Older Persons Bill: Negotiating Mandates process halted

Meeting report

SOCIAL SERVICES SELECT COMMITTEE
26 May 2006
OLDER PERSONS BILL: NEGOTIATING MANDATES PROCESS HALTED

Chairperson: Ms J M Masilo

Documents handed out:
National Assembly amendments to the Older Persons Bill
Older Persons Bill [B68C-2003]
Older Persons Bill [B68D-2003]

SUMMARY
The provincial negotiating mandates were not discussed as the version of the Bill that the provinces had considered had been incorrect. Two amendments made by the National Assembly as contained in the version B68C had been omitted from the version B68D of the Older Persons Bill. This was an administrative error. In any event, a second round of negotiating mandates was not required by the Constitution as this had occurred in September 2004. The legal advisors clarified that at this stage of the legislative process, the NCOP could not amend the Bill, but merely accept or reject it. Due to the technical error caused by the two omissions, the NCOP would have to reject the Bill. The Bill would now have to go to a Mediation Committee to consider the matter within 30 days. [A Mediation Committee comprises 9 Members from the National Assembly and 9 NCOP Members (one for each province). The Mediation Committee must reach an agreement on the Bill or it lapses.]

MINUTES
The Chairperson noted the serious omissions of which the NCOP was not aware of when forwarding the D verion of the Older Persons Bill to the provinces to obtain provincial mandates early in May 2006. This resulted from the fact that the National Assembly passed the D version of the Bill without being aware that not all C version amendments were incorporated in the D version.

Adv Bafo Momoti, NCOP procedural officer, said that there were two amendments made by the Portfolio Committee that had in error not been included in the version, B68D-2003. The Bill had originally been introduced in the NCOP. It had made amendments (A version). Their amendments incorporated into the Bill (B version) had then been referred to the National Assembly. The NA had made extensive amendments (C version). These amendments had been incorporated into the Bill (D version) but two amendments had not been included due to an administrative error. The incomplete D version had been referred to the provinces. The NCOP would not be in position to pass this Bill or to reject this Bill without the amendments being incorporated. Despite the fact that mandates were already obtained from the provincial legislatures, this mandated the members to vote on the "D" version of the Bill, which was technically incorrect. The Committee needed to reject the current version at it stood because it did not include all amendments. This would pave the way for a Mediation Committee to deal with this further and rectify this administrative error.

Mr T Setona asked what the status of mandates was from the provinces. If they were based on the wrong version of the Bill, they could not be deemed to carry any status.

Adv. Mamoti replied that mandates in the NCOP become valid upon being agreed to in the House, where it is being voted upon. There is no reason why provinces could not issue new mandates on the correct version.
Mr Setona expressed concern as this Bill had social and economic implications and the legislative process had dragged on for a very long time. The delays left a bad impression about the NCOP. There needed to be a more time-efficient approach. Implementation of the Bill was being delayed unnecessarily.

Mr Tolo was also concerned about how the delivery promised by the Bill had been delayed. This law would affect the whole country. What guarantees did they have that this did not happen in other pieces of legislation. He expressed disappointment with the Legal Office within Parliament in allowing this to happen. Mediation was not a good route because it created the impression that there was no cooperation between the two houses of Parliament. The matter needed to be explained to provincial legislatures with the objective to obtain new mandates prior to the next constituency period.

Mr Suliman said that it was a sad state of affairs. In terms of NCOP Rule 202(1)(b) and the Constitution, it was clear that the NCOP could not come with new amendments on this particular Bill.

Mr F Jenkins, Parliamentary Legal Advisor, apologised to the Committee and said that he would take this matter up with the Head of the Legal Services to ensure that there was a quality control procedure in place, which would prevent this happening in future. He supported new mandates from the provinces. Politically, this Bill remained of major importance. Provinces should vote Yes or No on this Bill, and not propose new amendments.

Mr Setona commented that Mr John Jeffrey, Parliamentary Councillor to the President, on Rule 202, had contended that it was incorrect to have sent this Bill to the provinces [as it had already done so in September 2004], the Committee should simply have accepted or rejected this Bill. The NCOP had the mandatory powers to either reject or accept the Bill only, not necessarily to go back to the provinces.

Ms Kela asked at what point did they go back to the provinces, if at all?

Adv Mamoeti replied that when this Bill was introduced in terms of the Section 76(2) in the NCOP in 2004, it went through the mandate process, then was referred to the NA. When the NA referred the Bill back to the NCOP, the second round of negotiating mandates was not required in essence. For purposes of lobbying between the legislatures, the right to lobbying when voting remained in place.

Adv Jenkins explained that the Constitution did not provide for this Bill to go back to the provincial legislatures for a second time. The Bill had to be passed in terms of section 76(2), whereby each province had one vote. Provincial votes were still needed but no new amendments could be considered. There was no scope for negotiating on the content anymore. Politically, it could be voted on in the Houses [instead of both in the NA and NCOP committees and in the Houses].

Mr Tolo agreed that the omissions needed to be incorporated and voted on by both Houses.

Adv. Hoon pointed out that if the NCOP rejected this Bill, based on the omission of these two clauses, it would go to a Mediation Committee to consider the matter within 30 days. No other amendments were to be considered and entertained by this Mediation Committee.

Mr Setona said that mediation was an internal process, and the product of the mediation went directly to the Houses. Politically, all legislatures must be notified in the process and alerted not to delay the process and merely provide the provincial votes on this Bill.

The Chair noted that the Committee agreed on mediation process.

Adv. Jenkins said that technically, to rectify this error, the provincial mandates, with a minimum requirement of five votes, should have rejected this Bill with its errors. This has not happened outright and the mandates received from the provinces supported the Bill with amendments. However, new amendments cannot be entertained at this stage, it is either accept the Bill or to reject it.

Adv. Mamoti directed the Committee to look at the two omitted amendments proposed by the NA included in the C version of the Bill.

Mr Setona asked what were the value of these amendments? Did they really have an impact? He felt that this called for political directives, not from departmental officials, but from the Director General and the Minister. He proposed that they adjourn the meeting to consult further and take the process forward from there.

The Chair called for a written apology from the Parliamentary Legal team and the corrected version to be included in the Bill, within seven days.

Adv Hoon referred to the C version of the Bill:
4. On page 5, after line 42, to insert the following subsection:

(4) Temporary registration contemplated in subsection (3)(b) may not be extended for more than 12 months under the same conditions.

5. On page 5, in line 48, after "months" to insert:

for permanent registration and one month for temporary registration

The Chair pointed out that the proposed date for the House debate on this Bill was 14 June but that might not materialise and Parliament rose on 23 June 2006.

Mr Du Preez said that the legal teams and the two committees should meet. Mediation should occur as soon as possible.

Mr Suliman said that the legal teams can meet all they want, but what was needed was that the provincial legislatures be informed immediately of this situation and called upon for their position. If these amendments are not that fundamental in nature, can it be managed by the Minister without this clause?

It was suggested that an urgent meeting be called for Monday 29 May with Mr Tolo nominated as acting Chairperson.

The meeting was adjourned


Attending:
National Department of Social Development
Ms N Kela: CD: Welfare Services and Transformation
Ms D Mahlangu: D: Care of the Aged
Mr. P du Preez: Legal Services
Ms MJ Petersen: Parliamentary Liaison Officer

Office of the Chief State Law Advisor:
Adv. G Hoon
Mr. Arendse

Parliament:
Adv. Freddie Jenkins: Legislation and Proceedings – Advisor
Mr. Albert Mamabolo: Committee Section Head
Adv. Bafo Momoti: NCOP Procedural Officer