Protected Disclosures Amendment Bill: voting; DCS Strategic Plan (sent away)

NCOP Security and Justice

15 March 2017
Chairperson: Mr D Ximbi (ANC: Western Cape)

Meeting Summary

Documents handed out: Committee Report of the Committee oversight in Northern Cape on 31 January 2017; Committee Report on Tshwane correctional facilities

The Chairperson proposed altering the agenda by first allowing the Department of Correctional Services to make their presentation before considering the Protected Disclosures Amendment Bill. His reason was to allow for additional time for other members to arrive who he believed were running late.

The DA and EFF members strongly opposed changing the agenda as this was the third time that the consideration of the Bill would be postponed. There was sufficient quorum of six members present and therefore no reason to further delay consideration of the Bill. The Chairperson was accused of wanting to alter the agenda to allow for additional ANC members to arrive.

The Chairperson then proposed a caucus to resolve the issue. The objections of the DA were noted and that they would take the matter up with the National Council of Provinces Chairperson. Following the conclusion the ANC caucus, the Chairperson proposed adopting the agenda without amendment which was accepted.

In consideration of the Protected Disclosures Amendment Bill and whether it should be passed without any additional proposed amendments, the DA noted that it objected to the inclusion of clause 9B in the Bill and therefore the DA intended to vote against the adoption of the Bill. The DA said that the clause criminalised the intentional disclosure of false information, but that was unnecessary as that kind of conduct already constitutes a crime under existing laws. Its inclusion made no sense in the context of a legal framework designed to protect whistle blowers and would have the effect of discouraging whistle-blowers from coming forward for fear of punitive criminal sanctions. The EFF stated that it would also not support the adoption of the Bill due to the inclusion of clause 9B and therefore was in agreement with the DA.

ANC members stated that the purpose of clause 9B had already been discussed and the purpose was to protect the legitimate interests of employers in the interest of economic growth and commercial activity and criminalise conduct when a person deliberately discloses false information. It was suggested that the DA and EFF were raising objections for the sole purpose of simply raising objections. Clause 9A allowed a court to relieve a person of all criminal and civil liability for a contravention of the Bill if certain requirements were met which would address their concerns fully. Clause 9B dealt specifically with the intentional disclosure of false information and legislators had a duty to ensure people who intentionally disclose false information about companies are punished and that companies are protected against such behaviour.

The DA repeated that the primary issue was that the intentional disclosure of false information is already criminalised and therefore clause 9B is irrelevant but is potentially detrimental to the purpose of the Act. The EFF stated that the Committee should fully deliberate these concerns and not simply vote without a proper engagement.

Before the voting on the Bill, a division was proposed by the DA which was granted. The Committee then voted to adopt the Bill with all ANC members carrying the vote in favour of adoption, while the EFF and DA members voted against.

It was decided that the Department of Correctional Services Strategic Plan presentation be postponed as the Minister and/or his Deputy had once again failed to appear before the Committee. This was a matter both of principle and proper political accountability. All Members agreed that the Department of Correctional Services delegation is not a political body and therefore cannot be held politically accountable by the Committee in the same way as the Minister or his Deputy. The Minister was bound in terms of the Constitution to appear before the Committee in order for them to exercise oversight. It was accepted that the Minister was unable to attend due to his illness, but he could have made alternative arrangements for his Deputy to appear in his place. Members agreed and one noted that during their oversight visit to the Northern Cape various officials from the Department had also expressed dissatisfaction with the conduct of the Minister. The Chairperson should communicate with both the NCOP Chairperson and the Leader of Government Business expressing the frustration of the Committee with the conduct of both the Minister and his Deputy due to their non-appearance.

The Chairperson indicated that he was bound by the decision of the Committee and unfortunately the delegation had to postpone the presentation due to the absence of the Minister or his Deputy. A Member noted that the conduct of the Ministry in bringing the delegation to the Committee without appearing constituted wasteful expenditure.

Meeting report

The Chairperson proposed moving to the second item on the agenda, the Department of Correctional Services Annual Report, and to delay the first item which was consideration of the Protected Disclosures Bill. This would allow for additional time for other members to arrive who he believed were running late.

