MP Mentor legislative proposal to amend Human Rights Commission Act & Commission on Gender Equality Act; MP de Lille & MP Selfe legislative proposals: Presidential Pardons; MP Pretorius proposal to amend Land and Agricultural Development Bank Act

Private Members' Legislative Proposals and Special Petitions

25 March 2010
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee considered private legislative proposals submitted by Members of Parliament Ms M Mentor, Ms P de Lille, Mr J Selfe and Mr P Pretorius.

Ms M Mentor had previously submitted two proposals that had a similar motivation. She proposed that amendments be effected to amend the Human Rights Commission Act, and to amend the Commission on Gender Equality Act, to enable each of these bodies to actively champion the gender and human rights of all South Africans whenever such rights were violated, both in and outside the Republic of South Africa. The Committee believed that neither of the proposals was feasible as they sought to bestow extra-territorial rights on the South African Human Rights Commission and the Commission for Gender Equality. Parliament’s legislative authority was limited to passing legislation that would be applicable within the Republic of South Africa, and it could not pass legislation that purported to bind other states.

Ms P de Lille had submitted a legislative proposal to amend the Constitution by repealing Section 84(2)(j), which gave the President the power to pardon individuals. Mr J Selfe had proposed prescribing and regulating the process by which the President considered applications for Presidential pardons in terms of Section 84(2)(j) of the Constitution, by setting up a framework in terms of which the President must obtain advice from the Minister of Justice and Constitutional Development, and advise the victims and the public timeously of any pardon(s). He had submitted that although this not restrict the right of the President to pardon, it sought to ensure that the power was exercised rationally and consistently. Members differed in their opinions of whether the proposals should be referred to the Constitutional Review Committee or rejected outright. There was not general support for Ms de Lille’s proposal. The DA indicated that although it accepted the principles behind the petitions, it could not support them because of the Constitutional problems. It was suggested that the Portfolio Committee on Justice and Constitutional Development be given until 23 April for its response, before making a final decision on the proposals.

Mr P Pretorius submitted a legislative proposal to amend the Land and Development Bank Act (the Act), following difficulties with the vague wording of that Act that had caused difficulties to the portfolio committees dealing with finance and agriculture the previous year. The object of his proposal was to amend the Act to allow the portfolio committee exercising oversight over Land Bank to play a meaningful role in the process of selecting candidates for appointment to the Land Bank Board. Currently the Minister had the sole power to appoint directors of the Land Bank. The legislative proposal would require the applications to be forwarded to the Portfolio Committee, who should then decide who to interview, hold the interviews and compile a short list, to be approved by the National Assembly, from which the Minister would select the final appointees. The Ministry of Agriculture, Forestry and Fisheries did not oppose the proposal, and conceded that the current situation was not in line with appointment procedures at other entities, but felt that it did not go far to meaningfully transform the sector, or modernise the agriculture industry. The Department of Agriculture, Forestry and Fisheries had already made a decision to amend this Act comprehensively in order to bring it in line with the developmental mandate of the State, and it was not considered worthwhile to undertake piecemeal amendments. It was noted that comments from National Treasury, who exercised oversight over Land Bank and the Act, would be given at a future meeting. The further discussions and a decision would stand over until then.

Members adopted the Committee’s minutes of 12 and 19 March.

Meeting report

Ms M Mentor: Proposal to amend the Human Rights Commission Act, No. 54 of 1994

PMG was unable to attend the first half-hour of the meeting, due to the incorrect starting time being notified, so there is no transcription for that time]

The Committee made the following observations:
1. The proposed amendments to the Human Rights Commission Act were likely to be unconstitutional, as they sought to bestow extra territorial rights on the South African Human Rights Commission, whereas its governing legislation was locally-based.
2. The Committee was of the view that such legislation could not bind other States, as they were sovereign.
3. Section 43 of the Constitution limited Parliament’s legislative authority to pass legislation within the Republic of South Africa.
4. For these reasons, the Committee was of the view that the proposal was not feasible and should not be proceeded with.

