Criminal Law (Sexual Offences and Related Matters) Amendment Bill; Judicial Matters Amendment Bill & South African Human Rights Commission Bill: deliberations; South African Human Rights Commissioner appointment

Meeting report

Judicial Matters Amendment Bill
The Chairperson said that on the previous day the Committee had proceeded with the Bill, and Members had requested a clean copy of the Bill, to check it, and proceed to consider it.

Mr Lawrence Bassett, Deputy Chief State Law Advisor said that there was an A-list, a new version of the Bill and some technical amendments that would need to be considered by the Committee, containing changes to Objects of the Bill.

Mr Bassett said he would be working from the amended Bill. The proposed insertions were double underlined, and proposed deletions indicated with strike-through.

The first amendment was to clause 6(a), page 7, where the word “on” was to be reinserted.

He pointed out the amendments to clause 8, inserting the words “in writing” in the new section 271DA(1)(a), (c) and (d). In (b) the word “be” was replaced with “remain”.

In clause 15, the new section 46A for the Attorneys Act gave the Attorneys Fidelity Fund the power to institute a private prosecution, upon written notice to the society of the province concerned.

Ms D Schäfer (DA) asked if there was anything allowing the law societies to institute a prosecution.

Mr Bassett responded that this was in section 76.

Clause 17 also contained amendments to the Attorneys, Act, section 78(8), giving the Attorneys Fidelity Fund the power to apply to interdict an attorney operating on the trust account. It had been agreed that the power must be exercised “in consultation with the society of the province concerned”.

Clause 42 related to amendments to the Child Justice Act, and the Committee had agreed to delete (c), and also to add the word “or” to the end of section 77(4)(a).

Mr S Holomisa (ANC) thought the words “sentenced to a sentence of imprisonment” seemed tautologous and asked if the word “term of imprisonment” was not more appropriate.

Mr Bassett said that this did appear to be anomalous, but this was the way the Child Justice Act was worded.

Mr S Swart (ACDP) noted that (5) also used that term, and it had been consistently used in the Child Justice Act. An amendment here would have to be matched elsewhere. He suggested that it remain.

Ms Schäfer wondered if this was removing the possibility of a sentence of correctional supervision altogether.

Mr Bassett said that this was not altering the position. Clause 41 dealt with correctional supervision.

He noted that in clause 44, it had been agreed that the phrase relating to the position where a child was sentenced to any form of imprisonment that was not wholly suspended should be removed. Therefore, in the revised section 85(1)(b), that phrase had been removed.

Clause 44 also inserted a new paragraph (b), and (d) was now amended to read “whether the child in question appeared before a district court or a regional court sitting as a child justice court”.

He pointed out that clause 45 amendments were the same as those in clause 8, and related to the proposed section 87(7)(a) to (d).

Mr Bassett noted that one matter not discussed on the previous day, but only at a previous meeting, was clause 4i, the Short Title. Provisions that would come into effect on a date fixed by the President would be clauses 36, 39 and 46. Clauses 10 and 11 would come into operation on 1 April 2010. Clause 48 was deemed to come into operation on 20 September 2010 (the date on which the customary law legislation was passed).

Memorandum on the Objects
Mr Bassett said that the Memorandum on the Objects had been made available. There were some technical amendments on page 8. He noted that the amendments were largely consequential.

There had been a slip-up in 2.10, relating to the Judicial Service Commission Act amendments, and the Department of Justice and Constitutional Development (the Department)  was now correcting “competent” to “incompetent”.

In paragraph 2.14, the sentence reading in similar vein to clauses 31 and 34 was noted. The word “appear” had been corrected to “appears”.

The word “the” was now inserted in paragraph 2.20.

In paragraph 2.24.1 he suggested that the wording “judge of the relevant division” of the High Court be used, and the same would apply to 2.24.2.

Ms Schäfer noted that the Bill could not be passed on the following day, and suggested that Members be given some time to consider the Bill and pass it at the next session.

The Chairperson suggested that alternatively the Committee could approve it now, but not debate it tomorrow.

Ms Schäfer agreed that this would be possible, but asked for a chance to go through the Bill again before taking a final decision.

The Chairperson, having heard the views of other Members, agreed, and said that hopefully no other issues would be raised.

Criminal Law (Sexual Offences and Related Matters) Amendment Bill
Mr Bassett tabled a document containing a summary of the submissions made on the Sexual Offences and Related Matters Amendment Bill (the Bill).

Preamble
Shukumisa Campaign had suggested that since sexual offences (SO) courts would play a significant role, they should be mentioned in the Preamble.

Mr Bassett agreed with the principle, but questioned whether it was appropriate that a technical aspect should appear in a Preamble. Preambles usually set the broad issues to “set the scene”. He suggested that perhaps there should rather be an inclusion in the Long Title, of a new bullet point “(by) designating specific courts, where necessary, to deal with matters relating to sexual offences”.

Ms Schäfer thought that this needed to be flagged. There were other submissions that may influence that – such as whether to use specific courts or not. Magistrates had wanted to broaden this. In principle, she agreed that it would be better to add this to the Long Title.

Mr Swart agreed with the Department’s response. Shukumisa’s suggestion was too long, and he thought that the Long Title would be more appropriate.

Mr Holomisa also supported the formulation by the Department. He wondered if “specific” or “certain” courts should be used.

Mr Bassett agreed that “certain” courts would be better. Ms Schäfer thought that this would deal with her concerns.

New Section 55A
Mr Bassett noted the proposal by Mr Harmse, who said that the new section 55A sought to empower the Minister of Justice to designate courts as sexual offences courts, yet there was no definition for a sexual offences court. He made a recommendation for a new definition (see attached document).

Mr Bassett noted that the principal Act did not have any definition on courts. The term “sexual offences court” was only contained in the new section 55A(1), and the question was whether it was appropriate to define it. In fact, the wording suggested for the definition was the same as the wording that was already incorporated in that section.

Dr M Motshekga (ANC) said that if the Minister could designate courts, it was not necessary to define them. He agreed that if the phrase appeared only once, it was not necessary to define it separately.

Ms Schäfer said that a concern was expressed that a court designated in a province might be difficult for the victims and witnesses to travel to. About 60% of cases being heard at the moment were sexual offences matters. She cautioned that if some courts were designated the Committee must be careful not to exclude others from dealing with these matters. 

Dr Motshekga said that if there were already courts that were operating as sexual offences courts, he did not think that the Minister would interfere with that.

Ms Schäfer was still  worried that this wording would be interpreted as being confined to the designated courts. She reiterated that she did not want other courts, that were doing such work, to be excluded.

Mr Bassett suggested that subclause (5) would deal with that concern, as it did not preclude courts from dealing with these matters, even if not designated.

The Chairperson summarised that the Committee was not in favour of Magistrate Harmse’s recommendation on this point.

Mr Bassett moved on to the next recommendation. Mr Harmse had said that the courts should be empowered also to deal with more serious offences involving young child victims, including trafficking, and had motivated this (see document, page 2, under (b)). He recommended the revision of the new section 55A by adding “or any offence in terms of the Childrens’ Act”.

