Lovemore legislative proposal to amend Electoral Act, 1998, Research Unit's & NA table presentations on role of Committee & petitions procedures, interaction with Johannesburg Metro Petitions & Public Participation Committee

Private Members' Legislative Proposals and Special Petitions

15 November 2011
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee hosted representatives from the Petitions and Public Participation Committee (PPPC) of the Johannesburg Metro Municipality, to share experiences, holding a full discussion with them later in the meeting, but allowing them also to observe the processes.

Ms Annette Lovemore presented her private member’s proposal to amend the Electoral Act, of 1998. The aim was to allow South African citizens living abroad to register for and to vote in national and provincial elections in their country of residence, and to provide them with reasonable access to voting by providing for voting stations or methods other than the South African embassies, consulates and high commissions that were allowed in the past. She noted that the Electoral Task Team report on 2003 had identified the core values around elections as including fairness and inclusivity, which meant that all South African citizens should have the right to vote, since the constitution provided for universal suffrage. In 2009, two applications had been brought to the Constitutional Court, whose principles and decisions were outlined. Although time hindered full implementation of all the relief sought, the Constitutional Court had essentially decided that South Africans living abroad should be able to register to vote, and to vote. However, the judgment confined this to national elections, because of the time frames, and had also noted that voting points should be South African embassies, South African High Commissions and South African consulates, and the only mechanism allowed was voting in person. For logistical reasons, although over 16 000 had made application to vote, many people were unable to travel the long distances to the embassies, high commissions or consulates. The Court had, however, said that it was within Parliament’s power to legislate more widely for voting, and what she was now seeking would effectively ensure that all citizens were able to vote. She stressed that those wishing to vote were, by this very attitude, proving their commitment to South Africa, to deepening democracy and exercising their civic responsibilities and had not, as suggested by some, abandoned their interest in South Africa. They were exercising their global opportunities for work and study and it was also noted that most were either sending money back to support families in South Africa, or were saving to purchase a house in South Africa on their return. She stressed that there was some urgency to this, to allow sufficient time for amendments prior to the next national elections, and said the proposal also covered provincial elections.

Members asked if this was not a money bill, questioned the provisions around using missions for people to vote abroad, noted the possibilities for other venues for voting or other methods of voting, and agreed with the presenter that more research would be needed. However, Ms Lovemore pointed out that substantial work had already been done, that could serve as a starting point, on the issues. The cost implications were questioned, as well as the need to look closely at security considerations and travel costs, and the capacity of the Independent Electoral Commission and Department of Home Affairs and Department of International Relations and Cooperation assistance. A Member asked if it would not be sufficient to consider extending the Special Vote provisions, and Ms Lovemore explained why this would not cover all the issues.

Minutes of Committee meetings held on 26 October 2011 and 2 November 2011 were adopted.

The Committee then held informal interactions with members of the Public Participation Committee (PPPC) of the Johannesburg Metro Municipality. The role of the Parliamentary Committee on Private Members Legislative Proposals and Special Petitions was explained, noting that an example of a private member’s proposal had just been put forward by Ms Lovemore. Petitions were dealt with differently across the different spheres and one of the main weaknesses was the lack of standardised legislation to deal with these matters. Many issues were negotiated through the Chief Whips Forum of Parliament.

Ms Marina Nel of the NA Table gave a very comprehensive briefing on the role of the Committee on Private Members Legislative Proposals and Special Petitions, as well as the NCOP Committee, and the process of a legislative proposal, emphasizing the respective roles of the Speaker, this Committee, Portfolio Committees and the National Assembly. She also set out and explained the differences between Special Petitions and general petitions, the Rules that applied to them, and the process whereby the Speaker would also accept petitions and pass them to the relevant Committees or other bodies for processing and report backs.

A Parliamentary Researcher noted that Parliament, unlike the provincial legislatures, did not have any legislation to detail the
procedures, turnaround times and punitive provisions in relation to petitions. This was needed. The various shortcomings in the current process included the fact that no member of the public could present a petition in person, but must find an MP to present and motivate it, there was no provision to assist members of the public living in under resourced rural areas to use this tool, and the current Rules were not adapted to the Constitutional requirements around public participation. There were no guidelines as to the relief that could be recommended in response to a petition. The Rules did not, but should, stipulate time frames, nor were there any provisions to impose punitive sanctions on those bodies that failed to comply. No electronic petitioning system was available to Parliament, although some provincial governments did have such a system in place. Another serious concern was the fact that a person must first exhaust all other legal remedies before approaching Parliament, and it was explained that although the reason behind this was that Parliament could not pronounce on legal issues, in reality most petitioners could not afford to pursue all legal remedies. The Researcher expressed the opinion that there was a need to have a National Petitions Act and although the Committee felt very strongly on this point, it needed to have political buy-in to the process.

The PPPC of the Johannesburg Metro Municipality and said its interest in interacting with this Parliamentary Committee was firstly to gain knowledge of other systems, to assist it in formulating its own approach, and to seek to strengthen intergovernmental relations. The PPPC outlined that one of its problems was lack of respect shown by national departments for the PPPC. It was hoping to lobby for a change in attitude, and noted that the way local government presently operated had to be changed. The PPPC was often hampered by national government failing to implement local bylaws. The PPPC was hoping for input on what route it could take or how it could more effectively deal with these problems through summonsing officials, noting that the current processes allowed it to summons the political head first, and then the officials, but the reverse should in fact apply to prevent officials trying to hide behind the political issues. Most of its petitions related to lack of service delivery, with some relating to poor behaviour of Councillors. It had found that its new approach of more active community participation, and, most importantly, showing respect for individuals and positions of elders, had helped to turn around the communities’ dissatisfaction, with the result that there were substantially fewer protest marches, and greater use of petitions. However, because the PPPC and local councillors had little support, this in itself created problems as much time and effort was needed to investigate the issues properly. However, the PPPC would persist in its new approach, sought to minimise the arrogance shown in the past by many councillors, sought to educate communities on its own roles and those of councillors, explained what communities could and should expect and how and to whom they could articulate their concerns. The general principles that it had adopted and followed in its meetings and operation were articulated. The PPPC was passionate and committed to the process.

