The Committee was advised that the election of the Chairperson would be conducted in line with the National Council of Provinces (NCOP) rule 91, which stated that after the Chairperson had been elected, he or she would preside over the Committee and all of its function.
The Committee Secretary, acting as Chairperson, advised Members of the procedure to be followed. Nominations would be called from the floor; and once the nominee had been seconded and accepted the nomination, provinces would then vote to accept it in accordance with NCOP rule 155(2), and required a minimum of five provincial votes to succeed. The election of the Chairperson would be done in accordance with the section 76 rules of the NCOP.
The Democratic Alliance (DA) Member from the Western Cape disagreed with the election procedure being conducted according to section 76 rules.
The Procedural Advisor for the NCOP confirmed that the Member’s interpretation was relevant, and sought to clarify it, leading at one stage to a minor spat between Members of the DA and the Economic Freedom Fighters (EFF).
Ms M Modise (ANC, North West) and Mr C Smit (DA) were nominated for the position, with Ms Modise receiving four votes and Mr Smit two. However, as neither nominee had received the required minimum five provincial votes, the meeting was adjourned until the situation could be resolved. When it resumed, the DA withdrew its nomination, and Ms Modise was elected as Chairperson.
The Chairperson explained that his role was to conduct the proceedings for the election of the Chairperson of the Committee, as per Rule 91(1)(a) of the National Council of Provinces (NCOP), which states that a Committee must elect one of its Members to be the Chairperson.
On 25 June, a notice calling for the meeting had been circulated to all Members via email and sms, and had been done in compliance with the NCOP Rule 93(1), which reads: “The secretary must call a meeting of the Committee within five working days after the names of the Committee Members had been announced.” The election of the Chairperson would be conducted in line with the NCOP Rule 91, which stated that after the Chairperson had been elected, he or she would preside over the Committee and all of its functions.
The procedure would be as follows:
- Nominations would be called from the floor.
- The nomination would require a seconder.
- Once a person has seconded the nomination, the nominee would then be asked whether he or she accepted the nomination.
- After the nomination was accepted, provinces would then vote to accept that nomination in accordance with NCOP rule 155(2), which reads: When a question that does not fall under section 75 of the Constitution is to be decided, (a) Committee Members representing at least five provinces, or six provinces in the case of a constitutional amendment, must be present; and (b), the question is decided by the supporting vote of at least five provinces, or six provinces in the case of a constitutional amendment.
- Therefore, the election of the Chairperson would be done in accordance with section 76 Rules of the NCOP.
Ms C Labuschagne (DA, Western Cape) wanted to know why the election was being conducted according to section 76 rules. She asked the Chairperson to refer to the section dealing with “selecting Chairpersons of Committees,” and said that according to rule 91(1), which read that unless these Rules provide otherwise in a specific case:
- a Committee must elect one of its Members as the Chairperson of the Committee; and
- the parent Committee of a sub-Committee must appoint the Chairperson of the sub-Committee.
She explained that the current Committee was not a sub-Committee, and was therefore bound by rule 91(1)(a). According to her understanding, each Member of the Committee had a vote to elect the Chairperson, and not only the provinces.
The Chairperson referred to the quorum and decisions in section 155, specifically section 155(2), which reads: When a question that does not fall under section 75 of the Constitution is to be decided:
- Committee Members representing at least five provinces, or six provinces in the case of a constitutional amendment, must be present; and
- the question is decided by the supporting vote of at least five provinces, or six provinces in the case of a constitutional amendment.
Ms Labuschagne contended that as per the argument in the Fifth Parliament, there was not just a section 75 or section 76. She emphasised that if the rules did not make provision for it, then a legal opinion would need to be sought, because Members could not just choose when they wanted issues to fall under the section 75 rule or section 76 rule. The relevant provisions contradicted each other. She therefore suggested the meeting be postponed until such a time when clarity could be sought on the matter.
Mr A Nyambi (ANC, Mpumalanga) said that it was clear that Ms Labuschagne had presented a rule which gave her a different interpretation compared to the one the Chairperson was trying to assist with. He suggested that if the interpretation of the person assisting the Committee in the process found some challenges in the interpretation of the provisions, then it would be appropriate for the Committee to have a further session to resolve the matter. However, to raise objections with the person assisting in the process should be frowned upon, as it could complicate and create problems which could be avoided. Obviously, the rule could be looked at again if there were some challenges involved in order to reach a logical conclusion, as Ms Labuschagne’s challenges could hold valid points.
