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Gauteng Legislature's Heads of Argument-1014.Pdf IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case No: CCT 11/01 In the matter of: THE PREMIER OF MPUMULANGA IN RE: THE CONSTITUTIONALITY OF THE MPUMULANGA PETITIONS BILL, 2000 _______________________________________________________ MAIN SUBMISSIONS ON BEHALF OF THE SPEAKER OF GAUTENG AND THE GAUTENG LEGISLATURE IN SUPPORT OF THE CONSTITUTIONALITY OF THE BILL _______________________________________________________ INTRODUCTION: 1. The Premier of Mpumulanga, acting in terms of section 127 (2) (c) of the Constitution, referred the Mpumulanga Petitions Bill, 2000 to this Honourable Court for a decision on the constitutionality of the Bill. In particular, the following two questions concerning the constitutionality of the Bill are raised: (a) Whether the Mpumulanga legislature is competent in terms of the Constitution to pass the Petitions Bill; (b) Whether in terms of the Constitution, read with any applicable conventions in South Africa, it is permissible for a Provincial Act to make provision for regulations under the Act to be made by the Speaker, and for the Act to come into operation on a date to be fixed by the Speaker, as is done in sections 18 and 19 of the Bill. 2 2. Paragraph 5 (c) of the directions issued in terms of Rule 13 (4) direct that the arguments should also address the question - "whether conventions can deprive and legislature of power of vested in it under the Constitution, or vested with power that he does not have under the Constitution. In so far as the convention may be relevant to the questions referred to the squad by the Premier, the arguments should deal with how such conventions are to be established and terms of the convention or conventions relied on the present case." 3. Both the Speaker of Gauteng and the Gauteng legislature, represented by the Speaker, have a direct and substantial interest in the constitutional issues raised in this matter. This interest stems from the fact that, save for a few minor and irrelevant differences, the text of the Mpumulanga Petitions Bill is identical to that of the Gauteng Petitions Act, No 14 of 1998 ("the Gauteng Petitions Act"). 4. The Gauteng Petitions Act was passed by the Gauteng legislature and assented to by the Premier of Gauteng on or about the 2nd January 1999. However, it has yet to come into operation. Despite this, all persons concerned, including members of the Gauteng legislature and the Gauteng provincial government, as well as employees of the Gauteng administration, conduct themselves as if the Gauteng Petitions Act were in force.1 5. By Act No 5 of 1999, section 18 of the Gauteng Petitions Act was amended by substituting the word "Speaker" for the word "Premier". 6. Self-evidently, any decision on the constitutionality or otherwise of the Mpumulanga Petitions Bill will have direct implications on the Gauteng Petitions Act. OVERVIEW OF THE MPUMULANGA PETITIONS BILL 1 Affidavit by Cachalia, p. 8 para 17 3 7. Before examining the relevant provisions of the Constitution, it is appropriate to determine "the subject-matter or substance of the legislation, its essence [and it's] true purpose and effect."2 "This inquiry should focus beyond the direct legal effect of the proclamation and be directed at the purpose for which the [legislation] was enacted. In this inquiry the preamble to the [legislation] and it's legislative history of relevant considerations, as they serve to illuminate its subject-matter."3 8. It is submitted that overview of the Petitions Bill discloses that its primary purpose (like the Gauteng Petitions Act) is to give concrete manifestation to the fundamental right that everyone has to present petitions and to create mechanisms aimed at ensuring that, as far as lies within the competence of the provincial legislature, all petitions presented to it will receive due and proper attention, and that thereby better oversight of the activities of the provincial executive and better monitoring of local government in the province will be achieved. The mechanisms provided for are, in the first instance, a permanent (or standing) committee that is charged with the duty of dealing with petitions and empowered to do so. In the second place, the Petitions Bill contemplates the provision of administrative services aimed at ensuring, as far as is practicable, that all would-be petitioners receive such practical assistance as they may acquire, notwithstanding the extent to which they may be disabled or deprive.4 9. The Bill contains an expanded definition of what constitutes (or qualifies as) a "petition", which definition, it is submitted, is necessarily helpful to the ordinary man or woman in the street. 