MAKING LAWS
HOW LAW IS MADE
The function of the North West Provincial Legislature is to make laws for the North West Province. The provinces have been given powers in terms of the Constitution to make laws relating to particular areas because each province is different and may have its own needs. There must be some flexibility within the legal system for laws to be made which addresses the needs of the people in each of the provinces adequately.
The areas in which the North West Provincial Legislature can make laws are set out in Schedules 4 and 5 of the Constitution. The North West Provincial Legislature could also make laws relating to matters which Parliament has passed legislation assigning the power to make legislation to the provinces, or matters were the Constitution envisages that provincial legislation would be passed.
It is important to remember that any law that the North West Provincial Legislature makes only applies in that province; it is possible, in certain circumstances, for the National Parliament to pass national laws which would ‘take precedence’ over provincial laws that deal with the same matter.
In terms of Schedule 4 of the Constitution, both the National Parliament and the North West Provincial Legislature are entitled to pass legislation in the following areas, which are called areas of current legislative competence:
• Administration of indigenous forests
• Agriculture
• Airports other than international and national airports
• Animal control and diseases
• Casinos, racing, gambling and wagering, excluding lotteries and other sports pools
• Consumer protection
• Cultural matters
• Education at all levels, excluding tertiary education
• Housing
• Indigenous law and customary law, subject to Chapter 12 of the Constitution
• Industrial promotion
• Language policy and the regulation of official languages to the extent that the provisions of section 6 of the Constitution expressly confer upon the North West Provincial Legislature’s legislative competence
• Media services directly controlled or provided by the provincial government, subject to section 192 of the Constitution
• Nature conservation, excluding national parks, national botanical gardens and marine resources
• Police to the extent that the provisions of Chapter 11 of the Constitution confer upon the North West Provincial Legislature’s legislative competence
• Pollution control
• Population development
• Property transfer fees
• Disaster management
• Provincial public enterprises in respect of the functional areas listed in Schedules 4 and 5 of the Constitution
• Public transport
• Environment
• Health services
• Public works only in respect of the needs of provincial government departments in the discharge of their responsibilities to administer functions specifically assigned to them in terms of the Constitution or any other law
• Regional planning and development
• Road traffic regulation
• Soil conservation
• Tourism
• Trade
• Traditional leadership, subject to Chapter 12 of the Constitution
• Urban and rural development
• Vehicle licensing
• Welfare services
THE NATIONAL PARLIAMENT AND THE NORTH WEST PROVINCIAL LEGISLATURE CAN ALSO MAKE LAWS FOR SOME AREAS THAT APPLY TO LOCAL GOVERNMENTS:
• Air pollution
• Building regulations
• Child care facilities
• Electricity and gas regulation
• Firefighting services
• Local tourism
• Municipal airports
• Municipal planning
• Municipal health services
• Municipal public transport
• Municipal public works only in respect of the needs of municipalities in the discharge of their responsibilities to administer functions specifically assigned to them under this Constitution or any other law
• Pontoons, ferries, jetties, piers and harbours, excluding the regulation of international and national shipping and matters related thereto;
• Stormwater management systems in built-up areas
• Trading regulations
• Water and sanitation services limited to potable water supply systems and domestic waste-water and sewage disposal systems
• Welfare services
In terms of Schedule 5 of the Constitution, the North West Provincial Legislature has the exclusive authority to make laws relating to:
• Abattoirs
• Ambulance Services
• Archives other than National Archives
• Libraries other than National Libraries
• Liquor Licenses
• Museums other than National Museums
• Provincial Planning
• Provincial Cultural Matters
• Provincial Recreation and Amenities
• Provincial Sport
• Provincial Roads and Traffic
• Veterinary Services excluding Regulation of the Profession
THE NORTH WEST PROVINCIAL LEGISLATURE CAN ALSO MAKE LAWS FOR SOME AREAS THAT APPLY TO LOCAL GOVERNMENTS:
THE NORTH WEST PROVINCIAL LEGISLATURE CAN ALSO MAKE LAWS FOR SOME AREAS THAT APPLY TO LOCAL GOVERNMENTS:
THE LEGISLATIVE PROCESS
This section provides an overview of the stages and processes involved in making or amending (changing) a law.
THE LEGISLATIVE PROCESS AT THE NATIONAL LEVEL
Green and White Papers
The process of making a law sometimes begins with a discussion document, called a Green Paper. This is drafted in the Ministry or department dealing with the particular issue in order to show the way that it is thinking on a particular policy. It is then published so that anyone who is interested can give comments, suggestions and ideas.
