Basic Education Laws Amendment Bill: final mandates

NCOP Education and Recreation

20 June 2011
Chairperson: Ms M Makgate (ANC, NW)
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Meeting Summary

The Committee considered final mandates from the provinces on the Basic Education Laws Amendment Bill. However, the problem was only the Eastern Cape, Mpumalanga, Kwazulu-Natal and the Western Cape had correct final mandates on the final D-version of the Bill. The North West Province, Northern Cape Province and the Free State Province had submitted final mandates on the older B-version of the Bill which was incorrect. The final mandates on the B-version of the Bill had also been deliberated prior to the Select Committee approving amendments to the Bill on the 15 June 2011. Further, the Limpopo and Gauteng provinces had not submitted final mandates to the Committee yet. The bottom line was only four provinces had submitted correct final mandates on the D-version of the Bill. The four provinces had voted in favour of the Bill but the Committee was one province short of passing the Bill as five votes in favour of the Bill were needed. After a lengthy debate the Committee decided to adjourn the meeting until perhaps later in the day in the hope that one of the provinces whose mandates were incorrect or outstanding would be able to submit final mandate, thereby ensuring a fifth vote in favour of the Bill to allow it to be passed. [Note the Bill was passed by the Committee later that day as it managed to secure the Limpopo final mandate as well as the corrected North West final mandate. The Bill will be adopted in the NCOP plenary on 28 June.]

Meeting report

Final Mandates on the Basic Education Laws Amendment Bill
The Chairperson asked members to read out the final mandates of their respective provinces.

Eastern Cape
Ms D Rantho (ANC, EC) stated that the Eastern Cape supported the Bill and would vote in favour of the D-version of the Bill. The D-version was the latest version of the Bill.

Free State
In the absence of a member representing the Free State, Mr W Faber (DA, Northern Cape) read out the final mandate from the Free State Province. The Free State Legislature voted in favour of the Bill.

Adv Anthea Gordon, Parliamentary Legal Adviser, pointed out that the final mandate from the Free State was dated the 9 June 2011 and it referred to the older B-version of the Bill. On the 15 June 2011 this Committee together with legal drafters had worked on the C-version of the Bill. The latest version of the Bill was the D-version. She was concerned that from a legal point of view the Free State Legislature had voted on the older B-version of the Bill. The Free State Province had to submit a document which clearly stated which version of the Bill it supported and the document should also be dated correctly.

Northern Cape
Mr Faber looking at his own province’s mandate and stated that the Northern Cape’s final mandate also referred to the older B-version of the Bill and the mandate was dated the 14 June 2011.

Ms Rantho confirmed that the Eastern Cape supported the D-version of the Bill.

Ms Gordon stated that final mandates on the Bill should be dated after the 15 June 2011. She pointed out that the Free State Province was not the only province whose final mandate was dated before the 15 June 2011 and made reference to the earlier B-version of the Bill. There were other provinces as well. Procedurally, this was a huge problem. How was the Committee going to deal with the issue?

The Chairperson suggested that perhaps the Committee Secretary could contact those provinces and request final mandates which would reflect the proper dates and reference to the D-version of the Bill.

Mr Faber agreed that the Committee should obtain new final mandates from the provinces involved. It should contain the correct dates and make reference to the D-version of the Bill. He suggested the meeting be adjourned as the Committee would not be able to obtain the five votes required from provinces to pass the Bill.

Ms M Mncube (ANC, Gauteng) asked if there was any room procedurally to give a vote in favour of the Bill consequentially. Was there any room for a portfolio committee in a province sitting on the 9 June 2011 adopting negotiating and final mandates? In principle there was agreement on the Bill. The Department had made amendments to the Bill to which there was also agreement. She asked which provinces had problematic final mandates.

Mr M De Villiers (Western Cape) suggested that the provinces that had problematic final mandates (that is, North West, Free State and Northern Cape) be contacted telephonically and asked if they would be able to furnish the Committee with the correct final mandates. The Committee could in the meantime deal with other issues on the meeting agenda and deal with the final mandates thereafter.

For the sake of thoroughness, the Chairperson suggested that each province be allowed to go through its final mandates in order to check on its correctness.
 
Gauteng
Ms Mncube representing Gauteng stated that its provincial legislature was meeting at 1pm later that day to discuss the final mandate. As a result, Gauteng did not have a final mandate to submit to the Committee.

Kwazulu-Natal
A female delegate representing Kwazulu-Natal stated that the Province had met on 21 June 2011 and had submitted its written final mandate which was in support of the D-version of the Bill.

Limpopo
Mr T Mashamaite (ANC, Limpopo) stated that Limpopo was currently in a meeting to decide on the final mandate of the Bill. As a result, Limpopo did not have a final mandate to submit to the Committee at present.

Mpumalanga
Ms M Boroto (ANC, Mpumalanga) stated that Mpumalanga Province had voted in favour of the D-version of the Bill.

North West
Ms R Rasmeni (ANC, North West) stated that North West had expressed support for the Bill but it was for the earlier B-version of the Bill.

Western Cape
Mr De Villiers stated that the Western Cape had deliberated on the Bill on the 21 June 2011 and consequently supported the D-version of the Bill.

