Promotion of Access to Information and Promotion of Administrative Justice Rules: deliberations

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Justice and Correctional Services

30 August 2016
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

The Department of Justice Rules Board briefed the Committee on the Promotion of Access to Information Act, 2000, and the Promotion of Administrative Justice Act.

The Department of Justice and Constitutional Development came before the Committee in April 2016 when a full presentation on the Promotion of Administration Act and the Promotion of Access to Information Act was given. Questions were put to the Department on various issues, the major issue being why the big delay. In 2009 the Rules Board gazetted the Promotion of Administrative Justice Act and Promotion of Access to Information Act rules but they were only brought to Parliament in 2016.

The Department reported that although the rules had been gazetted they had not been promulgated to come into effect, the reason being that extensive training had to be undertaken by judicial officers and court officials as the rules were a new procedure being introduced into the court space.  There were the Promotion of Administrative Justice Act and Promotion of Access to Information Acts, and the basic difference between the two was that the Promotion of Administrative Justice Act dealt with judicial review of decisions that had been taken by institutions, whereas the Promotion of Access to Information Act dealt with an individual going to access information from institutions, in arriving at their particular decisions.

To a large extent the Promotion of Administrative Justice Act and Promotion of Access to Information Act worked quite closely and in order for the Acts to be given life, the rules had to be introduced. The rules were held back for enforcement because of the training and in 2012 Lawyers for Human Rights had brought a Constitutional Court case where they said that the gazetted rules had been unconstitutional. The sum total of the Lawyers for Human Rights objection was that there had already been review processes within the current rules of high courts and magistrates’ courts; why where those not being used for judicial review and bringing applications for access to information? Why was the Department of Justice and Constitutional Development introducing a parallel process? The rules had then been declared unconstitutional and the Department of Justice and Constitutional Development Rules Board had reviewed those rules afresh, considering the critique from the judgement and amendments. The proposed amended rules were sent out for comment to stakeholders, the Rules Board interacted with the office of the Chief State Law Advisor and the rules were further refined. The Minister of Justice and Constitutional Development had signed off on the rules, which was why the Rules Board was before the Committee to present the new revised rules. The Rules Board had aligned the Promotion of Administrative Justice Act and Promotion of Access to Information Act rules to fit-in within the existing high and magistrate courts rules which dealt with judicial review and applications for access to information.

The new rules were quite simplified and they drew distinction from the existing high and magistrate courts rules. They made it much easier for citizens to access the relief they sought. The presentation had all the chronology and had covered in detail the background of the evolution of the Promotion of Administrative Justice Act and Promotion of Access to Information rules.

The Committee wanted to know why the process of tabling the rules had started at the National Council of Provinces. Given the fact that only 30% of Promotion of Access to Information court applications had been granted for access; interaction with civil society was critical because when one tried to do Promotion of Access to Information Act applications with Departments the number dropped to 13% and those figures went back to 2012.  Seemingly therefore there was an issue there and Mr Swart welcomed the tabling of the rules as they had been long waited and concerns of academics and civil society seemed to have been allayed with the revised rules.

Seemingly the main issue still remained though; as to whether when magistrates were hearing a Promotion of Access to Information Act application and they had the record before them as to what degree they gave reasons for refusing access as Ms Alison Tilley from The Open Democracy Advice Centre had raised the issue. Was the Department of Justice and Constitutional Development satisfied that that issue which emerged that judges and magistrates found tricky on how to deal with an applicant that applied for access to a document which the magistrate was sitting with, but could not show it to the applicant; to substantiate the argument was the magistrate obliged to give reasons for refusal and would that then help future applicants with building case law on the matter. One way of doing that was for the judicial office to look at the record and to decide not only on the papers. It knew there was a prescribed Promotion of Access to Information Act applications form, however the challenge was that for example, in a pre-interview job hunting situation where one wrote a letter wanting to know why one had not been shortlisted. Legislation dictated that one was allowed access to information that only related to him/her and that was disadvantageous because the information shared would not be allowing one to determine why out of all the candidates one had not been shortlisted.

How then could information relating to a job applicant and candidate visa-vie the right of other candidates not to have their information published for consumption by private individuals which had been applying for the same job be reconciled?

The revised new rules for PAIA and PAJA were adopted with no amendments.