Members questioned why he was referring to the Children’s Act only and made the point that the Prevention and Combating of Trafficking in Persons Act (the Trafficking Act) had also now been passed.

Mr Bassett said that the Department did not agree with Mr Harmse. The Sexual Offences Act dealt with sexual offences exclusively, and this proposal would expand the ambit of the principal Act. If the court was to deal with other offences, this could be done by legislating for it elsewhere. Other commentaries had expressed similar sentiments, but the primary purpose of SO courts was to protect vulnerable witnesses, in order to lead to more successful prosecutions. Other legislation, such as Films and Publication Act, did contain provisions and created offences whose elements might be of a sexual nature, but the focus there was not actually on sexual offences. The Sexual Offences Act also dealt with matters where pornography was used.

He suggested that words such as “any related offence in related legislation of a sexual nature”, as suggested by the National Prosecuting Authority (NPA), could be used; the only legislation he could think of at the moment were the Films and Publication Act (FPA) and the Trafficking Act.

Ms Schäfer liked the idea of expanding the ambit, perhaps not only for children.

Mr Swart said that as presently worded, trafficking would not be covered, and whilst there was nothing precluding the Committee from inserting this, an alternative charge under the Trafficking legislation could be given.

Ms Bronwyn Pithey, Deputy Director: Public Prosecutions, NPA, said that she was concerned about listing only certain pieces of legislation, for fear of precluding some other legislation. The Children’s Act might be included. She agreed that only sexual offences should be covered. However, even under the FPA, it may be possible to use a child in the manufacture of pornography. She would prefer broader wording.

The Chairperson said it would be in the hands of the court whether to take the case.

Ms Pithey confirmed that the NPA would bring the charges.

Dr Motshekga suggested that further research was indeed needed. “Sexual trafficking” might combine sexual offences and trafficking, and he thought that this should be treated as two separate offences. The acts involved in trafficking were more akin to slavery, than sexual offences.

The Chairperson asked if the NPA would draw the charges, then ask for the matters to be dealt with in a certain court, based on its witnesses, which might be an SO court, even if trafficking was an alternative charge.

Ms Pithey confirmed that charges of trafficking alone, not involving any element of sexual offences, would not be put before the SO Court. However, even if there was only one SO on the charge sheet, the case could go to that SO court. Victims would most likely be testifying and the whole purpose of the SO courts was to protect the witnesses. That would, however, be in the discretion of the NPA.

Dr Motshekga said that the phenomenon of “sex slave” was actually a deprivation of freedom wider than a sexual matter. He still thought that too much might be included in the one definition.

Mr Swart said that in that case, the competent charges would be sexual offences, plus kidnapping, plus abduction, but the case would be heard in the SO court. Something like labour trafficking would not fall in these courts.

The Chairperson thought that the NPA needed to be given sufficient flexibility to decide how to handle the matter.

Ms Schäfer said that SO courts were specialised courts to protect victims, and it must be remembered that magistrates, as well as being specially trained to deal with sexual offences, were also trained to deal with all offences. She disagreed with Dr Motshekga that such charges would minimise the trafficking aspects. 

Proposed section 55A(1): NPA proposals
Mr Bassett said that the NPA had pointed out that the current wording created the impression that the Minister could designate any division as a dedicated court, which could be interpreted to read that all high courts would be designated. Its recommendation was to use more specific wording. The Department agreed and suggested a new formulation, reading “the Minister may by notice in the Gazette designate any Division of the High Court or the main seat or any local seat of a division of a Magistrate’s Court”.

Ms Pithey agreed with the formulation.

Mr Bassett said that the NPA also questioned whether the reference to “Magistrate’s Court” in the proposed Bill, as defined in section 1 of the Superior Courts Bill (now an Act) was correct.  This referred to “any division of the High Court, or Magistrates Court as defined”. The Department felt, after discussion with the NPA, that the wording was correct. The Magistrate’s Court was defined in the Superior Courts Act. The definition referred to courts established under section 2 of the Magistrate’s Courts Act, and this allowed the Minister to establish regional courts.

The NPA agreed with the use of the word “dedicated” but thought it needed to be defined. Mr Bassett said that when the drafters were busy on the Bill, they had not yet received the Ministerial Advisory Task Team (MATT) Report. That had recommended that the words “specialist” and “dedicated” not be used, in view of misunderstandings seen internationally. It was recommended only the words “sexual offences courts”) be used throughout. The new wording, set out on page 8, said that the Minister may designate any court as a sexual offences court, exclusively for the purposes of the trial or any person or other proceedings arising out an alleged commission of a sexual offence.

Ms Pithey added that the NPA was part of the MATT team and agreed that the word “dedicated” had caused much confusion. In principle, the NPA agreed that the word “dedicated”, in the ordinary dictionary meaning, meant that the courts should be used exclusively for considering SO matters. As long as there was reference to exclusive use, the NPA would withdraw that part of the submission, and she agreed with the current Departmental formulation.

Mr Bassett continued that the Shukumisa Campaign suggested that the courts should specialize in sexual offences matters, and such SO courts should only be permitted to hear other matters in the absence of any SO matters being enrolled. He had just dealt with that.

Shukumisa also suggested that ordinary criminal courts should be permitted to hear SO matters where the offence had occurred in an area where no SO court had been designated. Mr Bassett said that this was already covered in the proposed new section 55A(5).

Ms Schäfer asked what would happen if a specific court had been designated, but it was easier for witnesses and the accused to go to the closest court, than to the dedicated court.

Ms Pithey agreed that this was a reality. A regional court had regional jurisdiction, so if a court was designated in George, its immediate jurisdiction was George, but any case in the province could be heard there. However, it was important to bear in mind that the whole purpose behind the SO courts was to assist victims. Ultimately, the objective was to have  other regional courts also set up with the special facilities. Witnesses could not be expected to travel far just because there was a SO court in that province. From a practical point of view, whatever arrangements were most suitable for protection of victims would be made.

Mr Bassett continued that Shukumisa had also suggested that there should be an obligation on the Minister to consult with civil society on the designation process. He reminded Members that similar proposals had been made when the principal SO Act was being considered. The Committee had, at the time, thought it was not necessary to write this into law, because meaningful consultation with stakeholders was in any event held. It was difficult, particularly when the NGO landscape changed, to say who “civil society” was and the Department felt this should be left as it was, without further legislation.

Shukumisa had made a suggestion similar to Mr Harmse, in relation to broadening the scope of subparagraph (d), and the Department’s response was the same.

Shukumisa also made proposals on subclause (5), which it said did not preclude any court referred to in subclause (1), from dealing with the matters referred to. It had, however, suggested the addition of the words:  “unless the offence occurs in a jurisdiction where there is a designated sexual offences court, and then such designated sexual offence court must hear the offence on a prioritised basis”.

Ms Pithey said that this was really going to practical implementation. There were two different scenarios. When there was a sexual offence charge, but no designated SO court in the area, any court could hear the matter. For a sexual offence charge in an area where there was a designated SO court, it was possible to have the matter heard either in this court, or in any regional court, which could, for instance happen, if there were full court rolls in the SO court, or if other resources were available elsewhere. Shukumisa was suggesting that if the SO matter occurred within a jurisdiction where there was a SO court, that court must hear the matter. She confirmed that sometimes, if there was a full court roll, the cases involving children would be prioritised, and those involving adults may be referred to regional courts other than the dedicated SO courts.

