Mandating Procedures of Provinces Bill: negotiating mandates; Repeal of Black Administration Act Amd Bill: briefing & adoption
NCOP Security and Justice
11 September 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
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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