Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill: adoption

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Justice and Correctional Services

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

The Department of Justice and Constitutional Development took Members through the latest draft (draft 4) of the Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill, and also tabled a B-version of the Bill. It was indicated, for each clause, which of the options Members had already indicated that they preferred and the purpose was to obtain final confirmation on each of the clauses.

Three typographical errors were noted, which would be corrected. During the meeting, it was also indicated that the Department had also picked up a further change that was needed to clause 15(e), amending section 7(2A) of the Public Audit Act. The revised wording for this section must read: ““The salary of the Auditor-General may not be reduced, nor may his or her allowances and benefits be adversely altered, during his or her term of office”.

A DA Member who had not managed to attend all the previous meetings when the Bill was debated raised a query why the Committee had decided that the Independent Commission would still need to consult with the line Minister as well as the Cabinet member responsible for finance, when considering the salary, allowances and benefits. She did not believe this was appropriate. The Chairperson responded that the Committee had debated the point and had decided that because the line Ministers were still the conduit for the budget to the Chapter 9 institutions, it was still appropriate to refer to them. Another Member added that this should not be seen as necessarily implying any interference or tampering with their independence as it was in fact that person who would motivate for any extra budget. The point was also made that this situation would change when the intended legislation came into operation (which was to be introduced in the next Parliament) to permit these institutions to get their appropriations directly from Parliament. It was suggested that this point should be made in the Committee Report, with a note that when this happened, this legislation may need to be amended.

Members also agreed that the Committee Report must make reference to the fact that section 219(5) of the Constitution would not limit this legislation to only Chapter 9 institutions. The point would be made that the Bill should not be seen as a rejection of the request from the Public Service Commission that it be included in the Bill, but that the Committee had been informed by the Law Advisers that if the Public Service Commission was included at this stage, it would have changed the tagging of the Bill and would have meant that it could not be passed by the Fourth Parliament. The Committee had been assured that the Department of Justice and Constitutional Development would be looking to revise the Bill again, in the new Parliament.

Members then held a short discussion on the position at the moment with the Office of the Chief Justice, which was also funded via the Department of Justice, but as a transitional arrangement, which it was accepted was not ideal, until it had sufficient capacity and until legislation was introduced, similar to that in Canada, to enable it to approach National Treasury directly. There would not be a political head, and the Accounting Officers would thus be accountable directly to Parliament. Members agreed that the Secretary-General of that office was accountable to the Committee (and thus to Parliament) for the spending of the budget, and this led to discussion on whether the Minister of Justice and Constitutional Development would need to answer any questions asked about the spending of this office, if they were raised in the House. It was agreed that in practice, at the moment, with other institutions, the Minister did act as an “information conduit”, although it was perhaps ideal that the Committees should be empowered through the rules to deal with any questions, and the Chairperson suggested that the matter should probably be referred to the Rules Committee for it to consider adopting the necessary rules. The point was also made that in practice, the portfolio committees could use their powers to ask institutions to respond, not necessarily only in meetings, but in writing, to questions and concerns.

Members adopted the Bill with no dissension or abstentions recorded.
 

Meeting report

Determination of Remuneration of Office Bearers of Independent Constitutional Institutions Laws Amendment Bill (title amended): Latest version
The Chairperson noted that Mr Labuschagne was unwell but noted that Mr Johan de Lange, Principal State Law Adviser, Department of Justice and Constitutional Development, would take Members through the latest version of the Bill.

He indicated that there were still options reflected in the Bill, but those shaded and with footnotes were the options that Members had indicated they would prefer for each of the clauses.

He firstly noted that there was a typographical error, which would be corrected, referring to the Commission for Gender Equality on page 2.

In the description of Bills being amended, on page 2, he said that Option 2 applied to the Public Protector (PP) Act, as noted in footnote 2.

The reference to the Commission for Gender Equality (CGE) Act as noted in Option 3 an footnote 4 was the correct version on page.

The Electoral Commission Act correct description was contained in Option 2, to which footnote 5 referred. The double semicolon would be corrected.