The Committee further lambasted the Department of Justice and Constitutional Development for not tabling Bills as that made the Committee seem to be not working and reactive rather than proactive especially on the Traditional courts Bill and the paralegals Bills. It mooted tabling the traditional courts bill as a Committee bill if the Department of Justice and Constitutional Development still had not tabled it by the end of the third term. The Chairperson also proposed that the Committee oversight visit the Land Claims court, as he felt the court would discredit the current Government the way it had been processing claims.

Meeting report

Promotion of Access to Information Act, 2000 (or PAIA; Act No. 2 of 2000) and the Promotion of Administrative Justice Act (PAJA)

Mr Raj Daya, Department of Justice, (DoJ&CD), Rules Board, said the DoJ&CD had come before the Committee in April 2016 where a full presentation on PAJA and PAIA had been done. Questions had been put to the DoJ&CD on various issues, the major issue being why the big delay. In 2009 the Rules Board had gazetted the PAJA and PAIA rules but they were only brought to Parliament in 2016.

The DoJ&CD had reported that although the rules were gazetted they had not been promulgated to come into effect, the reason being that extensive training had to be undertaken by judicial officers and court officials as the rules were a new procedure that was being introduced into the court space.   

There were the PAJA and PAIA Acts and the basic difference between the two was that the PAJA dealt with judicial review of decisions that had been taken by institutions whereas the PAIA dealt with an individual going to access information from institutions, in arriving at their particular decisions.

To a large extent the PAJA and PAIA worked quite closely and in order for the Acts to be given life, the rules had to be introduced. The rules were held back for enforcement because of the training and in 2012 Lawyers for Human Rights (LHR) had brought a Constitutional Court case where they said that the gazetted rules had been unconstitutional. The sum total of LHRs objection had been that there had already been review processes within the current rules of high courts and magistrates’ courts; why were those not being used for judicial review and bringing applications for access to information? Why was the DoJ&CD introducing a parallel process? The rules had then been declared unconstitutional and the DoJ&CD Rules Board had reviewed those rules afresh, considering the critique from the judgement and amendments. The proposed amended rules were sent out for comment to stakeholders, the Rules Board interacted with the office of the Chief State Law Advisor (CSLA) and the rules were further refined. The Minister of Justice and Constitutional Development had signed off on the rules, which was why the Rules Board was before the Committee to present the new revised rules. In that regard the Rules Board had aligned the PAJA and PAIA rules to fit-in within the existing high and magistrate courts rules which dealt with judicial review and applications for access to information.

The new rules were quite simplified and drew distinction from the existing high and magistrate courts rules. They made it much easier for citizens to access the relief they sought. Mr Daya said the presentation had all the chronology and had covered in detail the background of the evolution of the PAJA and PAIA rules.

Discussion 

Mr S Swart (ACDP) wanted to know why the process of tabling the rules had started at the National Council of Provinces (NCOP). Given the fact that only 30% of PAIA court applications had been granted for access; interaction with civil society was critical because when one tried to do PAIA applications with Departments the number dropped to 13% and those figures went back to 2012.  Seemingly therefore there was an issue there and he welcomed the tabling of the rules as they had been long waited and concerns of academics and civil society seemed to have been allayed with the revised rules.

Seemingly the main issue still remained though; as to whether when magistrates were hearing a PAIA application and they had the record before them as to what degree they gave reasons for refusing access as Ms Alison Tilley, Open Democracy Advice Centre (ODAC) had raised the issue. Was the DoJ&CD satisfied that that issue which emerged that judges and magistrates found tricky on how to deal with an applicant that applied for access to a document which the magistrate was sitting with, but could not show it to the applicant; to substantiate the argument was the magistrate obliged to give reasons for refusal and would that then help future applicants with building case law on the matter. One way of doing that was for the judicial office to look at the record and to decide not only on the papers; Mr Swart requested a comment from the Rules Board on that matter.

Mr B Bongo (ANC) said he knew there was a prescribed PAIA applications form however the challenge was that for example, in a pre-interview job hunting situation where one wrote a letter wanting to know why one had not been shortlisted. Legislation dictated that one was allowed access to information that only related to him/her and that was disadvantageous because the information shared would not be allowing one to determine why out of all the candidates one had not been shortlisted.

How then could information relating to a job applicant and candidate visa-vie the right of other candidates not to have their information published for consumption by private individuals which had been applying for the same job be reconciled?

Mr David Neke, DoJ&CD, Rules Board, said that once the rules were finalised they were given to the Minister to table to Parliament.  After that tabling the Rules Board awaited invitations from Committees and the NCOP Committee had invited the Rules Board first.

