Division of Revenue Amendment Bill [B27-2015]: final Mandates: Decision deferred

Meeting report

Division of Revenue 2015 Amendment Bill: Presentation of Final Mandates
The Chairperson noted that Advocate Frank Jenkins, Senior Parliamentary Legal Adviser, was in attendance to share a legal opinion on issues raised previously, and for ease of reference for Members. He also welcomed Mr Steven Kenyon, Director of Local Government and Budget Framework, from National Treasury. He noted that there were no apologies for absence, but that the Members from North West were not in attendance. He asked the Committee Secretary to table the final mandates.

The Committee Secretary said that there were six final mandates presented. Out of those six, five were in favour of the Bill. The provinces that managed to submit final mandates were Limpopo; Eastern Cape; KwaZulu-Natal (KZN); the Northern Cape; Mpumalanga and the Western Cape.

Eastern Cape mandate

Mr L Gaehler (UDM, Eastern Cape) said that the Eastern Cape final mandate supported the Bill. 

Free State mandate
The Chairperson said that the Free State was going to have a sitting on Friday that week to consider the final mandate.

Gauteng mandate

Ms T Motara (ANC, Gauteng) said that Gauteng had not yet considered its position on the mandate.

KwaZulu Natal

Mr L Nzimande (ANC, KwaZulu-Natal) said that KwaZulu-Natal’s vote conferred support for the Bill.

Limpopo mandate

Mr V Mtileni (EFF, Limpopo) said that he could not say for sure with regard to how Limpopo would be voting. He pointed out that the programme had not specified that today's meeting would be dealing with the voting and final mandates, and he was still waiting to see that on the agenda, so Limpopo had not yet discussed that. In his individual capacity, he did not want to pass matters just for the sake of passing them, although he could indicate that Limpopo had seemed to be in support of the Bill.

The Chairperson urged that Members should deliver only the mandates conferred on them by their provincial legislatures at this time, and not engage in any party-political debate. 

Mr F Essack (DA, Mpumalanga) asked for some guidance at this point. The Committee had deliberated at length on presentation of mandates in its previous session, and he thought that the Committee needed to follow certain procedures before having the meeting in which the final mandates were to be presented.

Mr Essack noted that he thought the Committee would have to get votes in favour of the Bill from at least five provinces, in order to move forward. He thought that the presentation from the Limpopo delegate was incorrect. The Northern Cape had given the wrong date on its mandate, of the date on which the matter had been deliberated.

The Chairperson said that Adv Frank Jenkins could give input on the issues, after hearing from the other provinces.

Mpumalanga mandate
Mr Essack noted that he was mandated to present Mpumalanga’s mandate, which was procedurally correct in that it was dated 19 November. Mpumalanga was in support of the Bill.

Northern Cape Mandate

Mr C De Beer (ANC, Northern Cape) said that the Northern Cape voted in favour of the Bill.

North West

The Chairperson said that Members for the North West could not attend the meeting, but had indicated that this provincial legislature had not yet been able to deal with the issue.

Western Cape mandate

Mr O Terblanche (DA, Western Cape) said that the Western Cape was not in favour of the Bill.

The Chairperson said that he would like Adv Jenkins to give his opinion on the issues raised by Mr Essack.

Ms C Labuschagne (DA, Western Cape) said that she agreed with having Advocate Jenkins present his opinion. However, she did not believe that there was any opinion needed on the final mandate of Limpopo. She pointed out that the date of 17 September was wrong as no provinces, and not even the National Assembly, had dealt with the Bill on that day.

 

Mr De Beer believed that this point did not prevent the Committee from proceeding with the matter. All Members needed to take responsibility for reading the relevant documentation before coming to the meeting. He proposed that the Committee proceed and give Advocate Jenkins the opportunity to take the Committee through the document that he had prepared.

Mr Essack pointed out that he had only received the documents and mandates when he had walked in to the meeting.

Mr Mtileni expressed the view that the Chairperson should not be asking Adv Jenkins to give his advice, nor should the Committee be passing Bills just for the sake of doing so. Members were trying to tell the Chairperson that there was a problem with Limpopo’s Order Paper that day. He said that maybe the Committee should exclude Limpopo from the current deliberations. He also said that Members were supposed to have been given the documents before the meeting to peruse them. Since this had not happened, he described it as “naïve” for the Chairperson to request Adv Jenkins to present an opinion.

