The Committee received a briefing from the Department of Rural Development and Land Reform on the Communal Property Association Amendment Bill. Thereafter, the Committee discussed the legislative procedures to be followed.
The intention of the Amendment to the Communal Property Associations Act, 1996, was to address the many challenges that the Department had experienced in implementing the Act over the years. The main challenge had been the lack of authority of the state to intervene in affairs relating to the Communal Property Associations. Governance was an area of concern as the community leaders saw themselves as leaders forever and did not abide by democratic principles. The issue of self-interest was evident in the disposal of Communal Property Associations property, especially land, without the approval of the community. The Department also experienced difficulties in maintaining oversight and in monitoring the Communal Property Associations.
The Bill would ensure that the decision to establish a CPA had to be a community decision and that a property had to be registered. The Bill allowed for the establishment of a CPA Office, headed by a Registrar, which would be situated in the Department of Rural Development and Land Reform. The Registrar would have specific powers that not even the Minister could override. The functions of the Registrar were indicated in Section 2D of the Schedule attached to the Act.
The Bill provided for the Registrar to appoint an expert in dispute resolution to resolve disputes in a community, such as when chairpersons refused to leave office. The affairs of a CPA could be placed under administration as there were legal consequences to the establishment of the CPAs as juristic persons. The Bill also dealt with offences relating to financial management, compliance with the provisions of a CPA constitution, destruction of documents and interference with the work of a dispute resolution person.
Committee Members had many, wide-ranging questions. Members asked if there was zoning of the land in Communal Property Areas and was the land developed in such a way that it maximised the potential of the land when it was sold off. Did the Department know how much land had already been sold? Were there measures to control that? If not, what plans were there in place to have oversight of the process of sub-division?
How did the Department differentiate between who were beneficiaries and community members and who were not? How many people were in a community? If that was not known, how did the Department determine what was 60% of the votes cast? Did elected members of the CPA have to stay in the area? Would the decision-making process be an electoral process? How would the Department prevent intimidation?
Members were concerned about the powers of the Registrar and a possible over-reach of government in the Bill. Would the land then be available for expropriation or not? What would happen on the Amendment to the Constitution being adopted? Could new beneficiaries be registered or would the agreement lapse? What was the role of chiefs in relation to the CPAs? Would the CPAs be allowed to establish a trust?
The Committee had a fairly extensive debate on the legislative processes to be followed. Some Members believed that the Committee should call for public comment and contemplate amendments before forwarding the Bill to the provincial legislatures. Others believed that there was insufficient time for the National Council of Provinces to follow such processes which would take the Committee until the end of the year. It was ultimately decided that the Committee would forward the Bill as it stood to the provincial legislatures for public comment processes to take place. At the same time, the Committee would engage in a public comment process and would endeavour to send its report to the legislatures prior to discussion in provincial legislatures and the development of a mandate for the province. It was hoped that the Committee report would influence decisions taken by the provincial legislatures.
The Chairperson welcomed everyone to the meeting. Introductions were made by all present. The Chairperson noted apologies from the Minister, the Deputy Minister and the Director-General of the Department who were all attending a special Cabinet Lekgotla. He briefly introduced the subject of the meeting, the Communal Property Association Amendment Bill, which, he noted, was attracting a lot of interest. However, he did not want to waste time, so he handed over to the Department immediately.
Briefing by Department of Rural Development and Land Reform (DRDLR)
Adv Sello Ramasala, Head of Legal Services, DRDLR, noted that the Committee was not dealing with a new Act, but an Amendment to the Communal Property Associations Act,1996. The Department had experienced many challenges with the Act over the years. The main challenge had been the lack of authority of the state to intervene in affairs relating to the communal property. Governance was an area of concern as the leaders saw themselves as leaders forever and did not abide by democratic principles. The issue of self-interest was evident in the disposal of Communal Property Associations (CPA) property, especially land, without the approval of the community. Oversight and monitoring was difficult.
