Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: State Attorney Amendment Bill: Constitution 18th and 19th Bills, Approval of Determination of Remuneration of magistrates and judges

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Justice and Correctional Services

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

The Department of Justice and Constitutional Development (the Department) firstly presented a new version, incorporating changes proposed by the Committee, of the State Attorney Amendment Bill, reflecting changes to the new section 2(1) to allow the new Solicitor-General to be either an admitted attorney, or an advocate who had at some stage been admitted as an attorney, and who would remain eligible for re-admission. The words “with due regard to the ethical norms and standards in the attorneys profession” were added at the end of the new section 2(1). An optional wording for extension of office was presented for clause 2(2), which Members accepted. Members agreed with the division of the new section 2(4) into separate clauses dealing with termination of office of the SG and of State Attorneys. Debates were held on the effect of suspension, but it was later pointed out that inclusion of this term might conflict with the Public Service Act, which governed the terms of employment. There was also substantial discussion around informing provincial and local government of policy, but it was eventually decided that it could unduly complicate the section to insist upon it, and that the existing cooperative governance structures were probably sufficient. A final draft of the Bill would be debated for adoption on 14 February.

The Department presented the remainder of the public submissions on the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill. Members reverted to discussions whether the Public Protector and Public Audit Act should retain their provisions on benchmarking of remuneration, and asked the Department to propose options that would assist in clearing up anomalies in both these processes, changing the benchmarking to reflect a figure no higher than the salary of a High Court judge. The Committee Chairperson would speak to the House Chairperson and Chairperson of the Standing Committee on the Auditor-General to ensure that the proposed amendments in relation to the Auditor-General founding legislation were acceptable. The Committee, responding to other proposals, was not in favour of suggestions to use this exercise to regulate criteria for appointments in each of the founding Acts for the institutions, believed the consultation processes were sufficient, would consider wording for “members” or “office-bearers” and would convey the decision to incorporate the Financial and Fiscal Commission and Public Service Commission to the Joint Tagging Mechanism. 

Members resolved to recommend to the House the ratification of the revised remuneration packages for judges and magistrates, with a 5% across the board increase. The DA expressed concerns on the fact that the President had not followed the recommendation of the Independent Remuneration Commission, but did not oppose the resolution.

Members finally debated whether, following on the previous day’s deliberations, a Motion of Desirability was warranted for the Private Member’s Constitution 18th and 19th Amendment Bills. The Private Member strongly expressed her concerns that due deliberations had not been held, which she ascribed to “indolence of incumbent Members” who did not appear to have studied the supporting documentation thoroughly enough to make informed decisions. Other Members considered these remarks unfair, and countered that substantial time had been given for discussion and deliberation. They had simply felt that no purpose would be served by accepting oral submissions from the commentators, who had in some cases expressed completely divergent views from the bills and each other, and asserted that no case had been made out to persuade them of the desirability of proceeding with the matters. The point was made by other Members that this was unfortunate, since these bills would have presented an excellent opportunity to address criticisms and perceived problems with the legal process. The Private Member explained the process, to counter suggestions that perhaps she should have made amendments before presenting these bills to the Committee, and another DA Member said it was unfortunate that the requirement for a Motion of Desirability seemed only to be enforced for Private Members’ matters, and used as a blocking mechanism. The ACDP Member believed that giving an opportunity for engagement with commentators would have been useful and enriched the deliberation process. It was suggested that clear consideration must be given to whether the Interim Rules were in line with the Constitutional Court judgment on such bills. The Member was deeply disappointed. A Motion of Desirability moved by the DA was defeated by five (ANC) votes to four (DA, COPE and ACDP.
 

Meeting report

State Attorney Amendment Bill: latest draft incorporating Committee amendments: Department of Justice and Constitutional Development briefing
Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, noted the first change to clause 2(1) at page 3. She reminded Members that this related to whether the Solicitor-General (SG) was to be an admitted attorney. Members had asked for alternative wording that a person at some stage admitted as an attorney who had not been struck from the roll and was still eligible to be re-admitted, could be considered for appointment as SG. Members had debated the point, but concluded the incumbent would not necessarily have to undergo the full re-admission process; eligibility was the important point.

The insertion of the expression “with due regard to the ethical norms and standards in the attorneys profession” was noted, in the last sentence before the new section 2(2).

In relation to clause 2(2) there had been discussions around the term of appointment, and Members had concluded that the term could be extended, as now reflected in the latest draft, as “any further period or periods of five years”. The reason for the alternative was to allow the Minster to appoint for a shorter period.

