At the request of the Committee, the Senior Parliamentary Law Adviser had compiled a legal opinion on whether or not the Military Veterans Bill should be classified as a Section 75 or a Section 76 Bill. The Constitution prescribed different procedures for ordinary Bills not affecting provinces (Section 75) and ordinary Bills affecting provinces (Section 76). The question arose because the benefits to be made available to military veterans in terms of Clause 5 of the Bill included education, health services, housing and public transport, which were concurrent national and provincial competency areas. Certain legal precedents were examined and a “substantial measure test” was applied before the conclusion was reached that the Bill was correctly tagged as a Section 75 Bill.
Members queried the substantial effect of providing benefits to veterans on the provincial authorities and the provision made in Clause 7 of the Bill for the Department of Military Veterans to make recommendations to the provincial executive.
The costing of the Bill remained an outstanding matter and the Department had requested a postponement. The Director-General advised that the Department was in consultation with the National Treasury and other affected parties and had engaged the services of actuaries to provide assistance. The Department indicated that the cost of implementing the Bill would be made available within fourteen days.
The advertisements inviting public comment and publicising the public hearings on the Bill needed to be placed in the Gazette and the print media. Members agreed that the placing of the advertisements could be proceeded with.
Opinion of the Parliamentary Law Adviser on the Classification of the Military Veterans Bill
Mr Ntuthuzelo Vanara, Senior Parliamentary Law Adviser delivered a legal opinion on whether or not the Bill should be classified as a Section 75 or a Section 76 Bill. The Constitution prescribed different procedures for ordinary Bills not affecting provinces (Section 75) and ordinary Bills affecting provinces (Section 76).
Clause 5 of the Military Veterans Bill made provision for benefits for qualifying veterans. The benefits included education, health services, housing and public transport, which were concurrent national and provincial competency areas. The question arose during previous briefings on the Bill on whether the Bill should be tagged as a Section 76 Bill because of the provincial involvement in delivering the benefits listed in Clause 5.
Mr Vanara explained the application of the “substantial measure test” in order to determine the tagging of the Bill. He cited the examples of Ex Parte President of the
Mr Vanara concluded that none of the provisions of the Bill dealt with any matter provided for in Section 76 (3) (a) to (f) of the Constitution. After examining the benefits provided in terms of Clause 5, he concluded that the provision of these benefits was not a concurrent national and provincial legislative competence in terms of Schedule 4 of the Constitution.
Mr Vanara considered the Bill to have been correctly tagged as a Section 75 Bill.
Mr P Groenewald (FF+) requested clarity on the provision in Clause 7 (d), which allows the Department to make recommendations to the provincial executive. He asked if the Bill should be classified as a Section 76 Bill if the provincial executive was involved in carrying out the recommendations of the Department of Military Veterans.
Mr D Maynier (DA) said that the provision of housing benefits to veterans would have a substantial effect on provinces. For example, although the provision of housing benefits was the responsibility of the Minister of Defence and Military Veterans, the provincial authorities would have to make changes to the delivery plans and would have to provide the necessary resources. He asked if the Bill should not be classified as a Section 76 Bill because of the effect the provision of the benefits would have on the provincial authorities.
Mr Vanara replied that most national legislation had a direct or indirect effect on the provinces. The Court was attempting to determine what “affecting” meant. The Bill did not create obligations on the provincial authorities in Government generally operated on the basis of collaboration in order to deliver services. The Bill merely made provision for the Department to make recommendations and proposals. The effects on the provinces were on their areas of competency.
Ms N Mabedla (ANC) thanked Mr Vanara for his detailed and informative opinion.
Costing of the Military Veterans Bill
The costing of the Bill was one of the outstanding matters affecting the processing of the legislation. The Chairperson advised that the Department of Military Veterans had requested a postponement and the matter had been referred to the Speaker. The advertisements for the public hearings on the Bill had to be placed in the Government Gazette and the national press.
Mr Groenewald pointed out that the published Bill excluded the financial implications of the legislation. The submissions received during the public hearings would be based on the published Bill. He suggested that the Bill was costed before the advertisements inviting public participation were placed.
Mr Maynier agreed with Mr Groenewald that the financial implications of the Bill were determined before the public was invited to make submissions. He suggested that the Department provided an indication by when the cost of implementing the legislation would be provided.
Mr A Maziya (ANC) felt that the advertisements for the public hearings should be placed. He expected that the members of the public who would be submitting comments would most likely be veterans who would not be particularly concerned over the financial implications to the State. He wanted to know how long it would take the Department to provide the costs.
Mr Tsepe Motumi, Director-General, Department of Military Veterans advised that the costing of the Bill would be completed within fourteen days. The Department was currently in consultation with the National Treasury and other affected parties and had engaged the services of actuaries to provide assistance. The Department was seeking concurrence between the National Treasury and the line Departments responsible for the delivery of the benefits to veterans. He pointed out that certain benefits were already being delivered to veterans.
Mr Maynier agreed that the advertisements could be placed if the Department would provide the costing of the Bill within two weeks.
Mr Maziya wanted to know when the next meeting with the Department would be held.
The Chairperson advised that Members would be informed of the date of the next engagement with the Department.
The meeting was adjourned.
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