The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The ANC provincial executive committee in KwaZulu-Natal has called for the scrapping of provinces and for the functions of the provinces either to be transferred to national or local governments. One of the interesting issues not raised in the proposal is what will happen to the National Council of Provinces (NCOP) if provinces are scrapped. As a party who loses a majority in the National Assembly (NA) might well hold on to a majority in the NCOP, it may also not be in the interest of the current governing party to scrap the NCOP, which could serve as a check on the exercise of government power.
Because the ANC currently controls both the NA and the NCOP with overwhelming majorities, it is probably mainly constitutional nerds like myself who wonder what will happen if the two houses of Parliament are controlled by different political parties.
When commentators talk about the possibility of the governing ANC receiving less than 50% of the votes in the next national election in 2019 (or in the election after that in 2024), they almost always assume that this would allow a coalition of opposition parties to form a government and to pass the legislation they deem fit.
Such commentators are correct that any number of coalition parties who, together, can muster more than 200 votes in the National Assembly (NA) can elect the President of their choice. That President (probably the leader of the largest coalition party) will then form a government in terms of a coalition agreement hammered out between the various coalition parties.
(As an aside: at this stage I would be rather surprised if the ANC received less than 50% of the votes in the national election in 2019 – although this can change, depending on what happens at the ANC elective conference in December this year.)
But the South African Parliament consists of two houses – the NA and the NCOP – and it is very possible that one party (or a coalition of parties) could control the NA, while another party (or coalition of parties) could control the NCOP, potentially creating a set of checks and balances on the exercise of power by the President and his or her government and potentially making it more difficult for parliament to pass legislation.
To understand how this might work, it is important to understand that the NCOP was created to represent the interests of provinces in the national Parliament. The NCOP consists of 90 delegates – 10 from each province – and each 10 person delegation is comprised of MPs in proportion to the support each political party enjoys in the specific provincial legislatures.
For arguments sake, if the ANC receives 50% of the votes in North West Province, the DA 30% and the EFF 20%, the North West provincial legislature will send 5 ANC delegates, 3 DA 3 delegates, and 2 EFF delegates to the NCOP.
This illustrates that if provinces are scrapped, the sections of the Constitution dealing with the NCOP and its powers will also have to be scrapped or amended, requiring a fundamental overhaul of the Constitution. As there will be no provincial legislatures to nominate NCOP delegates and to provide negotiating and voting mandates to provincial NCOP delegations, the NCOP would either have to be scrapped or would have to be composed in an entirely different manner.
As each province is represented by an identical number of delegates (10) and as provinces differ dramatically in size, a party (or coalition of parties) might well control a majority of NCOP delegates (and – this is also an important point – a majority of provincial delegations in the NCOP), while not controlling the majority in the NA.
For arguments sake, the ANC could win 45% of the votes nationally, giving them almost exactly 45% of the seats in the NA. If a number of former opposition parties could cobble together a coalition it could control more than 50% of the seats in the NA, allowing it to elect a President and form a government. But at the same time the ANC could still obtain a majority in 5 or 6 provincial legislatures, giving them effective control over the NCOP.
What happens then?
As noted, the party (or coalition of parties) who command a majority in the NA elects the President and Speaker of their choice and form the government. But if the government wishes to pass legislation, it will not only need a majority in the NA, but will often also have to secure a majority in the NCOP.
If the legislation concerns an issue that does not affect the provinces and the NCOP rejects the legislation or amends it, the NA can override this NCOP rejection by reconsidering the legislation and passing it again with a simple majority. When the NCOP votes on such legislation each delegate in the NCOP votes as an individual. This means that a party (or coalition of parties) who has mustered at least 46 votes in the NCOP will control the NCOP when such legislation is being considered.
But this will not be particularly important because when NCOP members vote as individuals, the NA will always be able to override any vote from the NCOP by passing the legislation again with a simple majority. So if the Parliament wishes to pass legislation on the SABC, the Hawks, or the SAA, or if it wants to pass the annual budget, the NA can always override the NCOP.
But the situation changes dramatically when Parliament is called upon to pass legislation that affects the provinces. In such cases, individual NCOP members do not vote. Instead, each of the 9 provincial delegations have 1 vote which is cast on their behalf by the head of the delegation. This vote is cast in terms of a mandate granted to it by the relevant provincial legislature in terms of a process prescribed by legislation.
It is for this reason that it could become rather important which party (or coalition of parties) control each of the provincial legislatures as the party (or coalition of parties) who control at least 5 provincial legislatures will – as I will presently explain – be able to exercise an effective veto over the passing of some legislation.
Such legislation will include legislation on a wide array of important issues, including:
Where one party (or coalition of parties) control the NA and another party (or coalition of parties) control the NCOP, it could become difficult for Parliament to pass legislation on these topics affecting the provinces.
Where the NCOP rejects legislation already passed by the NA, or where it passes the legislation with amendments, the Constitution provides for a complicated deadlock-breaking mechanism to resolve the impasse. This mechanism – a Mediation Committee – is too technically complex to explain in an article like this.
But to simplify matters somewhat, at the end of the mediation process both houses will still have to pass the legislation with a simple majority for it to become law. If both the NA and the NCOP fail to pass the legislation, the NA would only be able to get its way if it could muster a two thirds majority in support of the legislation. This is unlikely to occur because no party (or coalition of parties) will control two thirds of the seats in the NA when the NA and the NCOP are controlled by different parties.
This means that as far as legislation affecting the provinces are concerned, the NCOP is in a far more powerful position to influence or even block legislation supported by the NA than is the case with legislation not affecting the provinces. In other words, in such cases the NCOP is in a powerful position to thwart the legislative agenda of the government. This is because the NCOP represents the interest of the provinces in the national Parliament, requiring it to have a decisive say on legislation affecting the provinces.
These rather complicated mechanisms are aimed at facilitating co-operation and seeking consensus between the two Houses of Parliament in line with the principle of co-operative government.
They also ensure that the NA, with its 400 members representing the various political parties proportionally to their electoral strength, would not be able to ride roughshod over the NCOP whose delegates are equally divided between all provinces.
But one must not overstate the power of the NCOP. Unlike the NA who is given the explicit power to hold the executive accountable (and can remove the cabinet ministers or the President with a vote of no confidence) and to fulfil an oversight function over government departments, the NCOP is not explicitly given such powers. There is no way that the NCOP could, for example, remove the President from office with a vote of no confidence.
Although, the Constitution states that members of the Cabinet are individually and collectively accountable to Parliament as a whole, it significantly only explicitly grants this power to the NA to hold the executive organs of state (including members of the Cabinet) accountable. But both the NA and the NCOP has the power to summons anyone – including the President and cabinet ministers – to appear before it and to report to it.
This possible ambiguity could become problematic when the NCOP and the NA are controlled by different parties. The NCOP (in effect controlled by the opposition party or parties) might wish to flex its muscle by calling Cabinet Ministers or the President to the NCOP to report to it. The Cabinet ministers of President might argue that they are really only accountable to the NA and might be reluctant to subject themselves to a hostile grilling by a majority of NCOP delegates.
In any event, while the NCOP is currently rightly view as the weaker and politically far less powerful house of Parliament, this may change if the NCOP is controlled by a different party than the parties controlling the NA. It will be at this point that the opposition party who controls the NCOP might be thankful that it did not abolish the NCOP entirely along with the provinces whose interests it is supposed to serve and protect.BACK TO TOP