Fifth Parliament legislation and legacy report

NCOP Land Reform, Environment, Mineral Resources and Energy

27 August 2019
Chairperson: Ms T Modise (North West, ANC)
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Meeting Summary

The Committee met for a discussion with NCOP Procedural Adviser about legislation not finalised by the Committee during the Fifth Parliament and how to proceed on these Bills. All the Bills from the Fifth Parliament have automatically lapsed, and the Sixth Parliament had to take a decision whether to revive those Bills.

The Committee agreed that it will revive the National Environmental Management Laws Amendment Bill and the National Forest Amendment Bill but agreed not to revive the Mineral and Petroleum Development Amendment Bill.

The Fifth Parliament legacy was discussed by the Committee Content Advisor. The implications of the legacy are that the oversight mechanism employed by Parliament at present is incapable of identifying the root causes of service delivery breakdowns and reporting efficiently on these, including proposals for remedial action. He suggested that:
- The use of both financial and non-financial performance indicators will allow proper oversight over service delivery, value for money and the attainment of policy objectives.
- The optimum system for performance measurement will include joint planning and regular feedback between NA and NCOP committees, prioritisation of oversight focus and integration of public engagement outcomes into an annual oversight model.
- Financial performance indicators (FPIs) are still important to monitor financial performance, but will be the focus of the NA.
- NCOP provide high quality non-financial performance analysis, in partnership with other spheres of government and Chapter 9 Institutions, to complement NA financial oversight.

The Committee noted that it had inherited outstanding matters not finalised by the Fifth Parliament which it need to resolved in this Parliament. The Committee agreed that it will focus on these matters, but will prioritise the most important issues, with the assistance of the Content Adviser.

Meeting report

Fifth Parliament legislation
Ms Shahida Bowers, Procedural Adviser: National Council of Provinces (NCOP), said that the Bills before the Committee in the Fifth Parliament have lapsed, and therefore, they would need to be revived. This is done by a way of a House resolution in the Council. They are waiting for final confirmation from the Office of the NCOP Chairperson on whether they should have that on tomorrow's order paper or next week after the strategic planning for committees.

As all Bills from the Fifth Parliament have lapsed, it is this new Parliament that should take the decision whether or not to revive those Bills. The Committees are eager to take that decision as there has been a request from other committees as well that the Bills should be revived. So, there will be a resolution on the order paper.  

The Committee Secretary, Mr Asgar Bawa, said that there is no date yet on when this should happen. There are only three Bills to revisit that could be put to the House for a resolution.

Adv Bowers said it is important to have a general resolution that includes all Bills that were before the previous Select Committee. There is an administrative rule or principle that says a Parliament cannot bind a succeeding Parliament. So, whatever business is dealt by a Parliament lapses at the end of the five-year term and the decision is taken by the incoming Parliament on whether to revive it.

Mr B Cloete (Free State, FF+) asked which Bills have lapsed.

The Committee Secretary replied that before the Fifth Parliament concluded there were two Bills that the Committee had not dealt with at all, which are the National Environmental Management Laws Amendment Bill, and the National Forest Amendment Bill. The Committee has dealt with only one Bill, which is the Mineral Petroleum Resources Development Amendment Bill (MPRDA). When the Committee was dealing with that Bill the Minister stated that they should withdraw the Bill. That is when the Committee decided that it will not go any further with the Bill until it gets clarity from the Department and the NCOP. And that Bill had been in limbo ever since.

As stated by Ms Bowers, a previous Parliament cannot dictate to a new Parliament. Thus the Committee needs to decide whether to revive the Bills or not. Secondly, there are only three Members remaining from the Committee of the Fifth Parliament and the rest are new Members. And it is the NCOP that will guide the Committee with regard to the MPRDA Bill.

Mr Jakobus Jooste, Committee Content Adviser, said that when the Minister withdrew the Bill from the Parliamentary process he also stated that they will work together with the oil and gas sector to develop a specific Oil and Gas Bill. At present everything they want in that specific Oil and Gas Bill sits in the MPRDA Bill that deals with both the mining and petroleum industries. It is not physically possible to process a Bill with references to the oil and gas industry while redrafting another one for the exact same industry. They are going to be sitting with two pieces of legislation for the same industry. The guidance they need from the House is clarification on where the Department stands on what it wants from its legislation. Reviving the MPRDA Bill as it stands now implies reviving a combined Mineral, Oil and Gas legislation, which the department in the past stated it does not want. Therefore, they need to be guided before anything can be revived without creating further problems going forward.
 
The Chairperson asked Ms Bowers to legally guide the Committee on how to proceed with the MPRDA Bill going forward, whether to revive it or not.

Ms Bowers replied that the reason the Minister withdrew the Bill is a valid reason.

She noted that at the time they were sitting with the Bill in the provincial legislatures in the Fifth Parliament. Now they have new provincial legislature committees, which may not have any background on that Bill and they need to process it.

