Western Cape Provincial Powers Bill: discussion & input from legal advisor

Meeting report

The Chairperson remarked that this was the first meeting after he was selected as Chairperson of the Committee. The work of the Committee is to deal with the soliciting of comments on the Western Cape Provincial Powers Draft Bill which was introduced by the Premier and Constitutional Matters Standing Committee. Based on questions from Members and answers from the presenters, the Committee would consider the way forward and draft resolutions. Advocate Maasdorp would be given an opportunity to comment on the legality of the Bill and the processes that the Committee would be planning to undertake.

Premier’s Committee Presentation
Mr C Fry (DA) (Chairperson of the Standing Committee on the Premier and Constitutional Matters), stated that the Bill seeks to create a framework to address the failures of the national government and establish the channels that the provincial parliament and government would be using to address the identified areas of failure. The principles and objects of the Bill promote the assertion of existing constitutional and legislative powers of the Western Cape Provincial Government (WCPG) in areas of provincial and local autonomy. In exercising its powers, the provincial government seeks to remedy the failures to which the national government is either unwilling or unable to act in the best interest of the residents of the Western Cape. The overarching framework would provide for specific legislation and policies to consider the delegation of national competencies. The WCPG will act in collaboration with local governments in the province where applicable.

The Bill aims to strengthen the mandate of the legislature and the executive in areas where the national government is failing, promote the assertion of provincial powers, actively seeks the assertion or delegation of additional powers and mandates the government to draft Bills and create a mechanism for Parliament to introduce national legislation in the National Council of Provinces through its delegates. The five areas where the Bill seeks additional powers are policing, public transport, energy, trade, including internal trade and exports, and harbours. The Bill provides for additional areas where the Speaker, Premier or the Provincial Powers Committee could assert powers through legislation in the WCPP.

Discussion
Ms N Nkondlo (ANC) asked if the assertions were political statements and wanted to know how it was tested amongst the citizens in the province. She wanted to understand if the assertions were drawing this particular action from the National Constitution and what the legal perspective or constitutional basis was for this Bill. She asked if the Bill is meant to augment the Provincial Constitution.

Mr P Marais (FF+) said the Bill had the same objectives as the Western Cape People’s Bill. He sought clarity on whether the Bill was asking for delegation or devolution of powers. He wanted to know if the Bill was seeking additional powers to fulfil the constitutional rights of all citizens. The devolution of powers in terms of section 238 of the Constitution is at the discretion of the National Minister and is not a right.

Ms C Murray (DA) asked if the Bill was in line with the principles of federalism and to what extent the Bill could be applied to other sectors other than policing and rail transport.

Mr Fry replied to Ms Nkondlo that no objection was raised when the Bill was brought to the Premier’s Committee for consideration. He referred to clause four of the Bill which states that the Premier shall table a report on the three spheres of government in the WCPP within six months of the Act coming into force. A public participation process would be undertaken to test the views of citizens. The Bill seeks to augment the Provincial Constitution and for the devolution of powers in the five identified areas as well as other areas deemed necessary in clauses four and five.

Adv Maasdorp indicated that he would be reserving his comments at this stage to allow for further questions.

Mr P Marran (ANC) asked if the five identified areas were the only areas where the national government is failing or if this Bill was making a political statement. He questioned whether it would stop at the five areas and suggested that the next step would include the army for the purpose of declaring war. He asked if the devolution of powers or the notion of federalism had been tested amongst the Western Cape population.

Mr Fry replied that clause three of the Bill provides for additional powers on the proposal by the Premier, the Speaker or the Provincial Powers Committee while clauses four and five outlined areas of autonomy at the local and provincial government levels. Public participation is the litmus test for the more than seven million people in the province.

Adv Maasdorp said he was not in a position to fully respond because he could not have anticipated the questions that had been raised. Some of the issues might require further investigation, for example, whether federalism is provided for in the Constitution. In his observation of previous Bills tabled in the Provincial Parliament, this was the first Bill that was based on spurious generalisations without backing in terms of the Bill. He was unable to comment on the content of the constitutionality of the Bill. He deemed the premise of the Bill to be founded on politically loaded statements as well as being unfounded and unresearched. The subsequent clauses emanated from spurious observations. He proposed to further engage the Committee after the public had their say on the Bill. At this stage, he cautioned that his observations were preliminary.

