Archive | Justice, constitutional

Pravin tackles COGTA intervention at local level

 COGTA getting somewhere with municipalities…..

pravin gordhan MTBSIt is quite apparent why the seemingly impossible task of integrating local, provincial and national government service has been given to minister Pravin Gordhan of cooperative governance and traditional affairs (COGTA). He seems quite determined that all provinces and municipalities have to deliver on their constitutional mandate.

His department of cooperative governance (DCOG) recently updated Parliament on the current situation, led by some opening remarks by the minister himself.   He went straight to the nub of the issue by stating that section 139 of the Constitution provided for intervention by the relevant provincial executive if a municipality could not or did not fulfil an executive obligation.

First steps

Whilst the Local Government Reform Act, passed in 2014, has helped considerably by refining local electoral areas nationally down to 137, whilst 95 municipal districts have been designated in most cases to correspond with electoral areas. Thus, more representative structures have been established although some suspected at the time this was an election ploy.

Stabilisation of local government was the key, said minister Pravin to parliamentarians, and the process of “Back to Basics”, one of the 16 SIP strategic items on the list of the National Development Plan, was the basis of the department’s 2015/6 annual performance plan. This to ensure municipalities performed in their dealings with local government at the coal face.

Minister Pravin said, “Local government plays a key role in determining whether people live with dignity and whether they are able to access economic opportunities, consequently contributing to the overall development of the country”.    Part of COGTA’s mandate, he said, was to understand and support the development of intergovernmental relations in all three tiers of government.

New Bill to make third tier accountable

vusi madonaselaVusi Madonsela, DG of DCOGTA, advised that they were “aiming to build accountability for performance in local government systems by setting and enforcing clear performance standards by March 2019. To this end a new Intergovernmental Monitoring, Support and Intervention (IMSI) Bill would be processed through Parliament.

The performance of municipal public accounts committees (MPAC’s) therefore in all “dysfunctional municipalities as well as municipalities with adverse and disclaimer opinions would be monitored and enforced”, he said.

Changing attitudes to debt

Madonsela also said, “The culture of payment for services would be encouraged nationally with campaigns” and part of DOCG’s task was to improve the ability of at least 60 municipalities to collect outstanding debt. He named other targets such as to strengthen anti-corruption measures by 2019 and to have achieved a full local government anti corruption tribunal systems working.

He also said DCOG would start with 12 districts to develop integrated development plans and eight cities and towns would also be supported and monitored in developing long term strategies and proper spatial development programmes.

Skills always the problem

Opposition members called on COGTA for better performance by local government training SETAs. Many institutions were conducting training programmes for councillors but in the process had found that many councillors literally have no skills or formal education. Madonsela responded by saying there were now regulations being passed to weed out unqualified persons and those with false CVs.

Minister Pravin agreed that some of the factors that led to dysfunctional local government structures included political instability and problems with service delivery and institutional management inability.  Councillors were nominated and appointed by their political parties, he said, and “perhaps it should be a conversation amongst MPs on how councillors should be appointed.”

Back to “Back to Basics”

The net result at the moment, said minister Gordhan, that one in three municipalities, according to a study conducted nationwide, were failing and the success of the “Back to Basics Programme” would now depend on inter-government transfers to bring in skills and changing the employment criteria to economic, tax and financial viability experience.

He concluded that his department was getting tough where municipalities had broken the law and some of the answers may lie in strengthening district municipalities with specialists and merging some municipalities.   Another option was to abolish local municipalities completely and in their stead, start again with district management areas but he did not elaborate on this.
Other articles in this category or as background
Municipal free basic services slow – ParlyReportSA
Local government skills totally lacking – ParlyReport
Electricity connections not making targets – ParlyReportSA

Posted in Earlier Stories, Facebook and Twitter, Finance, economic, Justice, constitutional, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

Expropriation of land stays constitutional

Minister now quoted in Parly minutes…

In a press media briefing and subsequently in a meeting of the rural development and land reform parliamentary portfolio committee, minister Gugile Nkwinti confirmed that the whole process of land restitution for black persons dispossessed of their land was to be re-opened for a period of five years.   Under questioning, he confirmed that no constitutional changes were envisaged.

