Public Protector Amendment Bill; Judicial Officers (Amendment of Conditions of Service) Bill: briefing

The Judicial Officers (Amendment of Conditions of Service) Bill dealt with, inter alia, the appointment and suspension of Magistrates – as well as appointment of suitable persons in emergency situations where no Magistrate may be available. The presentation also touched on the issues that had been raised by the Satchwell and Van Rooyen judgments.

MINUTES
Public Protector Amendment Bill
Mr Labuschagne (Depatment of Justice drafter) read through the Bill and highlighted that:
- Clause 2 : an amendment includes that the Deputy Public Protector must have been a Member of Parliament (MP) for an accumulative period of ten years. The reason for this is that the Act as it stands at present relates to this same time period.
- Clause 3 : ss2 provides that the National Assembly (National Assembly) must appoint a committee to consider the matters in terms of this Act – all amendments will be effected by the National Assembly.
- Clause 4 : amendments here are important in that the new s2A provides for remuneration, appointment and other requirements as well as the procedures for removal of the Deputy Public Protector. The Deputy Public Protector is appointed by the President on recommendation of the Committee of the National Assembly. The appointment may not exceed seven years and the criteria for appointment is similar to that of the Public Protector.
- Clauses 9 and 10: provides for the removal of the Deputy Public Protector for misconduct, incapacity, etc. Removal is on adoption of a resolution by the National Assembly.
- Clause 12: removal is in accordance with the adoption of the aforesaid resolution.

Discussion
A member pointed out that if it became imperative to appoint a person to such a position tomorrow, and the Bill refers to the eligibility of a person with ten years’ experience as an MP – this would exclude members of the post-1994 Parliament who had not been serving for an accumulative period of ten years.

Mr Labuschagne agreed that if an appointment were to be effected tomorrow, MPs of the post-1994 Parliament would not qualify in terms of time, but they may qualify in terms of other provisions such as specialised knowledge. Qualification would take place in the future but not now.

Mr P Mathee (NNP) noted that only the National Assembly decides on the removal, or otherwise, of the Deputy Public Protector. Should this not also include the National Council of Provinces (NCOP) in terms of the Constitution?

According to Mr Labuschagne, the Constitution covers this matter in Section 193(4).

Ms E Lubidla (ANC) required clarification on the difference between the Public Protector and the Ombudsman.

The Chair stated that as far as he could recall the term ‘ombudsman’ was removed for gender reasons. Mr Labuschagne added that the Ombudsman Act had been repealed as far as he was aware.

Ms N Kondlo (ANC) pointed out that the new sub clause 2A(9) required some amplification. Would misconduct result in termination? In addition, sub clause 2A(12) provides that the President may suspend on adoption – would there be reasons first for the removal that are not reflected?

Mr Labuschagne replied that a resolution would have to be adopted and then only would the Deputy Public Protector be removed. Where there is misconduct or incapacity, this must be found as such and then adopted in terms of the resolution.

Ms Lubidla stated that she did not understand the premise that the Deputy Public Protector must have a cumulative period of ten years as an MP. Did this mean that an ordinary person with the correct qualification is not appointed? What would be the position if a ‘qualified’ person is still short of the ten years experience?

Mr Labuschagne stated that ten years is the requirement and is in line with the 1994 Act. He added that one could not qualify without such requirement.

The Chair noted that some feathers had been ruffled in this regard.

Ms J Kgoali (ANC) commented that the mandate of the present Parliament was to repeal all existing laws which were considered to be unsuitable. She felt that if a person could not qualify in terms of time served as an MP (which would probably be the case as the situation now stands), then the particular time period should be amended. As far as she was concerned, the ten year period was a problem and she would require some convincing to agree to it.

Mr Lubidla agreed with Ms Kgoali. Few MPs since 1994 qualified – and if these people were not interested in the position of Deputy Public Protector – then the only people who would qualify were from the old government. Why limit such criteria and, in fact, why not do away with such criteria altogether?

Mr Matthee rephrased his previous question by asking was it not obligatory in terms of the Constitution for the Deputy Public Protector also to be appointed by the National Assembly? It seemed strange to him that the Constitution only referred to the Public Protector. Was it not necessary for the NCOP to be involved? Perhaps the Constitution required amendment in this regard?

Mr Labuschagne replied that the Constitution does not make any mention of the Deputy Public Protector – however, if a provision were to be made that the NCOP be involved, he did not feel that the Constitution needed to be amended.

