Committee deliberations on mandate, amendment of joint rules, amendment section 73(4) of the Constitution

Constitutional Review Committee

14 June 2013
Chairperson: Mr B Mnguni (Free State/ANC); Co-Chairperson Mr S Holomisa (ANC)
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Meeting Summary

The Committee firstly considered the proposals for amendment of the Joint Rules of Parliament, which would expand the mandate of the Constitutional Review Committee. It was explained, by the Parliamentary Legal Advisers, that when a bill dealing with a constitutional matter, as provided for under section 74 of the Constitution, was introduced, the House could refer it to a joint committee for further processing, which would be an ad hoc committee. The other alternative was that the relevant portfolio committee in the National Assembly (NA) could consider the bill, pass it on to the National Council of Provinces (NCOP) relevant select committee, and they would report back. Because joint processing was rarely used, the Parliamentary Legal Advisers suggested that rule 209 of the NA rules, and rule 169 of the NCOP rules be amended, to oblige those committees to consult with the Constitutional Review Committee (CRC) when dealing with the matter.

A further issue was whether the rules could be strengthened to allow the CRC a more active role in influencing the processing of a constitutional amendment bill. Joint Rule 102 reiterated that the CRC must review the Constitution annually. One of the options that the Legal Advisers drafted was that the CRC must consider any constitutional amendment bill before it was referred to the relevant portfolio committee, to consider whether the amendment was in the public interest and was needed, and a report must then be made to the portfolio committee. However, a clause-by-clause interrogation would not be done and it would be necessary to avoid duplication. Members noted that this was similar to the way the committee dealing with scrutiny of delegated legislation operated, and said a motion of desirability was possible. Members, after discussion, decided that rather than deciding finally on one or the other option, it would capture both in its report to Parliament, and ask the Rules Committee, which would ultimately be amending the rules, to decide which was the preferred option. Members then adopted the Committee Report on the topic, which covered wider matters, including the report on the workshop, and debated the best options for the Committee to meet to consider constitutional submissions. Examples from other countries were noted, and it was suggested that the work of this Committee should be regarded as taking precedence over other committees’ work in August, to enable it to finalise all submissions. They did not agree with a suggestion that a bill could be referred back to the drafters, and amended recommendation 6.3.

Another Parliamentary Legal Adviser gave an introductory briefing to the Committee on a request from the NCOP that this Committee consider section 73(4) of the Constitution, which presently stated that only a Member or Committee of the NCOP may introduce a bill in the NCOP, and expressly excluded Cabinet Members and Deputy Ministers. This was in contrast to section 73(2), which gave the Executive and Cabinet the opportunity to introduce Bills into the NA. The problem was essentially a practical one, since in fact around 99% of bills were introduced in the NA, leaving the NCOP with very tight tightframes to conclude its deliberations. The arguments that may have been advanced at the time were examined, and reference was made to the matter between Dr Ambrosini and the Speaker, when the Court had stated that clear distinctions must be drawn between “initiate”, “introduce”, and “prepare” in relation to bills. The Committee would essentially need to take a policy decision on this point.

Meeting report

Constitutional Review Committee: Expansion of mandate: Proposed amendments to the joint rules
Dr Barbara Loots, Parliamentary Legal Adviser , presented the proposed amendments to the joint rules, which would expand the mandate of the Constitutional Review Committee.

Dr Loots noted that when there was a Constitutional Bill (section 74 of the Constitution) in Parliament, there were basically two options. Firstly, the House could refer a section 74 bill to a joint committee for further processing, as outlined in the previous meeting. However, in this case the joint committee would be an ad hoc committee, and would not impact upon the Constitutional Review Committee. However, Joint Rule 167 could be amended to place an obligation on an ad hoc joint committee, when processing a section 74 Constitutional Amendment Bill, to consult with the Constitutional Review Committee.

There was also a possibility of expanding that, because it was not always a joint committee process to amend a Constitutional Bill. If not, then the National Assembly Portfolio Committee (usually that on Justice and Constitutional Development) would consider the Bill, then pass it on to the relevant National Council of Provinces Select Committee, where a similar process would take place and they would report back.

