State Attorney Amendment Bill adoption; Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: deliberations; Constitution 18th and 19th Amendment Bills: Committee Reports adopted

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Justice and Correctional Services

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

The Department of Justice and Constitutional Development tabled the latest draft of the State Attorney Amendment Bill, noting technical amendments to the new section 2(3), the new section 2(b)(iii) and 4(a)(i)(aa) and 2(4)(a) and (b). New wording was given for the new sections 2(5)(a) and (b), giving the Minister the power to appoint an acting official should there be a vacancy, respectively, for the Solicitor-General or a State Attorney. Members wondered if a special enabling clause was needed that would permit some sections of the Bill (when passed) to be put into operation before others, and clarity was sought on why the Committee had decided against including a reference to the Minister of Cooperative Governance alerting departments to the implications of the Bill. The majority of the Committee adopted the Bill, and the Committee Report, as amended, but the DA Members indicated that they were abstaining from voting (although not opposed to the Bill in principle) pending the matter being discussed at their party caucus. 

The Department of Justice and Constitutional Development then tabled a second draft of the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill (the Bill), although not all of the changes made pursuant to the last meeting had been effected yet. When taking Members through the Bill, the drafters indicated that the various founding Acts of the Chapter 9 bodies which now needed to be amended, in order to bring their future remuneration decisions under the Independent Commission for Remuneration, differed in wording, and although the drafters had tried not to amend those Acts too radically, this raised questions of whether the Committee wanted to achieve uniformity as far as possible. After discussing some of the individual wording, Members agreed that it would be desirable to try to achieve this, pointing out that the different Acts had been dealt with at different times and by different portfolio committees. It was generally agreed to use wording, for all, that referred to “remuneration and conditions of employment”, and this particularly affected the Commission on the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act. 

Amendments to the Commission on Gender Equality (CGE) Act included noting the change of name of that Act (in the Bill), as well as the removal of a reference to substituting the definition of Minister, both of which had already happened when the CGE Amendment Act had been passed. The position of the clauses dealing with the South African Human Rights Commission (SAHRC) was changed, to maintain chronological order, since the 2013 SAHRC Act now replaced the 1994 Human Rights Commission Act. The subsections of the new Section 9 of that Act, which had provided for “additional remuneration” and “additional work” of part-time commissioners, would now be deleted, so that one standardised process would be followed. In respect of both the Public Protector Act and the Public Audit Act, it had been accepted that benchmarking remain, but the wording for both read: “during his or her term of office, be entitled to ä salary equivalent to that of a judge of the High Court of South Africa and such other terms and conditions of employment as the Independent Commission may determine”. The Chairperson noted that he still needed to meet with the Chairperson of the Standing Committee on Public Accounts and would also decide on whether other wording currently in the Public Audit Act should also be brought in line with what was proposed elsewhere in the current Bill. The State Law Advisers and Department’s drafters agreed that it was correct to refer to the Independent Communications Authority of South Africa (ICASA) by name, and to use the term “as provided for in section 192 of the Constitution”. Option 3 for the definition of “constitutional institution” received support from the Committee. Members also liked option 2 for the definition of “office bearer” and were leaning to (although they did not finally decide upon) the short title that referred to “office bearer” (rather than “member”) “of an independent constitutional institution”. The State Law Advisers raised a concern that the inclusion, at this stage, of the Financial and Fiscal Commission and the Public Service Commission, as the Committee wished to do, could cause problems for the Bill would then be tagged as a section 76 Bill, and the Committee had been following a section 75 procedure in its deliberations so far. Members took the point, and decided that the most effective way to proceed would be to leave these two commissions out of the current Bill, to try to get the Bill passed in the meantime, but, in its Committee Report, to urge the incoming Committee in the Fifth Parliament, to consider their inclusion under the Independent Commission as well. The inclusion of ICASA would proceed as it would not affect the current tagging.

The Committee then adopted the draft Committee reports on the Private Member’s 18th and 19th Constitution Amendment Bills, with the inclusion, in each case, of a minority report that expressed the desirability for the Bills, and brief reasons for this. Some ANC Members raised questions on the procedure and whether there was any room to debate a minority report, but the Chairperson clarified the rules and current procedures.

