Briefing by Minister on Immigration Regulations & Forthcoming legislation; Transformation & Restructuring in the Department: bri

Home Affairs

14 April 2003
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

15 April 2003

Mr H Chauke (ANC)

Documents handed out:
Remarks by Mangosuthu Buthelezi, Minister of Home Affairs (Appendix)
Transformation and Restructuring in the Department presentation:
Part 1
Part 2

The Minister explained that he was proceeding with the public participation process laid out in Section 7(1), including the appointment of the Immigration Advisory Board. The appeal continued to clear up legal issues. The Regulations had resulted from a five year consultation process so he did not expect any substantial alteration to the of the Section 7(1) process. The Committee raised concerns about continuing with the appeal, but accepted that this was done on legal advice.

The Minister has not yet received the Bills on the legislative programme. Two have been sent to the Ministry and the other two will be sent by next week. The Election Bill will be dealt with by the Minister for Justice and Constitutional Development since it is a constitutional amendment bill. A Cabinet resolution requires this. It is thus unclear whether the Bill would be dealt with by the Home Affairs Committee or the Justice Committee or both jointly. The Committee sought clarity on why Home Affairs had done the work on the Bill if Justice was to handle it: the resolution is recent and the work had started prior to it with the Electoral Task Team which was handled by Home Affairs.

The Department also briefed the Committee on transformation and restructuring of the Department. They noted that transformation goes beyond racial and gender representivity and includes training, labour relations and fostering good customer service. The Committee was concerned about poor service from the Department. The Department is seriously under-staffed which may contribute to this. UNISA has been asked to examine the matter and the Department will act based on their input.

Briefing by Minister
Immigration Regulations
The Committee asked for a framework and timeframes for the way forward. The framework is laid out in Section 7(1) and includes minimum periods for public comments. The first period has been extended from the minimum twenty-one days to thirty-one days and expires today. After this, draft regulations will be published and will form the basis for the second period of public comment. It cannot be anticipated how long it will take to process comments received during this period. The Immigration Advisory Board will be brought into operation as soon as possible - the deadline is 21 May 2003. Although the Cape High Court's order does not require it, the Minister wishes to receive the Board's advice on the public comments. The intention is to pursue the Section 7(1) regulation making process as quickly as possible.

Since the Cape High Court's ruling has been appealed, its order is suspended and the Immigration Act and Regulations have come into force. Should the appeal reverse the High Court's order then no harm will come from proceeding apace with the Section 7(1) process. Should the appeal fail then the fact that the Regulations are substituted or about to be substituted by Regulations in terms of Section 7 will eliminate or reduce the need to suspend the application of the declaration of invalidity for a further period.

Senior Counsel is of the opinion that the Cape High Court may not have the power to suspend, of its own accord, the coming into force of a law adopted by Parliament and assented to by the President. This created an impossible legal situation which made it necessary to approach the Court to solve the doubts by lifting the order to suspend the coming into force of the Immigration Act. This created a new set of problems in that the Regulations were declared invalid and it would be impossible to administer the Act without the Regulations. So, an appeal was necessary to suspend the effect of the order. Further, two Senior Counsels advised that the Cape High Court's decision is wrong on the merits and it is likely that it will be found that the Immigration Regulations were valid.

Moreover, Government has an important concern that it be determined whether the Cape High Court's ruling on locus standi was correct since this could have immense consequences. In terms of the ruling, anyone would have the power to go to court to challenge the lawfulness of a State action when a law, rather than a provision of the Bill of Rights, is alleged to have been contravened. They could bring the challenge even when the applicant has not been directly damaged or specifically affected by the action.

Finally, the Immigration Regulations in question came out of a five-year process of public participation, stakeholder input and inter-Departmental consultation and co-ordination. Thus, without pre-empting the outcome, one should not expect that the new process of public consultation will substantially re-open some of the fundamental aspects underpinning the present Regulations.

Mr W Skhosana (ANC) asked when the appeal would be heard. He also raised the issue of going the Section 7 route and appealing at the same time - what does the Department want to achieve? It seems that it does not know.

The Minister stated that he thought he had answered the second question fully in his statement. He was guided by the opinion of Senior Counsel.

