State Liability Amendment Bill: Correction; Committee's Report adoption, Russell Tribunal request

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Justice and Correctional Services

01 June 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee noted that although it had adopted the State Liability Amendment Bill and the Committee’s report on the Bill on the previous day, some anomalies had since been identified and needed to be discussed further by the Committee. The drafters pointed out a problem in the new section 3(6), concerning the time frames, as the stated period of 30 days before issuing of a writ did not take into account the further 14 days accorded to a Treasury to ensure that payment was effected. The time frame therefore needed to be amended to make it clear that no writ would be issued before both the 30 days and the further 14 days had lapsed. Furthermore, Members indicated that the wording of “may”, in relation to the Registrar or Clerk of Court, did not correctly reflect the intention that once all procedures had been followed, the writ should be issued. All Members agreed with the rewording of the new section, to correctly reflect the intentions of the Committee, and therefore also agreed with the adoption of the re-worded Bill, although the IFP Member indicated that although he agreed with the process and the specific wording of this clause, he still did not agree with the adoption of the Bill as a whole.

The Chairperson gave Members an opportunity to discuss the request by the Russell Tribunal that it be hosted by the South African Parliament and be permitted to use the Good Hope Chamber. The majority recorded their disagreement, pointing out that this would set an unwise precedent, could imply that the Tribunal was being accorded legitimacy by Parliament, would have trade and economic implications, and in any event was an issue that related to foreign affairs and therefore was not properly within the purview of this Committee. Members also noted that the Speaker had already refused the request, as had other Parliaments in England and Vietnam.

The Committee discussed the draft Committee Report on the strategic plans and budget of the Department of Justice and Constitutional Development (the Department). Members wished to emphasise that the review of the judicial process should be accelerated, and made the point that it would also be important to discuss this specifically with the Department. Paragraph 7.4.1 and 9.4.3 were to be more strongly worded. The Committee highlighted the problems the Department had in collecting legal fees, and noted that details of vulnerable groups must be provided. Representation of farm workers had to be specifically included, as well as issues of local government relations. The Committee noted its regret that although the Committee had invited the Law Society of South Africa, and the General Council of the Bar for comment on an issue, they had declined the opportunity. A Member asked if the budget of Legal Aid South Africa could be adjusted. Further technical amendments were made before the Committee adopted the Report, as amended.

Meeting report

State Liability Amendment Bill & Committee Report: New section 3(6): Anomalies identified
The Chairperson stated that he would like the Committee to return to the State Liability Amendment Bill. Although the Committee had finalised this on the previous day, some anomalies were later identified, and he wished the Committee to deal with them.

Dr M Oriani-Ambrosini (IFP) stressed that if deliberations were being re-opened on the Bill, then the Chairperson would also effectively be re-opening deliberations on the Committee’s Report on the Bill.

Ms D Schäfer (DA) pointed out that she had identified something in the Bill that needed to be discussed.

The Chairperson said that it was preferable to deal with any anomalies now, rather than later, and there was no need that anyone be embarrassed by this.

Dr Oriani-Ambrosini asked whether this would result in the Bill being amended.

The Chairperson responded that this would depend on the Committee’s discussions and decisions.

Mr J Jeffery (ANC) pointed out that the discussions would also have a bearing on whether the Committee’s report on the Bill would be amended as well.

Mr Johan Labuschagne, Principal State Law Advisor, Department of Justice & Constitutional Development, outlined that he had identified some anomalies in regard to the procedure and time frame. Currently, the version of the State Liability Amendment Bill adopted by the Committee on the previous day, in the new section 3(6), provided that a judgment debt was supposed to be satisfied within 30 days of the order becoming final. However, this did not take into account the 14-day period within which a Treasury was supposed to ensure that the judgment debt was satisfied, and make arrangements with the judgment creditor for the satisfaction of the judgment debt. This meant that the Sheriff could attach, but not remove movable property owned by the State and used by the Department concerned. The writ or warrant should, therefore, be stated as able to be issued only after expiry of this further 14-day period.

