SA Human Rights Commission Bill: adopted; Committee Report on International Covenant on Economic, Social and Cultural Rights; State Attorney Amendment Bill: Department's preliminary briefing

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Justice and Correctional Services

10 November 2013
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Committee meeting had failed to start on time due the absence of all but one ANC Member. Opposition Members left the meeting and returned later to participate. The Committee firstly dealt with one outstanding concern on clause 16 of the South African Human Rights Commission (SAHRC) Bill, which had otherwise been fully discussed on the previous day. The ACDP Member noted that the search and seizure (without a warrant) provisions were in the existing SAHRC Act, and the Committee had been told that they were never used, but he had a lingering concern, firstly, about the risk of abuse should the SAHRC in future be headed by less scrupulous people, and secondly, whether in principle it was appropriate for these kinds of powers to be afforded to a Chapter 9 institution that was not concerned with law enforcement. However, he would not oppose the Bill should it remain. Other Members did not feel as strongly on this point, and the provision remained. A technical change was noted to the definitions section, where references to “secondment” must still be removed, and the word “practical” was altered to “practicable” in clause 8(3)(b). The Bill was unanimously adopted, with amendments. It was noted that it was tagged as a section 75 Bill. The final version of the Memorandum on the Objects of the Bill would be sent to the Committee later.

The Committee adopted, with the ACDP and DA Members abstaining, the Committee’s report on the International Covenant on Economic, Social and Cultural Rights. The DA and ACDP concerns related to the fact that education was a full, and not a socio-economic right, and therefore should not be subject to progressive realisation, as the declaration apparently indicated.

The Judicial Matters First Amendment Bill had now been officially tagged as a section 75 Bill (after the six clauses that had section 76 tagging implications) had been removed. The Committee unanimously adopted the revised Bill and report, with an amendment to the Report that listed the six clauses. It was noted that the six clauses had been moved to a Judicial Matters Third Amendment Bill, which would be tagged as a section 76 Bill, was being attended to by the Parliamentary Legal Office, and had not yet been provided to the Committee. Members would meet some time during the plenary session on the following day to formally receive, consider and adopt it.

The Department of Justice and Constitutional Development gave a preliminary briefing to the Committee on the State Attorney Amendment Bill, which sought to make the most essential amendments to the State Attorney Act of 1957. The Department had tried not to re-write the whole Act at this point, so it was aware that there may be some anomalies in wording. Essentially, the amendments would allow for the appointment of a new Solicitor-General to head state civil legal services, but that person was also granted powers as required by the Minister, as s/he would be part of the whole modernisation processes. Concerns about state litigation included the fragmentation of services, lack of effective coordination which had led to prescription of claims and default judgments, inconsistency in fees and briefing practices, the failure to advance previously disadvantaged practitioners, lack of alternative dispute mechanism. The Bill would thus consolidate state legal services both within the Department of Justice and Constitutional Development, and across government. There would be more than one Office of the State Attorney, with transitional arrangements for the current branch offices. New subsections 3(4) and (5) provided for the conferring of functions, said that the Minister must determine policy relating to various aspects of coordination and management of litigation, and this policy must be approved by Cabinet and tabled to Parliament. A new section 3(8) set out the powers and functions of the Solicitor General, who could issue directives and standards to ensure uniformity and qualify of legal services and these were also to be tabled to Parliament.  The power to delegate, with the necessary safeguards, was provided. Members pointed to some anomalies in the wording of clause 3, and said that there was a need to look very carefully at the delegation of powers, and ensure sufficient checks and balances, to ensure that centralisation of power was not abused. Debate would be needed on the current situation that departments tended always to brief private practitioners, on tariffs, and other issues, including whether the name “Solicitor-General” was apposite, as it used an English term. The tagging was also briefly discussed, with some Members expressing the view that it was surely a section 76 bill. The Committee would now advertise for written submissions on the Bill.
 

Meeting report

Chairperson’s opening remarks
Two DA Members left the meeting when it had not started by 2:40, but later returned after the meeting had started, at around 15:00 pm.
The Chairperson said that he was rather embarrassed to find himself in the situation where only one ANC Members was present, had to co-opt more, and apologised to all Members for the inconvenience.

South African Human Rights Commission Bill: B5B-2013: Consideration and adoption
The Chairperson noted that Mr S Swart (ACDP) still had a problem about the removal, and search and seizure provisions in clause 16 and asked him to address the Committee.

