Since the functions of the office which deals with the National Council of Provinces differ distinctly from those of other committees within the Legislature, and since the scope of activities performed by this office is extensive, the NCOP Administration Office will be dealt with separately.
The National Council of Provinces
The national Parliament of the Republic of South Africa consists of two Houses, namely the National Assembly and the National Council of Provinces (NCOP). The NCOP replaced the now defunct Senate on 4 February 1997. According to the Constitution of the RSA, the NCOP represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does so mainly by participating in the national legislative process, and by providing a national forum for public debate on important issues which affect the provinces. The NCOP also ensures that local government concerns are represented at the highest level.
The NCOP consists of nine provincial delegations nominated by the provincial Legislatures and a delegation from the South African Local Government Association (Salga). Each provincial delegation consists of 10 members made up of:
• Four special delegates drawn from the provincial Legislature, including the Premier of the Province or a person designated by the Premier as head of the delegation. These delegates may change from time to time, and
• Six permanent delegates.
This means that every province is equally represented in the NCOP. Political parties in each provincial legislature are entitled to be proportionally represented in the NCOP delegation of that province.
The Salga delegation from the nine provincial local government associations represents local government, but these members may not vote. A constitutional formula determines which political parties represented in each Legislature may appoint permanent and special delegates. [For additional information, please see Determination of Delegates: National Council of Provinces Act, 1998.]
Permanent Delegates Six permanent delegates are directly elected as Members of the Legislature. They are sworn in as full members of the national Parliament. Permanent delegates represent the Legislature at the NCOP for the term of Parliament. They spend the majority of their time at the NCOP in Cape Town. However, they may also participate fully in the debates of the provincial Legislature, although they may not vote when decisions are taken.
Special Delegates The four special delegates are Members of the Legislature. The role of the special delegates is to attend the various NCOP meetings in Cape Town and to debate on issues from a provincial perspective. Provincial Premiers, Members of the Executive Council (MECs) or Members of Provincial Legislatures can be appointed as special delegates. Ultimately the NCOP, through its permanent delegates, will provide provinces with a national perspective on issues, whilst special delegates will ensure that the views of provinces are taken into account at national level. Political parties (as opposed to individuals) hold seats in the NCOP. If a member of the NCOP resigns, dies or is expelled from a party, the party which holds that seat chooses another party member to take up the seat. The party’s choice has to be ratified by the relevant provincial Legislature. NCOP Office Bearers
The NCOP elects presiding officers from amongst its members – a Chairperson and two Deputy Chairpersons. These presiding officers manage the work of the NCOP and preside over debates, making sure that delegates speak freely while remaining within the Standing Rules. The permanent Deputy Chairperson is elected for five years, while provincial Premiers take turns to be rotating Deputy Chairpersons for a year. A provincial Whip organises the work of each provincial delegation. A programming Whip helps the Chief Whip to schedule the work of the NCOP.
Each provincial delegation has one vote that is cast by the head of its delegation on behalf of the province. Questions before the NCOP are decided whenever five provincial delegations cast their votes in favour of a question. However, amendments to the Constitution of the RSA require the approval of six delegations. When the NCOP votes on ordinary Bills which do not affect the provinces, each delegate has a vote, a third of delegates must be present, and the decision is taken by a majority of those present.
Law-making Role The NCOP considers, passes, amends, proposes amendments to or rejects legislation. It must consider all national Bills. It may also initiate or prepare Bills which fall under Schedule 4 of the Constitution of the RSA (matters over which national Parliament and provincial legislatures jointly have the power to make laws) and certain Bills which affect provinces. However, only the Minister of Finance may introduce a Bill that has to do with finance. Most of this law-making work is done in committees, but all Bills must be referred to a sitting of the NCOP for debate and for a vote on whether to accept or reject the Bill.
The legislative role of the NCOP occupies most of the NCOP’s time, and is the single area in which provinces are most active.
Debates and Questions Issues of provincial importance are debated in the national forum of the NCOP. Members may ask Cabinet Ministers questions which must be answered in the NCOP Chamber. The NCOP may require a member of the Cabinet, a Deputy Minister or an executive official in the national or provincial government to attend a sitting or a committee meeting. A verbatim (word-for-word) record of all debates and Questions is published in Hansard, a parliamentary publication.
Committees The NCOP committees are called select committees. One would find, for example, a Select Committee on Housing; a Select Committee on Public Works or a Select Committee on Transport. Each committee shadows the work of some government departments or debates on Bills, and organises public hearings if an issue is deemed to be of great public interest. Committees may summon any person to give evidence or to produce documents, and they may call any person or institution to report to them. Once a Bill has been debated by a committee, it is submitted to the NCOP for a vote.
Oversight of the Executive
As a collective representative of the provinces, the NCOP also has oversight of the executive arm of government.
• In certain situations the national executive arm (Cabinet) may intervene in the affairs of a province, and a provincial executive council may intervene in the affairs of a local authority. Interventions like these must be approved by the NCOP, and they must be regularly reviewed by the NCOP.
• Any decision by the national government to stop the transfer of funds to a province must be approved by both Houses of Parliament.
• Provinces have certain executive powers under the Constitution, as long as they have the capacity to do what needs to be done. The NCOP must resolve any dispute between national and provincial government over the capacity of a province to do this work.
• Both Houses of Parliament must approve the declaration of a state of national defence.
At the beginning of each year, the Minister of Finance tables the Budget. There are two Budget Bills: one that divides the money up between national, provincial and local government (called the Division of Revenue Bill) and another Bill which states how the national government will spend its money. The NCOP debates the Budget and votes on it, and it must be involved in the final decision about the division of revenue.
