Committee's 5-Year Plan adoption; petition guidelines; Mentor proposals to amend Human Rights Commission Act

Committee: Private Members' Legislative Proposals and Special Petitions

Chairperson: Mr S Thobejane (ANC)

Date of Meeting: 11 Mar 2010

Summary

The Chairperson noted that some Members of this Committee had never attended a single meeting, and suggested that their political parties should look seriously into whether they should not be replaced, as their failure to attend had serious implications on the Committee achieving a quorum. In view of the proposed change to the work of the Committee, it must be taken more seriously and far more concerted effort would be required of Members.

The Committee considered its five-year Strategic Plan. The Committee was looking to amending the Rules of Parliament to cater for a change of name of this Committee, and a change in the scope of work, to encompass the hearing of all petitions. It would be embarking on an awareness campaign comprising advertisements in national and local newspapers, distribution of pamphlets, recordings by the Chairperson advising people of their rights, to be aired on radio, encouraging them to petition Parliament rather than resort to violent measures when they thought the systems had failed them, and generally enhancing the public participation role through this Committee. A Bill would be drafted to strengthen the systems around petitions, based on successful petitions processes in some provinces. Proposed guidelines for the petitions process were tabled by the Research Unit, which envisaged that a maximum of two months would be taken for consideration of a petition, and which also noted that advisors could contact petitioners directly if their petitions were misdirected, or where all requirements had not been fulfilled. Some members raised concerns that this process might unduly delay and therefore frustrate petitioners more, but others noted the necessity of Parliament becoming involved in the public participation, and felt that the time periods were quite tight.

Members noted that there were three Private Members’ legislative proposals that, although tabled in November 2008, in the Third Parliament, could not be considered. They now fell away, since the petitioners were no longer Members.

Finally, the Legal Advisors noted that the proposal submitted by Hon P Mentor for amendment of the Human Rights Commission Act had some fundamental flaws, in that it sought to make South African legislation applicable to other countries and to give powers to a South African body that were not possible to enforce. Parliament could not seek to pass laws having extra-territorial application. It was resolved that the matter would be further discussed, but further consultation and research was needed.



Minutes

Chairperson’s remarks about procedural aspects
The Chairperson announced that the Committee was faced with enormous work, including finding a way to close the gaps in communication that were causing public frustration. Parliament’s legal unit would be developing and presenting a motivation to the Rules Committee, so that this Committee could consider not only special petitions, but also ordinary petitions, because it was through the petitions that the public could be lobbied, and would see that Parliament provided a forum for complaints, so that they could obtain satisfaction on their grievances against government. The Committee would be able to have public hearings with communities and the affected departments and municipalities, if required.

The Chairperson expressed his disquiet that some Members of this Committee had not yet attended a single meeting. He thought their political parties should be sensitised to that, or asked to replace them, because this had severe implications on the Committee achieving a quorum.

Committee’s Five-Year Strategic Plan
Ms Salome Meso, Committee Researcher, presented the Committee’s strategic plan.

She noted the objectives identified in that strategic plan. Firstly, the mandate of this Committee must be distinguished from that of the Select Committee on Petitions and Members’ Legislative Proposals, and the programmes of both Committees should be aligned. There should be development of a deeper understanding of the tools available to Members to assist them in doing their work. Discussions on the marketing and community awareness strategy would be important.

The Committee had in the past been viewed as a ‘soft’ parliamentary committee. The Committee, with the aim of changing the image of the Committee, was looking to amending the rules, the name of the Committee, and the scope of its work. There were draft guidelines on the processes to be followed for petitions by the Committee, and the Committee would later look at the issue of the Petitions Act.

As most citizens were unaware of the existence of this Committee and did not know where to turn if they felt that all systems in government had failed them, it was decided that research should be done on a marketing strategy for the Committee. The Research Unit had been able to contact the Communications Section, who would be making a presentation to the Committee in the next meeting, noting how the plan to be presented would be incorporated in the budget of the Committee.

It was suggested that pamphlets in all official languages would be distributed in all community centres, and through the national and local newspapers, and that there should also be national debates driven by the Office dealing with Public Education, and a campaign of road shows to ensure that communities were aware of the Committee. The Chairperson of the Committee would record statements for broadcast by radio stations, so that people should understand that instead of resorting to violent measures when the systems failed, they should rather use their right to petition Parliament. This would also enhance the public participation role of Parliament in communities.

