1. AARTO
June 2017
Presentation to the PC on Transport

2. Letter from Mr Mngadi Overview Overview
Classification of Bills (“Tagging”)
Why the process of tagging?
Considerations when tagging
Classification of Bills – the process
Consultation
Progress on process to expand Parliamentary legal Services
Progress
Drafting Capacity
Drafting Capacity – Progress to date
Drafting Capacity: Human resources
Drafting Capacity : Services
Role of the State Law Adviser
Plain language drafting

3. Letter
“In addition section 41 requires me to, amongst others to, assist and support all spheres of government and all organs of state within each sphere.”
Section 41 of the Constitution deals with principles of co-operative government.
Section 41 of the Constitution encourages the three spheres of government to cooperate with one another in mutual trust and good faith, and to promote effective intergovernmental relations, ensure effective communication and coordination, respect the constitutional status, institutions, powers and functions of government, and avoid taking their disputes to court.
Section 41 is housed in Chapter 3 of the Constitution which deals with co-operative government.
Co-operative government requires the three spheres of government to function as a whole, although the spheres are seen as distinctive and interdependent, they are interrelated.
Mr Mngadi- has no obligation to do anything in terms of this section. His claim that he is required by section 41 to support all spheres of government is unfounded.
Why the process of tagging?
The Constitution provides 4 procedures to process bills: 1. Section 74 (Constitutional Amendments)
2. Section 75 (Ordinary Bills not affecting Provinces)
3. Section 76 (Ordinary Bills affecting Provinces)
4. Section 77 (Money Bills)
(The “mixed bill” process is no longer applicable:
Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC).
Par 69: “Paying less attention to the provisions of a Bill once its substance, or purpose and effect, has been identified undermines the role that provinces should play in the enactment of national legislation affecting them.”)
The purpose of tagging of a bill is to determine which Constitutional procedure must be followed.
Why do we have to determine which Constitutional Procedure? Because each procedure has certain requirements that could affect the legality of the end result:
Content of the Bill prescribed
- S74(4): A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments
- S77(2): A money Bill may not deal with any other matter (except if subordinate and incidental to the appropriation of money)
Specific public participation requirements
- S74(5): At least 30 days before introduction the Bill must be published in the national Government Gazette , submitted to the provincial legislatures for their views and submitted to the National Council of Provinces for a public debate (public debate only if the Bill is not to be passed by the Council)
- S74(6): Written comments must be submitted to the Speaker and where relevant, to the Chairperson of the Council
Procedure in the Houses differ in s74, s75 (s77 bills are dealt with in terms of S75) and S76(2)
Introduction: which House?
~ S73(1) Any Bill may be introduced in the National Assembly
~ S73(2) Money Bills must be introduced in the National Assembly
~ S73(2) S214 Bills [Allocation of Revenue] must be introduced in the National Assembly
~ S76(4) & (5) A Bill must be introduced in the National Assembly of it deals with legislation envisaged in:
* section 44 (2) [Parliament intervening in a matter that falls in a functional area listed in Schedule 5, to maintain national security, economic unity, essential national standards, set minimum service standards or to prevent unreasonable action by a Province]
* section 220 (3) [Financial and Fiscal Commission]
* chapter 13, and which includes any provision affecting the financial interests of the provincial sphere of government [Financial matters such as the National Revenue Fund, Equitable Shares and Allocation of Revenue, Budgets, Treasury Control, Procurement] and
* section 42(6) [seat of Parliament]
Introduction: who may introduce?
~ S73(2) Only the Minister responsible for national financial matters: Money Bills
~ S73(2) Minister responsible for national financial matters: S214 Bills [Allocation of Revenue]
~ In the National Assembly: S73(2) A Cabinet member / Deputy Minister / Member of the National Assembly / Committee of the National Assembly
~ In the National Council of Provinces: S73(4): Only a Member of the National Council of Provinces / Committee of the National Council of Provinces
S74 bills have specific waiting periods:
~ 30 days must pass after introduction (introduced while sitting) or tabling introduced in recess) before voting on it
Mediation is only applicable to section 74 and 76 bills
Joint Rules (‘JR’) 177 deals with Constitutional amendments. If not successfully mediated, the Bill lapses (JR 180)
JR 186 deals with s76 bills.
