Protection of State Information Bill: Adoption of revised Committee Report & Minutes - in presence of the Minister

Ad Hoc Committee on Protection of State Information Bill (NA)

29 October 2013
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

The Committee, in the presence of the Minister of State Security, met to adopt the minutes of the meeting on 29 October, to settle the revised Committee Report, and to consider a document submitted by the State Law Advisers, who had been requested on the previous day to study the Protection of State Information Bill for any inconsistencies, and who had identified a number of technical errors which it was suggested should be corrected.

The IFP and COPE Members objected that they had not received notification of the meeting on the previous day, but the Chairperson said he could no more that assure them that all notifications were sent out in the same way to all Members, and that the meeting appeared on the ATC. Some minor corrections were made to the wording of the minutes of 29 October. A DA Member raised the point that his party had not actually agreed to the State Law Advisers being instructed to study the Bill again to identify corrections, as his party did not agree that it was appropriate to make corrections as part of this process, and the Minutes should reflect that this was on instruction from the Chairperson alone. Other Members pointed out that no objections were raised, that the Chairperson was asking this on behalf of the Committee, and the majority Committee viewpoint was that it would be irresponsible to be aware of inconsistencies and not correct them. The majority of the Committee confirmed the adoption of the Minutes of 29 October.

The IFP Member asserted, under the “Matters arising” section, that neither the most important debate, nor the Committee’s decision that the Committee had the plenary power to amend as it wished, once the matter was sent back, going beyond the grounds identified by the President, were set out. He asserted that grammatical changes amounted to an amendment and should be reflected in the minute. Other parties did not agree with this, and said that although he may have asserted this, the Committee had not decided on it in this way. A discussion was again held on whether correction of grammar, punctuation and spelling in fact amounted to amendments.

The revised Report was tabled. The Speaker had referred the matter back to the Committee saying that the NA Rules required the inclusion of a minority report, and on the previous day, a statement on the position of the DA and ACDP was included, but COPE and the IFP were not present. COPE had now written to the Chairperson and formally proposed the inclusion of the sentence: “COPE did not support the process and the outcome of the ad hoc Committee.” The IFP Member quoted from a letter he had sent to the Speaker and asked that this also be included. However, the DA and ANC objected to the content, which they believed was factually incorrect, in relation to whether or not an advocate’s opinion had been discussed or rejected for discussion, and also felt that subjective remarks such as “the Committee wrongly decided” could not be included. An ANC Member believed that the Member should rather be raising those concerns directly to the President. After some heated discussion on both the length and content of the IFP viewpoint, the Member produced a revised version but again, others took issue with part of it, asked him if he would be prepared to revise it, and held a long debate as to what such Reports may or may not include, and whether this amounted to stifling his freedom of expression. There was also a debate, with the Parliamentary Legal Advisers contributing their opinion, on what a minority report comprised. Eventually, the Chairperson obtained consensus from the majority of the Committee that it would be stated, in addition to the views of the DA, ACDP and COPE, that the IFP took the position that, as set out in section 79 of the Constitution, rather than merely addressing the concerns of constitutionality, the Committee should have allowed the review of the Bill beyond a few chosen grammatical matters. It would be stated that furthermore, the Committee unanimously decided that it was unable to agree to the publication of a minority view of the IFP which actually misrepresented the proceedings and the positions taken by members of the IFP. In this regard, the IFP disagreed with the procedure adopted by the majority.

The majority of the Committee, with the IFP opposing, finally adopted the Committee Report.

The State Law Advisers tabled a list of technical inconsistencies or errors that had been picked up from the D-version of the Bill. The corrections related to clauses 1, 3, 7, 12, 15, 18, 20, 26, 51, 52, 53, and 54. The DA and ACDP noted that these corrections made no difference to the substance of the Bill, but were, in principle, still opposed to technical corrections being effected under this referral process. The ANC and IFP supported the amendments, believing that they improved the Bill. The Committee would ask the House to rule whether it was prepared to effect the amendments as part of the process. The Chairperson was mandated to prepare the final minutes of that day’s meeting, to be circulated for comment and adoption by round-robin.
 

Meeting report

Protection of State Information Bill: Adoption of revised Committee Report and Minutes of meeting 29 October
The Chairperson summarised that on the previous day, the Committee had been dealing with the revised Report of the Committee, and the State Law Advisers and Parliamentary Legal Advisers were asked to check whether there were typographical or other problems.

Dr M Oriani-Ambrosini (IFP) said that he had received no notification of the meeting held on the previous day. This was a major flaw.

Mr D Kganare (COPE) said that he had been in the same position. He had received an envelope in his pigeonhole only when he came from the meeting yesterday.

