National Council of Provinces - 06 November 2007
TUESDAY, 6 NOVEMBER 2007 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:05.
The Deputy Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
TECHNICAL PROBLEM
The DEPUTY CHAIRPERSON OF THE NCOP (Ms P M Hollander): Hon members, before we start, I have to make an announcement that the microphone at the podium is not working. So, please use the microphones where you are seated. Thank you very much.
NOTICES OF MOTION
Ms B L MATLHOAHELA: Chairperson, I shall move:
That the Council –
1) notes that Nkosikhona Ngoma, a housewife of Olievenhoutbosch in
Pretoria, was cheated out of her RDP house to the benefit of a
Zimbabwean family;
2) further notes that a mob was then instigated to burn her shack on 30
October 2007, as she intended to expose the person responsible;
3) conveys the ID’s dismay at such undemocratic actions in our country;
4) acknowledges the need for more intensive oversight by it and its
individual members as well as the relevant committees; and
5) calls upon the Department of Housing together with the Portfolio
Committee on Housing to investigate this matter and ensure that the
necessary disciplinary measures are instituted.
Mr D A WORTH: Chairperson, I shall move:
That the Council –
1) congratulates the Free State Cheetahs rugby team on winning the
Currie Cup;
2) notes that this is the third year in succession that the Cheetahs
have won the coveted trophy, sharing the cup last year; and
3) further notes that the Cheetahs have won sixteen rugby matches out
of seventeen matches played. Well done Free State!
Mnr J W LE ROUX: Voorsitter, ek gee hiermee kennis dat ek op die volgende sittingsdag sal voorstel:
Dat die Raad kennis neem dat –
1) ons perlemoenbron reeds feitlik vernietig is;
2) die hoofoorsaak van die agteruitgang van hierdie bron stropers is en
nie wettige permithouers nie;
3) stropery ooglopend plaasvind en dat die owerheid magteloos die
vernietiging van die bron toelaat; en
4) die ANC-regering oorweeg om wettige permithouers te verbied om hul
kwotas te gebruik, maar laat toe dat die stropers hierdie bron
vernietig. (Translation of Afrikaans notice of motion follows.)
[Mr J W LE ROUX: Chairperson, I hereby give notice that I shall move on the next sitting day:
That the Council notes that –
1) South Africa’s abalone resources have been virtually destroyed;
2) the main cause of the decline in this resource is poachers and not
legal permit holders;
3) poaching is taking place openly and the authorities are helplessly
allowing the destruction of this resource; and
(4) the ANC government is considering banning legal permit holders from using their quotas, but is allowing the poachers to destroy this resource.]
Mr M A MZIZI: Chairperson, I hereby give notice that at the next sitting of the NCOP I shall move on behalf of the IFP:
That the Council –
1) notes with sadness that two police officers, a 37-year-old inspector
from Muldersdrift and a 33-year-old police constable from Mamelodi,
were murdered in separate incidents in Gauteng this past weekend;
2) further notes that these two murders bring to 10 the number of
police officers killed in just over two months;
3) realises that we are in a crisis, as the very people who are meant
to protect us are being callously murdered;
4) hopes that the criminals who committed these heinous crimes are
brought to book; and
5) extends our condolences to the families of the deceased.
CONGRATULATIONS TO EASTERN CAPE HEALTH DEPARTMENT
(Draft Resolution)
Nksz B N DLULANE: Mphathisihlalo, ndenza isiphakamiso ngaphandle kokunika isaziso:
Sokuba iBhunga –
1) liqaphele inkqubela engummangaliso eyenzeka kwiphondo leMpuma
Koloni;
2) kwakhona liqaphele ukuba urhulumente wela phondo ubonelele abantu
abakhubazekileyo ngemilenze yokwenzelwa phaya eBhaziya eMthatha,
kwinqila i-O R Tambo;
3) lithi halala kwiSebe lezeMpilo ngoku; kwanokuba
4) likhuthaze eli sebe ukuba liqhubele phambili linceda abantu. (Translation of isiXhosa draft resolution follows.)
[Ms B N DLULANE: Chairperson, I hereby move without notice:
That the Council –
1) notes the amazing progress unfolding in the province of the Eastern
Cape;
2) further notes that the provincial government of the Eastern Cape has
provided prosthetic legs to people who need them, at Bhaziya in
Mthatha, in the O R Tambo region;
3) congratulates the Department of Health on this; and
4) encourages the department to keep up the good work of serving the
people.]
Motion agreed to in accordance with section 65 of the Constitution. MANDATING PROCEDURES OF PROVINCES BILL
(Consideration of Bill and of Report thereon)
Kgoshi M L MOKOENA: Chairperson and hon members, this is a historic moment in that this is the very first time, since 1994, that a committee of Parliament introduces a Bill in this House. This Bill has gone through all the stages, and very soon it will become an Act of Parliament.
I’m talking about the Mandating Procedures of Provinces Bill, which was introduced by the committee under my chairpersonship. The hon members who championed this piece of legislation are hon Nyanda, Mack, Fielding, Mzizi, Manyosi, Shiceka, Ntuli, Worth, Le Roux, Van Heerden and Moseki.
These are the hon members who toiled tirelessly while our companions were still asleep in order to ensure that the Bill reaches this stage. To you, colleagues, all I can say is: Opportunity follows those who walk the extra mile. We met even at awkward and ungodly hours.
Briefing provinces was not an easy task, given the complexity of this Bill. At times you had to take on legal gurus to try and convince them otherwise. I know that some hon members had to brief their provinces more than once. There were so many meetings on this Bill before it reached this stage.
The question is: How many people are aware of how hard committees work in this Parliament, especially in the NCOP - not only my committee, but committees in general? It is for that reason that I want to thank the President for appointing commissions such as the Moseneke Commission. We need to be grateful for that commission.
