Greyling Proposal: Regulate private funding of political parties; Davidson Proposals: Correct anomalies in Executive Members' Ethics Act No & Prohibit contracting between an organ of state and companies whose directors are party political office bearers

Private Members' Legislative Proposals and Special Petitions

15 March 2011
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

Davidson proposal: Correct certain anomalies in the Executive Members’ Ethics Act No 82 of 1998
The Department of Justice had indicated that it was looking at amending the Executive Members’ Ethics Act and had submitted a letter giving time frames as to when it was expected that proposal would be submitted to Parliament. The department’s proposal was to be submitted to Cabinet in March and possibly submitted to Parliament in April. Mr Johan de Lange (Principal Senior Law Advisor: Department of Justice and Constitutional Development) explained the process.

It was agreed to take the criteria 235A d), that the proposal pre-empted similar legislation soon to be introduced by the national executive, as the reason not to proceed with the proposal. The Committee would adopt the following week and submit to Parliament.

Greyling proposal: Regulate private funding of political parties
The object of the proposal was to regulate the issues of disclosure of private donations to political parties; disclosure of election expenditure and the possibility of Spending Caps; political parties holding business interests; and donations from foreign entities.

Legal opinion had been received, highlighting that there were some challenges with regard to the Constitution.  The Constitution referred to political parties as legal persons and the rights given to individuals were also given to political parties. On the one hand there was the right to transparency and the right to privacy and so on, so there could be unintended consequences of maybe private people not wanting to support political parties, and Section 1(d), which was the founding values of the Constitution, was based on the multi party system.

The decision was taken to recommend not to proceed as guided by Rule 235A a), that it went against the spirit, purport and object of the Constitution.
 
Davidson proposal: Prohibit contracting between an organ of state in the national sphere of government and companies whose directors are party political office bearers or public representatives of political parties
A letter had been received from the Chairperson of the Standing Committee on Finance requesting more time to review and comment on the request.

It was agreed to allow them more time, but the submission to be received before the second meeting of the second quarter.

Lee proposal: Repeal the South African Boxing Act, No 11 of 2001
The recommendation report was not considered due to lack of quorum.

Meeting report

The Chairperson welcomed Mr Johan de Lange (Principal Senior Law Advisor: Department of Justice and Constitutional Development).

The Chairperson reminded Members of the court case that Mr M Oriani-Ambrosini (IFP) had brought about challenging the rules of the Committee, depriving Members of Parliament the right to introduce legislative proposals through the Committee. The case was heard on 10 March and was postponed until 19 May for possible judgement. If he is successful, it would have serious implications for the Committee as Mr Oriani-Ambrosini maintained that the rules from the Third Parliament were not properly adopted; and should the court rule in his favour the work done by Parliament since 2009 could be invalid, having operated under invalid law.

A legislative proposal had been received from Adv A Alberts (FFP) to amend the Employment Equity Act No 55 of 1998.

The Chairperson announced that the Committee Secretary had been awarded a doctorate the day before and was now Dr Barbara Loots. He congratulated her on behalf of the Committee; the Committee was very proud of her.

Davidson proposal: Correct certain anomalies in the Executive Members’ Ethics Act No 82 of 1998
The Chairperson drew the attention of Members to Rule 235A, criteria for consideration of proposals; d) referred to whether the proposal pre-empted similar legislation soon to be introduced by the national executive. The Department of Justice had indicated that it was looking at amending the Executive Members’ Ethics Act and had submitted a letter giving time frames as to when it was expected that proposal would be submitted to Parliament. The Department’s proposal was to be submitted to Cabinet in March and possibly submitted to Parliament in April. He invited the Department to speak to that.

Mr Johan de Lange, Principal Senior Law Advisor, Department of Justice and Constitutional Development, informed Members that last year, following the Public Protector’s report and at the request of Cabinet, the Department had started looking at not only the perceived shortcomings in the legislation but also at what was perceived as international best practice. In November last year, the Department went back to Cabinet with two sets of proposals, firstly with draft amendments to the Executive Members’ Ethics Act, and, secondly the Code. The Executive Ethics Code was promulgated by way of proclamation by the President, after consultation with Parliament. It was also identified that there were shortcomings to the Code. Proposals were submitted to Cabinet to amend the Act and draft amendments to the Code. The Department through the Minister of Justice could deal with the Act, but the draft amendments to the Code would need to be dealt with by the President after consultation with Parliament.

Cabinet, in November, approved the principles underlying the amendments and the Department would either this week or next week be publishing the draft bill amending the Act on the their website and invite public comment thereon. Pending Cabinet’s final approval, the Department was expecting to introduce the bill around April or May. The bill would be submitted to the Minister, who would, in turn, submit it to Minister Collins Chabane in the Office of the President. The draft amendments to the Code, which would be dealt with by the Office of the President, would then be referred to the Speaker.

The Chairperson thanked Mr de Lange for his explanation of the process followed thus far.

Mr L Greyling (ID) was co-opted to enable the Committee to be quorated.

Mr P Pretorius (DA) proposed that Rule 235A d) applied as the legislation was in the process of being amended.