Mr S Swart (ACDP) said that the South African Human Rights Commission (SAHRC) had made out a case to the Committee, supporting the retention of the search and seizure provisions in the South African Human Rights Commission Bill (the Bill). The Committee had asked – and received the assurance – that these had not been used to date, but there was a lingering concern that at some stage in the future there may be ‘an Idi Amin-type person’ heading the Commission, and that the powers could be abused. He wondered, in principle, if it was really appropriate that search and seizure powers, without the necessity to get a warrant, should be afforded to a human rights commission. He appreciated that this was a direct cut and paste from the Criminal Procedure Act and this might be the reason for the specific provision, but he wanted further clarity on this. He would prefer that clause16 (6) be deleted. He reiterated that the SAHRC was not a law enforcement agency, but a Chapter 9 institution.

The Chairperson asked where else in law these kind of provisions were found.

Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, confirmed that there was already provision for this in the current SAHRC Act, and there were similar provisions also in the Public Protector Act and Commission for Gender Equality Act.

Mr Labuschagne added that he had checked the PMG reports on the meeting with the SAHRC and it seemed from those that no clear decision had emerged at the meeting, and the Committee had not given him any other specific instructions on the point.

Mr Swart said that this was his view, but he was not intending to oppose the Bill if the provisions remained. He understood that the original (current) SAHRC Act was drafted at a specific time and the provisions were probably included in the context of the transition to the new South Africa. He noted that the powers had never been used by the SAHRC. He also understood that the South African Revenue Services (SARS) had similar provisions, but his question was again whether it was appropriate to give these powers – without a warrant – to a Chapter 9 institution. However, he did not think the point could be taken much further.

The Chairperson summarised those concerns for the DA Member who had now returned to the Committee.

Ms M Smuts (DA) agreed that this was a point to note.

She wanted to point out a correction. The B-version of the Bill had made the corrections, as requested by the Committee, so that nobody could be seconded from government departments. However, page 3’s definitions section still contained a reference to people seconded, and that must be removed.

Members agreed and asked that the change be effected.

Ms Smuts further pointed out, in clause 8(3)(b), that the correct word was not “practical” but “practicable”.

No other corrections were noted to the Bill.

The Chairperson confirmed that there was a quorum and the Bill was adopted, with the amendments. No opposing votes were noted.

Memorandum on the Objects of the Bill
Mr Labuschagne noted that he was almost finished with the redrafted Memorandum on the Objects of the Bill. He would send it to the Committee Secretary.

The Chairperson confirmed that the Memorandum did not have to be approved before the Bill could be approved. It would be sufficient if it was received later.

The Chairperson also wanted to report on the tagging of the Bill. He had been informed by an ANC Senior Whip that the Bill had not yet been tagged by the Joint Tagging Mechanism (JTM). This was not a matter that was within the Committee’s powers, but he had said that he would ensure that the tagging was done. He was not sure how the question of tagging affected the manner of proceeding.

Ms Smuts asked who had the responsibility of attending to the tagging.

Ms Christine Silkstone, Content Advisor to the Committee, noted that on 30 April the Parliamentary Legal Advisers had suggested that it should be a section 75 Bill.

Ms Elmarie Lewis, Representative of the Parliamentary Office of Institutions Supporting Democracy (OISD), offered to find out what had happened, and, on her return, reported that the Bill had apparently already been tagged as a section 75 Bill.

The Committee adopted a short report that confirmed its adoption of the Bill.

The Chairperson confirmed that the Bill would be adopted in the NA the following day, but it was not scheduled for a debate, although anyone wanting to make a declaration on it could do so.

International Covenant on Economic, Social and Cultural Rights: Draft Committee Report, dated 11 November
The Chairperson noted that the Covenant had been debated at an earlier meeting. There was a qualification in the draft Committee Report dated 11 November, which he believed was necessary.

Ms Silkstone informed members that this qualification was apparently not included when the NCOP Select Committee had resolved to recommend ratification of the Covenant.

Ms Smuts pointed out that education was a full right under the Bill of Rights, not a socio-economic right, subject to progressive realisation. The recommendation from the Ministry was that the Convention should be adopted “subject to the recognition that South Africa would progressively realise the right to education. However, she reiterated that education was a full right, and this was not something to which progressive realisation could apply. The question was thus whether this Committee could state that point.

Ms D Schäfer (DA) reported that there was concern about the wording of the Convention obliging governments of states to expand educational rights. The advice was that a declaration could be included. She said that surely the recommendation was from government and if the majority of the Committee decided to accept it, then the report here was correct.

