South African Language Practitioners Council Bill [B14B-2013]: consideration and adoption

Meeting report

South African Language Practitioners Council Bill [B14B-2013]: deliberations
The Chairperson reminded Members that in the previous meeting there had been a briefing and the Committee would now go through the Bill clause by clause. She requested the Parliamentary Legal Adviser to clarify the tagging of the Bill.

Ms Daksha Kassan, Parliamentary Legal Adviser, stated that the Bill had been classified by the Joint Tagging Mechanism (JTM) as a Section 75 Bill because it did not affect provinces. The Constitution guided how Bills are tagged and that ‘tagging’ was a term used by Parliament for classifying Bills for purposes of determining the legislative procedure to be followed as set out in the Constitution to enact a Bill.

Ms Kassan stated that the Constitution set out three procedures that a Bill may follow in Parliament. The first procedure was set out in Section 74 of the Constitution which dealt with the procedure that must be followed when a Bill was amending the Constitution. The second procedure was set out in Section 75 which dealt with the procedure to be followed when a Bill did not affect Provinces and the third procedure was under Section 76 of the Constitution and dealt with procedures to be followed when a Bill did affect Provinces.

Ms Kassan stated that the manner in which Bills were tagged was that the State Law Advisors would recommend a possible classification of the Bill. However, the proposal was not binding on Parliament since when the Bill was introduced, the JTM would have the final authority as to how a Bill would be classified. When the South African Language Practitioners Council Bill reached the JTM it was agreed that the Bill was a Section 75 Bill.

Ms Kassan stated that to understand why and when a Bill was classified as a Section 75 Bill, one needed to understand when a Bill had to be classified as a Section 76 Bill. If it was not a Section 76 Bill or a Section 74 Bill then it had to be a Section 75 Bill. In terms of Section 76(3) of the Constitution, a Bill must be dealt with in accordance with the procedure established in Section 76, if the Bill fell under the functional areas listed in Schedule 4 which dealt with concurrent national and provincial legislative competence. A Bill must also be dealt with in terms of section 76 if under Section 76(3) it provides for legislation envisaged in Sections 65(2), 163; 182; 195(3) and (4); 196 and 197 from the Constitution. Likewise, Section 76(4) stated that a Bill must be dealt with in terms of Section 76 if it dealt with any legislation envisaged in Sections 44(2), 220 (3) or Chapter 13.

Ms Kassan said the Bill was classified as a Section 75 Bill as it dealt with regulating the South African Language Practitioners Council but if it dealt with the use of a language then it could have possibly been classified as a section 76 Bill.

Ms D Rantho (ANC, Eastern Cape), said that Ms Kassan was correct and the Committee understood well the legal details of the Constitution as well as the legislative procedures. However, the Committee had a concern with the Bill presented to the Committee as it did not specify that it was a section 75 Bill. She mentioned that the same concern had been previously raised by the Legal Section from the Department of Arts and Culture.

Ms B Mncube (ANC, Gauteng) re-emphasised what Ms Rantho had said about the importance of the document being specified as a Section 75 Bill and Members had raised the concern before.

Mr. Alan Small the State Law Advisor from the Office of the Chief State Law Advisor, apologised for the omission and explained that sometimes when documents were sent to the printers errors could occur. This would be rectified when the proposed amendments were being effected.

Ms Mncube expressed discontent with the error as seven days was sufficient to rectify the omission.

The Chairperson clarified that during the previous meeting the Legal Section from the Department of Arts and Culture had been present and not the Legal Section from Parliament.

Ms Mncube stated that she had expected that Parliament’s Legal Section would have been briefed before the meeting.

The Chairperson noted Ms Mncube’s point and asked if all Members had the original Bill. After tabling the Bill the Committee had requested Parliament’s Legal Section to make notes which the Committee would refer to as the Parliamentary Legal Advisor led the deliberations clause by clause.