The Chairperson could only say that all Members were informed in similar fashion and could not comment further than that. He also drew attention to the ATC, which published that this meeting would be taking place, over and above the specific notification to Members. He knew the importance with which Members regarded their work in this Committee and it was very serious if Members were not notified timeously. However, he could not take it further.

Minutes of 29 October
The Committee asked Members to go through the minutes, page by page.

Dr M Oriani-Ambrosini (IFP) said that he was not at the meeting and only wanted to deal with the matters arising.

Ms M Smuts (DA) proposed a technical amendment on the fourth last line on page 2: which should read “with” instead of “to”.

Mr M Sonto (ANC) said that there was a tautologous reflection of the minutes of 10 October and this was corrected, with concurrence of other Members, by deleting “Adoption of the…”so that it read “The minutes of 10 October were adopted…” .

Mr J Maake (ANC) commented that the first sentence on page 3 should read “no apologies” instead of “not apologies”.

Dr Oriani-Ambrosini asked if the Committee was re-adopting the minutes of 10 October. He wondered if he could propose corrections.

The Chairperson said that Dr Oriani-Ambrosini could not do that if he was not in the meeting. He noted that the minutes did not reflect who had proposed and seconded the adoption, and asked Members if they wanted him to listen to the recordings and check this, or simply leave out the names of the proposer and seconder.

Professor L Ndabandaba (ANC) suggested that he listen to the recording.

Mr A Maziya (ANC) questioned whether the last paragraph on the resolutions was structured correctly.

The Chairperson pointed out that this was now a different point. However, he asked whether it would not make sense to simply delete the reference to proposer and seconder.

Mr J Maake (ANC) said that he recalled that the proposer was Mr Sonto, seconded by Mr Nchabaleng.

The Chairperson noted no disagreements, and those names would be inserted.

Mr S Swart (ACDP) suggested that, on point 4, the sentence should read “..the report be amended to include the ACPD, which supported the DA view.”

Mr D Maynier (DA) thought that the words “by direction of the Chairperson” should be inserted, prior to the reference to the State Law Advisers being asked to check the Bill. Not everyone agreed that this was necessary.

The Chairperson noted his point, but said he had not heard anyone voicing objections to what he had requested.

Mr Sonto answered that he did not see why everybody at the meeting should have to agree or disagree specifically with what the Chairperson had asked. Other Members here were part of the proceedings.

Hon Siyabonga Cwele, Minister of State Security, reminded the Committee that he had been invited to comment on the process at the end of the meeting, and he had specifically commended the Committee for instructing the legal advisers to check the whole Bill.

Mr Maynier thanked the Minister for this clarification. However, the DA had already expressed its view that if the Committee decided that deliberations on the Bill were confined to sections 42 and 45, then it followed that the Committee would not have powers to amend any other sections of the Bill, even if they were typographical corrections, so there was no point in calling upon the State Law Advisers to check for corrections.

Ms Smuts added that this followed from the DA position on the original attempt to fix the typographical errors. She was sure that there was no objection to the Chairperson’s request, because at that point, the meeting had been “going its own way”. She was not in favour of the State Law Advisers checking, because of the DA view that mistakes should not be changed through this process. Anyone reading the proceedings of the Committee would find that this was “not the most edifying spectacle” in Parliament.

Mr Maziya understood that there were technical arguments. However, he did not believe that the Committee should be so irresponsible as to continue to overlook obvious errors. He felt that making typographical errors did not amount to an amendment, but correct process. No legal interpretation should be attached to this; it was a normal administrative exercise. From time to time, it would be necessary to correct a document to make it more meaningful. He pleaded that the DA agree that this was not an amendment, but an exercise that was necessary.

The Chairperson intervened at this point. There was a suggestion to make an insertion in paragraph 5. He suggested that the Committee deal with the minutes, first, before coming to the other points.

Dr Oriani-Ambrosini attempted to raise a point, but the Chairperson said that he was not present at the previous day’s meeting and may not comment.

Dr Oriani-Ambrosini interjected that if the Chairperson wanted to chair, he must chair, and added an inaudible comment, to which the Chairperson took objection and cautioned Members that they should show respect.

The Chairperson asked if Dr Oriani-Ambrosini wanted to say something about the one sentence with which the Committee was busy.

Dr Oriani-Ambrosini said that he wanted to debate a point.

The Chairperson ruled that this sentence must be finalised.

Ms S Shope-Sithole (ANC) said that paragraph 5 reflected what transpired. The Chairperson was quite entitled to make statements and she did not think that anything other than normal procedure had been followed.

Prof Ndabandaba felt that the Chairperson’s proposal to the State Law Advisers was in conformity with the rules of logic.

The Chairperson confirmed that Members would leave the sentence as it was. It was neutral as it read; it would become loaded with the addition of any more words.