Adv Gordon summarised the final mandates on the Bill. The Eastern Cape, Mpumalanga, Kwazulu-Natal and the Western Cape had correct final mandates on the D-version of the Bill. The Limpopo Province and Gauteng Province had not yet submitted final mandates to the Committee. The North West, Northern Cape and the Free State had submitted final mandates on the older B-version of the Bill which was incorrect.
Only four provinces had therefore complied with final mandates on the D-version of the Bill. They had voted in favour of the Bill but the Committee was one province short of passing the Bill. Five votes were needed to pass the Bill. She explained that a final mandate should be dated after the Committee’s deliberation on the Bill which in this instance had taken place on the 15 June 2011. Even if those provinces that had final mandates on the older B-version of the Bill also supported the D-version of the Bill such support needed to be in writing. In the past, mandates had been challenged in the courts. Oral mandates were not considered good enough, written mandates were what counted. Provinces therefore had to submit written final mandates on the D-version of the Bill.

The Chairperson confirmed that the Committee was short of one vote in favour of the Bill in order to pass it.

Ms Boroto stated that on the 15 June 2011 the Committee had considered amendments to the Bill and had agreed to these. She referred to the North West Province, Northern Cape Province and the Free State Province and asked whether they were only going to make technical changes to the final mandates that were before members. Were they simply going to correct the dates and change the reference to the Bill from the older B-version to the D-version which was the correct one? Or were the provinces concerned going to sit down and discuss the D-version of the Bill?

Ms Rantho asked whether the provinces concerned would be following correct procedure or were they just going to effect changes to the final mandates. She felt that the provinces concerned should stick to the correct procedure so that when completed, the speakers in their respective provinces could sign off on the final mandate.

Ms Mncube stated that, according to the legal adviser, the older B-version was the wrong version on which to submit a final mandate. Assuming that the reference to the B-version in the final mandates of the North West Province, Northern Cape Province and the Free State Province were simply misprints then it could be corrected without a sitting of the provincial legislature.

Adv Gordon responded that how the three provinces corrected their final mandates depended on their own rules. Provincial advisers would have to guide the process. Each province had its own rules. If the assumption was made that the three provinces’ final mandates on the B-version of the Bill was in fact correct then it would stand to reason that they supported the B-version and not the D-version. Hence the Committee needed to obtain confirmation in writing on the dates and the versions of the Bill that the provinces concerned were supporting, in their final mandates.

The Committee Secretary suggested that the meeting be adjourned until later in the day. The suggestion was made in lieu of the fact that the Limpopo Provincial Legislature was currently meeting to discuss its final mandate on the Bill. Perhaps by the time the Committee reconvened, the Limpopo Province would have submitted its final mandate on the Bill. This would give the Committee the five provincial votes in favour of Bill it needed to pass the Bill.

Ms Mncube agreed that if Limpopo Province could submit its final mandate later in the day it was good enough for the Bill to be passed. The Gauteng Provincial Legislature would meet only the following week to consider its final mandate. Limpopo’s vote in favour of the Bill would be sufficient to get the Bill passed.

Mr Mashamaite clarified matters by stating that it was not the Limpopo Legislature that was currently sitting but the Portfolio Committee. The final mandate on the Bill would therefore probably not be ready for submission to the Committee later in the day.

Ms Rantho stated that the Limpopo Province final mandate would in all likelihood not be ready later in the day. She asked how the situation of the wrong final mandates had arisen. How had the Committee erred? It was something that the Committee needed to look at in order to prevent it from happening again. All final mandates should have been submitted to the Committee on time.

A female legal adviser from the Free State Provincial Legislature joined the meeting and stated that she had a written voting mandate in favour of the D-version of the Bill in her possession, ready to be submitted to the Committee.

Ms Boroto nevertheless suggested that the meeting be adjourned. The Committee needed to discuss where things had gone wrong. She asked if the legal advisers would be available later in the day in the event that the Committee reconvened its meeting.

The Chairperson stated that the Free State legal adviser was present and perhaps she could guide the Committee.

Mr Mashamaite felt strongly that the Committee should take what the Free State legal adviser had stated to be her presenting the Free State mandate to the Committee. In this way the Committee could avoid adjourning the meeting until later to pass the Bill.

Ms Mncube still called for the adjournment of the meeting. She wished the Committee to do things properly. The legal representative from the Free State had informed members verbally what the mandate from the province was. The Committee did not have a written document from the Free State.

Ms Boroto insisted that it was better to adjourn the meeting and not to waste time. The Committee should focus on getting the written documents. She asked that the legal advisers avail themselves to the Committee later in the day.

Ms Rasmeni supported the suggestion that the meeting be adjourned.

The Chairpersons asked Adv Gordon and Mr Allan Small from the State Law Adviser’s Office if they could make themselves available later in the day.

Both Mr Small and Adv Gordon confirmed that they would be available later in the day.

Adv Gordon asked the legal adviser from the Free State whether the mandate that she had in her possession was a final mandate.

The legal adviser from the Free State answered that it was a voting mandate.

The meeting was adjourned.

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