill, adding that it believed significant progress had been made in addressing the mining industry’s concerns with the first draft of the Bill, published back in December 2012.

Clearly the mining and petroleum industries particularly gas exploration industries, both of whom have separate equity BEE charters, are still very much at odds on the effects of the promulgation of such an Act, as is DA and the ANC.

Other articles in this category or as background

http://parlyreportsa.co.za//bee/mprda-bill-causes-contention-parliament/

http://parlyreportsa.co.za//bee/major-objections-minerals-and-petroleum-resources-bill/

Posted in BEE, cabinet, Energy, Facebook and Twitter, Fuel,oil,renewables, Justice, constitutional, LinkedIn, Mining, beneficiation, Public utilities, Trade & Industry0 Comments

New Employment Equity Act gives shock

Employment Equity regulations published…

menfolk  The reality of the Employment Equity Amendment Bill passed in Parliament last October, now an Act, is beginning   to kick in with the enforcement of  regulations which, of course, are extra-parliamentary. The recently published regulations are not what were expected on the race issue, insofar as equity returns are concerned.

Oddly enough there were few objections or queries on the Employment Equity Bill when the draft Bill was presented for public comment by the department of labour (DoL) over eighteen months ago and the legislation looked destined for an easy passage through Parliament.

1994 critical date

In an unusual turn of events, the Employment Equity Bill, when introduced into Parliament, allowed for foreigners whose applications for citizenship were turned down before 1994 on the basis of their skin colour and such persons can be included in employment equity (EE) returns in future. This occupied much of the discussion in Parliament.

Fines were proposed as related to turnover of the entity in question, which could fall into eleven categories varying from agriculture to manufacturing, quarrying and mining to catering and transport and from wholesale, trade and commercial agencies to finance and business services.  Electricity, gas and water were mentioned, as was construction and community and personal services – all with total annual turnover thresholds given.

Worry was criminalisation

Most public comment in the parliamentary public hearings warned of the Employment Equity Bill criminalising business and strong objections were voiced on this issue.

Furthermore, the provisions of the Bill allowed for all white, Indian and coloured women who had been gender disadvantaged in terms of statutory law at any stage will also qualify for inclusion in terms of equity reporting. The Employment Equity Bill was the third in a raft of four new labour bills presented to Parliament last year.

In its briefing to Parliament before the parliamentary public hearings, DoL suggested to parliamentarians that “business and industry has been riding roughshod over the law which had been unrevised for nearly 15 years and it was time now that provision was made in their budgets for considerably more than the negligible fines of the past.”

National demographics the decider

At the time of the Bill, it was assumed by most in the public hearings that the reference to “equity in terms of national or regional demographics” would mean that employers could set equity targets or make plans as called for in what could be interpreted as reasonable and according to the geographic area each company or entity was located.

The Bill said that “guidance would be given” on this provision by the DoL. The Bill was passed and became an Act with, as always happens, the regulations awaited – a matter then purely between DoL and the employer.

It appears from press reports that the regulations “giving guidance” on the issue of race demographics are a far more contentious item than the issue of the fines objected in the public hearings in Parliament.

Still applies to min of 150 employed

The employment equity plan that each company must draw up, it is reported, now call in terms of the regulations issued for the targets to represent national demographics, not regional demographics as was expected, but still wherever the entity is of 150 employees or more wherever that entity is located.
It is unlikely that this matter will be debated in Parliament again, since a legal challenge might only result in that particular regulation being revised – unless of course the whole Bill is overturned constitutionally, which would seem most unlikely.
Previous articles in this subject
http://parlyreportsa.co.za//bee/employment-equity-amendment-bill-looks-set-easy-passage/
http://parlyreportsa.co.za//labour/employment-equity-bill-criminalises-offenders/
http://parlyreportsa.co.za//bee/turnover-fines-employment-equity-breaches/
http://parlyreportsa.co.za//bee/court-ruling-equity-quotas-affects-bee/

Posted in BEE, Labour, Trade & Industry0 Comments

Women Empowerment Bill being powered through

Women  Equality Bill could pass on emotional ride….

Further debate took place in Parliament before the Bill was passed to the NCOP for concurrence on the Women Empowerment and Gender Equality Bill, the discussions centering mainly on the minister’s powers to investigate and call for the plans of government departments, state utilities and certain public entities, as yet undefined, to achieve the objectives set out in the Bill.

It appears from reports that there are still minor amendments to be made according to the NCOP and the only way to get the Bill passed would be to recall Parliament.

50% gender equality

The objectives of the Bill are stated as a 50% gender equality provision in all private and public entities within one year and failure to satisfy the minister on attempts to meet the objectives of the Bill, or provide evidence that success in that direction was a practical reality, could result in fines or even or even imprisonment being imposed at the minister’s discretion.

