Committee oversight report on visit to KZN adopted; Petitions guidelines deferred; Legacy petitions from 4th Parliament & current petitions report postponed; minutes & draft report of hearings on 5 November postponed

NCOP Petitions and Executive Undertakings

25 November 2014
Chairperson: Mr S Thobejane (ANC, Limpopo)
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Meeting Summary

The agenda for the meeting set out a number of matters that the Committee was due to consider, but although some fairly extensive discussions were held on process and what the Committee needed in order to fulfil its mandate, only the Committee's oversight report on its visit to KwaZulu Natal was adopted. The adoption of the Committee programme for the First Term was deferred, so that the Chairperson could confer with other committees whose programmes had also been changed due to the Parliament with the People programme.

The agenda had stated that the Members would receive a report on the legacy petitions outstanding from the Fourth Parliament and the petitions received by this Parliament, but the Committee Section had been waiting for input from other offices, and had not circulated the papers before consulting with the Chairperson. Members suggested that the Committee Content Advisor and Researcher should sift the petitions to isolate which fell in the Committee's jurisdiction, and were reminded that the Committee had previously decided to deal with new and old petitions on a 60:40 time allocation, to avoid backlogs building up, although some Members felt that the Committee should concentrate on petitions referred to the Fifth Parliament. Members insisted that the legacy report must be attended to urgently and said that the 2014 petitions report needed further work and amplification, so the matter was deferred to the first meeting of 2015, and staff must check with petitioners whether they were still keen to proceed with their petitions.

The Committee noted that petitions guidelines were drawn, apparently based on the best of the provisions in the provincial Petitions Acts, but although some Members suggested that the Committee should proceed with their discussion and adoption immediately, others suggested that a short workshop was needed on them, so that the Committee could approve them and refer them to the NCOP for adoption. One Member asked for input from the State Law Advisers. Although the matter should be expedited, it should not be rushed. The discussions on the guidelines was deferred.

Similar discussions ensued on the executive undertakings, which were described as referrals from the House Chairperson of undertakings made by an executive authority, which would in future be listed under a register, so that the Committee would be able to assess the status of such undertakings and be able to hold authorities accountable. However, Members noted that there was much uncertainty as to what constituted an executive undertaking, where they came from, whether departments were involved, to whom to send an acknowledgement of receipt to and whom to hold accountable. Compounding this was the further challenge that  the Rules Committee had not yet amended the  NCOP rules to specifically mandate this Committee's work. Members would be provided with preparatory reading material (for their Indian study tour) to prepare draft guidelines for executive undertakings in early 2015.

Members noted that they had been provided with minutes of the previous hearing on the Mkhize and Sehume petitions, but not a report, and the Committee Section clarified that they had been instructed to prepare two documents of very similar content. Members were not happy with that format and asked that they be presented again on the following day.

Meeting report

Minutes of previous meetings
Mr G Michalakis (DA, Free State) asked under which agenda item the minutes of the Committee would be discussed.

The Chairperson replied that as they did not feature on that days agenda, they would be circulated so that Members would be better prepared to adopt them in a subsequent meeting.

Committee's draft Report on its study tour to KwaZulu Natal (KZN)
Dr Mimi Gondwe, Committee researcher, noted that the Chairperson had notified her of a few changes that he would like made to the document, and she had done this and was now checking with Members whether they had the revised copy.

Members having confirmed that they did, the Chairperson read through the report and asked if Members wanted to effect further changes.

Mr J Julius (DA, Gauteng) said that the report did not reflect the challenges that the Committee had met in terms of the local municipalities, and the other subpoenaed respondents in KwaZulu Natal (KZN) who were struggling to work with the Department of Cooperative Governance and Traditional Affairs (COGTA).

The Chairperson suggested the Committee go through the report on a page-by-page page basis so that Members could isolate specific pages where changes or problems were seen. He continued reading, asking that Members adopt that approach.

