BMA Authority Bill: response to DHA proposed amendment; IPID Amendment Bill & Child Justice Amendment Bill: response to written submissions; PAIA Bill: briefings; with Deputy Minister; Committee Report on Magistrates Commission’s progress reports

NCOP Security and Justice

06 November 2019
Chairperson: Ms S Shaikh (ANC, Limpopo)
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Meeting Summary

The Committee considered the adoption of progress reports by the Magistrates Commission on the suspension of four judicial officials. It decided that the Commission should wait for the conclusion of the disciplinary processes, or for future progress reports, in order to further consider the matter.

It was also briefed on Parliament’s responses to the written submissions on the Independent Police Investigative Directorate (IPID) Amendment Bill. Parliament had received two written submissions from the Helen Suzman Foundation (HSF) and the IPID on the amendments. The HSF had pointed out some ambiguity in the wording of the amendment, while the IPID had said that the amendment in its current form would not pass constitutional muster.

The Parliamentary Legal Advisor gave a briefing on the responses to the Department of Home Affairs’ proposed amendment to the Border Management Authority (BMA) Bill. The BMA’s proposed role in relation to the South African Revenue Service (SARS) and customs collection had been a major issue in the National Assembly (NA) and the National Council of Provinces (NBOP) during the 5th Parliament, and continued to be a challenge for the Select Committee. Currently, the bill envisaged a role for the BMA in the collection of revenue, and the NA had amended the bill to allow for this. However, the Portfolio Committee on Home Affairs had proposed that the BMA would facilitate the collection of revenue only within the border law enforcement area and at ports of entry.

Parliament’s legal unit’s opinion on this proposal had been that it sought to exclude the BMA from performing any functions related to customs and excise duties and tax legislation, and this was seen as a contradiction. Consequential amendments had to be drafted that clarified the roles of the respective agencies.

Briefings on amendments to the Promotion of Access to Information Amendment (PAIA) Bill and the Child Justice Bill were also provided. The Constitutional Court had given Parliament 18 months to effect the PAIA amendment after it had declared that certain provisions were inconsistent with the Constitution on private political party funding.

Meeting report

Committee Report on Magistrates Commission’s progress reports

The Chairperson recalled that the Committee had received a briefing from the Magistrates Commission on 5 September 2019 about four matters.

It had considered the Magistrates Commission’s quarterly progress reports on:

  • Progress report dated 12 March 2019 on the provisional suspension from office of Ms J F van Schalkwyk, Chief Magistrate at Kempton Park, in terms of section 13(3)(f) of the Magistrates Act, 1993 (No 90 of 1993).
  • Progress report dated 12 March 2019, on the provisional suspension from office of Mr M D Hinxa, the Chief Magistrate, Bloemfontein, in terms of section 13(3)(f) of the Magistrates Act, 1993 (No 90 of 1993).
  • Progress report dated 12 March 2019, on the provisional suspension from office of Mr E S Nzimande, Regional Court President, Kwazulu-Natal, tabled in terms of section 13(3)(f) of the Magistrates Act, 1993 (Act No 90 of 1993), and
  • Progress report dated 12 March 2019 on the provisional suspension from office of Ms L B Freeman, Senior Magistrate, Mossel Bay, tabled in terms of section 13(3)(f) of the Magistrates Act, 1993 (Act No 90 of 1993).

The Committee considered the progress reports and recommended that the Commission should wait for the conclusion of the disciplinary process, or future progress reports, in order to further consider the matter.

The report was unanimously adopted by the Committee.

Independent Police Investigative Directorate Amendment Bill: Meeting Report

Mr Michael Prince, Parliamentary Legal Advisor, briefed the Committee on Parliament’s responses to the written submissions on the Independent Police Investigative Directorate (IPID) Amendment Bill [B 25 – 2018] (National Assembly – sec 75).

Parliament had received two written submissions on the two substantive amendments to the Bill. These had been submitted by the Helen Suzman Foundation (HSF) and the IPID.

The HSF had commented on 6.a.1.a and 6.b.1.b of Clause 2 of the Bill that there was some ambiguity of the language in the draft bill being referred to a Committee of the National Assembly. The HSF had pointed out that the principal act defined a committee as a “managing committee,” and proposed that the word “relevant” be added before “committee” to clarify the supposed ambiguity.

Parliament was of the opinion that there had been no ambiguity, as the sentence made it clear that the committee was a National Assembly Committee.

The Committee had the full right to insert the proposals by the HSF, but the proposed amendments had been sufficient.

IPID’s written submission detailed that the amendment in its current form would not pass constitutional muster. This opinion was based on a Constitutional Court judgement that involved the Executive Director, Mr Robert McBride. In this specific judgement, the Constitutional Court had ruled that certain aspects of the IPID Act were unconstitutional, and had provided the wording to be inserted into the amendments.  Parliament had added the exact wording, so it was inconceivable and unlikely that the Constitutional Court would find its own wording unconstitutional.

