Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill [B31-2013]: Public Service Commission submission, Department of Justice Responses to public submissions; Constitutional 18th and 19th Bills: Departmental response

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Justice and Correctional Services

03 February 2014
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Public Service Commission (PSC) made submissions to the Committee on the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill, asking that the Bill be extended beyond the current scope of Chapter 9 institutions, to cover the PSC and other commissions, as set out in section 219(5) of the Constitution, who appeared to fall within the rationale for the Bill. Members were sympathetic to that request and the drafters were instructed to make the necessary changes in relation to the PSC, as well as to include the Financial and Fiscal Commission, and Independent Communications Authority of South Africa. Draft amendments to these bodies’ founding legislation would be urgently prepared and provided to them for their comment within 14 days.

The Department of Justice and Constitutional Development (the Department) tabled comment on the Bill by the Commission for Gender Equality (CGE) and South African Human Rights Commission (SAHRC), and also summarised the more generalised comments made to the Department when it had first gazetted the Bill. The Committee decided it was not necessary to deal with several issues that were not concerned with the Bill itself, or that related to matters that commissions would have to ask the Independent Commission for the Remuneration of Public Office Bearers (the Independent Commission) to address. They agreed with CGE that clause 7 should allow for broader consultation with the members of the institutions, and that it was probably sufficient to have a review process. Members debated whether uniform processes meant that there must be equity between institutions, but concluded that this was a matter for the Independent Commission to decide, noting also that section 8(6)(i) required the Independent Commission to take several factors into consideration. Members debated the process if Parliament, the President and Independent Commission were to disagree, but noted that there were checks and balances in place. The Committee asked for copies of the recent case dealing with the final point of approval for magistrates’ remuneration. They believed that the NA must approve, for all bodies except FFC and PSC, where approval would be by “Parliament”.  Members debated at some length whether the head of the institution would speak also for the deputy, and concluded that the Bill was concerned with offices, not individuals. Members did not agree with SAHRC’s suggestion that salary notices could be backdated for longer than a year, and felt that its suggestions on clause 13(6) would need to be raised directly to the Independent Commission. Lengthy discussions were held whether, in principle, the Public Protector Act and Public Audit Act should retain provisions around benchmarking against judges’ salaries, but decided that this Bill should remove those references, and would convey this to the Standing Committee on the Auditor-General. There was already protection in the Bill against salaries being reduced during terms of office. Members were not in favour of clause 13’s requirements for consultation with relevant Ministers, although consultation with the Minister of Finance was acceptable.

The Department then presented a summary of the public submissions, and its own assessment of the legal necessity for two Private Member’s Bills of Ms Smuts. The Constitution 18th Amendment Bill proposed amendments relating to the appointment and removal of the National Director of Public Prosecutions (NDPP).  In broad outline, the General Council of the Bar supported the principle that provisions dealing with the NDPP should be aligned with those dealing with the Auditor-General and Public Protector, to ensure that the NDPP would be protected from political interference. A Wits professor did not believe that the scope of the perceived problem was clear, believed it was acceptable for the President to appoint the NDPP, but to consult with the National Assembly, commented on the separation of powers, and also said that section 12(6) of the National Prosecuting Authority (NPA) Act already allowed for Parliament to be involved in the removal process. The Department made it clear that its own comment was confined to the strictly legal points, and outlined the Constitutional Court’s pronouncements in the certification judgment, as well as on the Namibian case on its own model. The Department asserted that the prevailing constitutional requirements and legislation framework for the NDPP were sound in law and thus the Department did not believe there were pressing needs for adjustment. It was not for the Department to comment on policy. From a practical viewpoint, it also commented that if the Committee supported the bills, it might be difficult to have them approved by the current Parliament, and raised the question whether the next Parliament would be able to deal with them if Ms Smuts was no longer an MP. During the debate, Ms Smuts reiterated her belief that a new model was needed that addressed the fundamental contradiction that whilst the need for an independent prosecuting authority was recognised by section 179(4) of the Constitution, section 179(6) provided for appointment by the Minister. She had made it clear that hers might not be the only model. She urged that improvements be pursued, particularly those in line with international trends, and said this would remove the conflict at the heart of section 179. Other Members suggested that perhaps broader public debate rather than legislative amendment was needed now, asked why South Africa should be looking to other countries’ models, wondered if the NPA Act rather than the Constitution needed to be examined, made the point that laws should not be passed to cater for specific situations, and cited the ability of the courts to correct inconsistencies.

The Constitution 19th Amendment Bill proposed changes to the composition of the Judicial Service Commission and the criteria for appointments. In discussing timelines, Ms Smuts stressed that she had actually gazetted the bills in June 2013, and had several times urged the Committee to deal with the matters. Members discussed the procedure, particularly around motions of desirability. Ms Smuts took exception to a Member’s request that she should summarise the content, saying she had already done so at length. Reiterating her displeasure that Members were not prepared later, she also said that Members should have read through the National Development Plan (NDP) as well as all the documentation that she provided. She found it ironic that she was being asked to explain the status and content of the NDP, an ANC policy, to ANC Members. The Department summarised that the public comment indicated mixed reaction to the suggestions to reduce the size of the JSC, and on a new requirement for all judges to be South African citizens. Several commentators took issue with proposals around eligibility requirements, including demonstrable capability, “fit and proper” definitions, and commitment to constitutional values, and did not agree on equal assessment of candidates. The Department believed that the prevailing framework of the JSC was sound in law, and that there was no immediate problem that needed to be fixed, so the decision essentially went to the policy and political considerations as to whether the JSC was optimally structured to fulfil its responsibilities. The point was made that it may not be necessary to pass legislation to give effect to everything in the NDP. Members debated the citizenship requirement, said that inclusivity was important, and commented that these changes might reverse the gains of the past. Ms Smuts reiterated that the NDP call for changes to the JSC of necessity required changes to the Constitution, urged Members to study alternatives suggested by commentators, and said there was a dire need for discussion on how to advance transformation and quality, and to ensure the right people were appointed. 

Meeting report

Determination of Remuneration of Members of Constitutional Institutions (DRMCI) Laws Amendment Bill: Public Service Commission submission
Mr Gavin Woods, Commissioner, Public Service Commission, noted that the Public Service Commission had previously made some comments, during the Bill drafting process, without success, and now wanted to make a submission to this Committee on why it believed that some changes were needed to the Determination of Remuneration of Members of Constitutional Institutions (DRMCI) Laws Amendment Bill (the Bill).

The Public Service Commission (PSC) was established by section 196(1), Chapter 10, of the Constitution. Section 219(5) of the Constitution said that the national legislation must establish frameworks for the determination, inter alia, of “members of any commission provided for in the Constitution. “For that reason PSC did not believe that it should have omitted from the Bill, and he argued that the Bill being limited to the Chapter 9 institutions only did not fully meet the requirements of the Constitution. He believed also that this went beyond the mere letter of the law. The rationale underpinning section 219(5) would appear to apply equally to the PSC as it did to other institutions and there was merit in aligning all the institutions. For this reason, he asked that the Committee consider amending the Bill to make it applicable also to the PSC.

Finally he noted that the PSC, like the Chapter 9 institutions, had for many years felt that there was need for greater certainty around the remuneration of its members. The amendment requested would require a very simple amendment to the PSC Act, and he would be happy to provide some draft wording.

Ms L Sizani, Commissioner, PSC, noted that the PSC had an oversight function over the public service; therefore the determination of salaries for it by the same public service did not make sense.

