Public Consultations: Constitutional Court Rulings; Constitution Thirteenth Amendment Bill [B24-2007]: briefing

PROVINCIAL AND LOCAL GOVERNMENT & JUSTICE PORTFOLIO COMMITTEES
5 September 2007
PUBLIC CONSULTATIONS: CONSTITUTIONAL COURT RULINGS; CONSTITUTION THIRTEENTH AMENDMENT BILL: DEPARTMENT BRIEFING

Joint Chairpersons: Mr S Tsenoli (ANC) Adv C Johnson (ANC)

Documents handed out:
Legal Opinion: Public participation in the legislative process by Adv M Vassen (see Appendix)
Background on reasons for Constitution Thirteenth Amendment Bill: DPLG presentation
Judgment in Matatiele Municipality & Others v President of South Africa: February judgment, 2006(5) BCLR 622 (CC)
Judgment in Matatiele Municipality & Others v President of South Africa: August judgment, 2007(1) BCLR 47 (CC)
Judgment in Doctors for Life International v Speaker of National Assembly and others: 2006 (12) BCLR 1399 (CC)

NOT RECORDED

SUMMARY
The Committee, together with the Portfolio Committee on Justice, received a visual presentation on the background and reasons for the Constitution Thirteenth Amendment Bill, including maps showing the former and new demarcations. The difficulties arising from the ”islands” or “pockets” of municipalities in different provinces, had made ward representation and service delivery difficult. The new boundaries sought to achieve better cohesion, and to formally combine Matatiele and Maluti. Reversal of the boundary demarcations would have an effect on provincial boundaries and budgets. Members said difficulties in reversing institutional actions were not of themselves sufficient reason not to reverse, asked why the decision was taken in the first place to include Matatiele in Eastern Cape, raised the Trengrove Commission investigations, and queried what population numbers were affected, and how this would affect the equitable share.

The Department of Justice tabled and explained the decisions of the Constitutional Court on public participation in the legislative process, as contained in the Matatiele Municipality and Doctors for Life cases. The Court commented that participatory democracy was vital, 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 legislatures (national and provincial) should have discretion in deciding how best to facilitate public involvement. This would vary from case to case. There must be a reasonable opportunity for meaningful participation in the law making process, and the public must be given the ability to take advantage of that opportunity. Some examples were given by the Court. The dissenting judgments in the Doctors for Life case were noted. One dissenting judgment analysed Chapter 4 of the Constitution and concluded that it contained no Constitutional pre-requisite for public involvement in the passing of legislation, and that publication of the Bill in the Government Gazette, and a call for written submissions was the only constitutional requirement. The specific facts and reasons given in the August judgment in the Matatiele matter were discussed. It was noted that the integrated process now being followed for the current Bills did not require full duplication at all levels of public involvement, and that acceptance and consideration of written submissions by the NA would probably suffice. The references in the judgment to the right of people to reside in the province of their choice was clarified in its context.

The Department of Provincial and Local Government stressed that it did earnestly wish to hear what the public had to say, but mere sentiment would not be sufficient to justify a change of the institutional arrangements. Complaints about service delivery would best be answered with an institutional response of improving service delivery, rather than a political response of changing the boundary.

The Chairperson of the Justice Portfolio Committee summarised the process followed by the Committees in the public participation process. She noted that the Bill would have been published in the Government Gazette for comment, and the public had thirty days to submit written comments. These comments would be forwarded to the Committee, stakeholders and the Department. The Committee would scrutinise the submissions, and if they contained substantive issues, on which the Committee felt it was necessary to engage further, then the Committee would decide whom to call to give oral submissions, and would also decide if public hearings were necessary. All submissions would be taken into account when the Committee deliberated and made its decision on the Bill.

MINUTES
Background Information on Constitution Thirteenth Amendment Bill: Visual presentation by Department of Provincial and Local Government (DPLG)
Dr Petra Bouwer, Executive Manager, Compliance, DPLG, gave a presentation on the background reasons for the Constitution Twelfth and Thirteenth Amendment Bills. This visual depiction of the old and new demarcations indicated some of the challenges that Government had experienced in relation to Matatiele.

Dr Bouwer explained that although this technically was not a cross boundary municipality (with an area being intersected by a provincial boundary) there were nonetheless different boundaries in the area. The whole area was a contested area under the Interim Constitution, and provision was made for a referendum around the desirability of creating a tenth province. Deliberations and political negotiations had taken place. The referendum was in fact not held.

