Constitution of Rsa Third Amendment Bill: Finalisation

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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
24 March 2003
CONSTITUTION OF RSA THIRD AMENDMENT BILL: FINALISATION

Chairperson:
Kgoshi L Mokoena (ANC) [Northern Cape]

Documents handed out:
Constitution of South Africa Third Amendment Bill [B33B-2002]
Final Mandates from Nine Provinces on the Constitution of RSA Third Amendment Bill (e-mail
[email protected] for documents)

SUMMARY
The Committee considered final mandates on the Constitution of Republic of South Africa Third Amendment Bill received from the provinces. It thereafter went through the Bill and adopted it without amendment. The Bill would be tabled for debate in the House on the 25th March 2003.

MINUTES
The Chair noted that the Committee has not received final mandates from other provinces nonetheless since more than six mandates have been received the Committee would continue with the meeting.

Mr B Mkhaliphi (ANC)[Mpumalanga] noted that since the Committee is dealing with a very important piece of legislation then it would be proper if all mandates very to be presented before a decision is taken.

The Chair acknowledged Mr Mkhaliphi's concern and said that even though the meeting would continue however those provinces, which have not submitted their final mandates, would be given an opportunity to do so before the matter is tabled for discussion in the House. He further said that members should note that the Committee has received a query from KwaZulu-Natal Provincial Parliament alleging it of not having done justice to its negotiating mandate. So two special delegates, Mr GB Bengu (IFP) and Mr Y Bamjee (ANC), have been sent by the said provincial legislature to come and negotiate on its behalf since they feel that their permanent members had failed in doing so. He said that this matter would be return to when the Committee consider the KZN final mandate. He then called on members to present their provincial final mandates.

Eastern Cape
Ms Mkhondlo (ANC)[EC] said that the Eastern Cape Provincial Parliament fully supports the Bill but however request the Committee to take note of the concerns raised by SALGA.

Mr Mkhaliphi proposed that the Committee invites SALGA to a meeting since there are very crucial things that the two need to discuss, especially regarding SALGA's participation in the Committee's activities.

The Chair said that the Committee has noted what the Eastern Cape has raised and it would invite SALGA as proposed by Mr Mkhaliphi.

Free State
Mr T Ralane (ANC)[FS] apologised and noted his provincial parliament would send its final mandate in due course. However he said that since they have supports the Bill in the negotiating mandate then probabilities are that the final mandate would also be supporting it. He ensured the Committee that the Free State final mandate would be received before the Bill is tabled for discussion.

Gauteng
Ms J Kgoali (ANC) [Gauteng] said that the Gauteng Provincial Parliament fully supports the Bill without any amendments.

KwaZulu-Natal
Mr P Matthee (NNP)[KZN] said that the KwaZulu-Natal Provincial Parliament is extremely unhappy as it feels that the Select Committee on Security had not properly dealt with its negotiating mandate. It therefore reiterates the following amendments that were raised in its negotiating mandate:
That the Bill has joined three different matters, which could have been more appropriately dealt with in three separate Constitution Amendment Bills.
That the following provision in Clause 2(c) first paragraph on page 4 of the Bill "the intervention must end if the Council disapproves the intervention within 180 days after the intervention began" be removed and replaced by the following phrase "the intervention must end if, within 180 days after the intervention began, the Council fails to approve the intervention", alternatively the following phrase "disapproves or" be inserted prior to the words "fails to approve the intervention".
That Clause 4 be amended so that it could be in line with proper statutory drafting of a list and that the body deciding on the intervention an the provincial legislature be given powers to terminate the intervention.
Therefore should the above amendments not be accepted by the NCOP then the KZN provincial legislature unanimously agrees not to support the Bill.

The Chair noted that the KZN permanent delegates did raised these concerns during the Committee deliberations on negotiating mandates. As the result the National Treasury took time clarifying them and everyone was clearly satisfied by their explanation accompanied by their explanatory note. He then said that he wish to put it on record that the Committee considers every province mandate and all permanent members including those one from KZN are always vociferous during deliberations.

Mr Ralane asked the KZN special delegations what would happen if the National Treasury once more clarifies these matter, would they be able to veto the provincial mandate to vote against the Bill unless their concerns are accepted.

Mr Y Bamjee (ANC)[KZN Special Delegate] responded that since they were given a specific mandate they would not be able to simple override it on their own and would have thus to uphold it at all cots.