Ms D Schäfer (DA) asked the Department of Justice and Constitutional Development (Department) why the PSC was not included in the first place.

Ms M Smuts (DA) thought that “commissions” was generally understood as referring to the Chapter 9 bodies but agreed that there was nothing that would appear to preclude the inclusion of the Chapter 10 bodies.

The Chairperson also agreed that the wording of the Constitution was all-inclusive.

Department of Justice and Constitutional Development response to PSC and other submissions on the DRMCI Bill
Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, noted that the Bill as initially presented had provided for the Chapter 9 institutions. Having received comments from the PSC and other institutions who indicated that they saw no reason why they should be excluded, he said there was nothing objectionable in the principle but said that this would mean further amendment of their founding legislation, and further consultation. His document had indicated that the Department would be suggesting that the Bill apply, at a later stage, to the Financial and Fiscal Commission (FFC), Pan South African Language Board (PanSALB), Independent Communications Authority of South Africa (ICASA) and the Municipal Demarcation Board (MDB) as well as PSC, if the Committee supported this approach.

In answer to a question from Chairperson why this should not be done now, he conceded that it was possible, but the other institutions would still need the opportunity to look at the proposed changes to their founding legislation.

Ms Smuts said that PanSALB was only an advisory board, and would not need to be covered. ICASA was a Chapter 9 institution in any event – a point debated long and hard in the past, because it, as successor in title to the Broadcasting Authority, was already included under section 219(5). She agreed that FFC was properly in this category, along with the PSC. The  MDB was entirely different.

Ms Schäfer noted that the reference in the title to “Constitutional institutions” was not limited to Chapter 9 institutions, and she saw no point in waiting for another Bill. The only challenge was the need to perhaps call for more comments.

The Chairperson agreed that PanSALB and MDB should not be part of the process as they were neither Chapter 9 nor Chapter 10 bodies, nor “commissions”. They were essentially boards administered by departments.

Dr M Motshekga (ANC) said that he would have thought that the Department would have already started drafting amendments to the necessary legislation when proposing that other institutions be included, instead of leaving it to them. He asked if there was likely to be any opposition to the inclusion of the PSC.

Mr Labuschagne responded if the other commissions were to be included, then amendments would be needed to the sections of their legislation dealing with determination of their remuneration as currently applied. This was similar to what was already proposed for the bodies already mentioned in the Bill.

The Chairperson noted that whilst the PSC had taken the initiative to ask to be heard, he felt that, at the very least, this Committee should engage with other bodies before imposing other changes.

Ms Smuts agreed with the consultation but thought the Department could attend to this.

Dr Motshekga thought it important to find out whether the Constitution did envisage inclusion of all those bodies, so that it was not stretched beyond the original intention.

After discussion on the process, Mr Labuschagne suggested that the Department should prepare proposals on amendments, and send this through to them, under the signature of the Chairperson, asking them to offer any comments. He suggested that perhaps they could be given two weeks to respond, in view of the time pressures.

Mr Woods said that the plenary of the PSC met in the following week, and asked if it was possible to have something before it for ratification before that date. The Chairperson and Mr Labuschagne assured him they would try their utmost to deal with it.

Commissioner Sizani thanked the Committee for its consideration of the matter.

Departmental responses to other submissions
Mr Labuschagne took the Committee through the other responses on the Bill, which were summarised in two sections (see attached document) – one dealing with specific requests by the SAHRC and CGE, in response to the call for submissions by Parliament, and the other a summary of general responses as conveyed to the Department when it had first gazetted the Bill for public comment.

The Commission for Gender Equality was concerned at the limited approach in the Bill and suggested that it should address a number of other matters (see page 1 of attached document), basically to do with various aspects of packages and a mechanism for appeal.  The Department believed that the Independent Commission for the Remuneration of public Office Bearers (the Independent Commission) would take these points into consideration when investigating or considering the remuneration allowances and other terms and benefits.

CGE also thought that when the Independent Commission investigated this, members of the , Chapter 9 institutions should be consulted. At the moment, clause 7 allowed for limited consultation.

Ms Schäfer pointed out that this was similar to issues raised by Magistrates. She believed that an appeal/review mechanism (she thought it would actually be the latter) would be wise. She asked the Department whether it thought that a review would be sufficient. She agreed with the need for consultation of the institutions concerned.

The Chairperson said that he could not see any harm in this. However, the Independent Commission could not be bound by any recommendation made to it by any body. It was one thing for members of commissions to ask for something, but not to insist upon it.

Ms Schäfer thought it was not necessary to specify the benefits; the Independent Commission was already tasked with dealing with this. The whole Bill arose out the disparities between the institutions, and perhaps it would be necessary to put something in about trying to correct that anomaly.

The Chairperson said that that was another point; for the question was whether there should be equity. When one body was assisted, others would immediately state their unhappiness. He would like to hear reasons for both sides of the argument whether all the bodies should be treated in the same way, for he did not think this was envisaged at the outset.

Dr Motshekga took the point and said that it was necessary to go back and find out whether, when they were founded, there was any indication that they should or would differ. He was not sure whether this point was captured at the initial stages.

The Chairperson then wondered if this was not a question for the Independent Commission itself to determine, allowing the bodies to go and argue their case there.

Ms Smuts agreed that it would be a fruitless avenue of enquiry for this Committee at this point to look into what had been the original intention. The mere point of disparity, and so much unhappiness, showed that it was actually done ad hoc, without any consideration on equity. Only after all the bodies were put into Chapter 9 as a category were their individual statutes created and the disparities there were apparent. She though that there was a great difference in their work. However, that was not a question for this Committee to decide. She also thought that the CGE’s request to include all the other considerations should not be included. However, she did draw a distinction with ICASA, which was one example where it large salaries would have to be paid, because the regulatory body had to be more experienced than those they were regulating.

Ms Christine Silkstone, Content Adviser to the Committee, pointed out that, for instance, ICASA was categorised as an “S category” institution, for the purpose of remuneration, by National Treasury, so the Chairperson would earn R1 million and up. The CGE was in a different category.

Ms Schäfer thought that the Independent Commission may be bound by the categorisation of National Treasury (NT).

The Chairperson pointed out that NT must in any event be consulted by the Independent Commission, for it would have to be satisfied that the money fixed was in fact available to be paid.

Members debated the point, and agreed that those actually responsible for implementation would have to be involved. There had been some “odd decisions” of the Independent Commission in the past. Members also debated whether it would be necessary to have an appeal route for generally financial matters. At the end, they concluded that it probably was sufficient to have a review process. The point was what the fiscus could or could not afford.

Mr Labuschagne agreed that it was not possible to appeal to the courts, for it could not tell the Independent Commission what to do. He pointed out that the notice in terms of which the President would make the determination must be approved by Parliament, in whole or in part. This was a similar process to that for judges and magistrates. The question had also been raised what would happen if Parliament disapproved, and the suggestion was to build in some procedure to cover that. Would Parliament have to go back to the President? This had never happened in the past, but could happen. He argued that it was an administrative issue, but perhaps the Committee needed to consider whether a process should be built into the Bill.

Dr Motshekga was not sure that it was necessary to complicate the matters further. Parliament, if it disapproved, would have to give reasons, and the President would present a different proposal to Parliament as a matter of course.

Ms Smuts thought there was a mechanism at present for current salaries of President and MPs. The President did, in practice, quite often adjust what the Independent Commission had recommended. There were checks and balances in place.