Ms Shope-Sithole moved for adoption of the minutes of 29 October 2013, with amendments, and this was seconded by Mr Maziya. The majority of the Committee confirmed the adoption of the Minutes of 29 October.

Ms Smuts said that it was only this ad hoc committee that could respond to issues in this lengthy manner. She disagreed with Mr Maziya’s view on the grammar, which could amount to amendment.

Dr Oriani-Ambrosini referred to Matters Arising. The important debate was not reflected. Members had agreed that the President was limited in his power to send matters back, to specified grounds, but it was held that the Committee had the plenary power to amend as it wished, once the matter was sent back. The Committee wished to amend the Bill only in a limited manner, without considering it fully, clause by clause. He asserted that grammatical changes were an amendment and that was how the law worked, and that should be reflected in the minutes. The Committee had asserted the power of a Committee of Parliament to go beyond the grounds identified by the President. That did not come out in the minutes of 10 October or 29 September.

Ms Smuts said that her recollection was that there was no such decision. Dr Oriani-Ambrosini may have made an assertion to this effect, but that was not what the Committee decided.

The Chairperson said that there were two matters dealing with the reservation on an opinion that the discussions should be limited to those two clauses specifically named by the President. He took the view that where the legislature sat with obvious errors in front of it, it had to correct them, otherwise it would become a laughing stock. He had suggested that the Committee should recommend to the House that certain errors be amended and leave it to the House to decide upon that, as a separate issue altogether. The Committee was not making a decision on correction, merely deciding to leave it to the House whether this be done.

He agreed that the points made by Dr Oriani-Ambrosini were a distortion of the true events.

Ms Shope-Sithole concurred with the Chairperson and Ms Smuts. She said the misunderstanding may have been due to the fact that Dr Oriani-Ambrosini was not present all the time.

Mr Sonto agreed that there were Members of the Committee who did not agree with the change of “foe” to “for”, and other obvious typographical errors, but the majority of the Committee had agreed it was logical to make the changes because they were not changing the content and context of the clauses. He felt that the way that Dr Oriani-Ambrosini was putting it now was “totally distorted” and agreed this could be because he was not always present.

The Chairperson said that the DA was not in agreement with the view taken, and that had been recorded in the minutes.

Ms Smuts quoted from the Minutes of 10 October, saying that the DA believed that grammar could not be dealt with under that referral. The majority view held otherwise.

Mr Sonto reminded her that the ANC had spoken to “typos”, over and above grammatical mistakes.

Mr Maake said that, with due respect, the Committee should not argue these points.

Ms Smuts said that it was a farce.

Dr Oriani-Ambrosini made an inaudible interjection.

Mr Maake thought it would be showing disrespect to the people of South Africa if typographical errors were not corrected.

Mr D Kganare (COPE) felt that people were not actually addressing the point. The ANC believed that typographical errors must be corrected. However, by doing so, this amounted to an amendment. COPE held the view that amending one section also should not stop the Committee from amending any other clauses. He did not think that such long arguments on this point were really justified.

Ms Shope-Sithole asked the Chairperson to warn Mr Kganare to confine his comments to his own views and not attempt to speak to what the ANC believed. He was never in meetings.

Dr Oriani-Ambrosini said that he did not particularly care, but it was an important precedent on which clarity was needed. Either this Committee would stay “within the box” given by the President – as the DA held – or it must go beyond that – which the Committee had done, and he agreed that the Committee had inherent power to go beyond the exact terms of the President’s referral. However, the Chairperson was appearing to shy away from this by using a specific phraseology, and saying that “the typos” would be corrected. He agreed with that, and said that this was already showing that the Committee was moving outside the box.

Mr Maziya did not understand how it could be said that changing full-stops, commas and changing “foe” to “for” did indeed amount to amendments. They did not change the meaning of the paragraph or the sentence.

Ms Smuts countered that it was not true that grammar or typo amendments would not always amount to actual amendments. It was a punctuation error that resulted in no offence being created, and by fixing it, the offence was created. She wanted to place that point on record.

She added that if the Bill had been sent through for checking, the Committee must see the changes that the State Law Advisers were to effect, as they could not do that without confirmation from the Committee and she therefore asked for a list of amendments.

Ms Smuts pointed out that, with the greatest fondness and respect for Dr Oriani-Ambrosini, the reason that the Committee was here today was the letter that Dr Oriani-Ambrosini had addressed to the Speaker. Dr Oriani-Ambrosini wanted a minority report. However, today he was asserting something quite different. This Committee did not hold that it had the power to review the whole Bill or the plenary power to amend as it wished. The majority view was that the Committee should be dealing with the Presidential reservations, as itemized.

The Chairperson ruled that this argument be closed. He wanted the Committee to move on to the revised Report.

Committee revised Report
The Chairperson reminded Members that on the previous day it was agreed that the views of the ACDP and DA would be added in to the Committee Report. He asked them to confirm that the Report was correctly worded as far as their view was concerned.

