Division of Revenue Bill: Final Mandates

Meeting report

The Chairperson greeted Members of the Select Committee and other guests on the platform and declared that the meeting was open.

The day's agenda was to consider and adopt the final mandates on the Division of Revenue Bill [B6-2022].

The Committee Secretariat indicated that no apologies were received.

The Chairperson noted that Ms Z Ncitha (ANC, Eastern Cape) had informed her earlier that she struggled with connectivity.

Final mandates

Eastern Cape

Mr M Rayi (ANC, Eastern Cape) voted in favour of the Division of Revenue Bill [B6-2022].

Free State

Mr M Moletsane (EFF, Free State) voted in favour of the Division of Revenue Bill [B6-2022].

Gauteng

Mr D Ryder (DA) noted that the mandate submitted by his province was not in compliance with the Mandating Procedures of Provinces Act as the mandate did not contain the provincial letterhead, which is a requirement per the Act. Hence, he said that he could not present the mandate.  

KwaZulu-Natal

Mr Y Carrim (ANC, KZN) voted in favour of the Division of Revenue Bill [B6-2022].

Limpopo

Ms M Mamaregane (ANC, Limpopo) voted in favour of the Division of Revenue Bill [B6-2022].

Mpumalanga

The Chairperson, as the permanent delegate of Mpumalanga in the NCOP, voted in favour of the Division of Revenue Bill [B6-2022].

Northern Cape

Mr W Aucamp (DA, Northern Cape) voted in favour of the Division of Revenue Bill [B6-2022].

North West

Mr F Du Toit (FF+, North West) voted in favour of the Division of Revenue Bill [B6-2022].

Western Cape

Mr E Njadu (ANC, Western Cape) voted against the Division of Revenue Bill [B6-2022].

Discussion

The Chairperson sought clarity on the compliance issue on Gauteng’s mandate.

Adv Frank Jenkins, senior parliamentary legal advisor, responded that the Mandating Procedures of Provinces Act was very clear that the mandates must be on a document with the province’s letterhead. As he did not see a letterhead from Gauteng, his opinion, from a legal point of view, was that the document submitted by Gauteng was not compliant with the Act.

The Chairperson asked how the Committee could best deal with the matter.

Adv Jenkins advised that the Committee could clarify in its report that the Committee had received the mandate from Gauteng but it did not comply with the requirements as set out by the Mandating Procedures of Provinces Act.

Mr Ryder commented on Treasury’s responses to provinces’ negotiating mandates. He commended those responses and believed that many issues highlighted and discussed in the response would assist Members in preventing having the same issues raised again and again in future. However, Mr Ryder felt there were certain missing elements in those responses. The missing elements were the space for political leaders in Treasury, such as the Minister of Finance, to fill in. Hence, Mr Ryder suggested that the Minister of Finance must be present to respond to some questions in negotiating mandates in the future. For instance, he drew Members’ attention to the sustainability of the municipalities’ fiscal services. There was a need to review the allocation formula to municipalities with a high unemployment rate or no economic activities. Mr Ryder was satisfied with Treasury’s response which he said was adequate from an administrative perspective but there were other elements which he sought that could only be responded to by a political leader.

Mr Njadu agreed with Adv Jenkins’ advice.

Mr Carrim suggested the Chairperson write to the Speaker of the Gauteng Legislature and the committee chairperson in the province.  

Adv Jenkins agreed with Mr Carrim’s suggestion.

Mr Ryder said that he was uncertain whether other Members well understood his points. He clarified that his point earlier was that the Minister should also participate and respond to provincial negotiating mandates in the future.

The Chairperson fully understood and agreed with Mr Ryder's view. She also recommended Mr Ryder write to National Treasury if he had any clarity-seeking questions.

Report of the Select Committee on Appropriations on the Division of Revenue Bill [B6-2022]

On 10.4, Mr Ryder added that “the South African Local Government Association (SALGA) should have ensured with all recognised traditional leadership”.

On 10.5, Mr Ryder indicated that the Committee should not create an impression that the Select Committee was of the view that the national and the provincial governments should not intervene in the cases of dysfunctional municipalities. The Committee should clearly state in its report that it is the Select Committee’s view that the national and the provincial governments should intervene in the governance of municipalities when the situations require intervention. And when the national and the provincial governments intervene, that intervention should be decisive. In the many municipalities where s139 of the Constitution is being implemented, people see ineffective intervention and prolonged intervention process which can be attributed to the cautious intervention approach.

Mr Du Toit supported Mr Ryder’s proposal. He added that if intervention takes place, there must be consequence management measures simultaneously against the executive who failed to do the work.

The Chairperson was uncertain about the legality of such an issue but she knew that what prompted Mr Ryder to make such input was because of the situation in Emfuleni municipality.

Mr Njadu cautioned the Committee that the approach to intervention should not adopt a one-size-fits-all approach as the scenarios in municipalities are different.

The Chairperson noted Members’ input on consequence management and indicated that this issue had been persistently emphasised in all the Committee’s reports.

On 10.16, Mr Du Toit suggested that the Committee indicates to Treasury that it must list the salary component separately from the rest of the grants because a large part of the total amount is spent on salaries.

On 10.19, Mr Ryder suggested adding “their committees” after “legislatures”.

Mr Njadu agreed with that amendment.

