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PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
14 November 2001
LEGISLATIVE PROPOSAL ON UNEMPLOYED EMPLOYABLE SOUTH AFRICAN NATIONAL DATABASE; SPECIAL PETITIONS: CONSIDERATION; ANNUAL COMMITTEE REPORT: ADOPTION
Chairperson: Mr P A C Hendrikse (ANC)
Documents Handed out:
Summary: Special Petition, Mr O B van Schalkwyk (see Appendix 3)
Summary: Special Petition, Mr D B Brown (see Appendix 1)
Summary: Special Petition, Mrs Botha (see Appendix 2)
Committee Annual Report (see Appendix 4)
The Committee considered special petitions for Mr O B van Schalkwyk (Mr N Clelland), Mrs Botha (Mr F Beukman) and Mr D B Brown (Mr Selfe). Out of the three special petitions considered one petition was rejected and the other two were held in abeyance as the Committee needing additional information. Finally, the Committee adopted its annual report.
Legislative Proposal on Unemployed Employable South African National Database
On this matter the Chair simply indicated that the Department of Labour and the Department of Finance would have to be consulted. This would need to be done to get their input on the matter.
Mr O B van Schalkwyk
Mr N J Clelland (DP) brought the application. The case of Mr van Schalkwyk's involved a customs scandal.
Mr S Phohlela (ANC) told the Committee that the application had been going back and forth for a long period of time. He asked why it had not been approved throughout the years. While he found Mr van Schalkwyk's position unfortunate he could find nothing to warrant the continued consideration of his application. He asked that the application be considered and the matter conclusively discussed in the present meeting, stating that in his own view it would be proper to deny the application.
This proposal was supported by Mr A R Ainslie (ANC) who said he looked for exceptional circumstances when considering an application such as this. Referring to the circumstances around the application, there was no evidence to suggest that Mr van Schalkwyk had told the full story to the press. Many people, including investigators, who had spoken to Mr van Schalkwyk had concluded that his application should not be granted.
Mr Beukman (NNP), who had come to speak in relation to Mrs Botha's special petition, reminded Members that the last time this matter was discussed the Committee called for more information, specifically relating to why Mr van Schalkwyk had taken so long to bring his claim. Mr van Schalkwyk has now shown why his application had come so late and on this ground Mr Beukman submitted that the application should not be dismissed.
Mr Clelland explained that Mr van Schalkwyk based his application on the fact that he was a whistle blower and not involved in the customs scam. Mr van Schalkwyk had provided newspaper clippings that demonstrated that he was not involved but instead uncovered the "scam".
Essentially the Committee is faced with having to make a decision based on one man's word. Testimony to his innocence was the fact that his status had been changed from dismissed for conduct to early retirement for health reasons.
Mr Mshudulu (ANC) said that the Committee's approach to matters such as those presently being considered was in line with what was expected. The Committee exercised a healthy degree of leniency and was very accommodating. When making such an application, one needed to show that your circumstances were exceptional and motivate why you were eligible to receive the benefits under such a special petition. In considering this application and others such as this the Committee had taken additional steps in order to better consider the application. This showed that the Committee was not attempting to shoot down any applications.
Mr Mshudulu also said that the Committee in agreeing to enter into a process did not agree to make a decision that would ultimately embarrass it. And the longer the matter was drawn out, the more frustrated Mr van Schalkwyk would become.
The motion to set aside the application was proposed and seconded. The Chair asked the Committee to vote on the matter. It was decided that the application should be denied.
Mr D B Brown
In the summary of Mr Brown's application it could be seen that despite the Committee consistent correspondence to the Department of Defence their reply was poor. Mr Hendrikse asked for the Committee's permission to write to the Minster of Defence to complain of what he described as an obvious "fobbing off" of the Committee. The Committee agreed and granted the Chair permission to write to the Minister in this regard.
Mr Ainslie said he could not find any extraneous circumstances that applied to Mr Brown. There were thousands of people on military pensions, what circumstances applied only to him and separated Mr Brown from all these other individuals?
