Mandating Procedures of Provinces Bill: briefing

SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS
11 May 2007
MANDATING PROCEDURES OF PROVINCES BILL: BRIEFING

Chairperson:  Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Mandating Procedures of Provinces Bill [B8-2007]

Audio Recording of the Meeting
 
SUMMARY
The Committee was briefed on the draft Mandating Procedures of Provinces Bill, which provides for uniform procedures in the various provinces.

The main concern raised by members was that the Bill did not allow for situations where the House was not sitting in the Provincial Legislature. 

Members were also concerned about provisions in the Bill relating to public participation.  They wanted to know what type of Bills allowed for public participation and which did not.

MINUTES
Briefing
Adv B Mamoti (Senior Procedural Advisor to the National Council of Provinces (NCOP)) said that the Select Committee had formally introduced the Bill into Parliament, but before it was introduced, all the necessary rules relating to drafting, publication and the consultation process had been complied with. 

He highlighted Rule 185(b) of the Council, which was one of the rules that had been complied with.  The rule stated that before a Committee of the Council introduces a Section 76(2) Bill, it must give officials of any relevant State Department or other executives of State sufficient opportunity to state their case before the Committee.  This was done by the Chairperson for the Select Committee on Security and Constitutional Affairs.

On the 20 February 2007, a letter was sent to the Minister of Justice and Constitutional Development in compliance with the Rule 185(b). In a nutshell, all the rules applicable had been complied with.  Now the Bill was before the Committee for consideration and draft proposals would move forward until the Bill was passed as law.  

The Bill did not prescribe to the Provinces what they should do when the House was not sitting.  Hence, they did not incorporate it into the Bill, even in the drafting process.  Provincial legislatures had also raised this issue.  The view during the drafting stage was that to avoid the NCOP being prescriptive, on the provincial legislatures, that provision should not be included in this piece of legislation.  For example, one of the reasons included was to ensure that it did not act against the spirit of Section 116 of the Constitution, which gave the provincial legislature the power to determine their internal arrangements. When the House was not sitting, most of them, at that time, had their own way of dealing with the legislation and conferring authority on their delegation to cast their vote at the NCOP. 

Discussion
Mr S Shiceka (ANC, Gauteng) said that he “heard comrade Mamoti but he did not hear him”.  He mentioned the argument that said if one legislates you leave a free-for-all situation.  He then asked why one had a Bill in the first place.  This argument defeated the purpose of having the Bill.   The reason for the Bill was to ensure uniformity in the provinces’ approach so that their business was conducted in an organised, planned and prescribed way.  He added that it would bring in an element of predictability and, he added, that was what legislation was all about - to help achieve a national objective.

He mentioned the issue of the cycle which was brought up in previous discussions, and which was used to ensure that no matter where a member was, it was clear what the cycle was and when business was being done and so on.  He said that this issue was no longer in the Bill, it was more of a case of procedures on how to get mandates.  The issue of the cycle, which was a concern to everyone, was no longer there.  He added that members were unable to conduct their work on time because of the cycles.  But if there was a law one could say that, in terms of legislation, this “clause says this and this and therefore I cannot accede to your demand.”  He asked Adv Mamoti to explain what had happened to the issue of the cycles.

Adv Mamoti answered that it was correct that, during the drafting stage, the issue of the cycle was looked into.  Currently the issue of the cycles was incorporated into their Rules. The NCOP set itself the cycle to ensure that Bill followed the right process and complied with certain time periods. To include the period of the cycle when this piece of legislation was drafted, it was had been believed that the cycle may change from time to time.  Hence, in the legislation they indicated that the Bill may have financial implications to the NCOP during implementation.  They foresaw that when the Bill was ready there would be a workshop with the provinces so that, if they agreed that the 6 week cycle should stand for everyone, then it would be included in the Rules. He added that Rules in Parliament form part of the Regulation ,and even in other Bills those components in the legislation that may change from time to time should be included in the form of regulations to avoid having to go back and continuously amend Bills.  If the issue of the cycle can be incorporated into the Rules and the provinces agree, all the provinces should be allowed to decide on doing this. Hence, when the legislation and the Rules were reconciled, the whole process could be smooth. 

Mr M Mzizi (IFP, Gauteng) referred to the exclusion of “to be prescriptive”.  When a Bill was proposed, and until its finality became an Act, there were things that could not be cast in stone.  If those things do not function one would be expected to either amend that Bill or, if something troubled the constitutionality of the Bill, then it was likely to form a basis for litigation.  Perhaps this was dealing with mandatory aspects of the provinces when they attend mandates.  He said that in many Bills or laws many things that cannot be put in the Bill or Act are left out because of regulations that can be changed from time to time. That was why it could not be “cast in stone”.  He added that in the past he had felt that Bills needed to be made as rigid as could be but he was then advised that it would have the changed too often; which was why there were rules and regulations. In the case of this Bill, he did not know whether the rules could serve as regulations when things were not cast in stone. 

Adv Mamoti said that he agreed with Mr Mzizi on the issue of regulations.  He added that that was why it was not included.