The Chairperson clarified for Members that this Report flowed from the decision of the Committee.

Mr J Sibanyoni (ANC), who had chaired the meeting, noted that the briefing was received, and questions were asked and answered, but the Committee did not formally vote on the matter, preferring to await the Committee’s report.

Mr Swart said that in that case he, and he believed also the DA, would abstain from voting.

The majority of the Members moved formally for the adoption of the Report. 

The abstention of Mr Swart (ACDP) and Ms Smuts and Ms Schäfer (DA) was noted.

Judicial Matters First Amendment Bill: draft Report
A short draft Report was circulated. The Committee Secretary confirmed that this Bill was now officially tagged as a section 75 Bill.

Ms Schäfer suggested that the clauses that had been rejected from this Bill (which were to be transferred to a new Judicial Matters Third Amendment Bill) should be specified.

The Committee officially confirmed its adoption of the Bill as a section 75 Bill and the Report was adopted, subject to that amendment. It would be dealt with on the following day in the NA.

Judicial Matters Third Amendment Bill
The Chairperson noted that the Committee could not yet deal with the Judicial Matters Third Amendment Bill, which would essentially comprise the six clauses removed from the First Amendment Bill because they had section 76 tagging implications. Parliament was to introduce this as a Committee Bill, but it had not yet been furnished to the committee.

Ms Schäfer thought that the advice was that, after the tagging, the Bill still had to be published for public participation, despite the fact that the wording of the clauses would not have changed at all.

The Chairperson said that he was assured this would be done on Parliament’s website, and, in answer to questions from Members whether this was sufficient, said that this had what he had been told and he could not really take it any further. Parliament seemed to be happy with that process.

It was decided to take some time out from the Plenary session on the following day, to meet and formally adopt the Judicial Matters Third Amendment Bill.

State Attorney Amendment Bill: Department of Justice and Constitutional Development briefing
Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, noted that the current State Attorney Act dated back to 1957, so it was extremely outdated. The amendments now proposed by the Department of Justice and Constitutional Development (the Department) aimed to give effect to the intention to appoint a functionary to head the framework of state legal services, as announced last year. The new Bill was intended to enhance accountability, with appointment of a single State Attorney, and to modernise the current framework. The transformation of state legal services by this Bill must not be seen as an isolated event, but formed part of the broad administration of justice, institutional reforms on the judiciary and transformation of the legal profession.

Certain aspects of state litigation had been highlighted as of concern. This included the fragmented approach to litigation by and against the state that was being undertaken. During the debate on the 2013 Budgetary Review and Recommendation Report, the Committee had been informed of the challenges still facing previously disadvantaged advocates and attorneys, and the fact that only some departments had a specific policy of attempting to boost the use and skills of these practitioners. The provisions in the Bill now hoped to address, amongst others:
- the fragmentation of legal services, both within the Department itself, and across the broader public sector
- the lack of effective coordination, which led to prescription of claims, and default judgments against government
- punitive costs orders arising out of inefficiency and inconsistency in advocates’ fees
- the lack of a proper and consistent framework for briefing, with many state departments relying on private briefs
- the lack of expertise and specialists in certain areas
- the fact that government had frequently embarked on ill-fated litigation where other alternatives would have been appropriate

The new framework further identified other fundamental principles and constitutional imperatives, for instance, ensuring access to justice, and accountability. It also attempted to reform and restate outdated concepts. It would deal with governance and inter-governmental relationships. It would lead to the improvement and furtherance of specialisation, and would contribute to an evolving jurisprudence by pursuing cases in a better-tracked and more consistent way. In all of this, it would, overall, improve the efficiency of state legal services.

Ms Botha briefly took Members through the Bill. The objectives were stated as consolidating state legal services within the Department of Justice and Constitutional Development, and across government, to ensure institutional efficiency. There would be establishment of a method to improve coordination across the levels. It aimed to enhance the capacity of the state to manage litigation effectively. It would, as mentioned already, build and enhance specialisation within the state legal services to improve local services, those on the Continent and contribute to global improvements.

