MINISTERS STILL IN LIMBO?

On 10 May 2009 the President appointed the new Cabinet.  Furthermore he announced that “the Department of Minerals and Energy” would be split into the Department of Mining and the Department of Energy, each with a Minister.  Ms Susan Shabangu was appointed as the Minister of Mineral Resources and Ms Dipuo Peters as the Minister of Energy.

The appointment of the Ministers and the split of the Department of Minerals raise two questions.  The first is whether the powers and functions of the Ministers have been formally assigned as required by the Constitution.  The second is if, the transfer of the administration, powers and functions entrusted by specific legislation to a specific Minister has been done as required by the Constitution.

Although the members of Cabinet have been announced their powers and function is not yes formally assigned as required by the Constitution.  The Constitution also provides that actions by the President which have been taken in his position as the head of the national executive and which have legal consequences must be in writing and must be accessible to the public.  No publication in the government gazette, complying with the above could be found.

With regard to the second question the powers and functions of the previous Minister of Minerals and Energy will have to be allocated between, and transferred to the Minister of Mineral Resources and the Minister of Energy respectively.  These powers have been transferred on 1 July 2009 by publications of proclamation in the government gazette.

In terms of this proclamation the Minister of Mineral Resources will have the powers and functions entrusted in terms of the Mining Title Registration Act, Diamond Act, Mineral Technology Act, Geosciences Act, Mine Health and Safety Act, Abolition of Lebowa Mineral Trust Act, Mineral Petroleum Resources Development Act and the Precious Metals Act. The Minister of Energy will have the powers and functions entrusted by the Central Energy fund Act, Petroleum Products Act, Abolition of National Energy Act, Nuclear Energy Act, National Nuclear Energy Act, Gas Act, Petroleum Pipelines Act, Petroleum Pipelines Levies Act, National Energy Regulator Act, Electricity Regulation Act and National Energy Act.

If the newly appointed Ministers acted in terms of any of the above mentioned Acts prior the publication of the proclamation such actions will be invalid.  For example if a mineral or mining  right has been approved and/or granted and executed prior to the publication of the prescribed proclamation or the amendment of the Mineral Petroleum Resources Development Act (MPRDA) the right would be invalid.  The reason therefore is that the MPRDA  defines “the Minister” is as the “Minister of Minerals and Energy” and not the Minister of Mineral Resources.  Therefore the Minister would then have acted beyond her powers.  This view is substantiated by the case of Meepo v Kotze and Others 2008 (1) SA 104 where the court held that a production right executed by a government official acting outside the scope his of powers is null and void.

The spilt of the Department of Minerals and Energy is well received by the industry.  They hope that it would speed up applications processes, however the written assignment of the powers and functions to the Ministers and the requisite notification to the general public thereof needs to be dealt with as a matter of urgency.