Constitution of the Western Cape Amendment Bill: WCPP briefing

Meeting report

The Chairperson outlined the rules of engagement and invited the Speaker of the WCPP to make his opening remarks.

The Speaker, Mr Daylin Mitchell, replied that the officials should proceed with the presentation. If required, he would respond to questions afterward.

The Chairperson called on Adv Le Roux to proceed with the presentation.

WCPP Legislature Presentation
Adv Andre Le Roux, Senior Legal Advisor, WCPP, stated that the Bill was introduced on 10 July 2023 when it was referred to the Committee for consideration. A change to the number of members in the legislature requires an amendment to the Constitution. On 28 March 2023, the House resolved to add a formula for the determination of the number of seats and an upper limit and mechanism to determine the number of seats. To achieve this resolution, an amendment to section 13 of the Provincial Constitution was required. The House agreed that the Speaker should be in charge of the process. The ad hoc committee that was tasked to review the number of seats found that the current number of seats allocated to the legislature was inadequate to represent the Western Cape population optimally.

On 6 April 2023, a draft proposal to amend section 13 of the Provincial Constitution was submitted to the Secretary of the Legislature. The proposal included a project outline of the process to finalise the amendment in time for the next general election. Consultations have been held with key stakeholders that would be involved in the changes to the legislature, including with the IEC. On 18 May 2023, the Bill was submitted via registered mail to municipalities in the Western Cape, and on 19 May 2023, the Bill was published in the Provincial Gazette and the local newspapers, i.e. Die Burger and The Argus. The Bill was also published on the WCPP website and social media platforms. The closing date for public comments was 27 June 2023. Only one comment was received with a proposal for a ratio of one member for every 140 000 residents of the province instead of the recommended 1: 100 000. Further comments were subsequently received including from the Office of the Premier, the Commission for Gender Equality, and the Language Services Unit on the language aspects of the Bill.

In order to achieve the objectives of the Bill, the legislative process was outlined in terms of the proposed timelines. The adoption of the Bill should be done by 17 August 2023. Once the Bill is passed by the House, the Speaker must refer the Bill to the Constitutional Court for certification by 23 November 2023. The Premier would then be granted one week to ascend the Bill. A designated committee would be tasked with the determination of the number of seats. The IEC had indicated that for the purpose of their processes to prepare for the 2024 elections, they would require an indication of the number of members in the Western Cape Legislature. The IEC requirement sets the deadline for concluding the process by the end of 2023.

(See Presentation)

Discussion
Mr C Dugmore (ANC) said talks about a new venue for the legislature need to take into account that a maximum of 30 additional members would have to be accommodated in the Chamber. There is a need to be upfront about the implications of redesigning the architecture which might be subject to heritage site regulations. He enquired if an investigation has been done on changes to the physical infrastructure of the Chamber to accommodate the additional number of members.

The Chairperson noted the request of the IEC for an indication of the WCPP formula. He wanted to know if the IEC has shared the formula that is being used for the other eight provincial legislatures.

Mr Romeo Adams, Secretary to the Legislature, replied that consultations about logistics have started with provincial government departments that might be affected by the changes. The Department of Infrastructure has been engaged regarding possible Chamber and other office requirements. A few scenarios are being considered because the exact number of additional members is unknown. Work in the committees and in Chamber is done in a hybrid mode, which allows for permutations in terms of the arrangements. The current seating arrangements in the Chamber could be increased minimally depending on the mode of work.

Mr Johan Vermeulen, Senior Procedural Officer, WCPP, said he is not part of the official administrative team but he did assist the ad hoc committee that initially reviewed the number of seats in the legislature. In point seven of the ad hoc committee report, aspects for possible consideration on the Premier and Constitutional Matters were recommended. The report recommended that the variable in section 3 of the Electoral Act 73 of 1998 is to be considered as a guideline. The guideline refers to the 1: 100 000 formula that is being used by the other provinces.

Mr Dugmore was concerned that not enough preparation had been done prior to embarking on the public hearing process. One of the budget items was the cost layout in terms of allowances and other benefits for members. He suggested that a presentation was needed for consultation with the public. The Committee should prepare for questions from the public about the 1: 100 000 ratio as proposed in the Bill. He proposed that the presentation include a review of infrastructure changes taking into account the different modes of work and the projected costs.

