THE SOUTH AFRICAN NATIONAL COUNCIL OF PROVINCES

The National Council of Provinces is an assembly of provincial and local governments. It was established to provide a powerful link between the National Assembly and the nine provinces.

I - COMPOSITION

One delegation of ten members representing each of the provinces (i.e. 90 members in all).

II - ELECTORAL SYSTEM

Method of voting: indirect election. The parties represented in each of the nine local assemblies designate ten Senators on the basis of votes cast in provincial elections: six are permanent members, and four are special delegates (the leader of the provincial executive and three other special members) who sit in rotation and are nominated on an ad hoc basis.

Permanent members must be eligible for the National Assembly. An assembly member appointed to be a permanent delegate automatically ceases to be a member of the local assembly.

Term of office: 5 years.

Most recent election: 14 April 2004.

Criteria for eligibility: 18 years of age, South African citizen or by decision of the parliament.

III - ORGANISATION OF SESSIONS

Determined by the National Council of Provinces.

The Council may be convened to meet in extraordinary session by the President of the Republic.

IV - RELATIONS WITH THE OTHER CHAMBER AND THE EXECUTIVE

Bicameral system where the houses have unequal powers.

A - LEGISLATIVE POWERS

1) The right to propose legislation

The Council, together with members of parliament and the President of the Republic) has a right to propose legislation, except insofar as it affects financial legislation. Legislative initiative may deal with matters referring to the concurrent competences of the National Council of Provinces and of local assembles (e.g. agriculture, the environment, transport, tourism and commerce) and other strictly limited and specified matters (e.g. local organisation and protection of rights).

2) Right of amendment

Yes. In all matters.

3) Legislative procedure

All draft legislation (i.e. with the exception of bills dealing with matters in which members of the National Council of Provinces have the right to propose bills, and which may therefore be submitted to it).

Unless the Constitution decides otherwise, each province has voting rights: enough votes are cast if at least five provinces support the matter in hand.

a) Procedure for ordinary draft legislation not affecting the provinces

On receiving a law that has been voted on by the National Assembly, the National Council of Provinces may adopt it, amend it or reject it.

In the case of amendment or rejection, the law is sent back to the National Assembly, which examines the changes that the Council has made, and votes on the text with or without the amendments, or else abandons the procedure.

At a vote of the National Council of Provinces, each member has one vote and there must be a quorum of one third.

This procedure also applies to draft laws dealing with finances.

b) Procedure for ordinary draft legislation affecting the provinces

If the Council rejects a bill forwarded by the Assembly, or if the Assembly refuses to vote for amendments adopted by the Council, it is sent to a mediating committee made up of nine members elected by proportional representation (i.e. one delegate per province appointed by that province): it may keep the bill in the wording agreed by the Assembly, as amended by the Assembly, as amended by the Council or in another version, and the votes of the committee must include at least five representatives of each of the assemblies.

1 - If the committee fails to reach agreement within 30 days, the bill is dropped unless the Assembly votes in favour by a qualified majority of at least two thirds of the members.

2 - If the committee keeps the wording agreed by the Assembly, the bill is sent back to the Council.

3 - If the committee keeps the wording as modified by the Council, the bill is sent back to the Assembly.

4 - If the committee opts for another version, the bill is sent back to both chambers.

5 - If, in the case of b) or d), the Council does not vote the bill through, it is dropped unless the Assembly adopts it by a qualified majority of at least two thirds of the members.

6 - If, in the case of c) or d), the Assembly does not vote the bill through, it is dropped but members may adopt the wording they previously agreed by a qualified majority of at least two thirds of the members.

c) Procedure for draft legislation affecting areas where the National Council of Provinces has the right to propose legislation

A bill adopted by the Council is forwarded to the National Assembly:

1 - if the Assembly changes it, the altered text is sent back to the Council;

2 - if the Assembly rejects the amended bill, or if the Council rejects it, it is sent back to the mediating committee:

- if the Assembly is unable complete the procedure in the 30 days, the bill is dropped;

- if the Assembly keeps the Council's text, it is sent back to the National Assembly;

- if the Assembly keeps its own text [Translator's note: This does not seem to make much sense.], the bill is sent back to the Council;

- if the Assembly keeps another version, it is sent back to both chambers.

In the event of the Assembly not voting for draft legislation that has been forwarded to it, the bill is dropped.

The Constitution does not provide for the National Council of Provinces not accepting the wording adopted by the mediating committee. The reality is that legislative debates must quickly reach results that have already been judged acceptable; as a result, there is little `to-ing and fro-ing'.

d) Further deliberation

On receiving a bill for promulgation, the President of the Republic may send it back to the parliament if he has reservations about its constitutionality. The National Council is involved in this procedure through a re-examination of the bill if it deals with a change to the Constitution, or else it affects the provinces.

B - SUPERVISORY POWERS

1) Power of constraint

The National Council or any of its committee may:

- summon anyone to give evidence or produce documents;

- demand reports from any committee or person and compel them to observe with rules with which they have to comply.

2) The National Council or any of its committees may receive petitions from any interested person or institution.

3) Ratification of international treaties and agreements

To be effective throughout the Republic, international treaties and agreements must obtain the approval of the National Assembly and the National Council of Provinces, except where it is a matter of a technical, administrative or executive agreement, in which case it need simply be presented to both chambers within a reasonable period of time.

V - SPECIAL MEASURES

A - CONSTITUENT POWER

The procedure for changing the Constitution depends on the aspect being examined:

1) The procedure for changing the Constitution may be amended by a law that has obtained the votes of at least six provinces (and at least 75 % of the members).

2) The Bill of Rights may be changed by a law that obtained the votes of at least six provinces (and at least two thirds of the members).

3) Other provisions of the Constitution may be changed by a law adopted by at least two thirds of the members and by the National Council (i.e. at least six provinces) if they incorporate a question that affects the Council, or alter local organisation or a provision dealing with local matters.

4) When examination by the Council is not required, the bill is presented to it for public debate.

5) When a draft law or one of its provisions concerns a particular province, the National Council may adopt it before it has been approved by the local assembly concerned.

B - RELATIONS WITH THE PROVINCES

1) Failure of a province or local government to carry out its functions

If the executive intervenes in the event of a province failing to fulfil its obligations, the measures it has taken must be presented to the National Council within 14 days of the first sitting following the commencement of the intervention.

The executive's intervention must be approved by the Council within 30 days; the intervention must otherwise cease.

The Council regularly monitors and sends appropriate recommendations to the executive.

The same procedure also apples when a provincial executive intervenes in the event of a local authority failing to carry out its duties.

2) Participation by provinces in the work of the National Council

Temporary representatives (maximum of ten) appointed by local authorities and representing various types of municipality may, as needs be, take part in meetings of the National Council without voting.

Similarly, National Council members may attend, and take part in, meetings of the provincial assemblies they represent, but they may not vote. A local assembly may ask a delegate to keep a watching brief.

3) Competence of the provinces

Any dispute relating to provincial competence must be referred to the National Council, which must in turn reach a decision within 30 days.

4) Conflict of laws before a tribunal

When a dispute concerning the need for the intervention of national law is heard by a court, the latter must seek the approval or rejection of the National Council.

One law, whether national or provincial, prevails over the other only if it has been approved by the National Council.

If the National Council does not give a ruling in the 30 days following its first sitting after having the matter referred to it, its approval is automatically deemed to have been given.

In the event of the submitted law being rejected, the reasons must be presented to the authority that referred it within 30 days of the decision being announced.

C - STATE OF NATIONAL DEFENCE

Any declaration by the Head of State of national defence must be approved by the National Council and the National Assembly within seven days of the declaration.


D - JUSTICE COMMISSION

Membership of this Commission is made up of the four members of the National Council who obtain the votes of at least six provinces. The Commission has the task of advising central government on any matter concerning the legal system and the administration of justice.