Despite being engaged in work outside the commission, the commissioners are doing a good job. I think that after doing such a good job, I won’t be surprised if the President relieves them of their duties - so that they can concentrate on other jobs - and appoints other people who know how Parliament works. We thank them very much.
Colleagues, history will remember you not only for your looks, but also for the work you have done in this House. There were times when some final mandates from provinces were signed by chairpersons of committees. There were also instances where documents containing final mandates did not have letterheads of the respective provinces. There were times when we received final mandates that were hand-written.
There was no uniformity with regard to submitting final mandates to the NCOP, especially when it came to section 74 Bills, which amend the Constitution, and section 76 Bills, which deal with provincial competencies.
With this mandating procedure, we want to ensure that all provinces adhere to all procedures as stated in this piece of legislation, as well as the NCOP Rules. There are now two formats for dealing with negotiating mandates and final mandates. The former can be signed by the chair of the committee, and the latter will only be signed by the Speaker or any other person assigned by the relevant presiding officer.
Once this Bill becomes an Act, all mandates without letterheads of the respective provinces will not be considered. From now on, all final mandates from provinces without the signature of the Speaker or any person designated by the Speaker won’t be considered.
As this House, we are sick and tired of being embarrassed because we didn’t follow or adhere to the Rules as stated in this piece of legislation.
My colleagues will deal with some specific issues, but I want to thank the officials who were part of this process: Adv Momoti, Shahieda, Zanele, Eric and other members of the team.
Hon members, I think we have done well. It is now up to the powers that be to acknowledge the very good job that we have done. Having said that, as the chairperson of this committee, I want to thank all political parties for their co-operation; they participated very actively during the deliberations.
We are going to follow these procedures to the letter, because, as the committee, we wouldn’t want to compromise on the four-week or six-week cycle, for example. Provinces have expressed the view that we should not prescribe to them as to how they should conduct their business. For instance, they should not be asked to sit during recess if there is a need for a final mandate to be sent to this House. However, that has been dealt with, and all provinces are happy.
We received final mandates from the nine provinces, all of them with the message: Mokoena, you are the boss! Thanks, Chairperson.
Mr N J MACK: Deputy Chairperson, hon members, special delegates, ladies and gentlemen, comrades and friends, it is a real honour to be part of the history that our chairperson has just spoken about. To be part of this debate is also very special. We need to thank our hon chairperson, Kgoshi Mokoena, for his leadership.
Today we debate a Bill which proposes a uniform procedure in terms of which provincial legislatures would confer authority on their delegates to the NCOP. The Constitution of our country provides that legislation be enacted to create uniform procedures in terms of which all provincial legislatures would confer authority on their delegates. This Bill is that piece of legislation which is envisaged in our progressive Constitution.
Central to our constitutional democracy should be respect for the Constitution and, in particular, constitutional values and principles which underpin our society. This is the context within which this Bill should be understood and debated.
As we consolidate our constitutional democracy and build a united nation, democratic institutions must express their commitment to addressing anything which has the potential to undermine the realisation of the vision of a unitary democracy.
The different procedures in terms of which provincial legislatures within the same state currently confer authority on their delegates do not provide a fertile ground for the realisation of the vision of uniformity. We must remember that South Africa is not a federal state. Instead, it is a democratic state which recognises only some elements of federalism. It is for this reason that our committee recognises the need for uniformity amongst provinces in respect of the procedure for conferring mandates on the delegates of this House.
With this Bill, we are moving a step forward towards realising the vision of a unitary state in South Africa. This is so because this Bill creates uniform mandating procedures for all provincial legislatures in our country.
The inescapable reality is the fact that during the implementation of this Bill, this House will incur some costs. Moreover, there may even be certain instances where the issue of unfunded mandates may arise - in which case a policy is required to provide some clarity.
The ANC and the Select Committee on Security and Constitutional Affairs support this Bill, and I humbly request you to follow suit. Thank you. [Applause.]
Mr D A WORTH: Deputy Chairperson and hon members, first of all I would like to express a word of thanks to our committee chairperson of the Select Committee on Security and Constitutional Affairs, hon Kgoshi Mokoena, for all the late nights that he kept me up and for all the sleep that I have lost through this Bill.
Having said that, Deputy Chairperson, this Bill seeks to provide a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf in the NCOP. In terms of section 65(2) of the Constitution of the Republic of South Africa of 1996.
An Act of Parliament, enacted in accordance with the procedures established by either subsection (1) or subsection (2) of section 76, must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.
Item 21(5) of Schedule 6 of the Constitution provides that:
Until the Act of Parliament referred to in section 65(2) of the new Constitution is enacted, each provincial legislature may determine its own procedure in terms of which authority is conferred on its delegation to cast votes on its behalf in the NCOP.
As legislation envisaged in section 65(2) of the Constitution has until now not been enacted, there has been no uniformity on how provincial legislatures confer authority on their delegations to cast votes on their behalf.
Many provincial legislatures used various committees in respect of negotiating mandates as well as final mandates, despite the fact that some members of the committee were absent or that a committee quorum was barely attainable. In some instances, members of the legislature were unaware of other Bills or recommendations by their own provinces.
Whilst this Bill now allows the chairperson of a committee designated by a provincial legislature to sign and handle all negotiating mandates, final mandates must be voted either in favour of, against, or in abstention in a sitting or plenary of such a legislature. The final mandate must be signed by the Speaker or a person designated by the Speaker to preside in the House on the Bill in question. Whilst objections or amendments were received from various provinces, the Constitution makes it clear that a final mandate can only be passed, amended or rejected by a plenary or sitting of that provincial legislature.
Deputy Chairperson, this is a historic Bill as it is the first one to be initiated by the NCOP since its inception. The DA fully supports this Bill in its endeavour to create uniformity amongst provinces in dealing with NCOP matters and in strengthening participatory democracy. I thank you. [Applause.]
