Draft Legislation on Provincial Mandates: briefing

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
8 August 2006
DRAFT LEGISLATION ON PROVINCIAL MANDATES: BRIEFING

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
Mandating Procedures of Provinces Bill, 2006

SUMMARY
The Committee was briefed on the draft Mandating Procedures of Provinces Bill and reported that the Bill provided for a uniform procedures in terms of which provincial legislatures conferred authority on their delegates to cast votes in terms of section 65(2) of the Constitution. Until now each Provincial legislature had determined its own procedure. He took the Committee through the Bill. Members asked why the Committee had not been consulted in the initial stages of the drafting, and for clarification on the name of the Bill, and the procedures for mandates and designations as head of delegations. Voting by whips, and the distinction between voting and final mandates were also discussed. Certain requirements were considered impractical. Adv Momoti assured members that they could make amendments before the Bill would be submitted for public comment. He emphasised that the legislation would not override the rules already in place in provinces but would allow uniformity when matters reached the NCOP.

MINUTES
Advocate Bafu Momoti (Senior Procedural Advisor to the NCOP), who had headed the technical team involved in drafting the Mandating Procedures of Provinces Bill, attended the meeting to brief the Committee on the objects and clauses of the Bill, how the Committee should deal with it, whether public hearings and public submissions would be necessary and whether the Committee would need input from stakeholders who might have an interest in the Bill.

Adv Momoti explained that in 2004 the Chairperson of the NCOP had requested the procedural advisors to investigate drafting new legislation related to provincial mandating procedures. Section 65(2) of the Constitution provided that an Act of Parliament enacted in terms of section 76(1) or (2) should provide for uniform procedures for provincial legislatures conferring authority on their delegates to vote under Section 65(2). Until the Act referred to had been enacted each provincial legislature could determine its own procedure. It was now considered desirable to try to reach uniformity.

It was further felt that since the legislation involved the provinces it would be better if it were introduced in the NCOP, in terms of Section 76 (2), rather than being drafted by the Executive and being introduced in the National Assembly under Section 76(1).

After the Chairperson of the NCOP informed the Speakers in the provincial legislatures of his intention, a workshop with the provincial legal and procedural advisors had been convened. Adv Mamoti headed the technical team involved in the subsequent drafting of the Bill.

Adv Mamoti reported that in all three workshops were held, and the reports on the workshops were submitted to the Chairperson of the NCOP, who then invited the provincial Speakers to a further workshop to discuss the implications of the legislation.  Staff from all levels of the provincial legislatures and the Department of Justice had been fully involved in the process from the start.

Adv Momoti reminded the Committee that the NCOP could initiate legislation, and it was usual for a Committee to agree on the concept and first drafts of legislation, before seeking approval from the Council. In this case the Bill was conceptualised at the office of the NCOP Chairperson. However that office could not introduce the Bill, and this was the responsibility of the Committee. Members had not been fully involved from the start and this meeting was intended to familiarise members with the Bill and give them the opportunity to make inputs. 

Adv Momoti confirmed that copies of the Bill had already been sent to the Speakers of the provincial legislatures, and that the draft bill to be introduced in Parliament would have to be gazetted for public comment.

Discussion
The Chairperson asked why the name of the Bill did not appear clearly on the draft version.

Adv Momoti explained that because the Bill was not yet finalised the title was contained in the Memorandum. The provisional short title was ‘Mandating Procedures of Provinces Bill, 2006’.

The Chairperson commented that even though the Bill was still in the initial drafting stage the name of the Bill should be more visible.

Mr Z Ntuli (ANC, KwaZulu Natal) asked whether there was a particular order governing the introduction of the Bill and its publication in the Government Gazette.

Adv Momoti clarified that once a draft Bill was agreed upon it was gazetted for public comment for a period of 30 days. Once public comments had been considered the process of introduction commenced, under Rule 186 of the Joint Rules. The main reason for briefing the Committee at this stage was to afford an opportunity to familiarise itself with the Bill, as the Committee would “own” the Bill once it was published in the Government Gazette.

Mr A Moseki (ANC, North West) applauded the initiative, which he felt would eradicate many of the problems that had been experienced with provincial mandates. He asked why the Committee had not been involved from inception, particularly since provincial legislatures had been briefed much earlier in the process.

Adv Momoti explained that his office was involved in the initial phase aimed at identifying problem areas. At the time that the invitation had been extended to provincial Speakers there was only a working document. The Bill was still a rough document that had no legal standing; it could be regarded as merely a guideline containing the basic principles on mandates. The Committee was now asked to comment, and to make changes that would refine the document to a Draft Bill. Once the Bill was introduced as a draft in terms of Joint Rule 159, it would be formally sent to provincial legislatures, who could then formally start engaging with it.

Mr Moseki commented that the NCOP was strategically placed to take initiative and introduce the Bill. He wondered whether the Bill would be an NCOP Bill only or whether it would be a joint Bill from the NCOP and NA. He feared that the Portfolio Committee on Justice and Constitutional Affairs might object to not having been involved in the process.
 
