Tag Archive | legislation

Zuma goes for traditional support with expropriation


Session ahead may bring clarity on expropriation…….

NAIt is a difficult time for business and industry to establish exactly where they are in terms of the legislative environment in South Africa, land expropriation and state or BEE participation being mainly the issues.  However, the cabinet must be aware of the need expressed in many circles for more certainty in terms of the investment climate.

The Bills held back by the Presidency for re-consideration or signature are re-emerging slowly back into the public sphere.   Aside from the highly controversial Traditional Courts Bill adding power to the arm of President Zuma’s supporters in rural  leadership roles but offending women’s rights groups, now re-tabled in Parliament in a different form, as a section 76 Bill, is the Expropriation Bill.

Being a 76 section Bill means that the proposed changes and the formation of a state valuator’s office as thezuma traditional final arbiter on land restitution will have to be debated in all nine provincial legislatures and a mandate provided to the National Council of Provinces to gain concurrence with any vote on the Bill taken in the National Assembly. 

It is interesting to note that some time ago, President Zuma let it be known that he would also like to see this Bill considered by the House of Traditional Leaders. This is probably in the light of the debate now emerging that traditional chiefs were not consulted properly, if at all, in terms of the Restitution of Land Rights amendments.

Serving notice

Crucially, the Expropriation Bill still seeks to allow any ‘expropriating authority’ to take property by serving a notice of expropriation on the owner stipulating the value the state will pay, presumably according to the state valuation if there has been an appeal.

Commentators have noted that the new Bill differs in that the state may then serve a further notice of expropriation, which could be less, more or not necessarily revised at all, and the owner will be deemed to have accepted that transfer of land to the state unless the owner commences litigation within 60 days.

The short amount of time to respond and appoint and brief counsel and the fact that litigation, a highly costly process (costs being to the owner not the state), will no doubt be an issue debated extensively in Parliament. At this moment the main opposition party has been caucusing on the Bill. The fact that the Bill will now have to be debated in all nine provinces will leave a fluid situation for some time yet.

Struggling to produce

The Protection of Investment Bill remains an unknown quantity. Speaking to the DTI legal advisor, all he could say was “We are struggling with it”. 

Similarly, no tabling notice has been published with regard to the Private Security Industry Bill.

No energy  outcome

At the time of writing the “Five Point Energy Plan”, promised by the cabinet “war room”, has also not been presented to Parliament, the minister of energy advising all that it was necessary to have first a trip to the DRC and discuss the Grand Inga Hydro project.

Instead of her unadvised non-appearance in Parliament, a presentation by the department of energy took place, monitored in this report. What did emerge however was that future regarding the intended energy mix is also very fluid, there clearly being a division of interest in what is necessary to bring about in the short term better service delivery to the poor and in the longer term the needs of investors.

Traditional support

Time and time again, since his state address to the nation, President Zuma, where land matters are concerned, has made reference to the Council of Traditional Leaders, the majority party having no doubt realised that this base of power can either be pacified or radicalised – a very sensitive area and where the least service delivery by government occurs.

In his speech opening the National House of Traditional Leaders, he encouraged traditional leaders to take advantage of the 2013 Restitution of Land Rights Act as amended and rushed through at the end of the last Parliament and for them to put in claims.

The amendment Bill passed reopened the window for lodging restitution claims, but retains the restriction that dispossession must have taken place after 1913. The hints by the President in subsequent days in further briefings that the date of 1913 “is negotiable” have led to further claims being notified some of them apparently going back many hundreds of years. 

Once again, this will only be finalised when parliamentary debate finally takes place as the issue is bound to be raised but the whole matters adds to current uncertainty.

Hole in the pocket

Meanwhile the budget for what can be paid out in the form of restitution has been decided by minister of finance Nene and was presented in the last budget to Parliament in the current session.

President Zuma’s reference in Parliament to land held by foreigners in the state of nation address produced an unfortunate atmosphere which was somewhat mollified by off-the-record remarks by ministers to the media but no legislative clarity for Parliament to consider has emerged.

Indeed, a difficult time for business and industry, not forgetting that the Eskom issue is about to be raised again in forthcoming portfolio committee meetings in the coming week, hopefully bringing some clarity to the issue of reliable electricity supply.

Editorial only

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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.”


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.”

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State Attorney Bill introduces Solicitor General

State Attorney Bill part of jigsaw transforming legal system…

Justice minister, Jeff Radebe, during the closing days of the last government, stressed that the State Attorney Bill and appointing South Africa’s first Solicitor-General is part of  the department of justice plan for the transformation of state legal services.

A Policy Framework for the Transformation of the State’s Legal Services was published for comment as far back as 2012 and Minister Radebe said the changes in the judicial system, and the role of the judiciary in the developmental South African state, has been part of his ministry’s role in the past five years.

The department’s policy framework aims to “develop legal skills in the private sector through the equitable outsourcing of legal work to previously disadvantaged individuals in order to redress the imbalance of past discriminatory practices in the legal profession and the state”, this particular Bill being part of the process.

