Western Cape Provincial School Education Amendment Bill: legal opinion & WCED response

Education (WCPP)

11 September 2018
Chairperson: Mr B Kivedo (DA)
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Meeting Summary

The Committee received a briefing from the Legislature's legal advisor on the Western Cape Provincial School Education Amendment Bill.

The legal advisor expressed his views on the Department's legal opinion of the Bill, in particular his interpretation of section 146 (6) of the constitution and conflicts in respect of corroboration schools and donor funded public schools.

The legal advisor advanced three reasons on why he thought the interpretation of section 146 (6) of the constitution by the Department could not be the correct interpretation.

The first reason was that the interpretation in the Department’s opinion resulted in conflict with the text of the Constitution itself, and that conflict could be resolved by a different interpretation.

Second, the Department’s opinion did not resolve conflicts of laws, but allowed the national and provincial spheres of government to assert, respectively, that their law prevailed on the basis of their own views of how the Constitution should be interpreted.

Third,the most important reason is that the interpretation in the Department’s opinion was irrational, and did not correlate meaningfully to the interrelation between original legislation and subordinate legislation. Not only was it illogical to suggest that only subordinate legislation must be referred for approval by the National Council of Provinces, but it was also illogical to suggest that the issue of prevalence of subordinate legislation was likely to arise at all.

The Provincial Education Department indicated it could not respond to the opinion of the legal advisor because it received the document on the morning of the meeting and could not go through it thoroughly. The Department would respond in writing as per the request of the Committee.

 

The Department was pleased that the legal advisor agreed with its view on the provincial competence on the collaboration schools and donor funded schools.

 

Members sought clarity on who could introduce bills; wanted to establish who the final arbiter would be because there seemed to be differences of opinions from different bodies in terms of interpreting section 146 (6) of the constitution; suggested that the Committee should reconvene and come back with recommendations on what the department and legal advisor presented because the committee has received two opinions; and praised the legal advisor for suggesting the constitution should be amended because that would give the NCOP more work especially after the 2019 elections.

Meeting report

Briefing by the WCPP legal advisor

 

Adv Andre Le Roux, WCPP Legal Advisor, briefed the Committee of his interpretation of section 146 (6) of the constitution.

 

He stated that the point made in the legislature’s opinion was that even if it was conceded there were no irreconcilable conflicts between the Bill and the national Act or if there were irreconcilable conflicts, it was conceded the Bill should prevail over the national Act and that the mechanisms by which the Bill prevailed must be understood.

 

Adv Le Roux said it was good and well to exchange extensive legal arguments about whether there were conflicts, whether the conflicts could be reconciled, or whether a Bill, or parts of a Bill, that conflicted irreconcilably with national laws, should or should not prevail; but all of this came to naught if there was a constitutionally intended process with the objective of definitively settling the issue of prevalence, and that process was not followed.

 

Adv Le Roux remained of the view that there was such a constitutionally intended process in respect of Acts of Parliament and provincial Acts. He quoted from case law to prove his point that generally, provincial legislation on schedule 4 matters prevailed over national legislation. He was of the view this was significant but it was important for the legislature to engage with the issue of the scope and meaning of section 146 (6) of the Constitution.

 

He pointed out the Constitution has made provisions for provinces to make their own laws on schedule 4 matters. The Constitution provided for the general prevalence of provincial laws over national laws in respect of schedule 4 matters. The Constitution has recognised that there might be conflicts between such provincial laws and national laws.

 

In the Provincial Department’s opinion, he said a different view was expressed and it was argued that section 146 (6) of the Constitution ‘… is referring to subordinate legislation made in terms of either an “Act of Parliament or a Provincial Act”.’ The Department’s view on the matter was not without merit. It was certainly supported by a textual reading. Nevertheless, from a contextual and purposive perspective, he was of the view that this textual reading was incorrect.

 

He stated that in the constitution, the subordinate legislation was referred to as ‘subordinate legislation’ because there was nowhere in the constitution where ‘subordinate legislation was referred to by the expression ‘a law made in terms of an Act of Parliament or Provincial Act’. In common law, there was a well-known principle to the effect that a legislature was presumed to use language consistently.

 

Adv Le Roux provided three reasons why he argued that the interpretation of section 146 (6), which was preferred in the Department’s opinion, could not be the correct interpretation. The first reason was that the interpretation in the Department’s opinion resulted in conflict with the text of the Constitution itself, and that conflict could be resolved by a different interpretation. It was asserted, in the Department’s opinion, that section 146 (6) of the Constitution was intended to apply to subordinate legislation only. Section 146 (6) of the constitution created a requirement for approval of laws by the National Council of Provinces for those laws to prevail over others.