Ms Praise Kambula, Chief Director: Vulnerable Groups, DOJ said that the “non-SO” courts still had to have certain facilities – the minimum requirements were private interview room, CCTV and so on.

Ms Schäfer did not think that the NPA discretion should be limited. Perhaps the word “suitable” could be used. If one Regional Court could hear a matter more quickly, then this should be allowed.

The Chairperson agreed that the discretion should be left to the NPA.

Dr Motshekga thought that ‘suitable” could spark more debates and perhaps “other” court could be used.

Ms Schäfer agreed.

Mr Bassett continued that Shukumisa further suggested that a new subclause (6) was needed reading: “Where a sexual offence has allegedly been committed by a child, the matter must be heard in accordance with the Child Justice Act”. Mr Bassett said that this was already provided for in the Child Justice Act (CJA).

Proposed new section 55A(2)
Mr Bassett said that the NPA had commented on the proposed section 55A(2), saying that this was dependent on the passing of the Superior Courts Bill. It had been passed, and so the comment was no longer relevant. The same applied, later in the summary, to the comment of Shukumisa on this point.

The NPA had also suggested that the words “in consultation” should be changed to “after consultation”. Mr Bassett said that the Department had felt that, from a financial and logistical perspective, it would be possible for all  role-players to carry out their responsibilities if a court was designated. However, he would be interested to hear more comment from the NPA.

Ms Pithey agreed that there should be consultation, but noted that the Minister had the final say in designating the courts. Perhaps it was a question of semantics; but the NPA felt that “in consultation” implied that the Minister could not make the final decision, whereas “after consultation” implied that the Minister could make the decision, regardless of objections.

Ms Schäfer made the point that equally, it might be possible for the Minister to designate a court where there was no budget, and it would be impossible for the NPA to set it up.

Ms Pithey questioned how consultation was handled in other legislation. If there were other departments who would not be able to do the work asked, the whole matter would fall away. Currently, the Minister consulted with other departments and national instructions were then made. This went to discussion around the regulations, and what level of authority the Minister of Justice had in relation to other Ministers and the directives and national instructions.

Dr Motshekga pointed out that the Minister must be given authority to decide and to implement. A consultation process, particularly if people were not available, could lead to delays. The Minister, in implementing this, would take into account other views. He did not even think it necessary to prescribe for consultation. A Minister would be unlikely to do anything if it was workable.

Ms Kamagelo Lekuba-Wilderson, Director, Department of Justice and Constitutional Development, thought that the spirit of the Act implied that there must be inter-departmental consultation and she was not sure that it was important to specify whether it was “in” or “after” consultation.

Ms Schäfer stressed that it was important to aid that it was important to understand that there was a fundamental distinction between the two, but agreed that there could be danger that an official might stone-wall the Minister. She was revising her suggestion to “after consultation”.

The Chairperson agreed that the Committee did not want to see the situation that the parties could delay the process.

Ms Schäfer said that equally, the Minister should not designate where it was impossible to run the courts.

Dr Motshekga thought that “after consultation” was suitable.

Mr Bassett noted that other regulations by the Minister were done “after consultation”. 

Prof L Ndabandaba (ANC) agreed that “after consultation” was most suitable.

Mr Bassett noted that Mr Harmse had commented, in relation to the proposed new section 55A(2), that the Bill gave authority, but this must be ancillary to the Criminal Procedure Act (CPA) provisions around jurisdiction. There were similar provisions also in the NPA Act and Magistrate’s Court Act. All provisions had to be taken into consideration. The Department agreed, and therefore suggested that (3) should read: ”Subject to subsection 4 or any other area regulating the jurisdiction of a court, the area of jurisdiction designated in terms of (1) is….” Other provisions were more fully set out.

Members agreed to the Department’s suggestions.

Clause 55A(4)
Mr Bassett said that the NPA had raised the question of “in” and “after” consultation on this, but his earlier comment and the Committee’s decision applied.

Proposed new section 67: regulations
Mr Bassett said that Shukumisa had pointed out that the proposed substitution of section 67 of the SO Act  governed the future infrastructure and way in which the Bill would work. IT had made various recommendations on what should be said in the Bill about the regulations, provision of guidance and reference  to court models based on certain standards (see attached presentation for full details).

Mr Bassett said that an empowering provision to make regulations should provide some guidance. For purposes of the new section 55, consideration could be given to giving guidance on the section 67 regulations. The amendment allowed the Minister to make regulations, in consultation with the Chief Justice (CJ), to give effect to the designation of the courts, “including the requirements for the efficient and effective functioning thereof”. He suggested that it could be useful to expand on that. He proposed some wording (see page 17 of the attached document) which included phrasing noting particular reference, among others, to infrastructure and equipment, sufficient and appropriately trained judicial officers, prosecutors and other courts personnel and support services for the victims of sexual offences, and persons referred to in subparagraph (ii) (court officials).

Dr Motshekga said that sometimes there was failure to recognise that South Africa was a developing state and it was setting itself up for challenges. He questioned why the executive should make rules in consultation with the Chief Justice, and whether it was assumed that the executive would make rules inconsistent with the Constitution. If so, then the court still had jurisdiction to test the validity of those rules. Parliament currently had the situation where the Court would rule whether the Parliamentary Rules were consistent with the Constitution. To burden the Minister and require him to consult before he made regulations was taking consultation too far.

He also made the point that if it was stated that the Minister was obliged to make provision for effective and efficient implementation on infrastructure, training and so forth, this might lead to no courts actually being established, should, for instance, a civil society organisation complain that the court did not meet the standards. He said that customary courts were also courts, and if a traditional community were to complain that the court was being held under a tree, this would hinder their functioning. He cautioned that there should not be such insistence upon the law meeting international standards, when the material conditions did not reach the same standards.

Ms Schäfer said that the whole point of the Bill was to deal with SO Courts, and the reference to customary courts was irrelevant, as they were not dealing with SO matters. The point of setting up the MATT was to decide what minimum standards were needed, which would include the CCTV cameras and the like. Whilst she appreciated the general concerns, they should not be taken into account for SO courts.

Ms Pithey questioned also why there was a reference to consultation with the Chief Justice and asked for further background. One possible suggestion was to leave out (b) as a separate clause, but put the content for efficient and effective functioning under a new (iv). That would take into account that the requirements would relate  to other departments and that may answer concerns about the interplay between executive and judiciary. The second part of the debate was whether it was necessary to go into details about the infrastructure and so forth.

The Chairperson and Members agreed, and asked Mr Bassett to incorporate Ms Pithey’s suggestions into a re-worded clause.

General submissions and recommendations
Mr Bassett summarised that Mr Harmse had suggested that the major challenge was the availability of funds. He also suggested that regulations were needed for efficient and effective functioning and made some suggestions. He had also noted that prosecutions were also adversely affected by insensitive police officers. The Department had noted his points.