Mr Jeffery pointed out that what was currently in the new section 3(6) did not reflect the intention of the Committee, and suggested that this be reworded, in line with what had been said by Mr Labuschagne.

Ms Schäfer also agreed with Mr Labuschagne.

Mr S Swart (ACDP) was happy with the proposed substitution of the time period.

Dr Oriani-Ambrosini said that he would not object to the proposed new subsection (6). However, he reserved his acknowledgement on the whole Bill.

Ms Schäfer said that she still had a concern with the use of the word "may" in subsection (6), which would seem to give the Registrar or Clerk of Court the discretion whether or not to issue the writ of execution.

Mr Labuschagne was of the opinion that the word "may" should remain, because there were various steps that needed to be taken. Before the writ was issued, the Clerk or Registrar had to be satisfied that the 20 day and 14-day periods had lapsed.

Mr Jeffery pointed that if procedures set out something, then “must” was the appropriate word to use. He agreed that “may” could be interpreted to mean that, even if all the steps had been followed, the official could still refuse to issue the writ. It was not the intention that the Clerk or Registrar have a discretion.

Dr Oriani-Ambrosini stressed that the word should not be subject to interpretation and agreed that “must” was the correct word to use.

Mr Swart agreed.

The Chairperson pointed out that the Committee, having decided upon the changes, must then take a decision whether to review and rescind the decision taken at the previous meeting. Once this had been done, the Committee would then have to formally approve the new Bill.

Mr Jeffery said that he did not think it was necessary to formally rescind the decision made at the meeting of 1 June, to adopt the Bill. The Committee still intended to adopt the Bill but was merely making technical amendments that had previously been missed, in order that the clause correctly reflect the intentions of the Committee. The Committee had always intended that the Registrar or Clerk “must” attend to the procedures, and that the time frames be followed. However, he formally noted his agreement both with the process and with the two amendments made. Members would need to report back to their caucuses.

Dr Oriani-Ambrosini said that he agreed to the process. However, he still did not agree with the adoption of the whole Bill.

The majority of Members indicated their approval of the revised Bill.

Russell Tribunal hosting: discussions  
Mr Swart indicated that his party was opposed to a Committee of the South African Parliament acting as the host for the Russell Tribunal. The first reason was that it was concerned about the precedent that this might create for other similar requests, and highlighted letters that he had received from both East Timor and North Africa groupings. Secondly, he noted that his research on the Russell group showed that it had not been given permission to use the Parliamentary facilities in either Vietnam or London, where it had made similar requests. The danger in allowing the hosting would be that a Non-Governmental Organisation (NGO) would, by implication, be granted a huge degree of legitimacy. This government had a very clear stance on Israel, including trade relations. Summons that had been issued to companies who had trade links with Israel to explain these relations would have an impact on trade and economic development in South Africa. Finally, he questioned whether this Committee should be considering issues that related to foreign affairs.

Dr Oriani-Ambrosini said that he had been convinced by the arguments put forward by Mr Swart and these would enable him to convince his caucus that the Russell Tribunal should not be hosted. He had already reported on his own reservations to his caucus. He agreed that the hosting, if agreed to, would jeopardize trade relations. He made the point that human rights should not take a second place to trade relations, but should at all times be highlighted. He also asked how a country could be held accountable to an NGO.

Ms M Smuts (DA) thought it was procedurally incorrect for a Parliamentary Committee to be asked to host an NGO, and asked for what reasons an NGO should be given a platform, and whether any other Committee in Parliament had ever been asked to host an NGO.

The Chairperson gave his personal view that it would be extremely unwise for the Committee to host the NGO. He outlined how the Russell Tribunal had informally approached him, and had then approached the Speaker of Parliament, formally, to request that it use the Old Assembly Chamber, but that this request had been turned down. The reason was that Parliament had a policy that related to precedence. The Deputy Minister of Cooperative Governance and Traditional Affairs, Mr Yunus Carrim, had told Mr Landers that at one point a Committee he had then been chairing had hosted a similar group, but it was up to the Committee Members to make the final decision.