The Chairperson noted that National Treasury had met on 12 and 17 November. He believed that the report that he had with him, from Limpopo,was an authentic report and that he did not doubt its reliability.

Mr Gaehler said that the Chief Whip had told the Members in a meeting held earlier that day that Limpopo was in the process of deliberations, so there was something wrong somewhere.

Ms E Van Lingen (DA, Eastern Cape) said that the Eastern Cape delegates had been in contact with provincial representatives in Limpopo, who said that the Order Paper was never discussed. There had been a plenary that afternoon but it was never discussed and the representatives were never approached in the House. The relevant people were not informed and it was not approved in the House. For this reason, that House must confirm a mandate.

The Chairperson said that he had with him the same Order Paper that the Secretariat had from Limpopo, which was a confirmation of that provincial legislature's deliberation on the Bill. He said that Members had to respect the Province. He said that the report confirmed that the Province had considered the matter and that it did appear in the Order Paper.

Mr Mtileni said that mandates should be accompanied by minutes, so that the Committee could verify the mandates. Provinces could print anything in their reports. He still asserted that the Committee needed to check if the legislature had actually met and discussed the Bill.

The Chairperson said that Mr Mtileni had made his point.

Ms Van Lingen asked the Chairperson why, if the Chairperson was so convinced that the report from Limpopo was authentic, copies had not been circulated to Members.

Ms Labuschagne said that she was now totally confused because the purpose of the meeting was to have provincial representatives present the final mandates of their provincial legislatures. To her knowledge, order papers and minutes were not the final mandate. The date given for the final mandate was supposedly 17 September, and that was quite wrong. She told the Chairperson that if he ignored this error, it would have far reaching implications for the authenticity of the Committee.

The Chairperson said that Ms Labuschagne had made her point, but the Committee needed to deal with what was on the agenda. He allowed Mr Gaehler to comment.

Mr Gaehler said that there had been a multi-party meeting that day. In that meeting, the Free State Legislature’s Whip had said that he was waiting for the final mandate of Limpopo.

Ms Motara said that Gauteng had indicated in the same meeting that, at the time when the Whippery met, there were only four mandates, and Gauteng was waiting for the sitting to be held. Gauteng would be making its decision at the conclusion of that sitting. . She said that Gauteng would make its decision pending the conclusion of that sitting. She said that that was what she had clarified in the meeting earlier that day.

Mr Mtileni said he thought it was a matter of interpretation and that his interpretation differed from what other Members were saying about the validity of the mandate. The Committee was not voting on the Bill in that meeting, but was merely receiving mandates and would then report to plenary. Four final mandates had been given to the Committee.

Mr Essack said that in his opening remarks he had pointed out to the Chairperson the issue of the invalidity of the final mandate. He said that due process was not being followed. He could not understand how the Chairperson considered these mandates to be valid.

Mr Terblanche was concerned that this meeting did not appear to be following the legislative requirements, and he felt that before going any further, clarity was needed.

Ms Motara said that the Committee needed to ascertain whether the mandates were in order or not. Having done that, the Committee could determine whether it had the five mandates necessary to pass the Bill. The voting mandates were to be presented to the House of the National Council of Provinces. Each legislature had its own rules. When Members had met with the Chief Whip at 2pm that day, they had been told that the Limpopo legislature was sitting.

She asked if the Committee could ascertain if it did indeed have five final mandates at this point in time.

Ms Van Lingen repeated that Members had not seen the Order Paper.

Legal opinion from Parliamentary Legal Advisers
Mr De Beer said that Advocate Jenkins should now give his opinion.

Mr Mtileni persisted that he wanted to see the report which showed the item on the Order Paper. He suggested that Mr De Beer was trying to push for the meeting to proceed because the ANC had the advantage in terms of numbers. He further stated that he would not be happy with Adv Jenkins being asked to present his opinion because the Chairperson was not taking the Members’ concerns seriously. He said that the Committee was doing things incorrectly and that he wanted sight of all the Order Papers of all the Provinces.

The Chairperson noted that some very important views had been expressed by Members in the meeting, and summarised that some Members were raising procedural issues. The provincial legislatures had conferred their final mandates and he had given Members ample time to make comments. He thought that Mr Mtileni was raising irrelevant issues.