Mr Michalakis suggested that where the report referred to ‘some of the actions of the relevant local government authorities’, perhaps it the Committee should say whether those people had been invited, received a letter or had been subpoenaed. Later, the meeting was due to consider guidelines, and the Committee would need to establish how people should be invited to the Committee's meeting; he felt that this should be through a proper subpoena. It would be useful to mention where letters had been sent, and how the correspondence was sent, for record purposes. Where relevant, it should also be noted that this had been found to be insufficient , so that reasons for respondents not arriving could be known.

The Chairperson noted that this seemed to suggest something around the Committee's planning.

Mr Michalakis replied that his suggestion was to allow clarity on why respondents may not have attended meetings. He reminded the Members that the Committee had resolved that it had to look at how it would invite people to those meetings.

The Chairperson noted the suggestion and continued reading.

Mr Michalakis commented that the reworked draft report was a big improvement from the previous draft, and that the researcher had to be commended for her excellent work.

Members moved, seconded and adopted the report, with no further amendments.

First term 2015 Committee programme
The Chairperson said that the Committee would be compelled to rework its programme because of the Parliament with the People programme. He requested that adoption of the programme thus be deferred to a later meeting, although the Committee was expected to submit a programme of its business before Parliament arose.

Mr Julius asked if the Committee could deal with the programme on the following day.

The Chairperson agreed that this was possible. The Management Committee (MANCO) would ensure that it was drawn according to the guidelines from the office of the House Chairperson.

Mr J Mohapi (ANC, Free State) suggested that the Committee should allow the MANCO to deal with that matter, who should consult the Chairpersons of the Committees on Cooperative Governance and Justice, as they were also affected by the Parliament with the People programme.

Mr Julius concurred with Mr Mohapi, provided that the deliberation on the programme would take place on the following day, since the programmes of the two other affected Committees had already been adopted.

The Chairperson noted that all three committees faced a similar challenge of having to change their programmes.

Legacy petitions from the 4th Parliament
The Chairperson said the document that Members had received seemed to be only reflecting 2014 petitions, since the first petition had been submitted to the Committee on 9 July 2014.

Ms G Manapole (ANC, Northern Cape) asked for clarity as to what the Committee was actually doing at this point. This Committee only had the petitions of the Fifth Parliament before it, although the agenda item spoke to "Legacy petitions".

The Chairperson confirmed to Ms Manapole that the Committee was supposed to be dealing with legacy petitions as well; but because there was no list of those legacy petitions, the Committee would now be dealing with what was available.

Ms Manapole reaffirmed that the Committee would not be dealing with legacy petitions and asked if the legacy petitions would then be prioritised in the first term of 2015.

Mr Tenda Madima, Committee Secretary, said that the Committee was supposed to be dealing with legacy petitions. However, the Committee Section had found that there were various inputs from different offices, namely the Table staff (Table, Announcements and Committee), and the office of the Secretary of the National Council of Provinces (NCOP) The Committee's support staff had not yet conferred with the Chairperson on those matters, and for this reason had decided not to include them with the papers, and with all outputs, without first confirming this with the Chairperson.

Mr Michalakis suggested that if the agenda included "Assessment of a legacy report" then the Committee Secretary had to ensure that the petitions were before the Committee. He therefore suggested that the Content Advisor, with the Researcher, should go through the legacy petitions - those still outstanding from the previous Committee - and assess which of them constituted a proper petition that could be brought before the Committee. He explained that he had made this point because there were certain matters brought to the Committee that did not fall within its jurisdiction, and these could be removed from the lists. He suggested that this Committee should rather prioritise the petitions submitted in the Fifth Parliament, since the Committee's performance would be assessed on those matters and how many it had concluded in its term. Any still outstanding from the Fourth Parliament should be slotted in as time permitted.

Mr Julius asked for a deadline by when the deliberation of the legacy report on outstanding petitions would occur, as he felt the Committee was not treating that business item with the necessary urgency that it deserved. He suggested that the Committee should receive that report by the very first meeting of 2015.

Ms Manapole noted that even the 2014 petitions report in front of the Committee seemed incomplete. For instance, for the prisons petition that Mr Michalakis had touched on, there was no other information that could assist the Committee to determine its jurisdiction on the matter. She suggested that additional information was needed, to help the Committee assess the process and prioritise which petitions to begin with. She suggested that the whole assessment process, of current and legacy petitions, should thus be deferred to the first meeting of 2015.