Mr Selfe (DP) explained that not all military pensioners were injured as Mr Brown was. What aggravated Mr Brown's case were the circumstances under which he was injured. He was injured in a car accident while driving a military truck during his period of compulsory military service. What added to this was the fact that Mr Brown was driving the truck with only two days of driving training under his belt. Mr Selfe submitted that this pointed to a degree of negligence on the part of the military.
Mr H J Bekker (IFP) asked what the position would have been had Mr Brown been an independent contractor when he was driving the truck. He asked whether the accident would have been covered by third party insurance.
Mr Selfe reminded the Committee that he was not a lawyer and that his knowledge of the insurance industry was not extensive. However, he was under the impression that if Mr Brown were an independent contractor then he would have been covered by third party insurance. He also reminded the Committee however that the Military was not subject to third party insurance.
Mr P A Gerber (ANC) asked whether Mr Brown was in possession of an "R" license. An "R" license is a drivers license issued by the military. If Mr Brown was not in possession of an "R" license then it would have contributed more to the view that there was negligence on the part of the military.
Mr Selfe said that he did not know.
The Chairperson then asked whether Mr Brown had tried any other legal mechanism such as bringing his claim directly against the military.
Mr Selfe reminded that the prescription period for bringing actions against the military was only six months. He also reminded the Committee that Mr Brown was in a coma for a considerable period. He also had to learn to read again. In light of this it was clear that Mr Brown was not physically or mentally capable of bringing such an action at the time.
Mr Ainslie thought the fact that Mr Brown was injured during his period of service lent no weight to his case. He submitted that this still did not separate Mr Brown's case from the thousands of other people who also found themselves in an unfortunate position. Could he not have refused to drive the truck? Could he not have told his superiors that he was incapable and had not received enough training? Had he refused he would have had all his faculties. The Committee laughed at Mr Ainslie's comment, but he reiterated his seriousness, saying that there were people who had said no to unreasonable requests in a military context.
Mr Gerber responded that Mr Ainslie could not make such a comment, as it was not always easy to say no in the military context. He explained that a lot of factors would have to be taken into consideration, including the precise context and attitude with which the order was given. The present discussion was a sensitive one, which had been debated for a long time.
Mr Selfe explained why the application had only been brought so many years after the incident. In the year 1995, Mr Brown's pension would have been sufficient. The amount he was receiving was however eroded by the year 2000. In the past Mr Brown's own pension was supplemented by his wife's income. This was no longer the case as Mr Brown was now divorced. At present Mr Brown's income was being supplemented by his mother's income. His mother was however fast approaching retirement age herself.
Mr Mshudulu referred back to Mr Ainslie's point as to whether Mr Brown could have refused to operate the truck. However, the Committee needed to consider what Mr Brown was obliged to do at the time. Secondly, what was expected within the law? Thirdly, what was expected of the military at the time? This information was vital if the Committee was to correctly interpret the facts. This was important because many things would motivate and mitigate in either direction. In this regard Mr Mshudulu said it would be helpful to speak to some people in the Department of Defence to see what the position was like at the time.
The Chairperson suggested that in light of the new inquiry he would write to the Department of Defence and ask for additional information on these matters, especially the circumstances around Mr Brown's discharge. The Committee was in agreement.
Mr L M Kgwele (ANC) took this opportunity to remind the Committee that it was not to lose sight of the objects of such work. The Committee should essentially ask what it was trying to address. Mr Kgwele made an example of Mr Brown's case. Mr Brown received a pension but it was not adequate any longer due to inflation. The question was therefore whether the Committee was trying to address inflation. These special petitions could also be brought in relation to matters other than unfortunate circumstances brought about by the State.
Mr Ainslie told the Committee that what weighed heaviest with him was the amount of work previously done in relation to this specific claim. Mrs Botha's claim had been rejected by the NCOP before. In light of strong evidence mitigating to the contrary he would be inclined simply to confirm the position held by the NCOP.
Mr Phohlela directed the Committee's attention to the minutes of the previous occasion on which Mrs Botha's application was considered. In that meeting the Committee had decided that it needed to see what position Mrs Brown would have been in had she eligible to receive a proper pension. Mr Phohlela recalled that this information had not been received and submitted that the Committee should not dismiss the application until this information had been obtained.