10. In addition to being charged with the duty of receiving and attending to petitions, the committee is charged with the duty of taking appropriate steps aimed at encouraging and facilitating participation by the public in the process of government in the province.5 Indeed in the case of "persons or groups or categories of persons previously disadvantaged by unfair discrimination" the 2 See Western Cape Provincial Government and Others: In re DVB Behuising (Pty) Ltd. v. North West Provincial Government and Another 2001 (1) SA 500 (CC) at para [36]. 3 Ibid. 4 Cf. S. 4 (2) read with s. 16 and 17. 5 Section 2 (1) (a). 4 committee is obliged to "ensure" that they "enjoy full participation in the process of government".6 11. That these are its primary purposes is confirmed by the preamble to the Petitions Bill which reads in part as follows: "to provide for the right to submit a petition to the Provincial Legislature of the Province of Mpumulanga; to lay down the general principles and procedures for public participation in the process of government in the Province; to provide for the functions of the relevant Standing Committee of the legislature assigned to deal with petitions;" AS TO QUESTION (a): THE COMPETENCE OF THE MPUMALANGA LEGISLATURE TO PASS THE PETITIONS BILL. 12. The Constitution being the supreme law, the Mpumulanga legislature only has such power and competences as are vested in it by the Constitution. The legislative power of a provincial legislature derives from section 104 of the Constitution. Paragraph (b) of subsection (1) thereof prescribes four categories of matters in respect of which legislative capacity is vested in provincial legislatures. 13. Counsel for the Premier of Mpumulanga has submitted7 that none of these subparagraphs has any relevance to the present question and that none of them has the effect of vesting the Mpumulanga legislature with the requisite capacity to pass the Petitions Bill. With respect, this seems to us to be correct as far as subparagraphs (ii) and (iii) are concerned, and with regard to them we do not seek to contend to the contrary. 14. However, with regard to subparagraph (iv), and possibly also subparagraph (i) we would suggest that there are arguments supporting the conclusion that a provincial legislature indeed has the capacity to pass legislation such as the Petitions Bill. 15. In terms of section 104 (1) (b) (iv) a provincial legislature is vested with the 6 Section 2 (4) 7 See paragraph 2.3.3 of the Premier's Head of Argument. 5 power to pass legislation for its province with regard to "any matter for which a provision of the Constitution envisages the enactment of provincial legislation". The inquiry therefore is whether there are other provisions of the Constitution, which may fairly be said to envisage the enactment of provincial legislation of the kind contained in the Petitions Bill. The provisions upon which we would rely in advancing this submission are and contained in sections 114(2), 115, 118(1), 151, 154(1) and 155(6) & (7) of the Constitution. 16. The effect of the relevant provisions in these sections is to oblige either the provincial legislature or the provincial government - 16.1 "to provide for mechanisms to maintain oversight of the exercise of provincial executive authority in the province including the implementation of legislation".8 16.2 "to provide for mechanisms to ensure that all provincial executive organs of state in the province are accountable to it".9 16.3 "to facilitate public involvement in the legislative and other processes of the legislature and its committees".10 16.5 "by legislative and other measures, [to] support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions".11 16.6 "... by legislative or other measures... to provide for the monitoring and support of local government in the province and promote the development of local government capacity to enable municipalities to perform their functions and manage their own affairs".12 16.7 "... and the provincial governments have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters enlisted in Schedules 4 and 5, the by regulating the exercise by municipalities of the executive authority referred to in section 156 (1).13 8 S. 114 (2) (b) 9 S. 114 (2) (a) 10 S. 118 (1) (a) 11 S. 154 (1) 12 S. 155 (6) 13 S. 155 (7) 6 17. In addition the provincial legislature is empowered "to receive petitions, representations or submissions from any interested persons or institutions".14 18. The question, which has to be decided, is whether upon a proper interpretation of the Constitution it can be said that these sections (or any of them) "envisage" the enactment of provincial legislation as contemplated by sub-s. 104 (1) (b) (iv). In our submission the answer this question is Yes, but depends upon how abroad or narrow a meaning is to be given to the word "envisage". We submit that this is an instance where a broad generous meaning should be preferred.
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