In a virtual meeting, the Committee met to deliberate on the way forward for the Western Cape Nineteenth Gambling and Racing Amendment Bill [B1 - 2020] following the input received from the legal advisers.
In the briefing on the Western Cape Nineteenth Gambling and Racing Amendment Bill, Members welcomed the clarification provided by the State Law Advisor on the differing legal opinions. In the briefing on the Western Cape Nineteenth Gambling and Racing Amendment Bill, Members welcomed the clarification provided by the State Law Advisor on the differing legal opinions. There was agreement that this was a case of mere differentiation and not discrimination, as dealt with in Section 9(3) of the Constitution. The Committee was informed of the discussion on rationality between the legitimate government purpose and the means or method which government had chosen to achieve that purpose. Members were informed there was agreed that the objective of the 19th Amendment Bill, which was to promote and facilitate the self-sufficiency of the Board, was a legitimate government purpose. In principle there was nothing wrong with Provincial Treasury wanting to charge fees to achieve that purpose. A report on the legal advice was provided to the Committee last month.
Members agreed to continue its deliberations on the Bill later in the month.
The Committee discussed the details on how to involve the public in its engagement with the Unemployment Insurance Fund (UIF) on the Covid-19 Temporary Employer/Employee Relief Scheme (TERS). The purpose was to look at the role played by the UIF during the lockdown and comment on challenges experienced in the administration of vast amounts of money – the Committee, as custodians of public money, had as its mandate the right to ensure that public money was used in a way which would make a real difference and spent in terms of the rules applicable
Members agreed the public would be invited to make both oral and written submissions. It was emphasised public participation must be maximised so Members could promote it through their constituency offices and through the legislature’s public education and outreach office. The Committee agreed to also invite the national Department of Employment and Labour. Members questioned whether industry and organised labour should also be invited.
Members had a brief discussion on the nomination of the Committee Chairperson to sit on the Gambling and Racing Task Team which would assist in the work of determining and drafting standard operating procedures for gambling and racing matters. Members were concerned about possible conflict of interest as the task team reported to the Minister however the Committee was tasked with keeping the Department and Minister accountable. Members agreed to park the matter of the nomination until further clarity was found.
The Committee Secretary welcomed the Committee to the meeting. Unfortunately, the Chairperson was unable to attend the meeting and therefore in accordance with Standing Rule 82(3), the Committee needed to select one of its Members to be the Acting Chairperson for the meeting. Nominations were called for.
Ms M Maseko (DA) nominated Mr A van der Westhuizen (DA) to be the Chairperson for the meeting.
Mr Van der Westhuizen (DA) became the Chairperson for the meeting.
The Chairperson thanked the Committee for entrusting him with the honor of serving as Acting Chairperson for the meeting. Apologies were tabled and the rules of engagement were explained.
Briefing on the way forward for the Western Cape Nineteenth Gambling and Racing Amendment Bill [B1 - 2020]
Ms Astrid Muller, State Law Advisor, Department of the Premier, indicated that the Committee wanted Adv Romeo Maasdorp (Legal Advisor: Western Cape Provincial Parliament), Provincial Treasury and herself to meet to discuss the common ground in respect of their legal opinions which they furnished in October 2020, after which they would need to prepare a report and submit it to the Committee. The parties met in early February to discuss the common ground. A report was prepared thereon and submitted on 9 February 2021.
The common ground related mainly to legal issues and legal principles. They agreed that Section 9 of the Constitution, which dealt with the right to equality, was applicable, specifically Section 9(1). This was a case of mere differentiation and not discrimination, as dealt with in Section 9(3) of the Constitution.
They also agreed on the principles relating to rationality which was essentially that there needed to be a rational relationship between the legitimate government purpose and the means or method which government had chosen to achieve that purpose. They agreed that rationality was not aimed at testing whether the legislation was fair, reasonable or appropriate. Reasonably appropriate legislation may seem unfair to some but that did not mean it was irrational. What needed to be shown was that the means government chose was capable of achieving the objective of government. Once there was a rational link then the differentiation did not infringe the right to equality. It was agreed that the objective of the 19th Amendment Bill, which was to promote and facilitate the self-sufficiency of the Board, was a legitimate government purpose. In principle there was nothing wrong with Provincial Treasury wanting to charge fees to achieve that purpose.
