The Committee listened to Hon Feldman’s proposals for the amendment of the Municipal Systems Act. The legislative proposals were motivated by a desire to promote the public’s direct involvement in the governance process. The amendments aimed to establish an investigative forum structure that would assist the National Council of Provinces (NCOP) in its oversight function over the South Africa’s 238 municipalities.
Hon Feldman also proposed a unified Ward Committee structure chaired by a permanent delegate of the NCOP to create an advisory forum that would assist the NCOP in dealing with challenges affecting local government and recommending appropriate interventions to address corruption and poor service delivery.
Members asked about the practicality of implementing a unified Ward Committee structure given the differences in the numbers of wards in different provinces and other factors such as political differences in the Western Cape which had resulted in parallel ward structures.
The Parliamentary Legal Advisor also warned that there was a possibility that the inclusion of a permanent delegate of the NCOP in the unified Ward Committee structure would likely contravene the provisions of the Constitution on the powers and functions of the different tiers of government.
The Committee considered the feedback on the status of the petition by Mr Mokoena and Mr Mofokeng. The Committee debated what would be an appropriate course of action to assist the petitioners after they had exhausted all legal remedies and could not qualify for amnesty or pardoning by the President. It was resolved that the Department of Justice and the Presidency would be summoned before the Committee to give reasons why the petitioners had not been released after 17 years in prison for a crime that they had not committed as shown by available evidence.
The Committee adopted the report on its oversight visit and its draft five year Strategic Plan without amendment.
Hon Feldman’s legislative proposal on amendment of Municipal Systems Act
Hon Feldman explained that the proposal on the amendment would be to promote public participation and direct involvement in the governance process through legitimate statutory structures. The proposed legislation sought to amend Chapter 6 of the Local Government: Municipal System Act to make provision for the establishment of an investigative forum structure. This would serve as an urgent ministerial tool aimed at assisting the NCOP in conducting its oversight work by performing research and monitoring the performance of
Hon Feldman also presented the objects of the proposed legislation which were aimed at addressing the lack of an investigative forum in the Municipal Systems Act or a tool that would assist the NCOP to perform its crucial oversight function over municipalities. The proposed amendments would ensure that the NCOP had an advisory forum that could advise them about challenges affecting local government and propose recommendations on appropriate action to be taken. The use of Ward Committees as an oversight tool for the NCOP would help test the political social maturity level of Councillors as well as municipalities.
Hon Feldman also made proposals for a unified Ward Committee structure that would be chaired by a Permanent Delegate of the NCOP to enable the NCOP to receive first hand information to promote better engagement with municipalities. He submitted that the proposed legislation would ensure that municipalities worked effectively by recognising the work of Ward Committees to improve service delivery and root out corruption.
Mr A Matila (ANC,
Hon Feldman said the overriding consideration was the fact that most Councillors did not have the capacity to interact with their communities and this would be the way of taking parliament to the people. It was important to realise also that the main idea was to enable the NCOP to get a foot in. The initial idea behind the United Ward Committees Forum had been that the various wards would send representatives.
Mr Matila agreed with the principle enunciated by Hon Feldman but he was worried about its practical implementation. For instance
Hon Feldman said it was important to set aside party politics and realise a common agenda for representing the people of
Mr M Mokgobi (ANC,
Hon Feldman responded that the legislative process was intact and the amendment would not infringe or take any powers. It was simply going to assist the community to acquire a voice in governance issues.
Adv Mukesh Vassen, Parliamentary Legal Advisor cautioned that there was a possibility that the role of the permanent delegate would contravene constitutional boundaries in terms of the powers and the functions of the different spheres of government. He asked whether Hon Feldman had considered the implication of having a permanent delegate in the Ward committee in terms of constitutionality.
Hon Feldman said he had checked on constitutionality and he was satisfied that the Constitution had not been contravened because this intervention was on an ad hoc basis.
The Chairperson submitted that the purpose of the discussion was not to engage in detail with the proposal but to get clarity. The proposal would be taken forward with relevant stakeholders for in-depth discussion.
Mr F Adams (ANC,
Feedback on petition of Mr Mokoena and Mr Mofokeng
Adv Vassen had examined various documents submitted by the petitioners and the Department of Justice to obtain clarity on the process followed by the petitioners and to consider an idea of a special dispensation that had been initiated by the Department of Justice. The major problem was that the petitioners could not qualify for a presidential pardon as they were not admitting to a politically motivated crime. The guidelines for amnesty or the granting of a presidential pardon meant that these mechanisms would not work if the petitioners did not show remorse for their alleged criminal conduct. The option that remained after all other remedies had been exhausted was for Parliament to pass legislation but even this option meant that the petitioners’ lengthy incarceration would continue for many more years.
