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.

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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.

19. As regards exercising oversight and ensuring accountability. By contrast with sub-sections 154(1), 155 (6) and 155(7) and a number of other sections in the Constitution that have been referred to by counsel for the Premier in their heads of argument,15 there is no express use of the word "legislation" or anything similar in s. 114 (2) or s. 118. Non constat that these sections cannot be said properly to envisage "the enactment of provincial legislation". Provincial legislatures are pertinently enjoined and obliged "to provide for mechanisms". The Constitution neither tells them what mechanisms are to be provided, nor how those mechanisms are to be provided. It is submitted that there is no reason in logic or principle for holding that these are instances when provincial legislation may not properly be said to be envisaged, nor that the “mechanisms” may not include what has been provided in the Petitions Bill.

20. As regards providing for the monitoring and support of local government: It is submitted that that the mechanisms created by the Petitions Bill will plainly better enable the Mpumulanga legislature and, through it, the Mpumulanga government to fulfil the obligations placed

14 S. 115 (d). In the light of the fundamental right afforded by s. 17, the permissive use of ‘may’ is interesting. Conceivably the juxtaposition of the two requires ‘may’ to be read as ‘must’. Cf. S. 7(2) of the Constitution which obliges the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. 15 See footnotes 2. to 6. on p. 9 of their heads, although s. 140 (4) has been incorrectly quoted. 7

on them by s. 154(1)s. 155 (6).

21. Counsel for the Premier of Mpumulanga have submitted that the question of petitions is a matter that should be dealt with in terms of s. 116 of the Constitution, and that this section effectively precludes any legislation on the matter being passed.16 We submit that this section does not legally or constitutionally precluded legislation of the kind contained in the Petitions Bill, and that in any of indeed has been demonstrated that there is a very real practical need for such legislation.

22. The Standing Rules of the Gauteng Provincial cab legislature that were adopted on the 17th May 1994 provided, inter alia, for the presentation of petitions by members of the public. However, investigations and research revealed that despite such provision in the Standing Rules for substantial numbers of ordinary men and women this was insufficient. In this regard we refer to the affidavit of the Speaker of Gauteng, Mr Firoz Cachalia, and in particular to paragraph 12 on page 5 thereof where he informs this Honourable Court that investigations and researches led him on the committee to come to realise that "for great numbers of people the right to vote was insufficient, and that their disabilities and circumstances effectively precluded them from engaging in and activating the political process. They needed something more." It was found that what they needed "included a statutory right to petition coupled with a statutory obligation on the part of those in power to respond to the Petitions within prescribed the time frames and to address the substance of the complaint in the petition and to account for what they had done". The extent of the problem is made clear by the report of the research project into "Public Participation in the Legislature of Gauteng Province, South Africa" which was carried out by Heinz Klug, Rosemary Proctor and Lisa Young. Their report is dated April 1996. Thus, for example, these researchers found that "... the history of exclusion has engendered a distrust of traditional political processes: political parties, legislatures and bureaucracies are perceived to be intently opposed to

16 See para 2.4 thereof. 8

inclusionary efforts ..."17

23. We submit that what was revealed by this research and what has been achieved in practice by effectively giving effect to the provisions of the Gauteng Petitions Act demonstrates conclusively that need for such legislation in order to achieve the constitutional goals of facilitating public involvement in the legislative and other processes of provincial government and in better ensuring accountability, responsiveness and openness in provincial government.

24. We submit that there is no basis in our law or under our Constitution for holding that a convention may validly vest a provincial legislature with competence to pass legislation, or take away or limit a power or authority vested in a provincial legislature. In any event we know of no such convention.

AS TO QUESTION (b): IS IT UNCONSTITUTIONAL TO VEST THE POWER TO MAKE REGULATIONS AND THE POWER TO DETERMINE THE DATE UPON WHICH THE ACT IS TO COME INTO FORCE IN THE SPEAKER?