The Committee, in the absence of the Department’s officials, could not debate the Private Member’s Special Investigating Units and Special Tribunals Amendment Bill, but the Chairperson assured the Member that they would be prioritised. Finally, Members briefly noted their regret that the pressures of the legislative programme might not allow for much oversight, although there had been an informal request that the Committee return to the South Gauteng High Court if possible.

Meeting report

State Attorney Amendment Bill: latest draft
Ms Ina Botha, State Law Adviser, Department of Justice and Constitutional Development, tabled the latest draft of the State Attorney Amendment Bill (the Bill) (see attached document). She firstly noted the amendment on page 4, in the new section 2(3), which reflected the correct name of the Court, as stated in the Superior Courts Act, as “High Court of South Africa”, to reflect the full name of that court.

Under the new section 2(b)(iii) the words “Roll of “ has been added before “Advocates”. She pointed out that a similar correction would still need to be made to the new section 4(a)(i)(aa)

Ms Botha indicated a slight change of grammar, which did not change the meaning, under the new section 2(4)(a), dealing with the termination of appointment of a Solicitor General, and similar wording also in the new section 2(4)(b), dealing with termination of appointment of a State Attorney.

Ms Botha noted the new section 2(5)(a) and (b), which referred to any vacancy arising, and giving the Minister the power to appoint an acting official, who met the criteria for appointment set out, respectively, in sections 2(1) or 2(3). This was pursuant to the Committee discussions on the previous day.

Mr S Holomisa (ANC) wondered if, on page 6, under the new section 2(5)(a), there should be insertion of another comma in the second last line.

Ms D Schäfer (DA) did not think it necessary.

Ms Botha thought it would not do any harm to insert it.

The Chairperson wanted to speak to the commencement date, wondering if an enabling clause was needed to allow the Minister to implement different sections of the Act when it was signed into law, on different dates.

Ms Botha said that the issue had been discussed in her office. Section 13(3) of the Interpretation Act said that when the President was asked to put the Act into operation on a certain date, by proclamation in the Gazette, different dates could be set for different sections.

Ms M Smuts (DA) asked what had happened to the proposed clause relating to the Minister of Cooperative Governance discussing or at least alerting the provincial departments to implications of the Bill in relation to the manner in which work would be done.

Dr M Motshekga (ANC) said that Ms Smuts may have missed part of a meeting. After substantial debate it was decided not to follow that route.

Ms Botha explained that the Members had re-emphasised that the Minister was part of Cabinet, and the policy was to be approved by Cabinet, so that in practice there were co-operative governance routes that were followed, and therefore it was not necessary to deal with this in the Bill.

Ms Smuts thought that was a pity but accepted it.

Adoption of Bill and Committee Report
The Chairperson noted that there was a quorum.

Dr Motshekga proposed that the Bill be adopted, saying that the Committee had held exhaustive discussions, including the amendments under the new section 2(4)(aa). This was seconded by Prof L Ndabandaba.

Ms Smuts asked if the Committee was not intending to adopt a Motion of Desirability. She noted that the DA members would be abstaining from voting, as they needed to refer the matter to the DA caucus. However, she was not intending to note her opposition to the Bill.

Ms Botha noted that there were a few changes proposed to the Memorandum on the Objects of the Bill, to bring it in line with the new wording.

The Chairperson confirmed that these had been noted,  and said that the adoption of the Bill would include adoption of the Memorandum on the Objects.

The majority of Members adopted the Bill, with no dissent, but the abstention of the DA recorded.

The Chairperson said that he was not sure when the Bill would be debated.

Dr Motshekga congratulated the excellent team from the Department of Justice and Constitutional Development on their timeous delivery and excellent work.

Mr Holomisa asked if the wording on the draft Committee Report was correct, but the Chairperson noted that it followed a standard format. However, he did ask that the last line be corrected to “Report to be considered”. In addition, he noted that the reference to “section 74” in the second line should read “section 75”, and the reference to “section 75” in the third line should be amended to “section 76” as the Bill had been re-tagged.

Members adopted the Committee Report, as amended.

Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill: Deliberations on latest draft dated 12 February
Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, tabled a second draft of the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill (the Bill) but he noted that he had not yet had time to deal with the amendments relating to the Acts of the two other commissions (Financial and Fiscal Commission (FFC) and Public Service Commission (PSA)) that the Committee had wanted to be inserted.

