PAD122 Unit 3

The Legislature

1. National Sphere of Government

 This is the highest level of government, responsible for setting policies, making laws, and managing national issues like

defense, foreign policy, and overall economic direction.

Legislative Authority

 Parliament: This is the law-making body of the country. It consists of two houses:

o National Assembly: Has 350-400 members, who represent the people. The National Assembly debates and passes

laws, oversees the actions of the executive branch, and holds them accountable. Key roles here include:

 Speaker and Deputy Speaker: They lead the National Assembly, ensuring debates are orderly and laws are

debated thoroughly.

o National Council of Provinces (NCOP): Has 90 members who represent the provinces. The NCOP reviews laws

that affect provinces and ensures that provincial interests are considered in national legislation.

Executive Authority

 The President and Cabinet:

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 o President: The head of state and government. The President is elected by Parliament and is responsible for leading

the executive branch, making high-level decisions, and setting national priorities.

o Cabinet: Includes the President, Deputy President, Ministers, and Deputy Ministers who manage specific government

departments (e.g., Health, Education, Finance).

 National Departments: Each department focuses on a particular sector, such as Health, Education, or Justice, to implement

national policies and deliver services.

 Parastatal Institutions: Government-owned entities (e.g., electricity provider or transport companies) that operate like

businesses but serve public interests.

 State Institutions Supporting Constitutional Principles: These are independent bodies that ensure government

accountability and protect citizens' rights, such as the Public Protector and the Human Rights Commission.

Judicial Authority

 Courts:

o Constitutional Court: The highest court, primarily dealing with constitutional matters and ensuring laws align with the

Constitution.

o Supreme Court of Appeal: Handles appeals from lower courts and ensures uniform interpretation of the law.

o Magistrates Court and Other Courts: These handle general criminal and civil cases.

 Judicial Service Commission: This body is responsible for overseeing the judicial branch, including appointing judges and

ensuring independence.

 Prosecuting Authority: Responsible for prosecuting cases on behalf of the state.

2. Provincial Sphere of Government

 The provincial level manages issues specific to each province, such as provincial education, health services, and local

economic development.

Legislative Authority

 Provincial Legislature: Each province has its own legislature with 30-80 members. They make laws on provincial matters

and oversee the provincial executive branch.

Executive Authority

 Premier: The head of the provincial government, similar to a governor, elected by the Provincial Legislature. The Premier is

responsible for implementing laws and policies within the province.

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  Executive Council: Consists of the Premier and 5-10 members known as MECs (Members of the Executive Council), each

overseeing a specific provincial department (like health, education, or public works).

 Provincial Departments: These departments implement the policies and provide services at the provincial level. They work

with national departments but focus on provincial needs.

Judicial Authority

 High Courts: Located in each province, these courts handle more serious criminal and civil cases. They also hear appeals

from lower courts within the province.

3. Local Sphere of Government

 The local level is the closest to the public, responsible for municipal services like water, electricity, sanitation, and local

roads.

Legislative Authority

 Municipal Council: This is the law-making body at the local level. Members are elected by the local population to represent

them and make decisions about local regulations, policies, and budget allocations.

Executive Authority

 Political Executive Office Bearers: The local executive includes elected officials responsible for executing municipal

policies and running local services.

o Mayoral Committee: Headed by the Mayor, this committee is similar to a local "cabinet." It focuses on specific areas

like finance, infrastructure, and community services.

o Municipal Manager: A senior official responsible for daily operations of the municipality, ensuring services are

delivered and policies are implemented efficiently.

 Directorates / Departments: Each municipality has departments or directorates that manage specific services, such as

water, sanitation, housing, and electricity. These departments work to improve local services and address residents' needs.

Judicial Authority

 Magistrates Court and Other Local Courts: Handle legal matters within the local area, including minor criminal and civil

cases. Local courts ensure justice is accessible to all citizens within their community.

The Legislature

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Overview:

Parliament is the legislative authority of South Africa, responsible for making laws for the country in accordance with the

Constitution. It operates as a bicameral legislature, consisting of two houses: the National Assembly (NA) and the National Council

of Provinces (NCOP).

Role of Parliament:

As the representative body of the people, Parliament has several key roles:

 Promotion and Oversight: Parliament promotes and oversees adherence to the values of human dignity, equality, non-

racialism, non-sexism, and all other rights enshrined in the Bill of Rights.