Ms Smuts and Mr Swart agreed that this change correctly reflected their parties’ views.

The Chairperson continued that on the previous day, there were no representatives from COPE present. He had received a letter, shortly before attending this meeting, requesting that COPE’s attitude to the proceedings be incorporated into the Report. He asked that the letter from Mr Kganare be distributed and asked Members if they should include the minority view as expressed in the last sentence only. The Report was not supposed to be the minute of a meeting, but must merely capture the argument and the minority view. He felt, for the sake of moving forward, that the last sentence probably incorporated the views, and asked Mr Kganare to formally propose that it be included as the minority view of COPE. It would be added below the paragraph reflecting the view of the DA and ACDP.

Mr Kganare proposed that a sentence be added saying: “COPE did not support the process and the outcome of the ad hoc Committee.”

Members indicated their agreement with this being added in.

Mr Swart said that he did not understand line 4: referring to the “President’s reservations on the defect on the substance thereof” . It appeared to be a direct quotation of Rule 206. He suggested that this could be better worded as “Reservations on the Constitutionality of the Bill”

The Chairperson agreed that this was a different style, and had raised a similar query himself, only to be told by the legal advisers that this was the way that matters would normally be captured. He had suggested that it be left as it read, unless the Members were saying that there was something seriously wrong with it.

Mr Swart said that the President’s reservations were that the Bill was defective because of its substance. However, this was a technical point and he suggested that, to reach finality, this be left as it was.

Dr Oriani-Ambrosini requested that the Report should reflected all three minority views that he had set out in his letter to the Speaker.

The Chairperson said that Dr Oriani-Ambrosini had written to the Speaker, but not to him, and he did not have a copy.

Dr Oriani-Ambrosini confirmed that he had sent a copy also to the Chairperson, via e-mail. He read out the gist of the letter, which was, firstly, a note that Rule 251(3)(e) referred to recording “any views” Whilst the Committee ”correctly” held that the Committee had the power to review the whole bill rather than correcting only those clauses referred by the President, the Committee wrongly decided that it would not in fact do that. The Committee went on to correct grammatical errors but wrongly failed to address questions of syntax, for instance in clause 20. It further refused to consider the constitutionality argument, as set out by Adv Katz. This should be included in the Committee Report.

Mr Sonto said that this came across as the argument of Dr Oriani-Ambrosini and asked whether this was the view of his party.

Ms Smuts said that the correspondence with the Speaker was tabled at the Programme Committee, which was where she had seen it. Whilst she would like to be as generous as possible, she had a problem because that minority view was incorrect in fact. The statement that “the Committee wrongly refused to consider the constitutionality” was incorrect. The Committee did not know that this opinion of Adv Katz was sent to the President – for he had not referred it back to the Committee. She did not believe that the minority report could reflect sentiments on something that actually happened outside the Committee.

Dr Oriani-Ambrosini asked to answer that point.

The Chairperson said that he thought Members should not deal further with that point now.

Mr Maake suggested that the letter or concerns from Dr Oriani-Ambrosini did not need to be included in the Report, but perhaps he should send them directly to the President or to the Speaker. He agreed that it was raising issues that had nothing to do with the Committee.

Mr Sonto said that, as he had done with COPE, he would like to suggest  that the position of the party be incorporated. However, the Committee could not take this letter as the official vie of the IFP. Perhaps a shorter version was needed.

Dr Oriani-Ambrosini said, in answer to the suggestion that he provide a short version, that the Chairperson must either appreciate the NA Rules, or not. All MPs here represented their political parties, and whenever he opened his mouth in a meeting he was expressing  the view of the party – and if not, then it was up to his party to discipline him, but not up to others to question his authority. The Rules required d a minority view to be recorded in the Report. This letter should not go to the President. He had a right, under the Rules, to record his views. It then boiled down simply to whether to include them, or not. Nobody could re-write the views for him. He had requested the Committee to consider the Katz opinion, but the Chairperson had said that it could not serve before this Committee. However, he still had his right to record his view on the Chairperson’s statement, which was that it was wrong. The Chairperson had the power to do what he wished. Dr Oriani-Ambrosini could do no more than to state his view.

Mr Maake proposed that if Dr Oriani-Ambrosini did not want to make any amendments then the Report must be left as it was, without the inclusion of his statements, and he must then simply send that letter to the President. He was now quoting comments at the meeting, but that was not something to be included in the Report, but in minutes, and the Report should not contain any annexures. He proposed that if the parties could not agree on the correctness of what Dr Oriani-Ambrosini was asserting, then they must agree to disagree.

Mr M Nchabaleng (ANC) said that Dr Oriani-Ambrosini clearly wanted the last word and he suggested that the Committee now agree to disagree.

