Traditional Leadership and Governance Framework Amendment Bill: final mandates & proposed amendments

NCOP Cooperative Governance & Traditional Affairs

09 October 2018
Chairperson: Mr J Mthethwa (ANC) (Acting)
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Meeting Summary

The final mandates from the provinces on the Traditional Leadership and Governance Framework Amendment Bill were presented to the Select Committee.

The Western Cape registered an abstention, saying the only reason it was doing this was because the province did not have a traditional leadership house.

Committee Members had opposing opinions about whether a final mandate could be accepted from a province whose delegates were not present at the meeting to represent it.

During the brief discussion on the consideration of the C-List on the Traditional and Khoisan Leadership Bill, a Parliamentary legal advisor said that there had been talk about receiving further submissions on the matter. This came as a surprise to some of the Committee Members, and it was agreed that this should be put aside until clarity was received from the Committee Secretary.

Meeting report

Final mandates of provinces

The final mandates of provinces on the Traditional Leadership and Governance Framework Amendment Bill were presented.

The Acting Chairperson asked if there were any additional items for the agenda.

Ms G Oliphant (ANC, Northern Cape) said that she would like to add ‘provincial week.’

The Chairperson motioned for acceptance by the other Select Committee Members, and this was agreed.

He said the final mandates on the Traditional Leadership and Governance Framework Amendment Bill would be consideration and adopted. He counted seven mandates with one abstention.

The Chairperson asked each province to read its mandate.

Ms Oliphant interjected, saying she wanted to highlight something that she had heard about the Eastern Cape Provincial Legislature’s final mandate. She was under the impression that the Eastern Cape would be discussing their final mandate at today’s meeting, but it looked like it had already reached a decision, as there was a final mandate from the Eastern Cape in front of her. She was sure the Chairperson was also familiar with this.

The Chairperson asked if the Eastern Cape had voted in favour of the final mandate.

Mr G Michalakis (DA, Free State) asked where the representative from Eastern Cape was, to vote in favour of the final mandate. There should be a delegate from the Eastern Cape present in order to represent the province. The Select Committee could not work only with paper, referring to the final mandate by the Eastern Cape.

Ms T Wana (ANC, Eastern Cape) walked into the meeting, representing the Eastern Cape.

The Chairperson welcomed her, and said that the Eastern Cape had voted in favour of the final mandate.

Ms Wana agreed.

The Chairperson mentioned that Mpumalanga was not present.

He asked if Limpopo was in favour of the final mandate. 

Ms T Mamphuru (ANC, Limpopo) said Limpopo was in favour.

The Chairperson asked if Kwa-Zulu Natal was in favour of the final mandate.

Mr M Chetty (DA, KwaZulu-Natal) said that Kwa-Zulu Natal was in favour.

The Chairperson asked if the Free State was in favour of the final mandate.

Mr Michalakis said that the Free State was in favour.

The Chairperson asked if the North West was in favour, and added that Ms T Mokwele (EFF, North West) was not present.

Mr Michalakis said that there was no mandate.

The Chairperson corrected Mr Michalakis, and said there was a mandate for the North West.

Ms B Engelbrecht (DA, Gauteng) said that she did not have the final mandate for the North West in front of her.

The Chairperson said she would receive the final mandate for the North West.

Mr Michalakis interjected, and said the situation was the same as for the Eastern Cape. A final mandate could not be read for a delegate who was not present.

The Chairperson said that Ms Mokwele had given an apology.

Mr Michalakis said that it was unfortunate, but she was still not here. Provision should have been made for someone to be present. It was about the warm bodies.

Mr D Ximbi (ANC, Western Cape) asked if it is about the warm bodies, or the mandate of the province.

A Committee official said that according to the rules, there had to be five provinces present.

The Chairperson agreed.

Mr Michalakis asked who was going to vote – would it be the paper?  

Mr Ximbi said that there was no voting taking place -- the final mandates of each province were just being carried out.

Mr Michalakis said that he could not reasonably accept a vote based on a piece of paper that quite frankly looked to him like a scanned document. This would be accepting a vote by hearsay. He needed to see a delegate from the North West present.

Ms Oliphant asked if Mr Michalakis was the chairperson of the meeting, as he was stating that “he” needed to.

The Committee official proceeded to read Rule 155 (2): “When a question that does not fall under section 75 of the Constitution of the Republic of South Africa, needs to be decided, Committee Members representing at least five provinces must be present, and the question decided by the supporting vote of at least five provinces.

Ms Oliphant asked how many Provinces were present at the meeting.

The Chairperson confirmed that seven Provinces were present.