Therefore, what the Committee needs to decide is that in terms of the Constitution when a legislation is before the Committee, the Committee has three options, which include: The Committee must consider, amend, or reject the Bill.

This Bill is slightly different. This was a remitted Bill which meant it was sent back by the President who had reservations about it and indicated that he was not comfortable with the level of public participation facilitated by the NCOP and the provincial legislatures. He saw that as a defect on the constitutionality of that Bill and he wanted the NCOP to correct it. The NCOP had to ensure the level of public participation is adhered to and take into account the views of the public. In terms of public participation, the Bill must address the challenges and concerns of the people on the ground.

Ms Bowers recommended that in terms of policy and the powers of the Committee that it must reject this Bill because it was withdrawn by the Minister, or not revive the MPRDA Bill at all. The Committee must allow the Department to introduce a piece of legislation that will not only address the concerns of the public but also those of the various stakeholders it is meant for.

Mr Bawa said the Committee should be guided by the NCOP in how to proceed with this Bill because the majority of Committee Members of the Fifth Parliament who were privy with regard to the processing of the Bill are no longer here. Secondly, the request for withdrawal of the Bill by the Minister meant that there is policy shift and the Department wants a new Bill, which it still needs to draft.

Ms Bowers said her recommendation was that the Committee must not revive the Bill given all the items discussed. Reviving the Bill will create problems in terms of the new membership of the Committee, the new membership of the provincial legislatures and the matters involving the policy shift.

Mr Cloete said that in his view they have an old Bill and there will be a new Bill. Therefore, in terms of policy they need to see what the old Bill is saying and the new Bill is saying, then make a decision on whether to revive the Bill or not. As new Members they cannot take a decision without seeing the old Bill and new Bill.

Mr T Matibe (Limpopo, ANC) said they cannot formulate a way forward on this matter. He basically agrees that it will be problematic to try and revive something they have not seen.

The Chairperson resolved that since the MPRDA Bill has lapsed, they will not revive it. If the Department wants to revive it, it will do so.

Mr Bawa said the resolution of the Committee is that they will write a letter to the NCOP Chairperson indicating that these were the two Bills that were inherited from the Fifth Parliament and will revive them, but they recommend that the MPRDA Bill not to be revived, which is the resolution of the Committee.

The Committee agreed not to revive the MPRDA Bill.

The Chairperson thanked Ms Bowers for the information and her valuable advice to the Committee.

Fifth Parliament legacy report
Mr Jooste said the problem statement notes that while policies, legislation and budget allocation suggest that service delivery, in line with national priorities, is taking place, public engagement indicates that this is not the case. The implications of this is that the oversight mechanism employed by Parliament at present is incapable of detecting breakdowns in service delivery. Perhaps the oversight mechanism employed by Parliament observes service delivery challenges, or receives reports of service delivery breakdowns, but it is not geared towards identifying the root cause(s) of this breakdown and reporting efficiently on these, including proposals for remedial actions.

Mr Jooste said the potential cause of ineffectual oversight is that over time, there appears to have developed an ever-increasing reliance on the use of financial indicators to perform oversight over the executive, with a duplication of this data set used by the NCOP. The disadvantages of reliance on financial indicators for oversight are:

Short-termism
• When rewards are linked to financial performance, decisions are made that will improve short-term financial performance, but have a negative impact on long-term impact.

Internal focus
• Financial performance measures tend to have an internal focus. Proper service delivery evaluation looks at external factors such as public perception as proof of projects delivering what they were designed to achieve.

Manipulation of results
• To achieve target financial performance (and hence their reward), managers may be tempted to manipulate results or present financial results with convoluted indicators that can be misrepresented to indicate target achievement where no non-financial indicators are available to back this up.

Do not convey the whole picture
• The use of financial performance indicators has limited benefit since they do not convey the full picture on the factors that drive long-term service delivery and maximisation of citizen benefit.

Backward looking
• Financial performance measures are traditionally backward looking.

The need to measure results includes:
• If you do not measure results, you cannot tell success from failure
• If you cannot see success, you cannot reward it
• If you cannot see success, you cannot learn from it
• If you cannot recognise failure, you cannot correct it
• If you can demonstrate results, you can win public support.

Mr Jooste said a proposed way forward in terms of the NCOP is as follows:
- Over time, the entire Parliamentary oversight mechanism has become narrowly focused on financial indicators, with the NCOP duplicating NA oversight over the executive
- There is a need to re-focus the NCOP oversight role to become synergistic with the NA, rather than repetitive
- The missing data-set needed to oversee the full cycle of service delivery is non-financial indicators
- The NCOP is the best-suited house for recording this data-set, as it requires close co-operation with provincial and local government, SALGA and Chapter 9 institutions such as the FFC. 

Cooperative governance dictates that the three spheres of government should work together to provide citizens with a comprehensive package of services. This cooperation is mandated by the Constitution, which requires national, provincial and local governments to:
• assist and support each other,
• share information and
• coordinate their efforts.