Dr Loots said that she had spoken to her colleagues in the NA, who had confirmed that the joint processing of a bill was rarely used. An option was therefore now included for a consequential amendment to rule 209 of the rules of the NA, to place a similar constitutional obligation on the portfolio committee to consult with the Constitutional Review Committee, and similarly an amendment to rule 169 of the NCOP rules. Nothing in the rules currently prevented an NA or NCOP committee from consulting with the Constitutional Review Committee, but this would strengthen the consultation option if a Constitutional Amendment Bill was referred to the NA and NCOP, rather than a joint, committee.

Dr Loots also noted that this Committee had instructed her to look into an amendment of the rules to allow for a more active role of this committee in influencing the processing of a Constitutional Amendment Bill. She had looked into the functions and powers outlined in joint rule 102. This echoed the Constitution, stating that a committee had an obligation to review the Constitution annually. It also spoke to the calls for public submissions.

She and her colleagues had also prepared a third option. Under this, the Constitutional Review Committee must consider any Constitutional Amendment Bill before it was referred to the relevant portfolio committee in terms of rule 261 of the NA, and must table a report in the NA (and, where applicable, the NCOP, as an annexure to the Constitutional Amendment Bill). In doing this, this Committee would make active considerations on the Bill and whether it was necessary to review the Constitution. In relation to the public submissions, there was room now for consideration as to whether the proposed amendment was actually in the public interest, and if there was a need for it. She said that the report would be seen as part of the “package of information” that the relevant committee to whom the Bill was referred must consider. Essentially, this Committee would be the first stage of the process, before the Bill was referred to other committees.

It was now up to Members to consider whether they wished to take the proposals of the Parliamentary Legal Advisers further. She noted that as far as she was aware, the Joint Rules Committee was currently looking at a review of the NA rules, and therefore it would be ideal if the amendments could be incorporated into the general overview. She reminded Members that there were likely to be consequential, or knock-on effects also on other rules.

Advocate H Schmidt (DA) wanted clarity on what exactly the Committee was being asked to consider. He asked if the reference to public submissions meant holding of public hearings or submissions. He wanted clarity on what exactly Dr Loots was proposing that the Committee would have to do.

Dr Loots responded that it was up to committees to dictate their own internal processes, so if Members wanted more clarity or wanted to add any rules, they should stipulate what they wanted to see done. However, there were certain processes in Parliament. When a committee was specialised it generally did not deal with the processing of bills and therefore did not record public hearings. She said that this would be a new venture and that the committee would have to consider it. This Committee would not be doing a clause-by-clause interrogation of a constitutional bill. It would have to look into whether it would be duplicating what the relevant NA and NCOP committees would be doing when calling public hearings. For this reason, there was a need to strengthen the consultation option so that they held the public hearings at the same time then the Constitutional Review Committee would be able to table a report. She said that this was something that had to be workshopped and decided upon in a practical way, given that it was something new.

Advocate A Gaum (ANC) said that all the options presented seemed to be more or less based upon on the same approach as taken by the committee dealing with the scrutiny of delegated legislation committee. It was not required that a motion of desirability be passed by that committee. He added that Mr S Swart (ACDP) had stated, in the previous meeting, that the committee acted like a gate-keeper. He wondered why a motion of desirability had not been considered; he referred to it as a gate keeping option.

Dr Loots responded that there had been comment on the public interest. A constitutional amendment would have this gate-keeping element; she had referred to the need to evaluate whether what was before the Committee was in the public interest and said that this element of the amendment was, in her view, very much linked to desirability. It was possible to rephrase the wording if the Committee thought this was necessary. She agreed that the rules that applied to the committee dealing with delegated legislation could be tweaked.

Co-Chairperson Mr S Holomisa (ANC) said that the advice by Dr Loots was useful and captured the Committee’s objective. Option 2, to his mind, said exactly what the Committee had in mind, given that it was a committee established by the Constitution in order to review. However, he agreed with the comment that this Committee was not required to consider bills in the same way as other committees that had to pass those bills through the Parliamentary process. Something like a motion of desirability, or determining whether the proposal was in the public interest, was what the Committee needed to do. He agreed that the Committee now needed to choose its preferred option, or it could even set out the two options in its report to Parliament, and leave it up to the Rules Committee to determine which was the better option.

The Chairperson asked the Committee Members for their recommendations.

Mr N Koornhof (COPE) was in favour of the proposal to set out both options in the Committee report.