Mr Marais agreed that the Bill was founded on politically loaded statements although the failures of the ANC government were being presented as reasons for the Bill. He pointed out that the approval of the Bill depends on the discretion of people in the ANC that are being blamed for the failures. Section 238 of the Constitution does not provide for discretion. He asked if the Bill was placing the onus on National Government to grant self-determination. He asked if section 235 of the Constitution could also be interpreted as being politically motivated.

Ms N Maseko (DA) asked if the concerns or political statements that Adv Maasdorp was highlighting had been raised before the Bill was sent to the ad hoc Committee. She asked if the unconstitutional clauses in the Bill could be clarified to the Committee.

Ms Nkondlo hoped that the Committee would not change the agenda by focusing on issues raised by Adv Maasdorp.

Ms Maseko replied that she did not need a lecture from Ms Nkondlo.

The Chairperson intervened and asked that Members be allowed to raise their points of view.

Ms Nkondlo said the preamble makes particular conclusions which were important to understand how the assertions were determined. In his response, Mr Fry referred to the Premier’s statement which appeared to be a political statement. Normally, the lawmaking process is triggered by a particular concern, for example, a gap in legislation. She was concerned that the basis of the Bill originated from a futuristic process in a multi-party committee. She disagreed that the South African Constitution recognised federalism because it allocates certain powers to provinces, which are devolved through the Constitution. She feared that the Bill was starting to encroach on the Constitution with serious implications for other provinces. She was grappling to understand the constitutionality of the process and proposed that the Bill first be referred for legal scrutiny before further deliberations. The matter had been ventilated in the House and the law should not be used to turn a political process into a legal process.

Ms Murray said it was not the job of Members to curtail one another because the platform exists to allow for opinions to rightfully be raised. The question of whether federalism will hold up to constitutional muster needs to be answered. She asked what Adv Maasdorp would have expected in terms of research on the Bill.

Mr G Bosman (DA) asked if it would not be prudent to ask the national and provincial Departments of Monitoring and Evaluation and the National Planning Commission to present service delivery data to substantiate the spurious statements. StatsSA could also be invited to present statistics on how citizens in the Western Cape are receiving services and experiencing good governance. The Bill does have the capacity to pass constitutional muster but legal advice in terms of the practical implementation of section three of the Bill was needed.

Mr Marran said he has not seen the terms of reference for the Committee to deal with this matter. He sought clarity on whether it is the task of the Committee to ask legal advice on constitutional matters taking into account the role of the Premier’s Committee.

The Chairperson requested the Procedural Officer to present the mandate of the Committee and to inform Members of the specific responsibility and tasks of each member of the Committee.

Mr Johan Vermeulen, WCPP Procedural Officer, said the House had tasked the Committee to consider and finalise the Bill and report back to the House. The Bill was no longer with the Premier’s Committee therefore it was correct to raise questions about constitutionality in this Committee. The Committee must report to the House on the Bill as is, or on an amended Bill, or state whether the Bill was found to be unconstitutional. The Bill follows a similar process as other Bills that originate from various departments.

Mr Fry was unsure whether members of the Premier’s Committee should be involved in the discussion after the Bill had been referred to this Committee. There was no dissenting opinion when the Bill was dealt with in the Premier’s Committee. Testing of subsequent legislation would be in the public participation phase. The Premier’s Committee only considers provincial constitutional matters. Issues concerning the National Constitution were not for this Committee to decide on.

The Chairperson granted Adv Maasdorp the opportunity to reply to the legal questions.

Adv Maasdorp said he would want to revert to the Committee to make a comprehensive submission on whether the National Constitution provides for federalism. The nature of the introductory part of the Bill was making it difficult to get a full understanding of subsequent clauses. He was at pains to find any grounds on which this devolution is based. The matter must be further interrogated. The statement in clause four appears to be of no meaning since the Bill does not need to address additional powers. Clause five belongs in the definition of the Bill. He deemed clause six as superfluous because directing NCOP delegates to introduce national legislation is provided for in the Constitution. Clause seven refers to areas of autonomy which deal with the separation of powers. The same content and assertions are repeated in the Memorandum on the object of the Bill. The reference to sub-national in item three of the Memorandum is not used in the parlance or phrasing in the national lexicon. He questioned whether the term local government should instead be used. He noted that items six and seven of the Memorandum stipulate that no financial implications of the Bill for the state had been ascertained.

Ms Murray, on a point of order, suggested that the meeting be adjourned and the matter be taken to a legal advisor. The Committee should reconvene once the legal advisor had perused the Bill.

