Trollip proposal to amend the Executive Members' Ethics Act: finalisation, Smalle proposal to amend Lotteries Act: deliberations

Private Members' Legislative Proposals and Special Petitions

06 March 2012
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee continued with deliberations on the Trollip proposal to amend the Executive Members’ Ethics Act, No 82 of 1998 (the Act). This proposal attempted to ensure that the public could more easily access the President’s declaration of interests, that the Public Protector should adjudicate upon the President’s compliance with the general standards of ethical conduct, that the Public Protector adjudicate upon gifts or conflicts of interest, and that the Auditor-General scrutinise any state deals involving any family member of the President must be scrutinised by the Auditor-General. At its previous meeting, the Committee had discussed the Constitution and present Executive Members’ Ethics Act. An opportunity was given for final submissions. One DA Member appealed that the Committee must look into the merits of every proposal, as set out in Rule 235(4)(a), although the desirability of the proposal would be a matter for another portfolio committee, should the proposal proceed. The DA was of the view that the integrity of the President was of prime importance. Mr Trollip raised concerns about the apparent attitude of protectionism. He said that he was even more convinced that his proposal should proceed, since the Act currently had a lacuna that needed to be addressed, in order to protect current and future Presidents and raise them above any suspicion or rumour and place the Office of the President beyond reproach. He expressed his concern with some statements made by Members in that meeting that suggested that any Private Member’s bill would be rejected. Another DA member asserted that this Committee must merely decide whether the proposal met with the six criteria, and, if so, should recommend that it be taken further. The more debate, the more democracy could be seen to be served. The COPE member urged all Committee Members to believe in the good faith of others, and outlined the role and function of this Committee, which was to support the constitutional right of any party to seek an amendment to any legislation that might be undesirable. COPE believed that the proposal would improve the position of people in high office, would improve public scrutiny and promote the founding provisions of the Constitution to ensure accountability, responsiveness and openness. The ANC maintained its position that it was opposed to the proposal, since it believed that the current Act adequately protected the Office of the President. The Committee’s Legal Advisor was of the view that the proposal did not conflict with any provisions of the Constitution. The Committee voted on the proposal, with three votes recorded in favour and six against. COPE and the DA asked that their votes in favour of the proposal be recorded.

The Committee discussed the Smalle Proposal to amend the Lotteries Act, which noted that there were a number of concerns around the current distribution of funds by the National Lotteries Board (NLB) and the view that the category “allocation for miscellaneous purposes” was ill-defined in the legislation and needed to be tightened. This Committee had referred the proposal to the Portfolio Committee on Trade and Industry for its comments, and had been notified that recommendations on the report of the Review Commission on Gambling Legislation were to be taken to the National Assembly on 13 March, and that it suggested the matter be deferred. The Chairperson stressed that the referral to that Portfolio Committee was done under Rule 235(4), and Members and the proposer were in agreement that the recommendations, and further views of the Portfolio Committee, should be awaited. DA Members noted that the gambling legislation was complex and the lotteries constituted only a small portion, but suggested that it would be useful for this proposal, and any other proposals from the Review Commission as to the National Lotteries Board, to run concurrently. It was agreed, however, that the Committee would postpone further discussions.

The Committee approved its Minutes of 22 February, noted changes to the programme, and noted that the dates for the Canadian Study Tour were still being finalised.

Meeting report

Trollip proposal to amend the Executive Members’ Ethics Act, 1998 (Act 82 of 1998)
The Chairperson recapped that at the last meeting the Committee had deliberated on Mr Trollip’s proposal to amend the Executive Members’ Ethics Act, in light of the Constitution and at the existing Executive Members’ Ethics Act (the Act). It was agreed that parties would be allowed to make final submissions to enable the committee to reach a decision, either by consensus or vote.

Ms P Kopane (DA) referred to the report of the Parliamentary Monitoring Group (PMG), and did not agree with the comment that there was “a heated debate” but claimed that it was more of “a hostile meeting”. She noted that Ms Mdaka’s comments, and Ms Kilian’s remarks that the Constitution was the supreme law in the country, were not reflected correctly. (Note: Some remarks that followed were inaudible).