 Implementation of Constitutional Imperatives: It ensures that constitutional mandates are implemented effectively.

 Judiciary Independence: Parliament safeguards the independence, impartiality, accessibility, and effectiveness of the

judiciary and other state institutions.

 Provincial Representation: The NCOP represents the provinces to ensure that provincial interests are taken into account in

the National Assembly.

Extraordinary Sessions:

The President has the authority to summon Parliament for extraordinary sessions to conduct special business.

Seat of Parliament:

The seat of Parliament is located in Cape Town.

National Assembly (NA)

Composition:

The National Assembly consists of no fewer than 350 and no more than 400 members who are elected through a system of

proportional representation. This proportional system ensures that the Assembly reflects the diverse political landscape of the

country. Members serve a term of five years, and the Assembly is presided over by the Speaker, assisted by the Deputy Speaker.

Dissolution of the National Assembly Before Expiry of Its Term (Section 50 of the Constitution):

The National Assembly can be dissolved before its term ends under specific conditions:

1. By the President:

o The President must dissolve the Assembly if:

 a. The Assembly adopts a resolution to dissolve, supported by a majority of its members.

 b. Three years have elapsed since the Assembly was elected.

2. By the Acting President:

o The Acting President must dissolve the Assembly if:

 a. There is a vacancy in the office of President.

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  b. The Assembly fails to elect a new President within 30 days after the vacancy occurs.

Membership of the National Assembly:

To be eligible for membership in the National Assembly, every citizen qualified to vote must meet certain criteria. However, the

following individuals are ineligible:

a. Anyone appointed by, or in the service of, the state and receiving remuneration for that appointment or service, except for:

 i. The President, Deputy President, Ministers, and Deputy Ministers.

 ii. Other office-bearers whose functions are compatible with those of a member of the Assembly, as declared compatible by

national legislation.

b. Permanent delegates to the National Council of Provinces or members of a provincial legislature or Municipal Council.

c. Individuals who are unrehabilitated insolvents.

d. Anyone declared to be of unsound mind by a court of the Republic.

e. Individuals convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the

Republic or abroad.

Loss of Membership:

A member of the National Assembly loses their membership under the following circumstances:

a. If they cease to be eligible for membership.

b. If they are absent from the Assembly without permission in circumstances specified by the rules and orders of the Assembly that

lead to a loss of membership.

c. If they cease to be a member of the party that nominated them as a member of the Assembly.

Decisions and Powers of the National Assembly (NA)

Powers of the National Assembly:

In exercising its legislative power, the National Assembly holds significant authority, including the following:

1. Legislative Action:

o Consideration of Legislation: The NA may consider, pass, amend, or reject any legislation that comes before it.

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 o Initiation of Legislation: The Assembly has the power to initiate or prepare legislation, with the exception of money

bills, which are specifically governed by other rules.

2. Accountability Mechanisms:

o The National Assembly must establish mechanisms to ensure that all executive organs of state within the national

sphere of government are accountable to it. This accountability is vital for the functioning of democracy and good

governance.

o Oversight Functions: The Assembly is responsible for maintaining oversight of:

 i. The exercise of national executive authority, which includes the implementation of legislation.

 ii. Any organ of state, ensuring that they operate within the bounds of the law and in alignment with

constitutional mandates.

Public Access to and Involvement in the National Assembly

The National Assembly recognizes the importance of public participation in the legislative process and is committed to facilitating

this involvement. Key principles include:

1. Facilitating Public Involvement:

o The Assembly must actively promote public involvement in the legislative processes and the workings of its

committees. This includes providing platforms for citizens to express their views, concerns, and suggestions regarding

proposed legislation and policies.

2. Transparency in Operations:

o The National Assembly is required to conduct its business openly, ensuring that its sittings and those of its

committees are held in public. This transparency is crucial for fostering trust and accountability in government.

3. Reasonable Measures:

o While the Assembly is committed to openness, it can take reasonable measures to manage public attendance and

participation. However, the Assembly cannot exclude the public, including the media, from a committee sitting unless

it is deemed reasonable and justifiable in the context of an open and democratic society. This ensures that the public

remains informed about the activities and decisions of their elected representatives.

