Van Rheede van Oudtshoorn special petition: deliberations; Second Term Sessional Report

Private Members' Legislative Proposals and Special Petitions

23 August 2011
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

Van Rheede van Oudtshoorn special petition
A Parliamentary Legal Advisor said that there had been a gap in legislation and it was the right of this Committee and of this Parliament to enact legislation that sought to address the needs of the people who were not covered by any other legislation. The petitions that came to the Committee were almost always about pensions, so there was definitely a gap and this Committee had the right to address those issues. The Committee agreed that the petitioner should be informed about the cost implications for her should she go ahead with the petition. The report would also state that the departments concerned correct what it had done. The Committee would advise that the petitioner should be protected. National Treasury and departments concerned would be informed. 

Davidson proposal to regulate interest of State employees
This issue was deferred due to time constraints.

 

Committee's Second Term Sessional Report
The report was adopted with amendments.

Fact Sheet 2
Adoption was deferred to another meeting to give Members the opportunity of familiarising themselves with the document.

Meeting report

Introduction
The Committee then being short of one Member to form a quorum, the Chairperson put out a plea to Members to prioritise meetings of the Committee as most of its work required a quorum.

As the joint meeting with the Portfolio Committee on Public Service and Administration at 09h00 last week had been well attended, it was decided to change the time of meetings from 08h00 to 09h00. Approval was awaited from the House Chairperson.

The study tour had also been discussed with the House Chairperson. As the Committee did not play an oversight role it did not utilise its budget. The revival of the Petitions Bill would require the Committee’s staff to work on it. That would allow the Committee to consider the study tour; the last decision had been to prioritise Canada as the country to be visited in trying to enrich the Petitions Bill for operation, very few countries had a similar structure to that of South Africa. The idea was to learn how to encourage Parliament to work better in this country. It was considered to go in January. Staff members would work on the proposal to the House Chairperson.

Ms A van Wyk (ANC) commented that in about 1997/1998 the German Parliament also had a similar committee and the then Petitions Committee was sent to look at it.

Ms J Sosibo (ANC) commented on the change of time for meetings. The reason why the decision was made to meet at 08h00 was because Members complained that they could not attend as they had other priority meetings.

The Chairperson said those factors would be looked at.

Ms M Pilusa-Mosoane (ANC) commented that she had tendered apologies for the last meeting but her name was not listed.

As all the items on the agenda required a quorum, much time was wasted waiting for an additional Member.

 

Van Rheede van Oudtshoorn petition
On 3 August the Committee had received briefings by National Treasury, the Government Pension Administration Agency, and the Department of Justice and Constitutional Development on the Van Rheede van Oudtshoorn special petition.

Mr P Pretorius (DA) said one side of the argument was that Treasury was warning the Committee about possibly opening the floodgates; the other side of the argument was that there were mitigating circumstances where the person was under the wrong impression that she would qualify: she had filled in the forms too late and did not qualify. He was concerned as to whether the petitioner understood the process going forward. She received a lump sum of R194 000; if her petition were granted it would mean she would have to pay back R131 000 because there were different rules applicable, and also buy back an additional three months service. The Committee could take Treasury’s lead, but Mr Pretorius did not think there would be floodgates because there were affidavits to support that there was a misunderstanding at the time. The problem remained whether it was practical and feasible for Mrs Van Rheede van Oudtshoorn to continue with her claim against the State seeing that she had to repay that money.

Mr Pretorius suggested communicating with Mrs Van Rheede van Oudtshoorn, pointing out the implications of her request and to determine from her whether she intended proceeding in view of the financial implications. He understood she might not have the means to go to court.

Ms Sosibo supported Mr Pretorius in writing a letter to Dr L Bosman (DA); maybe the petitioner was not aware of the financial implications. She did not think that the monthly annuity would help her much. The Department had failed to answer whether it had notified her of the three months because it was assumed she had been informed of the procedure. It would be better to communicate the Committee’s concerns and to determine whether she intended proceeding in view of the financial implications.

Ms F Khumalo (ANC) believed that according to information in the documentation the petitioner had been well informed. The petitioner was requested to write a motivational letter to say why she needed to buy the additional three months to qualify. Ms Khumalo believed the Committee should refuse the petitioner's request, otherwise it would be opening a can of worms.