In relation to the proposed section 2(4), about termination of appointment, Ms Botha noted a grammatical change, moving the word “if” to the subclauses. She then noted that she had put, in two separate sub-clauses, the provisions dealing with termination, firstly, of the SG, and then termination of the State Attorneys, because the State Attorney must always be able to practice as an attorney and be on that Roll.

The question had been raised whether it was relevant still to include anything for the SG about cancellation of enrolment as attorney, in view of the fact that this person now did not have to be on the roll of attorneys to be appointed. She also said that a SG could be on the roll of advocates, so termination should follow if s/he was struck from that roll. She asked for guidance from the Committee on this point.

Page 9 set out the proposed new section 3(5), relating to policy to be determined by the Minister. She asked to what extent provinces and local government should be consulted. One formulation was that the Minister of Justice and Constitutional Development should consult with the Minister of Cooperative Governance when developing policy. The counter-argument to this was that the policy would in any event go via Cabinet. The second question was whether provinces must be told specifically of that policy. She noted that the Intergovernmental Relations Framework Act (IGRFA) made provision for certain structures, which the Department of Cooperative Governance and Traditional Affairs (COGTA) had confirmed were in fact in place. However, COGTA had advised that the Minister would not necessarily go through all the structures. One suggestion was that the Minister of Justice & Constitutional Development could make use of those structures. The mandate of COGTA Department was to improve coordination across the three spheres and ensure that provinces and local government carried out their service delivery effectively, although it was later said that COGTA also had to coordinate and support policy development and provide support to policy development. 

Based on this, the drafters had inserted a new (b), stating that the Minister of Cooperative Governance should submit the views of the departments of state in the provincial or local sphere of government on the policy referred to in paragraph (a) to Cabinet

Discussion
Members then went back and discussed each clause that was being amended, in turn.

Ms D Schäfer (DA) said that a reference to both “admitted and entitled” was superfluous in the new section 2. A person admitted was entitled to practice. The new (b) dealt with people who were entitled but not admitted.

Ms Botha said that there was a difference between admitted and entitled. A person might still be admitted, but the court may have ordered that the person be suspended from practice. This was covered in the new section 3(4). There were some distinctions between this.

Ms Schäfer thought that there would never be consideration given to appointing a person who was being suspended.

Ms Kalay Pillay, Deputy Director General, Department of Justice and Constitutional Development, said that suspensions could occur pending a full investigation, which might not lead to a striking.

The Chairperson agreed with Ms Schäfer that such a person should not really be considered.

Dr M Motshekga (ANC) agreed that nobody “under a cloud” should be considered.

Prof L Ndabandaba (ANC) asked if there was any consideration as to how long a person should practice as an attorney. 

The Chairperson thought there no need to put this in the law but it would be a consideration that the Minster would take it into account.

Dr Motshekga was not sure that he understood the position in relation to COGTA. The new clause would oblige the Minister of COGTA to consult on a matter that fell into the jurisdiction of the Department of Justice and Constitutional Development. He thought this was cumbersome and said that the COGTA structures did not address justice issues so this would be unworkable. He had thought that the SG would consult with the State Attorneys in the provinces, within the Department of Justice & Constitutional Development. However, if issues arose in Cabinet meriting the consideration of COGTA, surely that should be an internal matter between the Ministers. He was aware of the concerns that some provinces needed to be better consulted, but was not sure whether laws should be made on the basis of circumstances in one of the nine provinces.

Ms Schäfer responded that the Constitution provided that local and provincial tiers of government were independent. She asked how the IGRF Act worked and if the Minister was obliged to consult with those who would be affected. This was not so much a justice matter as one that would affect how department could take matters to court. She thought it might be sufficient to state, as a general policy, that “relevant ministers” be consulted.

The Chairperson said that consultations should not delay appointments. He thought the clause was merely saying that the views of COGTA should be submitted.

Dr Motshekga pointed out that this presupposed that a process must be undertaken, which could take time, particularly given challenges in provinces and municipalities. There must be a credible process. He thought, to make this more practical, that perhaps a general provision for consultation, without specifics, would be acceptable.

Mr S Holomisa (ANC) referred to the new section 3(5)(a) and said that the reference to Cabinet would presuppose consultation of all ministers. Various ministers would in practice look at policy documents prior to the approval by Cabinet. He suggested that this subclause could be removed.

Dr Motshekga thought that Mr Holomisa’s suggestion probably now covered his point and agreed that (b) could be taken out.

Members went back to the beginning of the Bill and considered the changes.

Clause 2: New section 2
Members agreed with the insertion into the new section 2(1).

It was agreed that the words “and be entitled” be removed from the new section 2(1)(a).

Members agreed to insert “with due regard to the ethical norms and standards in the attorneys profession” under the new section 2(1)(b).

