Transnet Pension Fund Amendment Bill: further discussion & Buthelezi Constitution 18th Amendment Bill to amend current executive system

Private Members' Legislative Proposals and Special Petitions

06 March 2008
Chairperson: Ms P Mentor (ANC)
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Meeting Summary

Mr Minnie had proposed an amendment to the Transnet Pension Fund legislation. However, between the time that his proposal was made and tabled, the legislation had been amended and the section that he had quoted no longer existed. Parliament had no jurisdiction over the Rules of the Fund. It was resolved that the Committee needed to take no further action and that the problem he was seeking to address was addressed in any event.

The Committee noted that Prince M Buthelezi had proposed a Constitution Eighteenth Amendment Bill. The  object of the proposed bill was to amend the Constitution and substitute the current position, where the President was the Head of State and Head of the National Executive, with a President as the Head of State and a Prime Minister as the Head of the National Executive; and to provide for matters connected therewith.
Due to administrative problems at Committee level, Prince Buthelezi was unable to attend, but a preliminary discussion was held to clarify matters to be raised with him the following week. Members commented that the proposal raised questions around whether the removal of powers would affect the dignity of the Office of the President, whether there would be any value-add by introducing the new system, and issues of historic conflict between these posts in other countries. Further questions related to the position in other emerging democracies, which the Researcher would research, the implications for the current electoral system, protection of an office that must be beyond reproach, who should be the guarantor of the Constitution, and the meaning and import of the objects and memorandum. These questions would be conveyed to the proposer and discussed the following week.

 The Minutes of the Committee meeting held on 20 February 2008, and the Report on the visit to Brazil were both  adopted subject to amendments.

Meeting report

Minnie’s proposal to amend Transnet Pension Fund Act
The Chairperson noted two Members of Parliament were present who were not part of the committee, and noted that they could participate in discussions, but not vote.  They introduced themselves as Mr M Malahlela (ANC) , and Mr W Doman (DA),

The Chairperson noted that after the last meeting on the Transnet legislative proposal she had raised queries with National Treasury, Transnet and others. It had been argued that Mr Minnie, the proposer, was seeking to amend a section of the Transnet Pension Fund Act that was non-existent, and it seemed that he was instead referring to the Rules. He was also not aware that since the original proposal had been lodged with the Speaker’s Office, the legislation had been amended.

The Minister of Public Enterprises pointed out that Parliament did not have jurisdiction over the rules of the Pension Fund, which was under the jurisdiction of the Board of Trustees. He had also pointed out the process of extensive consultation undertaken by the Department of Public Enterprises and the Transnet Board to involve members of the Pension Fund during the process of the amendment of the Act and the change in the Rules.

The Chairperson therefore proposed that the matter be regarded as ended. The Committee could not go beyond its mandate as it had no jurisdiction over the Rules. She had explained the procedure to Mr Minnie and he must decide if he wished to re-table a new proposal, which the Speaker must then decide upon.

Discussion
Mr M Mshudulu (ANC) said there was a need to put on record issues that other members could learn from, in particular that the sponsor stay until the last moment, because in a formal meeting the final pronouncement clarified issues. He thanked Transnet for its clarification.

The Chairperson explained that she had given Mr Minnie permission to leave, as he had to address another meeting.

Mr S Malahlela (ANC) agreed that there would be no basis for the committee to continue.

Mr A Ainslie (ANC) proposed that the Committee go no further with the proposal.  Whilst certain aspects of the proposal had merit but it was inexcusable of Mr Minnie to confuse a Section of an Act with the Rules, attempt to modify the Rules in this way, and not track the current status of the legislation.

Mr H Bekker (IFP) seconded that the matter be removed from the Agenda.

The Chairperson agreed that it was unfortunate, but noted that when Mr Minnie put this proposal before the Committee the Office of the Speaker should have alerted Mr Minnie to the amendments.
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The Chairperson noted that the letter from the Minister had said : ‘For the reasons stated above the committee should not adopt this amendment’. This should have been worded as a recommendation that the Committee should not adopt the amendment.

Members agreed that this matter would be regarded as closed.

Buthelezi Constitution Eighteenth Amendment Bill
The Chairperson asked the Committee staff to improve on their sending out of correspondence and invitations. Prince Buthelezi had complained that he received correspondence and an invitation to the meeting only two days ago, which was not justifiable. He had been abroad, had only returned within the last two days, and was today addressing the House of Traditional Leaders. After a lengthy deliberation with the Whip and members of the party, it was decided that Prince Buthelezi’s proposal would be tabled at this meeting in his absence, so that Members could hold a preliminary discussion, which would be conveyed to Prince Buthelezi to enable him to prepare to meet with them the following week. 

