Regulations under Protection from Harassment Act & Biodiversity Act status: deliberations

Meeting report

Consideration of regulations under the Protection from Harassment Act
The Chairperson briefly outlined that the business of the Committee was to consider two sets of regulations, but the Table Staff of Parliament also wanted to raise an issue of principle on how matters should be taken forward. He noted three apologies, all due to illness, but hoped that a quorum of eight members would be present soon.

Adv Frank Jenkins, Parliamentary Legal Adviser, noted that the Protection from Harassment Act came into operation immediately after the regulations were submitted to Parliament. The Parliamentary Legal Services Unit had looked at the scrutiny criteria, and the matter was fairly straightforward. The Minister was, through the regulations, creating a legal and social infrastructure for the courts to work together to ensure that if someone was harassed, a protection order could be obtained. The regulations set out the various forms that must be completed, and submitted by way of an affidavit to the Clerk of the Court, and how the South African Police Service (SAPS) must deal with those documents and evidence. The Protection from Harassment Act created many obligations for SAPS, and there was also a linkage to the firearms legislation, so that a person who was the subject of a protection order would not be able to get a firearms licence. All these formal aspects were covered in the regulations. There was no problem with retrospectivity, and the regulations did not impinge on the Court’s jurisdiction.

Discussion
The Chairperson summarised that it seemed that the regulations dealt with purely procedural matters and did not infringe against any of the criteria this Committee was to consider.

The Chairperson noted that there was a need to discuss whether, when a principal Act stated that the Minister must make regulations and “submit” them to Parliament, that meant that the regulations must come via this Committee, or go straight to the House. His view was that all regulations should be directed via this Committee, to ensure that it was fulfilling its mandate.

Adv Jenkins agreed that this was probably the correct procedure.

Other Members also agreed that this made sense.

The Chairperson therefore, after ensuring that all Members had a copy of the draft Committee Report in front of them, and once there was a quorum, read out the draft Report, which stated that the Committee had studied the regulations and were satisfied that they did not infringe against any of the criteria set out.

Members adopted the regulations and report.

Alien and Invasive Species Regulation, referred in terms of section 8(3)
Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, noted that the regulations on Alien and Invasive Species had been referred to the Chairperson of the NCOP on 5 February 2013, and they were thereafter, on 25 February, referred to the Select Committee on Land and Environmental Affairs and this Committee. The regulations were submitted by the Minister of Water and Environmental Affairs for approval in terms of section 8(3) of the National Environmental Management Biodiversity Act (the Act), read with section 146(6) of the Constitution, which provided that the Minister must submit all subordinate legislation issued in terms of this Act which affected provinces.

The Parliamentary Legal Unit was satisfied that the regulations were in order, did not impinge on the jurisdiction of the court, were not retrospective and appeared to conform to the objects of the Act. The only comment that it wished to make was that both “listed invasive species” and “MEC” were defined in the regulations, despite also being defined in the principal Act. The general drafting style was that if definitions were in the principal Act, they did not need to be repeated in the regulations.

The Chairperson called for, and received, confirmation from Members that they had received the regulations.

Ms Shahida Bowers, Procedural Adviser, Procedural Services Office, NCOP, Parliament, said that she would speak to some procedural issues. She noted that these regulations were submitted in terms of section 146(6) of the Constitution. However, the correct interpretation of section 8(3) of the Act, read with section 146(6) of the Constitution, was that the Minister should only have submitted the regulations for approval if there was a conflict between national and provincial legislation. The Department of Environmental Affairs (DEA) had confirmed that there was no such conflict. Therefore, she said that there was no legal basis requiring the Minister to submit the regulations for approval.

However, in terms of Interim Rule 3(2)(c), this Committee may agree to scrutinise any delegated legislation, so it could deal with the matter.

She suggested that the Committee Report should confirm that the Committee had looked at the regulations and was satisfied that they did not contravene any of the scrutiny criteria. She further suggested that the regulations be referred back to the DEA, noting that there was no legislative requirement upon the DEA to submit them for approval or disapproval. Only section 8(3) of the principal Act spoke to the submission of regulations, but that was limited to circumstances set out in section 146 of the Constitution, so this was quite a unique situation. The second part of the Committee Report should then read that the Committee had resolved “(b) that the regulations be referred back to the Minister of Water and Environmental Affairs, given the absence of legislative authority requiring the Minister to submit the delegated legislation to Parliament for approval or disapproval.” Members were provided with a copy of the draft Report.