 

For the interpretation advanced in the Department’s opinion to be accepted, it must also be accepted that the Constitutional Assembly used both the expression ‘a law in terms of an Act of Parliament or a provincial Act’ and the expressions ‘national legislation’ and ‘legislation’ to, in fact, mean ‘subordinate legislation’; this in spite of the fact that the constitution itself appeared to use the expression ‘subordinate legislation’ when it, in fact, intended to refer to subordinate legislation, and that the constitution itself defined ‘legislation’ as inclusive of original legislation and subordinate legislation.

 

Second, the Department’s opinion did not resolve conflicts of laws, but allowed the national and provincial spheres of government to assert, respectively, that their law prevailed on the basis of their own views of how the Constitution should be interpreted. He was not of the view that this was what the constitution intended. He was of the view that it was much more likely that the constitution intended to create processes and mechanisms whereby conflicts of laws could be definitively resolved.

 

Should there be a conflict or conflicts between national laws and provincial laws, the National Council of Provinces appeared to be the obvious institution to decide questions of prevalence. This was so because, constitutionally, the National Council of Provinces exists at the intersection of national and provincial interests.

 

Third,the most important reason is that the interpretation in the Department’s opinion was irrational, and did not correlate meaningfully to the interrelation between original legislation and subordinate legislation. Not only was it illogical to suggest that only subordinate legislation must be referred for approval by the National Council of Provinces, but it was also illogical to suggest that the issue of prevalence of subordinate legislation was likely to arise at all.

 

He reminded the Committee that, as a point of departure, all subordinate legislation and their legal authority to bind, emanated from original legislation. Subordinate legislation that purported to bind outside of the scope of the original or empowering law, was unlawful. A subordinate law could not do a thing or impart a right or obligation outside of the scope of the original or empowering law.

 

Adv Le Roux pointed out that there was little or absolutely no point to refer subordinate legislation to the National Council of Provinces for a decision on whether it should prevail. The application of subordinate legislation, where there were conflicts, was necessarily decided by a determination of whether an Act of Parliament or a provincial Act prevailed. In this context, it made no sense to suggest that section 146 (6) was intended only for conflicts between sets of subordinate legislation.

 

In his conclusion, he indicated the view expressed in the Department’s opinion that section 146 (6) of the constitution only referred to approval by the National Council of Provinces of subordinate legislation was only textually persuasive. It was conceded, from an interpretational perspective, that section 146 of the constitution was not well drafted. This section would benefit from constitutional review so that its intention was more clearly expressed.

 

With regards to the conflicts in respect of collaboration schools and donor funded public schools, he swas persuaded by the Department’s opinion to the extent that it was argued that there was no conflict between the national Act and the provincial Bill.

In as much as views were expressed in the Department’s opinion in respect of interpretation of section 146, subsections (2) and (3), in case of a conflict, he reiterated the view that, even if this position was correct, prevalence of the Bill, once it becomes an Act, could only be decided by the NCOP.

 

Discussion

 

Mr T Olivier (ANC) wanted to know if the Committee would continue with the ruling invoked in the last committee meeting where it was indicated members of the public would be given an observer status in the meeting even though it was open to the public. His concern was that the meeting was a continuation of what was discussed in the previous meeting.

 

Ms L Botha (DA) recalled that the decision of the Acting Chairperson then was that the meeting was a committee meeting, but not a public hearing.

 

Mr Olivier indicated Ms Botha was not making a conclusion. The decision was on record and it was agreed it was a public meeting but the public would not be allowed to speak.

 

Ms Botha stated that a decision was taken in the Committee and was voted on.

 

Mr Olivier then decided to withdraw from the meeting.

 

Ms Botha said Mr Olivier was taking the Committee back and playing with semantics.

 

The Chairperson suggested the meeting should continue for the sake of progress, and if there was time, the Committee would then see if the public would be given space to talk.

 

Mr Olivier agreed the Committee could move forward, but wanted to understand if it was fine to have the public in the meeting and not be allowed to speak.

 

Mr F Christians (ACDP) suggested the Committee must continue with the ruling of the previous meeting.

 

The Committee then continued with the business of the day.

 

Deliberations with the legal advisor

 

Mr D Mitchell (DA) wanted to understand if a passed Bill would give an Executive Member (EM) extended powers or broad scope because the legal advisor had quoted a judgement where an EM could not introduce a law. In other words, he wanted to find out if the Bill process allowed EMs, MPLs or Standing Committees to introduce legislation and in his view this is the case.