There were a few differences in opinion: Adv Maasdorp was of the view that the financial net needed to be cast as widely as possible for maximum yield while Provincial Treasury indicated that there were challenges to that. There were concerns with the totalisators and bookmaking industries, which was why they could not be charged operator fees at that stage and therefore, there were only two industry or operators who could essentially be charged – which were the LPMs and the Casino Operators. The reasoning for the exclusion of the totalizator and bookmaker industries was another difference identified. Adv Maasdorp was of the view that it was merely a matter of timing and short-term expediency, while Ms Muller was of the view that this was not the case. Provincial Treasury indicating that there were reasons for wanting to exclude those two industries at the moment – totalizators were excluded due to the financial position of the industry and bookmakers due to their high flight risk. While Adv Maasdorp held the view that the differentiation was irrational, Ms Muller was of the opinion the differentiation was rational for the reasons provided. The reports were prepared and submitted on 9 February 2021.
The Chairperson confirmed that the feedback reports were circulated to all Members of the Committee, including the alternate Members, on 16 February 2021. The Chairperson asked if Members, after having had time to peruse the reports, were able to deliberate on the Bill and schedule a date for the process to begin.
Mr D America (DA) welcomed the clarification provided by Ms Muller. He was of the view that the opinion expressed by Ms Muller made more sense to him and on that basis, the Committee should proceed with its deliberations and set a date for the deliberations on the Bill.
Ms N Nkondlo (ANC) stated to Ms Muller that on page four, the case law which had been referred to in the matrix of comments failed to substantively respond to the essence of the consent. Her view was that Adv Maasdorp was correct in basically stating that there was a gap in the current legislation which was not substantively responded to.
Mr L Mvimbi (ANC) asked if there was a point at which maybe the two legal people had met and tried to see whether they could come to some sort of common ground in their decision.
The Chairperson confirmed to Mr Mvimbi that the Committee had taken that route last year when it picked up that there were some differences - Ms Muller had just reported on this.
Mr America had now placed a proposal on the table that the Committee was in a position to continue with its deliberations on the Bill. The secretariat would advise on suitable dates for such deliberations. He asked if any preliminary dates were looked at yet.
The secretariat responded that the Committee was looking at early morning of 31 March 2021 however it still needed to be confirmed with the Chief Whip and programming authority before final confirmation could be given to Members.
Public participation process on the Temporary Employer / Employee Relief Scheme (TERS)/UIF challenges experienced by citizens of the Western Cape
The Chairperson explained that with the Covid-19 pandemic, the Unemployment Insurance Fund (UIF) and the Covid-19 Temporary Employer/Employee Relief Scheme (TERS) was mandated to make money available to people who were affected by the pandemic, particularly by the lockdowns. There was no doubt that many people suffered greatly as a result of the pandemic with governments worldwide stepping in to try and alleviate that. The question was posed to the Committee on which route they would like to follow with regard to the advertising to the public.
Ms Nkondlo stated that the Committee should consider adopting an approach taken by the Adhoc Committee on Covid-19 (WCPP) which allowed members of the public to make both oral and written presentations and host a conversation on a set date with members of the public around the matter.
Mr America supported the suggestion made by Ms Nkondlo
Mr P Maran (ANC) fully agreed with the previous speakers. He said that just yesterday, there was a statement referring to a specific company’s worker who received money from UIF/TERS only to find out that the amount received by the employee was not nearly close to the full amount which had been paid to the employer for the employee. A system was created where one could check if employers had applied in their employees’ names, verify the amounts and when it was paid.
Ms Maseko stated that it would be pivotal to maximise public participation on the UIF/TERS matter as many people had lost their jobs. The public outreach and education office should be playing a huge role in making sure communities had access to enable participation. It would serve as an opportunity for communities to highlight some of the issues which the departments missed and/or other spheres of government failed to provide information.
The Chairperson stated that the Committee needed to agree on whether it would be inviting the National Department of Employment and Labour as well as the UIF representatives to brief the Committee.
Mr Maran supported the proposal by the Chairperson. There had been a number of allegations against the UIF, with the UIF Commissioner being suspended the previous year due to allegations of wrongdoing.