Mr M A MZIZI: Chairperson, the IFP feels that it is appropriate to deal with the mandating procedures of provinces through legislation. The mandating procedure is fundamental to the work of this Council and cannot be left to ad hoc arrangements or decisions by officials. The Matatiele case taught us that very clearly.
We are dealing with two types of mandates in this Bill - the negotiating mandate as well as the final mandate. I want to concentrate on the final mandate.
The IFP’s position is not to prescribe the content of the final mandate given by the provincial legislatures to permanent delegates. However, the detailed procedure to be followed in arriving at the final mandate should be prescribed in law, so that the end product is owned jointly by the provincial legislature and the NCOP.
One of the features of the final mandate is its validity and compliance with procedure. Here, the IFP feels that one of the requirements must be that the Speaker of the provincial legislature or other presiding officers must sign the final mandate after carefully checking that all formal procedures have been followed correctly.
Hon members must remember that it is a traditional role of the Speaker in other parliaments around the world to ensure that correct procedures are followed in the business of the House. The IFP, therefore, believes that this should also apply in this case, as the Speaker of a legislature is the highest authority in that body.
The role of a Speaker should, therefore, be to certify that all formal and legal steps have been followed, including public participation, publicity and public hearings. This would ensure the validity of the final mandate and full compliance with the legal procedures set out in the piece of legislation. The IFP will support the Bill.
Ngakho-ke, siyacela ukuthi impi ekade ikhona yokuthi sengathi yithina esesiyoshaya umthetho ezifundazweni iphele. Siya lapho ngoba sisuke siyokwelekelela. Abezwisise ukuthi asithi abahlale ngosuku oluthile futhi bangahlali ngosuku oluthile kodwa sithi abahlale uma kunesidingo, njengoba ebeseke washo uKgoshi Mokoena, inkosi yami, laphaya.
Bese singasalali uSihlalo Wekomidi ethi asize emsebenzini ngisho nasebusuku imbala. Bese simangala ukuthi ngabe isikhathi esengeziwe sokusebenza siyakhokhelwa yini na. [Uhleko.] Niyamazi-ke nani uma esethi sekusho inkosi ukuthi asize emsebenzini. Siyabonga ngoba nawe uye wasibekezelela. Siyayibonga neNdlu eye yasivumela ukuthi sihlale ngemuva kwesikhathi. Wena wakoMkhulu. Ihlombe.
[We plead, therefore, that the controversy caused by the perception that we are now going to dictate to the provinces must come to an end. We go there only with the intention of helping you. Let them understand that we are not saying that they must have a sitting on a day stipulated by us, but that we are saying that they must have a sitting when there is a pressing need, as Kgoshi Mokoena has correctly indicated.
We went without sleep for days with the chairperson as the committee calling us to come to work even at night. We wondered whether we would be paid overtime. [Laughter.] You know how he is when he authoritatively says that the King commanded you to come to work. We thank him for being patient with us though. We also thank this House for allowing us to sit after hours. Thank you. [Applause.]]
Mnu Z C STALI (Ntshona Koloni): Sekela-Sihlalo, mandiqale ngokubulela nokuvakalisa uvuyo kuba ndize kudlulisa umyalezo wephondo lam. Bathe ke bayayithakazelela bekwayiqhwabela izandla into yokuba ibe le Ndlu iphumeza lo Mthetho uYilwayo ubaluleke kangaka.
Eyona nto inika umdla kukubona ukuba ezona ngxaki besinazo ngokubhekisele kubasebenzi bakarhulumente zibonakala zisonjululwa ngulo mthetho. Iintunja ebezisoloko zinika iingxaki kurhulumente wethu ekulawuleni abasebenzi bakhe nazo ziyavingcwa.
Kuthiwe ke, ngalo mazwi, ze ndibulele kwaye ndichaze ukuba siyawamkela lo Mthetho uYilwayo. Enkosi. Kwaqhwatywa.
[Mr Z C STALI (Western Cape): Madam Deputy Chairperson, let me begin by expressing my gratitude and joy at being able to come here and convey the mandate of my province. They commend and applaud the fact that this House is passing this important Bill.
What we find really encouraging is to see how the problems that we used to have with public servants are going to be solved by this Bill. Loopholes that used to create problems for our government in dealing with its public servants are also going to be plugged. With those words, I have been mandated to convey our gratitude and to declare our support for this Bill. Thank you. [Applause.]]
Mnu Z C NTULI: Phini likaSihlalo, malungu ahloniphekile ale Ndlu, maqabane nabangane. Kuyafuneka khona-ke sithinte kancane ukuthi ezinye izinkinga ebezenzeka lo Mthethosivivinywa ungakasungulwa ukuthi bekutholakala ukuthi umthetho usuze wayofika lapho usumangalelwa khona, kutholakale ukuthi uma le Ndlu isimangalelwa ukuthi yagunyaza umthetho kube yilapho oSomlomo bezifundazwe kanti omunye uyaqala nokuyizwa ukuthi bekukhona umthethosivivinywa onje. Kusho ukuthi nabantu bendawo, umphakathi nawo wethuka ngaleso sikhathi sekunecala ukuthi kwake kwaba khona uMthetho onje owawukade usungulwe nini? Okusho ukuthi njengoba sesiza nalo Mthethosivivinywa kuzonqandeka konke lokho ngoba wonke umuntu uzothola ithuba lokuthi ubathinte bonke abantu andukuba ufike eMkhandlwini Kazwelonke Wezifundazwe.