The Chair agreed and resolved to request the information from the Department of Finance before proceeding with the further consideration of Mrs Botha's application.
Committee Annual Report
One issue that was raised was the fact that the Committee was not gender representative. Mr Mshudulu submitted that the Committee was not gender representative at all. This would be problematic not for the Committee but for others examining the work of the Committee. When considering matters the Committee approached everything from a gender-neutral perspective. Also when dealing with issues that might affect women specifically the Committee did try to be as sensitive as possible. Mr Mshudulu submitted that this degree of care might not be enough for those on the outside looking in.
The Chair agreed but added that this was a matter to be discussed amongst parties and not one to be taken up with Parliament. The representivity of the Committee was determined by the Members which each party elected to send to that Committee.
The report was adopted and the meeting was adjourned.
STANDING COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE
PROPOSALS AND SPECIAL PETITIONS
SUMMARY: SPECIAL PETITION: Mr B D BROWN:
1. Sponsor (Mr J Selfe) submitted petition to Speaker on 26 July 2000.
2. Petition screened by law advisers for constitutionality and meeting requirements of a "special petition" in terms of Rules - 18 August 2000
3. Petition approved by Speaker for tabling and referral to this Committee - 22 August 2000.
4. Petition referred to Committee on 30 August 2000.
· Mr Brown was doing compulsory military service in 1985.
· He sustained head injuries, leaving him in a coma for 6 weeks.
· The effect of the injuries: Paralysis on right side, psychological problems and serious headaches daily. Had to relearn to read, write and walk.
· Cannot hold down position - has tried several times, with no success.
· Unable to study or qualify for a career.
· Receives a military pension - insufficient to make ends meet.
· Aged mother assisting him financially, but is battling to pay back loans from ABSA Bank as a result of such assistance to petitioner. Affected her health adversely.
· Monthly expenses of Mr Brown: R4 220-00, including accommodation, medical aid, Old Mutual policies, school fees, etc.
· Petition: Increment in pension.
· Chairperson wrote to Ministry of Defence on 28 September 2000 to ascertain whether Department of Defence was in a position to augment petitioner's pension. (Letter not on record)
· Ministry replied on 13 October 2000 saying that it would investigate the matter and would contact Chair as soon as the response became available.
· Chair wrote to Ministry again on 26 October 2001, demanding a response by 29 October 2001. Letter faxed three times to Ministry. No response was received.
· Chair wrote to Ministry again on 9 November 2001, indicating that they would be required to appear before the Committee if no response was received by 12 November 2001.
· Response from Ministry of Defence received on 9 November 2001, indicating that the Department of Defence could not assist Mr Brown, and referring the Committee to the National Treasury.
STANDING COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE
PROPOSALS AND SPECIAL PETITIONS
SUMMARY: SPECIAL PETITION: Mrs M BOTHA:
1. Sponsor (Mr F Beukman) resubmitted petition to Speaker on 28 August 2000.
2. The petition (1995) had been supported by the previous Committee, the consequential legislation had been agreed to by the NA, but turned down by the NCOP. The reasons for this included the fact that the NCOP had never had provisions in its Rules for a committee dealing with special petitions, and when the National Treasury appeared before a review committee of the NCOP to decide on the petition, the committee members were informed that the National Treasury would not support the petition. Due to the general elections of 1999, the matter was not pursued and the legislation lapsed. Hence the new petition.
3. Petition screened by law advisers for constitutionality and meeting the requirements of a "special petition" in terms of Rules - 13 September 2001.
4. Documents relating to Speaker's approval of petition and referral to this Committee not in Committee Secretary's records.
5. Mrs Botha appeared before the Committee on 17 October 2001, together with the sponsor, to address the Committee and answer questions from members.
· Mrs M Botha started her nursing career in 1965, at the age of 23.
· She started working in "crisis areas" in 1964.
· She passed exams on nursing mental patients in 1965, with honours.
· In 1966 she received the Gold Medal from the SA Nursing Council for exceptional service.
· From 1967 onwards she assisted in lecturing nurses on psychiatry.
· In 1974 She was appointed Senior Matron: Out-patients and Community Services, at Valkenburg Hospital.