Mr Mitchell stated that this was the first introduction of the Bill hence the ratio of 1: 100 000 as the law stands. The Committee and public hearings would deliver the actual numbers but the Committee has the right to make amendments.

Adv Le roux replied that IEC processes were different. The IEC has no discretion because the numbers are determined by national legislation. The IEC is responsible for determining the number of seats in terms of the provincial constitution based on the numbers made available to them. The ad hoc committee suggested the 1: 100 000 ratio as a guideline.

Mr Dugmore sought clarity on whether it was necessary to amend the Electoral Act if the proposal is for a ratio of 1: 150 000 while the determination does not provide for discretion. He asked if it would impact the IEC’s capacity to determine the number of seats should it exceed the 1: 100 000 formula.

Adv Le roux replied to Mr Dugmore that his question was of a political nature which was for the Committee to debate. From a legal perspective, the matter of determining the number of seats was in dispute in 1999 when the WCPP rejected the IEC’s suggestion to determine the number of seats for the province. At the time, the IEC allocated 39 members for a population of 3.9 million, according to the Act. But the population has since increased. The legal question had been answered in the judgment and it is within the remit of this legislature to decide what would be desirable from a policy perspective.

Mr Dugmore asked if the number is to be limited to 80 members as per the judgment.

Adv Le roux replied that it would be legally possible to exceed 80 members. This was according to the understanding of a member of the ad hoc committee.

The Chairperson thanked the Speaker and officials for their input and for fielding the questions from Members.

Consideration of the draft Committee Programme for the Constitution of the Western Cape Amendment Bill

The Chairperson stated that the Premier had declared the Bill as urgent as per Rule 172 subsection 3(b). The Committee is required to set procedures and timeframes for dealing with the Bill. To facilitate proper public engagement, an advertisement must be placed on all media platforms to call for comment. Given the urgency and timelines of the Bill, he proposed that the Committee call for written comments to be submitted to the Procedural Officer. The necessary arrangements could be made if anyone wants to engage the Committee. He was unsure that the 17 August 2023 timeline could be met but every effort should be made to ensure that the public is allowed the opportunity to provide input.

Mr Dugmore asked if the Chairperson was suggesting that no public hearings take place.

The Chairperson said he was proposing that before the public hearings, the comments on the Bill should be made public in the most efficient way possible. A decision on public hearings would then follow.

Mr G Bosman (DA) said the processes could run concurrently, similar to all other Bills, with a hearing in every district. Where hearings are not physically possible, the municipalities should assist in hosting virtual meetings. The comment period should remain open until the deadline for the conclusion of the public hearings.

Mr D Plato (DA) agreed that the processes should take place concurrently and bearing in mind that the end of the year was approaching.

Mr Dugmore supported the proposal and suggested that the information be conveyed to the Programming Committee with a ten-day timeline for finalisation. A public hearing for each district and one in the metro should be scheduled.

Ms Kamish-Achmat, Committee Coordinator, encouraged Members to consider the Chairperson’s proposal for written submissions because it has been accepted as normal procedure. She drew attention to four other Bills for which an extended comment period has been requested. The Committee would, on request, make itself available for public engagement. Placing advertisements on different platforms has helped to save costs.

Mr Johan Vermeulen, Senior Procedural Officer, WCPP, said from an administrative viewpoint, the benefit of having six public hearings, as suggested, should be reconsidered because of the uncertainty of the number of people that might attend. He suggested that it would be more sensible to have virtual sessions for broader engagement. People should be given enough time and notice of the sessions. The emphasis should be placed on the importance of the public participation process and not on public hearing events.

Mr Dugmore said from his experience, written submissions are sought. The Committee would not be able to engage with people if they are not properly involved. He proposed public hearings in three different regions across the province. People who preferred to make written submissions could be directed to one of the three public hearings to make a physical presentation of their submissions.

Adv Le roux agreed with Mr Vermeulen that it is acceptable for the legislature to send out feelers before engaging in public hearings such as in the Doctors for Life campaign. This Bill was however different because it has to be certified by the Constitutional Court where the processes for public involvement would be scrutinised. He was concerned that the financial implications have not yet been clarified. The public might view the Bill differently if they were aware of the financial implications. The Committee should not be too constraint about timelines in terms of the legislative process but must ensure that the public is meaningfully accommodated.

