Division of Revenue Amendment Bill: Negotiating Mandates

Meeting report

The Committee noted the apologies of the Committee Chairperson Ms D Mahlangu (ANC, Mpumalanga) who was hospitalised and from Mr Y Carrim (ANC, KZN) who was unwell. Both Members had alternate members from their provinces on the platform in their stead.

Concern about process
Mr D Ryder (DA, Gauteng) placed on record that the rushing through of the DORA Bill made a mockery of this Committee. He wanted this input to be included in the Committee report. In the Gauteng Provincial Legislature, he was only able to present the Division of Revenue Amendment Bill with the support of the National Treasury at 5pm on Friday evening. Provinces had to deliberate on the impact that the equitable share from this Bill would have on department functions and service delivery. He complained about the lack of attendance of the MECs of the affected departments. There were only a few members of the Finance Committee. There were no chairpersons of the relevant oversight committees. It really made a mockery of this consultative process as it became a rubber stamp process. It is unfair that this Committee has been put under undue pressure to process such a large volume of Bills within a short period of time. He criticised the ANC as the majority party in those provinces and in the national parliament bulldozing the Bill through without careful deliberation.

The Chairperson note Mr Ryder’s input and stated that all committees are under undue pressure at this time. She pointed out that those committees are not ANC committees, they are parliament committees. Committee members are just adhering to the correct process.

Mr W Aucamp (DA, Northern Cape) stated that he had his hand up right after Mr Ryder but the Chairperson did not see him. He requested to get guidance from the Parliamentary Law Advisor, Adv Jenkins, if it is legally correct that the Committee should be rushed through the DORA Bill. It is a shame that this process has become a rubber stamp without giving proper consultation and deliberation to such an important piece of legislation.

Ms L Bebee (ANC, KZN) was of the view that the Committee should adhere to the agenda and not deal with other business.

The Chair agreed with Ms Bebee’s view.

Mr Ryder pointed out that this is a normal process which the Committee goes through in a well-established way every six months. Ms Bebee is an alternate member on the Committee and thus is not familiar with the process. He suggested the Chairperson consult the Committee Secretary on the matter.

Committee Secretary Mr Lubabalo Nodada highlighted that the committee is required to finalise the DORA Bill within nine days. Hence, when Parliament’s administration designed the programme, it was done in accordance with the relevant legislation, the Money Bills Act.

The Chairperson asked Mr Ryder how many days he would want in order not to feel as if the Committee had rushed the process.

Ms N Nkosi (ANC, Mpumalanga) endorsed Ms Bebee’s view and expressed her concern with Mr Ryder’s view that an alternate member could not raise issues.

Mr Ryder clarified that the normal process when Members present their provinces’ negotiating mandates is that it is accompanied by the response of Treasury. Committee Members need to give a brief overview of their legislature report before presenting the mandate to ensure that members of the public who are watching would be able to understand the content.

Mr Aucamp supported Mr Ryder and commented that this has been the practice which the Committee had followed for four and a half years. Ms Bebee was unfamiliar with the process as she was an alternate member on the committee.

Negotiating Mandates on 2023 Division of Revenue Amendment Bill

Eastern Cape
Mr M Ndabeni (ANC, Eastern Cape Legislature) explained that the provincial legislature had provided a supporting document to explain what had transpired at the provincial meeting. The province supports the DORA Bill.

Free State
Mr M Moletsane (EFF, Free State) stated that the Free State Provincial Legislature voted in favour of the DORA Bill.

Gauteng
Mr Ryder stated that the Gauteng Provincial Legislature voted in favour of the DORA Bill.

KwaZulu-Natal
Ms Bebee stated that the KZN provincial legislature voted in favour of the DORA Bill.

Limpopo
Ms M Mamaregane (ANC, Limpopo) stated that the Limpopo provincial legislature voted in favour of the DORA Bill.

Mpumalanga
Ms E Nkosi (ANC, Mpumalanga) stated that the Mpumalanga provincial legislature voted in favour of the DORA Bill.

Northern Cape
Mr Aucamp stated that the Northern Cape provincial legislature voted in favour of the DORA Bill.

North West
Mr F Du Toit (FF+, North West) stated that the North West provincial legislature voted in favour of the DORA Bill with amendments.

The Chairperson commented that Members needed to be more specific as to which areas or farms are disaster areas.

Western Cape
The Chairperson stated that the Western Cape provincial parliament voted against the DORA Bill. The reasons for non-support are provided in the attached document.

As the Chairperson became disconnected from the virtual platform, Mr Aucamp read through the Western Cape recommendations.