Ms M P Mentor proposal to amend the Commission on Gender Equality Act, No. 39 of 1996
The Committee made the following observations:
1. The proposed amendments to the Commission on Gender Equality Act were likely to be unconstitutional, as they sought to bestow extra territorial rights on the Commission for Gender Equality.
2. The Committee was of the view that such legislation would not bind other States, as they were sovereign, 3. Section 43 of the Constitution limited Parliament’s legislative authority to pass legislation within the Republic of South Africa.
4. For these reasons, the Committee was of the view that the proposal was not feasible and should not be proceeded with.

de Lille legislative proposal to repeal Section 84(2)(j) of the Constitution and Selfe legislative proposal to create a framework for Presidential pardons
The Committee, for ease of reference, discussed both the proposals together, as they essentially would achieve the same objective, of restricting the unfettered right of the President to grant pardons in terms of Section 84(2)(j) of the Constitution.

Ms P de Lille had submitted a legislative proposal to amend the Constitution by repealing Section 84(2)(j), which gave the President the power to pardon individuals.

Mr J Selfe had proposed regulating the process by which the President considered applications for Presidential pardons in terms of Section 84(2)(j) of the Constitution, by setting up a framework in terms of which the President must obtain advice from the Minister of Justice and Constitutional Development, and must advise both the victims and the public timeously of any pardons.

Ms J Kilian (COPE) believed there was merit in both presentations, and that both did in fact require an element of constitutional amendment. She proposed, however, that the Committee adopt the principle that the President’s right pardon should not be unfettered. The mandate to consider constitutional reviews was given to the Constitutional Review Committee, and she suggested that both legislative proposals should be sent through to this Committee for further consideration.

Mr P Pretorius (DA) supported Ms Kilian. He said that whilst the DA supported the spirit of the two proposals, it understood the constitutional problems, and agreed that the proposals be forwarded to the Constitutional Review Committee for its consideration.

Mr A Ainslie (ANC) was adamant that Mr Selfe’s proposal also involved a constitutional amendment and thus should never have come to the Committee. The legal advisors from the Presidency and the Department of Justice, as well as a Professor of Constitutional Law from UCT said that the provisions of this proposal probably would not pass constitutional muster, since their effect would be to limit the almost unfettered powers granted to the President by the Constitution, and effectively amounted to an attempt to amend the Constitution “through the back door”.  Mr Selfe seemed to disagree with this view. He proposed that the proposal be rejected.

Mr Ainslie further proposed that Ms de Lille’s proposal also be rejected. She had given her opinion that this subsection was undemocratic. She had said that pardons were not a feature of modern democracies, which was not correct. He was surprised that Ms de Lille had not done more research. Modern democracies all had similar systems and several kings, queens and presidents across the world had the power to pardon. He noted that the concerns of both Ms de Lille and Mr Selfe that the provision offered the risk that the President might abuse his or her powers was not correct, as in the Constitutional Court judgment in the Hugo matter, the Court had made it clear that the President had to act within the terms of the Constitution.

Ms J Sosibo (ANC) concurred with Hon Ainslie that both proposals be rejected. Judging from the input given by the legal advisers in previous meetings, she was not even sure that the proposals should be referred for constitutional review.

Ms Kilian said that while it was useful to consider other countries where the right to pardon existed, there was a stronger need to look carefully at the context and terms of the South African Constitution. South Africa was a young democracy that did not have precedents and guidelines developed from previous years of democracy. The type of Constitutional democracy on which South Africa had embarked was one that had a very strong element of separation of powers. This, to a certain extent, still needed to be developed. Ms de Lille had argued that the Constitution, as presently worded, could result in a situation where the powers to pardon could be abused, and she had argued that such power should not reside in one person who could, in granting a pardon, effectively overturn a lengthy judicial process, careful analysis, and the consideration of the victim’s position that had led to the Court’s decision to convict a person. It was an unfettered power that could be abused.

