Constitutional, Legislative and other Mandates
Members of the Provincial Legislature are elected to represent the people and their constitutional mandate is to ensure Government by the people, by providing a forum for public consideration of issues, by passing transformatory legislation, scrutinising and overseeing executive organs of state.
- The core function of the Legislature is to pass laws for the North West Province and to oversee organs of state.
- The Main Services to be delivered by the North West Provincial Legislature are the following:
- To pass or amend a constitution for the North West Province.
- To pass legislation for the North West Province.
- To recommend to the National Assembly legislation concerning any matter outside the authority of the North West legislature, or where national law prevails over the provincial law.
- To oversee the activities of the Executive Council and other organs of state; and
- To ensure public participation and oversight activities of the Legislature.
Values and Principles
In striving for service excellence and best practice, the Legislature subscribes to the following values:
The Legislature shall at all times act in a fair manner towards executing its duties. We will also uphold our principles of impartiality and independence.
b. Transparency, Accessibility and Accountability
The Legislature is committed to upholding the Batho Pele principle of transparency, accountability and accessibility. The Legislature undertakes to, at all times, be accessible to all stakeholders, to be transparent in the conduct of its core business, and to take full accountability of its actions.
The Legislature is committed to improving and developing its public participation processes. To involve stakeholder in the legislative process.
The 3 Arms of Government
The Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa. Executive authority is vested in the President of South Africa, who is head of state and head of government, and his Cabinet. The president is elected from the Parliament to serve a fixed term. South Africa’s government differs greatly from those of other Commonwealth nations. The national, provincial and local levels of government all have legislative and executive authority in their own spheres, and are defined in the South African Constitution as “distinctive, interdependent and interrelated”.
Operating at both national and provincial levels are advisory bodies drawn from South Africa’s traditional leaders. It is a stated intention in the Constitution that the country be run on a system of co-operative governance.
The government is undertaken by three inter-connected arms of government:
Legislature: The National Assembly and the National Council of Provinces Executive: The President, who is both Head of State and Head of Government Judiciary: The Constitutional Court, the Supreme Court of Appeal, and the High Court All bodies of the South African government are subject to the rule of the Constitution, which is the supreme law in South Africa
PARLIAMENT (NATIONAL LEGISLATURE)
The legislature makes the rules, and supervises the acrafts of the other two governments with permission to changing the laws when appropriate. The bicameral Parliament of South Africa consists of the National Assembly (four-hundred seats; members are selected by a popular vote under a system of proportional representation to serve 5-year terms) and the National Council of Provinces (90 seats, 10 members elected by each of the nine Provincial Legislatures for five-year terms). The National Assembly is elected using a Proportional Representation system with regional multi member constituencies (MMCs) and one national MMC. Parties put up open lists for either both parts of the system or for the regional MMCs only. Half of the members of the National Assembly are chosen from nationwide party lists, the other from party lists for each province.
The National Parliament is tasked to make laws that apply to the whole country, and it is able to make laws dealing with any area that has not been assigned exclusively to the provinces under Schedule 5 of the Constitution.
The National Parliament is made up of two “Houses,” which are known as the “National Assembly” and the “National Council of Provinces” (NCOP). The NCOP was established in the new Constitution to allow provinces to have a direct input in all matters of national concern, and particularly those matters which affect the provinces. The National Council of Provinces is discussed further elsewhere.
The representatives in the National Parliament are called Members of Parliament (MPs). At the national level, there are 400 MPs in the National Assembly, and the NCOP is made up of ten delegates from each province. The National Assembly and the NCOP are collectively called the Houses of Parliament. The person who the presiding officer in the National Assembly or in the North West Provincial Legislature, and who is in charge of the proceedings, is known as the Speaker.
Following the implementation of the new constitution on 3 February 1997 the National Council of Provinces replaced the former Senate of South Africa with essentially no change in membership and party affiliations, although the new institution’s responsibilities have been changed; with the body now having special powers to protect regional interests, including the safeguarding of cultural and linguistic traditions among ethnic minorities. In ordinary legislation, the two chambers have coordinate powers, but all proposals for appropriating revenue or imposing taxes must be introduced in the National Assembly.
The elected representatives of the people, either the MPs or the Members of the North West Provincial Legislature (MPLs), make up the Parliament or the Legislature, respectively. The party that wins the most votes obtains the most seats in the Parliament or legislature, and becomes the “majority party”. The party majority party gets the chance to govern the country or the province for a period of five years.
At the national level, the majority party elects the President, who then appoints Cabinet Ministers from the MPs of the majority party to form the national government.
The parties other than the majority party who have been elected to the Parliament or Legislature are collectively known as the “opposition”, and the opposition party which has won the greatest number of seats is known as the “official opposition” party. The leader of the “official opposition” party is called the “leader of the opposition”. Opposition parties play a vital role in a democracy, which is to ensure that the government does not abuse its position of power in any way, to raise issues, and to express alternative points of view on matters before the
Under the prevailing Westminster system, the leader of the political party or coalition of parties that wins a majority of the seats in the National Assembly is named President. The President and the Ministers are responsible to the Parliament, of which they must be elected members. General elections are held at least once every five years. The voter has one vote only for the National Assembly. The last general election was held the 22nd April 2009.
The second arm of government is the President, Deputy President and the Ministers who make up the executive branch of the South African state. Ministers are Members of Parliament who hold a ministerial warrant to perform certain functions of government.