~ In respect of a bill introduced in the Council (Section 76(2)) –
* Where the Mediation Committee cannot agree within 30 days, the bill lapses (JR 190 and s76(2)(e));
* Where the Mediation Committee accepts the National Assembly’s version, it must be referred to the NCOP and vice versa (S76(2)(g) and (f));
* Where the Mediation agrees on a different version, it must be referred to both Houses (Section 76(2)(h);
* If the NA must consider a bill:
- That is the NCOP version or a new version and the NA does not want to pass the Bill, it lapses (section 76(2)(i)).
* No provision is made where the Mediation Committee accepts the NA version or a new version and the NCOP does not pass the bill;
~ In respect of a section 76 bill introduced in the National Assembly –
* Where the Mediation Committee cannot agree within 30 days: The Bill lapses unless the National Assembly adopts it with at least 2/3 of its members (S76(1)(e);
* Where the Mediation Committee accepts the National Assembly’s version, it must be referred to the NCOP and vice versa (S76(1)(f) and (g));
* Where the Mediation agrees on a different version, it must be referred to both Houses (Section 76(1)(h);
*If the NA must consider a bill:
- That is the NA version or a new version and the NCOP did not pass the bill, the bill lapses unless the NA passes it with 2/3 majority (Section 76(1)(i));
- That is the NCOP version or a new version and the NA does not want to pass the Bill, it lapses – PROVIDED that the NA can still pass the NA version of the Bill (section 76(1)(j)).
Approval / Inputs from provincial legislatures
S74(8): “If a Bill referred to in subsection (3) (b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned”
S65(2): “An Act of Parliament ... must provide for a uniform procedure in terms of which provincial legislatures confer authority on their delegations to cast votes on their behalf.” (i.r.o. legislation – this refers to section 76 Bills)
S75(2): When the Council votes on a section 75 Bill, section 65 does not apply
Voting
- Presiding Officers:
Only a deliberative vote if a 2/3 majority vote is required (section 53(2)(b));
Casts a deciding vote when there are an equal number of votes on each side of the question (section 53(2)(a)).
- S 74:
~ S1 of the Constitution (and S74(1)): 75% of NA members and 6 Provinces in NCOP
~ Chapter 2 of the Constitution: 2/3 of NA members and 6 Provinces in NCOP
~ All other sections of the Constitution (if the amendment does not affect the NCOP / Provinces): 2/3 of NA members
~ All other sections of the Constitution and the amendment affects the NCOP or a Province: 2/3 of NA members and 6 Provinces in NCOP
- S75 and s77:
~ As per s53 a majority members of the NA must be present before a vote can be cast
~ As per s53 a majority of the votes cast decides the decision in the NA
~ As per s 75(2) the NCOP votes as follows:
* Each delegate has one vote
* At least 1/3 of members must be present before a vote can be cast
* A majority of the votes cast decides the decision
- S76 :
~ For most s76 bills:
* S53 voting in the NA applies
* As per s65 each Province has one vote and a decision is agreed if at least 5 Provinces vote in favour
~ For a bill changing the seat of Parliament:
* A majority of members of the National Assembly is required (= 201 votes in favour)

4. Cont…
“The consort between the Transport Executive and the Committee has been converted into a permanent working committee for joint legislative assessment of Bills” , joint sitting of the Committee with transport executive– claims Mr Mngadi.
“…it is the Executive that initiates, prepares and introduces draft legislation in the National Assembly. Only thereafter does Parliament get down to the business of ensuring that constitutionally prescribed procedures are followed in passing Bills into law. For this reason, when the content of legislation is impugned, it is usually only the Executive that must be cited.” Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others [2014] ZACC 32, para 13.
This in essence means most legislation in South Africa is initiated by the Executive and it is brought to Parliament to be processed and that is the procedure prescribed by the Constitution – sections 73(2) and 85(2)(d).
There is nothing illegal or unconstitutional in how the AARTO Bill is being processed.
Considerations when tagging
Dominant substance or all provisions of the Bill?
The “pith and substance test” was borrowed from other jurisdictions and used since This test looks at the dominant substance of a Bill (this is usually guided by the title of the Bill). Provisions that fall outside of the dominant substance of the Bill are treated as incidental to the dominant substance and do not affect the legislative process that the Bill must follow.
The pith and substance test is no longer applicable – Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC): “What matters for the purposes of tagging is not the substance or the true purpose and effect of the Bill, rather, what matters is whether the provisions of the Bill “in substantial measure fall within a functional area listed in Schedule 4” (paragraph 58).
Purpose of tagging:
The court explained in paragraph 60 that the test for tagging must be informed by the purpose of tagging. Tagging is not concerned with legislative competence. The question is not whether the Provincial sphere of Government has the competence to legislate on the same matter, or whether the National sphere of Government is interfering in the legislative competence of another sphere of government.