On the issue of the Petitions Act, Ms Meso advised that she would be working with Parliamentary Legal Advisor Mr Mukesh Vassen. The three provinces where the Petitions Act was more actively applied, and where people were aware of the systems and how the processes unfolded, were Limpopo, KwaZulu-Natal and Gauteng. The Committee would be focusing on those, but would also look at other provinces where the Act was not being applied, although it was in place. A Bill would be introduced and prioritised in the next term of Parliament.

Ms Meso noted that Limpopo had better models than the other provinces in terms of public participation, and followed more of a community driven process. The launch and processes followed there would ideally be carried over into the new Bill. 

Ms Meso noted that there were three legislative proposals outstanding from the previous parliamentary term, as follows:
a) Hon H A Bekker’s legislative proposal to amend the Protection of Constitutional Democracy against Terrorist and Related Activities Act No. 33 of 2004
b) Hon P A Gerber’s legislative proposal to repeal the Diocesan College Council, Rondebosch Act No 11 of 1891 (Cape of Good Hope)
c) Hon P A Gerber’s legislative proposal to repeal the Natal Ecclesiastical Properties and Trust Act No. 9 of 1919

These legislative proposals had been referred to the Committee in November 2008. All three, however, fell away since they had not been dealt with by the Third Parliament, and since the proposers were no longer Members of the Fourth Parliament they could not be revived as Members’ proposals.

Ms Meso took Members through the Five Year Programme of Action in detail. She noted that the planning for the International Study Tour was going ahead and she would be able to report back to Members on the outcomes of each particular country. The international study tour was expected to take place in the third term. The United Kingdom could not accommodate the Committee because of the way in which its Parliament was structured; it had dissolved its committees in preparation for elections. Malawi did not have a similar committee. Alternative consideration was being given to Sweden and Switzerland. The planning for the videoconference with the Canadian counterparts was also going ahead, in order to gather information around that country’s petition system.

The priority for the second term was the awareness programme, the media strategy and also all the debates that would be brought to Parliament around public participation in the parliamentary processes. This Committee would be at the forefront of that process, by ensuring that people were aware of their right to petition Parliament. Should the international study tour not take place the Committee would prioritise the marketing strategy of the Committee and the media campaign.

Discussion
Mr A Ainslie (ANC) noted the legislative proposals that were still pending from the previous Parliament and the reasons given that they could not be proceeded with. He asked what had happened to the previous petitions, in particular the Kellerman petition, where the House, on recommendation of the previous Committee, had adopted a resolution that Mrs Kellerman be awarded the pension. However, the then-Minister of Finance had felt that this was problematic. Mr Ainslie believed that, despite Parliament’s decision to award the pension, it was never in fact awarded. He asked if there were any other outstanding petitions or responses.

The Chairperson asked the Mr Vassen and Ms Meso to check on that.

Ms Meso said that she would look into the outcome of the Kellerman petition. She was not aware of any other petitions still outstanding. She would go through all the records to see which of those were adopted, and what had happened in regard to implementation, and would report back to Members.

Mr N Fihla (ANC) asked about the financial responsibility of petitioners.

The Chairperson clarified that once the Committee dealt with the issue of petitioners this became the responsibility of Parliament.


Ms P Mocumi (ANC) pointed out a typographical error on the date in regard to Mr Gerber’s legislative proposal to repeal the Natal Ecclesiastical Properties and Trust Act.

Ms J Sosibo (ANC) asked for clarity on the phrase ‘soft parliamentary committee’.

The Chairperson clarified that this term had been used in the strategy session to imply that the Committee had not been taken seriously.

Mr Pretorius asked whether the Australian Parliament had been contacted, in relation to the Study Tour, as it was a very efficient Parliament.

The Chairperson replied that nothing had been heard from this Parliament, despite contact.

Mr Pretorius said he mentioned this Parliament because the systems were similar to the South African system.

The Chairperson said all the countries suggested had similar parliaments.

The Strategic Plan was adopted

Proposed guidelines for the Petitions Process
Ms Meso briefed the Committee on the proposed guidelines for the petitions process.

Citizens in South Africa were given the opportunity to engage with Members of Parliament (MPs), which was a platform for them to practice their constitutional right of raising matters of concern to the nation. People could petition Parliament as part of public participation in the Legislative process, and that platform was adopted as a way of ensuring that members of the public would be able to seek redress for any of their grievances in a peaceful manner.

