Public Protector Amendment Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
10 April 2003
PUBLIC PROTECTOR AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J H De Lange (ANC)

Documents handed out:
Draft 2, Portfolio Committee Amendments to Public Protector Amendment Bill
Portfolio Committee Amendments to Public Protector Amendment Bill: Draft 1
Public Protector Amendment Bill [B6-2003]

SUMMARY
The Committee reviewed the revised version of the Public Protector Amendment Bill and made a minor change to the Bill. Additionally, the Chairperson briefly raised the need for a constitutional amendment to address the fact that the electoral system was unchanged with regard to the 2004 Election.

MINUTES
Public Protector Amendment Bill
Adv de Lange began reviewing Draft 2 of the Public Protector Amendment Bill. The draft reflected the changes effected by the drafter, Mr J de Lange of the Department of Justice, as requested by the Committee at the meeting of 7 April.

New Clause 2
With respect to the qualifications necessary to be considered for the position of public protector, he noted that lawyers and law lecturers had been separated, simplifying the layout of the section.

Furthermore, the section stipulated that a person who has been a member of Parliament for a cumulative period of at least ten years can be considered as a candidate for Public Protector. Adv de Lange stated that this clause had been inserted because the Committee believed that a member of Parliament who had served cumulatively for ten years would have the proper experience to be a Public Protector or a Deputy Public Protector.

Mr J Jeffery (ANC) asked if the Committee wanted the Bill to allow a member of Parliament to be able to become the Public Protector or Deputy Public Protector.

Adv de Lange stated that the Committee wanted the clause because of the expertise such a member of Parliament would bring to the position.

Ms S Camerer (DA) asserted that the only problem with a parliamentarian being appointed as Public Protector is that he or she has a known political affiliation. This could be troublesome for an office that should be viewed as apolitical.

Adv de Lange replied that they had to be realistic and realise that someone else who is appointed would not necessarily be less political. A parliamentarian's beliefs may be public knowledge, but that does not mean other candidates would have weaker beliefs. He noted that a parliamentarian appointed as Public Protector or Deputy Public Protector would have to give up all party affiliations and positions.

New Clause 4 (Insertion of Section 2A in Act 23 in 1994)
This clause specifies the method of appointment of the Deputy Public Protector as well as suspension and removal from office. Adv de Lange noted that the process was the same as with the Public Protector.

At the suggestion of Ms F Chohan-Kota (ANC), the Committee decided to add the word 'cumulative' into 2A(4)(c) before the word 'period'. Adv de Lange instructed Mr J de Lange of the Department of Justice to make the change in the Public Protector section as well.

The Committee discussed the process for suspension and removal of the Deputy Public Protector. In subsection (11)(a)(i) the Committee decided to use the word "complaint" rather than "allegation" and the phrase "received by" rather than "referred to" or "tabled in". In that subsection, the Committee decided to take out the phrase "of misconduct, incapacity or incompetence" and replace it with "…any complaint received by the National Assembly as envisaged in subsection (9).

The Committee decided to remove subsection (11)(a)(ii) in order to simplify the section. The sentiment of the subsection would be added into (i) by adding the test "if the President deems the complaint against the Deputy Public Protector of such a serious nature as to make it inappropriate for him or her to perform his or her functions while the complaint is being investigated."

That concluded the deliberations concerning the Public Protector Amendment Bill. The Chairperson stated that the Committee would return to vote on the final version of the Bill on Tuesday or Wednesday of next week.

Proposed constitutional amendment about Electoral System
The Chairperson brought up a separate issue for brief discussion with the Committee and Mr J de Lange. It was his understanding that the electoral system needed to be amended before the elections because as it is written in the Constitution, the clause is provisional. The Interim Constitution, Act 200 of 1993, provided for national and provincial elections in 1994 by universal adult franchise according to a system of proportional representation. Schedule 2 of the Interim Constitution remained in force in terms of Schedule 6, item 6(3)(a) of the Final Constitution. The 1994 electoral system was therefore carried over to the 1999 elections through items 6(3)(a) and 11(1)(a) of the Final Constitution. The provisions of the Final Constitution, however, do not extend beyond the 1999 elections. Therefore, there is no system prescribed for the 2004 elections. It is permitted that an electoral system be introduced through national legislation. The Chairperson believed that the only way to retain the electoral principles in the Constitution was to amend the Constitution.

Mr Jeffery asserted that this issue falls under the jurisdiction of the Department of Home Affairs. It was his understanding that Home Affairs was working on the problem by working toward implementing either a New Electoral Act or an Electoral Amendment Act. [PMG note: see Appendix for Home Affairs Department Legislative Schedule].

In conclusion, Adv de Lange asked Mr J de Lange to enquire and get back to the Committee regarding this issue.

Appendix:
LEGISLATIVE PROGRAMME FOR 2003: DEPARTMENT OF HOME AFFAIRS

The Department intends submitting the following Bills by 2003:

1. Identification Amendment Bill
The Bill introduces the issue of electronic data capturing and verification, in view of the new Home Affairs National Identification system. The Bill is extremely urgent as the initial phase of HANIS is already being implemented. Furthermore it will enhance the effectiveness of identification of citizens, which is one of the main functions of this Department.

It is envisaged that this Bill will be presented to Cabinet in February 2003.

2. Films and Publications Amendment Bill
This Bill aims to address the regulation of child pornography on the Internet as well as providing for prosecution of guilty parties in this regard. This Bill is extremely urgent as the Department has in terms of the Films and Publications Act, an objective of regulating these. The increased incidence of child pornography on the Internet demands this amendment urgently.

It is envisaged that this Bill will be presented to Cabinet in April 2003.

3.Marriage Amendment Bill

The Bill aims to repeal the Marriage Act 25 of 1961, whose provisions are mostly obsolete. The Bill is urgent as the Department needs to urgently put measures to control the problem of fraudulent marriages and marriages of convenience (so-called scam marriages).

It is envisaged that this Bill will be presented to Cabinet in April 2003.

4. Constitution of Republic of South Africa Second Amendment Bill
A Bill has to be drafted to regulate the 2004 elections on the National Assembly and provincial legislatures.

The proposed bill seeks to amend the Constitution of the Republic of South Africa, 1996 as proposed by the minority report of the Electoral Task Team and thereby retaining the present proportional representation system.

It is envisaged that this Bill will be presented to Cabinet in June 2003.

5. Alteration of Sex Description and Sex Status Bill
The Bill aims to provide legal mechanism in terms of which any person who has undergone a sex change operation could apply to the Director-General of the Department of Home Affairs for the alteration of his or her sex description in the National Population Register. Sex change is a reality, which should be accorded legal recognition. This has been supported by the Law Commission's recommendations.

It is envisaged that this Bill will be presented to Cabinet in April 2003.