He noted, on page 2, that the reference to the “Human Rights Commission” had been deleted from the Preamble. The 1994 Human Rights Commission Act had been replaced by the South African Human Rights Commission, Act 40 of 2013. It had been assented to by the President, but would only come into operation once all the regulations had been made.

The Chairperson said that this was an example of a situation where the President had signed the legislation, but not everything could become operational immediately.

Mr Labuschagne added that section 25 of the South African Human Rights Commission (SAHRC) Act provided specifically that the Act would come into operation on a date fixed by the President, by proclamation in the Gazette. Section 23 dealt with regulations and this provided that the Minister may make regulations on certain issues, after the SAHRC had commented, in relation to members of staff. Mr Labuschagne would be meeting with the SAHRC on 24 February to start preparing the regulations. The intention was that the SAHRC Act be put into operation as soon as possible.

Mr Labuschagne noted the Option, in the Preamble, dealing with the Commission on Gender Equality (CGE). He explained that the original version of the Bill aimed to substitute the definition of “minister” in the CGE Act, but in a sense this had been overtaken by events, because the definition of “Minister” had now been substituted by the latest amendment to the CGE Act, which had already been assented to by the President. The intended substitution of the definition was thus no longer needed.

A new option had been inserted making reference to the Public Service Commission (PSC) Act. Similar provisions were included for the Financial and Fiscal Commission (FFC) Act, but he reiterated that he still needed to draft the changes for the Acts of those two commissions. He explained that it was not quite a simple matter, because consideration had to be given to how any changes effected in this Bill would affect the commissions’ entire founding legislation.

He then noted the change to the title of the SAHRC Act in the Preamble.

Page 4 of the latest draft dealt with the remuneration of the Public Protector (PP). The Committee had given instructions yesterday and he had now prepared an option providing that the PP “shall, during his or her term of office, be entitled to ä salary equivalent to that of a judge of the High Court of South Africa and such other terms and conditions of employment as the Independent Commission may determine”.

On page 7 of the draft, the clauses originally numbered 4 and 5 (following the commissions’ Acts in chronological order) had been removed, because of the promulgation of the SAHRC Act since this Bill was originally tabled, and their contents were moved to new clauses later in the Bill, to maintain the chronological order. The numbering of subsequent clauses had thus changed.

Page 11 now set out a new clause 8, which detailed the changes to the PSC Act. Similar to the amendments made in the other Chapter 9 institutions’ Acts, the definition of “constitution” was being amended, as well as inserting a new definition for “Independent Commission”. The new clause 9 sought to amend section 6 of the PSC Act was to be amended, in line with the uniform procedure proposed for all the other commissions.

Mr Labuschagne turned to page 13, and noted the optional wording, following the Committee’s debate on the previous day, in relation to the definition of “constitutional institution”, and how the Independent Communications Authority of South Africa (ICASA) would be accounted for. He and the State Law Advisers had agreed that it was correct to refer to ICASA by name, rather than merely as the “broadcasting authority”, which was the wording in section 192 of the Constitution.

Ms Xoliswa Mdludlu, State Law Adviser, Office of the Chief State Law Adviser, amplified that section 192 was speaking to the necessity to pass legislation for an independent authority to regulate broadcasting. The Long Title of the ICASA Act had dissolved the “broadcasting authority” as it existed at the time and made it clear that ICASA had taken over.

Ms M Smuts (DA) fully agreed with the clear explanation and the principle of using the name of ICASA.

Ms Smuts asked for the difference between the wording of options 2 and 3.

Mr Labuschagne said that the only difference was that in option 2, the words “referred to in section 192” appeared, whereas option 3 used “provided for in section 192”. He clarified that ICASA was not actually established directly by section 192, which said that national legislation must provide for the creation of an independent authority.

Members indicated their preference for Option 3 on page 13.

Mr Labuschagne then moved on to the option for the definition of “office bearer”

Members indicated that they liked option 2, referring to “any member of an independent constitutional institution, including the Deputy Public Protector”.

