May 21, 2019

What is going to land in the lap of the sixth parliament?

Lost in all the fuss about the political party (read ANC) candidates lists ‑ and who did and who did not make it, and who’s in and who’s out ‑ is an obvious but not yet asked question: why would anybody want to be elected to the sixth parliament? The fifth parliament rose in March this year leaving a lot of unfinished business, much of which will be inherited by those who next take up the seats in the Chambers.

Despite a last minute rush to tackle the considerable legislative backlog, 40 bills remain stuck in the legislative pipeline. Another approximately 20 had been passed by both Houses and at the time of writing were awaiting the signature of the president. Some of these go back years, and probably are intended to remain in the presidential in-tray indefinitely, but that still leaves a lot of ghosts of parliaments past.

All business of the fifth parliament will lapse at midnight on 7 May, but that does not mean that it cannot be revived. All that is needed is for a motion to be passed by the house.

The new incumbents of the pending parliament know that they will hardly have taken their seats in the house before they will be required to face a constitutional amendment bill to give effect to the recommendation that Section 25 of the Constitution be amended to allow for expropriation of land without compensation.

At its last sitting, the fifth parliament set 31 March 2019 as the deadline for the Ad Hoc Committee to initiate and introduce the constitutional amendment. On the same day, Cabinet approved publication of the Revised Expropriation Bill for public comment. The point of this bill will be to support the amendment by providing explicit circumstances under which land expropriation in the public interest may be done without compensation.

All business of the fifth parliament will lapse at midnight on 7 May, but that does not mean that it cannot be revived.

That is just the first of what aspirant representatives of the sixth parliament face. Less widely known is a decision taken a couple of years ago by the National Assembly Programme Committee to identify all legislation enacted prior to 1994 still on the statute books that may be offensive or contain discriminatory language. Parliament’s Constitutional and Legal Services Office has already identified more than 1,000 pieces of legislation which are to be sent to the relevant portfolio committees to be considered for amendment or repeal.

According to the Parliamentary Monitoring Group, due to time constraints committees have not yet had a chance to work on this, so this task will be handed over to the sixth parliament “as a legacy item”.

There may be other such legacy items awaiting the sixth parliament. What is known is that many of the bills that will lapse are sure to return, in one form or another, despite an impressive effort by the fifth parliament in its last few weeks, and days, to push as many bills as possible through both houses for presidential assent.

For bills to be signed into law by the president they have to be passed by both houses of parliament, with amendments going back and forth between the two until agreement is reached. At each turn, public comment and input is required by law. By the time the National Assembly (NA) rose, on 20 March 2019, it had made a heroic effort to race bills to the National Council of Provinces (NCOP) for concurrence. The Constitution allows the permanent delegates of the NCOP to stay on until the first sittings of the provincial legislatures. This afforded the NCOP time to catch up with the law-processing backload.

Any legislation not passed by both houses by the end of business of the fifth parliament are in some sort of legislative never-never land, and can only be rescued if the next parliament chooses to do so.

In fact a number of bills were 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; the IPID Amendment Bill, which was passed by the National Assembly in a record-breaking two month, has been at the NCOP since September 2018, and the highly controversial Border Management Authority Bill has been with the NCOP since 2017.

Then there is the persistent Mineral and Petroleum Resources Development Amendment Bill, which dates back to 2013, although it is rumoured that the Minister would like to see the back of this one.

There are many bills that could be going nowhere ‑ the Customary Initiation Bill, which was introduced in April 2018 to improve regulation of this practice, the iKamva Digital Skills Institute Bill, which the NCOP sent back to its committee after expressing concern about the lack of public comments, the Cybercrimes and Security Bill, introduced in February 2017 and sent to the NCOP in November 2018, and the Municipal Structures Amendment Bill, which was only sent to the NCOP for concurrence in February 2019, which is well after the deadline. Whether they return or not is up to the sixth parliament, but there are those that seem unlikely to conveniently go away.

An example is the troublesome Traditional Courts Bill, which elicited a recent public rejection on national television by the Chief Justice. It, too, reached the NCOP and 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 ‑ where no one really wants to go.

It has been around for 10 years. It’s been in – and out of – the legislative pipeline since 2008; was revived by the fourth Parliament; tossed out by the Minister in 2011; renamed and amended, and in its latest mutation was introduced by the Minister of Justice and Correctional Services in January 2017, where it sat quietly for a year before being passed on to the National House of Traditional Leaders and saw three days of public hearings. That was March 2018. In March 2019 it was passed by the NA and sent to the NCOP for concurrence.

According to government and parliamentary documents it sounds fairly innocuous. Its aim: “to increase access to justice services by enhancing effectiveness, efficiency and integrity of traditional courts in resolving disputes, in keeping with imperatives and values of the Constitution. The Bill repeals remaining provisions of the Black Administration Act 38 of 1927 and legislation of former homelands still regulating traditional courts.” The problem with this Bill, however, is that it is designed to appeal to traditional leaders, basically allowing for the concentration of power in one individual, and it cannot be shaped to fit into the structure of the Constitution, however hard its determined supporters may try.

Another important bill still with the NCOP when the fifth parliament rose is the controversial Civil Union Amendment Bill, which was passed by the National Assembly at its final plenary in 2018. It removes from the principal Act permission for a marriage officer to refuse to solemnise a civil union between persons of the same sex on the grounds of conscience, religion and belief.

This was a private member’s bill introduced by Deidre Carter of Cope. The introduction of private bills, that is by members instead of by a minister or a committee, was introduced with the fifth parliament. These bills face a tough time as they are usually introduced by opposition members who have to convince a government to implement a law that it never had any intention of introducing. A milestone of the fifth parliament was the passing into law of the first private members’ bill ‑ the Labour Laws Amendment Bill – in 2017. But of the 11 that have been introduced so far, five have been rejected.

There’s a lot of pending legislation awaiting the president’s consideration, and very little time left before his assent is required. Only when the president is done, will it be clear exactly which legislation the fifth parliament passed into law, and how much may return to the sixth parliament, where each bill will have to go back to start, at the hands of a newly constituted committee.

The incumbents of the upcoming new parliament should prepare themselves. 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.

Then there is always concern about how carefully these bills have been considered by committees and how much public participation has taken place, especially during that dramatic final rush. Many an act has been returned by the courts for failing to ensure sufficient public comment and participation or simply because of rushed or shoddy legal workmanship.

Moira Levy

Last modified on Sunday, 05 May 2019 18:23

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Notes from the House is an independent weekly email newsletter that tracks and monitors Parliament in its role of holding government to account and passing legislation to improve people’s lives. It aims to bring you the news from Parliament that you don’t get elsewhere. Published by Moira Levy with the support of the Claude Leon Foundation.

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