Proposed amendments included definitions that had been revisited. The Bill would ensure that the decision to establish a CPA had to be a community decision and property had to be registered. The Bill allowed for the establishment of a CPA Office, headed by a Registrar, which would lie within the public service and be situated in the Department. The Registrar would have specific powers that not even the Minister could override. The functions of the Registrar were indicated in Section 2D of the Schedule.
A CPA acted on behalf of the beneficiary community. It was a legal entity created by the community and had to be accountable to the community. The Schedule stipulated requirements of identification of community members. Land had to be offered to the Department for re-distribution before it could be offered for sale.
Disputes marred CPS’s. The Bill provided for the Registrar to appoint an expert in dispute resolution to resolve disputes in a community, such as when chairpersons refused to leave office. The affairs of a CPA could be placed under administration as there were legal consequences to the establishment of CPAs as juristic persons.
The Bill also dealt with offences. As financial management was a challenge, it became an offence not to comply with the provisions of the Constitution relating to financial matters. The Bill also made it an offence to destroy documents relating to CPA management, finances, etc. as that was a common problem when CPA officers were voted out of office. It would also be an offence to interfere with the work of a dispute resolution person.
The Bill made provisions for annual reporting on the CPAs to Parliament by the Minister. The Registrar would prepare the report.
The Chairperson commented that CPAs throughout the country were struggling. Very, very few were successful. He only knew of one in Bella Bella that was doing well.
Mr C Smit (DA; Limpopo) noted that it was a very important subject which related to the basic rights of communities. There were two South Africa’s. The one South Africa, that is the South Africa outside of Communal Property Areas, was where people had ownership of the property and had means to become part of the economy. The other South Africa was in the Communal Property Areas where people were excluded from the right to own land and engage in the property economy.
There were different purposes for land, such as grazing, development, agricultural planting. Was there a zoning of the land in Communal Property Areas? Was it sold off and developed in such a way that it maximised the potential of the land? Did the Department know how much land had already been sold? Were there measures to control that? If not, what plans were there in place to have oversight of the process of sub-division?
There was a reference to 60% of the beneficiaries were communities. How did the Department differentiate between who were beneficiaries and community members and who were not? Were all people staying in the area considered members, i.e. kids, grandkids? How many people were in a community? If that was not known, how did the Department determine what was 60% of the votes?
Would the decision-making process be an electoral process? How would the Department prevent intimidation? People feared being chased away if they did not support the big decision-makers in the community.
The Bill did not address the basic problem: tribal areas were established by the apartheid regime to separate people by race and to control the masses. That separation was still sustained to that day. If one were not of the same tribe, could one become a community member? Was the Bill sustaining racial divides? The CPA was a limitation of basic human rights of association, access and movement. Were there no-go areas? Those living in residential properties could be given individual ownership and title deeds to the residential property. Why could government not do that? He was not talking about common grazing land. Why did the people not have share certificates? Did the community members have any proof of ownership?
What was the role of the tribal authorities? How would ownership be proven?
Mr E Mlambo (ANC;Gauteng) was concerned about victimization and intimidation. People were called unruly but that was often because the CPA members had ganged up against them. The majority might think that they were doing things right but were engaged in corruption. Regarding the CPA constitution, was there a standard constitution, did communities need to draft their own constitutions or did the Department dictate to the communities?
Ms E Prins (ANC; Western Cape) wanted to compliment the Department because the Department had identified real issues, especially in the Richtersveld. She was glad that the Department was moving in the right direction. When would the Department implement the measures because the community was sick and tired of the problems? The community was even unwelcoming to Members of Parliament. The Richtersveld CPA had to be the first to be addressed.
Mr A Singh (ANC; Kwazulu-Natal) had noted that members of CPAs did not want to have regular elections. Was there a stipend for members serving on a CPA? Did the Department monitor the elections to see if they were free and fair? A CPA office had been set up. Were staff members paid by the Department? How did the Bill affect the Ingonyama Trust land in KwaZulu-Natal?