Meeting report

Ms M Kubayi (ANC) was elected to chair the meeting, as the Chairperson was not available.

The Acting Chairperson welcomed the delegates from the Petitions and Public Participation Committee of the City of Johannesburg, and suggested that the Committee should firstly deal with the legislative proposals before it, and then interact with the City of Johannesburg on how the two committees operated in regard to private members’ proposals and special petitions.

Lovemore proposal to amend the Electoral Act, 1998, to allow South African citizens living abroad to register and vote in national and provincial elections, and to provide them with reasonable access to voting during national and provincial elections
The Acting Chairperson noted that only the presentation by the private Member would be given at this meeting, and the Committee would deliberate on the issues raised at a subsequent meeting.

Ms Annette Lovemore noted that her legislative proposal to amend the Electoral Act, No 73 of 1988, was intended to allow South Africans living abroad to cast their votes in provincial elections, as well as in national elections, to increase the accessibility to voting, by no longer limiting voting facilities to locations at South African embassies, consulates and high commissions, and to allow South Africans living abroad also to register abroad to vote in both national and provincial elections.

In support of her proposal, she outlined that every South African citizen had the right to vote, no matter where s/he lived. The matter was urgent, as there was less than two years before the next national election, and this proposal was being presented in sufficient time to allow for a change in the Electoral Act to allow all South Africans who were living abroad reasonable access to registering to vote, and to vote.

Ms Lovemore noted that section 19 of the Constitution dealt with political rights. Every citizen was free to make political choices and every adult citizen had the right to vote in elections for any legislative body established in terms of the Constitution. Legislative bodies included Parliament, the provincial legislatures and the councils. Her legislative proposal, however, did not deal with local elections, because it would be too difficult from a logistical point of view to divide and transfer votes to the various local voting stations. However, her proposal covered both national and provincial elections.

The principles that underpinned her legislative proposal were accepted by the Electoral Task Team Report in 2003. The four core values identified were fairness, inclusiveness, simplicity, and accountability. The two that specifically applied to her proposal were fairness, relating in particular to reasonable access to voting, and inclusivity of all South Africans to get access to vote. Prior to the 2009 elections, there were provisions for South Africans living abroad to vote, in national elections only, but this provision was limited to government officials who were abroad on government business, and sportsmen who were abroad on national sporting tours, but did not allow for all South Africans living abroad to vote.

In 2009, the case of Richter v Minister of Home Affairs was launched, on the basis that all South Africans living abroad should be able to vote, because the South African Constitution provided for universal adult suffrage, and did not indicate any restrictions in respect of citizens. The Constitutional Court heard the case only three months before the 2009 elections, so there were limitations as to what orders could be made, but those made were very important, because the Constitutional Court ordered that special votes (votes cast by persons abroad) should be accorded to any registered voter who would be absent from the Republic on polling day, and who had given notice of this, in the prescribed time to the Chief Electoral Officer. That effectively removed the limitation on the category of people who were living abroad who could vote.

Justice Kate O’Regan, in her judgment, made a very important statement. The Department of Home Affairs (DHA) had, at the time, contended that South Africans who were abroad had “left South Africa in the lurch” and thus did not deserve the right to vote. Justice Kate O’Regan pointed out that the global economy presented opportunities to South African citizens, and citizens from other countries, to move to other countries to study and work, and the experience gained abroad would enrich South Africa when they returned, as well as enriching a sense of shared global citizenship. Many South African citizens abroad, so far from “leaving South Africa in the lurch” were in fact making remittances to family members in South Africa, or were saving money to purchase a house in South Africa. The fact that they still wanted to take the trouble to participate in elections was an expression both of their continued commitment to South Africa and their civic-mindedness, from which the democracy would benefit.

Ms Lovemore noted that although the order in the Richter case pertained only to voting in national elections, because of the timing of the matter, but her proposal covered both national and provincial elections.

She then added that, in addition to the
Richter case, and one month prior to the 2009 elections, another Constitutional Court case was heard. This case focused not only on South Africans living abroad being able to vote abroad, but also on those citizens being able to register as voters. That option was not, because of the timing, considered, as it was by then too late to have voters registered, but the Court had indicated that it was a matter within the Parliamentary remit, not within the judicial remit. The Constitutional Court indicated that Parliament was obliged to provide for a machinery, mechanism or process that was reasonably capable of achieving the goal of ensuring that all persons who wanted to vote, and who took reasonable steps in pursuit of that right, were able to do so.

A number of interesting points were made in that judgment. The Electoral Commission had said that the number of people who might be affected was unknown, but it was estimated that there could be as many as two million, in over 100 countries. Neither the Department of Home Affairs nor the South African Revenue Service kept accurate records of South Africans living abroad. It would be very difficult for the Electoral Commission, given the short notice in this particular matter, to register South Africans living abroad. However, Ms Lovemore stressed that if longer notice was given, it could no doubt attend to such registration.

She added that the judgment in this matter had also stated that “no party (had) disputed that Parliament had a range of choices open to it in designing that (electoral) scheme” but it was not for the courts to prescribe to Parliament which scheme should be chosen.”

In relation to the comment about “ensuring that all persons who wanted to vote… were able to do so”, Ms Lovemore quoted the 2009 statistics, saying that 16 300 applications for special votes for South Africans living abroad were approved, for persons living in London, Canberra, Dubai, and other smaller voting points overseas. The judgment in the Richter case noted that the only voting points would be South African embassies, South African High Commissions and South African consulates, and the only mechanism would be voting in person. In the USA, people were not able to travel all the way to Washington DC to vote, in the United Kingdom they were not able to travel to London, and thousands of South Africans living in cities in Australia and New Zealand were not able to travel the long distances to the capital cities where those embassies and consulates were situated. They were therefore effectively precluded from voting by logistics.

In addition, Ms Lovemore pointed out that many countries worldwide were not served by South African embassies, consulates or High Commissions. Only 198 countries were listed as having South African foreign representation or were served by
neighbouring countries, and only 105 of those had South African embassies, high commissions or consulates. 93 countries, including many in Africa, had no voting facilities for South African nationals. Even large countries, such as Australia, had only one foreign mission.

