Committee Programme & Extension

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 12 March 2021

Consolidated Report on Public Hearings
Section 25 Review Process

In this virtual meeting, the Committee discussed its programme.  

The Committee noted that several organisations had made a request to make oral submissions, prior to the lockdown, and agreed to give them this opportunity. For the sake of fairness, Members agreed to prescribe an equal amount of time for each oral presentation.

The amended programme included briefings by the Department of Public Works and Infrastructure, the Department of Agriculture, Land Reform and Rural Development as well as the Department of Justice as well as a response from Parliament’s Legal Services to the legal issues raised in the oral submissions and the consolidated public participation report.

The Committee noted that it would not finalise its work by 19 March 2021 and agreed to make a request to Parliament to extend its lifespan to 21 May 2021.

Meeting report

Opening Remarks
The Chairperson stated that he was delighted that all political parties represented in the Committee deployed their senior members who were competent to take decisions and who were not from time to time ‘running to their principals,’ because that would have disadvantaged the process. It was due to that good deployment that the Committee was able to resolve their differences amicably without resorting to votes. This spoke to the positive coherence of the Committee. He was also delighted that in the meeting the Members always sought to persuade one another and all contributions were considered based on their merits and not on a political basis.

The Committee would consider a revised programme during the meeting that would then be recommended to the leadership of Parliament. The Committee would also consider the list of the organisations that requested to make oral submissions.

Mr N Masipa (DA) suggested that before they move to the programme, the Committee needed to know how many oral submissions were planned, in order to ensure that this was accommodated in the programme.

The Committee Secretary stated that when counting the numbers, the Parliamentary Support Team would seek guidance from the Committee. It depended on how many the Members wanted.

The Chairperson Dr Motshekga requested an idea of how many organisations had been identified so far.

[6.24 mins] Technical problems experienced by Parliamentary Administration

The Committee Secretary stated that from the side of the Administration, they sought guidance from the Committee.

The Chairperson stated that just because they requested the number, it did not mean the Committee was necessarily accepting that number. The Committee just wanted to have an idea – as this would have a bearing on the programme. He therefore requested a rough idea of how many organisations were identified by Administration

Mr S Gumede (ANC) suggested that to properly guide the Secretary, the Committee should indicate how much time they needed per presenter. For example, the Committee could prescribe 30 minutes as a guide for each oral presentation. The Administration would likely be able to provide them with an idea of how many organisations they would be able to see. Each presentation should have an equal allocation of time - no one should get two hours while others got 15 minutes.

The Chairperson stated that that was a helpful suggestion as the Committee had been allocated three days for oral submissions. This meant that without doing what was suggested by Mr Gumede, the Committee would run into problems.

Dr M Gondwe (DA) asked what had informed the ‘three days’ that was set aside for the oral submissions. She agreed with Mr Masipa, it was important to know how many organisations wanted to make oral submissions and then they could see how much time to set aside.

The Chairperson stated that the question was correct but it related to the discussion of the programme, he wanted to deal with the question of how many people and how much time first.

Ms R Lesoma (ANC) asked to build on what was said by Mr Gumede. She noted that it was reliant on how many people would present – in terms of time allocation. It was highlighted that they were not re-opening the opportunity for anyone to present oral submissions. Oral submissions were being taken from those who had previously indicated that they wanted to give an oral submission either in written submission or during public hearings.

The Chairperson was not sure whether their previous instructions to the Administration were clear because he had understood that they would go back and look at the number of organisations which previously requested to make oral submissions. If that was the understanding – he could not understand why there was a problem now.

Dr Thulisile Ganyaza-Twalo, Parliamentary Content Advisor, stated that Administration had gone back to the submissions. She clarified that the advert calling for written submissions on the Bill did not indicate to submitters to state whether they would like to make an oral presentation. That influenced the responses. They had found only two organisations that indicated that they would like to come and present to the Committee. Hence, Administration was asking for more guidance from the Committee.