During the course of the minister’s departmental presentation on strategy leading to the budget vote, a week later in Parliament, the minister, when confronted by opposition MPs asking for a direct answer as to whether he would call for constitutional change on property rights or not, replied that there was “no such question arising.”

There was considerable satisfaction from opposition members as a consequence since such a statement, they said after the meeting disposed of fears of arbitrary state expropriation of land.

WSWB gone

Nevertheless, the minister was clear in his responses that the process of “willing seller, willing buyer” had been abandoned as a state mechanism.  He emphasised that whilst the principle of market valuation would still apply, it would be up to the new state valuator to establish price and not the parties involved to barter, sometimes endlessly, he commented.

Subsequently, in the newly proposed Bill on property valuation itself, the position was more clearly expressed with the proposal of an office of a Valuer-General,which the department said in its briefing to parliamentarians, had been necessary in order ” to establish an entity to carve through the current settlement process”.

The minister stated during his briefing at the time to parliamentarians that since its inception, the state’s restitution programme had benefited some 370,000 households.   This meant, he said, that some 1.83m persons had benefited so far from the process, as against an estimated 3.5m people who had been “forcibly removed from their land as a result of colonialisation and racial and discriminatory laws”.

The new closing deadline for lodgement of land claims has now been set for mid 2019 and a booklet on how to lodge a claim was circulated amongst members and which is now in public circulation.

The minister emphasised his point that claim forms would not be distributed but that  claimants, whether they be a direct descendant, a juristic person such as a company or trust  or a “representative of a community”, who felt they had a right because they were dispossessed of land rights had to call first upon a land affairs lodgement office.Mobile lodgement offices would visit all areas, the department told MPs, and the lodgement process required no fees.

Backlog

Under questioning, the minister confirmed that over 8,000 claims were still outstanding from the previous lodgement process and that these would be finalised with the new process now being instituted.    R24bn has so far been expended in financial settlements or land purchases.

The minister said he had not set a target for any new claims but he was confident that the programme would be achieved at a faster rate this time around because claims could be lodged electronically.

Disquiet was expressed by some MPs that land acquisition and financial compensation were the choice for claimants.   Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession as this almost amounted to a bribe.

DA MP Thomas Walters said in his view the reason for the slow rate of land occupation was not, as the ANC claimed, the result of whether or not there was a solution on the willing-buyer, willing-seller principle but rather a reflection of the fact that 92% of land claimants preferred to take cash pay-outs instead of working the land and creating jobs.

Minister Nkwinti stated that both avenues of compensation were a correct solution since in all approved cases, the parties had been wronged and deserved redress.

What started the latest row

As part of the package, minister Nkwinti said, he had made a further proposal, much publicised, that farm workers would be enabled by law to have a share of the land they have worked on according to their service in years.     Public comment had been called for and the results would be put to Parliament.    Only then could the final result become a debatable issue.

Minister Nkwinti made special reference to the complex issues surrounding land acquisition and land claims in the Western Cape, which he said were “very complex”.    In answer to questions on the Khoi and San issues and their claims going back further into South Africa’s history, the minister said the current process was to reverse the legacy of the 1913 Native’s Act and the damage caused by apartheid.

However, he said, some sort of agreement had to be made on the Khoi and San issues and in one instance already such matters had been dealt when applicants had asked for preservation of an area as a heritage site and government had made the acquisition accordingly.    A separate report to the President’s Office was to be made on the Khoi and San issue.

EFF members of the committee rejected the proposals as unworkable and said they “would not turn around the situation where the majority farm workers who had been evicted over the years would see redress and where 40,000 white farm owners remained owning agricultural land.”

Other articles in this category or as background
//parlyreportsa.co.za//cabinetpresidential/new-approach-to-land-reform/
//parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Facebook and Twitter, Justice, constitutional, Land,Agriculture0 Comments

Protected Disclosures Act: More whistleblower cover

Act to cover workers and state employees…

whistleblowerWhat was expected has now arrived in the form of an amending Bill to the Protected Disclosures Act, or “Whistleblowers Act”, which will draw contract workers, independent contractors, consultants and agencies into the ambit of the legislation, as well as state employees and employers.

The draft is for public comment until mid July, such being called for by the proposers, the ministry of justice and correctional services.

