The adoption of both the Interim Constitution of the Republic of South Africa in 1993 and the final Constitution of the Republic of South Africa in 1996 has been a major milestone in achieving freedom in South Africa and in establishing a democratic state founded on principles such as the supremacy of the Constitution and the of rule of law.
The Constitution has ensured that South Africa continues to develop as a constitutional state, that is, one where political power is restricted in various ways and in which the Constitution serves as the golden standard for the legitimate exercise of public power.
The separation of powers is one such restriction and is a means to ensure protection of rights by way of the distribution of political power between different institutions and persons. The idea is that good governance is more likely when political power is distributed to various actors as opposed to being concentrated in one person. The objective is to prevent the abuse of political power. Under this principle, specific functions, duties and responsibilities are allocated to different institutions with specific areas of jurisdiction.
In South Africa, broadly speaking, this has led to a separation of public powers between the legislature (concerned with the making of laws), the executive (concerned with the application and execution of laws) and the judiciary (concerned with the resolution of disputes). However, it is important to note that the separation of powers is not absolute in South Africa. Instead, the powers, functions and institutions of the three branches of government are inter-related. Thus, the exercise of core functions of one branch may be subject to limitations, checks and balances exercised by another branch.
Governmental structures in South Africa are established by the Constitution. The Constitution provides for the establishment of three spheres of government, namely national, provincial and local which, although distinct, are also inter-dependent and inter-related.
At national level, the Constitution provides for a bicameral Parliament consisting of the National Assembly and the National Council of Provinces. At provincial level, nine provinces are established and each province has its own legislature. Each legislature consists of between 30 and 80 members who are elected in accordance with the provisions of the Electoral Act, 1998. The number of members per legislature is determined by a formula prescribed by the Electoral Act.
The Province of KwaZulu-Natal is one of the nine provinces established under section 103 of the Constitution. The KwaZulu-Natal Legislature currently has 80 members.
A provincial legislature is elected for a term of five years, unless it is dissolved earlier by the Premier or Acting Premier in exceptional circumstances provided for in section 109 of the Constitution, e.g. where the legislature has resolved to be dissolved after three years have lapsed since it was elected.
The first sitting after an election must take place within 14 days after election results have been declared, on a date determined by a judge designated by the Chief Justice. Thereafter, the legislature may determine its own sitting dates and times and recess periods.
At the first sitting after an election or whenever a vacancy arises, the legislature must elect a Speaker, Deputy Speaker and the Premier. A Speaker, Deputy Speaker or the Premier may be removed by a resolution of the House.
The Speaker is the principal presiding officer in the House, but is assisted in this function by the Deputy Speaker or, in some instances, by the Chairperson or Deputy Chairperson of Committees.
Section 116 of the Constitution vests in a legislature the power to determine and control its own internal arrangements, proceedings and procedures, and to make rules and orders concerning its business. This includes rules of procedure and of debate, the consideration of legislation and conducting oversight. The rules must have regard for democracy, accountability, transparency and public involvement. The rules under which a legislature regulates its proceedings and procedures are known as the Standing Rules. They are usually adopted at the commencement of a term and remain in operation until the end of that term. However, the legislature has the power to amend, suspend or repeal any of its Standing Rules.
As presiding officer, the Speaker must ensure that the Standing Rules are observed and that plenary meetings are conducted in accordance with the Standing Rules and in an orderly manner. The Speaker thus applies and interprets the Standing Rules and makes rulings where required. The Speaker must also ensure that the dignity of the House and its Members is upheld.
The rulings of the Speaker and other presiding officers also form an important part of the practice and procedure of the House. Previous rulings ordinarily establish precedent, but presiding officers are not necessarily bound by these where circumstances require a different approach. Conventions and practices may also develop over time into established procedure.
Not only is the Speaker the presiding officer in the House, but he/she is also the political head of the legislature and thus its spokesperson and representative in relation to outside bodies. The Speaker is also the treasurer of the legislature and is tasked with certain administrative functions.
Although policy is determined by the Management Committee on Rules, which is chaired by the Speaker, the responsibility for the day-to-day operational management of the legislature vests in the Secretary to the Legislature. For purposes of financial accountability, the Secretary is deemed to be the accounting officer, akin to a head of a provincial department, and has all the duties and responsibilities of a head of department in that regard.
Decisions before a legislature are decided by a majority of the votes cast, except where the Constitution provides otherwise, for example, where a province wishes to adopt a provincial constitution. In the latter case, at least two thirds of the Members must vote in favour of the Bill. The presiding officer ordinarily does not have a deliberative vote, but must cast a deciding vote when there are equal numbers of votes on each side of the question. However, where a question must be decided by a two-thirds majority, the presiding officer has a deliberative vote.
The legislative authority of a province is vested in its provincial legislature. A legislature has the power to pass a provincial constitution, and to pass legislation with regard to matters listed in Schedule 4 and 5 of the Constitution, as well as matters assigned to the province by national legislation and any matter on which the Constitution envisages the enactment of provincial legislation. For example, section 120 (3) of the Constitution provides that a provincial Act must provide for a procedure whereby a legislature may amend a money Bill. This is a clear example where the Constitution envisages the enactment of provincial legislation.
Not only may the legislature consider, pass, amend or reject Bills emanating from the provincial Executive Council, it also has the power to initiate or prepare its own legislation, except for money Bills. For example, the KZN Legislature passed the KZN Petitions Act in 2003 and the KZN Legislature Witnesses Act in 2007. Both Acts emanated from committees within the Legislature itself.