Adv Holomisa thought that the second option was preferable for the new 2(2), but thought that “at a time” should be replaced by “each”.

Ms Schäfer, Ms Smuts and the Chairperson indicated their preference for “at a time”, and the Committee decided to keep this wording, and to use the second option as the first was too open-ended.

New section 2(4)
Mr Holomisa said that his question related to both the new sections 2(1) and (4). He asked if  the position of an person who had practiced initially as an attorney, then moved to being admitted and practising as an advocate, was covered.

Ms Botha explained that the drafters had inserted a new paragraph 2(1)(b) to cover the position of an SG who was not currently an attorney, but who had previously practiced as one.

Ms Schäfer said that (b) should also include the wording “or suspended”, if the words “struck off” were used.

Ms Botha said that a person had been struck off may or may not have been suspended at some stage, pending a decision whether to strike.

Ms Schäfer was not suggesting that a person suspended pending an investigation, which was subsequently lifted, should be precluded. She was, however, concerned about a person currently under suspension.

The Chairperson and Dr Motshekga agreed that this person was not a fit and proper person.

Mr Holomisa pointed out that the wording of the new section 2(4) related only to a person struck off the roll of attorneys. He thought it was necessary to use wording that covered both branches of the profession.

Ms Schäfer asked if a person appointed would have to be admitted as an attorney after appointment.

Ms Botha said that the conclusion had been that it was not necessary for a person to be admitted as an attorney again.

Ms Schäfer questioned this, and the Chairperson clarified that although there was a suggestion that the SG should, after appointment, re-register, it had not been finally decided.

Dr Motshekga asked why such as person would need to re-apply. The criteria for appointment would include that the person had been admitted already at some stage. 

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, asked if this wording should be aligned with the Legal Practice Bill, and use “roll of legal practitioners”.

Ms Smuts suggested that alternatively, “struck off the Roll” was also sufficient.

The Chairperson said that the point about the Legal Practice Bill was valid, but said that changing the wording could be problematic if this Bill was signed into law before the Legal Practice Bill.

Ms Botha agreed with that comment, and said that in an earlier version of the Bill, only the reference “the roll” had been used. She had some reservations whether that would suffice but said also that in the Interpretation Act there was provision how outdated references must be read; even if the words “attorney”  and “advocate” were used they would be interpreted, later, in the light of legislation that replaced those terms.

Dr Motshekga said that an alternative was to use “Roll of Legal Practitioners” and define it.

Members debated the point; some felt that “ the roll” alone was well-understood, others surmised that the Legal Practice Bill might well be signed into law first, though it was noted that this did not necessarily follow, and finally it was agreed to make reference to “ roll of advocates or attorneys”.

Ms Schäfer thought that the new section 2(4)(b) did not make sense. A person was either practising or not, and a person could remain on the roll, and be entitled to practice, but not actually be practicing.

Ms Botha stressed the difference between a striking and voluntary removal, and said that even a voluntary removal involved a court application. She again reiterated that the version of the Bill being discussed now applied different conditions to SG and to State Attorneys, as the latter would actually have to be practising attorneys.

Dr Motshekga agreed that the SG would need to remain on the roll of one or other branch of the profession, and suggested that this should be specified.

Ms Schäfer said that State Attorneys would clearly need to remain on the Roll. The appointment of a SG should not terminate if that person was removing his/her name from one roll to move to another.

The Chairperson pointed out that a voluntary removal, at the moment, could result in removing eligibility to be an SG.

Members indicated that they preferred the optional clause. They agreed with the division into two separate subclauses to deal, in turn, with SG and State Attorney.

Ms Botha said that she had a concern on the new section 2(4), which had been drafted in light of the Legal Practice Bill. The question arose what would be the effect if the High Court were to order that the SG be suspended from practice, pending an investigation, which might later show no wrongdoing. She wondered if such suspension pending an investigation would require termination of the appointment.

Dr Motshekga said that the person appointed must remain “fit and proper” at all material times. He thought that going into such details in the Bill would be overly-complex.

Ms Schäfer pointed out that a suspension could be frivolous or politically-motivated, and the person suspended could finally be cleared. She wondered if perhaps stating a time period might be appropriate.

Ms Pillay thought it was necessary to differentiate between suspension pending an investigation and suspension as a sanction. The suspension as a sanction would warrant a dismissal.

The Chairperson suggested that using the wording “as a result of a suspension as a sanction, or dismissal” would cover the point. However, he thought that it was covered also under (a).