Prince N Zulu (IFP) noted that many legal technicalities needed to be explained for lay people. He was pleased that the appeal would not delay the Section 7 process and the implementation of the Act.

Ms A van Wyk (ANC) raised a report in the media that claimed that the Act and Regulations had been put into force despite the appeal not having been accepted at the time.

Mr M Ambrosini (Advisor to the Minister) responded that the press had created confusion around this issue - it was simply sensationalism. The facts are simple: on 7 April they approached the Court with an appeal in terms of the rules. On the following day, the administrative procedures had been undertaken, such as obtaining a case number.

The Chair noted that the Committee did not have the capacity to pronounce itself on legal matters. He asked that it agree that the process was ongoing. There was concern about the continued pursuit of the case rather than just Section 7. However, the Minister stated that he is proceeding according to advice and the Committee should accept this. The critical factor was that the people should be involved in the process.

The Minister noted that since no time was wasted pursuing the court case, he could not see any problem - there is no dereliction of duty.

Legislation to be referred to the Committee
The Committee asked when it could expect to receive the legislation it was briefed on at the previous meeting.

The Minister stated that any legislation finalised by Legal Services had to be submitted to him and then tabled in Cabinet for discussion. He could not commit to dates in respect of presenting such legislation to the Committee since he could not predict how long the matter would be before Cabinet. He has been advised that certain Bills will shortly be submitted to him, amongst them are Bills to tighten the legislation on film and publication control to ensure child pornography is dealt with adequately and to address the alteration of sex description. There will also be legislation to deal with identity documents, which will control the release of information from the Population Register to the private sector. This will be complex since potentially conflicting interests had to be balanced.

The Minister did not yet have clarity on whether legislation on the 2004 election would be handled by the Home Affairs Committee, the Justice Committee or by both jointly. The Home Affairs Committee would carry the line function responsibility to deal with electoral matters. However, since the Bill was a constitutional amendment, it triggered the competence of the Justice and Constitutional Development Committee. He was sure that the Committee was familiarising itself with the legislation.

An ANC member raised the matter of which Committee would handle the Bill. At the previous meeting Mr Mogotsi (Director: Legal Services and Acting Chief Director: Legal Services)had informed the Committee that the Bill was with Home Affairs, but at this meeting the Committee is told there is no clarity.

Chief K Morwamoche (ANC) asked if the matter had gone to the Speaker. She could give guidance on who should deal with the Bill.

Adv I Lambinon: Acting Director General, responded that both the Minister and Mr Mogotsi were correct. When Mr Mogotsi had spoken the previous week, the Bill was on its way to Adv Lambinon. When he received it, he recalled a Cabinet resolution that all constitutional matters should go to the Justice Department. Justice confirmed that, because of the resolution and the constitutional effect of the Bill, they must handle it. All the documents had been sent to the Justice Department and Home Affairs has stressed the urgency of the Bill.

The Chair asked how it happened that the Department did the work and then it gets sent to the Justice Department.

The Minister replied that the Cabinet had resolved on 14 March 2003 that all constitutional bills were to be submitted through the Minister of Justice.

The Chair wondered why it had only been identified the previous day that the Bill should go to Justice. It was not clear when bills would come to the Committee but the Committee needed to be prepared to deal with the legislation.

Adv Lambinon responded that the Electoral Task Team had been appointed by the Home Affairs Minister. At the same time, there was a very recent Cabinet resolution. Home Affairs was already doing the work. It was then handed to Justice because of the resolution. Regarding the other Bills, two had already been forwarded to the Ministry. By the following week, all the other legislation will be forwarded to the Ministry. He could not give definite timeframes since the legislation had to go to Cabinet and he could not prescribe to them.

The Chair asked where the Alteration of Sex Description and Sex Status Bill was in the process.

Ms Van Wyk asked where the Marriage Amendment Bill was in the process.

Adv Lambinon replied that both were in the final stages with Legal Services for minor amendments to the text and product quality. They would be submitted by the following week.

Chief Morwamoche asked whether the Bills would meet the deadline for submission to Parliament.

Adv Lambinon replied that he could not say for certain if they were within the deadline but believed that they were, since it was near the beginning of the calendar year.

The Chair noted that nothing from Home Affairs was on the list to be brought before Parliament.

