The Committee were told that the presiding officers of the National Council of Provinces had resolved to postpone the consideration of the final mandates on the Financial Management of Parliament Bill.
Members queried the rationale for the sudden extension and the confusion this might cause. Concern was expressed about the awkward position the provincial delegates were placed in when people made such decisions over their heads. Some felt that this would not obviate concerns that the legislative process went against the Constitution since there had not been any public hearings and no negotiating mandates. Others felt that the meeting should be used to deliberate further on the submissions on the Bill rather than be postponed.
The Chairperson explained that the tight timeframes, the impact of the elections and the resultant dissolution of the legislatures were factors in the decision of prioritizing this Bill. The postponement meant that the pressure on the Committee had been relieved and there was now time to accommodate other provinces that had not yet submitted mandates or provinces that had not been briefed. The provinces would be informed about the two-week extension.
The Chairperson asked the legal advisor to prepare a one-page summary of the issues raised by the mandates and the submissions. The deliberations on the Money Bills Amendment Procedure and Related Matters Bill would also be deferred to 10 February 2009.
The Chairperson announced that their programme for this Bill had changed. The meeting was set to deal with the final mandates on the Financial Management Bill but the Committee had been given an extension of two weeks to finalise the Bill. He impressed upon the members the need to review the submissions of the Secretary of Parliament, the Auditor-General and the Financial and Fiscal Commission.
He referred to the final mandate of Free State as an example. It stated: “The Free State legislature votes in favour of the Bill but concerns raised by stakeholders (Secretary of Parliament, Auditor-General etc) at the briefing must be addressed.”
The Chairperson reported on a recent programme meeting with the Chief Whip and the NCOP Chairperson and the resultant two week extension. He asked that the Committee consider the decision on their upcoming programme. Five mandates had been received: Eastern Cape, Free State, Gauteng, Limpopo and Mpumalanga. The outstanding final mandates should be received by 10 February 2009, for consideration.
Mr D Botha (ANC; Limpopo) said that his province had provided their final mandate and he could not conceive of the purpose of reopening the discussion of the issues raised in the submissions. If there were further changes to the Bill, then it would not be a final mandate.
He reported that the various inputs were discussed by the stakeholders in the provinces and after three and a half hours of discussion, they had produced a final mandate with one consideration concerning the treatment of unspent funds. If the further fourteen days were to be used, they would be re-opening the discussion and there would have to be another briefing to the provinces. Any changes made would have to give rise to another mandate and the members would have to convince their provinces once more to accept the changes. He did not have the mandate to re-negotiate any inputs – all the submissions had been considered. Members were previously instructed to change the negotiating mandate to a final mandate. He felt that this was back-peddling.
Mr M Robertson (ANC, Eastern Cape) agreed with Mr Botha. His concern lay with the role of the NCOP presiding officers. The Speaker of the Eastern Cape Legislature had been very strict about signing off on mandates. Who was entitled to sign the mandates? He noted that some of the mandates had been signed by the provincial committee chairpersons and he unsure this was allowed. The Eastern Cape mandate had scope for change and covered him for further discussion and he would perhaps not need to brief the province a second time. Regarding the Money Bills Amendment Procedure and Related Matters Bill the Eastern Cape, had issued a white paper with comments on the Bill.
Ms D Robinson (DA, Western Cape) said she took umbrage that members had to hear from other people what was being done. It was not right that members did not know what was going on. They were supposed to be the delegates of their provinces and it was not right that people over their heads were making decisions. It placed them in very awkward position when they had to do their briefings. This process needed to be improved. Members as delegates of provinces had a responsibility and could not have others denying them the right to do what was correct.
Mr E Sogoni (ANC; Gauteng) stated that this was quite serious matter. The members were concerned from the beginning – when it was decided to change the negotiating mandate into a final mandate. It was important to listen to advice that cautioned agaist hurrying the process and compromising their procedures. Everyone was aware of the preparations for elections and the legislatures would soon be dissolved. The Committee had noted areas that could be amended. When the date of the elections were announced shortly, the National Assembly would be dissolved and this might create problems in revisiting the amendments. The leadership should take that into the account. He thought it commendable that they had allowed the additional time for the consideration of the Bill as provinces deserved the right to have another consultation.
He referred to a discussion with his own Chairperson in the Gauteng legislature and there was general feeling that everyone was concerned, but also an acceptance that certain things were beyond the control of the leadership of the NCOP.
He suggested that they co-operate as some of the provinces had delivered their mandates. He had glanced the mandates received and noted that there was not one amendment. He felt that the amendments would come from the Committee. He felt that they should assist the process by discussing the matters raised about the Bill and look at the mandates that had been received, instead of simply postponing the process.
Mr Robertson noted that timeframes were of concern – the legislatures would be opening and closing on the same day. He asked what the consequences would be of sending the Bill back.