Mr Mohapi concurred with both previous suggestions. He made the point that the challenge for the Committee was not really with the number of petitions it had to process, but the petition guidelines. His suggestion was therefore that the Committee have a workshop on the petitions guidelines, however short, at the next sitting. The draft guidelines that Members had seen would not serve to do justice to the process that the Committee had to undertake.

The Chairperson said that he thought that the intention of putting this item on the agenda item was that the support staff should have checked, with the legacy petitioners, whether they still had an interest in proceeding with their petitions, and check which were still relevant. He said that, for example, some might have reached resolution on the subject matter of the petition. However, there seemed to have been some miscommunication and it was unfortunate that this was only noted now.
All inputs from the Committee today would certainly be considered. When the legacy petitions report was prepared it should also be speaking to the status of relevant petitions.

The Chairperson also recalled that he had at one point requested that there should be a 60:40 split between petitions lodged, respectively, to the Fifth and Fourth Parliament, to avoid the situation where the Committee never cleared the backlogs.

Mr Michalakis was concerned that at some stage the petitions also had to get to the National Assembly (NA). It was impossible to keep reconsidering petitions without actually finalising them.

Mr Mohapi thought the Committee had concluded how to deal with this. The shortcomings had been acknowledged, and there would be improvement in the future.

The Chairperson requested that the Committee leave the matter now. The staff would compile the legacy petition report and the Committee would only programme this as an agenda item once the task was complete.

Petitions Guidelines
Mr Mohapi interjected, at this point, that he had thought Members had accepted his earlier  suggestion and concern that members had received draft guidelines without really going into deliberating them. The guidelines needed a legal process and for this reason, the Committee needed to hold a workshop on them.

Mr Michalakis said the Committee had received a first draft of the guidelines a while back, and had noted their views. He agreed with Mr Mohapi's suggestion, provided that it did not get postponed for too long; if petitions were received in the meantime they would not fall for consideration under the guidelines, as they would not have been adopted. He requested that a 30-minute workshop, as suggested, be held, and asked that the Committee deal with the guidelines soon.

The Chairperson noted the two suggestions and asked the Committee to decide on a way forward. He said the guidelines were the only tool that would enable the Committee to do its work effectively and that there had been an agreement that, once adopted in the Committee, these would be tabled in the NCOP for adoption. The guidelines were supposed to be amongst the founding documents of the Petitions Indaba, and if they were not adopted by the end of this term, the Indaba would not be able to be held in the first term of 2015.

Mr Mohapi cited an example from the draft guidelines and asked what would have informed that particular guideline, and what would the consequences would be, should it not be complied with. He was concerned that negative consequences could flow from rushing things through. The petitioner and respondent  had legal recourse if either found discrepancies in the procedure adopted by the Committee, but this would cause severe embarrassment to the Committee if such discrepancies were found to occur as a result of inadequate time to conclude the work.

Ms Manapole also had concerns over the document, pointing out that the Committee could be cornered by using it. She was aware of the volume of work awaiting the Committee, and that petitioners had resorted to other means of resolving their petition disputes. The Committee had appealed to those petitioners to halt their actions, promising to finalise the guidelines in order to begin processing petitions. Even in the face of pressure from petitioners, the Committee could not rush into finalising the guidelines.

Mr Michalakis noted that various provinces had Petition Bills, or Petition Committees fully functional. Those provincial Petitions Bills had a legal basis and they had been used, as it was apparent, as a template for the draft guidelines before the Committee. He thought the current draft was a compilation of the best aspects of those Bills.

Mr Michalakis said that he had understood that, having received draft guidelines, the Members were supposed to have gone and read them, so that at this meeting they could then raise any concerns they had with the guidelines, and by the next meeting a further draft should be available to address those concerns. Postponing this meant that there would have to be another meeting for a final draft to be processed, and he was concerned that this would take the Committee through to March. He therefore suggested that if Members had any concerns, they must raise them directly to the Content Advisor, to make the improvements easier.