Kukhona engifuna ukudlula kukho, okungukuthi kuthanda ukuthi kube nendida ukuthi yini lokhu okubizwa ngokuthi umphakathi kufanele ubambe iqhaza ikakhulukazi kule Mithethosivivinywa esesigabeni 74 soMthethosisekelo. Kutholakala ukuthi abanye ozakwethu khona lapha bayahluleka ukuhlukanisa phakathi kokubamba iqhaza komphakathi kanye nalokhu okubizwa ngokuthi inhlolovo. Isikhathi esiningi ozakwethu kulokhu okuthiwa ukubamba iqhaza komphakathi yikho abacabanga ukuthi inhlolovo. Ngikusho lokhu ngoba izifundazwe ziyaya ukuyothola izimvo zabantu noma ukuthi abantu babuka kanjani uma kunoMthethosivivinywa kodwa bese uthola ukuthi abanye bethi kodwa nibazwile ukuthi abantu bathini? Abantu bathi abakufuni lokhu kodwa bafuna lokhuya.
Ngizama ukucacisa lapho ukuthi ukubamba iqhaza akusho ukuthi abantu basuke sebevota. Kusuke kuthiwa abaphefumule basho ukuthi babona kanjani ngoMthethosivivinywa. Ngithi angikucacise lokhu ngoba laba abaphikisayo ikakhulukazi kwamanye amaqembu ezifundazweni uye uthole sebethi hhayi abantu bathe abayifuni le nto manje kungani niqhubeke nayo. Bayakhohlwa ukuthi besiyokuzwa ukuthi abantu bathi uma lo Mthetho ugunyazwa yiziphi izinto okudingeka ukuthi zibukisiswe ukuze kuthi uma bewuvuma basizakale ngawo. Akuve kusho ukuthi inhlolovo.
Kodwa-ke siyazi ukuthi basuke bekwenzelani laba abaphikisayo. Basuke benzela ukuthi sithi akube nenhlolovo khona bezoqala bagxeke uhulumeni oholwa wuKhongolose ukuthi untekenteke manje nanini sekuyavotwa, sekuyiwa kubantu ukuthi kwenziwe inhlolovo. Siyakhumbula ukuthi nohulumeni wobandlululo usuphuma wenza inhlolovo okubonisa khona ukuthi uma sewenza inhlolovo, umbuso usuke usuphuma ezandleni.
Sithi laba abaphikisayo abahlukane nalo mbono wokuthi ukubamba iqhaza komphakathi yiyona nhlolovo ngoba kusho ukuthi bafuna ukuyosivotisa isikhathi sokhetho singakafiki kanti siyeza leso sikhathi lapho siyobanika amathuba nabo ukuthi bakhankase bese kuyiwa okhethweni. (Translation of isiZulu paragraphs follows.)
[Mr Z C NTULI: Madam Deputy Chairperson, hon members of this House, comrades and friends, it is quite necessary that we touch briefly on some of the problems that were common before this Bill was drafted. It would only be when the House has been taken to court for passing a law that some provincial Speakers would know about the existence of such a piece of legislation. By extension, the local community would only know about the existence of such legislation when there is a court challenge. And they would accordingly ask: When was such a piece of legislation passed? This Bill will put an end to such problems, as everybody will participate in legislative processes. It will also have an impact on everybody before it reaches the NCOP.
There is also something that I would like to mention, in passing. There seems to be some confusion regarding the meaning of public participation, especially when it comes to section 74 Bills. It is clear that some of our colleagues, right here, are unable to differentiate between public participation and a referendum. Most often, our colleagues mistake public participation for a referendum. I say this because provinces conduct public hearings.
And yet these colleagues of ours come back and ask us: But did you hear what the people say? They would dare to tell us that people say they do not want this and they want that. What I am trying to explain here is that when people take part in public hearings, they do not vote. Public participation only means having a voice on the Bill before Parliament. I feel the need to clarify this because the opposition parties especially in the provinces would always say, “No, people do not want these things, why are you continuing with them?” They simply forget that the only reason for public participation is to hear what the people say and the things that they would need revisited so that when legislation is finally passed, it could help them.
At least we know the reason for the opposition acting the way it does. They do that so that such talks could lead the ANC-led government into holding the referendum on the issue which in turn would give the opposition the space to criticise the ANC government as a weak government which relies on referendums for its survival. We will remember that when the apartheid government was approaching its demise, it held many referendums and those were the signs that it was singing its last tunes.
We therefore kindly request the opposition parties to refrain from the idea that public participation equals to a referendum. The time will come whereby we will give the opposition parties the opportunity to canvass votes when we are approaching the elections.]
I would like to raise the issue of the uniformity or the working relationship between the provincial liaison officers and this House. This issue comes up every now and then. It seems as if Regis House, which we now call Constitutional House, has not strengthened its working relationship with this House. You can see this from some of the issues which are raised now and again. Maybe it is a challenge.
I remember the other day the Chairperson of the NCOP did raise this issue of saying that perhaps Regis House should fall under the NCOP, and not be abandoned as though they are orphans. I believe that after the passage of this Bill we should have a look at the relationship between the provincial liaison officers and this House. At the moment these two Houses seem to be drifting apart.
There is another challenge which is posed by the Constitution itself, when it says: “The Premier of the province is the leader of the delegation of the province”. We need a dialogue between the Premiers and the executive to re-examine these powers. We should ask ourselves why these powers were conferred on the Premiers instead of the Speakers or anyone who is an oversight practitioner.
I would like to mention the other mentality or problem which we encountered when we were dealing with this issue. We found that some of the provinces still have that federalist way of thinking, but hide behind section 116 of the Constitution and say we can’t prescribe to the provinces. You can see, however, that behind that is the claim that we are independent. They will say: “No, section 116 of the Constitution is protecting us against being dictated to by the NCOP.” That is why I am saying that there is that federalist mentality. As we can see here, the intention is good.
In conclusion I would like to congratulate this House for passing this Bill as it originated from this House. Thank you very much.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms P M Hollander): I now call upon hon Douglas of the ACDP to continue the debate. It’s his maiden speech. I would like all the members to be very quiet, please.