If an individual was not satisfied with the information which the PAIA application form would return, the revised rules were designed such that one could either follow rule 55 of the magistrate courts or the high court rules depending on which forum the litigation would be preferred at.

Mr Daya added that generally the concern was what if there had been non-compliance, what would be the relief? Because Members had said before, indeed there were new rules however; concern and critique remained as to whether they were exhaustive enough in order for the information that was being requested to be realised. And in the event that that did not occur what relief was there for applicants?

By tagging both PAIA and PAJA rules to the existing high court and magistrate court rules that said to the applicant that they could use the existing framework to compel an institution to release information.  If one believed that any information that one would have requested in terms of the revised rules had not been entirely availed to one, then it was one’s right to bring the necessary application based on the current rules in the magistrate or the high courts.

The issue of the forms previously used would disappear once the revised rules were operational as they had been designed merely as guidelines.  

The current rules said that one would bring an application in terms of the relevant high court or magistrate court rules for access to information or for decisions made by a particular institution without relying on the old forms as they had been restrictive in terms of how people could use them. And the impression had been created that one had to comply with the response from that form but the new rules allowed one to ask as wide as possible in terms of what one would be applying for in terms of decisions 

Mr Daya did not know whether the sense from the Committee was that there needed to be an exhaustive forum that could cater for each and every situation. However; he thought the rules were saying to applicants that they could use the current mechanism to bring an application in terms of the existing court rules so that no dual and separate process was being created.

In so far as an applicant believed that the information received had not been fully disclosed. Within the framework of the rules the remedy would be for the applicant to apply for compliance.  In the decision made by an institution, documentation would have been used at arriving at said decision and that was why the applicants PAIA then, whilst an institution was arriving at a particular decision would have been done concurrently and simultaneously; so that the application for access to information could be processed quickly. 

Mr Swart reiterated his earlier comment appealing for the Rules Board to comment.

Mr Daya said the rules could not be definitive in terms of how they would deal with what every circumstance could dictate. Another aspect of difficulty in rulemaking was for the discretion of the court to be in anyway impeded/impugned in the way in which the courts interpreted relief and he knew from practice that what had been developing were practice directives, therefore what Mr Swart was raising was relevant. Mr Daya could imagine what could possibly happen; as there was ongoing training for judicial officers. Moreover, he thought that a request could be made:

  1. To the Magistrates Court Commission that there had to be practise directives issued to all judicial officers in the lower courts with regard to the manner in which they dealt with the release of information in terms of that request.
  2. To the office of the Chief Justice and as Members were aware that there were various practise directives that were issued in various divisions that dealt with the way in which judicial officers were guided with regard to the interpretation of certain rules.  

The possible gap that Mr Swart had referred to; whilst the rules could not be absolutely restrictive in the way in which judicial officers interpreted them. The gap could be cured if one proceeded on that basis and possibly that could be achieved however; jurisprudence would be developing with all new rules that were introduced into the space. Therefore, rules would be tested in so far as their constitutionality was concerned and there was nothing hindering amendment of rules.

In terms of sufficient consultation with civil society; the difficulty with consulting with civil society, short of having to send the rules to the list of role players that DoJ&CD had in terms of comments for all new rules.  The list included certain civil society institutions such as the National Alliance for the Development of Community Advice Offices (NADCAO) however; there was no definitive way where DoJ&CD could tick the box to say that DoJ&CD had consulted extensively on each rule. Certainly DoJ&CD had to manage that better but that consultation process was not something that the Rules Board had full control over. If the concern remained as to whether citizens had been sufficiently consulted and were aware of the new rules certainly there could be a partnership between Parliament and the DoJ&CD in the publicising of that mechanism.

Mr Neke added that the Rules Board had tried consulting as widely as it could reach such that there had been a first round of submission followed by another round, especially for PAIA rules as the Rules Board had had to rework them. The PAIA Civil Society Network had made extensive submissions together with the South African History Archive (SAHA) which had led to another round having to be opened for comment. The Law Society of South Africa (LSSA) as well as the Cape Law Society and the Legislative Development of DoJ&CD had all made submissions on the rules which had all been taken into account when finalising the new PAIA rules and the PAJA rules. Judges from the high court had also submitted comments on the PAJA rules. 

Mr Neke said that the Rules Board aim was for the users of the rules to be the individuals commenting on the rules so that they could be fine-tuned to the best standards considering the inputs as well.