The Bill extends this framework to include:

•    The department to include an office of the state attorney and its branches
•    All such state entities to be subject to Public Finance Management Act
•    Private legal firms and legal practitioners contracted by the state

According to the Bill’s memorandum, a priority intervention is to “consolidate and integrate services within the Department under a new head in order to ensure that litigation against and on behalf of the State is well managed”.

Minister Radebe said, “The Solicitor-General will be the State’s chief legal adviser in all civil litigation, similar to the role of the National Director of Public Prosecutions in criminal matters”. The bill also calls for a re-arrangement of the offices of state attorneys and allows for their appointment.

The Bill was concurred to by the NCOP and the State Attorney Bill now goes to the President for assent.

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Parliament closes with many Bills outstanding

The last dash…..

Houses_of_Parliament_(Cape_Town)As the ANC put it so succinctly on their website, currently there are twenty five Bills before National Assembly (NA) committees; plus four returned to the NA from National Council Of Provinces (NCOP) for concurrence; plus three on the NA order paper for second reading debate; and eleven before NCOP committees. “We believe Parliament should give special attention to ensure they are passed into laws”, they said. Time clearly is of the essence.

Two weeks before Parliament closed therefore there were forty odd Bills which, in the normal process, should be passed before the elections so that the current government, who tabled them, can see finalisation of their intent.

SONA promises “radical” legislation

Parliament has now been through the critical period of the State of Nation Address during which President Zuma promised “more radical Bills with the coming of a new government”; a Budget which was neutral to the point of being understated and, now, a rush to get through a raft of legislation before the current session of Parliament ends.

The usual warning to forgive political rhetoric in the hectic period before elections is this time tempered by the concern that the “fast tracking” of legislation can lead to laws, and consequently regulations, that have either unintended consequences or are overlaid with the need to achieve political ends without regard to business consequences, or the need for free flow of foreign investment.

There are two schools of thought on this.  One is that South Africa must lead others in the fight to achieve both redress for the past and correct the imbalance between rich and poor. The other is that to achieve growth and create jobs, the private sector has to flourish and feel comfortable in its environment.

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Parliament gears for elections in South Africa

The last of the old order

national assemblyIt is a time of change in South Africa when its Parliament has to consider elections and when politics tends to take over the tiller on the ship and the various captains of the political parties call their followers together to make up their minds on their future; how to compete in the next election and what the pecking order will be in each party.

It is also a period of much posturing and dangerous economic rhetoric and, as a result, a whole lot of cliff hanging goes on in the area of foreign relations and the banking world. Hopefully countries outside our borders will ignore most of what is said on the basis of the fact that this is exactly the same that happens in their own countries at election time, should they be democratic institutions of course.

So, for a while over the Christmas period and leading up to it, Parliament is forgotten.

Party conferences all set to chose

At this moment, parliamentarians are now thinking only of the part they will play in various political conferences and the newspapers now take with extraordinary headlines as the various new personalities emerge, say vote catching things and personality issues emerge, such as the Thuli Madonasela matter, which involve in-fighting and posturing.

Meanwhile, minister’s lose interest in governing and government departments just soldier on, trying to meet their third quarter budget targets for the last budget of the old government. Watching minister Joemat Petersen address Parliament just recently, one realizes that ministers do not really care if people read newspapers or not.

One more hurdle

In South Africa, we shall see little change in January/February 2014 in Parliament with the same 400 parliamentarians easing their way back into the seats of the National Assembly and the 90 into their seats in the National Council of Provinces, in the knowledge that they know at least where they stand with their own parties but not with the electorate.

The last parliamentary session of the expiring government which gets going for earnest in early February is always an odd one, as the parliamentary machine tries to clear all legislation through Parliament, bearing in mind that the governing party will put fast-tracking emphasis any legislation that gets votes and debate endlessly that which does not.

It is the new government after April that will have the thorny job of sorting out some of the most contentious issues issues, mostly on energy, environment and black empowerment, introducing themselves to the existing government departments working on the last mandates provided.

Hot issues

Sadly some of the most serious issues such as the mess in home affairs; the lack of getting anywhere on education; the inactivity of human settlements and the vacuum in health will take much longer that even one more four-year period of government to sort out, so much of this will be put on the side burner, as it were, in a political sense.

Nobody will want to discuss these subjects before the elections much other than answer embarrassing questions put the ministers in the question and answer system, which again we shall monitor.

Overwhelming backlog of legislation

Meanwhile there is an overwhelming backlog of promised legislation on all issues in the pipeline as South Africa heads towards the most important budget statement it has ever had in the light of global economic tensions.

Tracking and monitoring the last session in Parliament will be a mighty challenge – that period being from the end of January until whenever the election is declared – and establishing what is stormed through and on what basis, and what issues are carried forward for possible new chairpersons of parliamentary portfolio committees to tackle in a new government.

Working on the unlikely basis that not all chairpersons of the parliamentary portfolio committees will necessarily be ANC but that there will be a considerable number of changes in what members serve on what committees in the future, their exit statements from the committees will be interesting.

Furthermore, what global financial situation faces the last parliamentary situation in January/February before the budget provides much food for thought.

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