State Liability Amendment Bill; Prevention and Combating of Trafficking in Persons Bill; Protection from Harassment Bill; Traditional Courts Bill; Protection of Personal Information Bill: progress report by Department of Justice

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Justice and Correctional Services

07 February 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee received briefing reports from the Department on the status of key legislation tabled before the Committee. The State Liability Amendment Bill needed to be enacted by 31 August 2011. This was the deadline for compliance with the court’s order. In June 2008 the Constitutional Court in the Nyathi One case decided that Section 3 of the State Liability Act was unconstitutional, as it did not provide for executions or attachments against the state. Section 3 of the State Liability Act stipulated the non-attachment of state property in judgments against the state. It then became necessary to draft a new State Liability Act which dealt with provincial and national government. Given the municipal elections and the need to approve the department budget, this gave little time to process and enact this Bill within deadline. The Committee’s chief concern was about the further appeal mechanism provided by new Section 3(7). It provided a potential avenue for delaying tactics that the state could use to frustrate the relief sought by the judgment creditor. A further concern was the lack of a definition for ‘state’ especially since the Bill envisaged that only property belonging to national and provincial departments would be attachable. The Committee decided to hold public hearings on the Bill and requested that the Department provide the public comments made on the original draft Bill.

The Combating of Trafficking in Persons Bill had a lot of stakeholders and extensive consultations were necessary. The Department had had a meeting with the Department of Social Development and South African Police Services (SAPS) on the issue of referral of victims to accredited organisations. A further meeting had been held with the Department of Home Affairs on whether to grant victims refugee status or a visitors permit. Home Affairs was of the view that victims should be given refugee status as the system was already up and running and there were also more benefits. Discussions had been held with the Department of Labour on the definition for forced labour. The Committee acknowledged the challenge of having departments acting in sync on this piece of legislation. The Committee was urged to move on this Bill as South Africa was on a watch list. The Committee took a decision to meet with the International Organisation for Migration and the United Nations.

The Protection from Harassment Bill deliberations had been looking at its link to the suppression of media freedom. There had been a request at the previous meeting that the state law advisors should look at the English Act that governed harassment. It was suggested cyber stalking should be included, which has been done. Independent corroboration of cyber stalking needed to be considered. The Department had consulted with the South African Police Service and redrafted a clause on tracing persons whose identity was unknown by the police. The Committee would have a meeting with the Portfolio Committee on Communications with regards to cyber stalking.

The objective of the Traditional Courts Bill was to provide structure and functions for traditional courts. The Bill also sought to align the traditional courts with the Constitution and replace Sections 12 and 20 of the repealed Black Administration Act. The Bill emanated from the Traditional Justice System Paper. There had not been any meetings held with stakeholder departments. There was a need for further consultations with the Committee in order to ascertain which direction the Committee wanted to take. The Committee resolved that the political parties would re-consider anew the Traditional Courts Bill and that the National Council of Provinces deal with this Bill first and hold public hearings in areas where customary law was practiced.

The Protection of Personal Information Bill was on its third re-draft by a technical sub-committee of the Justice Portfolio Committee. Outstanding issues were the proposed exclusion of information related to security, national security and intelligence, the exclusion of Cabinet and municipal councils and the exclusion of acts for journalistic purposes. The Bill did not create offences and was a reactionary piece of legislation as it was only after a complaint that the Regulator would take action. The Technical Committee believed that this Bill was not intended for journalists as a defence. The Technical Committee still had to decide if the Regulator could adjudicate in Promotion of Access to Information Act disputes. They needed to further engage with the South African Human Rights Commission on the matter of Promotion of Access to Information Act functions. There might be issues between the Bill and the Consumer Protection Act so the Department would engage with the Department of Trade and Industry on this. The implementation date was a further issue as well as the cost of implementation.

Meeting report

Status of the State Liability Amendment Bill
Mr Johan Labuschagne, Director: Legislation for the Department of Justice and Constitutional Development (DOJ&CD) noted that the Memorandum on the Objects at the end of the Bill was comprehensive and thus a written presentation was not necessary. He explained Section 3 of the State Liability Act provided for the non-attachment of state property in judgments against the state. In June 2008 the Constitutional Court (CC) in the Nyathi One case provided that Section 3 of the State Liability Act was unconstitutional, as it did not provide for executions or attachments against the state. It then became necessary to draft a whole new State Liability Act. Extensive and critical public comments were received on the Bill. The criticisms were that all that was needed for compliance with the court’s order was an amendment of Section 3 of the State Liability Act. The order in Nyathi One was suspended for twelve months in order to give the government time to comply with it. The Minister of Justice applied for an extension, which was granted and the new deadline was 31 August 2011. This Amendment Bill would have to be passed by Parliament and implemented before the deadline. The Nyathi Two case was dealt with the extension of the deadline as per application from the Minister of Justice. Clause 1 of the Bill substituted Section 2; Clause 2 substituted Section 3 of the Principal Act. Clause 1(1) provided that no execution, attachment or writ process may be executed against state property unless a judgment of the court had not been satisfied.