The Object Clause of the Bill emphasised he links between the objectives she had outlined, and the Bill. The Department had tried to tamper as little as possible with the wording of the current State Attorney Act, because these amendments were seen as the initial step in the process. Therefore the main object was to  amend the State Attorney Act to provide for the appointment of a Solicitor-General (SG), who would be the executive head over all State Attorneys and control and supervise all State Attorney offices. The Bill provide also for the powers and functions of the SG. S/he would be the Chief State Legal Adviser in respect of all civil matters, similar to the way in which the National Director of Public Prosecutions (NDPP) acted in respect of criminal matters.

Ms Botha told Members that this Bill essentially was providing for the appointment of a functionary, not an office, which was why there was no mention of a Deputy Solicitor General.

The appointment of the SG was the initial step in the implementation of the framework. The Bill also provided for various Offices of State Attorney because at the moment  there was only one - in Pretoria - as all the others were branch offices. There would in future thus be more than one Office of the State Attorney, with each of them to have equal status, headed by a State Attorney.

The Bill also conferred some powers on the Minister of Justice and Constitutional Development in relation to the functions.

Clause 1 set out the structural changes – it was the clause that stated that instead of having one Office of the State Attorney, the Minister had the power to create as many offices as deemed fit, with all having equal status. The Bill also had to provide for transitional measures so all the current branch offices would be regarded as an Office of the State Attorney.

Clause 2 set out the provisions for appointment of the Solicitor-General by the Minister, subject to the control, direction and supervision of the Minister. The wording of this clause was similar to that used in other jurisdictions. She explained that a “solicitor” in other jurisdictions was similar to an “attorney” in the South African system, whilst a “barrister” overseas was essentially similar to an “advocate” in South Africa. Clause 2 noted that the SG would be appointed for a five-year term, renewable for another five years. This was slightly different from the fixed term of office, for ten years, that applied to the NDPP.  It had been suggested that the same wording be used, but the Department preferred to use one shorter fixed term, with a renewal option, to allow the Minister greater flexibility.

Clause 2 also allowed the Minister to appoint other persons necessary for the Offices of the State Attorney (and that suggested more than one State Attorney), in consultation with the SG. There would also be other attorneys, clerks, administrative staff and so forth, who were also mentioned in this clause. She reiterated that since there was an Office of State Attorney and branch offices presently, with people already in charge of the branch offices, the Bill would have to make transitional arrangements and these were also set out in clause 2. However, there was also the provision, to ensure that the Minister was not burdened unduly with administrative matters, that he could delegate certain functions to the SG.

Clause 3 contained a number of technical amendments, amending section 3 of the current Act, and dealing with some of the outdated provisions.

New subsections (4) and (5) would be added to section 3. These related to the power to confer functions relating to the functioning of the Office of the State Attorney. The Minister must determine policy relating to that Office, and that policy would deal with coordination and management of all litigation in which the State was involved, as well as briefing, outsourcing of legal services, including those to correspondent practitioners. The policy referred to in the new section would have to be approved by Cabinet, and tabled in Parliament.

The policy would also cover the circumstances in which litigation was initiated or defended and the implementation of Alternative Dispute Resolution (ADR) mechanisms. She reiterated that in the past, there had been many situations in the state legal services where cases were simply dealt with through the courts without necessarily considering whether they would have been more appropriately concluded through ADR or early settlement. As mentioned earlier, it would also cover the briefing of advocates by all state departments. This would have wider implications, because it may impinge upon the prevailing situation where state departments had discretion on whom they briefed, and the policy may specify the briefing of previously disadvantaged practitioners. She noted that in the Promotion of Administrative Justice Act (PAJA), Cabinet’s approval of the Code of Good Administrative Conduct was required, and that had had an impact upon all state departments, so there was precedent for this kind of matter. In addition, the precedent for tabling of the policy to Parliament could be found in numerous other pieces of legislation, including section 22 of the National Prosecuting Authority Act, and section 10 of the PAJA.

Clause 4 inserted a new section 3(8) into the Act, dealing with powers and functions of the Solicitor-General to exercise control over all the Offices. The wording was similar to that used in the Administration of Estates Act, which provided that the Master of the High Court would be in charge of all Masters’ Offices. Clause 4 also empowered the SG to issue directives and standards relating to the functioning of the Office of the State Attorney, which would ensure uniformity and qualify of legal services.

Clause 4 further stated that the SG may exercise the powers and perform the functions and duties in this Act, and any other functions to be required by the Minister. This would allow the SG to assist with the implementation of the overall framework for the justice sector, including the development of a framework for amalgamation and streamlining of components of the legal services.

