Status of Immigration Bill [B 46 – 2001], Tabling of Revised Immigration Bill [B 79 – 2001] , Director General’s Contract

Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
9 October 2001
STATUS OF IMMIGRATION BILL [B 46 – 2001], TABLING OF REVISED IMMIGRATION BILL [B 79 – 2001] , DIRECTOR GENERAL’S CONTRACT

Chairperson: Mr D Mokoena (ANC)

Documents handed out
Committee Report on the Employment Contract of the Director General of Home Affairs (see Appendix)
Various letters exchanged between the parties on the Director General’s Contract (provided in previous meeting)
Immigration Bill [B46-2001]
Revised Immigration Bill [B79-2001]

SUMMARY
The Chairperson and the members of the minority parties wrangled about two issues. Firstly, whether the State Law Advisor should be invited to a meeting to indicate if the revised Bill had been certified. The Chair suggested that this be done through a systematically organized process. However, minority parties felt that this would lead to further delays in processing the Bill and suggested merely phoning the State Law Advisor to ascertain this. The second dispute was whether there was a need to invite either the Director General or the Minister to give oral evidence on the status of the Director General’s contract. Minority parties were of the opinion that oral evidence be led, contrary to the Chairperson’s overruling suggestion that the matter be referred to the Public Service Commission. It was finally resolved that this matter would be discussed in party caucus and would be considered in the next meeting. Parties were also given a mandate to consider the Report of the Portfolio Committee making a recommendation referring the matter to the Public Service Commission.   

MINUTES
Status of the Immigration Bill [B 46-2001] and Revised Immigration Bill [B 79-2001]
The Chairperson indicated that the Bill [B 46-2001] had been declared invalid under the Joint Tagging Mechanism and had therefore fallen away and is out of the parliamentary system. An outstanding matter aligned to this was the response of the State Law Advisor and Parliamentary Law Advisor to Immigration Bill [B46-2001].

The Chair was pleased to announced that the Committee has a revised Bill. He suggested a systematic way of dealing with this Bill: 
- that the Committee should read it thoroughly so that members may be acquainted with its contents
- it would then be decided who gets invited to help the Committee in perfecting its understanding of the contents of the Bill
- it would also be decided whether or not the Committee would invite public comments on the Bill through hearings.

He said that it would also have to be decided whether there are any legal implications that are likely to emanate from the Bill. The Bill has to have legal parlance. This task would be performed by the State Law Advisors.

Discussion
Mr Morwamoche (ANC) asked if the revised Bill has gone through the certification process by the State Law Advisors - before the Committee proceeded further.

Mr Mokoena replied that he did not know if the Bill had gone through the certification process. The Bill had appeared in the Announcements, Tablings and Committee Reports. Thereafter it is referred to the Portfolio Committee and the Chairperson’s responsibility is to table it before the Committee.

Mr F Beukman (NNP) remarked that if the Bill has not been certified then it is not ready to be brought before Parliament. However, the Committee had to plan the process so that the Bill can be dealt with expeditiously. He suggested that if any submissions on the Bill had been received, the Committee should consider them and invite the authors to engage with them on their proposals.

Mr Mokoena dismissed Mr Beukman’s suggestion as being out of order. The reason for this was that Mr Beukman’s proposed strategy was to be the third leg in consideration of the Bill. He reiterated that the Committee should consider resolving the matter in accordance to the pattern that he had proposed, that is –
- Has the Bill been certified?
- Who has made submissions?
- Whether the Committee should invite public comment on the Bill or whether the Committee should start the deliberations.

Mr I Mfundisi (ACDP) commented on the issue of certification of the Bill, saying that it has become clear from the Speaker’s Office that the certification of this Bill is not necessary in terms of the Rules.

Mr Mokoena interjected and asked who had said that it was not necessary.

Mr Mfundisi replied that this was in accordance to the Rules and to the Speaker of Parliament. He said that there was a circular confirming that certification of Bills was not necessary.

Mr Mokoena replied that he understood what Mr Mfundisi was saying. He however differed and said that he was not privy to Mr Mfundisi’s view, saying that he was hearing this for the first time. He insisted that that the Committee should not jump the gun.

Mr Mfundisi said that if the Chair doubted his words he should verify their correctness or incorrectness with the Office of the Speaker.

Mr Mokoena replied that that was exactly what the Committee was attempting to achieve. He insisted that the Committee had to satisfy itself and had to have documentary proof. It did not have to rely on some hearsay evidence. The Committee had to ensure that the Bill does not go through unnecessary obstacles which would have been created by an oversight on the part of the Committee. He could not rely on hearsay opinion that the Bill had gone through a certification process. His view was that a similar procedure be followed as the one that was followed in respect of the previous Bill. He emphasized that the current Bill [B 79 – 2001] is a Bill that has been re-introduced in the National Assembly in terms of Joint Rule 162 as a section 75 Bill and had originally been introduced as Bill No. 46 of 2001.