Mr Labuschagne moved to page 17, where the amendments to the Public Audit Act were outlined. Instead of referring to the Auditor-General’s salary, allowances and other benefits being “substantially the same as those of the top echelon of the judiciary” the new wording now read: “during his or her term of office he or she shall be entitled to a salary equivalent to that of a judge of the High Court of South Africa and such other terms and conditions of employment as the Independent Commission may determine. This was in line with the amendments made earlier in respect of the Public Protector. Section 7(2)(a) also noted that the salary, allowance and other benefits should take into account the knowledge and experience of the prospective incumbent.

He wanted to touch on the issue of consistency across the founding legislation for the various Chapter 9 bodies. The comments made by the Commission for the Promotion and Protection of Rights of Cultural, Linguistic and Religious Communities (CLRC Commission) had indicated that their Act did not deal with “remuneration” but only with “conditions of service”. At the moment, section 14(1) of the CGE Act also read that the President, in conjunction with the Minister of Finance, was to determine “the terms and conditions of employment”. The Public Audit Act made provision for the oversight mechanism to consult with the Auditor-General and make recommendations, for approval. He asked if Members wanted to achieve consistency and felt that the CLRC Commission provisions should be changed.

Ms Smuts commented that the CLRC Commission Act was “a very strange Act altogether” and was not worried about effecting changes to it, as she was of the view that the method of appointment of these particular commissioners was also unconstitutional.

The Chairperson added that it was odd that the drafters chose to refer to “conditions of employment” and asked why the President should be appointing these commissioners.

Ms Smuts suggested that the Committee did not need to waste too much time on this issue, and suggested that the wording be brought in line.

Members agreed that, in relation to the CRLC Commission Act, references to “conditions of employment” be deleted and replaced with “remuneration”.

Ms Smuts added that this Commission was presently overseen by with the Portfolio Committee for Cooperative Governance and Traditional Affairs, although she thought that it should move to reporting to the Portfolio Committee on Arts and Culture.

Dr Motshekga had other information; he thought that because religion was intrinsically linked to culture, especially in the African religions and cultures, it was rightly placed under the Cooperative Governance sector, because the traditional leaders were reporting there. He had been given to understand, in his interaction with both the Department of Cooperative Governance and Traditional Affairs, that both were happy with the current situation. He disagreed also that it should perhaps be brought under this Committee because the interpretation of “human rights” in this sector was “so liberal that it conflicted with culture”.

Members debated briefly the recommendations of the ad hoc Committee dealing with the Chapter 9 institutions, and their suggestions for the CRLC Commission, but concluded that the position should remain as it was.

Mr Labuschagne said that, when drafting the Bill, he had tried as far as possible to retain existing words of the relevant Commissions’ Acts, but each of them had differed. He asked again if the Committee was aiming for uniformity for all. For instance, the PP Act currently mentioned “remuneration and other terms and conditions”, the CGE Act referred to “terms and conditions of office and service benefits”. The Acts had been drafted by different drafters and promoted by different portfolio Committees.

Dr Motshekga agreed with the historical background but felt that this Committee should be trying to achieve uniformity.

Ms C Pilane-Majake (ANC) said that ideally, she would like to see uniformity, but it could be a challenge. She also pointed out that the name of the CGE was different in the Constitution (which used the title “Commission of Gender Equality”) and its Act, which used “Commission on Gender Equality”).

Ms Smuts cautioned that Members should really try to confine themselves to dealing with remuneration aspects, and not be trying to achieve other consistencies. She agreed on the problem with the CGE name, but pointed out that this point had been raised when the “Electoral Commission” (as it was called in the Constitution) adopted the brand “International Electoral Commission”, by which it was known. Its legislation then later used the title “Independent Electoral Commission”.

Mr Labuschagne said that the latest amendments to the CGE Act had changed the name of the Act to “Commission for Gender Equality”, to bring it in line with the Constitution. He would amend the references to the CGE name also in this Bill.

The Chairperson summarised the view of the Committee that the new section 14 of the CRLC Commission Act should read “are entitled to such remuneration and conditions of employment…”

Ms Christine Silkstone, Committee Content Adviser, wondered if there was a need to make provisions for part-time commissioners, but the Members thought that this was covered.

Mr Labuschagne confirmed that full and time part members was covered, in relation to the CGE, SAHRC and CRLC Commissions, although there was a further inconsistency in the latter which referred not to part-time appointments in these terms, but “other members of the Commission”.