Ms Botha agreed that (a) would cover the position, with the addition of a reference to the Roll of Attorneys or Advocates. The wording under (b) could then be amplified with a reference to “ “ as a result of a sanction or as a result of suspension or dismissal as a sanction”.

The Chairperson noted that (b) dealt with the position of State Attorney. He thought that the decisions made for the SG applied also here (except with the requirement that the Attorney must be an admitted attorney at all times).

Ms Botha explained again that State Attorneys were to head the various Offices of the State Attorney, and they would have to be admitted attorneys because they would be doing attorneys’ work. She agreed that the changes discussed for the SG would apply to this paragraph too, except that it was not necessary to refer to the Roll of Advocates.

Ms Botha and Ms Pillay pointed out that subparagraph (b) of subclause (b) contained incorrect wording. Practitioners did not cancel their enrolment, but applied for removal. This would be correct.

New section 3
Ms Botha asked Members to confirm that they were satisfied with the changes to the new section 3(4), under page 8, relating to the power of the Minister to deal with policy.

Members agreed.

Later, Ms Botha returned to the meeting to outline a possible problem with the position of state attorneys. She pointed out that the State Attorney and attorneys working in the Office of the State Attorney would be appointed in terms of the Public Service Act (PSA) and would thus be subject not only to that, but also the various pieces of labour legislation that applied. The instructions given earlier by the Committee, in relation to the termination, said that attorneys and State Attorneys could have their employment terminated as a result of suspension, but this appeared to be in conflict with the PSA provisions on suspension, which allowed a public service employee to be suspended pending a disciplinary hearing. She wondered if this provision might not be tampering with existing terms and conditions of service, and be contradictory.

Ms Smuts suggested that the wording referring to suspensions could simply be removed.

Dr Motshekga agreed, saying that if such people were already regulated by the public service, then perhaps their appointment should remain so regulated instead of under a different system.

Ms Pillay said that the discussion earlier on in fact related not to suspension as an attorney. A public service disciplinary matter warranting a suspension pending investigation could be unrelated to the attorneys’ work, and perhaps involve absence from work, or misuse of a vehicle. She had understood earlier discussions to related to a person suspended from practising as an attorney.

Mr Holomisa said that his understanding was, firstly, that this related to the appointment process for a State Attorney, who could not be appointed if s/he was under suspension from practising as an attorney. In the case of a person already appointed, then suspended, that should not automatically lead to termination. A suspension could be one that was done pending disciplinary action, in which case the case may not succeed and the State Attorney would return to work. However, a punitive suspension for a period could also mean that a person returned to practise after a period.

Ms Schäfer wondered if the same applied to state advocates.

Ms Botha was not sure. If an existing State Attorney was suspended from practicing, she did not think that this automatically meant that his/her appointment as a public servant was terminated, because s/he could be shifted to another type of work. Examples of this had been found in recent cases against members of the prosecuting authority. There was still some difficulty around these provisions.

Ms Schäfer wondered how a person could be a State Attorney, if suspended.

Mr S Swart (ACDP) said that the person could still be an official in the Department of Justice and precisely what work s/he was attending to was irrelevant.

The Chairperson suggested the drafters should discuss the practicalities with the existing Office of the State Attorney.

The Chairperson noted that a clean version of the Bill would be provided for adoption on the following Tuesday.

Determination of Remuneration of judges, and of magistrates
The Chairperson noted that there was now a quorum. The Notices in relation, in turn, to the determination by the President of the remuneration of judges, and also of magistrates, had been tabled in the previous week, noting an across-the board increase of 5%

Ms Schäfer said that she had noted her concern in the previous week on the recommendations and had consulted with her party. She would not be opposing the adoption of the notices. However, her party did have some concerns that the President should be over-riding the initial recommendations of the Independent Commission on Remuneration. The DA was of the view that there should be very good reasons why these recommendations should not be accepted, or should be amended.

Mr Swart pointed out that there had been changes to the Independent Commission’s recommendations in the past.

Mr Holomisa pointed out that the right of review remained.

Members noted their adoption of the recommendations.

The Committee then adopted two short reports, the first dealing with remuneration of judges, and the other dealing with remuneration of magistrates, which would convey the recommendation for approval to the House.

Determination of Remuneration of Members of Constitutional Institutions (DRMCI) Laws Amendment Bill: Department of Justice and Constitutional Development responses to public submissions (continued from previous day)
The Chairperson said that he had been tasked with consulting with the House Chairperson, and the Chairperson of the Standing Committee on the Auditor-General to ensure that any changes to the Public Audit Act were done with their full knowledge and consent.  

Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, took the Committee through the remainder of his document that he had started presenting on the previous day (see attached summary) from paragraph 21.

