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
• 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
• Disaster management
• Education at all levels, excluding tertiary education
• Health services
• 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
• Provincial public enterprises in respect of the functional areas listed in Schedules 4 and 5 of the Constitution
• Public transport
• 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
• 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:
• 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:
• Beaches and amusement facilities
• Local amenities
• Billboards and the display of advertisements in public places
• Local sport facilities
• Cemeteries, Funeral Parlours and Crematoria
• Municipal Abattoirs
• Control of public nuisances
• Municipal parks and recreation
• Control of undertaking that sell liquor to the public
• Municipal roads
• Facilities for the accommodation, care and burial of animals
• Noise pollution
• Fencing and Fences
• Licensing of dogs
• Public places
• Licensing and control of undertakings that sell food to the public
• Refuse removal, refuse dumps and solid waste disposal
• Street trading
• Traffic and parking
• Street lighting
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. This is drafted by the relevant department or a task team designated by the Minister of that department. Comment may again be invited from interested parties. The relevant parliamentary Committees may propose amendments or other proposals and then send the policy paper back to the Ministry for further discussion and final decisions.
A Bill is the draft version of a law or Act. It may be proposing either an entirely new Act, or an amendment to an existing Act, or it can simply repeal an existing Act.
This section outlines some of the processes and requirements that can take place before a Bill becomes a law. It deals with the various types of Bills and who may initiate a Bill. The following section tracks how a Bill becomes a law. The Constitution provides the full details which are not included here.
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.
How a Bill becomes a Law
The initiation of Bills
A Bill can be initiated and written by a number of bodies.
•By a Minister
Most national Bills are drawn up by a Cabinet Minister.
•By an MP
Bills drawn up by individual Members are called Private Members Bills. A Committee concerned with Members’ legislative proposals in each House decides whether the Bill meets certain criteria (which could include financial implications) and can be introduced into the House.
•By a Committee
Parliament has recently drafted rules and procedures enabling a Committee to initiate a Bill.
Bills tabled in Parliament
Most Bills tabled in Parliament are introduced by the Executive and are either
1.ordinary Bills that do not affect the provinces (Section 75 Bills); or
2.ordinary Bills that affect the provinces (Section 76 Bills).
3.Bills that do not affect the provinces (section 75 Bills)
1.A draft Bill, which has been drafted by a government department, is submitted by the relevant Minister to the Cabinet for approval.
2.The state law advisers must refine and approve the draft Bill.
3.The Bill is then introduced and tabled in the National Assembly for what is known as the First Reading. The Bill is also published in the Government Gazette.
4.The Bill is then referred to the relevant Committee in the National Assembly which considers the Bill and may agree to it, propose amendments or reject the Bill, generally after a process of public consultation.
5.The Second Reading then takes place where the Bill is debated and voted on at a sitting of the National Assembly.
6.If there is a majority of votes in favour, the Bill is passed and the Bill is then referred to the NCOP for consideration.
7.The NCOP can accept or reject the Bill or propose amendments to it:
?If the NCOP passes the Bill without amendments, it goes to the President for his assent and signature and the Bill then becomes law. The Act appears in the Government Gazette and comes into effect on a date determined by the President.
?If the NCOP proposes amendments to or rejects the Bill, it must go back to the National Assembly for reconsideration. The National Assembly can pass the Bill with or without the NCOP amendments, or it can reject the Bill.
Note: While both Houses must consider Bills that do not affect the provinces, the NA may actually override the NCOP and pass the Bill despite opposition by the NCOP. It then submits the Bill, either in its original form or with amendments, to the National Assembly with a report.
4.Bills that affect the provinces (Section 76 Bills)
Schedule 4 of the Constitution lists the matters that affect the provinces and which therefore have to be dealt with in Section 76 Bills.
These include casinos; racing; gambling; cultural matters; disaster management; education excluding tertiary education; environment; health services; housing; population development; public transport; tourism; trade; traditional leadership; welfare services; and child care facilities.
Bills that affect the provinces may be introduced in either the National Assembly or the NCOP. Once introduced in Parliament, Bills are also sent to the North West Provincial Legislature so that they can begin considering them.
If the Bill is tabled in the National Assembly:
1.The Bill is introduced by a Cabinet Member or a Deputy Minister, or a Member or Committee of the National Assembly.
2.The Bill will be referred to a National Assembly Committee for consideration. Sometimes public hearings will be held.
3.The National Assembly would then either pass, amend or reject the Bill. If it passes the Bill or amends it, the Bill (with any amendments) is referred to the NCOP.
If the Bill is tabled in the National Council of Provinces:
1.The Bill can only be introduced by a Member or Committee of the NCOP.
