Constitution of the Western Cape Amendment Bill (Determination of Number of Members): deliberations & WCPP response to public submissions

Meeting report

The Chairperson tabled the agenda for the benefit of Members. He called on Adv Le Roux to present the responses to the public submissions received. The responses of the Western Cape Provincial Parliament (WCPP) would follow later.

WCPP response to public submissions
Adv Andre Le Roux, Senior Legal Advisor, WCPP, presented a matrix of the legal team’s responses to the public submissions. The overarching themes emanating from the submissions related to the following key aspects:

Use of the formula 1: 140 000
The legal team agreed that the proposed ratio of one public representative for every 140 000 citizens is a competent policy option for the Committee to consider.

Adequate gender and youth representation in the legislation
The legal team advised that gender and youth representation as a requirement would need a review of the Electoral Act because Members of Parliament (MPS) are nominated by their political parties.

Provision for remuneration
The necessity to make provision for remuneration in the Bill was questioned. The legal team stated that standing rules require the Bill to indicate the financial implications of legislation.

Specific number of MPs
The lack of a particular number of additional public representatives to be appointed was questioned. The legal team stated that the purpose of this public participation process was to determine the additional number of public representatives.

Impact on service delivery
The impact on service delivery by employing additional public representatives was raised as a serious matter of concern. The legal team advised that the intention of the Bill is to improve the ability of the legislature to have effective oversight over service delivery.

Repeal of section 13 of the Provincial Constitution
The repeal of section 13 of the Provincial Constitution was proposed in order to allow the number of public representatives to be determined by the IEC formula. The legal team advised that the Committee should consider the proposal from a policy perspective.

(See Presentation)

Discussion
The Chairperson opened the discussion for deliberation on the responses.

Mr C Dugmore (ANC) wanted to know if the matrix contained a summary of all public hearings.

The Chairperson replied the matrix is a summary of both written submissions and public comments. Responses by the Western Cape Government have been recorded in a separate document which will be discussed later.

Ms D Baartman (DA) requested to first discuss the comments not related to the Bill. The monitoring and evaluation of Members, i.e. whether some Members are working or not, should be referred to the Speaker. She proposed that it might be productive to refer local government issues to the Local Government Committee because public comments should not be allowed to disappear. She drew attention to the fact that MPs are not constitutionally mandated to implement service delivery but to do oversight. The reprioritisation of programmes should be referred to the Budget Committee. Comments on the budget for provinces should be referred to the Local Government Committee who should direct the issues to the correct avenue.

Mr Dugmore said the issues raised by Ms Baartman were not for the Committee to decide, exclude or refer. He proposed that the Committee note the issues.

Ms Baartman said if issues are only noted, they would not be attended to. The comments must be referred to the relevant committee for attention. She did not wish for the comments to disappear. It was important that the public get responses to their issues and that MPs deal with the concerns of the public.

Mr T Klaas (EFF) said the mixed public responses indicated that the public did not get proper education to make informed submissions.

Ms Baartman proceeded to discuss comments related to the Bill. The remuneration of MPs is not determined by the Committee but by the National Independent Remuneration Committee. The decision is gazetted and implemented across the country. Repealing section 13 of the Provincial Constitution and following the IEC formula would result in an increase of 30 additional members. But in the current fiscal environment, 30 additional members were unaffordable. In terms of the respective costing categories, the easiest and most affordable option was an increase of six members from the existing 42 to 48. She pleaded with Members that if the proposal to increase the number by six members is agreed then the WCPP must absorb the related average cost of R22 million. She proposed that the Bill be amended to replace 42 with 48 members instead of applying the IEC formula. She was open to the views of other Members.

Mr Dugmore said similar to the salaries of MPs not being determined by the Committee, the number of seats should be determined by the IEC, which has the legal authority to do so. The matter should not be dealt with by the legislature. He proposed that the clause dealing with the number of members should be removed. He reminded Members that the equitable share allocated to provinces is based on the numbers. Committees in the WCPP are being stretched to execute proper oversight due to the limited number of public representatives. He proposed that the determination of the number of members should be left to the IEC and argued that there was no scientific basis for the argument that only six additional members would be affordable.

Mr Klaas said the increase in the number of representatives should depend on the Western Cape population. The matter was tabled by the Western Cape Government (WCG) which did not have the legality to decide which number was appropriate. Most provinces have up to the maximum number of 80 seats. More MPs should be available on the ground to ensure accountability. The diagram that he managed to have access to, indicated close to 70 additional members for the WCPP but he did not know where the number came from. The WCG agreed to 42 members a long time ago while the number in other provinces had been increasing. He agreed with Mr Dugmore that the number should increase and the task should be left to the IEC.