Mr W M DOUGLAS: Chairperson, we understand that the aim of the Mandating Procedures of Provinces Bill is to provide a uniform procedure in terms of which provincial legislatures give authority to their delegations to cast votes on their behalf in the NCOP.
The current position regarding the mandating procedures is that each provincial legislature may determine its procedure in terms of which authority is confirmed on its delegation to cast votes on its behalf in the NCOP. This was a cause for concern. During previous deliberations on this Bill, an open mandate issue arose, which we felt was worrisome. For example, there were no Rules which governed the practicalities relating to delegation and the current practice showed that the Whips are regarded as the heads of the delegations. Another issue was who would have the authority to further delegate in the event that the said delegated person was not available. Thus there were no set procedures to deal with the issue of delegation. The importance of being united cannot be stressed enough. Many scholars argue that a lack of organisational uniformity, in this case provincial uniformity, has a negative impact on service delivery. Experience tells us that this is true. Furthermore, these scholars also state that disintegrated and inefficient procedures result from a lack of uniformity. Therefore the implementation of norms and standards amongst provinces which promotes uniformity will definitely improve the quality of service delivery. Thus the ACDP supports any decision that endeavours to improve the operational problems that affect the optimal functioning of the legislative process.
In conclusion, the Mandating Procedures of Provinces Bill must not and should not be taken lightly whereas it might be only seen as purely procedural. The ACDP wholeheartedly supports the remainder of the Bill. I would like to thank everyone involved for their dedication, time and effort in working on this Bill. Thank you. [Applause.]
Mr S SHICEKA: Deputy Chairperson, allow me to join other colleagues in standing here and not going to the podium. There might be reasons for that to happen. I don’t know what those reasons are. But then you know when you are led by the Chair, you have to follow what the Chair says or does. That is what I am doing right now, Chair, because I tried to find out what the reasons were, but I could not get any response in that respect. Chairperson, allow me to join my colleagues in saying that we are debating this Bill here that has been formulated by the committee without the involvement of the executive - which to me is a very important milestone. We hope that other committees in other clusters will be inspired by this process and activity to follow suit in this trail-blazing arrangement. We hope that by the year 2009, we will have more Bills developed by committees – Bills which would be passed by this House.
The Bill will ensure that there is consistency and coherence in the way provincial legislatures do their work with the NCOP. This means that the centre will hold as it will be able to give direction on what has to be done. We will have uniform approaches on how we conduct our business, particularly in processing national legislation.
The Bill will strengthen public involvement. It will actualise what was agreed upon in 1955 – in the Freedom Charter – where it is said that the people shall govern. It will ensure that the people are involved through provincial legislatures, because scholars have raised a question which I think the Chairperson of the Council will respond to. The question is: Who are we representing as the NCOP? Are we representing the people on the ground or provinces? This means that we are indirect representatives in the way we are as an institution. This is something that we must engage on and be able to respond to. There are constitutional judgments that have been made. These judgements, you will recall, were made on the case that was instituted by Doctors for Life and also on the recent case that was instituted by the people of Matatiele with respect to the demarcation of provincial boundaries. What came out of that was that committees must ensure that they deepen public involvement. This is espoused in sections 72 and 118 of the Constitution, which require that the relationship between the two Houses be clearly defined. The two sections ensure that when we deal with national legislation, the NCOP must be able to give time and resources in relation to the development of national legislation. I want to quote what was raised in the constitutional judgment. It says:
If the NCOP is to conduct provincial hearings, it must allocate
substantial time and money to send its committee members to each
province ...
Whether public hearings conducted by the provincial legislatures are
sufficient to satisfy the obligation of the NCOP under section 72(1)(a)
of the Constitution ultimately depends on the facts and the nature of
the process of facilitating public involvement that has occurred in the
provinces, including the extent to which the NCOP delegates were
involved in and have access to the information gathered during those
processes.
... it would be reasonable for the NCOP to take a decision that public
hearings should be held in the provinces, provided that the provinces in
fact hold those hearings and that those proceedings are attended by
members of the NCOP ...
This judgment was articulated by the highest court of the land. This view is actualised in this Bill that we are dealing with today. This is because when a speaker fills in a form, the speaker must be able to say whether public hearings were conducted. If they were, what form did they take – that is what is required in the form that we are supposed to fill in. This therefore means that we will have a uniform approach in all our provincial legislatures around this question.
You will agree with me that this is an area that we had to look at and strengthen through the pronouncements of the justice system of the country
- our learned friends. We cannot ignore the judgments that have been made by our courts in our land. Therefore, I am saying that these processes in legislatures are quite key in the way they are conducted.
However, as my colleague Ntuli has said, some provinces believe that we were too prescriptive and that we were interfering with their internal arrangements, as they were defined, by saying what we expected to be done, particularly on the issue of calling for a House to sit when we have to give a final mandate. They wanted the status quo to remain - where a committee will sit. But, what we are raising in the Bill is that even when the House is in recess, a special sitting has to be called to ensure that a Bill is passed by the House so that all and sundry, even those who are not participating in the committee, are informed about what happened. The Bill doesn’t rely entirely on those who were directly participating in its development.
We are also saying that this must not only be delegated to the Speaker to sign on behalf of the House. It must be a full House that sits to deal with the matter. That is the reason why, from our perspective as the ANC, we believe that this Bill is taking forward and actualising our belief that the people are supposed to be the centre of the development of policy and legislation.
We are happy that all political parties, without exception, agree with us on this Bill. There is no one who is dissenting on this issue. This means that we have managed to find each other in the way we were discussing these issues.
I want to conclude by saying that we hope that the Bill, as it stands, will be implemented by all those who are supposed to engage in this process so that we can do our work diligently and in a way that shows that we are co- ordinated. Therefore, the centre will hold in the way we do things. Thank you very much.