National Treasury responses to Negotiating Mandates
Ms Wendy Fanoe, National Treasury Chief Director: Intergovernmental Policy and Planning, said that she would give short responses given that the Committee would have to determine their final mandates soon (see document).

Discussion on National Treasury incomplete response
Mr Ryder interjected and said that Treasury’s inability to prepare responses to all the provinces' negotiating mandates, though no fault of its own, was an indication that the timeframe was truncated.

Ms Moss replied that the entire Committee was under pressure and that the Committee must work with what they had.

Mr Ryder questioned if it was correct that the Committee should be placed in such a position and suggested seeking legal advice from Parliamentary Law Advisor, Adv Jenkins, who was on the platform.

Ms Moss noted to Mr Ryder that all political parties had been involved in the programming process of the NCOP and questioned why this concern had not been raised then. She thus insisted that the Committee must adhere to that programme.

Mr Du Toit indicated to the Chairperson that he was part of the programme committee. If the Chairperson attended the programme committee, she would know that the matter had been brought up on numerous occasions since the beginning of the year. It has been consistently highlighted that the NCOP must not be placed under such tremendous pressure, but the plea had fallen on deaf ears. He described what is happening now is a disgrace.

Mr Aucamp affirmed Mr Du Toit’s view that this is not a new request. Since he had joined the Committee four and a half years ago, the request has been mentioned each year indicating that the process was rushed. It is a disservice to the people of South Africa that the process should be rushed through whilst it is deliberating on the most important item which is the fund for service delivery.

As Ms Fanoe had become disconnected from the platform, Mr Ryder suggested that Adv Jenkins could answer if 24 hours was sufficient to process the negotiating mandates and the final mandates from provinces.

The Chairperson insisted that National Treasury Chief Director, Dr Letsepa Pakkies, should take over and respond to the negotiating mandates from provinces. She further requested Treasury respond to the specific mandate of each province to ensure transparency.

Ds Pakkies indicated that Treasury had only received provinces’ negotiating mandates this afternoon and was yet to receive the mandate from the Northern Cape. It is thus difficult to respond to those mandates one-by-one.

Mr Aucamp raised a point of order. Given nuance of those mandates and their accompanying reports, he was unsatisfied that Treasury should respond to those mandates so abruptly. Treasury is made up of many brilliant minds and it would be unjustified that the Committee should listen to one person from the Treasury to respond to those mandates. It would be diminishing for the Committee to take this approach. He was resolute that Treasury should discuss its responses before reporting to the Committee.

The Chairperson agreed with Mr Aucamp and shared the same concern. If Treasury only received the mandates today, it was impossible for it to process all the mandates in such a short period of time.

She checked with the Secretariat on how much time had been left for Treasury to deliberate on those mandates and return to address those mandates in this Committee.

The Secretariat indicated that it would be the Committee’s discretion to decide how much time it was willing to grant Treasury. The Committee may adjourn the meeting for now and wait for Treasury’s responses. Those responses must also reach provinces as soon as possible. The final mandates must be heard and the Committee Report on the DORA Bill adopted by this Committee on Tuesday 5 December so that its report can be tabled in the NCOP by Wednesday 6 December.

Dr Pakkies said that Treasury would need until 9:00am tomorrow to have all the responses ready.

Ms Mamaregane noted Treasury’s response and supported that response.

The Committee Secretariat pointed out the conundrum that some provincial legislatures may have a sitting at 8am tomorrow morning which would make it difficult to process and deliberate on the Treasury’s response to that province. He asked the Committee to bear that in mind.

Mr Ryder felt that Committee members would also need more time similar to their provincial colleagues and Treasury. It would be unreasonable to expect provincial legislatures to read through those responses, process them and make a final decision by tomorrow. It cannot happen. Committee Members would still have to communicate with their party caucus. He was alarmed that Treasury has not yet seen some of the negotiating mandates. He was absolutely certain that it would not happen if this item was tabled at the NCOP plenary on Wednesday afternoon 6 December 2023.

Mr Ryder suggested cancelling tomorrow's meeting to allow provincial legislatures some time to process their final mandate. He proposed that the Select Committee should have a follow-up meeting on Tuesday 5 December. Mr Du Toit and Mr Aucamp supported the proposal.

Ms Mamaregane did not support their proposal. The programme was clear that this Committee should meet on this Wednesday and not next Wednesday.

Ms Nkosi understood the tight timelines given to the Bill. She supported Ms Mamaregane that the Committee must adhere to its timelines. She believed that provincial legislatures had their timelines as well. The Select Committee could request provincial legislatures to sit early tomorrow morning before the Select Committee processed their final mandates at 12pm tomorrow.