As displayed on maps of the former demarcations, Umzimvubu and Umzimkhulu municipalities had created an "island" of Eastern Cape, although they were parts of the Alfred Nzo District Municipality. He indicated where the old Matatiele had existed. Matatiele also had an "island" in the eastern Cape. The problem was that Matatiele was historically, economically and socially linked for many years to Maluti, and the urban and rural areas were in different provinces. Both Eastern Cape (EC) and Kwazulu Natal (KZN) provinces therefore had areas of their jurisdiction situated in the neighbouring province, and certain duties to carry out in those provinces.

The area was not large and there was a further problem therefore with the wards.

If this had been configured in the traditional way, DPLG would have to create cross boundary municipalities, and then would have to undo them. Any initiative by the provincial governments tended to benefit some areas but would not reach the remote areas in neighbouring provinces.

The comments and public submissions about the change of boundaries had largely come from those in the urbanised areas of Matatiele, which he indicated on the maps. After the change, the configuration included all areas, both rural and urban, and attempted to get better cohesion. The Municipal Demarcation Board had a role also, once the provincial boundaries were set, to indicate how the reconfigured municipalities would look. The newly configured Alfred Nzo municipality then included Umzimvubu and Umzimkhulu.

Dr Bouwer stressed that if there was to be reversion to the “former configuration” the question was then what areas would be returned - only the old Matatiele or also the newly configured areas. This decision would have an effect on provincial boundaries and budgets.

Discussion
Mr P Smith (IFP) said that he could recall no dispute about the two "islands" but rather the other areas. He asked if there was an assumption that Maluti must be included in Matatiele. The Municipal Demarcation Board seemed to have acknowledged that Maluti was part of Matatiele. He thought that this aspect would not be contested if there were to be reversion.

Mr Smith was not sure that the problems alluded to helped in making a policy decision. The mere fact that something had been done in a certain way, and that consequences would attach to undoing it, did not mean that it could not be done. He believed that the question of equitable share was not an issue. The formulas for equitable share could be adjusted, but it did not mean that the beneficiaries would be better or worse off. The other issue was that the integration process had gone quite far down the line, and new institutional arrangements had been in place since February 2006. Although it may be inconvenient to undo them, and this could cause some lack of cohesion, once again this did not mean it should not be done.

Mr Smith was concerned that none of the presentations so far had answered the question why the decision was taken to include Matatiele in Eastern Cape. He had never yet heard a full motivation as to why Maluti could not have been incorporated into Matatiele, and left where it was. The impression always was that the decision taken had nothing to do with rational merits, but was a trade-off between two provinces. If that was so, then it remained unsatisfactory. Sound reasons were needed why Matatiele and linked areas should fall in Eastern Cape rather than KZN.

Ms N Mahlawe (ANC) indicated that in 2004 there had been an investigation by the Department of Justice into these areas, to determine court jurisdictions. The report indicated that in fact there was no such separate area of Maluti. Maluti was a creation of the Transkei government, and effectively Maluti and Matatiele were the same area and could not be separated out. She was not making any comment upon the provincial boundary; it was up to the people of that area to decide, but would like to note that at the moment people fell under the jurisdiction of the courts in Pietermaritzburg and Port Shepstone.

Mr G Swathe (DA) indicated that the mapping presentation had been of assistance. People from Matatiele had not received a good explanation why they had been moved from Kwazulu Natal (KZN) but the slides had been useful. He was not sure whether the debate should also deal with Maluti. He believed that these types of maps would help in a proper understanding for the people of the areas.

Dr T Delport (DA) noted that consolidation would be desirable. He asked if there was clarity on whether people wanted to be part of KZN or Eastern Cape. There was as yet no final indication on this.

Mr J Jeffery (ANC) indicated that this area had a long history, including the Commission of Enquiry. It had been a political decision to exclude certain areas, where there were large populations of white farmers, from the Transkei. He asked Dr Bouwer to comment on the viability of the units in a provincial context. There must be consideration of administrative centres. KZN was the largest province population-wise. He asked what would be the impact on provincial legislatures, if Umzimkhulu were to be taken out, and what would be done about representation at provincial levels. He asked for population figures of the areas being taken out and incorporated, and whether this would involve amendments to the size of the legislatures. He agreed that although people must be consulted, this must be against the background and bigger picture of viability of provinces as viable units. He asked what would have happened to Alfred Nzo municipality if Matatiele had not been brought across. He wondered also, if Maluti had gone to KZN, whether the District Municipality would have ceased to exist, and areas would have been incorporated into Olivier Tambo municipality.

