Constitution of the Western Cape First Amendment Bill: briefings

Premier & Constitutional Matters (WCPP)

25 March 2021
Chairperson: Mr R Mackenzie (DA)
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Meeting Summary

Video: Standing Committee on Premier and Constitutional Matters, 25 March 2021

Constitution of the Western Cape First Amendment Bill

The Department of the Premier and Constitutional Matters briefed the Standing Committee in a virtual meeting on the Constitution of the Western Cape First Amendment Bill [B1-2021]. The Constitution of the Western Cape, 1997 (Act 1 of 1998) was assented to on 15 January 1998 and commenced on 16 January 1998. Many of its provisions mirror the provisions in the National Constitution.

Section 3(3) of the Western Cape Constitution states: “The provisions of this Constitution must not be interpreted as conferring any legislative or executive authority on the Western Cape which is inconsistent with the national Constitution”. South Africa's Constitution has had 17 Constitutional Amendments. An analysis was done of the 17 Amendments. Some of the Amendments require concomitant amendments to the Western Cape Constitution. The Constitution of the Western Cape First Amendment Bill aims to amend the Western Cape Constitution to align it with the amendments effected to the Constitution, and to repeal the provisions on the Commissioner for the Environment.

The proposed technical amendments to the Western Cape Constitution were aligned with the Constitution to avoid inconsistencies and difficulties with interpretation. The amendments deal with:
• Provincial Parliament membership: Constitution section 106 and WC Constitution section 15.
• Calling dates for election: Constitution section 108 and WC Constitution section 17.
• Money Bills: Constitution section 120 and WC Constitution 30.
• Intervention in local government: Constitution section 139 and WC Constitution 49.
• Taxes: Constitution section 228 and WC Constitution 59.
• Loans: Constitution 230 and WC Constitution 63.
• Expressions in the Constitution will be taken over in the WC Constitution and certain phrases in the isiXhosa text will be replaced.

The Western Cape Land Use Planning Act allows the Provincial Minister to monitor provincial land use planning and the impact on provincial land use planning. These are the functional areas the proposed Commissioner for the Environment would have. This was a unique provision drafted in the Western Cape Constitution. When drafted, a suite of national legislation was not in place. This is now covered in various pieces of world-class environmental legislation.

Start-up costs for the Office of the Commissioner are R3 million; its operational costs for year one are R12.5 million in year one. The filling of this vacancy – meaning the creation of and establishment of a Commissioner for the Environment – is not desirable as it will involve a duplication of roles and functions now provided for in other legislation. It does not address any government gaps. It will consume scarce state resources, such as finance and human resources. Therefore, the Provincial Department of Environmental Affairs and Development Planning supports this proposed amendment of the Western Cape Constitution.

In the discussion, Members asked why remove the entire provision for the Commissioner as opposed to making the appointment discretionary; why was money a consideration for giving the Premier and Western Cape legislature more oversight powers of the environment, which is a big factor in Western Cape tourism. The Committee discussed plans for holding public hearings on the Bill in April.

Meeting report

The Chairperson noted this meeting is convened to be briefed on the Western Cape First Amendment Bill [B1-2021]. The Committee would attend six to seven public hearings and the Department will conduct presentations on the Bill to the public first.  

WCPG Director General comments
Dr Harry Malila, Director-General: Western Cape Provincial Government, told the Committee that Ms Clara Williams, State Law Adviser in the Department of the Premier, will deal with the legal amendments and objects of the Bill. Ms Charmaine Mare from the Department of Environmental Affairs and Development Planning will deal with the Commissioner for the Environment amendments.

Western Cape Premier comments
Premier Alan Winde acknowledged the Committee and apologised for the slight delay in connecting to the virtual meeting. He is attending the opening of a new solar investment. He and Mr Anton Bredell, Western Cape MEC for Local Government, Environmental Affairs and Development Planning, were together in the same boardroom to meet with the Committee.

Constitution of Western Cape First Amendment Bill, 2021: briefing
Ms Clara Williams, State Law Adviser: Legislation at Legal Services, Department of the Premier, dealt with the technical amendments to the Western Cape Constitution. She explained that the Constitution of the Republic of South Africa, 1996 was assented to on 16 December 1996 and commenced on 4 February 1997. The Constitution of the Western Cape, 1997, was assented to on 15 January 1998 and commenced on 16 January 1998. Many of its provisions mirror the provisions in the Constitution.

Section 3(3) of the Western Cape Constitution states: “The provisions of this Constitution must not be interpreted as conferring any legislative or executive authority on the Western Cape which is inconsistent with the Constitution ”. Seventeen Constitution Amendment Acts have been passed amending the RSA Constitution. An analysis was done of these 17 Amendment Acts. Some of these amendments to the Constitution require concomitant amendments to the Western Cape Constitution. This Bill aims to amend the Western Cape Constitution to align it with the amendments affected to the Constitution, and repeal the provisions on the Commissioner for the Environment.