The Chairperson reiterated that there was no provision to say that organisations would be given the opportunity to come and make oral submissions. When they started the process, they had a stakeholders engagement and oral submissions were made right at the beginning. Public hearings were also held, which was another opportunity for oral submissions. The public and some political parties said that it was the festive period, there was insufficient time and they had therefore wanted an extension. An extension was granted. The Committee would not go on a ‘fishing expedition’ to try and mobilise people to make oral submissions now.

Prof A Lotriet (DA) stated that at the last meeting she had made the proposal that the Administration should look at the specific institutions that were invited and who would have appeared before the Committee in 2020 prior to the COVID-19 Lockdown, which had prevented them from appearing. She asked that the Administration have a look at that list as well. There was a whole programme for a week that was set aside, for the end of February/March 2020. There were a number of institutions scheduled to appear before the Committee. She requested that Administration look at the programme from February/March 2020.

Mr Gumede stated that they should not create confusion. The Committee was not reopening the process. His understanding was that the request came from a situation where people who would have come and presented oral submissions were now given an opportunity. Those were the people – the Administration had identified that there were ‘42’. He recommended that the Committee set a limit to avoid a situation where they opened up for people to begin to fish. There must be a closing date or time.

Dr Ganyaza-Twalo corrected the number, it was only two organisations that were identified from the submissions, not 42.

Ms Lesoma suggested they build from a principle. Prof Lotriet had said that there were organisations that were invited the previous year but because of COVID-19 Level five, they were not seen at the beginning of 2020. It was a principle issue – in that there was that expectation that was created. She thought maybe the Administration had misunderstood – thinking that the Committee would identify the relevant organisations at the meeting. There was no need to re-identify them, they were in the Archives. She asked that the Administration go back and have a look at the Archives and add the other two.

The Chairperson stated that Administration would go and look in the Archives and identify those organisations.

Dr Ganyaza-Twalo explained that the Administration had sat after the meeting the previous week and thought about the list of organisations that the Members had referred to. The Administration did not have any recollection of a list that was created for the Committee. They knew there was a list during the Constitutional Review Committee process that was created. There were organisations coming to present to the Committee itself – the Administration never had ‘a list’ for that process. If Members would recall during January, February and March 2020, the Committee was deep in the process of the public hearings in the various provinces. There was no list – hence they were asking for guidance in terms of how they could support the Committee to ensure that the oral submissions happened as requested.

Ms Lesoma stated that the recommendation she had made earlier on – was moving from a principle that Prof Lotriet had raised that there were organisations early in February/March 2020 that were invited. She was under the impression that the names were in the Archives – but Dr Ganyaza-Twalo had clarified that. They would not open the process. In the past two meetings they had moved from the assumption that there were organisations that had wanted to make oral presentation.

The Chairperson asked Prof Lotriet where she had got the idea of the ‘list’ of organisations that were promised to be heard.

Prof Lotriet stated that it was on the programme for the end of February/March the year before. The Committee had actually been approached by one of the organisations to confirm the time and date that they would be at Parliament. It was not part of the CRC process; it was part of the Ad-Hoc Process. She requested that they have a look at the programmes that were sent to Committee members for February/March 2020.

The Chairperson suggested they move on the premise of the two organizations. The Administration would go back and check about the others

Dr Gondwe stated that she also recalled the list. The problem was that the programme had been changing as they went along – due to the lockdown. She recalled that there was a space allocated for oral submissions on one of the programmes that was sent out before the lockdown. How were the two organisations identified?

Dr Ganyaza-Twalo stated that they went back to the submissions that were received from members of the public – only two organisations indicated that they would like to come and present to the Committee.

Dr Gondwe asked whether they went through all the written submissions. “Can you confirm the number of written submissions you went through?” The Committee was under the impression that there were people who submitted written submissions that would also like to make oral submissions.

The Chairperson stated that he did not think it was fair. He noted that Dr Gondwe seemed to know of organisations that had indicated that they wanted to make submissions. “Why don’t you give the Committee those names rather than asking the Administration to go through 400 000 documents to look for people?”