In order to address these concerns, her legislative proposal sought to allow that South Africans living abroad could cast their votes, in provincial and national elections, that the voting could take place at venues other than embassies, consulates and high commissions, that other methods other than voting in person could be adopted, and that voters could register abroad to vote abroad.

She noted that 114 of 198 countries in the world allowed for voting abroad by their citizens. Five methods predominated. The most popular and secure was personal voting, but postal voting was very popular. Proxy votes were also practised in some jurisdictions. Remote electronic votes had been used experimentally; and some countries also used voting by fax. The methods to be used would have to be carefully researched to extend inclusivity, without compromising the electoral system.

Ms Lovemore noted that there would be some financial implications to her proposal. These could, however, be minimised, if DHA and Department of International Relations and Cooperation (DIRCO) staff who were stationed abroad could be used to facilitate the process. It was
important to remember that the South African democracy was based on adult suffrage. The Constitutional Court had ruled that all South Africans had the right to vote, no matter where they lived. The expenditure incurred could not be considered as wasteful or fruitless.

Ms Lovemore stressed the urgency of her proposal, to allow for fairness and inclusivity in the 2014 elections. She repeated Justice O’Regan’s comments on the continued commitment to South Africa shown by people who had chosen to remain South African citizens whilst living abroad, and the benefit to the democracy from their civic commitment.

The Acting Chairperson was concerned that the cost implications would turn the legislation into a money bill.

Ms Lovemore assured her that it would not be a money bill.

The Acting Chairperson referred to the missions for people to vote abroad, noting that where there was no South African mission in a particular country there could still be people seconded from the embassy in a neighbouring country.

Ms Lovemore responded that most of the countries that did not themselves have South African embassies, high commissions or consulates were either served by
neighbouring countries or by honorary consuls. Honorary consuls did not ordinarily have an office. Although they could assist a South African abroad in cases of special need, such as liaison with family in the case of a death, they worked from home, not from registered offices. It was understood that this was not regarded as a secure environment. There was concern that the security of the electoral systems must not be compromised. However, there were other possibilities, such as perhaps arranging that post offices could be used as voting points.

Ms M Pilusa-Mosoane (ANC) felt the issue needed a lot of research, particularly in regard to voting facilities. She was also concerned about the financial implications, and the readiness of DHA to implement the systems.

Ms Lovemore agreed that much research would be needed, and that research would entail costs. However, much research had already been done, and the Independent Electoral Commission (IEC), this Committee and Parliament could build on that. A report had already been produced by the Institute for Democracy and Electoral Assistance, and the major universities, including University of Cape Town, were doing similar research into voting abroad. During the presentation of the DHA’s strategic plan in 2010, the Portfolio Committee on Home Affairs had received a verbal commitment by the Electoral Commission to undertake research into the possibility of extending voting abroad. This commitment was also noted in the Parliamentary Monitoring Group reports.

Mr L Suka (ANC) concurred that research must be done, especially into security and other measures that would have to be implemented. The capacity of the IEC and travel costs must also be considered.

Ms Lovemore agreed with Mr Suka’s reservations about security, and said that in-depth research would be needed to ensure that the free and fair election system was not compromised. Parliament should put in place an adequate legislative framework to allow the Commission then to create systems that would guarantee not only that the elections were free and fair, but also inclusive.

Ms S Kopane (DA) was concerned that the South African embassies may not have sufficient personnel to allow for access, and added that the research would also need to look at capacity issues. There were budgetary implications, which could not be known if the DHA did not have statistics on how many people were abroad.

Ms Lovemore felt that the financial implications would not be very large. DIRCO staff at embassies may not be adequate, but these embassies were staffed. It had not been necessary to appoint new staff in the 2009 elections. If postal votes were allowed, it was merely necessary to capture the registration, to send and receive back the ballot papers, and for the papers to form part of the national counting. She agreed that the research should, however, look at the capacity of embassies.

The Acting Chairperson asked whether it was necessary to have a legislative amendment, or whether a special project, such as extending the special vote, might be adequate.

Ms Lovemore responded that a legislative amendment was necessary. The current legislation was insufficient to cater for her proposal.

The Acting Chairperson thanked Ms Lovemore and said the Committee would follow the normal procedure in interacting with the proposed legislation.

Adoption of minutes
Minutes of Committee meetings held on 26 October 2011 and 2 November 2011 were adopted.

Interaction with Councillors from City of Johannesburg
The Acting Chairperson noted that a number of Members would have to leave at this point, because they had other meetings to attend, but that informal interactions with the City of Johannesburg would continue. She welcomed the delegates and explained that this Committee was a small, multi-party committee based on the Rules of Parliament, which gave guidance as to how the Committee was established, and its functions. It name of “Private Members Legislative Proposals and Special Petitions Committee” reflected the fact that any Member of Parliament was able to propose new legislation, or an amendment to existing legislation. Ms Lovemore had, for instance, just proposed an amendment to the Electoral Act, and had then outlined her legislative proposal. Petitions were dealt with differently, and here there were weaknesses and challenges, because there was currently no legislation that governed how things were done. Many issues were negotiated through the Chief Whips Forum of Parliament. The Committee would like to learn from the Johannesburg Metro and share experiences to establish if there was anything it could do better.

The delegates from the Petitions and Public Participation Committee (PPPC) of the Johannesburg Metro Municipality were introduced.

National Assembly Table briefing
Ms Marina Nel, Senior Procedural Officer, National Assembly (NA) Table, reiterated that the Committee on Private Members Legislative Proposals and Special Petitions was one of the committees through which private Members, as Parliamentarians and public representatives, could exercise their right to make a legislative proposal that they wished to introduce to the House. It was often seen as a vehicle more for opposition Members than for governing party Members, but that was not necessarily always so. Most of the business conducted in the House was government business. This Committee allowed all Members an equal opportunity to bring proposals, including corrections to existing legislation, or new legislation.

The essential difference between this Committee and the PPPC of Johannesburg Metro Municipality was that this Committee did not deal with general petitions at all. Although it could receive “special petitions”, this did not make it a petitions committee of the National Assembly, which was the essential difference between this Committee and the NCOP Standing Committee on Legislative Proposals and Special Petitions, which did deal with general petitions to the NCOP. The National Assembly had a different set of rules governing general petitions and public submissions.