Ms Kopane appealed that when Members of Parliament came before this Committee, irrespective of his or her political party, his Committee must look into the merits of the proposal, as that should be the key factor driving the Committee’s decision whether the proposal was desirable. She noted that Rule 235(4)(a) had said that the Committee should “express itself on the desirability of the principle of the proposal”. That was the primary responsibility. She understood that the question of desirability did not in itself provide grounds for recommendation, which was why it was not contained in the criteria that were adopted. That would be a matter for the relevant portfolio committee, after an amendment was formally introduced. She felt that the Committee needed to alter the way it was dealing with matters.

The Chairperson agreed that it was necessary to preserve the dignity of the institution. South Africa was a Constitutional country and everything the Committee did should be governed within the sphere of the Constitution and the legislation. The Committee was governed by the Rules. Every decision it took must be in line with the Rules of National Assembly, and should be in line with the six criteria included in the 7th edition of the Rules. He was not clear on the position the Committee should move towards.

Ms Kopane suggested that the Committee must finalise the matter. She suggested that the DA was of the view that the most important matter was the integrity of the President (Note: remainder of the Member’s remarks were inaudible)

Mr F Bhengu (ANC) was uncomfortable with the reference to a PMG report, rather than the minutes of this Committee, and suggested that instead there should be reference to the official minutes.

The Chairperson agreed. The Committee could not take the PMG minutes as records of Committee proceedings. However, the sentiments had been clear to everybody.

Mr Trollip said that he had given due consideration to the input of the Committee, and particularly to that from the Chairperson about the constitutional provisions around the role and powers of the President. Section 85(1) of the Constitution provided that the executive authority of the Republic was vested in the President. Section 91(2) provided that the President appointed the Deputy President and ministers, assigned their powers and functions, and may dismiss them. Section 96(1) said that members of Cabinet and Deputy Ministers must act in accordance with the code of ethics prescribed by the national legislation. These sections made him even more convinced that the amendments contained in his legislative proposal remained relevant and salient. They made specific proposals aimed at addressing those issues that currently caused a lacuna that could compromise the integrity and status of the President, and possibly his or her direct family members, around disclosures as to personal interest and potential influence, peddling by proxy, that could benefit those direct family members. He summarised his proposals again. He had proposed:
-  that the disclosure of financial interests be posted within 30 days on the Presidency’s website;
- that gifts and conflicts declared by the President be adjudicated by the Public Protector and not the President;
- that the Public Protector must be satisfied that there was compliance with Section 2 of the Executive Members’ Ethics Act
- That the Auditor-General should scrutinise any State deals involving family members of the President, to ensure that all supply chain and tender provisions were met and complied with;

Mr Trollip continued that it had become abundantly apparent to him in the previous week that there appeared to be an attitude of protectionism in the Committee. This was misplaced, as it was seemingly based on the assumption that his proposal was directed at the current President personally. This was not correct. Ironically, this very protectionism opened the potential for a future President, who may be less scrupulous than the current President, to abuse or take advantage of the loopholes that existed in the current legislation.

Mr Trollip was particularly troubled by Ms A van Wyk’s accusation that he had created an impression that politicians were corrupt. This amendment specifically sought to show that they were not. He believed that this amendment gave the President, through Parliament, the opportunity to place himself and his office beyond reproach.

Mr Trollip further pointed out that Ms Kubayi had said, “We are not going to create legislation to stop speculation about rumours”. In the absence of these amendments, however, suspicion and rumour would abound. She had also said that “the President is not alpha and omega”. Mr Trollip concurred absolutely, and therefore questioned why the President should be allowed to be the final and sole arbiter of his or her own interests. He was gravely alarmed by the comment of Ms Mdaka that Members were not likely to convince each other in this Committee, and the sentiment that the ANC would not be convinced by opposition parties who “opposed for the sake of doing so” was about as “absurd” as the ANC defending the indefensible simply because this was an ANC position. Ms Mdaka had suggested that the “case was closed”. He urged that Members should not make statements that suggested that this Committee was a nullity, and that any Private Member’s bill would be rejected if it came from the opposition parties.