The Chairperson asked if the President’s decision was binding or whether Parliamentary views were binding.

Ms Schäfer said that her initial reaction was that perhaps there needed to be provision for Parliament to say that it did not approve. However, that would involve a whole enquiry process, which was cumbersome. She agreed that it was necessary to make a final decision, and she pointed out that a recent court case, brought by the magistrates, had dealt with the issues of who gave final approval, asking if the Department could provide copies to the Members, a request later repeated also by the Chairperson.

The Chairperson and Ms Schäfer debated the point further. The Chairperson pointed out that at this point, it was only the magistrates who were happy, and he made the point that the process for MPs invariably took more than a year. His worry was that the to-ing and fro-ing between Parliament and the Independent Commission could go on for every. He did not have an answer himself, but asked Members to think about it further. He reminded Members that the President had changed the recommendations of the Independent Commission in the past, without any disastrous results. He did think that clarity was needed on what would happen if Parliament refused the recommendations.

Mr Motshekga reiterated that Parliament would have to give good reason and the Independent Commission should adjust.

Ms Smuts said that this was really not the field of the Committee. The answers would presumably be sought from the financial advisers.

Mr Labuschagne said that at the moment all that the proposed amendment said that the notices must be submitted to Parliament. Although there was a reference to “Parliament must…” he pointed out that the Chapter 9s accounted to the National Assembly and presumably this wording should be substituted as far as their position was concerned. “Parliament” was apposite for the magistrates and judges.

Ms Smuts said that the whole of Parliament must also be involved in the case of the FFC and PSC, but she agreed that Chapter 9s should be approved by the NA only.

Members agreed with that distinction, and asked the drafters to make the necessary changes.

Mr Johan de Lange raised a concern that if the reference was changed, it might change the classification of the Bill.

Members did not think that it would.

Mr Labuschagne said when attempting to reach uniformity across the salaries of the different Chapter 9 institutions the Independent Commission would have to take into account roles, functions, duties and status, and take a number of other factors, as listed in the new section 8(6)(i).

Members agreed that it was necessary to take all this into account, and the CGE’s recommendations in that regard were not clear.

Ms Smuts noted that it had been suggested that CGE be incorporated into the SALRC. She thought that the Office Supporting of Institutions of Democracy (OISD) was also dealing with the matter.

The Chairperson said that it was the political parties who had to drive the issue if changes to the status were required.

Mr Labuschagne suggested that if Members worked through the document, they may pick up on other issues that needed further consideration.

The Chairperson thought that many of the proposals were not in fact for this Committee, but the bodies themselves would need to make out a case to the Independent Commission. This would include matters like the Chair and Deputy Chair issues.

Mr Labuschagne agreed. He was not, however, sure, whether there was anything to prohibit the Independent Commission from deciding upon one salary for all, or whether it would have to sort it out

Ms Schäfer thought that this illustrated the need for a general provision to state that the Independent Commission would need to determine function, status and so forth. For instance the Public Protector took responsibility for her whole institution, whereas other commissions shared the responsibility between more people. If so, she thought it did not need to be too detailed.

The Chairperson said that there was no distinction made between MPs, and bodies wanting to have a distinction, for instance, for chairpersons and whips, would have to make out a case for the Independent Commission, so the same should apply to these bodies.

Ms Silkstone said that in the enabling legislation there was a distinction between full time commissioners who were paid a salary, and part-time commissioners, who were paid allowances.

Mr Labuschagne said that the uniform procedure required that a notice determining salary should be able to commence on a certain date, which must be no more than one year backdated. The SAHRC believed that this was unduly limiting, restricting the Independent Commission in its work. The Department did not necessarily agree. The wording for judges and magistrates contained a similar provision. Clause 2(b) of the Bill was inserting a new sub-clause 2B.

Members indicated that they did not agree. This would have major financial implications and could put budgets from previous financial years out of kilter if approved.

Mr Labuschagne said that the SAHRC believed that the proposed amendment to section 13(6) raised the issue that there was currently no understanding of the terms and conditions, and there was no clear understanding of what would be the additional functions. It wanted the Independent Commission to bring more clarity. He noted that from discussions earlier, the Independent Commission would be needing to deal with many new issues.

The Chairperson said that this was another example of something that the SAHRC would need to ask the Independent Commission to do.

Mr Labuschagne summarised that comments received by the Department suggested that the Bill should not refer to “Chapter 9 institutions” and noted the Committee’s agreement on this point.

Members debated what wording might be preferable and took the point that some of the institutions were noted in Chapter 10 and 13. They said that the ad hoc Committee dealing with review of the Chapter 9 bodies had in fact covered a number of bodies.

Dr Motshekga said that the title should be derived from the Constitution, not from the general Parliamentary practice to refer to “institutions supporting democracy””. Perhaps a definition was needed.

Mr Labuschagne said that a draft definition was included. However, it referred to “established in terms of Chapter 9” and would now have to be amended. However, there was also a comment that the Deputy Public Protector was not separately provided for in the Constitution, so that reference in the definition should be removed. That was covered in clause 10(b).

Ms Schäfer thought that this was a correct point, but made the point that it was necessary, not for definitional but practical remuneration purposes, to provide for the Deputy Public Protector somewhere in the Bill, but as one of the people who could approach the Commission, insofar as the remuneration was concerned.

Ms Smuts said that she was not sure why it had been ignored, and it should be included.

Mr Labuschagne said that the whole wording for the definition would need to be changed.

The Chairperson asked if the Deputy Public Protector would represent himself or herself, or whether this would be done by the Public Protector.

Ms Smuts said that the Public Protector was an institution, although there was currently some blurring of the distinction between office and individual. In regard to the Auditor-General, there was a good structure on the salary.

The OISD representative said that the Deputy Auditor-General’s salary was determined by the AG, but the remainder of her comments were inaudible.

Ms Smuts said that the more the Committee heard, the more it seemed that the Independent Commission must deal with all of these points.

Dr Motshekga thought that the Head and Deputy should sit and look at the needs of the office and their own needs and make proposals for the office.

Ms Schäfer was now reconsidering her earlier comment; if all staff were to be included, then the Deputy Public Protector must to be considered. The question was why there were separate interviews, and why there had been problems in the past, but it was not a constitutional institution.

Ms Silkstone pointed out that it was a statutory appointment although not a constitutional mandate one.

Ms Smuts noted that the wording referred to “members of the commission”. There was no reference to a whole institution.

The Chairperson summarised Members’ views that the head a body should speak on behalf of the deputy, as he would not like to see the deputy attempting to go to the Independent Commission, and his/her authority being challenged.

Dr Motshekga still thought that the deputy must be consulted.

Ms Schäfer pointed out that there could be animosity. Perhaps a general clause should be put in to provide that any individual affected may approach the Independent Commission or should be consulted.

Dr Motshekga thought it necessary to get people to learn to work together to consensus. He felt it would be stretching the law too far to insert something like that into the Bill.

Ms Schäfer pointed out that the Independent Commission must also exercise its discretion.

Mr Labuschagne then summarised that this provision would remain as it was, but with the deletion of the “deputy” reference from the definition. The remaining provisions dealing with the deputy would remain in the Bill.

He continued to take members through the document. The comment set out in paragraph 2 on page 7 related to office bearers, and that in 2(c) would be covered since other commissions were now to be included. He would look again at the definitions, in the light of the agreement to include the FFC and PSC.