She clarified that the National Treasury were present. The proposal to establish a post of Prime Minister would have financial implications, including remuneration, support staff, and execution of duties. The committee had also extended invitations to the Departments of Public Service and Administration, Justice and Constitutional Affairs and the Presidency. Those that were not present had indicated they would attend the next meeting.

Mr Johan de Lange (Principal Senior Law Advisor, Department of Justice) announced his presence.

Ms Sybil Lyons-Grootboom (Director, Legal Services: Department Public Services and Administration) was standing in for Adv van Schoor.

The Chairperson noted that the Minister of Finance had succeeded in the recent court case, and noted that it was his right to protect his dignity. She released National Treasury officials from the meeting and asked them to rejoin the meeting the following Friday.

The Chairperson noted that Prince Buthelezi had tabled this legislative proposal before Parliament last year but it and other matters had fallen by the wayside because of a problem in the system of Parliament. It was therefore being resuscitated.

The object of the proposed bill was to amend the Constitution of the Republic of South Africa, 1996, so as to substitute the current position where the President was the Head of State and Head of the National Executive, with a President as the Head of State and a Prime Minister as the Head of the National Executive; and to provide for matters connected therewith.

The Chairperson believed it was a very complex proposal and, if accepted, would have a huge impact not only on the system of the Executive but also on how the whole country was run.

One of the things that struck her was the fact that, if accepted, the Prime Minister would have enormous power, including the power to appoint heads of Security Services, Intelligence, the Army, the Navy, Commissioner of Police, and Director of the NPA. In this Bill there were several instances where the power of the President to appoint was being substituted with the power of the Prime Minister.

In the objects Hon Prince Buthelezi stated that the Head of State would only be representing the country in foreign affairs and international relations, and bilateral and multilateral agreements. However, the sub clauses said the Prime Minister would brief the Head of State on foreign affairs matters and bilateral relations. There seemed to her to be a contradiction, as the President would be a ceremonial Head of State and the Prime Minister would be the coordinating Minister Senior, appointed by the President, but reporting to the President on governance but also on foreign affairs and international relations. The Committee would have to check with the proposer next week whether there was indeed a contradiction between the two, and ask him who he intended to have the main power in dealing with international relations and foreign affairs.

The Chairperson gave the historical background of why the Constitution was crafted in the current way insofar as the executive system was concerned. This issue of the Prime Minister was not new in the South African debate. The ANC had deliberately discussed this issue at the World Trade Centre, in the context of whether an executive President was wanted who could veto, as had been inherited from the Apartheid system, and had opted for the current Constitutional dispensation after considerable discourse within the ruling party and society broadly. All participating parties had their own constitutional experts and drew also from international experience.  This proposal had very serious ramifications across all spheres of governance.

Discussion
Mr H Bekker (IFP) thanked the Chairperson for taking the matter and accommodating it today, despite the unfortunate circumstances that prevented Hon Prince Buthelezi from being present. He explained that the Prime Minister would assume most of the powers of the President and that the President would become a ceremonial President. That was a radical deviation from the current situation. Prince Buthelezi would be more capable to answer detailed questions.

Mr G Magwanishe (ANC) noted that these were preliminary discussions so he would not express an opinion as yet. Prince Buthelezi, in his debate, had always referred to the fact that there was a need to restore dignity to the office of the Head of State. However, it seemed to him contradictory how dignity would be restored when essentially the office would not have any power at all, since the powers were being transferred to the Prime Minister. This was not new in the history of South African politics. After 1910 the same situation arose in the form of the Governor General (representing the Queen) and the Prime Minister. When South Africa became a Republic in 1961 there was a ceremonial Head of State. In the former homelands Transkei had the same system where Kaizer Matanzima ultimately became the President and George Matanzima became the Prime Minister. This system had its own problems, as there were times when the two did not see eye to eye. He did not believe this was a panacea to perceived problems.

Mr Magwanishe noted that this system would have serious ramifications for the Constitution and the system of government,  and it had serious financial implications, but, to his mind, did not add any value. International relations referred to the Head of State, but he queried what was the point of sending a Head of State without any authority to sign. The President would effectively only be able to go to the opening of the United Nations for two sessions, because he would have no authority in other matters.

