Deliberations

The following minutes were taken by National Assembly Table Staff Member, Ms Marina Griebenow.

DRAFT MINUTES OF PROCEEDINGS
FRIDAY, 25 JANUARY 2002 (09:05) V226

Present:
National Assembly
Masutha, M T (Chairperson)
Schmidt, H C
Cassim, M F
Pretorius, I J
Mkono, D G
Rajbally, S
National Council of Provinces
Setona, T S (Chairperson)
Lever, L G
Matthee, P A
Surty, M E

Staff in attendance:
Borien, J (NCOP Procedural Services); Griebenow, M (NA Table); D Ramurunzi (Parliamentary Law Adviser); Tsholetsane, M (Parliamentary Law Adviser).

1. Opening and welcome (Agenda item 1)

Adv Masutha, as co-chairperson, opened the meeting at 09:05.

2. Apologies (Agenda item 2)

Apologies were tendered on behalf of Adv S P Holomisa, Mr A C Nel, Mr L C Mothiba and Mr S N Swart of the National Assembly component and Mr C Ackermann, Ms L Jacobus, Dr P J C Nel, Mrs G N M Pandor and Mr R Z Nogumla of the NCOP component.

3. Consideration of agenda (Agenda item 3)

The agenda, as presented, was adopted.

4. Programme for 2002 (Agenda item 4)

A document containing a proposed work programme for 2002 was distributed to Subcommittee members and presented by Mr Setona.

Mr Setona pointed out that the Subcommittee had existed for more than three years but had, for a number of reasons, not yet completed its task. Reasons were, inter alia, that members did not give it the necessary priority and there had not been a programme that focused the attention on the business of the Subcommittee. The chairpersons had therefore decided to propose a work programme for at least the first term of 2002.

In response to a question by Adv Schmidt on whether Subcommittee members would receive documentation in order to prepare for the proposed meetings, Adv Masutha replied that he was personally of the opinion that further research was required in respect of certain areas. In its consideration of the programme, the Subcommittee would determine whether the initial timeframes were realistic for the completion of the task and what plans had to be put in place for more work to be done. Even if work were commissioned though, it remained necessary to put a tentative programme in place for meetings at which the progress on each of the areas on which work had been commissioned could be discussed.

Adv Schmidt asked whether, in view of the scope of the work, there had been a realignment of the budget to enable the Subcommittee to do its work. Adv Masutha replied that it was necessary first to define the nature of the work and thereafter the presiding officers could be approached with a request for the appropriate assistance and support.

In response to a question by Mr Pretorius about a list of delegated legislation that had been requested at a previous meeting, Mr Setona replied that it was necessary for everyone to start on an equal footing and therefore the chairpersons were proposing the programme that members had before them. He suggested that the chairpersons should also communicate with the chief whips of both Houses in order to ensure that the Subcommittee was given the necessary priority and attention. Adv Masutha added that the task before the Subcommittee was not the actual scrutiny of existing or future delegated legislation. The Subcommittee's task was to define the process and the mechanism or system that had to be put in place to deliver on the constitutional requirements.

After a discussion, it was
AGREED: That in the first term of 2002 the Subcommittee would meet on: -
12/13 February to deal with the topic of its constitutional mandate and the definition of delegated legislation;
19/20 February to deal with scrutiny criteria and mechanisms;
27/28 February to deal with the procedures for scrutiny;
6/7 March to deal with the scrutiny of provincial legislation and municipal by-laws; and
13/14 March to finalise its report to the Joint Rules Committee on what had transpired at the four previous meetings.

On the proposal of Adv Schmidt, it was
AGREED: That meetings would be scheduled from 12:00 to 14:00 on the dates suggested to enable more members to attend.

5. Discussion: The concept of delegated legislation, other key areas of focus and the status of the Report on the Scrutiny of Delegated Legislation compiled by Prof Hugh Corder (Agenda item 5)

Ms Tsholetsane apologised for only dealing with one of the aspects raised by Adv Masutha in his letter to the Chief Parliamentary Law Adviser, Adv Anton Meyer, namely what constitutes or does not constitute delegated legislation.

Ms Tsholetsane explained that the Corder report started off with the constitutional mandate and did not really deal with what delegated legislation actually was. She said that she had realised, in the course of her research, that there was the problem of nomenclature, as in all jurisdictions. People talked about rules, regulations and proclamations as if they were interchangeable and there was no differentiation between the various instruments.