Ms Shahida Bowers, Procedural Advisor: Tabling Division, NCOP, confirmed that Ms Labuschagne’s question was relevant. She referred Members to section 65 of the Constitution of the Republic of South Africa, which reads:
(1) Except where the Constitution provides otherwise:
(a) each province has one vote, which is cast on behalf of the province by the head of its delegation; and
(b) all questions before the National Council of Provinces are agreed when at least five provinces vote in favour of the question.
(2) An Act of Parliament, enacted in accordance with the procedure established by either sub-section (1) or sub-section (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.
Ms Bowers explained that therefore, in terms of section 75 of the Constitution, all decisions in the
NCOP are taken via the provinces because it is a House of provinces. That was the distinction
between the procedures of the NCOP and the National Assembly (NA).
Members were welcome to seek further legal opinion on the matter.
Ms Labuschagne said she wanted the Committee to reflect on the Fifth Parliament, where they had run back and forth between interpretations, and this had landed them in trouble. According to the Constitution, the NCOP could determine their own structures and rules, as it states that the it is there to represent the provinces specifically in the legislative process; and Members are allowed to structure the workings of the NCOP according to their own rules.
She had become confused as to why, with section 76, they were a House of Provinces, but section 75 received individual votes. She wanted to know what the reason was for section 75 bills going to the NCOP. Members could not say one day they would do things one way, and the next day do things another way. It was unreasonable to state that a decision should be taken, and that legal advice should then be sought to find out if the decision was right or wrong.
Her reading of rule 91 was that the Chairperson is elected by the Members of the Committee. There was no legal question or bill present which would justify the argument as to whether something was a section 75 or section 76 rule, but rather the interpretation of rule 91, which makes use of the word “members,” and not provinces.
Mr Nyambi said he hoped the initial question by Ms Labuschagne was intended to assist the process. Fortunately, Parliament had sent legal representation to partake in the meetings, so that where problems arose, such as the legitimate concern which came from Ms Labuschagne, it could be attended to. There was nothing that was stopping them from getting an opinion, which they had done. He urged the Chairperson that unless there were any issues contrary to the legal opinion provided, that the Committee move forward with the election.
Mr M Nhanha (DA, Eastern Cape) said that he did not want to put Ms Bowers on the spot, but wanted to check how comfortable she was in referring to her comments as a legal opinion. He was sure she was aware of consequences and implications.
Ms Bowers replied that she held the position of Procedural Advisor to the Committee. She had been attached to the Committee during the Fifth Parliament, and would continue to serve the Committee at an administrative level in the Sixth Parliament. She was therefore comfortable to say that her comments constituted procedural advice on behalf of the Procedural Office in the NCOP.
She said she wanted to refer to the question by Ms Labuschagne, but Mr Nhanha interrupted, shouting “NO, NO, NO, I have a right!” and before she could continue, said that he had a question.
Ms N Koni (EFF, Northern Cape) remonstrated with Mr Nhanha for his interruption of Ms Bowers, saying stated that he should allow her to finish. The advocate was trying to clarify her point to questions asked, and before she could finish she had been subjected to Mr Nhanha’s shouting, which was completely rude and disrespectful. She said Mr Nhanha could not bully Ms Bowers in that manner. He should allow her to finish and then pose his question.
Ms Labuschagne commented that Ms Koni was now bullying Mr Nhanha.
Mr Nhanha supported her comments.
Ms Koni justified herself, stating that it was “okay to bully a bully!”
Mr Nhanha explained that Ms Bowers had been moving on to another question and that he had merely wished for her to hang on and answer his question before moving on to the questions of Ms Labuschagne.
Ms Koni interrupted Mr Nhanha, and claimed that her rights were being abused by the manner of his interruption. “A man suppressing a woman -- you don’t do that!”
Mr Nyambi said that the procedural officer had answered the concerns raised by Ms Labuschagne and had just explained the answer to the question posed by Mr Nhanha. If more answers were to be related to the questions, then it seemed fit that Ms Bowers address Ms Labuschagne’s concerns, as they were the primary issues which were being dealt with. Any additional answers related to questions, such as the point of Mr Nhanha, could be provided after that.