Once a judgment has been given against the state, the state attorney had to inform the Minister and Accounting Officer (Director General) and the judgment had to be satisfied within 30 days. If the time period was not complied with, then the judgment creditor could apply for a writ of execution against movable property of the state. A Department may appeal the attachment if it was essential for service delivery and would hamper operations. A court may decide that it would not be in the interests of justice to attach such a property and may order that another piece of property could be substituted. The clause on the attachment of state property was only in relation to national and provincial departments.

Discussion
Mr J Sibanyoni (ANC) asked if it was sufficient to give the state 30 days to comply with a judgment order against it without providing for a parallel process that might be happening in the Office of the Director General. In other words the state had to be given more time to apply its mind on the judgment order before paying.

Adv Swart (ACDP) noted that the Memorandum stated that the criticisms about the earlier Bill were accommodated, which ones were not accommodated? Budgetary constraints were no reason for the non-payment of judgment debts. Who decided which property could be attached? This could be used as a delaying tactic by the state if it made the decision. There was also a possibility that new Section 3(7) as it appeared in Clause 2 of the Bill, could be used as a delaying tactic by the state if they apply as an interested party.

Ms M Smuts (DA) said that the Amendment Bill was a neat solution as it had copied the Nyathi Two judgment verbatim.

Mr Labuschagne replied to Mr Sibanyoni’s question by stating that new Section 3(3)(a) as it appeared in Clause 2 of the Bill provided for a 30 day period unless an appeal had been noted. The criticisms were that there was no need for a comprehensive new Act - all that had to be inserted in the existing legislation was a clause making provision for an attachment order. The judgment creditor should not be given carte blanche on what could be attached. The sheriff would decide what should be attached. Hence the appeal mechanism for the state to argue in court, once its property has been attached, that certain property should not be attached such as for service delivery reasons.

Mr Deon Rudman, Deputy Director General: Legislative Development added that the Nyathi Two judgment demonstrated that an execution processes had to be included even though the Department had tried to create other processes instead, this attempt was done in consultation with National Treasury. The Amendment Clause was derived from the Nyathi Two judgment. With regards to new Section 3(7), the courts would decide if an applicant had direct interest in a particular piece of property that had been attached.

Adv Swart followed up by commenting that delaying tactics in civil judgments against the state were already being used and the concern was that sub-clause 7 might be used again. One would only need to bring in an application and the process would be frustrated and the legal costs would shoot up.

Mr J Jeffery (ANC) commented that passing this Amendment Bill would be a challenge considering that the Committee had to pass a budget plus there were national government elections this year. The Bill would also have to go to the National Council of Provinces (NCOP) and then be assented to by the President. What was the definition of ‘state’; there was no such definition in the Principal Act and Amendment Bill. Who did the Bill apply to? Could there be more clarity on the role of Treasury and whether there would be criminal sanctions against accounting officers. What were some of the debates that preceded the Amendment Bill?

Ms S Sithole (ANC) commented that she was glad that municipalities were excluded but perhaps the provinces should be excluded as well so as not to compromise the efficiency of provinces.

Ms D Schafer (DA) said that more could be done and the Amendment Bill need not limit itself just to the judgment, the Committee could go further than it. The concerns raised by Adv Swart were correct and litigants had to be protected from the harsh effects of delaying tactics. Why were municipalities excluded?

Mr Labuschagne replied that the court not the Department excluded municipalities.

Mr Rudman said that the Department had originally included municipalities in the initial Bill but there were objections on the basis that there was already legislation that dealt with municipalities. In the original Bill, a comprehensive role for National Treasury had been created. When the execution process was re-drafted, it was not necessary for National Treasury to have a bigger role. National Treasury themselves did not want to be involved.

Mr Labuschagne said that the Public Finance Management Act (PFMA) made provision for non-complying Directors General. The Amendment Bill had been limited to apply only to provincial and national departments. A definition of ‘state’ however was not included but during deliberations it could be looked at.

Mr Lawrence Bassett, Chief Director: Legislative Drafting, added that the PFMA had a whole range of responsibilities and duties for Directors General. Gross negligence and non-compliance would land a Director General in hot water according to the PFMA. 

Mr Jeffery said that the difficulty was that in the title of the Bill ‘state’ was used as well as in the clause that provided for the attachment of state property. However, as one continued reading, one discovered that the Amendment Bill would apply only to provincial and national departments.

Ms Smuts suggested that the state law advisors should consider the definition of ‘state’ as provided for in section 238 of the Constitution.