The CHAIRPERSON OF THE NCOP: Deputy Chairperson …
An HON MEMBER: Gooi kole! [Gelag.] [Go for it![Laughter.]]
The CHAIRPERSON OF THE NCOP: Daar is nie meer kole nie. Die kole is weg! [There are no more go-getters here. They have left!]
Deputy Chairperson, thank you very much for giving me the opportunity to respond to the debate. Perhaps I should also start by thanking the hon chairperson of this committee, hon Kgoshi Mokoena, and the members of the committee, who have done such sterling work in going through this Bill and agreeing that we should pass it.
This Bill is long overdue; thirteen years down the line. We could have passed this Bill very long ago. However, I want to congratulate you because you were the first people in the term of this NCOP to pass this Bill. We are not too sure what will happen after 2009. Perhaps they would not even pass the Bill after 2009. Thank you very much for taking the initiative.
The second set of questions I want to respond to are the two questions from hon Ntuli. The first question is about the Premiers being leaders of delegations. The second one is about the provincial liaison officers in Constitution House. My response is very short.
The two issues were raised during the summit. I’m glad that some of the Premiers were there and are compiling a discussion paper in this regard.
I am also glad to report that some of them have come to me requesting a very in-depth discussion on these two issues. I will be calling a meeting with them early next year to discuss these issues. I think we can find each other.
How do we deal with these two issues? These issues are on the table and will be discussed.
The other question that I need to respond to was raised by hon Shiceka. He is quite correct. The Constitution does not exclude the committees from tabling legislation. Neither does it exclude individual Members of Parliament from doing so. We all can do that, but what we do most of the time is to expect the executive to do everything. We also have the right to initiate legislation both as committees and as individual Members of Parliament.
The last thing that I want to respond to is a question by the hon Shiceka about who we represent as public representatives. We all know that as public representatives we represent the people of the country. We can’t represent our jackets. We can only represent the people who elected us.
According to section 42(4):
The NCOP represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces.
Therefore, we represent the public because we consider the issues that are raised by the public. We are public representatives and therefore represent the public.
Section 72(2), which hon Shiceka quoted, says:
The National Council of Provinces may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.
Therefore, that tells us that you cannot take away that part of the role of the public representatives representing the communities they are leading.
House Chairperson, allow me to say that the power vested in legislatures in terms of item 21(5), which hon Darryl Worth talked about, is wide to determine the procedure through which such a mandate is conferred. It does not say who or how this should be done, but leaves it up to the legislature to determine the procedure.
Consequently, there have been different mandating procedures from provinces, which at times have been confusing. We are aware of that. In some instances the mandate is signed by the committee, as some members have indicated, and in other cases by the Speaker. This shows how crucial and important uniformity of the mandate is.
I have been told that at times the mandates were signed by a secretary of a committee or someone like that. I think that’s what they want to explain here. A secretary of a committee signing a mandate was not correct.
In terms of item 21(5), as quoted, section 25 must be seen as an interim measure to cater for progress whilst the legislation in terms of item 21(1) is being formulated, as we are doing currently. It has never been a substitute for item 21(1), which is mandatory. Members will agree with me that from the time the Constitution was enacted to date, is not a reasonable time, as required by item 21(1), within which the legislation should be enacted. This means we have been found wanting in this respect.
The Bill should be applauded for spelling out the uniformity. The challenge has been the lack of uniformity whereby different provinces come up with different practices, which might be inappropriate. For example, Province A might say its head of delegation is a provincial Whip; Province B might say its head of delegation is the most senior member in terms of party ranking who might not necessarily be a provincial Whip; whereas Province C may say it will appoint a head of delegation on each mandate. All these are permissible, of course, in terms of item 21(5), but represent a clear lack of uniformity. That’s all I want to indicate.
This does not mean that before this definition we did not know who the head of the delegation was or should be, as this is clear in terms of section 60(3) of the Constitution. However, practicalities as per the examples I’ve made, show that there was a likelihood of no uniformity, which is required by section 65(2) of the Constitution.
This then brings me to the point that I feel should have been clearly stated in the Bill and this is the order of appointment of delegating heads of delegations, like the one provided in section 91 of the Constitution regarding the Acting President. However, this is not a big deal as we know that anyone can be appointed the head of a delegation in terms of section 60(3) of the Constitution. However, I still feel that for uniformity purposes this order is very necessary.
Schedules 1 and 2, which are contained in the Bill before us, are further innovations that should be applauded as they clearly provide for uniformity. These schedules formalise and specify the procedure to be followed with regard to the negotiating and final mandates.
In the case of the UDM vs the President of South Africa and Others in the papers filed in the Constitutional Court, it was contended by one of the applicants that in a certain legislature a committee instead of the legislature conferred authority on the delegation to cast the vote in the NCOP when the floor-crossing legislation was considered. The court, however, did not pronounce itself on the appropriateness or inappropriateness thereof. To avoid any legal challenges, this piece of legislation is important to us as the NCOP. I still want to reiterate that the Chair and the committee have done wonderful work. Thank you to all the provinces for supporting the Bill. Thank you.
Debate concluded.
The HOUSE CHAIRPERSON (Mr T S Setona): Thank you very much. That concludes the debate. I shall now put the question for the Bill to be agreed to. As this decision is dealt with in terms of section 65 of the Constitution, I need to ascertain whether delegation heads are present.
I shall first allow provinces the opportunity to make their declaration of vote in terms of Rule 71 if they so wish. Is there any province wishing to make a declaration of vote? There is obviously no one.
We shall now proceed to the voting on the question. I shall do this in alphabetical order per province. Delegation heads must please indicate to the Chair whether they vote in favour, against or abstain from voting. Eastern Cape?