Mr Nhanha rejected Mr Nyambi’s comment, stating that it was he who had posed a question to Ms Bowers, and it was to him that she was responding. However, he wanted her to wait in order to fully answer his question, before reverting back to Ms Labuschagne’s question.
Mr Nyambi said that both the initial questions posed by Ms Labuschagne and Mr Nhanha to the procedural officer had been responded to adequately. He considered the back and forth questions constituted deliberate behaviour by Members to hold up the meeting. He urged the Chairperson to proceed with the matters at hand, and the reason for the meeting being called –the election of a Chairperson.
Ms Bowers, responding to Ms Labuschagne’s question as to why would the NCOP would handle both section 75 and section 76 bills, explained that the Constitution stated in section 65(1)(a): “Except where the Constitution provides otherwise, each province has one vote, which is cast on behalf of the province by the head of its delegation; and …”
She explained that in section 75 of the Constitution, voting was set out for when dealing with section 75 legislation. There were processes that were set out in section 75 and 76 as to how the NCOP and NA should deal with the legislative processes. It further set out that when dealing with section 75, one dealt with individual votes. This was done even when in the House. She emphasised that the principle followed in terms of the Constitution, was that all decisions were dealt with in terms of section 65, which meant each province had one vote, except where the Constitution provided otherwise.
Ms Labuschagne said that she wanted it minuted that she was not satisfied with the legal opinion that had been given. She was of the opinion that the Constitution made it clear that Members of the NCOP Committees were allowed to vote individually for the Chairperson, and not just by representation of the provinces. She she would challenge the interpretation in writing and would drive that to finding a resolution to her challenges.
Election of Chairperson
The Chairperson said that the questions of Ms Labuschagne had been recorded in the minutes of the meeting, and would be forwarded to the NCOP for a response. However, the election of the Chairperson would take place. He once again explained the process and opened the floor for nominations.
Ms L Bebee (ANC, KwaZulu-Natal) nominated Ms M Modise (ANC,North West) for Chairperson.
Mr Nyambi seconded the nomination.
Ms Modise accepted the nomination.
Ms Labuschagne nominated Mr C Smit (DA, Limpopo)
Mr Nhanha seconded the nomination of Mr Smit.
Mr Smit accepted the nomination.
The Chairperson said that the nominations would be put to the vote, and they would require a vote of at least five provinces in order to become the Chairperson.
The vote for the first nominee, Ms Modise, was supported by Ms Bebee, Ms M Mamaregane (ANC,Limpopo), Mr Nyambi and Ms W Ngwenya (ANC Gauteng).
The vote for the second nominee, Mr Smit, was supported by Mr Nhanha and Ms C Labuschagne.
Ms Koni said that she was not legally in the Committee, and therefore she had abstained from voting on behalf of the EFF.
The Chairperson said that four provinces had voted for Ms Modise and two provinces had voted for Mr Smit. None of the nominees had received five provincial votes in order to be elected Chairperson, and the requirement was a minimum of five provincial votes.
The Chairperson said that the meeting would be postponed until such time as the Committee could reach a conclusion on a Chairperson. He announced that the meeting would reconvene at 12h30 for the re-election of a Chairperson.
The Chairperson welcomed the Members back for the re-election of the Chairperson of the Committee. He was not going to go through the process again of explaining how things worked and would immediately open the floor up for nominations.
Ms Bebee nominated Ms M Modise.
Mr Nyambi seconded the nomination.
Ms Modise accepted the nomination.
Mr Nhanha said he wished to confirm that on behalf of the Democratic Alliance, he would not put forward any nomination.
Ms Koni asked that it be put on record that on behalf of herself and the EFF, she wished to abstain from the voting.
The Chairperson announced that in the absence of any other nominations, Ms M Modise was the newly elected Chairperson of the Select Committee on Land Reform, Environment, Mineral Resources and Energy.
Ms Modise took her place as Chairperson, and thanked everybody who had participated in electing her. She said she was not a Chairperson who would stand as a rock, but would ensure that the Committee worked effectively together to make a difference. The Committee was a critical one, and therefore needed its Members to work together, as it was a Committee which directly affected the people of South Africa.
The meeting was adjourned.
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