Dear Chairperson of the Portfolio Committee on Mineral Resources and Energy,
RE: PUBLIC HEARINGS ON THE ELECTRICITY REGULATION AMENDMENT BILL
- We are writing to address a matter of utmost importance regarding the short time frame given to communities and the public at large to adequately comment on the Electricity Regulation Amendment This issue has come to our attention, and it is our duty as the Centre for Applied Legal Studies (“CALS”) and Mining Affected Communities United in Action and Women Affected by Mining United in Action (“MACUA and WAMUA”) to ensure that all interested persons are given an opportunity to meaningfully participate in the legislative process.
- CALS is a law clinic registered with the Legal Practice Council and based at the University of Witwatersrand’s School of Law. CALS was established in 1978 and has been one of the leading human rights research, advocacy, and strategic impact litigation organisations in South Africa. It operates through five (5) programmes, namely, Business and Human Rights, Environmental Justice, Gender Justice, Home, Land and Rural Democracy, and Civil and Political Justice
- MACUA and WAMUA’s core mission is to create a transformative platform that fosters unity and solidarity among community members, artisanal miners, and mine workers. Their objective is to establish a grassroots democracy that prioritises people’s needs over profit-driven interests. Building on a legacy of resistance against colonialism and apartheid, MACUA and WAMUA champions the fundamental principle that no authority is greater than the will of the people. They adamantly insist that any decisions or actions that affect their communities must involve the direct and meaningful participation of the affected individuals.
- MACUA and WAMUA, a vital stakeholder in the ongoing legislative discussions surrounding the Electricity Regulation Amendment Bill (“Bill”) has, attempted to participate in the process and in so doing has witnessed a process designed to exclude not only MACUA and WAMUA. This exclusion is not only a significant breach of democratic principles but also a flagrant abuse of the public participation process enshrined in our Constitution. MACUA and WAMUA wrote a letter to Parliament on 21 September 2023, addressing some of their concerns in relation to the public participation process. We attach the letter hereto, marked “CR1”.
- Public participation in the legislative process is the bedrock of a functioning democracy. It ensures that the voices of all stakeholders, especially those directly affected by proposed legislation, are heard and MACUA and WAMUA represents the interests and concerns of mining-affected communities who often bear the brunt of energy and mining-related policies. Denying them a fair and equitable platform to engage in the legislative process is not only unjust but also detrimental to the overall quality of the legislation in question.
- Moreover, we are concerned that Parliament has been failing in its duty to provide a conducive and consistent environment for public participation. Announcements regarding venues have been announced at short notice and frequently altered at the last minute, causing confusion and, in some cases, leaving community members stranded at empty halls. To date the schedule of hearings for October and November, which was approved at a meeting of the Portfolio Committee on 21st of September 2023, has not yet been released to the public, making it difficult for the public to plan their attendance or participation. This lack of logistical organisation not only discourages public participation but also undermines the credibility of the legislative process.
- As you may be aware, the Constitutional Court recently handed down a judgment in Mogale and Others v the Speaker of the National Assembly and Others (CCT 73/22)  ZACC 14 (Mogale), which held that the National Assembly and the National Council of Provinces, together with the provincial legislatures, failed to fulfil their constitutional mandate to reasonably facilitate public participation in the passing of the Traditional Khoi-San Leadership Act 3 of 2019. This ruling was grounded in the fact that there were deficiencies that prevented adequate preparation for the hearings, including the fact that the hearings were not accessible to all and certain hearings were held far from where the communities resided, with certain provinces only holding one hearing. It was determined that it is clear from the evidence that Parliament failed to fulfil its constitutional obligation to reasonably facilitate public involvement in the legislative process leading to the enactment of the Bill – which rendered the legislation invalid.
- The judgment also highlighted the key features of reasonable public participation process as codified by Parliament in the Framework and Practical Guide, which include: pre-hearing workshops, translation of summaries, transportation to hearings, advance notice, attendance by delegates and detailed public A number of these important features were neglected in facilitating the public participation process of the Bill.
- In light of these concerns, we strongly urge Parliament to revaluate its treatment of communities and take immediate steps to rectify this situation. We strongly believe that MACUA and WAMUA and all communities must be afforded the opportunity to engage meaningfully in the legislative process of the Bill. To this end, we invite Parliament to engage in open and constructive dialogue with MACUA and WAMUA to rectify the past injustices and ensure their participation moving forward.
- We wish to emphasise that while we are committed to seeking an amicable resolution to this matter through dialogue and cooperation, we also reserve our right to seek legal recourse should the practice of an exclusionary public participation process The Constitutional Court’s ruling in Mogale has set a clear precedent regarding the importance of meaningful public participation during the law-making process, and we are prepared to assert the rights of all affected communities and individuals in a court of law to ensure their full protection under the law. Our intention is not to resort to litigation but rather to ensure that the principles of democracy and public participation, which are foundational to our Constitution, are upheld.
- We believe that it is essential to rectify these issues promptly and to provide a fair, transparent, and inclusive legislative process that benefits all stakeholders, including mining-affected communities.
- Thank you for your prompt attention to this critical We look forward to a swift resolution in the best interest of justice and the protection of constitutional rights. We also look forward to a response from you by no later than (Insert date).