Ms Meso went through the time frames in detail.

She noted that a maximum of two months should be taken to complete a petition, depending on the complexity of the matter(s) raised. After completion, the Secretary would prepare a report for the Committee to adopt, and once adopted by the Committee would be tabled and presented in the House. The Committee would determine whether the report should be debated or just presented in the House.

The Chairman said the work of this Committee was going to become far more complex, especially in view of the new time frames, and noted that this would require full commitment from Members. Political parties may wish to note that the Members’ work would be far more time-consuming.

Discussion
Ms A Dreyer (DA) raised concerns that the Committee was overly bureaucratising the whole process, which would delay it and worsen the frustration of the people who often already had complaints regarding service delivery. The groups who approached Parliament with protests, such as pressure groups, labour unions, or groups such as the Treatment Action Campaign, handed over petitions that went directly to the relevant departments. She was not sure that this new system would not delay the process. Ultimately the grievance must be dealt with by the relevant department’s executive, who had the executive powers to do something. She was worried that this process would raise expectations, but complicate the process and lead to further frustrations.

The Chairperson responded that that was a genuine concern. However, the law required that both sides be heard before giving judgment. People could not be denied the opportunity to lobby Parliament. The idea was to give them a fair hearing. The interventions would assist in achieving stability in the country.  Parliament should act on behalf of the people who were frustrated, and currently there was no tool to give that authority.

Mr Fihla added that the people who currently lobbied Parliament tended to be only from Cape Town, and not from the other provinces. There must be room for those who were unable to come to Cape Town but who had genuine complaints.

Mr P Pretorius (DA) pointed out an error in the time frames – the “minimum” of two months to complete a petition should read a “maximum” of two months.

The Chairperson said the guidelines and legislation would be very clear, and ensure that there was not unnecessary delay, because people petitioned precisely because they were disillusioned, which was why a mechanism was needed for a quick response.

Mr Ainslie understood the concerns of over-bureaucratising, but said the time frames were quite impressive. Some cases were very complex and could not be rushed through.

Ms Dreyer noted that the Committee would consider the petition and then decide on its merit before taking it further. She said that the Committee must be very sure of its mandate. She felt all petitions would need to be addressed, and that the Committee could not accept some and reject others.

The Chairperson clarified that the Committee would have a team of Legal Advisors and Researchers to look at the content, and communicate with the petitioner in cases where perhaps it would be more appropriate for that person to refer to another department or entity or body, and advise accordingly.

Mr Pretorius added that a petition was only considered once all other avenues had been exhausted. He was in agreement with the time frames but said that the Researchers might want evidence from departments that the person lodging the petition had actually physically been there to seek assistance, and this might raise the time frames.

Mr Vassen brought the Committee’s attention to Rule 201, which said that the various Portfolio Committees had oversight over departments, and said that somehow there must be consultation with those functions.

The Chairperson reminded Members that this Committee would need to cooperate with other committees. Members should also understand that the process would require effort, to produce a final product that would be seen as addressing the need that had so far been missing in South Africa. The reason that the President had set up the call centre was that Parliament had not had a tool in the past to deal with these matters, which was clearly a situation that left much to be desired.

Mentor Proposals: Amendments to the Human Rights Commission Act No. 54 of 1994
The Chairperson asked the Legal Advisor to speak to some problematic elements of the proposal by Hon Mentor to amend the Human Rights Commission Act.

Mr Vassen advised that the fundamental problem with the proposal was it purported to require national legislation to impose international obligations. Although international law recognised treaties, they would apply under either a mono or dual system. Even in a dual system, a country would have to pass legislation that dealt with the rights before they became enforceable under that country’s legal system. It was not possible for South Africa to pass a law to give international power to local South African bodies, because it was simply not enforceable. There was not sufficient research into the matter, and far more consultation was needed. Legal opinions had been given by the Human Rights Commission and the Commission on Gender Equality, and the Minister of Justice and Constitutional Development was also of the view that this proposal would not pass Constitutional muster. Parliament could not pass a law that purported to have extra-territorial application.

The Chairperson noted that it would be necessary to have agreement with other countries on matters.

The matter would be further considered on Friday.

The meeting was adjourned.