Chairperson, I move without notice:
That in terms of section 178 (1) (i) of the Constitution, the Council designates the following members to serve on the Judicial Service Commission: Ms Sylvia Elizabeth Lucas; Mr Archibold Jomo Nyambi; Mr Mosimanegape Kenneth Mmoiemang; and Mr Thamsanqa Simon China Dodovu.
Declarations of vote:
Chairperson, according to the Order Paper of today the NCOP is due to nominate four members to the Judicial Service Commission in terms of section 178(1) of the Constitution. According to the same Order Paper section 178(1)(h) reads as:
There is a Judicial Service Commission consisting of six persons designated by the National Assembly from among its members, at
least three of whom must be members of opposition parties represented in the Assembly.
Section 70 (1)(b) of the Constitution reads:
The National Council of Provinces make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.
It further reads in section 70 (2)(c) that:
The participation in the proceedings of the Council and its committees of minority parties represented in the Council, in a manner consistent with democracy, whenever a matter is to be decided in accordance with section 75.
The Judicial Service Commission is, according to the Constitution, part of Chapter 8: Courts and Administration of Justice, which is section 75 function.
Therefore, I refer to the letter that I wrote to the Chairperson and the Chief Whip that one member of the DA should be included in this delegation. As it is the rule the Constitution says that the NCOP
has four members, but it does not indicate that all have to be from the ANC. Therefore that Rule should be read with the other rules that give direction on how the NCOP should do the business. So, this is unconstitutional, and is not in the spirit of representivity and definitely not in the spirit of democracy. I therefore call on the Chairperson to include one of the DAs in the commission. Thank you.
Hon Chairperson, let me start by saying that in the Fifth term members were elected using the same procedure. In the last term it was not challenged. Now we are surprised as this procedure is being questioned.
With regard to the issue that was raised, the procedure for the appointment and the representation of the NCOP in the Judicial Service Commission is provided for in section 178 (1)(i) of the Constitution. According to this section there are four permanent delegates from the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces.
Chairperson, the composition of the list was drafted on the basis of this section read together with section 70(2)(a)(b) and(c). This section enjoins the Rules and orders of the NCOP, provides for the establishment, composition, powers, functions, procedures and
duration of the committee. The participation in the proceedings of the Council and its committees of minority parties represented in the Council is in a manner consistent with democracy wherever a matter is to be decided in accordance with section 75.
Chairperson, I must hasten to point out that democracy cannot mean equal representation of equal minority parties with the majority parties. Therefore, as a province we support the motion as tabled by the Chief Whip.
Any other declarations?
Chairperson, I am representing my province. [Interjections.] Of course I do!
Order!
Chairperson, in terms of the Constitution we are being led by the premiers of the provinces. Because they are special delegates, we are permanent delegates. So, in each and every province we have a provincial Whip who is in charge of the delegation. In terms of the very same Constitution that is guiding us it would be out of order for hon Smit who is from Limpopo, who is
without a mandate of the province, whilst we have somebody when have you started to be a leader of the delegate in front. Hon Smit is not the rightful leader of Limpopo. And if we are going to apply that it means that we can have somebody from the Western Cape that will undermine hon Labuschagne and that will create unnecessary disorder and must be avoided. So, it is not in line with the Constitution and how we represent the interests of the provinces in the NCOP. Thank you, Chair.
Let's proceed and find out if there are any provinces that wish to make declarations. Are you standing up again?
Yes, Chair! Hon Chair!
On what point are you standing up?
Now I am standing up to make a declaration on behalf of my province. [Interjections.] We don't have a Chief Whip and we don't have a premier here.
Chairperson, with utmost respect to hon Smit assist and make a ruling. Tell him that what he is doing in not in line
with how we represent the interests of the provinces. We do have the leader of Limpopo and he is not the rightful leader of Limpopo.
Chairperson, our Whip is not here, but it's okay. As Limpopo we say that you don't win elections by debating issues in Parliament and change numbers. The decision of who represent the province is decided by the voters. We cannot hatch new elections in this House.
Chairperson, I rise on a point of order. Hon Rayi referred to the Fifth Parliament that there was a practice that this committee was composed by four ANC members. I just want to remind this House again that everything that was done in the Fifth Parliament was not according to the Rules. I can remind this House on the process of the Minerals and Petroleum Bill. It was done on the same space. We will follow this up. Thank you.
Unfortunately, that is not a point of order. Please, sit down. Thank you very much.
Question put: That the motion be agreed to.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West.
AGAINST: Western Cape.
Motion accordingly agreed to in accordance with section 65 of the Constitution.