Adv Momoti explained that the Bill would be introduced by the NCOP and only thereafter referred to the NA. Ultimately it would be a Bill of Parliament since both houses would have been involved.

Mr J Le Roux (DA, Eastern Cape) asked whether the provinces had expressed any reservations when they had been consulted on the Bill, and whether they were concerned about their own procedures being regulated. 

Adv Momoti explained that the Bill did not prescribe what provincial legislatures should do internally. It was only concerned with the stage when matters came to the NCOP. However the procedures that had been followed should be constitutionally correct and legislatures must have complied with their own rules.

Mr Le Roux believed that there should be no ‘interference’ with the provinces. He pointed out that provinces already had their own rules, which they might (although they should not) disregard already. He cautioned that any new rules might also be disregarded. He wondered how the new legislation would improve matters.

Adv Momoti referred members to Item 21(5) of Schedule 6 of the Constitution. He said that provinces were still invoking this provision by forming their own rules. The legislation aimed to ensure that provinces observed their internal, constitutionally correct arrangements, and to fill in any gaps.  The document before the Committee constituted a broad framework of what was intended.

Mr A Manyosi (ANC, Eastern Cape) suggested that, since the Committee had just received the information, members should engage with the proposed legislation, discuss it with their provinces and then proceed.

The Chairperson agreed and requested Adv Momoti to continue with his clause-by-clause analysis of the legislation.

Short title, preamble and content
Mr S Shiceka (ANC Gauteng) said that the Bill was a translation of policy. He felt that in order for readers to know what the intention of the Bill was its title should appear on the front page.

Adv Momoti said that since the legislation was still in draft form the advisors did not think it necessary to have the title on the front page. They had not anticipated that the Committee would have a problem with the omission. He confirmed that the title would be clearly stated on the cover of the revised draft.

Chapter 1: Definitions and Application
Mr Shiceka commented that it was not clear why the legislative mandate regarding issues contemplated in Section 231(2) of the Constitution -which related to international agreements - had been included in Clause 1(e). The national government did not have to consult the provinces when it entered into agreements with other countries. He agreed that provinces had to understand what issues were involved in international agreements but doubted the practicalities of requiring mandates from the provinces before such agreements were signed. He suggested that this requirement be deleted from the Bill. He commented that the system worked, and he did not think that any province would question it.

Mr Ntuli added that this aspect had been dealt with in a workshop, when it had been decided that provinces would be informed of international agreements so they could familiarise themselves with the content.

Mr Moseki agreed that it was important to keep all sectors of the Government informed of activities, even if no mandate was required from them. He suggested that the inclusion of this provision while the legislation was still in the draft stages might create obstacles, and suggested it be revisited again later.

Mr Manyosi pointed out the premier was the leader of the delegation in the NCOP, and must take responsibility for their provinces.

Mr Ntuli responded that the premier was part of the executive, and parliament the legislature. Although the Constitution stated that the premier was the leader of the delegation, members of Parliament performed oversight duties, and it was open to challenge that the premier should be considered as the head of the delegation.

Adv Momoti explained that the Rules Committee of the NCOP had resolved that this provision should be deleted, as it felt there was a problem. It was included in the draft specifically for consideration by the Committee.

The Chairperson wondered why Section 75 was not included in this Chapter.

Adv Momoti responded that the Bill intended to deal with voting by the provinces and Section 75 was thus not applicable.

The Chairperson was concerned that there was still confusion on NCOP voting during joint sittings of the House. He wondered how this problem would be approached.

Adv Momoti said that it was not anticipated that the legislation would affect joint sittings. The focus was on Section 76 and any other national legislation that required a decision from the NCOP. However, issues arising from joint sittings could be considered.

The Chairperson commented that a mediation committee, in terms of Section 78 of the Constitution, included representatives from the NCOP and the NA, and he asked how the draft Bill would impact on such committees.

Adv Momoti explained that the rules of the NA applied to the NA mediation committee representatives, while the NCOP rules would apply to the NCOP representatives. Each house dealt with legislation in a different manner.

The Chairperson said that he would raise this question again at a later stage.

Chapter 2: Procedures in respect of mandates and designation as head of delegation
Mr Ntuli pointed out that mandates were sometimes signed by the Chairperson of the Committee instead of the Speaker presiding in the legislature. He suggested that Clause 3 (c) should be made clearer.

Mr Shiceka felt that it was necessary to decide, on principle, whether to have synchronism or flexibility. The final mandate should emanate from an appropriately appointed structure of the legislature. The Speaker, as head of the sitting, should deliver the mandate. If the Speaker was not available, a person designated by the Speaker should perform this role.

Adv Momoti explained that any communication should be directed to the Chairperson of the Council, who would then forward it to the Committees. When mandates were received in the House a member should read his or her mandate exactly as stated by the province.

The Chairperson queried what would happen in cases where the legislature was not sitting but the Committee took a decision, afterwards informing the legislature. The Chairperson of the Committee would sign the mandate, which would later be endorsed by the Chairperson of the Council. The proposed legislation required that the Speaker or the presiding officer sign it. He felt that this provision would cause difficulties.