Mr Mogotsi (Acting Chief Director: Legal Services) noted that the Justice Department had stated that it would bring the electoral legislation before Parliament after June, so they were clearly still within the deadline.

Ms Van Wyk responded that this meant that the deadline for the second term had been missed and the Bill would only be tabled in the third term. Would the Committee have to deal with the Bills in the second or third term?

Adv Lambinon replied that he did not have the deadlines with him. All four Bills would go to the Ministry next week. All Bills are for the current year.

The Chair stated that he was concerned that with the election coming up, Parliament may rise early and not have time to pass the Bills.

Ms M Maunye (ANC) noted the Minister's statement that the Committee was familiarising itself with the electoral legislation. She could not recall seeing the legislation in her documents.

Adv Lambinon responded that there were two issues: in the Electoral Task Team report, which the Committee had, the detail is available that the electoral system for the 2004 election would be the same.

The Chair noted that the minority report of the Task Team was adopted on 5 March 2003. Cabinet did not attach it to a Ministry. How was it assigned? Why was it only decided yesterday that it should go to Justice?

Mr Mogotsi replied that the decision to send it to Justice was taken in terms of the resolution.

The Chair asked if anything was happening between the Ministers of Home Affairs and Justice on the Bill.

The Minister replied that in terms of the resolution, the Bill was to be handled by the Justice Department.

Mr Skhosana noted that Adv Lambinon had said that the Marriage Amendment Bill and Alteration of Sex Description and Sex Status Bill were with Legal Services. At the previous meeting, Mr Mogotsi had stated that Legal Services had done all its work and yet now it was said to be working on the Bills.

Mr Mogotsi replied that the Bills had been returned to Legal Services for corrections and will be returned to the Acting Director General.

Briefing on transformation and restructuring in the Department
Mr N Lukhai: Acting Chief Director, Human Resources, briefed the Committee on transformation and restructuring in the Department. Transformation is not just a matter of addressing past imbalances. Education and labour relations are also strong pillars of the process. The process is impeded by the historical legacy, high expectations and lack of co-ordination and penetration.

The Department's recruitment policy aimed to improve representivity. Mr Lukhai presented various tables showing how this had improved since 1994. Overall the Department's staff had gone from being 59% White and 41% Black to 25.5% White and 74.5% Black in that time. Gender distribution had changed little - going from 45% Male and 55% Female in 1996 to 46% Male and 54% Female in 2000. Gender representivity remains extremely poor in the upper levels. Race representivity at upper levels was better, though approximately one third remained White.

The target demographics for 2005 are as follows. Males: 39% African, 6% Coloured, 2% Indian, 8% White and 2% Disabled. Females: 33% African, 5% Coloured, 1% Indian, 6% White and 2% Disabled. 60% of Management should be black and 30% of senior and middle management female.

Unisa have been called in to assist with labour relations and boosting employee morale. They have undertaken a study and are currently analysing the data.

Through training programmes, the Department aims to provide: leadership skills, management skills, customer care skills, computer skills, basic administration skills, writing skills, functional expertise, competency in financial control measures, competency in the code of conduct, competency in security awareness and competency in dealing with diversity.

Chief Morwamoche asked about the closing of the Roslyn office. Was this part of the Department's restructuring? Why was it closed?

Chief Morwamoche noted that there were six regions in Limpopo but only four regional representatives. Will the other two posts be filled through restructuring?

Adv Lambinon responded that the posts in Limpopo would be filled within the constraints of available funds. The Roslyn office was closed based on the number of people visiting the office, which was lower than that of other offices. The closure could be reconsidered.

Ms N Gxowa (ANC) raised the problem of lack of offices in urban areas - rural areas were always mentioned, but what about urban areas? Was the Department considering service provision in hospitals where it was needed for birth registration?

Adv Lambinon responded that the Department was trying to reach the people but had to operate within constraints. They were currently working on a 1995 establishment determination, with 2000 vacant posts. The Department simply could not deliver under these circumstances. Approval had been given to fill a little over 300 of the posts, but even after this the Department would remain highly constrained. They teamed up with other Departments, for example Social Development. However, the situation could then become even more strained since they ended up dealing not only with child support grants but also the elections. The one light point was the success of mobile units going out into rural areas. Regarding the hospitals, this would take human resources that the Department simply does not have. Currently, the Department could not cope with its staff complement. Thus the Minister had developed the plan to devolve services at local government level.