Mr J Sibanyone (ANC) asked for the impact on the Eastern Cape, in terms of the equitable share, if there was a move of all areas to KZN.

Dr Bouwer noted that a large number of people were moved from the provinces as a result of the new boundaries, and he though it was around 180 000 in Umzimkhulu. That would have had a significant effect on the equitable share. In the former Matatiele, the numbers were not that large, but together with Maluti this did give some kind of equilibrium. The viability of each province was taken into account. Groupings of the former Maluti areas had wished to remain in the Eastern Cape, and these comments were made at the time the Constitution Twelfth Amendment Act was processed. However, many of the comments came from the urbanised areas of Matatiele. He noted that if the whole of the reconfigured Matatiele were included in Sizonke, this would have created an extraordinarily large district and Alfred Nzo District Municipality would disappear. There would then be a debate as to where to include Umzimvubu.

Dr Bouwer noted that another point, which was being addressed by the holding of joint hearings, was where and when to engage, since both those provinces receiving and releasing must be consulted, yet a former province might no longer have jurisdiction over the areas it was engaging with.

Mr Smith thought that 180 000 people was around 2% of the population. He commented that this was not very large.

The Chairperson suggested that the Department should be given the opportunity to get further figures.

The Chairperson said that the question of consolidation of Maluti and Matatiele was not under dispute. That appeared to be settled, and no issues would be raised over what constituted the new municipality now. The legislative process had been re-started, and today was the deadline for the submissions on the Cross Boundary Bill. The submissions would be assessed at both the Justice and Provincial and Local Government Portfolio Committees, to decide whether public hearings should be held

Public Participation in the legislative process: Briefing by Department of Justice (DOJ)
Mr Johann Labuschagne, Director, DOJ, tabled the judgments in three cases: the two Constitutional Court judgments in the Matatiele Municipality v President of Republic of SA (the Matatiele cases) and the judgment in the Doctors for Life Incorporated v Speaker of the NA (DFL case). He noted that although the facts were completely different, the judgment in the DFL case was delivered the day before the judgment in the Matatiele judgment in August, and the latter referred to the DFL case, insofar as both had covered principles around public participation.

Mr Labuschange summarised that there were two judgments delivered in the Matatiele case. The Matatiele Municipality had challenged the Constitution Twelfth Amendment Bill and consequent provincial boundary changes. Its first argument was that parliament had usurped the functions of the Municipal Demarcation Board. Judgment on this point was delivered in February 2006, when the Court decided that parliament did have the power to change provincial boundaries, and only after this was done would the 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.

At this point Mr Labuschagne noted that the DFL judgment was delivered on 17 August, and 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 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 only held in three provinces, and the Court held that the NCOP had failed to comply with its constitutional 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.

Mr Tsenoli indicated that this issue had been in the public arena, and asked why the provinces had failed to hold public hearings.

Mr Smith responded that the provinces had said that they could not do so because of time constraints.

Ms F Chohan (ANC) indicated that the Doctors for Life case could be seen as the general framework of statements around the public process. The Constitution Twelfth Amendment, being a constitutional issue, was not quite on all fours, and she suggested that Mr Labuschagne be permitted to continue to state the other principles specific to the Matatiele matter. The question of what these pronouncements by the Constitutional Court meant for Parliament perhaps should be considered at a separate occasion.

Mr Labuschagne then turned to the August judgment in the Matatiele case, in which, as previously indicated, the Court referred back to the DFL judgment. The particular submissions by the Matatiele Municipality concerned the obligation or otherwise to hold public hearings. It was found that KZN legislature failed altogether to have a public participation process. This was held not to be reasonable. The Government had argued that public participation in fact implied no more than "creation of space" for the public involvement. The Court felt that this was not enough, and that steps should have been taken to hear the public.

Ms Zuraya Adhikari, Parliamentary Legal Advisor, added that in the Doctors For Life case weight was attached also to the fact that six provinces had accepted that there was a need to hold public hearings, yet only three had done so. The need was not in dispute, but no action was taken.