He said the PAJA and PAIA rules were designed in such a way that they could be brought in terms of the relevant rules of court for example, in the high court it was both rule 53 and rule 6 and in the magistrate court it would be rule 55. If for instance, a magistrate was observed to not be complying fully with a request for access to information his/her decision could be taken on further review through application.

Ms M Mothapo (ANC) wanted clarity on the comments regarding consultation on the new rules by the Rules Board as it appeared to her that the Rules Board meant the rules to be used by judicial officers only as they were the only ones deemed to be the users of the rules for PAIA and PAJA. Even consultations with civil society seemed to have accommodated law practitioners without considering rural areas; were the rules not designed to assist them as well?

Mr Bongo said the intention of the PAIA and PAJA Act would have been justice to ordinary citizens particularly those who could not litigate as litigation was resource intensive. From where he was, it seemed that even the revised rules still benefited those who already had access to justice as they could afford litigation. Why had there been two jurisdictions created as magistrates occurred almost everywhere? He reiterated his earlier question regarding reconciliation of an applicant’s right to access information on why the applicant had not been shortlisted pre-interview visa-vie the right of shortlisted candidates to have their private information kept confidential.

How else could the PAIA and PAJA be entrenched such that they were taken to those people it had been intended for by the legislature?
The Chairperson said that sometimes one perceived the legal system of South Africa (SA) as reforming rather than transforming and that that reform process was intended to empower the privileged to access justice. That was revealed by the type of consultations the Rules Board had sought, specifically the fact that it had consulted urban based Non-Governmental Organisations (NGOs), a unit within DoJ&CD on how best to use the legal system. The work of Government then did not seem to be inclusive of the majority of the people in rural areas who had been at the receiving end of apartheid policies of the past.  

Was the current legal system serving the people of SA holistically, especially the majority if regulations were so Eurocentric; because it seemed like the current legal system was perpetuating the concept of two nations, within one society which was quite unfortunate. Possibly the Committee needed to investigate how the rules were developed in the DoJ&CD?

Ms M Pilane-Majake (ANC) said it was quite clear that the rules for PAIA and PAJA were required.  Since Mr Neke had indicated that there was a possibility to further refine the rules that meant that there remained a lot of monitoring to be done going forward so as to make justice accessible for all South Africans.

She was curious how the new PAIA and PAJA rules would be applied when it related to the Protection of Personal Information Act (POPI) as the POPI protected individual and company information from being accessed by anyone. Had the Rules Board applied its mind to that possible challenge?    

The Chairperson said he was not certain about urgency of adopting the rules for PAIA and PAJA as the Committee had waited from 2009 to 2016 and despite the weaknesses the Committee had identified for example, the apparent inadequate consultations of the majority intended populace requiring access to justice. Could the Committee not use the opportunity to fix the flaws it had identified because otherwise the rules would be adopted and another court action would find that there had been insufficient consultations? The whole process would have to be started afresh whereas there were urgent matters before the DoJ&CD that the Committee needed to be finalised in the current term.  

Mr Swart said the court had declared the original rules in 2012 before revision unconstitutional, and therefore to date there were no rules. That then made it urgent that the Committee dealt with the rules for PAJA and PAIA in terms of access to justice. The new rules had certainly improved dramatically as he had read them, and the matter was not the revisions themselves, rather it was informing the broader public about those revisions.   

Ms Pilane-Majake said she would require the Rules Board to speak to what the Constitutional Court had regarded unconstitutional in the original rules and how DoJ&CD had responded to that.

The Chairperson said it also had to be considered whether PAIA and PAJA and their attendant rules were such that the populace could be educated about them through notices in court corridors? Would that be enough; would it reach the people apart from those involved in court proceedings?

There had to be an educational programme within DoJ&CD to go to the people through media and other platforms to educate the people; DoJ&CD was supporting the Foundation for Human Rights (FHR); who was FHR educating and whereas research had shown that less than 40% of South Africans knew about the Constitution of the country and its uses?

The FHR had been established so that DoJ&CD could utilise it to educate South Africans about the laws that governed them.

Mr Daya said there were areas of concern that the Committee had indicated whose responses would be impossible for the Rules Board to adequately address. His reading of the various issues was that the DoJ&CD and the Rules Board had to interrogate the issues and to submit a response to the Committee for its consideration so that they all moved forward in agreement.

Certainly the Rules Board concurred that there could not have been enough done in terms of community awareness about the revised rules. The Chairperson had proposed that the Rules Board engage FHR to see how they could partner to educate communities and the Rules Board had taken that on board and would return to the Committee on that process.