· In 1976 she did community nursing in the South Western Districts.
· In 1979 she returned to Valkenburg Hospital.
· According to her immediate supervisor Mrs Botha worked exceptionally long hours, was unusually productive, was well-liked by doctors, colleagues and patients alike. She took over responsibilities of staff on leave, stood in for her the Matron on several occasions, but also for other nurses and staff in clerical positions. Mrs Botha never left the office without ensuring that all work had been completed perfectly. Patients trusted her totally. She was able to persuade non-returning outpatients to come back for treatment, when no-one else was able to do so. Doctors enjoyed working with her when doing community work. Her workload was described as exceptional. She used her initiative to make the running of the administration office easier, etc.
· She took vacation leave from 24-11-80 to 3-01-81, and again from 1-05-81 to 31-08-81, when exhausted. She was treated for depression.
· At the end of 1981 Mrs Botha's supervisor noted that she had applied for early retirement on medical grounds. The rules provided that she would have to appear before a medical board, to make a decision whether she was medically unfit to work. Her application to appear before such a board was turned down, as one of the doctors whom she had to consult at the time was of the opinion that her condition was not that serious. Her application for early retirement was turned down.
· She started treatment with Dr Ben Wolpowitz, whom she trusted.
· She was granted sick leave from 13-04-82 to 14-05-82, and again from 17-05-82 to August 1982.
· She consulted doctors about her arthritis in May and June 1982.
· In 1982 her supervisor reported that although Mrs Botha was exhausted, depressed and in constant pain, her productivity never suffered.
· On 15 May 1982 she had an interview with Dr J Garrett, Medical Superintendent of Valkenburg Hospital, about her application for early retirement. He said that she had been granted a merit award, and should therefore not even mention that she was ill. She felt very aggrieved at this treatment.
· She was granted vacation leave from 17-05-82 to 31-08-82.
· At this stage she was taking sick leave more often, due to various physical complaints, as well as exhaustion and depression.
· She was told to leave the treatment of the doctor whom she trusted and to go to a Dr Zabouw.
· In 1982 she was allowed to consult the District Surgeon, the Head of Psychiatry at Tygerberg Hospital, with a view to possibly being allowed to appear before a medical board regarding her application for early retirement. One of the doctors found that she was suffering from a treatable condition, and that she should be hospitalised. Mrs Botha was not willing to be hospitalised, as she was already receiving treatment from a doctor whom she trusted (Dr Thomley). Her refusal to be hospitalised was recorded, however.
· In July 1982 she became suicidal. At this stage she was treated by a private psychiatrist, Dr Fay Thomley, who she said saved her life.
· Dr Garret wrote to her in July 1982 that her application for early retirement on medical grounds had been unsuccessful.
· She tried to work again, and moved into the nurses' home to avoid travelling the distance to and from work.
· In October 1982 Dr Garret wrote to say that the heads of the Health Department had indicated that her work performance was poor. She was also refused permission to stand in for the matron, etc. Mrs Botha felt that she was being victimised to an extent that working in that atmosphere had become intolerable. She was certain that her previous supervisors would have assisted her. The problem was that they had gone on early retirement themselves.
· In October 1982 a new dispensation for nursing staff was introduced, according to which Mrs Botha did not qualify for the new salary structure. She sought legal advice, which led to Mrs Botha's salary being adjusted.
· On 31 May 1983 Mrs Botha handed in her resignation, without mentioning her poor health as the reason for doing so.
7. Mrs Botha's husband took early retirement due to ill health (1976, with a monthly pension of R450). He now earns R4 000.
8. Mrs Botha has had surgery to relieve her physical problems.
9. She worked as nursing sister for three years at a retirement home, but had to stop three years ago due to her ill health. She did not receive a pension.
10. Her accommodation in the home costs her R1 400 per month.
11. Her income is derived from interest on an investment of R20 000.
12. In terms of the present policy for early retirement, instituted in 1993, her application for early retirement would very likely have been successful.
13. Mrs Botha is convinced that she was discriminated against when she applied for such retirement - other people's applications had been successful.
