Constitution 13th Amendment Bill briefings by Departments of Justice & Provincial & Local Government

NCOP Security and Justice

09 October 2007
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09 October 2007

Chairperson: Kgoshi L Mokoena (ANC)

Documents handed out:
Constitution Thirteenth Amendment Bill [B 24-2007]
Map presentation by Department of Provincial and Local Government

Audio recording of meeting

The Departments of Justice and Provincial and Local Government briefed the Committee on the reasons for the Constitution Thirteenth Amendment Bill, explaining that it had become necessary to enact this legislation, and its corresponding Cross Boundaries Municipalities and Related Matters Amendment Bill, after the Constitution Twelfth Amendment Bill and the related Cross Boundaries Municipalities Act had been challenged in the Constitutional Court. The Court had found procedural irregularities, and had given an order of invalidity in respect of the Matatiele areas, but had suspended that order for eighteen months to allow parliament time to rectify the defect, which it was doing by introducing these Bills and holding public consultations.

A Member raised questions on the voting in the House of Assembly on the Bill, requesting investigation into the number of votes and whether all Members had been properly sworn in before voting. It was decided that the queries must be directed to the Speaker.

The Committee heard a presentation by the Department of Justice on the implications of the Doctors for Life and Matatiele judgments on the matter of public participation. The Department of Provincial and Local Government clarified the changes to the affected areas. Questions of clarity were raised on the procedure, the right of veto of any province, the implications should the time frames imposed by the Court not be met, and the processes to be followed. It was resolved that the Bill be referred to all provinces, who should be urged to heed the procedures as set out in the Constitutional Court judgments and to consider the matter after following a proper participation process.

Voting in House of Assembly
Mr D Worth (DA, Free State) referred to the proceedings in the House of Assembly where the Bill under discussion was recorded as having been passed with 271 votes in favor, whereas the DVD recording of the proceedings recorded that there were 272 votes in favour. He requested that this discrepancy, and how it arose, should be investigated. Further, he pointed out that a two thirds majority of the House of Assembly was required for the passing of this Amendment to the Constitution, and that would be 267 votes. He continued by pointing out that on the day the Amendment came before the House of Assembly there were four new Members of the House of Assembly and he was concerned that such members had not been sworn in duly and properly before casting their votes. He therefore requested investigation by the Speaker’s office to validate the passing of the Amendment by the House of Assembly.

The Chairperson was of the opinion that the questions raised by Mr Worth lay within the province of the Speaker, and a Legal Adviser confirmed that such investigations and consequent action could only be taken by the Speaker.

Mr Z Ntuli (ANC, KZN) asked for, and received confirmation that the Bill under discussion was the Constitution Thirteenth Amendment Bill.

Background to the Constitution Thirteenth Amendment Bill (the Bill): Briefing by Department of Justice
Mr Johan Labuschagne, Director, Department of Justice addressed the meeting on the background to the Bill. He noted that 2002 the Cross Border Municipality Act (CBMA) and Constitution Twelfth Amendment Act (CTAA) had been passed by Parliament and had received the President’s assent on 1 March 2006. CTAA had redetermined certain provincial boundaries, and simultaneously done away with certain cross-border Municipalities, including Matatiele, and the CBMA dealt with consequential matters.

The CTAA was then challenged in the Constitutional Court by the Matatiele Municipality. It argued, firstly, that
parliament had usurped the functions of the Municipal Demarcation Board. The Court ruled on this point in February 2006, stating that parliament did have the power to change provincial boundaries, and only after this was done would the Municipal Demarcation Board (MDB) re-demarcate the municipalities in line with the new provincial boundaries. The Court requested further argument on the other points, which concerned the failure of the legislature to conduct a proper public engagement process, and the argument that changing of the boundaries had not complied with the constitutional principle of rationality. Judgment on these points was delivered on 18 August.