Making the process of PAJA and PAIA rules simpler; the Rules Board knew that if the revised rules were accepted the original rules fell away however; it had to be considered that if the forms fell away as well: did that simplify the process for South Africans? Was that an area that needed addressing in terms of the dual process the court judgement had alluded to, and simplifying the process of accessing justice?  Certainly the Rules Board would respond to that.

The DoJ&CD would have to engage the judiciary in so far as the practice directives that Mr Daya had alluded to and return to the Committee with a response.

Certainly there was homework to be done by the Rules Board as there were gaps that existed which the Rules Board had to address.

The Chairperson said he accepted what Mr Daya had said but preferred that timeframes be attached to the undertakings he was making. There were advice centres in most townships and as it was they were going to Scotland to learn how to put together Paralegal legislation when SA had sufficient knowledge and skills to develop that. Why were those things not happening? That spoke to the need for a viable advice centre network where the Government would be able to easily educate its citizens about the laws. Why was it taking so long for DoJ&CD to complete the paralegal legislation? Anyhow the legislators were the Committee; the DoJ&CD could simply bring the Bills to Parliament so the Committee could deal with them.

The Committee was being let down as in 2017 everyone would be focusing on 2019.

Ms Pilane-Majake said possibly a report of the proceedings of that day with timeframes for the Rules Board and which would indicate that the rules had not been adopted would be needed.

Mr Neke explained that his reference to users of the rules when he had been speaking to consultations had not merely been referring to judicial officers. He had in fact been referring to everyone affected and involved in using the rules for PAIA and PAJA. The refinement of the rules had been both for PAIA and PAJA as the Rules Board had noticed that the previous rules were quite complex for an ordinary citizen such that the language of the new rules and even the process had been simplified to the best ability of the Rules Board, including the doing away of the forms in time.

One of the things that had been found unconstitutional with the PAJA rules had been the aspect of denying someone to be furnished with a record of a decision that had been made by an administrator before making a proper application.  The revised rules allowed requesting of a record and if someone was satisfied with a record that person could then proceed. There had also been an inordinate delay with the PAJA rules as the Rules Board had to wait for the court process; designation of courts and training of clerks before a date could be fixed where the Minister could say the rules could come into force.

To date the revised rules were not operational and PAJA had a code of conduct that had been built within it as part of the revision which then outlined how to educate the general public on PAJA, its rules and all related matters to PAJA.

The Rules Board was there specifically to refine and develop the rules but other units and directorates were responsible for educating the public on the PAIA and PAJA. Rules when made did not have be operational immediately after adoption by Parliament but a precursor could be done to say before rules became operational there needed to be a report on whether the intended users of the rules had been educated enough to understand how the PAJA would work with its attendant rules.

Mr W Horn (DA) said it seemed the Committee was conflating its two roles and responsibilities in its reaction because on the one hand the Committee were the lawmakers and on the other it had an oversight function of the executive and its administration. In saying to the DoJ&CD that the Committee did not like what had been presented in respect of the revised rules for PAIA and PAJA; because from experience the Committee knew the layman was not knowledgeable enough about the PAJA and PAIA and therefore the DoJ&CD had to go and educate that layman about the Acts first before the Committee considered the rules. In that respect, it seemed to him that the Committee was using its powers of oversight to put itself in a position where the Committee did not want to make laws. His plea was for the Committee to separate the two because if as lawmakers the Committee said that there had to be a proper process of public participation before making the laws; then that was all well, especially also having heard what DoJ&CD had said in respect of consultation on rules. 

There was good case law stipulating that unless the DoJ&CD had limited public participation intentionally; the output in terms of public participation could not be deemed to be insufficient if the DoJ&CD had not precluded public participation.

Based on the information before the Committee, there was no way it could lament the inadequacy of public participation. Strictly looking at the Committee’s role as lawmakers it had been duty bound by the fact that the initial rules had been found to be unconstitutional to act. Thereafter as part of the Committee’s powers of oversight could it demand from DoJ&CD to return to the Committee to say what steps had been taken to educate and enable ordinary citizens to know their rights in terms of the PAIA and PAJA rules. The Committee would be abdicating its law-making responsibility if for matters on the periphery of that issue were not prepared to approve the rules as they had been presented.