Mr Beukman referred to Rule 243 that deals with the introduction of Bills in the National Assembly. He said that if the Committee questioned that the Bill is not constitutional it was in fact holding that the Speaker and the Minister had not introduced it in terms of the Rules of Parliament. He concluded that the Committee had to accept that the Bill had gone through the appropriate channels, or else the Speaker’s Office had not performed its functions.

Mr Mokoena commented that there had to a measure of consistency in the circumstances. The appropriate question that Mr Beukman needed to ask was in regard to clarity of procedure in terms of the Rule concerned.

Mr W Skhosana (ANC) remarked that there was a need to verify with the relevant authorities before proceeding any further with the Bill.

Mr G Grobelaar (DP) suggested that the Committee should have another meeting with the State Law Advisors to verify if the Bill had been certified or not.

Mr Mokoena replied that that was exactly what he wanted to hear, something that took the Committee forward, but not blindly forward.

Mr M Waters (DP) invited the Chairperson to telephone the State Law Advisors to verify whether the Bill had been verified. He suggested that the Committee should adopt the same course of action it adopted when it dealt with the Electoral Act in the year 2000. The State Law Advisors were not asked if they had certified the Bill. The Committee merely invited the Independent Electoral Commission and considered the Bill clause by clause instead. The State Law Advisors were only invited at the last stage to clarify legal problems and hurdles with the Bill.

Mr Mokoena said that this was what he was trying to avoid because the Committee had carried on considering the wrong Bill as it had not been approved by Cabinet. The reason for this was that the State Law Advisors were not invited to make a comment at the beginning of the proceedings but were only invited at the last stage. He suggested that a letter be written to the State Law Advisors.

This suggestion was not approved of by the members of the opposition because they were of the opinion that this would delay the proceedings. They suggested that telephoning during tea break would be a better option.

The Chair stated that after a letter had been sent to the State Law Advisors, an early meeting would then be convened to ascertain if the Bill had been certified or not. He made it clear that the Committee had to go through the certification hurdle first.

Mr Beukman was vocal in saying that the opposition could not agree to that proposal because that already amounted to a delay of the process. The Committee had a revised Bill before it and thus there was no prima facie reason for the Committee to delay the process. If the matter was not expedited it was possible that the Committee would not be able to consider the Bill before the end of the parliamentary session in November.

Mr Mokoena reproved Mr Beukman, saying that he should not speak of time frames. There was a need to have a good Bill and thus there was no need to compromise it with time frames.

A member commented that he did not comprehend what the debate was all about because the Committee had agreed at its last meeting to proceed with the Bill.

Mr Mokoena responded that he was trying to be as accommodating as possible. It was important that the Committee should receive clearance from the State Law Advisors whether or not the Bill had been certified and a meeting would be called thereafter in order that the process may proceed. He stressed that the Committee should read the Bill before the next meeting was convened.

Mr Beukman asked if the submissions on the Bill could be made available to members in order to assist them in familiarising themselves with the contents of the Bill.

Mr Mokoena disagreed and said that there was a need to be methodical in dealing with the Bill according to the manner that he had suggested earlier on.

Mr Waters remarked that there was a need to set deadlines in dealing with the Bill so that the Committee’s work could move at a faster pace.

Mr Mokoena disagreed citing that there was no need to set deadlines when the Committee was not yet au fait with the Bill. There was a need to go through an organized process and this did not call for time frames. He suggested proceeding to the third item on the Agenda – the Director General’s Contract.

Director General’s Contract
A letter from the Speaker was read out to the Committee. It reads thus:
Hon Mr Mokoena

Dear Colleague,

Newspaper reports indicate that you are referring the status of the contract of Home Affairs Director General to the Public Service Commission. If you wish to do so please table a Report from the Committee with such a recommendation. After the approval of the National Assembly the matter may be referred.

Yours sincerely
Frene Ginwala 

Mr Mokoena noted that before this matter is referred to the Public Service Commission, a committee report must be prepared to be tabled in Parliament. He commented that a Report of the Portfolio Committee has been prepared and this reflects the view of the Portfolio Committee. He asked if the Report should be adopted at the meeting or if the parties should be allowed to apply their minds to it before its adoption.

Mr Beukman remarked that it was advisable to consider Rule 201 to ascertain the status of the contract. It would be advisable to invite the Director General as well as the Minister to brief the Committee on the contract.

Mr Mokoena replied that the Committee had an oversight role in the matter. However, the Committee had to be very wary not to be embroiled in this issue and that it should appropriately be referred to the Public Service Commission which is qualified to deal with such matters.

Mr Beukman commented that the Committee still had a duty in terms of Rule 201 to investigate that everything runs in the appropriate order in the Home Affairs Department. The Director General had to be invited in order that the Committee may hear his side of the story.

Mr Mokoena replied that Mr Beukman was introducing a new matter altogether which is different from that which was suggested by the Speaker of Parliament. There was no need to mix issues. One did not need to throw everything into the pot as this would lead to a “potpourri”. There was no need to let Home Affairs issues become a “potpourri”. One need not throw issues haphazardly and end up with a “salad” of issues.