Mrs B N DLULANE: In favour.
The HOUSE CHAIRPERSON (Mr T S Setona): Free State?
Mr C J VAN ROOYEN: Ondersteun. [We support.]
The HOUSE CHAIRPERSON (Mr T S Setona): Gauteng?
Mr S SHICEKA: We support.
The HOUSE CHAIRPERSON (Mr T S Setona): KwaZulu-Natal?
Mr Z C NTULI: KwaZulu-Natali elethu! [KwaZulu-Natal supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Limpopo?
KGOSHI M L MOKOENA: Re a e thekga. [We support.]
The HOUSE CHAIRPERSON (Mr T S Setona): Mpumalanga?
Ms F NYANDA: Siyayivuma. [We support.]
The HOUSE CHAIRPERSON (Mr T S Setona): Northern Cape?
Mr M A SULLIMAN: Northern Cape supports.
The HOUSE CHAIRPERSON (Mr T S Setona): North West?
Mr Z S KOLWENI: North West ke ya rona. [North West supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Western Cape?
Mr N J MACK: We support.
The HOUSE CHAIRPERSON (Mr T S Setona): All nine provinces voted in favour. I therefore declare the Bill agreed to in terms of section 65 of the Constitution.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - EXTRADITION TREATY BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE ARGENTINE REPUBLIC
Mr D A WORTH: Deputy Chairperson and hon members, a treaty was signed on 28 February 2007 with regard to mutual assistance in criminal matters between the Republic of South Africa and the Argentine Republic. This agreement seeks to improve the effectiveness of both countries in the investigation, prosecution and suppression of crime through co-operation and mutual legal assistance in criminal matters.
The treaty, amongst many other provisions, provides for locating and identifying persons and objects; serving documents and providing information and records; providing objects, including the lending of exhibits, search and seizure; taking of statements and evidence; making detained persons available to give evidence; and taking measures to locate, restrain and seize the proceeds of crime and any other form of assistance not prohibited by the law of the requested state.
The central authorities of the parties concerned shall consult each other, whenever appropriate, to facilitate and promote the most effective implementation of this treaty. It is proposed that this House ratifies and supports this treaty. I thank you.
Debate concluded.
The HOUSE CHAIRPERSON (Mr T S Setona): Hon members, that concludes the debate. I shall now put the question for the report to be adopted. As the decision is dealt with in terms of section 65 of the Constitution, I shall first ascertain whether all delegation heads are present.
In accordance with Rule 71, I shall first allow provinces the opportunity to make their declaration of vote, if they so wish.
We shall now proceed to the voting on the question. I shall do this in alphabetical order per province. Delegation heads must please indicate to the Chair whether they vote in favour, against or abstain from voting. Eastern Cape?
Ms B N DLULANE: Siyayixhasa [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Free State?
Mr C J VAN ROOYEN: Supports.
The HOUSE CHAIRPERSON (Mr T S Setona): Gauteng?
Mr S SHICEKA: Siyasapota. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): KwaZulu-Natal?
Mr Z C NTULI: Ondersteun. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Limpopo?
Kgoshi M L MOKOENA: Siyavuma. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Mpumalanga?
Ms F NYANDA: Supports.
The HOUSE CHAIRPERSON (Mr T S Setona): Northern Cape?
Mr M SULLIMAN: Ke ya rona. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): North West?
Mr Z S KOLWENI: In favour.
The HOUSE CHAIRPERSON (Mr T S Setona): Western Cape?
Mr N J MACK: Siyavuma. [Supports.]
Report accordingly adopted in accordance with section 65 of the Constitution. CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - EXTRADITION TREATY BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE ARGENTINE REPUBLIC ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS
Ms F NYANDA: Chairperson and hon members, an extradition treaty between South Africa and Argentina on Mutual Assistance in Criminal Matters was signed by the Minister of Foreign Affairs and Minister Jorge Taiana of Argentine. In the increasingly interdependent global world, crime can no longer be regarded as a local phenomenon. No government wants its country to be perceived as a place where criminals of the world can hide away. South Africa is no exception.
The advent of democratic South Africa in 1994 as a respected member of the international community, the increase in the mobility of people and the increase in crime globally have impacted on the country’s role in international criminal justice. In 2003, the Constitutional Court noted that the need for extradition had increased because criminals increasingly took advantage of modern technology to perpetrate serious crimes and to avoid arrest by fleeing to other countries.
The government of South Africa has also responded to international trends by taking actions aimed at combating and preventing terrorism by enacting anti-terrorism legislation. Another important piece of legislation has come into operation in the form of the International Co-operation in Criminal Matters Act, Act No 75 of 1996.
At the conclusion of the three-day Inaugural Session of South Africa- Argentina Joint Binational Commission on 28 February 2007, the South African Foreign Affairs Minister, signing on behalf of the Minister of Justice and Constitutional Affairs, stated that South Africa and Argentina share similar human rights issues emanating from similar difficulties of the past. Minister Jorge Taiana of Argentina said:
The relationship between Argentina and South Africa is a priority for Argentinian Foreign Policy and in the South-South relationship and co- operation. We share the multilateralism as a way to solve the problems of the international community.
We share the respect of international laws, respect for international human rights, the search for peace and stability in the world, the fight against the proliferation of weapons of mass destruction, the fight against terrorism, that is, the political arena.
In respect of human rights, Minister Taiana said that there had been a lot of contact between the two countries and that the signing of the agreement was aimed at strengthening the support of the two governments.
Human rights are part of our identity, our democracy and our fight against exclusion. So, we have a lot to do regarding shared experience and co- operation in the international arena for better respect of human rights. Effective international co-operation in the suppression of crime must balance against human rights concerns. Fundamental human rights must be respected in the process of the suppression of crime.