In relation to the ability of private Members to submit legislative proposals, she noted that any Member of Parliament had the right to introduce a Bill. The Constitution also gave the House and Parliament the right to make its own rules and procedures, so there were rules that governed the way in which Members must submit their legislative proposals. Before a Member could proceed with a proposal, the permission of the House would be required, and this Committee served as a technical vetting mechanism to inform the House on how viable the proposal was, against a particular set of criteria. Any proposal submitted to the Committee would remain a proposal only until introduced in the house. If the Member received permission from the House to proceed with that proposal, the normal procedures governing a Bill would follow.

Ms Nel summarised the rules that covered initiation and processing of a legislative proposal. The private Member must draft a memorandum that set out what the proposal wanted to achieve, the particulars of the proposed legislation, (either proposing a new Act, or amending an existing one), the objects of the Bill and motivation, and whether it would carry any financial implications for the State. If there were financial implications for the State, then the extent could be a determent as to how the proposal was viewed.

Although the proposal had to be submitted to the Office of the Speaker, the Speaker did not check whether there was existing legislation covering that issue, or express any opinion, as that was the function of this Committee, so the Speaker merely tabled the memorandum and referred it to this Committee for consideration. At the same time, it would be tabled in the Order Paper. This Committee must then report back to the House on the legislative proposal, and the House would consider it. The Committee would recommend either that permission be given to the Member to proceed with the proposed legislation, or that permission be refused. If the Committee recommended that the Member be allowed to proceed, this Committee could express itself on the desirability of the proposal, and could make a recommendation with conditions. However, she noted that because the proposal was in the form of a memorandum, this Committee would not examine the details as would a Portfolio Committee, as that process would still follow, at the appropriate Portfolio Committee, if the Bill was actually introduced. All of these processes emphasised the importance of this Committee and the individual Members’ contribution to Parliament.

The reason why this Committee acted as a sort of screening agent was to minimise time and money, and not to burden Portfolio Committees if particular issues were not to be pursued.

The criteria against which this Committee would measure a proposal, to determine whether it was in order, included whether the proposal went against the spirit, purport and object of the Constitution, whether it sought to initiate legislation beyond the legislative competence of the Assembly, whether it duplicated existing legislation or legislation awaiting consideration by the Assembly or Council, whether it pre-empted similar legislation soon to be introduced by the national Executive. Consideration was also given to whether it would result in a money bill, and whether it was frivolous or vexatious.

Dr M Oriani-Ambrosini, a Member of the National Assembly, and also a Member of this Committee, had taken the Speaker to court on this issue, believing that the Constitution gave an unfettered right to Members, and that and Members should be allowed to introduce legislation to any Portfolio Committee, without prior vetting by this Committee. The judgment on that point was still awaited.

Ms Nel noted that, as part of the process, this Committee could consult with the relevant Portfolio Committee, provided that this did not unduly delay proceedings.

The desirability of the proposal was not a ground for recommending or rejecting a proposal. That was why the criteria set out were recently adopted. The desirability would be considered by the Portfolio Committee who received the Bill, if it was introduced, but this Committee aimed to fast-track the procedure, and it would also not hold public hearings. In summary, the functions and powers of this Committee were very specific, differed from those of other committees, and it had no power to process legislation.

Once the Committee had finalised its deliberations, made recommendations and tabled its Report, this was put under “further business for consideration”, and the House then had to take a decision whether the proposal could be proceeded with, in which case it would be referred to the relevant Portfolio Committee, or whether permission to proceed would be refused. If permission was granted, the Member would then approach the Secretary for some legal assistance in drafting the Bill.

Ms Nel then explained what special petitions were. Individuals could petition Parliament seeking financial relief, perhaps by way of a pension or other personal relief from the State, and most of these did relate to public servants’ requests in relation to pensions. There had not yet been any examples of grant applications. The individuals could only approach Parliament once they had exhausted al other avenues, and where the law did not make provision for their specific case. In the case of a grant, they might approach Parliament as a last resort, where they had not, because of some small technicality, qualified for a grant. This Committee, in conjunction with National Treasury, considered these special petitions. National Treasury was cautious of opening the floodgates to large numbers of petitioners, but this Committee’s responsibility, although it was a heavy one, was limited to cases where there was a lacuna in the law.

Ms Nel then said that there were rules around general petitions, which had to be submitted to Parliament via a Member of Parliament, on a prescribed form, with signatures. The Member who submitted that general petition would lodge it with the Speaker, and the petition would be tabled in that Member’s name. It would normally be referred to the Portfolio Committee dealing with the issues.

However, there was another type of petition, and in 2005 the Speaker had devised a method of dealing with “unsolicited submissions”, where private citizens would hand over letters seeking personal relief or assistance. Ideally, individuals should be able to seek assistance from Members or Parliament, but in practice constituency offices were not adequately resourced, and so the Office of the Speaker would vet whether the particular problem could be resolved by a Member, in which case the petitioner would be asked which party s/he wished to deal with the matter, and the Chief Whip of that Party would be asked to nominate a party member to assist, or, if it was a matter of principle, the Portfolio Committees dealing with those issues would be asked to devote some time to considering the petition and to give feedback to the Speaker.

Mr Steven Kotze (DA Whip), PPPC, asked whether special petitions first went to the Public Protector or to the Committee.

Ms Nel responded that normally a problem with pensions would be referred first to the Pensions Adjudicator, not the Public Protector. Once all other legal routes had been exhausted, and it was clear that the law did not make provision for that particular situation, the individual would approach Parliament with a special petition.

Mr Kotze said that when petitions were redirected to the national Petitions Committee from other spheres of government, the PPPC could receive a petition that it could not deal with, but it would expedite the matter. He asked if any similar procedure applied to this Committee, and what the turnaround time was likely to be. The PPPC was held responsible, by the petitioner, to produce a result timeously.

Ms Nel responded that because the NCOP dealt with matters of a provincial nature, and the South African Local Government Association (SALGA) was also represented in the NCOP, she assumed that local government and provinces would rather contact the NCOP to deal with these matters. The NCOP also dealt with general petitions so that would ideally be the Committee to whom these matters would be referred. The time period would depend on the workload of the Committee, and the time needed to get the role players together.  