For the Independent Communication Authority of South Africa (ICASA) Act, Option 2 on page 4, as referred to in option 11, was correct.

The description for the Commission for the Promotion and Protection of the Rights of Cultural Religious and Linguistic Communities (CRCRL) Act was correctly noted in Option 2 on page 5, and footnote 12

The description for the Public Audit Act, as set out in Option 2 and footnote 13, on page 5 was correct.

For the South African Human Rights Commission (SAHRC) Act, Option 3 and footnote 14, noted on page 6, were correct and in the correct chronological order.

Preamble
Mr de Lange noted no new amendments

Clause 1
There were no new amendments

Clause 2: Amendments of PP Act
Mr de Lange explained that for each of the commissions or bodies, the headings of the relevant sections in their founding legislation were being amended, as well as the content of some sections.

The heading for section 2 of the PP Act was set out in Option 2 on page 7, with footnote 15.

Section 2(2)(b) was set out in Option 2 and footnote 16, on page 7.  of the PP Act Option 2 and footnote 15

In respect of Subclause (2), on page 7 option 2, with footnote 16 applied.

The new section 2(2)(b) was set out in Option 4 and footnote 17 on page 8.

Mr de Lange then noted the insertion of the new subsection 2(2A), as set out in Option 3 and footnote 18 on page 9.

Discussion
Ms M Smuts (DA) said that she wanted to ask at this stage why the Committee had decided to retain the references to the line Minister, as there had been a discussion at the last meeting on the Bill that she attended that it might be deleted, and reference only made to the Minister responsible for Finance. Should the Committee be prepared to reconsider this, then the references may need to be changed throughout the Bill. She did not agree that a line Minister should be consulted as they were merely conduits for funding and there was no particular logic in their being consulted.

The Chairperson said that this was not the first time that this wording had been in the Bill. The matter had been debated, and they were included precisely for the reason mentioned right at the end of her request, and it was the fact that the Ministers were conduits that made it logical for them to be consulted, because they carried the budget for these institutions or bodies.

Ms Smuts indicated that she disagreed with that principle.

Mr S Holomisa (ANC) said that whilst he accepted that some Members of Parliament seemed to be suspicious about the involvement of the executive, it must be remembered that the Chapter 9 bodies needed to speak for them when there was competition for resources at National Treasury. He reminded Members that it was not inevitably the case that the Minister was likely to intervene in the work as the positive was that the Minister would be able to lend support to applications for funding.

Ms D Schäfer (DA) said that she had raised this point last week, because she, like Ms Smuts, did not understand why, even if that was the conduit, input was needed from the Minister. She said that the danger was that a Minister may not like what a body was doing and might recommend that a particular official be paid far lower than was warranted. Ultimately the President would make a decision on this (on the recommendation of the Independent Commission) but she still felt that the Minister should not have input.

The Chairperson said that she was making the assumption that the Minister would make input, but that might not be the case. The Minister did put together the budget and must therefore remind the Minister of Finance to add certain amounts to ensure that the budget for the bodies was correct. He also pointed out that the wording was “after consultation” and said that this was how matters had always worked.

Ms Smuts countered that this was not always so – many of the institutions in fact did approach National Treasury directly. However, this was not really the time or place the debate the matter. She had asked the question for clarity, and recorded her disagreement with the decision.

Continuation of briefing
Mr de Lange continued to take Members through the Bill. He noted that a new subsection 2(2B) was set out on page 9 and the wording for (2C) was contained under the Option, and footnote 19, on page 9

Clause 3: Amendment section 2A of PP Act
Mr de Lange noted that the heading of section 2A was amended by Option 2, footnote 20 on  page 10.

The amended section 2A(5) was set out in Option 2, footnote 21, further down the page.

The amendments to section 2A(5)(b) were contained in Option 3, which now referred to “the National Assembly” instead of “Parliament”.

New sections 2A(5A) and (5B) were being inserted, as set out in Option 3, footnotes 22 and the Option with footnote 23, on page 11.

