The Committee discussed the negotiating mandates on two bills: Public Service Commission Amendment Bill and Traditional Leadership and Governance Framework Amendment Bill.
Discussing the Public Service Commission Amendment Bill, the Department of Public Services and Administration advised that some provincial comments were still outstanding and that only 6 of the 9 provinces had provided mandates on the Amendment Bill. Four of six provincial mandates received supported the Bill (with no amendments) while two (Eastern Cape and Gauteng) supported the Bill with amendments. Later, during the meeting - comments were received from the three remaining provinces - Kwazulu Natal (KZN), Limpopo and Northern Cape (NC).
Some of the key aspects contained in the mandates was a key concern raised by provinces related to the appointment of Commissioners - firstly that the renewal and approval process had to be subject to a public participation process and secondly that the renewal criteria for Commissioners had to include performance standards. The Department’s view was that the renewal of Commissioners terms was not obligatory (there was merely an option to renew). The renewal could be subject to a public participation process but that this left to provincial legislatures to decide. There were already measures in place to ensure that the performance of Commissioners would be monitored and that aspects like misconduct, incapacity and incompetence could result in a poor performance assessment which would negate reappointment
Committee members were concerned that provinces may have different criteria regarding appointment and assessment of commissioners and urged DPSA to ensure that rules were aligned for all provinces. It was agreed that DPSA would specify minimum criteria which provinces could use to draft their own criteria, so as to ensure broad alignment across all provinces.
Discussing the Traditional Leadership and Governance Framework Amendment Bill, the Department of Traditional Affairs advised that it had received 8 mandates (7 provinces provided input prior to the preparation for this meeting - and the comments from Gauteng were received subsequently). Comments from the NC (Northern Cape) legislature were still outstanding. Of the 8 provincial mandates received, the Free State supported the Bill without amendments, the WC (Western Cape) abstained, the NW (North West) rejected the Bill and the other provinces all supported the Bill with amendments.
A key issue raised in the comments was the time period allowed to establish Kings and Queens Councils. According to COGTA two years were required to enable councils to be established properly and that a shorter period as suggested by some provinces would be unrealistic.
Committee members wanted clarity on some of the terminology used in the Bill, and which was correct - i.e Traditional Authority vs. Traditional Councils. A concern was also raised that there was not enough consultation with kingships and queenships on the Bill, and how the Bill would manage issues in provinces where there were there were different views - e.g. the North West that opposed the Bill.
The Committee agreed that the DPSA and COGTA responses on the views and mandates received from provinces would be referred back to provinces as part of the mandate negotiation process. Finality on both Bills could only be achieved once provinces gave the Committee a new (and possibly final) mandate, given the responses from the two departments, as discussed in the meeting.
Election of Acting Chairperson
The Committee Chairperson was not present and Mr S Mthimunye (ANC, Mpumalanga) was elected to chair this meeting.
The Acting Chairperson welcomed Dr H Mateme (ANC, Limpopo) a new member to the Committee.
Ms G Oliphant (ANC, Northern Cape) said she wanted to raise some important committee ‘house keeping”
The Acting Chairperson asked that it be raised at the end of proceedings when the Committee could discuss the issues in private (other attendees would leave after the end of the briefing of the agenda items).
Briefing by Department of Public Service Administration (DPSA) on comments received from provinces on the Public Service Commission Amendment Bill
Ms Renisha Naidoo, Chief Director: Legal Services, DPSA, said that the Department had received a telephonic invitation to brief the Committee.
She said that some provincial comments were still outstanding and that only 6 of the 9 provinces had provided mandates on the Amendment Bill. Four of six provincial mandates supported the Bill (with no amendments) while two (Eastern Cape and Gauteng) supported the Bill with amendments.
[She did not indicate which provinces supported the Bill without amendments].
Ms Naidoo provided the following briefing on comments received from the EC (Eastern Cape).
EC raised two key aspects relating to the appointment of Commissioners - firstly that the renewal and approval had to be subject to a public participation process and secondly that the renewal criteria for Commissioners had to include performance standards.
Ms B Engelbrecht (DA, Gauteng) queried whether it was correct that the Legal Advisor could brief the Committee on another province’s mandate. She felt it had to be a provincial delegate.