At this point Mr Labuschagne noted that the Doctors for Life Inc v Speaker of the National Assembly (DFL) judgment had been delivered on 17 August. Although the facts were different, this case also dealt with the question of public engagement in the legislative process. Parliament had passed four Bills in health matters, and the question arose whether there should have been public participation in all matters. The Court had concluded that participatory democracy was vital. It discussed the nature and scope of public involvement, and said that this imputed that steps must be taken to ensure that the public could participate in the legislative process. The Constitutional framework required a balanced relationship between legislature and the public. All these issues were taken into consideration before the Court gave an indication of what public participation meant.

The Court noted that the provincial legislatures and parliament should have discretion in deciding how best to facilitate public involvement. This would vary from case to case, and would depend on factors such as the urgency, the kind of legislation, whether it affected only a small group or had a wider impact on the public. The Court then indicated that it would have regard to what parliament regarded as "appropriate". However, it was ultimately important that parliament had firstly afforded the public a reasonable opportunity for meaningful participation in the law-making process, and secondly that the public was also given the ability to take advantage of that opportunity. In other words there would be two-stage process. Firstly there must be notice or information. It might then be desirable to provide public education and capacity building. Provincial Legislatures should create conditions conducive to effective exercise of the right to participate. The Court gave as examples road-shows, workshops, radio programmes and educational programmes.

Finally the Court had said that the duty to ensure the public could participate would be meaningless unless the public did in fact participate. The public must be enabled to participate, for instance by setting reasonable time frames. The Court noted that the conventional method of public participation was through submission of written or oral (or both) presentations. The Court then looked at the process followed in the four Health Bills, in the NCOP or provinces. Here, the Portfolio Committee of the NA had held public hearings. After the Bills were passed by the NA, the submissions were referred to the NCOP Select Committee, which decided that public hearings were necessary, but that they should be held in the provinces, closest to the people. That indication was given to those who had requested public hearings. However, public hearings were in fact held in only three provinces, and the Court held that the NCOP had failed to comply with its constitutional obligations and duties. The NCOP itself did not have to hold the hearings in Cape Town, provided that all the provinces had done so.

Mr Labuschagne said that this was the majority decision, and that there were three dissenting judgments. Judge Yacoob held that there was no pre-requisite for public involvement for the passing of legislation. He felt that to suggest this was a prerequisite would undermine the position of the legislature. Judge van der Westhuizen also indicated that although public participation was important, it was not a constitutional requirement for the passing of a Bill.

In summary, the majority judgment was that the legislative process must include steps by the legislature to ensure that the public was made aware of the legislation, and could actively participate in the legislative process. There was not a "one size fits all" approach and parliament would still have discretion to decide what steps were reasonable.

In respect of the Matatiele matter, the Court referred extensively to the remarks in the DFL case. Here it decided that there had been absolutely no public hearing regarding the proposed changes by the Kwazulu Natal (KZN) legislature, nor had it received any written submissions. The Court therefore held this to be a fatal flaw, which rendered the CTAA invalid, but suspended that order of invalidity to allow Parliament to rectify the defects. This would have to be done by 18 February 2008. 

Mr Labuschagne pointed out that the court ruling had lead to a knock on effect as both Eastern Cape and KZN provinces were affected and both had to address public engagement. Although the judgment had also referred only to Matatiele, there were other areas also involved in the change between these two provinces and it was thought best therefore to re-enact the legislation in respect of all these areas. Although the Eastern Cape had previously held public engagement, it would have to do so again.

The Chairperson expressed his thanks for a simplified explanation of a convoluted matter.

Mr Ntuli said it was clear that the Constitutional Court had ruled that public participation was required and he wanted to know what this public participation meant.

Mr M Mzizi (IFP, Gauteng) wanted to know whether a similar ruling might still apply even if a Provincial legislature exceeded the requirements. He noted that both KZN and Eastern Cape were having to repeat the process, despite the fact that there had been compliance before by Eastern Cape.  

Dr F van Heerden (FF+, Free State) asked what would be considered to be “sufficient” consultation. Secondly, he wanted to know what the position would be if one provincial legislature voted in favour of the amendment and the other against. Thirdly, he asked what would be the position if the time frame provided by the Court was not met.