Ms van Lingen said that when there was clearly a mistake on a mandate, it simply could not be accepted as a proper mandate. Limpopo could still provide a voting mandate, and it could still vote in favour of the Bill. The Chairperson had promised Members that he had the Order Paper. She said that he could not have the correct one, because the Bill had not been discussed in the House on that day.

The Chairperson said that he had now asked the Committee Secretary to circulate the report which confirmed that the Province had indeed deliberated on the Bill. He asked Ms van Lingen how she wanted to ascertain that Limpopo had met, if she did not believe the report that the Province had submitted. He said that she was making allegations with no basis to arrive at her suggestions. He also warned her to respect the meeting, and cautioned that Members were not allowed to accuse other Members of lying. He said that the Members had now received the report from the Secretary.  Ms van Lingen was raising issues which, in her view, constituted an irregularity. He thanked Members for making their contributions and said that the Committee had heard all views.

Ms Labuschagne told the Chairperson that the fact that he is the Chair does not give him the right to make certain statements, and not allow the Members to express their own views. The report which had been circulated to Members in the meeting had the wrong final mandate stapled to the front. She said that she was not calling anyone a liar, but she believed that this was still an incorrect mandate that was circulated, no matter what opinion Adv Jenkins might give.

The Chairperson said that now that the Committee was sitting with the final mandate as circulated, he could ask Adv Jenkins to proceed with his presentation.

Adv Jenkins thanked the Chairperson, and started to speak but was interrupted.

Mr Mtileni said he was shocked that the Chairperson was still pushing for Advocate Jenkins to offer his opinion. He said that the Chairperson was wrong, and Members knew that he was wrong.

Adv Jenkins continued that his legal opinion, prepared on the day before, had been handed out to Members and that document dealt with the negotiating mandates.

He provided a background to the issue and said that the challenge that the Committee was engaged with related to negotiating on a draft Bill. He said that the Money Bills Amendment Procedure and Related Matters Act, 2009 (MBAPRMA) was up for review, and that there would be a new amendment next year as there was recognition that it needed refinement and development. He said that the Committee was dealing here with the Mandating Procedures of Provinces Act (the Mandates Act), and what must be in a mandate. The Mandates Act stipulated that a Bill presented to the NCOP must be voted upon after a final mandate and a voting mandate, but that there were some instances in which a voting mandate was not needed.

The other principle related to the interpretation which, as Mr Nzimande had mentioned earlier in the meeting, must be purposive and must be in context. The meeting that day was dealing with final mandates. Members had said, in this meeting, that they had issues with incorrect dates on documents. For example, the date of “17 September” was clearly wrong and the Committee and the legal advisers could discuss the legal result of that error. In addition, the Eastern Cape mandate bore the date of “16 September” and the Northern Cape had the date of “18 September”.

The format for final mandates required that there must be a date of deliberation on the mandates. A final mandate was slightly more problematic, because they could tacitly ratify a negotiating mandate if the negotiating mandate was given on a draft Bill, provided that the two documents (draft and final Bills) were exactly the same. That was the case here.

He said that there were two options that the Committee and the staff could entertain. The first option took into consideration what any report to the National Council of Provinces must indicate. In order to report that a Bill had been approved or had been rejected, there needed to be sufficient mandates. The Committee did not have sufficient mandates, in this case, to come to a conclusion. Therefore he agreed with what Mr Nzimande had said, that the matter should be referred to the House if this Bill was not passed.

The other option was to now attend to getting all final mandates correct, and then continue as usual. According to Section 6 of the Mandating Procedures of Provinces Act 52 of 2008, every Province must submit a final mandate.

Those were the two options that should be considered.

Discussion
The Chairperson suggested that, in light of the options presented by Adv Jenkins, the decision should be deferred until the meeting on the following Tuesday. He asked if Members would agree to this.

No Members objected to the issues being deferred until the following Tuesday.

Mr Terblanche thanked Adv Jenkins for his presentation, which he said had helped very much. He still maintained that Limpopo had not had any proper discussion on the Bill or deliberated on the Bill. The Committee therefore needed to postpone the meeting and continue it once the Committee was sure that Limpopo had deliberated on the Bill.

Mr Mtileni asked that, since the Committee was now to sit again on the following Tuesday,  all the Provinces should furnish Members with their Order Papers and minutes.

The Chairperson noted that this request was not in accordance with the legislation applicable and could not be entertained.

The meeting was adjourned