Ms Z Ncitha (ANC; Eastern Cape) appreciated the presentation. At which level of government would the Registrar be located? She worried about the powers of the Registrar in relation to the CPA as he could dismiss CPAs without any controls, such as the approval of the Minister. It was a concern, as he was just a person and could make errors.
Ms Labuschagne (DA; Western Cape) noted that under the new law, when land was bought from CPA, the CPA was seen as the acknowledged owner of the land. Would the land then be available for expropriation or not? What would happen on the Amendment to the Constitution being adopted? Could new beneficiaries be registered or would the agreement lapse? The Committee needed to address the legality of some of those things. She requested that the Department respond to her questions first, then she could broach her real concern.
The Chairperson invited Members from provincial legislatures to make contributions should they wish to do so. None of the Members present had any contributions.
Ms Prins asked whether there were criteria for determining the 60% of the community. Did elected members of the CPA have to stay in the area? She had heard about someone from the Western Cape running the Richtersveld CPA.
Mr Smit noted that if it were determined that day that X were the owners of community, that information would be invalid when new community members arrived, and children of members came of age, all of which would influence the numbers to meet the 60% voting requirement. How would that be managed? That figure would not be stagnant.
The Chairperson noted that in rural areas, chiefs were custodians of land. What was the role of chiefs in relation to the CPAs? Would the CPAs be allowed to establish a trust?
Adv Ramasala began by responding to Mr Smit. He began with the issue of zoning of land. Neither the Bill nor the Act dealt with land use, except that the land had to be registered. That was because the land was privately owned. There was no information about how much land had been sold by CPAs. The Department simply knew of disputes arising from the selling of land. What measures or reporting provisions would assist the Department to ensure that there was compliance? He referred to where the Bill referred to the disposal of land. Land had to be offered to the Department for sale before selling it. The Department could also be requested to assist with elections.
How to differentiate between members and non-members? The Department could not do that. He referred Mr Smit to the schedule in the principal Act. In point 5 on the Schedule it said that the constitution of the CPA required the CPA to provide a list of names and ID numbers, where available, of members of the community. The list had to include children and other intended members of the association. The principles of who would be entitled to be members had to be established by the community. For example, in the Ramasala household, the paternal descendants would become members. The CPA constitution should have a procedure for resolving disputes e.g. in respect of new members. The constitution had to provide the principle. Beneficiaries were initially clearly defined but others had come to settle on the land with, or without, permission. Sometimes traditional leaders put people on the land of a CPA. People erected a structure because they believed they had a right to be there, but in terms of constitution they did not have rights. That was where disputes arose.
The Act had nothing to do with who could form a CPA. The Act had nothing to do with ethnic or tribal people living in an area. It was a traditional thing that might happen as a result of geography. The issue of share certificates and land ownership was not an issue relating to the Department as it was privately owned land and the community could decide how to handle land, e.g. sub-divide. The Act was silent on those matters. It was privately owned land, but issues of traditional leadership applied. If the land of a CPA happened to be under the jurisdiction of the tribal authority, then that authority applied, but it was privately owned and could not be taken by state. During apartheid, land could not be owned by black people but had to be held on their behalf by the state. The same arrangement prevailed. There were still villages where the state held the ownership of the land. One could transfer land and get title deeds. A traditional leader was a governance structure and had to deal with the land as if it was privately owned.
The KZN Ingonyama Trust was a public trust established by law. It was not a private trust but a public trust that held the land vested by law. All land in the area was owned land privately by CPAs. However, there was land that had been claimed by individuals. If they wanted to register that land, there would be an issue as to who owned the land.
Adv Ramasala explained to Mr Mlambo that there was protection for whistle blowers, but not in the Act under discussion. Also, the Department would intervene where it could. Where there were acts of corruption, the Department would intervene. The CPA constitution was a community-specific constitution, but there were standard provisions that had to be in the constitution.