The technical amendments to the Western Cape Constitution were aligned with the amendments to the Constitution to avoid inconsistencies and difficulties with interpretation. She identified which sections of the Western Cape Constitution are to be amended and the RSA Constitution equivalents:
• Provincial Parliament membership: Constitution section 106 and WC Constitution section 15.
• Calling dates for election: Constitution section 108 and WC Constitution section 17.
• Money Bills: Constitution section 120 and WC Constitution 30.
• Intervention in local government: Constitution section 139 and WC Constitution 49.
• Taxes: Constitution section 228 and WC Constitution 59.
• Loans: Constitution 230 and WC Constitution 63.
• Expressions in the Constitution will be taken over in the WC Constitution and certain phrases in the isiXhosa text will be replaced.

Slides 5 to 16 compare the wording of the Constitution as amended to the wording of this Bill.

Certain expressions used in the Constitution are to be taken over in the Western Cape Constitution such as the reference to “Chief Justice” instead of “President of the Constitutional Court” and correct references in the isiXhosa text.

The Amendment Bill was published for comment for one month on 6 March 2018 in the Provincial Gazette. Media notices were published in four newspapers circulating in the Province. The Draft Amendment Bill was also forwarded by registered post and by e-mail to the South African Local Government Association (SALGA) and all municipalities in the Western Cape on 18 April 2018 for submissions until 18 May 2018.

Section 10(2) of the Western Cape Constitution states:
(2) At least 30 days before a Bill referred to in subsection (1) is introduced in the Provincial Parliament, the member or committee intending to introduce the Bill must -
(a) publish, in the Official Gazette of the Province and in at least three newspapers circulating in the Western Cape, particulars of the proposed Bill for public comment; and
(b) submit, in accordance with the rules of the Provincial Parliament, those particulars to municipalities within the Western Cape for their views.

Commissioner for the Environment Amendments
Ms Charmaine Mare, Director: Environmental Governance Department of Environmental Affairs and Development Planning, noted that she takes the presentation as read by the Committee and will not use the presentation. She referred to the Chairperson's opening remarks and acknowledged that most of the Committee members are well-versed in the legislation at hand.

The Western Cape Constitution provision for a Commissioner for the Environment is covered by a suite of national legislation, which was highlighted in the presentation. The Western Cape Land Use Planning Act of 2015 also provides the opportunity for the Provincial Minister to monitor provincial land use planning and the impact on provincial land use planning. This is the sum total of the functions and functional areas that the proposed Commissioner for the Environment would have. When this part of the Western Cape Constitution was drafted, this suite of national legislation was not in place. This was a unique provision in the Western Cape Constitution.

The Commissioner must ensure that the conservation of the environment in the Western Cape is given the necessary attention to bring about a balance of the goals of environmental conservation versus sustainable development. This is covered in various pieces of legislation in South Africa. Some of the examples provided included: The Commissioner must be independent and impartial, and this is covered in the Promotion of Administrative Justice Act and the Public Protector Act. The Commissioner must monitor urban and rural development which may impact on the environment which is covered in the National Environmental Management Act and the specific Environmental Management Acts (SEMAs). The Commissioner must act in accordance with the principles of co-operative governance and intergovernmental relations, which is covered by the Intergovernmental Relations Framework Act and especially the environmental implementation and management plans for which environmental authorisation is applied for. The Commissioner must report to the Provincial Parliament annually. Those are functions covered by the Public Finance Management Act.

There must be consideration for the cost of a Commissioner for the Environment which amounts to R12.5 million in year one, R10 million in year two, and start-up costs of about R3 million. These figures have been calculated through in-depth research in the decision whether to amend or proceed with the proposed Commissioner in the Western Cape.

Ms Mare said that national and provincial legislation provide adequately for the protection of the environment and there are numerous enabling provisions in them. The filling of this vacancy – meaning the creation of and establishment of a Commissioner for the Environment – is not desirable as it will involve an overlap and a duplication of roles and functions already provided for in legislation. It does not address any government gaps. It will consume scarce state resources, such as finance and human resources. Therefore, the Provincial Department of Environmental Affairs and Development Planning supports this proposed amendment of the Western Cape Constitution.

Premier Winde stressed the importance of having the Western Cape Constitution amendments which is a part of good governance

Mr Anton Bredell, MEC for Local Government, Environmental Affairs and Development Planning, supported the statement that the Western Cape has adequate national and provincial legislation to protect the environment. Another layer is not needed. Over the years, if one looks at the whole report, one will see the changes within legislation and that protects the environment adequately and help to find the balance between economic growth and the environment, and to have an environment and an economy can work together to create jobs.