2.The Bill will be sent to an NCOP Committee, which will receive a briefing on the Bill so that the NCOP Members can tell the North West Provincial Legislature about the Bill.
3.It is then considered by each of the nine Provincial Legislatures. The NCOP Members will go back to their provinces so that they can participate in the debate in North West Provincial Legislature.
4.Each Provincial Legislature will refer the Bill to a Committee, which will consider the Bill and may hold provincial public hearings on the Bill. The NCOP Members get a voting mandate from their Provincial Legislatures. Each provincial delegation has one vote on each Bill.
5.The NCOP delegates then return to Cape Town with a negotiating mandate. The NCOP Committee considers the Bill and negotiation takes place among the nine provincial delegations.
-If the NCOP passes the Bill, it goes to the President for his assent and signature.
-If the NCOP rejects or amends the Bill it goes back to the National Assembly for reconsideration.
-If the National Assembly accepts the amended Bill, it goes to the President for his assent.
-If the National Assembly rejects the NCOP amendments, the Bill goes to a Mediation Committee comprising of Members from the National Assembly and Members of the NCOP.
6.If the Mediation Committee is unable to agree within 30 days of the Bill’s referral to it, the Bill lapses.
(A Mediation Committee may agree on
-the Bill as passed by the National Assembly;
-the amended Bill as passed by the NCOP;
-another version of the Bill
for details concerning the outcome of these three options, refer to Section 76 of the Constitution.)
Note: While the NCOP has more power to change section 76 Bills than section 75 Bills, if a Bill has been introduced in the NA, the NA is once again able to disregard the NCOP and pass Section 76 legislation with a two thirds majority vote. If a section 76 Bill is introduced in the NCOP, the Bill lapses if agreement cannot be reached between the two Houses. Before a new Act comes into force, it has to be “enacted”. This involves the President declaring the Act’s commencement date in the Government Gazette. Acts are only enacted once the responsible department has indicated that it is ready and has the capacity to implement the new law.
THE LEGISLATIVE PROCESS IN THE NORTH WEST PROVINCIAL LEGISLATURE
Bills before the North West Provincial Legislature
There are two different types of Bills that come before North West Provincial Legislature:
1. Bills other than Money Bills;
2. Money Bills;
The procedure for processing these three types of Bills differs slightly.
I). Bills other than Money Bills
1.An ordinary Bill is introduced in the North West Provincial Legislature and is referred to the relevant Standing Committee.
2.Either public hearings may be held to hear the public’s views regarding the Bill or a Standing Committee may invite interested parties to make written submissions to the Committee.
3.The Committee then considers the Bill and may propose amendments to it.
4.After consideration by the Committee, a report with recommendations on the Bill is submitted to the House.
5.A debate takes place on the objectives and principles of the Bill in the House and the MPLs vote.
6.If there is a majority of votes in favour of the Bill, the Bill is passed. If there is no majority, the Bill is rejected.
II). Money Bills
A Bill that appropriates money or imposes taxes, levies or duties is called a Money Bill. Only the MEC responsible for Finance is able to introduce a Money Bill in the House.
1.Money Bills are referred to the Committee of Finance for discussion for a maximum of seven working days.
2.After discussion, the Committee submits a report to the House.
3.The Committee is not allowed to propose any amendments to the Bill, as there is not yet legislation that allows this.
How a Bill becomes a Law
The procedure which is followed by a Bill in the North West Provincial Legislature is as follows:
1.The Bill is initiated – by an MEC, an MPL, or a Committee.
2.The draft Bill is presented to and approved by the Executive Council.
3.The Bill is published- -in the Provincial Gazette, and notices are placed in various newspapers which bring the Bill to the attention of the public. After this, the public has at least 14 days to comment on the Bill.
4.The Bill is introduced- The Speaker introduces the Bill to the House and decides which is the best Committee to deal with the Bill.
5.The Bill goes to the Relevant Committee- The MPLs in the Committee discuss and debate the Bill, and they may call upon experts provide comments on the Bill, and propose changes ( amendments), after a process of public consultation. The Committee will compile a report on the inputs received in the public consultation process, and make recommendations regarding amendments, or it may even recommend rejection of the Bill. Committees are discussed in detail in another section.
6.The Bill is Debated at a Sitting of the House- Members of all parties are given an opportunity to talk about the Bill, and to place their opinion of it on record, and the Bill may be amended.
7.The House votes- and, if there is a majority of votes, the Bill is passed.
8.If the Bill is passed, it then goes to the Premier of the province for signature and becomes a Provincial Act.
9.The Act is Published- The Provincial Act must be published promptly in the Provincial Government Gazette, and takes effect when published or on a date determined in terms of the Act.
10.If the Bill is not passed, the Bill is rejected, and does not become a Provincial Act