Adv Gary Rhoda (Parliamentary Legal Advisor) said he was not able to respond to National Treasury which had made a presentation on the petition. National Treasury had referred extensively to the law of general application, but he wished to correct her. The law of general application only applied when it was a limitation on a right in the Bill of Rights. Laws did not have to be of general application. If one looked at the rules that spoke about the special petition, there had been a gap in legislation and it was the right of this Committee and of this Parliament to enact legislation that sought to address the needs of the people who were not covered by any other legislation. One could see by the petitions that came to the Committee that they were almost always about pensions, so there was definitely a gap there. An amendment had recently been introduced into Parliament dealing with one gap where the Government Employees Pension Laws Act did not address the situation of divorces and the ex spouse of that member was now entitled to that pension. The amendment sought to address that issue. When it came to pensions there was a gap and this Committee had the right to address those issues. It would not open up the floodgates because that was what the special petition was about. The Law of General Application applied to limitation, Section 36 of the Constitution.

The Chairperson thanked Adv Rhoda for that legal explanation.

Mr Pretorius said that, if the Committee approved the request, the end result would be a law specifically for this case.

The Chairperson said that explanation meant going back to what all of the presenters had argued. The issue at stake seemed to be a clash of understanding between the employer and the pension scheme. The employer had argued that once one was a member of that scheme, it was between the employer and the scheme to let one know of the processes that were there. The scheme was expecting the employer to tell it the way things were supposed to happen. That had led the Committee to ask who was responsible to communicate to Ms van Rheede Van Oudtshoorn. The issue of special petitions should be understood in the context of special petitions and should not be open to any general law, principle, and understanding that the Committee needed to operate from. There seemed to be limited reason for the Committee to push the Department of Justice and Constitutional Development and National Treasury to pay Ms Van Rheede van Oudtshoorn, but at the same time it should be acknowledged that, if the Committee took that decision, it should be able to send a clear message to both Treasury and Justice to say that the people must be properly advised. In this case the issue was that nobody had informed Ms Van Rheede van Oudtshoorn about her rights, and that could not just be ignored. That area should also be addressed in the Committee’s report to say it would want Treasury and affected departments to have a clear indication as to how these provisions were communicated to their employees. He agreed with communicating with the petitioner not to push the matter because of financial implications, but she had the right to decide otherwise, particularly as the employer abdicated his responsibility and failed to exercise to help her to take a well-informed decision. She decided to leave three months before the time and decided not to buy because nobody informed her of her options. The message should go to the departments.

Ms Van Wyk agreed with going the route of informing the petitioner about the cost implications for her should she go ahead with the petition. For the Committee not to do that it would be doing exactly what the relevant departments did at that time. She also fully agreed that the report address that the departments concerned correct what they had done. Floodgates opening or not was a bad argument for not dealing with the petition.

Mr Pretorius confirmed that, if floodgates were opened, this Committee would be the place where it would stop them. Procedurally the Committee must communicate with Dr Bosman not the petitioner.

The Chairperson said the Committee would advise that the petitioner who invited Dr Bosman to write on her behalf should be protected. That would also be reflected to Treasury and the departments.

 

Davidson proposal to regulate interest of State employees
At the joint meeting last week the Minister of Public Service and Administration had outlined the programme of the Ministry.

Mr Pretorius did not think the issue could be dealt with in the limited time available. The Minister gave information that ultimately may lead to legislation, but it was a long process still in the pipeline.

In view of time constraints the matter was deferred for the Committee to deliberate in depth on the issue.

Second Term Sessional Report
Mr Pretorius commented that the Government's priority was indicated to be fighting crime and corruption (last item on page 4 and the first on page 5). He commented on the legislative proposals to repeal the Boxing Act and correct anomalies in the Executive Members’ Ethics Act, and observed that fighting crime and corruption were more about improving governance. He also referred to the amendment to the Labour Relations Act and the amendment of the Employment Equity Act.

The Chairperson agreed that many of the proposals cut across more than one area; it would be appropriate to consider governance.

Ms Van Wyk agreed.

The report was adopted with amendments.

Fact Sheet 2
Mr Pretorius commented that there were two types of petitions; one was a general petition and the other a special petition. The Committee dealt with special petitions only. He suggested that the first, introductory paragraph, should distinguish between the two.

The Chairperson replied that other committees dealt with ordinary petitions; he agreed that the first definition warranted amendment.

Adoption was deferred to another meeting to give Members the opportunity of familiarising themselves with the document.

Committee Minutes: adoption
The Committee adopted the minutes of 22 June and 3 August 2011. 

The Chairperson thanked Ms Van Wyk for keeping the Committee running during his absence.

Mr Pretorius referred to the letter from the Institute for Democracy in South Africa (IDASA) that had been circulated to Members but which he had not received.

The Committee Secretary replied that the letter was circulated to Members before the meetings on 3 and 10 August 2011.

The meeting was adjourned.

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