The NPA supported the introduction of the SO courts, by way of a legislative framework, and welcomed the Minister’s authority to designate.

Shukumisa supported the initial decision but said that the Bill failed to provide for the basic features, stressing that these should be set out in primary, not secondary legislation. It had argued that it was important to engage civil society in the establishment of the courts, for their experience and expertise. It was concerned when funding would be acquired, pointed out that poor quality prosecutions posed a risk, and said that clack of capacity resulted in repeated failures of justice.

Shukumisa made recommendations for a new 55A(6), that said what the courts designated must do - namely appointing staff, as prescribed, ensure training, ensure a minimum of two prosecutors, and provision of court preparation services in the prescribed manner. The Department had debated this wording on a prior occasion.

Shukumisa also pointed out that other government departments played a crucial role. It had argued that the putting into operation of these SO courts would have implications for them, yet the primary legislation was silent on their obligations. Because of this, and the fact that the regulations made by the DOJ would not always be binding on other departments, it was necessary for these department to make regulations and issue their own directives and instructions. It suggested some insertions.

The Department responded that the proposals for amending section 67 required the Minister to make regulations “after consultation” with other Ministers. Mr Bassett also pointed out that it was not correct that regulations would not be binding on other departments.

In relation to the proposals on section 66 (directives and national instructions), Mr Bassett noted that he was not sure whether these were necessary. Section 66(1) already provided that the National Commission must issues national instructions regarding all matters, to be followed by all police officials, to achieve the objectives of the Act. The Department did not think there was a need to “micro-legislate”.

Ms Pithey said that the current directives spoke broadly to issues around sexual offences. There were requirements that the NPA must do certain things, on certain sections, for instance, how it dealt with section 15 and 16 cases, and when intermediaries would be used. She thought that the argument from Shukumisa was that when the legislation changed, the departments should look again at their directives. NPA had debated whether to raise this point in its own submission, but had not included it, thinking that it would probably be covered in the regulations. However, she suggested that a directive relating to the SO courts would possibly not be out of place. She was not sure now relevant the other departments were; their role on SO courts was more indirect, and perhaps the NPA may be the only department requiring changes.

The Chairperson pointed out that the National Commissioner must do this in conjunction with the NPA.

Dr Motshekga thought that perhaps there were different understandings of the role. The Minister was part of the Executive. He agreed that the regulations would be binding on all. He wondered why it was necessary to bring in all departments. He thought it should be enough to say that the Minister must ensure that effective and efficient functioning of the courts and structures, but not necessary to spell out the features to be provided, the fact that this was dependent on availability of resources, as it may lead to the system becoming unworkable. Even the international Human Rights instruments required “progressive” actions. This was perhaps a question of drafting. He cautioned that some requirements should not be made so stringent that the system fell apart.

Ms Pithey agreed with the DOJ that regulations were binding on all. However, the current Act was very “prescriptive”, requiring the NPA to provide directives on a number of sections. The argument could thus be made that the NPA must also provide directives on how it would act on the SO courts. If that was not seen as necessary, then the regulations must be worded to oblige the NPA to specify the criteria that were part of the model of what SO courts should be.

Dr Motshekga wondered if speaking of guidelines rather than directives would make a difference; the former would be seen as not prescriptive.

Ms Pithey answered that the current Act required directives, and SAPS had national instructions. She was not sure if there was a legislative precedent for guidelines.

The Chairperson asked if what was in the Bill sufficed, from the point of view of the NPA.

Dr Motshekga repeated that guidelines were not mandatory and would avoid the situation that the NPA might be fenced into a corner.

Ms Schäfer disagreed. If the courts were to be established, it must be done properly.

Ms Christine Silkstone, Content Advisor to the Committee, asked the NPA to clarify what the directives would cover in future.

Ms Pithey thought that perhaps it was not realistic, over and above regulations. The Bill would cast an obligation on government to implement the courts, and perhaps nothing more was needed than this, coupled with the regulations. Maybe the current directives were broad enough to ensure that within the courts, all the criteria were met.

Ms Schäfer wondered if the regulations needed to be more specific, if the directives were not included. The whole purpose was to create courts that were properly recognised and run properly. 

The Chairperson asked if the regulations could be challenged.

Dr Motshekga thought that there were some fundamentalist tendencies in society. This was a developing nation, and wanted to set the highest possible standards, as was correct. However, when trying to do so, laws should not be implementable. Competing social needs were apparent. He did not think that absolute positions could be taken. He did not think that any Minister or Government would be unwilling to run SO courts properly.

Ms Pithey returned to the directives, stressing that they were already in place for the current Act, and perhaps, with these changes, the NPA should also have to say how it would implement the SO courts. Potentially, these might say that, to the best of its ability, the NPA would provide two prosecutors per court, have people trained, and so forth.

Dr Motshekga said that nobody would have a problem with how it would be done, but he was cautioning that requirements should not be set that were so stringent that the courts would actually not be able to run. He agreed that this should be left to the NPA.

Ms Lekuba-Wilderson said that since the departments would be required to develop national instructives and directives already, there could simply be a requirement that they amend their directives to take the Amendment Bill into consideration.

Ms Pithey thought that it would be easy enough to add that the NPA must develop a directive on the manner in which it would implement the SO courts. This should not be prescriptive and NPA should be able to list the practical implementation.

Ms Kambula asked if that could not simply be left in the hands of the NPA.

Ms Silkstone indicated that there had been difficulty in getting instructions together for the CJA, and putting pressure on entities to produce Standard Operating Procedures would be useful.

The Chairperson agreed that it was problematic when Parliament discovered, several years down the line, that something had not been done.

Dr Motshekga said that this was transferring responsibilities to make the law to other bodies.

The Chairperson acknowledged that the detail was in their hands, but there were difficulties.

Ms Pithey made a proposal. The principal Act said that directives must be submitted to Parliament within a certain time. The amendment should read in a similar vein, and should specify that the directive must cover the manner in which the NPA would implement.

Mr Bassett agreed, and said that he would include such a requirement. The original directives had to be tabled to Parliament within, he thought, a year, and then a report every 12 months thereafter.

Ms Schäfer questioned what the NPA should do for a year. By the time the Act was passed, the NPA should know what it must do.

The Chairperson noted that this was something to be addressed also by the Committee during the presentation of the Annual Report.

Mr Bassett corrected himself; the time frame was six months. Members were happier with this.

He clarified that this was currently a requirement for SAPS, NDPP and Department of Health. Shukumisa was also advocating that this be extended to Department of Social Development (DSD) and Correctional Services (DCS), who were not obliged to do this at the moment.

Ms Pithey agreed that DSD was an essential element of the courts, and referred to the detail set out on pages 17 and 18, as to what the regulations would look at, including support services for victims of sexual offences. These support services would be supplied, in practice, by DSD or their financially-supported NGOs. The DSD had to come on board, and there should be obligations on this department.

Ms Kambula suggested that the DCS should also be included. The principle of SO courts was to focus on the victim. After the sentence and serving of sentence, victims must be included and DCS would have to contribute to prevention and reduction of recidivism by providing certain programmers.