She disagreed with the call to reject both proposals. Her understanding was this Committee scrutinised legislative proposals with all the background information before deciding whether there was merit in the proposal, and if as legislative proposal was desirable, then it would be referred to the relevant committee to be dealt with there. She noted that it would be very difficult for this Committee to have the knowledge of all the legislative frameworks that were guided by the different ministries.

Ms Kilian counter-proposed that each of the legislative proposals be adopted in principle, but that the correct processes should be established. She supported the principle behind each of the legislative proposals.

Mr Pretorius reiterated that although the DA supported both proposals in principle, it was difficult, in the light of the overwhelming objections to them raised by the State Law Advisors and the Presidency, to adopt them. He did not agree with Mr Ainslie, but could see Ms Kilian’s point. He suggested a compromise, namely that the Committee should state, in its Report, that if felt there could be merit in referring the proposals to the Constitutional Review Committee.

Ms M Mdaka (ANC) aligned herself with Mr Ainslie’s proposal and was adamant there should be no compromise.

Mr N Fihla (ANC) reminded members that in spite of South Africa being a new democracy, a great deal of research was done before and during the Constitutional drafting process. This had included research into what other countries had done, and how to improve on other systems. He felt that even a young democracy was bound to follow what its Constitution dictated.

Mr Ainslie found it very interesting that Ms de Lille had drawn her arguments almost entirely on the fact that the right to pardon had its roots in the British monarchy. There were several examples of pardon being exercised in South Africa’s own indigenous law; King Chaka exercised pardon. South Africa was a modern democracy but the concept pardon went back many hundreds of years in South Africa’s own culture.

Mr Ainslie said that the right to pardon should not be confused with the separation of powers. The President’s powers were not entirely unfettered. He had to act within the Constitution, and if he did not, his actions could be reviewed.

Mr Ainslie again proposed that both proposals be rejected. He said that nothing would prevent Mr Selfe from bringing his proposal to the Constitutional Review Committee.

The Chairperson said that, after having received the presentations from the Honourable Members de Lille and Selfe, the Department of Justice, the Presidency and the Chief State Law Advisor, Ms de Lille had indicated that perhaps she should have taken legal advice; she had effectively conceded that her presentation had not persuaded the Department of Justice and the Chief State Law Advisor. He thought this might have been an indication that she was not pursuing her proposal.

The central question was to deal with the constitutional powers as outlined in section 84(2)(j), which fell within the category of powers given to the Head of State, and when acting in this capacity he would not have to necessarily take any advice or recommendations, although he would have to account to Parliament. The South African people, in deciding who should lead the country, also expressed their confidence that the chosen leader should be able to make exercise his discretion, by making rational decisions, in good faith, on certain matters. These were the matters covered in Section 84(2)(j). That confidence in the President was illustrated by the democratic process of elections.

The Chairperson said that Mr Selfe clearly had done some analytical work. He had argued that the President’s power to pardon should be retained, but suggested that there needed to be some form of accountability or transparency in the process, and a need for a legislative framework that would regulate the power of the President, so that his decision would effectively no longer be one that he exercised at his sole discretion, but on the basis of other advice.

He summarised that the general feeling of Members was that the proposals could not be supported by this Committee, but referred to the relevant Committee for consideration.

Mr Pretorius understood that according to Rule 35(1) the Committee should consult the relevant Committee before taking a decision.

The Chairperson replied that the Constitutional Review Committee had sent correspondence indicating that it was unable to attend the meeting. This Committee had not responded to requests for written submissions.

Mr Pretorius did not think the Committee could take a formal resolution on such important issues, based on hearsay, but should delay a final decision until it at least had something in writing from Department of Justice.

The Chairperson said the proposal was to give those Committees time to respond.