Mr Bosman supported the motion by Ms Murray and proposed that the Committee obtain a written report by the legal advisor on the constitutionality of the content of the Bill.

Mr Marias said Adv Maasdorp’s comments raised reasons for concern. Criticism of the government should not motivate the lodging of a Bill. The essence of federalism is to devolve powers to provinces. The process is being hurried and would not meet constitutional muster. He has never seen a Bill that assumes power that does not exist. He disagreed with the proposal of Ms Murray.

Ms Nkondlo said Ms Murray was out of order to call for a point of order because Adv Maasdorp was still busy addressing the Committee. She called on the Chairperson to rule on whether to continue with Adv Maasdorp’s response or to close the meeting.

Mr Fry requested to be excused because the deliberations should not involve the Premier’s Committee.

Ms Nkondlo, on a point of order, said she was still waiting on the Chairperson to rule on Ms Murray’s proposal.

The Chairperson ruled that Adv Maasdorp should continue with his response.

Adv Maasdorp said he seeks to maintain professional standard whenever he prepares for a meeting where his views and opinions are sought. He found it problematic to have to stop talking while preference is given to purported points of order. He observed, from Mr Fry’s response, the anticipation of future legislation. The Bill seeks to create a framework to unlock future legislation. The Bill is merely a statement of intent, in anticipation of future legislation. The Bill contains a number of redundancies related to existing powers in the National Constitution. The words ‘assertions’ and ‘seeks’ appear many times in the Bill which implies a grand statement of intent and a whisper of future laws which would be the nuts and bolts of the desired devolution of powers. He had nothing further to add except for specific requests from Members.

The Chairperson did not allow for further questions. He concluded that a consensus on the way forward would not be reached in terms of whether the Bill would meet constitutional muster. For the sake of progress, the people should be in the forefront and their conditions should be improved. It was important to stick to the mandate and report to the House. He asked Mr Bosman to repeat his proposal.

Mr Bosman asked for a written legal opinion on the Bill and to invite the Departments of Monitoring and Evaluation, the National Planning Commission and StatsSA to report on the quality of services by the WCG in order to address the generalities in the preamble of the Bill. He was also keen to hear from the people in the Western Cape on the content of the Bill.

Mr Marais questioned the call for additional legal advice after the Committee heard from Adv Maasdorp. He suggested that the Committee accept Adv Maasdorp’s report and not belittle him. Her suggested that the Bill was hurried to beat the Western Cape People’s Bill presented by the Freedom Front+.

The Chairperson allowed time for a counter proposal.

Mr Bosman took exception to the comment that he was casting aspersions on the professionality of Adv Maasdorp. He was merely requesting a written report on the constitutionality of the Bill.

Ms Nkondlo supported the proposal of Mr Marais that Adv Maasdorp revert back to the Committee with a written report. She was of the opinion that Mr Bosman’s requests for data on service delivery should have formed the basis of the Bill. It was too late in the process to get new information as reference to form the basis of the Bill.

Mr Marran objected to not being granted an opportunity to give input. He asked if the Chairperson had something against him. He argued that the person controlling the system was deliberately lowering his hand.

The Chairperson replied that he had no vendetta against Mr Marran. He asked the Procedural Officer to investigate the matter.

Mr Vermeulen, said no one from the administration was controlling the raising and lowering of hands. He believed it was a technical glitch in the system.

Mr America did not want to devalue the valuable input of Adv Maasdorp. He was seeking a legal opinion and not a particular report. He agreed with Ms Nkondlo that the proposal for information from institutions was not needed. The evidence of the disintegration of services in the Western Cape is visible, for example, the collapse of Metrorail. Each failure cannot be stipulated in the Bill. The Committee needed to seek a legal opinion on the constitutionality of the Bill to allow the Committee to form a recommendation on whether the Bill should be withdrawn or accepted. The Committee has a congested programme and should tentatively pencil in the nature of the public engagement process to get a sense of the view of people about the Bill.

Mr Marran questioned the suggestion for an external legal opinion. He suggested that Adv Maasdorp’s report is being rejected because his comments did not suit some of the Members. He supported the proposal by Mr Marais and Ms Nkondlo to accept Adv Maasdorp’s report.

Mr Bosman sought to amend his suggestion. The facts on service delivery could be ventilated in the public participation process. He replied to Mr Marran that Microsoft Teams automatically lowers the hand when a person starts to speak.