Mr A van der Westhuizen (DA) noted that he had only recently joined the Committee, and was given a list of criteria on which the Committee would base consideration of the legislative proposal. He could not find anything in this proposal that went against any of those criteria. It was also not for this Committee to debate the desirability of the proposed legislation. This Committee must merely decide whether the proposal met with the six criteria, and if it did, then it should recommend to the House that a relevant portfolio committee must take it further. He indicated that he was comfortable with the views that the Chairperson had expressed on democracy and abiding by democratic principles. Debate was part of that, therefore the more a matter could be debated in the relevant committee, and then brought for debate before the House, the more that democracy would be seen to be served.

Mr van der Westhuizen asked Adv Gary Rhoda, the Parliamentary Legal Advisor, whether he thought that any of the six criteria did not apply.

The Chairperson said that at this stage, he was seeking final statements by parties. Adv Gary Rhoda had submitted his legal opinion.

Ms J Kilian (COPE) felt that everyone had an interest in that legal advice, and asked that copies be circulated.

Ms Kilian supported the comments made by Ms Kopane, saying that they had a solid basis. It was a pity that this Committee descended to making personal comments. Members should accept that every other Member was acting in good faith, and should focus on the issue, not on the sponsor of the legislative proposal, or anyone supporting that proposal.

Ms Kilian said that the main issue was role and function of this Committee, and the right of any Member to introduce a legislative proposal, which was a constitutional right, subject only to the rules of this Committee. The role of the Committee had been clarified. This Committee was not to vet and scrutinise the details, but merely to analyse, on the basis of specific criteria, whether there were merits in a legislative proposal. If there were, then the legislative proposal should proceed.

It was very unfortunate that this Committee was effectively seemingly putting itself out of a job; some senior Parliamentary management had suggested that it should be disbanded. However, she believed that the Committee did have a definite role. It should identify if any Member, either from the ruling party or an opposition party felt that there was a weakness in the legislation, or if a piece of legislation had an undesirable effect. Members of the ruling party would normally advise the executive of this, via the caucus, and would be able to follow that route. However, because this was a constitutional right, the Committee was created to support that constitutional right. The Committee must merely question whether the proposal:
- went against the spirit, purport and object of the Constitution;
- sought to initiate legislation beyond the legislative competence of the National Assembly (NA);
- duplicated existing legislation or legislation awaiting consideration by the NA or National Council of Provinces (NCOP)
- pre-empted similar legislation soon to be introduced by the national executive;
- would result in a money bill; or
- was frivolous or vexatious.

Ms Kilian had considered the proposal. She believed that it would improve the position of people in high office, would improve public scrutiny and promote the founding provisions of the Constitution that spoke of a multi-party system,  under a democratic government, that would ensure accountability, responsiveness and openness. She stressed that this legislative proposal would indeed support accountability, responsiveness and openness. It did not, in her view, go against any of the other criteria and she believed that this Committee should support it.

Mr van der Westhuizen referred asked if Members could see the legal opinion.

The Chairperson replied after all parties had stated their positions.

Mr Bhengu said the position of the ANC remained the same, and it was opposed to the proposal.

Mr D Ximbi (ANC) added that the ANC was happy with the current Act, which protected the office of the President. He recalled that there was a time when the President did not declare his interests, but the Office of the Public Protector had intervened. This was demonstrative of protection of the Constitution, for the office of the President. The ANC did not believe that there was a need to amend this Act.

Ms Kopane asked on what grounds the ANC rejected the proposal.

The Chairperson read out the legal opinion, noting that Adv Rhoda was satisfied that the proposal did not conflict with any provisions of the Constitution.

The Chairperson noted that there was no consensus and put the matter to the vote.

Three votes (two from the DA and one from COPE) were noted in favour of the proposal going forward, but six (ANC) were recorded against.

Mr van der Westhuizen asked that the vote of the Democratic Alliance in favour of the proposal be recorded.

Ms Kilian requested that the declaration of COPE in favour of the proposal also be recorded.

Smalle proposal to amend the Lotteries Act 1997 (Act No 57 of 1997)
The Chairperson summarised that this proposal sought to amend the Lotteries Act, 197 (No 57 of 1997) to regulate more comprehensively the manner in which the National Lotteries Board (NLB) distributed funds, particularly in the category “allocation for miscellaneous purposes”.