Mr Ainslie was very reluctant to second the proposal. He said that the Committee had already had very high level input from the Department of Justice and from the Presidency. He felt the supporters of Mr Selfe’s proposal were just playing for time in the hope that the Committee would see its way clear to supporting the proposal. However, Mr Pretorius was correct in terms of the rules. If there was no response, then he suggested that the proposal be formally rejected. He believed that this Committee had sufficient on which to base its decision already, but agreed that the Rules be adhered to.

Ms Kilian also agreed that it was important to be procedurally correct. She suggested asking the Chairpersons of the relevant portfolio committees to make a formal determination and report back to this Committee by a particular date, and then to proceed from there.

Mr Fihla understood that this Committee had the right to take decisions and to refer its recommendations to the relevant committees.

The Chairperson read the rule stating that the Committee must consult with the Portfolio Committee within whose portfolio the proposal fell. He proposed that they be given until 23 April to respond.

Ms Mdaka said she saw no need to continue the argument as she understood that both proposals had been rejected.

The Chairperson agreed with her, but said that the Committee, in terms of Rule 235(2), must consult. He noted that the Committee, in writing to the portfolio committee, would stress that Rule and ask that they not delay the process.

Mr Ainslie agreed, but said that advice should be sought from the Legal Advisors and perhaps the Speaker to establish what course of action was open to the Committee if there was no response.

The Chairperson said in the event that no response had been received by the cut-off date of 23 April, the Committee would decide on its course of action.

The Chairperson noted that a final decision would be taken after that date.

Hon P Pretorius legislative Proposal to amend the Land and Development Bank Act
Hon Pretorius briefed the Committee on his legislative proposal to amend the Land and Development Bank Act (the Act).

His proposal stemmed from the problems that the Portfolio Committee on Agriculture, Forestry and Fisheries, and the Portfolio Committee on Finance experienced during their committee sessions in September last year. The Land Bank initially fell under the Department of Agriculture, and reported to the corresponding Portfolio Committee dealing with agricultural matters. However, because of a long history of mismanagement at Land Bank, it was moved to the control of the Department of Finance and Treasury with effect from July 2008.

The object of his proposal was to propose an amendment to the Land and Agricultural Development Bank Act (Act No. 15 of 2002), which governed the activities of Land Bank, so as to allow the parliamentary portfolio committee who was responsible for oversight of Land Bank to play a meaningful role in the process of selecting and proposing candidates for appointment to the Land Bank Board.

The problem area of the Act was Section 4(2), which dealt with the procedure to fill a vacancy on the board. That subsection read: ‘(2) Whenever it is necessary to appoint a member of the Board the Minister must, by notice in the Gazette as well as in other appropriate media and by written invitation to the relevant parliamentary committees, call for the nominations of persons who are not disqualified in terms of Section 10 to serve on the Board”.

That created tremendous problems for the two committees sitting at the time. Section 4(2) was vague and gave no indication of what the role of the committees in the process should be. At most, the committees were required to engage in the process of identifying possible candidates, but it was not clear whether they would do so in a separate process, and then ask the candidates to apply directly to the Minister, or act as a communication channel for receiving applications and passing them on, and it was not clear what “relevant” parliamentary committees actually meant.

The intention of his proposed amendment was to strengthen Parliament’s oversight role by taking absolute power away from the Minister, and empowering the Committee in the process. He proposed that in the event of a vacancy the relevant portfolio committee should be mandated to recommend suitable candidates for approval by the National Assembly and for submission to the Minister. The final power to appoint would remain with the Minister.

The Portfolio Committee process would involve selecting a list of names of candidates that the Committee should interview, from the list of nominations called for and received by the department, as well as any other candidate that the committee may decide on. The Committee should then interview selected candidates. It should agree to a short list of names, to be listed either at random or in the preferred order (consisting of more names than the actual number of vacancies to be filled, in order to allow the Minister the freedom to exercise his/her discretion) an that shortlist would be submitted, by way of a Committee Report, and approved by the National Assembly. After that approval, the Minister should then appoint a board member or members from among the names on the shortlist.