Ms Schäfer asked where these comment came from.

Mr Labuschagne said that his note said that these comments came to the Department when the Bill was first published for comment in the Gazette. Some comments had been duplicated by more than one commentator.

The Chairperson quipped that the only affected stakeholders would surely have been the Chapter 9 and 10 stakeholders. He asked, however, why the comments here were not ascribed to any particular stakeholders. Noting Dr Motshekga’s comment also that they should be identified, he said that in fairness, though, this was slightly different from the normal procedure, for this section of the document dealt with comments tabled on the Bill as published by the Department for comment.

Mr Labuschagne had included these comments because the Committee had requested that this be done.

The Chairperson made the point that some of these comments were going beyond what was actually tabled in the Bill, and paragraphs 2 and 3 needed no further action. The comment under paragraph 4, that the Secretariat of the Independent Commission be strengthened, was not a matter for the Bill.  Paragraph 5 was calling for a single framework, that was being done now. The same applied to paragraph 6.

Mr Labuschagne said that the proposal in paragraph 8 was that instead of amending the founding legislation for each body there should be one separate Act into which all of the provisions about uniform procedure should be placed. If the Committee was to support this, it would require a re-draft of the whole Bill.

The Chairperson thought no comment or changes were required for paragraphs 9 and 10. Noting the comments on the benchmarking of the Public Protector’s salary, in paragraph 11, he said he thought the drafters of the Public Protector Act had erred in providing for a benchmark in that Act, when it was not the case with other legislation.

The Office of Institutional Supporting Democracy made inaudible comments.

Mr Labuschagne said that the question raised by the commentators was really why there was the inconsistency, rather than a suggestion that there should be benchmarking, and if so by whom. He thought the existing provisions in the Public Protector Act would have to be retained, but questioned if Members wanted to benchmark others.

Ms Silkstone said that the Bill already provided that no salaries of members of these institutions could be reduced during their term of office. It could be left to the Independent Commission to decide if it wanted to have a benchmark for all the other commissions. There were already a number of factors to be taken into account and it seemed to make no sense to have exceptions.

The Chairperson said that it was never the intention for the Public Protector to earn more than a High Court judge and the term “not greater than” should have been used, to allow the Public Protector to receive the same increase as High Court judges.

Ms Schäfer wondered if it would be possible to include anything to guard against inappropriately low remuneration being offered, and therefore if, for all, it should be specified that the remuneration should be no more than a High Court judge.

Ms Silkstone did not necessarily agreed, pointing out that an appropriate level depended on the work done. Some maybe needed to be paid more. The expertise, level of qualification required, and experience should be taken into account.

The representative from the Office for Institutions Supporting Democracy said that such a provision would not stop salaries being pegged, say, at Chief Director level, according to the status. Perhaps the Auditor- General and Public Protector needed to be considered in the same way.

Dr Motshekga said the difficulty with this was that it would tend to put these two only into a certain category.

The Chairperson questioned again if this should not be left to the Independent Commission.

Ms Silkstone reiterated that the Independent Commission, in terms of the Act, already needed to take a number of factors into account.

Ms Schäfer wanted to know why the OISD was not in favour of having any benchmark higher than that of a High Court judge.

The representative from OSD clarified that she was not necessarily suggesting that this should be the final benchmark but was using this as an example that all the founding legislation should be uniform in principle.

Dr Motshekga said again that this was assuming that an individuals was doing the work; he preferred to look at the office overall.

Dr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, said that it was almost impossible to quantify the benchmark of a High Court judge because his/her terms of office were so different, involving different leave conditions, being available for active service, no pension, salaries for life and so forth. He cautioned that if they were to be used as a benchmark, then “salary” not “remuneration” should be used.

The Chairperson asked for this point to be flagged for further consideration.

The Chairperson referred to the comment under paragraph 12 and asked if the Independent Commission was required to consult with the Minster.

Mr Labuschagne clarified that clause 13 actually did require that consultation.

Ms Smuts reminded the Committee that the Constitutional Court had said long ago that the Chapter 9 institutions should be able to defend their budgets directly to Parliament, and one of the recommendations of the Chapter 9 review committee, supported by then-Minister of Finance, Trevor Manuel, was that their budgets should form part of Parliament’s budget vote, instead of a part of the line ministry’s budget. That was never officially adopted, but was repeated in the final Report of the Third Parliament. If the money was to come from a Parliamentary vote, then either the Ministers must play a role, or the institutions must defend their salaries directly to the Independent Commission, which seemed a better approach.

The Chairperson reminded Members that the Chapter 9 review recommendations had never actually been adopted by Parliament, other than setting up the OISD. He would see it as problematic if the Independent Commission had to consult with the relevant Minister, although he would see why it was necessary for it to consult with the Minister for Finance, because of the fiscal implications. He did think there was any role for a political head. Parliament’s role would begin when the Independent Commission referred the matter to the President. He also did not think that the Independent Commission should consult with the NA, other than the recommendations coming to Parliament for approval or non-approval and he was surprised and disappointed to see this clause.

Ms Phumelele Ngema, Parliamentary Legal Adviser, said that this Bill had been tagged as a section 75 Bill. She said that the discussions around the benchmarking had to do rather with the specific commissions’ own Acts. If there was benchmarking it might be in conflict with the principle of the Independent Commission having a consistent and uniform approach, so she recommended that perhaps the references to setting the benchmarks may need to be removed.

The Chairperson asked if it should be done in this Bill, or as a separate exercise.

Dr Motshekga thought it could be done “at the appropriate time”.

The Chairperson summed up that one of the submissions was that the remuneration of the Public Protector should be raised to “not less than the remuneration of the Supreme Court of Appeal” and that of the Deputy should “not be less than a High Court Judge”. The Committee was not in favour of that. It would be a lengthy exercise if the Acts were not amended now, and he and other Members were in favour of amending those Acts by way of this Bill, by removing the references to benchmarking.

Ms Smuts thought that the Committee needed to speak to the relevant Standing Committee dealing with the remuneration of the Auditor-General to state that there was an intention to take the provisions on benchmarking out. There was assurance in the Bill that nobody should be adversely affected during their term of office.

Ms Ngema noted that since the Bill already amended those Acts, there would not appear to be any objection to doing that.

The Chairperson summarised that it was not necessary to do a separate exercise and so the amendments now being proposed could be done by way of this Bill. The Committee did not agree with the suggestions set out in paragraph 14 of the summary (page 12). There was an agreement that section 2(2)(a) should be amended to remove any benchmarking from the Public Protector Act. The same recommendation would be made in respect of amendments to the Auditor-General Act.

Ms Silkstone said that there was no provision in the Bill preventing the reduction of the Auditor-General’s remuneration in clause 15.

The Chairperson said that the Auditor-General’s Act would need to be addressed.

Ms Ngema said that similar provisions were in the founding Acts for the other Commissions.

Mr Labuschagne agreed that other pieces of legislation had such a provision, in which case there was actually no need to repeat it in this Bill.

Members agreed to resume deliberations on the following day.

Private Member’s Bills: Constitution 18th Amendment Bill: proposing amendments in relation to the National Director of Public Prosecutions appointment and removal
Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, said that he had circulated a summary of the comments received on Ms Smuts’ 18th and 19th Constitutional Amendment Bills. The format of each document was similar, containing an introduction and background, which he would not repeat at this meeting, and the summary.

