Council of Traditional Leaders Amendment Bill; Constitution of the Republic of SA Second Amendment Bill

Meeting report

PRIVATE MEMBERS' LEGISLATIVE PROPOSALS & PETITIONS PORTFOLIO COMMITTEE
11 March 1998
COUNCIL OF TRADITIONAL LEADERS AMENDMENT BILL; CONSTITUTION OF THE REPUBLIC OF SA SECOND AMENDMENT BILL

Summary
There were three bills on the committee's agenda and the intention was to finalise all of them. The three bills are:
Council of Traditional Leaders Amendment Bill (Mr Hlengwa)
Constitution of the Republic of SA second Amendment Bill (Mr Ndlovu)
Constitution of the Republic of SA third Amendment Bill (P. de Lille).
The meeting finalised the first 2 of these but didn't get on to the third. It accepted the first but rejected the second.

It was clear from the committee that they are still very uncertain about their role and a lot of the meeting was taken up discussing this as well as the process for clarifying what their role should be. Two points affect this process - the rules of parliament have not yet been finalised and a report from a recent study tour to the UK and Canada, which about 6 of them participated in, has not yet been finalised. Finalising the report so that it could be fed into the discussion in the rules committee meetings on the role of this particular committee was seen as being crucial, otherwise the insights gleaned from the study tour may be lost because of poor timing.

The issue with regard to the role of the committee is: to what extent, if any, they should consider the merits of a legislative proposal before them. Colin Eglin (DP) felt very strongly that they should not consider the merits as to do so would undermine the constitutional right of members to
introduce bills. He even seems to dispute that the committee should exist at all. Others felt that the committee did have a role but other opposition members agreed that the role should not extend to looking at the merits of the legislative proposals. Peter Hendrickse (ANC) felt that the
committee has to some extent look at the merits in order to make its assessment of whether the bill should be proceeded with. Both IFP and NP members felt that the committee's role was simply to ascertain that a legislative proposal was not frivolous, dealt with an issue of substance and was a genuine attempt to change the law. If it passed this test it should be proceeded with. The argument was that parliament was the best forum for debating the merits and it defeated the object if legislative proposals were stopped by this committee because the majority parties disagreed with its content.

Minutes
Council of Traditional Leaders Amendment Bill (Hlengwa)
This bill has been on the order paper for some time and has already been discussed by the committee. Mr Venter from the Department of Constitutional Affairs reiterated the sentiments contained in an earlier letter sent to the chairperson that the department could not support the bill. At a workshop for traditional leaders held on 14 August, 1997 Nkosi Hlengwa had presented the
legislative proposal and the various houses were to consider the bill and get back to the Department of Constitutional Affairs with their responses. According to Mr Venter no house has come back to the Department with a resolution on the bill.

Prof du Toit (ANC) said that the committee was not in a position to debate the merits of the bill but that there seemed to be agreement that there was substance to the bill and so he supported an earlier proposal made by Hlengwa that the bill be referred to the Portfolio Committee on Constitutional Affairs.

Eglin agreed the proposal should go forward but disagreed with the reasoning. He believes that the committee does not have the competence to deal with the merits of any bill and that it should purely be an administrative committee determining if the proposal is technically in order.

Others felt that the issue should be whether a bill merits substantive investigation and that questions of technicalities, the constitutionality of a bill, how it is drafted, etc. should only be dealt with at a later stage. The committee's role is to see if it would be a waste of parliament's time to proceed with the bill and if it has any possibility of success.

Hendrickse (ANC) said that the committee must be able to understand what is in a bill so that it can make up its mind on whether it should be proceeded with. Each proposal must be dealt with individually. There cannot be a blanket approach.

The chairperson said that he sees the question as: is this legislative proposal worthy of further time by parliament?

The chairperson then put the question that the legislative proposal be accepted. There was some discussion about this wording. According to the rules the question to be put is whether the bill should be accepted or whether it should not be proceeded with. It was felt the wording should
change so that it is reads whether a proposal should be proceeded with or not proceeded with as the word "accepted" implies endorsement of the content of the bill.

The question was put that the bill be accepted and a note in the minutes will indicate that this means proceeded with.

It was agreed unanimously that the proposal be accepted. (This means that it will be formally introduced as a bill and will follow the normal channel of a bill).

Constitution of the Republic of SA second Amendment Bill (Ndlovu)

Hendrickse (ANC): the question dealt with by this proposal was discussed at Codesa. It involves the powers of police at a provincial level and seeks to give the provincial MEC's for Safety and Security greater powers to determine provincial policing policy. Hendrickse said the ANC could not support the proposal as the position of the parties is clear and it would mean following an expensive process (which includes having to advertise for comment as it is a constitutional amendment) that will in the end be rejected.

Eglin (DP) suggested that the best place for this bill will be the constitutional review committee which parliament must set up in terms of the constitution.

Hendrickse (ANC) responded that it was not for this committee to determine that. All they could say was whether or not the proposal should be proceeded with. If it is proceeded with the speaker must decide which committee should thereafter deal with the bill.

Maree (NP) said that there are very few bills with more merit. It affects the crime situation and the majority of people would like to see such a bill. The opposition of the majority party should not prevent the bill from being debated in parliament - parliament not this committee is the correct forum for a debate on the merits of the bill.

In response the ANC said that polls have not dealt with the issue of where police power should lie - ie nationally or provincially and it is therefore not correct to say the majority of people would support such a bill.

Ndlovu: Is the committee looking at the bill or at party positions? If the majority party's position is in opposition to a bill should it automatically be rejected?

Eglin: Members have the right to introduce bills (see constitution). Parliament is the forum where a bill should be rejected/accepted. Parliament is the correct forum and private members should have the right to introduce a bill.

Hendrickse: The ANC accepts the right of members to introduce a bill. This committee is a public forum and is parliament's way of dealing with that right.

Eglin: But this committee cannot debate the merits.

Du Toit: The problem is that the report of the committee from the study tour has not been concluded and these issues have therefore not be resolved. The right to introduce bills may be abused for party political reasons. It is not an absolute right. If however, it is a serious
consideration to change the law it should be allowed to go through. He also suggested that maybe the ANC should have a brief caucus to discuss their position (nobody took up this suggestion).

Ndlovu: All 9 provincial premiers agreed they need extra powers to deal with specific provincial crime issues. Why do you need provincial Safety and Security MECs if they have no power.

Maree (NP): The bill has merit because important people have requested it. On that reason alone it is not frivolous and should be supported. If we reject this bill we will be creating a precedent. It would not be in the spirit of the work of the committee.

Karrim (ANC) reiterated the need for clarity on the purpose of the committee and the criteria they should use but said that the study tour indicated that South Africa already had a very liberal approach to private members bills.

The Chair raised the question whether the committee should decide now on this proposal or whether it should wait until the rules have been finalised.

Du Toit said that both constitutional amendment proposals had been on their agenda for a long time and it was better to finalise them as it may take some time for the rules to be finalised.

Bekker made the suggestion that Ndlovu should agree to withdraw the proposal from the agenda and put it back when the rules are finalised but to have a three month cut-off , ie if the rules aren't finalised in that time the committee will then look at the proposal.

Karrim asked whether a member can bring a proposal back once it has been rejected and if so what was the time frame for that . (This question was left unanswered). He agreed that this issue should be for public debate but said one should look at parallel processes and in this case believed parallel processes were happening.

The question was then formally put and there were 9 against the proposal proceeding and 7 in favour of it proceeding.

The proposal was therefore rejected.

The next meeting will be held on Wednesday 25th March at 11h00.