The Border Management Authority Bill seeks to provide for:
- The establishment, organisation, regulation, functions and control of the Border Management Authority (BMA)
- The appointment, terms of office, conditions of service and functions of the Commissioner and Deputy Commissioner
- The appointment and terms and conditions of employment of official; to provide for the duties, functions and powers of officers;
- The establishment of an Inter-Ministerial Consultative Committee, Border Technical Committee and advisory Committees;
- The review or appeals of decisions of officers;
- Annual reporting;
- The Minister to make regulations with regard to certain matters; and to provide for matters connected therewith.
The Fifth Parliament Select Committee on Social Services advertised the Bill on Parliament’s electronic platforms and radio on 15 September 2017 with a deadline for written submissions on 27 October.
The Select Committee on Security and Justice received a briefing by the Department of Home Affairs on the Bill on 18 October 2019. The Department of Home affairs responded to written submissions on the Border Management Authority Bill on 30 October 2019. The Parliamentary Legal Advisor responded on 6 November 2019 to the Department of Home Affairs proposed amendments to the Bill and further amendments.
The Committee had various engagements with the Department of Home Affairs, Treasury, SAPS and SANDF to ensure that all Departments were satisfied.
The Chairperson of the Committee explained that in their previous meeting they had received a presentation from SAPS. Subsequent to that meeting, she had a discussion with SAPS in which SAPS expressed their concerns with the Bill. SAPS was concerned that Clause 4(2) may present SAPS with many challenges in the future. The Clause reads that “the border law enforcement functions within the border law areas must be performed exclusively by the offices of authority”. The concern of SAPS is that if ever there is a need to make an arrest and the sub-clause is implemented, those searches and arrests will be challenged in court. This effectively renders the police powerless in that area.
The Parliamentary Legal Advisor explained that there was a legal opinion that emphasises that the BMA is established and to complete an integrated Border Law Enforcement within the Border Law Enforcement Area and at points of entry. Cooperation and coordination are Border Management matters in general. That is the intention of the BMA and the BMA will continuously have due regard to the functions of all other organs of state, Departments and agencies.
A legal advisor briefed the Committee on the matter of restoration of Advocate Mrwebi and Advocate Jiba following their removal by the President from the NPA. The Committee deliberated on whether or not the removals were fair based on the Constitution and the President’s decision should be endorsed. It was the opinion of the Members that the removals were based on reason and fairness.
Committee deliberation on the Border Management Authority Bill
The Chairperson concluded a recap on the Committee’s previous meeting on the Border Management Authority Bill. In their previous meeting they had received a presentation from SAPS. Subsequent to that meeting, she had a discussion with SAPS in which SAPS expressed their concerns with the Bill. She requested that they provide the Committee with a written document.
It appears that the concerns of SAPS had also been raised with the previous Committee on Social Services. In the interim, the Department made sure that the issues that had been raised by SAPS also be forwarded to the legal team, which included the legal advisers of both the Committee and the Department of Home Affairs. The issue the issue that was raised by the Committee related to the clause that dealt with the word “exclusive’ and hence they deliberated on that in the meeting. However, one of the issues raised by the Social Services also related to the issues raised by SAPS and SADL. It was indicated by the Department that they have an agreement between the dept. of home affairs and SAPS. What the Committee requested from the Department was that they provide the Committee with those agreements that had been tabled in the previous meeting. In that document as well, certain concerns by SAPS have been addressed.
She requested that the Department to respond to those issues.
Mr E Mthethwa (ANC; KwaZulu Natal) sought clarity on what exactly the Chairperson what trying to say. Is she saying that there are concerns that SAPS have? If so, she must reMember that in the previous meeting they had agreed that they would ensure that all the stakeholders agree on the matter. If there is still a section that is still unclear, he proposes that the SAPS be given a chance to express those concerns to the Committee.
The Chairperson explained that Mr Mthethwa was in fact repeating what she had said. The approach that the Committee has been taking in terms of responses to comments on the Bill had always been that the Department would respond to those comments. Perhaps to take the process forward, the Deputy Minister should comment on the various issues.
Mr Njabulo Nzunza, Home Affairs Deputy Minister, shared his comments on the matter. He explained that with regards to the Bill and the issue of SAPS, they foresee no issues. This is based on the fact that there was a formalised agreement that was entered into. The issues that seem to have surfaced are new to the Department – they did not know about them. For the Department, this is a bit of a problem because there was an agreement reached and he does not understand where these issues are coming from.