Mr Nkosana Mfuku, Content Advisor: Provincial and Local Government, said that in addition, this piece of paper was part of the requirements of the Mandating Procedures of Provinces Act (No. 52 of 2008), which are conferred to Members. In this instance, this paper had been signed by the Speaker in the North West Province. It was within the template of how mandates were conferred, and it was signed.

Mr Michalakis thanked the Chairperson and said that he, as well as everyone else, had been in the National Council of Provinces for many years now, and he understood how mandates work. What he wanted to get clarity on was whether a simple mandate could be taken and accepted as a vote, or whether a representative had to come in and represent the Province. He did not want to be unduly difficult, but it needed to be realised that if the correct procedure was not followed, then there would be implications for the passing of this legislation from here on forward. He suggested that there be should certainty with the procedure and processes. If the Chairperson wished to proceed, then there was nothing he could do about it, but he just wanted this to be taken into regard.

Mr Ximbi said that according to constitutional and procedural rules, the Select Committee was 100% correct because that there was a mandate from the North West Province, and a quorum that allowed it to proceed.

Ms Wana said she was rising in terms of what was written in the final mandate by the North West. According to the rules read at this meeting, she proposed that the final mandate of the North West be adopted, and what was written be accepted.

The Committee official interjected, and provided a solution to the matter. He said that Dr Y Vawda (EFF, Mpumalanga) was present, representing Mpumalanga, and he could read the final mandate for Mpumalanga.

Ms Wana asked about the final mandate of the Western Cape, which read that the Western Cape was going to abstain.

The Chairperson said that what Mr Michalakis had raised was good, so that the people could understand what the Select Committee did.

He asked Mpumalanga to read their final mandate.

Dr Y Vawda (EFF) read the final mandate, which stated that the delegation representing Mpumalanga in the National Council of Provinces (NCOP) had been conferred with a mandate to vote in favour of the Bill. This had been signed by Mr Skosana Ka Mahlangu (MPL), acting Speaker of the Mpumalanga Provincial Legislature.

The Chairperson asked Mr Ximbi to read the Western Cape final mandate.

Mr Ximbi said that the Western Cape was abstaining from voting on the Traditional Leadership and Governance Framework Amendment Bill because currently the Western Cape did not have a Traditional House. This was the main reason why the Western Cape abstained.

The Chairperson asked for Gauteng’s final mandate.

Ms Engelbrecht said there was no mandate for Gauteng, and this was typical African National Congress governance.

The Chairperson asked if the report on Traditional Leadership and Governance Framework Amendment Bill could be considered. Had everyone received the document?

Mr Ximbi proposed that the report be considered as a Committee.

The Chairperson thanked Mr Ximbi, and asked for a seconder.  

The Chairperson said that Ms Oliphant had seconded.

Mr Michalakis wanted to clarify why a report from the Portfolio Committee had been sent to the Select Committee. He said the Select Committee normally heard a presentation from the Portfolio Committee and then it deliberated on this. He wanted to know if there was a specific reason why the Portfolio Committee’s report had been sent to the Select Committee without the Select Committee’s deliberations.

Mr Michalakis was corrected by a Committee Member, who advised that the report Mr Michalakis was talking about was not the report that was being discussed.

The Chairperson raised item 4 -- consideration of the C-List on Traditional and Khoisan Leadership Bill.

Chairperson asked if the Select Committee could agree with item on the C-List.  

Ms Phumelele Ngena, Parliamentary Legal Advisor, said that there was something she would like to check before the meeting moved on to the C-List. As she understood it, there may have been a notice calling for submissions that had closed on 19 September 2018. She asked if the Select Committee had received anything in this regard.

She was advised that the Committee would have to check with the Committee secretary.

The Committee Content Adviser said he did not recall there being any additional considerations. The current amendments were based on the proposals at the last meeting. They were a consolidation of what Members had suggested at the previous meeting.

Mr Michalakis said that the Committee needed to make absolutely sure that there were no submissions in this regard before it proceeded.

Mr Mfuku said that the issue here may be that there was a window period open for additional submissions. There was also a public participation process.

Mr Michalakis said that public participation was not a “tick box” exercise. If procedure had been followed and public participation had occurred, then that box could be ticked and everyone could carry on. The Committee Secretary would be in a position to tell the Select Committee if there had been other submissions. If there were additional submissions, the Select Committee would have to consider them. There had been a reason why that process had been opened again, and that process should be respected as it was a cornerstone of what the Select Committee was doing here.

Chairperson asked if there were any different views from the Members.

He then asked if this could be put aside until clarity was received from the Committee Secretary. He strongly believed he was the only one who could give the Select Committee clarity on this.

The meeting was adjourned.

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