The Parliamentary Legal Adviser briefed the Committee on the status of the draft Petitions Bill. This Bill, although in draft form, had not been introduced or formally assigned to a Committee, and the Legal Adviser discussed the content of the Bill and noted that it seemed to fall under section 75, not section 76 of the Constitution, and section 76(3) noted that bills to be introduced in the NCOP included bills falling within a functional area listed in Schedule 4, or a bill dealing with uniform procedure. Since this Bill dealt with the right to petition a House of Parliament, and how petitions would be processed by Parliament, it did not comply with either of these requirements. She proposed that, since there was also no committee in the National Assembly that dealt with petitions, this Committee could recommend that an ad hoc Committee be established to initiate, prepare and introduce the Bill there, or that the work done in relation to the Bill be included in the NCOP rules, or that a member of the NA could be requested to introduce the Bill in the NA. The Committee discussed whether this Bill was not akin to the provinces adopting their own bills, but the Legal Adviser pointed to the Court's ruling that Limpopo could not introduce its own financial management legislation. It was decided that the Committee would write a memorandum requesting the NCOP to give the Committee permission to introduce the Bill.
Members noted that executive undertakings had been received from the Ministers of Justice and Correctional Services, Higher Education and Training, Small Business Development, and Social Development. No guidelines or rules were in place as to how this Committee must deal with the matter, and the research unit would be asked to prepare a paper on processes and procedures used by other countries for executive undertakings, and how the Committee should move forward.
The draft Report on the Maluti-A-Phofung petition was tabled, but not discussed, and would be adopted in the following week.
The Committee adopted minutes from meetings on 20 and 21 August, with amendments, and discussed the logistics for a visit to the Eastern Cape the following week.
Draft Petitions Bill: Parliamentary Legal Adviser's input and deliberations
The Chairperson informed the Committee that there was a petition for consideration, and that the Committee needed to decide on how to proceed on it. He provided some context for this discussion. He reminded Members that the Committee was meant to have a Petitions Indaba which would help to outline and find a way forward to the problems that the Committee faced with its mandate and the shortcomings in the Rules around petitions. However, the Committee failed twice in getting this Indaba approved. The management committee had stated that the Committee should not have only one item on the Committee's agenda for the rest of its term. The Chairperson proposed, therefore, that the Committee should now take the draft Petitions Bill that was going to be presented at the Indaba to the House, asking that it be considered by the Committee. There were many legal requirements around the processing of the Bill. The Committee had been working with Parliament’s Legal Services division.
He explained that the current draft of the Bill could not be taken to the House. The Committee firstly had to obtain permission form the NCOP. There seemed to be two options for the Committee to take this Bill forward. The first was to decide on the final wording for a Memorandum that could be addressed to the National Council of Provinces (NCOP) asking that it give the Committee permission to introduce the Bill. The second was to refer the Bill straight to the National Assembly (NA) without seeking permission from the NCOP.
Mr G Michalakis (DA, Free State) sought clarity on the procedure. He asked if the Chairperson meant that the Committee needed to get permission from the NCOP before presenting the Bill to the House. He referred to the court case that had ruled that a private member could bring a Bill forward without the permission of the House. He was under the impression that this could extend to a committee also, and specifically this Committee. He asked if this was possible.
Ms Desiree Swartz, Parliamentary Legal Adviser, explained that it could not be done and this procedure did not apply to this Committee, because this committee was regarded as an extension of the NCOP.
The Chairperson then asked Ms Swartz to brief the Committee on the draft Petitions Bill and the legal procedure.
Ms Swartz explained that the Parliamentary Legal Services had received a request from the Committee to assist with the drafting of a Processing Petitions Bill (the Bill). That request stipulated that the Bill must provide for a uniform approach in dealing with petitions across all legislative sectors, that it must further set out a common definition for petitions, and must ensure that all role-players had a key understanding of the process and their role within the process.