He tabled the wording of his proposed amendment to Section 4(2), as follows:
”(2) Whenever it is necessary to appoint a new member of the Board the Minister must, by notice in the Gazette as well as in other appropriate media, call for the nomination of persons who are not disqualified in terms of section 10 to serve on the Board.”

Additional sub-clauses were then proposed, as follows:
”(3) The Minister must inform the Speaker of the National Assembly in writing of the vacancy, submit all nominations received, and request that the National Assembly presents him or her with a shortlist of candidates to enable the Minister to make an appointment.

(4) The Speaker must refer the request and nominations to the relevant portfolio committee and the committee must thereupon engage in an open and transparent process of selecting candidates for interviewing, interviewing candidates and finalising a shortlist, and submit such shortlist to the National Assembly.

(5) Apart from considering the nominations called for and submitted to it by the Minister the portfolio committee may consider any other nominations.

(6) Once the National Assembly has approved the shortlist the Minister shall be obliged to fill a vacancy from among such names.

(7) If the relevant portfolio committee is of the opinion that no suitable candidates are available from among the nominations submitted to it or otherwise received or considered by it, it must recommend to the National Assembly that fresh nominations be called for, and if approved by the National Assembly the Minister must forthwith call for fresh nominations.

(8) The procedures set out above shall -
(a) not apply in the case of the appointment of an employee of the Bank as an executive director, as envisaged in section 8(3) and (4);
(b) apply in the case of the expiry of the term of office of a Board member as envisaged in section 9(2).”

Mr Pretorius said that all “relevant” committees would include those dealing with matters of finance, Agriculture, Forestry and Fisheries, and Rural Development and Land Reform, as well as the corresponding NCOP Select Committees. However, it would be impractical to involve all those committees, either jointly or individually. The proposal was therefore that the portfolio committee (of the National Assembly) under whose jurisdiction the Land Bank fell should be tasked with the process of nomination of Board members. Ordinarily that would be the Portfolio Committee on Agriculture. However, as previously mentioned, since the Land Bank, from July 2008, had fallen under the control of National Treasury, it fell under the jurisdiction of the Portfolio Committee on Finance. While that interim arrangement was in force, he suggested that both the portfolio committees on Agriculture Forestry and Fisheries, and Finance, meeting jointly, should be tasked with the process of nomination of Board members. The latter arrangement should be a practical one and need not necessarily be enacted in the legislation. He suggested that the involvement of the National Assembly only in the process followed similar examples such as the appointment process for the Auditor-General, the Public Protector, and board members of the SABC Board, South African Human Rights Commission, Commission for Gender Equality, and Electoral Commission and similar structures.

He noted that the proposed amendment would have no additional financial implications for the State.

Mr Pretorius further pointed out that currently the Minister had the sole power to appoint directors of the Land Bank. His legislative proposal left that power in the hands of the Minister, except that the minister would in future have to select candidates from a list approved by Parliament.

Ms Kilian found it interesting that Mr Pretorius made specific differentiation between Section 8(3) and (4), and 9(2) but did not understand why he specifically said that his proposal would apply in the case of Section 9(2). Her understanding was that there must be a parliamentary process, such as that followed for the Independent Communications Authority of South Africa (ICASA) and other institutions, where there was a Parliamentary process for the nomination, interviews, and shortlists and finally, appointment by the Minister. She noted that once this process was concluded, the nominee would be in office for five years  ‘unless that person was disqualified in terms of section 10 or was removed from office by the Minister’. However, a member was usually eligible to serve another five years. She wondered why it was necessary to make this process applicable again.

Mr Pretorius responded that he was trying to ensure that no appointment was automatically extended for another five-year period, but that the same process must be followed even in the case of reappointment.  If not, then nothing would stop the Minister from simply re-appointing that person for another five years, without the Portfolio Committee having to apply its mind whether the person did qualify to serve for another five years.

