Mofokeng and Mokoena petitions procedure; Tabling of new legislative proposals; Committee Report and Minutes

Private Members' Legislative Proposals and Special Petitions

31 May 2010
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

Although there was no quorum at the start of the meeting, it was established later. The Chairperson explained what had been done to try to correct the quorum problem, to promote the work of the Committee and to change the way in which the Committee was being run and regarded by Parliament. He then noted that three new legislative proposals had been received, which would be dealt with between 30 July and 13 August. The Deputy Minister of Finance had indicated that he wished to address the Committee on the Pretorius Legislative Proposal to amend the Land and Agricultural Development Bank Act. The final submissions on the Dudley Legislative Proposal to amend the Choice on Termination of Pregnancy Amendment Act would be made on Friday 4 June.

The Chairperson then noted that the petitions for pardon and release of Mr Mokoena and Mr Mofokeng had now been referred to this Committee. The petitioners were convicted of crimes, on the basis of the doctrine of common purpose, had been incarcerated for seventeen years, but steadfastly maintained their innocence. Because of their continued protestations of innocence, they were unable to obtain amnesty from the Truth and Reconciliation Commission, and their inability to “show remorse” had also meant that their former requests for Presidential pardon could not be considered. Eventually they submitted petitions to Parliament, which were referred to the Select Committee on Petitions and Private Members’ Legislative Proposals, who then received briefings from the Departments of Justice and Correctional Services and resolved to consult with the Minister of Correctional Services. Subsequently, it was realised that these were Special Petitions that should have been referred to this Portfolio Committee. Rather than starting the matter afresh, this Committee decided to hold joint committee meetings with the Select Committee, in view of the work already done. ANC Committee Member Ms J Sosibo participated in the Select Committee’s second visit to the petitioners at Kroonstad Correctional Centre. She gave a brief report to the Committee, noting that the petitioners had nothing more to add to their initial requests, but were anxious to know when they might be released. The Committee confirmed that it must proceed with the matter in a joint meeting once the Minister was ready to meet with the Select Committee. Members questioned whether all legal remedies had been exhausted and whether there had been any finding that the sentence of imprisonment was not justified. It was agreed that the full documentation from the Department of Justice and Constitutional Development would be made available to Members, and that a Parliamentary Researcher would brief the Committee on the matter.

Members noted that the Selfe and de Lille Legislative Proposals, both of which related to the Presidential power to pardon, had been referred to the Portfolio Committee on Justice and Constitutional Development for comment. Only a verbal indication had been received from that Committee that it had nothing to add to the submissions made by the relevant departments. Members felt that the failure by portfolio committees generally to respond to requests from this Committee was hindering its work. They agreed that a letter be addressed to the Speaker, calling for a response from the Committee by 30 July, and noting how its failure to respond would be interpreted.

Meeting report

Chairperson’s opening remarks
The Chairperson thanked those Members who had attended this meeting, at short notice, apologised for the change in time and explained why this had happened. It was an embarrassment that the Committee had been unable to proceed with its business for the last three meetings, for lack of a quorum.  A request had been made to the Parliamentary authorities for meetings on both Friday and another day. He noted that there were enormous challenges with this Committee, exacerbated by the manner in which Parliament was handling the timing of meetings. He was attempting to change this. He had requested that the size of the Committee should be reduced, which would then drop the quorum, and this request would be considered in August. The attendance register would show that no IFP Member had ever attended the Committee, no doubt because of clashes of times, which historically had been the reason that this Committee, in the past, had not been able to achieve fully on its mandate. Because the Committee’s functioning and work was not fully understood, the Committee was working on improving its visibility, lobbying and campaigning, to reach more people, and give more information and feedback. He thanked all Members who were present.

Expression of thanks from Ms A Dreyer (DA)
Ms A Dreyer (DA) asked for the opportunity to make a short statement. She had received many SMSs and telephone messages, as well as a card of condolence from this Committee, and expressed her sincere thanks and appreciation for the thoughtfulness shown to her.

Legislative proposals received by the Committee
The Chairperson noted that the following new members’ private legislative proposals had been received:

1. A legislative proposal from Hon I Davidson prohibiting party political bearers, pubic representatives and political parties from contracting with the State.
2. A legislative proposal from Hon I Davidson to correct certain anomalies in the Executive Members’ Ethics Act No 82 of 1998
3. A legislative proposal from Hon D Lee to repeal the South African Boxing Act No 11 of 2001 and disestablish Boxing SA.

He suggested that the three proposals set out above would be dealt with, respectively, on 30 July, 6 August and 13 August.