Mr J Le Roux (DA, Eastern Cape) added that he agreed with the comments made by Mr Shiceka.  If the Bill was not prescriptive in as far as how the mandate was to be given, then what was the need for the Bill if provinces were allowed to do their own thing? The point of the Bill was to make sure that all the provinces worked in the same way.  He said that the only problem was what happens when the Parliament was not sitting in the province.  He asked why that issue could not be addressed.  In a case where an urgent matter needed to be finalised and Parliament was not sitting there should be a guideline provided as to what should then happen. 

Adv Mamoti said that when the Bill was implemented, the current processes that were followed in the Provincial Legislature were not very clear about where the Houses were sitting.  He said that it would be advisable that that part should not be included in the legislation, since they wanted to adopt a common approach as the NCOP and the Provincial legislatures to avoid any issue of unconstitutionality.  He added that he would not comment of the appropriateness or inappropriateness of the current procedures that were following the provincial legislatures where the House was sitting. If after the Bill was passed, or during deliberations at provincial level, such issues as how to deal with the Bill where the House was not sitting could also be addressed, so that when they had the workshop the NCOP and the Provincial Legislature could try to formulate a common rule which could assist all the legislatures to ensure the uniformity, in particular where the House was not sitting.  He advised that the issue of where the House was not sitting could be incorporated into the rules but they must also ensure that it did not encroach on any of the Constitutional provisions. 

The Chairperson said that he was lost.  They could not legislate on what provinces must do in cases where the House was not sitting, but this could be put into the rules.  He added that there was no way they could have rules that bound provinces.  He asked if there was a rule that could be added that would bind the provinces.

Adv Mamoti said the rule he was talking about was not a rule to be formulated by the NCOP.  He was referring to the fact that there would be a workshop on the implementation and, in this workshop, if possible, all provinces and the NCOP may decide to have a uniform rule which would deal with this issue.  He said that he did not have a problem with it being part of a legislature’s procedure.  The rule would not be from the NCOP only. 

Mr Shiceka felt that Adv Mamoti was “playing” with the members.  He said that he did not “buy” his argument.  If one was interfering on internal matters if one comes with a way that says in the event there was no sitting what should happen.  He then referred to Clause 3 of the Bill, it stated that when a mandate was given there must be a name with a letter head and a signature he said that these were the worst details.  Comparatively speaking to a situation where you say there must be these processes where, for example, Mpumalanga must do the same thing as Kwazulu-Natal when conferring mandates to delegates.  He added that he did not “buy” the issue of constitutionality.  He suggested that the Committee get an outside legal opinion on the issue, for example, from the State Law Advisors. 

Adv Mamoti agreed that many processes take place at provincial level. This raised the issue of whether the legislature could extend its mandate to a committee to confer authority on a delegation.

He was not sure if Adv Mamoti understood the arrogance of provinces.  Rules were an internal matter for an institution to say how it should conduct its business.  Rules for the NCOP are not binding to National Assembly and vice versa, unless it was a joint rule.  He asked on which law adv Mamoti was basing his argument, and pointed out that once this Bill was passed and became law it would bind everybody. 

Mr Le Roux agreed that if they were not going to be prescriptive as to what happens when the provincial legislature was not sitting then they should state that this was what they felt should happen when they were not sitting; only then could they go to the State law Advisors and ask whether this was constitutional.  He said that they could not ask for a recommendation on constitutionality now if they did not say what they were going to prescribe to the provinces when they were not sitting.  He felt that they members should sit with Adv Mamoit and see what formulation they could come up with if they went that route.

Mr Mzizi suggested that the Committee needed to separate issues.  He pointed out Adv Mamoit was an official and not a politician.  He was there as advisor and could not argue with members.  He could only listen when the Committee discussed the Bill and then give advice.  He said that they could not discuss the Bill until they had the input of the Provinces. 

Mr A Manyosi (ANC, Eastern Cape) asked whether they were debating something that they would not have debated if Adv Mamoti had not mentioned it.  He asked whether there were any instances in which they could require mandates from the provinces when the provinces were in recess. What was the procedure that they should follow as of now?

Mr D Worth (DA, Free State) said that he was pleased that the Bill had been formulated.  He added that in the past, in the Free Sate, any mandate that was required went before the Committee.  For example, the Taxi Recapitalisation Bill would go to the Public Works, Roads and Transport Committee, which would then decide whether there would be public hearings or not.  He added that this was why he wanted to work for this Bill because there were a lot of things he did not understand. With this Bill apart from being presented to the Committee it (a Bill) has to go to the full Legislature who then says “yay or nay”.  But in the past it would only go to the Committee involved and they would pass it. Meanwhile others members of the Legislature who may have had an interest in the Bill would not have been involved because they were not in that Committee.  He said that there were cases where the Legislature was in recess and people would hastily convene the Committee to pass the Bill. 