He noted that Section 8(3) referred to the Chief Executive Officer being a member of the Board by virtue of his or her office. The Chief Executive Officer was, ex officio, a member of the Board, so the Minister had no say in this appointment. Section 8(4) catered for the situation where the Minister could appoint any other employee of the Land Bank. It was not Parliament’s function to interfere in the administration. However, section 9(2) referred to appointment of “outsiders” to the Board, and it was in this function that the Portfolio Committee should be involved.

Ms Sosibo understood that if a Board Member had done well she or he could be recommended for another five years.

Mr Pretorius clarified that under the current wording of the Act, a person was appointed for a period of up to five years. If she or he was available to serve a longer period, he noted that his proposal required that person to apply afresh; nothing excluded the person from re-applying.

Mr Ainslie asked what the motivation was. He asked if in general it was intended to extend the oversight role of Parliament, or whether this was based on the poor record of this particular entity, or indeed on the situation in any of the other boards or entities that he had listed.

Mr Pretorius responded that the proposal stemmed from the frustration that the two Portfolio Committees had experienced in not knowing exactly what Parliament’s role was in terms of the current wording of Section 4(2) of the Act. In general, his proposal tried to strengthen Parliament’s oversight role. Parliament was supposed to have oversight over the Land Bank, which currently was a very poor institution. The process of having some say over the board of directors would ensure that Parliament had a better grip on the institution. He noted that there were examples of similar processes, where a committee of Parliament played a part in submitting names to the National Assembly, which were adopted by the National Assembly.

Mr Pretorius also clarified that if there were three vacancies it did not mean the Committee must propose three names, but should propose as many names of people that it felt were qualified for the position. The Minister still had discretion as to which to finally appoint.

The Chairperson noted that Mr Pretorius had raised a concern about the uncertainty arising from the realignment of government. He asked how he would deal with the challenges around Section 4.

Mr Pretorius replied that the wording would remain the same as it was currently, if the legal advisors advised that both houses should be involved. However, “relevant” generally meant the committee to which the entity reported. In this case, it was the Portfolio Committee on Finance. However, because the Portfolio Committee on Agriculture in reality dealt with Land Bank related matters on a daily basis, in practice the Portfolio Committee on Finance would not screen on its own, but would involve the Agriculture sector, although this was not the “official” situation.

The Chairperson said he had asked that question because it was well-known that the transfer of that entity was based on the capacity to manage. In the light of realignment, he asked whether Mr Pretorius was suggesting some form of re-energising, or a more holistic approach in which the entire system should be amended.

Mr Pretorius responded that he did not think there was a need for any further changes. If, for example, oversight over the Land Bank were to be moved to the Portfolio Committee on Rural Development and Land Reform, there would be no necessity to change the situation again, since it referred to the “relevant” committee.

Ms Mdaka asked what the point of the process was if the Minister still had discretion in the final appointment.

Mr Pretorius clarified that the onus would be on Parliament to ensure that the correct people came before the Minister. It would be a very brave minister that would go against the wishes of Parliament. The Minister would not have the power to go beyond what was on the shortlist.

Ms Mdaka asked if it was restricting the Minister’s powers.

Mr Pretorius replied that it was curtailing the Minister’s powers, but giving more involvement to Parliament. Parliament would have better oversight but the Minister would still make the final decision.

Ms Sosibo asked if it would still be the prerogative of the Minister to appoint, but with a recommendation from a portfolio committee, or in consultation with the committee.

Mr Pretorius responded that there would be a report from the relevant portfolio committee to the National Assembly. Only after that report had been adopted by Parliament could the Minister make the appointment. That report would say the committee had considered a certain number of applications, and proposed that the Minister appoint from those names on the shortlist.

Ms Kilian noted that with other institutions, such as SABC Board and ICASA Council, the Minister would notify the Speaker of the vacancy and the Portfolio Committee would advertise. The ICASA Council shortlist must exceed the number of vacancies. She asked why the Minister should be advertising the vacancies, and why this was not left to the Parliamentary committee.

The Chairperson asked whether Mr Pretorius was not giving some executive powers to the legislature, and asked for clarification on the principles of separation of powers.