Mr Michalakis (DA: Free State) opposed the alteration of the agenda. It was completely unsatisfactory as this would then be the third time that the Bill was supposed to be considered by the Committee and his fear was that altering agenda once again would simply delay the consideration of the Bill even further. This is a very poor reflection on the ability of the Chairperson and the Committee Whip to properly perform their jobs. The previous meeting did not provide proper or adequate reasons why the Protected Disclosures Bill was removed from the Committee agenda. If the governing party is unable to pass their own Bill that is a highly distressing state of affairs both for the opposition and for the ANC itself. The adoption of the Bill simply requires a quorum of six members and for more than a month the ANC has been unable to have sufficient number of members present in order to meet that quorum. He was therefore strongly opposed to further altering the agenda simply because the governing party was unable to ensure that sufficient members are present. He requested that the Chairperson discuss this with the Committee Whip, Mr Mthethwa, to finally sort this matter out and do their jobs properly.

Ms T Mokwele (EFF: North West) aligned herself with the comments of Mr Michalakis. At the previous meeting no reason was given for the deferral of consideration of the Protected Disclosures Bill. Now at the present meeting the reason given by the Chairperson was that it is necessary to alter the agenda to wait for other members to arrive. In terms of the rules a quorum of at least six provinces is required and at the present meeting there are around seven provinces present. This matter needs to be resolved and cannot continue to be continually postponed for arbitrary or no reasons at all.

The Chairperson responded that despite the concerns raised by both Mr Michalakis and Ms Mokwele, the Bill would still be dealt with in the present meeting.

Ms Mokwele was unsatisfied with the Chairperson’s response. The agenda had already been set and therefore was no reason to now alter it. The Chairperson does not have the authority to unilaterally change the agenda without the consent of the Members present.

The Chairperson responded that he was simply asking whether the Committee would accept a motion to alter the agenda and was not attempting to unilaterally alter it.

Mr Michalakis said he felt the Chairperson was being disingenuous by stating that the reason for his proposed amendment to the agenda was to allow other members to arrive. As noted by Ms Mokwele a quorum was present and there was then no reason to wait. It appeared that the real intention of the Chairperson was simply to wait for more ANC delegates specifically to arrive and not members of the Committee regardless of political party affiliation. The Chairperson’s reason for amending the agenda to constitute a quorum was therefore not valid.

The Chairperson stated that he made no mention of a quorum; he simply suggested amending the agenda to wait for other members to arrive who are currently on their way to Parliament.

Ms T Wana (ANC: Eastern Cape) asked why the Minister was not present at the meeting.

The Chairperson responded that the Minister is sick and therefore was unable to attend.

Ms Mokwele commented that the question posed by Ms Wana was a separate issue. Why had arrangements not been made for another political head of the Department of Justice and Correctional Services to be present in the Minister’s absence? The Bill had been under consideration for an unreasonably long time. There are various political issues which the Committee requires answers to. In the previous week the Committee had been unable to receive proper answers to various questions which had been asked of the Department. The Acting Minister or the Deputy Minister are both accountable and should then be present as the political heads of the Department.

The Chairperson noted the comments raised, but regardless suggested still amending the agenda.

Mr J Mthethwa (ANC: KwaZulu-Natal) asked why the Chairperson was so insistent on changing the agenda.

The Chairperson reiterated that his reason was to allow other members of the Committee to arrive.

The Chairperson then proposed initiating a caucus.

Ms Mokwele was irritated by the Chairperson’s proposal to caucus. Even the Committee Whip was opposed to an alteration of the agenda. The proposal to caucus was a waste of the Committee’s time.

Mr Michalakis wanted the objection of the DA to be noted regarding the conduct of the Chairperson in that he insisted on altering the agenda and now was wasting time through proposing a caucus. That issue would be raised with the Chairperson of the National Council of Provinces.

The Chairperson and the ANC members of the Committee then left the Committee to engage in a caucus. Following the conclusion of the caucus, the Chairperson proposed the agenda be adopted without amendment and called for a motion for its adoption.

The agenda was therefore adopted without amendment.

Protected Disclosures Amendment Bill: consideration
The Chairperson asked whether there were any comments from the Committee or whether the Bill should be passed without any additional proposed amendments.

Mr Michalakis stated that as raised in previous meetings, the DA is opposed to the inclusion of clause 9B in the Bill. The reason for their opposition is that the clause criminalises workers or employees who intentionally disclose false information. The view of the DA is that the inclusion of that clause is unnecessary as the law already provides for the criminalisation of the intentional disclosure of false information. The inclusion of that clause would then have the effect of scaring off potential whistle-blowers. The DA however has no opposition to the rest of the Bill, except for clause 9B which would have the effect of rendering much of the Bill’s purpose null and void. He requested that the opposition of the DA to that clause be officially noted as well as the intention of the DA to vote against the adoption of the Bill for that reason.