Mr Julius agreed with Mr Michalakis’ motion to deliberate the guidelines there and then.

Mr Mohapi said that no one was rejecting the guidelines, but that it would be much better for the Committee to have proper insight of the document.  Even if the Committee adopted that document today, it would still need to wait to be tabled before the NCOP for adoption there. He asked who had prepared the document.

The Committee Researcher replied that it was the support staff.

Mr Mohapi interjected that the staff would have prepared the document with the assistance of the Legal Department in Parliament.

The Chairperson reiterated that the guidelines had been prepared by the Research Unit. The original draft had included offences and penalties. The Committee had then discarded those from the guidelines, as it felt that those could be included in the Act when it was finalised.  However, it was of concern that the Committee did not have, before it, any document that Members could add to or discard clauses. He stressed that once a document was before the Committee, it was regarded as a Committee document, not one of the researchers.

Mr Mohapi reiterated his suggestion.  He and Mr Michalakis possibly would have no challenge in engaging with the guidelines, but he was concerned that Members with no legal background may have more difficulty.

Ms Manapole said that she had heard Mr Michalakis' suggestion but agreed with Mr Mohapi's proposal, but wanted it noted that the draft guidelines had been presented. She suggested that Members must submit any inputs on those guidelines by the third week of January 2015, and the Committee must process the guidelines, with those inputs, by the first week of February.

Mr Michalakis said that the Committee’s Content Advisor held a doctorate in law, and that the Committee Members were all legislators, so it was their job to understand, scrutinise and develop law.  He had thought, given the agenda item, that the Committee must deliberate on them today, but in any event he wanted to plead with the Chairperson to ask the Committee Members to seriously prepare themselves for the future debates.

Mr Mohapi said that he was not suggesting that Members were not prepared. He added that it was procedurally fair that any document that was being developed for the benefit of the Committee had to include a consultation with the State Law Advisors (SLAs). He cited another example from the guidelines, and said he doubted he would receive a legally-researched response should he ask where that example emanated.

The Chairperson said that apparently some of the procedural aspects captured in the draft guidelines were actually speaking to the administrative tasks of the Registrar of Petitions. He conceded that there had been an agreement, after the deferral of the document during the previous meeting, that the meeting today would consider the content of the guidelines. However, the Chairperson had discovered that Members still needed time to prepare for such a deliberation, and thought this was warranted to allow them to tackle the issue in the next meeting. He reiterated that the document was  based on the seven provincial Petitions Acts in South Africa.

Mr Mohapi reiterated his suggestion that a State Law Advisor be present at the workshop he had proposed.

The Chairperson replied that SLAs normally only came to Committees when Bills were being developed.

Mr Mohapi said that he was quite adamant about the need to get a State Law Advisor's perspective and reminded the meeting that he had mentioned the issue of timelines and how they were arrived at, given the difficulty that the Committee had recently had about differing interpretations on timelines.

The Chairperson impressed upon Mr Mohapi that the document was a guideline, not a regulation or an Act. It was an internal tool for use by the Committee.

Mr Mohapi cited another example, and said the point was whether the Committee would be procedurally competent to impose consequences for respondents that had failed to act within the specified timelines. The document made no provision for that.

Mr Michalakis raised a point of order, asking if the Committee was actually deliberating the guidelines.

The Chairperson said that it was not, and closed the discussions on this item.

Executive undertakings
Mr Mohapi asked for clarity on what executive undertakings were.

The Chairperson replied that the house Chairperson of the NCOP, from time to time ,would inform the Committee that a particular Minister, being the Executive Authority (EA) responsible for a particular department, would have undertaken to do things in a particular way. The Committee had decided that those undertakings should be listed under a register, so that the Committee would be able to assess the status of such undertakings and be able to hold authorities accountable.

Mr Mohapi interjected that he was not certain that he had executive undertakings before him.

Mr Michalakis was satisfied that undertakings were proceeding, even though the Committee had not gone to India on its study tour. He wanted to know what the status was on possible guidelines for executive undertakings, which would, for instance, give guidance as to what constituted an executive undertaking and what the procedure was  that the Committee would adopt from the moment the undertaking was referred to it.