The Chairperson asked about the workshops mentioned by Adv Mamoti.  He asked if these would take place after everything has been passed.  He said that any workshops held should be workshops to educate the provinces on how to do their work.  He felt strongly that the Committee should give directions.  If the situation regarding what to do when the House was not sitting was not answered, they would revert back to what they had been doing all along. 

Mr Shiceka felt that Adv Mamoti was there to advise the Committee.  He said that Adv Mamoti should do what the Committee was telling him to.  He should go and draft the clause that they want that stipulated how they were to ensure that provinces followed the same routine even if there was no sitting. That draft should then be taken to the State Law Advisors for their opinion.

Adv Mamoti said that he had a problem with going back to the drawing board.  It was part of the process of drafting legislation. He thought that as the Bill was already there and the Committee had considered the Bill, what he had to do at that stage was come up with a new clause which would address what should happen when the House was not sitting in the provincial legislature.  When the matter goes to the Provincial Legislature during the briefing questions and concerns will be raised when they deliberate on the Bill.  That provision had been there before, when they drafted the Bill it was a contentious issue.  Hence, when they came with the version that was brought before the committee, it was not there because there had been no consensus, because at that time the people who came from the provinces felt that the prescriptive reign on them would not be a good idea. Thus, during deliberations these concerned would be raised.  He added that this was not the final document and work would be done on it until a consensus was reached.  He said that he would continue to advise the Committee but it they chose not to take his advice he would comply with what they want him to do. He would draft the amendment as considered by the Committee and that proposal would be incorporated into the Committee report.  Therefore, when the provinces considered the Bill they would see that the Select Committee had not considered the Bill.

The Chairperson that said that he wanted to have a concrete proposal for Adv Mamoti to draft in legal language.  He asked the members what they wanted to have happen.

Mr Manyosi asked what the status quo was when the legislatures were not sitting and the NCOP requires mandates. The NCOP had been started in 1997 and there had been cases where three or four legislatures were in recess at the same time when the NCOP required mandates.  He felt that in order to move smoothly they must first state what the status quo was and how they want to change it; then a proposal could be drafted.  

He added that if a chairperson in any legislature can just draft a mandate and send it, this would be an irregularity - even without rules and so on it was an irregularity.  If it did happen it was wrong and a violation of some sort. 

The Chairperson agreed with Mr Manyosi.

Mr N Mack (ANC, Western Cape) said that the issue of a chairperson giving mandates had also occurred in the Western Cape. In the Western Cape it was taken to the Chamber for debate and the mandate was given in the Chamber.  He suggested that legislatures should call a special sitting to debate this as this was very important and it would get everyone who was previously excluded involved. 

Mr A Moseki (ANC, North West) said that the problem was a lack of uniformity within the provinces and that was what the Bill was trying to address.  He pointed out that he had served in the legislature for five years.  His province could do nothing about a mandate that should come before the NCOP before the Committee had been so instructed by the Speaker.  The Speaker would receive any business that came from the NCOP and that business was referred to the Committee. The Committee would then deliberate, after which they would compile a report that would go to the House. The report would then be tabled in the House.  Then the House finally pronounces what would happen.  In the event that the House was not sitting the Speaker would then say to the Committee, “deal with that business, mandate someone together with the Premier and ensure that the business was well”.

He added that the idea of having one or two specific days put aside for NCOP business was a good idea. If this idea was applied to all the provinces it meant, even if the House was not sitting, it would provide a mandate to the Committee that deals with NCOP business; and would have been a mandate to close the gap that was being talked about. What was important was that, before the mandate was sent to the NCOP, it should have the signature of the presiding officer, i.e. the Speaker.

Mr Worth said that there was nothing mentioned in the Bill about public participation or public hearings.  He asked which Bills required public hearings and which do not.  He added that some public hearings were held in one town and nowhere else in a province.  What did this Bill say with regard to public participation?

Adv Mamoti said, with regard to the legal opinion the Committee would need to get, although the issue was addressed that there should be a proviso in the event that there was no sitting the provincial legislature should call a special sitting.  He asked if the Committee still wanted to seek a legal opinion, which would address the issue of if the House was not sitting could the House delegate further to a Committee. 

Mr Worth asked for clarity on the mandating procedure.  If there was a Bill and a person was mandated from the NCOP to go to the province to present the Bill, the person then had to go to the specific committee and brief them on the Bill. They would then come up with amendments and so on. The Bill would would then go to the entire normal sitting of that legislature.  That legislature may not know the entire Bill; must there then necessarily be a debate in the legislature? If the legislature votes yes, the Speaker puts his/her signature on it, and it goes back to the province.  He wanted some clarity on what happens from when the Bill moves from the Committee to the legislature.

Adv Mamoti said that that was the ideal situation. When the Committee of the legislature goes to the provinces and briefs them on, for example, this Bill. Subsequent to a Bill being introduced as Bill [B8 2007] the Select Committee had considered it and found that there was a gap and the following amendments were proposed. Then the legislature would come with their own proposals, members should back their provinces so that the provinces proposals could be brought forward to the rest of the Committee.

The meeting was adjourned.