Functions of the NCOP:

It is critical that provinces are able to voice their opinions when legislation directly affects the economic or
social interests of their region, and that they can ensure that national legislation they will be required to
implement is workable. Therefore, the NCOP was created to represent the provinces and ‘to ensure that
provincial interests are taken into account in the national sphere of government. It does this mainly by
participating in the national legislative process and by providing a national forum for public consideration of
issues affecting the provinces. As stated in the Doctors for Life case at para 79, the NCOP
reflects one of the fundamental premises of [the South African] government, which sees national, provincial and
local governments as ‘spheres within a single whole’, which are distinctive yet interdependent and interrelated. The
NCOP ensures that national government is responsive to provincial interests while simultaneously engaging the
provinces and provincial legislatures in the consideration of national policy.
The wide-ranging power of the NCOP:
The NCOP has the power to determine and control its own internal arrangements, proceedings and
procedures, including the composition, powers and functioning of committees.
In terms of section 69 of the Constitution the NCOP can summon any person, including the President and
Cabinet Ministers, to:
1. give evidence under oath or affirmation, or to produce documents
2. require any person/institution to report to it
3. compel any person/institution to comply with a summons or requirement to produce documents (subject to
the committee first having satisfied the Speaker that the evidence of such witness will be material to the
enquiry)
4. receive petitions, representations or submissions from any interested persons or institutions.
Specific powers of the NCOP:
This varies according to the impact of the legislation in question on provincial concerns and the nature of the
legislation being considered. If the legislation does not directly affect the provinces, NCOP members each have
an individual vote which they cast in accordance with the wishes of their respective political parties. In all
other cases – including when amending the Constitution or dealing with Bills affecting the provinces – each
provincial delegation casts a single vote under instruction (mandate) from the provincial legislature
represented by the delegation.
Oversight
The NCOP must review the intervention of the national executive in a province and the provincial executive in
a municipality. It must approve a decision by the Treasury to stop the transfer of funds to a province or a
decision by the President to declare a state of national defence. Additionally, the NCOP resolves disputes
concerning the administrative capacity of a province.
The limits on the powers of the NCOP:
1. The NCOP must act in an open and transparent manner and cannot make rules contrary to the constitutional
requirement of openness
2. Members of the NCOP as well as Cabinet members who appear it enjoy certain privileges which cannot be
curtailed
3. The NCOP is required to facilitate public involvement in its legislative and other processes.
The Passing of Legislation
The notion of co-operative [multisphere] government, enshrined in Chapter 3 of the Constitution, lies at the
heart of the law-making process in Parliament. This need for co-operation is closely linked with the fact that
the legislative process is based on the assumption that provincial interests will be taken into account in the
national law-making process whenever such interests arise. The NCOP plays an important role in
institutionalising the principle of co-operation and communication by involving the nine provinces directly in
the national legislative process and other national matters.
Competence to pass legislation
Schedule 4 of the Constitution contains a list of concurrent national and provincial powers. Therefore, a
conflict may arise between national legislation and provincial legislation dealing with a subject listed in
Schedule 4. In such a case, section 146 of the Constitution provides that the provincial legislation will prevail
over the national legislation unless one of the criteria listed in section 146 itself is present.
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Schedule 5 contains a list of exclusive provincial powers. However, the provincial legislatures often find it very
difficult to operate effectively because:
(1) they are far removed from the centre of political power in Parliament,
(2) they are ill equipped in terms of information and expertise to pass judgment on national legislation and to
provide informed mandates to the respective NCOP delegations. This problem is exacerbated by poor
communications between the NA and the NCOP and between NCOP delegations and their provincial
legislatures. Draft Bills are often provided to the NCOP with little time for provinces to respond.
Different types of Bills and the Tagging of Bills
Bills must be classified or tagged into one of the respective categories before it can be introduced in
Parliament. This has an impact on the procedures to be followed. The Joint Rules of Parliament establish the
Joint Tagging Mechanism (JTM) which consists of the Speaker and Deputy Speaker of the NA and the
Chairperson and Deputy Chairperson of the NCOP. The function of the JTM is, among other things, to make
final rulings as to the classification of Bills.
Tagging also determines whether the Bill should be passed with a simple majority or according to special
procedures with a super majority. Because the Constitution attaches considerable importance to the voice of
the provinces in legislation affecting them, tagging is pivotal.