Ms Bowers stressed that this did not mean that the Minister would have to resubmit the regulations, but it was necessary to inform the DEA of the current situation as it had been following up. The Joint Rules as well as Interim Rules required the Committee to report to both Houses. The interim Rule that had established this Committee required it to exercise its powers and functions in accordance with the rules applicable to joint committees, and specifically report to the NCOP on delegated instruments. 

Discussion
The Chairperson was happy with the paragraph (a) of the draft Report, which referred to the fact that the Committee had looked at the rules and was satisfied that they were in compliance with the scrutiny criteria. However, he had some doubts on the suggestion that the Committee should refer the regulations back to the Minister. He had thought that all regulations should come to Parliament, as the ultimate law-making body, and by referring them back, he was worried about the implications that Parliament may be abdicating its right to be the final arbiter on subordinate legislation.

Mr H Greoenewald (DA, North West) said that he felt that “refer back” implied that the regulations must come back to the Committee.

Ms S Kalyan (DA) wondered what the draft Report was trying to state specifically.

Ms Bowers summarised that it must be made clear to the DEA that the Committee could not consider the matter, under section 146(6) of the Constitution, given that there was no conflict, but that the Committee was acting under the Rule 3(2) mandate that it may look at delegated legislation. Clearly, if there was any conflict in the regulations, they would have to come to Parliament.

Mr N Koornhof (COPE) asked if Parliament was merely taking the word of the DEA that there was no conflict, or whether it was satisfied on this point. He wondered if the Committee should not adopt the regulations but note that, in future, they would not need to be referred to Parliament in the absence of any conflict between national and provincial legislation.

The Chairperson asked Ms Anthea van der Burg, Content Advisor to the Committee, to specifically check and state in future that there was not a conflict, as the Committee should not merely take the word of the Department on this point.

The Chairperson thought that the Committee should approve that the scrutiny criteria were satisfied, but simply record that there was no conflict, and he asked if there would be any harm if the regulations were not referred back to the DEA.

Adv Jenkins responded that section 146 of the Constitution was quite difficult to understand, and the Parliamentary Legal Advisers had done some research on it. The approval was not a purely academic exercise. He noted that both provincial and national legislatures could, under this legislation, act, as both were competent authorities. However, whilst the Court was generally required to prefer an interpretation that would avoid conflict, there may be some instances in which there was a conflict that could not be resolved. In terms of the constitution, the provincial legislation would, in this instance, prevail unless certain requirements had to be met to ensure that national norms and standards, or overall environmental protection, were respected.

Adv Jenkins added that it must also be noted that if the Minister submitted regulations to Parliament, they would, in terms of the Constitution, be deemed to have been approved 30 days after the first submission. That had an implication in that the Court would have due regard to that point when trying to resolve any conflict.

When dealing with environmental protection, should there be a difference in regulations, it must also be remembered that the national legislation had to be passed through the provinces, by way of mandating procedures. The provinces had the opportunity to bind themselves to the national norms and standards. If the national Parliament did not state that it was not approving the matter, it would be deemed approved, and that might cause a problem if a provincial legislature had passed legislation already on that point – perhaps growing of certain plants in a certain area. The NCOP would then have to weigh up the comparative provisions.

Adv Jenkins added that Mr Modibede Phindela, the Secretary to the NCOP, also had made the point that when the principal Act was drafted, the national Parliament had approved this delegation provision, and was therefore bound by it. He agreed that in the absence of a conflict, in terms to section 8 of the principal Act, there was in fact no authority for the Minister to submit the regulations to Parliament. However, because the Minister had done so, Parliament had to consider the matter, and give reasons why it did not approve those regulations. He suggested that perhaps the Committee Report should note that there was no conflict, and therefore that there was no need to approve the regulations under section 8(3), read together with section 146(6) of the Constitution. Parliament could not merely let the matter slip without commenting. If nothing was said, the DEA would assume that the regulations were approved.

The Chairperson noted that Adv Jenkins’ statements were moving from the premise that the regulations would be approved.

Adv Jenkins noted that the Committee could approve the regulations insofar as they complied with the scrutiny criteria. However, it should not recommend to the NCOP that they be approved under the sections of the legislation quoted.

Mr Koornhof and Ms Kalyan thought that Mr Jenkins was correct, and it must be stated that because there was no conflict, the regulations could not come before the NCOP.

Ms Kalyan suggested that the wording be altered to reflect this specifically, perhaps by including a reference to "in the principal Act".

Mr Koornhof agreed, and added that Parliament should indicate that because there was no conflict, the matter was being referred back.