Ms L Adams (COPE) asked that if there was an application in the interest of justice and that application was granted, what was the remedy for the defendant because there would be an order that was already in existence that granted relief. Suppose the state’s application was not granted i.e. the execution continued, where did the whole process pick up? Would there be another 30 day or seven day period?

Mr Labuschagne replied that sub-clause 6 provided that the sheriff may attach but not remove movable property. There was then a 30-day period in which the state could appeal the attachment. If there was no appeal, then the sheriff had to remove the property. If the appeal was successful, then the sheriff would go back and attach other property. It would not be necessary for the defendant to re-open the whole process.

Ms Adams said that if the state in its application advised that property x should not be attached but did not specify which property could be attached there would be a lacuna for the defendant. The court would only grant the immediate relief sought by the state and not specify an alternative.

Mr Rudman replied that it would all depend on what the application dealt with as well as the nature of the order of the court. If the state’s application was not granted, then the execution would continue.

Ms Adams interjected and asked at what stage would the execution continue the seven or 30-day period?

Mr Rudman replied immediately because the 30-day period would have already lapsed. The problem would arise if the court granted the order.

Ms Adams said that suppose the application was granted, what would stop another party from applying for the stay of execution as they had direct or material interest in the attached property.

Mr Rudman replied that any party applying for the stay of execution would have to first prove that they had direct or material interest to the court’s satisfaction. However, it was possible that whatever subsequent property would be attached by the sheriff could be challenged again.

Ms D Schaefer (DA) said that it could be inserted that in the state’s application process, it should advise that property x should not be attached but property y could be attached instead.

The Chairperson asked if the Committee should hold public hearings.

Ms Smuts said that the Committee had to have them.

The Chairperson asked if there was anyone who had an opposing view otherwise it would be accepted that the Committee was in agreement. There was no opposition.

Mr Jeffery requested the Department provide the public comments made on the draft Bill.

Status of the Prevention and Combating of Trafficking in Persons Bill
Ms Angela Steyn, State Law Advisor, said that since the last meeting on the Bill, the Department had had meetings with several of the other cluster departments. It had met with the Department of Social Development (DSD) and South African Police Service (SAPS) on the referral of victims to accredited organisations. DSDS was of the view that the transportation of victims to the accredited organisations or shelters was the responsibility of the police. SAPS were of the view that they did not have the capacity for this. The interim measure was that DSD would negotiate with other organisations on this issue and try and locate more shelters that were closer to police stations. Another option would be to keep victims in protective custody. A further meeting with the Department of Home Affairs was on whether to grant victims refugee status or a visitors permit. Home Affairs was of the view that victims should be given refugee status as the system was already up and running and there were also more benefits. DOJ&CD had to discuss with the Department of Labour the proposed definition of ‘forced labour’. The Department of Labour was relying on the definition contained in the Labour Convention and they would go and ascertain whether it would not be better to include a definition in the Basic Conditions of Employment Act.

Mr Bassett added that the Department had had successful meetings with some departments whilst
it struggled with others. It would be probable that during deliberations with the Committee, there would be further consultations with the other stakeholder departments.

Discussion
Mr Jeffery said that clauses 17 to 48 still had to be dealt with so the way forward was to have a meeting with the other departments. It would be useful for a list to be drawn up where further input was required on any outstanding issues. A meeting would have to be scheduled where the rest of the clause-by-clause deliberations would continue. There was a sense that the other departments were not that speedy on this but it would not be fair to accuse them until the list of outstanding issues had been drawn up.

Adv Swart said that there was pressure on the Committee as South Africa was on an international watch list. The President had also given undertakings that the legislation would be finalised so the Committee had to get going. The approach from Mr Jeffery was agreeable.

The Chairperson said that the Committee would set up a meeting with the International Organisation for Migration (IOM).

Adv Swart added that the Committee also had to meet the United Nations for a briefing from them.

Status of the Protection from Harassment Bill
Mr Sarel Robbertse, Senior State Law Adviser, said one of the main issues with regards to the Bill was the suppression of media freedom. There had been a request at a previous meeting that the Department should look at the English Act that governed harassment. The Department has done so and would report back to the Committee. The Committee had raised concerns about the Bill being used as a medium to amend other Acts, this would have to be discussed with the Committee at a later stage. The Committee had also considered the insertion of a definition of ‘sexual harassment’. It was suggested that the Department should inquire into cyber stalking where third party information had to be furnished before the court to deal with an application for a protection from harassment order and inter alia notify the third party that certain information was in the public domain. A redraft on cyber stalking would be considered. There was a redraft on the independent corroboration of cyber stalking, however a clause that gave effect to that had not been drafted yet. The Department had consulted with SAPS and redrafted a clause on the tracing of persons whose identity was unknown by the police. The Committee had raised concerns on electronic communication of offshore service providers to prevent cyber stalking from outside. It was suggested that a briefing from the Portfolio Committee on Communications on this, would be necessary.