Ms B Engelbrecht (DA: Gauteng) shared the views of Mr Michalakis. The inclusion of that clause would defeat much of the purpose of the Bill to provide for protected disclosures of corruption and maladministration and it was inconsistent for the Bill to provide for a punitive criminal sanction within a legal framework that is designed for the purpose of protecting whistle-blowers. She reiterated that for that reason the DA as a whole intends to vote against the adoption of the Bill.

Ms Mokwele stated that the EFF would not support the adoption of the Bill for the same reason as the DA, namely the inclusion of clause 9B. The EFF had noted its objection to that clause in previous discussions of the Bill and that the EFF’s objection should be duly noted.

Ms Wana stated that the Committee had discussed the issues surrounding clause 9B which deals specifically with the relationship between the company and its employees or workers. The purpose of the clause is to provide a degree of protection to companies and employees by prohibiting people from intentionally disclose false information about their business and activities. The clause seeks to achieve a legitimate purpose and also seeks to protect the interests and growth of the South African economy. She noted that she aligned herself with the same position that had been taken by COSATU on this matter.

The Chairperson asked Ms Wana if she therefore was proposed adopting the Bill as it is, without any additional amendments.

Ms Wana replied that she did have the intention to adopt the Bill as it currently stands. Any person who intentionally discloses false information should be subject to criminal sanctions as provided for in the Bill, and she stood by her earlier comments on that matter.

Mr Mthethwa aligned himself with comments he had made in previous discussions. Employers and companies should be given protection against those who had the intention to blackmail companies by threatening to intentionally disclose false information. He therefore aligned himself with the position of Ms Wana on the adoption of the Bill.

Mr M Mohapi (ANC: Free State) stated that it was unnecessary for members simply to raise objections for the sole purpose of simply raising objections. The concern that had been raised by both the DA and EFF is already covered by the provisions of clause 9A which allows a court to exempt a person from any personal or criminal liability in terms of the Act, if certain requirements are met. Clause 9B specifically deals with people who intentionally disclose false information. Legislators have a duty to ensure that protection is given to people who are wrongfully implicated for false reasons. He was concerned with the position of the DA and EFF who appeared to be adopting the view that those who spread false information intentionally should be given protection in the Bill. He therefore aligned himself with the comments of the ANC members to vote for the adoption of the Bill.

Mr Michalakis took issue with the comments of Mr Mohapi that the opposition was in favour of providing protection to persons who intentionally spread false information. This is a false characterisation of their position. Their view is that those who intentionally disclose false information would not be provided protection in any case as the intentional disclosure of false information is already criminalised and therefore the clause would serve no rational purpose.

The Chairperson questioned Mr Michalakis. Was he of the view that if a person, for example, falsely stated that someone had raped another person that they should not be liable for criminal sanction?

Mr Michalakis replied that in such a case the proper course of action would simply be for the person who was accused to take the person making the allegation to court in terms of already existing laws.

The Chairperson did not comment but noted that there was the additional matter of legal advice which had been provided to the Committee regarding the interpretation of the Bill.

Mr Mohapi stated that current issue did not deal with the Bill’s interpretation, but rather was one of principle. The Bill differentiates between two different people, first one who discloses information which should be subject to protection in terms of the Bill and secondly a person who intentionally discloses false information and therefore would not benefit from such protection. Both the DA and EFF are aware that they lack the numbers to pass any amendments to the Bill and a motion should be made to pass the Bill as it currently stands.

Ms G Manolope (ANC: Northern Cape) noted that the Bill had already been engaged with and legal advice was not necessary. The process at the Committee today was simply to record those who wished to have their objection officially record. The Bill is fully supported by the ANC and therefore they should proceed with its adoption.

Ms Mokwele stated that all members are present simply to vote, but are also present to fully deliberate and debate its contents. She agreed that the Committee had in fact already deliberated on the Bill for an overly long period of time. The EFF’s objective is to properly lodge its objections to its contents. It would not be consistent with her duty to simply vote without first properly engaging and lodging her objection to the contents of the Bill. The purpose of the objection is that once the Bill is presented to the NCOP, the objections would be properly recorded and presented when that later voting in the House takes place.

Protected Disclosures Amendment Bill: voting
The Chairperson noted the objections and stated the Bill would be adopted alongside the amendments contained in clause 1. Any objections would be properly noted.

Mr Michalakis interjected and stated that the DA proposed a division.