In relation to the question raised in that paragraph on consultation, the Chairperson pointed out that there was usually a delegation who went to speak to the Independent Commission on the Remuneration (the Independent Commission). That engagement included, he believed, sufficient “consultation”. It was not expected, for instance, that the Chairperson of a Chapter 9 body would simply wait to be approached as somebody must be proactive in approaching the Independent Commission and suggest what should be paid. The engagement could obviously not persist for ever. There was nothing wrong with a request that the decision on points should rest with the Independent Commission.

The Chairperson moved to paragraph 23, which dealt with the question of setting benchmarks, and, after discussion, it had been decided that the benchmarks should apply only for the Public Protector (PP) and Auditor-General (AG).

Ms Schäfer said that she had understood that discussion to be around why benchmarks should be set at all.

Ms M Smuts (DA) said that if there was a desire to distinguish these two only, the obvious reason was that they were the “watchdogs” whose appointment required a 60% majority, and there was thus a distinction between their appointment and those of ordinary commissioners in other commissions. However, agreeing with Ms Schäfer, she had also thought that the conclusion had been that no benchmarks would be included.

The Chairperson said that the instruction given to Mr Labuschagne was that he should come up with some options.

Ms Smuts thought it was unfair to expect the drafters to come up with options, when the Committee Members had not crystallised what they wanted. She had thought that the mischief needing to be addressed was that in the past, the AG’s salary had been benchmarked against a judge of the Supreme Court of Appeal (SCA), and the suggestion more recently that the PP should also be benchmarked against the SCA salary. A benchmark was one way to ensure that a decent salary, to attract the right candidates, was pegged, but it must equally not be too high.

Dr Motshekga said that the Committee should be making a specific proposal.

Ms Schäfer said that on the previous day it had been said that a salary of a High Court judge may in fact be too little, given the responsibilities of the position, and she accepted that it was possible to make a distinction between different positions. She was not sure that there was consideration into what the AG might be paid.

Ms Smuts agreed that concerns around sufficient salary were valid, yet there had been “a reverberation of shock” when the relevant Committee gave the equivalent of a SCA salary to the AG, which was not intended.

The Chairperson reiterated his point that when the PP legislation was drafted, the intention was to have remuneration not more than that of a High Court judge.

Ms Smuts made the point that unless the AG’s salary was matched with salaries being earned in the private sector the right candidates would not be found.

The Chairperson said that he had had discussions later with concerned MPs, who had said that the committee dealing with AG’s salary had conceded that they had “made a mess” and was hoping that this Committee could fix it. If the salary for the AG was pegged at the level of a High Court judge, that should solve the problem. However, it did not directly address Ms Schäfer’s point.

Ms Smuts said that the concerns of the committees should be settled by pegging the level at the High Court judge level, but pointed out that nothing could be done that would adversely affect existing terms and conditions, during the current term.

The Chairperson said that the decision was to amend the law to bring it in line with the upper echelons of the judiciary for the AG, and he would still have to consult with the Standing Committee again.

Ms Gillian Nesbitt, Committee Researcher, reminded the Committee that the Department of Justice and Constitutional Development representative had said that it was almost impossible to benchmark against judges’ packages, because of the very special circumstances that applied to judges.

The Chairperson agreed and said there would then have to be a reference to “salary” and not “remuneration”.

Mr Labuschagne reminded the Committee that in light of the discussions, the existing sections of the Public Audit Act around remuneration would need to be amended. He would insert a proposed subclause to benchmark only to the salary, but not other terms and conditions.

Mr Labuschagne moved on to proposals set out in paragraph 24, where it was suggested that the new requirement that the Independent Commission take certain matters into account may present the opportunity to amend the founding legislation of the bodies to clearly regulate the criteria for appointments. His concern was that if this was done, then it would have to be done separately for each institution, because the requirements differed from office to office and person to person. He also said that the Bill, in clause 11, said that the Independent Commission must take factors into account. However, if the requirements for the PP, for instance, were to be listed, this would be very different to those of the Chairperson of the South African Human Rights Commission (SAHRC), with the former needing more experience in public administration and the latter in human rights. He did not think it possible for this to be done without approaching each of the institutions to ask what the specific requirements would be for each one of the offices.

The Chairperson thought that what was in the Bill sufficed and there was no need to refine it further in the founding legislation.

The Chairperson agreed with the Department’s comment, under paragraph 25, that these were once again examples of matters that should not be in the Bill, but should be raised with the Independent Commission. 

Mr Labuschagne said that paragraph 26 proposed some changes to the Short Title. He agreed that there were other institutions being added but thought the reference to “ constitutional institutions” was probably sufficient.