The Chairperson quipped that he admired her ambition and saw nothing wrong in putting in it, although he doubted whether this would happen.

Ms Schäfer agreed that DCS had a role to ensure that accused appeared in courts, but this applied to all courts, and she was not sure if there were directives on that. DCS was not, however, directly involvement of DCS in the actual prosecution.

The Chairperson said that when sentenced persons left prison, they would return to society convinced that they had been wronged, and were not rehabilitated.

Prof Ndabandaba endorsed the view of Ms Kambula, as in line with study of victims.

Ms Pithey said that there was a need to differentiate between general management of sexual offences, where each department had a role to play, but this Bill looked at operation of the SO courts specifically. The DCS had something (she was not sure exactly what) about management of victims in parole hearings. However, they did not pertain to the courts as such. She thought that any directives needed to focus on the operation of the courts.

The Committee generally agreed that DSD, but not DCS, should draft directives.

Ms Lekubu-Wilderson felt that there was no harm in requiring DCS to apply its mind to how to make the courts effective. DCS would be transporting accused, and it was necessary to ensure that it managed this to ensure effectiveness in the courts. Collectively, all departments had to reach the objectives. If DCS did not communicate with the courts that an accused was, for instance, ill, and could not be brought through, then this would affect the victim. Their role was not central to operation of the courts, but was central to the needs of the victims.

Ms Pithey understood her point, but reiterated that the running of these courts did not really differ from the running of any other court, and those points in fact applied to all matters, no matter what the offence. The same applied to SAPS. Accused awaiting trial were actually being transported by SAPS, not DCS. They were, however, under that obligation anyway. She did not think that there was relevance to SO courts.

Members agreed to include DSD only in respect of directives.

Mr Bassett noted that the National Council of Women had drawn attention to various articles and reports, and these were noted.

The Chairperson suggested that the Committee should formally consider the Bill when it returned from constituency period. Members were asked to study the Bill in the meantime. He thanked the delegates for their input, which had been very useful.

South African Human Rights Commission (SAHRC) Bill: Departmental presentation
Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, said that he did not have another document; the Committee still needed to consider clauses 17 to 26. Once the Committee had gone through the Bill and made proposals, he would prepared another document. Issues flagged for further discussion were noted.

Clause 17
Mr Labuschagne said that on 21 May he had distributed a document indicating the differences between the existing Act and the Bill as introduced (JL040513).

The clause allowing entering and search of premises was largely in line with the existing section 10 of the South African Rights Commission (SAHRC) Act, but there were some minor changes to bring it in line with the Public Protector and Commission for Gender Equality Acts. A technical change was to insert “exercising the powers and performing the functions mentioned in section 14”, whilst wording had been moved, but without affecting meaning, in subclause (2).

Ms Schäfer noted that Mr Swart had been concerned whether the search and seizure provisions were appropriate. Here, there was generally no crime, or if there was, there should be referral to the SAPS.

Mr Labuschagne confirmed that this issue had been raised. The Chairperson of the SAHRC had said that the threat alone was usually sufficient to elicit a response. However, he agreed that this needed to be flagged.

The Chairperson clearly recalled Mr Swart’s concern, which was raised in relation to punishment of children. Some religions actively supported, even promoted, parental punishment, and had put together a manual on how and why this was needed. Mr Swart had suggested that if the SAHRC were to demand all such manuals from a church, this could have a huge effect on the constitutional democracy. When the Act was passed in 1994, the Committee had mainly been considering the position where the SAHRC approached departments, and an official refused access, so consideration had not been given to private bodies. He asked Members to consider whether the provisions were still appropriate, and, if so, what checks and balances should be in place.

Ms Schäfer asked that this be flagged and discussed when Mr Swart was present. This clause did not distinguish between public and private bodies.

The Chairperson reminded Members that Mr Swart had raised the question whether the SAHRC should not be in the same position as everyone else and have to apply for a warrant.

Dr Motshekga said the Chairperson could rule him out of order, but he was wondering whether the two older Departmental officials here should not all be accompanied by younger lawyers understudying them, as part of the transformation.

The Chairperson quipped that this was out of order.

Mr Labuschagne also indicated that this provision could apply to every private company took, and at some point the question would be asked why the Commission would not have to go to Court.

Ms Smuts said that she had raised last time whether the SAHRC had used those powers and needed them, and the Chairperson, Mr Mushwana, had confirmed that the powers were needed, if only as a threat to hold against recalcitrant departments. It was not quite clear whether he had spoken only of the subpoena power, but also of the search and seizure. She suggested the SAHRC should be asked to amplify, in writing, why it felt it needed the powers, and suspected that perhaps it had been referring to subpoena powers only.

Dr Motshekga noted that at a recent Forum of the Premier of Gauteng religious leaders had been concerned that the word “church” was not inclusive of all faith groups, and that Forum had resolved to use the phrase “faith-based organisations” instead.

The Chairperson said that the consideration should be, firstly, whether SAHRC needed the powers, and secondly, whether checks and balances could be included.

Clause 18: Compensation for certain expenses and damage
The Department was proposing the substitution of “state funds” with “national revenue funds” The question was asked why the SAHRC should not pay for itself. Mr Labuschagne noted that this wording was similar to the Commission for Gender Equality Act and the Public Protector Act, passed in 1994 and 1996 respectively. Perhaps the view then was different to the current feeling. The provision in the Public Protector (PP) Act was that the PP may order that the portion of expenses incurred in connection with an investigation be paid from state funds. He was not suggesting that the law could not be changed, but suggested a need to ensure consistency on expenses in similar instances. If the Committee amended it, then it would have to look to other amendments later.

Ms Smuts thought that the reference to the dates was particularly useful. She had always felt that the reason why powers like search and seizure were introduced were linked with the whole mindset at that time. She felt that in fact these powers were not appropriate for any bodies. The bodies should not be able to get funding outside of the usual appropriation processes. She proposed that clauses 18(1) and (3) be removed now, and in due course the similar wording should also be removed from the other Chapter 9 Acts. The implication was that if there was an over-run, funding could be obtained elsewhere.

Mr Labuschagne thought that “state funds” was broader than “national revenue funds”. He had not participated in the drafting of the original legislation, but agreed that ultimately the Chapter 9 institutions would be getting funding from Parliament.

Ms Smuts said that anything extra and unforeseen would have to come in the adjustment process.

Mr Labuschagne said the issue had not been discussed in Parliament. He wanted to highlight it so that the Committee could apply its mind, and noted an option to delete “national revenue fund”.

Ms Smuts reiterated that (1) and (3) should be deleted outright. Institutions should be working within their own appropriations and limitations.

The Chairperson said that he understood the concerns that there was a danger of this getting out of hand. However, it was always difficult for the SAHRC to predict what investigations it would be required to do.

Ms Schäfer pointed out that other departments had exactly the same problems.

Clause 19: Reports by Commission
Mr Labuschagne said this was largely the same as the existing section 15. However, it now stated that the SAHRC should report to the “National Assembly”, because it was accountable to that House, and not to “Parliament”.  He noted a view that SAHRC should report to the NCOP, given its work in the provinces.