Ms Smuts agreed that this may be what would eventually happen. Her difficulty was that if Dr Oriani-Ambrosini was permitted to include what he had read out, it became part of the record. She would like to see minority reports included, but his proposals actually mis-stated the position, and it was not possible for the Committee to leave those misstatements uncorrected. If it was included, readers may assume that this Committee did in fact discuss Adv Katz’s opinion – which was actually written for the DA - and that the Committee had taken a view that it could review the whole Bill. It had not, so the statements of Dr Oriani-Ambrosini were factually incorrect, and could not be included in the Report.

Minister Cwele said that the Report put the position of the Committee clearly, in relation to how the majority of the Committee had decided to accommodate the Presidential referral and the grammatical amendments. The second part dealt with what the DA and ACDP had raised, in a crisp and precise manner. The third part reflected COPE’s disagreement with the process. Ms Smuts had now clearly set out the challenge of including what Dr Oriani-Ambrosini wanted included for the IFP position. It would indeed be wrong to have factually incorrect statements on a Report recorded in Parliament. If Dr Oriani-Ambrosini could be persuaded to come up with wording that was factually correct, it could be included. There was a problem in referring to his opinions.

The Chairperson asked Dr Oriani-Ambrosini if he could draft a shorter version.

Dr Oriani-Ambrosini asked if the problem was the length.

Ms Smuts said that it was not only this.

Dr Oriani-Ambrosini asked if it was then also a matter of substance.

The Chairperson said that length was another issue also.

Dr OA said that this came down to expressing a view, which he could express in a shorter or longer version. He did not believe that he was being verbose. This was also not something new that he was saying. The Minister and Ms Smuts asserted that the views expressed were not correct. This was very dangerous terrain and the hallmark of autocracy to question others’ views. The test of correctness was whether he was correctly stating his view. He had requested the Committee to consider the opinion of Adv Katz. His view was that the Committee had been wrong. He was expressing that.

The Chairperson interjected and asked Dr Oriani-Ambrosini not to analyse his statement but rather to try to conform to the style of a minority report. A minority view could not take up more space than the rest of the Report. Dr Oriani-Ambrosini might well feel that certain issues were incorrect. However, this could not be included in a Report.

Dr Oriani-Ambrosini asserted that he could reduce the number of words, but not alter the content. He could not subject himself to the power of the Chair to determine whether views were correct or not, for that was fundamentally wrong.

Ms Shope-Sithole said that his letter set out things that did not in fact prevail at the meeting.

Mr Maake felt that perhaps it should have been explained to Dr Oriani-Ambrosini at the outset that it was a matter of generosity that this Committee was even permitting him to speak. At the time that the matters were discussed, up to 10 October, Dr Oriani-Ambrosini was not officially on record as a Member of the Committee, as his appointment was ATCed only on 14 October. Because the Committee had been generous, it was now battling with issues. It was accepted that Dr Oriani-Ambrosini was entitled to speak in his capacity as an MP. He suggested that if this continued in this vein, the Committee might reverse its generosity.

Mr Sonto asked the Chairperson to rule on the issue, and close it. All parties had suggested a way forward to the IFP that it did not want to take. He reminded the Committee that this was the same IFP that took the Committee back to the Bill after it had been finalised. If the IFP did not want to be accommodated, then he thought the Committee could do no more.

The Chairperson said that he had carefully explained to the Committee, on 29 October, the difficulties around membership to the Committee. It was specifically stated that the Committee accepted, in good faith, that the IFP had taken the necessary steps to have Mr van der Merwe replaced with Dr Oriani-Ambrosini. The Chairperson had explained the legal position – that an MP could participate, but not move motions, or vote. If the business of the Committee had been concluded on 10 October, the question of his Dr Oriani-Ambrosini’s status would not have been raised again. For all intents and purposes, and strictly in terms of the Rules, the IFP was not represented by Dr Oriani-Ambrosini for the purposes of his voting and putting positions. Mr Maake was putting forward the “generous” view that since he did participate, it might be useful to consider incorporating the view of the IFP, which was not present at the meeting on the previous day. However, the Committee was now at a stage where Members could not get agreement. He thought that Dr Oriani-Ambrosini was being unreasonable, but that was his personal view. Other Members, however, had also complained that what Dr Oriani-Ambrosini was seeking to include was taking matters further than they had indeed gone.

He called upon the Committee to consider recording, in the report, the current situation that the IFP was offered the opportunity to voice its views, had done so, but the Committee could not agree upon the view expressed. The Report could then be debated in the House. This Committee could not sit for days on end trying to figure out whether the minority view could be included when Members had a problem with the accuracy of that view.

