Promotion of Equality & Prevention of Unfair Discrimination Amendment Bill; Promotion of Administrative Justice Amendment Bill;

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
4 November 2002
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION AMENDMENT BILL; PROMOTION OF ADMINISTRATIVE JUSTICE AMENDMENT BILL; PROMOTION OF ACCESS TO INFORMATION AMENDMENT BILL: BRIEFING

Chairperson: Mr KL Mokoena (ANC)

Documents handed out:
Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill [ B41B-2002 ]
Promotion of Administrative Justice Amendment Bill [ B46B-2002 ]
Promotion of Access To Information Amendment Bill [B60-2002 ]

SUMMARY
These three bills cover the same issue. An objection had been raised against the provisions which deal with magistrates in the definition of 'court' - to the effect that they infringe on the independence of the judiciary and the principle of the separation of powers. The amendments deal mainly with correcting the perception that the Minister could decided exactly who could be appointed as a court judge. The amendments thus go to clarify the separation of powers. It is also compulsory for a presiding officer in a court for the purposes of these three Acts to have undertaken the appropriate training before presiding in the matter.

MINUTES
Mr Johan De Lange, Director: Legislation in Department of Justice, said that even though they were discussing three different bills, all the bills covered the same issue and said the same thing. The amendments deal with the issue of perception around the independence of the judiciary. These amendments will not affect the content of the bills in any major way.

Referring to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill as an example, he said that criticism had been leveled at certain provisions in the principal Act, which stated that, "the Minister may designate which courts can function as Equality courts". This legislation was the first to give the Magistrates' courts that kind of jurisdiction and that seems to be one of the reasons the provisions were criticised. He said that Magistrates' courts would only be designated as Equality courts if they were suitable to be such. People would also have to be trained to the appropriate level of competency to work within the Equality courts.

These provisions allowed the perception to prevail that the Minister - as part of the executive - could choose the judges he wanted to hear equality cases (which are not yet become operational). The Minister had raised the matter with the Chief Justice and other judges and it was decided that there should not be negative perceptions gleaned from these bills. It was agreed that the designation of the presiding officers to hear such cases would be left to the heads of the courts. The Chief Justice, the head of court or other judges will designate/select the magistrates who can preside in such courts.

The magistrates must be trained before they can preside in cases dealing with matters pertaining to these bills. Only magistrates who have received training may be designated. Mr De Lange said that the judiciary would determine the content of this training. There will be consultation with the Minister when this training has to be included in the budget. The Minister will then have an advisory role since one branch of government will be receiving training while another branch is paying for that training.

Clause 1 substitutes the whole of Section 16 of the 'Equality' Act.

Mr De Lange noted that there are many magistrates' courts all over the country. These magistrates courts are confined to the boundaries of a specific district, but the Minister has the power to give the Equality courts power beyond those boundaries. So Clause 1 extends the geographical jurisdiction of the Equality courts.

Section 16(2) makes it compulsory for a presiding officer in an Equality court to have undertaken the appropriate training before presiding in the matter.

Section 16(4) introduces a new concept. The Director- General must keep a log of who has had the relevant training to preside in an Equality court or who has been designated as a presiding officer in an Equality court.

Discussion
Mr Nyakane (UDM) asked with regard to the extension of the boundaries, if the magistrate's power could be undermined. The presiding officer in the Equality court, which is being run from the Magistrates court, seems to have more authority than the magistrate. He sees the viability in having this system, but the Magistrates' courts are already understaffed and the system must then staff itself to deal with the volume in that district.

Mr De Lange said that staffing would be a management issue. Districts would overlap, there are many districts in one administrative region, but the administrative region has one head. The Committee was reminded that the Regional courts operate in this way.

Mr Mkhalipi (Mpumalanga, ANC), noting the premise that any law impacts more on the ordinary person in the street than the judicial officer, asked if civilian input into the Equality court training programs would prevail.

Mr De Lange replied that as far as the design of courses goes, it is only speculation so far. These courses will be judicial courses and so the courses will be based on law and therefore civilian input will have to be informed - and not be lay-input.

Mr Lever (North West, DP) pointed out that section 34(1)(a) provides for social-context training and this may cater for the concern that Mr Mkhalipi was raising.

Mr Maloyi (North West, ANC) asked how far the investigative committee was with investigating the HIV/AIDS situation in terms of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill.

Mr De Lange said that he had no idea, but that he could find out whether the investigative committee had provided any feedback.

Mr Lever mentioned the guide/manual that was supposed to be given to the public. He wanted to know whether it had in fact been handed out to the public.

Mr De Lange said that he was not sure what had happened to this guide, but that he was certain that one had been distributed.

This drew the discussion on the content of the Bills to a close. The committee decided to deal with these bills in the House in terms of a statement. They would draw up one statement for all three bills.

Ms Kgoali (Gauteng, ANC) commented that she was not sure that one statement for all three bills would be abiding by the rules - even though the three bills deal with the same thing.

Meeting adjourned.