At the national level, the head of the Executive is the President, who is assisted by the Executive Deputy President. The President is assisted by the Cabinet Ministers. Each Cabinet Minister is given responsibility for a particular government department, and they are answerable to the Parliament for the operation of their department. For example, the Minister of Education heads the National Department of Education, and is answerable to Parliament for the operation of the Department of Education. The President and the Cabinet Ministers are called the “Executive”, because they are responsible for “executing” the laws made by Parliament.
The third arm of the central government is an independent judiciary. The Judiciary interprets the laws, using as a basis the laws as enacted and explanatory statements made in the Legislature during the enactment. The legal system is based on Roman-Dutch law and English common law and accepts compulsory ICJ jurisdiction, with reservations. The constitution’s bill of rights provides for due process including the right to a fair, public trial within a reasonable time of being charged and the right to appeal to a higher court. To achieve this, there are three major tiers of courts:
Magistrates Courts – The court where civil cases involving less than R100 000, and cases involving minor crimes, are heard.
High Courts – The court of appeal for cases from the magistrates courts, as well as the court where major civil and criminal cases are first heard. Supreme Court – The final court of appeal for matters not pertaining to the constitution.
Constitutional Court – The final court of appeal for matters related to the constitution In addition provision is made in the constitution for other courts established by or recognised in terms of an Act of Parliament.
The Constitutional Court has exclusive jurisdiction over certain types of matters, in terms of section 167 of the Constitution.
The Constitutional Court alone may decide on the following matters:
(a) disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
(b) the constitutionality of any parliamentary or provincial bill;
(c) applications made by MPs or MPLs regarding the constitutionality of national legislation or a provincial act;
(d) the constitutionality of any amendment to the Constitution;
(e) whether Parliament or the President has failed to fulfill a constitutional obligation; or
(f) certify a provincial constitution.
A High court may decide any constitutional matter, except a matter over which the Constitutional Court has exclusive jurisdiction or a matter assigned by an Act of Parliament to another court of a status to that of the High Court.
The Supreme Court of Appeal may decide appeals in constitutional matters. It is the highest court of appeal in non-constitutional matters.
The Supreme Court of Appeal, a High Court, or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President. However, an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.
3 ARMS OF GOVERNMENT IN THE PROVINCES
The 3 arms of government in the provinces are run along the same lines as those on a national level. There is the legislative, the executive and the judiciary. The legislative arm in the provinces is called the Provincial Legislature.
In South Africa, the Provincial Legislature of a province is the legislative branch of the government of that province. The Provincial Legislatures are unicameral and vary in size from 30 to 80 members depending on the population of the province. In general the Provincial Legislature is made up of only one “House”. MPLs are elected for five years, just as the MPs in Parliament are. At the provincial level, the Premier heads the “executive”. The Premier appoints MPLs from the majority party to be Members of the Executive Council (MECs), and the Premier and the MECs form the “government”.
In addition to the above “Houses”, the new Constitution allows for the formation of additional Houses of traditional leaders, both on a national and provincial level, who may play a role at a local level on matters affecting local communities.
The North West Provincial Legislature currently has 33 MPLs and is situated in Mmabatho, the capital of the North West Province. Currently, there are 25 MPLs for the African National Congress, 3 MPLs for the Democratic Alliance (DA) – official opposition, and 2 MPLs for Congress of the People (COPE) and 2 MPLs for the United Christian Democratic Party (UCDP).
NORTH WEST PROVINCIAL LEGISLATURE
In the North West the Legislature has 33 seats. The Presiding officers in the North West Provincial Legislature are the Speaker, the Honourable Nono Maloyi, the Deputy Speaker, the Honourable Veronica Kekesi and the Chair of Chairs, the Honourable Raymond Elisha.
The current North West Provincial Legislature was established by the 1993 Interim Constitution of South Africa upon the creation of the new nine provinces. The 1993 Constitution came into effect (and the provinces came into existence) on 27 April 1994; the election on the same day elected the first PROVINCIAL Legislatures. For the most part, the PROVINCIAL Legislatures have been controlled by the African National Congress. The exceptions are the KwaZulu-Natal Legislature, which was controlled by the Inkatha Freedom Party from 1994 to 2004; and the Western Cape Provincial Parliament, which was controlled by the (New) National Party from 1994 to 2004 (sometimes in coalition with the Democratic Party) and since 2009 has been controlled by the Democratic Alliance.
HOW ARE MPLS ELECTED?
The Members of the North West Provincial Legislature (MPLs) are elected by party-list proportional representation with a closed list, using the largest remainder method with the Droop quota to allocate any surplus. Elections are run by the Independent Electoral Commission, and are held every five years, simultaneously with the elections to the National Assembly. Elections have been held in 1994, 1999, 2004 and 2009.
WHAT ARE THE POWERS OF THE LEGISLATURE?
The legislature has the power to pass legislation in various fields enumerated in the national constitution; in some fields the legislative power is shared with the National Parliament, while in others it is reserved to the province. The fields include such matters as health, education (except universities), agriculture, housing, environmental protection, and development planning. In fields outside the power of the North West Provincial Legislature, it may recommend legislation to the National Assembly.
The North West Provincial Legislature may also enact a constitution for that province, if two-thirds of the members vote in favour. The powers of the North West Provincial Legislature are bound only by the national constitution and the provincial constitution (if one exists). There is no provincial Constitution in the North West so it is bound by the national Constitution.