Discussion
Imam G Solomons (ANC) fully understood what Mr Labuschagne had said. However, he noted that the processes had been set in motion and the new boundaries had been operative for some months. He asked what exactly would be covered in these public consultations, as surely the issues would have been canvassed at the time of the Constitution Twelfth Amendment Bill. He asked if the new consultations were about reversal of the process.

Mr Smith noted that reference had been made to lack of time to hold public hearings, because of the particular cycles of the NCOP. The Court had found this reason insufficient, and had noted that public participation processes should, if necessary, override the time frames set.

Ms Mahlawe noted that there was full participation - even the President had attended the hearings in some areas, and she noted also that the Trengove Commission findings were taken into account.

Ms Chohan said that Court did refer to the Trengove Commission report in the first judgment. The difficulty was that it seemed that the Trengove Commission consisted of only five people, and although it did recommend the move of Matatiele to Eastern Cape, there was a close split in the Commission’s findings, That was no longer the issue, as the Constitution Twelfth Amendment Bill had been informed by what had gone before. The Matatiele Mass Action Campaign submitted that the decision to change was uninformed, unreasonable and irrational. The Court discussed whether there was a purpose to the legislation that was reasonable and rational. This was mooted as a possible challenge in the first case, but was no longer taken as an issue in the second. The Trengove decision went to the heart of the rationality issue.

Ms Chohan wanted to make some points on public participation, and what was said about the Constitutional requirements. The main discussion was whether public participation was or was not part of the law making process. The minority judgment of the three judges used this as their central point of departure.

Chapter 4 of the Constitution set out general principles relating to the NA and Parliament, including matters such as privilege, internal arrangements, evidence, and participation by the executive. One of those named issues was "public access to and involvement in parliament" The Constitution, under Chapter 4, did not use the words “public participation”. The case of King v Fidelity Fund, a Supreme Court of Appeal case cited in the Matatiele case, contained statements by the Court in general terms about what “public…involvement” meant. This case said that “public....involvement” was explaining and making people understand what had been done in the lawmaking process. It was an elusive concept.

Chapter 4, having given this general statement, then contained clauses dealing with the national legislative process. Those clauses must be complied with in passing the legislation. Nowhere did these clauses speak of “public participation”. The question therefore was whether public participation was imputed in the law making process. The majority judgment held that it was, because they had read the first part of Chapter 4 into the later part. The minority judges took the stricter view, and the remarks of Judge van der Westhuizen on page 80 of the judgment were important. He suggested that sections 74(5) and (6) provided for public involvement in the process of amending the Constitution, and that the Constitution was therefore giving specific guidelines. A Bill would be gazetted and the public could submit written comments to the Speaker and that these comments must be tabled in both houses. This, he said, was the only Constitutional requirement for consultation. This did not mean that the Committees could not, in addition, call for comments and accept written submissions, but it was his view that they were not obliged to do so.

Ms Chohan then said it was necessary to look to the mechanics. The judges had not commented on the procedure in the NA and NCOP, but concentrated on the provincial legislatures. The onus on the provincial legislatures was higher because they had the right of veto. In the August judgment, p 644, it was noted that in the process of considering and approving proposed constitutional amendments, a provincial legislature, as a bare minimum, must provide the opportunity for oral or written commentary on the proposed legislation in this process, under section 74(8). She pointed out that the Eastern Cape and KZN legislatures were intending to hold oral hearings, and she believed that this would meet the criteria. The NA had taken written submissions and she believed this was entirely on all fours with the judgment, given the procedure.

Dr Bouwer noted that there were lessons to be learned from these judgments. There were two main issues. Parliament must create its own reality. If it decided to have public hearings in the provinces, but that did not happen, they would clearly be in breach. In respect of the NA, there was a host of precedents applicable to the NA that provided sufficient basis for written comments to be regarded as reasonable. He pointed out that another aspect that was often forgotten was Rule 41 notices. Although done by the Executive it was part of the legislative process, to give notice to the public of the Bill. When a bill was published, then formal comments must come to Parliament. When a specific process was set out, then Parliament must decide how far to go. In an integrated process involving NA and NCOP (which had to get a mandate from 6 provinces, plus the veto principle) he was sure that the acceptance of written submissions by the NA would probably be enough.

