Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill: deliberation and finalisation

NCOP Security and Justice

20 February 2019
Chairperson: Mr S Mthimunye (ANC; Mpumalanga)
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Meeting Summary

Relevant documents: Public comments matrix

The Committee met for deliberations on the written comments received from the public on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill. Two submissions had been received from Mpumalanga and Western Cape Provincial Legislatures.

The Mpumalanga Provincial Legislature submitted a proposal to include reference to section 117(1) (b) of the Constitution in the second paragraph of the preamble to the Bill. This 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 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”.

In response, Parliamentary Legal Services pointed out the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill is an amendment Bill.  Usually Amendment Bills do not contain preambles. However, there were 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. Notably, 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 did not mean that the Bill does not refer to section 117(1) of the Constitution. Section 28 of the principal 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 was submitted that it is not necessary for the preamble to include a reference to section 117.

The Western Cape Provincial Parliament submitted that clause 9(c) be amended to read as follows: “by the addition after subsection (2) of the following subsection: “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”. Parliamentary Legal Services, in response, said clause 9(c) of the Bill was included following input received from the Western Cape Legislature. Their submission was 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.

In response,the legal advisor pointed out 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. It is therefore submitted that it is correct to say that an ad hoc committee is established and a standing committee is appointed.

Members asked about the implications of having other provinces not commenting on the Bill. They noted that only two out of nine gave comments. Any further delays in the processing of the Bill would unnecessarily cost taxpayers money. In addition, this was a section 75 bill and there was no requirement for all the legislatures to give input.

The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill was unanimously adopted by the Committee without amendments. The Report on the Bill was also adopted unanimously.

Meeting report

Deliberations on the written comments received on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill
The Chairperson welcomed everyone to deliberations on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill. This was the second tabling of the Bill before Committee; the first being in October 2018. He believed the piece of legislation needed to be taken further as it had a number of shortcomings which the Committee might not be able to address before the end of the parliamentary term. He invited parliamentary staff to take the Committee through public comments and responses from Legal Services.  
 
Ms Anthea Van Der Burg, Committee Content Advisor, said comments had been received from two provinces: Mpumalanga and the Western Cape.
 
Comment from the Mpumalanga Provincial Legislature
The Mpumalanga Provincial Legislature submitted a proposal to include reference to section 117(1) (b) of the Constitution in the second paragraph of the preamble to the Bill. This 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 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”.
 
Response to comment from the Mpumalanga Provincial Legislature
Ms Daksha Kassan, Parliamentary Legal Advisor, highlighted the response to the aforementioned comment. She pointed out the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill is an amendment Bill.  Usually Amendment Bills do not contain preambles. However, there were 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. Notably, 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 did not mean that the Bill does not refer to section 117(1) of the Constitution. Section 28 of the principal 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 was submitted that it is not necessary for the preamble to include a reference to section 117.
 
Comments from the Western Cape Provincial Parliament
Ms Van Der Burg said the Western Cape Provincial Parliament submitted that clause 9(c) be amended to read as follows: “by the addition after subsection (2) of the following subsection: “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.” The reasons for the proposal were as follows:
 
- The expression “choose to”, in this context, seems redundant.
- 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.
 
The Western Cape Legislature further proposed that the word ‘appoint’ be used in respect of both standing committees and ad hoc committees. 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.
 
Response to comments from the Western Cape Provincial Parliament
Ms Kassan, in response, said clause 9(c) of the Bill was included following input received from the Western Cape Legislature. Their submission was 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.
 
However, 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. It is therefore submitted that it is correct to say that an ad hoc committee is established and a standing committee is appointed.
 
Further, 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.
 
Discussion
Dr H Mateme (ANC, Limpopo) asked about the implications of having other provinces not commenting on the Bill. She noted only two out of nine gave comments.
 
The Chairperson said he took it upon himself to write to all provincial legislatures inviting submissions on the Bill, over and above the call for public submissions made by the National Assembly.
 
Ms Kassan indicated that given this was a section 75 Bill, there was no need for provincial mandates as is the case for section 76 Bills. In this instance, Parliament’s obligation was to invite public comments by way of posting adverts-which was done by the National Assembly. It was not mandatory for the provinces to give comments on the Bill.
 
Mr G Michalakis (DA; Free State) said any further delays in the processing of the Bill would unnecessarily cost taxpayers money. A good Bill was before the Committee, and the DA was fairly happy. He moved for the adoption of the Bill.
 
Mr D Ximbi (ANC; Western Cape) seconded.
 
The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill was adopted unanimously without additional amendments.
 
Consideration of Report on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill
The Chairperson said the Report would indicate the Committee had agreed to adopt the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill without any further amendments. He put the Report up for adoption.
 
Mr J Mthethwa (ANC; KZN) moved for adoption.
 
Mr M Chetty (DA; KZN) seconded.
 
The Report on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill was adopted unanimously.
 
The meeting was adjourned.
 

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