He started at page 3, paragraph 5, nothing that the Department had received two sets of comments, from the General Council of the Bar (GCB) and a professor from the Wits School of Law.

The GCB supported the principle that the provisions dealing with the National Director of Public Prosecutions (NDPP) should be aligned with those dealing with the Auditor-General and Public Protector, to ensure that the NDPP would be protected from political interference.

The Professor, however, believed that the Bill did not actually outline the problem. He thought that the President should appoint the NDPP, but could consult with the National Assembly (NA), who should be involved in the process to recommend or approve. In relation to clause 1(b), the Professor asserted that if the NA was involved, then civil society was involved by implication, and the NA must facilitate. He thought clause 1(c) – which dealt with the final responsibility – was problematic and suggested that if the NA had that responsibility it would be in breach of section 85 of the Constitution because the executive functions rested with the Presidency. The NDPP was not the same as a Chapter 9 institution. He pointed out, in respect of the separation of powers, that the Constitution made the Ministers, through the President, responsible for procedural matters. He further said that section 12(6) of the National Prosecuting Authority (NPA) Act provided for removal, with the reasons for it to be communicated to Parliament, who must, within 14 days, pass a resolution whether to recommend that removal, so Parliament was already involved in that process.

Mr de Lange wanted to make it quite clear that the remarks that were made really went to the merits of the Bill. This was a “first” for this Committee since the changing of the Rules. The Committee had the task of looking at the Motion of Desirability, and the larger debate on the merits should actually come out of that process. However, it was quite difficult to separate this out in the preliminary comments, and he asked the Chairperson to stop him if he thought that the Department was on the wrong tack. It should be borne in mind that the current legislative wording came from the Constitutional Certification judgment of the Constitutional Court, an a number of quotations were included in his document which he would not repeat.

Paragraph 6.2.2. of the document also referred to the Constitutional Court’s consideration of the Nambian case that considered the relationship between the Executive and prosecuting authority. Here, the Court had referred to the lack of uniformity in Commonwealth Countries. on the status of the prosecuting authority, with no uniformity in the wording. The Namibian case was concerned with the particular model in Namibia, and nothing had been prescribed by the Constitution. The court said that if there was compliance with the constitutional principles then the model should not be set aside.

Mr de Lange said that it seemed to be trite law that the wording of the NPA Act was in line with constitutional principles, so from a strictly legal principle there was nothing apparently wrong with the legislation. Despite lack of uniformity in Commonwealth countries the Department had looked at the position in some other countries and he set out the position in Zambia, and Canada (see attached document). There were a number of similarities between the Canadian model and what was proposed in the Private Member’s Bill. Australia had a commonwealth federal Director of PP, as well as separate prosecuting authorities in each state. In England and Wales the DPP was appointed by the Attorney-General.

In conclusion, Mr de Lange said that the prevailing constitutional requirements and legislation framework for the NDPP were sound in law. The Constitutional Court, in the certification judgment, had looked at whether there was any conflict with the separation of powers, and thought this did not pose a problem. Purely from a legal point of view, the Department was thus of the view that there was no pressing need for any adjustments. However, he did want to caution Members that the Department could not engage at all on policy preferences. He also reminded Members that although a legislature may write a law, it could – like a testator – also change its mind. These provisions were framed by he Constitutional Assembly. The will of the current legislature may change, but that was clearly not for the Department to comment upon.  

Mr de Lange respectfully wanted to add some practical considerations. If the policy or political considerations required any adaptation to the constitutional provisions, it might possibly be inappropriate to embark upon this process at this stage before the elections. The practicalities should not be overlooked. Constitutional amendments were not usually dealt with in such a short space of time, for they involved much public active participation, and this would also involve the National Council of Provinces (NCOP). It was for this Committee, should it wish to proceed, to decide on the likelihood of the process spilling over to the next Parliament, and whether that new Parliament should revive the legislation and continue with it. Members were experienced and should recognise the demands of continuity, and the right of the new Parliament to engage with new participants.

He also made one further comment: at the moment the National Prosecuting Authority Act said that the removal of an NDPP must be approved by “Parliament” and if there were to be a change, then this should be changed to the “NA”.

Mr de Lange reiterated that he did not think that there could be further engagement without going into the merits at this point.

The Chairperson agreed that, given that this was a private Member’s bill, the Department should not be required to express its opinion on anything other than the legal aspects.

Ms Smuts asked to raise some points of clarity, and to take issue with some of the statements. She thought, from what Mr de Lange had said, that Members should not assume that, either on this or the next Bill, that there had been any instruction from the Minister, as Mr de Lange had made his comments on the broad legal principles, not on the specific wording. It was understood that the next step would be for the Committee to decide on the desirability. That, on Mr de Lange’s account, should not be read as instruction or encouragement by the Minister. MPs were the legislative authority and must decide for themselves.

The Chairperson clarified that even if there had been an instruction from the Minister, the Committee would ignore it.

Mr de Lange said that there had not been any engagement with the Ministry on this Bill. However, he did say that at the moment, the Department would not support it, for the legal reasons outlined, but that was not the debate at the moment.

Ms Smuts did not want to go into to much fine detail. The pure and simple function of the Constitutional Court in the certification judgment was to measure the new text against the Constitution. All that happened when it was dealing with the NPA was that an objection was raised that the separation of powers might be somehow being transgressed because the President appointed the NDPP, and it was in that context that the Namibian judgment was cited. That, however, was not the issue with this Bill. She had emphasised that the prosecuting authority here was not part of the executive, as it was in the Commonwealth. Essentially she agreed with the comment that this was a policy or political decision. In her view, the NA should be looking for a new model that suited section 179(4) of the Constitution. The national legislation must ensure that the prosecuting authority was able to exercise its functions without fear or favour and any legislative or executive action inconsistent with this would be subject to constitutional control by the courts. There was a clear Constitutional guarantee that the NDPP and NPA were independent. However, there was currently an inherent conflict built into the section, for it also said that the Minister bore final responsibility. Enver Surty had argued that very point at the committee dealing with the Vusi Pikoli matter, and the committee said that the next Parliament should look at that responsibility, because it was undefined. All the NPA said was that “the Minister has final responsibility” – and or the purpose of exercising that, s/he was permitted to ask the NPA questions.

The matter had not, despite the recommendations, been taken any further. The UK model conflicted with subsection 179(4)’s requirement for independence. She therefore felt that it was desirable to have a different appointment mechanism, and to amplify the provision. She reminded the Members that even after the enquiry chaired by Frene Ginwala ruled that Vusi Pikoli was a fit and proper person, he was still removed. She thought a removal provision was needed therefore in the Constitution. The certification judgment had been satisfied that he provisions allowed for sufficient independence. However, in the Nicholson matter, Harmse J said that the Minister could not instruct the NDPP whether to prosecute or not. In the matter challenging the appointment, later revoked, of Mr Simelane, the Constitutional Court stressed that the NPA should be non-partisan and non-political, yet there were clearly conflicts. In the Glenister matter the Constitutional court had stressed that a body outside ministerial and executive influence should deal with corruption.

Ms Smuts reiterated that she had made it clear, right from the start, that this was not the only model that could be considered. A suggestion had been made that the President should appoint, but the NA ratify, and she thought this would be an improvement on the current situation, although it may have some problems, and would increase transparency and allow participation. She urged Members to think every carefully and at the least to include some removal provision for she feared for the tenure of Mr Nxasana, who may suffer the same fate at his predecessors.