He reminded Members that on Friday, 4 June the Committee would be hearing more submissions on Ms Dudley’s proposal to amend the Choice on Termination of Pregnancy Amendment Act.

The Committee Secretary reported that the finance committees had acknowledged that they were aware of Mr Pretorius’s proposal to amend the Land and Agricultural Development Bank Act, No 15 of 2002, and the Deputy Minister of Finance had expressed an interest in addressing the Committee.

The Chairperson noted that the Committee would be further considering Mr Pretorius’s proposal on 23 July.

Petitions of Mr Mokoena and Mr Mofokeng: Report back by Ms J Sosibo (ANC)
The petitions of Mr Fusi Mofokeng and Mr Tshokolo Mokoena were tabled.

Ms J Sosibo (ANC) noted that she had been asked to accompany members of the Select Committee on Petitions and Private Members’ Legislative Proposals (the Select Committee) for their second meeting with petitioners Mr Mokoena and Mr Mofokeng, at Kroonstad Correctional Centre. Dr Gordon, who was involved in a justice project, and the Chairperson of the Parole Board for that district were also present at the meeting.

The petitioners Mr Mokoena and Mr Mofokeng posed no further questions to the delegation, and merely wished to know when they were likely to be released. They were informed that the Houses would be meeting jointly on the matter. It was explained to them that certain procedures needed to be followed, involving the Department of Justice and the Minister of Correctional Services, that Members of Parliament were giving urgent attention to the petitions and upholding the petitioners’ rights. The petitioners expressed their appreciation to Members of Parliament who were present and expressed their hope that they would soon be released.

The Chairperson briefly explained the background to Members. The two petitioners had, seventeen years earlier, been convicted of three criminal charges, on the doctrine of common purpose. Before and after their conviction, they had staunchly maintained that they were not responsible for the crimes. Because they maintained that they were innocent, they did not qualify for amnesty from the Truth and Reconciliation Commission (TRC), nor for Presidential pardons, which also required that petitioners express remorse for their actions.

When they submitted their petitions to Parliament these were handled as general petitions and were therefore referred to the National Council of Provinces (NCOP). However, when Mr Thobejane saw the petitions, he and the Parliamentary Legal Advisors agreed that these were Special Petitions that should have been referred to the National Assembly (NA). By this stage, the Select Committee had already considered the matter, and had already arranged for a second visit to the petitioners in Kroonstad. Mr Thobejane therefore arranged that Ms Sosibo should accompany them as a representative of this Committee. It was agreed that since the Standing Committee had already done substantial work on the matter, it should brief this Committee on its position during a joint meeting and the matter would be taken further by the two Committees, sitting jointly.

Ms Dreyer noted that there was some indication in the documents provided to Members that the petitioners may not have exhausted all legal remedies open to them. She asked if any reasons for refusal of the previous petitions had been given by the former President. She asked that full information should be made available to this Committee.

The Chairperson responded that the petitioners had not been able to proceed with the TRC process because they were unable to confess to any crimes, because they maintained that they were innocent.

Mr P Pretorius (DA) noted that Parliament could not act as a Court. For this reason, he agreed that all other legal avenues must have been exhausted. He asked if any Court had ever indicated that the petitioners were not responsible for the crimes.

Ms Barbara Loots, Committee Secretary explained how the common purpose finding was reached. She added that the petitioners had been convicted on the evidence of a particular witness, who had subsequently confessed to the petitioners that he had lied, having been paid to give false evidence, but unfortunately that witness died before this statement could be taken into evidence or recorded. She noted that the Department of Justice and Correctional Services had briefed the Select Committee and had also submitted a thick document that spoke to the previous petitions to the former President as well as to whether the petitioners were correctly served by their legal representatives, and whether Legal Aid South Africa could be asked to assist. The Department of Correctional Services had also addressed the Committee.

Mr Pretorius asked whether there had been any further comment from the Court.

The Committee Secretary noted that the judge sitting on the case had since retired. She would check the references from the Department of Justice.

Ms B Tinto (ANC) said that both letters mentioned three people who would have been able to testify to the petitioners’ innocence and she asked if their testimony had been sought.

The Chairperson explained that one of those mentioned was employed by the Department of Correctional Services, had met with the Chairperson of the Select Committee, but was re-arrested on charges before he could meet with that Committee. He agreed that the information sent to the Select Committee would assist this Committee.

Ms Sosibo said that when last she spoke to the Select Committee Chairperson, he had said that he was still awaiting a response from the Minister of Correctional Services, who had called for a report from the Department and would report back.

Mr N Fihla (ANC) stated that since the relevant authority to take the final decision on release was the Minister of Correctional Services, neither Committee could proceed before her response was obtained.