The second arm of government, te executive, in the province is headed by the Premier is usually appointed by the President. He/She is supported by ten MECs, each of whom is responsible for a particular provincial department, and is answerable to the Legislature for the functions of that department and they are collectively called EXCO which comprises 10 MECs (Members of the Executive Council) who are each responsible for a provincial department. Certain bills and competencies may only be passed by Parliament and the ministries e.g. money bills and justice.
The function of the Executive is to put the laws made by the Legislature into effect, and to ensure that they are implemented. The Executive must make sure that all of the necessary support systems and structures are in place so that the law can be implemented (for example, to ensure that there are enough schools built, and supplies provided to the schools, so that education can be provided to learners). The Executive is really responsible for running the country or province on a practical level. This is done through the government departments, which is also called the Public Administration or the Public Service.
The legislature can force the Premier to resign by passing a motion of no confidence, or remove them for misconduct or inability. Although the Executive Council (cabinet) is chosen by the Premier, the legislature may pass a motion of no confidence to force the Premier to reconstitute the Council.
A North West Provincial Legislature also appoints that province’s delegates to the National Council of Provinces, allocating delegates to parties in proportion to the number of seats each party holds in the legislature.
The provincial judiciary operates in much the same way as the national judiciary. The judiciary is the branch of government that deals with the administration of justice. The judiciary is responsible for ensuring that the law is upheld, interpreting the law, applying the law to specific cases, and that those citizens who have broken the laws are punished. The courts, the judges and the magistrates comprise the judiciary.
The judicial system is made up of five categories of courts:
- The Constitutional Court, which is the highest court of appeal in constitutional cases. It may also, on rare occasions, act as the court of first instance (where the case is first heard in court) in constitutional cases. It does not have jurisdiction to hear cases which do not involve a constitutional issue.
- The Supreme Court of Appeal is the highest court of appeal in non-constitutional cases. It can also hear appeals in constitutional cases, but the Court’s decision in constitutional matters potentially may be further appealed to the Constitutional Court.
- The High Courts are courts of first instance in certain matters, and they may also act as courts of appeal for magistrates’ courts decisions. An appeal of a decision of a single judge of the High Court potentially also might be appealed to a full bench of the High Court, comprised of three judges.
- Magistrates’ Courts
- Any other court established or recognised in terms of an Act of Parliament. This includes courts similar in status to High Courts or Magistrates’ Courts. Examples include the Labour Court and the Land Claims Court.
The National Council of Provinces (NCOP)
The National council of Provinces is one of the two Houses of Parliament. The institution was established by the Constitution to replace the old Senate and to represent the interest of the provinces and local government at the national level. Also to ensure that provinces participate in the national legislature process.
Members of the Council are drawn from the Provincial Legislatures to represent their provinces.
The National Council of Provinces construction is based around the notion of nine provincial delegations, with each province having the same number of votes irrespective of size or wealth.
Each province has 10 delegates. There are 4 special and 6 permanent delegates. The delegation is headed by the Premier of each province who is one of the special delegates. If necessary, the Premier can appoint someone to take his or her place.
Each provincial delegation of ten (10) reflect the party political power balance of the particular North West Provincial
Legislature and will comprise of the following:
- Six (6) Permanent delegates;
- The Premier of the Province, or when he or she is unavailable, a designated substitute drawn from the North West Provincial Legislature;
- Three special delegates, who must also be members of the North West Provincial Legislature wit the concurrence of the Premier.
The allocation of the Permanent delegate and special delegate to the North West Provincial Legislature is governed by Clause 7 (1) (b) of schedule 6 of the final Constitution.
How does one become a member of the National Council of Provinces? Within days after an election the North West Provincial Legislature will nominate six delegates whose names were put forward by political parties that secured seats in the Council according to a formular outlined in the Constitution. In addition, there are four special delegates who attend sittings based on the bill or debates before the House. How the National Council of Province Work? After the National Assembly has passed a Bill (draft law), it must go to the National Council of Province. There are three kinds of Bills the NCOP must deal with: 1. Bills which do not affect provinces Bills which do not affect provinces are those which relate to national functions (such as Defence, Foreign Affairs and Justice). When such a Bill has been passed by the National Assembly, it goes to the NCOP. Each delegate has one vote and can decide whether to vote for or against the Bill. Usually delegates vote along party lines. If the Bill is passed , it goes to the President for signing. Once a Bill is signed by the President, It becomes an Act of Parliament or law. If the NCOP wants to make changes to a Bill, it goes to the National Assembly who can accepts or reject the changes. It then goes to the President for signing. 2. Bills which affect provinces Example of Bills that affects provinces include, for example, Bills on Safety and Security, Welfare, Education and Health. Such a Bill may be introduced either in the National Assembly or in the NCOP. The voting in the NCOP is different for Bills that affect the provinces. In these cases, each province (and not each individual member) has one vote. This means there must be consensus in each province on the Bill. If there is a disagreement between the National Assembly and the NCOP about a Bill affecting provinces, the Bill must be sent to a mediation Committee. This Committee consists of nine members of the NCOP and nine of the National Assembly. The mediation Committee must try to find agreement. If the resolves the issue, both Houses must then vote on the Bill. If it does not, the Bill is returned to the National Assembly which may vote on it again. In such a case, a two thirds majority is required to pass a Bill. In other words, The National Assembly can override the NCOP by a two thirds majority. 3. Bills which amend the constitution When a Bill to amend the Constitution directly affects the province, at least six of the nine provinces in the NCOP must agree. The Powers of the NCOP In the case of some Bills that amends the Constitution; the NCOP does not have much power to pass Bills like the National Assembly. There is a good reason for this. The National Assembly consists of direct representatives of the political party you have supported in the election. Delegates on the NCOP represent the legislature in each province and were elected to the province and not to the NCOP. This means they represents their provinces and do not represent individual voters directly. The NCOP and you Because members of the NCOP are provincial delegates, the way to influence the NCOP is through the North West Provincial Legislature. The party that wins most support in the provincial election will head the provincial delegation to the NCOP. Like every other meeting of the Parliament, you have a right to attend the meetings of the Standing Committee of the NCOP and attend all its sittings. When the NCOP is debating a Bill, it also has a duty to take in account what members of the public feel. This means that you have a right to inform any member of the NCOP or its standing Committee of your views. The word parliament comes from the word to speak. It is here that the voice of all people of the country is heard through their elected representatives. Your voice …and the voices of all other citizens of the country.