Original numbered clauses 4 and 5
These were being deleted.

He would refer to the new numbering for the remainder of the clauses

Clause 4: Amendment of section 1 of the CGE Act
Mr de Lange pointed out a typographical error, and said the hyphen would be deleted. The Option wording, with footnote 25, was correct.

Clause 5: Section 8 of CGE Act
Mr de Lange indicated that the heading and content of section 8(1), as set out in Option 2 and footnote 26 on page 15 were correct.

He noted that the Option, with footnote 27 on page 15, would apply to the new section 8(1)(b).

Section 8(2)’s wording was contained in Option 2 and footnote 28 on page 16.

The corrected wording for section 8(3) appeared in Option 3 and footnote 30 on page 16.

The wording that appeared in the Option, with footnote 31, applied to the new section 8(5).

Clause 6: Amendment section 1 of Electoral Commission Act
Mr de Lange noted that the Committee had not asked for amendments to this clause.

Clause  7: Amendment of section 7 of Electoral Commission Act
Mr de Lange noted that the new heading for this clause was set out in Option 2, and footnote 33, on page 18.

The new wording for section 7(2) was set out in page 19, in the Option 2 and footnote 34

The new wording for section 7(2)(b) was set out in Option 3, with footnote 35, on page 19.

The correct wording for the new sections 7(2A) and (2B) were indicated as Option 3, with footnote 36, on page 20

The wording for new section 7(2C) was set out in the Option and footnote 37, on page 20.

New Clauses 8 and 9 : Amendment of the Public Service Commission Act
Mr de Lange explained that although the Committee had originally requested the inclusion of the Public Service Commission Act, this was no longer to be proceeded with and these new clauses would thus fall away.

Clause 8: Amendment of Independent commission for the Remuneration of Public office Bearers Act of 1997 (the Commission’s Act)
Clause 8 dealt with the definitions for the Commission’s Act. Option 4, as set out on page 22, with footnote 29, was the preferred definition for “constitutional institution”.

The preferred definition of “office bearer” was set out in Option 2 and footnote 40, on page 23.

Clause 9: Amendment of section of Commission’s Act
Section 8(6)(b)(i) was being amended, and the preferred wording was indicated as the Option with footnote 41, on page 24.

New clause 10: ICASA Act section 1 amendment
Mr de Lange note that there were no amendments to this clause.

New clause 11: ICASA Act, section 19 amendments
Mr de Lange noted that the preferred heading amendment was set out in the Option with footnote 44 on page 25

The new section 10(2) was contained in the Option with footnote 45, on page 26, under the

The preferred wording of section 10(3) was note in Option 2 and footnote 46 on page 26.

The preferred wording of section 10(5) was contained in the Option and footnote 47, on pages 26 to 27.

Clause 12: Amendment to section 1 of CRLRC Act
There were no amendments

Clause 13: Amendment to section 14 of CRCRL Act
Mr de Lange noted that clause 13 amended section 14 of the CRCRL Act. The change of heading was reflected correctly in the Option 2 and footnote 48 in the middle of page 27

The revised section 14(1) was set out in Option 2 at the top of page28.

The changes to section 14(1)(b) that were preferred by the Committee were set out in Option 3 and footnote 49 on page 28.

The new sections 14(1A) and (1B) were correctly worded in option 2 and footnote 50 on page 29, and the new section 14(1C) was contained in the Option and footnote 41 in the middle of page 29.

Clause 14:Amendment of section 1 of Public Audit Act
Mr de Lange noted that Members had not suggested any changes to this clause.

Clause 15: Amendment section 7 of Public Audit Act
Mr de Lange noted that section 7’s heading was corrected noted in the Option 2 and footnote 52 on page 30.

The content of section 7(1) was set out in Option 2 with footnote 53 on page 30.

The changes to section 7(1)(b) were set out in the Option marked with footnote 54 at the foot of page 30.

The revised section 7(1A) was set out in Option 2 and footnote 55 on page 31.