Ms Schäfer said that she read this differently and thought the proposal was that the term “office bearers” rather than “members” be used. She asked if “office bearers” was consistent with other referencing.

Mr Labuschagne said that the PP and AG were not members of their respective institutions. For Chairs and Deputy Chairs and others, the term “member” was probably correct.

Dr Motshekga pointed out that the Chair and Deputy Chair would be elected from the ranks. 

Ms Schäfer wondered if “remuneration in respect of constitutional institutions” might be better wording.

Mr Labuschagne countered that the Bill was not in fact dealing with the remuneration of the institutions, but individuals.

The Chairperson asked Members to think more on this point, and flag it for further discussion. The drafters were asked also to prepare some options.

Mr Labuschagne pointed out that paragraph 27 dealt with the tagging. The Office of the Chief State Law Adviser (OCSLA) and Department of Justice and Constitutional Development believed it should be a section 75 Bill.

Ms Phumulele Ngema, Parliamentary Law Adviser, said that the Joint Tagging Mechanism had decide that this should be a section 75 Bill.

Ms Smuts thought this correct because the Chapter 9 institutions accounted to the National Assembly. However, the decision to incorporate the Financial and Fiscal Commission and he Public Service Commission might change the position.

The Chairperson said that this decision would have to be conveyed to the Joint Tagging Mechanism so that it could then review the tagging.

Mr Labuschagne pointed out that if any further issues arose out of the re-draft that had not been specifically raised by the Committee; he would point them out in the next meeting.

Constitution 18th Amendment Bill and Constitution 19th Amendment Bill: Motion of Desirability
Ms Smuts was given the opportunity to address the Committee on her two Private Member’s Bills. She said that it had been apparent from the deliberation on the previous day that Members like Dr Motshekga had not read the presentation, despite the fact that she had been courteous enough to provide all Members, whether or not they attended her presentation, with copies of the presentation and copies of supporting articles. The discussion was therefore not informed, as had become apparent from the questions asked. In those circumstances, the engagement yesterday could hardly be described as an opportunity for “due deliberation” as envisaged by the interim Rules.

She reminded Members of what the Chief Justice had said in the judgment on debates of legislation, which referred to the context in which transparency would be enhanced, which would generally allow the proposal to be debated openly in the public before being decided upon. She thought that the greatest problem lay with the Rules of Parliament.

She noted that Adv Johan de Lange, Principal State Law Adviser from the Department of Justice and Constitutional Development, had said that he had only received sign-off on the document presented, from the political principals, at lunch-time, shortly before presenting at 2pm, and suggested that this was probably the reason why the Committee had engaged in such a long-drawn out process in the morning to allow for this to happen.

The Chairperson shook his head to refute this assumption.

Ms Smuts repeated her assertion that due deliberation had not taken place. She still thought it would be an excellent idea to invite those who had made submissions on her bills to present their positions to the Committee, which would allow Members to become better informed.

Dr Motshekga said that he thought Ms Smuts’ comments about the Members to be unfair. The matters were in the press, as Ms Smuts had said, articles had been written and whilst he conceded that some people may not have recalled everything said in her earlier presentation or notes, the Chairperson had allowed Ms Smuts ample opportunity to make a presentation, which she had done ably, and, in that process, closed any gaps in understanding. A sound basis was thus laid for due deliberations, which he believed had taken place. The time that the Chairperson had allowed for Members to deliberate, without limiting them or ruling them out of order, brought him to the conclusion that everyone had said what they wanted to say in this matter. At some point, Ms Smuts was asked to make a further input, which she thought was not necessarily.

Ms Smuts objected to this; she corrected Dr Motshekga and said that she had said she would be prepared to make further input but would want to do it in electronic format, by presenting the whole presentation. She had accepted that suggestion, and accepted it again now.

Dr Motshekga continued that Ms Smuts had noted the issues raised by the stakeholders, and in his view it would be a waste of time for the same stakeholders to come in and repeat what they had said. He said that Ms Smuts had simply failed to persuade Members of the desirability, and she was “looking for reasons to say that she had failed to persuade us”. Members could not get the blame for the fact that she had failed to persuade them and they had remained open for persuasion.

Ms Schäfer apologised for her ability to be present on the previous afternoon and said that she could not comment on the nature of the deliberations. These were important matters, with serious implications for the reputation of the judicial system, which had suffered some serious knocks recently. She thought that – particularly since an organisation such as Khulumani had been given an opportunity to come and present to this Committee – those making submissions on these two bills should be allowed to come and give their very serious input. It seemed to be apparently that this matter was not being taken seriously, and she feared the same might happen to her own bill also.