Every voice is important!
The core objective of the Legislature is to pass laws for the North West Province and to oversee their implementation by the Executive Council and other related structures.
Review of all laws passed by the Legislature to determine their effectiveness with regards to transforming our society;
Improving the way in which Sectorial parliaments are handled, so that they can become a tool for public participation in our legislative and oversight process;
- Raising awareness of young people about the existence of the Legislature by visiting and lecturing to students about the activities of the Legislature and how they (students) can participate;
- Professionalizing the administration of the Legislature;
- Strengthening our oversight effectiveness by scrutinizing annual reports in time, and conducting related oversight visits and public hearings; and
- Improving the effectiveness of public hearings to ensure quality input by members of the public in our legislative process
The Constitution of the Republic of South Africa, 1996, resulted from a long process of popular struggle, multiparty negotiations, and democratic deliberations which involved politicians, lawyers, and civil society. The Constitution can be said to represent a break from a ‘culture of authority’, in which Parliament was sovereign, and the validity of any law that Parliament passed could only be challenged in court on extremely limited grounds. The Constitution replaced this culture of authority with a ‘culture of justification’- in which every exercise of power must be justified, and be demonstrated to be in accordance with the Constitution.
A multi-party negotiating process resulted in the adoption of an interim constitution, and a set of Constitutional Principles, with the intention that it would be replaced by a final constitution which would be negotiated by a democratically elected Constitutional Assembly, which was elected on 27 April 1994. The final Constitution would have to be certified by the Constitutional Court that it complied with the Constitutional Principles. A final Constitution was submitted to the Constitutional Court for certification on 8 May 1996, but it ultimately had to be amended, as the Constitutional Court held that certain provisions did not comply with the Constitutional Principles. The amended final Constitution was certified by the Constitutional Court on 4 December 1996, and came into operation on 4 February 1997.
The Constitution sets out rules governing the exercise of authority in the country, and it determines the powers which are given to government, as well as the limits those powers.
Chapter 1 of the Constitution contains the Founding Provisions. Section 1 sets out the fundamental principles underlying our Constitutional state, and it states as follows:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
- Human dignity, the achievement of equality and the advancement of human rights and freedoms.
- Non-racialism and non-sexism.
- Supremacy of the constitution and the rule of law.
- Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness, and openness.’
The Constitution introduced the ‘doctrine of Constitutional Supremacy’ into our legal system. As stated in section 2 of the Constitution, “[t]he Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” This means that all laws and government conduct must comply with the Constitution, or they are invalid to the extent that they are inconsistent with the Constitution.
Chapter 2 of the Constitution contains a Bill of Rights, which the state is bound to respect, protect, promote, and fulfill. The Bill of Rights provides protection for a very wide range of rights, including the rights to life, equality, human dignity, and freedom and security of the person, rights of access to health care, social security, and housing, children’s rights, access to information, and just administrative action. The Bill of Rights applies to all laws, and it binds all of the branches of government (which is discussed further below), and all public institutions.
According to section 36, the rights in the Bill of Rights can be limited –
“…only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
This requires the government to justify any limitation of the fundamental rights in the Bill of Rights.
The Constitution also establishes all of the powers and functions of all of the branches and spheres of government, which will be discussed further below. The powers and functions of the President (in Chapter 4) and Parliament (in Chapter 5) are first set out. Chapter 6 establishes the Provincial Governments, and Chapter 7 establishes Local Governments. The powers and functions of the Courts are described in Chapter 8, and Chapter 9 establishes various State Institutions Supporting Constitutional Democracy, which includes the Human Rights Commission, the Public Protector, and the Commission for Gender Equality. Chapter 10 establishes the Public Administration, which is critical for implementing the country’s laws, and Chapter 11 provides for the Security Services for the country. Chapter 13 deals with Finances.
The Constitution, therefore, is a comprehensive document which is the foundation for our political order. It establishes all of the fundamental institutions which are crucial for the functioning of our constitutional democracy, and sets out their powers and functions. It also enshrines all of the fundamental principles on which our democracy is based, and emphasizes that the protection of and respect for human rights is fundamental to our democracy.
The Separation of Powers
State authority is commonly divided into legislative, executive and judicial authority. Legislative authority is the power to enact, amend, and repeal legal rules. Executive authority is the power to implement and enforce legal rules. Judicial Authority is the power to interpret legal rules, and apply them to specific cases.
The reason for this division of state authority is that the Doctrine of the Separation of Powers argues that there can be no political freedom in a country where one and the same person or body of persons makes, the laws, implements them, and acts as the judge when they are contravened.
