Public Protector Amendment Bill: deliberations;Judicial Officers of Conditions of Service Bill

Furthermore Clause 3(b) which inserts section 2(1)(e) into the principal Act provides that the reference to section 193(5)(a) of the Constitution would be deleted.

Clause 4
This clause mirrors Clause 2.

Discussion
Mr Lever (DA) asked if these proposed amendments were viable according to the constitutional requirements. He proposed that the clause be left as it was in its original phrasing because he foresaw constitutional problems with the proposed amendments.

The Chair referred to Clause 3(b) which inserts section 2(1)(e) and asked why the drafters were removing the reference to section 193 of the Constitution.

Mr Lever (DA) added that section 2(1)(e) as it stood was creating confusion because in his view the Constitution was the dominant document and therefore it had to prevail.

The Chair asked the drafter to advise the Committee if there were any strong reasons why the reference to section 193 of the Constitution should not be retained. He instructed Mr Labuschagne to consult with the Chairperson of the Portfolio Committee on Justice and Constitutional Development on why Clause 3 was amended.

[During this consultation, the Committee were briefed on the Judicial Officers (Amendment of Conditions of Service) Bill]

On his return, Mr Labuschagne informed members about Adv. de Lange's comments on Clause 3. Adv. de Lange had made the following remarks:

- that the intention for the amendment to clause 3(b) was to avoid fragmentation and to ensure that one committee of the National Assembly would deal with those issues listed in clause 3.

- with regards to the provision in section 2(1)(e) reference to clause 193 of the Constitution was a mere repetition of the Constitution. It "would weaken the Constitution" [as there was no point in quoting a constitutional section without the Constitution's limitation clause]. However any committee dealing with that proviso must be constituted as required by the Constitution.

Mr Lever (DA) agreed with the first remark but rejected the latter remark. However to avoid delay in adopting the Bill, he would leave this matter in the hands of the committee.

He then referred to clause 2(f) and argued that a person assuming a position of being a Public Protector had to act independently in the eyes of the public, hence the requirement for potential candidates to have a strong political connection under sub clause 3(e), would weaken the Office of the Public Protector.

The Chairperson explained that the Office of the Public Protector had to be trusted by all South Africans and one would accordingly need people with both legal and government experience.

Voting on Bill
The Chair proposed a formal consideration of the Bill and read the motion of desirability for the adoption of the Bill.

The Committee formally adopted the Bill, however the objection by the Democratic Alliance to clause 2(f) was recorded.

Judicial Officers (Amendment of Conditions of Service) Bill
Mr J de Lange (Legislative drafter) explained to members the proposed amendments to the Bill. He noted in particular that the amendments to Clause19 were aimed at qualifying the deeming provision. He pointed out that if they retained the deeming clause, it would mean that Parliament would never be able to adjust the allowances for magistrates and judges. The amendment seeks to grants powers to the Minister to manage incidental expenditures with regards to judges' remuneration. The intention was to exclude such expenditures from the deeming provision as that would mean that judges allowances could never be adjusted.

Voting on Bill
The Chairperson read the motion of desirability for the adoption of the Bill. He then put the Bill to the members clause by clause:

Clauses 3 - 15 were agreed to
Clauses 16, 18, 19 were agreed to as amended
Clauses 17 and 20 were agreed to
Clause 21 - Mr J de Lange (Legislative drafter) asked if the date of commencement could be removed otherwise it could place some urgency on the matter. The Chair proposed that the date of commencement be removed and the Committee agreed to this amendment.

The Bill was formally adopted with the amendments.

The meeting was adjourned.

Appendix 1:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Public Protector Amendment Bill [B 6B-2003] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

1. On page 4, in line 12, after "Parliament" to insert "; or".

2. On page 4, after line 12, to add:

(f) has acquired any combination of experience mentioned in

paragraphs (b) to (e), for a cumulative period of at least 10 years

Clause rejected

1. That the following be a new Clause:

3. Section 2 of the principal Act is hereby amended -

1. by the substitution for heading of the following heading:

"[Appointment of committee, remuneration] Remuneration, vacancies in office and other terms and conditions of employment of Public Protector"; and

2. by the substitution for subsection of the following subsection:

"(1) The National Assembly shall [in accordance with the rules and orders of the National Assembly, appoint a committee for the purpose of] refer to a committee of the National Assembly the-

(b) nomination of a person in terms of section 2A(3)(a) to be appointed as Deputy Public Protector;

(c) consideration in terms of section 194(1)(b) and (3)(a) of the Constitution of the removal from office of the Public Protector;

(d) consideration in terms of section 2A(9)(b) and (11)(a)(ii) of the removal from office of the Deputy Public Protector; and

(e) [considering matters] consideration of any other matter that can be referred to [it] such a committee in terms of the Constitution or this Act [: Provided that the composition of such committee shall be in accordance with the provisions of section 193(5)(a) of the Constitution].".

CLAUSE 4

1. On page 6, in line 8, after "Parliament" to insert"; or".

2. On page 6, after line 8, to insert:

(e) has acquired any combination of experience mentioned in paragraphs (a) to (d), for a cumulative period of at least 10 years

1. On page 10, in line 34, to omit "17". and to substitute "10".

CLAUSE 18
Clause rejected.

NEW CLAUSE

That the following be a New Clause:

18. Section 13 of the Judges1 Remuneration and Conditions of Employment Act, 2001 is amended

(a) by the addition in subsection (1) of the following paragraphs:

"(cA) the requirements for, and the registration of, not more than one person and the deregistration of that person as a partner of a Constitutional Court judge or a judge with the Director-General:

(cB) the determination, for the purposes of the proviso to section 9(1), 10(1) or 11(7), by a Constitutional Court judge or judge who has more than one spouse, of the division of the amounts referred to in those sections between those spouses in the event of his or her death": and

(b) by the subsection in subsection (1) of paragraph (e).

1. On page 11, in line 26, after "(1)" to insert "Subject to subsection (2)",.

2. On page 11, after line 33, to insert:

(2) The remuneration referred to in subsection (1) does not include (my amount payable

(a) to a magistrate under a regulation made in terms of section 16(1)(a) or (g) of the Magistrates Act, 1993; or

(h) to a judge under a regulation made in terms of section 13(1) (c) or (d) of the Judges1 Remuneration and Conditions of Employment Act, 2001.