Ms Van Wyk stated that while the figures and targets were welcome, transformation is also about attitude and service transformation. Home Affairs and Safety and Security seemed the Departments most challenged by this since they had been intimately involved in implementing apartheid. Service delivery cannot be improved simply by addressing racial transformation. Attitudes must be changed to ensure equal services.

Ms Gxowa asked if ethics training was given only to new members of the Department. She had recently dealt with an old official and he had not behaved well, simply snatching the papers from her.

Adv Lambinon agreed that transformation is a huge issue, covering structure, personnel and change of attitudes. Attitude training was built into every course given by the Department because it is seen as important.

Mr Lukhai said they had found that while they could teach skills and knowledge, attitude training remained a problem, though this was not uniquely a Home Affairs problem. A number of factors caused this. The Department had thus asked Unisa for assistance. Unisa had completed a survey and the data was currently being analysed so that it could assist the Department.

The Chair noted that the Department has a code of conduct - what happens to officials that violate this? What are the disciplinary measures? He had held a meeting with refugees and their stories were quite horrific. What could the Department officials tell the Committee about the reasons for low morale? The Committee needed this information if they were to argue for increased funding for Home Affairs.

Adv Lambinon responded that they had indications and their own opinions on the attitude problem. He agreed that it was terrible when one went to a public service counter and was not even greeted. One aspect of the problem is the physical situation in which staff has to work. Another is the vast number of vacancies - there have been measured increases in work of 300 to 400%, so the staff was over-worked. However, management might be wrong about what caused the problem so they wanted an objective, scientific account and then to attack the problem based on this.

Mr G Grobler (DA) noted that restructuring is a long-term project. He suggested that in future, restructuring be looked at in detail in a separate session. The Deputy Minister had proposed that the Committee could look at this with the Department. Restructuring cannot be done in a few years. If hospitals and institutions co-operate with the Department then things can move. He cited the case of his grandchild whose birth certificate had arrived within three weeks of birth, the hospital having passed on the details to the Home Affairs office. The Committee should be reasonable - the Department was not unique in not rendering excellent service.

Ms C Gcina (ANC) noted that there is only one Home Affairs office in Port Elizabeth. She asked for temporary offices so that people did not have to spend twenty rand just getting to the office.

Adv Lambinon responded that opening offices was limited by resources. The Department simply could not meet all demands. He agreed that restructuring could be dealt with in a separate session.

Mr M Sibande (ANC) stated that restructuring needed to be fast-tracked, noting that 100% of Deputy Directors General are White males.

Mr Lukhai responded that the 100% White male figure was potentially misleading. There were only two Deputy Director General positions in the Department. Currently only one was filled. The 100% thus represented only one Deputy Director General. This would change to a 50/50 split as soon as a black person was appointed to the other Deputy Director General post.

Ms M Buthelezi-Oliphant (ANC) asked why, if the three vacant posts at Chief Director level were reserved for women, those appointed to the positions in an acting capacity were all men?

Adv Lambinon responded that when appointing someone in an acting capacity, they had to go for the most senior person at a lower rank. They simply could not find women to appoint to acting positions.

Ms Buthelezi-Oliphant recalled the Department's budget presentation, when Adv Lambinon had stated that the Department had saved R88 million, which was to be rolled over. If the Department prioritised employment, it would not have this rollover.

Adv Lambinon replied that the R88 million was rolled over for specific purposes. The Department could not use these funds for personnel.

The Chair responded that it was a question of getting priorities right. When the budget was drawn up, there should not be a rollover.

Adv Lambinon agreed that priorities must be right and that the greatest target is to get funding for posts. The Department planned spending to avoid rollovers. However, events can get in the way of this, for example contractors going bankrupt.

The Chair stated that the Committee had agreed with the Department that constituency offices would be used to assist the Department. He emphasised the need to pass the Marriage Amendment Act speedily to aid women suffering because of fraudulent marriages.

The meeting was adjourned.