She proceeded to explain that subordinate or delegated legislation was an exception to the doctrine of the separation of powers in terms of which the legislative power vested in Parliament. In the case of subordinate or delegated legislation an executive body had the power to make legislation and derived that power from an Act of Parliament. Subordinate or delegated legislation therefore had to have two ingredients, namely Parliament itself must have authorised a body to legislate in its place and that body had to be a branch of the executive. The Constitution, in section 101, gave some guidelines on the matter, namely that delegated legislation had to be accessible to the public and Parliament had to pass legislation to provide for the tabling and approval of such instruments.

Ms Tsholetsane said that they were of the opinion that not all subordinate legislation required scrutiny. For example, when the President issued a proclamation putting into operation an Act of Parliament, it could be asked whether such a proclamation required parliamentary scrutiny. She said the real question to determine whether such instruments required scrutiny was whether they were of a legislative nature or not.

Adv Masutha said that a key feature of delegated legislation was that the power to make such legislation derived from an Act of Parliament. By implication, if the power to make the law derived from the Constitution itself, the competence to make the law was original. It could be asked, therefore, whether the power of the President to assent to bills, which was provided for in the Constitution, was a delegated legislative function. He added that the interim Constitution of 1993 empowered the President to assign laws to any sphere of government - national or provincial - and in the process he could rationalise and even amend such laws if necessary. That power was provided for in the interim Constitution itself and the question was therefore whether such proclamations were actually delegated legislative instruments and, if so, by whom or what had it been delegated.

Ms Tsholetsane said in their opinion delegated legislation would not derive from the Constitution, but had to be authorised by an Act of Parliament.

She added that it was not clear whether rules, regulations, codes of practice and directives made or issued by the various authorities or organs of state constituted subordinate legislation or not. According to Baxter: Administrative Law, 1984 such instruments have varying legal status. It was their opinion, however, that such instruments had to be authorised by an Act of Parliament and be of a legislative nature, and that had to be the focus of the Subcommittee's enquiry.

Adv Masutha asked whether that the first enquiry would be to determine whether an instrument constituted legislation, ie whether it was a legislative instrument, and if it were not, whether it would fall outside the ambit of the constitutional mandate or of the notion of delegated or subordinate legislation. Ms Tsholetsane said that one also had to look at the purpose of the particular instrument, ie whether it sought to make law or only to notify people of the general state of affairs.

Adv Masutha mentioned the examples of the Labour Relations Act and the Employment Equity Act which both provided for the development of codes of good practice. Such codes were not necessarily law. He said that the legal relevance of the codes was that the courts would take them into account in interpreting the law. However, the question remained whether Parliament should have nothing to do with the codes because they were not legislation. Ms Tsholetsane said that her understanding was that codes were not law but guidelines to be taken into account by the courts in interpreting the provisions of a particular Act.

She said in their view, provided a body or person was an executive body or person and had been given the law-making or rule-making authority by an Act of Parliament and the instrument was legislative in nature, ie in the sense of being generally binding in the national sphere, such an instrument could be scrutinised by Parliament.

Adv Masutha thanked Ms Tsholetsane for her presentation.

Adv Schmidt asked whether the lack of clarity within the legal fraternity was not perhaps owing to the fact that some instruments fell within a policy rather than a legal sphere, or in both, and their scrutiny by Parliament would therefore be construed as interference.

Adv Masutha said that the day-to-day effective functioning of departments required policies in addition to law. He said that policy was the domain of the executive, while Parliament made law. He suggested to Adv Schmidt that they, as Parliament, were dealing with questions of law and not policy and doing it in the context of delegated legislation, ie the legislative component of such instruments. Even if instruments required oversight by Parliament, the oversight role was not in respect of their application, but their formulation and content. The development and enforcement of policies by the executive also fell outside the scope and ambit of the Subcommittee.

Adv Masutha pointed out that another document had been prepared that unpacked the Corder report and identified the key focus areas or questions that required attention and answers from the Subcommittee. In order to fulfil its mandate, the Subcommittee had to embark on a series of enquiries and the first was to look at the concept of delegated legislation.

Mr Cassim asked whether what was being discussed would be related to the report of the former chairperson Ms L B Ngwane, dated 24 March 1999. Adv Masutha said that anything that pertained to the issue, and was part of the documentation, could be brought to the fore in relation to the discussion.