He informed Ms Prins who had asked how long it would take to implement the Bill, that it would depend on how long the Committee took with the Bill and when the President assented to it. Immediately thereafter, the Department would implement the Amended Act. The 60% required for electing members to the CPA would be decided by the names and identity numbers of the community or the principle decided upon in the constitution of the CPA, such as whether it was the eldest male relative or whether it was every adult member.
Ms Prins asked if she moved to Richtersveld, could she be part of the community, or was it only for those who had lived there historically.
Adv Ramasala responded that the Bill did not amend the entire Schedule in the principal Act. Clause 21 of the Bill contained the Amendment to the schedule of Act. Item five described how a person would qualify to be member of the community.
He told Mr Singh that the issue of the governance structure refusing to leave office occurred because those people were in a position of power. It was an issue of power. The CPA itself decided how it would reimburse those who sat on the governance structures. It had nothing to do with the Department. The staff in the Office of the CPA were government officials.
He explained to Ms Ncitha that the level of the Registrar had been left open for the Minister to decide. Currently, the official performing those duties was at director level, but it might be elevated to a higher post. He had heard from the Committee that the power of the Registrar to dismiss a CPA member had to be mitigated. That was not in the Bill, but the Committee could look at that. The Bill stated that there was a process to be followed, so it was not an arbitrary decision.
Adv Ramasala informed Ms Labuschagne that the question of whether the CPA land was available for expropriation was a difficult question from a legal point of view. For example, if people erected structures on land owned by a CPA, such as happened in Mpumalanga, it would be difficult for the government to intervene as it was privately owned land. If those living there said that people were invading their land and they had no right to do that, the state would try to resolve the dispute. One solution would be for the state to expropriate the land for those seeking somewhere to live. That was possible under the current Constitution. He was not saying what should happen as it was privately owned land, but he was pointing out that the state could expropriate that land in certain instances.
On the role of traditional leaders, he said that the land remained privately owned. If he bought a farm and lived on the farm, he was not under the jurisdiction of the chief but when he went back to his village, he was subject to the jurisdiction of the chief. Could CPAs establish trusts? That was dealt with in the definitions and one of the first clauses in the Bill. In the application of the Act, a trust could reconstitute themselves as a CPA.
Mr Smit understood that land use was a separate matter altogether, but there was no reference at all to land use and there should be a cross-reference to the use of land. In terms of sale of land, one could not regulate, if one did not have control. Implementation of the Bill was not possible. One needed to be able to establish what was happening. When setting up the constitution, some people could be excluded from the community. The regulations part of the Bill was very vague and not implementable. The Department would get information from the same community that it would monitor for compliance using that information provided by the community. He referred to the Constitution which talked to the rights of people who had been excluded from owning land because of racially exclusive laws or practices. Those people were entitled to legally secure tenure or redress.
Members of the Committee had an obligation to ensure redress. Those communities were being deprived of all rights that all other citizens in the country had. The Act did not do much. The Bill was doing something that would do nothing. Privately owned land sounded good, but it had zero value if one could not trade in the land. The Act was depriving people. The government wanted to give economic freedom to previously disadvantaged people but was denying people of the right to own their land. Once again, Parliament was losing the opportunity to fix it. There had to be minimum standards to prevent intimidation. There had to be a framework for how the constitution had to be drafted. The Department could not deal with each CPA individually. It was not possible. The Bill needed to work in protective measures. Saying that people could not complain if they had been intimidated, was not good enough.
