Protection from Harassment Bill; Extension of Chief Justice term of office

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Justice and Correctional Services

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

The Committee had final deliberations on the Protection from Harassment Bill and also discussed the impending legal challenge on the extension of the term of office of the Chief Justice by the President. The Committee outlined the defence for journalists in the Bill under clause 9(4A), which was that even though there was no outright exemption from a harassment order, a court was provided with certain considerations to take into account when determining ‘unreasonableness’.  Furthermore, clause 3(5) provided for the return date of the final court order to be held earlier than the specified 10 days after written notice of not less than 24 hours had been served to the court and complainant. The whole Committee felt that this was a fair compromise. The state law advisors were of the opinion that if one wanted to amend certain Acts that were not consequential in nature they could not do it via a Schedule. The effect of this drafting principle was that Section 384 of the Criminal Procedure Act and Domestic Violence Act, which were in the Schedules had to be removed. The Committee agreed with this view, as the Protection from Harassment Bill was a civil Bill and not a criminal one.  The drafters were instructed to remove Section 384 of the Criminal Procedure Act and Domestic Violence Act under the Schedule and insert them under the Judicial Matters Amendment Bill. The Regulations would not have to be approved by the Committee and would merely be tabled before Parliament. An opposition member expressed concern that the definition of ‘harassment’ could be too broad. The Committee was in support of the amendments to the Memorandum of Objects of the Bill.

The next item on the agenda was the legal challenge on the extension of the term of office of the Chief Justice by the President. The opposition parties said that they supported the action by the President however to avert a situation where the Chief Justice would have his peers adjudicate in litigation that concerned him, the Justice Portfolio Committee could come up with a Bill that extended the Chief Justice’s term of office. Initially the majority party decided to consider the matter. However, it changed its mind when it was explained by an African National Congress Member that the President believed that he had acted legally and had sought legal counsel on the matter and secondly, the passing of the proposed Committee Bill would not stop the legal challenge unless the President decided to withdraw his action. The proposal from the opposition was rejected via a majority vote against it.

Meeting report

Mr Lawrence Basset, Chief Director: Legislative Development from the Department of Justice and Constitutional Development (DOJ&CD), said that the B list with options has been prepared. There was also some re-numbering in the Working Draft document and some cross-referencing has been undone. An adapted Memorandum has been attached to the documents provided for the Committee.

Mr Sarel Robbertse, Senior State Law Advisor from the DOJ&CD took the Committee through the new amendments. The defence clause had been included in clause 9(4A) under Issuing of a Protection Order (old clause 6 now renumbered as clause 9).

Mr J Jeffery (ANC) said that each issue should be discussed as the Committee went along. The first issue was media exemption. The suggestion was that the defence contained in the Bill contained issues that the court could look at when deciding whether the conduct was unreasonable. This was how it was contained in the Working Draft on page 19 as the alternative option in clause 9(4A). This was a good compromise to address the media's concerns, it did not exempt them from harassment orders but it did allow for the court, in determining unreasonable conduct, to consider the purpose for which such conduct was carried out. Where journalists felt that time was of the essence for the purposes of their work, they could appeal for the return date of the final court order to be held earlier than the specified 10 days after written notice of not less than 24 hours has been served to the court and complainant. This was under clause 3(5).

Ms D Schäfer (DA) agreed.

Mr S Swart (ACDP) also agreed.

Mr Robbertse moved on to say that clause 18(3) should be retained and a magistrate should have the powers to subpoena a person.

The Chairperson and Members agreed that it should.

The last issue was in the Schedule where the Criminal Procedure Act had been included as an Act being amended. The Department had been asked to look at whether a dissimilar Act could be amended and put in the Schedule. There had been no evidence found that in South Africa a dissimilar Act could be amended and put in a Schedule of a Bill. The state law advisors were of the opinion that if one wanted to amend certain Acts that were not consequential in nature they could not do it via a Schedule. The amendment of dissimilar legislation had to be done via primary legislation. It could be problematic to include the amendment of Section 384 of the Criminal Procedure Act in the Schedule.