Dr Motshekga said that “Parliament” included the NCOP.

The Chairperson reminded him that this Committee preferred the use of “National Assembly” (NA) only.

Mr Labuschagne said that this was covered in section 42(1) of the Constitution. “Parliament” would include the NCOP. However, elsewhere it was clear that the Chapter 9s were accountable to the NA.

The Department had proposed a new (3) and (4), to make its findings made known to any other organisation or institution. The SAHRC had said that there was no obligation on an entity to give a response, but Mr Labuschagne thought that (4) did cover the position, requiring the entity to give a written response on the finding or recommendations.

Ms Smuts had a problem with that. The Chapter 9 institutions’ findings were not binding. She wondered if there should not be insertion, in line 56, of that phrase: “whether it intends to give effect to such recommendation”. She did not think the steps would have to be set out, for if the Bill asked for that, it would follow that the entity would also have to report why it was not intending to give effect. The SAHRC would have to decide what steps to take, if there was an indication that no action would be taken. The power of the Chapter 9s depended on their moral suasion.

Mr Labuschagne said that the point of this clause was to give the Commission some monitoring power.

The Chairperson agreed, but reiterated that organisations were not bound by the findings.

Dr Motshekga had pondered whether the time frame was relevant, if the organisations were not obliged to take action

The Chairperson said that the Committee had a debate with the Public Protector, Ms Thuli Madonsela, when she had maintained that her findings were binding, and the Committee had argued that they were not, as the PP was not the same as a court of law.

Dr Motshekga said that if the findings were binding, the Chapter 9s would be able to run the country.

The Chairperson said that the current wording did recognise that organisations should at least have to consider the recommendations of the SAHRC.

Mr Labuschagne proposed that the 30 days be extended to 60 days, because he pointed out that by the time the finding had been submitted to the Head of the entity, then filtered down to the relevant person for a response, and back up again for approval, this could well take more than 30 days.

The Chairperson agreed.

Ms Bongani Lufundo, State Law Adviser, Office of the Chief State Law Adviser, wondered if the wording “30 days after becoming aware of..” did not already give sufficient time.

The Chairperson explained that in practice, this may relate to a regional office.

Ms Smuts thought that 60 days was not unrealistic, and could even be extended further, but she would be happy to support 60 days.

The Chairperson reminded Members of the problems in the past when an official in a regional office of the Department of Justice had complained of being fired without just cause, and had complained to the PP. By the time the Director General of the Department of Justice became aware of the matter, the official had been reinstated, without her knowledge. Members should consider whether this was appropriate.

Mr Labuschagne said that the findings must be made known to the head of the institution, and not the official concerned, and that would address the previous problem.


Dr Motshekga thought that if the Accounting Officer was left out of the process, this would be problematic. He thought it only logical that the head of the entity be made aware of the matter.

Ms Schäfer suggested that the phrase “in writing” should be added in after “advise the Head of the institution”.

The Chairperson and other Members agreed, and Mr Labuschagne said that he would draft an amendment.

Clause 20
Mr Labuschagne indicated that clause 20 now dealt with staff only, and clause 21 dealt with finances only. It had been set out that the Chief Executive Officer (CEO) must be suitably qualified and experienced. There was now a proposal that the CEO must be appointed to assist the Commission in the performance of its financial administrative and clerical functions. The CEO should hold office for the term determined by the SAHRC, but that appointment could be extended for one further term.

Ms Schäfer asked whether the second term would be for the same period – no more than five years, plus five years. If the first term was two years, then she questioned what the second term would be.

Mr Labuschagne said that if the first term was three years, the “reappointment” could mean a shorter or longer term than that.

Ms Smuts said that there was no valid argument for limiting the tenure of a CEO. Limited tenure applied to incumbents of independent offices, such as the Public Protector and Commissioners, to reduce the temptation that they might try to please people in government to get a reappointment. In addition, the matter of continuity in these bodies was best addressed by having the CEO and staff continuing, because tenure of the commissioners would end. She was opposed to staggering of tenure as she felt it did not work, but preferred that the CEO term continue.

Ms Smuts added that the current CEO at the SAHRC was excellent and there would be no purpose in getting rid of him. She thought that this was, therefore, the wrong approach. A similar approach should apply to the CEOs as to any other posts in the private sector.

Ms Silkstone and Ms Smuts agreed that the continued tenure in the job was performance-related. All normal safeguards would apply.

Ms Schäfer wondered why there was a five-year term limitation. Municipal managers and the like generally served on five-year contracts.

Dr Motshekga thought that the linking of officials’ terms with those of politicians was not helpful. This led to corruption, as officials could be tempted to enrich themselves in that period  of certainty.

Ms Smuts also wanted to speak to clause 20(1) and suspected that this may have been a carry-over from the early years, when provision was made for secondment of civil servants. Currently, there was no basis for seconding civil servants, as addressed by the Constitutional Court in the Langeberg case, when it noted, in relation to cooperative governance, that a Chapter 9 was “outside government”. Similarly, the budgets of Chapter 9 institutions should not be voted on line ministries, because this created the impression that they were an “agent” of the departments, and to her it made perfect sense that their budgets be moved to the Parliament vote. By the same token, civil servants could not be seconded from government to serve in a Chapter 9, and then return to government, because they were not independent. She recommended that all references to secondment in clauses 20(1), 20(6) and in clause 3 be deleted.

Dr Motshekga agreed that when officials were seconded, they were still dependent on the government officials in charge, and this raised possibilities of nepotism, political connections and so forth. He felt that people should have security of tenure, as long as they did the work properly and were qualified to do it.

The Chairperson noted that “or a person seconded in terms of subsection (6) must be excluded from (1). However, he questioned whether the SAHRC should be allowed to second people to other positions.

Members felt this should not apply to any post.

Mr Labuschagne questioned if there were likely to be any cases where the Commission may require the services of an expert public servant.

Dr Motshekga said that, if so, then the post would need to be advertised, and any public servant interested must then resign and move to the SAHRC.

Ms Silkstone pointed out that some years ago, the Department of Justice had “loaned” some officials to a commission.

Members said that this had caused a problem.

Dr Motshekga said that an emergency might arise, but the stopgap should not be proposed as the solution.

Ms Smuts said that secondment was routinely happening with the SABC Board, and that created its own problems. It was open to abuse.

Mr Labuschagne confirmed that the whole of clause 20(2)(a) would also be removed.

Members agreed with clause 20(2)(c).

Mr Labuschagne noted that the functions of the CEO were set out in (3). Members indicated they were happy with that.

Ms Schäfer noted that there were some other functions in clause 21, and felt that there should at least be a reference to that, in clause 20 only.

Ms Smuts argued that this was a different point. The Public Finance Management Act (PFMA) and the Treasury Regulations noted that the CEO of a Constitutional institution was the Accounting Officer.

Mr Labuschagne agreed that clause 20 was dealing with the administrative issues, and 21 was dealing with the financial issues, which was why it said specifically that the CEO was the Accounting Officer.

Mr Labuschagne said that whilst the staff would be appointed on conditions that the CEO would determine, approval of the “packages” must be tabled in Parliament.