Appendix 1:
Cape Town: April 14, 2003

I wish to thank the Chairman for your invitation to attend this meeting of the Portfolio Committee on Home Affairs. I received your April 8 2003 letter soon after it was sent. In spite of the short notice, I have been able to reorganise my schedule to be with you today. I was supposed to be in Mpumalanga for a function, but realized that this may be the last meeting of the Portfolio Committee before the Easter recess. Therefore, in spite of the short notice, I have tried to oblige this Committee and be with you today.

I have received the two questions you wish to pose to me. My answers are going to be brief, as both matters are quite simple and straightforward. Therefore, I will provide you with some answers to the questions which you posed in your letter, to assist in the deliberations of your Committee.

1. The final court ruling on the immigration Regulations and the way forward.

We have taken note of the Government Notice of intentions to adopt regulations, made in terms section 7(1) of the Immigration Act We would however appreciate it if we could receive a clear framework of the way forward, together with time-frames.

The framework for the section 7(1) regulation-making process is set out in that section. In terms of timeframes, that section places minimum periods for public comments which obviously can be extended. I have extended the first period of public comments from 21 to 31 days. I have done so even though there would have been little need for me to give notice of my intention to adopt regulations when I have been ordered by a court of law to do so, and there is general awareness amongst everyone involved in the field that it is my intention to pursue the section 7(1) notice period. I also gave notice of such intention when I spoke in this Portfolio Committee last.

After the expiry of the notice period, which expires today, I will publish draft regulations which will form the basis for the second period of public comments. One cannot anticipate how long it will take to process the comments we receive, as this will depend on their nature and extent.

As I indicated during my prior meeting, it is my intention to bring the Immigration Advisory Board into operation as soon as possible. The statutory deadline for the inauguration of the Board is May 21, 2003. The sooner the Board comes into existence, the sooner I will be able to receive its advice. Even though, according to the Cape High Court, I am not required to do so, I wish to receive the Board's advice to process some of the public comments I receive and to go through the section 7(1) process. As required by statute, the draft regulations will also be tabled in Parliament, which will enable Parliament to adopt whatever process it wishes to make comments towards the final regulations, if it so desires. I say this because it is not for me to dictate or even to suggest whether and how Parliament should deal with the matter.

It is my intention to pursue the section 7(1) regulation-making process as quickly as possible, but without any undue haste and in strict compliance with the minimum deadlines set out in section 7(1). It is important that this process is completed without undue delays so as to bring final certainty into the regulatory framework of migration control.

There is also urgency, because the immigration Regulations which are presently in force and effect, have been declared invalid by the Cape High Court. Because such declaration of invalidity has been suspended by virtue of the pending appeal, there is urgency in completing the section 7(1) regulation-making process, should the appeal fail.

Obviously, no regulatory framework is ever complete. Once the first set of regulations in terms of section 7(1) have wholly or partially replaced the one currently in force, the need to adopt new regulations or amend the existing ones will, undoubtedly, remain a feature of a dynamic system of migration control for many years to come. In fact, both in terms of sections 5 and 7(3) of the Immigration Act, it is the precise responsibility of the Immigration Advisory Board to recommend to me, as the competent Minister, the need to amend regulations or make new ones.

The finalization of the section 7(1) regulation-making process will also be conducive to the finalization of any pending litigation. In fact, the Cape High Court's ruling is still subject to an appeal to both the Constitutional Court and the Appellate Division of the Supreme Court. Pending the finalization of such an appeal, the order of the Cape High Court which found the immigration Regulations invalid because they were not made in compliance with section 7(1) of the Immigration Act, has been suspended. Accordingly, the Immigration Act has now come into force. The Aliens Control Act has been repealed. The immigration Regulations have come into force. The Regulations which were made under the Aliens Control Act have been repealed.

The appeal may find that the immigration Regulations were correctly made and may reverse the Cape High Court's decision. In this case, the fact that such Regulations are substituted by regulations made in terms of section 7(1) will do no harm and, because of the public comments received, will enhance the strength of the regulation-making process and the policy basis on which migration control lies. It on appeal, it is confirmed that the current immigration Regulations were incorrectly made, the fact that they are substituted or are about to be substituted by regulations made in terms of section 7(1) will eliminate or reduce the need to suspend the application of the declaration of invalidity for a further period.

