Mandating Procedures of Provinces Bill: negotiating mandates; Repeal of Black Administration Act Amd Bill: briefing & adoption

NCOP Security and Justice

11 September 2007
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
11 September 2007
MANDATING PROCEDURES OF PROVINCES BILL [B8-2007]: NEGOTIATING MANDATES; REPEAL OF BLACK ADMINISTRATION ACT AMENDMENT BILL [B34-2007]: BRIEFING & ADOPTION

Chairperson:
Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Mandating Procedures of Provinces Bill [B8-2007]
Repeal of Black Administration Act & Amendment of Certain Laws Amendment Bill [B34-2007]
Negotiating Mandates for the following provinces:
Eastern Cape
Free State
Kwazulu-Natal
Gauteng
Western Cape

NOT RECORDED

SUMMARY
The Committee considered negotiating mandates from the provinces on the Mandating Procedures of Provinces Bill. The main issue was that of negotiating mandates and final mandates and the distinction to be made between the two. A negotiating mandate was conferred by a Committee whereas a final mandate was conferred by the Provincial Legislature. The Committee had agreed to effect changes to Clauses 3, 6 and 7 of the Bill. The Committee was briefed on and adopted without amendment, the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill which essentially extended the deadline contained in a sunset clause from 30 September 2007 to 30 June 2008.

MINUTES
Committee business
The Chair informed members that the Committee would not be able to attend the People’s Assembly undertaken by Parliament undertake an upcoming trip to Mzibana in Eastern Cape as the Committee had many bills to deal with. The workload of the Committee was considered to be so heavy that it would perhaps be necessary for the Committee to meet after hours or even schedule meetings on Fridays. The Chair informed members that the Committee had been invited to a Magistrates Commission Workshop to be held on the weekend of 15 September 2007 at Gallagher Estate. The only snag was that the Committee had to pay for its own transport, accommodation and food. The Chair asked Mr Lawrence Basset, Chief Director Legislation Department of Justice, to find out why the Committee would have to cover its expenses when it had been invited by the Department. Mr Basset left the meeting and later returned with the good news that the Department of Justice would foot the bill for the Committee’s attendance at the workshop. The Chair also noted that the Committee had been invited to attend an SANDF air force demonstration on 13 September.

Mandating Procedures of Provinces Bill [B8-2007]: Negotiating Mandates
Eastern Cape
Mr Mazosi (ANC, Eastern Cape) presented the mandate which stated that there was no constitutional requirement for negotiating and final mandates to the Select Committee of the NCOP. The Bill, if passed in its present format, would result in at least two or possibly three plenaries of the legislature to provide mandates. The required sittings as envisaged in the Bill would have a direct impact on legislature budget and no mechanism to address the issue was contained in the Bill. The situation would result in unfunded mandates. The proposed amendment to place the duty on legislatures to facilitate public involvement  mentioned in clause 5(1) was unnecessarily wide. This could result in placing a duty on provinces to facilitate public involvement on Bills with no relevance. Public participation needed to be redefined.

Further, the mandate noted that it was not feasible or desirable to require the House of a Legislature to meet to provide a mandate to vote in a Committee of another House. It was desirable that a House meet to provide a mandate to vote in another House. A Committee of a Legislature was an extension of the House and was representative of all political parties in the Legislature. If the House were not satisfied with the negotiating or final mandates of the Committee, the House would have the opportunity to rectify the issue at the time of considering the Committee’s report on the matter.

The mandate suggested that a policy position should be arrived at and be included in the Legislative Sectoral Policy currently under consideration by the Speaker’s Forum to address issues such as the synchronization of programmes, public participation, uniformity and the strengthening of participatory democracy. It was also felt that the Bill should not be passed until the finalisation of such policy.

Mr Mazosi pointed out that a proposed policy document had been forwarded to the Committee. The alternative would be that the Bill be amended to provide for legislatures to provide in their Standing Rules of Procedures for the process of arriving at negotiating and final mandates and that the Legislature only meet in the Plenary for the voting mandate. It was further proposed that Clauses 5 and 8 should not be adopted by the Committee.

Mr J Le Roux (DA, Eastern Cape) said that he agreed with most of what had been said. He noted that the bottom line was that provinces did not wish to be dictated to.

The Chair asked party whips to address the issue of synchronization and co-ordination of programmes of the Committee and provinces.

Mr N Mack (ANC, Western Cape) said that there were liaison officers for each province that reported back to the Legislature. The Western Cape had one and so should the Eastern Cape.

Ms F Nyanda (ANC, Mpumalanga) stated that liaison officers were supposed to provide information to the provincial legislatures.

Mr Mazosi clarified that there would be disruptions if a mandate was needed for every sitting. He proposed that the policy document be finalised.

Mr D Worth (DA, Free State) stated that the required sittings would have an impact on legislative budgets. The legislature would sit in a six-week cycle. It was procedure for the legislature to sit in order to inform members on what Bills were about.

Dr Van Heerden (DA, Free State) pointed out that there was no clause 5(1) in the Bill as was being referred to in the Eastern Cape Mandate.