In the first case, the term “independent contractors” will embrace protection for contract workers in terms of the Act together with the already described basic terminology of “employees”.   Secondly, the proposals clearly identify state employees who are working, or who have worked, for government and state utilities.

Much strengthening of the Act to protect whistleblowers is evident, including a procedure for disclosing unlawful behaviour in the workplace by both private and public sector employees and how such disclosure is to be protected.

Civil and criminal liability

The draft bill proposes that whistleblowing employees can approach the courts for relief in the face of detrimental behaviour shown towards them by employers and that they will be immune from civil and criminal liability flowing from a disclosure that reveals criminal activity. Also, the disclosure of false information by whistleblowers is to be regarded as an offence.

As a separate issue, the Bill now places upon the employer a responsibility to set up appropriate procedures for dealing with disclosures and to inform all employees and workers about such. Also there is a duty to investigate any protected disclosure. President Zuma alluded to these whistle blower safeguards in his State of Nation Address.

If occupational is proven in a court of law, then employers will then be liable for “detriment or victimisation befalling an employee” and there will exist a liability for compensation and/or damages to the employee or worker, the draft states.

Employee safeguards

The kinds of “occupational detriment” from which the whistleblower is protected is also described, such as being subjected to any disciplinary action; being dismissed, suspended, demoted, harassed or intimidated; being transferred against his or her will; being refused transfer or promotion; being subjected to a term or condition of employment or retirement which is altered, or kept altered, to his or her disadvantage; and being refused a reference, or given an adverse reference.

At the same time, the proposals define more clearly the “irregularities” described by the anchor Act to which whistle blowing can apply, these now being defined as criminal offences; failure to comply with legal obligations; miscarriages of justice; the endangerment of the health or safety of individuals; damage to the environment; and unfair discrimination.
Other articles in this category or as background
//parlyreportsa.co.za//cabinetpresidential/logjam-has-to-be-broken-over-halted-state-information-bill/

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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

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

//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

Justice changing face of small claims courts

Small claims courts doubled…..

legalDeputy Minister of Justice and Constitutional Development, Mr Andries Nel, in his budget vote speech, gave an update on small claims courts in the country, stating that there were now 277 such courts as distinct from 120 in 1994 mostly in white and urban areas.

He told parliamentarians in the portfolio committee on justice that this meant his department was now more than half way in achieving the objective of having one in each of South Africa’s 393 magisterial districts countrywide.

These courts, he said, eliminate time-consuming adversarial procedures before and during the trial thereby providing speedy and cost effective justice, especially for the poor, he said, and a further nine had been established in June 2013.

Judgements made vastly increased

The number of people enjoying the benefits of access to justice through small claims courts “has increased steadily from a period in 2008 when 95,569 new cases were registered, 47,168 summons were issued resulting in 38,257 trials and 22,397 judgments and 9,405 out of court settlements”, he said.

“Meanwhile, the number of summons issued has increased by more than 21,137 to 68,305 and the number of trials also increased by more than 11,788 to 50,045.  Most significantly, the number of judgments jumped by 62,3% to 36,368 and the number of out of court settlements by 102,9% to 19,087.”

What is also notable, said deputy minister Nel, is the number of commissioners presiding over small claims courts and these have almost doubled in the past four years from 811 in 2009 to 1,546 currently. “However, this comprises 1,314 men and 232 women” and he added that serious attention is being given to the gender imbalance.

Equality court system running well

He also mentioned equality courts dealing with racism, sexism, xenophobia and related intolerance under the Promotion of Equality and Prevention of Unfair Discrimination Act, every high Court and magistrates court being designated as an equality court, 619 matters being dealt with for the 2012/13 financial year.

Deputy minister Nel also noted a “dramatic story of transformation” in the sheriff’s profession. In 1994 there were 475 sheriffs. An overwhelming majority of 400 were white men and there were only 40 African men who were located mainly in the so-called homelands

“In 2012 this picture started to change significantly with the appointment of 124 new sheriffs, 64 who were African. A further 120 vacant sheriffs posts will be filled by the end of June this year”, he said.    He thanked the South African Board for Sheriffs under the leadership of Mrs Charmaine Mabuza “for their good work”.