Mr Lawrence Basset said that the opinion from the state law advisors was not a formal one and it had been gathered during informal discussions. The amendments to the bail legislation and Firearms Control Act were consequential and there was no problem in having them in the Schedule. The legislation that was unclear was the Criminal Procedure Act and Domestic Violence Act.

Mr Sisa Makabeni, DOJ&CD State Law Advisor, said that only consequential amendments should be included in the Schedule.

Mr Jeffery said that it was not correct to make amendments to other things in the amendments; it would be preferable if those amendments that were not consequential be removed and inserted under the Judicial Matters Amendment Bill.   

Mr Robbertse confirmed that Section 384 of the Criminal Procedure Act, the conditions for bail hearings, would come out as well as the amendments to the Domestic Violence Act.

Mr Jeffery agreed. He added that the Committee has not resolved the issue of the Regulations and whether it wanted to approve them.

Mr Robbertse said that most of the Regulations were procedural in nature and did not require any policy decisions thus they could merely be submitted to Parliament. 

The Chairperson said that the Members had discussed this during the last meeting and the Regulations could just be submitted.

Ms Schäfer said that she was worried about the possibility of the definition of ‘harassment’ being too broad.

Mr Robbertse said that it would be difficult to restrict the definition of harassment and doing this might have some unintended consequences. The definition was designed to allow the court to apply its mind when considering all circumstances before coming to a decision.

Mr Jeffery said that all angles were covered as it was an objective reasonableness test that would be applied by the courts when determining whether conduct was reasonable or unreasonable. 

The Chairperson said that the next item was the Memorandum of Objects.

Mr Jeffery said that he had reservations about approving a document that was not the Committee’s; he had strong reservations about the need to approve the Memorandum and felt that he was shouting in the wind. However he supported the amendments to the Memorandum.

Dr M Oriani-Ambrosini (IFP) asked if someone who falsely accused another of harassment would be subject to crimen injuria.

Mr Robbertse said no.

Dr Oriani-Ambrosini said that the Committee should deal with this matter.

The Chairperson said that this matter has been dealt with and debated at length by the Committee.  As there were no other matters the Committee would vote on the Bill on 15 June.

Extension of the Term of Office of the Chief Justice by the President
Ms D Smuts (DA) said that a difficult situation had arisen as a result of the President’s action of extending the term of office of the Chief Justice. There was now a legal challenge on the law that was used by the President to extend the Chief Justice’s term of office, by certain non governmental organisations (NGOs).  What was undesirable about this situation was that it put the Chief Justice in contention and that his brethren and sisters would have to sit in judgment on his term. This was unbearable, the proposal was that the Justice Committee could resolve this situation by putting before the House a one line Committee Bill that extended the term of Office of the Chief Justice by five years. Alternatively a Bill could be put before the House that where a Chief Justice had sat for less than five years, his/her term would not be terminated until a five-year period had passed. Such a Bill would put the position of the Chief Justice beyond dispute and the NGOs could still mount their challenge. The DA had supported the Judges’ Remuneration and Conditions of Employment Act (No 47 of 2001) when it was passed. Everybody was acting in good faith but the situation was becoming unhealthy and it should not be politicised. It was not necessary to have an answer now - the matter could be mulled over.

Mr J Sibanyoni (ANC) said that Members should apply their minds before making a decision.

Dr Oriani-Ambrosini said that the extension of a term of office of a Chief Justice by the Executive was repugnant.  The Constitution was amended to allow for an Act of Parliament to extend the term of office of a judge, this meant that the Executive was excluded and Parliament only was involved. The first part of the proposal was necessary but not the second. This matter was urgent and a group of senior advocates had approached him to join in the application as an amicus curia and other Members have been approached or would be approached. The IFP had no problems with the decision of the President.

