History and Context

Memorandum of Understanding between Parliament & Provincial Legislatures of SA

Mr M J Mahlangu (Chairperson of the NCOP, RSA Parliament) signs the SALS Memorandum of Understanding

Since the advent of democracy in 1994, the South African Legislatures have been focused on repealing unconstitutional laws, passing transformatory laws, building democratic and transparent legislatures responsive to the demands of the transformation agenda, and overseeing the establishment on new institutions to promote democracy and human rights. Strong emphasis was placed on the function of lawmaking.

In the second decade of democracy, the focus has shifted to the effective implementation of policies and laws, and overseeing delivery on the ground. In the 3rd democratic parliamentary term (2004-2009) there was an active move towards strengthening the core functions by developing strong oversight and public participation strategies within the Legislative Sector in line with its constitutional mandate.

The strategic focus also shifted to strengthening the Legislatures of South Africa to ensure that they become the backbone of a successful representative and participatory democracy. Through the Speakers' Forum of South Africa, Parliament and the Provincial Legislatures resolved to organise as a sector and engage in efforts aimed at asserting the sector against potential threats to its independence. This has been done with due regard to the autonomous nature of the Legislatures.

SA Legislative Sector Cooperation and Governance

Parliament (National Assembly and National Council of Provinces) and the nine Provincial Legislatures have been established in terms of the Constitution Act, No 108 of 1996. Together, these 11 legislative institutions form part of the constitutional state that is based on the notion of constitutional democracy which enshrines the principle of separation of powers between the three arms of the state and the exercise of the rule of law.

The National Parliament and Provincial Legislatures of South Africa have a shared constitutional mandate set out in Chapter 4 and 6 of the Constitution respectively. This legislative mandate relates among others to the key functions of lawmaking, oversight of the executive and ensuring public participation in legislative processes. Although these institutions share the same mandate at national and provincial legislative level, they are autonomous in terms of section 43 of the Constitution. Whilst they are independent, the institutions are also obliged to adhere to the notion of cooperative governance as per Chapter 3 of the Constitution.

Furthermore, the Legislatures are granted powers to determine and control their arrangements, proceedings and procedures in terms of sections 57, 70 and 116. This includes making rules and orders with due regard to representative and participatory democracy, accountability, transparency and public involvement.

Section 40 makes provision for cooperation by stipulating that whilst spheres of government are distinctive, they are interdependent and interrelated. All government institutions irrespective of their sphere of government must observe and adhere to the principles of cooperative government as set out in Chapter 3 of the Constitution. Government institutions must co-operate with one another in mutual trust and good faith by:

  1. Fostering friendly relations;
  2. Assisting and supporting one another;
  3. Informing one another of, and consulting one another on, matters of common interest;
  4. Coordinating their actions and legislation with one another;
  5. Adhering to agreed procedures; and
  6. Avoiding legal proceedings against one another.

The Constitution provides for cooperation of Parliament and the Provincial Legislatures in a manner that respects their independence and integrity. Autonomy is highlighted for protection of constitutional powers rather than erosion of cooperation and coordinated efforts aimed at achieving their common mandate. This constitutional provision therefore provides a basis for Parliament and the Provincial Legislatures to organise and formalise as a Sector.

Through the Speakers' Forum of South Africa, Parliament and the Provincial Legislatures resolved to organise as a sector and engage in efforts aimed at asserting the sector against potential threats to its independence. This has been done with due regard to the autonomous nature of the Legislatures.

At present the Legislative Sector includes the National Parliament of the Republic of South Africa as well as the Provincial Legislatures of the Eastern Cape, the Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, the Northern Cape, the North West, and the Western Cape.

The Parliament of the Republic of South Africa and the nine Provincial Legislatures form the South African Legislative Sector (SALS) in accordance with the formally adopted Memorandum of Understanding. This Memorandum of Understanding (MoU), which was signed by all Speakers of Parliament and Provincial Legislatures in March 2010, outlines the commitment of the institutions to collaborate and cooperate on matters of common interest based on their similar constitutional mandates. This system of cooperative governance takes cognisance of the autonomous nature of the legislative institutions.