The Chairperson noted the call for a division and allowed three minutes for that to occur.

Following the conclusion of the division, the Chairperson put the vote for the adoption to the Bill to the Committee. The ANC members voted to adopt the Bill whilst the DA and EFF members voted against its adoption. The Bill was passed.

Ms Mokwele requested clarity about whether alternate members had full voting powers since Mr Thobejane of Limpopo had been replaced by an alternate member. Do alternate members have full voting powers?

The Committee Secretary replied that in terms of NCOP Rules 151 and 154 the membership of a Committee must be composed to deal with Bill matters within the ambit of s75 and s76. Each party represented in the Council is entitled to a representative in the various select committees.

Ms Mokwele was not satisfied with the answer provided and said she had raised a very simple question. The rule in question is very vague and is silent on the whether an alternate member has voting rights. The rule does not expressly provide that an alternate is entitled to vote for the province which they represent. If the rule does not expressly state voting rights for alternate members then how could the ANC give an alternate member the power to vote? The Chairperson had simply made a decision of his accord.

The Chairperson continued with the meeting. He said the Committee had agreed to the adoption of the Bill which had been referred to the National Council of Provinces by the National Assembly in terms of s75 of the Constitution. The Committee had agreed to the Protected Disclosures Amendment Bill’s adoption with amendment and would be sent to the House, noting the various objections and proposed amendments.

Department of Correctional Services (DCS) Strategic Plan 2017/18
Ms Wana requested that due to the absence of the Minister and the fact that no replacement had been arranged to attend the meeting, that the Chairperson relieve the DCS delegation and that they postpone their presentation to a future date. This was due to both a matter of principle and the fact that the Committee would be unable to properly exercise its oversight role over the Department without the presence of the Minister or his Deputy.

Ms Mokwele made a number of comments in her vernacular language.

Mr Michalakis aligned himself with the comments of the members from both the ANC and the EFF. Whilst the Minister had indicated that he would be unable to attend due to his illness, there was no reason why the Deputy Minister could not then attend in his place. A week ago during Oral Questions not a single question from the DCS could be answered even though it had been it previously been indicated that the NCOP would receive oral replies from the Deputy Minister. No replies however were received from the Department at all. It is unacceptable that the Deputy Minister had once again failed to appear to answer questions. Once again he had failed to make a proper commitment to appear before the Committee despite numerous invitations for him to do so. If the Committee did not take a strong stance on this it would continue to undermine the integrity of the Committee. Whilst the Chairperson may make a decision to continue regardless, he personally would not allow himself to be undermined by the Minister or his Deputy. Whilst the delegation from the DCS is not at fault as they had duly appeared before the Committee, they are not political representatives and cannot be held politically accountable in the same way as the Minister.

Mr Michalakis said the status of the Department is deeply worrying particularly in relation to its budget and several of its institutions. Those are political issues which require political answers and accountability which cannot be provided without the relevant members of the executive being present. He seconded the suggestion of the Ms Wana and Ms Mokwele that the presentation be postponed to a future date when the Minister would make himself available to appear and answer those questions. He apologised to the delegation for making the wasted trip but if the Minister did not want to engage in wasteful expenditure, he should duly making available before Parliament which is required of him in terms of the Constitution.

Mr Mthethwa made a number of comments in his vernacular language.

Mr Mohapi suggested to the Chairperson that it be placed officially on record that the postponement of the meeting was not due to the fault of the DCS delegation present. However during the last oversight visit of the Committee to the Northern Cape, they met various DCS officials who also communicated their various frustrations with the Department to the Committee. He also wanted it placed on record that any decision of the Committee in this regard is based on section 66 of the Constitution which gives the Committee the power to ensure that the Minister appears before the Committee and properly accounts. A message should be sent to both the Minister and his Deputy indicating the Committee’s disappointment in their failure to appear before the Committee once again, which should be also be sent to the NCOP Chairperson and the Leader of Government Business.

The Chairperson communicated to the delegation that he was bound by the decision of the Committee members who had resolved not to hear their presentation until they were accompanied either by the Minister or his Deputy. He would be taking the matter of their non-appearance further as suggested by the Committee.

The Chairperson’s comments were noted by the leader of the DCS delegation who thanked the Committee for their time.

Ms Mokwele stated that unnecessarily bringing the DCS before the Committee was wasteful expenditure and wanted that fact to be recorded.

Committee minutes: adoption
The Committee adopted the minutes of 8 December 2016; 16 and 23 February 2017; and 8 March 2017.