Ms Smuts agreed in principle, but was not quite in agreement with the way that the Chairperson had worded this. It could not be said that the Committee “was unable to agree with” the IFP’s view because that amounted to censuring what Dr Oriani-Ambrosini had said. Perhaps the Report should say something like “ the Committee was unable to agree with the version of events during Committee proceedings which were reflected in the minority report of the IFP.”

The Chairperson suggested a ten-minutes adjournment to consider new wording. The State Law Advisers would assist in preparing a draft.

On resumption of the meeting, the Chairperson noted that Dr Oriani-Ambrosini had reduced his wording and asked him to read it out.

Dr Oriani-Ambrosini said that the three points would now become two. He had eliminated everything that Ms Smuts found unpalatable, and those points that the ANC found offensive. The new wording was to the effect that, as set out in section 79 of the Constitution, rather than merely addressing the concerns of constitutionality, the Committee should have allowed the review of the Bill beyond a few chosen grammatical matters.  The Committee wrongly refused to consider the problems of constitutionality as set out in the opinion of Adv Katz, which was submitted to the President and which we requested be tabled before the Committee itself.

He left that for the Committee to accept or reject.

The Chairperson was not happy with the wording that the “Committee wrongly refused to consider” and wondered if there should not simply be a watered-down reference to a legal opinion that the IFP wanted to table.

Dr Oriani-Ambrosini said that this was the legal opinion sent to the President.

Ms Smuts interjected that it was obtained at the instance of the DA.

Dr Oriani-Ambrosini said that he might well be wrong, but he believed that it was necessary to look at the opinion to see whether it did open the door to more than had been done. It was a public document.

The Chairperson said that the statement “the Committee wrongly refused” implied that the whole Committee was refusing; and the opposition parties had their own position.

Dr Oriani-Ambrosini made the point that the Committee decided by majority.

The Chairperson accepted that but said that it was contradictory to the majority and minority views expressed.

Dr Oriani-Ambrosini said that his view was that the Committee was wrong in not considering something.

The Chairperson said that the Report must be factual, not express opinions and viewpoints. What Dr Oriani-Ambrosini was recording was still something that did not happen.

Ms Smuts said that she wanted to see the records of the Committee meeting.

Mr Sonto made the point that perhaps Dr Oriani-Ambrosini wanted to project this Committee as being wrong if it was pitched against his own views. Although English was not the first language of either, he thought that “the IFP did not agree with the Committee” was better than “the Committee wrongly…” If that was the wording, then it would be acceptable as a view of the IFP.

Ms Shope-Sithole reminded Dr Oriani-Ambrosini that the democratic principles he was speaking of also applied to other Members and he had no right to sanction the Committee. The Committee would record what happened, not what he wished would have happened.

Ms Smuts said that there was progress at least in the first point made – that his view was that the Committee should have allowed the review of the whole Bill. However, in relation to his assertion that the Committee wrongly refused to consider the opinion, she repeated that she did not recollect a discussion or a decision on that point, nor did she recall him mentioning the Adv Katz opinion, which was written for Lindiwe Mazibuko. If this was included, it implied that the Members had applied their minds, deliberated and decided not to consider it – and that was factually incorrect. There was no way that she would condone a misstatement or misrepresentation of what occurred. She pleaded with Dr Oriani-Ambrosini to limit himself to his first point only, for which he was perfectly within his rights and this was factually correct.

The Minister felt that there had been some progress. He asked if perhaps Dr Oriani-Ambrosini would agree to the insertion of “The IFP was unhappy that the Committee did not take the opportunity of reviewing the whole Bill and did not take the opportunity to discuss the legal opinion”.

Mr Maake said that he agreed with Ms Smuts that the first paragraph was correct, and also rejected the second. He was not sure why the Committee was spending so long on this point, and said that if Dr Oriani-Ambrosini did not agree, then the whole statement should be rejected, so that the Committee could “stop this circus”.

Dr Oriani-Ambrosini appreciated the courtesy of the Minister, but said that effectively other Members were insinuating that he was a liar. He, however, was adamant that he had asked for the Katz opinion to be tabled and considered, and the Chairperson said the Committee “should not go there”. On the basis of the previous discussions, the Chairperson was deemed to be speaking on behalf of the whole Committee. It boiled down to the freedom to express his opinion. Allowing a minority view was nothing to do with magnanimity, for this was allowed under the Rules. If the Committee wanted to reject what he had put before it, it had the power, but not the right. He would continue to express his view that it was necessary to consider the Katz opinion, which was a public document, and part of what the President had applied his mind to, and thus part of the record. He had previously expressed that as his opinion and he was not departing from that now. If his opinion embarrassed others, there was nothing more he could do about that.