 

Adv Le Roux said the Executive had powers to constitutionally implement the law, but not to make it. A law could be introduced by a Minister or provincial minister. It could be introduced by the Executive, but it must be the legislature that makes the law.

 

Mr Olivier wanted to establish who the final arbiter would be because there seemed to be differences of opinions from different bodies in terms of interpreting section 146 (6) of the constitution.

 

Adv Le Roux replied the different interpretations were coming from his side, the Department, NCOP, and academic authorities. It could be interpreted anyhow and by anyone. The National Assembly (NA) was the best place to resolve it because the NCOP has been baffled by it and was not sure how to interpret it. He suggested the legislature ask the National Parliament to look at section 146 (6) of the constitution. Alternatively, the matter could be resolved by the courts.

 

Mr D Mackenzie (DA) suggested the Committee should reconvene and come back with recommendations on what the Department and legal advisor presented because the Committee has received two opinions.

 

Ms Amanda Torr, State Law Advisor, indicated she received the opinion of the advocate on the day of the presentation and did not have an opportunity to study it.

 

Mr Mackenzie proposed the Department should submit a one-page feedback report on what the Advocate presented so that the Committee could go through it and make a decision.

 

Ms Torr remarked that the Advocate conceded he was persuaded by the Department that there was no conflict in respect of the provisions of the collaboration schools and donor funded public schools and sale and consumption of alcohol in public schools, but section 146 (6) of the constitution kicks in only in the event there was a conflict. What prevails or does not prevail does not count at all. The constitution was clear the courts were the final arbiters as far as the national Act prevailed. It appeared the Committee was entering into an unnecessary academic debate.

 

The Chairperson said Ms Torr had raised very important and valid points that stood out. What she said should be illuminated and highlighted in terms of specific and focus points and the academic baggage it carried.

 

Adv Lynn Coleridge-Zils, WCED Director for Policy Coordination, stated the only point that Adv Le Roux was making was in terms of intervention facilities where they believe they needed more material, form, and substance. The Department has discussed this. The fact that he conceded to the provincial competence on the collaboration schools and donor funded schools has made the work of the Department much easier in terms of the debate going forward. There were concessions and, as representatives, they could discuss the substance and form of intervention facilities and regulations that go with that. She also noted the Department was asked by Ms Botha, when she was Acting Chairperson in the previous meeting, to submit a report on the pilot project on the evaluation of the schools. The Department had the written submission with copies for all the Members of the committee.

 

Mr C Dugmore (ANC) asked if in terms of Adv Le Roux’s call the Department would formulate an amendment on the matter of intervention facilities and enquired at what stage would that be provided to the Committee.

 

Adv Coleridge-Zils replied that the Department agreed with Adv Le Roux that when the learners are in the intervention facilities, they must receive the same quality and standard education. More clarity would be given on the amendments of the Bill. However, the Department could not concede on the strategies and therapeautic programmes because each situation was different and different therapeautic programmes would be administered, depending on the circumstances. The intervention centre has been provided with much relevant information which was good for the children.

 

An official from the Department pointed out that challenges were unique when kids went to these intervention facilities. This has presented challenges to address the difficulties and complex behavior. He acknowledged that the interventions were of good quality because the kids were exposed to social workers and psychologists.

 

Mr Mackenzie commended Adv Le Roux for the recommendations that the constitution should be amended because that would give the NCOP more work especially post 2019.

 

Adv Le Roux agreed with Ms Torr on section 146 (6) being too academic and he could see she was looking for clarity. In as much as the Bill was concerned, the Committee will not get section 146 (6) right. He also clarified that he never conceded to the competence of the province to make legislation because that was not challenged. He only conceded there was no conflict.

 

Adoption of Minutes

 

24 April 2018 minutes

 

The Chairperson took the Members through the document, page by page.

 

Ms Botha moved for the acceptance of the document.

 

Mr Olivier seconded the motion.

 

The minutes were adopted with no amendments.

 

8 May 2018 minutes

 

The Chairperson took the Members through the document, page by page.

 

Ms Botha moved for the adoption of the minutes.

 

Mr Olivier accepted the motion.

 

The minutes were adopted with no amendments.

 

15 May 2018 minutes

 

The Chairperson took the Members through the document, page by page.

 

Mr Olivier moved for the adoption of the minutes.

 

Ms Botha seconded the motion.

 

The minutes were adopted with no amendments.

 

The meeting was adjourned.

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