ATC120119: Report on Oversight visit to the Kwazulu Natal, Gauteng & Limpopo legislatures from 17 – 19 January 2012, dated 25 April 2012

Private Members' Legislative Proposals and Special Petitions

REPORT OF THE COMMITTEE ON PRIVATE MEMBERS LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS ON ITS OVERSIGHT VISIT TO THE KWAZULU NATAL, GAUTENG AND LIMPOPO LEGISLATURES FROM 17 – 19 JANUARY 2012, dated 25 April 2012

REPORT OF THE COMMITTEE ON PRIVATE MEMBERS LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS ON ITS OVERSIGHT VISIT TO THE KWAZULU NATAL, GAUTENG AND LIMPOPO LEGISLATURES FROM 17 – 19 JANUARY 2012, dated 25 April 2012

 

The Committee on Private Members Legislative Proposals and Special Petitions (the Committee) undertook oversight visits to the Kwazulu -Natal , Gauteng and Limpopo Legislatures to ascertain the way in which the abovementioned legislatures formulated, drafted and implemented their respective provincial petitions acts.

 

The delegation from the Parliament of the Republic of South Africa comprised: The Honourable Mr Thobejane (ANC); Leader of Delegation, Honourable Ms F Khumalo (ANC), Honourable Ms N Mdaka (ANC), Honourable Ms P Kopane (DA)

 

The Hounourable Ms MK Kubayi (ANC) joined the delegation only in Gauteng Legislature

 

Parliamentary support staff comprised of the Committee Secretary Miss Ayanda Boss, Committee Assistant Nozuko Mnyovu and the Researcher Ms Sisanda Sipamla .

 

The Committee on Private Members Legislative Proposals and Special Petitions (the Committte ) having undertaken an oversight visit to KwaZulu Natal, Gauteng and Limpopo Legislatures reports as follows:

 

1. Background, objectives and purpose of the visit

 

In 2011, the Committee tabled a memorandum in terms of Rule 238(1), which sought permission from the National Assembly to introduce a bill dealing with the processing of special and general petitions at national level. The rationale of the proposed bill can be summarised as follows:

 

· To give effect to democratic accountability, including the right to petition Parliament, as a constitutional dimension of the principle of the rule of law;

· To provide a comprehensive and unified mechanism for lodging, processing and regulating petitions at national level, thereby enhancing public participation in the democratic processes of Parliament; and

· To address citizens’ concerns by creating a petitions process that will lead to enhanced service delivery and improved socioeconomic conditions.

 

The bill seeks to address grievances that citizens present to Parliament in the form of a petition. The bill will not override existing provincial legislation on petitions and does not introduce anything that is not in keeping with the provisions of the Constitution of the Republic of South Africa , 1996 and other laws in the Statute Book. It seeks furthermore to give practical effect to the democratic values and human dignity, equality and freedom, as set out in section 7(1) of the Constitution. In terms of section 7(2) of the Constitution, the state is obligated to respect, protect, promote and fulfil the rights in the Bill of Rights, including the right given in section 17 where it is stated that “everyone has the right…to present petitions”.

 

In view of the above, the committee undertook case studies of provincial legislatures that have Petitions Acts in place. The case studies culminated in oversight visits to the Kwazulu -Natal , Guateng and Limpopo Legislatures to hear first-hand the process undertaken by the Petitions Committees to draft and subsequently implement the respective Act/s.

 

In outlining the purpose of the visit, the Leader of the Delegation, Mr SG Thobejane noted the following:

 

· Currently, the Parliament of the Republic of South Africa does not have a Petitions Act, but is guided by the rules. Whilst a memorandum was forwarded to the National Assembly in 2011 to introduce a bill that dealt with the processing of special and general petitions at national level, it is also critical for the Committee to receive briefings from Legislatures that have since 2002 and 2003 working within the parameters of their Petitions Act/s.

· The rationale for the choice of the three provinces, Gauteng , Limpopo and Kwazulu -Natal , was because the Petitions Act is more actively applied, and where people are aware of the systems and how the processes unfolded.

