The final mandates of eight provinces on the National Environmental Management: Integrated Coastal Management Bill were tabled. The Eastern Cape, Free State, Kwazulu-Natal, Limpopo, Mpumalanga, Northern Cape and the Western Cape supported the Bill with amendments. Gauteng supported the Bill without amendments. Having tabled and discussed the final mandates, the Committee adopted the Bill with amendments. The North West did not submit a final mandate and the Committee agreed that it should impress upon the North West the seriousness of their abdication of responsibility in not submitting either negotiating or final mandates.
In the deliberations on these mandates the Committee noted procedural concerns. The Committee debated, at length, the correct procedure for considering a Section 76 Bill in the National Council of Provinces. Some provinces were still not sure which version of the Bill and final set of amendments the provinces had to consider to produce their final mandates. Secondly, the mandates often did not reflect clearly whether their approval of the Bill was with or without the agreed upon amendments.
Final Mandates: National Environmental Management: Integrated Coastal Management Bill
The Chairperson called for the final mandates of the provinces on the Bill to be tabled.
There was no delegate present for the Eastern Cape. The Chairperson reported that the position that the Eastern Cape voted for the adoption of the Bill.
The Committee received an apology on behalf of the Free State delegate. The Chairperson read their final mandate, reporting that the Free State voted for the adoption of the Bill as amended by the NCOP.
Mr M Mzizi (IFP, Gauteng) reported that Gauteng supported the Bill without the proposed amendments.
Mr G Krumbock had submitted an apology for his absence to the Committee. The Chairperson reported that Kwazulu-Natal supported the Bill with amendments.
Mr R Tau (ANC, Northern Cape) asked if Kwazulu-Natal really supported the Bill as their final mandate raised so many contradictions and concerns.
Mr Watson (DA, Mpumalanga) suggested that they confine themselves to the cover page of the document and explained that the second page was rendered null and void as there was no delegation. (The second page detailed the powers of the delegation in the event of further amendments being proposed)
The Chairperson responded that if any further amendments did not conflict with the essence of the Bill, they could go ahead with the amendments.
Ms H Matlanyane (ANC, Limpopo) reported that Limpopo would vote in favour of the Bill.
Mr A Watson (DA, Mpumalanga) reported that the Mpumalanga had conferred on him the authority to vote in favour of the Bill with amendments.
Mr R Tau (ANC, Northern Cape) reported that the Northern Cape would vote in support of the Bill.
Mr Tau raised his concern about the Kwazulu-Natal final mandate, which detailed many concerns, besides their final position on the Bill.
The Chairperson thought that the legal advisors should come in on this and expressed the view that cognisance of the full two pages of the mandate were unnecessary. Just the paragraph that stated the final position was necessary for consideration.
Mr F Adams (ANC, Western Cape) stated that he had difficulty voting on the B version of a Bill. He would have preferred to deliver a final mandate on a C version. He suggested that the proposed amendments be incorporated into a C version of the Bill.
Mr Tau stated that he wanted the mandate to be conferred on the new Bill as agreed upon at this meeting. He noted that the spirit was there on the part of the Northern Cape to support the Bill but the confusion about which version of the Bill had to be considered, was off-putting. He suggested that the issue be raised with the State Law Advisors.
Mr Watson commented that, to his understanding, the B version had to be sent out to the provinces. The provinces would then return with a negotiating mandate. The proposed changes in the negotiating mandate would then be incorporated into the C version. The Committee should finally vote on the D version which would contain the amendments to the B and C versions.
Mr Adams commented that technically, they could not proceed until there was a C version of the Bill. He reported that this was the position of the Western Cape.
Mr Watson wanted to know what form the provinces received their amendments in, after the Committee had concluded its negotiating mandates meeting. If they got the amendments in the C form, then he thought that would be all right.
Mr Asgar Bawa, Committee Secretary: Select Committee on Land and Environmental Affairs, responded that when a Committee had a Bill before it, in this case it was B40B-2008, they had their negotiating mandates meeting. The minutes of which, containing all the amendments agreed on, were sent out to the provinces. Those minutes were adopted by the Select Committee in the next meeting and also sent out. Those amendments then became official. Procedure dictated that once the Bill was adopted with amendments, the State Law Advisor would list those amendments into a C version of the Bill. These amendments would be incorporated into the B version of the Bill and become the D version of the Bill that would go to the House. The provinces would then send a voting mandate to the House on the D version.
He stated that the committee process has been such that they had before them B40B and the agreed upon amendments. The final mandates of the provinces would have to vote on the Bill and choose a position from the following: supported with amendments, supported without amendments or abstain. After the current meeting the SLA would compile the C version amendments plus incorporate these into a D version, which would be sent out to all the provinces. Provinces will then send a voting mandate to the House because the D version was what got voted on in the plenary.
Mr Watson stated that Mr Bawa was quite right and they could not produce a C version until after they consider the final mandates.
Mr Tau stated that he had merely made a practical example as to an issue they struggle with in the Committee. It was a pity that the information was different from that which the procedural officers of the NCOP had advised them on. He suggested that in the future it might be useful to have someone from the procedural office of the NCOP present, so that the members did not talk past each other.