Dr Gondwe stated that she was not asking Administration to do that. The Administration had stated that they had gone through all the written submissions and she wanted confirmation of how many that was. She thought it was a fair question.

The Chairperson stated that the Committee had made a request to Administration to go through the records to find out which organisations wanted to make written submissions – and they came to the number of two. The Committee should not doubt that the Administration had done their work. He suggested the Committee agree that the Administration would go back and address the question raised by Prof Lotriet about what the Committee committed to do sometime at the beginning of 2020. He suggested that in future the Committee needed to have minutes of the previous meeting and correct them and accept or reject them so they did not have a situation like this where they were relying on memory. He would take the blame for that because he had not insisted on minutes before. Moving forward the Committee would need the minutes.

He recalled that there were proposals that the Committee should allow for oral presentations. As political parties, they argued about it. He remembered that he was one of those who had not supported that. As a democrat and leading a democratic Committee, he had listened to everybody. They had not used numbers - they agreed to allow oral submissions. No one could say that the Committee had stifled submissions. The only remaining question was who the organisations were.

The Chairperson stated that the Committee would need to submit the programme to the Chair of Chairs and then the leadership of Parliament would have to consider it and approve or reject it.

Presentation of proposed programme
The Committee Secretary stated that Administration was proposing that the following Friday, they had presentations from the three listed Departments: the Department of Public Works and Infrastructure, the Department of Agriculture, Land Reform and Rural Development and the Department of Justice, as the custodian of the Constitution, would present to the Committee.

He then referred to the week thereafter, where three days would be set aside for oral presentations – the three days was dependent upon the number of organisations that would appear before the Committee.

The Chairperson referred to Mr Gumede’s earlier suggestion that they should consider the time allocation. He was concerned how this would impact their ultimate deadline of the end of May 2021. That question related to the number of organisations that would be coming. He suggested that the Administration go and look at the number of organisations. Then allocate time based on that. The oral submissions could not go beyond 25 March 2021.

The Committee Secretary stated that the proposal was that on 31 March 2021 Legal Services would come and respond to legal issues that would have been raised during the oral presentations. On 14 April 2021 the consolidated report on public participation would be presented. This would build on the report previously presented.

The Chairperson asked whether the Administration could furnish the Committee with the names of the two organisations.

The Committee Secretary stated that the Banking Association of South Africa (BASA), AfriForum and COSATU had all made requests.

The Chairperson stated that if those organisations made requests, then they qualified to be considered. He stated that BASA had written to him and he had previously turned them down. He had been overtaken by events – and there was therefore no reason that the Committee could not accommodate them.

Mr C Xaba (ANC) stated that he had seen one submission that had essentially requested to make an oral representation, which was Black First Land First (BLF).

The Chairperson stated that they would be included per their request.

Mr Masipa stated that AgriSA would have also liked to make an oral submission relating to their written submission.

The Chairperson stated that the Committee needed to indicate to people not to communicate informally. The Committee was not an informal structure; it was an organ of Parliament.

Ms Lesoma stated that they were moving from the principle – the principle was that those organisations would have made a prior indication. The committee was not identifying. It needed to be based on a principle and backed by minutes as well.

Mr P Moroatshehla (ANC) highlighted that the Congress of Traditional Leaders was never given a slot. His fear was that if they opened up the oral submissions further and further they might land up having a limitless number which would exceed their extended time. He was concerned that they would favour some organisations/institutions over others. The most important factor was how fair the process would have been.

Ms K Mahlatsi (ANC) asked that the Committee be consistent with how they dealt with this issue. There was a principle set out in as far as what needed to happen with respect to oral submissions. Ms Lesoma had reiterated the same point. She wanted to remind the Committee that initially when they were starting the process they had made a commitment as a Committee to have a session with the Congress of Traditional Leaders, however throughout the process the Committee was unable to. There was a specific outcry to have them heard as a collective not as individuals in the public hearings. She wanted to agree with Mr Moroatshehla that as the Committee did the identification, they also gave opportunity to the Traditional Leaders.