In KwaZulu King Goodwill Zwelithini more or less enjoyed the same kind of status as Head of the KwaZulu Kingdom. The President would be the equivalent of the Queen in Britain.

The Chairperson asked whether he was speaking of King Goodwill Zwelithini and KwaZulu in the present dispensation or both.

Mr Magwanishe responded that even currently, King Zwelithini would  open the Legislature there because he was taken as the Head of the KwaZulu Natal province, although the real power was with the Premier. Even when Hon Prince Buthelezi was the Chief Minister the same arrangement was in place.

Mr Magwanishe continued that it was often found that there were tensions between the President and the Prime Minister, citing the example of Lesotho. The trend in most African countries was to move towards the Executive President. Most countries that started with a ceremonial Head of State had now moved to an Executive President. Many had moved to Executive Ministers, not Prime Ministers.

The Chairperson noted Mr Magwanishe’s comments and would hold them over for Prince Buthelezi to respond to.

Mr Mshudulu added that he would like the Presidency and other Departments also to give input. He said that the first paragraph of the Memorandum on the Objects of the Bill implied that the President, elected by the National Assembly, had been the leader of the majority party, and was thus involved in policy and political issues and the day-to-day conduct of government. Mr Mshudulu wished to know what was the situation that led to Prince Buthelezi constructing this proposal. He would also like issues from 1.1 up to 1.6 of the Memorandum to be discussed and clarified.

The Chairperson summarised that the issue of dignity of the President’s Office was a concern. It was therefore necessary to discuss whether this proposal would reinforce the dignity or subtract from it, because dignity could be correlated with powers. It should also be considered whether there would be value-add by having a situation where a Head of State would only be appearing ceremonially, but the signature at an international level must be that of the Prime Minister. The historic conflicts between the two posts were also raised.

The Chairperson asked Mr Magwanishe and the Researcher, to look at other emerging democracies to broaden the view.

The Chairperson also asked the Researcher to detail with what were the issues and discussions at CODESA at the World Trade Centre.

She suggested that the Committee inform Prince Buthelezi that it would like to examine the Memorandum in particular, as well as the objects, before even going to the clauses. Prince Buthelezi was referring to a classical Parliamentary system, and would need to convince the Committee about the points for departure. He had pointed out only the disadvantages of the Executive President system, not the advantages. In his proposal he did not mention what would happen to the constitutional position of leader of government business, nor had he made mention of the Deputy President’s position. This might lead to a loaded executive structure, and the relationships had not been clearly explained. It was not clear by amending the Constitution to put in a Prime Minister that would automatically abolish the other two posts.

Mr Mshudulu pointed out that Clause 2.3 repealed the office of the Deputy President and created the office of the Deputy Prime Minister. If a Deputy Prime Minister replaced the Deputy President it assumed that the Prime Minister was equal to the President.

The Chairperson explained that the Deputy President deputised for the President, so if a Prime Minister replaced the President and took over his powers then the Deputy President would have to be replaced by a Deputy Prime Minister. That would be a problem in law, because it had to do with issues of power. Whether it was possible to remove one deputising position and create a new one had to be seriously considered. 

Mr Malahlela said this proposal was very interesting and the Member must be applauded for his vigour and zeal in putting a legislative proposal of this kind before the Committee. The Committee had discussed the memorandum in general terms but he wanted also to go through it in particular points to help gain understanding. He noted that 2.6 of the Objects gave an indication of what the powers of the President would be, that 2.7  gave an indication of what the Prime Minister would be doing and his powers, and that 2.8 gave an indication of what generally were the objects of the Bill. Clause 2.4 also was giving an indication of what this Bill would or would not do. He did not think that the Bill was particularly complex in itself, as it dealt with substitutions and insertions and excising particular portions of the Constitution that might not be consistent with the proposed new approach.

Mr Malahlela noted that the last paragraph on page 2, dealing with the preamble of the Bill, spoke to quite a number of questions raised by Mr Magwanishe. It also spoke about the President acting above and beyond political influence, as raised by Mr Mshudulu. Before 1994 Parliament was supreme. Today there was Constitutional supremacy, with the Constitutional Court at the apex, and it was the Constitutional Court was the guarantor of the Constitution, not the President.

Mr Malahlela looked at the impact of this proposal on the electoral system. The current electoral system decided on proportional representation of political parties, and there was the need to consider whether certain powers and dignities were above politics.