Mr Grobelaar was also of the opinion that the Director General be invited to lead evidence.

Mr Mokoena disagreed and said that Mr Grobelaar was suggesting something different to that which had been suggested by the Speaker. There was no need to be embroiled in the mire of issues. There was a need for a surgical approach which would be to refer the matter to the Public Service Commission. He was opposed to the idea of inviting the Director General into Parliament. One needed to avoid the “imbroglio zig zagging” of the situation. There was no need to differ with what the Speaker had recommended.

Ms Gcina (ANC) opined that the Committee should follow the Speaker’s recommendation.

Mr Morwamoche proposed that parties should be given an opportunity to consider the Report of the Committee and return with their party mandates on how to proceed with the matter.

Mr R Sikhakhane (ANC) also suggested that the Speaker’s recommendations be followed.

Mr Waters was, however, of the different view. He remarked that the Committee would be erring by not inviting the Director General to speak to the Committee. This was consistent with the Committee’s oversight role.

Mr Mokoena replied that that was a good point but such was a sectional interpretation of Rule 202. Rules need not be interpreted sectionally. It would be maladroit to introduce something new to contradict the parliamentary directive that has been given.

Mr Beukman commented that the Home Affairs Committee would be setting a very bad precedent by not inviting the Director General to explain the status of the contract.

Mr Mokoena disagreed. He remarked that this matter could be solved by reference to the papers only and not by inviting the Director General to the Committee.

Mr Waters insisted that opposition would like to have oral evidence and that this should be put on the vote in terms of Rule 202 of the Rules of Parliament.

Mr Mokoena replied that he had made it clear that he does not want majoritarianism to be used in Home Affairs issues. No one should move for a vote at the drop of a hat. This was not the appropriate culture to follow because there was a danger that the opposition might be outvoted. Voting would amount to the ambushing of a democratic process. He accordingly ruled that there would not be any voting regarding the matter.

Mr Beukman remarked that it was not permissible that the Chairperson should unilaterally disregard Mr Water’s point and unilaterally decide what was to be the outcome in this matter.

Mr Mokoena angrily replied that to allow Mr Water’s suggestion would be indicative of disregarding a directive of the Speaker and succumbing to a suggestion that had been made by a Member of Parliament.

Mr Beukman stressed that it was clear that there was dispute between the Minister and the Director General on matters of policy and the Committee therefore had a role to verify the extent of these disagreements by either inviting the Director General or the Minister to the Committee to give an explanation that would assist the Committee in moving forward.

Mr Mokoena concluded that this matter be considered in parties caucuses and it would be decided at the next meeting whether the Committee is a competent forum to deal with this matter and will be part of the agenda in the next meeting.

Prince Zulu (IFP) warned that there is a danger of wastage of taxpayer’s money if this matter is unduly prolonged.

Mr Mokoena sounded a caveat to the effect that members should be wary of being judgmental. He concluded that this matter should be taken to the Public Service Commission and that organization may decide itself if it wanted to call the Director General for oral evidence.

The meeting was concluded. 

Appendix:
Report of the Portfolio Committee on Home Affairs on the employment contract of the Director-General of Home Affairs:

The Portfolio Committee on Home Affairs has learnt through several media reports that the Director-General of Home Affairs did not sign his employment contract. This prima facie impression concerned the Committee and as part of our oversight duty a letter was sent to the Director-General on 29 August 2001, wherein he was asked to explain his position in writing to the Committee.

He responded by explaining that as Cabinet extended his contract as Head of the Department of Home Affairs, it was not necessary for him to sign an employment contract different from the one that he signed when he was appointed.

He further explained that by means of a letter to the Department of Public Service and Administration, he accepted the decision of Cabinet to extend his employment contract on the same terms and conditions as stipulated in his original employment contract. Mr Masetlha also provided us with a copy of an undated letter that was sent to him from Mr M R Ramaite, Director-General of Public Service and Administration. In this letter Mr Ramaite informs Mr Masetlha that Cabinet has approved the extension of his contract for 12 months and also that the same conditions of service as were applicable during his first term of office would apply.

Mr Ramaite also advised Mr Masetlha to enter into a new performance agreement with his executing authority.

The Committee was of the opinion that the letters from Mr Masetlha cleared up the questions regarding the status of his employment contract. We informed him accordingly but, for the sake of our records, requested a dated copy of the above-mentioned letter from Mr Ramaite.

After the above-mentioned events, we received a letter, accompanied by two legal opinions, from Minister Buthelezi wherein he informed us that both Senior Counsel opinions indicate that Mr Masetlha does not have the type of contract legally required to establish and maintain an employment relationship as Head of the Department.

The matter of Mr Masetlha's contract was thus again discussed at a Committee meeting on Tuesday, 25 September 2001. The NNP moved that a Sub-Committee should be established to investigate the issue. The Chairperson overruled this opinion and explained that it would be better to refer the matter to the Public Service Commission to investigate.

In the opinion of the Committee the Public Service Commission should investigate the issue as they are the proper authority with the necessary capacity and personnel to investigate the issue.

Report to be considered.