Exparte: PUBLIC INVESTMENT COMMISSIONERS ("Consultant")

A. INTRODUCTION 1. This opinion concerns the Public Investment Corporation Bill ("the Bill"), and more particularly the submission made by COSATU dated 25 June 2004 that the Bill "was not tabled at NEDLAC for discussion nor within the PSCBC".

2. The Bill itself has been introduced in the National Assembly as a section 75 Bill, having been published in Government Gazette No 26383 of 20 May 2003. Section 75(1) of the Constitution of South Africa, Act 108 of 1996, as amended {"the Constitution") provides that when the National Assembly passes a Bill other than a Bill to which the procedure set out in section 74 (a Bill amending the Constitution) or 76 (ordinary Bills affecting Provinces) applies, the Bill must be referred to the National Council of Provinces and dealt with in accordance with the procedures set out in section 75(1)(a), (b) and (c).

3. COSATU in its submission states that the status of the Bill is unclear as to whether it is a Bill or draft Bill, and urges that this matter be resolved as a matter of urgency "since it would enable a greater degree of participation by stakeholders and civil society in general"

4. I assume for the purposes of this opinion that the Bill has been properly tabled before the National Assembly, and that it otherwise complies with the requirements of a Bill.

5. In the memorandum on the objects of the Bill, it is stated that: "The State Law Advisers and the National Treasury are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the

procedure set out in section 74 of section 76 of the Constitution applies".

6. The Bill (once passed into law) repeals the Public Investment Commissioners Act, 1984 (Act No 45 of 1984) and section 2(1) of the Bill establishes a juristic person, an institution outside the public service, to be known as the Public Investment Corporation. The Bill is designed to deal with the situation under the Public Investment Commissioners Act, 1984 which did not provide for the creation of any juristic body, and the activities of the commissioners were therefore curtailed as a result.

7. The Bill now seeks to provide that the Financial Advisory and Intermediary Services Act, 202 (Act No 37 of 2002, "the FAIS Act') regulates the activities of the commissioners. 8. COSATU is opposed to the Bill, both on procedural, and on substantive grounds. Procedurally. they object that the Bill/draft Bill has been tabled in Parliament in a "rushed and flawed manner", and that it was not tabled at NEDLAC, nor within the PSCBC. They blame the National Treasury for this. Substantively, they, inter alia, complain that the rationale for the establishment of the Public Investment Corporation Ltd is lacking; that "any initiative that would compromise or put at risk the pension funds of pension fund

members is opposed", the fact that the Bill provides that the Minister may in consultation with the Cabinet at any time dispose of all or any of the shares held by the State in the corporation; it is contrary to the government's commitment to the Growth and Development Strategy ("GDS"); the lack of clarity regarding the implications of the PIC merging with the Government Employees Pension Fund ("GEPF"); and, essentially that the corporatisation "is inextricably linked to the broader processes of privatisation and commercialisation of State assets".

9. This opinion is concerned only with the procedural issues relating to the tabling of the Bill in the National Assembly, and the question whether the Bill should have been tabled at NEDLAC for its consideration. B. NEDLAC

10. NEDLAC was established in terms of section 2(1) of the National Economic, Development and Labour Council Act 35 of 1994, on 5 May 1995.

11. The NEDLAC Council consists of members who represent organised business; members who represent organised labour; members who represent organisations of community and development interests-, and

members who represent the State, in terms of section 3(1) of thi N En LAC Act

12. Section 5 of the NEDLAC Act provides under the heading objects powers and functions of the Council, that it ma'

"(a) strive to promote the goals of economic growth, participation in economic decision-making and social equity;

(b) seek to reach consensus and conclude agreements on matters pertaining to social and economic policy;

(c) consider all proposed labour legislation relating to labour market policy before it is introduced in Parliament;

(d) consider all significant changes to social and economic policy before it is implemented or introduced in Parliament;

(e) encourage and promote the formulation of co- ordinated policy on social and economic matters"

13. Clause 4 of the NEDLAC Constitution mirrors section 5 of the NEDLAC Act save that clause 4.1(d) thereof provides that the Council shall "consider all significant changes to social and economic policy before it is implemented or, in the case of lenislation. before it is introduced into Parliament", (my underlining).

14. Presumably, COSATU's insistence that the Bill first be placed before NEDLAC is based on an interpretation of clause 4.1(d) of its constitution which provides that all significant changes to social and economic policy (contained in legislation) before it is introduced into Parliament must be considered by the Council. If this is indeed the case, then the insertion of the words "in the case of legislation" in clause 4.1 is clearly ultra vires section 5(1)(d) of the NEDLAC Act.

15. The words "consider" and "considered" have been interpreted by the Labour Appeal Court in the context of section 77(1 )(c) of the Labour Relations Act of 1995 (Act 66 of 1995, as amended "the LRA") to mean that: "... it [considered] /s only met once it becomes clear that any one or more of the parties at NEDLAC is not committed to resolve the matter"

(Business SA v COSATU and Another M9971 5 BLLR 511 (LAC) at 523).