The Chairperson agreed that the objects of the Bill, particularly 2.4, and 2.6 to 2.8 must be argued by the proposer and fully examined. Prince Buthelezi had argued that the Bill did not substantially affect the powers and functions of the President as Head of State. She differed with that conclusion. When powers were subtracted in this manner they would be substantially affected. It was necessary to consider whether the Bill was correctly excising, substituting and inserting matters, and this would be a complex exercise.

The Chairperson noted that Mr Malahlela had raised an important point about the electoral system. She wondered if this would lead to elections being run similar to the USA. The Committee must not lose sight of this point as the Bill was seeking to do something that was inconsistent with the current electoral system.

Mr Magwanishe added that there were two systems to choose from, the Westminster system, which he believed Prince Buthelezi had mostly relied on, and the French model. He suggested that Prince Buthelezi should explain his choice.
 
The Chairperson reiterated that he must tell the Committee the advantages of the Executive system. She asked Mr Magwanishe to set out the French model. The committee could interrogate Prince Buthelezi on the advantages of the model he had chosen for South Africa, and could make suggestions if they considered any other model might be better.

Mr Magwanishe submitted that the proposal was about Constitutional development, and he still needed to be convinced that there had to be a valid reason why Prince Buthelezi chose that particular system. The office of the President must be beyond reproach, and the issue was how it would be protected if the President was effectively demoted. The Prime Minister, as leader of the majority party, could in theory fire the President.

Mr Magwanishe continued that in point 2.6 it was noted that the appointment of the Prime Minister would be subject to confirmation by Parliament. In practice what would really happened was that the President would invite the leader of the majority party to form a government. That was not a power at all.

The Chairperson added that the power to appoint in conjunction with Parliament was also a diminished power. She thought that the Kenyan issue related to this situation. She asked why Mr Odinga was so keen to take the Prime Minister’s role, noting that it was unlikely he would have agreed if the function did not have considerable power. She added that when considering other democracies, the researcher may want to look at Kenya and the current arrangement there as well.

Mr Ainslie noted the ramifications of the proposal for the electoral system were most important. The Bill proposed that the Head of State would become the guarantor of the Constitution. He believed that there should not be only one guarantor of the Constitution, and that this role must surely be taken by the Constitutional Court, Parliament, the Head of State and all courts. That area should be explored next week.

Mr W Doman (DA) asked a question on the electoral issue. He noted that the motivation was for a unified position in a new President, and he asked whether it would not be better that the nation elected the President and not Parliament. He added that South Africa was a multi cultural, multi lingual country. He asked what role the Presidency would play in relation to those cultures and language groups and would those existing rights still be cherished. Traditional leadership was another area that needed clarification. 

The Chairperson responded that the cultural and language groups were protected by the Constitution and according to the proposal the Head of State was the protector. However, the question around the elections was relevant.

Mr Magwanishe submitted that it was not possible to have a guarantor of the Constitution who did not have the power to do anything. He said that although the Chairperson was correct that a number of institutions must act to uphold the principles of the Constitution, the person whose main duty was to invite the leader of a party to form government was not a guarantor in a real sense. All the institutions would fall not under him, but under the Prime Minister, so the statement around guarantor was meaningless.

The Chairperson asked Mr Magwanishe to raise that point to Prince Buthelezi.

Mr de Lange noted that this was very informative and gave him an indication of the kind of issues to research in order to assist the Committee.

The Chairperson was sure that this issue would be in the public domain over the weekend. The Committee must clarify issues and she would not shy away from public discourse. Members could participate in discussions, but must stress that the matter was not yet concluded and that the Committee would be deliberating on it in the presence of the proposer and the Departments next week, during open meetings.

She noted that the Committee’s researcher, Mr Rhoda, had tabled a comparative analysis on the role of Prime Ministers in England, Canada, Lesotho, Namibia and India. The Chairperson asked him to add the arrangement in Kenya.

Mr Magwanishe noted that some of the Southern African Development Community (SADC) countries had a Prime Minister, such as Mozambique, but under a different concept. He felt the Committee should also conduct research on the history of the Zimbabwean system, which had formerly had a President, and why it had changed.

The Chairperson targeted this issue for finalisation the following week.

Adoption of Minutes
The Minutes of the Committee meeting on 20 February 2008 were adopted, subject to amendments.

Report on Visit to Brazil
This report was adopted, with amendments. The Chairperson would give the report in the House.

Other Business
The Chairperson noted that the issue on Floor Crossing,  concluded some weeks ago, was not yet on the ATC but was awaiting Mr Doidge’s signature, as he had been out of the country. She apologised for the delay. 

The meeting was adjourned.


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