The purpose of tagging is to ascertain how the Bill should be considered by the provinces and in the NCOP. The answer to this question depends on whether the Bill affects the provinces. The court stated “[t]he more it affects the interests, concerns and capacities of the provinces, the more say the provinces should have on its content” (paragraph 60).
The court further stated in paragraph 69: “The subject-matter of a Bill may lie in one area, yet its provisions may have a substantial impact on the interests of provinces. And different provisions of the legislation may be so closely intertwined that blind adherence to the subject-matter of the legislation without regard to the impact of its provisions on functional areas in Schedule 4 may frustrate the very purpose of classification.”
When tagging, the legal adviser must accordingly consider each provision of the bill to determine whether any one provision substantially affects a functional area set out in Schedule 4 of the Constitution.
Determining the ambit of Schedule 4 functional areas
From case law it is clear that the words used in Schedule 4 must be given their ordinary or well established meaning. Dictionaries will thus serve as a good source to determine the ambit of the functional areas.
Unless specifically so indicated in Schedule 4, the words should not be restricted. Examples of restricted functional areas are:
“Airports other than international and national airports”
“Indigenous law and customary law, subject to Chapter 12 of the Constitution”
“Provincial public enterprises in respect of the functional areas in this Schedule and Schedule 5”
For example:
“Municipal planning”:
City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal & others [2010] JOL (CC) [paragraph 57]
“Returning to the meaning of “municipal planning”, the term is not defined in the Constitution. But “planning” in the context of municipal affairs is a term which has assumed a particular, well-established meaning which includes the zoning of land and the establishment of townships. In that context, the term is commonly used to define the control and regulation of the use of land. There is nothing in the Constitution indicating that the word carries a meaning other than its common meaning which includes the control and regulation of the use of land. It must be assumed, in my view, that when the Constitution drafters chose to use “planning” in the municipal context, they were aware of its common meaning. Therefore, I agree with the Supreme Court of Appeal that in relation to municipal matters the Constitution employs “planning” in its commonly understood sense.” (my emphasis)
“Trade”
Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 [paragraph 54]
“According to the New Shorter Oxford Dictionary, “trade” in its ordinary signification means the “[b]uying and selling or exchange of commodities for profit, spec. between nations; commerce, trading, orig. conducted by passage or travel between trading parties”. Nothing in Schedule 4 suggests that the term should be restricted in any way, and the Western Cape government did not contend that Parliament’s concurrent competence in regard to “trade” should be limited to cross-border or inter-provincial trade. It follows that in its ordinary signification, the concurrent national legislative power with regard to “trade” includes the power not only to legislate intra-provincially in respect of the liquor trade, but to do so at all three levels of manufacturing, distribution and sale.” (my emphasis)
“Industrial Promotion”
Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill (CCT12/99) [1999] ZACC 15; 2000 (1) SA 732; 2000 (1) BCLR 1 [paragraph 55]
“The concurrent legislative competence in regard to “industrial promotion” should in my view be given a similarly full meaning as conferring on the national legislature and the provinces the power to initiate, advance and encourage all branches of trade and manufacture.” (my emphasis)
“Cultural matters”
S Woolman “Community rights: Language, Culture and Religion” in “Constitutional Law of South Africa”, (2nd Ed), Chapter 58, page 38
“The adjective is used here to mean the practice of intellectual and artistic activity and the works that issue from this activity. Put simply, “culture” in Schedule 4 embraces literature, music, painting, sculpture and theatre.” (my emphasis).

5. Cont…
It is by now axiomatic that the doctrine of separation of powers is part of our
constitutional design.
Its inception in our constitutional jurisprudence can be traced back to Constitutional Principle VI, which is one of the principles which governed the drafting of our Constitution. It proclaimed that—
“[t]here shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.”
The starting point in an understanding of the model of separation of powers upon which our Constitution is based, must be the text of our Constitution.
Section 85 of the Constitution vests the executive authority in the President acting with the Cabinet.
In terms of section 85(2)(d), the Cabinet has the constitutional authority to prepare and initiate legislation. – Constitutional Court in Glenister v President of the Republic of South Africa and Others (CCT 41/08) [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC) (22 October 2008) .
The doctrine of separation of powers in not relevant in the argument or statement advanced by Mr Mngadi.