14. She had worked as nursing sister for the Department of Health for 27 years.
EXECUTIVE SUMMARY: PETITION BY MR. VAN SCHALKWYK
· Mr van Schalkwyk (hereinafter the petitioner) was employed by the
Department of Finance (hereinafter the Department) in their Customs and
Excise Branch. He started working in the Department on 1 November
1979 as a Customs and Excise officer at the office of the Controller of
Customs and Excise in Durban.
· According to the Department, the petitioner was suspected of being involved in irregularities at the office in early 1982. At that stage, all salary increases, as well as the benefits of an improved occupational dispensation, were withheld from the petitioner pending the outcome of the court case. However, when he appeared in court regarding these irregularities in June 1984 he was found not to have been involved. All outstanding benefits that were withheld from him were paid Out to him at this stage.
After the court case he was transferred to the office of the Controller of Customs and Excise in Pretoria on 1 April 1986.
· During his period of service, the petitioner was a contributing member of the Government Service Pension Fund. However, his services were terminated on 17 September 1987 on grounds of misconduct in terms of section 16(5)(a)(i) of the Public Service Act1. The charge levelled against the petitioner was that he had stayed away from work for more than a month without informing his employer. At the time of termination of his services, the petitioner only had 7,877 years pensionable service, and not the required 10 years. This meant he did not qualify for a monthly civil pension. In fact, he only became entitled to a single pension benefit amounting to R6 965 27 after a salary overpayment of R1 542 29 was deducted. The petitioner has thus since November 1988 only received a
· The petitioner alleges that extreme pressure was exerted upon him to leave the Department as a result of his disclosure of fraudulent schemes. This pressure caused him severe stress and residual problems of a phsycological nature. During 1985, various psychiatric reports diagnosed him with paranoid scizophrenia.
· During May 1989 the petitioner started working in the Department of Home Affairs. However, his post was abolished. His services were thus terminated on 30 June 1991. During this period the petitioner was a contributing member of the Temporary Employees Pension Fund. Once again he had less than 10 years' service at the time of termination of his services. He was therefore only entitled to a single pension benefit of R3 961 21 and no monthly civil pension.
· At present the petitioner receives a disability pension of R570. 00 per month.
The legal problem
According to correspondence by the Department of Finance: Pensions Administration, the regulations of the Pension Funds that the petitioner was a member of do not make provision for the payment of a monthly pension if a person has less than 10 years pensionable service at the time of termination of service. Furthermore, no statutory provision or discretionary power exists whereby a pension can be awarded to him. Any benefits awarded to him would therefore have to be paid out of the National Revenue Fund. He would also become entitled to the increases which are awarded periodically to civil pensioners.
If the petitioner should be awarded a special pension out of the National Revenue Fund, other former members of the Government pension fund who find themselves in the same financial position would justifiably be in a position to claim similar treatment. This, according to the Department, would place and unbearable additional financial burden on the National Revenue Fund.
The recourse sought by the petitioner
Since the date of his discharge from the Department of Finance, the petitioner has made numerous attempts to improve his position regarding his pension. He petitioned various people for an improved pension and membership of a medical aid fund. These include the President, the Minister of Finance, the Director-General of the Department of Finance, the Ombudsman and certain members of Parliament.
According to correspondence received from Mr. Alec Erwin, the then Deputy Minister of Finance2, the Ombudsman had instituted a full-scale investigation into the position of the petitioner and the allegations of corruption. On both counts the Ombudsman came to the conclusion that the Department acted fairly and justly. He thus exonerated the Department of the allegations.
Petition no 3 of 1995
On 17 February 1995 Mr. C. Eglin (Member of Parliament) presented a petition to Parliament on behalf of the petitioner. The petitioner requested Parliament to grant him the pension which he would have received had he not been dismissed.
Subsequently, on 29 May 1996, the Department of Finance submitted documentation to the Directorate Pensions Administration to the effect that the reason for terminating the services of the petitioner should be changed to ill health in terms of section 17(2)(a) of the Public Service Act. Pensions Administration then recalculated the benefit already paid to the petitioner. The balance of
R17 404 01 was paid into his bank account on 22 August 1996.
The Portfolio Committee on Private Members' Legislative Proposals and Special Petitions considered this petition on 16 October 1996. The Committee reported that it was unable to recommend that the petitioner's request be entertained.