 

2. The petitions process in Parliament of the Republic of South Africa

 

In each of the Provinces the Researcher, Ms S Sipamla briefed the members of the legislatures about the petitions processes in Parliament. She explained that submission of petitions to Parliament is one of the methods of public involvement in realising the Constitutional provisions. The NA and NCOP may receive petitions from any interested person(s) or institutions in terms of section 17 of the Constitution. The Constitution therefore stipulates that the NA and NCOP may receive petitions; however each House of Parliament has rules governing the procedure for the considerations petitions. Parliamentary rules define, make provision and differentiate between two types of petitions, namely special petitions (considered by the NA) and general petitions (considered by the NCOP).

 

3. The petitions process in KwaZulu-Natal, Gauteng and Limpopo Provincial Legislatures

 

Some provinces like Kwazulu -Natal , Gauteng , Limpopo , have already adopted legislation to regulate the processing of petitions. The Committee, through a phased oversight study visit approach, visited the Kwazulu -Natal , Gauteng and Limpopo to ascertain the way in which the above mentioned legislatures formulated their respective provincial petitions act.

 

Herein follows the provincial legislatures visited by the committee and the key points of discussions and the challenges raised by members during the meeting held with the legislatures:

 

3.1 KwaZulu-Natal Provincial Legislature

 

The delegation from Parliament met with the Public Participation and Petitions Committee who briefed them on the petitions process.

 

The petitions process in the Kwazulu -Natal provincial Legislature is governed by the Kwazulu -Natal Petitions Act (No. 4 of 2003), as well as the Kwazulu -Natal Petitions Regulations that apply to the Act. There is also a business process, together with checklists and templates.

 

The Act and regulations have been translated into the predominant languages spoken in the province – English, Afrikaans and Zulu – and the petitions template provided is also available in all three languages.

 

The regulations provide clear guidance on the definition and scope of a petition, but do not give a clear definition of the purpose of the petition. There is a Public Participation and Petitions Unit which is responsible for petitions within the province, and is staffed by 4 petitions officers. There is not evidence that any form of monitoring and evaluation is undertaken on petitions. To a large extent, KZN has a comprehensive legislative framework in place.

 

3.1.1 Findings and challenges

 

These are the key challenges faced by the Committee in KZN Legislature:
 

§ Slow processing of the petitions which can be attributed to the following :
- Lack of understanding from the government departments of the petitions
process
- Poor coordination between the legislature and the government departments.

- Lack of work systems between the legislature and the government department.

§ Although the Act stipulates clearly the mandate of the Committee somehow the Committee felt that the language use is vague.

§ There is no clarity as to where the petitions should be directed.

 

3.2 Gauteng Provincial Legislature

 

The delegation from Parliament met with the Petitions Standing Committee who briefed them on the petitions process.

 

The Gauteng Petitions Act, No 5 of 2002, provides for the general principles and procedures for the submission of a petition to the Gauteng Provincial Legislature and for the consideration of a petition by the standing committee of the Legislature assigned to deal with the petitions.

 

After a petition has been received, a registered letter of acknowledgement, including a reference number, is sent to the petitioner. A petition is registered and a petition file is opened by the administrative support service (employees of the Legislature assigned to implement the relevant provisions of the Act). If the subject matter of the petition falls outside the jurisdiction of the Legislature, the petitioner is advised of the relevant agency/institution to which the petition could be addressed.

 

A preliminary investigation is conducted by the Petitions and Public Participation Unit of the Legislature to establish the facts relating to the petition and to obtain an official response from the relevant person or institution. The response is then discussed with the petitioner. The petition, together with the response, is submitted to the Speaker for consideration and referral to the committee of the Legislature. The details of the committee assigned by the Speaker of the Legislature to consider the petition and information in regard to committee meetings are conveyed to the petitioner at least one week in advance of the meetings.

 

The aim of the committee is to consider the petition with a view to resolving it within two weeks of its referral by the Speaker. If the committee is able to resolve the petition, the decision of the committee is communicated to the petitioner. The committee may recommend to the Speaker to refer the petition to another committee of the Legislature, a member of the Executive Council, a municipal council in the province, a body supporting constitutional democracy established by Chapter 9 of the Constitution or the National Prosecuting Authority.

 

Municipalities felt that Parliament needs to consider drawing a national Petitions Act which will allow them more powers to carry out their mandate, as they felt that the legislatures have more powers and revenue to enable them to carry out their mandate and that in drafting a national Petitions Act that municipalities be given powers to subpoena individuals or stakeholders involved in efficiently resolving petitions timeously .