Intergovernmental relations is governed by the 2005 Inter-governmental Relations Framework Act. It ensures that that the principles in Chapter 3 of the Constitution, focusing on cooperative government, are implemented. The mechanisms set up in the Act seek to coordinate the work of all spheres of government in:
• the provision of services,
• alleviating poverty and
• promoting development.

Mr Jooste said the objectives of a revised oversight include:
- Develop a structured annual cycle of joint planning and oversight in synergy with NA committees to perform oversight on key oversight priorities.
- To demonstrate the capacity of the NCOP to provide high quality non-financial performance analysis, in partnership with other spheres of government and Chapter 9 Institutions, to complement NA financial oversight.
- To strengthen the role of the NCOP to identify cooperative governance and inter-governmental relations (IGR) challenges flowing from annual financial transfers to provincial and local government and its administration.

The expected outcomes include:
- The use of both financial and non-financial performance indicators will allow proper oversight over service delivery, value for money and the attainment of policy objectives.
- The optimum system for performance measurement will include joint planning and regular feedback between NA and NCOP committees, prioritisation of oversight focus and integration of public engagement outcomes into an annual oversight model.
- Financial performance indicators (FPIs) are still important to monitor financial performance, but will be the focus of the NA.
- Non-financial performance indicators (NFPIs) will reflect the long-term viability and value of provincial and local government expenditure.

Mr Jooste said the Fifth Parliament observations in a nutshell are as follows:
- Financial allocations to national priorities are unrealistically low
- Funding for many programmes escalated significantly with hardly any evidence of returns on this investment
- Guiding policy is absent for major national priorities, while for others, significant drift away from public expectation is occurring
- Compliance with national legislation is on the decrease, while enforcement of other Acts are insufficient

Mr Jooste concluded that the solution to planning challenges and themed oversight reporting include:
- Fewer topics (oversight priorities) covered in greater detail;
- Continuous background research feeding information into body of report for committee consideration;
- Progress on oversight report continues during constituency periods and recess;
- Oversight priorities result in committee report with clear recommendations on the investigated topic.

Discussion
The Chairperson thanked Mr Jooste and requested Members engage with the presentation.

Mr T Matibe (Limpopo, ANC) said that this presentation must be linked to their strategic planning session next week so that whatever decision they take as a Committee, it is aligned to the non-financial indicators as well financial indicators. Secondly, when they go to that strategic session they need to streamline the areas the Committee needs to prioritise and focus on in the next five years.

Mr Matibe asked what the role of the Committee is in terms of processing a Bill. Should it wait every time for the executive to bring the Bill  or should the Bill come from the constituency after a challenge has been proposed. What role does the Committee play or what recommendations can the Committee make? The Bill only comes to the Committee when the administration has implemented and failed, and they come and propose something to the Committee. Can they as a Committee put forward a legislative proposal which will identify grey areas in the legislation?

Mr Matibe said another area which is problematic is the land claims because when a community is making a land claim it seems the department is doing research on behalf of the community, rather than the community doing its own research. This is something that delays a lot of land claims.

Mr Cloete asked how long Mr Jooste has been with the Committee. As a Committee they need to work hard and smart, and allow Mr Jooste to give them guidance over the next five years, to show them where they are not working smart since he knows what the challenges are within the Committee and the departments. 

Ms N Ndongeni (Eastern Cape, ANC) welcomed the presentation. She said they need to deal with all the issues that were not finalised by the Fifth Parliament, but focus and prioritise the critical ones. Mr Jooste needs to identify the challenges and provide remedies for those challenges. Whether they are going to the strategic planning session or not, they are supposed to start on a sure footing because they are new Members of the Committee. And unfortunately, the NCOP is not like the National Assembly because in the NA if they are talking about the Department of Agriculture, that department is called to come and account before the Committee. Therefore, Mr Jooste must assist them to understand the issues involved going forward.

The Chairperson said as a Committee they are very fortunate to have someone that understands the matters before this Committee. Mr Jooste must continue assisting the Members of the Committee, especially the new ones. Now they know they go to their strategic planning session next week, they know what they are going to do. As already stated, they should focus on the critical issues. It seems the Fifth Parliament did not do its work properly, but they as a Committee will not apportion blame. Instead it will finalise all the work that it has inherited from the Fifth Parliament;

Mr Bawa said that a lot of legislation consumed most of the time of the Fifth Parliament, which was why some matters did not get finalised.

The Chairperson said they are not blaming anyone and it is for them is to focus on the work that has been left and the new items the Committee has to deal with in the next five years.

Mr Jooste said that all the issues inherited from the Fifth Parliament are by no means thrust upon the new Committee. If the Committee chooses to deal with them, that is perfectly fine. These outstanding issues will be presented again at the strategic planning as opportunities for oversight and Committee work, not as a "land claim situation". 

Minutes of the 30 July 2019 meeting were adopted.

The meeting was adjourned.

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