Mr J De Villiers (DA, Western Cape), raised a concern about the legality of the deliberations as the Bill was not specified as a Section 75 Bill. He asked if the Committee could still proceed and make a decision.

The Chairperson asked the Parliamentary Legal Section to clarify whether the Committee could proceed even though the Bill had no tag.

Ms Kassan answered that normally if a Bill was tagged it was published in the parliamentary papers, Announcements, Tablings and Committee Reports (ATC), and a copy of the ATC could be obtained to show that it was classified by the JTM as a Section 75 Bill. The front cover normally provided the title of the Bill, who had introduced it and which version of the Bill it was i.e. whether it was a version A or B Bill. The actual Bill started from page 2 and that was what needed deliberation. She was of the opinion that there would be no procedural hiccups if the Committee was to make a decision concerning the Bill.

The Chairperson highlighted that what Members wanted was to deal with a document that specified that the Bill was a Section 75 Bill and the words to appear as such on the front of the document.

Mr. Small the State Law Advisor stated that it was not possible to get the Bill reprinted as the meeting was already in progress. He agreed with Ms Kassan that confirmation could be obtained from the ATC that the Bill was classified as a Section 75 Bill. He added that the front page would be rectified.

Ms Rantho said she could not understand what the Parliamentary Legal Advisor was saying as it was only a personal opinion that the front page of the Bill was not vital because the Bill started from the second page. She was of the view that the Committee should have a legal opinion on whether deliberating on a Bill that was not specified as a section 75 Bill on its front cover would have repercussions in the long run. She added that even on page 2 where the actual Bill started there was no indication that the Bill was a Section 75 Bill.

The Chairperson explained that in her understanding as the Bill was in front of the Select Committee, whatever omissions Members pointed out such as the tagging missing from the cover page, would be effected with the amendments. The tagging of section 75 would be part of the amendments.

The Chairperson moved that Members deal with the Bill clause by clause lead by the Parliamentary Legal Advisor.

Ms Mncube asked if any issues had been identified by the legal persons present at the meeting.

The Chairperson explained to Members that the Committee had deliberations following which they had prepared a report on issues identified by the Select Committee. These had been referred to the Legal Section for input. As such she requested the Parliamentary Legal Section to lead the deliberations clause by clause.

Ms Kassan asked for clarity on whether she should go through the proposed amendments clause by clause. To which the Chairperson agreed.

Ms Kassan referred the Committee to the document which incorporated the amendments suggested by the Committee following deliberations the previous week. She added that while going through the B version of the Bill, she would also pick up certain corrections to cross referencing that needed to be done.

Arrangement of the Bill
Ms Kassan suggested rearrangements of where certain clauses needed to be placed in order to meet drafting standards. This was accepted by the Committee.

Clause 2
Ms Kassan mentioned that clause 2 read that the Bill applies to all language practitioners within the Republic of South Africa and was inserted under a Chapter entitled South African Language Practitioners’ Council. The drafting standard was that if there was a chapter heading, all clauses under the chapter should be relevant to that heading. Currently Section 2 spoke of the applicability of the Bill which had nothing to do with the South African Language Practitioners’ Council. She suggested that Section 2 should be moved to appear just before the heading Chapter 2 so that it formed part of Chapter 1. She also suggested that the wording should be changed from “the Bill applies” to “this Act applies”. Once moved to before Chapter 2, it meant on page 2 of the Bill Section 2 should be added just below number 1 Definitions to appear in Chapter 1. The heading would then be changed to read Definitions and Application.

She suggested including a definition of “Select Committee” because when she received the amendments she understood the intention was the Committee wished to omit the definition of “Portfolio Committee” and to insert “Parliament” which would be defined as meaning a Portfolio Committee and a Select Committee. However, clause 42 of the Constitution stipulated that Parliament consisted of the National Assembly and National Council of Provinces. It would therefore be inconsistent if Parliament was to be defined as meaning a Portfolio Committee and Select Committee. As such Ms Kassan suggested maintaining the word Portfolio Committee and inserting Select Committee.