Mr William Chuene, Member of PPPC, was interested in procedures for legislative proposals. The PPPC had a system of an agency report that was tabled, but the NA system seemed to be tighter.

Mr Chuene thought the legislative proposals seemed to cut across all departments and portfolio committees. He noted that members of the public could submit petitions through a Member of Parliament, instead of Parliamentary constituency offices, and thought that perhaps that system needed to be tightened, as individuals who did not have relationships with any particular Member may be sidelined.

Ms Nel responded that legislative proposals could only be submitted through Members of Parliament, and had to come to this Committee.

Mr Mbuyiselo Dokolwane, PPPC member, noted that any Member of Parliament could submit a legislative proposal or special petition, and asked if the House was able to reverse the decision of the Committee.

Ms Nel responded that that could happen. She cited that a Member had recently brought a legislative proposal to the House for 126 further amendments to the Protection of State Information Bill.

Ms Francina Mashao, PPPC Whip and Ward
Councillor, thought the Committee was a very powerful tool. She asked whether, if a matter was referred to the Portfolio Committee, this Committee would follow up on whether the matter was resolved.

The Acting Chairperson responded that when the Committee
received and considered the criteria around a legislative proposal, including whether similar legislation was to be introduced by the national executive, the Committee would refer a matter to the relevant Department, or Portfolio Committee or Minister, for comment.  The Committee could call a joint meeting between this Committee and another Portfolio Committee and request presentations. If legislation was in the pipeline, the Committee would include, in its recommendations, that the progress of that would be monitored, and the importance of meeting any commitments made by the Executive would be emphasised.

Ms Christine Walters, Chair: PPPC, said the reason for the visit by the Johannesburg Metro committee was twofold. The PPPC had recently been formed, and was seeking to strengthen and empower its own systems. Secondly, it wanted to meet with committees in other spheres of government, to strengthen intergovernmental relations. The PPPC sat with petitions, and often national departments did not respect the PPPC. This PPPC hoped to lobby for a change of attitude. There had to be a turnaround in how local government was managed. The PPPC sat with issues where the national government failed to implement the City’s bylaws, or hindered their implementation. The PPPC wanted to discuss how, for instance it could submit problems, or summons Eskom or Department of Public Works (DPW) to appear. She indicated that although Eskom generally did cooperate, particularly in respect of the greater Orange Farm Area, the DPW did not. The PPPC wished to build a better relationship with the National Parliament that oversaw national Departments. Some of the petitions handled by the PPPC were very difficult. One concerned cross boundary issues, between Ekhuruleni and the City of Johannesburg. There was a need to strengthen respect across the different spheres of government and ensure assistance to the community at local level.

The Acting Chairperson wondered if her Committee could, as part of its duties to enhance intergovernmental relations, look at ways to improve the workings of Parliament and ensure that petitions to local government were dealt with more effectively, or assist local government to be able to deal with the petitions they received. That was certainly a point worthy of consideration. All MPs were to serve their communities, and if their work did not enhance the welfare of communities, then they had failed in their constitutional responsibilities.

Parliamentary Petitions Procedures
Ms Sisanda Sipamla, Parliamentary Researcher, briefed the Committee on the procedures around Parliamentary petitions. She noted that petitions were one manner, provided by the Constitution, through which civil society was enabled to engage with Parliament. It was one of the means to enhance the public participation process. Petitions were formal requests by an individual or group, calling for Parliament’s intervention to address an injustice, either making a demand, or requesting redress of a grievance.

Two Parliamentary committees dealt with petitions that had a legislative component. The NA and NCOP may receive petitions from any interested person(s) or institutions in terms of section 17 of the Constitution. However, each House of Parliament had rules governing the procedure for the consideration of petitions. The Parliamentary Rules defined, made provision for, and differentiated between the two types of petitions. Special petitions were considered by the NA, whereas general petitions were considered by the NCOP.

Ms Sipamla noted that the action of petitioning Parliament should be the last resort, and a petitioner should have exhausted all possible remedies afforded by the law, before approaching Parliament. A Special Petition would one lodged by an individual requesting specific relief, in the form of a pension, or for services rendered by the State, for which there was no legislation providing guidance. A Special Petition would always result in a law being changed, because it would highlight a loophole that caused the petitioner to seek redress. A General Petition could be lodged by an individual or group of people who required relief of a general nature, and was dealt with at NCOP level.

Parliamentary petitions must be in the form prescribed by the Speaker of the NA or Chairperson of the NCOP, must be in one of the official languages, and must be signed by the petitioners, unless the Speaker or the Chairperson of the NCOP decided otherwise. Other requirements included a clear motivation for the petition and that it must indicate the nature of the relief asked, which Parliament was able to grant in terms of its authority.

A Special Petition must be lodged by a Member of Parliament on behalf of an individual or group in a prescribed form. That MP must lodge the petition with the Secretary to Parliament, who would review whether the petition documentation met the formal requirements. If the formal requirements were met, the Secretary would submit the petition to the Speaker of the NA for approval, before it was tabled in the NA. Once tabled, the Speaker must refer a Special Petition to the Committee on Private Members’ Legislative Proposals and Special Petitions. In respect of a General Petition, it must be referred to the relevant Portfolio Committee or other appropriate committee. Should the relevant committee find merit in the petition it may recommend that a bill be introduced granting relief. Ultimately, the Committee on Private Members’ Legislative Proposals and Special Petitions must consider and make recommendations to the Assembly on all special petitions referred to it by the Speaker in terms of Rule 315.

Petitions of a general nature were dealt with by the NCOP. Such a petition must also be deposited with the Secretary to Parliament, who must submit it to the Chairperson of the NCOP for approval before it was tabled in the Council. After tabling a petition in the Council, the Chairperson of the Council must refer the petition to the Select Committee on Petitions and Members Legislative Proposals. That Select Committee could refer the subject matter of the petition to the Executive, or a particular department, or other administrative agency for further attention, subject to the approval of the Chairperson. A Select Committee considering a petition was empowered to recommend to the NCOP any course of action it deemed fit and proper. The Select Committee was obliged to inform a petitioner of the decision or other courses of action regarding the petition together with reasons.

