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Using the NCOP may be a clever sounding strategy by the DA to gain more votes in especially Gauteng, but even if they do win three provinces it is unlikely to have any major effect, writes Melanie Verwoerd.
Over the last few weeks the DA has increasingly been talking up their chances of becoming the governing party in at least three provinces across the country.
Naturally they want to retain control of their "flagship" province, the Western Cape. They have also been punting the possibility of gaining control of the all-important Gauteng province (where the ANC is polling just below 50%) as well as the Northern Cape (for which there is almost no reliable polling).
I have been interested in the emphasis on three provinces as opposed to four or two. According to DA insiders it has to do with getting some political leverage in the National Council of Provinces (NCOP).
Undoubtedly many people are now asking: "The what?"
The NCOP has very much become the political or legislative stepchild. Very little if any attention is paid to it by the media. This is also true of the politicians with the exception of those who get paid a salary for occasionally occupying the red benches.
So why the sudden interest in the NCOP?
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It is rather technical, yet interesting, so let me try and explain.
Firstly, the composition: The NCOP is made of provincial delegations. Each province has ten delegates. The premiers of every province take up one seat and the rest of the seats are divided between permanent and special delegates (the detail is not important for the purpose of this column). The overall breakdown of representatives of each provincial delegation is largely representative of the political parties' support in that province.
The NCOP plays the role of an upper house. All legislation has to go to the NCOP after it has been passed by the National Assembly (NA). When a bill is introduced to Parliament by Cabinet, it is tagged as either Section 75 or 76 bills. Section 75 in the Constitution refers to bills "not affecting provinces" whereas section 76 to "bills affecting provinces".
In the case of Section 76 bills (thus bills that affect the provinces) each provincial delegation gets one vote and five provinces out of the nine have to vote in favour of a bill in order for it to pass. So it stands to reason that in the case of Section 76 bills that winning three provinces would not give the DA any real leverage in the NCOP after the elections.
However, if a bill has been tagged as Section 75 the individual delegates each has a vote once the bill comes to the NCOP. This is where it becomes more interesting and why some DA supporters are arguing that they will gain important leverage – except the numbers don't quite add up.
If the DA gets the majority vote in three provinces they will get the majority of the delegates of that provincial delegation possibly giving them an additional eight seats. If the other opposition parties retain the number of seats they currently have, it will give them 36 seats collectively. The ANC would have 54 seats and thus the majority vote.
It is true that only a third of delegates have to be present for the NCOP to be quorate and bills are passed when a majority of those present vote for the bill. Therefore, if all the opposition delegates are there it will put a lot of pressure on the ANC to have all – or at least 70% – of their delegates present every time a bill is voted on.
Since it rarely happens that all ANC delegates are present, there would be a good chance that the opposition parties (if they are all present and agree) could vote to send bills back to the National Assembly. In the event that some of the smaller parties, such as the EFF, gain more seats than in 2014 it would put the ANC under even more pressure.
However, it is important to note that even if the opposition succeeds in sending bills back, they cannot stop these bills from being passed eventually. The Constitution states that if the NCOP amends or rejects a Section 75 bill, the bill has to go back to the National Assembly. The National Assembly can then either agree with the NCOP amendments and send it to the president to be signed into law or reject the NCOP amendments and send it to the president to be signed.
So even though a DA victory in three provinces might put the ANC under pressure to have their delegates present and if enough of them are not there result in bills being sent back, the NCOP can ultimately not prevent Section 75 bills from passing.
Using the NCOP may be a clever sounding strategy by the DA to gain more votes in especially Gauteng, but even in the unlikely event that they do win three provinces it is unlikely to have any major effect.
Of course, if they could win four provinces that would be a totally different ball game. In that case they could stop Constitutional amendments (which require six provinces to vote for the amendment).
However, the chance of that happening at the next election is zero.
- Melanie Verwoerd is a former ANC MP and South African Ambassador to Ireland.
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