Mr Plato agreed with Mr Vermeulen and Ms Kamish-Achmat on the public participation matter. The amendment to the Provincial Constitution is a politically highly explosive issue therefore public participation must be exhausted. The Constitutional Court should not find mistakes in the timelines. The financial impact on the fiscus would influence the public’s view of changes to the Constitution. He did not think that covering only three regions would be adequate. More public hearings were necessary to give credence to the process.

Mr Bosman felt there was not enough time to first gauge the interest of the public. Feedback hinges on the type of prior engagements with the media and NGOs. Different structures should be considered such as involving the public outreach office to meaningfully engage the public on a face-to-face basis. The municipalities should be assisted to virtually connect the public to the hearings.

Mr Plato said the Committee would be required to prove that attempts were made to reach out to the public, even if ten or 100 people arrive at the hearings.

The Chairperson summarised the input from Members regarding the public engagement process. Members were proposing three public hearings, i.e. one each in the Western and Eastern regions and one in the Metro. He suggested that the hearings in the regions should be facilitated at the Cape Access and Thusong Care Centres. Colleagues from the Public Education and Outreach unit should be asked for assistance to advertise the hybrid and online sessions on social media.

Mr Matthys Odendaal, Media Officer, WCPP, suggested that all channels should be used to get as much as possible public involvement. The starting point would be to use the Home Page of the WCPP website as a central point of access to information and from where the Bill could be downloaded. He proposed a paid-for social media advertisement campaign on Facebook, similar to the recruitment campaign for the position of the Public Service Commissioner with a cost of R5 000 and reaching 280 000 people. He cautioned that reaching 280 000 people did not equate to input at the same scale. Another route is to do media releases to newspapers and send voice clips with alerts to radio stations to reach people without internet access. More people without internet access could be reached with the help of colleagues from the Public Education and Outreach unit. The social media platforms of the WCPP with 7 000 Facebook and 4 000 Twitter followers are regularly used to provide information about Bills.

Adv Le Roux emphasised the need to make the financial implications publicly available for consideration of the Bill by the public.

The Chairperson asked if Adv Le Roux was referring to the cost breakdown in terms of the ratio and the additional number of members.

Adv Le Roux, replied that an estimated figure instead of a detailed cost analysis should be made available. This would feed into the ideas of oversight and accountability. The public needed to understand the costs of the changes to the legislation which is material and highly relevant information.

Mr Dugmore suggested that the proposed presentations should cover aspects of finances and a section dealing with the infrastructure expansion. The size of the legislature has not changed since 1994. He agreed with the suggestion of a media campaign to direct the public to information and public hearings. The Committee should be transparent about both the financial and infrastructure implications.

The Chairperson recommended that the Committee adopt the media plan including the financial aspects of the amendment. He advised that the financial implication should be indicated in terms of the various ratios, i.e. 1: 100 00, 1: 130 000, and 1: 150 000. It should be communicated that the Committee is not bound by the proposal. The current composition dates back to 1994 and needed to be amended. He confirmed the proposal to arrange three in-person and one hybrid public engagement to demonstrate to the Constitutional Court that the public had adequate opportunities and time for input to the Bill.

Ms Kamish-Achmat stated that the Bill is available on the WCPP website. The advertisement campaign would include all relevant information. For planning purposes, she confirmed that three public hearings would be arranged. The Chamber would be used for the Metro public hearing, which could be arranged as a hybrid setting. She needed to confirm venues for the West and East Coast hearings where the public has access to the centres.

The Chairperson agreed that the Chamber meeting should be a hybrid session for online or in-person submissions. The West Coast meeting should be held in Saldanha Bay and the Eastern region in George.

Mr Dugmore suggested that Worcester would be more central for people in the Overberg and the Boland but he would leave the decision to the Chairperson.

The Chairperson replied that he considers Mr Dugmore’s suggestion. He would draft a media plan with all relevant information for the public to be able to submit informed comments on the Bill.

Minutes
The Committee adopted the minutes, dated 9 June 2023, without amendments.

Resolutions and actions
Mr Plato suggested that the Chairperson’s recommendations regarding the public hearing process should be adopted as a resolution.

The Chairperson noted Mr Bosman’s recommendation regarding the public hearings. He thanked Members for their cooperation and attendance at short notice.

The meeting was adjourned.