IPID had also called for the Minister’s prerogative to dismiss the Executive Director to be voided. It wanted the Committee to be the only legal entity that could decide on the fate of an Executive Director.

This proposal had certain policy implications. The Executive Director of IPID was appointed by the Minister of Police, and thereafter the relevant Portfolio Committee of Parliament had to consider the recommendation before the appointment could be confirmed. Parliament could opt to broaden the mandate received, but this would also require additional public hearings.

The Western Cape Department of Community Safety (WCDCS) had commented on the linguistics of the bill. The WCDCS had proposed that “a resolution” should read “the resolution”. Parliament was not opposed to the proposal, but the feeling had been that these cosmetic changes would not change the spirit of the amended bill.

Discussion

Mr G Michalakis (DA, Free State) requested clarity on whether the bill was silent on the Parliamentary process that had to be followed prior to the removal of an Executive Director.

Mr T Dodovu (ANC, North West) asked what IPID had meant by stating that the bill would not pass constitutional muster. He wanted to ascertain what IPID’s expectations were as they related to the amended bill.

Mr Prince replied that no special Parliamentary process was envisaged, as the bill spoke of a finding being arrived at by the relevant Committee of the National Assembly (NA). The Portfolio Committee of Police was the relevant oversight Committee, and the NA had clear rules on how the Committee in question should operate.

His sense was that the IPID wanted a broader review of the Act. The 5th Parliament had called on IPID and the Police Department to conduct a review of the Act and jointly propose certain amendments in the form of an Executive Bill. This proposal by Parliament had been in view of the capacity constraints at Parliament.

The Chairperson noted that Mr Prince’s comments had been clear, and that the deliberations had been on the comments only. The bill would be discussed in detail at a later stage.

Proposed amendment to Border Management Authority Bill: Meeting Report

Ms Sueanne Isaac, Parliamentary Legal Adviser, briefed the Committee on the Border Management Agency (BMA), and said she would refer to the letter from the Minister of Home Affairs and the actual bill. She would be dealing only with substantive issues and not technical aspects of the amendment. Once the Committee had agreed to the substance of the bill, the technical aspects would be attended to.

The proposed establishment of the BMA and the proposed agency’s role in relation to the South African Revenue Service (SARS) and customs collection had been a major issue from the introduction of the bill. It had been an issue in the NA and the National Council of Provinces (NCOP) during the 5th Parliament, and continued to be a challenge for the Committee.

Currently, the bill envisaged a role for the BMA in the collection of revenue. To deal with this issue, the NA had amended the bill. The Portfolio Committee on Home Affairs had then proposed, under the functions of the Authority in 5 (c) of the bill, that the BMA would facilitate the collection of revenue within the border law enforcement area and at ports of entry. However, 5 (c) had not enjoyed the full support of all the departments involved, and it was thus proposed that there should be a meeting between National Treasury (NT) and Home Affairs (DHA) to iron out any difficulties.

The amendment proposed by the DHA was the insertion of new clauses into clause 2 of the bill on page 5, which dealt with the application of the proposed Act, and stipulated that the BMA would not impede or take over the functions assigned in the Tax Administration Act of 2001.

Parliament’s legal unit’s opinion on this proposal had been that the DHA’s proposal sought to exclude the BMA from performing any functions related to customs excise duties and tax legislation. This was a contradiction, as the NA’s proposal spoke of the BMA facilitating the collection of revenue within the border law enforcement area and at ports of entry.

Consequential amendments had to be drafted that clarified the roles of the respective agencies. Members also had to be cognisant of the practical implications on the ground as they related to the assigned roles of the BMA and SARS at ports of entry.

New clauses, 4 (a) and 4 (b), were also proposed that dealt with the implementation protocols. This was in addition to Clause 27, that already dealt with the implementation protocols.

Discussion

The Chairperson said that there were two issues before the Committee, and that the implementation protocols issue was the easier one of the two. The bill did cover implementation protocols and if necessary, the Committee could consider drafting implementation protocols for SARS as well.

Ms Yolande van Aswegen, Principal State Law Advisor: Office of the Chief State Law Advisor, explained the difference between the implementation protocols in Clause 35 of the Intergovernmental Framework Act and those of Clause 27 in the proposed bill. Clause 27 authorised organs of state to conclude implementation protocols, even though the proposal that had been drafted between the DHA and the NT spoke of “there must be an Implementation Protocol in terms of Section 35” of the Intergovernmental Framework Act. SARS would have to be engaged on how the agency felt about this proposal.

The Chairperson said the Committee would like to see a streamlined bill that did not allow for the implementation protocol to sit somewhere else. When Section 27 was redrafted, Ms Van Aswegen’s comments could be accommodated.

She added that the outstanding issue was the agreement between SARS and the BMA about the practical implementation of the bill.