Mr Pretorius said that was a very valid point, and one he had considered carefully. It was for this reason that the administrative powers under Section 8(4) were left with the Minister, so that Parliament would not involve itself with Executive functions. He did not see any cause for concern that the process was infringing on executive powers. The legislation could be even more drastically amended, to say that the entire application process should be handled by Parliament, but he had tried to keep matters as simple as possible and depart as little as possible from the original wording. He wanted rather to involve Parliament in the decision-making, rather than the administrative process.

Ms Mocumi asked who did the advertising.

Mr Pretorius responded that in terms of the current wording the Minister and the Department attended to that. The wording would remain the same. However, once the Minister had collated the applications, he must then submit them to the Speaker. The Portfolio Committee would deal with the interviewing and shortlist, would report to the House, and the Minister would make the final appointments from the shortlist approved by the National Assembly.

Ms Mocumi thought Mr Pretorius said the Minister should inform the committee of the vacancy. She asked who would determine the preconditions.

Mr Pretorius said that was a political issue. There were very specific requirements in the wording of the Act as to the qualifications that the applicants must have. The Minister had no leeway to go beyond that, and the Committee too had to adhere to the requirements in the Act.

Mr Ainslie said there was a lot to commend in the proposal. It would be very useful later on to look at questions of uniformity between the various institutions.

The Chairperson noted that stakeholders had been verbally invited to participate. He called upon the Ministry of Agriculture, Forestry and Fisheries to comment.

Submission by Ministry of Agriculture, Forestry and Fisheries
Mr Faisal Daniels, Manager: Cabinet, Parliament and Stakeholders, noted that the Minister was unable to be present as he was accompanying the President on a State visit to Uganda. He noted that the Ministry had taken note of the proposal, and was aware of the context. By presidential proclamation the mandate was vested with the Minister of Finance. In practice, the Ministers of Finance, and of Agriculture, Forestry and Fisheries, and of Rural Development and Land Reform had been working collaboratively to try to resolve issues relating to the Land Bank. Most of the challenges pertaining to the legislation and its operation had been dealt with. Parliament itself, in the execution of its oversight mandate had identified a number of issues. He conceded that the proposal sought to address the legislature’s involvement in the appointment of the Land Bank Board. However, the Ministry felt that the proposal had some fundamental shortcomings.

The proposal seemed to address a single technical political issue, whereas a more comprehensive response was required. Mr Daniels commended the Chairperson’s question about the re-energisation of government and the new strategic focus. A comprehensive legislative review was under way in all government departments. These processes were driven by the ministers themselves, although they were not necessarily technical by nature. They involved policy issues, which were generally Executive functions, but recognised the strategic focus to concentrate on service delivery, that was more efficient and effective, transformation-oriented, and that reflected Government’s commitment to a developmental State.  The Department of Agriculture, Forestry and Fisheries (the Department) had embarked on an internal legislative review process, not only with a view to recommending the repeal or amendment of outdated legislation, but also to prioritise work to achieve certain outcomes within certain time frames.

The Land Bank Act was not aligned at all to the paradigm of the developmental State. Most of the progressive issues were contained in the objects of the Act, but the rest of it was very technocratic. The Department agreed that the Act was sometimes vague and, far from being instructive, in fact posed obstacles to small or new agricultural entrepreneurs, generally black people. The Department had accorded high priority to the review, and the Minister believed that a far more comprehensive amendment of this Act was required to bring it in line with the developmental mandate, and contribute meaningfully to the transformation of this sector and to elevate agriculture into a highly productive nationally and globally industry that also provided food security to all people. The Minister had informed the Portfolio Committee of this. For this reason, the Department would not like to support such a narrow amendment to the Act, which did not go far enough to achieve transformation. The net result, should this proposal be passed, was that several amendments might follow one on another. This proposal could be timely in that it could fit into the Department’s time frames, but he submitted that Hon Pretorius’s amendment should be considered as part of the more comprehensive overall process.