Mr Swart said that the ACDP was in favour of the decision and agreed with what has been expressed. It was not in the interests of the Judiciary to have the President extend the term of office of the Chief Justice. This sort of action led suspicious individuals to speculate whether a Chief Justice would deliver a favourable judgment if the Executive was involved in securing another term. The Committee had in the past come up with the sort of Bill that was being proposed. The majority party should seriously consider this so as to alleviate the precarious position of the Chief Justice. This would allow Parliament to emphasise the separation of powers rule. 

Prof G Ndabandaba (ANC) said that this was a serious matter and the proposal should be mulled over and the Committee could make a decision in the next meeting.

Mr Jeffery said that the support from the opposition parties on the extension of the term of office of the Chief Justice was to be welcomed. The situation was that the President has acted in terms of existing law. The situation had arisen because when the Constitution was drafted the inaugural Justices were drawn from the Supreme Court of Appeal (SCA). The former Chief Justice Arthur Chaskelson also ran into similar problems. It was unfortunate that there was a legal challenge and it put the Chief Justice in a difficult position. Passing the proposed Committee Bill would not stop the legal challenge unless the President decided to withdraw his action. The President believed that he had acted legally and had sought legal counsel on the matter. This was not a new issue as the term of office of judges could be extended and the President appointed the Chief Justice which was part of his powers. Ms Smuts could pursue this matter through the Private Members Legislative Proposals Committee but it was not foreseeable that the Justice Portfolio Committee could agree to this proposal because the President has acted in terms of the law. It was not clear as to why there was a legal challenge because if there was uncertainty in the law it would have been dealt with in the Superior Courts Bill, perhaps the NGOs were impressing their funders. There was no point in the proposal and I would not support it. The Committee should move to reject the proposal and not have the item on the agenda.

The Chairperson asked about the proposal from Mr Sibanyoni.

Mr Sibanyoni said that he withdrew his proposal.

Ms Smuts said that she felt it was unfortunate that the proposal was not supported and the Democratic Alliance would discuss it further.

Dr Oriani-Ambrosini said that given the formal motion from Mr Jeffery, the draft Bill proposed by Ms Smuts should be tabled and made part of the record. 

The Chairperson said that the motion was now and there was no draft Bill in front of the Committee.

Dr Oriani-Ambrosini said that the motion was rejecting something, so there had to be a Bill in front of the Committee that was being rejected by the Committee.

The Chairperson said no, the request from Ms Smuts was for a Bill to be drafted, placed before the Committee for approval and then tabled before the National Assembly. The request from Dr Oriani-Ambrosini was that the Bill should be tabled now and Mr Jeffery was saying no.

Dr Oriani-Ambrosini said that the Bill was sent to the Chairperson and Mr Jeffery yesterday. It was a one-line Bill which amounted to a formal resolution. What was being said and done now in the Committee could become part of the constitutional litigation.

The Chairperson interjected and said that was precisely what he was concerned about. He did not want the Committee to be made part of the legal process of the application.

Dr Oriani-Ambrosini said that he was pleading for proper parliamentary procedure to be followed and that the recording of what has been moved, adopted or rejected by the Committee was correct so that an additional level of uncertainty was not created. Ms Smuts had put forward a formal proposal for which the Chairperson and Mr Jeffery had received notice yesterday.

The Chairperson said that Dr Oriani-Ambrosini had said that he had been asked or probably would become amicus curia. The correct procedure would have been to give the Bill to the Committee Secretary.   

Mr Jeffery said that Ms Smuts was correct in terms of procedure but Dr Oriani-Ambrosini was not. The email has not been seen by himself but he could have received it. A Committee could not proceed with a Bill unless it had permission from the House. Ms Smuts was asking for the Committee to put to the House that the Committee request to proceed with a Committee Bill, the Committee has said no to that. 

The Chairperson put the matter to the vote and the proposal was rejected five to four with the Chairperson voting as well.

Meeting Adjourned.

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