Mr L Lever (DA) explained that a person who has served ten years in the Department of Justice would have experience as to the role of Public Protector as such a role is considered to be quasi-judicial and some judicial experience is required. An MP would not necessarily qualify if there was an insufficient display of judicial skills. The role of the Public Protector should be that of protection of all citizens. It is important that the public respect the Office of the Public Protector as it would that of a Judge. Such respect is required in order for the Office to function smoothly. One must also watch out for the risk of the position favouring a particular political party as this position cannot be party political.

The Chair gave the example of either Adv Mike Masutha or Adv Johnny de Lange who had practiced as either advocates or attorneys before becoming MPs and accordingly had experience in legal matters. Such people are now MPs but they do not have ten years’ experience – would they then be excluded? The way the Bill stands now it would seem that MPs of the previous dispensation would be favoured.

Mr Labuschagne replied that in order to qualify for appointment one need not comply with all the criteria – complying with only one criterion is required. For example, if a person practiced in the legal profession for ten years, then such person would qualify.

The idea that the ten-year requirement still stood troubled Ms Kgoali. She found this to be discriminating against present Members as the only people who would qualify now for the position would be those of the previous Parliament.

Ms Lubidla returned to the illustration of Ad. Masutha noting that when he joined Parliament he had not completed ten years as an advocate – would this then mean that he would have no chance at the position? She stated that Mr Lever’s thinking was ‘DA thinking’ and that it showed no care for others. Many present Members had been in exile and had had no opportunity of practicing their vocation. According to her, Mr Lever should think about the disadvantaged.

The Chair cautioned Ms Lubidla that she was out of order in her remarks and that she should calm down.

Ms Kondlo felt that the criterion of being a person of legal knowledge and background was not essential as the Office was not a ‘one-man show’ but should feature people of many different talents – including those with legal knowledge. Where legal knowledge is the issue alone this would then discriminate against those MPs with less then ten years’ experience. The Bill, according to Ms Kondlo, should be reviewed to a certain extent to accommodate those who only became MPs after 1994 – or worse, 1999. The Bill would exclude the majority and for this reason, should possibly be revisited.

Mr Lever stated that he would not answer any of the personal attacks that had been levelled at him by certain members. He pointed out that Clause 4 was made up of various sub-parts which could be used to fit a particular candidate. If Adv Masutha had practiced as a lawyer for six years then joined Parliament in 1999, he may then be considered for the position. Mr Lever did not agree that the candidate need not have a legal background. The position was of a technical nature and the respect of the community has an impact on the duty of the Office.

Mr Matthee pointed out that the subclauses of Clause 4 are separated by ‘or’. Therefore one must either qualify in terms of (a), (b), (c) or (d). A candidate would not qualify in any other manner than what was stated. He suggested was it not possible to combine all one’s experience – that is, the best candidate would be one with experience in all spheres.

An ANC member agreed with Ms Kondlo and alluded to Section 182 of the Constitution in respect of the functions of the Public Protector. The Department should investigate the possibility of making the experience criterion between five and seven years.

Mr Labuschagne responded by referring to the original Bill which did not include experience as an MP. This provision was implemented by the Justice Portfolio Committee and the period of ten years was consistent with that of other criteria for such a position. Mr Labuschagne believed that the Portfolio Committee had not thought about the MPs who may not qualify for the position. He concluded that it was not the Department’s initiative.

Ms Kgoali stated that one should not rule out the possibility of amendments by the NCOP.

Ms Lubidla enquired about the position of Public Protectors in provinces.

Mr Labuschagne advised that the duty of the provincial Public Protector was repealed in 1998 – he was not sure what was the action in these provinces. To date, a Deputy Public Protector had not been appointed since 1994.

Mr B Mkhaliphi (ANC) asked why Sections 182 and 183 of the Constitution made no mention of the Deputy Public Protector.

Mr Labuschagne was not aware of the reason why the Constitution did not refer to the Deputy Public Protector. Even in terms of Section 108 where mention is made of the Auditor-General, no mention is made of the Deputy Auditor-General.

Judicial Officers (Amendment of Conditions of Service) Bill
Mr J de Lange, Department of Justice drafter, noted that the Bill made provision for:
- Mechanisms for Judicial Officers remuneration;
- Amendments in terms of the Satchwell and Van Rooyen judgments.

Mr De Lange stated that it would be inappropriate for Judicial Officers to bargain about salaries and conditions of employment. Accordingly, the Bill re-invents the procedures regarding suspension of payments on investigation of Judicial Officers as well as trying to address the situation of appointing Acting Magistrates.