Advocate Gaum agreed, but felt that the paragraph 6 of the one option seemed to soft, as it did not place an obligation on the Committee. He read it out, but then noted that he had just noticed that the Committee was obliged to consider with the Constitutional Review Committee, and withdrew his earlier remark.

The Co-Chairperson proposed that the Committee consider the option set out on page three of the draft report. If either option was adopted, the Committee must adopt paragraph 9.

The Chairperson noted that the proposal to set out both options was made and seconded.

Committee report
The Chairperson asked Members to adopt the Committee Report.

The Co-Chairperson said that, ideally, every committee had to submit a report every year on the work it had done. This would include a report on the various submissions, as well as the workshop it had conducted. It would also include a statement on the Committee’s mandate, the conclusions reached on this amendment, and what option it had chosen to take.

He noted that the report on the workshop was the Committee’s own report, and said Members must adopt it and submit their conclusion. The delay in reaching a conclusion was due to the fact that, despite the experts’ briefing, more research had been requested into what other countries similar to South Africa were doing. The research paper had been circulated but was not sure whether it had been presented or not.

Dr Loots said she had handed in her initial research. The material she had gathered from Ireland and Finland was presented in the previous opinion, which preceded the drafted options. Ireland had a committee that dealt with constitutional review, looked at public submissions, and drew up reports on the possibility of constitutional amendments. Because it had a bicameral system this was relevant for further research. Finland also had a committee that did constitutional review, but this country had a unicameral system, with no joint referrals as applied in South Africa. However, this country’s committee did actually run with the constitutional amendment bills, and it might be of benefit to this Committee to consider how it did so. Her office sent a questionnaire to the representatives at the Irish and Finnish parliaments, asking what the mandate of their specific committees was. In the opinion, she had set out her previous opinion. On page 5 there was a note on Ireland, and on page seven, a note on Finland, which basically looked at the mandate of the different committees and what rules enforced that mandate, as well as how those committees worked within their respective parliamentary systems. The answers obtained were attached as well, for consideration.

The Co-Chairperson asked if the Members had any questions or comments. He also asked if they needed more time to think about the report. He thought Finland’s committee seemed more similar, since this, according to the report, was a constitutional law committee whose mandate was to examine legislation under a jurisdiction, and which held an essential role on the constitutionality and conformity to the human rights of all human beings. He suggested that this was a chance to study the position on constitutional reviews in other countries still further, including Finland.

Advocate Gaum referred to page 8, where he recommendations were set out, and wondered if there should not be amendment of 6.3, which read “if the CRC is of the view that the amendment is unwarranted, such a bill would be referred back to the drafters to consider the grounds of the rejection...”. That was not really in line with the proposals sent to the rules committee. It seemed strange to have a workshop with recommendations on what actually emanated from the committee.

The Co-Chairperson asked how it differed from the proposal to the joint rules committee.

Advocate Gaum responded by saying that the options now before the Committee said the Committee would publish its recommendations. He thought that merely referring a bill back if the Committee did not agree with it did not fit in with the gate-keeping role if it was referred back, not to the Portfolio Committee on Justice, as phrased in 6.3, but to the drafters.

The Co-Chairperson asked where else the Committee could refer the bill, or whether it should merely be rejected, without any further guidance on what needed to be done about it. He understood the passing of a motion of desirability to mean that it would be referred to the relevant parliamentary committee, not only the Portfolio Committee. If the Constitutional Review Committee rejected it, the proposal suggested that it go back to the drafter, namely, whoever presented that proposal to Parliament.

Adv Gaum said that he felt that 6.3 was worded more strongly than other amendments. If, for example, the Committee acted under one option, the Constitutional Review Committee (CRC) must consider the amendment, must table a report on whether it was in the public interest and whether the objective could or could not be reached by enactment of legislation, in which case the Committee would be tabling  report. The rules did not say that the CRC could reject a bill and send it back to the drafters, so this was something new. If the Committee wanted this rejection and referral back to the drafters to happen, then 6.4 must be amended as a recommendation.

Ms B Mncube (ANC) that that what she saw on option two, in relation to rule 102 and the sub-rules (1), (2) and (3) said that the Constitutional Review Committee had to consider any Constitutional amendments by the Joint Tagging Mechanism (JTM), before referring it to the relevant committee for consideration and must table an annexure to the constitutional amendment bill to the NA and NCOP. She thought that this Committee was not preferring either option but would send both to the JTM. She thought that the recommendation in 6.3 would be done before the bill went to a portfolio committee. She agreed with Adv Gaum that the options be tabled and sent to the Joint Rules Committee for further consideration.  