The Committee accepted the proposed amendments.

Clause 4
Ms Kassan stated that the proposed amendments were made by the Committee who had suggested rearranging the sequence of paragraphs (b) register people who are registrable by the Council (c) accredit people who are accreditable by the council, and (d) to scrutinise particulars of people intending to register to appear in the following sequence;(d) as (b), (b) as (c) and (c) as (d).

The Committee accepted the proposed amendments.

Clause 5
Ms Kassan suggested deleting the abbreviations for South African Qualifications Authority (SAQA) and Education and Training Quality Assurance (ETQA) as they did not appear anywhere else in the Bill.

The Committee accepted the proposed amendments.

Clause 6
Ms Kassan suggested that inverted commas at the end of line 23 on page 7 be omitted. She also suggested that in line 39 of the same page, “Cabinet and Portfolio Committee” should be substituted with “Cabinet, Portfolio Committee and the Select Committee”.

Ms M Boroto suggested that the Committee raise issues as the proposed amendments were being read out so as not to lose track.

The Chairperson agreed with Ms Boroto’s suggestion.

Ms Boroto proposed that under Definitions, the Committee’s suggestion to substitute ‘Portfolio Committee’ with ‘Parliament’ should still stand.

Ms Mncube agreed with Ms Boroto to substitute Portfolio Committee with Parliament as Members understood Parliament constituted two Houses and at the same time the definition of Select Committee could change at any time.

Ms R Rasmeni said that the definition of ‘Parliament’ should be added to the Bill.

Ms Kassan raised a concern that in terms of the Constitution, Parliament refers to the two Houses whilst the Committee had recommended defining Parliament as the Portfolio Committee and the Select Committee which were extensions of the two Houses.

The Chairperson stated that when dealing with a Bill, the Bill would appear before the two Houses, in the Portfolio Committee and Select Committee.

Mr Sibusiso Xaba, Director General, Department of Arts and Culture (DAC), agreed with the Committee’s suggestion to use Parliament rather than Portfolio Committee or Select Committee as the Committees were the processing mechanism for Parliament.

Mr De Villiers added that Rules of the NCOP and National Assembly stipulated how Committees should deal with Bills.

Ms Kassan stated that defining Parliament to mean ‘Portfolio Committee and Select Committee’ could have implications for other clauses of the Bill such as clause 25(2)(a) as the meaning for the clause would imply tabling a report before the Portfolio Committee and the Select Committee rather than the National Assembly and National Council of Provinces. Furthermore Section 25(2)(b) would also be affected as it stipulates informing the two Committees after tabling a report in the two Houses.

Ms Rantho agreed with Ms Kassan that under clause 6(8), “Cabinet and Portfolio Committee” should be substituted with “Cabinet, Portfolio Committee and the Select Committee” as the clause was dealing with informing Cabinet and Portfolio Committee of the appointment of Members and not about tabling a report.

Ms Boroto stated that when a Minister informs Cabinet and Parliament, it did not mean being physically present in the two Houses. As such, the term, Parliament, should still be defined to mean both Portfolio Committee and Select Committee.

The Chairperson stated that the Committee had agreed to omit ‘Portfolio Committee’ and add ‘Parliament’ because the former seemed like it was only referring to one House of Parliament.

Ms Kassan stated that the proposal for the word ‘Parliament’ in Section 25(2)(b) was suggested in terms of the request received from the NA Table when stipulating Parliament to say “National Assembly and National Council of Provinces” so that it was clear to people when matters must be tabled in both Houses. Informal briefings would be to Portfolio Committees and Select Committees whilst tabling of Bills and reports would be done in both Houses. She asked Members if Select Committee should be included in the amendments and refer to each of the separate Houses and remove the word ‘Parliament’.

Mr Makunyane stated that Parliament had two processing mechanisms in the form of Portfolio Committees and Select Committees; as such he did not see the need to refer to the mechanisms. If ‘Parliament’ was excluded, it created the impression that the two mechanisms were operating on their own.