Dr Bouwer said that there was disquiet from some quarters whether the public consultations would be taken seriously. He stressed that DPLG earnestly did wish to hear what the public had to say. However, they must be able to produce more than mere sentiment as the reason to move areas from one province to another. If the challenges raised were all around institutional issues of service delivery, then they would best be answered by institutional responses. If there were no hospital in Matatiele, it made little difference whether Matatiele was in Eastern Cape or KZN – the correct response would be to ensure that a hospital was built.

Mr Smith asked what exactly the rules of Parliament were. The Committee heard yesterday that there was publication, but not in the local newspapers, and he wondered if this would be sufficient. He asked if there would be real engagement and a real testing of opinion, and wondered whether a process such as a referendum conducted by the Independent Electoral Commission, would not be advantageous.

Ms Chohan said that the question of a referendum had been discussed. Although the process could be recognised, in reality they were premature at this stage of the country’s history. For instance, a referendum in Oranje would doubtless result in a purely white province, which was clearly not in the best interests of the country. There had been political conflicts in the region. The best solution would be to tie together political, service delivery and economic considerations. The notion that the affected provinces could have a veto, served to protect political boundaries and terrain. It spoke to issues such as budgets and population figures that would relate to finance. There were broader issues than the sentiment of the people, and this was what made it impossible simply to count heads. She noted that there was possibly now greater support for Matatiele falling in the Eastern Cape because it had seen implementation of service delivery. Certainly political aspects could not be ignored, but it was notable that none of the submissions spoke to hard-core political issues, except by mentioning that a number of people supported the move. She gave an example of Province A being led by Party X and Province B being led by Party Y, and said that political considerations would certainly apply here. Access to facilities was a different matter and standard provisions of service must be addressed.

Adv Johnson added that the Matatiele Mass Action group had commented that people had a right to live in the province of their choice. She interpreted this slightly differently, and believed this must mean that a person could not be denied freedom of movement, but not that they could insist that Bloemfontein, for example, must fall within Gauteng Province.

Dr Bouwer responded that the second judgment had raised the right to live in a province, but it was discussed specifically in the context of an introduction to the level and extent of public engagements. There was not, to his mind, a suggestion that people would have the right to live in the province they wanted. The context of this was that the Court said that in an issue that touched on people’s position – such as the right to freedom of movement – then there must be a certain level of public engagement. The Court had reiterated that parliament had the right to decide where provincial boundaries should be.

Mr S Mshudulu (ANC) believed that there must be understanding given to the people of what the government wanted to achieve.

Imam Solomons had no doubt that the actions in respect of the boundaries were legitimate. However, he asked what exactly would be put to the people in the public consultation process. He agreed they must have realistic, not emotional, reasons.

Mr Smith asked again what the purpose of the consultation was. He asked if it would facilitate a decision by Parliament, whether there was obligation to take into consideration the views expressed and to have good reasons for not going a certain route. If the obligation were merely to listen, that would be futile. Parliament must surely apply its mind to the comments. He also sought comments on the significance of the “integrated” process.

Dr Bouwer responded that Mr Smith had not been at previous meetings, and he would summarise the issues briefly. The integrated process meant that there should not be duplication of the fullest extent of public engagement throughout the whole process as this would be a waste of resources and money. Thus the level of engagement at NA level might be different from that of the provincial legislatures. In respect of the decision, he noted that the DPLG was responding to concerns, but whether there was a specific list of all the reasons why the decision on the boundaries was taken, he did not know – he would not be privy to such information. He added that the Constitutional Court called for rectification of the defect, but the only guideline given was that the legislation must be processed afresh. There was no guidance as to whether it must also encompass a complete review of all decisions. Institutional issues posed a challenge, as a whole range of institutional arrangements were put in place between March and August 2006. Cabinet had already instructed DPLG to prepare a White Paper on provincial boundaries. It made sense to follow a minimalist approach if possible, correct the defect, keep the institutional matters in place, and attend to the whole matter once the White Paper was finalised. Members must bear in mind also that the provincial legislatures might take a particular view after the public engagement. The National Assembly did not have the final say.

The Chairperson reminded the Members that the overriding objective of doing away with cross boundary municipalities was to improve and accelerate service delivery. The current service delivery conditions were not permanent, and should improve every day. He agreed that it was necessary to make people aware that the boundaries were done away with because they were hindering service delivery.

Ms Chohan wanted to place on record that this Committee did not necessarily have to go to Matatiele, because it was realised that this areas was already being covered by the provincial legislatures.