The Chairperson agreed. This was the first time that the matter had been tabled before this Committee, and future meetings to discuss it would be held jointly with the Select Committee.

Ms Dreyer proposed that the Committee’s legal advisor should prepare a summary of the processes followed and their results.

The Committee Secretary noted that a presentation by the legal advisor might also be useful.

Mr Pretorius asked that the legal advisor should also indicate whether any legal body had indicated that the two petitioners were being held without justification.

The Chairperson noted Members’ agreement on a briefing by the legal advisor, and said that he would also be asked to prepare a written summary.

Selfe’s Legislative proposal regarding the President’s power to pardon
De Lille’s legislation proposal regarding the President’s power to pardon
The Chairperson reminded Members that private members Mr J Selfe and Ms P De Lille had presented their legislative proposals to this Committee, that various submissions and comment were received and that comment had been requested from the Portfolio Committee on Justice and Constitutional Development (the Portfolio Committee).

Ms Loots noted that she had received a verbal indication from the Portfolio Committee that its members had nothing further to add to the submissions already received.

The Chairperson said that lack of response from portfolio committees was problematic. He had mentioned this to the House Chairperson, who had set out what steps could be taken, but the Rules on this point were unhelpful.

Mr Pretorius noted that the word “consultation” was used in the Rules. This implied that two parties must speak to each other. Clearly, this Committee must start the process, but the Rules were silent on what would happen if portfolio committees did not respond to this Committee. He suggested that perhaps such committees should be advised that their failure to respond by a certain date would be interpreted in a way that would be clearly stated by this Committee. He added that “consultation” implied that the full committees must consider the matter, not merely that their Chairperson give a comment.

The Chairperson agreed with the principle, but suggested that such letters calling for comment should be addressed to the Office of the Speaker, who should then send it on to the relevant portfolio committee. He suggested that the Portfolio Committee on Justice and Constitutional Development be given until 30 July to respond formally. Although this might be a short time period, it could request an extension if necessary.

Committee Second Term Programme: Adoption
The Chairperson tabled the Second Term programme.

Members formally adopted the programme.

Committee’s Quarterly Report (January to March 2010): Adoption
The Committee’s quarterly report had previously been sent to all Members, but the Chairperson asked Members to comment on any pages needing amendment.

The Chairperson noted that, on page 2, the name of Ms Steyn must be removed, as she was not a Member but had attended a meeting as a guest.

The Committee adopted the Report with amendments.

Committee Minutes Adoption
The Minutes of 26 March 2010 were tabled.

Ms Tinto noted that her apology, submitted prior to the meeting, should have been recorded.

Mr Pretorius suggested insertion of the word “Committees” on page 5, to make it clear that these were joint committee meetings.

Members adopted the Minutes, subject to these amendments.

The Minutes of 7 May 2010 were tabled.

Ms N Twala (ANC) noted that her apology, submitted prior to the meeting, should have been reflected.

Members adopted the Minutes, subject to this amendment.

The Minutes of 21 May 2010 were tabled and adopted.

Committee Mandate
Mr Pretorius asked for a brief discussion on the mandate and role of the Committee. According to the Rules, this Committee was merely to consider a legislative proposal, but not the substance of the wording. Although in practice, Members of Parliament who were submitting private proposals would also submit a draft Bill, it was not required, in terms of the Rules, that this be submitted together with the Memorandum. The Rules also did not require the Committee to consult widely or call for evidence to support the proposals, but did not prohibit it from doing so. He cautioned that perhaps this Committee was tending to go too far and consider the content of Bills, and analyse submissions received on the proposals. This was the function of the relevant portfolio committees, once the proposals had been accepted by this Committee. He suggested that perhaps members presenting legislative proposals should not be required to submit so much documentation, and that the legal advisors could perhaps be asked to give their opinion.

Ms Sosibo took his point, but said that the presentation of a draft bill made it much easier for Members of this Committee to understand the principles or see exactly what amendments were proposed.

Mr Pretorius said he understood that, but stressed that there was no legal requirement that a bill be submitted to this Committee. Even if this Committee approved a legislative proposal, the wording might still be substantially altered, or even refused, by Parliament.

The Chairperson agreed that additional documents certainly assisted Members to take an informed and well-balanced decision. He also agreed with Mr Pretorius that the Committee could not force members to submit these, they would certainly help to persuade the Committee. He indicated that certain proposals had been very brief and no draft bills were submitted. Involving public stakeholders added to Committee Members’ understanding of issues. He agreed with Mr Pretorius that this Committee could not, and did not intend to replace the work of the portfolio committees.

The meeting was adjourned.



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