The Chairperson stated that he thought they were all in agreement. The Committee was not opening the process. What had come out was BLF, which had not been included, AgriSA and the Congress of Traditional Leaders. There were now suggestions coming from the Committee – the Committee accepted those additions and moved forward. The two days that were allocated would be more than sufficient to cover all of those people.

The Committee Secretary stated that on 28 and 29 April 2021, there would be deliberations on the presentations the Committee received. That would include the oral submissions and the legal services report. In the course of the deliberations the expectation was that the Committee would also give instructions to legal services on drafting matters– in terms of what they wanted to see in the Bill. On 7 May 2021, Legal Services would present an amended draft for the Committee to consider. On 14 May 2021 the Committee would deliberate and adopt the Bill. Then on 21 May 2021 they would deal with the report on the Bill.

Ms Lesoma requested that, especially in the week where they would be meeting four times, the Committee consider the minutes before the end of April 2021. The Committee needed to find a way to look at the minutes, as the minutes were legal documents that assisted them in moving froward.

The Chairperson agreed with Ms Lesoma’s proposal. As an organ of Parliament they needed to keep official reports. If they did not have signed minutes it meant that they would have neglected their duties.

Mr Moroatshehla agreed with the Chairperson and Mr Lesoma.

Mr Gumede stated that the Committee needed a proper principle as to why they were accepting certain organisations to make oral representations as they did not want this to be called into question at a later stage.

The Chairperson agreed with Mr Gumede. His view – and he spoke under correction – was that the Committee had agreed that they were only accepting organisations that had made a previous request. BLF, AfriForum, Congress of Traditional Leaders, BASA, COSATU and AgriSA had made requests. No one else would be mobilised. In this meeting they had agreed that these were the organisations – because requests had been made. There were three government departments that would present as they had also requested to make oral submissions. They were not favouring anybody or using political alliances. It was at the request of the organisations

Mr Gumede was content with this and the statements made.

Dr Gondwe requested that the Administration needed to ensure that indeed, no other organisation requested to make an oral submission. She thought that Mr Gumede’s concern was very important – they did not want to find out that they excluded any organisations. It was just a plea – she was not taking away from the good work that the Administration had done. She wanted Administration to be 100 percent sure that the organisations identified were the only ones who had made requests. The Committee did not want to be found wanting when it came to ensuring that the process was as inclusive as possible.

Ms Lesoma expressed her concern about the use of the word ‘identify.’ The Committee had not ‘identified’ anybody, those organisations identified themselves. She agreed that the Administration must double check the organisations that had made requests. The organisations identified so far had made requests long before the month of March 2021.

The Chairperson agreed with Ms Lesoma. They were including organisations that had made previous requests. The Administration would double check if there was any oversight in terms of those that requested to make oral submissions. He thought the Committee was in perfect agreement on the way forward.

Closing remarks
The Chairperson stated that the purpose of this exercise was that the Committee would approach the Chair of Chairs with a request that the Committee needed an extension until 21 May 2021. It would not be possible to conclude this work by the 19 March 2021 given the amount of work that still needed to be done. The Committee would also request that they be allowed to work during the recess. He asked whether the Members agreed.

Mr Gumede stated that he was not responding to the latter comment. He needed clarity on the fact that the Administration was tasked to go and look for more organisations that declared that they preferred to make oral submissions. Assuming they got 10 or 12, do they simply add them to the ones they had? Would there be a formal meeting where the Committee would be officially notified and accept it?

The Chairperson suggested that Administration did not need to come back to the Committee. If the criteria was that those who requested needed to be included – the Committee did not have the authority to remove any of those organisations who requested to make oral submission. The only thing they could do was allocate time so that they did not disadvantage any of the organisations. The list would no longer have to come back to them. Those that had made a request must be accommodated subject to the time allocation that Mr Gumede had previously suggested.

Mr Gumede was content with that – he was just closing gaps.

The Chairperson thanked him – they needed the Members to be ‘vigilant’ to ensure that they closed the gaps. They did not want the Committee to be later accused of not attending to something.

The meeting was adjourned.


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