Mr S Swart (ACDP) proposed that in 6.3, the second sentence be deleted but the first part, that said the rules should be amended, be retained. The Committee had already agreed earlier that it would set out the two options in its report. If the second sentence was deleted, there would be no problem. The Committee could cross-reference its Report and the various options for rule changes, but certainly tie the reports together somehow, but not go into great detail. He reminded Members that constitutional amendments would not necessarily go to the Portfolio Committee on Justice, as the constitutional amendments might, for instance, relate to education. The first sentence would deal directly with the objections.

The Co-Chairperson agreed that it would be easier to retain only the first sentence and that there was no possibility of any contradiction.

The Co-Chairperson then asked Members to look at the recommendation in 6.2, that Parliament should consider dedicating August of every year to the Constitutional Review Committee to fulfil its constitutional obligation of considering all public submissions. He was aware that the recommendation had been discussed, although he unfortunately had not been able to be at that meeting. He asked what the point of this was, and whether it was really necessary.

Adv Gaum proposed that that recommendation be deleted as he also did not understand it.

The Chairperson said the Committee had to fulfil its constitutional obligations of dealing with public submissions and then report on them. It was difficult to get a quorum at this Committee, bearing in mind that all Members had other obligations. The submissions were made between May and July each year. It was therefore suggested that dedicated time be set aside in August to consider all the submissions and make a report to Parliament, in compliance with the Committee’s constitutional obligations.

Ms Mncube said that she was not sure if the whole of August, namely Monday to Friday of every week, was envisaged, and, if so, if this meant that Members would be released from their other obligations.

The Chairperson responded that the plan was for the Constitutional Review Committee to be given precedence over other committees. It was not envisaged that it must meet every day and every week. However, Members would be released from other committees to attend to the business of this Committee and fulfil their constitutional obligations. This was similar to what happened during the Budget process. It was, at this stage, merely an idea put forward.

The Co-Chairperson noted that in any joint committee, the quorum was an issue, because the joint committees sat on a Friday. He wondered if the Committee could include in its report a recommendation to Parliament that the joint committee work should, for example, be done every alternate Wednesday.

Adv Gaum agreed with the principle and the suggested time, and said that the Speaker and the Chairperson of the NCOP must then decide on the dates, and say that all joint committees, across the board, would adhere to this.

Ms Mncube thought this was asking too much. Practically speaking, the NCOP had clusters of committees, with each having five or six portfolios. The NCOP members then also belonged to other clusters. For instance, she sat on the Select Committee for Education and Recreation, which had five departments to oversee. The Social Services Cluster had six departments. These committees generally alternated. The nature of the NCOP arrangements would not fit in with the suggestion to hold joint committee meetings every alternate Wednesday.

The Co-Chairperson said that if the committee was to be given priority in August then it was dealing with all the work in one month. He questioned what it should then do for the rest of the year.

The Chairperson responded that during that month the Members would deal with the work, as well as the work of their other committees. The Committee must submit a report after the public submissions, to Parliament.

The Co-Chairperson said that if the Committee wanted to use the month of August to review the public submissions, it should simply schedule its meetings, and there was no need for prior consultation with Parliament. This Committee must decide what it had to do to complete the work.

Mr C De Beer (ANC) asked if one month was enough to handle the full volume of work. He thought that the programme would have to be looked into, to see what was practically possible, before adopting this particular suggestion.

The Co-Chairperson reminded him that the Committee was essentially debating whether the reasoning for this proposal was adequate, as some Members had initially opposed it.

Ms Mncube thought that the programme should reflect that the Committee was trying to finish all the work in the month of August, if this was adopted.

Ms M Dikgale (ANC) suggested that meetings could be held in the evening. The NCOP had a very tight schedule.

Ms Mncube said that the NA Speaker had also called on committees to meet into the night or over weekends. The reason why there was such work pressure was that there was a short term, and Members needed to ensure that they finished all outstanding work. The use of August would depend on how many submissions were put in, but she thought it was possible for the Committee to finish the work in that month with a concerted effort.

The Chairperson reminded Members that they were now moving away from the Agenda. He reminded Members that the subject under discussion was the adoption of the Report and recommendations.