Ms Simpamla noted that there were differences between the procedures in the national and provincial legislatures. Unlike the provincial legislatures, Parliament did not have an Act detailing the procedures, turnaround times and punitive provisions in relation to petitions. The onus would be on the member of the public to find an MP to support and present their petition in Parliament. However, there were no provisions that would assist members of the public living in under resourced rural areas to better utilise this public participation tool. The current Parliamentary Rules pertaining to petitions were not adapted to the Constitutional requirements around public participation. Guidelines were needed on the relief that could be recommended in response to a petition. The Rules should stipulate timeframes for dealing with petitions, for responses from government departments and other bodies, and for informing the petitioner of progress in the matter. The current Parliamentary Rules did not have punitive measures in place to address non-compliance by bodies.

Because of the nature of petitions, which could currently relate to any subject matter, there was a call for recommendations to be made for the kind of relief that could be granted by the two committees. However, when there was no legislation to prescribe what form of relief could be granted, it was very difficult because it depended on the circumstances being faced at that moment. Committees would generally rely on legal advice and government agencies that played a role within that community, and who could advise on the issues and tap into Parliament’s oversight role. These committees were empowered to call in the stakeholders, or government agencies or departments, to account to the Committee and explain why issues were being raised by the community and who was responsible for following up on them. The role of the Committee was not to assist itself, but to follow up on how the matter could be handled in the community. This process began through community members having access, knowing who their ward representatives were, and knowing how to petition Parliament, even for issues as technical as access to water not being provided. These were Constitutional obligations and there had to be rules to speak to and strengthen the responses.

Ms Sipamla then turned to the background paper, which outlined various requests from the Johannesburg Metro.

She noted that Parliament did not have an electronic petitioning system, although the provincial governments did have such a system in place. Provinces had also overtaken Parliament by passing their own legislation, which met the Constitutional standards of how to deal with people. Parliament needed to have a framework within which to work.

The background paper looked at the role of Parliamentary petitions in promoting democracy, Parliament’s initiatives for public participation, mechanisms for public access to information, taking Parliament to the People, and marketing strategies and community awareness campaigns.

Numerous initiatives were embarked on by the South African Parliament to facilitate and promote effective, ongoing public participation in its various processes. There were several ways in which civil society members could get involved in the business of Parliament. The public could participate through making written submissions to the Parliamentary Committees, on issues that the committees may be discussing, or even those that the public may feel that they should discuss. They could request permission to make formal presentations to committees, using the published committee programmes which notified people of what was being discussed. The public could make submissions at public hearings (including Taking Parliament to the People). They could nominate suitable persons for appointment to vacancies or statutory bodies, who would assist in providing resources. The Committee could draw from available resources and expertise outside Parliament. Because of the general nature of petitions it would be hard for any municipality to have someone that was a specialist in all fields, so Parliament needed to be able to look at technical matters. Parliament had the responsibility to try to ensure that the Constitution was realised for all. Taking Parliament to the People enabled another platform for people to air their grievances and to see how Members of Parliament worked, to hear about these rules, and how to deal with matters.

Ms Sipamla concluded that Parliament complied with its constitutional mandate on public participation, and acknowledged the public’s involvement in its various processes. Several mechanisms had been developed over the years to promote, facilitate and oversee public access to information as well as public participation in the legislative processes in all the spheres of government.

In addition to the current initiatives, and other methods used by the public for their voices to be heard, the petition process could be used as an effective tool to promote public participation in Parliament, and make Parliamentary processes more accessible. This would also ensure that the monitoring mechanisms followed up that the relevant parties cooperated with the necessary processes for effective and efficient promotion and/or facilitation of public participation.

She stressed that this was why a National Petitions Act was needed, to guide the country as a whole, both nationally and provincially, on matters such as time frames and the kind of punitive measures that could be imposed on people who were not complying. This Act would speak to how communities could be informed of their right to petition and how to exercise it, instead of having public demonstrations that tended to be very violent and destructive. The Committee on Private Members’ Legislative Proposals and Special Petitions was passionate about having a National Petitions Act, was working on it and trying to get political backing for it. It was hoped that it would be in place by end 2014

The Acting Chairperson said there were shortcomings in the process, and one of them was that a petitioner would have to exhaust all other legal remedies before approaching Parliament. The reason was that Parliament could not adjudicate on a matter within the Court’s jurisdiction, but there was the problem of affordability that precluded many from taking all the steps. The Committee was examining the shortcomings. She noted that the Committee, although comprising of many parties, operated on a system of trying to reach consensus.

She emphasised that the Committee was passionate about the need for a National Petitions Act, but this was not shared by many others. The Committee would rather push for new legislation rather than an amendment of the Rules.

She thought that another shortcoming was the fact that a petition had to come through a Member of Parliament, as a petitioner was not afforded the opportunity to interact directly, but that MP may not necessarily share the same strong feelings as the petitioner (although that had not yet been the case).

Ms Walters said the PPPC fully supported an investigation into a new Act. The PPPC had been in existence for only four months but had done some exceptional work in understanding the petition as a tool. The petition was not only a document recording people’s complaints but was evidence of a democratic process that had matured for the people on the ground.

The PPPC was querying public participation at local government level. The PPPC was in agreement with the Mayor of Johannesburg that 50% of the behaviour of councillors must be based on a civic approach and not a party line approach, because then local government could become an institution that the community understood. PPPC and officials must have sensitivity in its approach to culture, people’s beliefs and the way it approached people. There was a tendency, in all three spheres of government to follow a bureaucratic approach. Taking government to the people and getting closer to the people did not equate to democracy in the participation. The PPPC felt that power relations between communities and service providers, including government, were unequal, that communities had no way to get satisfaction and boost their belief and confidence in government as an institution. There was a need to turn around perceptions of government.

