Western Cape Laws Repeal Bill: Department of Social Development briefing

Meeting report

Opening remarks by the Chairperson

The Chairperson welcomed Members and all guests and stated the purpose of the meeting is to receive a briefing on the Western Cape Laws Repeal Bill (B5-2019) from the Department of Social Development. The Department had prepared a presentation and were then asked to give the presentation.

Briefing on the Western Cape Laws Repeal Bill (B5-2019)

In her presentation, Ms Marion Johnson, Acting Head of Department, Western Cape Department of Social Development, stated that during 2010, the Directorate of Legislation in the Department of the Premier, implemented the Western Cape Legislative Review project. The purpose of the project was to review provincial legislation for constitutionality, obsoleteness and redundancy and thereby ensure that the different laws were aligned, coordinated with each other and the Constitution of the Republic of South Africa, 1996. Two pieces of legislation administered by the Department of Social Development (DSD) were identified for repeal because the purpose for which they were enacted either no longer existed or was being met by alternative legislation. These were the Aged Persons Act, 1967 (Act 81 of 1967) and the National Welfare Act, 1978 (Act 100 of 1978).

The legislative process was outlined as follows:

-In principle, approval was sought from the Provincial Cabinet to draft the Bill. This was granted on 18 July 2018.

-The Bill was altered and approval was sought from the Provincial Cabinet to publish the Bill for public comment in the provincial gazette. Approval to publish the Bill for public comment was granted on 08 August 2018.

-The draft Bill was published for comment in the Provincial Gazette Extraordinary 7971 on 17 August 2018 with a closing date of 10 September 2018. The DSD received no comment.

-On 07 November 2018, the Provincial Cabinet approved the introduction of the Bill once certified by Legal Services into the Provincial Parliament

-The Bill was certified by Legal Services on 30 August 2019.

-The Bill was introduced into the Western Cape Provincial Parliament on 7 November 2019

Looking at the Aged Persons Act (81 of 1967), the Act made provision for the protection and welfare of certain aged and debilitated persons, for the care of their interests, for the establishment and registration of certain institutions for the accommodation and care of persons in such institutions and for the payment of old age pensions and certain allowances and for incidental matters. The administration of the Act, with the exception of three sections, was assigned to the provinces by Presidential Proclamation R7 of 1996 (Government Gazette 16992 dated 23 February 1996). The promulgation of the Older Persons Act, 2006 (Act 13 of 2006), which took effect on 1 April 2010 and is the current legislation regulating the position of older persons in South Africa, repealed both the sections assigned as well as those not assigned, to the Province. The Aged Persons Act, 1967 is thus redundant legislation still on the statute books of the Province and should therefore be repealed to the extent of its assignment to the Province.

In terms of the National Welfare Act (100 of 1978), the Act sought to provide for the establishment and constitution of a South African Welfare Council and regional welfare boards and certain committees; to define the powers and functions of these boards and committees; to provide for welfare programmes and for the registration of welfare organisations; and to provide for matters incidental thereto. The Act was assigned to the provinces by Proclamation 7 of 1996. However here again, sections were excluded namely: sections 2, 3, 4, 20 and 22A(1) and (2)(a) and (b); and sections 1, 18 and 21(1)(d) and (g) in so far as they apply or relate to the sections listed in paragraph (a).  In summary, these sections deal with the establishment, constitution and meetings of the SA Welfare Council, the functions of the Council; the appointment of a secretary to the Council; financial aid to national councils; the repeal of the Community Welfare Act (House of Representatives), 1987 (Act 104 of 1987), subject to continuing agreements and the making of grants to organisations.

The sections not assigned to the provinces were repealed by section 13 of the Advisory Board on Social Development Act, 2001 (Act 3 of 2001), which has not yet taken effect.  Although the Act has not yet taken effect, it does not however, affect the competence of the Western Cape to repeal the National Welfare Act, 1978 to the extent of its assignment to the province. The Act does not have any practical utility since the regional boards contemplated by the Act do not exist and any matters concerning the registration and funding of welfare organisations are currently regulated by more recent legislation, amongst others, the Non-Profit Organisations Act, 1997 (Act 71 of 1997). The National Welfare Act, 1978 is thus recommended for repeal to the extent of its assignment to the Province.

Looking at the Bill:

Clause 1

• The Bill contains a Schedule of the legislation to be repealed
• Clause 1 states that the laws specified in the second column of the Schedule are repealed to the extent indicated in the third column
• The Bill seeks to repeal the Aged Persons Act, 1967 (Act 81 of 1967) and National Welfare Act, 1978 (Act 100 of 1978) to the extent of their assignment in the Western Cape province
• The sections referred to in the third column indicate the sections in the respective Acts that were not assigned to the Western Cape.

Clause 2: Contains the short title: The Western Cape Laws Repeal Act, 2019.

Discussion

The Chairperson asked how the Western Cape Parliament could repeal national legislation.

Adv Shehnaz Seria, State Law Advisor, Department of the Premier at Legal Services, responded that when national legislation is being spoken of, it is old order legislation. Old order legislation is legislation in the status books enacted prior to 27 April 1994. In order to understand whether a provincial legislature may lawfully repeal or amend particular order old order legislation, one has to look at the interim constitution and refer to Section 225 of the interim Constitution because it is the section that effectively transferred the legislative authority powers to provincial governments concerning the administration of old order legislation.  The means by which executive order legislation was transferred to provinces in terms of Section 235 (8)(a) empowered the President to assign by proclamation in the gazette the administration of certain rules to a competent authority in national and provincial governments in its entirety or to a certain extent. With the two Acts under consideration, they were assigned to a certain extent.