The Committee Secretary explained that as DPSA was merely providing a response to provincial comments on the Bill (and not the actual comments or mandate from the province) it was correct that DPSA could brief the Committee.
Ms Engelbrecht said that Gauteng had yet to have public participation meetings on the Bill, so some of the comments could still change.
Ms Oliphant said that the Northern Cape (NC) had just concluded its public participation process on the Bill and that it would be submitted to DPSA later in the day.
Ms Naidoo continued briefing the Committee on comments received from provinces. She indicated that the mandates from Limpopo and the Northern Cape had now been handed to her.
She continued with briefing on the EC comments.
She said that the renewal of Commissioners terms was not obligatory (there was merely an option to renew). The renewal could be subject to a public participation process but that this was left to provincial legislatures to decide. Regarding the public participation process, she said the term was very broad and that the EC had to provide more detail on what it meant by public participation. She further indicated that the appointment of Commissioners was not subject to any public participation process, so the proposal from the EC would create disparity.
Ms Naidoo said that there were already measures in place to ensure that the performance of Commissioners would be monitored and that aspects like misconduct, incapacity and incompetence could result in a poor performance assessment which would negate reappointment.
Ms Naidoo provided the following input on comments received from the Gauteng legislature.
She said that Gauteng wanted the Act to come into effect on a fixed date; hence it proposed a fixed date for the Bill to be enacted. This, she said, was not feasible as legislation only becomes law (i.e. enacted) once the President signed it into law. Parliament could pass a law but it could only become operational once signed by the President.
Ms Naidoo asked if she could provide comments on the Limpopo mandate once she had time to review the document she had received earlier during the meeting.
The Acting Chairperson concurred and asked COGTA Traditional Affairs to brief the Committee on its views in respect of the comments received from provinces on the Traditional Leadership and Governance Framework Amendment Bill.
Briefing by Department of Traditional Affairs (TA) on Traditional Leadership and Governance Framework Amendment Bill
Mr Mashwale Diphofa, DG, Traditional Affairs, advised that the Department had received 8 mandates (7 provinces provided input prior to the preparation for this meeting - and comments from Gauteng was received subsequently).
Comments from the Northern Cape legislature were still outstanding.
Of the 8 provincial mandates received, the Free State supported the Bill without amendments, the WC (Western Cape) abstained, the NW (North West) rejected the Bill and the other provinces all supported the Bill with amendments. He indicated that a key issue raised in the comments was the time period allowed to establish Kings and Queens Councils.
He advised that Dr Rinaldi Bester, Legal Drafter, COGTA, would provide more detail on the provincial comments and mandates.
Dr Bester provided the following input to the Committee based on the views from provinces.
-Eastern Cape comments - he said it would be difficult to accommodate the views raised by the EC. The province wanted the one year period for the establishment of queenships and kingship councils to remain. The Amendment Bill proposed two years, as one year would not be sufficient to establish the councils due to the logistics and complexities involved.
-Free State - supported the Bill without amendments.
-Gauteng - views not available at time of preparing for the meeting. However having subsequently reviewed the comments received from the province, COGTA does not support the views raised by Gauteng.
-KZN (Kwazulu-Natal) - KZN wanted the term “traditional council” deleted and replaced by the term “traditional authority”. According to COGTA, the terminology in the Bill should remain as is.
-Limpopo - supported the Bill but wanted some issues to be considered before the Bill was passed by the Committee. These were amongst others - the status of traditional councils that were untransformed, those that operated outside the law and that legal costs incurred by traditional leaders had to be borne by themselves. The issue of the period of one year to establish councils was also raised by Limpopo and a suggestion that this be extended was recommended. COGTA indicated it would consider these and other comments raised by the province.
[Mpumalanga - Two issues were raised, namely to define “principal traditional community” and secondly, to change the period of one year (for the establishment of councils and the Amendment Bill to come into force). According to COGTA, the “principal traditional community” is defined in the principal Act and that the Committee could decide to amend the period from one year to two years when passing the Bill.
[Northern Cape (NC) - no comments were received at the time of the preparation for the meeting.