Ms Walters believed that the Committee on Private Members’ Legislative Proposals and Special Petitions would consult with the municipalities, stakeholders and the people.  There was no common thread around management of petitions across all spheres.  PPPC of Johannesburg had met with the City of Cape Town; who managed its petitions under the Gatherings Act, which was not a participatory process, and was not considered as supporting democracy. She noted that there should be synergy between national government, the NCOP, the provinces and local government. Johannesburg Metro Municipality would lobby the Committee on Private Members’ Legislative Proposals and Special Petitions to ask that the powers at local government be reviewed. The Metro could only summons, and not subpoena, and she reiterated that there was difficulty in getting departments to respond, despite the fact that some of the cases were so serious and affected people’s daily lives.

Ms Walters noted that all avenues were based on the capacity of community members to take up a petition or a query. Since the inception of the PPPC, some of the petitions had been extremely volatile, but because it had changed its approach it had brought some credibility to the process. A National Act would empower the community. There was also a need for pro bono work, and it was suggested that this should be incorporated in such legislation.

Mr Kotze asked about public awareness of the rules, saying that frustration born out of ignorance led to toyi toyi, violence and destruction.

Ms Sipamla referred Mr Kotze to the section in the background paper on Marketing Strategy and Community Awareness. Both the NA Committee and the NCOP Committee spoke about creating more public awareness of the rules and their accessibility. The Rules were available on the Parliamentary website, but not everyone had access to a computer. The two Parliamentary Committees intended to go on public awareness campaigns, and have pamphlets distributed that would speak to the fact that the two committees existed in Parliament, and contain basic definitions of what petitioning involved, and how it could be used.  The plan was to distribute the pamphlets widely to places that would include community centres, provincial legislatures, schools, prayer facilities, clinics, and departmental offices, and Members would assist with awareness and distribution in their respective constituencies. Advertisements would also be placed in various newspapers (national and local) and radio adverts would also be recorded to be played on radio stations, to boost awareness.

Mr Kotze also asked about the status of petitions, noting that they could be formal or informal, and asking if both were accorded the same degree of importance.

Ms Sipamla said Mr Kotze was correct, an informal petition may take longer because it would need to satisfy the formal requirements, in terms of the Rules. Although the procedure for a formal petition was very cumbersome, that was what was set out, in rules that dated back to the 1960s. All new Acts were in line with the Constitution. The proposed new Act would allow for the public to participate in the democracy and assist people in the communities, instead of having violent and destructive protests and demonstrations.

Mr Kotze referred to the comment that provinces had moved further than the National Parliament. He supported the proposals to formulate an Act, rather than relying on Rules, but asked how long it would take to get such an Act in place, stressing the need to give a voice to the voiceless and to deepen democracy.

Ms Sipamla responded that this was a difficult question to answer, because it depended on technicalities, including garnering support, but she hoped it could be done during the Fourth Parliament.

The Acting Chairperson added that political buy-in would be important, but once that was gained, the process could take about six months. All parties would have to agree on something that affected the workings of Parliament. Much negotiation took place in the multi party Chief Whips Forum to ensure agreement.

The Acting Chairperson commented that there was currently little public awareness, although the Chairperson of the NCOP had, last year, initiated pamphlets detailing the work of the Parliamentary Committees. The legislation was important and would be prioritised for the next year. She thanked Ms Walters for her comments, which would assist the Committee, and stressed that this process would cater not only for the NA, but all spheres of government, and aimed to create a process that the public would be able to access easily, to enhance public participation.

Ms Pilusa-Mosoane said Limpopo had a Petitions and Participation Committee that went out to public hearings, and followed up on issues frustrating the community.

The Acting Chairperson agreed that the provinces were doing well in terms of petitions, but it was necessary to put something similar in place for all spheres. An Act would give authority.

Mr Peter Kute, PPPC member, noted that the Committee was reluctant to change the Rules, but if the current Parliament Rules did not provide for punitive measure to address non-complying bodies, then their recalcitrance could not be addressed.

The Acting Chairperson responded that it was not that the rules could not be changed, but this would be an expensive exercise, and it was felt that the Act was a more appropriate route. Parliament did have the authority to subpoena people, and this power extended to the Committee.  However this was rarely used, and only as a last resort. This was not included in the Rules because it was a Constitutional power, and a Chairperson would actually subpoena through the Speaker.

Mr Kotze mentioned that the Gauteng Petitions Act of 2002 might provide some guidance to the Committee.

The Acting Chairperson replied that there was draft legislation already, based on a study of all the provincial Acts but political buy-in was needed.

Johannesburg Metro Municipality presentation on Operation of Committee Meetings
Ms Walters gave a presentation on the operation of Committee meetings of the Johannesburg Metro Petitions and Public Participation Committee. She noted that during the last dispensation, Gauteng province took a decision that the City of Johannesburg and Ekhuruleni should run a pilot project on the separation of powers. In the last five years the Metro had learnt quite a bit and had cemented the separation of powers, but was still maturing the system. After the local government elections in May 2011, the Executive Mayor and the ANC decided that the Ethics Committee and the Petitions and Public Participation Committee must have separate Chairs, rather than the Speaker continuing to chair them. Much was learned about proper public participation, including how to be democratic in the constituency, and how the community would speak to government if there were no good communication tools to make them understand how the Metro functioned, and how to run civic education.

The new Committee had a new philosophical approach, based on a developmental approach, and a social development and transformation agenda. The PPPC was struggling, however, to get the administration to align with that approach. The PPPC had the power to summons, but could only summons the Member of the Municipal Council, then the department. The Committee would like to change that, and be able to first summons the officials, and then the political head. Most of the time, an official, once summonsed, would be able to attend to the request by the community, which most often related to service delivery, rather than hiding behind the political office.

The Committee did not have time to play political games, but wanted to adopt a professional approach that recognised that the most important person was the petitioner, who must be accorded due respect and good treatment. Any one petition could involve a number of phases. The Committee would have to look carefully at every petition, and it received between 40 and 50 petitions per month. It had held fifteen to twenty round table discussions per month, and site visits, to deal with the different phases. Although the community might not be happy with what the PPPC resolved, at least it was confident that its concerns were being considered. By adopting this new approach, many of the former protests had been halted. In some cases community groups fought each other, and the PPPC hoped to be able to bring peace at least, whilst recognising that not everyone would get what they wanted. Any body that was petitioned should be able to defend the administrative justice positions taken, prove that public participation had taken place and that the utmost respect had been shown to the community. Because the PPPC was responsible for petitions, public participation, and community dialogue it was also doing civic education. If the community was confused about the role of national government, the Committee could explain the role of national government, or provincial government, and what the Speaker could do. All complaints being received against councillors could be referred to the appropriate body for a follow up. Most communities were not even aware that they could raise concerns against the Council, and in all meetings the community was urged not to try to take the law into their own hands, but to follow due process.