Discussion
Mr C Dugmore (ANC) noted that the original amendment provided for the appointment of an Environment Commissioner on a discretionary basis. Given that this was an expression of the founding members of the Constitution, why was there a move to remove all of the provision as opposed to making the appointment of the Commissioner discretionary?

Mr P Marais (FF+) said “this thing boggles the mind. Premier, I think your department is splitting hairs on the issue of trying to be consistent. I wonder if they know what consistency or inconsistency means. You are steering your boat too close to Luthuli House for my comfort”. He defined inconsistency, as containing incompatible elements, and must be conflicting to be inconsistent. None of this has been proven. He asked why the cost factor is an issue. “Did you think federalism is cheap?” Federalism is the most expensive constitutional system; however, it is the most effective and efficient. He asked why the R12 million cost is an issue. Why is money the issue when it gives the Premier and the Western Cape legislature more oversight powers and more effective regulation of the environment which is a big factor in tourism in the Western Cape?

The Premier noted that the political discussion is a separate discussion to this briefing in the Standing Committee. He replied to Mr Dugmore’s question on why not just leave it discretionary, the Committee is making decisions on amendments to the Western Cape Constitution.

In response to the question on costs, it is not about costs, rather unnecessary costs. There is more than sufficient law in place. There was not this raft of world-class environmental law in South Africa previously. Currently, South Africa has a lot of good legislation on environmental issues. This law must play its role. Therefore, the Western Cape does not need to have this in its own constitution. There is sufficient world-class regulation and legislation in place. The Western Cape must remove unnecessary red tape, and this would be another layer of unnecessary red tape.

Ms Mare replied to why it is repeal and not just discretionary. The Department decided rather to go for repeal than discretionary as it noted that the ensuing policy and law reform has given the Western Cape enough legislation on environmental issues. This Commissioner would serve as an ombud-like institution. However, it is unlikely that the Department would be able to do anything about the conduct of national departments within the Western Cape. Some of the environmental actions happening in the Western Cape, that are problematic, cannot be addressed by a Commissioner as an ombud. This is because the Commissioner will not have jurisdiction. The Commissioner has limited public resource opportunities. Only a few complaints can be investigated as an ombud-like institution. The NEMA Act establishes the Environmental Management Inspectorate, also known as the Green Scorpions. The Western Cape Green Scorpions are acknowledged as the best Green Scorpions in South Africa. Therefore, the Western Cape has everything in place not to need a Commissioner in the Western Province.

Mr Marais said that the Committee is putting a lot of emphasis on duplication and how environmental issues are handled by the national government. He referred to the Piet se Bos Milkwood Forest fires and how the government handled it. Whether the power is handled at national level is one thing, and whether the national government is handling environmental issues efficiently and effectively is something else. That is a debate for another day.

The Chairperson said the Committee will be meeting to discuss the Bill at least six more times.

Mr Dugmore asked about the proposed public hearings from 12 April 2021.

The Chairperson replied this is a draft proposal.

Mr Dugmore said that the Cape Town Press Club invited himself and the Premier for a debate on the power of provinces, and if the provinces should receive more powers. Given the need for advertising public hearings, can the Committee shift this from the week of 12 April 2021 to 19 April 2021?

The Chairperson noted the recommendation by Mr Dugmore. The Committee will advertise early, and an additional meeting will take place in Cape Town. The meeting on 12 April 2021 will be a hybrid meeting, both a sit-in and virtual meeting.

Mr Dugmore asked about the legislative programme for the week of 19 April 2021.

The Chairperson replied that all Standing Committees would decide on that programme.

The Chairperson told the Committee that they make a resolution for advertisements in the Cape Argus on 8 April 2021 and Die Burger on 9 April 2021. He stressed the importance of advertising early as these amendments are very important. Additional meetings might have to be held too.

The Secretary replied that the Committee could also advertise by 2 April 2021 and advertise in a Southern Cape newspaper. This will ensure a maximum reach in the Southern Cape to get the public involved.

The Chairperson noted that the Draft Programme is leaving on 12 April 2021. The public hearing will be held on 13 April 2021 in Mossel Bay, which will be a hybrid meeting, both sit-in and virtual. The meeting will reconvene on 16 April 2021. The Cape Town public hearing will be held at the end of May 2021 and this can be a virtual meeting.

The Chairperson noted that Covid-19 regulations will be adhered to when travelling and when meetings are held. PPE will be provided. This includes masks for those who do not bring masks to the meeting so that they do not have to be turned away, attendance registers, temperature checks and sanitizers. The costs involved must be accounted for.

The minutes of 2 February and 23 March 2021 were adopted..

The Chairperson asked Members to inform the secretary if they will be attending the trip in the week of 12 April 2021. He adjourned the meeting.

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