Superior Courts Bill: adoption & report; Deputy Public Protector recommendation

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Justice and Correctional Services

18 November 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

During the morning session the Committee had conducted interviews for the post of the Deputy Public Protector, and all parties agreed unanimously to recommend Mr Kevin Malunga for appointment

The final draft of the Superior Courts Bill was tabled. Members’ earlier questions in relation to clause 54 and the reference to an “accounting authority” were answered by the tabling of a report from National Treasury that explained that the term “accounting officer” was used in the Public Finance Management Act for national and provincial departments, Offices of the Premier, and government components, whereas the term “accounting authority” was used for national and provincial public entities. It was clarified that the Secretary General of the Office of the Chief Justice would, for practical purposes, be the administrative head of this Office, but for the moment, the Minister of Justice and Constitutional Development was still involved as a conduit to relay requests to the National Treasury. In relation to clause 11, the Minister was also named as the person appointing staff, but the drafters pointed out that for practical purposes, this power could be delegated and in fact the Secretary General attended to these appointments, in consultation with the Minister. In the future, the judiciary should be able to choose its preferred court managers. A new definition was highlighted for “secretary-general” which would make reference to the Public Service Act. A minor amendment appeared on page 5, in clause 2(d). Members asked for further clarity on one of the submissions that purported to relate to clause 18, but it was clarified that this did not require an amendment as it was a matter on which there was not finality. Members also questioned why the Judge President of the Court was, in terms of clause 45, authorised to allow deviations in exceptional circumstances, and it was explained that the principle had applied previously, but the wording was essentially being tightened, and it would apply only to rare cases, to restrict or protect debtors. The reasons for the changes in the Schedule had been explained in a previous meeting. This Bill sought to repeal some sections of other pieces of legislation. Although, for all practical purposes, those sections had been superceded by the Constitution, they had not been officially repealed. If this Bill were to do so, it may have to be re-tagged and follow a different process, and for reasons of expediency it was decided not to proceed with this in the current Bill, but to leave them alone until a proper “clean-up” of the statute books was being done. The Committee unanimously voted to adopt the Bill, with the amendments. The Committee also adopted its draft Report, with an amendment that explained the reasons why certain place names were used in the Bill.

Meeting report

Position of Deputy Public Protector
The Chairperson requested Members to comment on the candidates interviewed during the morning for the post of Deputy Public Protector.

Ms M Smuts (DA) said her party was favourably disposed to Mr Kevin Malunga, but wanted to make a few enquiries before taking a final decision. He seemed by far the strongest candidate.

Mr J Jeffery (ANC) said that the ANC Members were similarly inclined to Mr Kevin Malunga. He thought that there was no need to call the remaining candidate to an interview.

Mr S Swart (ACDP) agreed that there was no need for other interviews, as the Committee had already seen all the CVs. His party was also in favour of Mr Malunga, who had performed impressively during the interview.

Ms L Adams (COPE) said that her party also supported the appointment of Mr Malunga, and agreed that there was no need for any other interviews.

The Chairperson noted the unanimous suggestion of the Committee to recommend Mr Malunga for appointment.

Superior Courts Bill
The Chairperson noted that the Committee had now received the final version of the Constitution 18th Amendment Bill, and thanked the Department of Justice and Constitutional Development (DOJ&CD) drafters for this. The Committee had dealt with this Bill and now asked that the drafters take the Members through the Superior Courts Bill latest draft (see attached document).

Mr Johan De Lange, Principal State Law Advisor: DOJ&CD, said that the document now before the Committee was a “clean” version from which all footnotes had been removed. He reminded the Committee that during the last meeting on the Bill there had been discussion on clause 54, and the drafters were asked to speak to National Treasury about the distinction, if any, between an “accounting authority” and an “accounting officer”.

Mr Herman Smuts, Principal State Law Advisor, Office of the Chief State Law Advisor, noted that he had approached a Chief Director: Legislation, from National Treasury, asking for a written opinion on this point, and the response had been forwarded to Members.

He noted that paragraph 4.2 of that letter stated that the term “Accounting Officer” was used in respect of Constitutional institutions like the national departments, Offices of the Premiers, provincial departments, and National and Provincial government components. The term “Accounting Authority” was used in respect of National and Provincial public entities. Depending on the type of institution, the relevant term would be used in relation to the Public Finance Management Act (PFMA) requirements.

Mr Smuts noted that the administrative head of the Office of the Chief Justice was the Secretary General. The definition of Secretary General was given as the head of the Office of the Chief Justice mentioned in column 2 of Schedule 1 of the Public Service Act, 1994. The Secretary General was therefore the Accounting Officer at the Office of the Chief Justice, in terms of the PFMA, and was charged with the accounting for the money received or paid, and for the administration functions received of that office.

Ms D Schäfer (DA) asked Mr Smuts to explain the use of the wording. Initially there had been some concerns about the Minister’s responsibility, and whether the Accounting Officer had a measurable responsibility.

Mr Smuts said that the PFMA charged a particular person or body with the responsibility of accounting. The Department of Justice’s Accounting Officer would be the Director-General. In the case of a public entity, it would be the Board who was the Accounting Authority. That was the general rule.

Ms Smuts said that she thought Ms Schäfer was talking about section 54(1). The use of the word “consider” had the effect of bringing in the Minister, as a conduit. Effectively this was akin to a Chapter 9 institution, and the situation would be finalised when the Committee dealt with the Administration Act. However, it would not be the Department of Justice who decided on the budget. The Chief Justice and Judges would draw their own allocation, and the Minister merely became involved as a conduit to convey their requests to the National Treasury. The Minister played no part in the budgeting, nor in the appropriation of the funding.

