Deepening Democracy: Petitions - What are they and how do they work?

Introduction

South Africa’s democracy is consolidating, but possibilities remain for deepening it. Central to deepening is a cluster of issues about the relationship between citizens and each of the three levels of the legislature: the National Assembly, provincial legislatures and municipal councils. The issues arise both in connection with elections and the ongoing relationship between citizens and legislatures between elections. Petitions are one such tool which can strengthen this relationship and support the consolidation of our democracy.  

Petitions – what are they?

A petition is a written complaint or request to Parliament or a provincial legislature seeking its intervention or assistance. They may be made by an individual or group of individuals, or on behalf of an association relating to the same or similar complaints or requests. They can be submitted in any of the eleven official languages. Aside from individual or group interests, petitions may also made in the public interest.

Section 17 of the Constitution creates the right of everyone to present petitions. Sections 56, 69 and 115 provides for the receipt of petitions by the National Assembly, National Council of Provinces and provincial legislatures. Each house, separately, is guided by rules and procedures on how to proceed with petitions.

Petitions to Parliament are substantially weightier than just an indicator of popular support or lack thereof, for something. They are a vehicle through which the public gets to contribute to the agenda of legislature at different levels. A properly submitted petition must be considered by the appropriate legislature. This is a higher bar than public submissions sent to parliament and therefore this channel requires further scrutiny.

In the National Assembly and the National Council of Provinces

The rules of the National Assembly state that petitions which come before the House must take the form prescribed by the Speaker in accordance with guidelines determined by the Rules Committee, however, it is not easy to find any sort of template which adheres to the required form[1]. MPs formally present petitions to the National Assembly – this means that petitions require the support of an MP. The easiest way of securing this support is to visit a constituency office, and seek the assistance of an MP in preparing a petition[2].

Petitions are lodged with the Secretary to Parliament who reviews them for correctness of form and content, and then decides whether it should be sent to the Speaker of the National Assembly or the Chairperson of the NCOP.

Petitions which come before the National Assembly fall into two broad categories; special petitions and public petitions. Special petitions are where an individual makes a request for personal relief which is not authorised by law, a common example being access to a pension. A public or general petition is when a group of petitioners with similar interests request general relief or redress of a grievance. A special petition is referred by the Speaker of the National Assembly to the committee on public finance, whereas a petition of a general nature is referred to the relevant portfolio committee or other appropriate committee.[3]

The National Council of Provinces does not require that a petition needs the support of a Member of Parliament; however, the petition should be submitted according to rules determined by the NCOP Chairperson. Rule 103 (b) of the rules of the NCOP provides that all committees of the NCOP may receive petitions, representations or submissions from interested persons or institutions. The Select Committee on Petitions and Executive Undertakings is specifically mandated to consider petitions referred to it.

A few things should be made clear in a petition. These are:

1. The identity of the petitioner, or on whose behalf the petition is being made. Contact details must be provided.
2. The recipient of the petition.
3. The subject matter of the petition should clearly articulate the nature of the complaint or request, and describe the intervention or assistance sought. The motivation for submitting the petition should also be described.
4. The petition must be signed, be legible and not contain disrespectful language.

Provincial Legislatures

Petitions may also be submitted to provincial legislatures. They may be considered as long as the subject matter falls within the legislative or executive authority of provinces, and are assigned to an MEC in terms of the Constitution or relate to the provincial supervision of local government. At the provincial level, they should relate to policy or service delivery matters which concern departments, department entities or municipalities in the relevant province.

Following the investigation of the Committee, a report is compiled with recommendations which must then be tabled in the legislature for consideration.

Petitions which cannot be considered relate to matters which:

1. Falls outside of the abovementioned competencies
2. Concerns a matter pending in a court of law, or a tribunal or forum contemplated in the Constitution
3. Concerns the conviction and sentencing by a criminal court of law of a person to a period of imprisonment
4. Falls within the scope of a commission of inquiry, established in terms of the Commissions Act (national) or Provincial Commissions Act.

Provincial Legislation concerning petitions

Provincial petitions acts are passed in order to provide for the right to submit a petition. They set out the procedure to be followed, and regulate the functions of the relevant committees which are responsible for considering petitions. The Gauteng Petitions Act is one example of such legislation, and together with its accompanying regulations guide the Petitions Standing Committee of that legislature in considering petitions before it.

Such legislation substantiate the responsibility of provincial legislatures in their executive oversight functions, and in facilitating public involvement in legislative processes. The provincial executive i.e. the premier of the province oversees the enactment of these Acts, and the legislature oversees its implementation.

Provincial legislatures also allow for the online submission of petitions known as e-petitions, which can be accessed through the website of the respective legislature[4]. 

Municipalities

Section 17(1) of the Municipal Systems Act is far more prescriptive as concerns municipalities, than constitutional provisions for parliament and provincial legislatures. The Act mandates municipalities to put in place “mechanisms, processes and procedures for participation in municipal governance” and stating explicitly that a municipality must provide for the receipt, processing and consideration of petitions and complaints lodged by members of the local community.

Consider the model employed by the City of Johannesburg. The city has a “Petitions Unit”, situated on the ground floor of the municipal offices. Residents can approach the unit directly for assistance in submitting a petition or go via a ward counsellor. Steven Kotze, chairperson of the Petitions Standing Committee, in a radio interview[5], urges residents to view their ward counsellor as “premier of the ward”. The process followed by the city of Johannesburg is simple – residents are advised to log a call with the relevant entity (e.g. City Power in the case of outages) and get a reference number, after a reasonable waiting period the resident may contact the ward counsellor to escalate the matter. In cases where the ward counsellor fails to get a response this is where a petition becomes appropriate. Where service delivery and escalation of complaints fail – a petition is one way to directly engage the municipality. Kotze explains that in this way petitions become a “democratic instrument of last resort”.