This division of state authority between the three branches of government prevents a concentration of power or an excess of power in one branch of government. This helps to protect citizens from abuses of state power.
The separation of powers is maintained through a formal division of state authority between the legislature, the executive, and the judiciary. Also, there is a separation of functions, which provides that one branch of government must not take over the functions of another branch of government.
There is also a “system of checks and balances” in which each branch of government is given specific powers of oversight over the other branches of government, and powers to restrain the actions of the other branches of government when necessary. This helps to prevent one branch of government from usurping power or taking over functions from the other branches of government, which could lead to a dangerous concentration or excess of power in one branch of government. For example, the courts have the power of judicial review, which allows the courts to review challenged legislation or administrative actions of the executive, to ensure that they are within the powers of those branches of government, and also to ensure that they are in compliance with the requirements of the Constitution. The courts then are acting as watchdog over the legislature and the executive.
The North West Provincial Legislature similarly exercises a watchdog function over the actions of the executive, for example through the oversight function that Portfolio Committees play in Parliament and the North West Provincial Legislature over the functioning of government departments.
HOW LAW IS MADE
The function of the North West Provincial Legislature is to make laws for the North West Province. The provinces have been given powers in terms of the Constitution to make laws relating to particular areas because each province is different and may have its own needs. There must be some flexibility within the legal system for laws to be made which addresses the needs of the people in each of the provinces adequately.
The areas in which the North West Provincial Legislature can make laws are set out in Schedules 4 and 5 of the Constitution. The North West Provincial Legislature could also make laws relating to matters which Parliament has passed legislation assigning the power to make legislation to the provinces, or matters were the Constitution envisages that provincial legislation would be passed.
It is important to remember that any law that the North West Provincial Legislature makes only applies in that province; it is possible, in certain circumstances, for the National Parliament to pass national laws which would ‘take precedence’ over provincial laws that deal with the same matter.
In terms of Schedule 4 of the Constitution, both the National Parliament and the North West Provincial Legislature are entitled to pass legislation in the following areas, which are called areas of current legislative competence:
• Administration of indigenous forests
• Airports other than international and national airports
• Animal control and diseases
• Casinos, racing, gambling and wagering, excluding lotteries and other sports pools
• Consumer protection
• Cultural matters
• Disaster management
• Education at all levels, excluding tertiary education
• Health services
• Indigenous law and customary law, subject to Chapter 12 of the Constitution
• Industrial promotion
• Language policy and the regulation of official languages to the extent that the provisions of section 6 of the Constitution expressly confer upon the North West Provincial Legislature’s legislative competence
• Media services directly controlled or provided by the provincial government, subject to section 192 of the Constitution
• Nature conservation, excluding national parks, national botanical gardens and marine resources
• Police to the extent that the provisions of Chapter 11 of the Constitution confer upon the North West Provincial Legislature’s legislative competence
• Pollution control
• Population development
• Property transfer fees
• Provincial public enterprises in respect of the functional areas listed in Schedules 4 and 5 of the Constitution
• Public transport
• Public works only in respect of the needs of provincial government departments in the discharge of their responsibilities to administer functions specifically assigned to them in terms of the Constitution or any other law
• Regional planning and development
• Road traffic regulation
• Soil conservation
• Traditional leadership, subject to Chapter 12 of the Constitution
• Urban and rural development
• Vehicle licensing
• Welfare services
THE NATIONAL PARLIAMENT AND THE NORTH WEST PROVINCIAL LEGISLATURE CAN ALSO MAKE LAWS FOR SOME AREAS THAT APPLY TO LOCAL GOVERNMENTS:
• Air pollution
• Building regulations
• Child care facilities
• Electricity and gas regulation
• Firefighting services
• Local tourism
• Municipal airports
• Municipal planning
• Municipal health services
• Municipal public transport
• Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law
• Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto;
• Stormwater management systems in built-up areas
• Trading regulations
• Water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems
• Welfare services
In terms of Schedule 5 of the Constitution, the North West Provincial Legislature has the exclusive authority to make laws relating to:
• Ambulance Services
• Archives other than National Archives
• Libraries other than National Libraries
• Liquor Licenses
• Museums other than National Museums
• Provincial Planning
• Provincial Cultural Matters
• Provincial Recreation and Amenities
• Provincial Sport
• Provincial Roads and Traffic
• Veterinary Services excluding Regulation of the Profession
THE NORTH WEST PROVINCIAL LEGISLATURE CAN ALSO MAKE LAWS FOR SOME AREAS THAT APPLY TO LOCAL GOVERNMENTS:
• Beaches and amusement facilities
• Local amenities
• Billboards and the display of advertisements in public places
• Local sport facilities
• Cemeteries, Funeral Parlours and Crematoria
• Municipal Abattoirs
• Control of public nuisances
• Municipal parks and recreation
• Control of undertaking that sell liquor to the public
• Municipal roads
• Facilities for the accommodation, care and burial of animals
• Noise pollution
• Fencing and Fences
• Licensing of dogs
• Public places
• Licensing and control of undertakings that sell food to the public
• Refuse removal, refuse dumps and solid waste disposal
• Street trading
• Traffic and parking
• Street lighting
THE LEGISLATIVE PROCESS
This section provides an overview of the stages and processes involved in making or amending (changing) a law.