Opposition member, Helen Lamoela (DA), said she and her party failed to even understand why the department of women, children and people with disabilities, which had no budget to implement and police such legislation or had the capability or even legal knowledge to regulate for such matters, had tabled the Bill as the document before them had no hope in passing constitutional muster.

ANC members maintained that because women’s equity in “decision making processes” was not even being remotely achieved as far as meaningful participation in the economy, that this is why such radical moves were necessary.

Rural needs of women

When asked if there should be two Bills, one for the empowerment of rural women where traditional laws gave all the benefits of land and ownership of goods to men and another Bill deal with women in “decision making positions”, the ANC rejected such a proposal saying that women in general in South Africa had to be immediately brought into the mainstream on a holistic basis.

They said that as there was no apparent move on the part of either business or government to achieve this, the department believed that in terms of their mandate, such legislation was necessary.

More than just B-BBEE

The DA reminded the committee of the BUSA submission of the effect that such a decision would have on both foreign investment, and an already overburdened compliance sector of South African business. DA, IFP and FF+ members said they were determined not to walk out of the meetings but rather try and convince the ANC and chair of the committee that not only did the Bill have no constitutional rationale but was bad for South African investment programmes.

The proponents of the Bill had already agreed to exclude churches at a request of the ACDP. It appears that the Bill failed the Nedlac process. The Democratic Alliance has focused on the effect such legislation would have on the formation of political parties.

Male jobs at risk

Nobody it appears, as one commentator noted, has focused on the effect of male black employment, already under extreme pressure to provide family support.

Previous articles in this category
http://parlyreportsa.co.za//bee/employment-equity-amendment-bill-looks-set-easy-passage/
http://parlyreportsa.co.za//bee/court-ruling-equity-quotas-affects-bee/
http://parlyreportsa.co.za//bee/one-year-implement-b-bbee-codes/

Posted in BEE, Cabinet,Presidential, Facebook and Twitter, LinkedIn, Trade & Industry0 Comments

Women Empowerment and Gender Equality Bill

50% equity Bill for women headed for law….

black white womenThe Women Empowerment and Gender Equality Bill, drafted by the department of committee on women, children and people with disabilities and tabled before Parliament, demands 50% equity in all businesses for women where “decision making processes” are concerned.

The Bill  appears to have been passed by cabinet, although not making it through first base with NEDLAC. Having had such a response by cabinet, presumably from the President himself, it is highly possible that the Bill will be powered through this last parliamentary session of the present government. The Bill was tabled by minister Lulu Xingwana.

BUSA strongly objected

In its parliamentary phase after tabling, Business Unity SA (BUSA) objected to the Bill in a submission stating that there was absolutely no need for such legislation when laws were already in place covering black equity in which the subject of gender equity or equality was adequately covered.

BUSA argued that in terms of the suggestions made in the Bill, called the Women Empowerment and Gender Equality Bill, such a Bill would attempt to override legislation already in place such as the B-BBEE Act and Employment Equity Acts, this particular Bill calling for 50% equity for women in “decision making areas”.

No labour pool for such law

BUSA called the Bill “unacceptable and unrealistic”, adding that in most cases the labour pool from which the particular type of work envisaged would not even contain a 50% reserve of women. The DA said the Bill was probably unconstitutional.

Some attempt to justify the Bill was made by the department on women, children and people with disabilities at committee level when they said the Bill would not have been approved by cabinet unless government was serious about the fact that only 20% of top posts in business were occupied by women.

A spokesperson said for the department subsequently said that the Bill might initially apply to possibly as yet undefined bodies such as state boards and political formations, which again the DA referred to as “cannibalising” existing state institutions.

The Bill never made it past the NEDLAC process last year but in the last days before Parliament closed in 2013, the Bill appeared on the tabled list and comments were called for by Parliament in the early portion of the 2014 session.

The Bill has now been debated in Parliament, that debate and the issues involved being with our clients before posting on this site. The Bill will undoubtedly be passed in the light of the passion by the minister for the Bill, with opposition members across the spectrum voting against or abstaining.

Previous articles referring to this subject

http://parlyreportsa.co.za//bee/employment-equity-amendment-bill-looks-set-easy-passage/
http://parlyreportsa.co.za//bee/court-ruling-equity-quotas-affects-bee/
http://parlyreportsa.co.za//labour/employment-equity-bill-criminalises-offenders/

Posted in BEE, Facebook and Twitter, LinkedIn, Public utilities, Trade & Industry0 Comments

Equity quotas court ruling affects BEE legislation

Employment equity quotas as numbers only struck down….

On equity quotas, the Employment Equity Act, as anchor legislation, and thus the recently approved Employment Equity Amendment Bill, has come under query as a result of a recent case heard in the Supreme Court which has found the Act is in default where numerical formulas only are applied to racial quotas in order to comply with regulations.

In fact numerical quotas are illegal, said the Court. In dealing with case before it, the Court found that this had been applied, the appellant failing to achieve an appointment based the fact that racial quota targets had been applied in terms of black empowerment legislation.  The defendant was the minister of police.