16. Protest action is permitted under section 77 of the LRA in order to promote or defend the socio-economic interests of workers. Indeed, section 1 of the LRA provides that: "The purpose of [the LRA] is to advance economic development, social justice, labour peace and the democratisation of the workplace ...". C. SHOULD THE BILL BE CONSIDERED BY NEDLAC?

17. If one has regard to the NEDLAC Act and its constitution, then it is apparent that NEDLAC is governed by an Executive Council and in addition consists of four chambers dealing with public finance and monetary policy, trade and industry, labour market and development matters. Moreover, its members comprise organised business, organised labour, organisations of community and development interests, and the State.

18. It is also apparent when one has regard to the objects, powers and functions of the NEDLAC, that it is concerned primarily with "policy" issues relating to social and economic matters

19. There is a clear distinction between what is regarded as "policy", and what is a law or a legislative instrument. The most basic distinction between the two is that: "Policy determinations cannot override, amend or be in conflict with laws (including subordinate legislation). Otherwise the separation between Legislature and Executive will disappear". (Minister of Education v Harris 2001 (4) SA 1297 (CC) 1305A-D; Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) para [7]).

20. "Soc/o and economic policy" is defined in section 1 of the NEDLAC Act to include "financial, fiscal and monetary policy, socio- economic programmes, trade and industrial policy, reconstruction and development programmes and all aspects of labour market policy, including training and human resource development". It is a well-known fact, notorious enough to be accepted as a stated position that the State has for some time now (since the introduction of its GEAR policy which replaced its RDP policy) decided as a matter of policy to embark on a policy of the restructuring of State assets, alternatively the privatisation of State

assets. It is equally a well-known, and notorious, fact that COSATU is opposed to this. This emerges clearly from their submission on the Bill submitted to the Ad Hoc Committee of Finance on 25 June 2004.

21 It is therefore in this context that COSATU's opposition to the Bill must be understood, and be analysed.

22. There is no doubt in my opinion that the Bill would have an impact on the socio-economic conditions of workers in terms of the Public Investment Corporation's investment policy in the future, and moreover the fact that the Public Investment Corporation would be investing mainly the monies of the Government Employees Pension Fund ("GEPF"). The Bill therefore has socio-economic implications, and consequences.

23. It is arguable therefore that the Bill should have been presented to NEDLAC for its consideration.

24. It seems to me however that the Bill itself is an onward move from "policy", and that it has been properly tabled at the National Assembly. (I do not deal with COSATU's criticism that the Bill has been rushed before Parliament, and that little time has been made available to COSATU and civil society generally to comment properly on the Bill).

25. Narrowly construed, it would appear that it Is not necessary for the Bill to be "considered" by NEDLAC as contemplated in section 5(1)(a)-(e) of the NEDLAC Act as first, it is clearly not a "policy" statement, but rather a Bill placed before the National Assembly in terms of section 75 of the Constitution, and that second, based on the so-called maxim "expressio unius est exclusio alterius" (which means to express one thing is to exclude another), it is not necessary to place the Bill before the NEDLAC Council for its consideration.

This maxim reflects a form of reasoning that is widespread and important in the interpretation of statutes. The Canadians have adopted the term "implied exclusion", and according to this argument whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied.

Applied to section 5(1)(a)-(e) of the NEDLAC Act, the only reference to a consideration of legislation before it is introduced in Parliament, is that in section 5(1)(c) which provides that "all proposed labour legislation relating to labour market policy before it is introduced

in Parliament" must be considered by the NEDLAC Council. The argument goes therefore that were Parliament to have intended that all proposed legislation dealing with socio-economic matters be considered by NEDLAC "before it is introduced in Parliament", it would have stated so expressly in the NEDLAC Act.

26. Read together with the ability of trade unions to enforce, protect, or promote their members' socio-rights and/or interests in terms of section 77 of the LRA, it is perhaps understandable why Parliament did not see fit to require that all socio-economic proposed legislation be referred to the NEDLAC Council before it is introduced in Parliament. It is so, especially in this country, that many pieces of legislation indeed deal with, or impact on, the socio-economic interests of ordinary people, including workers. It would thus result in a potential legislative impasse or deadlock should virtually each and every piece of legislation be submitted to the NEDLAC Council for consideration, before it is introduced in Parliament. (Although of course the words "to consider" does not mean that the parties to the NEDLAC Council have to reach agreement or consensus).

27. The fact that the Bill has not been referred to NEDLAC for its consideration, clearly does not affect the status of the Bill or the fact that it has been placed before the National Assembly in accordance with spi-tinn 7Fi

D. CONCLUSION-

28. I conclude therefore that it is not necessary for the Bill to be submitte( to NEDLAC for its consideration in terms of section 5(1) of th( NEDLAC Act before it is introduced in Parliament, as first, it ha; already been introduced in Parliament in terms of section 75 of th( Constitution, and second a proper interpretation of section 5(1)(a)-(e points to the conclusion that it is not necessary for it first to b( considered by NEDLAC.

NORMAN ARENDSE SC CHAMBERS CAPE TOWN anc JOHANNESBURG on AI lr-I ICT onn/i