THE LEGISLATIVE PROCESS AT THE NATIONAL LEVEL
Green and White Papers The process of making a law sometimes begins with a discussion document, called a Green Paper. This is drafted in the Ministry or department dealing with the particular issue in order to show the way that it is thinking on a particular policy. It is then published so that anyone who is interested can give comments, suggestions and ideas.
The Green Paper is sometimes followed by a more refined discussion document, called a White Paper, which is a broad statement of government policy. This is drafted by the relevant department or a task team designated by the Minister of that department. Comment may again be invited from interested parties. The relevant parliamentary Committees may propose amendments or other proposals and then send the policy paper back to the Ministry for further discussion and final decisions.
Bills A Bill is the draft version of a law or Act. It may be proposing either an entirely new Act, or an amendment to an existing Act, or it can simply repeal an existing Act.
This section outlines some of the processes and requirements that can take place before a Bill becomes a law. It deals with the various types of Bills and who may initiate a Bill. The following section tracks how a Bill becomes a law. The Constitution provides the full details which are not included here.
Bills before Parliament There are four main types of Bills that come before Parliament:
1.ordinary Bills that do not affect the provinces (section 75 of the Constitution);
2.ordinary Bills that affect the provinces (section 76 of the Constitution);
3.Money Bills (section 77 of the Constitution); and
4.Bills amending the Constitution (section 74 of the Constitution); and (Bills are often loosely referred to by the section of the Constitution which describes their procedure. For example “Section 75 Bills” refers to the ordinary Bills that do not affect the provinces etc..)
The process of classifying a Bill into one of the four categories above is called “tagging” and will determine the procedures the Bill must follow to become law. Bills are tagged by the Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and the Deputy Speaker of the National Assembly and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces. They are advised by the Parliamentary Law Adviser. The JTM decides on the classification of the Bill by consensus.
1.Ordinary Bills that do not affect the provinces (Section 75 Bills) An ordinary Bill that does not affect the provinces can only be introduced in the National Assembly (NA). Once it has been passed by the NA, it must be sent to the National Council of Provinces (NCOP). In this case, delegates in the NCOP vote individually and the Bill must be passed by a majority of delegates present. If the NCOP rejects a Bill or proposes its own amendments, the Bill is returned to the NA which will pass the Bill with or without taking into account the NCOP amendments or it may decide not to proceed with the Bill. The NCOP’s role in Bills that do not affect the provinces is therefore a limited one. It can delay a Section 75 Bill, but it cannot prevent it from being passed.
2.Ordinary Bills that affect the provinces (Section 76 Bills) A Bill that affects the provinces may be introduced in either the NA or the NCOP, but must be considered in both Houses. Members of the NCOP do not vote as individuals on Section 76 Bills but rather as provincial delegations. Each provincial delegation has one vote so there are nine possible votes regarding Bills that affect the provinces. These Bills must also be discussed by each Provincial Legislature so that each legislature can give its NCOP delegation a voting mandate. This makes it necessary to have six-week legislative cycles so that a number of Bills can go to each province at one time. Bills are usually considered by a provincial Committee, which may hold public hearings on the Bill to receive comments and suggestions. These Committees make recommendations to their legislatures, which then decide on their position on each Bill and mandate their NCOP delegation accordingly. The four special delegates to the NCOP (who are supposed to be chosen according to their expertise and knowledge of the Bills being debated) go to Cape Town to join the six permanent delegates. The full delegation of ten people participates in the national debate on the Bills, thus enabling the provinces to contribute to national legislation that affects them. The delegation then casts its one vote on behalf of its province and in accordance with the North West Provincial Legislature’s mandate. The NCOP must pass, amend or reject a section 76 Bill. If the Bill was introduced in the NA, however, the NA can override the NCOP decision with a two thirds majority of its Members.
3.Money Bills (Section 77 Bills) Money Bills allocate public money for a particular purpose or impose taxes, levies or duties. They can only be introduced by the Minister of Finance and they must be introduced in the National Assembly. They follow the same procedure as that for Bills that do not affect the provinces (Section 75 Bills). At present Money Bills may only be debated and not amended as, according to the Constitution, Parliament must still devise legislation for a procedure to amend Money Bills.
4.Constitutional Amendments (Section 74 Bills) As the highest law in the land, the Constitution is the foundation for a democratic society and protects the rights of all people. There are special requirements and procedures, therefore, in order to amend the Constitution. All of them require special majorities so that changes cannot be made by a minority. For example, amending the Bill of Rights requires a vote of two-thirds of the membership of the National Assembly and the support of six provinces in the NCOP. All constitutional amendments that affect the provinces must be passed by both Houses. Amendments which affect only certain provinces, must be passed by those provinces. Other amendments do not need to be passed by the NCOP but all amendments, whether or not they must be passed by the NCOP, must be submitted to the NCOP for public debate. In addition, minimum times are laid down for different stages of the legislative process. All constitutional amendments must be published in the Government Gazette with a call for public comment at least 30 days before being introduced in Parliament. After the Bill which proposes amendments to the Constitution is tabled, 30 days must pass before it can be put to a vote in the National Assembly.
How a Bill becomes a Law
The initiation of Bills A Bill can be initiated and written by a number of bodies.
•By a Minister
Most national Bills are drawn up by a Cabinet Minister.
•By an MP Bills drawn up by individual Members are called Private Members Bills. A Committee concerned with Members’ legislative proposals in each House decides whether the Bill meets certain criteria (which could include financial implications) and can be introduced into the House.
•By a Committee Parliament has recently drafted rules and procedures enabling a Committee to initiate a Bill.