Mr Bongo conceded that the matter had been delayed and in view of the fact that the rules for PAIA and PAJA had being presented, and that both pieces of legislation had already been passed. The Committee could grant indulgence and approve the rules as rules were simpler to deal with, and he was encouraging the DoJ&CD to go on a serious public participation process going forward. Certainly the Committee could also test the rules by taking public participation on how widely aware the country was about the revised rules. He proposed approval of the revised rules as they were.

Ms Pilane-Majake reiterated her requirement on the Rules Board to tell the Committee what had been found unconstitutional as Mr Swart had alluded to it as well.

Mr Swart seconded Mr Bongo’s proposal as the issues of unconstitutionality had been dealt with in the revised new rules. He also supported the Chairperson’s proposal that DoJ&CD publish the revised rules not only in court corridors but used all media platforms as an exercise in educating the public. Therefore, the Committee would accept the rules and exercise oversight by checking on whether the DoJ&CD had actually notified the public about the revisions.

The Chairperson asked when Mr Swart would suggest the DoJ&CD could return to update the Committee on the progress of that exercise.

Mr Swart replied that it would depend on by when the DoJ&CD could submit a programme of intention on how it planned to market and communicate the rules and possibly that could amount to two weeks as the Committee needed a response on the manner of how the DoJ&CD would market and communicate the newly adopted rules.

The Chairperson said the discussion that had unfolded had been about what the Committee though flawed in the manner in which its work was conducted, as the Constitutional Court had not only found on unconstitutionality as there were other matters that Parliament’s legal advisors consulted the Committee on, which had not been addressed by the DoJ&CD. He supported Mr Swart’s proposal about a programme of intent from the DoJ&CD so that the Committee could also plan accordingly.  The rule of law required legal certainty and Parliament’s stance was that ignorance of the law was no excuse which also meant that there was an assumption that majority of South Africans knew the law.  The Chairperson reiterated the Committee’s stance that it required a time bound programme of intent from the DoJ&CD.

Members of Parliament (MPs) had Parliamentary constituency offices (PCOs) and when MPs were in their constituencies, that was an opportunity for them to educate south Africans about the laws governing the country. Why could the DoJ&CD not produce pamphlets or booklets that could be translated into the vernacular languages so that MPs could assist the DoJ&CD with its educational mandate?

Imperfect as the rules were the Committee would proceed to adopt them, but certainly the Committee would consult to ensure that it was not adopting rules that had not passed constitutional muster.

The revised new rules for PAIA and PAJA were adopted with no amendments.

Draft Committee programme for the 3rd term of Parliament

The Chairperson reminded the Committee that when Parliament opened for 2016 the Committee had noted that its main preoccupation for the past 20 years had been the transformation of the judiciary which had led to the constitutional amendment which had established the new judiciary under the Chief Justice of South Africa. He was concerned however; that reference to the judiciary precluded traditional and community courts which served the majority of the people in SA. Therefore, transformation always related to the legal institution inherited from the West meaning that it had not been acknowledged yet that there was a dual if not a triplicate legal system in SA. The Chairperson had thought it proper then that the Committee interrogate where the Government was in terms of the proposals for the third term as to date the Committee had only been reforming laws of the past rather than transformation. There had been no talk of mainstreaming of the indigenous African legal system, introduction of that legal system into the curriculum of higher learning institutions. There had been no talk about the introduction of indigenous languages as compulsory subjects and requirements for completion of law degrees. There had been no training of judicial officers in indigenous African laws as he was certain that most judges in SA had never studied indigenous African law. How were they then applying law to the majority of the populace without understanding the sense of justice of those people?

There was also the processing of the Traditional Courts Bill and Paralegal legislation where the Committee had been told in October 2015 that the Bills would be tabled in Parliament though they were still outstanding and there had been no indication yet, by when the Committee could expect those pieces of legislation. There were challenges in the Land claims court in terms of the composition of the presiding officers; the performance of that court. The Committee had agreed and Justice Mlambo had suggested that he had a proposal of how to assist in unblocking the blockages at that court however; there had been no provision for a workshop where the Committee could invite Justice Mlambo to do that workshop.