The Co-Chairperson asked if the changes had to go to Parliament before going to the Joint Rules Committee.

Dr Loots responded that this was a procedural issue. The Committee should table the Report from the workshop in both Houses. The decision of the Committee to communicate the proposed amendments to the Joint Rules Committee would follow from that. She recalled that when NA members needed an amendment of the NA rules, the NA had written to the Joint Rules Committee to request the amendment. It would not be out of order for this Committee to consult the Joint Rules Committee, when it had adopted the amendments.

Adoption of Report
Slightly later in the meeting, Adv Gaum noted that Hon Gelderblom was now present, and so there was a quorum for the adoption of the Report.

The report and the minutes were adopted.

Request for amendment of section 73(4) of the Constitution
Adv Anthea Gordon, Parliamentary Legal Adviser, explained that the reference “8/12” meant that the legal opinions came in during 2012, even though this opinion was written in 2013. The Chairperson of the NCOP had written a letter requesting that Cabinet Members and Deputy Ministers should have the constitutional competence to introduce bills in the NCOP. The Chairperson of the NCOP had now further amplified his request.

Members should note that what was referred to here was section 76(3) legislation, which predominantly fell under Schedule 4 of the Constitution, headed “Bills affecting Provinces”. The NCOP had requested that the Committee look into amending section 73(4) of the Constitution, which presently stated that only a Member or Committee of the NCOP may introduce a bill in the NCOP. There seemed to be a problem with this provision, because bills were in fact not being introduced in the NCOP, but were predominantly being produced in the NA. The Chairperson of the NCOP expressed a view that a Schedule 4 bill went through a six week cycle and that the NCOP needed some time to effectively consider the new legislation. If a section 76(3) bill was continuously introduced in the NA, as provided for in section 76(1) of the Constitution, it meant that although the bill was with the NA for a substantial amount of time, the NCOP, having received the bill was required to look at the programming and timing and had to adjust its programmes to fit into the six-week cycle for processing. If the bills were, instead, introduced first into the NCOP, as section 76(2) of the Constitution allowed, it would give the NCOP more time to process the legislation.

The legal effect of this request was available to Members, as set out in her report. She had only extracted a synopsis, for the purposes of this meeting.

The request of the Chairperson of the NCOP was a direct constitutional matter that fell in the scope of the Constitutional Review Committee. The rationale behind section 73 was not captured in some academic texts, but what this spoke to was the introduction of bills in Parliament, in the NA and NCOP respectively. In terms of section 73(2), the introduction of bills into the NA was not limited to a committee or NA Members, and was therefore extended to Cabinet members of the Deputy Minister. However, in section 73(4), the Cabinet members and Deputy Ministers were deliberately excluded, although she did not know why.

The first argument related to whether bills should be limited to House membership, but this did not necessarily hold weight. The argument against that would be to point out that the Executive and Cabinet were afforded an express opportunity under section 73(2) to introduce bills. The rationale may be that legislation was considered an executive competence, but notwithstanding that the NA and NCOP may also introduce, initiate or produce bills. Around 99% of bills came via the Executive at the moment.

She added that the Constitution was designed on the basis of looking at the national design of government,  However, and she said the she did not have the answer for why this was so. The first argument against that would be that the executive and cabinet members were elsewhere afforded an express to introduce bills. She said that the rationale seemed to be that legislation was an executive competence, but not withstanding that, the NCOP and NA committees may introduce, initiate and produce bills. It was true that ninety nine percent of bills came from the executive. She added that the Constitution was designed on the basis of looking at the national design of government, including the NCOP which represented provincial interests. She referred to the matter in which Dr Ambrosini had challenged the Speaker on introduction and initiation and preparation of legislation. The court stated in its judgment that words in the Constitution had to be given their specific meaning, and had considered whether “initiate”, “introduce” and “prepare” meant the same thing. It concluded that the word “introduce” should not be read so widely as to include “initiate” and “prepare”, which were processes that happened before the introduction of a bill. Furthermore, an introduction was really an announcement at the doors of Parliament. That was why the Constitution provided that the Executive, NA and NCOP may initiate and prepare. She concluded that it was a policy decision for this Committee how it wished to deal with section 73.

The Co-Chairperson said that item number five on the agenda should be deferred to the next meeting.

The meeting was adjourned.


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