Discussion
The Chairperson noted that the meeting with the Portfolio Committee on Communications would be included in the Committee’s programme.

Status of the Traditional Courts Bill
Ms Theresa Ross, Senior Law Advisor, said the objective of the Bill was to provide the structure and functions for traditional courts. The Bill also sought to align the traditional courts with the Constitution and replace Sections 12 and 20 of the repealed Black Administration Act. The Bill emanated from the Traditional Justice System Paper that the DOJ&CD had developed. The Department had not had any meetings with stakeholder departments. The Department has been availing and preparing reports on the status of the Bill. There was a need for further consultations with the Committee in order to ascertain which direction the Committee wanted to take. During the public hearings there were concerns that the Bill had provisions for territorial jurisdiction and this might include persons who did not want to be governed under Customary Law, and an opt out clause was suggested. There were also concerns that a matter may come before a lower level court whereas the Bill only envisaged senior traditional leaders as presiding officers. There were also concerns about the punitive measures that were prescribed in the Bill that could lead to illegal activities such as forced labour.

Discussion

The Chairperson asked if the Sub-Committee dealing with this, from the previous Justice Portfolio Committee (Third Parliament), was still in existence.

Mr Jeffery replied that that Sub-Committee fell away because it was from the last Parliament.

The Chairperson asked if there should be public hearings.

Mr Jeffery replied that the Committee had done nothing with the Bill since 2009. The report on the Bill had been adopted; this was under the last Parliament by the National Assembly. This was a Section 76 Bill so the matter would take longer to process with the National Council of Provinces. The consultations and origins of the Bill had been in existence for the past 10 to 15 years. The public had probably forgotten.

Ms Ross said that the South African Law Commission Report was completed in 2003 meaning that the consultations were way before that.

Mr Jeffery suggested that the parties should consider the Bill and then there could be further discussions.

Ms Smuts said that she hoped the great majority of the work of the Committee for 2011 should be on the courts. Was it not possible to request the NCOP to work on the Bill first as their process was longer.

Mr Sibanyoni said that the Committee could also make use of the people who were part of the Third Parliament. The Committee could also hold joint hearings with the Select Committee and perhaps go out and hold public hearings in the rural areas where customary law was still practiced.

The Chairperson declared that the suggestion from Mr Jeffery would be followed. Provincial public hearings were a definite.

Mr S Holomisa (ANC) commented that he supported the suggestion that the parties should consider the Bill and also that public hearings should be held at provincial level involving the House of Traditional Leaders and the Congress of Traditional Leaders of South Africa (Contralesa).

Mr G Ndabandaba (ANC) requested that the Committee Researchers consider if there would be scope for the traditional courts to make use of judicial precedent.

Status of the Protection of Personal Information Bill
Mr Jeffery as Chairperson of the Technical Committee on this Bill explained that there had been public hearings and a Technical Committee was established after several meetings of the Portfolio Committee. The Technical Committee was on its third re-draft. The outstanding issue was the exclusion of information related to security, national security and intelligence. This would require a meeting with the Ad Hoc Committee on the Protection of State Information Bill, as there was an overlap. A further issue was the exclusion of acts for journalistic purposes. The South African National Editors Forum (SANEF) was not in agreement with this. The Bill was about protecting Personal Information, establishing a Regulator to adjudicate. The Bill did not create offences and was a reactionary piece of legislation in the sense that it was only after a complaint that the Regulator would take action. The Bill was not intended for journalists, this was why there was an exclusionary clause for journalists who ascribed to a code of ethics. However it was not ideal to have others to try and use this as a defence. The same applied to artists and activities for artistic purposes. A further outstanding issue was the exclusion of Cabinet and municipal councils. The Technical Committee still had to decide if the Regulator could adjudicate in Promotion of Access to Information Act disputes. There was also a need for further engagement with the South African Human Rights Commission (SAHRC) on PAIA issues. For example the requirement that every body had to supply a manual to the SAHRC; this was no longer practical in the electronic age. There were certain offences that were envisaged in the Bill despite it not having criminal sanctions. An example of some of the offences that the Technical Committee had in mind was the dissemination of an individual’s bank accounts details. A further issue was that of notification fees, this was considered in the Bill after a study trip to the United Kingdom where the UK regulator generated income via notification fees from external bodies. The Committee was also considering an empowering provision and then have the Minister consider notification fees after three years from the date of enactment. There might be issues between the Bill and the Consumer Protection Act. The Department would engage with the Department of Trade and Industry on this. The implementation date was a further issue as well as the cost of implementation.

Meeting Adjourned .

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