Mr M Mzizi (IFP, Gauteng) asked whether the Eastern Cape supported the Bill. He referred to the mention in the mandate that if the Bill was passed in its present format it would result in at least two to three plenaries of the legislature to provide mandates. He explained that when a Committee sits there was no need for a Plenary. Only when a Committee could not make a decision, was a Plenary needed. The final mandate was the only mandate that required a Plenary.

The Chair agreed and explained further. The situation was only likely to arise when the legislature was in recess and a Section 76 Bill was before Parliament . It was a rare occasion for such a plenary sitting. There was no addition of plenaries. The provision for such a plenary sitting was only in the event that a final mandate was needed on a Bill.

Ms Shaheeda Bowers (NCOP Procedural Officer) stated that section 116 of the Constitution provided that a provincial legislature may control its own arrangements. The Bill could not prescribe the procedure that a provincial legislature should follow. If it did, the Bill would be unconstitutional. She said that the Bill only set out guidelines for provincial legislatures to follow, not procedures.

Mr Mack said that the Western Cape had the same concern and suggested that the word “must” be replaced with the word “may” in clauses 6 and 7.

Mr Manyosi (ANC, Eastern Cape) suggested that drafters re-look at clauses 6 and 7. It was the intention of the Eastern Cape for it to be redrafted.

Mr S Shiceka (ANC, Gauteng) pointed out that the Bill gave the impression that whenever a mandate needed to be considered, the legislature needed a sitting. When a special sitting was to take place during recess, it must be ensured that a final mandate should be conferred by the legislature and not the Committee. The view of Gauteng was such that if the provincial legislature was doing its normal work, the NCOP could not prescribe how it should be done but if it was doing work related to the NCOP, the NCOP could give guidance to the provincial legislature.

The Chair reiterated that there was only one plenary sitting and not many. The Bill was clear that there was only one plenary to confer a mandate.

Mr Shiceka said that the Eastern Cape had a point in that clauses 6 and 7 seemed to be the same. He suggested that clause 6 be amended. The conferral of a negotiating mandate should be done by the Committee and not the provincial legislature as a structure.

Mr Le Roux said that what Mr Shiceka was saying meant that the provincial legislature was being told what to do. It would therefore be unconstitutional.

Mr Shiceka responded that it was not a prescription. It was not prescribing when the provincial legislature must sit, only when they do sit.

Ms Bowers stated that the negotiating mandate and the final mandate was not the same. The crux of the matter was that authority needed to be conferred. The Bill was only setting guidelines and not instructing the provincial legislature. There was thus no contravention of section 116 of the Constitution.

Dr Van Heerden suggested a change to clause 6 that could perhaps resolve the issue: the insertion of “or a Committee designated by a provincial legislature “ after the words, “provincial legislature” in clause 6.

Mr Mazosi said that he had no problem with the suggestion.

The Chair stated that the proposal made the clause flexible.

Ms Bowers was concerned that the use of the word “provincial legislature” suggested that the provincial legislature had to sit to give a mandate. She asked if the provincial legislature sits as a House to confer a negotiating mandate.
  
Mr Shiceka explained that committees confer negotiating mandates and that provincial legislatures confer final mandates. He suggested that “A provincial legislature” be deleted from clause 6 and that “A Committee designated by the provincial legislature” be inserted in its place.

Ms Bowers was comfortable with Mr Shiceka’s suggestion and said that it would be considered.

The Chair also supported the suggestion.

Mr Manyosi noted that many of the other concerns raised in the mandate had been covered in the discussions. The issue of putting a policy framework in place could be discussed at a later time.

The Committee agreed.

Free State
Mr Worth presented the mandate. Option 1 in the mandate called for the withdrawal of the Bill as constitutional concerns were raised. Both Dr Van Heerden and Mr Worth said that they would only be able to make comments in their personal capacity and could not speak on Option 1 as it had constitutional issues. They however agreed to speak on Option 2 which supported the Bill.

Mr Mzizi pointed out that it would not be workable to discuss Option 2 as it tied in with amendments proposed in Option 1.

Dr Van Heerden conceded that Mr Mzizi was correct and proposed that the Committee move on.

The Committee agreed.

Gauteng
Mr Shiceka presented the mandate. He noted that the Bill did not prescribe a procedure for conferral of authority in respect of section 64 and section 78 legislative mandates in terms of the Constitution. The concerns over negotiating mandates had been covered by the Committee’s earlier discussions. He noted that given the fact that a final mandate would be conferred by the provincial legislature, the Speaker would sign the final mandate and in the case where negotiating mandates were conferred by the Committees, the Chairperson would sign it.

Mr Shiceka stated that a policy was needed on unfunded mandates. He could not understand why the NCOP was required to foot the bill for unfunded mandates. It was also proposed that the Bill should clearly state that on the issue of voting mandates, the head of the delegation must vote on issues at hand. The format of the mandates had been discussed and it was proposed that provision in the Bill or in the NCOP Rules be made for the option of video conferencing. It would save both time and the cost of having to meet in person. The Bill should also have a part in its format schedule that would reflect the public participation process.

Both Mr Mack and Dr Van Heerden supported the idea of video conferencing.