In order to fully understand the next step in the authority, one has to look at what the Constitution says about provincial legislation. It is known that provincial legislatures are empowered to repeal and amend provincial legislation and if one looks at Sec 239 of the Constitution, provincial legislation is defined there. This was legislation that was enforced that was administered by the provincial government. From that provision in the Constitution, there are two hurdles that a provincial legislature will cross in order to determine whether the legislation being dealt with was dealing with what now constitutes provincial legislation. To address the first hurdle, the final Constitution took effect on 04 February 1997, and the two pieces of legislation were in force at the time. On whether the legislation was administered by the provincial department, by virtue of the proclamation of the President in terms of Sec 235 (8) (a) which the President made in proclamation 7 of 1996, the pieces of legislation were assigned to the province. This assignment meant a transfer of the necessary powers to the executive authority in the province to administer the legislation. That is exactly what happened here and so one can safely say that as a result of the proclamation and assignment of the legislation to the provinces, the two Acts were administered by the province. Therefore those two requirements in Sec 239 of the Constitution have been met. It is on this basis that the Western Cape and its legislature are vested with the legal powers to repeal these pieces of legislation.

The Chairperson also stated that the WCPP did not receive any comments from the general public during the government gazette publication.

Mr Romeo Maasdorp, Legal Adviser, WCPP, indicated that he heard his colleague speak on the purported competence of the WCPP to repeal the national legislation. An engagement with himself was more of a roller coaster on this matter. The Chairperson can testify that during an initial meeting with the Chairperson yesterday in preparation for this meeting today, he was of the opinion that the province had no capacity or legislative competence to repeal national legislation. This view was taken after reading the proclamation which forms the basis for this engagement. The proclamation states that the President may assign the administration of a law to a competent authority. This was a proclamation made by the President in 1996. The history behind all of this was based on the interim Constitution. The proclamation history pertained to pre 1991/93 South Africa which had national territory for black people and homelands.

At the time it was not a unitary government as was the case today. A Governor-General then was appointed to proclaim laws for the various territories hence the need for proclamations. At the time too, different territories did not have the same infrastructure, resources and capacity to make laws let alone to administer laws. The initial thinking then was that the proclamation only assigned the administration of a law to certain entities which have competence and jurisdiction within a province. After reading further, two conclusions were therefore made. One, the definition given to provincial legislation in the new Constitution says that “in the Constitution, unless the context indicates otherwise, provincial legislation includes legislation that was enforced when this Constitution took effect and that is administered by the provincial government.” In other words, provincial legislation includes legislation that was enforced when this Constitution took effect and that is administered by the provincial government. Provincial legislation therefore is not legislation made by the provincial legislature in terms of its mandate but also the legislation that also existed before the Constitution and that is administered by that province. So, if we deem those legislations provincial ones, it therefore can be repealed by the province. This was also confirmed in a constitutional case in 2001.  On this basis, these pieces of legislations can be repealed.

The Chairperson then asked the staff to help the Committee chart the way forward.

Mr Ben Daza, Senior Procedural Officer at WCCP, in response to the question said the next step is for the committee to decide on its public participation process.  The Bill has already been published in the government gazette and that was just the initial publication and the committee is now required to consult widely in the province. It has to choose any mode of publication be it newspapers or social media and any other form it deems fit. After that, the committee goes to formal and informal stages which is the clause by clause consideration of the Bill.

The Chairperson asked Members to suggest what mode of participation process they would recommend.  

Mr R Mackenzie (DA) said that given the current state of the Covid-19 pandemic, the best medium of communication open to the Committee is newspapers and social media. Adverts should be placed in various community newspapers since public hearings cannot be ideal due to the pandemic and social distancing measures in place. Again, if the Committee is to conduct oversight visits in various districts within the next two months, this can be incorporated into those visits.

The Chairperson asked Members if they will support virtual public hearings because of the pandemic, invite specific stakeholders and also encourage people to send written submissions as well.

Ms W Philander (DA) suggested a WhatsApp line should be added as well for the public to engage with the Committee and the WCPP should also update the Committee on their optimal technical abilities to aid the Committee in the public hearings being envisaged.

Ms R Windvogel (ANC) wanted some clarity on the type of newspapers that should be utilised.

The Chairperson answered by saying that the Committee would have to decide this.

Mr Maasdorp added that the contents of a Bill determine whether there should be public participation and the extent of that participation. In this instance this Bill seeks to repeal old legislation and the reason for repealing same is because the rights and entitlements contained in the old legislation have since 1996 been absorbed by new legislation. As a result, the extent of public prejudice is negligible as far as people’s rights, interests and entitlements are concerned. The Committee should consider these points when considering the extent of public participation.

Resolutions

The Chairperson read the resolutions as follows: That due to the Covid-19 pandemic, the Committee will not be able to go out and engage with various stakeholders on the Bill, instead the Committee will schedule two public hearings and encourage various stakeholders to attend and give inputs during these meetings, and stakeholders should also be encouraged to submit written submissions on the Bill. Adverts will be placed on province wide basis and regional newspapers in all three official languages of the province. Social media, WCPP online channels and municipal channels will also be utilised to advertise the Bill. Different stakeholders affected by the Bill should also be contacted by sending information directly to them.

The Chairperson thanked the Members for participating.

The meeting was adjourned.