Mr Shiceka pointed out that a law must not be rigid but contain sufficient flexibility.  The clause could remain as it was stated for most situations, but perhaps it was necessary to provide for exceptional circumstances.

Adv Momoti reminded the Committee that provinces had their own rules in respect of mandates. He reiterated that provided the rules were properly adopted they stood; this legislation merely attempted to create uniformity once issues reached the NCOP. He fully agreed that the presiding officer could sign, and that the vote could be ratified at a later stage. The drafters were mindful of the provinces’ own rules and tried to accommodate them.

Mr Shiceka feared that if a Chairperson of a Committee signed a mandate, this signature might not be considered valid. He wondered why Adv Momoti was resisting the Committee’s proposals.

Mr Manyosi did not feel that there was resistance, merely that this was part of the engagement process.

The Chairperson agreed that all concerns should be raised and debated so that amendments could be made at a later stage.

Mr Ntuli felt that having only one person signing mandates might ease the situation since the problems that were being faced at present could then be directed to one person only.

Adv Momoti said that it was hoped that the legislation would result in every provincial legislature putting the proper systems in place.

The Chairperson wondered why provincial whips could not be allowed to vote but that the premier was required to appoint a member of the delegation to do so (Clause 4(1)). Whips did not vote according to their own thinking but according to the mandate from their province.

Adv Momoti explained the member who voted should be a duly authorised official. The voting mechanism at the moment was nothing more than a convention that had evolved over time. In case of litigation there should be a written confirmation that a particular member had been authorised to vote.

Mr N Mack (ANC, Western Cape) commented that currently the whip led the delegation in the absence of the Premier. To require a person other than the whip to vote would create practical problems.

Mr Ntuli agreed and reminded members that at the moment there was a standing letter from the Premier stating that in his or her absence, the whip would act as the leader of the delegation and was duly authorised to vote.

Ms F Nyanda (ANC, Mpumulanga) felt that the provision was unacceptable and that the Committee should deliberate on the matter. She pointed out that Premiers were not always available to confer the authority to vote.

Mr Shiceka felt that it would be important to consider which current practices worked and which did not. The draft Bill contained technical requirements that would be impractical. He suggested that the provision should be more widely worded to allow for a greater range of designation. He added that the Minister of Provincial and Local Government should ensure that premiers participated fully in the N.C.O.P.

The Chairperson commented that it was already difficult to get mandates from provinces irrespective of the urgency, and requiring a certificate designating different people to submit mandates would further complicate matters. He said that the Committee would make amendments at the appropriate time.

Adv Momoti emphasised again that the draft legislation was merely a discussion document and that before the Bill was gazetted the Committee had to agree on its contents. He added that someone already receiving a delegated vote could not then re-delegate.

The Chairperson urged Adv Momoti to note the Committee’s concerns and requested that he should provide some draft options that would address members’ concerns.

Chapter 3: Procedures in respect of mandates
The Chairperson wondered why this Chapter spoke of ‘voting mandates’ as well as ‘final mandates’. To his knowledge both related to voting at an NCOP plenary session.

Mr Mack commented that during voting sessions, members would often object to not having been consulted. The delegation did not deliberate and consult on voting as the mandate came directly from the provinces. There was no need to discuss the vote with permanent delegates.

Mr Manyosi said that provinces needed to meet. This matter should be discussed with other chairpersons and whips.

The Chairperson agreed. He said that although Limpopo province often met to deal with issues other provinces did not. He asked whether a member would be expected to actually read the mandate.

Adv Momoti confirmed that this would be preferred. This would ensure that even if a province voted ‘yes’ its reservations would be noted.

Mr Le Roux urged that the Committee needed to consider the rules carefully, as they would need to be strictly observed during major disputes.

Chapter 4: General
The Chairperson requested Adv Momoti to ensure that all the necessary formalities were included in this Chapter.

Adv Momoti explained that once the Committee agreed upon a draft version (incorporating their amendments and concerns), the Bill would be gazetted for public comment.

Mr Le Roux wondered whether this order of events was correct. He asked if the Committee could “own the Bill” before it had received input from the public. The Chairperson commented that the Committee could and should make amendments now, but could still make changes that addressed the public comments.

Other Committee Business
The Committee agreed that Mr Shiceka would act as Chairperson during Kgoshi Mokoena’s possible absence during the coming two weeks.

Mr Ntuli informed the Committee that the NCOP Chairperson had indicated dissatisfaction with the follow up after “Taking Parliament to the people”. Limpopo province had not submitted a report. It was suggested that committees should undertake their follow up visits to the provinces before the NCOP undertook its official visit.

Ms Nyanda added that there was also dissatisfaction that some reports had not been submitted timeously. Mpumulanga was due to be visited first.

The Chairperson pointed out that some provinces had not been visited because visits had not been approved. This matter had been raised in the Whip’s Forum.

Mr Ntuli suggested that researchers should assist the Committee by drawing up standard samples of relevant questions that members could use when visiting departments in the provinces.

Ms Nyanda pointed out that since the provinces differed, this might not be practical.

Mr Shiceka agreed that a questionnaire that contained the common areas of concern would be useful; members would of course still be able to ask additional questions.

The meeting was adjourned.