The Chairperson asked that the CRLC Commission Act be brought in line with the other commissions’ Acts in this regard as well.

Mr Labuschagne then referred to page 17, setting out the new options in the Public Audit Act, and noted that insofar as the Auditor-General was concerned, that Act referred, in (a) to “salary, allowances and other benefits”. He was not sure what the effect would be of referring to “remuneration” or “conditions of employment”.

The Chairperson said that he had been tasked with consulting with the Chairperson of the Standing Committee on Auditor-General, and was hoping to do that today, and asked the indulgence of the Committee to be allowed to discuss the point about uniformity also with him, and with the National Assembly House Chairperson, and to revert to the Members with their views on whether the wording should be brought in line with other Commissions’ Acts.

Mr Labuschagne wondered if the other commissions should not then also be approached.

The Chairperson said that he would find a way of approaching the respective chairpersons of other oversight portfolio committees, and would raise the matter with them diplomatically.

Mr Labuschagne moved to page 18, noting that this now set out the amendments in respect of the SAHRC, in new clauses, to follow the chronological layout for the commissions’ Acts, but the content of these clauses was the same as the former clauses 4 and 5, without any further changes. All the options had also been retained, so that the Committee could have a holistic view, and for record purposes.

The Chairperson asked him to keep those options in the next draft, when Members would take their final decision on them. He asked what was included to reflect the debate on whether commissioners would be referred to as “members” or “office bearers”.

Mr Labuschagne said he would get to that point. He pointed then to options 2 and 3 in the middle of page 19, dealing with the amendment of section 9 of the SAHRC Act, relating to part-time commissioners and whether they should receive additional remuneration.

The Chairperson felt that section 9 (1) was more than adequate, so the other options could then fall away.

Mr Labuschagne said that the intention of option 3 was to remove what had originally been included as a new section 9(3) – later renumbered to section 9(6).

Ms Smuts asked for confirmation whether this would close off the potential of the part-time commissioners getting any extra funding.

Mr Labuschagne replied that the reference in the new section 9(1) was to “remuneration and allowances and other terms and conditions of office and service benefits” . The original additional subclause had provided for additional functions. However, the Committee had asked that this not be included separately, but form part of the “remuneration” described in the new section 9(1).

Ms Smuts recommended that the whole of the proposed new section 9(6) be deleted altogether. That would effectively follow option 3 on page 19

Mr Labuschagne then referred to the Short Title options, on pages 19 and 20. He said that he had “run out of ideas” after coming up with three options, and quipped that his option 3 on page 20 might be “one of the longest Short Titles” in the statute books.

The Chairperson asked that Members, if they did not like those, should come up with some further ideas.

Dr Motshekga said that for all reasons advanced yesterday, option 1 seemed to be the best. Instead of referring, in the title, to “members”, there was now a reference to “office bearers”

Ms Pilane-Majake also supported that wording.

Mr Labuschagne added that the word “independent” should also be inserted before the phrase “constitutional institutions”, to be consistent with the rest of the Bill

Inclusion of FFC and PSC
Ms Mdludlu said that if the Committee wanted to include the FFC and PSC, this could affect the tagging of the Bill. The legislation was originally to be processed as a section 75 bill

Ms Smuts asked if she was suggesting that it was too late to include them, and at what point it would be incorrect for a committee to be dealing with a matter under the section 75 process. She wondered if these discussions already held would be regarded as “processing” the Bill.

The Chairperson said that perhaps the Committee should delay including the FFC and the PSC, process the Bill as it was now, as a section 75 Bill, and then ask the new Parliament to consider amending it later to include the FFC and PSC.

Ms Smuts said that the other way was to create a separate, Committee Bill.

The Chairperson said that this would still have to be processed as a section 76 Bill.

Ms Smuts said that she had understood that the Programming Committees of the two Houses had not yet met to determine the dates by which bills had to be sent to the NCOP. She said that this Committee had known, throughout the period of the Fourth Parliament, that this legislation needed to be effected, so she was sympathetic to the suggestion that nothing should stand in the way of effecting these amendments speedily. She made the point that many commissioners, past and present, had suffered by not getting what was fairly due to them, especially when the Public Protector had been receiving far more.