The Chairperson proposed that the Committee should engage SARS (NT) and the DHA with a view to resolving this impasse.

Mr Dodovu agreed that there was a need to engage the two departments. It was important for these two departments to realise that they both formed part of the same government and that the Committee’s time should not be wasted. For him, the matter was straightforward -- that these departments had to work together as one unit, and not in silos.

Ms Isaac proposed to the Committee that she be allowed to continue working on the bill on the technical issues, and to tweak the relevant amendments.

The Committee agreed.

Briefing on responses to Child Justice Amendment Bill: Meeting Report

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (DJCD), said the Committee had received a briefing on the bill when it was introduced, and that it had been put out for public comments.The only written submissions had been received from the Centre for Child Law (CCL) and Mr M Redelinghuys.

The CCL was generally in support of the bill, and is proposals had been incorporated into the bill that was eventually passed by the NA. He had also explained to the CCL why the the DoJ had taken a decision to take an incremental approach to the matter of criminal capacity.

Mr Henk du Preez, Senior State Law Advisor: DoJ, continued the briefing and said the CCL had made written submissions to the Committee, and reiterated the CCL’s support for the proposed amendments.  The Centre had no further submissions.

The Portfolio Committee considered the submissions by the CCL and adopted some of the proposals made, as reflected in clause15, with the insertion of subsection (1A), in clause 17, with the insertion of paragraph (c) in subsection (1), and in clause 20, with the insertion of paragraphs (aA) and (aB).

Mr Redelinghuys’s written submission proposed that clause 7 amend section 10 of the Child Justice Act, 2008, which currently gave the prosecutor the power to consider the educational level, cognitive ability, domestic and environmental circumstances, age and maturity of a child, among others, when considering prosecuting a child. 

Mr Redelinghuys supported the bill, but requested the Committee to reconsider the deletion of “cognitive ability” from section 10.

The DoJ was of the opinion that section 10(1) listed factors that the prosecutor must consider in determining whether or not to prosecute a child who was presumed not to have criminal capacity.  “Cognitive ability” was one of these factors.

It had been argued that a prosecutor was not equipped or qualified to consider the cognitive ability of a child.  Moreover, cognitive ability was listed in section 11 as one of the factors that must be evaluated (and reported on) by a suitably qualified person to assist the court with regard to the criminal capacity of a child. 

The Minister of Justice and Constitutional Development had determined these “suitably qualified persons” must be psychiatrists and psychologists, per a Government Notice. This factor should thus be removed in section 10, but “considered by a suitably qualified person” would still be retained in section 11.

Discussion

The Chairperson stated that the presentation was quite clear on the issues involved, and thanked the Deputy Minister and his team for the presentation.

The Deputy Minister extended his gratitude to the Committee, and commented that he would appreciate it if the Committee could pass the legislation.

Promotion of Access to Information (PAIA) Amendment Bill: Meeting Report

The Department said the amendment was a requirement as a result of a Constitutional Court judgment. There was some urgency to finalise the matter, as the DoJ was often criticised for taking too long.

The general elections in May had caused a delay in the processing of the amendment, and a draft had been circulated to all political parties before the elections. There had been no responses to the draft.

It had then been suggested that the amendment should be incorporated as a Committee bill, and this was effectively done. As a result of the comments, a revised version had been drafted. This draft would be tabled before going to the NA on 6 November  as a section 75 bill, as it was related to party funding.

At the same time as the Constitutional Court judgment, Parliament had been working on a Political Party Funding Act, a process acknowledged by the Constitutional Court. This amendment was thus consistent with the political party funding legislation of Parliament.

The Constitutional Court had given Parliament 18 months to effect the amendment after it declared that the PAIA was inconsistent with the Constitution on private political party funding. The bill itself was a very short bill whose primary aim was to amend PAIA in such manner that it corresponded with the political party funding legislation.

It also comprised the amendment to two existing definitions and the insertion of a new definition that ensured that a political party was captured as a private body, while page 2 of the bill had to reflect or define what a political party was. That definition reflected the political party funding legislation, and included independent candidates as being defined as a political party.

Clause 3 was of a technical nature, amending the index, and was self-explanatory.

Discussion

The Chairperson welcomed the presentation by the Deputy Minister and DoJ officials, and said that the purpose of the briefing had been to update Members on developments. Once the NA had adopted the bill, it would be made available for public comments.

Mr Michalakis asked whether the Political Party Funding Act had been promulgated yet, and what effect this would have on the amendment process.

Mr Du Preez replied that the Act had been signed by the President as Act 6 of 2018, and the regulations had not yet been finalised. The Act had thus not yet been implemented.

The Deputy Minister added that some regulations had been completed.

He also informed the Committee that the Independent Electoral Commission (IEC) had been conducting workshops on the regulations, to which political parties had been invited.

The Chairperson thanked the Deputy Minister and the officials for the interaction.

The meeting was adjourned.

 

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