Ms Smuts wanted to speak to Mr de Lange’s comments on the timing and rejected outright the suggestion that there was not enough to process the legislation. She pointed out that both these Private Member’s bills had been gazetted last June. She had argued the principles in both over the last four years, including at every Department of Justice & Constitutional Development budget vote process, and did not accept that there was not sufficient time to deal  with them.  

Dr Motshekga said that the points raised were linguistic in nature. The starting point was what “independent” meant. If the law said that no one may tell the NDPP to prosecute or not, already this meant that the decision did not depend on any external force or power. The question was then the extent of independence and what else, beyond that prohibition, might be sought? The fact that the appointment may be subject to the NA approval did not prevent a person being appointed who, despite the NA’s approval, might later defer to another person’s suggestions on whether to prosecute or not. At the end of the day, the State prosecuted. He was not sure that Parliament needed to be “revolutionary” in its thinking and perhaps there was a need for a broader public debate, as he really did not think the country was ready to change the current situation. If this was a case of laws being amended because of certain decisions being made, then this suggested that laws could be forever changed depending on the individual circumstances. He thought that academic debate was needed, but not new legislation. There was, in fact, a prescription against anyone instructing the NDPP to prosecute or not, and in his view this fulfilled the requirement of independence.

Mr S Holomisa (ANC) and said it was necessary to consider who “the State” was. The NDPP was clearly the representative of the State. He noted the quotation on page 5, to the effect that the national legislation must ensure that the prosecuting authority exercised its authority without fear or favour and furthermore said that there was a constitutional guarantee. The Bill was seemingly suggesting that despite what the Constitution said about appointment and removal of the NDPP, further legislation must ensure that the prosecuting authority exercised its functions independently, and he said that if legislation failed to do this, then it would be in violation of the Constitution. He wondered, therefore, if it was not rather necessary to look to the specific NPA legislation.

Dr Motshekga said that another question was how to guarantee judicial independence – and that was done by ensuring that they could not be arbitrarily removed. The whole point centred on the conditions for removal and what, beyond that, could be done to guarantee their independence. He thought that the current system had worked well, but there were fears that arose under particular circumstances, which might not arise again in our lifetime. Surely Parliament could not say that a new law was required for every situation, for then there would not be legal certainty. He believed that now it was necessary to ensure that the system actually delivered. He felt these questions were academic.

Ms Smuts responded that many dramatic things had happened in the NPA. Firstly, there was the removal of one incumbent, Mr Pikoli, who had been adjudged fit and proper in a separate process. Secondly, there was appointment of a person who was later found unfit, and whose appointment was set aside. That was followed by a long period in which no appointment was made. Now there had been a new appointment, as yet untested, although hopefully it would be good, although she would still argue that his appointment took place without the transparency that was required.

Mr Holomisa responded on the Simelane appointment, and said that if there was an appointment of a person who was not fit and proper, then the Courts were there to correct it. He was not sure what exactly had happened in the Pikoli matter, although the Commission had found him a fit and proper person, and what action he took to challenge that decision. He could have gone to court. Furthermore he made the point that as far as he understood, none of the courts commenting on these matters had ever suggested the need for legislative change, and they would normally comment if they believed that there was a mischief in the law requiring correction. This seemed to indicate that there was no need for a constitutional amendment, as the Department had said earlier.  

Dr Motshekga supported Mr Holomisa, and said it was really a matter of administrative justice. If there was no lacuna in the law, and the matters were covered, a person removed would still have recourse to the law for relief. He  did not believe that there was a need to do anything to address the institution

Ms Smuts asked why South Africa should not pursue an improved model, as this would obviate the necessity of always going to court, with its attendant disruption and instability. A changed model would effect what the Constitutional Court had asked for in the Glenister matter; namely that the prosecuting authority be insulated from political control. She pointed out that section 179(6) was political control, using the English model. She asked why this country should not take cognisance of the current international trend. At the time of initial drafting, there had been little guidance, but there was now a lot more, with far more emerging “soft law” The example of Canada was very useful, for it had changed its system in line with the growing trend for independence, having an independent organisation reporting to Parliament. This trend was even showing in England and all former Soviet republics, to replace the system where the prokurator had been subject to party control. She said that the NPA Act already included one of the examples of soft law, which was that the NPA must have regard to the UN guidelines and standards for public prosecutors, which included independence. Finally, she asked why South Africa, usually in the forefront, should not take cognisance of the international trend and remove the conflict that was at the heart of section 179., She thought that it was an apposite time for change.

Dr Motshekga said that the argument had now shifted, to improvement. However, the content of the change would be transplanting other experiences from all over the world. South Africa, as a self-respecting country, needed to give itself time for home-grown jurisprudence. There was a host of other jurisdictions and it was not necessary to “chase them” to improve what South Africa had. He believed that the next generation must be given space to develop its own home-grown jurisprudence, and reiterated his viewpoint that the present framework sufficed.

Ms Smuts pointed out that what South Africa had now was the United Kingdom model and she did not know that Dr Motshekga was so keen on adhering to English models.

Mr Holomisa said that the pronouncements of the Constitutional Court related to instances where there was a fear of the undermining of the independence of the office. Precedent contributed to the body of the law, so that an authority who had to take a decision would have to take into account what had been said by the court. The courts had not specifically pointed to any flaw in the current legislation, but had made those pronouncements in the context of the existing legislation and constitution. Improvements had been effected by the court decisions. Parliament and the Executive must take their pronouncements into account.

Ms Smuts thanked the Committee for this discussion.

Constitution 19th Amendment Bill: proposing amendments in relation to the Judicial Service Commission
Mr de Lange said that his comment on this Bill followed a similar layout to the last, and once again he would not expand on the summary and background to the Bill. There had been more responses to this Bill. Comments were expressed about the time constraints, but he would not go into this in depth. He wanted to expand on the points he had made earlier about the time frames. He was not suggesting that the process would necessarily be too long, because the requirements of section 74 of the Constitution had been fulfilled. However, the Committee’s invitation to comment had gone out at the end of November, shortly before the holiday period, and he had received responses on 18 and 19 January. If the decision was taken to proceed with the bills, there would be a firm invitation from the Committee to comment, and that would need to be a far more comprehensive process, which might be problematic before Parliament rose. That, however, was not for the Department to decide. He further indicated that it might be problematic for the Bill to be presented in the next Parliament since Ms Smuts would not be an MP any longer.  

Ms Smuts wanted to correct some misapprehensions. She had gazetted the two bills in June, and in this process the private member must invite institutions and individuals to send through comment and she had also informed the provincial legislatures and been asked to address one. All the submissions were made to her. The  Gazette gave the addresses of the Secretary of Parliament (because Parliament assisted Members) and the private Member. She thus clarified that the submissions were not in answer to the Committee’s call for submissions, but the process in June. All the people making submissions to her had indicated that they were keen to make oral submissions to this Committee. The other point on public participation was that there was nothing in the Interim Rules (brought in after the Constitutional Court judgment on private members’ bills) that stipulated that Parliament had to advertise for broader public input. In many ways it would be preferred, but she accepted the constraints of the time frame. The matters had actually been in the public domain since last June. The Committee had to decide whether the request of people to come forward to make oral submissions must be honoured. This had been a rich process and it would be interested to hear further comment. Finally, she said that this was her own Bill in her name. She would be leaving Parliament shortly. Should the Committee wish to proceed, then she noted that her colleague Hendrik Smit might be asked to re-table, as she had consulted with him, although many of the positions expressed had been taken through the DA. Mr Smit would be able to re-table in his name with whatever changes he liked.