Again, petitions of this nature can be submitted by a single petitioner or many. Kotze points out, however, that the more the signatures the greater the credence given to the petition. In drafting the petition, the area concerned (the ward) should by identified, as well as the lead petitioner (single or representative of the concerned community). Petitioners can expect an acknowledgment of receipt within 3 days of submission. The city hosts roundtables where progress reports of accepted petitions are discussed.

The city currently has petition boxes in each region (such as Soweto), and according to Kotze, intends to take this further by providing petition boxes in each ward. Epetitions via email are also accepted.

Case Study: The Sigogo Petition

Mr Olwethu Sigogo is a representative of the National Education Health and Allied Workers Union (Nehawu) of the Khayelitsha District Hospital (KDH) Constituency. In its initial petition to the NCOP Select Committee (the Committee) in 2018, Nehawu raised issues of maladministration through irregular staffing and which resulted in deteriorating patient care, the victimisation of staff, and poor working conditions at KDH. The NCOP referred the matter to the Public Services Commission (PSC) to investigate. In response, Nehawu launched a second petition – this time taking issue with the manner in which the PSC had conducted its investigation claiming that the resultant report was superficial and the investigation glossed over key matters. This second petition urged the Committee to intervene in addressing the on-going issues at KDH.

Following three hearings on the petition which involved oral evidence by affected parties, the NCOP published its report on 27 March 2019, in which it made a number of recommendations. The report provides insight into the powers of the Committee, such as the power to recommend that[6]:

• the National Department of Health (DOH), and the Office of the Health Ombud conduct forensic investigations into allegations contained in the petition,
• the House assist the petitioners with the referral of complaints to the Ombud,
• the South African Human Rights Commission investigate the allegations of human rights abuses which were levelled against the KDH management,
• the Department of Labour (DOL) assist the petitioners in bringing complaints of unfair labour practices to the relevant bargaining council for their resolution and conduct regular health and safety checks at KDH, as well as investigate certain employment equity practices to determine their compliance with the Employment Equity Act,
• the DOH “take over” at KDH, until all issues are resolved,
• the DOH, DOL, and the Ombud provide the Committee with a progress report on the report’s recommendations within sixty days of the tabling of the report in the House.

While the attention given to this specific petition has been impressive, it serves to illustrate that the process of resolving citizen concerns through this forum can be lengthy, resource intensive and subject to procedural uncertainties – it also raises questions about the extent of powers that committees do or should have.

What can Committees do?

Committees have wide-ranging powers and functions when considering petitions. These extend to investigating the veracity of allegations, holding public hearings and calling for oral and written evidence, conducting on-site visits, and making recommendations which impact cross-sector actors such as national Departments, public institutions and even referring a matter to the Public Protector or National Prosecutorial Authority.

The Sigogo petition reveals tensions between the Western Cape provincial MEC for Health (the MEC) and the Committee. In the course of holding its hearings on the second Sigogo petition, the MEC declined to attend on the basis that a provincial executive could not be summoned by the national parliament. Whereas the powers of Committees are explicitly set out in provincial legislation, the National Assembly and the NCOP are left to derive their functions from broad Constitutional provisions and the Rules of each House.

The question of whether the Committee can summon a provincial department to appear before it must still be determined by the courts – but this highlights the need for the drafting and passing of national legislation to be prioritised.

Challenges

1. Delays in processing petitions remain a concern – both inherited and new. In the House, an audit of existing petitions may be helpful, so that the Sixth Parliament may prioritise these. In March 2018, the Gauteng provincial legislature held a three-day session dedicated to addressing the backlog of petitions. The relevant government departments and petitioners were invited with a view to finalising the petitions. This is a useful intervention that could be adopted by the National Assembly or NCOP. Petitions cannot be dealt with effectively unless sufficient time is allocated to considering them. As things stand, dealing with petitions is the lowest priority item in the ordering of parliamentary business.
2. Constituency offices are under-utilised. These offices play an integral role in assisting the public to bring petitions before the relevant Parliamentary committee, and thus greater public awareness around the role of these offices must be prioritised. Moreover, lack of public awareness around the petitions process and the non-attendance of key stakeholders at hearings remains a challenge. A system of geographically defined constituencies where most members of parliament are elected within them would also help by creating clearer links between the public and MPs.
3. In its draft legacy report[7] for the period May 2014 to March 2019, the NCOP Select Committee noted the introduction of the Draft National Petitions Bill in Parliament and the establishment of a dedicated petitions office in the NCOP as key priorities for the Sixth Parliament. The minutes of an NCOP Select Committee meeting[8] indicates that the Bill has been drafted but not tabled. The absence of a Petitions Act means that Parliament lacks a uniform approach to processing petitions. For instance, NCOP rules require that the petitioners be informed of the decision or other course of action and the reasons for it, whereas the National Assembly rules are silent on this matter.
4. The models adopted by provincial legislatures follow much clearer legislative and procedural approaches to the petitions processes. The Gauteng Petitions Act is a good example on which the Petitions Bill could be modelled.

Kimera Chetty
Legal Researcher
kimera@hsf.org.za

[1] Parliament’s website advises that the approved format for petitions can be requested from the Clerk of Papers, the contact details of the clerk can be accessed here: https://www.parliament.gov.za/petitions