Discussion
Mr P Maloyi (ANC) referred to Clause 1 and enquired as to the previous position in terms of appointment of Acting Magistrates. Also, what was the role of the Magistrates’ Commission – would there only be consultation?

Mr De Lange replied that there were two kinds of appointments:

- an acting appointment in place of the magistrate in the case of an emergency;
- appointment of a person as an addition to the magistrates’ office.
A problem occurs where there no security of tenure – but this situation has now changed and longer appointments must be done by the Minister. By way of explanation, an appointment for a period of five days amounts to delegation of authority where a person is appointed quickly for the duration that the magistrate is unavailable. He continued that the Magistrates’ Commission was not involved in appointments – however, the Commission is informed of vacancies.

Mr Matthee referred to Clause 4(b) – that is, when a magistrate is unavailable for a period of six months, then would the appointment be for a period of six months – or whichever is the shortest? Further, what was the definition of a ‘competent person’?

Mr de Lange pointed out that the term ‘competent person’ was carried over from the previous legislation, but generally such person required an LLB as appropriate qualification if appointed for a period of three months or more. Where a person is appointed for a period of five days in an emergency situation, then the person appointed need not have restrictive requirements but may be able to conduct postponements, etc.

Ms Kondlo referred to Clause 1(6)(b) and enquired whether this was a finished term of office?

Mr De Lange answered by way of an example: when the Acting Magistrate presides over a matter which is then referred to the High Court for review – it may occur that such Acting Magistrate (even where he is no longer an Acting Magistrate) will be called to review the particular matter again – and such person need not be formally appointed again.

Mr De Lange noted that Clause 4 was the second important issue of the Bill, namely suspension. The reason for the clause was to bolster the administrative justice requirements regarding suspension in that every suspension must be determined by Parliament and such person has the right to be heard.

Mr Matthee stated that the way the Bill stands it seemed as though the Minister always acts on the advice of the Magistrates Commission. It appears that once the Commission made a decision then the Minister’s action is merely a formality – would it then be necessary to retain the Minister in such a scenario?

Mr De Lange agreed this was the case but stated that there is the principle of the single judiciary in terms of Section 177 of the Constitution. It was decided that the Commission should not be an executing authority but this rather be the function of the Minister.

Mr De Lange then proceeded through the various clauses briefly. In terms of Clauses 18 and 19, Mr De Lange felt that it was not necessary that such tariff guidelines be dealt only by the Commission in that certain amounts such as travel allowance should be excluded from the protection of the Constitution.

Mr Lever asked if the amendments of the Act – especially Clause 19 – were necessary and if so, were these amendments sufficient?

Mr De Lange responded in the affirmative by stating that such amendments were necessary in order that there be no confusion and to show a clear delineation between the old and the new Act.

Mr Lever referred to Clause 11(3B)(b) which makes use of the word ‘refrain’. Mr Lever asked would it not be necessary to require something more of such a person other than merely to refrain from participating in the Commission’s deliberations. Surely such person should also ‘declare and refrain’?

Mr De Lange replied that this was an interesting point and had been raised in the National Assembly, but the Portfolio Committee then came to the conclusion that this may cause a hornet’s nest – however, this position may be looked at again in the future.

Mr Lever requested if there was any documentation relating to this meeting where the issue was discussed.

Mr De Lange stated he had no such documentation in his possession.

Mr Matthee stated that possibly such report may be available on the PMG website.

The meeting was adjourned.


Appendix:
PP 13

(As on 15/04/2003)

REPUBLIC OF SOUTH AFRICA

______________________________________________________________________________

REPUBLIEK VAN SUID-AFRIKA

03(c)

PUBLIC PROTECTOR AMENDMENT BILL

[B 6—2003]

1. On page 2, after line 6, to insert:

2. On page 2, in line 10, to omit "and".

3. On page 2, after line 10, to insert:

1. That the following be a new Clause:

(i)] admitted, practised as an advocate or an attorney; [or

(ii) lectured in law at a university;] or

1. That the following be a new Clause:

1. That the following be a new Clause:

1. The Deputy Public Protector shall be a South African citizen

1. That the following be a new Clause:

Clause rejected.

1. That the following be a new Clause:

1. That the following be a new Clause:

1. On page 2, in the second line, after "of" to insert "the Public Protector and the".

2. On page 2, in the second line, to omit "Protectors" and to substitute "Protector".