The new section 7(1C) was contained in the Option marked with footnote 56 on page 31.

Later in the meeting, Mr de Lange noted that he had just received a message from his office pointed out that there was a need to change the new subsection 7(2A) of the Public Audit Act, where the word “remuneration” still appeared. This should read “salary” and the reference to other terms and conditions should be deleted.

The revised section should read: “The salary of the Auditor-General may not be reduced, nor may his or her allowances and benefits be adversely altered, during his or her term of office”.

Members agreed to this change.

Clause 16: Amendment of section 1 of SAHRC Act
Members had not requested any changes to this clause.

Clause 17: Substitution of section 9 of SAHRC Act
Mr de Lange pointed to the changes made to section 9(1) as set out in Option 2 and footnote 60 on page 34.

The new section 9(2) was correctly worded in Option 2 and footnote 61 on page 34.

Section 9(3), in its preferred form, was set out in Option 3 with footnote 63, on page 35.

The preferred new wording for section 9(5)(a) and (b) was indicated in the Option marked with footnote 64 on page 35.

Clause 18
Mr de Lange reminded Members that the Short Title and commencement date had been changed, as set out in Option 1(b) on page 37. He commented that this was an interesting departure as it was very seldom that titles of Bills were changed.

Memorandum on the Objects
Mr de Lange finally noted that there were a few consequential changes to the Memorandum n the Objects, which would reach the Committee later in the day. It did not form part of the Bill that needed to be voted upon.

The Chairperson pointed out that another document had been circulated – the B version of the Bill (see attached document).

Discussion
Ms Christine Silkstone, Committee Content Adviser, raised the point that there was still a reference to the Public Protector, the Auditor-General and “members” of constitutional institutions, in the Preamble. She wondered if it was necessary to refer to “office bearers” instead.

Ms Smuts said that commissions did have “members”, and she thought that in the current context that was not a problem. The Committee had decided to use “office bearers” in the title of the Bill and for consistency when changing the founding legislation references, but here, because of the clear separation between the Public Protector, the Auditor-General and the constitutional institutions, she thought it could remain.

Mr S Swart (ACDP) pointed out that if this was to be changed, then a change was also needed in the paragraph at the foot of page 2.

Ms Silkstone noted that that paragraph referred to the wording of the Constitution and was happy to accept the views of the other Committee Members who also agreed with Ms Smuts.

Mr Holomisa referred to the Preamble and asked if, under the bullet point dealing with ICASA, the reference to “councillors of the Council” was correct.

Mr de Lange said that this was how they were referred to in the legislation.

Mr Swart checked whether “dis-approve” (notices) was a usual term and Members and Mr de Lange agreed that it was.

The Chairperson asked if Ms Smuts wanted to address the Committee again on her concerns about the Independent Commission needing to consult with the line Minister as well as the Cabinet Member responsible for finance, when investigating or considering the salary, allowances and benefits.

Ms Smuts said that she merely wanted to note her disagreement that there should be any reference to the line function Minister. She was pleased that the Bill had at last been produced, as it was giving effect to section 219(5) of the Constitution, which had been needed for a long time, so although she felt that her concerns were valid in principle, it was important to get the Bill through Parliament.

Ms Smuts noted that the Committee Report on the Bill should contain a reference to the Public Service Commission and other commissions, because section 219(5) did not limit the legislation only to the Chapter 9 bodies.

Ms C Pilane-Majake (ANC), responding to Ms Smuts, reiterated the point that the line Ministers would need to be consulted while the present situation pertained that the Chapter 9 institutions received their budgets via the vote of the relevant departments. When that situation changed, then this would not necessarily be so important, and she suggested that the Committee Report must make that point clear.

The Chairperson added that the Report must also note that the Bill in its present form should not be seen as a rejection of the request from the Public Service Commission that it be included in the Bill, but that the Committee had been informed by the Law Advisers that if the Public Service Commission was included at this stage, it would have changed the tagging of the Bill and would have meant that it could not be passed by the Fourth Parliament. The Committee had been assured that the Department of Justice and Constitutional Development would be looking to revise the Bill again, in the new Parliament.