Mr Ainslie understood that an overhaul of the Act was being considered. He asked what role the Department envisaged that Parliament should play in the appointment of the board. He asked why Land Bank’s original legislation was hesitant that Parliament should play any greater role in the appointment of the board.

Mr Daniels said that the Department and Minister concurred that the Act as it stood was problematic and agreed in principle that, for the sake of uniformity, Parliament should play a greater role.

Ms Sosibo took over as Acting Chairperson from this point.

Ms Kilian asked about time lines, noting that amendment of this Act was considered high priority.

Mr Daniels explained the logistics. A task team was established, under the Legal Services in the Department, which comprised institutional experts and industry and academic experts, all of whom were to share their ideas how to amend the Act to fit in with the paradigm of a developmental State. The Minister wanted, in this financial year, to amend at least ten pieces of legislation, and the Land Bank Act would be one of those.

Mr Pretorius commented that he simply wanted to give Parliament a bigger role in the process and reiterated that the only thing that would change was that the Minister had slightly less power and Parliament had more. He was concerned that the Committee was hearing argument not from National Treasury, who exercised oversight over implementation of this Act, but from the secondary department. Whilst he accepted the Department’s view, and conceded that it would be useful to wait for the holistic process, he stressed that the Committee should be consulting with National Treasury.

Mr Daniels responded that the proposal, whilst not curtailing the developmental State, was not speaking to or contributing towards achieving the new mandate. He noted that this Department was invited to give a statement and was doing so. The Executive did not have the right, nor did it desire to impede on Parliament’s role and its powers to propose and pass laws.

Ms Sosibo said National Treasury had been invited and the Committee would invite its submission before debating.

Mr Ainslie expressed his concern that once again the work of this Portfolio Committee was being held back because other portfolio committees and departments did not respond timeously to its requests. He thought this Committee must be far firmer and look at the rules, which required this Committee to consult, although they did not specify what should happen if the Committee was not able to get responses.

Ms Cindy August, Parliamentary Liaison Officer, South African Revenue Services, said that she was attending the Committee’s meeting as an observer and the Minister’s office had been contacted, both to submit a formal apology and request that it be given the opportunity to give a comprehensive presentation at the next meeting. She wished to correct the perception that National Treasury had not responded, and said that the Minister had tendered an apology through the Chairperson, indicating he would not be available. The comments had been recorded and would be conveyed to the relevant officials.

Ms Sosibo thanked Ms August for her explanation.

Mr Pretorius asked that National Treasury should explain that his proposal did not negatively influence the developmental State.

Adoption of Minutes and other business
The minutes of the Committee meeting held on 12 March and 19 March 2010 were adopted.

Ms Kilian commended the Committee Secretary on the excellent and detailed minutes. She asked, for clarity, whether the Committee would not consider a petition until the petitioner had first exhausted all other possible legal avenues, and whether this meant that court proceedings had to be finalised.

Ms Salome Meso (Committee Researcher) replied that it was found that some petitioners had not exhausted other avenues. They need not necessarily follow a legal process, but Parliament should be the avenue of last resort after other appropriate steps had been taken.

Ms Mocumi asked for a progress report with regard to the study tour and the videoconference with Canada.

The Committee Secretary reported that discussions were held with Canada. The programme could not be set up in March as the Parliamentary committees there would only be reconstituted by the end of April, so it was likely that the videoconference could only be set up in May, once the relevant members for interview had been identified. Possible dates for the videoconference were 7, 14, 21 and 28 May and 4th June.
Both United Kingdom and Australia requested that engagement be only in the second half of the year. She was awaiting a response on possible dates. Most of the Committee’s travel would take place only after the official FIFA World Cup period ended on 11 August.

Mr Fihla was concerned there would be rollover of funds.

Ms Meso responded that there would be a rollover. The Committee Section was going to ask that the amount be set aside as this Committee had no control over the availability of other countries’ committees. Letters had been drafted explaining why the tour was not able to take place earlier.

The meeting was adjourned.


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