It was agreed to take the criteria 235A d), that the proposal pre-empted similar legislation soon to be introduced by the national executive, as the reason not to proceed with the proposal. The Committee would adopt the following week and submit to Parliament.

Mr Pretorius added that time frames must be included.

Greyling proposal: Regulate private funding of political parties
The object of the proposal was to regulate the issues of disclosure of private donations to political parties; disclosure of election expenditure and the possibility of spending caps; political parties holding business interests; and donations from foreign entities.

The Chairperson informed the Committee that legal opinion had been received, highlighting that there were some challenges with regard to the Constitution.  The Constitution referred to political parties as legal persons and the rights given to individuals were also given to political parties.

Ms M Kubayi (ANC) expressed concern at the possibility of violating the Constitution, and that the proposal could contravene the Constitution in terms of rights. If Parliament were to proceed to legislate and regulate the funding of political parties, what would be the implications when crafting that legislation? This sort of legislation might kill small parties, and South Africa enjoyed a multi party democracy. She felt that the proposed regulations might infringe the rights of the people who supported those political parties.

Mr Greyling asked the Chairperson’s permission to take the legal opinion to a Constitutional Lawyer to look at the interpretation. Although the proposal had certain limitations on the Constitution, the Bill of Rights (section 36) did allow for certain limitations provided that they were in line with human dignity, equality and freedom. The rights of the public to know which political parties were funded by who, that there was no undue influence from certain corporations on political parties was of greater right than the right of a political party as a juristic person. Smaller parties were all concerned that currently there was no regulation with regard to party funding.

Mr Pretorius commented that the Committee had become very technical, instead of looking at the merit of the proposal; there was a need to consider the criteria a) whether it went against the spirit, purport and object of the Constitution, and the Committee should be led by the experts.

Adv Mukesh Vassen, Legal Advisor, Parliamentary Legal Unit, advised that when looking at the Bill of Rights, one had to look at Section 36(1) which provided that the rights in the Bill of Rights “may be limited only in terms of law or general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -

(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose”.

 On the one hand there was the right to transparency and the right to privacy and so on, so there could be unintended consequences of maybe private people not wanting to support political parties, and Section 1(d), which was the founding values of the Constitution, was based on the multi party system.

Mr Vassen felt that possibly more research was needed because the legislative proposal was very broad and difficult to analyse whether the rights would be a justifiable limitation. More detail could be given if the proposal was expanded upon.

The Chairperson asked the Committee whether it wanted further research or that the proposal be referred to the appropriate committee, or that in the light of the criteria in Rule 235A a) not recommend continuation.

Ms Kubayi proposed not to proceed, given the complexity of the issue. Some of the issues raised could be challenged in the Constitutional Court.

Mr Greyling read the legal opinion as weighing up the balance of rights; on the one hand the rights of a political party as a juristic person could be limited by the legislation, but that limitation could be justifiable in the way the legislation was crafted.

The Chairperson said the Committee had taken a decision to recommend not to proceed as guided by Rule 235A a), that it went against the spirit, purport and object of the Constitution.

Mr Pretorius noted that Adv Vassen had indicated that he did not have much time, was it possible that he might come up with a different opinion if he had more time?

Adv Vassen replied that it was not a matter of time but that the legislative proposal was scant and therefore difficult to weigh up the balances between the rights.

Ms A van Wyk (ANC) supported the proposal not to proceed, and agreed with Adv Vassen that the proposal was scant, which was also an argument in the Idasa case.

Mr Greyling recalled that in the Idasa case, the judgement specifically said that “it did not mean that political parties should not as a matter of principle, be compelled to disclose details of private donations made to their coffers. [IDASA] have nevertheless made out a compelling case - with reference to both to principle and comparative law – that private donations to political parties ought to be regulated by way of specific legislation in the interest of greater openness and transparency”. So the court case was not saying that it was unconstitutional, it was saying that it was not for the court to legislate it was for Parliament to legislate. A commitment was made by the ANC in that court case to do that.

Ms Kubayi said there was no problem with the principle; the principle of a funding mechanism was not an issue. The proposal mentioned disclosure above a certain amount and went into detail as to how it should be done, which were the problematic areas with constitutional challenges.

The Chairperson said the criteria set up by the rules were very clear and the Committee had heard legal opinion. He asked whether there were any objections to the proposal not to proceed.

Mr Greyling dissented.

The Chairperson said that would be registered in the recommendation.

Davidson proposal: Prohibit contracting between an organ of state in the national sphere of government and companies whose directors are party political office bearers or public representatives of political parties
The Chairperson announced that a letter had been received from the Chairperson of the Standing Committee on Finance requesting more time to review and comment on the request.

Ms van Wyk suggested allowing that committee more time, but that the criteria contained in Rule 235A should be sent to them so that they would be aware of the rules guiding the Committee.

It was agreed to allow them more time, but the submission to be received before the second meeting of the second quarter.


The Committee was unable to proceed with the remaining items on the agenda, due to the lack of a quorum.

The meeting was adjourned.


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