The Chairperson added that the Committee had requested that the Rules Committee should consider amending the rules of the NCOP to accommodate the mandate of that Committee, since it had no authority derived from the Rules. The Rules still currently referred to "private members legislative proposals", which was a committee of the Fourth Parliament. There were, however, elements of that Committee that had been transferred to the current Committee, particularly the petitions. There was no guiding document for executive undertakings at present, and that was why the Committee wanted to proceed from the very basis. Even the House Chairperson of the NCOP and the Secretary of the NCOP could not clearly say what the executive undertakings were, as there were no reference documents for them.

Ms Manapole thought that the Committee’s request for the amendment of NCOP Rules had been passed already. This was raised at the strategic workshop of the Committee, where the Whip had been requested to follow up on the matter. It was disappointing that the Rules Committee had failed the Committee on that point. The India tour was intended to fast track the Committee's understanding of what executive undertakings were. The Committee had to find a way to get the Rules Committee to amend the NCOP rules. She said there were several questions - namely, from a procedural point of view, would the Committee rely on executive undertakings received from the sitting of the NCOP or the NA only, how would the undertakings be received (from the public), and whether there was  information outstanding from the departments in terms of undertakings? The work of the Committee would be hampered if it did not have the rules amended.

The Chairperson interjected that there had been nothing sent to the Department, but the Committee had received executive undertakings from the House Chairperson of the NCOP.

Ms Manapole specified the document she was reading from and asked then who had sent undertakings to the department.

Mr Madima said that the Committee Section received information from the NCOP Table, which in turn received information from the Executive Authority (EA). When the Committee Section had had a workshop with the Secretary to the NCOP, the Committee Section noted that it would be difficult for it to always have a presence in the House to listen to EAs making undertakings and commitments. It would be better to have the Table supply the information to the Committee Section. However, that raised another question - was the Committee Section supposed to acknowledge receipt of undertakings and commitments from the EAs, and also ask whether they were going to honour those commitments? The Committee Section faced a conundrum of not knowing how to respond to receipt of undertakings.

Ms Manapole maintained that her question had to do with the date that undertakings had been sent to the department.

The Chairperson interrupted and repeated that nothing had been sent to the department.

Mr Mohapi said that until all Members appreciated and acknowledged that the Committee’s work was new, he was certain that the Committee would be found wanting in some respects. He was also glad that Mr Michalakis had admitted that there was no basis for the Committee to be dealing with executive undertakings, and that had been supported by the Chairperson’s statement that the Rules Committee had not amended the NCOP rules yet. That emphasised his earlier point that it would be unwise for the Committee to try to rush into issues because it was being pressurised. It was more embarrassing to hear that even Mr Madima was saying he was not aware of what the Committee was supposed to do, because he believed that EA generally made commitments in those public meetings, and from there Members could also be able to track commitments by EAs.

Mr Julius said that he did not believe that it was the Committee’s role to revise the legislative framework for executive undertakings. There surely should have been support from the Chief Whip and NCOP Chairperson when establishing the Committee. From the opposition’s side, the view could be that the ruling party did not want to hold the executive to account, although he hastened to add that he was not saying that at this time.

Mr Julius suggested that the Committee Members should now be given all the preparatory reading material they were supposed to take with them to India, so they could read through everything now. The Committee could then work on a document similar to the draft guidelines for executive undertakings in early 2015. He added that the Committee could not work on a list of executive undertakings when it did not know where they came from.

Mr Michalakis said that as far as petitions were concerned and the draft guidelines, he held a completely different view to Mr Mohapi but was pleased that they were in perfect agreement when it came to executive undertakings. The whole business around executive undertakings should have been planned better so that the Committee and support staff would know the processes that needed to be followed. He concurred with both Mr Mohapi and Mr Julius on the reading material for the members. He stressed that the Committee Secretary should be careful to use language that could cause confusion.

The Chairperson said that the current document would be withdrawn, as it did not speak to what the agenda item indicated.

Mr Ximbi commented that much time was spent at that days meeting in postponing, deferring and withdrawing documents. He asked who had prepared the document.