Ms Labuschagne had some clarity-seeking questions on the Schedule of the principal Act. How many CPS were registered? Did the Department know how many and, if not, how would they know when all were registered? How did the Department know that the CPAs had provided all the information required in the schedule? There might be CPAs that had slipped through the cracks for years. What in the Bill gave her the confidence that those things would be addressed, and CPAs would comply? If there was no control of the schedule, how could the Department monitor compliance? The Department could play politics or be South Africans and say that land issues had not been adequately addressed because there was no budget. She wanted to see those issues corrected with the Bill. The intentions were good, but she questioned the practicality of implementation. She could not see how there could be compliance because already there were so many problems within CPAs. If there was no baseline, the Department would be at an unfair disadvantage again and could not make a difference from such a position.
The Chairperson reminded the Committee that the Amendment of the Bill had nothing to do with elections.
Mr J Julius (DA; Gauteng) was concerned about security of tenure. The proposed changes would end in the NCOP. The High-Level Panel had said that the Bill had to be stopped and the situation assessed before going ahead with the Bill. The Committee needed to look at the recommendations of the High-Level Panel led by former President Kgalema Motlanthe. It was not a foreign panel from America imposing something on South Africa. The government had asked the panel to look at things. If the Panel was being ignored, why was it being ignored? The Act was like a disposable nappy. The next day, the Act would be disposed of. Why did the Department persist with the Act when so much was happening in land reform that would impact on the Act?
The Registrar would be in charge of many things in terms of the CPAs. The Registrar may even dismiss a CPA and require the community to elect a new committee, appoint an interim committee, etc. The Registrar was a government over-reach. Government was depriving people of the right to manage their own land. People had to be given their space. Why did government come in and tell people how to do things? There was a need for regulations and then the Department should leave them. Government over-reach contravened Section 25(1) of the Constitution. Section 25(1) states that no law might lead to arbitrary deprivation of power. He did not agree with the wide powers of the Registrar.
Ms Ncitha noted what the Chairperson had said about the deep rural areas where the traditional leaders were in authority. There should be space for representatives of the House of Traditional Leaders. CPA had to meet traditional leaders because they were right at the cutting edge. Nothing in the Act spoke to traditional authorities. There was nothing to stop the Registrar from inviting traditional leaders to be involved. Land unrest was rife. The Committee could not debate the Bill without a reference to traditional leadership or the engagement of the traditional authorities.
Adv Ramasala explained that he had emphasised that the land managed by CPAs was private land. As a result of successive government laws, traditionally common land had been managed by traditional leaders. That was a natural phenomenon that happened because government had decided that land owned by Black people had to be managed by chiefs. The land was owned by the state on behalf of the community. The residents had been occupiers. Now black people were allowed to own land privately because the communities owned the land before the laws were implemented. What had been happening to communal land was as a result of apartheid laws. Chiefs had managed traditional land. It was the case even today. That land was held by the state in trust for communities. Residents were simple occupiers. Under the new dispensation, blacks could own land. At the time of owning land, the people did not have chiefs. Where chiefs said that the people were under the chief, the resolution of those disputes lay with the Department of Cooperative Governance and Traditional Affairs. The Bill was only dealing with land that was privately owned by the communities. The community might decide to sub-divide it as it was land that they owned privately. It was not land given by state to traditional authorities. There was confusion about those matters and the context needed to be understood.
He responded to Mr Smit, explaining that the CPA would indicate what the land was going to be used for. That was Clause 3 which dealt with planning and inserted sections 2A, 2B, 2C and 2D into Act 28 of 1996. A lot had been said about implementation and reference was made to the Constitution. All that the Bill was doing was strengthening tenure. The Bill recognised privately owned land and confirmed security of tenure. Where the government regulated it, it was seen as over-reach but where there were disputes, there were complaints that government was not managing the situation. There was nothing in the Bill that said that communities could not sell or dispose of that land but, because it was provided by the state in the first place, CPAs had to offer it to the state first. But if the state did not buy it, they could sell to anyone. The Bill was not saying that the communities could not do as they pleased with the land, but it was proper to offer it to the state first. That came from the principal Act and was not in the Bill.
He told Mr Julius that the government recognised the right to private property, but the state had to assist because there had been problems. The Department was regulating it and was seen as the mediator in disputes.