Office Bearers of the National Assembly (NA)

1. The Speaker and Deputy Speaker

 The Speaker is the head of the National Assembly and plays a critical role in ensuring that Parliament functions efficiently,

impartially, and according to the rules. Elected at the first sitting of the Assembly following a general election, the Speaker

presides over sessions, enforces order, and applies the House’s rules. The Deputy Speaker assists the Speaker and stands

in when the Speaker is absent.

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  Removal and Replacement:

o The Speaker may be removed by a vote in the Assembly if a resolution is passed.

o In the event of a vacancy, the Assembly must promptly elect a new Speaker.

o The Chief Justice oversees the election of the Speaker to ensure a fair process.

Broad Duties of the Speaker:

1. Presiding Over the House: The Speaker ensures orderly debate, allocates speaking time fairly, enforces parliamentary

decorum, and ensures that all proceedings are conducted according to established procedures.

2. Representation and Communication: As the primary spokesperson for the Assembly, the Speaker communicates the

Assembly's resolutions and concerns to the public and other branches of government. The Speaker also acts as the official

representative of the National Assembly in interactions with international parliamentary bodies.

3. Chief Executive Officer of Parliament: In collaboration with the Chairperson of the NCOP, the Speaker is responsible for

overseeing Parliament's administration, budget, and resources. This includes managing parliamentary facilities, ensuring

effective staff support, and maintaining security within the parliamentary precincts.

 Impartiality: Although typically a member of the majority party, the Speaker is expected to act impartially, protecting the

rights of all political parties and MPs in the Assembly, thus upholding the principles of fairness and transparency.

2. Leader of Government Business

 The Leader of Government Business is a member of the Cabinet appointed by the President. This office bearer’s primary

responsibility is to coordinate the government's legislative agenda within Parliament, ensuring a smooth legislative process

that aligns with the executive’s policy goals. This involves scheduling government bills for discussion, managing Cabinet

participation in parliamentary processes, and facilitating the necessary liaison between Parliament and the executive.

 Key Functions:

o Legislative Coordination: Works with the Chief Whips and other parliamentary office bearers to align the legislative

timetable with the government’s priorities.

o Policy Communication: Acts as a bridge between the executive and the legislature, ensuring that MPs are briefed

on key government policies and legislative proposals.

3. Chief Whips

 Chief Whips are senior MPs who represent the majority party and the largest minority party. They are responsible for

ensuring party discipline, guiding the legislative agenda, and managing the attendance and participation of their party

members.

 Roles and Responsibilities:

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 o Party Discipline: Chief Whips enforce discipline within their party’s ranks, ensuring that MPs vote in line with the

party’s position on key issues.

o Scheduling: Coordinate the legislative calendar with the Leader of Government Business, prioritizing bills and debate

topics.

o Representation: Chief Whips represent their party’s positions during negotiations on parliamentary procedures,

ensuring their party’s views are reflected in the Assembly’s schedule and conduct.

4. Party Whips

 Party Whips assist Chief Whips in managing the day-to-day activities of their respective party’s MPs. They communicate

party instructions, ensure MPs’ attendance, and help prepare members for debates. They may also liaise with committee

members and gather feedback on legislative matters.

 Responsibilities:

o Attendance Management: Ensures MPs are present for key votes and discussions, keeping accurate attendance

records.

o Debate Preparation: Assists MPs in preparing for debates by coordinating briefings and resources.

o Internal Communication: Acts as a channel for relaying information from party leaders to all MPs, ensuring they are

informed of party policies and decisions.

5. Parliamentary Committees

 Committees play a crucial role in the legislative process by scrutinizing bills, holding inquiries, reviewing government

performance, and making recommendations. There are various committees, such as Portfolio Committees for specific

government departments, which enable a focused examination of legislation and oversight of the executive.

 Functions of Committees:

o Bill Review: Analyze and propose amendments to legislation before it is debated in the main Assembly.

o Oversight and Accountability: Monitor the implementation of laws and the performance of government

departments, holding them accountable for their activities.

o Public Engagement: Invite submissions and testimonies from the public, allowing for greater transparency and public

participation.

6. Members of Parliament (MPs)

 MPs are elected representatives who represent their constituencies and contribute to the Assembly's decision-making

processes. MPs debate proposed legislation, propose amendments, and vote on issues that impact national policy. They

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 also serve on committees, participate in constituency outreach, and play an essential role in holding the executive

accountable.