The Green Paper is sometimes followed by a more refined discussion document, called a White Paper, which is a broad statement of government policy.
Your Title Goes Here
Your content goes here. Edit or remove this text inline or in the module Content settings. You can also style every aspect of this content in the module Design settings and even apply custom CSS to this text in the module Advanced settings.
Bills Before Parliament
There are four main types of Bills that come before Parliament:
1.ordinary Bills that do not affect the provinces (section 75 of the Constitution);
2.ordinary Bills that affect the provinces (section 76 of the Constitution);
3.Money Bills (section 77 of the Constitution); and
4.Bills amending the Constitution (section 74 of the Constitution); and
(Bills are often loosely referred to by the section of the Constitution which describes their procedure. For example “Section 75 Bills” refers to the ordinary Bills that do not affect the provinces etc..)
The process of classifying a Bill into one of the four categories above is called “tagging” and will determine the procedures the Bill must follow to become law. Bills are tagged by the Joint Tagging Mechanism (JTM), a Committee consisting of the Speaker and the Deputy Speaker of the National Assembly and the Chairperson and Permanent Deputy Chairperson of the National Council of Provinces. They are advised by the Parliamentary Law Adviser. The JTM decides on the classification of the Bill by consensus.
1.Ordinary Bills that do not affect the provinces (Section 75 Bills)
An ordinary Bill that does not affect the provinces can only be introduced in the National Assembly (NA). Once it has been passed by the NA, it must be sent to the National Council of Provinces (NCOP).
In this case, delegates in the NCOP vote individually and the Bill must be passed by a majority of delegates present. If the NCOP rejects a Bill or proposes its own amendments, the Bill is returned to the NA which will pass the Bill with or without taking into account the NCOP amendments or it may decide not to proceed with the Bill. The NCOP’s role in Bills that do not affect the provinces is therefore a limited one. It can delay a Section 75 Bill, but it cannot prevent it from being passed.
2.Ordinary Bills that affect the provinces (Section 76 Bills)
A Bill that affects the provinces may be introduced in either the NA or the NCOP, but must be considered in both Houses.
Members of the NCOP do not vote as individuals on Section 76 Bills but rather as provincial delegations. Each provincial delegation has one vote so there are nine possible votes regarding Bills that affect the provinces.
These Bills must also be discussed by each Provincial Legislature so that each legislature can give its NCOP delegation a voting mandate. This makes it necessary to have six-week legislative cycles so that a number of Bills can go to each province at one time.
Bills are usually considered by a provincial Committee, which may hold public hearings on the Bill to receive comments and suggestions. These Committees make recommendations to their legislatures, which then decide on their position on each Bill and mandate their NCOP delegation accordingly.
The four special delegates to the NCOP (who are supposed to be chosen according to their expertise and knowledge of the Bills being debated) go to Cape Town to join the six permanent delegates. The full delegation of ten people participates in the national debate on the Bills, thus enabling the provinces to contribute to national legislation that affects them. The delegation then casts its one vote on behalf of its province and in accordance with the North West Provincial Legislature’s mandate.
The NCOP must pass, amend or reject a section 76 Bill. If the Bill was introduced in the NA, however, the NA can override the NCOP decision with a two thirds majority of its Members.
3.Money Bills (Section 77 Bills)
Money Bills allocate public money for a particular purpose or impose taxes, levies or duties. They can only be introduced by the Minister of Finance and they must be introduced in the National Assembly. They follow the same procedure as that for Bills that do not affect the provinces (Section 75 Bills).
At present Money Bills may only be debated and not amended as, according to the Constitution, Parliament must still devise legislation for a procedure to amend Money Bills.
4.Constitutional Amendments (Section 74 Bills)
As the highest law in the land, the Constitution is the foundation for a democratic society and protects the rights of all people. There are special requirements and procedures, therefore, in order to amend the Constitution. All of them require special majorities so that changes cannot be made by a minority. For example, amending the Bill of Rights requires a vote of two-thirds of the membership of the National Assembly and the support of six provinces in the NCOP.
All constitutional amendments that affect the provinces must be passed by both Houses. Amendments which affect only certain provinces, must be passed by those provinces. Other amendments do not need to be passed by the NCOP but all amendments, whether or not they must be passed by the NCOP, must be submitted to the NCOP for public debate.
In addition, minimum times are laid down for different stages of the legislative process. All constitutional amendments must be published in the Government Gazette with a call for public comment at least 30 days before being introduced in Parliament. After the Bill which proposes amendments to the Constitution is tabled, 30 days must pass before it can be put to a vote in the National Assembly.