Mr Modibedi Phindela, Secretary to the NCOP, agreed that section 146(6) of the Constitution did not apply in this case; there must be two sets of regulations before there could be said to be a potential conflict, and here, there was only one. Since the regulations did not comply with the “conflict” requirement, that was the end of the matter. Section 102 of the Constitution said that national legislation could outline the procedures to be followed when approving delegated legislation. In this case, the Biodiversity Act did not authorise approval by Parliament, and he doubted that the Committee wished to follow the route of approving when there was no legislative mandate to do so. That was why the Table Staff had recommended adopting a resolution that specifically stated: “given the absence of legislative authority". If Parliament had initially set the power to approve, then the Committee would have been justified in approving or disapproving the regulations, but in this case there was no authority.

The Chairperson said that the reason this Committee was formed was to look at all delegated legislation, and to ensure that any regulations must come back to Parliament for a final stamp of approval. If there was no authority in the principal Act, then Parliament’s hands were tied. One debate for the future might be whether Parliament was in fact giving away its powers by not having these kinds of provisions, and, if so, whether there was a need for this Committee, and whether that was constitutionally correct. He was worried about the potential for the executive, in future legislation, to leave out any provisions that Parliament must approve subordinate legislation.

Adv Jenkins agreed with the Chairperson. However, it must be remembered that this was a new Committee, and essentially a transitional phase, and Parliament had become more conscious about delegation. The requirement that Parliament should, through this Committee, look at delegated legislation should be included in each parent Act. However, it must be recognised that many Acts did not contain this provision, and it was perhaps too time-consuming for this Committee to check all legislation. Another way to deal with the issue could be to amend the current Interpretation Act, or even to draft a new Act, to state that all regulations must come to Parliament for scrutiny. That had implications on the capacity of the Committee, but in principle the idea of tabling regulations for scrutiny was sound. The Gauteng legislature had made legislation to this effect, and many other countries, primarily New Zealand, were also following this route, as set out in the report on delegated legislation. He agreed that where Parliament had “given away” its powers in the past, it could only get them back by passing subsequent legislation.

Mr Phindela fully agreed with Adv Jenkins on this point, noting that delegating power to the Minister to make regulations was essentially giving some power away, and there had to be specific provision to bring it back.

Members again went through the last portion of the Report, and Mr Koornhof and Ms Kalyan said that they still thought that specific references were required to the applicable legislation. Mr Koornhof asked that paragraph (b) must be worded in such a way that it could not be interpreted as Parliament in general giving away the power to approve delegated legislation.

The Chairperson agreed, and again reiterated that he did not want to provide the executive with “a licence” to leave out the authority of Parliament in future legislation, and thought that the wording “given the absence of…” was inviting the executive to find loopholes.

Mr Phindela noted that the regulations were purportedly submitted to Parliament in terms of section 146(6) of the Constitution, and the Committee could confine its remarks by saying that the regulations did not require approval, in terms of that section.

Members agreed that this would be better wording.

Mr Phindela asked if Members still wanted to include the first paragraph of the resolution, pointing out that because there was no conflict, this Committee did not in fact even have to consider the matter.

The Chairperson said that it should be included because this Committee wanted to insist that all delegated legislation come to the Committee.

Having ascertained that there was a quorum, the Chairperson read out the amended draft Report, which was adopted unanimously.

Status of the Committee
Ms Kalyan commented that she regularly raised the matter of the status of this Committee, at the Programming Committee, because she was concerned about the work piling up. She had urged that the necessary Joint Rules give formal approval to the Committee.

The Chairperson noted that an academic from University of Western Cape had questioned whether this Committee was legally constituted. However, he made the point that the Committee was established by a resolution of both Houses of Parliament, which was superior to a Rules decision, and he believed that this settled the issue. He was convinced that the Committee had the necessary mandate, despite the absence of a specific Rule.

Ms Kalyan accepted that, but also noted that a report had been made at the previous week’s Programming Committee, by the NA Table, on what must be done for this Committee, which maintained that a Joint Rule was needed.

Mr Phindela agreed that he too had no doubt that this Committee was legitimate; having been established by resolution of both Houses, it was a sub-structure of both. The guidelines were referred to by the Joint Rules Committee, but they were not the founding document, and were merely for purposes of operation of this Committee. He hoped all Members were satisfied that the Committee had been properly established by resolution of both Houses.

The Chairperson suggested that Ms Kalyan convey this to the Programming Committee.

Future meetings
The Chairperson noted that the next meeting would have to be held before 31 May. The Portfolio Committee on Transport was waiting for approval of the regulations. Parliamentary Supply Chain Management regulations would also be on the agenda.

The meeting was adjourned.