Mr Moseki (ANC, North West) referred to public hearings and asked why the NCOP should bear the cost alone. He felt that national government should contribute.

The Chair agreed that a structural approach was needed on the issue.

Mr Shiceka noted that the critical issue raised in Gauteng’s mandate was on negotiating and final mandates. Negotiating mandates should be with the Committee and final mandates should be with the Speaker. The issue had been covered in earlier discussions.

Mr Mokoena referred to the clause 3(c) on the requirement that a mandate needed to be signed by the Speaker and asked why Gauteng had requested the provision be deleted.

Mr Shiceka explained that clause 3 referred to every mandate having to be signed by the Speaker. It made no distinction between negotiating and final mandates. If Clause 3 referred only to final mandates the words “Every mandate” should be deleted and it should be replaced with: ” A mandate in Chapter 3 Clause 7”

Both the Chair and Ms Bowers said that Gauteng’s observation was correct.

Dr Van Heerden suggested a simplified amendment: “Every mandate” be replaced with “Every final mandate”, given that clause 3 referred to final mandates.

Mr Shiceka agreed that Mr Van Heerden’s suggestion was better.

Ms Bowers said that she had initially wanted the clause to remain as it was in the Bill. It seemed that members were more comfortable with the proposed amendment and she agreed to the change. She asked whether uniformity on negotiating mandates was not also needed as in the case of final mandates.

The Chair understood the concern.

Mr Mazosi said that there needed to be a format for both negotiating and final mandates.

Many members felt that there was no need for a format for negotiating mandates as it had never been needed in the past.

Mr Z Ntuli (ANC, KwaZulu Natal) stated that the format in Schedule 3 of the Bill seemed to apply to all mandates.

Mr Shiceka noted that it was clear that the format set out in Schedule 3 had been intended for final mandates. The question was whether the Committee intended to regulate the format of negotiating mandates. 
 
Ms Bowers noted that negotiating mandates often contained discrepancies over dates, Bill numbers etc.  

The Chair agreed that it was a problem.

Mr Mazosi suggested that a format for negotiating mandates be drafted and the Committee agreed.

KwaZulu Natal
Mr Ntuli presented the mandate, saying KwaZulu Natal was in support of the Bill with its proposed amendments (see mandate).

The Chair noted that many of the changes were of a technical nature and that it would best be left in the hands of drafters. Most of the serious issues had been discussed earlier.

Mr Mokoena was concerned that the Committee was pressed for time and asked for guidance.

The Committee agreed to continue as most of the major issues had been covered.

Limpopo
The Chair, representing Limpopo, stated that the Bill was supported.

Mpumalanga
Ms Nyanda stated that that her province supported the spirit of the Bill.

North West
Mr Moseki said that the mandate would be available at the next Committee meeting.

Northern Cape
Input from the Northern Cape was also not yet available.

The Chair stated that inputs from the North West and the Northern Cape would be discussed at the next meeting of the Committee.

Western Cape
Mr Mack presented the mandate. In Chapter 1 it was suggested that provision be made for an “alternate delegate”. It should be spelt out in the definitions as well. Most of Chapter 2 contained grammatical changes. The Western Cape however proposed changes to Clause 4 dealing with requirements in respect of the designation as head of delegation. It proposed that a vote on behalf of the provincial legislature could also be cast by an “alternate delegate”. Further proposals in Clause 4 required the Premier to certify the designation of a member as head of a delegation and that the certificate of designation be forwarded to the NCOP Chairperson. A new subclause 8(3) was proposed: “If a provincial legislature is not sitting, the provincial legislature may convene a special sitting to confer authority on its delegation to cast a vote in the NCOP Plenary.” 

Ms Bowers responded that to add an “alternate delegate” was an internal procedure and it would be best not to include it in the Bill. It would be a contravention of Section 60 of the Constitution. The issue of a certificate of designation was also regarded as an internal matter. Including it would be an add-on and would make the Bill cumbersome. The Bill already set out the role of delegates. The new subclause 8(3) could be construed as being prescriptive.

Mr Ntuli said that a certificate of designation was not necessary.

Mr Shiceka responded that the amendments proposed were inconsequential and that many of the issues could be handled internally.

Mr Mzizi agreed that these were internal matters.

Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill
Mr Lawrence Basset, Chief Director Legislation Department of Justice, explained that the Act had contained a sunset clause which allowed drafters to finalise new legislation by 30 September 2007. All that this Bill did was to extend the deadline to 30 June 2008. The Department of Justice had realised that the process was not an easy one and that it would not be able to meet the initial deadline. Mr Basset said that a policy document would first have to be drafted and thereafter a bill. The Bill would be ready by June 2008. A Task Team was currently working on the matter and the Bill would be submitted to Parliament by November 2007. Mr Basset noted that a Bill dealing with traditional leadership must be referred to traditional leaders for a period of 30 days.

Mr Mzizi said that even though the Bill was to be passed that day, the Committee needed to be briefed on what legislative changes to be made and what the progress was. The Chair felt it not to be an unfair request. Mr Basset stated that such a briefing would not be a problem.

The Chair took the Committee through the Bill clause by clause. The Bill was adopted.

The meeting was adjourned.     


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