She summarised for Members and the media the processes, so that they were clearly understood. She noted that the Justice Committee, in dealing with such Bills, would issue a press statement calling for public submissions. Whatever comments had been received as a result of the publication of the Bill in the Government Gazette would also be sent to the Committee. The stakeholders and others would receive the submissions. These written submissions from organisations and individuals would be scrutinised to see whether they contained substantive issues of import, on which the Committee would want to engage further. If so, the Committee would then decide who to call, and also would decide whether there was a necessity for public hearings. Many of the submissions received in this matter did not say anything of substance other than " I do not want to be in this province". The submission from the World Council of Churches had not gone either way, but had proposed certain guidelines be discussed. The Matatiele Mass Action campaign had reiterated issues already raised in the cases being discussed today, including the public participation, the rationality argument, and the usurpation of the Demarcation Board function. The two Committees had now called for the public participation, and, depending upon the submissions received, would therefore need to decide whether there was a necessity to go further to oral hearings, before considering all submissions in coming to a decision.

The meeting was adjourned.

Appendix:

Legal Opinion

From: LEGAL ADVISER: Adv M R Vassen

To: Acting Chief legal Adviser [Adv lL Matyolo-Dube)

14 September 2006

Public participation in the legislative process as outlined by the Constitutional Court in its judgments in the Doctors for Life International and Matatiele matters

Parliamentary Legal Services Office

MEMORANDUM

1. In light of the recent Constitutional Court judgments in Doctors for Life International v Speaker of the National Assembly and Others (DLl) and the Matatiele Municipality and Others v President of the Republic of South Africa and Others (Matatiele), decided on 17 and 18 August 2006 respectively, you requested that I provide a legal opinion that delineates the requirements for adequate public participation in the legislative process. You specifically requested that I consider the four-week legislative cycle in the NCOP as well as the fast-tacking of Bills in light of the above judgments.

What constitutes adequate public participation in the legislative process

2. Sections 59(1 )(a), 72(1 )(a) and 118(1 )(a) of the Constitution respectively require that the National Assembly (NA), the National Council of Provinces (NCDP) and provincial legislatures must facilitate public involvement in the legislative process.

3. In the DLI case the applicant contended that these provisions required that public hearings must be held in respect of all legislation under consideration by a legislature whether at the national or provincial level. In the alternative they argued that a legislature should hold public hearings whenever there is evidence that a Bill under consideration is controversial. By contrast, while Parliament and the provincial legislatures conceded that the public involvement provisions required public participation in the legislative process, they contended that the abovementioned provisions merely required some opportunity to make either written or oral submissions on the legislation under consideration (DLI, para 76).

4. Ngcobo J, writing for the majority of the Court in both DLI and Matatiele, built on the dicta in King and Others v Attorneys Fidelity Fund Board of Control and Another, 2006 (1) SA 474 (SCA), which held that while the Constitution imposes on Parliament the obligation to facilitate public involvement in its processes, the Constitution sets a base standard, but then leaves Parliament significant leeway in fulfilling if' ( at para 22).

5. As such, in both DLI and Matatiete the Court held that Parliament and the provincial legislatures had a broad discretion to determine how best to fulfill its obligations in a given case, provided that it is reasonable to do so. The Court indicated that what is required will vary from case to case but "what ultimately is of concern is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say" (DLI para 125).

6. Thus in the DLI case it was held that the failure to facilitate public involvement in the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act was unreasonable as they generated considerable public interest. In this regard by not facilitating public participation, the NCDP did not comply with its obligations as stipulated in section 72(1)(a). By contrast, despite the fact that no written representations were called for and no public hearings were considered in the passing of the Dental Technicians Amendment Act, this was not regarded as unreasonable as when the Bill was first published for public comment, it did not generate any public interest. Thus having regard to this and the nature of the Bill, Ngcobo J held that the NCOP did not breach its duty to facilitate public involvement.

7. In both DLI and Matatiete the Court held that there are at-least two aspects of the duty to facilitate public participation - the first being the duty to provide meaningful opportunities for public participation in the law-making process, while the second being the duty to take measures to ensure that people have the ability to take advantage of the opportunities provided. In this sense, depending on the circumstances, public involvement may be seen as "a continuum that ranges from providing information and building awareness, to partnering in decision-making" (DLI, para 128 and Matatiele, para 54).