Posted in BEE, Justice, constitutional, Public utilities, Security,police,defence0 Comments

Land reform: Something very sad is going on

Apartheid debate goes back to land reform….

Minister Manuel and President Zuma are said to have repaired their relationship over Manuel’s demand that the governing party and state departments overcome their obsession of blaming apartheid for all their non-delivery performance statistics such as land reform, which excuse has also been constantly appearing in parliamentary and departmental report backs.

However, there lies a much deeper controversy building and this is maybe why the subject of apartheid, being such a dead-end route, was again raised.

Traditional roots

reed danceIt all goes back to disruption appearing at grass roots level in the apparent attempts by the ruling party to ignore gender “apartheid” in rural areas and what has been described as “locking approximately 16 million people into tribal land divisions ruled by customary law and baron chieftains”, areas originally defined in many cases by the dreadful Land Acts of 1913 and 1936.

But how does this affect business and industry since the matter seems so unrelated to the daily grind and to the economics of running a mining house, an investment business, a manufacturing plant or a marketing venture?

It deeply affects us all in the same way that the failure of the rail system means that commuters can’t get to work and in this case, where delivery of service and utilities goes back to apartheid structures that were unfair, caused fifty years of bloodshed and delivery service is so poor. People, mainly workers, get unhappy, cause unrest and may strike.

Apartheid was about land

We only have to look north from the Middle East to Zimbabwe to see it happening everywhere.   Land is usually the issue that provides thelandseizures grenade pin but refusal to reform is probably the catalyst.

Trevor Manuel is right, of course, from the aspect that we should get on with job of re-building the country and not find lame excuses such as playing the apartheid card as reasons for failure. The explosion from ANC policy makers was immediate and it seemed that Manuel had scored a bulls-eye.

President Zuma responded directly bearing in mind that he leads a determined effort to reinforce legislation that provides support powers to traditional chiefs, originally bestowed in the apartheid years to re-enforce the hated Bantustan division of land, thus re-enforcing the same divisions in what appears to be a chase for rural political power.

Bantustans or homelands

homelandsOriginally apartheid was implemented at every level of society: education, transportation, business, entertainment, employment and religion but at its most fundamental level it was about control of the land. This still forms the base of the problem.

Laws in this area introduced by ANC are the Traditional Leadership and Governance Framework of 2003; the Traditional Courts Bill; some eight provincial leadership laws and now before Parliament is the National Traditional Affairs Bill which attempts to bolster the chief’s monopoly on rural land.

All this in the light of the current and completely opposite Restitution Act of 1994 on the statute book on the one hand existing and now supported by the introduction of an Expropriation Bill on the other, all of which seems the very antithesis of support being given to leaving vast tracts of land in the hands of chiefs who govern by their own set of rules and laws.   Traditional courts.

In Britain, the monarchy lost its judicial powers hundreds of years ago and in France the monarchy was simply eradicated.houses of parliament In South Africa, we don’t seem to be able to make up our minds.

It would seem that aside from making a mockery of the land reform programme, the ANC  is courting not only a constitutional challenge, a subject bound to be raised in Parliament when the Bill is debated or even during parliamentary hearings, but the alienation of a vast section of his own progressive supporters.

UCT logoSays University of Cape Town on its Research Centre For Law and Society website, “The Traditional Courts Bill has raised numerous questions as to whether traditional courts should have criminal jurisdiction at all, and if so, which kind of offences they should try and what sort of punishment may be imposed.”

“Our research on traditional courts in one area reveals that cases undertaken in traditional courts include assault, murder and rape, to name a few, indicating that social contact crimes are at times being dealt with by the traditional justice system.”

“On the other hand”, says the article on the website, “it is evident through SAPS reports that certain crimes, such as property-related crimes, although they can be dealt with through traditional courts, are nonetheless taken to the police. This indicates not only a fluid relationship between the two justice systems, but also a blurring of categories of crimes.”

Blurring of constitutional issues is, however, a lot more serious. Especially on the land ownership issue.

Associated articles archived:
//parlyreportsa.co.za//justice-constitutional/spatial-planning-land-use-management-bill-moves-on/

//parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Cabinet,Presidential, Justice, constitutional, Land,Agriculture0 Comments

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