Mr Mzizi agreed. He suggested that they rely on the information contained in the mandate. The Committee should stick to the mandate until they get a D version.
The Chairperson pointed out that the mandate from Mr Mzizi’s province stated clearly to adopt the Bill without amendments, unlike the Northern Cape where the position was not as clear.
Adv Anthea Gordon, Parliamentary Legal Advisor, commented on the Northern Cape’s mandate. She did not want to get into a position where the legal advisors were relied upon to interpret the mandate. That was not their job, as the mandates should be clear. She read the mandate and remarked that at the negotiating stage it was expected that concerns would be raised by the legislature. She stressed that this was only her interpretation. For record purposes, however, she stated that the mandate should reflect the province’s position more clearly.
The Chairperson pointed out that the Northern Cape mandate was totally unclear and was silent about what it should have put forward. The Northern Cape mandate had either to adopt the Bill with amendments, adopt the Bill without amendments or report that the Northern Cape abstained from voting.
Mr F Adams (ANC, Western Cape) reported that the Western Cape supported the Bill with the amendments detailed in their final mandate.
The North West did not submit a final mandate on the Bill to the Select Committee on Land and Environmental Affairs.
Mr Adams asked when he would see these amendments incorporated into the Bill.
The Chairperson responded that after these mandates were agreed upon, it would all be incorporated into the Bill.
Voting on the Bill
The Committee adopted the National Environmental Management: Integrated Coastal Management Bill with amendments. The Chairperson read the Committee Report on the Bill and the Committee adopted the Report.
Discussion on procedure for Section76 Bills
Mr Watson stated that this procedure must be spelt out for members and the Committee needed a summary of how the procedure worked. He found the lack of information disconcerting.
Mr Tau said that the simplified procedure was not consistent with the process and he made an appeal to the State Law Advisors (SLA) that whenever the Committee dealt with a Section 76 Bill, that the SLA liaise with the procedural office of the NCOP. This would avoid inconsistent interpretations and ensure that they moved forward smoothly
Ms Hala Sangoni, Senior State Law Advisor: Department of Justice, was of the view that this had already been ironed out in a previous workshop. She agreed that consensus must be reached as to how these things should work.
The Chairperson agreed that they should put the accepted procedure on paper and that it was appropriate for provinces to be informed of these procedures. It would help provinces with the NCOP process.
Mr Tau responded that it was true that this workshop had taken place, where these problems were discussed and proposals were made. However, no clear resolutions were adopted. All the issues raised were supposed to be compiled into a report. In the absence of this report, there was nothing to lay a basis for consistency.
Ms Sangoni responded that she would address that concern.
Adv Anthea Gordon, Parliamentary Legal Advisor, commented that the concern about the version of the Bill to be considered was cogent and in her view a crucial step was missing. The final mandates were meant to inform the C Bill and another meeting would have had to take place in order to adopt the C Bill. There had been legislative blunders in the past because Committees did not have an A version or a C version (containing only the amendments) for Bills that they had passed. The National Assembly had had problems in the past with this. For the NCOP, she suggested that best practice would be for the C Bill to be before the Committee. She stated that each House had the prerogative to adopt its own process and this was a matter the NCOP needed to gain a view on, in terms of procedure. The legal advisors did not have strict instructions from the NCOP, as was the case with the Portfolio Committees of the National Assembly. Ultimately the Select Committees of the NCOP would have to decide on this and the legal advisors would take their cue from the members on the prevailing practices within the NCOP.
Mr Adams responded that Adv Gordon's comments spoke directly to his own concerns. Furthermore he lamented that there was no guarantee that the amendments specifically referred to in the Western Cape final mandate would be incorporated. This was why they needed an official C list of amendments to accompany the minutes, where the agreement on the amendments was recorded. This was simply a matter of procedure.
Adv Gordon commented that perhaps a more standardised format would be useful for the mandates of the provinces. There was currently no set format and it would improve clarity and ease interpretation. Such a set format would also make it easier for the legislature to communicate with the NCOP.
Mr Adams commented that this would be incorporated into the Mandating Procedures of Provinces Bill, which would outline how provinces would send their mandates and how the Select Committees should report on mandates.
The Chairperson asked if the members were saying that they should have another meeting after the C list of approved amendments was compiled, to take the matter back to the provinces.
Mr Watson replied that if the approved amendments emerging from the negotiating mandates meeting were minuted and if then, there was a clear mandate from the provinces, therefore should not be a problem. He added that it was the job of the SLA to check if the C version of the Bill captured the amendments.
Mr Tau remarked that a point to be considered by the Committee was the absence of the North West province. He thought the Committee should impress upon the North West the seriousness of their not submitting negotiating and final mandates. He asked how the Committee could execute their constitutional mandate in development of legislation if provinces did not submit their mandates. He stressed that the Committee must note the North West's abdication of responsibility.
The Chairperson agreed that it was very serious and he would take this up in writing and telephonically.
The Committee adopted the minutes of 7 August 2008 meeting.
The meeting was adjourned.
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