Mr De Villiers suggested that the Legal Advisors should elaborate further because what Mr Makunyane had stated was a whole different angle from his own understanding which was that if anything was to be tabled in Parliament it must go through the two Committees but once approved after deliberations the matter should be tabled in both Houses.

The Chairperson proposed to stick to the initial amendment to remove ‘Portfolio Committee’ and replace it with ‘Parliament’.

Ms Boroto agreed with the Chairperson and suggested that wherever the word Portfolio Committee appeared in the Bill it should be substituted with Parliament.

Mr Xaba proposed that if ‘Parliament’ was going to be adopted then Section 25(2)(b) should be deleted as it would serve no purpose.

Ms Boroto agreed with the removal of acronyms if they did not appear anywhere else in the Bill.

The Committee adopted the proposed amendment to remove inverted commas. The Committee rejected the proposed amendment to add “and Select Committee” and agreed to replace “Portfolio Committee” with “Parliament” instead.

Clause 7
Ms Kassan proposed to add “of the Republic of South Africa, 1996” after the word Constitution.

The Committee accepted the proposed amendment.

Clause 12
Ms Kassan proposed that 12 (3) where it read subclause (1) should read subclause (2) because it was referring to a disclosure made which was dealt with in subclause (2).

The Committee accepted the proposed amendment.

Clause 20
Ms Kassan proposed that 20(2) where it referred to paragraph (a) should read subclause (1) and the code of conduct is dealt in 20(1).

The Committee accepted the proposed amendment.

Clause 25
 Ms Kassan stated that her initial proposal was to add ‘Select Committee’ but following deliberations by Members she understood the Committee wished to use ‘Parliament’.

The Committee rejected the proposed amendment to add “and Select Committee” and agreed to replace “Portfolio Committee” with “Parliament” instead.

Clause 27
 Ms Kassan proposed that the word ‘or’ in 27(4) be substituted with ‘and’ to connect the sentences.

Ms Monica Newton, DAC Deputy Director General: Arts and Culture Promotion and Development, raised a technical issue that clause 27(4) was dealing with implementation of the Act and the concept of ‘or’ implied that a person could be deregistered under either one of the said circumstances. If ‘or’ was substituted with ‘and’ it would mean that a person could only be deregistered if the two circumstances were both applicable and consequently narrowed down the applicability of the clause.

The Chairperson agreed with Ms Newton’s point and proposed that the word ‘or’ should not be omitted from clause 27(4).

Mr Given Mditshwa, DAC Deputy Director: Legal Services, stated that he needed clarity on clause 27(4) as he was of the view that Ms Kassan’s proposal to substitute ‘or’ with ‘and’ was more appropriate as a person could only be declared as mentally unstable by the Mental Act and clause 27(4) was stipulating that firstly a person should be a registered language practitioner and that person should also be declared as mentally ill – as such ‘and’ was the correct word to be used.

The Chairperson expressed surprise that officials from the same Department did not have consensus. This could inevitably mislead Members if two contrasting opinions were presented.

The Committee rejected the proposed amendment to replace “or” with “and”.

Clause 31
Ms Kassan proposed that the words “is proved” in clause 31(1)(b) should be deleted.

The Committee accepted the proposed amendment.

Clause 35
Ms Kassan proposed that the reference to clause 15(4) be deleted as it did not exist in the Act and be replaced with clause 16(4).

The Committee accepted the proposed amendment.

Mr De Villiers noted the page number was missing on page two.

The Chairperson read the report of the Select Committee that stated: “having considered the South African Language Practitioners Council Bill [B14B-2013] classified by the Joint Tagging Mechanism as a clause 75 Bill referred to it and reports that the Bill has been adopted with amendments”.

Adoption of Committee Minutes
The Committee adopted the Committee Minutes dated 9 and 23 October and 6 November 2013.
 
The meeting was adjourned.