Mr Mohapi raised a point of order that the Chairperson had just withdrawn the document, so there could be no further engagement on it.

Mr Ximbi maintained that he still wanted to know why the document was being withdrawn and who had prepared it.

The Chairperson interjected that that document would not be used for any further purpose. 

Ms Manapole wanted clarity on whether this Committee would develop its executive undertakings guidelines before the Rules Committee had finalised the request to amend the NCOP rules on the mandate.

The Chairperson said that according to his experience, the Rules Committee was charged with a particular responsibility; other committees were in the front line, identifying weaknesses and making recommendations, which would then be forwarded to the Rules Committee. In the National Assembly, the Portfolio Committee on the Private Members Legislative Proposals and Special Petitions had developed recommendations that it had wanted incorporated as amendments, and they were considered by Parliament and implemented. Therefore this Committee could also use the same technique.

Report on the Mkhize and Sehume petitions briefing
The Chairperson questioned the agenda item; he had the minutes of the briefings although the agenda item spoke to a report on the hearings.

Mr Madima noted that the Committee Section Manager had said that that document should be separated into draft minutes and a report, even though the content was similar.

Ms Manapole said she had minutes only, and no report.

The Chairperson concurred that there was no report, but only draft minutes.

Ms Manapole asked by when the Committee would be receiving the report. The report from the Content Advisor that the Committee had earlier referred to the Management Committee (MANCO) had been of a similar format, and she was not satisfied with "minute-like" reports.  She asked for consistency from the support staff.

The Chairperson concurred that that was what he had meant earlier, when he had replied to Mr Michalakis that the Committee would not be dealing with minutes.

Mr Michalakis made the point that it was then incorrect to refer to "resolutions" by the Committee on the draft minutes, because the Committee had not deliberated on those matters yet. These were recommendations, and if the Committee proceeded with the draft minutes, then he would be raising an objection for the reasons stated. Alternatively if the minutes were being considered as a "report" then in both places where the word "resolutions" had been used this should be replaced by "recommendations".

The Chairperson said that since there was no report, it could not be replaced by working on minutes. He apologised for including it on the agenda although the documents were not there.

Mr Julius thought that the Chairperson had long  ago concluded on that matter. When reports and minutes were confused and had to be deferred to another meeting, it made the Members' job very challenging. The Committee now had two petitions to deal with the following day.

The Chairperson cut Mr Julius short and asked him to hold back on comment, so that he could close off on that agenda item.

Mr Michalakis asked for clarity as to when the Committee would discuss the report and consider the recommendations.

The Chairperson replied that he was going to suggest that the Committee be furnished with the minutes and report before the end of business the following day, so that then it could decide how to deal with those documents on its programme.

Mr Michalakis asked if it would not be proper to divide the minutes from the report and deal with them the following day. If that was not possible, then they could be deferred to a later stage.

The Chairperson replied that if the MANCO failed to finish the documents by the following day the Committee would be informed.

Ms Manapole asked if the Committee was then deliberating of the draft report or the minutes.

The Chairperson clarified that this interaction was not a deliberation, but a suggestion in answer to Mr Michalakis' question on when he could give inputs on particular aspects of the minutes. Both sets of documents would be received the following day, for the scrutiny of the Committee.

Committee business for the next meeting
The Chairperson summarised the business  of the Committee for the next day.

Mr Michalakis asked if the stakeholders had all been properly subpoenaed, or if other communication methods had been used.

Ms Manapole asked what the Committee was now doing; she did not know if was possible for Members to engage upon announcements.

Mr Michalakis raised a point of order that perhaps Ms Manapole should have listened more closely, and he was seeking clarity.

The Chairperson concurred that all Mr Michalakis had sought was a point of clarity.

Mr Julius wanted to go back to his earlier point on whether the Committee had prepared for the following day, because at the previous petition briefings, Members had asked for a readiness report, and he wanted to know if this would be available on the following day.

The Chairperson said he had seen a readiness report and that would be supplied to members.

Mr Madima noted the two petitions before the Committee the following day, elaborated how the petitioners had been contacted and who their representatives were.

The meeting was adjourned. 


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