The National Council of Provinces or NCOP came into existence with the adoption of the new Constitution in 1996. It replaced the Senate, which had been the other House of Parliament since 1994.

The NCOP not only provides provinces with a forum in which to engage with the national government on matters concerning areas of shared national and provincial legislative powers, but also oversees the programmes and activities of national government relating to provincial and local government matters.

The 1996 Constitution introduced a new concept called “cooperative government”. That places a high priority on consultation, coordination and communication between the different levels of government and all organs of state. The NCOP can be regarded as a concrete expression of “cooperative government”, whereby governance in South Africa is seen as a partnership among the national, provincial and local spheres of government. It further means that national legislation must be sensitive to provincial interests and concerns. In addition, provinces must not act alone or in isolation, but must be integrated into the national legislative or law‑making process.

COMPOSITION OF THE NCOP

The NCOP is constituted to ensure that provinces are given an effective voice in the national legislative process. It consists of 9 provincial delegations, i.e. a delegation for each of the nine provinces. A delegation consists of 6 permanent delegates and 4 special delegates. The premier of a province is the head of that province’s delegation, but he or she can select any other member to lead the delegation in his or her absence.

The permanent delegates are members of Parliament (Members of Parliament (MPs) , while the special delegates are selected by each province from members of the provincial legislature and will change as and when required by the province.

Organised local government is also represented in the NCOP through the South African Local Government Association (Salga). Salga is entitled to 10 representatives who may participate in the debates and other activities of the NCOP, but they may not vote.

For a detailed overview of seat allocation view the State of the Parties in the NCOP.

ROLE OF THE NCOP IN THE LEGISLATIVE PROCESS

In exercising its legislative power, the NCOP may consider, pass, amend, propose amendments to or reject any legislation before it.

The NCOP generally follows two clear processes for dealing with what the Constitution describes as “ordinary bills not affecting provinces ” and  “ordinary bills affecting provinces”.

Section 75 bills

Bills that do not affect the provinces are generally those that relate to areas of national legislative powers, such as Foreign Affairs, Defence and Justice. Such bills are processed according to the procedure set out in section 75 of the Constitution. When considering section 75 bills, each individual member of the NCOP has one vote. The bill is agreed to if the majority of members vote in favour of the bill.

Section 76 bills

Bills that affect the provinces are generally those that relate to areas of shared national and provincial legislative powers, such as Housing, Health and Education. Such bills are processed in terms of the procedure set out in section 76 of the Constitution. When considering section 76 bills, each province (i.e. the provincial delegation) has one vote. A section 76 bill is agreed to if at least five provinces vote in favour of the bill.

Because delegations vote according to the mandate they receive from their provinces, the legislative process in the NCOP must allow an opportunity for provinces to discuss matters and formulate their positions on a particular bill. To allow time for proper consultation and discussion, both within provincial legislatures and among provinces, the NCOP uses a six‑week cycle to deal with section 76 bills.         

If there is a disagreement between the NCOP and NA on a section 76 bill, the bill will be referred to the Mediation Committee , which may agree to -

• the version of the bill passed by the NA; or 
• the version of the bill passed by the NCOP; or
• another version of the bill.

If the Mediation Committee is unable to agree within 30 days of the bill being referred to it, and if the bill had been introduced in the NCOP, the bill will lapse.

If the Mediation Committee is unable to agree within 30 days of the bill being referred to it, and if the bill had been introduced in the NA, the bill will lapse unless the NA passes the bill again with a supporting vote of at least two thirds of its members.

Bills amending the Constitution (section 74 bills)

Bills that amend the Constitution are processed in terms of the procedure set out in section 74 of the Constitution. The approval of the NCOP is required for certain constitutional amendments, such as amendments to section 1 which defines the Republic of South Africa, the Bill of Rights in Chapter 2, section 74(3) and any other amendments that relate to a matter that affects the Council, alters provincial boundaries, functions or institutions or amends a provision that deals specifically with a provincial matter. When considering such section 74 bills, each province has one vote and at least six provinces have to vote in favour of the bill for it to be passed.

In respect of other bills amending the Constitution, the NCOP may debate the constitutional amendment but is not required to approve the bill. 

Money bills (section 77 bills)

The Constitution defines a money bill in section 77. One of the main money
bills is the annual Appropriation Bill or the bill commonly referred to as “the Budget”. The procedure followed for the passing of a section 75 Bill (as indicated above) also applies in respect of money bills, except that money bills cannot be amended. The Constitution says that an Act of Parliament must provide for a procedure that will allow Parliament to amend money bills. Such legislation has not yet been passed.