Mr Cassim said that the 1999 report dealt with the need for legislation to be adopted by Parliament, as that would clarify the situation for all roleplayers. In that report a definition of delegated legislation was also offered. It was further suggested that all delegated instruments that had a binding power should automatically expire after a set period and in order to be revalidated had to come before a scrutiny committee. Having a cut-off date would force departments regularly to look at the delegated instruments that they were administering.

Adv Masutha said that the meeting scheduled for 19/20 February would look at the design of scrutiny criteria and mechanisms and legislation to provide for that. The deliberations on that occasion would provide the opportunity to discuss in greater depth the issues raised by Mr Cassim. The meeting on 12/13 February would also provide more clarity on the constitutional mandate of the Subcommittee, ie what it was required to do and what would be going beyond what it was required to do.

Adv Masutha asked Ms Tsholetsane briefly to explain the key areas that she had extrapolated from the Corder report.

Ms Tsholetsane explained that the key components were: Parliament's constitutional mandate; the scrutiny criteria for delegated or subordinate legislation; scrutiny mechanisms; procedures for scrutiny; and the scrutiny of provincial legislation and municipal by-laws.

Adv Masutha said that many questions had been raised at the meeting that needed to be answered. He said that he, however, was of the view that the Subcommittee should not make unilateral decisions, as the issues concerned required a measure of consultation, especially with bodies currently producing delegated legislation. It was, therefore, necessary to determine a process by means of which those roleplayers could be brought on board before any definite decisions were made. He suggested a workshop in which they could be involved and pointed out that support could possibly be gained from the state law advisers, as they were the key legal resource in the executive sphere.

Adv Masutha said that the parliamentary law advisers had indicated that they would pull out a range of delegated instruments so that members of the Subcommittee could see what features they contained. He said that it would also give the Subcommittee an indication of whether to engage the services of an expert and assist it in determining some of the issues that had to be addressed at the proposed workshop.

On the proposal of Adv Masutha, it was
NOTED: That once the format and content of the workshop had been determined, the necessary resources would be requested.

6. Consideration of minutes of meeting on 10-10-2000 (Agenda item 6)

Mr Setona said that he had been present at the meeting in question and asked for the minutes to be corrected to reflect that.

On the proposal of Mr Matthee, seconded by Mr Cassim, the minutes, as corrected, were adopted.

7. Matters arising (Agenda item 7)

Fifth Commonwealth Conference on Delegated Legislation
On the proposal of Adv Masutha, it was
AGREED: That -
Mr Setona, as leader of the delegation, would present the report on the Fifth Commonwealth Conference on Delegated Legislation at the next meeting of the Subcommittee.
The draft report would be distributed on 4 February 2002.

Mr Surty mentioned that he was a member of the delegation that had attended the 4th Commonwealth Conference on Delegated Legislation in New Zealand, a leading country in the Commonwealth as far as delegated legislation was concerned. A report on that conference was also available.

On the proposal of Mr Surty, it was
AGREED: That copies of the report on the 4th Commonwealth conference would be distributed to members of the Subcommittee.

On the proposal of Mr Lever, it was
AGREED: That an index of relevant documents would be drawn up and distributed to members of the Subcommittee, whereafter they could request copies of the documents they did not have.

8. Closure (Agenda item 8)

Adv Masutha thanked the parliamentary law advisers for their contribution.

On his proposal, it was
AGREED: That the following would be reported to the meeting of the Joint Rules Committee on 29 January 2002:
The Subcommittee's programme for the first term of 2002;
The intention of the Subcommittee to organise a workshop involving a range of experts and to which stakeholders would be invited to make submissions, the latter also to serve as resource material; and
The probability of acquiring the assistance of an expert in order for the Subcommittee to complete its task.

Adv Masutha said that it was possible that the Subcommittee, as part of its enquiries, would want to visit some other jurisdictions in order to gain a better understanding of their approach to delegated legislation. Mr Lever reminded members that much work remained to be done before the Subcommittee could consider going on a study tour, a view supported by the rest of the Subcommittee. Mr Cassim said, however, that if one or two members had to undertake a study tour to assist the Subcommittee, the matter could be considered.

The meeting adjourned at 11:18.

M T MASUTHA
Chairperson
T S SETONA
Chairperson

APPROVED: