Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
6 September 2010

Don’t say goodbey to NCOP yet

Co-operative Governance Minister Sicelo Shiceka probably upset quite a few of his fellow ANC members – especially those who enjoy the perks of office associated with provincial government – when he questioned the relevance of the National Council of Provinces (NCOP) as well as the present constitutional arrangement for provincial government. He said there should be no “holy cows” when discussing the future of provinces and the bodies associated with provinces.

A Cape Argus report says while intended to represent the nine provinces’ interests in the national legislature, the NCOP is widely regarded as the ‘Cinderella’ house. Shiceka said it needed to be reviewed. He also questioned the provincial system, arguing that provincial legislature members were unable to effectively hold government departments to account because of their limited numbers.

The NCOP has not been a great success. As the second house of the national Parliament, it is supposed to represent the interest of provinces in the national law making process. Hence it was envisaged that the NCOP would play a pivotal role in the passing of laws by the national Parliament – making sure that impractical laws that will be impossible to implement properly in provinces are never passed. But for several reasons this has not happened.

The NCOP is not a democratically elected body, but each province nominates a delegation of 10 members to serve in the 90 member NCOP. Only 6 of the 10 delegates representing each province are permanently in Cape Town (if they are not driving up and down to their so called “constituencies”, costing the tax payer millions of Rands). The other four are members of the provincial legislature and can be nominated by each provincial legislature from time to time.

This means that for all intents and purposes the 4 temporary delegates of each province play little role in the work of the NCOP and that the body doing the work is very small (54 members). The NCOP permanent delegates therefore find it hard to fulfil their lawmaking and oversight roles. Even the diligent members are overstretched.

Another problem is that parties nominate members to serve on the NCOP after the national election. This means that positions on the NCOP are dished out after all the other important positions in national and provincial parliaments have been filled. The poor loyal party hacks who are still without a job after the positions in the National Assembly and the nine provincial legislatures have been filled are then often deployed to the NCOP. This means that in general the quality of the members of the NCOP is not impressive. Don’t expect any Einsteins among members of the NCOP.

A third problem is that each provincial delegation to the NCOP is supposed to get a mandate from its provincial legislature on how to engage with a piece of national legislation that will affect the provinces. But because party discipline is so strict in our system, this is often a mere formality as each party representative automatically follows the party line. If Luthuli House or Helen Zille says “jump”, you just ask: “how high”.

Moreover, the provincial legislatures often get little time to decide what their position on a draft Bill might be and, as we know from several Constitutional Court cases, often fail to engage sufficiently with the issues that might affect the lives of ordinary people before giving a mandate to the provincial delegation on how to deal with a Bill before the NCOP.

This means the NCOP is not really fulfilling its function as envisaged by the drafters of the Constitution. Although some of its members are hard working and although they sometimes do engage seriously with legislation, the distinct voice and perspective of each province is lost.

But as is the case with provinces (with their Premiers and MEC’s, and accompanying blue light brigades and R1 million cars), it is going to be difficult to abolish the NCOP because there are serious vested interests in the existing system. Both in terms of status and money, many people have a lot to lose if the provinces and the NCOP are abolished. Members of the NCOP, members of Provincial Legislatures and especially Premiers and MECs will not be happy to hear that merely for the sake of efficiency and sound principle they might be out of a rather cushy job.

So, I for one will be rather surprised if the plans now being flighted by some in the ANC to consolidate or abolish provinces and to scrap the NCOP ever come to fruition. In politics, when principles of good governance (however one wish to define that concept) clash with self-interest and political expediency, principles of good governance has very little chance of coming out victorious.

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