Ms Smuts questioned if this was necessary, given the previous debates around the Public Protector salary, and whether this was included elsewhere.

Ms Schäfer wondered if grievance procedures should be set out; and whether this should be in legislation.

Ms Smuts responded that all Chapter 9s were supposed to have internal grievance procedures, and policies– in terms of labour law – although they were often not in consistent or satisfactory form.

Mr Labuschagne thought that the wording in (5) had been taken from other legislation, but he would check that. Clause 20(4) could provide for procedures for grievances. He did not think it was necessary to put it in the Act, but he wondered if procedures should be gazetted.

Ms Schäfer thought it sufficient to say that the terms and conditions should make provision for grievance procedures.

Dr Motshekga pointed out that institutions were accountable to, and their budgets came from Parliament, so it may be a contradiction to have the Minister publishing regulations.

The Chairperson said that the SAHRC was not a rule-making body, and it would present what it wanted to the Minister for regulation. 

Mr Labuschagne reminded Members that currently the President had to make those regulations, but the Department thought it preferable to confer these day-to-day functions on the Minister.

Ms Smuts questioned if this had to be in subordinate law.

Ms Silkstone read out the similar provisions from the PP Act. The PP had to consult with Minister of Finance and then table the remuneration and approval of determination within 14 days.

Ms Smuts said that she wondered if Parliament should be concerned with getting such detail – particularly in relation to ordinary staff as opposed to the Deputy PP.

Ms Schäfer also thought that “terms and conditions” rather than “benefits” should be used.

Ms Smuts still thought that this was unnecessary.

Ms Schäfer thought there was no harm in tabling, for the information of Parliament.

Ms Silkstone said that the PP had to consult with the Minister of Finance. There were provisions as to what happened if Parliament disapproved.

The Chairperson said that there was a discussion as to whether the institutions should be covered. If the PP was to consult with the Minister of Finance, then he asked if Members felt that the same should happen in the SAHRC.

Ms Smuts said that the Minister of Finance was looking to a number of clauses and places

Mr Labuschagne noted that the SALRC received a certain budget. The packages of the staff must be within that budget. He was not sure whether consultation with the Minister of Finance was necessary or would help.

Ms Schäfer said that this did not apply to the Independent Commission on the Remuneration of Public Office (the Independent Commission), which dealt with principals, not staff.

The Chairperson asked why the clause was changed from the current situation.

Mr Labuschagne thought it was to try to create more uniformity between the different Chapter 9 institutions.

The Chairperson reminded Members that many of the SAHRC staff had been head-hunted by the Office of the Public Protector (OPP) which was paying more. That problem would remain unless there was an agreement that the institutions must pay more or less the same.

Dr Motshekga questioned why one institution should have better conditions of service than another.

Ms Smuts said that similar salaries should follow similar functions, but cited, for instance, that the Independent Electoral Commission (IEC) was in a very different position to SAHRC, and that the Independent Communications Authority (ICASA) had to be able to pay competitive to attract technical staff away from the private sector. The Auditor-General worked on cost recovery and differed too. However, once the Chapter 9 budgets moved under Parliament, rather than the line ministries, they could perhaps be steered better.

Dr Motshekga said that if there was certainty on positions within the institutions supporting democracy, and their requirements, people may consciously enter into training to apply for the posts.

Ms Smuts asked that Members flag the issue for further consideration. There was no harm in the way the clause was worded in this Bill.

The Chairperson said that the question remained why there was a need to change.

Ms Smuts reiterated that the SAHRC Act was written under the interim Constitution, and its wording antiquated, so there was a need to have wording consonant with the current understanding of Chapter 9 institutions. 

The Chairperson read out the wording of the current SAHRC Act. Currently, there was no requirement that the salaries come to Parliament, and he thought this was acceptable.

Ms Smuts reiterated that this was an attempt to align this with the OPP legislation.

Dr Motshekga asked why it was actually necessary even to do this and if the PP legislation was compelling.

Mr Labuschagne suggested that he could prepare an option to delete that. He drew attention to the current section 19, which provided that the Minister could, after consultation with the Commission, make regulations on different categories of salaries, and which was being deleted to give the power to the CEO.

Dr Motshekga asked if there was a problem in bringing about uniformity.

Ms Smuts said that each body had been designed according to function, so different arrangements could apply to the different commissions.

Dr Motshekga asked for comment on uniformity from Mr Labuschagne.

Mr Labuschagne said he now tended to agree that, particularly in relation to staff, it would be difficult to create uniformity. Different Chapter 9s had different functions. The reason for tabling the document in Parliament was to allow for the comparison of salaries of equivalent officials across the bodies. He did not want to place an unnecessary burden on the NA, but it was part of the checks and balances.

Ms Smuts said that the big scandal was that the SAHRC commissioners themselves were not properly looked after, and other Chapter 9 incumbents came in later at vastly greater salaries and benefits. There was a real difficulty there.

The Chairperson agreed and said that presently the PP was earning the equivalent of a Supreme Court of Appeal judge, but it had never been the intention, when drafting the legislation, that the incumbent earn more than a High Court judge. Parliament would have to accept responsibility for allowing the escalation, and this was something that would have to be fixed when the next PP was appointed. By that time the Independent Commission would be dealing with the matter.

Ms Smuts hoped that there was a way to make it clear to the Independent Commission that it should not merely be working off past situations, as a benchmark.

Ms Schäfer pointed out that perhaps some incumbents were doing more work than others.

Dr Motshekga indicated that it was possible for officials to arrogate more to themselves. They could also be engaging others to do the work.

Ms Smuts wondered if there could not be something put in the Long Title to highlight the present disparities.

Mr Labuschagne agreed that he would draft an option for clause 20(5).

Mr Labuschagne continued to take the Committee through clauses 20(6) and (7).

Ms Schäfer pointed out that clause 20(7) allowed for contracts to be entered into for specific technical knowledge.

Ms Smuts questioned why the bodies (here and in other legislation) would have to get permission from the Minister of Finance for appointments, repeating that they should be working within their budget and if they really needed more money, they should approach Parliament.

Dr Motshekga thought that needing to consult with the Minister of Finance, as head of Treasury, was not problematic, although consultation with the Minister of Justice would be an encroachment on independence.

Ms Schäfer said this was true, but the clause had to be tightened up. It should state that in the event that SAHRC required additional funding, it must consult the Minister, but could still appoint.

Ms Smuts still thought that the only option was the adjustment appropriation, and the reference to expertise implied substantial extra cost. National Treasury could help out, here and there, but when the SAHRC budget fell under Parliament, it would have to approach Parliament. It could need a contingency fund. She again questioned if such expertise was justified, for the SAHRC, which did not use similar technical expertise as ICASA.

Dr Motshekga said that all Chapter 9s had a budget and should not have to consult further once that was received. The word “consult” was a misnomer – this was presumably a request for money to do something not provided for in the budget.

Ms Smuts wondered if this would cover the situation such as the SAHRC involvement in Marikana. Again, she was not sure what “technical and specialised knowledge” was needed, and traveling expenses could be problematic.