In any case, we will take due care to ensure that the regulations made in terms of section 7(1) contain transitional provisions which validate and/or deal with any matter which was done under the current immigration Regulations, so as to ensure that even if the appeal fails there is no uncertainty over the rights and obligations and legal relations which vested or occurred under the current immigration Regulations.

I wish this Committee to appreciate some of the difficulties which arose out of the Cape High Court litigation, which demands that I, as the competent Minister, tread very carefully to avoid both contravening the law and generating major inconvenience and harshness for our service recipients and customers. The matter has become very technical and I do not wish to bother this Committee with extensive legal explanations. However, it will suffice to say that I am proceeding very carefully and on the basis of the constant advice of two distinguished senior counsels.

Against this backdrop, it must be appreciated that it was absolutely imperative that an appeal be lodged against the decision of the Cape High Court. I began implementing the order given by the Cape High Court, in that the section 7(1) regulation-making process has commenced and is progressing. However, the Cape High Court's decision was based on the suspension of the Immigration Act, which produced the effect of the Aliens Control Act continuing to remain in force and effect together with its Regulations.

I received written legal senior counsel opinion that a High Court may not have the power to suspend, of its own accord, the coming into force of a law duly adopted by this Parliament and assented to and promulgated by the President. This meant that the Cape High Court's order could have been a nullity in respect of preventing the Immigration Act from coming into force, and that such Act might have come into force in spite of such order. This created an impossible legal situation which required me to approach the Court to ensure that doubts could be solved in the only possible way, which was that of lifting the order purporting to suspend the coming into force of the Immigration Act.

However, this created a new set of problems in that the immigration Regulations were declared invalid by such order. lf the Act came into force without Regulations, it would have been impossible to administer migration control in our country. Therefore, it became imperative to appeal such order, in order to ensure that its effects would be suspended and the immigration Regulations came into force, as they presently are. Moreover, I have been advised by the two senior counsels that the Cape High Court's decision on the merits is erroneous and indeed, on appeal, it is likely that it will be found that the immigration Regulations 1 made were, in fact, valid.

Moreover, we, as the Government, have a very important concern of national interest in determining whether the Cape High Court's ruling on the issue of locus standi was correct, as such ruling has potentially immense consequences for our legal system and our Government. Under such ruling, anyone would have the power to go to court to challenge the lawfulness of the action of an organ of the State when a law, rather than a provision of the Bill of Rights, is alleged to have been contravened, even when the applicant has not been directly damaged or specifically affected by such decision.

Having lodged such appeal and pursuing such appeal with the required vigour and confidence in its outcome, we are faced with a different set of difficulties. As I indicated earlier, it is the responsible thing for me to do to try to move the section 7(1) regulation-making process as fast as I can to ensure that there are regulations in place in the unfortunate event that our appeal should fail and our demand to suspend the effects of the order of its validity is rejected by the Constitutional Court or the Appellate Division, as the case might be. Thus the need of allowing for no delays. However, on the other hand, if we succeed in our appeal it will be on the grounds that our reading of the Immigration Act is, in fact, correct, and immigration Regulations cannot be finalized until I have received the advice of the Board. This means that if our appeal succeeds and I follow the interpretation of the Cape High Court which indicates that I can adopt regulations without the advice of the Board when the Board is not fully operational, l might end up producing regulations which are in themselves invalid, merely because l followed the interpretation of the Court, which has been overruled.


Therefore, the prudent thing to do is to move as fast as we can along the lines of this process, including the establishment of the Immigration Advisory Board, but, at the same time, waiting for the Board to be in the position to express its advice before the new immigration Regulations are finalized. By doing so, the new immigration Regulations should be without any legal blemish, both in case the appeal succeeds or fails.


Concluding my remarks on this issue, I wish to stress once again that the present immigration Regulations did not come out of the blue. They are the product of 5 years of public participation, comments and stakeholders inputs, as well as inter-departmental consultation and co-ordination. When people made inputs in this long process of policy-formulation, they obviously made inputs which were both relevant in respect of the drafting of the legislation as well as in respect of the formulation of regulations.


Furthermore, the process of drafting the present Regulations spans over four months and involved hundreds of our officials. In fact, it was driven by workshops and the very effort of training our officials for the new system. Indeed, the formulation of the new Regulations and the training of our officials went hand in hand, allowing officials to be part and parcel of the process both in South Africa and in respect of our foreign offices. Furthermore, a great deal of inter-departmental consultation took place to bring us to where we are.