Classification of Bills – the process
Determine the meaning of the provisions of the Bill
Eliminate processes (S74? No  S77? No  S76? No = S75)
Tagging by elimination:
1. Section 74: Does the Bill amend the Constitution?
Yes? Bill tagged as section 74
No? Test for section 77
2. Section 77: Does the bill
appropriate money or
impose national taxes, levies, duties or surcharges or
abolish / reduce / grant exemptions from, any national taxes, levies, duties or surcharges or
authorise direct charges against the National Revenue Fund?
Yes? Bill tagged as section 77
No? Test for section 76
3. Section 76:
3.1. Does any of the sections of the bill deal with, is reasonably necessary for, or incidental to a functional area in Schedule 4?
3.2. Does the bill deal with:
Provincial authority to delegations to cast votes
Municipal representation
Public protector
Public administration principles & policy appointments
Public service commission
Public Service
Parliament’s intervention into a province (national interest / standards)
Financial and Fiscal Commission
Legislation envisaged in Chapter 13 (budget; allocation of revenue; procurement etc) and affects financial interests of a province
Seat of Parliament?
Yes? Bill tagged as section 76
No? Must be section 75

6. Cont…
“When interpreting the Constitution, your Committee is neither the one envisaged by section 45(1) because such Committee is formed by the representatives from NA and NCOP to look at a matter of section 74 and 75 [45(1)(b)]. The other Committees are established in terms of section 57(1)(b) for the exclusive business of NA and 70(2)(a) for the exclusive business of the NCOP.”
Section 57 of the Constitution provides for internal arrangements, proceedings and procedures of the National Assembly.
The section gives the power to the National Assembly to determine and control its internal arrangements proceedings and procedures.
The section further provides that the rules of the NA must provide for the establishment, composition, powers, functions, procedures and duration of its committees.
To give effect to section 57(1)(b) – “make rules and orders” – the NA has a rules book – Rules of the National Assembly 8th Edition.
Consultation
National House of Traditional Leaders
Section 18(1) of the Traditional Leadership and Governance Framework Act, 2003 (Act no 41 of 2003) (“the TLGF Act”) stipulates:
18.   Referral of Bills to National House of Traditional Leaders.—(1)  (a)  Any parliamentary Bill pertaining to customary law or customs of traditional communities must, before it is passed by the house of Parliament where it was introduced, be referred by the Secretary to Parliament to the National House of Traditional Leaders for its comments.
If the Bill deals with
customary law; or
customs of traditional communities
the Joint Tagging Mechanism will request the Secretary to Parliament to refer the Bill to the National House of Traditional Leaders for its comments.
This referral must be done before the Bill is passed by the House in which it was introduced.
This does not automatically mean that the Bill will be classified as a section 76 Bill. Schedule 4, in respect of traditional communities and customary law only includes:
Cultural matters
Indigenous Law and Customary Law, subject to Chapter 12 of the Constitution
Traditional Leadership, subject to Chapter 12 of the Constitution
If the Bill deals with customary law: it must be classified as a section 76
If the Bill deals with “customs of traditional communities” it will only be classified as a section 76 Bill if the relevant customs that the Bill deals with fall within “Cultural matters”, as “customs of traditional communities” is not a Schedule 4 functional area.
Facilitation of public participation
The Portfolio Committee as well as the Select Committee must consider:
* the content of the Bill
* the process to date
and decide what consultation and with whom is necessary.
This does not affect the process (S74 / 75 & 77 / 76) that the bill must follow in Parliament
“S59. Public access to and involvement in National Assembly.
(1) The National Assembly must-
facilitate public involvement in the legislative and other processes of the Assembly and its committees;”
“S72. Public access to and involvement in National Council.
(1) The National Council of Provinces must-
facilitate public involvement in the legislative and other processes of the Council and its committees;”
For example, both the:
Intergovernmental Relations Framework Act No. 13 of 2005 and
Protection of State Information Bill 6b of 2010
were classified as section 75 bills.
The Intergovernmental Relations Framework Act deals directly with Provinces – however, “provinces” or “cooperation between spheres” are not functional areas in Schedule 4, this the bill could not be classified as a section 76.
The Protection of State Information Act required extensive consultation in both Houses due to its content. This need for consultation did however not affect its classification.

7. End
Rule 199 provides that the Speaker acting with the concurrence of the Rules Committee must-
(a) establish a range of portfolio committees;
(b) assign a portfolio of government affairs to each committee; and
(c) determine a name for each committee.
It is in terms of this rule that the PC on Transport is established.
The rule is made in terms of the Constitution, therefore the PC on Transport is a constitutionally and legally established committee.