Adv Ramasala informed Ms Labuschagne that 1 500 CPAs had been registered. However, if a CPA was not registered, then it was not recognized by the Department. The Department assisted those communities which wished to register CPAs by sending officials who would report back on the situation, including whether the people were identifiable and whether the community had a constitution for the CPA, etc. Often a community needed a person to assist them to set up a CPA.
He referred to the Act. It dealt with the drafting of the CPA constitution in section 6. It dealt with registration of CPAs with the Department and the principles to be embraced within the constitution. The Act also provided for information and reconciliation, and contained the provisions related to monitoring and inspection by the Department.
He told Mr Julius that the Bill reinforced the CPA and was not taking away any rights. That was the issue of over-reach. Regarding the High-Level Panel issue, he pointed out that the panel had identified that CPA members regarded CPA properties as their own properties, to the exclusion of members of the beneficial communities. That was what the Bill was trying to address. The Bill was not taking away anyone’s rights. It was trying to ensure that CPA committees acted on behalf of the community and not themselves.
The Chairperson stated that the Bill would provide a way forward. Following Ms Prins’ input about the Richtersveld, he wanted to cite another case about the Bakgatla-Ba-Kgafela community in Rustenburg which had also been in conflict with the traditional leadership.
Mr Smit commented that, in the answers, even more questions had been raised. The previous Minister Nkwinti had raised the matter of communal state-owned land at the community indaba. He had mentioned that people should register those communities under CPAs, so the Bill had to be forward thinking. Some of the people were disillusioned with the tribal authorities as they were not administering the land properly and were claiming the land as their own and not the land of the community. The law should be developed not only for the day but also for the future.
He found it quite hypercritical that the state had bought the land for those people when they were the rightful owners of the land. Government had only assisted them to regain their land, so government could not say that the communities would be obliged to give government the first option of purchase. Unless government applied that rule to all private property, it was a case of double standards.
Had the Bill been sent to House of Traditional Leaders? Traditional leaders were stakeholders. Mr Smit’s suggestion was that, as it was a Section 76 Bill, it had to go to Provinces. The Committee had to finalise the NCOP process, ensure public participation and consequent amendments and then send the Bill to provinces where there would be public inputs. If the two processes ran concurrently, the NCOP lost the opportunity to hold its own processes. If there was an opportunity for input, people would speak about the issues. If that process was followed, the Bill would add value. He had picked up the understanding at the land indaba that people were feeling very, very strongly about that specific issue. It would have great implications for those communities that should have ownership and economic freedom in the country.
Mr Julius said that legal advisors could assist the Committee. The state had to have the first opportunity to purchase. He thought that was robbing people whose land was owned by the people themselves and the people had provided the money to buy that land in the first place. There was too much at stake for them to be pre-emptive. The President did not say in Parliament that the Constitution was going to be changed but if the Constitution was going to change, why go and ask people about the Bill? Why not wait to see the impact of land expropriation without compensation? His proposal was to wait and see what happened regarding the expropriation.
He informed Adv Ramasala that the Department was not before the Committee to defend legislation. The Department was not the law maker, the NCOP was the law maker. It was not the job of officials to defend a piece of legislation. The Department should listen. He did not hear that the Department would be considering any of the points raised but Committee Members. The Department had just defended its points as if the law belonged to the Department. He was put back by that attitude where the Department did not listen. The officials could just stay at home and send the Bill to the Committee if they were not going to listen. The Members, however, were there to do their job.
Mr Singh explained that it was the President of the ANC who had spoken on television about the decision of the ANC to push for a constitutional change. It was not the President of the country who had spoken, unless the president of the ANC was the DA Member’s President.
