There is more bad news in store for the mining industry, with Parliament’s legal advisers warning last week that the Mineral and Petroleum Resources Development Bill could be further delayed due to procedural flaws.

The bill, four-and-a-half years in the making, has contributed to the lack of policy certainty in the industry.

Parliament’s legal advisers have informed members of the National Council of Provinces’ select committee on land and mineral resources that the procedure followed in dealing with the bill was incorrect, which could mean that the entire process of provincial public hearings has to start again.

President Jacob Zuma sent the bill — passed by Parliament in 2014 — back to the legislature in 2016 because of a concern over the constitutionality of restrictions on the export of strategic or designated minerals intended for local beneficiation and because there had not been proper consultation with the National House of Traditional Leaders and the provinces.

Parliament’s portfolio committee on mineral resources dismissed these concerns and sent the bill to the National Council of Provinces. However, before public hearings in the provinces took place, the Department of Mineral Resources introduced 56 amendments to the bill to deal with concerns of the oil and gas industry related to the state’s 20% carried interest among other things. It was this version of the bill that was the subject of the provincial hearings.

Parliamentary law advisers told members of the select committee behind closed doors last week that this was not the correct procedure as the department could not introduce amendments at this stage.

The joint rules of Parliament stipulate that only those matters identified in the presidential referral can be revisited.

The DA spokesman on mineral resources, James Lorimer, said that Parliament’s legal adviser had told the select committee that the procedure followed by the department had been incorrect — the bill considered by the provinces in their public hearings was not the correct one and hearings might have to be held all over again.

"The bill could be found to be procedurally flawed and thus unconstitutional," he said.

The department’s acting director of policy, Sibusiso Kobese, disagrees with this interpretation, saying that as the president had required further public consultation, the bill was consequently opened for the submissions that arose during this process.

The argument that Parliament could restrict itself to the matters raised by the president, therefore, did not apply, Kobese said.

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