Referral of IPLAB by the

President

2013.01.30

Recommendation on referral

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Overview1. Referral

2. Opinion obtained by Parliament

1. Section 18(1) Traditional Leadership and Governance Framework Act, 2003 (TLGFA)

2. Classification of IPLAB3. Public Involvement

3. Recommendation

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Referral•Objections received:

• The Bill is a section 77 bill (Money bill)• The Bill should have been referred to the National House of

Traditional Leaders in terms of section 18(1) of the Traditional Leadership and Governance Framework Act, 2003 (Act 41 of 2003)

• Inadequate facilitation of public involvement.•Gilbert Marcus opinion (obtained by the President):

• The Bill is not a section 77 bill• The Bill should have been referred to the National House of

Traditional Leaders• The Bill is a section 76 bill as it deals with Traditional

Leadership and Cultural Matters

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Opinion obtained by Parliament (1)Section 18(1) Traditional Leadership and Governance

Framework Act, 2003 (TLGFA)

•“Traditional work”, “traditional terms and expressions” and “traditional design” = “customs”.•“Indigenous community” (defined in IPLAB) is wide enough to include “traditional communities” (defined in the TLGFA).

The object of section 18(1) was achieved. There was substantial compliance with section 18(1).

•CLSO: A question of interpretation whether “Traditional work”, “traditional terms and expressions” and “traditional design” are “customs”.

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Opinion obtained by Parliament (2)Classification of IPLAB

• “Cultural matters” in Schedule 4 includes literature, music, painting, sculpture and theatre.

• IPLAB affects these aspects and thus Cultural Matters.

• CLSO: A question of interpretation of the test of “substantially affects”

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Opinion obtained by Parliament (3)Public Involvement

•New provisions in a redraft / amended bill : No additional public participation required (not reasonable).

•Insufficient public participation in the NCOP. • NCOP rules (Part 4, Rules 207-214) dealing with section 75 does

not require public participation. • The Constitutionally requires facilitation of public participation.• Part 4 of the NCOP rules needs to be reconsidered to address this

Constitutional requirement.

•CLSO: Agrees. S76 procedure will remedy this automatically

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Recommendation1. JTM to confirm classification as section 76 bill

2. JTM: “S75”:1. Confer with Select Committee on facilitation of public participation

(Joint Rule 203(2)(b)(i))

2. Report to the National Assembly1. Disagree with classification as section 76;

2. Substantially complied with TLGFA (referral to NHTL)

3. NCOP to facilitate public participation

3. JTM: “S76”1. Confer with Select Committee on facilitation of public participation

(Joint Rule 203(2)(b)(i))

2. Report to National Assembly:1. JTM to reclassify

2. Substantially complied with TLGFA

3. Decision to pass bill as a section 75 rescinded, subject to work done by the Portfolio Committee being retained.

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Thank you