Ms Nkondlo reiterated that the Committee did have the legal opinion of Adv Maasdorp and was puzzled about the suggestion to seek another legal opinion. She sought clarity about the basis for the public participation process considering that the matter is still up for engagement.

Ms Murray said her comments were not meant to undermine Adv Maasdorp’s expertise. She supported Mr Bosman’s proposal and cautioned against attacking Members for their input. Everyone is allowed to give input regardless of age and gender.

Mr Vermeulen sought clarity on the two proposals regarding the legal opinion. He wanted to know if his understanding was correct, i.e. that Adv Maasdorp was to revert in writing about the constitutionality of the Bill and whether federalism is provided for in the National Constitution.

Mr Marais said all the ingredients of federalism are contained in the Constitution. The only difference lies in the level of power between the state and central government. The Committee should accept Adv Maasdorp’s report in writing.

Mr America agreed that Adv Maasdorp was able to present a legal opinion on whether the Bill fulfils the mandate of Provincial Parliament.

Mr Bosman said he asked for a legal opinion on the constitutionality of the Bill and not on federalism. The focus is on the legal aspects of the Bill which should be sought from the legal advisor of the WCPP.

Mr Marran asked why the legal advisors of the WCPP should be tasked with the request and not Adv Maasdorp.

Adv Maasdorp appreciated the comment from Ms Murray and remarked that he did not feel undermined. He sought indulgence to revert and properly assist the Committee. He needed to seek direction about the statement that federalism is provided for in the Constitution. He wanted to understand if federalism is relevant to the Bill because it is not included in the premise of the Bill. He did not want to provide an opinion as an academic exercise, but if the issue of federalism is required, then he would do so.

Mr Vermeulen, shared his version of the minutes for Members to amend the wording.

Mr Bosman said a legal opinion is different from a report. He suggested that Members do the academic exercise for themselves.

Mr Marais did not want a politically motivated report but an opinion on the constitutionality of the Bill.

Ms Murray wanted an opinion on federalism because questions about the issue might be asked during public engagements.

Mr America suggested that consensus be reached on the timeframe for adv Maasdorp to revert to the Committee.

The Chairperson asked Adv Maasdorp to indicate the time needed to revert in writing on the issue of the constitutionality of the Bill.

Adv Maasdorp replied that he needed between 15 to 20 days. He was mindful of the gravity of the Bill but he needed to consult with relevant institutions and do extensive research for the benefit of the Committee. Deliberations with the public can proceed once the matter had been thoroughly researched. It would be risky to proceed with the Bill in the current form. Public participation should take place after the Committee had received the opinion on the constitutionality of the Bill.

Mr Bosman suggested that the legal opinion should be decoupled from the public participation process. He proposed that the Chairperson and the Procedural Officer draft the public participation schedule for consideration at the next meeting.

Mr America supported the proposal for ten working days and with the decoupling of the two issues.

Adv Maasdorp said the proposal to proceed with public engagement was devoid of logic because the Committee should consider that there might the questions of constitutionality which first needed to be resolved. Hence he needed the ten working days to assist the Committee with advice although he would have appreciated more than ten days. He recommended that deliberations on public participation be postponed until he reverts with his opinion.

Mr Marran concurred with Adv Maasdorp about delaying public engagement. He questioned the sincerity of seeking a legal opinion considering the intention to start the public participation process. He asked that the legal opinion first be obtained and discussed before proceeding with public engagements.

Mr Marais supported the view of Mr Marran and also questioned the need to rush the process. The Committee should first reach a consensus before going to the public with divided views.

Mr Klaas agreed that the project should proceed only after the legal opinion has been obtained.

Mr Bosman proposed that the Committee empowers the Chairperson and the Procedural Officer to start planning the public participation process because it involves a lot of work.

Mr Marran said planning also requires funding. Should the legal opinion find that the Bill is unconstitutional, the planning would be null and void. Planning should start if the outcome is positive.

Mr Bosman proposed a vote on the planning process.

Mr Marran submitted a counter-proposal to not continue with the planning process.

Ms Murray said it was fair to plan subject to the feedback from the legal advisor.

Mr Vermeulen, noted the proposal that the Committee empowers the Chairperson and the Procedural Officer to work on the public participation plan.

The Chairperson concluded that the discussion had been robust. He stated that had not offended anyone on purpose. The Committee awaits the legal opinion and would then further deliberate on the matter.

The meeting was adjourned.