There was also more emphasis on the small claims court rather than community courts whereas rural folk did not borrow money from one another; instead they had stokvels.  Possibly it could be that this was an issue where Committee researchers and MPs were not hearing each other because the Committee would have expected that the research unit would have picked up such things as the Committee had mentioned and programmed them accordingly however; the fact that they did not appear anywhere could suggest that the Committee researchers did not consider Committee inputs seriously. Instead the Committee received a programme that did not include its inputs which translated into the Committee existing to rubberstamp what was tabled by the DoJ&CD. The Chairperson suggested that it was high time that the Committee became legislators rather than rubberstamps of work from the DoJ&CD.  For instance, there had been a conference that had dealt with the National Plan of Action (NPA) on Racism where there had been calls for criminalisation on Racism but there was nothing on the programme about that. As it was, there had been recent incidences of racial tensions at a Pretoria Girls High School where the Chairperson felt that the Committee would be forced to fight with small children about racism because if the Committee had not educated the white children and their teachers about racism how then could they be expected to not be racist. Certainly society was moving faster than Parliament and that had to change because the country talked about criminalisation of racism whereas the DoJ&CD spoke about hate speech.

The Chairperson thought the researchers were supposed to be programming the inputs of Members so that more research could be commissioned or workshops could be organised to deal with those issues. The draft Committee programme for the 3rd term told the Chairperson that the Committee had been wasting its time as there was nothing programmed therein on transformation of the judiciary rather there was reform of the legal system which had been programmed and he was quite unhappy about that.

The Chairperson said as it was the media was bombarding him for a comment on the racial incidences at Pretoria Girls High School; how was he supposed to respond when the Committee had not considered those matters? 

Mr Swart said he understood the Chairperson’s frustration but the Committee had to be careful about laying blame at the hands of the researchers as he felt that they had done incredible work because he felt the researchers had presented a programme of legislation that came from the Executive. Certainly the issues the Chairperson had alluded to needed workshops and further inputs. It was unfair to blame researchers alone, the Committee had to also advocate for the issues that they had picked up for example, on the issue of racism; the draft programme had an item on that. The Committee had to ask the Minister or Deputy of DoJ&CD when the Department would be tabling the traditional courts Bill. The 3rd term was a short session of Parliament after the elections and the Committee’s core function was legislation which the Committee was prioritising and if need be then one or two of the issues the Chairperson had raised could be addressed on other days of the week however; the Committee had to take responsibility. He agreed with some issues the Chairperson had raised and disagreed with others for example, the Pretoria racial incidences; there was legislation in place to deal with those matters, whether it was sufficient or not there was a way of responding.

The programming of the Committee’s work was a priority of support staff with the Committee and since the core functions were legislation, oversight and other inputs: possibly when the medium term budgetary review came the Minister and the Director-General would come to the Committee. The programme before the Committee was for the following few weeks.

Mr Horn agreed with Mr Swart, reiterating a previous sentiment that the Committee would always be faced with reacting to what had transpired in public through the domain of the portfolio Committee through the courts, the Executive and that was unavoidable to the extent that the Committee would not want to deal with said matters as it had its own agenda. Having said that Mr Horn agreed that there had to be space made so that the Committee not only was reactive but proactive in making laws that would suit SAs unique circumstances. The Committee had to cross that bridge to say that for the Committee to effect that; it had to agree that it would sit on Fridays and use all of the Committee days because frankly the Committee’s workload in reacting to what was happening out there which was also its duty was fully taken up in reacting to what was happening in the courts and the Executive. Being proactive therefore meant that the Committee would have to change the way it had been doing things.

Mr Bongo agreed with the Chairperson as the 5th Parliament was in its medium term and being repetitive was frustrating as the Traditional courts Bill had been spoken about since 2014 and it had been supposed to be part of an earlier Committee programme apart from the draft being deliberated at that time however; it was still outstanding though the Committee had requested the Bill from the DoJ&CD. To that extent therefore the Department, support staff and the Committee had to take the blame for that delay in processing of that legislation. There was the issue of cybercrime which the President of the Republic Mr Jacob Zuma had alluded to in his State of the Nation Address (SoNA) 2016 where he had said before 2016 was done, Parliament would have adopted and passed the cybercrime law but that had not been prioritised in the draft programme, which was highly problematic. Possibly what Mr Horn had suggested could work because the work had to be done.    

The inputs of the Committee to the DoJ&CD were the same as the Committee was making on that day which then meant the Committee was working in circles therefore Mr Bongo’s proposal was that the draft programme had to be amended to reflect the be inputs of members, especially the traditional courts Bill.

Ms Pilane-Majake said she thought the idea for the Committee had been approved by the House Chairperson, having realised the workload backlog the Committee had. From her calculation the Committee would perhaps have five additional days compared to the draft programme. As there were days with no plenary and caucus those days could be used.