Mr Swart also apologised for his inability to attend on the previous day and thought that the deliberations and considerations now expressed around the matter seemed to indicate that it had been taken seriously. He understood the constraints around the time periods but thought that it would be useful for this Committee to hear from those making submissions, which would only strengthen the fact that the bills had received serious deliberation.

Mr Holomisa said that one of the challenges behind the bills was that they were private member’s bills. Although the bills had been gazetted (in June 2013) they had not been re-drafted in order to take into account the comments of those who had seen the notice in the Gazette and made submissions. Usually, when a department decided to publish a draft bill it was doing so in order to be informed by stakeholders, who would respond, and the department concerned would then take the opportunity to respond and draft another bill that would then be subjected to scrutiny by experts, taken to Cabinet, and then tabled to Parliament. If Ms Smuts had made use of the submissions by the bodies responding, she could have usefully incorporated them into her bills before they were tabled for consideration by this Committee. However, he noted that because these were Private Member’s bills, the procedure was different, and responses were received without the sponsor of the Bill being given the opportunity to improve the bills. The rules governing these bills were followed. Members had listened to Ms Smuts, looked at the submissions, and had seen the articles written, either in the media directly, or by way of copies circulated. The Members present remained not persuaded that there were problems identified that were required to be dealt with through making Constitutional amendments. He repeated his comment from the previous day – that the Courts had not, to his understanding, said that the Constitution was presently inadequate to deal with the issues of concern, particularly around the appointment of a National Director of Public Prosecutions (NDPP) who was not qualified. They had affirmed that the laws and Constitution relevant to the matters were adequate. That had been decided in relation to the current, existing wording. The Courts had not said that either the relevant legislation, or the Constitution, needed to be amended, or suggested that they allowed a gap for exertion of undue political influence. For this reason, he would reject a motion of desirability.

Dr Motshekga added that Ms Smuts was not refused the opportunity to improve the Bill on the basis of the submissions received. She could have done that during the recess. He remained convinced that “the ball was in the court of Ms Smuts to do her work”. This Committee should not be being asked to do that work.

Ms Smuts said that she had “observed the indolence of the incumbents”. To Mr Holomisa, she replied that it was not the function of the Courts to say that the Constitution must be changed in one way or another; it was merely their function to interpret it. The courts had not said that the Constitution was not adequate. Constitutional amendments would be tackle by the legislature, not the courts.

Ms Smuts said that both Mr Holomisa and Dr Motshekga had erred in their statements on procedure. The procedure for a Private Member’s bill did not work the same way as a departmental bill, and there was no way that she could have incorporated those changes on the basis of the submissions received. She pointed out that some of the submissions were in fact directly counter to, and in conflict with her own proposals. Almost everything that she had suggested in the 19th Amendment Bill was rejected by the Black Lawyers Association (BLA). The General Council of the Bar (GCB) had its own suggestions. The unit at UCT had different proposals altogether. Therefore, it was firstly not in line with the procedure to make changes, and secondly it was simply not possible to “incorporate” these submissions.

In relation to the 18th Amendment Bill, she submitted that if the professor making submissions was permitted to attend this Committee, she would have refuted him, point by point, but at least she had asked that he should be allowed to attend. The GCB supported this bill, except that it had suggested a suspension provision, and on reflection she thought that this was probably right. What was required was deliberation, which all should have undertaken together. These were wonderful proposals and processes. This Committee would have enjoyed hearing the discussion and proposals. It was “complete nonsense” to say that the Member could pre-empt the Committee’s functions. It was right for the Committee to bring the changes. She would have asked for fresh submissions as well. She thought that this was the “failure of political will and the indolence of incumbency” and suggested that the Chairperson might as well close the discussion at that point.

Dr Motshekga answered that if the submissions were contradicting each other to the extent that there was no potential for consensus arising from these submissions, and they effectively were cancelling each other out, or there was no possibility of reconciliation, then he wondered how the Committee would be able to deal with such confusion. The confusion came from learned people in the profession itself. He thought that this was using the Committee for wrong purposes. Ms Smuts had suggested that there were useful submissions, and the balance of evidence supported them so that it was imperative for the Committee to support them. However, by her own admission now, the evidence that was here was confusing.

Ms Smuts said that this was insulting to the public. In answer to Mr Holomisa she disagreed that the Courts could not order Parliament to change the laws; for instance, he might recall the Constitutional Court’s ruling that inmates of correctional centres should be allowed to vote, which had required a Constitutional amendment.

She noted the Committee’s indication that it remained unpersuaded that there were problems identified that required amendment. As to the Courts being in a position to deal with those misusing executive authority in a way that violated the law, she pointed out that there were already decisions of the President that had been overturned without finding it necessary to change anything.