 Core Responsibilities of MPs:

o Legislation: Introduce, debate, amend, and vote on proposed laws.

o Constituency Representation: Advocate for the interests of their constituents, bringing their concerns to Parliament.

o Executive Oversight: Participate in questioning ministers, debating policies, and reviewing government performance

through committee work.

National Council of Provinces (NCOP)

The National Council of Provinces (NCOP) is South Africa's upper house of Parliament, representing the provinces and ensuring

their interests are considered in national legislation.

Composition

The NCOP is composed of delegations from each of South Africa’s nine provinces, as well as representation from local

government. Each provincial delegation consists of ten delegates:

 Four Special Delegates: This group includes the Premier of the province and three other delegates. If the Premier is

unavailable, a designated member of the provincial delegation heads the delegation.

 Six Permanent Delegates: These delegates are appointed in line with section 61(2) of the Constitution and serve a set

term. They represent the province on a more consistent basis and partake in legislative functions in the NCOP.

In addition to provincial representation, the South African Local Government Association (SALGA) has a presence in the NCOP

with ten delegates who may participate in debates and other NCOP activities. However, SALGA delegates do not have voting

rights.

Allocation of Delegates

The composition of each provincial delegation is structured to reflect the political landscape of the provincial legislature:

 Party Representation: Parties represented in the provincial legislature are entitled to representation within the province’s

delegation to the NCOP. This ensures proportional representation of political parties.

 Provincial Legislature’s Role: After an election, the provincial legislature must decide within 30 days how many delegates

each party will have as permanent and special delegates. Delegates are appointed based on party nominations, and national

legislation ensures that minority parties are also represented in the NCOP.

Permanent Delegates

Permanent delegates are appointed based on specific criteria:

 Eligibility: To qualify as a permanent delegate, a person must be eligible to be a member of the provincial legislature.

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  Term and Termination: Permanent delegates serve until the first sitting of the provincial legislature following the next

elections. A delegate's membership in the NCOP may end if:

o They become ineligible for the provincial legislature.

o They join the Cabinet.

o They lose the confidence of the provincial legislature or are recalled by their party.

o They no longer belong to the party that nominated them.

o They are absent from the NCOP without permission.

Powers and Functions of the National Council of Provinces

The NCOP has several key powers and responsibilities, primarily centered around its role in legislation and oversight.

Legislative Powers:

 The NCOP may consider, pass, amend, or reject any legislation submitted to it, following the procedures outlined in the

Constitution.

 It may initiate or prepare legislation within certain functional areas (listed in Schedule 4) or other legislation specified in

section 76(3). However, the NCOP cannot initiate or prepare money Bills.

Functional Areas Covered:

 The NCOP addresses matters that fall under concurrent national and provincial jurisdictions, such as:

o Ambulance services and related areas.

o Libraries (excluding national libraries).

o Liquor licenses regulation.

o Provincial planning and cultural matters.

o Other areas listed under Schedule 4, allowing the NCOP to address issues of direct importance to provinces.

Oversight and Accountability:

 The NCOP, or its committees, has the authority to:

o Summon individuals to appear and give evidence or produce documents.

o Request reports from institutions or individuals, as necessary.

o Enforce compliance with summonses or requests, in line with national legislation.

o Receive petitions, representations, or submissions from any interested parties, ensuring public involvement in

legislative processes.

The NCOP plays an essential role in maintaining a balance between national and provincial interests, particularly in legislative matters that

affect the provinces directly. Through its structure and representative composition, the NCOP ensures that South Africa’s diverse regions have

a voice in national governance, while its oversight powers reinforce accountability within the legislative process.

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Sittings of the NCOP

The NCOP's approach to scheduling and location helps it address issues in real-time and adapt to urgent national matters:

1. Flexible Scheduling: The NCOP determines its own sitting times, duration, and recess periods. This flexibility allows it to

adjust to legislative demands.

Example: During the COVID-19 pandemic, the NCOP scheduled special sittings to discuss the government's response,

adjusting its sessions to ensure that provincial needs and emergency measures were addressed.