Mr Holomisa commented on Ms Pilane-Majake’s point and noted that at the moment the Office of the Chief Justice was also funded via the Department, and asked how that related to the separation of powers.

The Chairperson explained that this was essentially a transitional arrangement, and the intention was that the Office of the Chief Justice (OCJ) would be funded directly, but for the moment, the Department of Justice and Constitutional Development was the conduit. This was also linked to the reality that the OCJ presently lacked capacity and would have difficulties in managing the budget directly if it were immediately to be provided directly to that office.

Mr de Lange added that the reality was that the OCJ had been established as a department of the State, so that meant that there must be a Cabinet member to “oversee” it. It was accepted that this was not ideal, but the OCJ was gathering momentum and the issue would be addressed shortly, with new legislation, which the Department had not yet prepared but was investigating. When that was introduced, the OCJ would approach National Treasury directly. This would be similar to the position in Canada, where there was a Court Administration Act. There would not be a political head, and the Accounting Officers would thus be accountable directly to Parliament, although obviously this would mean the administrative heads, as the judiciary could not be called to account.

Mr Holomisa asked who would be accounting for the money.

Ms Smuts reminded Members that the Committee had agreed that the OCJ would be accounting for the spending of public money.

The Chairperson added that the Secretary-General of that Office would appear before the Committee. He raised the question, however, what might happen when this arrangement was in place, were an MP to table a question to the Minister of Justice regarding expenditure in the OCJ. He thought the Minister would have to answer because the Secretary-General was not a member of Parliament or the Executive.

Ms Smuts commented that the same actually applied to the Chapter 9 institutions, particularly ICASA and the SABC, which was actuarially independent. The act of asking through a Minister carried the implication that the Minister might be tempted to intervene in the operations of the institution, but what had actually happened, particularly with the SABC, was that the Minister ended up acting as an information conduit. The National Assembly was a political institution, with political accountability. The MPs were responsible to the nation for holding the institutions to account, and for the legislative authority.

The Chairperson asked if Ms Smuts was saying that questions on these institutions perhaps should not be tabled in Parliament, but rather come to the Committee.

Mr Holomisa said that any Member of Parliament was entitled to, and had to ask questions of the Minister.

Ms Smuts responded that she was saying that the Committee was probably the appropriate place to deal with these matters, but Parliament would have to evolve so that the matters could be dealt with in this way. The first step had been taken by establishing the Office for Institutions Supporting Democracy (OISD).

The Chairperson said that it was unfortunate that Ms Smuts, with her substantial expertise and experience, was leaving Parliament.

Ms L Adams (COPE) suggested that perhaps the matter should go through the Speaker.

The Chairperson thought actually it should be taken to the Rules Committee, so that all parties gave serious consideration to adopting a set of rules to say that any questions about these institutions must be tabled before the relevant Committee

Ms Pilane-Majake agreed that the issue could be taken to the Rules Committee, and that the portfolio committees should be reviewed to accommodate the changes, but she felt that it would be incorrect to bring such matters here presently.

The Chairperson clarified that he had not suggested that.

Ms Smuts commented that in the past, the only way questions could be asked was at question time to Ministers. Matters changed in 1994, and for the first time MPs could ask questions directly in committees. She personally had never had a problem getting information in this way, and she said that even if an institution appeared before a committee only once or twice a year, a committee could still send through questions and the institution would have to answer.

Adoption of Bill
Mr Holomisa commented that the only point of disagreement on the Bill appeared to be the matter about the line Minister.

Members voted unanimously to adopt the Bill, with no dissension recorded and no abstentions.

The Chairperson asked that the Committee Report be made available to Members that afternoon. The Bill would be debated in the House on Thursday 6 March.

He noted that the Legacy Report of the Committee would be considered in the following week. Bills were still due to be referred back to this Committee from the NCOP.

The meeting was adjourned.
 

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