CONSTITUTION: SECTION 25 AMENDMENT PROCESS CLARIFIED

This article appeared in the 28 October edition of Legalbrief Today, under Policy Watchand was not reserved for subscribers only

For information on proposed amendments to section 25 presented to the parliamentary committee concerned on 6 November 2019, please refer to the article immediately above this one

Amendments to section 25 of the Constitution specifying the circumstances in which land may be expropriated without compensation will take the form of a section 74(2) Bill, which is likely to be subjected to robust public participation in the provinces once the proposed new piece of legislation has been approved by the National Assembly and sent to the NCOP for concurrence. This was unfortunately omitted from a media statement issued by the ad hoc National Assembly committee concerned after its meeting last Friday – a statement only published on Parliament’s website the following Monday.

According to a Parliamentary Monitoring Group sound recording of the meeting, when responding to a call from the ANC’s Zwelivelile ‘Mandla’ Mandela for a longer public participation process, committee chair Mathole Motshekga noted the vital importance of ensuring that Parliament’s ‘constitutional mandate’ in this regard is strictly observed. In the context of Friday’s discussions, he was probably referring to the committee process itself and Mandela did not pursue the matter. However, while most MPs are familiar with the procedures followed by both Houses when considering and adopting a Bill, they may well need to be spelled out in media statements – if only for the sake of clarity.

In the sound recording, committee members are told that themes emerging from their upcoming ‘constitutional dialogue on land ownership’ will inform discussions on policy imperatives to underpin a first working draft of the Bill. These are expected to take place during meetings tentatively scheduled for 13 and 15 November. The working draft will then be finalised for presentation to members on 29 November, when a two-week period of formal deliberations will begin – extending into the National Assembly’s first constituency week. It is anticipated that the draft Bill will be ready for publication in the Government Gazette during the week ending Friday 13 December.

According to Parliamentary legal adviser Charmaine van der Merwe, the three-week period officially allowed for comment from members of the general public will only begin after the festive season – although they will in fact have far longer. This is noting past criticism levelled at other committees when the public commentary period for a draft Bill has fallen during the festive season. However, the main reason for gazetting the proposed new statute early in December will be to give the provincial legislatures and National House of Traditional Leaders time to arrange sittings during January in anticipation of preparing and submitting their own input.

The draft Bill is expected to comprise one substantive clause and a short title. This notwithstanding, given its considerable significance to the entire country and its citizens the deadline for all written submissions has been set at 27 January, after which input will be arranged into themes and considered by the committee. Public hearings are expected to be held between 17 and 21 February. Further deliberations will then ensue and any changes deemed appropriate made, possibly informed by legal opinions. It is anticipated that, from 20 March, the committee will be ready to finalise the Bill for tabling in the National Assembly.

MIXED MESSAGES ON PRESCRIBED ASSETS?

This article appeared in the 17 October edition of Legalbrief Today, under Policy Watch, and was not reserved for subscribers only

Finance Deputy Minister David Masondo has drawn attention to the potentially ‘enormous power and influence’ of pension funds and similar ‘long-term’ fund management instruments to ‘drive’ economic reform and growth by ‘insisting on high standards of delivery, governance, and social responsibility’. Included in his address at a recent ‘private investors for Africa’ event, the Deputy Minister’s observations may have been prompted by ANC plans to ‘investigate the possibility of using pension savings to support SA’s broader social and developmental agenda’ (Daily Maverick), popularly termed ‘prescribed assets’. While the term was not used in his speech, Masondo did ask ‘what prevents’ the ‘potential’ of pension funds and similar fund management instruments from being ‘unleashed’ for developmental purposes.

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The Deputy Minister’s observations at the ‘private investors for Africa’ event tend to add another dimension to his remarks during Tuesday’s National Assembly Finance Standing Committee meeting when, he apparently expressed the view that fund managers should not be ‘compelled’ to ‘invest in bad programmes’ (Business Day). This would serve only to ‘squander’ workers’ ‘deferred’, ‘hard-earned’ wages – savings that ‘must be protected’, according to his speech at the investors’ gathering. Tuesday’s remarks were made before a briefing on the Public Investment Corporation’s (PIC’s) 2018/9 annual report and may have been prompted by concerns about the PIC’s ‘governance challenges’ (EWN) and allegations of improper investment-making processes. It is not clear from the Business Day report if the issue of prescribed assets was discussed at the meeting.

PRIVATE HEALTHCARE MARKET INQUIRY REPORT: IMPLICATIONS FOR NHI

This article was published on 4 October 2019 in the Law Society of SA Legalbrief Weekly, an initiative of the Law Society of South Africa & Juta Law

Recommendations in the recently released Competition Commission’s health market inquiry report were made with the aim of providing a better-functioning environment for national health insurance (NHI). According to the report’s executive summary, this is noting that NHI implementation ‘is some years away’ and that the fund proposed in the 2019 NHI Bill is ‘scheduled to be operational by 2026 at the earliest’. The six-year inquiry found the private healthcare sector to be ‘neither efficient nor competitive’ and characterised by low levels of ‘value-based purchasing’, poorly regulated practitioners and accountability ‘failures’ at many levels. In the panel’s view, this has left consumers ‘disempowered and uninformed’ – especially in the prevailing ‘highly concentrated’ funder and facilities markets. The Department of Health is partly to blame, not having used its ‘existing legislated powers’ to conduct the ‘regular reviews … required by law’ and hold regulators ‘sufficiently accountable’.

Key recommendations include establishing a supply-side regulator (among other things to formulate a ‘needs-based system of licensing’); making a standardised, single benefit package a mandatory medical scheme option; introducing a risk adjustment mechanism (among other things involving income cross-subsidisation and disincentivising risk-based competition between medical schemes); and putting in place a ‘reliable outcomes measurement system’ (allowing consumers to compare and select healthcare providers, and funders to contact those offering value for money). In addition, the report calls for changes in the ‘ethical rules’ of the Health Professions Council of SA (to promote ‘innovation in models of care’ that allow for ‘multidisciplinary group practices and alternative care models’, ending the dominance of the fee-for-service payment mechanism); the development of guidelines for health professional associations (‘to ensure that they are not at risk of potentially anti-competitive behaviour’); and compulsory training for undergraduate and postgraduate students on the cost implications of healthcare technology and the impact of health system financing models on patients’ healthcare choices.

While President Cyril Ramaphosa’s remarks at the health sector anti-corruption forum launch this week tended to point to a focus on the plethora of illegal practices bedevilling state-run healthcare institutions, he nevertheless noted the importance of curbing ‘false invoicing, collusion and price fixing’ by private service providers. Also speaking at the launch, Justice & Correctional Services Deputy Minister John Jeffery said the Council for Medical Schemes has estimated that private healthcare system fraud amounts to ‘approximately R22bn annually’. According to Health Minister Zweli Mkhize, ‘over-servicing’ consumers and ‘over-pricing’ products in some markets are the ‘big issues’ requiring attention as his department rolls out NHI (Engineering News).

Meanwhile, the National Assembly’s Health Committee has extended the deadline for written submissions on the NHI Bill by seven weeks – to 29 November. This will allow ‘important’ healthcare delivery stakeholders two weeks more than they requested to prepare input in anticipation of parliamentary hearings likely to be held next year – although no dates have been announced. The decision may have been influenced by recommendations in the Competition Commission report, which committee chair Sibongiseni Dhlomo believes point to the need for government intervention. Public hearings in all nine provinces are scheduled to begin on 25 October in Mpumalanga, followed by the Northern Cape on 1 November.