Ms S Williams-De Bruyn (ANC) observed that Dr Oriani-Ambrosini was displaying much arrogance but he was not doing justice to his party. Other Members spoke of “our party”  and  “we” but Dr Oriani-Ambrosini was only speaking of “I” and “my”. She wondered if this was really putting the IFP view, or his own. She asked the Chairperson to move on.

Ms Shope-Sithole wanted to put on record that she also had not heard the Katz report discussed in this Committee.

The Chairperson summarised that Members had no problem with the first sentence. However, the Committee did have a problem with the rest. He suggested that the Report be modified, to reflect the view of the IFP as follows: “The Committee unanimously decided that it was unable to agree to the publication of a minority view of the IFP which actually misrepresented the proceedings and the positions taken by members of the IFP. In this regard, the IFP disagreed with the procedure adoption by the majority. The IFP took the position that, as set out in section 79 of the Constitution, rather than merely addressing the concerns of constitutionality, the Committee should have allowed the review of the Bill beyond a few chosen grammatical matters.”

He thought the first sentence captured the inability to get agreement. He shared Ms de Bruyn’s view that the stubbornness shown was unnecessary. There would be a debate in the House and Dr Oriani-Ambrosini and the IFP would have the opportunity to complain. The Committee was having serious difficulty in that Dr Oriani-Ambrosini had wanted the Committee to study a legal opinion and maintained that it was wrong in not doings so.

Mr Swart wondered if saying “The IFP was very unhappy that the Committee did not discuss a certain legal opinion” would be an improvement.

Ms Smuts and the ANC Members did not agree with that, for it invited questions on what opinion this was.

Mr Maynier said that this Committee was reconstituted  because the Speaker was of the view that the Committee, when it failed to incorporate minority reports, had not complied with the Rules. If the Committee proceeded as the Chairperson suggested, he wondered if this was compliance as the Rule required a Report to “express any views of a minority in the Committee”. When the Chairperson asked him to clarify this point, he said that the Rules required “any view” to be included, and he wondered what that meant.

The Chairperson said that the Committee could not agree on the view of the minority. The IFP and Committee were in dispute as to what exactly it was.

Mr Sonto said that the Rules referred to “any minority views” and not “any party views”. The way that this was captured encompassed views such as the IFP’s disappointment, the DA’s unhappiness and COPE’s silence. The Rule did not refer to having to express every single view.

Mr Maake said that if the Committee followed Mr Maynier’s point…

Mr Maynier interjected : “which is the Rule”.

Mr Maake continued that, following Mr Maynier’s logic, the Report would have to state Dr Oriani-Ambrosini’s view that the rest of the Committee was insane, if that was what he was saying. He did not think that the Rule required every view to be stated. The Chairperson had made a factual suggestion. It would be possible to say that the IFP was simply being difficult and the whole Committee could agree, or that the Committee could not get anywhere because the IFP maintained a view that the rest of the Committee thought was factually incorrect. He had suggested earlier that the Committee cease being generous, and reiterated that. If Dr Oriani-Ambrosini was not satisfied with the version proposed, then the Committee must say that no correct view could be extracted from the IFP.

The Minister stressed that the rejection as written by Dr Oriani-Ambrosini had included factually incorrect statements. He had not been in the first meeting.

Ms Smuts added that she and others had no recollection of the Katz report being raised.

The Minister said that if Dr Oriani-Ambrosini expressed that what he proposed was not accepted, then he could say that, but he could not go further and say that the Committee was wrong.

Ms Smuts maintained that the Committee had not taken a view as he had suggested on the points that he was speaking of.

Ms Shope-Sithole thought that there was enough deliberation on the point. She said that the IFP was being difficult, was introducing an untruthful report, which was obstructive and disturbing.

Ms Smuts made a suggestion on the second sentence. She asked if Dr Oriani-Ambrosini would be prepared to say that he was unhappy that the Chairperson declined his request for discussion of a legal opinion, written by Adv Katz for the leader of the Parliamentary opposition party, and which was sent to the President under section 79. She asked if he would agree that this was factually incorrect. She repeated that she had no recollection of the exchange, but Dr Oriani-Ambrosini clearly felt unhappy and frustrated. If he would not revise the second sentence, then she would be in favour of the unanimous insertion that the Committee was unable to accept a report.

Mr Maynier repeated a request for a report-back from the Parliamentary Legal Adviser on what the Rule said.

Dr Oriani-Ambrosini felt that the use of the word “unanimous” was not correct, and said that nobody else could rewrite the views. The views were interpretative, not necessarily factual, and that was what freedom of opinion was all about.

Mr Swart asked if Ms Smuts’s views was acceptable to Dr Oriani-Ambrosini.

The Chairperson said that he would allow Dr Oriani-Ambrosini to speak again, provided that he did not simply repeat himself.

Dr Oriani-Ambrosini said that it seemed he was only allowed to speak when he agreed with the Committee.