Mr J le Roux (DA, Eastern Cape) wanted to know what the position would be if there was full agreement by the Provinces but Parliament in due course voted against the Bill.

Mr Labuschagne replied that in his opinion the Demarcation Board was the only institution with powers to change the Municipal boundaries. As to what would be regarded as sufficient public participation, he explained that there had been meetings with the Provincial Speakers of the Provincial legislatures in KZN and Eastern Cape, and that all the affected people must be given the opportunity to state their positions. If one of the affected provinces objected the NCOP could not approve and in effect this gave the provinces a right of veto.

Dr Petra Bouwer, Executive Manager Compliance, DPLG, explained that public participation might even require members of the public to be transported to any meetings so as to be able express their opinions. The meetings should be held as close as possible to the parties, as Parliament must go to the people rather than the reverse. Dr Bouwer reverted to the Doctors for Life judgment and noted the requirement that participation must be full, meaningful and accessible. Based on this case Dr Bouwer felt that all the provinces were required to hold meetings widely so as to hear the opinions of the public but that this was especially incumbent on KZN and EC. He believed there was nothing to prevent the two legislatures holding joint meetings simultaneously in the areas. Equally this Select committee could work hand in hand with or follow upon the Provincial Committees’ work to comply with the requirements of the Court from the national parliaments’ side.  

Mr Labuschagne said that if Parliament did not meet or abide by the time frame set by the Constitutional Court any individual or juristic person could apply to the court for an extension of the time frame. If there was clear evidence that everyone was opposed to the changes, then the legislature would have to consider its response to the Bill. He could not anticipate what the legislatures would arrive at.

Dr van Heerden than asked that if anybody could approach the Court for an extension who would be the respondent in such an action.

Dr Bouwer explained that there was unlikely to be any adversary and the Court would probably be approached for a declaratory order

Mr Worth asked for guidance on what should be the position of a province such as the Free State, which was not directly affected by those areas in KZN and Eastern Cape.  

Mr Mzizi said that it seemed that all provinces should be equally involved and that Khutsong could be used as an example.   

The Chairperson pointed out to Mr Mzizi that with regard to Khutsong all procedures required to be followed had in fact been followed. Public participation was not the issue there.

The Chairperson said that it seemed to him that a referendum was required.

The Committee then discussed in detail what would be required and when referenda had been held in the past. There had been three referenda in South Africa; one regarding the adoption of a Republican form of Government, the other regarding the Tricameral Legislature and the third regarding the adoption of policy enabling the post 1994 changes Dr Bouwer pointed out that the power to decide whether to hold a referendum lay solely with the Executive and it was not within the powers of the legislature to effect or recommend it. He also advised the Committee that a meeting with
Provincial and Local Government Minister, Mr Sydney Mufamadi, had raised the question of a Province merely going through the motions of consulting with the public or allowing the public participation. The meeting affirmed that the principles set out in the DFL case must be adhered to.  

Dr Bouwer then showed maps, taken from his previous presentations, of the affected areas in Matatiele, Maluti, Alfred Nzo and Umzimkulu and Umzimvubu Municipalities.

He pointed out that submissions by the public had fallen into three broad categories. The first category had merely expressed personal preferences, without substantiating the matter. The second concerned cultural and ethnic ties to an area. The third raised the provision or lack of public services.

The Chairperson noted that the Committee should perhaps consider giving the provincial legislatures time frames – he suggested four weeks – to produce evidence of adequate public participation.

Mr Labuschagne pointed out that this would be acceptable, but that not only KZN and Eastern Cape, but also all other provinces must consider the matter and vote as required in terms of the Constitution.

A proposal was made and seconded that the Constitution Thirteenth Amendment Bill must be sent through to the provinces for consideration. They should pay attention to the statements in the Doctors for Life and Matatiele cases, hold public participation processes, and thereafter consider the matter.

The meeting was adjourned


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