The Bill essentially dealt with the right of anyone to submit a petition to a House of Parliament (both the National Assembly and the National Council of Provinces); the referral of a petition to a committee; the establishment of a committee in the National Assembly and NCOP to deal with petitions; the powers and functions of the relevant committee; how the new committee would report to its House on the petitions before it. This Bill also sought to create offences and penalties, and it provided for the Speaker and the Chairperson to make rulings to ensure the proper implementation of the provisions of the Bill.
Ms Swartz explained that whether an NCOP committee may initiate and prepare a Bill would depend on the type of the Bill. Section 68(b) of the Constitution limited this Committee’s authority to initiate and prepare legislation to such legislation that fells within section 76(3) of the Constitution. This would include legislation dealing with functional areas listed in Schedule 4 of the Constitution, excluding any money Bills. An enquiry into whether a NCOP committee had the authority to initiate and prepare legislation would be relevant, because the NCOP would go into the merits of this enquiry before granting a committee permission to draft legislation. She pointed out that rule 163 of the NCOP Rules required an NCOP committee to obtain the permission from the NCOP.
Section 73(1) of the Constitution provided that ‘any Bill may be introduced in the National Assembly’. However, it was clear that this section provided that the Bills that could be introduced in the NCOP would be limited to bills dealing with matters specified in section 76(3). Section 76(3) identified these bills that could be introduced in the NCOP as a bill that fell within a functional area listed in Schedule 4; and a Bill dealing with the uniform procedure in terms of which provincial legislatures conferred their legislative authority on their delegations to cast votes on their behalf, amongst others. If the Bill did not deal with a matter listed in section 76(3), it had to be introduced in the National Assembly.
Ms Swartz noted that the draft Petitions Bill dealt with the right to petition a House of Parliament, and how petitions would be processed by Parliament. Ms Swartz felt that the Bill did not contain clauses that regulated or fell within any of the functional areas listed in Schedule 4. It also did not provide for legislation that dealt with other Bills listed in section 76(3).
Ms Swartz was therefore of the view that the Bill could only be introduced in the National Assembly, as a section 75 Bill. A National Assembly committee may initiate and prepare a Bill that dealt with petitions.
The following three options were recommended to the Committee:
a) since there was no committee established in the National Assembly of the Fifth Parliament that dealt with petitions, this Committee could adopt a report containing a recommendation that an ad hoc committee be established in the National Assembly to initiate, prepare and introduce the Bill in the National Assembly. The report could further recommend that the ad hoc committee should be required to consult with this Committee when preparing the Bill for introduction.
b) As another option this Committee could request that the work already done in relation to the Bill should be included in the rules of the NCOP.
c) Lastly, the Committee could request a member of the National Assembly to introduce the Bill in the National Assembly.
Mr G Michalakis (DA) sought clarity on what provinces would be allowed to make laws on. He was aware of the fact the provinces had been allowed to draft their own Petitions Bills. He asked whether this Committee could have the same competency to make laws as did the provinces.
Ms Swartz said that provinces did not have exclusive power, as their functions were explicitly stated in Schedule 4 and 5 of the Constitution. According to her understanding, provinces did not have the authority to make laws because this was not listed as a function in any of the schedules, and they did not have general legislative authority. She demonstrated her point with the court ruling on Limpopo’s financial management legislation; which had been to the effect that the province had no legislative authority and therefore could not introduce or implement this piece of legislation.
The Chairperson asked Ms Swartz to speak to section 73 (4) and what it meant for the Committee and the Bill. He wanted to know what limitations this imposed on the Committee and whether the Committee could introduce the Bill.
Ms Swartz explained that the Committee could not introduce the Bill under section 73(4) because the subject matter of the Bill did not fit within section 76(3), and instead fell under section 75. She explained that there was a difference in procedure for the NCOP and the National Assembly when introducing a Bill. A member of a committee, or a committee itself, could introduce a bill in the NCOP. However, in the National Assembly, a member of Cabinet could introduce a bill, so that a bill did not have to be introduced by a committee or a member of a committee.