Mr Ryder raised the concern that the Select Committee had taken too long to pass the Division of the Revenue Bill, given that the Select Committee had adopted the Fiscal Framework on 9 March 2022. The Money Bills Amendment Procedure and Related Matters Amendment Act 13 of 2018 states that the Committee has 35 days or as soon as reasonably after the 35 days from adopting the fiscal framework to pass the Division of Revenue Bill. He believed that the 35-day period was retained for a reason to indicate the urgency of passing a money bill. He reminded Committee Members that today was day 63 following the adoption [of the Fiscal Framework], which was almost double the time stipulated as a reasonable number of days. He said that the Committee was being a bit negligent in its duty and could have processed the Bill faster.

The Chairperson reminded Mr Ryder that the Committee received many indications from provincial legislatures that it would not be doing the Bill justice if provinces were not given adequate time to deliberate on the Bill. The Select Committee was stuck in a Catch-22 position. The Chairperson asked Adv Jenkins to provide more legal input on the required day’s matter.

Mr Carrim interjected and said that Members such as Mr Ryder must also be realistic with the situation. He reminded Mr Ryder that the DA Members had demanded more time to process the Bill if his memory served him right. Mr Carrim also reminded Mr Ryder of the constituency period, public holidays, etc., which fell during this period of time and urged him to be more reasonable on the issue.

Mr Njadu suggested that the report could include a point to indicate that the programme of the Select Committee will adhere to timeframes in future.

Adv Jenkins explained to Mr Ryder that the days defined in the Act exclude weekends, public holidays, and the recess periods of the Houses.

Mr Ryder noted Adv Jenkin’s explanation and agreed that today was day 41. But he argued that his point stemmed from the sudden concentration of bills in the National Assembly which could eventually all come through at the same time to the NCOP. Hence, he believed that the 35-day period probably was not the right way of doing it and suggested it be changed. Mr Ryder withdrew his comment with an apology.

Adv Jenkins reaffirmed his view and believed that the Bill was still within the required timeframe. However, he agreed with Mr Ryder that the 35-day process might be problematic or too unrealistic a timeframe for committees to adhere to and should be reviewed.

The Committee report on the Division of Revenue Bill [B6-2022] was adopted.

Mr Ryder indicated that the DA reserved its right to adopt the report.

Mr Du Toit indicated the Freedom Front Plus also reserved its right to adopt the report.

Mr Moletsane indicated that the EFF reserved its right to adopt the report.

Mr Njadu raised a point of order indicating that it is incorrect that a permanent delegate in the NCOP, sent by their respective provinces to present the mandates, now expresses the views of their political parties. He reminded Members that they are representatives of their provinces.

The Chairperson asked Adv Jenkins to provide legal guidance on the matter.

Adv Jenkins explained the procedure in the House is that reports and bills get adopted separately. Members’ freedom of speech should be seen in the context of when those bills are conferred or transmitted to the Committee for its consideration. Members’ freedom of speech should be seen within the confines of the Constitution and any other relevant legislation, such as the Mandates Act, relevant to today’s meeting. He highlighted the importance of those reports as they sometimes get challenged in court. Since s76 legislation processes require provinces to give mandates, including party political views in the report will not be damaging or be seen as illegal but those views do not belong in the report. He highlighted that the matter before the Committee is a provincial matter, not a political party matter.

Mr Aucamp indicated that since the Bill has a mandate, the report should include the views of other political parties as they otherwise could not report back to their constituencies.

Mr Du Toit agreed with Mr Aucamp and threatened that if the Select Committee would not allow the Freedom Front Plus to state its reservation on the adoption of the report, then he would object to the report on behalf of his party. He felt bullied and threatened to leave the virtual platform.

The Chairperson said that she did not believe the situation had gotten so bad that Mr Du Toit should feel the need to leave the meeting. She did not think it fair to describe the situation as bullying other parties’ views.

Mr Du Toit asked the Chairperson why Members had not been informed that they would not have the right to object to the report.

Mr Njadu cautioned certain Members against undermining or disrespecting the Chairperson because she was trying to debate and discuss a matter which Members had raised. Members were discussing the legality of whether a permanent provincial delegate should hold their political party's view and have such views included in the report even if contrary to those of their provinces. He insisted that Mr Du Toit withdraw his bullying remark.

Mr Carrim clarified and appealed to Members that the Chairperson does not determine the rules and she also had to work within the confines of the rules.

Mr Ryder believed that the Bill and the report were two separate issues. The structure of Parliament’s committees is carefully put together, representing different parties. The purpose of that is to show a representative balance and party balance. He believed that the view of his party and those of his colleagues should be included in the report.

Mr Moletsane concurred and emphasised that the report must reflect the position of the EFF.

The Chairperson informed those Members that the minutes would capture the views of their political parties.

Mr J Mpisi (ANC, Gauteng Legislature) expressed his frustration at this process and indicated that if Members behaved in the way Mr Ryder, Mr Du Toit and Mr Moletsane did, provinces would not make any contribution to the NCOP in future. The Gauteng Provincial Legislature mandated Mr Ryder carry its provincial mandates into the discussion. Mr Mpisi found it very odd that Mr Ryder is saying that he reserved his right as a DA Member when the provincial legislature sent him to the NCOP, not the DA. Mr Mpisi also clarified that the Chairperson did not bully anyone.

The Chairperson said that she had tried to accommodate every Member and patiently listened to their views. She had also consulted the Legal Advisor and given Members the space to talk to each other. She believed it was about time for her to make a ruling on the matter and instructed all Members to lower their hands. She noted that this was not the first time that Committee Members had discussed the matter.

Committee minutes dated 4 May 2022 were adopted.

The meeting was adjourned.