The Chairperson asked if, for instance, it was the intention that the SAHRC would fund Dali Mpofu.

Ms Smuts said that the Committee’s main concern was the possible duplication of the work done by others. She thought that Mr Mpofu might have been representing others.

Dr Motshekga said the families who were appearing were appearing as witnesses, to lead evidence, and they were entitled to witness fees. There was no question that any witnesses had to be defended against charges. He felt the contracts were an attempt to hinder the working of the system.

Ms Smuts was sympathetic to the request for the DOJ, that if it had to pay more, it would have to be specially voted on the adjustment budget.

Dr Motshekga reiterated that in this case there was no justification for Parliament to vote any money for legal assistance to witnesses. Institutions should not do what their budget did not cover, especially since Legal Aid South Africa was in place. He cautioned against creating a precedent that witnesses could be provided with lawyers.

Mr Swart said that this clause would cover the situation where the SAHRC entered into contracts then requested money, for special projects, or any other law. He was concerned that if the phrase “in consultation with the Minister of Finance”  was removed, there was no constraint on entering the contracts. The budget should be the constraint, but his concern was that SAHRC was engaging in Marikana, with no end in sight. SAHRC had argued that it was independent and could decide how to spend.

Ms Smuts reiterated that when the budget was moved to Parliament, there must be consultation with Parliament.

Mr Swart agreed, but said that until then, the consultation with the Minister of Finance must remain.

Ms Schäfer wondered if the phrase “may, within their budgetary constraints” could help.

The Chairperson said it was too vague. The Minister would ask if there was money available.

Dr Motshekga reiterated that the Chapter 9s must work within their budget, and if consultation would result in the SAHRC being allowed to spend outside its budget.

The Chairperson said this was the point, and why the clause served the Committee’s purpose, for the Minister was unlikely to authorise more money.

Mr Swart said that this request would relate to something over and above the normal work that was budgeted for. He questioned if the Minister would be approached to approve a specific project.

Members agreed that the clause should remain as worded.

Ms Silkstone noted that clause 20(3)(j) would depend on whether the search and seizure was decided upon.

Clause 21
Mr Labuschagne said that subclause (1) made it clear that the CEO was the Accounting Officer. Subclause (2) noted that expenditure would be defrayed from money appropriated by Parliament, and (3) was a fairly standard provision.

Ms Smuts said that the Committee had previously discussed that all Chapter 9 budgets would be put under Parliament’s votes, and this reflected the current position. She liked the provision in (b)(i) that the funds could not be used for any other purpose. However, she questioned what clause 21(3)(a) meant.

Mr Labuschagne said that this was in the original Act. The purpose was that the SAHRC could only defray expenses on request, and in the same way that state departments did, under defined processes.

Ms Smuts said that if this was the meaning, it was incorrect. Independent institutions should never have to ask the Director-General for transfers, which could either be refused or approved. Only if the phrase referred to the annual motivation for the budget, was it acceptable.

The Chairperson said that the Exchequer Act references had been taken out.

Ms Smuts still thought that the concept needed to be put more clearly. The Chapter 9s must not be subject to the whim of a Director-General.

Ms Schäfer wondered if clause 21(3) was necessary at all. Firstly, it did not make sense, and the PFMA applied anyway. There was no need to refer to other legislation.

Members debated whether the information could not be incorporated elsewhere, but agreed that (3) could simply be deleted. Clause 21(2)(a) covered the position by stating “subject to the same laws”.

The Chairperson asked if clause 21(2)(b) was needed.

Mr Labuschagne thought it would do no harm to leave (b), as a separate sub-clause,

Clause 22
Mr Labuschagne said this was largely the same as the existing wording, but certain new definitions were taken into account.

Ms Schäfer asked why “with the necessary changes” was mentioned, in respect of the State Liability Act.

Mr Labuschagne said that the State Liability Act made reference to the Minister, but the Chairperson of the SAHRC must be substituted for that in this case.

Ms Smuts said that this was actually already set out. She questioned if any other changes were being referred to.

Ms Schäfer agreed, and said that “with the necessary changes” could be interpreted in more than one way.

Mr Labuschagne thought that the State Law Advisers could advise on this point.

Ms Lufundo noted that this clause was aligned with the State Liability Act, and there was no harm in deleting the wording if the Committee wished.

Clause 23
Mr Labuschagne noted that there were a few technical changes, but this clause was largely the same as in the existing Act. Ms Smuts had questioned why (d) applied, and why defamation of a member of the SAHRC’s staff should be an offence.

Ms Smuts was adamant that this must be removed.

Clause 24: Regulations
Mr Labuschagne noted that certain matters specified in the original Act, that related to administrative and day-to-day running of the office, had been deleted, and were now referred to under the CEO’s functions in clause 20.

Ms Smuts asked the Committee still to consider whether Ministerial regulation was appropriate.

The Chairperson said that essentially the SAHRC was deciding on the issues, then asking the Minister to make regulations. He noted that (2) required regulations linked to state expenditure to be made in consultation with the Minister of Finance.

Members noted that this could mean staff arrangements only, or apply to the whole budget vote.

Ms Smuts suggested that the discussion on regulations and definitions should be left until the end of discussions on the rest of the Bill, as this would give Members more certainty on how the Bill should be worded.

Mr Labuschagne thought that a set of regulations had been published long ago; he had not seen it .

Ms Silkstone said that the regulations were a problem as they were onerous and outdated, not even complying with the basic labour legislation. Updating them had been problematic.

Ms Smuts suggested that the CEO of the SAHRC should be asked for input on the real problems and difficulties were.

The Committee agreed to do this and come back to the issues.

Clause 25
The Chairperson noted that this was a fairly standard clause.

Clause 26
Mr Labuschagne noted the short title and commencement date.

South African Human Rights Commissioner appointment
The Chairperson noted that there was not a quorum to decide finally on the Human Rights Commissioner. However, the ANC indicated who its preferred candidate would be, and gave some input on why it preferred that candidate to another.

Other business
The Chairperson said he had received notification from the Department of International Relations and Cooperation that a Vietnamese delegation would be coming to Parliament in October. It was bad timing, and it would be difficult for the whole Committee to set aside a session.

Ms Smuts suggested that perhaps those Members wanting to meet with the delegation could do so.

Dr Motshekga agreed, but said it should be made clear that this was not the whole Committee, but perhaps only a delegation from it.

Dr Motshekga, commenting on the Parliamentary programme, said it was unfortunate that the breaks created the impression that Members were not working and taking their matters seriously. However, there were many demands also being cast on Members, particularly at the moment, and they were anxious, in the run up to elections, to try to attend to party matters.

Ms Smuts agreed, and noted that Members of this Committee worked incredibly hard.

The Chairperson gave notice that he would be calling for meetings on 1 and 2 October.

Ms Smuts noted that other ad hoc committees on which Members served would complicate the issue.

The Chairperson noted that on the following day, at 12:30, the IEC ad hoc committee was being convened, and would be meeting on Mondays.  The ad hoc Committee on the Protection of State Information Act had not been convened because the names were not ATC-ed.

The meeting was adjourned.