Bills tabled in Parliament Most Bills tabled in Parliament are introduced by the Executive and are either
1.ordinary Bills that do not affect the provinces (Section 75 Bills); or
2.ordinary Bills that affect the provinces (Section 76 Bills).
3.Bills that do not affect the provinces (section 75 Bills)
1.A draft Bill, which has been drafted by a government department, is submitted by the relevant Minister to the Cabinet for approval.
2.The state law advisers must refine and approve the draft Bill.
3.The Bill is then introduced and tabled in the National Assembly for what is known as the First Reading. The Bill is also published in the Government Gazette.
4.The Bill is then referred to the relevant Committee in the National Assembly which considers the Bill and may agree to it, propose amendments or reject the Bill, generally after a process of public consultation.
5.The Second Reading then takes place where the Bill is debated and voted on at a sitting of the National Assembly.
6.If there is a majority of votes in favour, the Bill is passed and the Bill is then referred to the NCOP for consideration.
7.The NCOP can accept or reject the Bill or propose amendments to it:
?If the NCOP passes the Bill without amendments, it goes to the President for his assent and signature and the Bill then becomes law. The Act appears in the Government Gazette and comes into effect on a date determined by the President.
?If the NCOP proposes amendments to or rejects the Bill, it must go back to the National Assembly for reconsideration.
The National Assembly can pass the Bill with or without the NCOP amendments, or it can reject the Bill.
Note: While both Houses must consider Bills that do not affect the provinces, the NA may actually override the NCOP and pass the Bill despite opposition by the NCOP. It then submits the Bill, either in its original form or with amendments, to the National Assembly with a report.
4.Bills that affect the provinces (Section 76 Bills) Schedule 4 of the Constitution lists the matters that affect the provinces and which therefore have to be dealt with in Section 76 Bills. These include casinos; racing; gambling; cultural matters; disaster management; education excluding tertiary education; environment; health services; housing; population development; public transport; tourism; trade; traditional leadership; welfare services; and child care facilities. Bills that affect the provinces may be introduced in either the National Assembly or the NCOP. Once introduced in Parliament, Bills are also sent to the North West Provincial Legislature so that they can begin considering them. If the Bill is tabled in the National Assembly:
1.The Bill is introduced by a Cabinet Member or a Deputy Minister, or a Member or Committee of the National Assembly.
2.The Bill will be referred to a National Assembly Committee for consideration. Sometimes public hearings will be held.
3.The National Assembly would then either pass, amend or reject the Bill. If it passes the Bill or amends it, the Bill (with any amendments) is referred to the NCOP. If the Bill is tabled in the National Council of Provinces:
1.The Bill can only be introduced by a Member or Committee of the NCOP.
2.The Bill will be sent to an NCOP Committee, which will receive a briefing on the Bill so that the NCOP Members can tell the North West Provincial Legislature about the Bill.
3.It is then considered by each of the nine Provincial Legislatures. The NCOP Members will go back to their provinces so that they can participate in the debate in North West Provincial Legislature.
4.Each Provincial Legislature will refer the Bill to a Committee, which will consider the Bill and may hold provincial public hearings on the Bill. The NCOP Members get a voting mandate from their Provincial Legislatures. Each provincial delegation has one vote on each Bill.
5.The NCOP delegates then return to Cape Town with a negotiating mandate. The NCOP Committee considers the Bill and negotiation takes place among the nine provincial delegations.
-If the NCOP passes the Bill, it goes to the President for his assent and signature. -If the NCOP rejects or amends the Bill it goes back to the National Assembly for reconsideration. -If the National Assembly accepts the amended Bill, it goes to the President for his assent. -If the National Assembly rejects the NCOP amendments, the Bill goes to a Mediation Committee comprising of Members from the National Assembly and Members of the NCOP.
6.If the Mediation Committee is unable to agree within 30 days of the Bill’s referral to it, the Bill lapses. (A Mediation Committee may agree on
-the Bill as passed by the National Assembly;
-the amended Bill as passed by the NCOP;
-another version of the Bill
for details concerning the outcome of these three options, refer to Section 76 of the Constitution.)
Note: While the NCOP has more power to change section 76 Bills than section 75 Bills, if a Bill has been introduced in the NA, the NA is once again able to disregard the NCOP and pass Section 76 legislation with a two thirds majority vote. If a section 76 Bill is introduced in the NCOP, the Bill lapses if agreement cannot be reached between the two Houses. Before a new Act comes into force, it has to be “enacted”. This involves the President declaring the Act’s commencement date in the Government Gazette. Acts are only enacted once the responsible department has indicated that it is ready and has the capacity to implement the new law.
THE LEGISLATIVE PROCESS IN THE NORTH WEST PROVINCIAL LEGISLATURE
Bills before the North West Provincial Legislature There are two different types of Bills that come before North West Provincial Legislature:
1. Bills other than Money Bills;
2. Money Bills;
The procedure for processing these three types of Bills differs slightly.
I). Bills other than Money Bills
1.An ordinary Bill is introduced in the North West Provincial Legislature and is referred to the relevant Standing Committee.
2.Either public hearings may be held to hear the public’s views regarding the Bill or a Standing Committee may invite interested parties to make written submissions to the Committee.
3.The Committee then considers the Bill and may propose amendments to it.
4.After consideration by the Committee, a report with recommendations on the Bill is submitted to the House.
5.A debate takes place on the objectives and principles of the Bill in the House and the MPLs vote.