The objects of the proposal were stated as better regulation of the allocation of National Lottery Board payouts. There had been doubts expressed in the public domain as to how the NLB ran its affairs, and there were shortcomings in the current legislation. The public disquiet was expressed when the a trade union received support from the NLB, and when the National Youth Development Agency (NYDA) received R40 million, through the miscellanous fund, for the World Festival of Youth and Students. Meanwhile, the NLB had turned down requests from some major charities, such as Sikhula Sonke, an organisation that helped 4 000 poor children in Khayelitsha. It was also established that currently R900 million was unspent.

The Chairperson read out a letter received from the Portfolio Committee on Trade and Industry to the effect that that committee was currently addressing the report of the Review Commission on Gambling Legislation. Recommendations would be taken to the House on 13 March 2012 on Gambling Legislation, and these would include provisions around amendment of the NLB. He noted that the other portfolio committee would prefer that this Committee postponed taking a decision on the matter.

Ms M Pilusa-Mosoane (ANC) proposed waiting for those recommendations, and this was seconded by Ms F Khumalo (ANC).

Mr van der Westhuizen pointed out that a Member serving on the Portfolio Committee on Trade and Industry was present, as well as Mr Smalle. He noted that the process of amending legislation entailed various aspects, including public hearings. The Portfolio Committee on Trade and Industry would not, as he understood it, be dealing with the legislation itself, but was commenting on the Review on the Gambling Legislation. He believed this was the opportune moment to approve Mr Smalle’s proposal, so that when the Review Commission looked at the legislation, and held public hearings, this proposal ran concurrently, allowing for the merits of the proposal to be debated and opened up for public comment. If this Committee continued to be “the graveyard for all proposals”, then the comment made earlier by Ms Kilian was valid. He agreed that there could well be amendments to the gambling legislation in future, but felt that it was only sensible to feed into them, so that the Committee who finally debated on the legislation could simultaneously consider these proposed amendments.

The Chairperson clarified that the letter from the Portfolio Committee on Trade and Industry was written in response to this Committee’s request that it make submissions, in terms of the Rules. The letter did not make submissions, but informed this Committee of what the other committee was doing.

Dr W James (DA) explained that the Chairperson of Trade and Industry was correct in what she had said, but stressed that the legislation governing the NLB did not fall entirely with the gambling arena, as it covered only parts of it. Dr James had met with Minister of Trade and Industry, Dr Rob Davies, who was very sympathetic to this legislative proposal. Although everyone seemed to be agreed on the need to overhaul the system, the legislative side of that was very complex. He believed that the Committee could come to grips with it through this proposal, which he felt would make a huge contribution to the issues.

The Chairperson thanked Dr James and proposed that the Portfolio Committee on Trade and Industry be requested to advise the Committee of its views again after 12 March.

Mr van der Westhuizen suggested following the formal route of sending it through the House, instead of internal correspondence, as prescribed by the Rules, to deal with this in a more official way.

The Chairperson explained that once a proposal was received the Committee was expected to advise Parliament as to whether or not it believed that the proposal had merit, and should proceed. The Ministry was also expected to make a submission but nothing had yet been received. Stakeholders were invited to make comment, but if they failed to do so, this Committee was entitled to proceed without that comment. The Portfolio Committee on Trade and Industry had set out what was happening in the following week. Members had suggested that they should be given a further opportunity to respond on developments, and this Committee would suspend deliberations until that comment had been received, or would proceed if no comment was submitted.

Ms Kilian pointed out that this was set out in Rule 235(2), which said that this Committee may consult with another portfolio committee within whose portfolio the proposal falls”.

Mr Smalle said the Gambling Commission was reviewing gambling as a whole. There was a vast difference between the lotteries’ aspect of gambling, and the legislative aspects. There were clear indications that amendments to the Gambling legislation were necessary. The Portfolio Committee on Trade and Industry would be getting these proposed amendments. He would be happy with the proposal that the Committee follow Rule 235(2).

The Chairperson thanked Mr Smalle, saying that information would assist the Committee in its deliberations.

Adoption of minutes
The minutes of Committee meeting held on 22 February 2012 were adopted without amendments.

Announcements
The Chairperson announced that a draft report on the visit to the provinces would be considered and adopted in the next meeting.

The Committee would not be meeting in the following week, because the House Chairperson had called for a meeting and briefing on the National Planning Commission programme.

The Committee was still awaiting communication from Canada on the study tour in June as the initial dates suggested had clashed with the programme of Parliament, and a readjustment of the dates was requested.

The meeting was adjourned.

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