October 27, 2020

Old administration’s unfinished business returns to haunt sixth parliament

The almost forgotten ‘Secrecy Bill’, which had civil society across the country up in arms when it was first introduced in 2010 as the “Protection of Information Bill,” could reportedly be back in the legislative pipeline if the State Security Agency (SSA) has its way. This beleaguered bill, in its last known iteration ironically named the Protection of State Information Bill, came up in the budget speech of deputy minister of State Security Zizi Kodwa. He gave no reason for reviving the controversial legislation.

The original bill raised a storm of protest even after it underwent a number of amendments, but public outrage did not let up, reaching fever pitch when the bill was passed by parliament in 2013. By then, even former president Jacob Zuma had the good sense not to sign this bill into law when it reached his in-tray back in April 2013. That, we thought, was the last we had heard of this horrid reminder of apartheid.

Determinedly ignored since then, it comes as something of a surprise to learn that the SSA wants it to be reintroduced and, subject to a review process, signed into law during the sixth democratic parliament.

That was a move no one had anticipated, but as the new parliament gets into gear expect the return of any number of bills that did not make it to the finish line before the fifth administration rose. According to National Assembly Rule 333 (2), incomplete bills lapsed automatically when Parliament was dissolved on 7 May 2019, but that does not stop any bill from being revived. All it takes is a motion to be passed by the house.

So preoccupied was the fifth parliament with inter-party rivalry, and the extra-parliamentary morass around state capture, that a bottleneck soon emerged in its chief task which is to pass legislation. During 2016 and 2017, an unimpressive total of 18 bills were passed each year. As always the rate of passing legislation stepped up as the end of the term approached, and we saw a terrific last minute effort in the final months of the fifth administration. Nevertheless, there remained 39 unfinished bills when the Fifth Parliament rose for the last time.

About 20 more had by then made it through both houses, and were piled up awaiting presidential assent. Some of these join others that go back years, and probably are intended to remain in the presidential in-tray indefinitely; others were returned by the president. Rushing the legislative process results in acts that land up in court requiring legislative repairs.

A total of 39 bills lapsed automatically when Parliament was dissolved on 7 May 2019, but that does not stop any bill from being revived.

The tumultuous first term of the sixth parliament is about to end, and it won’t be remembered for progress made in passing legislative – but then there has been much else on our elected representatives’ minds. Also, the focus has been on passing the Appropriation Bill so that the budget can be disbursed. Where then do we stand in the legislative process as parliament closes for recess from 29 July?

The Municipal Systems Amendment Bill, introduced by the Department of Cooperative Governance and Traditional Affairs, made two appearances before the Committee in February 2019, before the chairperson announced that this one was being saved for the sixth parliament.

The troublesome Traditional Courts Bill also reached the NCOP before it was announced that the public will have to wait to see if the sixth parliament will revive it. This bill goes directly to the heart of traditional leadership – which is precisely where no one really wants to go.

The National Assembly worked until 20 March, finalising and sending much legislation to the NCOP. The second house then sat for a couple more months, but a number of bills remained unpassed by the time the NCOP rose. These include the National Minimum Wage Amendment Bill, which had been signed into law amid much fanfare until an embarrassing error was noted and it had to be sent back for an amendment causing it to lapse and require a return. The IPID Amendment Bill, which was passed by the National Assembly in a record-breaking two months, but which has been at the NCOP since September 2018.

Also back like the proverbial bad penny is the highly controversial Border Management Authority Bill. The Department of Home Affairs is determinedly signalling that it wants the Border Management Authority Bill ‑ contested since 2013 ‑ revived and passed by the sixth parliament. Yet this bill stubbornly remains at the NCOP.

This Bill proposes a single state entity known as the Border Management Authority (BMA) to oversee all aspects of the movement of import/export goods and the more than 40 million people who enter and leave the country every year for various reasons. The debates in the NCOP’s committee sound very much like the same issues that bothered the NA’s committee but it does not seem as if any changes that might have been made by the NA committee have made much difference.

The problems centre on the BMA, which as currently formulated by the bill makes the Department of Home Affairs responsible for matters that are actually of concern to defence, policing, the South African Revenue Service and Treasury. The debate is not over the bill’s aim ‑ to provide integrated management of South Africa’s almost 5,000km land border to address, among many other problems, drug-related crimes, human trafficking, illegitimate movement of goods and unauthorised movement of persons. The contest is over who then takes on the combination of policing, defence, customs control and other functions that the BMA would be required to provide. Further, who would pay for, and manage, an entity that embraced all these overlapping responsibilities? That is about to become a major challenge for the new administration.

Will the Mineral and Petroleum Resources Development Amendment Bill provide a similar problem, after its Mining Charter effectively prolonged uncertainty for months in the critical mining sector? Minister Gwede Mantashe surprised everyone by suddenly calling the bill off, but it is officially still in the NCOP so could it possibly make a just as surprising comeback?

Some ministers used their budget speeches to announce their intentions concerning revived and new legislation.

Justice Minister Ronald Lamola promised in his budget speech that parliament should expect the return of the ‘Cybercrimes Bill’. He indicated that the long-awaited Prevention and Combating of Hate Crimes and Hate Speech Bill is also likely to make a comeback.

Lamola also mentioned the Land Court Bill, ‘aimed at promoting land justice and the democratisation of land ownership,’ which deals with cases of land restitution that have landed up in the Claims Court. This bill drags with it all the baggage that goes with decisions on land expropriation without compensation.

South Africa has only seen the start of the legislative activity that can be expected regarding this matter. On the very last day of the fifth parliament, Cabinet approved publication of the Revised Expropriation Bill for public comment. It also set 31 March 2019 as the deadline for the Ad Hoc Committee to initiate and introduce the constitutional amendments, which we now know proved to be an impossible deadline.

On 25 July 2019 the NA agreed at a plenary sitting to establish a new multiparty ad hoc committee to initiate and introduce legislation amending section 25 of the Constitution to deal with such matters. This was intended to be a task of the fifth democratic Parliament, but time ran out and it was decided that the sixth Parliament should conclude the matter. The committee is due to report to the National Assembly by 31 March 2020.

Finally, there are the bills that are almost at the finish line. The Political Party Funding Bill Act was signed into law by the president in January, and the Electoral Commission recently advertised that it will be holding public hearings into the draft regulations for the Act (Act 6 of 2018) at the beginning of August. The draft regulations were published for written comments in March 2019, and approximately 4,300 written submissions were received.

This Act regulates the public and private funding of political parties and provides for the establishment of a Represented Political Parties Fund and a new Multiparty Democracy Fund.

The notion of making public the private funding of political parties dragged on for more than 20 years, until in 2017 it suddenly hurtled through an Ad Hoc Committee on the Funding of Political Parties at record speed. Despite a last-minute obstacle raised by the official opposition to do with financial implications, the unstoppable committee chairperson Vincent Smith added the necessary compromises in time to meet the deadline. The Party Political Funding Bill squeezed through onto the National Assembly’s Order Paper and was voted in on 28 March, before making its way to the National Council of Provinces where it now sits and waits.

Moira Levy

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  • Author: Moira Levy
Last modified on Sunday, 28 July 2019 19:16

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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