Hon Feldman proposal to amend Municipal Systems Act; Feedback on the status of petition of Mr Mokoena and Mr Mofokeng

Meeting report

 

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 South Africa’s 238 municipalities. The proposed legislation also sought to include the Ward Committee system as a fundamental strategic human capital investment in the process of public participation.

 

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.

 

Discussion

Mr A Matila (ANC, Gauteng) asked for clarity on the submission that the unified Ward Committee would be chaired by a permanent delegate of the NCOP. He asked whether this would be done on an ad hoc basis taking into account that Tshwane, for instance, had 76 Ward Committees and this would require each one of them to send a Councillor.

 

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 Gauteng had 2 regions whilst KwaZulu-Natal had 9 regions. Johannesburg alone had 109 wards. The situation in Cape Town was complicated by the existence of parallel ward structures established by the DA.

 

Hon Feldman said it was important to set aside party politics and realise a common agenda for representing the people of South Africa and not a party. It was not necessary for the entirety of Ward Committees to attend. The purpose of the amendment was to strengthen the arm of the Ward Committee so that the community would benefit.

 

Mr M Mokgobi (ANC, Limpopo) asked what was supposed to be the role of the permanent delegate and how would it be located within the current arrangement where the Office of the Speaker was supposed to drive the process. He asked where the link would be between permanent delegates and Speakers’ of the legislatures. He also asked whether this proposal had any relation to the local government turnaround strategy.

 

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, Western Cape) proposed that the provincial legislatures be consulted so that members could obtain mandates on the proposal when it was discussed in more depth in future deliberations on it.

 

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.

 

Discussion

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, Free State) proposed that the Committee recommend the petitioners had to be released. They should not waste time asking for explanations from the Presidency and the Department of Justice as to why there had been delays in securing the release of the petitioners from wrongful imprisonment.

 

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 Constitutional Court. It was important for the Committee to take a straight line on the matter by approaching all the relevant parties.

 

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, Free State) said it would take a long time to bring all these people together before the Committee which would further delay the release of the petitioners.

 

Mr L Nzimande (ANC, KwaZulu-Natal) said the role of the Committee was to make a determination and not to look at procedure. The option which they had was to ask for a discretion to be applied by the President to release the petitioners.

 

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 Mpumalanga; draft five year Strategic Plan: adoption

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.