Ms Walters said that there were Standing Rules to help the PPPC, but they were not strong enough.  Ultimately, it was hoped that Rules would be established to allow the Committee to take the matter to Council, which was the highest body, who should be able to impose punitive sanctions. The PPPC itself did not want to exercise that, but did want the power to summons. Council, officials and departments, and the MMC should be attending to corrective measures and responding to basic service delivery issues. The Council and the Municipality would wish to hold development summits to explain processes to communities, as doing a once-off Growth and Development Search and Process was not helping the community.

The PPPC had administrative support, but needed to have a paradigm shift in the approach of the officials.  The work was very tedious and took a great deal of time. The current legislation did not help the PPPC, whose members were full-time, and did not have the capacity to attend ten to fifteen hearings per week. There was a need to turnaround the City Manager and the whole Executive of a R30 billion organisation, but there was not enough support. However, the PPPC would still pursue its current approach, because it believed it was correct, and would realise true democracy, public participation and enhance community capacity, which was desperately needed to empower communities.

The Gauteng Petitions Committee was well and alive, and was doing its work. It came down hard on the PPPC, although there was nothing to say that the Executive should help the PPPC in presenting its case at the provincial committee. The PPPC currently had one petition of a national nature, and was struggling to get a response as to how the Gauteng Petitions Committee would respond to the national petition. The PPPC had been on site, met with the community, witnessed the problem, but had to get the Executive to be accountable. For this reason it would strongly support a National Act.

Ms Walters stressed again that petitions were a wonderful tool to stop marches, if managed correctly, and if the depth of public participation and democracy were understood. They did, however, involve much work and much energy, and once again she said that no support was given to the PPPC. Petitions against councillors would be taken to the Ethics Committee and, if necessary, to the Integrity Officer, a retired judge. It would then go back to the Council for a final decision, and would be recorded by the MEC.

There had been only one march in Johannesburg over the last four months, and that one could have been avoided if managed correctly, by formulating a six-month strategy with the 64 NGOs who had marched to protest against the short notice of termination of their contracts. Whilst communities were still angry and had various issues that needed to be resolved, and some were misbehaving, the PPPC nonetheless believed that its approach was correct. She commented that some amazing people were living with the poorest of the poor, and their dignity must always be respected. The PPPC was passionate and committed to its work.

The Acting Chairperson asked whether complaints against councillors would generally relate to conduct or service delivery issues

Ms Walters responded that the complaints cut across a number of issues. A lot of the councillors were arrogant, and did not consider the culture of the community or the individual. Communities would be angered if Western culture principles were followed, without respecting the rights of elders. Even African people were forgetting their traditional principles. Councillors were also under severe pressure and other spheres of government did not help, which was why the PPPC tried to educate communities as to what they could expect of councillors. In some cases, Councillors had misbehaved, but that was rare. Often the Speaker would ask the Chief Whip to take the Councillor through a protocol process.

The Acting Chairperson said there was an Ethics Code for Members of Parliament, and any MP who erred would be investigated by the Ethics Committee, and either fined, or reprimanded by the Speaker and required to apologise.

Ms Pilusa-Mosoane stressed that education of communities was key to easing their dissatisfaction and stopping the marches. She asked how round table discussions with the communities had affected the level of anger in the communities.

Ms Walters responded that the communities were angry, but once they realised how the PPPC was responding, they would be more accepting and calm, which could buy time for the resolution of the complaints. People would become more accepting once they realised that they were respected, were heard and were given time. Even when they accepted that they could not win, they appreciated being taken through the process.

A Member asked whether Ward Committee members were involved in the round table discussions.

Mr Chuene responded that the Ward Committees were indirectly involved because their communities submitted petitions. They would be informed, but would not necessarily be called to the meeting. He added to the earlier responses about engagement with petitioners, saying that the number of complaints had been reduced, but there were isolated incidents where things were blown out of proportion for political reasons, rather than service delivery related needs. The whole exercise then degenerated into points scoring, distortion of information and false accusations being levied. Where there was a genuine need in the community, results would be seen.

Ms Walters added that the Ward Committees fell under the PPPC. New Ward Committees would be elected in January and the IEC would be brought in, because that was also contentious and a political problem. The Committee also intended running an educational programme with the Ward Committees, and would observe the elections. The Committee would in future summons councillors as well as Ward Committee members who did not work or did not add any value. It was expected that the Ward Committees would operate completely differently in future.

Ms Mashao said the PPPC was trying to minimise arrogance, and simple explanations as to the role of the Committee helped people to understand the issues. The issue of intergovernmental relations sometimes provoked the communities, if the Minister would, without notifying the Ward Councillor, visit an area and deliver speeches containing promises that could not be implemented for many years, leaving the Ward Councillor with the problem of having to deal with a dissatisfied community.

Mr Kotze said it was noticed that numerous petitions called for traffic restrictions including speed humps, but if they were put on one road, then all other roads called for them. The Road Traffic Management Agency had said it could not exclude bad behaviour by drivers. Speed humps were not the only answer.  The public could be educated, and there could be better law enforcement, although it must be remembered that the latter would address only the behaviour at the time, and the drivers would immediately revert to their poor behaviour or attitude. He noted that public education was a long-term issue, and some people persisted with the same behaviour no matter how much education they were given. Ward Councillors were encouraged to engage with communities and explain the interventions for road safety. He noted that the volume of petitions may result from lack of work by councillors, for if a councillor failed to act, a petition would be lodged. If work ethic problems could be picked up where they occurred, fewer petitions would be needed.

The Acting Chairperson thanked Ms Walters and the team for the meaningful interaction, which had enhanced their work and relations.

The meeting was adjourned.


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