The Legal Advisor informed the Committee that the Joint Tabling Mechanism Committee had decided that the Bill related to Customary Law and in terms of Section 118, it was referred to the House of Traditional Leaders. The traditional leaders had been consulted but no input had been received from them. He added that it was drafting convention where one listed relevant legislation in the provision, other legislation was excluded because it was a closed list. However, where legislation had not been cross-referenced, that legislation was still applicable, as in the case of the Bill before them. Where a community had not referred to the Land Use legislation in its constitution for the CPA, it did not mean that that CPA was not recognised. The relevant legislation still applied.
The Chairperson called on the Department to close the discussion.
Adv Ramasala said that the North West case of the Bakgatla-Ba-Kgafela community was one where the court had to decide on a dispute and it had confirmed that even if communities stayed inside land owned by traditional leaders, they could still own land privately run by a CPA. He stated that the Department had tried not to engage in debate and impose the Department’s views. That did not mean that the views of the Committee were not heard. He apologised if it had seemed that way to the Committee Members.
The Chairperson stated that the Bill was still to be debated extensively. The Committee would send the submission to the Secretary and Members would brief their respective provinces where all the stakeholders would be taken on board because the provinces would hold public meetings to engage stakeholders. The NCOP would also advertise and engage communities. The meeting was adjourned.
Mr Smit asked the Chairperson to clarify the statement that he had just made so that the Committee staff were clear about what was to happen. He understood that the NCOP would complete its process first and then the Bill would be sent to the provinces. NCOP public participation should be held and processes finalised in the Committee before sending the Bill to provinces.
The Chairperson released the Department and informed them that they were free to leave. The Committee would remain to iron out internal matters.
Adoption of minutes
No amendments were made to the minutes.
The minutes of 19 June 2018 were proposed for adoption by Mr Singh and seconded by Ms Prins.
The minutes of 26 June 2018 were proposed for adoption by Ms Prins and seconded by Mr Singh.
Legislation processes in the NCOP
The Chairperson asked the Secretary to give a brief explanation of the processes relating to legislation in the NCOP.
The Committee Secretary, Asgar Bawa, stated that Mr Smit had proposed an ideal situation where the NCOP ran its processes before the provinces, but time was against the Committee. If the Committee went that route, time would be an issue. He had to give members of public at least three weeks for submissions and the entire process would take six weeks and then the Committee would decide whether to hold public hearings, which would take another three weeks. The report would have to be compiled and approved so another two weeks would go by before the Bill could go to provinces, which then had to follow their own process. The process would take them into the following year.
He suggested that the Committee could take the Bill to Provinces and Members could brief provinces and provinces would hold public hearings. At the same time, the Committee could call for submissions and hold public hearings but the NCOP report could be given to legislatures before the provinces got to the point of creating a negotiating mandate, i.e. provinces would also take into account the input of the NCOP. He reminded Members that amendments to the legislation would take the form of negotiating mandates from the provincial legislatures.
The Chairperson added that the Committee had never had problems with such a process before. He asked that the schedule outlined by the Secretary be accepted by the Committee.
Mr Smit totally disagreed with the process because the Committee was being deprived of the opportunity to make amendments. If the NCOP processes ran first, Members could make amendments. It was not about a shorter process, it was about doing things right. Members of the public would ask why the Committee had invited public participation because their input would just be noted by NCOP and not implemented. The Committee had to complete its processes and make amendments in line with the public input, and then send it to the provinces. That was the correct way.
Ms Prins said that there was nothing wrong with the process because Members had the right to make amendments at the end. Was it not normal practice for the NCOP to do so? The legal people had to address the Committee and they could explain. She was not sure, but the legal advisors could tell them.
Ms Labuschagne lamented that it was the end of the term and the Committees still did not know how to manage the legislative process correctly. She had raised the matter with the Chief Whip that morning and she would raise the matter again in the Programming Meeting. The process had not been a problem before the beginning of that year. Members of the Committee could attack her, and they could try to bulldoze it through, but she was telling them about Rule 169(J) which stated that Members of the Committee “may recommend rejection or approval or present an amendment Bill.” The Constitution said that the powers of the National Council were to “pass the Bill, pass an amended Bill or reject the Bill”. Committees asked for legal opinions, but people did not follow the rules. Why was a Section 76 Bill sent to the Committee if it was only meant to be sent to provinces?