The Chairperson wanted to address the final point, and asked if the Committee would deal with a motion of desirability before inviting any further submissions.

Ms Smuts thought it would; if that motion was defeated that would end the matter.

Mr Holomisa asked if there was any indication of who had been consulted; normally this information was presented by a department tabling a bill. If these people had been consulted and were invited before the Committee, then he was worried that it might violate the rights t those who were not aware of the Bill, although he accepted the Committee’s general responsibility to invite public participation from stakeholders.

The Chairperson explained that a private member would able a Bill and Parliament, as the receiving authority, would gazette it and call for submissions. Parliament would then take over the role usually played by the Department, passing the submissions to the private members and relevant Committee. At some point, the Motion of Desirability would have to be put. His understanding was that if it was carried, the Committee would then be free to advertise for further submissions, as a Portfolio Committee. No advertisements were in the media because Parliament had merely advertised by Gazette.

Dr Motshekga said that Mr de Lange had made an important point about the position should the private Member cease to hold office as such. Ms Smuts had said that, hypothetically, Mr Smit may re-table, and he wondered if the Committee should in fact deal with the matter now, knowing that Ms Smuts would no longer be an MP, as money would be wasted if the Committee was aware that the matter might not go through this Parliament.

The Chairperson said that Dr Motshekga was expressing a personal view.

Dr Motshekga said that he was now hypothesising in response to Ms Smuts’ hypothesis. If the Committee had to deal with the desirability of the Bill, then he wondered if it could do that without hearing other viewpoints, and wondered also if the sample was representative enough to address the question of desirability.

Ms Smuts said she would welcome a call for further public comment.

The Chairperson read out extracts from the Interim Rule, adopted in 2012. They prescribed that private members’ bills must now be referred to portfolio committees. The Member should be given a reasonable chance to be heard on the bill, and the committee should then “after due deliberation” consider a motion of desirability. The committee’s initial consideration should be the principle or subject of the bill. He noted that the process of having a Motion of Desirability was used in the past, because if the legislation was not considered desirable, it  would save time and money to indicate this up front. The process would possibly be re-introduced for all bills in the future. He noted that “ due deliberation”  was not defined. However the Member must be given the opportunity to explain. Matters such as the stakeholders consulted, summary of public responses and explanation of costs were also mentioned.

Ms Smuts wanted to comment on the “reasonable chance” provision she had begged the Committee to deal with the matter, having had to wait for the Committee first to prioritise a whole batch of government legislation, and she made the point that she was actually exercising her constitutional rights.

Dr Motshekga said that the Members must motivate so there should be a summary of stakeholder input.

Ms Smuts confirmed that she had done this and had given a full presentation. When Dr Motshekga said it was probably before he became a Member of the Committee, she reminded him that she had done so on 5 November.

The Chairperson said that the rules on best practice said that a portfolio committee should then ensure input from the relevant department on the practicability and need for the legislation. A committee should receive independent advice on the constitutionality and other implications. The Dept had expressed its view, in the document that Mr de Lange was presenting, but it was for this Committee to take the decision. Once the Committee had considered the input, it would be in a position to address the feasibility, and political implications of the bill. If the Motion of Desirability was not passed, then the Committee would have to table a report to the House. If carried, then the Committee would carry out wider public participation. For this reason the Motion of Desirability was the next step. However, he did note that the Committee did not have a quorum to deal with this today.

Mr Holomisa agreed with the Chairperson and said that the summary of submissions allowed the Committee to consider whether the Bill was necessary.

Dr Motshekga asked if Ms Smuts could briefly describe the substance of her Bill.

Ms Smuts expressed her strong displeasure at this point. She said that she could not do justice to it in a five minute summary. The submissions were circulated to all Members prior to the meeting of 5 November at which she had made a full and detailed electronic presentation, and if he really wanted an indication then she would insist upon giving the full electronic presentation again, to the full Committee. She had forwarded copies of newspaper articles, and comments. She was dissatisfied with the comment that the ANC members were unaware of the meetings.

Mr Holomisa agreed that Ms Smuts had briefed the Committee already, which was why he had felt that the Committee was actually ready to proceed to the Motion of Desirability. He had received all the papers.

The Chairperson asked Mr de Lange to continue to present the responses

Continuation of Department’s briefing
Mr de Lange conceded, to Ms Smuts, that he had misunderstood the point about the public submissions, and said that once the decision was taken whether to proceed, a public participation process would then follow.

Mr de Lange asked Members to study the comments in more detail than he would present in his very brief summary.

In respect of clause 1, the commentators from the University of Cape Town (UCT) and the Black Lawyers Association (BLA) had supported the amendment that only South African citizens be eligible for appointment as judicial officers. However, the GCB said that this would exclude permanent residents and residents of community development countries and saw not reason that this should be so.

BLA did not support the qualification around demonstrable capacity to be a judge and argued that this consideration should remain in the hands of the Judicial Service Commission (JSC). Both GCB and UCT had problems around what should be taken into account when considering eligibility, and UCT had noted that there was no mention of the academics.

Paragraph 5.1 dealt with demonstrating commitment to constitutional values. UCT had commented that this was too difficult to determine and suggested that it should be left to the JSC.

The GCB had commented that the term “ fit and proper” was already used in relation to the appointments for the Chapter 9 and public service institutions, and did not think that there was thus any need for the Constitution to elaborate on the point.

The BLA and GCB did not agreed that all candidates must be assessed equally, because this point must be considered against the need for transformation of the judiciary.

In relation to the JSC itself, the UCT and GCB supported the proposals to reduce the numbers of people serving on the JSC, but BLA did not, citing that it would be a smaller body with a fine balance of interest. However, in respect of the actual composition, GCB did not support some of the proposals about reducing the numbers in different categories. UCT was of the opinion that the proposals would increase representation. Mr de Lange went very quickly through the proposals and asked that the Members study them more carefully.

Mr de Lange turned then to the discussion under paragraph 6.2 and noted the extensive quotations from the certification judgment. He pointed out that the current status quo was in line with that judgment and thus concluded that it was now up to Parliament to decide in principle whether it wished to take the model suggested and apply it. Legally speaking there was nothing that required it to do so, as there was currently no problem in law with the current situation.

In paragraph 6.3 he pointed out that a decision to amend the Constitution would not normally be taken lightly, as the Constitution set out broad rules and principles. In paragraph 6.3.1 he noted that the Department agreed with the comment that the introduction of a criterion of “demonstrable capability” would be subjective. The Department tended to agree that in principle it seemed to make sense to have the Court presided over by South African citizens, but asked if it was really necessary to make such an amendment. The Legal Practice Bill would allow permanent residents to be admitted as legal practitioners, and he questioned, therefore, whether the Constitution should exclude them. The point was arguable.

In relation to the proposed amendment to section 178, as covered in paragraphs 6.3.3, Mr de Lange said that there was, in principle, no objection to reducing the numbers on the JSC, but the point had to be considered whether this might not give too large a role to opposition parties. Amendments of this nature should not only be about reducing numbers for the sake of doing so. The JSC’s role was expanding and the considerations should rather be around whether it was optimally structured to address its responsibilities.