NCOP: Legislative Process
Bills that are passed by the National Assembly must also be passed by the NCOP before they can become Acts (in other words, before they can become law). Legislation may be tabled in either House – the National Assembly or the NCOP – and will then be considered by the other remaining House afterwards.
Section 74 legislation provides for constitutional amendments, and provinces are required to submit negotiating and final voting mandates to the NCOP.
Section 75 legislation, or legislation falling under the competency of national government, does not require these mandates, as voting is conducted on a party basis.
Legislation that falls under the competency of both national and provincial government, referred to as Section 76 legislation [See Schedule 4 of the Constitution of the RSA], follows the procedure of the six-week cycle outlined below. This legislation impacts on provinces, and therefore needs negotiating and voting mandates from provincial legislatures. The mandating procedure that must be followed by the provinces is determined by the Mandating Procedures of Provinces Act, Act No 52 of 2008.
Provincial NCOP Administration Office
Staff members in the Provincial NCOP Administration Offices are responsible for the overall management of NCOP business in the Legislature. There is an office in the KZN Legislature in Pietermaritzburg, as well as a liaison office in Cape Town to provide logistical and administrative support to the permanent and special delegates in Cape Town, as well as to the Speaker, Whips and chairpersons of portfolio committees to ensure, firstly, that the Legislature meets all its legislative requirements on NCOP matters; secondly, that the consideration of national legislation is within the timeframes of the six-week cycle and thirdly, that Members participate fully in the NCOP programme.
The Six-Week Cycle
Prior to the beginning of the NCOP cycle, the provincial NCOP Administration Unit refers the Bill (as introduced in the NCOP) to the relevant MEC and chairperson of the portfolio committee.
Dates of portfolio committee meetings to discuss the Bill are decided on, taking into account the deadlines set by the relevant NCOP Select Committee for negotiating and voting mandates, dates of the NCOP select committee meetings and the plenary, in conjunction with the provincial Legislature Calendar.
Week 1: Bill tabled in NCOP
The relevant NCOP select committee at Parliament in Cape Town is briefed on the Bill by the department which initiated the Bill. Special delegates from provincial Legislatures also attend the briefing.
Weeks 2 and 3: Bill considered in Provinces
• Provincial NCOP delegates and permanent delegates return to their provinces to brief the relevant portfolio committee.
• Committees can hold public hearings during this period to obtain public input on the Bill.
• Provincial portfolio committee meets to discuss the Bill and to prepare a negotiating mandate. This reflects the committee’s position on the Bill, along with suggested amendments.
Week 4: Back to NCOP
• Provincial NCOP delegates from all nine provinces travel to Cape Town to negotiate on the Bill, in accordance with their mandates.
Week 5: Final Mandates
• Delegates report back to their provinces on the outcome of the negotiations, and provinces prepare a voting mandate. This reflects whether provinces will vote for or against the Bill, as amended.
• The provincial portfolio committee must consider amendments, if any, adopted by the select committee. They must approve or reject them and make a recommendation to the House for approval and conferral of a final mandate.
Week 6: Bill voted on in NCOP Plenary
• The NCOP meets in plenary and provincial delegates vote on the Bill, in accordance with their mandates.
• Scenario A: The Bill is first tabled in and passed by the National Assembly:
If the NCOP passes the Bill without amendments, the Bill goes to the President for his approval and signature and becomes law. If the NCOP rejects or amends the Bill, it goes back to the National Assembly for its consideration. If the National Assembly accepts the amendments, the Bill goes to the President for his approval and signature. If the National Assembly rejects the amendments, the Bill goes through a mediation process. If this fails, the National Assembly requires a two-thirds majority vote to override the NCOP amendments.
• Scenario B: The Bill is first tabled in and passed by the NCOP: The Bill is referred to the National Assembly for its consideration. If the National Assembly amends the Bill, the amended version must be approved by the NCOP. If the Bill is passed, it is sent to the President for signature. If the National Assembly rejects the Bill, or if the NCOP rejects amendments to the Bill, it is referred to mediation, as above.
The NCOP introduced a period in the parliamentary calendar which sets aside certain weeks for Members to visit their respective provinces to conduct briefings on Bills that will require provincial mandates, and to carry out oversight work where issues affecting the province can be raised and the national perspective put forward.
Taking Parliament to the People
The NCOP initiated a programme called Taking Parliament to the People in 2002. Each province takes a turn to host the NCOP and a programme is developed to include meetings with various sectors of the public, e.g. farmers and business people. Site visits are conducted to various community structures, e.g. schools, clinics, etc. In addition, a formal sitting of the NCOP is held on the final day of the programme when the President gives an address to the House.
The processes and the programmes of the NCOP as described above are comprehensively coordinated and facilitated by the NCOP Administration Unit.
This support includes all travel arrangements for special delegates and permanent delegates, where necessary, when attending meetings, plenaries, provincial weeks and Taking Parliament to the People initiatives. Staff members also ensure that copies of Bills, briefing documents, minutes and programmes of the NCOP’s select committees and any amendments to Bills are relayed to the Speaker, Whips, chairpersons of portfolio committees and all other stakeholders as the process of the cycle unfolds.
Staff members also ensure that the province’s negotiating and final voting mandates are drafted correctly and in accordance with the requirements of the NCOP, and forwarded within the timeframes set by the select committee for consideration and for voting on in plenary.
NCOP Administration Office
1st Floor: Administrative Building
244 Langalibalele Street
Manager: Mrs Margaret Clinton-Parker
Telephone: 033 3557745
Fax: 033 3557750