The Chairperson asked the Parliamentary Law Advisers to speak to the points raised.

Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, responded that he was being put in a tight spot, and really would prefer not to give an off-the-cuff answer, so the Committee must accept that his view was not thoroughly thought out. On that understanding, he said that his reading of the NA Rules did not require – either for the majority or the minority report – a detailed listing of all the issues that the Committee had dealt with. The Report was not a Minute, but a summary of what had been discussed. The minority view was therefore a summary of the general feeling of the minority parties, not a detailed setting-out of every little point.

Ms Smuts respected this viewpoint, and thanked Mr Vanara for delivering it in this manner.

Dr Oriani-Ambrosini hoped that Mr Vanara would think on the issue again when he went home and ask himself seriously what a minority view meant.

Other Members raised their objections.

The Chairperson read out his proposal again, and noted that the Committee must vote on it.

Mr Sonto suggested the addition of “The IFP further felt that” as a separator between the two sentences, and Ms Smuts suggested that, since the earlier part of the Report set out the position of the other parties, it would be logical to switch the two sentences around, so that the sentence “The IFP felt that as set out in section 79..” followed the sentence setting out the COPE position, followed by “The Committee decided that…”

The Chairperson read out the final portions of the report, setting out the positions in regard to the DA, ACDP, COPE and these last two sentences (in the order suggested by Ms Smuts) again.

The majority of Members adopted the revised Report, with the IFP recording a vote against it.

Technical correction to minutes of 9 October, adopted on 29 October
Ms Smuts had earlier said that she and Mr Sonto had identified some aspects of the minutes of 9 October, as adopted on 29 October that needed to be corrected. However, this point was not pursued at the end of the meeting.

Chief State Law Adviser briefing on technical aspects of the Bill
Mr Gideon Hoon, State Law Adviser, Office of the Chief State Law Adviser, noted that he had drafted a document and forwarded it to Mr Vanara. He distributed a two-page report was handed out, identifying some technical corrections. These referred to the version of the Bill referred back to the Committee (B6D-2013) and he was quoting those page numbers.

He proceeded to read through the various corrections (see attached document for full details), which outlined corrections to the title of the National Archives and Record Act, corrections of citations to sections both within the new legislation, and sections of other Acts, and corrections to legislation (the Local Government: Municipal Structures Act) which had since been amended. Other technical corrections included the capitalisation of some words, punctuation corrections,

The corrections related to clauses 1, 3, 7, 12, 15, 18, 20, 26, 51, 52, 53, and in clause 54 the date of the Act would be amended, although in answer to a later question from the Chairperson, he confirmed that this was not strictly speaking necessary, as this was something that would be attended to once the Act was finally passed, by the Bills Office.
The Contents page was also corrected, on pages 3 and 4, to reflect the correct spelling, punctuation, or capitalisation.

Ms Smuts officially objected, on behalf of the DA, to these corrections being done as part of the section 74 referral. Having said that, however, she thanked the Chairperson for having asked that the Bill be checked again and confirmed that nothing fundamental was being altered. In principle, her party remained opposed to this being done in this way.

Dr Oriani-Ambrosini said that he supported the amendments if they led to a cleaner and better Bill.

Mr Swart said that the ACDP aligned itself with the view of the DA, but appreciated the improvement of the Bill, at the end of the day.

The Chairperson summarised, for the record that there was still a view held by the DA and ACDP that this process was not appropriate for inclusion as part of the section 79 referrals. He said that this was a point that the House must decide upon and if the House decided that it had no power to effect the amendments, then the Committee could do nothing about that. He asked for a formal proposal that these corrections identified now be added in to the list of the other matters identified earlier and set out in the meeting of 10 October.

That proposal was made, and seconded. The ANC Members voted in favour of this being included in the proposal to the House. The DA and COPE recorded their vote against.

It was noted that Dr Oriani-Ambrosini and Mr Swart had left the meeting at this point.

The Minister reminded the Chairperson that their views had been expressed.

The Chairperson said that it would be recorded in the Minutes that Dr Oriani-Ambrosini was in agreement with those amendments, and that Mr Swart had expressed his party’s view against the process, but that neither was present to vote.

The Chairperson wanted to comment that he greatly admired the enthusiasm and dedication that Dr Oriani-Ambrosini had shown, despite his state of health and medication.

The Chairperson noted that the Committee’s work was now done. He would prepare a minute of today’s proceedings and send it around for comment from Members. He saw no difference between that and calling another meeting, simply to adopt the minutes of today’s meeting.

Mr Maake and Ms Smuts agreed.

Mr Sonto asked what would be the position if any of the opposition parties objected, and the Chairperson said that everyone must indicate their views when the notes were circulated.

The Chairperson expressed thanks to the Members, the Minister and the Legal Advisers.

The meeting was adjourned.
 

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