The Chairperson said that meeting with the petitioners had been a heart-rending experience as the facts were clear that the two petitioners had been wrongfully incarcerated and were innocent. What was a source of frustration for the petitioners was that they had been imprisoned for 17 years and yet their co-accused had long been released from prison after being granted amnesty as a result of the Truth and Reconciliation Commission (TRC) process. They had therefore petitioned Parliament as a last resort as they could not meet the criteria for a presidential pardon.
Mr D Bloem (COPE,
Mr Matile suggested that the committee summon all the people involved in the matter, that is the Presidency, the Department of justice and other stakeholders, so that they could engage with them. He also commented that the justice system was not yet transformed as evidenced by the speed at which an accused person was dealt with when a white farmer was killed and the injustices that occurred in dealing with black accused persons such as the petitioners. This led him to question the rationale behind the judge’s decision who had ruled that the petitioners had now exhausted all their legal remedies and no longer had a right of appeal.
The Chairperson agreed that even if one were to play devil’s advocate; there were still documents of a classified nature of correspondence between the co-accused persons that clearly exonerated the petitioners of any wrongdoing. He proposed that there was need for a solution that would speed up the resolution of this matter to avoid repeating what had happened in the past when similar petitions to the Justice Department and the Presidency had yielded no results for the petitioners.
Mr Adams pointed out that the Committee could call anybody to come before them in terms of section 69 of the Constitution. They could therefore call upon the Judicial Service Commission (JSC) to get an explanation and the Committee could also petition the
Adv Vassen said the Committee could not summon a judge to explain a court decision. He pointed out the submission by Advocate Gawula Neville setting out the appeal procedures. That opinion made certain recommendations but the question was who would implement that because the Department of Justice could not release the petitioners simply because they had been asked to do so by Parliament.
Mr Bloem said the Correctional Services Act allowed the President to release a person. The President could exercise discretion to have the petitioners released.
Mr Matila submitted that it was important to hear the views of both the Presidency and the Department of Justice as presently there was no public discourse around the matter.
Mr T Mofokeng (ANC,
Mr L Nzimande (ANC,
Mr Matila said they had to be clear whether they were asking for the petitioners to be released or if they were requesting that they be pardoned.
Mr Bloem stated that the Committee had to take into account that this matter had been referred to them by the Chairperson of the NCOP in a letter. The Committee could therefore respond to that letter with their proposal recommending the release of the petitioners.
Mr Mokgobi commented that the Committee was dealing with a legal issue of the highest order. It was important for them to follow what the rules of Parliament stated they had to do in such situation so that the Committee would be mandated and empowered to make a decision.
Adv Vassen pointed out that the Committee had to be mindful of the powers of Parliament which were limited and did not allow the committee to instruct the President to release the petitioners.
Mr Bloem said the power of Parliament was not to instruct but to recommend. What he was proposing was for parliament to recommend to the President that the petitioners be released as opposed to instructing that they be released.
Mr Adams asked what the basis for such a recommendation would be if both the Department of Justice and the Presidency were not called before the Committee. That would certainly not take them a year to do and in any event, the Committee could only recommend to the house and not to the President as they did not have that mandate.
The Chairperson resolved that the Department of Justice and the presidency would be called to come before the Committee as early as Wednesday of the following week. The Committee would also determine in the interim if other stakeholders such as the Department of Correctional Services would be called in to consider a proposed option for release on parole as an alternative.
Report on visit to
All members agreed that the Committee’s report on its oversight visit and its draft five year Strategic Plan be adopted as they stood, but that some leeway be given for changes if necessary.
The meeting was adjourned.
- Honourable Feldman presentation entitled “Motivation”
- Department of Justice and Constitutional Development Feedback on possible pardon of Mokoena and Mofokeng by Advocate Gawula
- Legislative proposal to amend Local Government Municipal Systems Act 2000, No 32 of 2000 Part 3
- Legislative proposal to amend Local Government Municipal Systems Act 2000, No 32 of 2000 Part 2
- Legislative proposal to amend Local Government Municipal Systems Act 2000, No 32 of 2000 Part 1
- Petition from the Leeuwkop & Kroostand Prisoners: Memorandum
- We don't have attendance info for this committee meeting
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