Other than lawmaking, one of the core functions of a legislature is to hold all provincial executive organs of state within the province accountable to it and to maintain oversight over the exercise of provincial executive authority. This includes not only provincial departments, but all functionaries or institutions exercising a constitutional power or a public power or performing a public function in terms of legislation, but excludes a court or a judicial officer. Thus, a legislature has oversight powers over public entities created and funded by departments to carry out specific functions.
The Standing Rules of a legislature must provide for the establishment, powers and functions of committees. Committees are established to perform functions which the House, by virtue of its size, is not suited to perform. Committees deal with matters such as the consideration of Bills, departmental budgets, expenditure reports, annual and other reports and, through their deliberations and intensive investigations and enquiries, submit reports or resolutions to the House for final consideration and adoption.
The composition of committees in the KwaZulu-Natal Legislature broadly reflects the numerical strength of political parties represented in the Legislature. However, the representation of minority parties is determined by their collective representation in the Legislature.
The Standing Rules of the KwaZulu-Natal Legislature provide for the establishment of management committees (committees dealing with the political management of, and procedures in, the House), portfolio committees (committees assigned a portfolio of provincial government affairs, e.g. the Portfolio Committee on Health), standing committees (e.g. the Standing Committee on Public Accounts) and ad hoc committees (committees established by resolution of the House for the performance of a specific task within a specified time frame).
The management committees consist of the Management Committee on Rules, the Management Committee on Programming, the Committee of Chairpersons and the Whips’ Forum.
The Management Committee on Rules is chaired by the Speaker and tasked with making policy with regard to the management, administration and functioning of the Legislature, financial management and budget of the Legislature, as well as proceedings, Standing Rules and Members’ facilities. It may appoint sub-committees to assist in the performance of its functions.
The Management Committee on Programming is also chaired by the Speaker and must prepare and oversee the implementation of the annual programme of the Legislature, as well as the legislative programme. It must implement the Standing Rules regarding the scheduling of the business of the Legislature and may take decisions to prioritise business, excluding business on the Order Paper.
The Committee of Chairpersons is chaired by the Chairperson of Committees. This committee is tasked with preparing guidelines for chairpersons of committees to effectively fulfill their role and to assess their performance. It may also make recommendations to the Management Committee on Rules or the Management Committee on Programming concerning the scheduling or functioning of any committee.
The Whips’ Forum is chaired by the Chief Whip of the Legislature (the chief whip of the ruling party) and co-ordinates matters for which the Whips are responsible. Each political party represented in the KwaZulu-Natal Legislature is entitled to one whip for every eight members. Minority parties, not entitled to a whip on account of their size, are collectively entitled to one whip. The main function of the whips is to ensure the smooth functioning of the Legislature, e.g. to ensure their members attend sittings and committee meetings, approval of members’ leave, acting as tellers during divisions, etc.
The Chief Whip of the Legislature, after consultation with the other whips, must arrange the business of the Legislature on the Order Paper. He/she must also ensure the effective development and implementation of the programme of the legislature, allocate seating places to members, be responsible for political consultation among the parties and with the Executive Council, and arrange the speakers’ lists for debates in the House.
The Constitution requires that all legislatures facilitate public involvement in its legislative and other processes, including those of committees. Therefore, all meetings and sittings must be open to the public, unless circumstances dictate otherwise. However, a closed session may only occur if it is reasonable and justifiable in an open and democratic society to do so. In most instances where legislation is considered, committees will hold public hearings to establish the views of interested and affected parties and to consider these views with the aim of effecting amendments to Bills where so indicated. Portfolio committees also conduct regular oversight visits to areas of concern and seek to engage all relevant stakeholders as part of conducting oversight. Regular sector parliamentary sittings are also held, such as the Workers’ Parliament, the Youth Parliament and the Women’s Parliament where members of a particular sector participate in the proceedings of the House. The Taking the Legislature to the People initiative is also aimed at reaching the people of the province to ascertain their views and to make the Legislature more accessible to all. A special unit, dedicated to facilitating public involvement, has been established and this unit facilitates public hearings and public workshops.
In conducting its constitutional role, the KZN Legislature is guided by and committed to a strategic plan which includes the following declared vision and mission statements:
• To create a province of peace and prosperity, focusing on improving the quality of life of all citizens;
• To work in co-operative governance as an integral part of the KZN provincial government, supporting the achievement of the province’s priorities;
• To meet all constitutional responsibilities, including the exercise of oversight, law-making and public participation;
• To aspire to being a modern, dynamic provincial legislature, reflecting professionalism, responsiveness and a bias to action;
• To provide a model to civil society of ethics, inclusiveness, democracy, transparency, effectiveness and efficiency;
• To demonstrate a people-centered focus on service and accountability to the public, and
• To foster public confidence and pride in the Legislature.
The KZN Legislature espouses the following strategic objectives:
• To enhance the public’s knowledge of legislation and proceedings;
• To timeously consider, pass, amend or reject legislation referred to it by the Executive Council or the National Council of Provinces;
• To initiate or prepare legislation, with the exception of money Bills;
• To maintain oversight over the exercise of the provincial executive authority in the province, including the implementation of legislation;
• To maintain oversight over budgets of provincial departments;
• To ensure that all provincial executive organs of state are accountable to the KZN Legislature;
• To ensure compliance with financial management legislation, policies and procedures;
• To establish an efficient and professional support staff to enable Members to carry out their legislative mandate effectively;
• To create a safe and secure environment within the precincts for Members, staff and the public;
• To facilitate public involvement in the legislative and other policy formulation processes of the KZN Legislature and its committees;
• To conduct business in an open and transparent manner, including the holding of legislative sittings and committee meetings in public, and
• To build capacity among the Members.
The core values to which the KZN Legislature subscribes are:
• Respect for diversity