Ms Maseko agreed with the proposal, stating that it was just a matter of tweaking the agenda points to make sure that the Committee fact-checked everything correctly and received the correct information from the departments.
Ms Nkondlo supported the proposal for the Department and UIF to be brought before the Committee. The Committee ought to stipulate what its end goal is and what it hoped the outcome would be. She asked as to how the Committee would go about providing an opportunity to industries and stakeholders during the public participation process to ensure the voice of all stakeholders and concerned parties were raised and dealt with. Through the constituency offices, Members could try and ensure that communities were aware of those particular dates where they were able to engage with the Committee, whilst assisting those who did not have the means to do so, in submitting their writing submissions to the Committee.
Mr America was of the opinion that it was necessary and crucial that the Department of Labour and UIF be invited. He asked as to what extent the Committee would be involving organised labour and organised employee organisations to express their experiences.
The Chairperson stated that coming back to Ms Nkondlo’s question as to what the Committee hoped to achieve, it was proposed that the focus be on two aspects. The first aspect would be on the role that the UIF played during the lockdown and secondly, that they be asked to comment on the challenges they experienced in the administration of vast amounts of money.
The Committee, as custodians of public money, had as their mandate the right to ensure that public money was used in a way which would make a real difference and spent in terms of the rules applicable.
Ms Nkondlo agreed with the Chairperson and added a third goal which was to find out what the legislative and policy challenges were.
The Chairperson concluded that the Committee would then be extending an invite to the Department of Labour and the UIF to brief the Committee on the UIF/TERS challenges in the Western Cape with the additional points raised and formulated by Committee Members. Secondly, the Committee will make a formal request to the Public Education and Outreach section to assist the Committee with the public participation process, similar to what had been done with the Adhoc Committee on Covid-19.
The Chairperson stated that the Minister requested that the Committee nominate a Member to sit on the Gambling and Racing Task Team which would assist in the work of determining and drafting standard operating procedures for gambling and racing matters. The Chairperson called for nominations and stated that Ms D Baartman (The Chairperson), in absentia, has indicated her availability should anyone wish to nominate her.
Mr America formally nominated Ms D Baartman (DA) to serve on the Committee.
Ms Nkondlo formally nominated Mr D Mitchell (DA) to serve on the Committee. The reason being to preserve the office of the Chairperson and that of the task team and prevent potential conflict of interest.
The Chairperson stated that no indication had been given by Mr Mitchell on his willingness to serve.
Ms Maseko stated that she seconded the nomination for Mr Mitchell
Mr America stated that he was also inclined to towards the proposal made by Ms Nkondlo on the proviso that Mr Mitchell was available to serve on the Committee - he would then support the nomination.
The Procedural Officer checked with Mr Mitchell and informed the Committee that Mr Mitchell declined the nomination.
Ms Baartman was then elected as the representative to sit on the Gambling and Racing Task Team.
Ms Claire Horton, Western Cape Provincial Treasury, sought clarity as to who the Task Team would be reporting back to.
The Chairperson stated that it was initiative from the Office of the Minister and in the first instance, would report back to the Office of the Minister, and if there were any decisions or recommendations from the Committee which would affect the Standing Committee, that it obviously be shared with the Standing Committee as well.
Ms Maseko stated that if the Chairperson served on the Committee and it reported to and represented the Minister, from experience it would become difficult for the Chairperson to hold the Executive and Department accountable.
Mr America expressed that he had similar sort of concerns as those expressed by Ms Maseko. Depending on the urgency, he asked if the nominations could not be parked until the next meeting where the permanent Members as well as the Chairperson would be present. The Chairperson would then be able to provide clarity on the possible conflicts of interests which may arise from the issues emanating from that particular process.
The Chairperson summarised that the matter should stand over to the next meeting in order to gain clarity on the points raised regarding the ownership of the process and the purpose of the working group before the Committee finalised a decision.
The next meeting of the Committee would take place on 18 and 19 March 2021, next week Thursday and Friday for the deliberations on Vote 3 and Vote 12 of the Western Cape’s Third Adjustment Appropriation Bill and the Western Cape Appropriation Bill 2021.
The Chairperson thanked the Committee and all in attendance for their presence, interests and contributions to the meeting.
The meeting was adjourned.
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