Mr De Lange explained that the word “consider” was not initially included but this was inserted when Mr JB Skosana, Chief Director, Department of Justice, had indicated that the Minister of Justice had a role to play as otherwise these current arrangements would not be workable.

The Chairperson said that it had to address National Treasury.

Ms S Shope-Sithole (ANC) said that she heard the advice, and that the PFMA specified that the Accounting Officer was the head of a department. However, she understood that the Minister would be the Accounting Authority. This was, to her mind, where the distinction lay, which was why Members would say they were holding the Minister accountable at the end of the day.

Ms Smuts said the Committee had dealt with that, and that the PFMA spoke of the role of the Ministers. She did not think it necessary to spend more time on this. The only question was what clause 54(1) meant. The final situation would be addressed in forthcoming legislation, and the Committee already knew that it was heading in that direction.

Ms Shope-Sithole said she needed finality on the issue of who was the “Accounting Authority”. If there was a problem in this office, would it be the Minister, or the Chief Justice who was called to account.

Mr De Lange responded that the bodies would be the National Treasury, the Secretary General, and the Minister (for as long as the Department of Justice had to account for this office).

Mr Smuts noted that Members of Cabinet were individually accountable to Parliament for exercising their power and performance of their functions.

Ms Adams wanted to clarify that the Secretary General was the head of the Office of the Chief Justice. The Minister of Justice should ensure that the Office received its money. Clause 11(1)(a) was talking about the appointment of staff, and this stated that the Minister would appoint the staff. However, she wondered if that responsibility should not lie with the Secretary General. 

Mr De Lange responded that, at the moment, the Minister dealt with the appointments, which was why it was in this Bill. However, this clause must be read with clause 11(4), which provided that the Minister may delegate any of the powers that were vested with him/her. In reality the appointments were made by the Secretary General, in terms of the delegated powers of clause 11(4). |

The Chairperson pointed out that clause 11(1)(b) said that the Secretary General should make those appointments in consultation with the Minister.

Ms Smuts said that this was the essence of the new provision, and it would allow the judiciary to choose its own court managers, which would make a substantial difference.

Mr De Lange asked if the Committee was favourably disposed to aligning the two sections under discussion, and said that the Secretary General would be understood as the person in the Office of the Chief Justice.

The Chairperson asked the drafters to take the Committee through the clauses of the Bill that reflected changes or that needed discussion.
 
Preamble
Mr De Lange said that there was nothing that needed changing in the Preamble of the Bill, because the amendments were fairly clear.

Clause 1
Mr de Lange noted new definitions for “appeal”, “the magistrates courts”. In respect of the definition for “Secretary General” there would be a specific reference to the Office of the Chief Justice, and a reference to the Public Service Act.

Clause 2
Mr De Lange said there were no instructions to amend anything in clause 2 from the Committee, but there was an addition on page 5 in paragraph (d).

Clause 3
Mr de Lange reminded the Committee that clause 3 dealt with the court structures. This would be revisited and amended in the future, as discussed by the Committee.

Clause 6
Ms Smuts noted a grammatical error and said in the words “comprise of” should be replaced with “may comprise”.

Clause 18
Ms Schäfer asked what the present situation was in regard to the suspension of a decision pending an appeal. She noted that there had been comment on this, and whether the matters were proceeding as before, and what the significance of the case mentioned.

Mr de Lange responded that although there was comment on this, he had not understood why the submission was said to relate to clause 18, as this referred to something completely new, not to an amendment.

Clause 45
Ms Schäfer asked what the purpose was of the provision that the Judge President of the Court could, in exceptional circumstances, allow deviation from the prescribed provisions.

Mr De Lange responded that this was a carry-over from the existing provisions. He explained that in some instances some debtors might be in a better position than others, and this allowed the Court to use its discretion where justice would demand that particular provisions not apply. This was something that was only used to restrict or protect, and was not something that applied every day. The new wording of that principle, which the Committee had accepted, enhanced the Court’s discretion.

Schedule 1
Mr De Lange noted that he had mentioned the changes, and the reasons for this, in a previous meeting. It was difficult to set out what exactly had been changed, and what retained, by using brackets and underlining. However, the Schedule would read as indicated.

Ms Smuts asked whether the sections that would remain still in force, from the legislation contained in the Schedule, related to the Traditional Courts.

Mr de Lange clarified that in fact no provisions relating to traditional leadership remained in force from a legal point of view, because they had already been superceded by the Constitution. However, in theory they remained on the statute books. They should in theory finally be removed, for the purpose of cleaning up the statute books, but if this Bill sought to do so, then it would require a different tagging. For logistical reasons, therefore, it had been decided not to do so by way of this Bill responded that in terms of the leadership provisions there was nothing of those things that remained because they had no use and were legally not enforceable, they’ve been super ceded by the constitution, but for the purpose of cleaning up the statute book it would require a different tagging or bill with a different version but not this one.

Item 6 of the Schedule referred to section 52 of the relevant legislation.

The Committee unanimously voted to adopt the Bill, with the amendments.

Committee’s draft Report on the Superior Courts Bill
The draft Committee Report was tabled.

Mr Jeffery referred to earlier discussions by the Committee, and the agreement that an explanation was needed of why certain names for places were used in the Bill. Members had agreed that the report should point out that although certain places were commonly known by the names that the municipalities used, the former names remained official, until changed by the Minister of Arts and Culture in terms of the legislation around geographical place names. He suggested wording to the effect that the Committee is aware that the Bill continues to refer to certain places which have different municipal names. However, until these place names are officially changed by the Minister of Arts and Culture, the names continue to be used. Once the name changes are officially effected, the legislation must then be brought in line to reflect the new names.

Members agreed with that proposal.

Members then adopted the Report, as amended.

The meeting was adjourned.

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