Tongoane and Others v National Minister for Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC)
In this case, the ‘substantial measure’ test for tagging of Bills was established. What matters is the Bill's
purpose and whether the provisions of the Bill ‘in substantial measure fall within a functional area’ which the
Constitution empowers provinces to legislate on. It focuses on all the provisions of the Bill in order to
determine the extent to which they substantially affect functional areas listed in Schedule 4 and not on
whether any of its provisions are incidental to its substance. The process is concerned with the question of
how the Bill should be considered by the provinces and in the NCOP, and how a Bill must be considered by the
provincial legislatures depends on whether it affects the provinces. The more it affects the interests, concerns
and capacities of the provinces, the more say the provinces should have on its content (paras 45-60).
1. Bills amending the Constitution (s74)
These Bills require special procedures to be adhered to. Special majorities are also required to pass the Bill to
protect the Constitution from being amended too easily.
S1 can only be changed with the support of 75% of the NA and at least 6 of the 9 provinces. Bills amending the
Bill of Rights can only be changed with the support of 2/3 of the NA and 6 of the 9 provincial delegations in the
NCOP. Any other provision of the Constitution may be amended by a Bill passed by the NA with a supporting
vote of at least 2/3 of its members. The support of 6 of the 9 provinces is not required for these ordinary
amendments to the Constitution unless the proposed amendment (i) relates to a matter that affects the
[NCOP]; (ii) alters provincial boundaries, powers, functions or institutions; or (iii) amends a provision that deals
specifically with a provincial matter. For example, if a Bill intends altering a provincial boundary, the NCOP may
not pass a Bill unless it has been approved by the legislature of the affected province, and 6 of the 9 provinces
support the amendment.
2. ordinary Bills not affecting provinces (s75)
When a Bill is tagged as a s75 Bill it can only be introduced in the NA (not in the NCOP). Once passed by the
NA, the NCOP must vote on the Bill but, in this case, members of the NCOP do not vote by delegation. Instead,
in terms of section 75(2) of the Constitution, each delegate in a provincial delegation has one vote and the
question is decided by a majority of votes cast subject to a quorum of 1/3 of the delegates being present. A
s75 Bill can, in effect, be passed by the NA without support by the NCOP if the majority party in the NA does
not enjoy a majority in the NCOP (for example when less than 45 of the delegates in the NCOP are from the
majority party). The NCOP could then conceivably try to obstruct the legislative programme of the majority
party in the NA.
The NCOP has 3 options: it can pass the Bill; pass the Bill subject to proposed amendments; or reject the Bill. If
the NCOP passes the Bill without amendments, the Bill must be submitted to the President for assent. If the
NCOP rejects the Bill or passes it subject to amendments, the NA must reconsider the Bill, taking into account
any amendment proposed. However, the NA has the power to override the NCOP amendments by passing the
original Bill. The amendments made by the NCOP will be disregarded and the Bill passed by the NA will be sent
to the President for assent.
3. ordinary Bills affecting provinces (s76)
A Bill will be tagged in this way if it falls within a functional area listed in Schedule 4 of the Constitution or
provides for legislation envisaged in particular sections of the Constitution. It will also be tagged as a s76 Bill if
it purports to intervene in Schedule 5 matters (in terms of s44(2)) and other financial matters affecting the
provinces. A Bill dealing with the seat of Parliament must be similarly tagged. If the provisions of a Bill in
substantial measure fall within the functional area listed in Schedule 4, it will be dealt with under s76. Tagging
a Bill as a s76 Bill is important as this gives more weight to the position of the NCOP in the passing of the Bill.
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Once the Bill has been passed in the House in which it was introduced, either the NA or the NCOP (the first
House), it is sent to the other House (the second House) to pass, amend or reject it. If the second House passes
the Bill without amendment, the Bill must be submitted to the President for assent. If the Bill is passed by the
second House with amendments, it must be referred back to the first House which passed it. If that House
passes the amended Bill, it must be submitted to the President for assent. However, if the second House which
considers the Bill rejects the Bill, or if the first House which passed the Bill refuses to pass an amended Bill
referred back to it, the Bill and, where applicable, also the amended Bill, must be referred to a Mediation
Committee.