Mr Swart said that if there had been a decision to consider the submissions of commentators further, it would have suggested a process to look at the legislation, and consider how this Committee could improve the proposal to come up with a Bill. However, that presupposed that there would be a motion of desirability to take the Bill further. The case brought by MP Mario Oriani-Ambrosini had envisaged that portfolio committees should be able to consider private members’ bills, without having a prior committee “stop-gating” the process. There might well be opposing submissions, but at least giving further consideration to them or hearing the commentators could have been a step forward. The Committee looked at differing submissions all the time. The premise was whether it was desirable to deal with the matter. He wanted his view recorded, that it was indeed desirable. 

The Chairperson said that this was the desirability of proceeding with this was indeed the main issue. Mr Swart and others felt that it was desirable to proceed, but others felt that it was not.  As explained yesterday, the need to adopt a Motion of Desirability was now being considered for all Bills. The simple question was now whether to proceed or not.

Ms Schäfer said that since she had been on this Committee, no Motion of Desirability had ever been put for any bill. She also put on record that the only time that this had ever been raised, in practice, was subsequent to the Constitutional Court’s decision, for that judgment had changed the procedure. She submitted that the Motion of Desirability was used as a blocking mechanism.

The Chairperson said that Ms Schäfer was being unfair and he must take exception to that. He had been at pains to read out to the Committee, on the previous day, what was in the parliamentary Rules on private members’ bills. The question of a Motion of Desirability was an integrated part of the Rules, and this concept was “not sucked from anyone’s thumb or the majority party” – it merely followed the Court’s ruling on what must be done.

Dr Motshekga said that usually when people reached the stage of being unable to persuade, they would revert to language like “failure of political will” and “indolence”. The use of these terms thus indicated to him that Ms Smuts had reached a cul-de-sac and was no longer able to produce anything to persuade other Members otherwise. It was important to place on record that whether or not the bills were warranted must be based on the facts. The facts were not persuasive, the summary of the submissions (as made by Ms Smuts) had added even more confusion and indicated that the Committee would be gambling in calling in people who were professional experts who did not agree amongst themselves, to repeat their disagreement and their confusion to the Committee. In the light of Ms Smuts’s own reports, she had not made a case to persuade the Committee of the desirability. This was not blocking anything. The Members remained open and available, and were using public time properly, but Ms Smuts had simply not persuaded Members of the desirability of proceeding.

Ms Smuts asked people to stop insulting the public by suggesting that because they had contrary opinions, there was something wrong. To put the record straight, she wanted to note that she had not summarised the submissions. She had actually given copies of the submissions to Members, and that was important for the process. She had referred to them in the course of describing what a rich process this was, and said that there were other options. This discussion was not useful because other people were misrepresenting the position.

Ms Smuts agreed that the Interim Rules said that the Committee must provide reasonable notice to the Member – although she had had to beg the Committee to set a date. The Rules went on to say that after due deliberation the Committee must consider a motion of desirability on the subject matter. She thought that there had not been due deliberation, nor could it be obtained from Members. The interim Rules did call for a Motion of Desirability. She advised that the Chief Whip’s Forum should have another look at the Interim Rules to see whether they were consonant with the Chief Justice’s pronouncement. Committees must offer a real platform for genuine debate. She was not sure that the rules facilitated what the Constitutional Court required. Ms Schäfer’s point whether the Motion of Desirability was merely a new barrier at this point must be considered.

The reason for the Motion of Desirability was to stop frivolous bills being tabled. She had argued the content of these Bills before the NA for four years and written on them frequently, so her proposals were not frivolous, or vexatious. She was very sorry and disappointed – though not surprised - that the ANC, in the form of the MPs and Ministry, was not taking the process further.

The Chairperson put the question whether this Committee should proceed or not.

Dr Motshekga said that after listening to the submissions by Ms Smuts and recollecting all the arguments in the newspapers and documents produced, he had reached the inescapable conclusion that Ms Smuts had not established the desirability of this Committee proceeding with the matter, and therefore the Committee should not proceed.

This proposal was seconded by Mr J Sibanyoni (ANC).

Ms Smuts wanted to move a contrary proposal, that there was desirability for further deliberation on both the, 18th and 19th Constitution Amendment Bills.

Her proposal was seconded by Ms Schäfer.

The Chairperson put Ms Smuts’ proposal to the vote first, and recorded four votes (from the DA, ACDP and COPE) in favour of the Bill, and five against, thus defeating the Motion of Desirability.

The Chairperson noted that the second Motion was rejected meaning that the first would stand.

The meeting was adjourned.
 

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