The SG may also, in terms of this clause, and subject to certain conditions, delegate powers in writing, but that power to delegate may be amended, or set aside, subject also to any rights that may have accrued as a result of the decision. This wording was similar to that setting up other safety mechanisms in other pieces of legislation.

Directives and standards that were referred to in this clause must also be sent to Parliament.

Clauses 5 to 10 contained consequential changes only, and technical corrections.

Clause 11 amended the long title, and clause 12 was the short title.

Discussion
Mr S Swart (ACDP) questioned clause 3, amending section 3. He wondered why there was a reference to SA Railways and Harbours. He thought Transnet had taken over from this body, and wondered if it needed to be deleted.

Ms Botha noted that comment, and explained that this was one of the matters that needed to be checked, and the Department was aware of other anomalies as well. However, as explained earlier, the Department was trying to take a minimalist approach and amend the basics for the moment, to allow for the creation of the new office. There would certainly need to be more amendments effected in future. She would see whether the technical changes could somehow be worked in.

Mr Swart noted that the Committee would be advertising for public comment on the Bill. One of the matters that immediately came to mind was the need to look carefully at the delegation of powers. The Master’s Office had ended up with the situation where Enver Motala ended up getting virtually every liquidation appointments, and it would be necessary to ensure that centralisation of power was not abused. There was space for delegation, but there would have to be checks and balances inserted.

The Chairperson agreed on the risk of abuse and said that there should indeed be checks and balances inserted into the Bill.

Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, answered that there were various options and the Department would give this point further thought. Perhaps there was a need to have something similar to the policy to be approved by Parliament, but certainly the Department would ensure that checks were built into the Bill somehow.

Mr Swart wondered how to determine consistency of fees across provinces, for it was well known that advocates in Johannesburg charged more than those in other centres, and this aspect, too, would need to be carefully looked into. At the moment, departments should not, but were in practice, instructing private attorneys and there was a need to avoid conflict. Broadly speaking, at the moment, the State was the largest litigant and accounted for a huge volume of private attorneys’ work. The new Legal Practice Bill also allowed the Minister to be able to set tariffs for State litigation. There were a number of issues that warranted close consideration with this Bill, and he looked forward to further debate.

Ms Botha answered that the question of the difference in tariffs could be covered in the policy that the Minister could lay down, and the implementation of the policy by means of directives and standards. She noted the comment about the Legal Practice Bill.

Ms Smuts questioned the choice of name, as the “Solicitor-General” sounded very English and the concept of “Solicitor” was foreign to the South African system.

Ms Botha conceded and said that the Department had considered a number of possibilities. The problem with using the term “Attorney-General” was that it was formerly used for the functionary in charge of criminal matters, and the Department wanted to make it clear that this was not to do with criminal, but civil cases. The “General” portion of the name term was crucial, in the Department’s view.

Mr Bassett added that other suggestions had included “Chief State Attorney” or “Chief Attorney for the State” and other commentators had also questioned the use of “Solicitor-General”. This was something that the Committee could debate further. 

Ms Schäfer wondered why this was tagged as a section 75 bill, and questioned whether it would not impact on the provinces.

Ms Botha felt that it would not. The Bill essentially was about restructuring the Office of the State Attorney and re-arranging the operations of the State Attorney. The other major aspect had to do with the additional powers being given to the Minister.

The Chairperson thought that this was a relevant question, and the Committee would need to think about it. If the Bill determined litigation by the provinces, and if they would be required to follow the procedures set out, this would impact upon them, and for that reason he agreed with Ms Schäfer, that it was more likely to attract a section 76 tagging.

He noted that whilst this was not a problem at the moment, the Committee did not want to face a problem on the verge of approving the Bill, as had happened with other bills it had considered over the last few months.  In future, as part of its work, perhaps the Committee needed to apply its mind specifically to whether it agreed with the tagging that was given on the Bill.

Mr Swart commented that there was an interesting reference, under clause 3, to “Parliamentary agents” and would like to hear more about them at some stage. He knew that the State Attorney could, and had acted for the Speakers and wondered if the Parliamentary Agents were intended to do similar work.

The Chairperson also noted the reference to the “respective houses of Parliament”. The Joint Rules of Parliament governed the position presently, and this was presumably a provision dating from some time ago.

The Committee agreed to now place advertisements calling for written submissions on the Bill.

Mr Swart noted that the offices consulted did not include the private sector, such as the Law Society of South Africa specifically, and suggested that the Bill must be sent to them as well by the Department.

The meeting was adjourned.
 

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