The Chairperson proposed that this Committee should say, in its Report on the Bill, that during the deliberations it had been approached by the PSC and FFC, and that the Committee supported their suggestions that these two commissions should also resort under the Independent Commission. However, the Committee was aware of the short time that the Committee was faced with, and the need to ensure that the other Chapter 9 institutions already in the Bill were accommodated. Including those two other commissions, at this stage, would have resulted in the Bill becoming a “mixed Bill”.

Ms Schäfer interjected to ask how the Bill could be “mixed” – surely it would be one or the other tagging.

The Chairperson said that she could get further details on this from the State Law Advisers. He was suggesting this Report as one way to deal with the current issues and ensure that the others were referred on. 

Dr Motshekga agreed that there was a real dilemma and the best way to deal with it at the moment was to exclude the FFC and PSC, but urge the new Parliament to deal with the matter.

Mr Labuschagne asked for confirmation that ICASA was still to be included.

The Chairperson said it must be; it was already a Chapter 9 institution and its inclusion would not change the classification of the Bill. He repeated that the Committee Report would strongly recommend to the new Portfolio Committee in the new Parliament that the FFC and PSC should be included.

Mr Labuschagne added that he would then remove any references to those two in his next draft.

The Chairperson noted that the Members wanted time to look at the options. He confirmed that a new draft would be presented at the next meeting. He also noted that  he had received a late submission from the FFC, which would be distributed to Members.

Adoption of Draft Committee Reports on Private Member’s Constitution 18th Amendment Bill
Ms Smuts, the proposer of the Bill, said that the NA Rules made provision for a Minority Report and the question was that whether the Committee would allow for a Member’s individual report, unless the other parties present were prepared to support her report, in which case it would be recorded as a minority report.

Dr Motshekga felt that there was a need to distinguish what this would be.

The Chairperson said he would allow Ms Smuts to read out her draft, and if it found favour with other Members then it would not be just her position, but those of other opposition Members also.

Ms Smuts read out the wording that she wanted to propose: as follows: “The Bill is desirable and necessary because it addresses and resolves concerns about the independence of the National Director of Public Prosecutions and the National Prosecuting Authority, first articulated by then-President  Motlanthe, former Justice Minister Enver Surty and the ad hoc committee dealing with the Vusi Pikoli matter”. 

She noted that this highlighted that many  ANC luminaries were included in this viewpoint, and found it very ironic that she had taken such care to carry forward the thinking of leading ANC members in both of her Private Member’s bills. 

Dr Motshekga objected, saying that this was not a report, but a restatement of a position advanced and defeated during a previous meeting.

Ms Smuts said that the argument she had presented was far more detailed and in depth than what she had just read out, and if Dr Motshekga thought that her arguments merely boiled down to this one sentence, then he had not been listening properly.

Dr Motshekga repeated that he thought this no basis for a minority report.

Ms L Adams (COPE) supported the fact that a minority report should be included, but was merely a little uncomfortable because everyone had differing views. She had supported Ms Smuts’ 18th Constitution Amendment Bill being taken further, although her main concern related to the timing. However, she supported what Ms Smuts had indicated, and thought that, if the procedure allowed it, her statement as read out should be included as a minority report.

Dr Motshekga thought that the correct procedure, in the case of disagreement, was to vote on the matter.

The Chairperson disagreed and referred Dr Motshekga to the NA Rules, which specified that if there was a minority report, it should be included.

Dr Motshekga accepted that but felt that a “minority report” must meet certain requirements, which Ms Smuts’ statement did not.

Ms Schäfer exclaimed that there was no point in having a minority report if the majority had to vote on it.

The opposition parties present (COPE and DA) were agreed to the inclusion of the minority report, and the Committee’s Draft Report was adopted, with that inclusion.

Adoption of Draft Committee Reports on Private Member’s Constitution 19th Amendment Bill
Ms Smuts read out the wording that she wished to have added to the Committee’s draft report, as the minority report, recorded in terms of the NA Rules, as follows: “The Bill is desirable and necessary as a basis for giving effect to proposals made in the National Development Plan”.

Dr Motshekga asked if Ms Smuts was not on record as being opposed to the National Development Plan.

