Draft Mandating Procedures of Provinces Bill: deliberations

SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS
6 September 2006
DRAFT MANDATING PROCEDURES OF PROVINCES BILL: DELIBERATIONS

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Mandating Procedures of Provinces Bill

SUMMARY
The Senior Procedural Advisor of the NCOP briefed the Committee on suggested amendments that have been made to the Mandating Procedures of Provinces Bill subsequent to the Committee’s meeting of 8 August 2006. These were large technical and minor and the Committee approved the Bill unanimously. 

MINUTES

The Chairperson welcomed Adv Bafo Momoti (NCOP Senior Procedural Advisor), as well as Committee Members, to the meeting. He referred back to their previous meeting, which also dealt with the Bill. At that meeting, specific clauses were pointed out that needed to be amended. The Chairperson requested Adv Momoti to inform the Committee of the changes that had been made. He expressed his desire have the Bill finalized as soon as possible.

Input by Adv Momoti

Adv Momoti informed the Committee that amendments, since the previous meeting, had been made to Clauses 3(d), 7, 8 and Annexure B. He noted that Clause 8(1) had been problematic due the involvement of bureaucratic red tape but the amendment solved this problem.

Adv Momoti read the latest amendments aloud to the Committee.

Discussion

Mr ZC Ntuli (ANC, KwaZulu-Natal) considered the amendments as “nice and clear”. He felt that their previous suggestions had been accommodated.

Mr AL Moseki (ANC, North West) agreed, saying that the amended Bill is far more comprehensible and unambiguous.

Adv Momoti explained that the Bill provides the necessary broad guidelines. After its implementation, the NCOP rules must be amended accordingly. It is best to follow the most practical and uncomplicated procedure.

Mr LH Fielding (DA, Northern Cape) wanted to know how this Bill would affect the distribution of control.

The Chairperson replied that the head of a provincial delegation used to have “a blank cheque” and that if the Bill becomes an Act, this will be terminated.

Mr Moseki wondered whether the head of delegation should have the right to delegate to another Member if he/she cannot attend.

Ms F Nyanda (ANC, Mpumalanga) expressed her confusion regarding different titles: “Speaker, premier, head of delegation”. She asked whether these could be clarified.

Dr FJ van Heerden referred to permanent delegates that should make use of the six-week procedure instead of four weeks. Furthermore, he stated that if the head of delegation were allowed to delegate, this must be put in the rules.

The Chairperson agreed Dr van Heerden.

Adv Momoti concurred. He felt that the Bill should be kept as it was. Various ideas, suggestions and finer details would come from the provinces and those procedures would be incorporated in the rules. In answering Ms Nyanda’s question, Adv Momoti referred to Clause 3(a). The Premier previously had a significant role, which has now been discarded. He/she must transmit a mandate to the Speaker, who has to assume the major role as required by the Bill.

Mr AT Manyosi (ANC, Eastern Cape) enquired about absence of the Premier. He asked if the acting premier is ill, or unable to attend for any other reason, whether he/she may appoint someone else (a third party) in the meantime.

Adv Momoti cited Section 131(1) and (2) of the Constitution that deals with acting Premiers. However, this section only addresses the acting Premier as a replacement of the official Premier and does not stipulate whether the acting Premier has the right to delegate further. Adv Momoti stressed that it is common practice for a Premier not to completely delegate power when an acting Premier is appointed. Therefore, the acting Premier cannot delegate after a certain point; it must be the decision of the Premier. Since the Premier is the one with the authority, he/she must have the final say.

Mr Ntuli agreed that delegation could only go so far.

Adv Momoti said that it is a general principle. The rules will articulate the internal processes in an efficient and practical manner. They must provide detail for unforeseen situations such as Mr Manyosi’s fictitious setting. They should strive towards uniformity, which is the aim of the Bill.

The Chairperson noted that this was a grey area. He mentioned his own dilemma, which sketches a similar situation. On a sitting day, he might be called by the President for a meeting. He wanted to know who would vote for his province or whether his province would have a vote.

Dr van Heerden suggested that a new clause could be added, which states that the acting Premier can make authoritative decisions regarding the appointment of other acting Premiers, in order to solve this problem. However, he felt that this might be complicating matters. He considered the Constitution to be clear on the subject.

Mr Manyosi remarked that these matters should not take place “by word of mouth”, but the future Act should formalize procedures. He also agreed that the delegated person should not be able to delegate further and therefore it was not necessary to change the Bill.

Adv Momoti re-emphasized that problems would be sorted out in the rules. NCOP Members must together formulate the rules, which must be practical and free from bureaucratic red tape. He also referred to Section 60(3) in the Constitution that states that if the Premier is not available, a member of the province’s delegation designated by the Premier, heads the delegation.

The Chairperson suggested that Clause 3 of the Bill should include a definition of Premier and of delegation.

Mr Ntuli rephrased his previous question, which remained unanswered. He asked whether the Chairperson might delegate his vote, if he is unable to vote. He wanted a yes or no answer.

Ms Nyanda agreed. She also required clarification.

Adv Momoti explained that there is no uniformity in procedures among the provinces, which is where the Bill comes in. This is in accordance with Section 65(2) of the Constitution that states that an Act of Parliament must provide for a uniform procedure in terms of which provincial legislatures confer on their delegations the power to cast votes on their behalf. Therefore, the Bill should supply the necessary format. Although the Bill does not articulate whether the delegated may delegate further, this will be expressed in the rules. Adv Momoti did not have a definite answer to Mr Ntuli. Since the Bill has not been implemented, there are no set procedures.

The Chairperson read Clause 8 on voting mandates carefully. He felt that it answered Mr Ntuli’s question with a yes, due to the “or”.

Adv Momoti added that Clause 8 demands the use of a plenary session where the appointment would be discussed. He rearticulated that the rules would describe and prescribe the internal arrangements at provincial level. They needed uniformity.

Mr Moseki agreed, but did not know whether the Chair may vote if he had to leave. He wanted to know whether the Chairperson has the right to delegate if he cannot attend the vote.

The Chairperson encouraged Members to focus on the Bill. He stated that a definition of head of delegation would be added to the Bill. He decided that the voting mandate issue would be taken further in the rules.

Mr Ntuli suggested that the term “or instrument” should be removed.

The Chairperson concurred. He wanted the Committee to “own” the Bill, since they initiated it. He noted that the Committee was making history, for this had not been done before. He asked Adv Momoti to explain what the next steps will be before the Bill would be promulgated.

Mr Moseki interrupted and referred to Clause 9, which already mentions the Bill as an Act. He felt that it should rather say, this Act will be called instead of this Act is called.

The Chairperson said that it is normal practice and that the clause will not be changed.

Adv Momoti explained the procedure as follows: First, the gazette would publish the Bill with all the relevant names; second, stakeholders would have 30 days to submit comments on the Bill; third, the comments will be considered, thereafter a public hearing would be held where commentators would receive special invitations; fourth, the Chairperson has to sign a letter to Cabinet and the amended Bill would be sent to all provinces for approval; lastly, the Bill would be taken to the National Assembly for approval.

The Chairperson considered the procedure to be very clear. The four and six week cycle would be implemented.

The Chairperson felt that the Committee did justice to the Bill.

The meeting was adjourned.