In discussion of the 23 February 2017 minutes, Ms Mokwele questioned whether 23 February was a Thursday which was confirmed by the Chairperson. She said according to the programme the Committee sits only on Wednesdays yet her name appeared as absent at that Thursday meeting.

The Chairperson replied that the reason for the Thursday meeting and her name was on the list was because that date dealt with a special meeting.

Ms Mokwele replied that the meeting was scheduled for Thursday afternoon but she had received an SMS message stating that per the instruction of the Chairperson a meeting was scheduled for that day. This is somewhat problematic as Thursdays are reserved for political caucuses. It should be incumbent upon the Chairperson to check the availability of Members before designating them as absent. Her absence therefore was not due to her own fault as no person had checked her availability prior to the meeting occurring.

The Chairperson noted her comments.

Ms Mokwele took issue with the fact that the minutes reflected her as absent. The minutes could not be adopted without rectifying her concern that she was not properly instructed to come to that meeting and had prior commitments due to her party caucus which occurs on Thursdays. She insisted that the minutes be rectified accordingly.

Mr Michalakis said the minutes indicated that the Chairperson had stated that the Committee would consider the Bill and the Committee would then adopt it at the next meeting, which was not true. The Committee was ready to vote on that day and the reason the voting did not occur was because the quorum was broken. That was why the voting had to be postponed and it should be reflected in the minutes.

Mr Mohapi stated that the true position was that the 23 February 2017 meeting was a briefing and not a voting meeting. He proposed to adopt the minutes.

Mr Michalakis had a dissenting view and stated that Mr Mohapi was misleading the Committee. Why at that date then did all of the ANC members leave the meeting and call him back if the meeting was simply a briefing and not a voting session due to the lack of a quorum?

Mr Michalakis referred the Committee to the PMG report of the 23 February 2017 meeting. The report indicated that the Chairperson had stated that the Committee must deliberate and decide whether to approve or amend the Bill and noted that there was one amendment to consider. The PMG report then indicated that Mr Michalakis had stated that according to rule 153 the Committee could not adopt the Bill if there was no quorum. He then left the meeting and the Chairperson adjourned the meeting after a few minutes. The PMG report is contrary to the events of the meeting as proposed by other members.

Mr Mohapi stated the minutes are captured in such a manner that they are more accommodating. According to item 4.1 of the agenda it stated that a briefing was to be considered. The minutes should then be captured on the basis that the meeting was in fact a briefing.

In discussion of the 08 March 2017 minutes, Ms Mokwele asked how many members from the Northern Cape are permitted to be in a Committee. The Chairperson replied that an alternate of one member was permitted. Ms Mokwele noted that according to the attendance register from 8 March 2017, two members from the Northern Cape were recorded as apologising for been absent at the meeting. An alternate should not be allowed then to apologise.

The comments of Ms Mokwele were noted by the Chairperson.

Ms Wana agreed with Ms Mokwele and said that the minutes should be rectified accordingly which was accepted by the Chairperson.

The minutes were adopted with this amendment.

Committee Report of the Committee oversight in Northern Cape on 31 January 2017
Ms Mokwele again raised the point regarding her absence at the Committee and stated that the time when she was absent from the Committee was when the Committee was scheduled to sit on a Thursday which she was unable attend due to the reasons she had earlier raised. As far as she remembered Ms Manolope was not part of that consultative meeting with the Military Veterans yet was still recorded as been at the community meeting. Was her exclusion done deliberately or it was it simply a result of negligence on the part of the Chairperson? It is very concerning that she had been recorded as absent when she was in fact present and if this continued then she would no choice but to raise this issue with the Chairperson of the NCOP.

Mr Michalakis asked if they had received the Northern Cape MEC’s submission within 14 days and if not, what did the Chairperson intend to do about that?

The Chairperson replied that he would take the matter up with the MEC.

Ms Mokwele noted an error in item 9.1 as the Committee had not accepted an apology from the MEC and had raised that as a matter of concern which should be noted.

Ms Wana agreed that the Committee had not accepted the MEC’s apology. The Committee had simply acknowledged that an apology had been offered but was not accepted.

Mr Mohapi indicated that item 9.1 should record that they had received an apology from the MEC but had not accepted it.

The Committee adopted the report with this amendment.

Committee Report on Tshwane correctional facilities
The Committee adopted the report.

Committee Report on provisional suspension of North West Regional Magistrates Court President
The Committee adopted the report on the North West Regional Court President Seka Monaledi.

The meeting was adjourned.