2. Extraordinary Sessions: The President may summon the NCOP for extraordinary sittings to address urgent or time-

sensitive issues. Example: If a natural disaster affects multiple provinces, the President may call the NCOP for an

emergency session to discuss disaster relief funding and coordination among the provinces.

3. Alternate Locations: The NCOP can hold meetings outside its seat in Cape Town if it benefits public interest, security, or

convenience. Example: To engage directly with communities affected by economic challenges, the NCOP might hold

sessions in areas like the Eastern Cape or Limpopo. This makes it easier for local citizens to attend and participate,

strengthening the NCOP’s understanding of on-the-ground issues.

Chairperson and Deputy Chairpersons

The leadership structure within the NCOP ensures continuous representation across all provinces and maintains order and

function:

1. Election Process: The NCOP elects a Chairperson and two Deputy Chairpersons from its delegates. Example: After each

general election, the Chief Justice presides over the election of the Chairperson to ensure impartiality. The Chairperson

oversees the election of the Deputy Chairpersons, who play roles in presiding over sessions and ensuring that the NCOP

operates smoothly.

2. Term Rotation: While the Chairperson and one Deputy Chairperson serve five-year terms, the other Deputy Chairperson

serves a one-year term, rotating among the provinces to ensure balanced representation. Example: If the first Deputy

Chairperson is from the Western Cape, the next year, this role might be filled by a delegate from KwaZulu-Natal. This

rotation helps each province contribute to the leadership of the NCOP over time.

3. Election Oversight: The Chief Justice presides over the election of the Chairperson or may delegate this responsibility,

ensuring fairness in leadership selection. Example: During election cycles, the Chief Justice or another designated judge

ensures that the process remains unbiased, reinforcing trust in the NCOP’s leadership.

Access and Public Engagement

The NCOP emphasizes open participation to make legislative processes accessible and transparent:

1. Public Access: The NCOP must facilitate public involvement in legislative processes. Generally, its sessions are open to

the public and media, promoting transparency. Example: For debates on provincial health policies, the NCOP may invite

healthcare workers and patients' advocacy groups to attend and observe the session. This inclusion allows public scrutiny of

discussions affecting healthcare.

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 2. Conditions for Exclusion: Public or media exclusion is allowed only when necessary, such as for matters involving national

security or sensitive information. Example: In cases where the NCOP discusses confidential matters related to national

defense or law enforcement, the public and media may be excluded to ensure sensitive information remains secure.

3. Outreach Programs: To further public participation, the NCOP has programs like Taking Parliament to the People and

Provincial Week.

o Taking Parliament to the People: The NCOP holds sessions in communities, allowing citizens to engage directly

with the parliamentary process. Example: If the NCOP hosts a session in a rural area, it enables local farmers, small

business owners, and community leaders to voice their concerns about agricultural policies directly to their

representatives.

o Provincial Week: Members spend time in their respective provinces to engage with local issues and gather

community feedback. Example: During Provincial Week, NCOP delegates might visit schools to assess education

needs and collect insights from educators, which can be incorporated into policy discussions.

Participation of Members and Delegates

Participation rules in the NCOP enable comprehensive representation of diverse groups:

1. Cabinet Members and Deputy Ministers: Although Cabinet members and Deputy Ministers can attend and speak at

NCOP sessions, they do not vote, maintaining the Council’s independence.

Example: A Minister of Health might attend an NCOP session on public healthcare funding to explain national plans, but

they do not have the authority to influence votes directly, preserving the NCOP's autonomy in decision-making.

2. Local Government Representation: Up to ten part-time representatives from organized local government, like SALGA,

may join NCOP sessions to represent municipal interests, though they also do not vote.

Example: SALGA delegates might attend an NCOP session on water management to share perspectives from

municipalities facing water shortages, ensuring that local government concerns are included in the discussion.

3. Mandatory Attendance: The NCOP can summon Cabinet members, Deputy Ministers, or other executive officials to ensure

that relevant authorities provide input on provincial concerns.

Example: If the NCOP is reviewing land reform issues, it may require the attendance of the Minister of Agriculture to provide

insights on policy progress and implementation at the provincial level.

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 UNIT OUTCOMES

1. National Assembly (NA)

The National Assembly (NA) plays a key role as the lower house of Parliament, serving as the primary legislative body in South

Africa. Here are the main aspects of its role:

Composition and Election

 Composition: The NA has between 350 and 400 members, elected through a proportional representation system.