 

3.2.1 Findings and challenges

 

These are the findings by the Committee from the Parliament

 

§ There has been a good working relations between the Gauteng Provincial Legislature and the Municipalities despite the lack of powers faced by municipalities in so far as being able to subpoena defaulting stakeholders to account to them regarding lack of performance in service delivery issues faced by them.

 

These are the key challenges faced by the Committee in Gauteng Legislature:

 

§ The Committee felt that the NCOP committee is not assisting them at all with other petitions that need the NCOP intervention.

 

3.3 Limpopo Provincial Legislature

 

The delegation from Parliament met with Acting Secretary to the Legislature and the Committee Section Unit who briefed them on the petitions process.

 

The meeting was chaired by Mr. Mabelane who opened and apologised on behalf of the Committee Members who could not meet them due to back to school campaign. He welcomed them and requested the Acting Secretary Mr. Mothoa to do a formal welcome on behalf of the institution. He also expressed appreciation on behalf of the Limpopo legislature for the Committee from Parliament for having chosen to learn how Limpopo Provincial Legislature implements its petitions processes.

 

The petitions process in the Limpopo Legislature is governed by the Limpopo Petitions Act (No 4 of 2003). The Act, together with a petitions template has been condensed into an educational flyer, which provides clear details on the scope of a petition and the submission criteria.

 

The objectives of the Act are to provide for the right to submit a petition to the Provincial Legislature of Limpopo, to lay down the general principles and procedure for public participation in the process of government in the Province; to provide for the establishment and functions of the relevant Standing Committee of the Legislature assigned to deal with petitions; and to provide for matters connected therewith.

 

As part of the legislation, a Standing Committee on Petitions was established (Public Participation Petition). The Act does not categorically state that all proceedings are to be open to the public and this again allows for interpretation. Apart from dealing with petitions, the committee is required to present quarterly and annual reports, which focus specially on the efficiency and effectiveness of the petitions process within the province.

 

3.3.1 Findings and challenges

 

The only challenge that was raised by the legal advisor was:

 

§ The definition of “take any appropriate action” was the short coming of the Act as it was not specific and if maybe the National Act could be formulated, then the vagueness in the interpretation could be closed.

 

The delegation from Parliament could not engaged more as their counterparts were not available for discussions.

 

4. Observations

 

§ Unlike the above-mentioned legislatures, Parliament does not have an Act
detailing the procedures, turn around times and punitive provisions in relation
to petitions as is currently practiced by provincial legislatures in this regard.
 

§ The current NA Rules place an onus on a member of the public to find a
Member of Parliament to support and present their petition to Parliament.

 

§ No provisions are made to assist members of the public living in under
resourced rural areas assisting with utilisation of this public participation tool.
 

§ The current parliamentary rules pertaining to petitions have not been adapted
to Constitutional requirement relating to public participation. There needs to
be guidelines regarding relief that can be recommended in response to a
petition.
 

§ The Rules should stipulate timeframes for dealing with petitions in respect of
eliciting response from government departments, other bodies and informing
the petitioner of the progress in the matter.

 

§ The current Parliamentary Rules do not have punitive measures in place to
address non-complying bodies.

 

5. Recommendations

 

The Committee recommends the following:

 

§ The Committee intends holding a seminar where all provincial legislatures
working with the procedures and processes pertaining to public petitions to
look at all the various pieces of petitions legislation. A seminar is
necessitated by the need to incorporate which approach works best in
promulgating a national guiding Act versus policy and procedural guidelines
on petitions as is currently utilised by national parliament in this regard.
 

§ The Committee will embark upon international study tours in identifying best
practice petitions principles and procedures which will uniform the process
nationally for provincial legislatures.

 

§ All stakeholders should hereby have an opportunity to inform the process of
the handling of petitions mindful of individual province successes and
challenges, as opposed to passing national legislation informing the petitions
process without having consultatively engaged existing petitions officials
within the legislatures provincially.

 

§ The above recommendations are to be effect with due process using the
promulgation of the envisaged national petitions act to cater to the South
African population gaining confidence in public representatives and
Parliament as an institution for people.

 

§ The envisaged national petitions act will then act as a direct public
participation tool for the public and serve as an alternative means of having
their issues heard in a non-violent manner that seeks to uphold the
constitutional right to petition Parliament when all other remedies of resolving
grievances have been exhausted at municipal and legislative level.
 

 

 

Report to be considered.