Mr V Kahla, Legal Advisor to the National Treasury, noted that the resolution of the KZN Provincial Parliament is very unfortunate in some respect since their approach seems to be either all or nothing. He said that much of what have been raised as concerns amount to technical drafting and this is indicated by the fact that the motives given for proposed amendments to Clauses 4 [S139(2)(a), (3)(a) and (6) of the Constitution] is said to be proper statutory drafting of a list. Thus since this only amounts to technical drafting and therefore nothing could be said to be unconstitutionally then not to vote on the Bill would be very unfortunate. On the first issue raised he noted that the reason why three different issues have been joined in this same Bill is due to the policy approach that have been developed by the Minister so as to minimize and consolidate amendments, whenever necessary. The effect of this is that those matters, which can be easily consolidated, are consolidated so as to minimize costs and save time. So since most of the issues raised in this Bill are interrelated, with the exception of changing the Name of the Northern Province, it was then appropriate to bring them in one Bill and thereby save time and costs. On the second issue he said that it is very important to note that legislations are susceptible to different interpretations and thus a workable approach should be adopted. With that in mind, it was realised that there are other responsibilities that the NCOP is burden with and as such it would be proper to give it a more time to consider an intervention by provincial legislatures. However this does not mean that the NCOP could not stop the intervention before the 30 day period had expired, it simply means that an ample opportunity has been afforded to the NCOP so that it could be able to consider all the nitty-gritty surrounding such intervention. Lastly it is always important to keep consistency throughout the legislative processes.

The Chair thanked the National Treasury for its clear explanation and clarifying the matter. He said that the issue is clear now since the Department has explained that intervention would continue normally until is stopped by the NCOP if it feels that it was unnecessarily in the circumstances. He appealed to the KZN delegation to take the issue relating to numbering and standard of drafting as part of the drafting techniques, which differs from drafter to drafter.

Mr Matthee noted that the law as it stand stipulates that if an office bearer exercised his/her powers in terms of the empowering Act he/she would be considered functus officio. He thereafter asked what would be the consequences if the provincial legislature who had exercised its powers in terms of S139(2)(b) as contained in Clause 4 of the Bill realised that it had acted in error and wants to reverse that decision. Therefore would it be prevented to change its decision as it would be considered to had exhausted it powers in terms of the law, the so-called functus officio, or be allowed to change it so that time and costs can be saved.

Mr Kahla replied that the principle would not be applicable against the provisions of the Bill and that means the provincial legislatures would be allowed to reverse their decisions at any time after they have intervene. He said that this position is also supported in case laws, as the courts have in a number of cases allowed the decision makers to change their decisions as long as those changes would not be detrimental to the affected people. So therefore in line with the courts' decisions provincial legislatures would be allowed to change their decisions as long as that would not amount to further prejudice.

Mr Bamjee thanked the Chair, the Committee and the National Treasury for their tolerance and ensuring that the matter is plainly explained once more. He said that he wants to put it on record that his team will indeed communicate what they have heard to their provincial legislature.

The Chair welcomed that and noted that the Committee would allow the KZN an opportunity to consult with their provincial legislature so as to ease their fears.

Ms J Kgoali (ANC)[Gauteng] requested that the Committee continues with its business and accept that the KZN delegation would communicate with it on the outcome of its consultation with their provincial legislature before the Bill is discussed in the House.

The Chair noted that the Committee agrees with Ms Kgoali's proposal.

Mr Bamjee requested the Committee to write to his provincial legislature and as a matter of record, clear up the impression that was created accusing the Committee of not having considered KZN negotiating mandate. He also requested the National Treasury to assist them in explaining the matter to their legal advisor.

Mr Ralane opposed that and said since the KZN were the one who can up with such serious allegation against the Committee of the NCOP then they presupposed to be the ones write such a letter so that this matter could be laid to rest once and for all.

The Chair said that the Committee has noted that and he thereafter called on the remaining members to present their provinces final mandates.

Northern Province
The Chair said that the Northern Province Provincial Parliament supports the Bill as it is.

Mpumalanga
Mr Mkhaliphi said that the Mpumalanga Provincial Parliament supports the Bill in its present form.

Northern Cape
Ms E Lubidla (ANC) [NC] said that the Northern Cape Provincial Parliament supports the Bill in its entirety.

North-West
Mr Maloyi said that the North-West Provincial Parliament final mandate would arrive before the end of the day and like with the negotiating mandate they would be in support of the Bill.

Western Cape
Mr C Ackermann (NNP)[WC] said that the Western Cape Provincial Parliament fully supports the Bill without any amendment.

The Chair read the Committee's report on the Bill and the Committee unanimously adopted the Bill, but however noting the concerns raised by KZN.

The meeting was adjourned.

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