Mr Michalakis agreed with Ms Swartz that the Committee could not introduce the Bill because it did not fall under Section 76(3). He asked whether the Committee could get the Bill passed through the same process that Limpopo had used to pass its bill.
Ms Swartz explained that the question was raised as to whether other committees and provinces could pass legislation through the same process used by Limpopo, but it was not dealt with. She suggested that this process could not be used to present the current Bill.
The Chairperson asked what the Bill would be called, whether it would be listed as a Petition Bill or a Service Delivery Bill.
Ms Swartz explained that the Committee could specify how it wanted the Bill to be listed.
The Chairperson asked the Committee to focus on how to move forward . He was worried that other Members may not have gone through the document because it was only himself and Mr Michalakis engaging with the legal adviser.
Mr Michalakis suggested that for the sake of progress the Committee should approach someone in the National Assembly and ask them to introduce the Bill. He acknowledged that whilst this took away from this Committee introducing the Bill , it did not necessarily mean that the Committee would not be given any recognition, because it was possible for the Member being approached to note that the Bill emanated from this Committee.
The Chairperson suggested that the Committee could also write a memorandum asking the NCOP to give the Committee the permission to introduce the Bill.
Mr Michalakis asked how fast this process would be.
The Chairperson stated that the draft memorandum would be ready by the Committee’s next meeting for discussion on any changes required, before presenting it to the NCOP.
The Committee agreed to the Chairperson’s suggestion.
The Chairperson thanked Ms Swartz for her commitment and time, and commended her on the good job done.
Tabling of Executive Undertakings
The Chairperson noted that the Committee had received the following tabling of executive undertakings: the Minister of Justice and Correctional Services, the Minister of Higher Education and Training, the Minister of Small Business Development, and the Minister of Social Development.
Mr Michalakis felt that it was excellent that this system was in place to hold the Executive accountable. The problem was that the Committee had no clue on what to do with these executive undertakings, on what process or procedure to follow. He asked that the research promised to the Committee, on the processes and procedures used by other countries for executive undertakings should be presented to the Committee before it proceeded with these undertakings. The Committee needed guidance and a procedure.
The Chairperson agreed that the Committee had no idea how to execute its mandate in this regard, and agreed with Mr Michalakis that the Committee needed to instruct the researchers to finalise the guidelines.
Mr Michalakis added that the research team should also work with the Chairperson to establish what would be the consequences if a Minister failed to execute his undertaking.
The Chairperson said that lessons could be drawn from the Constitution in terms of what to do in those cases.
Tabling of Maluti-A-Phofung Report
The Chairperson asked that the Committee read through the draft report on the Maluti-A-Phofung petition, and note any comments, so that the report could be discussed and approved in the next Committee meeting.
The Chairperson explained that there were delays in some of the other petition reports, such as the Fuzane report, because some secretariat duties had not been done.
Consideration and adoption of draft minutes
20 August 2015
Mr M Chetty (ANC, Kwa-Zulu Natal) asked that the sentence in point 11.1 be corrected from ‘the hearing on the Petition be adjourned give’ to ‘the hearing on the Petition was adjourned given’.
21 August 2015
Mr Michalakis asked that his attendance be corrected; he was noted as an apology when he was present for the meeting.
The minutes were adopted, subject to these corrections.
The Chairperson announced that the Committee would be attending a hearing in the Eastern Cape next week.
Ms T Mokwele (EFF, North West) requested that travel arrangements and the schedule be properly planned so that sufficient time was allocated for the Committee to analyse the situation and interact with the people of the community properly.
The Chairperson explained that the Committee would be in Grahamstown on Tuesday, Mthatha on Wednesday, and on Thursday and Friday the Committee would be having hearings. There were two petitions, one involves the fraudulent occupation of Reconstruction and Development Programme houses, and the second one involved gravel roads.
Mr Michalakis requested to fly back from Mthatha.
Mr Chetty, supported by Ms Mokwele, requested that there be sound planning on travelling to avoid the Committee Members being too tired or drained to work their best during this week.
The meeting was adjourned.
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