25. It is submitted that there is nothing express in the Constitution the deals with either of these questions.

26. Counsel for the Premier of Mpumulanga challenge the vesting in the Speaker of the power to make regulations and the vesting of the power to bring the Petitions Act into operation as is envisaged by ss. 17 and 18 of the Bill on two bases: the first is that to do so vests executive power in the Speaker and this conflicts with the doctrine of separation of powers.18 the second is that such powers on not traditionally vested in the Speaker.19

17 See p. 32 18 P. It 25 para 3.4 (a) 19 P. 25 para 3.4 (b) 9

27. As to the doctrine of separation of powers: In short the argument is that the making of regulations is incidental to the enforcement of the legislation which is a function of the executive. In Executive Council, Western Cape Legislature v. President of RSA20 this Honourable Court held that the doctrine of separation of powers was part of South Africa's new constitutional order. In paragraphs [60] and [61] of De Lange v Smuts, Ackermann J. A. held that in time South African courts would work out a peculiarly South African model of this doctrine.21 Although the making of regulations is inherently legislative function. in paragraph [51] of the Executive Council, Western Cape Legislature case this Court recognised that "[I]n a modern State detailed provisions are often required for the purpose of implementing and regulating laws and Parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution, which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution and Parliament can pass legislation delegating such legislative function to other bodies."

27. It is submitted that notwithstanding this recognition of the practical necessity to permit the Executive to perform certain legislative functions, that this Honourable Court did not intend thereby to lay down and inflexible rule that in all instances it was the Executive which should be vested with the power to make regulations incidental to the statute. Given that the making of regulations is inherently legislative function, it is submitted that this recognition of the practical necessity to permit the Executive to make regulations, there is nothing in principle against the power to make regulations being kept by the legislature itself, or being vested in a committee or member of the legislature. We draw attention to the fact that it has been recognised both in

20 1995 (4) SA 877 CC 21 1998 (3) SA 785 CC 10

Westminster type Parliamentary systems and in the United States of America there is a need for some measure of legislative or parliamentary control over the exercise of rule-making power by the Executive.22

28. It is submitted that the making regulations is the legislative function and not and executive one. Thus the giving of power to the Premier to make regulations is in fact a delegation of legislative power. This was common in the old order before 1994. There was no constitutional objection to it because Parliament was considered supreme. 23

29. The second basis upon which counsel for the Premier has challenged the vesting in the Speaker of the power to make regulations is that such powers on not traditionally vested in a Speaker. This would appear to be simply a different way of stating that there is a convention not to vest such powers in the Speaker. We have been unable to find any instance of either of the power to make rules or the power to bring in Act into force having been vested in the Speaker. Notwithstanding this we would suggest that there is no reason in legal principle why this should never happen. Conversely, we would suggest that there are sound reason in the present instance why it is desirable to vest both these powers in the Speaker. These reasons flow from the fact that the very purpose of the Petitions Bill is to provide mechanisms to enable the legislature better to carry out its oversight and supervisory functions. In performing and carrying out these functions it is inherently undesirable that the legislature itself or a committee or functionary on its behalf should depend upon the goodwill and co-operation of the provincial executive. Yet that is precisely what the position will be if it is left to the executive to prepare the regulations and decide when and if the Bill is to come into force.

AS TO CONVENTIONS:

22 Cf. "Legislative control of administrative rulemaking: lessons from the British experience?" By

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30. We have looked for and are unable to find any express reference to conventions in the Constitution. We submit that there is none. We submit that under the present constitutional regime the only way that a constitutional convention could be held to have the force of law would be if that could be said to be implied by the Constitution. We are unable to see that there is any basis for such an implication and we submit that there is none.

31. Given the complete break with South Africa’s past constitutional dispensation and history that has been brought about by first the interim Constitution and, subsequently, by the present Constitution it is difficult to see what guidance, if any, can be found in the pre-1994 constitutional history of South Africa. However, we have been unable to find anything to indicate that a constitutional convention enjoyed the force or law or was binding in a legally enforceable sense.

32. It would appear that even in English constitutional and law, conventions are not regarded as being binding in law.

Dated at Johannesburg this 2nd day of July 2001.

R. M. WISE, SC

M. KHOZA 12

LIST OF AUTHORITIES.

The Constitution of the Republic of South Africa.

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].

"Legislative Control of Administrative Rule-making: Lessons from the British Experience?" By Jack Beatson, 1979 Cornell International Law Journal p. 199

Executive Council, Western Cape Legislature v. President of the Republic of South Africa 1995 (4) SA 77 (CC)

Reference re Amendment of the Constitution of Canada (1982) 125 D.L.R. 1