Ms Prins attempted to engage Ms Labuschagne in a dialogue.
Ms Labuschagne continued. If the Committee only amended based on what provinces were saying, why did legislation go to the Committee? If the Committee could not recommend amendments, why did a section 75 Bill come to the NCOP? The Committee could not short circuit Bills because of the shortage of time. It was a problem throughout the NCOP. In the Mimosa Agreement, the judgement was clear. If the Committee wanted to lose more court cases, Members should feel free to do so.
Ms Manketsi Tlhape, representing the North West Provincial Legislature, stated that public hearings in the provinces would assist the provinces. She agreed with the proposal made by the Secretary. At the same time, the Committee could also do its report unless the Committee could complete the process of public input within a week, which was not possible. So, she agreed with the proposal that the Bill should be sent to provinces.
The Chairperson did not want to go in circles in dealing with the matter. He called on the Content Advisor.
The Committee Content Advisor stated that he did not want to agree or disagree with anyone, so he was going to talk to processes. If provinces were briefed on the Bill, it would be on the Amendment Bill as it stood at that time. That directly implied that there were no changes to the Bill by the Committee. If the Committee developed an opinion about the Bill two, three or four weeks down the line, it was post-publication which defied the purpose of the original proposal which was that before the Bill went to the provinces for public comment. The Bill should be in a state that the Committee deemed it necessary before public consultation. Consultation prior to that process sent a Bill to the public that short-circuited the Committee’s opportunity to give its input. Once there was a mandate, the Committee was in a rule-bound process and the Committee could not send an amendment to the provinces if the provinces had followed the mandated proceedings. Whatever state the Bill was in when presented to the public, that was the Bill that had to be debated. Nothing could be amended. He understood the time constraints but questioned why the Department had left the Bill so late. He was not in favour of being pushed for time when the Department had had five years. For the Committee to conduct public consultation negated the purpose of listening to the public because it did not matter as the Committee could do nothing about the Bill after the consultation.
The Secretary stated that with a Section 75 Bill the individual Members would propose amendments in the Committee which could propose those amendments. A Section 75 Bill did not go to provinces. A Section 76 Bill required a decision by the provinces. The Committee could assist the provinces in coming up with amendments. The Committee could also come up with proposed amendments, recommendations and feedback from stakeholders and include that in the report that the Committee sent to the provinces. If the Committee could complete its report before the provinces drafted their negotiating mandates, the opinion of the Committee could be taken into account by the provinces. A negotiating mandate could be changed if referred back to the province because it had not considered issues raised by the Committee or given a reason for rejecting those opinions. It was a negotiating phase which only finished when the province sent its final mandate. Members were not cut off during the negotiating phase.
Mr Julius worried that the Committee was reducing processes and there had been court cases in that regard. Even the President had sent Bills back because the processes had not been followed. The Committee had to do its work first. Thereafter, Members went to the provinces as they were members of the provincial legislature. What was sent to the provinces had to include the Committee’s views, as well as those of the stakeholders. He could not go to the province and give his personal opinion. He was not concerned about time because the NCOP Chairperson had said that time should not be a factor when dealing with Bills. Members should do it right the first time.
Mr Singh suggested that the Committee needed a legal opinion from the parliamentary legal services, but soon, so that the Committee did not lose time.
Ms Thlape had thought that the Secretary was a legal advisor. Members of the Committee came from provincial legislatures, so she did not see why they could not attend the processes with their provinces. She submitted that communities were the most affected people. She understood procedure, but time was more important.
The Chairperson said that the Members would be briefing provinces soon and then the Secretary would advertise for public comment to be sent to the Committee by interested and affected parties.
The meeting was adjourned.
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