Mr Z Kolweni (ANC; North West) expressed appreciation and agreed to the suggestion that the mandates should be finalised on 10 February 2009. The North West final mandate would be ready by then. The legislature had deliberated on all the points of concern and there was a high level of commitment to the Bill in his legislature.
Mr Botha reported that the Speaker of the Limpopo Legislature had not been present and the Bill was not officially tabled in that legislature. As this was a Section 76 Bill, he queried the constitutional implications of not having public hearings in the provinces. He wondered if that issue might go to the Constitutional Court as there was no time for those discussions for provinces, municipalities and communities. In arriving at the final mandate they had gone through the inputs of the various stakeholders. All the issues were discussed. He reiterated that he had no mandate to further discuss the issues.
Mr Botha queried the consequences if the legislatures disagreed with the Bill in the remaining final mandates as this was a possibility. In his opinion this process went against the Constitution as there were no public hearings and no negotiating mandates. His concern would remain unless there was a real explanation as why the extension was granted.
Mr Robertson stated that this was serious. The Chairperson was highly respected in the Committee. The Committee appreciated that the Chairperson was in a difficult position and it was not the intention to shoot the messenger. The Committee did have the power to call anyone before them. He suggested that the Committee call the presiding officers to explain the rationale for the two-week extension.
The Chairperson responded that the timeframes were tight. He noted that if they had asked for negotiating mandates, it would have been incumbent upon them to send them back to the provinces for another briefing. Provinces had the right to agree or not in the final mandates.
Mr Robertson referred to the legal opinion of Adv David Unterhalter, SC. It was a very accurate submission and pointed out that the Bill could be unconstitutional. He theorised that this could be the reason for the extension of the deadline.
The Chairperson conceded that it may be that the powers had woken up to the risks of the Bill. With this in mind, he suggested that a “cooling off period” was perhaps something the Committee should allow for. This would be the only matter on this Bill on the agenda for 10 February and they would treat that discussion as final. The NCOP Chairperson was scheduled to meet with the Chief Whips later that day. The NCOP Deputy Chairperson would brief the committee chairpersons of provinces to inform all of the change in the programme. He asked members if they could agree to consider the final mandates on 10 February.
Mr Botha agreed to the Chairperson’s request. He pointed out that the Committee was constitutionally obliged to execute the process of the Bill. This was not any other committee’s responsibility. He was concerned that the NCOP Chairperson and Deputy Chairperson were taking the powers of the Committee to brief the presiding officers and chairpersons in the legislatures. The Committee had therefore not done their job because they had convinced the provinces to accept the final mandates. This had not been an easy task. If the chairpersons were being briefed, the provincial committees would have to be briefed as well. If not, it would mean that this was another break with the Constitution.
The Chairperson responded that the aforementioned briefings were not on the Bill. The meetings concerned the upcoming programme and what legislation must be prioritised. The Financial Management of Parliament Bill was amongst those that had to be prioritised. There were approximately four other Bills the provinces had to prioritise. The provinces would be informed about the two-week extension. The pressure on the Committee had been relieved and there was now time to accommodate other provinces that had not yet submitted mandates or provinces that had not been briefed.
Mr Botha asked if the Chairperson was aware of any other Section 76 bills that needed to be prioritised before the closing of Parliament.
The Chairperson responded that he was only informed of the other bills that morning. He had previously only been aware of the Financial Management of Parliament Bill as a priority.
Mr Robertson stated that the Committee had built up a reputation for doing its job. They had always complied with the provisions of the Constitution and the Division of Revenue Act. They had not bent the rules yet and they should not allow that to happen after five years.
Ms Robinson remarked that they were supposed to be lawmakers. Members were supposed to follow due process and uphold the Constitution. The deviation from that process was something they had to take up seriously. If they were to do what was right, they should continue with the final mandates before them. If they did not have all the mandates, that was certainly a problem.
Mr Botha proposed that the Committee should consider the final mandates on 10 February.
Mr Robertson seconded that proposal.
Mr Sogoni thought the concerns raised were very valid. The issue of time was key, as they could not continue postponing matters. They would still need to make amendments. He proposed that the Committee discuss the possible amendments and not defer this to the 10 February.
Mr Robertson disagreed. He felt that they had broken away from basics. They did not know what else would emerge from the outstanding mandates until 10 February. They would then have more information on the table and deal with it once and for all.
The Chairperson asked the legal advisor to prepare a one-page summary of the issues raised by the mandates and the submissions. The points had to be isolated. No motivation was needed. This would provide scope for discussion on 10 February. The Chairperson added that as the documents had not been circulated to the members, the discussion on the Money Bills Amendment Procedure and Related Matters Bill would also be deferred to 10 February 2009.
The meeting was adjourned.
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