6.If there is a majority of votes in favour of the Bill, the Bill is passed. If there is no majority, the Bill is rejected.
II). Money Bills A Bill that appropriates money or imposes taxes, levies or duties is called a Money Bill. Only the MEC responsible for Finance is able to introduce a Money Bill in the House.
1.Money Bills are referred to the Committee of Finance for discussion for a maximum of seven working days.
2.After discussion, the Committee submits a report to the House.
3.The Committee is not allowed to propose any amendments to the Bill, as there is not yet legislation that allows this.
How a Bill becomes a Law The procedure which is followed by a Bill in the North West Provincial Legislature is as follows:
1.The Bill is initiated – by an MEC, an MPL, or a Committee.
2.The draft Bill is presented to and approved by the Executive Council.
3.The Bill is published- -in the Provincial Gazette, and notices are placed in various newspapers which bring the Bill to the attention of the public. After this, the public has at least 14 days to comment on the Bill.
4.The Bill is introduced- The Speaker introduces the Bill to the House and decides which is the best Committee to deal with the Bill.
5.The Bill goes to the Relevant Committee- The MPLs in the Committee discuss and debate the Bill, and they may call upon experts provide comments on the Bill, and propose changes ( amendments), after a process of public consultation. The Committee will compile a report on the inputs received in the public consultation process, and make recommendations regarding amendments, or it may even recommend rejection of the Bill. Committees are discussed in detail in another section.
6.The Bill is Debated at a Sitting of the House- Members of all parties are given an opportunity to talk about the Bill, and to place their opinion of it on record, and the Bill may be amended.
7.The House votes- and, if there is a majority of votes, the Bill is passed.
8.If the Bill is passed, it then goes to the Premier of the province for signature and becomes a Provincial Act.
9.The Act is Published- The Provincial Act must be published promptly in the Provincial Government Gazette, and takes effect when published or on a date determined in terms of the Act.
10.If the Bill is not passed, the Bill is rejected, and does not become a Provincial Act
A Legislature Committee is a substructure of the Legislature consisting of a group of Legislature members who are composed according to the principle of proportional representation of political parties in the legislature, chosen to perform a particular task for the Legislature and, in so doing, facilitate the effective performance of legislature functions.
Role of Legislature Committees
Committees are charged on behalf of the Legislature to conduct inquiries, gather evidence and report thereon, analyze (sometimes initiate) bills and propose amendments.
They also act as control mechanism by supervising government action and take charge of the internal affairs of the legislature, for example, in respect of facilities and services, discipline, and cases of contempt.
In this way, committees alleviate the workload of the Legislature and facilitate through considerations of matters.
1.Portfolio Committees 2.Standing Committees 3.Ad Hoc Committees 4.Rules Committees
Portfolio Committees There shall be Committees of the Legislature, appointed by resolution of the house, on Legislature and provincial executive matters, respectively.
Each Committee shall be known by the name determined for it by the speaker. A Committee shall, in accordance with the rules or its other terms of reference, consider or deal with bills or other matters which are referred to it by the speaker or resolution of the Legislature.
There shall be Standing Committees in respect of:
- Internal arrangement Committee
- Working Committee
- Chairperson’s Forum Committee
- Quality of life and status of women Committee
- Public Accounts Committee
Ad Hoc Committees These Committees are appointed by resolution of the house to perform specific tasks, like enquiring into alleged breaches of privilege or to consider legislation of a particular nature. Once such a Committee has disposed of its business and has reported to the house, it ceases to exist.
The speaker shall nominate members for an Ad – hoc Committee, who shall be appointed by resolution of the Legislature to carry out particular assignment specified by resolution. Ad hoc committee may conduct its business when the Legislature is in recess, in which event it shall report after the resumption of business, provided that no elections for the Legislature have taken place in the interim.
The Speaker shall appoint the Rules Committee for the duration of the Legislature as the supreme committee of the House, to perform functions entrusted by the rules or resolutions of the House.
Roles and functions of the committees
1. The oversight of government Departments in the financial field.
2. Domestic functions, to ease the work of the house (rules and disciplinary committees)
3. Examination of specific areas of public life or matters of current public interest (Ad hoc and joint monitoring Committees)
4. Consideration of legislation (Portfolio Committees)
5. Monitoring and oversight of Departmental affairs.
6. Consideration of private member’ legislative proposal
7. Consideration of international agreements
Alliances & Associates
Commonwealth Parliamentary Association (CPA)
The Legislature has a CPA Branch called CPA North West Branch. The CPA North West Branch is a member of CPA Africa Region and CPA International. All Members of the North West Provincial Legislature including MECs are members of this Branch.
Association of Public Accounts Committee (APAC)
The Provincial Public Accounts Committee of the Legislature is a member of the APAC, which is an association of Public Accounts Committees of legislative bodies of South Africa. The aim of the association is to improve the quality and performance of Public Accounts Committees of South Africa, and to enhance the capacity of individual members of these committees.
The Speaker and the Deputy Speaker of the Legislature are members of the Speakers’ Forum. This is a voluntary association of Speakers of legislative bodies of South Africa. The purpose of this forum is to enable the Speakers to exchange information and experiences, to enhance their performance.
Secretaries Association of Secretaries of South Africa (SALSA)
The Secretary to the Legislature is a member of SALSA. This is a voluntary association of Secretaries to South African Legislatures. Like the Speakers’ Forum, the purpose of this association is to enable Secretaries to exchange information and experiences, to advance their performance.