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Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill [B18-2018]

Mpumalanga Provincial Legislature

Proposal to include reference to section 117(1)(b) of the Constitution in the second paragraph of the preamble to the bill, will confirm the intention of the Bill to also be applicable to Provincial Legislatures, insofar as the immunities provided for in the sections, are absolute.

It is recommended that the second paragraph of the Preamble read as follows:

“AND BEARING IN MIND that the immunities provided in sections 58(1)(b), 71(1)(b) and 117(1)(b) of the Constitution, are absolute,”

Purpose of preamble:  A preamble sets out the background to the law, the legal basis of the Act and the reasons for its adoption.   It is not a requirement that laws have preambles but they have been included in Acts especially where constitutional rights are being given effect to.

The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill [B18-2018] (the Bill) is an amendment Bill.  Usually Amendment Bills do not contain preambles. However, there are recent examples of Amendment Acts where preambles are contained in the Amendment Acts especially if the Amendment Act (Bill) was drafted to address a Constitutional Court judgment – an example of this is the Criminal Law (Sexual Offences and Related Matters Amendment Act, 5 of 2015).

Why included: This Amendment Bill was also drafted to address the Constitutional Court’s judgment in Democratic Alliance v Speaker of the National Assembly and others (2016) and it was thought necessary to include a preamble in the Bill to highlight the key findings of the judgment.

The judgment dealt exclusively with sections 58 and 71 of the Constitution - (relating to privilege in the NA and NCOP respectively). It did not refer to  the section in the Constitution relating to privilege in  provincial legislatures (ie. section 117).  Hence the preamble in the Bill only refers to sections 58 and 71 of the Constitution.

Note: a preamble in an amendment Act does NOT form part of the principal Act.  In an Amendment Bill it merely sets the background or basis for the amendments contained in the Bill. 

This however does not mean that the Bill does not refer to section 117(1) of the Constitution.

Section 28 of the principle Act does stipulate how certain terms in the Act must be construed when applying the Act to provincial legislatures.  Hence, clause 9 of the Bill, which amends section 28 of the Act, does indicate how the word “disturbance”, in relation to provincial legislatures, must be construed and that clause does refer to section 117 of the Constitution.

In light of the above, it is submitted that it is not necessary for the preamble to include a reference to section 117.

Western Cape Provincial Parliament

That clause 9(c) be amended to read as follows:

“by the addition after subsection (2) of the following subsection:

1. For the purposes of section 12(2), a provincial legislature may [choose to] either appoint a standing committee or [establish], as and when the need arises, an ad hoc committee.”

Reasons:

1. The expression ‘choose to”, in this context, seems redundant.
2. Using the expressions ‘appoint a standing committee’ and ‘establish an ad hoc committee’ seems redundant and creates the impression that there is some fundamental difference between how standing committees and ad hoc committees come into being.
3.  Proposed that the word ‘appoint’ be used in respect of both standing committees and ad hoc committees.
4. Adding the expression ‘as and when the need arises’ makes it clear that a provincial legislature may not always have a standing committee or ad hoc committees tasked with disciplinary matters, but that the provincial legislature may appoint an ad hoc committee as and when the need arises.

Background: Clause 9(c) of the Bill was included following input received from the WC legislature that it is not always practical for a provincial legislature to have a standing committee dealing with the matters provided for in section 12 of the Act as in small legislatures – in order to avoid conflicts of interest - the membership of the disciplinary committees must often be changed each time a disciplinary matter is heard.

They therefore suggested that provincial legislatures have the option to appoint ad hoc committees to deal with disciplinary matters on a case by case basis.

Rules: It must be noted that the Rules use the word “establish” with reference to ad hoc committees.   These are committees that need to be established by way of a resolution of the House or by the Speaker.  They do not already exist in terms of the Rules – they are established for the performance of a specific task.

For example:  NA Rule 253 states “an ad hoc committee may be established – and the members of the committee are appointed”.

NCOP Rule 160 provides that an ad hoc committee may be established. 

Also, the Rules of the Western Cape Legislatures, in Rule 114 also states that “An ad hoc committee is established by resolution of the House or by the Speaker….”

It is therefore submitted that it is correct to say that an ad hoc committee is established and a standing committee is appointed.

It is also submitted that it is not necessary to add the phrase “as and when the need arises” as the term ad hoc implies means or implies “when necessary or needed”.

With regard to the comment that the words “choose to” be deleted as it is redundant – it is agreed that the words may be redundant but to remove it  would be a technical amendment in nature.  There is no harm in retaining  the words “choose to”  as it does not make the sentence unreadable or ambiguous.