Paragraph 6.3.4 covered the membership of the JSC by members of the opposition, and the exclusion of the Cabinet from clause 2. The Constitutional Court had said that the prevailing constitution framework was sound in law and did not require legal change, but policy and political consideration may require it, in which case the Department suggested that the Committee must consider the role of the JSC and whether it was optimally structured.

One remark that was not included in the document was that it was not necessary to make legislation to give effect to everything that was outlined in the National Development Plan (NDP). Ms Smuts believed that the Bill would give effect to that document, but he noted that many of the goals of the NDP could be achieved by secondary legislation, such as regulations, or policies. The JSC had a broad mandate and it would be able to tie up procedures, for instance by publishing in the Gazette.

Dr Motshekga did not believe that there was a need to effect these changes. He noted that constitutions evolved. In relation to the citizenship amendments, he noted that South African lawyers could practice in neighbouring countries, and the converse also applied, as far as he knew, and he wondered why, for instance, a Swazi advocate practicing in South Africa for 15 to 20 years should not be able to be appointed, unless it was necessary to look at the person, and not the skills and expertise. He did not believe that this should be of concern.  

Commenting on the size of the JSC, he said that the principle of inclusivity was very important and should be respected. A reduction in numbers would affect the representation of minority parties and create a problem where the majority party might seek to impose candidates. Economically, socially and legally there was a need for regional integration, and there was not reason to prevent people in SADC from being represented. In regard to the Cabinet representation, he pointed out that there was no reason to “preclude” MPs who were elevated to Cabinet. He thought, overall, that the proposals were not taking South Africa forward.

Mr J Sibanyoni (ANC) asked what specifically was broken that needed to be fixed. Since inception the JSC had shown many achievements in transforming the judiciary from its pre-1994 position, to reflect a broader composition of South African society. He felt these proposals might reverse the gains effected by the JSC in the past. Those appointed to the Bench had made a valuable and substantial contribution to South Africa.

MS Smuts said that it was interesting to hear Members arguing against a reduction in size of the JSC. The ANC purported to support the NDP – a Cabinet policy – and it was the NDP that said that the JSC was hamstrung by political interest and was too large. It was thus Cabinet policy that its composition needed to change, and her Bill was one way to do so. She was sorry that obviously the ANC Members had not bothered to read the document. It was quite possible still to debate the way in which the JSC could be reduced. Their position indicated that they did not appear to be in favour of their own party’s position.

Answering Dr Motshekga, she said that there was nothing to suggest that people to be appointed could not hold dual citizenship. The Constitutional Court judges were required to be South African citizens, although other judges were not, and she did not know how Members found that discrepancy acceptable at the moment.

Ms Smuts said that she did not think it was worth saying anything more. She was sorry that Members did not appear to have engaged with the policy position of their own party, as evidenced both in respect of the NDP for this Bill, and Enver Surty’s comments on the previous one. If the other Members of this Committee could not be bothered to read those documents, or hers, then she was wasting her time.

Dr Motshekga assured Ms Smuts that she was not wasting her time. MPs would have to look into the merits of what had been presented now and in the past. He believed that there was not specific need to carry forward the proposals.

Ms Smuts asked if the Members were going to implement the NDP.

The Chairperson said that some of the points had been addressed in submissions by commentators, particularly those around qualifications, and the question of demonstrable capability. He summarised again what the BLA, GCB and UCT had said, noting that they had felt that some of the matters should be left to the JSC, did not require further elucidation, or were too subjective, as with the “demonstrable commitment” requirement, which might further skew appointments to those working in the public law fields. He asked if the NDP was actually considered “policy”.

Ms Smuts said that it was rather ironic that she should be asked to advise the ANC on that point.

Dr Motshekga said the separation of powers must be respected, and ANC policy was adopted in Mangaung.

The Chairperson continued that in relation to judicial training, the South African Judicial Education Institute sought to deal with further education of judicial officers and this Committee would need to monitor whether it was being given appropriate resources. In regard to the clear criteria for appointment, he noted that there was public submission on that point. There was a need for the Committee to consider if the current structure was adequate. He noted the comment on compulsory community service for all but said this was outside the ambit of this Bill.

Ms Smuts responded that in essence, it was not possible to achieve what the NDP had called for, in relation to changing the composition and size of the JSC, without changing the Constitution. She repeated her concerns as to why she should be telling ANC Members what was in the NDP, and wondered why the Committee was not already dealing with the issues. She had done a huge amount of work on this and had set out in great detail where matters went wrong. She urged Members to look at the three tables in her presentation again. These summarised that initially, the JSC comprised 10 from the legal sector and 7 from the political. Then it changed, with six NA members being added to the four Senate, making the composition 8 from the legal sector and 15 from the political. She had attempted to correct this imbalance by reducing the Presidential designees (a feature of the Interim Constitution) and other members, to reach 8 from the legal sector and 9 from the political. There had been many wonderful suggestions in the submissions, which she urged all to read, including that perhaps the JSC should include retired Constitutional Court judges. She was suggesting a return to the Interim Constitution’s position, to say that half the Presidential designees should be lawyers, to balance out the political and legal balance. Finally, she noted that the public was well aware of these suggestions in the NDP, and it really would not look good if this was all to be turned down now.

Ms Smuts conceded that the submissions had not supported her proposals on the criteria, and she had clearly indicated this to the Committee on a previous occasion. However, she felt that if judges were appointed who could not do the job, then confidence in the legal system would be lost. Some submissions had suggested their own formulations. There was great interest in the criteria for appointment of judges, because the JSC had reduced “integrity”, an integral part of “fitness”, right down to a supplementary consideration and she felt very strongly that something had to be done to address that. The requirement that judges should be independent was included in the Interim, but not the Final Constitution. She believed that there was a real case to be made out for addressing the criteria. The matter of equal assessment was controversial although she did not agreed it went to substance or quality. She reiterated that all these points needed attention,

The Chairperson asked if Ms Smuts was suggesting that the JSC had appointed people who should not be judges.

Ms Smuts said she would never say that. She did believe that criteria were needed, for all courts, everywhere in the world, to prevent that. Case flow management had been instituted and, as pointed out in Australia, this would require judges very conversant with lawyering and judging, so setting criteria was fully in the interests of advancing these principles. She wondered if the submissions were suggesting that persons appointed did not have to have the capability to be judges.

The Chairperson said he had never suggested this.

Ms Smuts said that her difficulty on this point was that it suggested that people should be appointed to advance the transformation issues, even if they could not do the job. That would be an impossible situation There was a dire need for more discussion around these points, even if the criteria were not eventually included.

The Chairperson wanted to put to rest, quite firmly, any implication that the JSC might have appointed judges who were not suitable.

Ms Smuts said that she was not addressing that. There were cases of miscarriages of justice, through the Ministry, but she was not attacking the judiciary.

The Chairperson said that this could apply to cases anywhere, and the system recognised that, although he concede that it was not easy for litigants to access resources, for instance, to appeal.

Ms Smuts responded that her point was that the system should not “invite” a situation where difficulties could occur and then expect litigants to go through layers of appeal to put them right, or to have to approach the JSC on misconduct. The primary duty was to ensure that the right people were appointed in the first place. JSC’s basic fault had been to assume that colour and competence were two different matters, and with respect, that was where it had gone wrong, from the time of Judge Mohamed onwards. That was why she felt so strongly that there was a need to address the criteria.

The Chairperson noted that the bills would remain on the Committee programme until the Committee, with a quorum, could take a decision.

The meeting was adjourned. 

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