 Election: Members are elected every five years in general elections. The seats are allocated proportionally based on the

number of votes each party receives nationally, allowing for fair representation of diverse political views.

Membership

 Qualifications: Any citizen eligible to vote for the NA can be a member, as long as they meet certain requirements.

 Disqualifications: Disqualifying factors include holding a paid government position, being a member of a provincial

legislature or municipal council, being declared of unsound mind, or having a prison sentence of more than 12 months.

 Duration and Dissolution: Members serve a five-year term unless the NA is dissolved earlier, which can occur if the

majority of its members vote for dissolution after three years or if the Acting President dissolves it due to a vacancy in the

office of President.

Election of Speaker and Deputy Speaker

 Speaker: Elected by the members of the NA during its first sitting after a general election. The Speaker presides over the

Assembly, maintaining order, and ensures rules are applied fairly.

 Deputy Speaker: Also elected to assist and substitute for the Speaker when necessary. The Chief Justice presides over the

election of the Speaker.

Decisions, Powers, and Public Access

 Decisions and Powers: The NA can pass, amend, or reject legislation, initiate legislation (excluding money Bills), and

oversee executive accountability by requiring reports and maintaining oversight of national executive authority.

 Public Access: The NA promotes transparency by allowing public attendance at sessions and committee meetings, with

exceptions only in cases where security or sensitive information is involved.

2. National Council of Provinces (NCOP)

The NCOP represents the provinces, ensuring that regional interests are considered in national legislation. Its role includes:

Composition

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  Each province sends a single delegation with 10 delegates: six permanent and four special delegates. The Premier typically

heads the delegation but may designate another delegate in their absence.

Allocation of Delegates

 Delegates by Party: Parties represented in provincial legislatures send delegates to the NCOP, with the allocation based on

each party's representation in the provincial legislature.

 National Legislation Participation: Minor parties are ensured participation in delegations by national legislation, supporting

diverse representation.

Permanent Delegates

 Eligibility: Permanent delegates must be eligible members of the provincial legislature.

 Term: Delegates serve until the first sitting of the provincial legislature after the general election, but they may lose their

position if they become Cabinet members, lose party support, or are absent without permission.

Sittings, Decisions, Powers, and Public Access

 Sittings: The NCOP sets its own sitting schedule and can hold extraordinary sessions or meet outside Cape Town if it

serves public interest or security needs.

 Decisions and Powers: The NCOP can pass, amend, or reject legislation on provincial matters (listed in Schedule 4) and

has powers to summon individuals to provide information.

 Public Access: Public involvement in NCOP sessions and committees is encouraged, with exceptions only when necessary.

Election of Chairperson and Deputy Chairpersons

 Chairperson and Deputy Chairpersons: The NCOP elects a Chairperson and two Deputy Chairpersons. The Chairperson

and one Deputy serve five-year terms, while the other Deputy rotates annually to ensure representation across provinces.

Participation by National Executive and Local Government Representatives

 National Executive: Cabinet members and Deputy Ministers can attend and participate in NCOP debates, though they do

not have voting rights.

 Local Government: Representatives from the South African Local Government Association (SALGA) participate in NCOP

sessions, but similarly, do not vote.

3. Relationship Between Parliament and the President

The relationship between Parliament and the President in South Africa is defined by a balance of powers and checks,

underpinned by mutual accountability and legislative oversight.

Parliamentary Oversight

 Executive Accountability: Parliament, especially the NA, holds the President and Cabinet accountable by requiring reports

and oversight in the implementation of national policies and legislation.

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  Question Sessions: The President and Ministers appear before Parliament to answer questions, clarifying government

actions and policy decisions.

Law-Making Process

 Presidential Assent: The President must sign Bills into law. However, if the President has reservations about the

constitutionality of a Bill, it may be sent back to Parliament for reconsideration or referred to the Constitutional Court for a

decision.

 Summoning Parliament: The President has the power to call an extraordinary session of Parliament to address urgent

issues, facilitating swift governmental responses to national matters.

Shared Accountability

 Impeachment: Parliament can remove the President through impeachment if they are found guilty of a serious violation of

the Constitution or the law, serious misconduct, or inability to perform their duties.

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