[North West (NW) - This province rejected the Bill. According to COGTA, some of the comments (in support of its views) raised by NW was not part of the Bill, e.g. a reference to CPA’s, paramount chiefs and a request CPA records had to be audited. Other issues raised by the NW were that the Bill did not relate to the National Development Plan and that Traditional leaders were not consulted on the Bill. According to COGTA Traditional leaders were consulted. The term CPA’s was not clarified at the meeting.
[Western Cape - abstained as it did not have any traditional councils that were recognised in terms of existing legislation. COGTA (and Committee members concurred) that this would change once a new Bill on the Khoisan was enacted.
Discussion on the TA presentation
Ms Oliphant apologised for the absence of comments from the NC. She said this was now available and would be sent to COGTA.
Ms T Wana (ANC, EC) indicated that the province had a concern regarding the undermining of royalty and that the current Bill did not adequately address the problem. Kings and Queens had to be consulted properly before laws were drafted so that the laws did not infringe upon rights and rules of the kingship or the queenship.
Ms Engelbrecht said she supported what COGTA was doing, but wanted to know if two years was enough (to establish the councils).
Dr H Mateme (ANC, Limpopo) wanted clarity on how the Bill would “manage” differing views by provinces. The country was a unitary state and all laws applied equally in all provinces. She was concerned about what would happen in the NW where the Bill had been rejected. She also wanted to know which term was the correct one to use in the case of “Traditional Authority” vs “ Traditional Councils”
The Acting Chairperson commented that once the Bill was passed and enacted into law it would apply throughout the land, including the NW. He also wanted to know what the status was of the Nhlapo Commission.
Mr M Chetty (DA, KZN) wanted clarity on some aspects. He raised the concern that provinces may still reject the Bill - those provinces that supported with amendments may elect to oppose the Bill once the feedback from COGTA was discussed in provincial legislatures. His view was that the feedback from provinces was not a final mandate as there were still some differences on some issues.
The Acting Chairperson asked the legal representative to provide some clarity.
Ms Phumelele Ngema, Parliamentary Legal Advisor, Advisor advised as follows:
She said there were two aspects to the bill - one relating the mandate procedure and the other on the content of the Bill.
Regarding the mandates from provinces, she said that deliberations on provincial views (mandates) was an ongoing process and until there was a clear final view from provinces, the Bill could not be finalised at Committee level. Issues that remained at odds with provincial views was “open ended” until there was a resolution on them (between the provinces and the Select Committee).
She was in agreement with the Department (Traditional Affairs) regarding their responses to the issues raised by provinces. The responses were correct and some of the concerns raised by provinces had to be addressed elsewhere and not via this Bill. The Bill would only become law once signed by the President and published in the Government Gazette (regardless of it being passed by Parliament).
Mr Diphofa said that in the case of the WC view (to abstain), once the Traditional and Khoisan Leadership Bill was enacted, the situation on the WC would change. He added that the Department was confident that 2 years was sufficient to establish councils.
Dr Bester said that the current legislation meant that existing kingships and queenships in the EC could not be properly established; hence the new amendments were needed. He also commented that the Department had met the Nhlapo Commission to ensure alignment.
Dr Matema wanted to know what the current status of the Bill was (in terms of progressing through Parliament) and at what stage proceedings were. She also wanted to know what mandates or guidelines were available or would be provided to provinces to enable them to establish councils.
Dr Bester responded that the principal Act indicated that provinces were supposed to have their own measures (to establish councils) but that that these had to be aligned with broad guidelines as provided by the Minister.
Ms Ngema said that the proper terminology to use for the structures to be established were that of a “Traditional Authority or a Traditional Leadership”. She also said that the status for both Bills (being discussed at the meeting) was that they were still at the negotiating mandate stage.
Ms Wana wanted clarity regarding the status of a regent in the context of a particular situation in her province, the EC - where there was a problem within a certain clan where some of the people were at odds with the regent. Unless there was clarity on the process (in instances like this) there could be chaos. She emphasised the issue by saying that she wanted to “warn” the Department to provide clarity in the Bill on this matter.
Mr Diphofa respond that the Department was fully aware of the problems in the kingship she was referring to and that it was perhaps better to discuss the issue with Ms Wana in private.
The Acting Chairperson responded that the issue raised by Ms Wana was not part of the meeting agenda; hence it could not be raised nor discussed in the meeting.