Ms Smuts retorted that during the debate, she “had had to give the ANC the news that the National Development Plan was Cabinet policy”. The DA’s position was that it accepted the National Development Plan but had some points of difference on it.

Ms Smuts added that there had been a discussion (although by no stretch of the imagination could it be described as “due deliberation”) on 4 February, and this was not the time to ask questions on it.

Ms Adams indicated that she was favour of this statement.

Mr Holomisa had a question on the procedure for the reports. He asked what would happen, in the case of a bill presented by a department, if the relevant portfolio committee, having considered it, came to the conclusion that the bill was not desirable, and whether the department would be given the opportunity to report back on that.

The Chairperson said that he had reported on this previously. Private Member’s bills were presented to, and then became the property of a portfolio committee – which was what the two bills of Ms Smuts were), but at some point, after hearing the proposer of the bill and considering the comments of members of civil society who had responded to the gazetted information to make written submissions, the committee would need to decide on a Motion of Desirability. The same did not yet apply to bills emanating from departments or ministries. These bills were tabled after going through a process at the Departmental level, when an invitation would be gazetted calling for submissions from civil society, to allow interested parties to be involved. Once the department was satisfied it would then table its bill to Parliament. There was no opportunity given for a Motion of Desirability on these bills, although the portfolio committee could reject the Bill or send it back. However, notes had recently been sent to all portfolio committees to say that serious consideration was being given to adding in another step whereby bills from departments would also be subjected to the consideration of a Motion of Desirability. At some point the Rules would be amended to provide for that.

Mr Holomisa said that it had always been his understanding that the committees should consider a Motion of Desirability, to decide whether a bill was worthwhile at an early stage. He wondered whether the Committee should not be considering a “Motion of Desirability” instead of the current “Report”.

The Chairperson reminded him that the Motion of Desirability had been considered on 5 February 2014, and that, even though that had been rejected, the Committee still needed to present a Report on the Private Member’s bills to the House.

Dr Motshekga thought that the question of whether all bills should be subjected to a motion of desirability needed to be discussed at another forum. He said that “Cabinet approved a Bill informed by the policy of a ruling party and the nation, and to equate an individual to the nation was problematic”.

The Chairperson noted that this Committee was guided by the Constitutional Court decision on private members’ bills.

Dr Motshekga thought that the Constitutional Court judgment was understood differently.

Ms Smuts and Ms Schäfer said that the Rules Committee was busy with the amendment of the Rules now.

Postponement of consideration of Ms Schafer’s Private Member’s Bill: Special Investigating Units and Special Tribunals Amendment Bill
The Chairperson apologised sincerely to Ms Schäfer that although the Committee had placed her Private Member’s Bill on the programme for today, the Department of Justice and Constitutional Development representative who was to comment on the Bill was unable to be present. He promised her that it would be prioritised in the forthcoming meeting.

Ms Schäfer indicated that she accepted this. She confirmed that no submissions had been made on this Bill.

Committee Programme
The Chairperson then asked Members whether they wished to hold meetings on 18 and 19 February. The State of the Nation Address would be debated in the House on those afternoons. The Committee had held this week’s meetings to try to get through the workload.

Ms Smuts said that she could not be present in the following week but would not object if the meetings proceeded without her.

Ms Adams did not object that the Committee would not meet in the following week, but asked when oversight could be done.

The Chairperson said that the South Gauteng High Court issues had not been resolved and there had an informal request for the Committee to return there. Other than that, he was not sure that the Committee could manage any other visits, and agreed with Ms Adams that this was unfortunate. He was frequently approached by other MPs, raising concerns about the state of magistrate’s courts in their area, but he had explained that the legislative schedule of the Committee simply did not allow the Committee to pay as many visits as it would like to. He had suggested that these MPs should visit the courts in their areas and deal with problems if they could, or report back, and he urged Members of this Committee to do the same. He had visited the Phoenix Magistrate’s Court in the last week. He was aware that the Committee should be trying to do visits at least once a year and noted that the Committee, under former Chairperson Yunus Carrim, had split up into smaller groups to try to cover more areas.

Ms Smuts felt that the Committee had done something positive by visiting the Constitutional Court and Supreme Court of Appeal, and other courts, but agreed that the legislative load on this Committee simply did not allow for more time on oversight.

The meeting was adjourned.

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