Ms Baartman said she was cognisant of the population numbers in the Western Cape. The role of the Committee rested on a policy perspective, i.e. whether or not to decide on the additional numbers and how it should be implemented and not whether it can be done in terms of the legal perspective. The financial implications for the different options were outlined in the September 2023 presentation. Six different options were offered starting with Option 1 proposing six additional members at the projected additional expenditure of R22 million and ending with Option 6 with 30 additional members at the projected additional expenditure of R96 million. She drew attention to the wage agreement for which the WCG was initially allocated R2.9 billion in terms of the equitable share. However, in terms of the medium-term budget, the amount was reduced to R1.7 billion to meet the National Government’s commitment to increase the wage bill. The shortfall of R1.2 billion meant that the MEC would have to cut the WCG budget. A middle ground should be agreed on because it would be irresponsible to ignore the current fiscal environment. An amendment to the Bill must be made to replace the 42 members with 48 members. The Provincial Parliament must absorb the related costs of R22 million. Service delivery should not be reduced to pay the salaries of MPs.

Mr G Pretorius (DA) fully concurred with Ms Baartman. This was a matter of accountability and not of political expediency. The term equitable share is often glibly used. Even if the option of six additional seats is recommended, there is uncertainty about where the money would come from. The George Provincial Hospital, a pilot of the NHI, has been closing wards due to a lack of funding. This was indicative of the difficulty of sourcing funding. The Committee was taking on a huge responsibility to ensure that six more seats were allocated to the Chamber.

Mr Dugmore said all other provinces are funded from the equitable share based on the national formula. The WCG had been penalising the people of the province in terms of oversight. To change the Constitution, need a two-thirds majority vote. He did not foresee that either proposal would meet the threshold. The quickest way was to follow the national formula similar to other provinces. He proposed that the meeting be adjourned to allow Members to consult with their political parties. Ms Baartman was taking an executive view and not a view that was in the interest of the people of the province.

The Chairperson said the two proposals should be put to a vote. He proposed that the responses of the WCPP should next be deliberated on.

Mr Klaas said the IEC should determine the affordability of the number of additional members. He referred to the proposal for an additional six members as a dictatorship. The WCG had been saving money for more than 20 years by limiting the number to 42 public representatives.

Adv Le Roux drew attention to the timelines. In terms of the initial timeline, the Bill was supposed to be passed by mid-August. The Constitutional Court needs to certify the Bill after which the Premier must ascend the Bill. It was agreed at the time that the Bill should be in place for the seventh Parliament. The IEC needs the numbers by the end of this year to implement the process for the 2024 elections. If the Bill is passed, the Act would become effective in the eight Parliament. The timeline impacts the facts and relevance thereof.

Ms Baartman said she would not be insulted by being called a dictator. She agreed that people in the Western Cape deserved more representation but not the cost of closing a hospital, a school or an entire department. Members who are supporting the increase of 30 members must indicate how it would be funded. It was important to consider how the additional members would impact the people of the province. The Western Cape Constitution was ratified by the Constitutional Court. Insulting the Western Cape Constitution is therefore also an insult to the Constitutional Court. She reiterated her proposal of an increase of six members and the cost of R22 million to be absorbed by the WCPP.

Mr Dugmore said the Provincial Constitution is recognised by everyone but it was a mistake to limit the number and deny representation to the people of the province. The province did not follow the national law and as a result, the people of the province are being negatively affected. He was under the impression that the Act would come into effect before the next election and was surprised by Adv Le Roux’s comments. He sought clarity on whether it was the intention for the Bill to come into effect in 2029.

The Chairperson replied that the intention was to meet the initial timeline but he was unsure whether the Constitutional Court would regard the three public hearings as sufficient. He sought guidance from the Committee on adding extra public hearings to give everyone a fair chance to comment on the Bill. It was never the intention to delay the Bill until 2029 but it was important to ensure that all requirements are followed.

Adv Le Roux said the Committee was still considering the various options. In September 2023 the Ad Hoc Committee was advised of three options, i.e. substituting the number of public representatives in section 13, repealing section 13, and the formulaic approach. At the time, the formulaic approach was deemed to be the least acceptable option. He suggested that consulting the WCG response would be an academic exercise and proposed that the Committee proceed to consider the proposals of the two Members.

The Chairperson thanked Members for the robust discussion about the two proposals.

Ms Baartman asked if it was possible for the Provincial Government recommendations to be presented at this point.

Adv Le Roux presented the following WCG responses to the public comments received:

Financial implications
The public regarded the financial information provided as insufficient to participate meaningfully. The WCG replied that financial implications, including the estimated costs of the various options, had been published.

Long title
The proposal was made to consider rephrasing the preamble by including the word ‘differently’ before ‘provide’ in the long title. The WCG agreed that the proposal would be considered when the A-Bill is prepared.

Wording in subclauses (1) and (2)
It is proposed that the section be reworded to avoid confusion about the determination of the number of seats. The WCG agreed that the proposal would be considered when the A-Bill is prepared.

Members vs seats
The WCG agreed that there should be consistency in the use of the word ‘members’ or ‘seats.’