Ms Wana indicated she raised the issue in the interest of seeking clarity.
Mr Chetty said that that the Committee now had a legal view that the process on the Bill was still at a negotiating stage and that that a lot of things could still happen up to its finalisation.
The Acting Chairperson closed the discussion on the Traditional Leadership and Governance Framework Amendment Bill (B8B-2017) by advising that the feedback from COGTA would now be sent to the provinces.
The DG said that now that the Department had also received comments from Gauteng and the NC, these would be added.
The Acting Chairperson asked if these two additional feedbacks form COGTA could be provided to the Committee later in the day.
Ms Engelbrecht reminded the Committee that Gauteng was having a public engagement process on the Bill over the coming weekend (22-24 June 2018).
Mr J Mthethwa (ANC, KZN) said he was concerned about the absence of any mandates from the NC. He wanted to know why this had not been provided to the Committee.
Ms Oliphant advised that the reason was because there was no provincial representative present.
The Acting Chairperson responded that this was regrettable and that the Committee Secretary would take the responsibility to communicate with the NC legislature on the issue, to ensure that the Committee received their mandates.
This concluded the discussion on the Traditional Leadership and Governance Framework Amendment Bill (B8B-2017).
The agenda then reverted back to DPSA to continue its briefing on the Public Service Amendment Bill (B21-2015)
Continuation of the briefing by DPSA on comments received from provinces on the Public Service Commission Amendment Bill
Ms Naidoo advised that she had since received the mandates from the other three provinces - KZN, Limpopo and the NC (during the period while the Committee discussed COGTA issues).
She provided the following input.
Regarding comments received from Limpopo, she indicated as follows - The proposal to “mention the term of a commissioner as 5 years and then to go with the procedures related to the term” was problematic and could not be agreed to by DPSA. DPSA, however was in agreement with the suggestion to reformulate subsection 5 so that it aligned with section 196(10) of the Constitution. DPSA also had no problem with some of the other comments provided by Limpopo to “reorganise” the Bill - e.g. substituting the words “term of office” with “term”
DPSA required further clarity from the province on what it meant with performance criteria linked to the renewal of commissioners after the current term expired. Another problem for DPSA was the recommendation that time frame be fixed for an acting chairperson. The Department felt it was not practical to stipulate a fixed time frame.
Ms Naidoo indicated that KZN also raised some concerns around the renewal process for commissioners.
Discussion on DPSA briefing
Dr Mateme said that there had to be similar parameters for provinces regarding renewals. There could not be different rules for provinces - all had to operate under the same rules.
Ms Wana was critical about the role of commissioners and said she was not sure what benefit or assistance they could bring to communities. She feared that some would only take up the roles for “self-gain” and not to serve the people. There had to be very clear rules and guidelines for commissioners.
Mr Mthethwa advised that this was in order, but that provincial views had to be respected.
The Acting Chairperson advised that the same process would be followed as with COGTA - i.e. the DPSA responses would be sent back to provinces for their consideration.
Ms Engelbrecht wanted clarification on whether there was a need to establish criteria for all provinces or if provincial legislatures could create their own.
Ms Naidoo responded that the debate in the National Assembly on the topic could act as a guideline on the issue - in that there would be no harm in including a clause for minimum criteria (DPSA aligned to this) but that there had to be some leeway for provincial legislatures to include aspects that reflect their independence on some issues.
The Acting Chairperson proposed that the Committee would support the inclusion of minimum criteria in this regard.
Dr Mateme said regulations on the Bill were necessary for the smooth running of the Department in administering the issue. There was a lot of commonality within provinces and regulations would aid good governance.
Ms Naidoo responded that this Bill would not have regulations, only rules.
The meeting was adjourned at 11h50.
All public attendees left the meeting and the Committee members proceeded with discussion in private on some house keeping matters.
- Traditional Leadership and Governance Framework Amendment Bill: Limpopo negotiating mandate - part 2
- Traditional Leadership and Governance Framework Amendment Bill: Limpopo negotiating mandate
- Public Service Commission: Northern Cape negotiating mandate
- Traditional Leadership and Governance Framework Amendment Bill: proposed amendments
- Comments on mandates on Traditional Leadership and Governance Framework Amendment Bill
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