The chair of parliament’s health committee has sought guidance from one of the National Assembly’s three chairs on whether MPs can proceed with tough new tobacco laws or send the draft legislation back to the National Economic Development and Labour Council (Nedlac) for review.
At issue is the extent to which the health department consulted Nedlac on the Tobacco Products and Electronic Delivery Systems Control Bill before submitting it to parliament last year.
Nedlac is a consensus-seeking body that includes representatives of business, government and labour. The Nedlac Act says the body must consider policies and legislation with socioeconomic implications and submit a report to parliament on draft bills before MPs begin their deliberations.
The health portfolio committee began work on the bill under the previous ANC-led administration but has come under growing pressure from business and labour, which say Nedlac wasn’t consulted. Nedlac, too, is dissatisfied and has raised the matter with parliament.
On Monday, Business Unity SA (Busa) sent a letter to the committee asking it to instruct the health department to send the bill back to Nedlac for “a comprehensive review”.
The department’s failure to honour its commitments to bring the bill to Nedlac contravened legal requirements and eroded trust in the legislative process, Busa’s executive director for fiscal and economic policy, Lunga Maloyi, said in the letter, a copy of which has been seen by Business Day.
“It is important to note that the [health department] has, on multiple occasions, committed to bring the bill to Nedlac for proper consultation. However, to this date, this commitment remains unfulfilled, undermining the integrity of the consultation process and bypassing a necessary step in policy development,” he said.
Deliberating on the bill without Nedlac’s input could result in legislation that might have far-reaching, unintended consequences for the SA economy and society, Maloyi added.
Trade union federation Cosatu had also written to parliament about shortcomings in the health department’s interaction with Nedlac on the bill, said Cosatu’s parliamentary co-ordinator, Matthew Parks.
Cosatu supported the bill but was concerned that a flawed Nedlac process would leave it open to litigation from interest groups opposed to its measures, he said.
Jeanette Hunter, the health department’s deputy director-general for primary healthcare, on Wednesday sought to assure the health portfolio committee that the department had met the requirements of the Nedlac Act.
The department had consulted Nedlac twice on the bill, she said. It first presented the bill to Nedlac in a virtual meeting on October 20 2021, when the chair had allowed all participants to ask questions and make comments, she said.
“The business representatives did not ask any questions but instead requested the formation of a task team to discuss amendments to the bill clause by clause. It was our expectation that Nedlac would do this and submit their comments,” Hunter added.
The health department met Nedlac again on July 28 2022, facilitated by the department of trade, industry & competition, Hunter said. At this meeting Nedlac again requested the formation of a task team, and once again the health department’s expectation was that Nedlac would do so and submit its comments, she said.
MPs from several parties, including the Freedom Front Plus (FF+), the DA, and the African Transformation Movement expressed concern about the Nedlac process, and asked for input from parliament’s legal advisers. “We must be procedurally correct, or we will be standing in court,” said FF+ MP Philip van Staden.
Committee chair Sibongiseni Dhlomo said he had a requested an urgent meeting with the ANC’s Cedric Frolick for guidance.
Parks took issue with Hunter’s depiction of the department’s interaction with Nedlac. “There have been no meetings between Nedlac and health department. There was one presentation at Nedlac: they came for an hour. We asked them to come back for a chapter-by-chapter engagement. They never came back to us, despite us asking them to do so [repeatedly],” he told Business Day.
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