Number of seats
It is proposed that the mechanism of using the rules and orders be reconsidered for determining the number of seats. The WCG agreed that the proposal would be considered when the A-Bill is prepared.

Short title
It was proposed that the short title should be rectified. The WCG replied that references to the word ‘Bill’ were replaced with the word ‘Act’ in the most recent version of the Bill.

Timeline
Concerns were raised that the Bill may not be passed and certified in time for the next Provincial Parliament. The WCG agreed that there is a possibility that the enacted Bill might only take effect five years later.

Mr Klaas said the IEC formula is providing guidance. He was in favour of the proposed number of 72 seats.

Ms Baartman said that given the responses from the WCG, she remained with her original recommendation of six additional members and the R22 million to be absorbed by the Western Cape Legislature.

Mr Dugmore proposed that clause 13 be removed from the Provincial Constitution and the IEC be informed of the amendment. The IEC should apply the national formula based on the size of the Provincial Parliament. The Committee should urgently brief the Legislature to ensure that changes are timely affected for the 2024 elections.

Mr Pretorius seconded the proposal of Ms Baartman.

The Chairperson asked if anyone wanted to second Mr Dugmore’s motion.

Mr Klaas disagreed with Ms Baartman’s proposal. He wanted the direction given by the IEC to be followed and did not support a change in the law. The decision about the money should be left to the Provincial Treasury.

The Chairperson asked if Mr Klaas was supporting Mr Dugmore’s motion.

Mr Klaas did not support Mr Dugmore’s motion because he felt it would take a long time to process. He suggested that the IEC guidelines must be followed.

Ms Baartman said if Mr Klaas was not supporting Mr Dugmore’s motion then the motion has failed. Her motion was seconded and should be voted on.

Mr Dugmore said Mr Klaas was raising his own view. He wanted the minutes to reflect his motion and to record his vote against Ms Baartman’s motion.

The Senior Procedural Officer, Mr Vermeulen, said in terms of the rule, a motion did not need to be seconded. This was to accommodate a party with only one representative in Parliament to make a proposal.

Mr Dugmore confirmed that a seconder was not needed. He appealed to the Chairperson to put both motions to a vote.

Ms Baartman disagreed with the interpretation of the rules but agreed to have a vote on both motions.

Mr Klaas agreed with Ms Baartman that a motion fails when it is not seconded. Only Ms Baartman’s motion should therefore be voted on.

The Chairperson accepted the guidance from Mr Vermeulen that a seconder was not required. He presented both motions for a vote. Mr Dugmore’s motion failed with a two: three vote. The vote was in favour of Ms Baartman with a three: two majority.

The Chairperson suspended the meeting for five minutes to allow the Committee Coordinator to draft the Motion of Desirability. The Motion of Desirability to amend the Provincial Constitution was thereafter read into the record. The Bill was subsequently presented on a clause-by-clause basis for a decision by the Committee.

Ms Baartman proposed that the number 42 in subsection 13 of the Provincial Constitution be changed to 48. She rejected the proposal to follow the IEC ratio of 1:100 000.

Mr Dugmore said that given that the Committee did not agree to apply the IEC formula, he proposed that subsection 13 be deleted.

The Committee Coordinator, Ms Kamish-Achmat, reminded Members that the meeting was past the stage of putting proposals. The determination was made to replace 42 with 48 seats. She suggested that adv Le Roux be requested to present the A-List.

Mr Dugmore sought clarity about how Ms Baartman’s proposal would be formulated in the Provincial Constitution.

Ms Baartman said the motion had already been posed and supported.

Mr Klaas said he did not want to reverse the motion but asked that the number of members be defined in the manner provided for by the IEC.

The Chairperson said the motion had already passed.

Mr Dugmore asked how the clause would be formulated to reflect the amendment to 48 members.

The Chairperson proposed that Members should work through the A-List.

Adv Le Roux presented the A-List and the B-Bill reflecting the following changes:

Long title
In the first line, insert the word ‘differently’ before ‘provide’.

Clause 1 – Number of Members of the Provincial Parliament
Directly substitute the number 42 with 48.

Clause 2 – Short title and commencement
Amend the date by replacing 1997 with 2023.

Ms Kamish-Achmat advised Members to indicate whether any further changes should be made before the Bill is adopted in its entirety.

The Chairperson presented the entire Bill to the Committee. No objection was raised to the above amendments and no further changes were proposed.

Resolutions and actions
The Chairperson tabled the draft Bill and the Committee Report for adoption and asked for the minority view to be recorded as follows: In terms of Rule 90, the ANC and EFF expressed their views not to support the Bill.

Mr Dugmore was satisfied that the minority view had been noted.

Mr Pretorius and Ms Baartman supported the adoption of the report.

Mr Klaas indicated that he would be taking the resolution to the upper structures of the EFF for consideration.

The Chairperson thanked Members for the robust engagement, and the staff for their support.

The meeting was adjourned.