South Africa has international extradition agreements with a number of countries including India, the United States of America, France and the SADC member states. However, in terms of our extradition legislation, South Africa can also grant a request by a country for a person to be extradited even in the absence of the extradition agreements.
In the arena of mutual legal assistance, the desire by countries for closer co-operation to prevent and combat international criminal activities has resulted in the development of forms of co-operation wider than that of the traditional limited forms of extradition. Examples of assistance include giving or sharing of information; locating of persons; making available public documents such as judgments and orders; and obtaining statements of witnesses who agree to be interviewed. Other examples are search and seizure, the obtaining of statements under oath from an unwilling witness, forfeiture and confiscation of proceeds of crime and the enforcement of foreign court orders.
When questioned about the signing of the treaty between the Republic of South Africa and Argentine Republic on Mutual Assistance in Criminal Matters, the two Ministers suggested that there are still challenges with crime suspects held in either South Africa or Argentina.
The two Ministers made it clear that the aim was to assist in closing the gap in respect of co-operation. The treaty is a framework of co-operation that will serve as guidance should the need arise in future. Therefore, no specific persons are being targeted. I move that the House adopt the treaty.
Debate concluded.
The HOUSE CHAIRPERSON (Mr T S Setona): That concludes the debate. I shall now put the question for the report to be adopted. As the decision is dealt with in terms of section 65 of the Constitution, I shall first ascertain whether all delegation heads are present in the Chamber.
In accordance with Rule 71, I shall first allow provinces the opportunity to make their declaration of vote, if they so wish. We shall now proceed to the voting on the question. I shall do this in alphabetical order per province. Delegation heads must indicate to the Chairperson whether they vote in favour, against or abstain from voting. Eastern Cape?
Ms B N DLULANE: Ondersteun. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Free State?
Mr C J VAN ROOYEN: Ondersteun. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Gauteng?
Mr S SHICEKA: Supports.
The HOUSE CHAIRPERSON (Mr T S Setona): KwaZulu-Natal?
Mr Z C NTULI: Ke ya rona. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Limpopo?
Kgoshi M L MOKOENA: Ondersteun. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Mpumalanga?
Ms F NYANDA: Re a e thekga. [Supports.] The HOUSE CHAIRPERSON (Mr T S Setona): Northern Cape?
Mr M SULLIMAN: Siyavuma. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): North West?
Mr Z S KOLWENI: Sihamba nayo. [Supports.]
The HOUSE CHAIRPERSON (Mr T S Setona): Western Cape?
Mr N J MACK: Ondersteun. [Supports.]
Report accordingly adopted in accordance with section 65 of the Constitution.
The Council adjourned at 15:20. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
MONDAY, 5 NOVEMBER 2007
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Classification of Bills by Joint Tagging Mechanism
(1) The Joint Tagging Mechanism, in terms of Joint Rule 160(6),
classified the following Bills as section 76 Bills:
(a) National Environmental Management Waste Bill [B 39 – 2007]
(National Assembly – sec 76).
(b) National Environmental Management: Integrated Coastal
Management Bill [B 40 – 2007] (National Assembly – sec 76).
-
Translations of Bills submitted
1) The Minister of Finance
a) Umthetho weeBhanki zeNtsebenziswano [B 13 – 2007] (National Assembly – sec 75).This is the official translation into isiXhosa of the Co-operative Banks Bill [B 13 – 2007] (National Assembly – sec 75).
TABLINGS
National Assembly and National Council of Provinces
- The Minister of Finance
(a) Report and Financial Statements of the Financial Services Board
on the Registrar of Pension Funds for 2005 [RP 97-2007].
COMMITTEE REPORTS
National Council of Provinces
-
Report of the Select Committee on Security and Constitutional Affairs on Mandating Procedures of Provinces Bill [B8-2007] (National Council of Provinces- sec 76), dated 25 October 2007:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Bill Mandating Procedures of Provinces Bill [B8-2007] (National Council of Provinces – sec 76(2)), referred to it and classified by the Joint Tagging Mechanism as a section 76 Bill, reports the Bill with amendments [B8A-2007].
-
Report of the Select Committee on Security and Constitutional Affairs on the Extradition Treaty between the Republic of South Africa and the Argentine Republic, dated 16 October 2007:
The Select Committee on Security and Constitutional Affairs, having considered the request for approval by Parliament of the Extradition Treaty between the Republic of South Africa and Argentine Republic referred to it, in terms of section 231(2) of the Constitution, recommends that the Council approves the said Treaty.
Report to be considered.
-
Report of the Select Committee on Security and Constitutional Affairs on the Extradition Treaty between the Republic of South Africa and the Argentine Republic on Mutual Legal Assistance in Criminal Matters, dated 16 October 2007:
The Select Committee on Security and Constitutional Affairs, having considered the request for approval by Parliament of the Extradition Treaty between the Republic of South Africa and Argentine Republic on Mutual Legal Assistance in Criminal Matters referred to it, in terms of section 231(2) of the Constitution, recommends that the Council approves the said Treaty.
Report to be considered.
TUESDAY, 6 NOVEMBER 2007
ANNOUNCEMENTS
National Council of Provinces
The Chairperson
- Message from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and returned to Council for concurrence:
(1) Bill amended and passed by Assembly on 6 November 2007 and
returned for concurrence:
(a) Children’s Amendment Bill [B 19D – 2006 (Reprint)]
(National Council of Provinces – sec 76(2)) (including textual
corrections, see Minutes of Proceedings of National Assembly,
6 November 2007, p2047).
The Bill has been referred to the Select Committee on Social
Services of the National Council of Provinces.
TABLINGS
National Assembly and National Council of Provinces
-
The Minister of Housing
a) Report and Financial Statements of the National Home Builders Registration Council (NHBRC) for 2006-2007, including the Report of the Auditor-General on the Financial Statements for 2006-2007.