8. Ngcobo J however also held that as our legacy of racial discrimination led to gross inequalities, merely to allow public participation in the law-making process was in the prevailing circumstances, not enough. As such he was also of the view that positive measures need to be taken by the respective legislatures to facilitate public participation (DLI. para 130). In this regard the Court pointed out that Parliament and the provincial legislatures must provide notice of and information about the legislation under consideration as well as the opportunities for participation that are available. Ngcobo J also indicated that the NCOP and provincial legislatures should create conditions that are conducive to the effective exercise of the right to participate in the law-making process. He pointed out that this can be realised in various ways, including through road shows, regional workshops, radio programmes and publications aimed at educating and informing the public about ways to influence Parliament (DLI, paras 131-2).

9. In summary Parliament and the provincial legislatures have a broad discretion to determine how best to fulfill their constitutional obligation to facilitate public involvement in a given case, provided that they act reasonably. However the duty to facilitate public involvement also generally requires Parliament and the provincial legislatures to provide citizens with a meaningful opportunity to be heard in the making of the laws:

10. Furthermore, in determining whether Parliament has complied with its duty to facilitate public participation in any particular case, the Court will consider what Parliament has done in that case. The question will be whether what Parliament has done is reasonable in all the circumstances. Factors relevant to determining reasonableness would include the Rules, if any, adopted by Parliament to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently. Ultimately, what Parliament must determine in each case is what methods of facilitating public participation would be appropriate.

The four-week legislative cycle in the NCOP and public participation in light of Doctors for Life International and Matatiele

11. Section 42(4) of the Constitution defines the role of the NCOP as representing "the provinces to ensure that provincial interests are

taken into account in the national sphere of government. It does this mainly by participation in the national legislative process and by providing a national forum for the public consideration of issues affecting the provinces." In Matatiele, Ngcobo J indicated that the function of the NCOP is thus to ensure that national government is responsive to provincial interests while simultaneously engaging the provinces and provincial legislatures in the consideration of national policy. From this perspective, he is of the view that the NCOP plays a pivotal role "as a linking mechanism that acts simultaneously to involve the provinces in national purposes and to ensure the responsiveness of national government to provincial interests" (Matatiele, para 79).

12.ln DLI, the Court expressed the view that there are both functional and practical considerations that weigh in favour of holding public hearings in the provinces rather than at the seat of the NCOP in Cape Town. It was pointed out that ordinary people may be unable to attend hearings of the NCOP conducted in Cape Town due to financial and other constraints and as such holding hearings in the provinces "has great value for the provincial community; it provides its members with the opportunity to be present when laws are made and to take part in the law-making process" (DLI, 161).

13.ln DLI it was pointed out by the Court in respect-to the Traditional Health Practitioner's Act that while at least 6 provinces believed that public hearings on the Bill were necessary, only 3 provincial legislatures actually held hearings (DLI. para 169). The Gauteng Legislature indicated that it did not submit a negotiating mandate on the THP Bill because it felt that the time afforded to it by the NCOP was too short to enable it to study the Bill and consult with relevant stakeholders (DLI, para 170). Similarly the Eastern Cape and KwaZulu-Natallegislatures wished to hold public hearings but could not do so because of insufficient time. This was conveyed to the NCOP through their permanent delegates. In addition, the Eastern Cape requested an extension of time to enable it to conduct proper hearings, but no extension was granted (DLI. para 172). Thus the Court expressed the view that despite the NCOP's decision that public hearings should be held on the Bill, it "did not create the conditions that would have enabled the provinces to hold public hearings. (DLI para 172). Similar concerns were noted in respect of the Choice on Termination of Pregnancy Amendment Act.

14. Murray and Nijzink in Building Representative Democracy: South Africa's Legislatures and the Constitution (2002, at p 53) indicated that as a matter of practice the NCOP legislative cycle is generally four weeks long. with time allocated for deliberations in provincial legislatures and time allocated to discussion and negotiation in the NCOP in Cape Town. While they indicated that there is strong support for the current NCOP 4-week cycle, they also point out that there are a number of widely shared concerns about the way in which the system is implemented. This includes that:

·         cycles are too short for most pieces of legislation;

·         cycles are often changed or abandoned;

·         the abolition of a clear 'provincial week' in the cycle limits the ability of permanent delegates to liaise properly with their provincial legislatures, and that

·         cycles are not properly co-ordinated with provincial programmes.