Mr Swart pointed out that there had been a meeting with Arab Members of Parliament, but there were no members of an NGO included in this group.
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Ms Schäfer asked whether the Committee could override what the Speaker had said.

The Chairperson pointed out that this Committee was merely discussing the points, and would not be overriding the decision of the Speaker.

Committee’s Draft Report on the strategic plans and budget of the Department of Justice and Constitutional Development
Ms Christine Silkstone, Content Advisor, Parliament, pointed out that pages 1 to 10 of the draft Report of the Committee (the Report) on the strategic plans and budget of the Department of Justice and Constitutional Development (the Department) were merely a summary of what the Department had said. Members agreed that it was not necessary to make any changes to this.

The Committee then noted that no amendments needed to be made to pages 10 to 13.

Dr Oriani-Ambrosini asked that, on page 14, some reference should be made to the points about the review of the judicial process, to improve its efficiency.

Ms Smuts pointed out that the document of the Department had indicated that the civil justice system would be reviewed.

Dr Oriani-Ambrosini was aware of that, but still felt that the Committee should highlight this point in the report. It was an important matter, and the review should be accelerated, because the cost of litigation was very high.

Mr Jeffery agreed that Dr Oriani-Ambrosini’s concerns were valid. His concern, however, related to the process, as he thought that, rather than noting this as a single line in the Committee’s Report, it would be necessary to have substantially more attention paid to the issues, and to discuss it with the Department.

Mr Jeffery also suggested that, on page 14, at paragraph 7.4.1, the Committee should express its extreme disappointment about the ongoing delays in giving effect to the Truth and Reconciliation Committee’s recommendations, which were the responsibility of the Department.

Mr Swart asked that on page 15, a sentence be inserted to reflect the concern that the Department was experiencing problems in collecting legal fees that were disbursed on its behalf.

The Chairperson agreed with Mr Swart. He pointed out that in the end the Office of the State Attorney carried the costs.

Mr Jeffery stated that the Department had been asked to submit details or names of vulnerable groups who were supposed to be briefed, and that this too should be included on page 15.

The Committee made no amendments to pages 16 and 17.

Mr Swart pointed out a typographical error for the word “be” in the third line of page 18, for correction.

Members did not require any changes to pages 19 and 20 of the Report.

Mr Jeffery said that on page 21, the issue of representation of farm dwellers needed to be noted.

Ms Schäfer noted that the wording of paragraph 9.4.3 was not strong enough.

Mr Jeffery agreed with Ms Schäfer, and stated that the statement had to be rephrased, to reflect that the Committee supported the goals, and was of the money that more money should be allocated

Mr Oriani-Ambrosini asked whether there was any possibility of calling for alterations to the budget of Legal Aid South Africa.

Mr Jeffery pointed out that such issues could be dealt with in the Budget Review and Recommendation Report process.

Mr Oriani-Ambrosini thought that it should be recommended in this report.

The Chairperson pointed that the issue of local government relations also had to be dealt with on this page.

Mr Swart noted a correction to the figures on page 22. The figure of “R193 620” should be written as “193.62 million”.

Mr Jeffery stressed that it should be noted that the Department was saving costs by not flying business class.

Ms Silkstone responded that it had been noted.

Mr Jeffery stressed that a little summary of the position was still necessary.

Members did not require any changes to pages 23 to 28.

The Chairperson indicated that on page 29, at paragraph 12.9.4, there needed to be some rephrasing.

Mr Jeffery pointed out that the Law Society and the General Council of the Bar were invited, by the Committee, to comment but they had declined to do so. The Committee should note its regret that the two parties had not taken this opportunity.

Members did not feel that any changes were necessary on pages 30 and 31.

Members then adopted the Report, with amendments.

The meeting was adjourned.

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