The current petition
Mr. van Schalkwyk submitted a further special petition to Parliament through Mr. NJ. Clelland. (Member of Parliament).
The recourse sought in his petition is to have a Special Government Pension awarded to him which he would have received if he had not been dismissed.
The rationale behind the request advanced by Mr. van Schalkwyk is that he was forced out of the then Department of Finance: Customs and Excise by the actions of senior officials. This allegedly happened because he disclosed certain fraudulent schemes (fraud and evasion of customs regulations) within the Department. He is thus of the opinion that he should receive equal treatment as freedom fighters who carried on a resistance campaign against the previous Government, who received special pensions from the Government.
· Due to the complex nature of the case, it would be advisable for the
Committee on Private Members' Legislative Proposals and Special
Petitions to ascertain the reasons why the previous petition (No 3 of 1995)
were not recommended by the Committee.
· Further, from the documentation submitted to the committee, it does not appear as if there had been any change in the circumstances surrounding Mr. van Schalkwyk's case. There has thus been no change in the merit of the case.
· Should the committee rule in favour of the petitioner, this will set a precedent and may render Parliament vulnerable to an influx of petitions by people with similar circumstances.
· Should the committee not rule in favour of the petitioner, the Rules contain no provision which will prohibit him from submitting another petition through a different Member of Parliament. Given the amount of time that has already been spent on this petition, as well as the committee's workload, it would be advisable for the committee to bring closure to the issue.
· Various documents submitted by Mr. OB. van Schalkwyk, the Department of Finance: Pensions Administration, Medical practitioners etc.
1Act 111 of 1984 as amended
2 Dated 08 May 1995
STANDING COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS
1. Report of the Standing Committee on Private Members' Legislative Proposals and Special Petitions, dated 14 November 2001, as follows:
1. Committee activities
i. This Committee met eight times, and had one set of public hearing during 2001.
ii. The Committee finalised three private members' legislative proposals, and is considering a fourth such proposal.
iii. Two private members' legislative proposals have been withdrawn.
iv. The Committee finalised its deliberations on two special petitions, and is in the process of considering three others.
v. The Committee is planning a joint workshop to empower its members to deal more efficiently and effectively with its work. At this stage the only guidelines the Committee has are the Rules of the National Assembly, which do not give any clear indication of standards to be applied when decisions need to be made regarding special petitions, for example. The Committee is at present pursuing all avenues to ensuring that its members receive optimal training and guidance in this respect, also from foreign parliaments.
2. Administrative arrangements
i. Providing the members with copies of documents remains a problem. The few copying machines at the Committee Section are in constant use, and often out of order. The so-called 'big copying machine" is not on the parliamentary premises anymore but at 18 St Johns Street. Arrangements have been made to copy documents at other machines in Parliament such as at the library, but those machines are not efficient enough to service Committee's needs effectively. Alternative copying arrangements are vague, cumbersome and impractical.
ii. Another major problem this Committee has experienced over the past few years is the high turnover of support staff in the Committee Section. This affects the Committee's ability to keep good record of its documents, and makes it difficult to track its activities over a period of time.
iii. The Committee therefore recommends that in future Committee Chairpersons be consulted when rotation of staff is to be considered, to ensure the most effective support to parliamentary committees.
3. Parliamentary programme
i. Several of the members of this Committee serve in a number of parliamentary committees, with the result that meetings have to be postponed to ensure that its meetings are quorate. Also, the Committee has found itself in a position where it has made arrangements for a meeting, only to find that the parliamentary programme has been amended and the Committee is not able to meet at its pre-arranged time. This results in meetings being cancelled, sometimes at the last minute, resulting in other administrative difficulties, such as informing members of such changes in arrangements, and finding a suitable venue for meetings at a later date and time, especially as there are so few committee rooms at parliament.
ii. Whereas the Committee realises that finding a solution to this vexing problem is no easy matter, it requests the programming committee to inform Chairpersons and Committee Secretaries as soon as possible when such changes will take place in order to minimise the effect of such changes in the programme, and to enable the support staff to make suitable alternative arrangements.
Report to be considered.
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