Adv G Breytenbach (DA) said it was unfair to blame the researchers for the predicament the Committee found itself in as the Committee had had many cancellations of meetings with no explanation before the local Government elections. Additionally, there had been an exceptionally long constituency period and the programme had been approved by the Committee therefore it could not be so complacent.

Certainly the Committee had to sit on Fridays and possibly even on constituency days if that had to be done.

Mr M Maila (ANC) agreed with dedicating more time to Committees work however; the programme had to be reworked to include the Traditional Courts Bill and the Paralegal Bill because his concern was that looking at the end of the draft 3rd term programme he had seen a postscript there showing further work in the 4rth term, without having included what the Chairperson had raised earlier as issues that the Committee had repeatedly raised with the DoJ&CD and support staff.

Ms Mothapo concurred with Mr Maila saying the Committee had been deliberating on the two Bills but until the last page of the draft 3rd programme the Committee’s input had not been captured therein. It was high time that the Committee revisited its resolution from its Strategic Plan. There were also three pieces of legislation that the Committee had to process in the 3rd term as well as addressing the imbalances of access to justice especially, those in the rural areas because by not addressing those two Bills the Committee would be perpetuating the status quo. The DoJ&CD had to consider seriously the inputs from the Committee since 2014. 

The Committee Secretary said the pressure was that there were three Bills before the Committee that it had been requested to finalise as soon as possible as they had been delayed. There was also the matter of Human Rights commissioners which would be vacating office that needed to be prioritised.

On the matter of the Traditional Courts bill the challenge was that the Department had not tabled the Bill in Parliament so even if the support staff scheduled a meeting with DoJ&CD it would be on a progress report on the Bill however; there had been many of those already. Alternatively, the Committee could table its own Traditional Courts Bill. Compounding the problem was that if the support staff kept applying for meetings on Bills that were not before Parliament, the chances were that the House Chairperson would not even approve those as there were Bills already before the Committee that needed processing over and above non-tabled Bills.

The draft programme was designed such that the Committee could be able to finalise two Bills, one of which was the Draft Protected Disclosures Amendment Bill. Certainly the Fridays would allow for the finalisation of that work including the Paralegals Bills as well as the other matters the Committee had raised.

Ms Pilane-Majake agreed that the programme would have to be redrafted according to the inputs from Members as well as processing the three Bills before the Committee.

Mr Bongo proposed a time table for the shortlisting and interviews for the commissioners of the Human Rights Commission.

Ms Pilane-Majake said that the Committee also had to restrain itself from adding too many things that were new to the draft programme as that would defocus the Committee from the programmed priorities.

Mr Horn said from his understanding the Executive had withdrawn the Bill but referred to the support staff for confirmation.

Ms Pilane-Majake said that possibly Members would be required to be in Parliament during recess so that the Committee could interview candidates for the Human Rights Commission.

The Chairperson agreed with the Committee support staff the Committee would possibly have to table the Traditional Courts Bill itself rather than waiting for the DoJ&CD. He further proposed that the Committee oversight visit the Land Claims court as he felt the court would discredit the current Government the way it had been processing claims.

Discussion on criminalisation of racism

The Chairperson said when there was public outcry on social matters; Parliament could not afford to be found as having no clue on how to react. It had to have a response even if it was to say matters were being considered.  For example, when the Committee had been processing the law on paralegals the Deputy Minister (DM) of DoJ&CD had been asked for closing remarks at a conference he had attended. After that there was currently a trip to Scotland where civil society had invited the Committee to go learn about paralegals which was something the Committee had been supposed to be leading in.

Racism was a crime against humanity and South Africans in particular. That could not be unprogrammed or put on the back banner. The Committee could not wait for a Department that was not taking the Committee seriously. The Committee had to prioritise developing legislation itself in that regard.

The Parliamentary Liaison Officer, DoJ&CD, said that the Department had been hoping to take the law on racism quite soon and would be publishing and calling for public comments as well. The Traditional Courts Bill had had a consultation forum where the DM was hoping to finalise the administration so that by the fourth term the Committee could consider that law together with the cybercrimes bill.

The Chairperson said criminalisation of racism had to be prioritised amongst other things however; there was no fight with the DoJ&CD rather the Committee was being accused of not working when issues were being said in public as if the Committee had programmed issues pre-emptively when it had not. The approach had to be that as things were being taken to Cabinet the Committee had to also be appraised so that there was synergy.

The meeting was then adjourned.

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