The court further found the Act in contradiction of itself by being unfair if it regulated itself to achieve employment equity with just numbers, as distinct from “preferential treatment and numerical goals” being applied, as has been applied in government circles elsewhere.

A whole host of applications applied by many government departments would therefore seem to be in contravention of the Act, since many departments rigidly use number quotas to achieve equity targets across a wide range of the public service.

Posted in BEE, Cabinet,Presidential, Facebook and Twitter, Justice, constitutional, Labour, LinkedIn, Public utilities, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Electricity connections not making targets

No hope of meeting Zuma’s promises…

elec poleThe inability of municipalities and local government to bring electricity to the poor and for the department of energy (DOE) to meet its promised target of electricity to all households by 2015 was a subject which dominated the DOE’s annual report to Parliament recently. New Minister of governance and traditional affairs, Pravin Gordhan, will have this issue before him as he tackles local government problems as will new minister of public enterprises, Lynne Brown.

Ms Nelisiwe Magubane, DG of DOE was reporting on the activities of her department for the 2o12/13 period and neither the minister of energy, Ben Martins, or his deputy, was present, much to the chagrin of portfolio  committee energy committee chairperson, Sisi Njikelena, who reported angrily on the subject.      DOE was reporting on its annual report and second quarter achievements.

Success with avoiding Middle East for oil

In noting that the year had been dominated by fluctuating oil prices, Ms Magubane noted that South Africa had succeeded in switching 41% of its oil imports to the African continent.

DG Magubane also reported that the electricity supply situation had improved in the country and the department’s own household electricity connection programme had also improved, mainly thanks to Eskom, but there was a large backlog that still existed due to lack of accountability by municipalities. This was a worrying factor for the country, she said. On this subject, further reports followed.

Other DOE targets met

Dr Barnard

Dr Barnard

On clean energy as far as the year was concerned, she reported that in August financial close had been received from twenty eight of the independent power producer (IPP) bids: the biofuels blending regulations had been drafted; the draft pricing arrangements started; and a nuclear safety report compiled and submitted as a result of lessons learnt from the Fukushima disaster.
 Dr Wolsey Barnard took up the issue of DOE’s poor record on electricity connections and said that bearing in mind the lack of skills and training at local government, it “was a miracle that South Africa had achieved so much”.

Aside from the fact, he said, that the government financial year was different to the municipal year, which made a mockery of funding programmes and targets, he said dealing with municipalities was “extremely difficult”  but nevertheless “for each seventy seconds of each day there was a connection some here in South Africa”.

Treasury must ring fence local funding

On the problematic relationships with local government, Dr Barnard said DOE was doing as much as it could “but you can pull a rope but you can’t push it and that was the trouble in dealing with local government officials”.   He said he looked forward to the day when National Treasury’s promised Bill “ring fencing” funds was promulgated “and then we might get somewhere”, he said.

He noted that each municipality had to sign a contract to get funding in the first place, providing business plan, “but sometimes we get to a place to install for a lot of homes built and there is no sub-station or any hope of connecting to the national grid”.

Cabora Bassa dam debt at R1

nelisiwe magubaneMs Magubane confirmed that in the annual reports a loan to Mozambique for the Cabora Bassa dam had been written down to R1 with the permission of Treasury. This loan was in respect of money loaned in the ‘sixties and it was clear that the Mozambique government could not pay. However, the question of re-payment of this loan would be re-raised, she said.

On queries why there seemed so little interest in gas exploration by government in Mozambique, whereas other countries seemed to have “got their foot in first”, Muzi Mkhize, chief director of hydrocarbons, said that “unlike other countries, we do not subsidize our national oil exploration effort and, in any case, the quest of dealing with countries was a foreign affairs matter and country to country relationships had to come first.”

SA to meet Mozambique on gas exploration

Sisi Njikelana said that this was a totally unsatisfactory answer and called on Mkhize for a better explanation to his committee.  Mkhize admitted that South Africa was “meeting Mozambique on a government to government basis on gas exploration matters in mid-October”.

When asked what had happened to the nuclear safety report, deputy director general of nuclear, DOE, Zizamele Mbambo, said that this was a security document but it had been acted upon.

The Eskom representative was asked to speak on the subject when a question was raised about the Koeberg Nuclear plant by a Cape Town MP, and the Eskom official reported that a “fortnightly nuclear safety committee met in the area with all representatives present” and that the meeting was chaired by a person drawn from the local community.

Refer to articles in this category
http://parlyreportsa.co.za//public-utilities/municipal-free-basic-services-slow-build/
http://parlyreportsa.co.za//energy/dpe-

Posted in BEE, Electricity, Energy, Enviro,Water, Facebook and Twitter, Finance, economic, LinkedIn, Public utilities, Trade & Industry0 Comments

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