DA petitions President Zuma to send back 5 unconstitutional bills 

25 April 2014

The DA has petitioned President Jacob Zuma -  in terms of section 79 of the Constitution - on five unconstitutional pieces of legislation that the ANC had rushed through Parliament's legislative process. 

The DA has fought relentlessly throughout the duration of the fourth Parliament to ensure that Bills that are passed are in line with the Constitution. Though we have been met with much resistance from the ANC at every turn, we will continue to do everything possible to ensure that this happens.

It is particularly worrying that many of these bills will have a detrimental impact on job creation and our country's fight against corruption.

Our Section 79 petitions to President Zuma include:

The Infrastructure Development Bill:

We are of the view that the Bill in inconsistent with the requirement of certainty imposed by the rule of law. The broad and largely unfettered discretionary powers afforded to the Minister in section 21 create much uncertainty. The bill also contains problematic clauses that removes the powers of all organs of state responsible for planning in their area (municipal or provincial authorities) and ignores the constitutionally mandated functions of provinces and local authorities.

Its highly centralised nature will pave the way for another Nkandla scandal.

The Restitution of Land Rights Amendment Bill:

This bill is at odds with section 25(5) of the Constitution. Section 25 of the Constitution protects the right to property, but also makes allowances and sets guidelines for the restitution of land to those who were disposed by discriminatory laws. This section of the Constitution reads "The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis." It is estimated that new land claims will cost the fiscus between R129 and R179 billion to settle. National Treasury has indicated that there is no additional funding available for the Department (and has, in fact, cut its budget for Land Restitution). This effectively raises the concern that the inability to allocate sufficient resources to the implementation of the Bill will render the Bill, and the promise contained within the Bill, un-implementable.

The  Public Administration Management Bill:

The passing of this bill was procedurally flawed and if passed will create the precedent of turning Parliament into a rubber stamp. The last minute decision to not have the second reading debate on the bill was not by consensus and was opposed by the DA. The debate had already been scheduled when it was unilaterally taken off the order paper. This decision was in violation of the participatory, multi-party principles imbued by the Constitution in our parliamentary system.

Furthermore, this bill will do very little to curb corruption which is rampant in our public service. While the Minister has indicated her intention to prevent employees from doing business with the state; this clause however does not go far enough to curb the current wave of corruption. 

The Property Valuation Bill:

This Bill should have been tagged as a S76(4) Bill, as it may affects the financial interests of provinces. Secondly, much of what the Bill itself should contain is left to the Minister's discretion. The broad and unfettered discretion of the Minister may contravene the rule of law principle enshrined in section 1(c) of the Constitution, which among other things requires legal certainty. Crucially, the procedure followed in the passing of the Bill did not comply with the due deliberation or the public participation requirements of the Constitution. The revised Property Valuation Bill, which was so substantially changed from the original draft as to be a different Bill, was bulldozed through Parliament with insufficient time for public participation. 

Mineral and Petroleum Resources Development Amendment Bill:

This bill will have disastrous consequences for job creation in South Africa and we have opposed it from its inception. Our petition includes numerous constitutional concerns. Firstly, the passing of this bill was improper. The National Council of Provinces ("NCOP") did not engage in proper public consultation. The Bill was tagged under section 76 of the Constitution as one affecting the concurrent legislative competence of the provinces, when it should have been introduced as Money Bill (Section 74). The Bill was introduced to the NCOP on 12 March 2014 and passed just over two weeks later on 27 March 2014 without amendment. Such processes, in relation to section 76 bills, normally take at least six to eight weeks to complete. Furthermore, the last minute changes to the Bill's oil and gas provisions may also constitute an irregularity in the public participation process. 

Furthermore , the Bill now introduces state participation in exploration and production rights under amended section 86A(2) of the Mineral and Petroleum Resources Development Act (the "MPRDA"). Under the Bill, the state will acquire an automatic 20 per cent free carried interest in all new exploration and production rights. This participation, which had been limited to thirty per cent under previous versions of the Bill, is now apparently unlimited. This is a substantial change to the Bill, but was never previously discussed with interested parties, and which contravenes Section 25 of the Constitution. 

We have now written to President Zuma requesting him- as part of the assent procedure which requires him to satisfy himself independently that the Bill submitted to his office is not unconstitutional- to send these bills back to Parliament to be reconsidered. 

In addition, should the Women Empowerment and Gender Equality Bill which threatens to cannibalise the constitutional mandate of the Commission for Gender Equality (CGE) and impose gender quotas be sent to the President for assent, we will petition him in a similar fashion. 

The DA is yet to receive feedback from the President with regards to our second petition on the Protection of State Information Bill, and we will accordingly request clarity on its status. 

We are also awaiting feedback on our petition on the job- killing Private Security Industry Regulatory Authority (PSIRA) Amendment Bill which was pushed through the National Assembly this year, and which contains numerous problematic provisions.

The DA remains committed to ensuring that Parliament is not used as merely a rubber-stamp by Luthuli House for poorly drafted legislation by the ANC.

We trust the President will uphold his oath to the Constitution and do the right thing by sending these bills back to the National Assembly immediately.

Statement issued by Dr Wilmot James MP, Federal Chairperson of the Democratic Alliance, April 25 2014

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