Ms Bebee agreed with Ms Mamaregane and Ms Nkosi.

Mr Aucamp agreed with Mr Ryder and repeated that the Select Committee would be doing a disservice to the country if the whole process was rushed through. The Committee should be giving both Treasury and the provinces sufficient time to process those mandates. The reason that South Africa is in such a dire economic state is because the country rushes through things without applying proper thinking. If it means that Parliament has to convene meetings in late December, the Committee should do so and not rush through this process.

The Chairperson stated that all Committees in Parliament are facing pressure. She agreed to postponing the meeting to Wednesday which she believed was the better proposal. She objected to the proposal to meet on 6 December because the House would rise next week.

Mr Aucamp raised a point of order that she could not make a ruling on that because there are two proposals and both are seconded. The Committee must thus vote on the matter.

The Chairperson refused to vote on the matter as she had made a ruling.

Mr Moletsane stated that what is important is doing what the Committee is supposed to do – the timelines are not as important compared to that. What is before the Select Committee is the budget that would assist municipalities to render service delivery. He objected to the approach of rushing the process because there are long-term consequences. He emphasised Members’ responsibility which is serving the people.

Mr Phelelani Dlomo, Committee Content Advisor, advised that the Chairperson must be cognisant that 1) the NCOP adopted parliamentary programme requires this Committee to table the report on Wednesday 29 November in the NCOP; 2) the Money Bills Act requires the Committee to pass the Bill within nine days from the time of the tabling of the budget in the NCOP. He asked the Committee to consider if it would still be within the nine-day period if the Committee shifted the adoption to 6 December.

Having said that, Mr Dlomo noted the lack of time which Members had raised as a concern. He recommended Members elevate that issue to the programming committee.

The Chairperson clarified that Wednesday 6 December would certainly not work and made a ruling to have the meeting on the final mandates for Wednesday 29 November.

Mr Lubabalo Nodada, Committee Secretariat, informed the Committee that the Revised Fiscal Framework had been adopted by the National Assembly on 15 November. That would make 28 November which was tomorrow the last day for the Committee to adopt the final mandates. According to the Money Bills Act, it simply cannot even postpone one day to Wednesday 29 November. The final mandates must be adopted by tomorrow.

Mr Aucamp requested the Chairperson allow Adv Jenkins to give legal input if the Chairperson can make a ruling given that there are two proposals before the Committee. He reiterated the point of not rushing through the process.

The Chairperson expressed her frustration and pointed out that the Committee had not rushed through the process. It came to the decision because of the circumstantial factor of timeframe. Mr Nodada has just clearly indicated that tomorrow is the last day so the Committee will meet tomorrow.

Mr Aucamp requested the Chairperson allow Adv Jenkins to give legal input as well as give an indication from a legal perspective on the latest day the Committee can finalise the final mandates. The purpose would be to give as adequate time to both Treasury and the provinces as possible.

Mr Ndabeni said that he had heard all inputs both procedurally and legally. As there are two proposals which are both seconded, he suggested to put the matter to a vote.

Mr Dlomo repeated that the Committee must bear in mind the legal framework that guides the process. The Money Bills Act is explicitly clear and that requirement cannot be changed. Should the Committee decide do otherwise, its decision may be litigated in court. The concerns of Members on the over-pressured timeline can be repackaged on a different platform.

Ms Z Ncitha (ANC, Eastern Cape) supported Mr Ndabeni’s suggestion to put the matter to a vote.

The Chairperson said that she would allow Members to vote on the matter.

Mr Aucamp noted the Chairperson had just overruled her own earlier decision to refuse voting on the matter.

Ms Nkosi said that Committee Members had heard the legal inputs from legal advisors and must take the advice seriously.

Mr Ryder clarified that with all due respect to Mr Dlomo and Mr Nodada, they are the Committee’s Content Advisor and Secretariat. They are not qualified to give legal advice. What they had given was procedural advice.

Mr Moletsane clarified his earlier input and said that he did not support delaying this process. Prolonging it would lead to the delay in local government’s access to the equitable share which would negatively affect service delivery. That would make people suffer even more. His opinion is that the Committee must register its concern that Parliament’s committees must not be forced to work under pressure without proper deliberation. But he did not support delaying this process.

The Chairperson took note of all the inputs and stated that there seems to be consensus that the Committee meet tomorrow to consider the final mandates.

Mr Aucamp said that those who proposed postponement should not be interpreted as delaying service delivery to people but rather be regarded as wanting to thoroughly digest the information to ensure that a crucial Bill is dealt with correctly and thoroughly.

Committee minutes for 16 and 17 November 2023 were adopted.

The Chairperson adjourned the meeting.