PROVINCIAL PUBLIC HEARINGS: who decides when they should be held, and why?

This article was first published on 17 September 2021 in Legalbrief Today, under Policy Watch. It appears here with the permission of Juta Law, who own the copyright.

The 2020 Children’s Amendment Bill is the second piece of proposed new legislation now before the National Assembly to have been subjected to provincial public hearings this year – before being adopted by the House and sent to the NCOP (where provincial hearings are generally held, if at all). The revised Expropriation Bill was the first. Both have been tagged as ordinary section 76 Bills because of their implications for the provinces. The remitted 2017 Copyright Amendment Bill and 2016 Performers’ Protection Amendment Bill have now been re-tagged as ordinary section 76 Bills affecting the provinces. Yet the National Assembly’s Trade & Industry Committee chose not to conduct nationwide hearings but, instead, to focus on sections of the Copyright Amendment Bill identified by President Cyril Ramaphosa in the context of his reservations about both Bills’ constitutionality*. It will apparently be left to the NCOP’s Committee on Trade & Industry, Economic Development, Small Business, Tourism and Employment & Labour to take them to the provinces.

Pam Saxby writes that it is not clear from the National Assembly rules what determines when (or if) one of its committees is obliged to conduct provincial public hearings on a section 76 piece of proposed new legislation. According to Rule 167 (general powers), ‘for the purposes of performing its functions a committee may, subject to the Constitution, legislation, the other provisions of these rules and resolutions of the Assembly … conduct public hearings’. The NCOP Rules feature a similar statement. Neither set of rules defines the term ‘public hearing’. ‘Public participation’ is not mentioned once in the National Assembly rules – but is the focus of a comprehensive section in those for the NCOP. Chapter 1, paragraph 5 states that ‘members of the public may participate in the proceedings of the Council by (among other things) responding to public or specific invitations to (among other things) give evidence or to make representations or recommendations before Council committees … either in person or through a representative’.

It is also far from clear how (or why) Bills are tagged as section 75 or 76 pieces of proposed new legislation. In its website page on ‘how a law is made’, Parliament simply states that the decision is made by a ‘joint tagging mechanism’ – a rather strange term used to describe a group of parliamentary functionaries apparently above being referred to as a committee. This ‘mechanism’ ‘consists of the Speaker and Deputy Speaker (of the National Assembly), and the Chairperson and permanent Deputy Chairperson of the … (NCOP) … assisted by … parliamentary legal advisors’.

According to a memorandum on the objects of the Children’s Amendment Bill, ‘the State Law Advisers and the Department of Social Development are of the opinion that the Bill should be dealt with in terms of the procedure prescribed by the provisions of section 76 of the Constitution’. By contrast, a memorandum on the objects of the revised Expropriation Bill includes a detailed account of the process followed in tagging it as a section 76 piece of proposed new legislation. Interestingly, although the Copyright Amendment Bill and Performers’ Protection Amendment Bill were re-tagged after being remitted and are now section 76 Bills, the memorandum on each Bill’s objects remains as it was when the Bills were first tabled in Parliament – explaining the thinking at the time, in terms of which they were tagged as section 75 Bills. This notwithstanding, the process of arriving at a decision on tagging the Copyright Amendment Bill appears to have been far more complex than deciding how the Performers’ Protection Amendment Bill should be tagged.

Of the 47 Bills now before Parliament, 26 have been tagged as section 76 proposed new pieces of legislation affecting the provinces. Of these, 24 are still being processed by National Assembly committees. Two are ready for a second reading in the House. Yet, as far as can be ascertained, only the 2019 National Health Insurance Bill, the revised Expropriation Bill and – most recently – the 2020 Children’s Amendment Bill have been subjected to provincial public hearings by a National Assembly committee. Ordinary South Africans would benefit from more information on the criteria to be met by a section 76 Bill before it is taken to the provinces by a National Assembly committee.

* When a Bill passed by Parliament is remitted by the President because of reservations about its constitutionality, only the clauses identified may be revised to address the concerns raised. However, the Copyright Amendment Bill and Performers' Protection Amendment Bill were retagged as section 76 Bills in response to one of those concerns. Does this open the door to provincial public hearings once the President's other reservations have been addressed – conducted by the National Assembly's Public Works & Infrastructure Committee?