Therefore, one should expect that the new process of public consultation which is now underway will not substantially re-open some of the fundamental aspects underpinning the present Regulations, even though one is in no way preempting the outcome of this process.


2. Legislation to be referred to the Committee during this year


At the Committee meeting of 8 April we were informed by Mr K S Mogotsi, Acting Chief Director, Legal Services, that various pieces of legislation have been finalised by the Legal Services Division. We would thus like to know when to expect to receive such legislation.


Any legislation finalized by the Legal Services of my Department will need to be submitted to me as the competent Minister for my review. Thereafter, it will need to be tabled in Cabinet for Cabinet discussions. It would be inappropriate for me to commit to dates in respect of the presentation of such legislation as I cannot predict how long any given matter may remain within the Cabinet process. However, depending on the circumstances, as is customary, certain legislation may be published for comments prior to its submission to Cabinet and during the stage in which such legislation is under my consideration. This stage will enable the public and members of this Committee to make inputs in the draft legislation, so that what is eventually finalized may be based on broader consensus before its submission to Cabinet.


Even though it has not yet been formally submitted to me, I have been advised that certain bills will be submitted to me shortly. Amongst them, there is a bill which intends to tighten the legislation on film and publication control in fear that some of the present provisions may contain loopholes which do not adequately support law enforcement against child pornography. There will also be a bill which addresses the issue of sex changes, so that those who under certain conditions choose to change their sex may be registered accordingly.


Moreover, you may expect a piece of legislation dealing with identity documents which will control the release of information from the National Population Registry to the Private Sector. I had directed that this latter piece of legislation be formulated because, as a democrat, I am obviously very concerned about human rights protection and the right to privacy, while I am aware that our National Population Registry is a unique and enormous asset which we need to make available not only to Government, but also to the private sector, as an enabling tool for a variety of transactions. This is a complex balancing of potentially conflicting interests. As I indicated, I have not yet seen the final bill, but I hope that together we will be able to find the correct balance and ensure the adequate degree of protection of the right to privacy while unleashing the potential of the National Population Registry for economic growth and more secure economic transactions.


Obviously, you know about the electoral legislation proposed in the minority report of the Electoral Task Team which was cleared by Cabinet and has been published for public comments. As I speak to you I have no clarity whether this bill will be handled by this Committee or by the Justice Committee, or by both jointly. In fact, the Portfolio Committee on Home Affairs would carry the line function responsibility to deal with electoral matters. However, the bill dealing with the new electoral system has been cast in the form of a constitutional amendment which triggers the competence of the Portfolio Committee for Justice and Constitutional Affairs. Obviously, this is a parliamentary matter in which I, as the competent Minister, do not wish to be directly involved.


Nonetheless, I am sure that members of this Committee have already began familiarizing themselves with this important piece of legislation, which was intended to deal only with the 2004 elections, leaving to the next Parliament the formulation of an electoral system for the 2009 elections and beyond. The intended interim nature of this piece of legislation may still need to be reconciled with its being a constitutional amendment and with some of its provisions. However, the advantage of this piece of legislation is that it comes with massive amounts of explanatory documentation and associated studies, which are contained in the Report of the Van Zyl Slabbert Electoral Task Team and the proceedings of the international conference organized by it last year, which may be relevant to your work should this Committee end up being involved in the processing of this legislation.


In fact, the process leading to the formulation of this piece of electoral legislation has been a complex and involved one which has engaged large debates in civic society. Now the matter rests with Parliament as the final decision-maker and, as I have experienced that this Parliament is exercising its right to rewrite and reformulate legislation, as happened in respect of the Immigration Bill, it might be the case that also in this respect Parliament may wish to apply its own mind to the issue. I am sure this Committee will want to have extensive deliberation on this important Bill and perhaps revisit some of the inputs of civil society and stakeholders which went into its formulation. However, it must be stressed that, even though I do not suggest any undue haste in this matter, the matter is nonetheless urgent if we want to give the independent Electoral Commission the necessary time to organize and deliver a successful election.


I hope that the foregoing may adequately assist the Committee in its deliberations.


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