15. Notwithstanding the above-mentioned concerns, in 2006 the NCOP Rules Committee amended rule 196 by the insertion of rule 196A, which inter alia provides that while all section 76 Bills should be dealt with in a manner that will ensure that provinces have sufficient time to consider a Bill, depending on the substance of the Bill, the period may not exceed 4 weeks. However in the event that the substance of the Bill requires sufficient time beyond the 4 week period, the rule also provides that the cycle may be extended not exceeding 6 weeks (Report of the Subcommittee on Review of the NCOP Rules, dated 12 June 2006 - this rule has not however been adopted by the House as yet). This codification of the practice into the Rules may stifle opportunities for public participation if it does not coincide with provincial programmes.

16.ln the DU case it was pointed that the NCOP, when it makes rules and orders, it must do so with due regard to the representative and participatory elements in our democracy, accountability, transparency and public involvement. (DLI, para 136). White Murray and Nijzink indicate that in many instances the inefficiencies in provincial timetabling suggest that problems with regard to the length of the cycle are often t-l]e result of bad provincial planning rather than the four-week cycle itself, in the light the DLI and Matatiele cases, the NCOP may want to reconsider the adoption of Rule 169A which in effect codifies the 4 week cycles.

Fast-tracking of Bills and public participation

17. The fast-tracking of a Bill is a process whereby a Joint or House rule or rules are dispensed with in order to expedite the prompt passage of an urgent Bill through Parliament and is regulated in terms of rule 216 of the Joint Rules. As such it is regarded as an exceptional procedure and for this reason it contains a number of in-built safeguards.

18.ln terms of rule 216, in the case of a Bill initiated by the Executive, a request for fast-tracking may only be made by the Leader of Government Business. Furthermore, the decision to fast-track may only be made by the Joint Programming Committee, or its subcommittee when both the Speaker and the Chairperson of the NCOP are present. This decision must also be ratified by both Houses on their first sitting day after such a decision. In addition, a request for fast-tracking must be well-motivated. (National Assembly Guide to Procedure, 2004, p 145).

19.1n June 2000 the Joint Programming Committee adopted guidelines for deciding whether a Bill should be fast-tracked. Murray and Nijzick (p 53) indicate that whereas in the past, fast-tracking was problematic, since the adoption of the guidelines there has been progress as the interests of provinces must now be properly considered in the planning of programmes. For example, where the Leader of Government Business (LOGB) requests that a Bill be fast-tracked, she or he is required to show that the prompt passage of the Bill is a matter of urgency and must specify why fast-tracking is necessary under the circumstances; whether a delay in the passage of the Bill will seriously affect the interests of the state or the general public, and how those interests will be affected (National Assembly Guide to Procedure, p 146).

20. Of further relevance to fast-tracking, the Court pointed out that the saving of money and time in itself does not justify inadequate opportunities for public involvement. (para 142). The Court also cautioned that when it comes to establishing legislative timetables, "the temptation to cut down on public involvement must be resisted. as such problems encountered in speeding up a sluggish timetable would not ordinarily constitute a basis for inferring that inroads into the appropriate degree of public involvement are reasonable. In the words of the Court, "the timetable must be subordinated to the rights guaranteed in the Constitution. and not the rights to the timetable" (DLI, para 194).

Summary

21.ln summary, in relation to what constitutes public participation, the Court held that legislatures have a broad discretion to determine how best to fulfill the obligation to facilitate public involvement in a given case provided that they act reasonably. This generally requires the legislatures to provide citizens with a meaningful opportunity to be heard in the making of the laws. The Court will consider whether what Parliament has done is reasonable in all the circumstances. Factors relevant to determining reasonableness include the Rules adopted to facilitate public participation, the nature of the legislation under consideration, and whether the legislation needed to be enacted urgently. Ultimately, what Parliament must determine in each case is what methods of facilitating public participation would be appropriate.

22. In respect of the four-week cycles, it is advisable that a more flexible approach be considered that will allow a Bill that elicits sufficient public interest to be before a provincial legislature in accordance with what is considered to be reasonable. In this regard the Rules should not unnecessarily restrict pubic participation.

23. In so far as fast-tracking is concerned, provided that' it is reasonable to do so in relation to the subject matter that provincial interests are adequately taken into account and that and that it conformed to the abovementioned guidelines, it would not be unconstitutional to fast-track a Bill.

'Adv M R Vassen: Parliamentary Legal Adviser