Ms Z Ncitha (ANC; Eastern Cape) expressed her concern about proceeding with the discussion when the Committee does not have the presentation document of the raised concerns from SAPS. She suggested that they sort out the issue of the presentation of those concerns before they proceed with the discussion.
Ms P Mmola (ANC; Mpumalanga) expressed that she was in agreement with Ms Ncitha.
The Chairperson considered the suggestion.
Mr I Sileku (DA; Western Cape) expressed his concern based on the previous engagement with the Department. It puts out certain disadvantages when the Committee engages when they do not have any information. The work that they are engaging on is the work of the 5th Parliament where certain issues have been raised, especially about the various Departments that should reach a consensus on a particular issue before they present to the Committee to deliberate. The Committee thought that they had made progress, and now they are moving ten steps backwards. This is a great concern. He worries that this discussion will have the outcome that they want. It is great when people sit around a table and agree on something, however when it comes to implementation that is when issues arise.
The Chairperson explained that the Committee was under the impression that all of these issues had been resolved. Which is why they had demanded that there be an agreement between SAPS, the Department of Home Affairs and SANDF as these are the key Departments. In addition to that, the Committee also proposed an amendment to the Bill especially regarding the Intergovernmental Relations Framework to make it mandatory.
She further explained that it is not the Committee’s responsibility to coordinate the Executive. The expectation is that all these issue get resolved at a policy level and then the Department comes to the Committee with the consolidated version. This Bill has been having this kind of history and as a result it has been a back-and-forth process.
It is unfortunate SAPS did not raise their issues in the previous meeting and she is hopeful that the Department will respond accordingly and the Committee will take process from there.
Mr Mthethwa reiterated that Ms Ncitha’s proposal was that the Committee should hear the concerns of SAPS. Once they have heard the concerns, they can then move forward with the deliberations. It is futile to deliberate on concerns that they do not know as they would have no clue how crucial those concerns are. He suggested that SAPS be given a chance to present their concerns. At the end of the day, the Bill should be functional and should not create any problems within Departments.
The Chairperson considered the suggestion and proposed that a representative from SAPS present their various concerns before the Committee.
Lt. Gen. Sehlahle Masemola, SAPS DNC: Policing, proceeded to express the concerns of SAPS. He explained that SAPS supports the implementation of the BMA. They are aware that there were agreements that were made between the Department of Home Affairs and SAPS, however when those agreements were made, SAPS indicated that when the legislation is finalised they would be able to take further cognisance of the matter. It is the belief of SAPS that an agreement does not override the law.
The concerns that were raised are more about ensuring that later, there are no problems of operations that arise. The word ‘exclusively’ which was raised as a concern suggests that that specific area would be solely for the Border Law Enforcement officials or authority. This means that it is a no-go area for SAPS. It is the intention of the legislation that there be an area in South Africa in which SAPS is restricted to exercises their mandate. He handed over to his colleague to further explain the matter.
Brig Bert Van Der Walt, SAPS Legal Advisor, explained that the submissions that were forwarded to the Committee focus on a wide range of issues, of which SAPS had some concerns about. He thinks that 99% of those concerns were addressed with the amendment by the Committee, in terms of the implementation protocol.
The only issue that SAPS needs to address with the Committee is that of Clause 4, sub-clause 2 on page 5 of the submission. As the Members know, the previous Committee wanted to remove the word ‘exclusive’ which is not the contention of the SAPS. The sub-clause reads that “the border law enforcement functions within the border law areas must be performed exclusively by the offices of authority”. The submission that SAPS made was that the words “with due regard to the functions of the South African Police Services” be added at the end of that sub-clause.
The argument of SAPS is that the addition of the words “with due regard to the functions of the South African Police Services” will not detract from the functions and power of the Border Law Enforcement officers. However, it will enable SAPS to perform their necessary function as per their constitutional mandate. For instance, if there is a syndicate that is being investigated by the DPCI, for example the smuggling of illegal substances, and there is a person in the Border Law Enforcement area that needs to be arrested, the effect of the original sub-clause indicates that SAPS will not be able to arrest that person.
He explained that the South African Police Services Act 68 of 1995 contains a provision in Section 13(6) that allows the South African police to arrest a person where it is reasonably necessary for the purpose of control over the illegal movement or persons or goods across the borders of the Republic. This function is also to be exercised within that restricted area. This concludes that there is an apparent conflict between the sub-clause and Section 13(6) of the police Act.
The concern of SAPS is that if ever there is a need to make an arrest and the sub-clause is implemented, those searches and arrests will be challenged in court. This effectively renders the police powerless in that area.
He reiterated that the words “with due regard to the functions of the South African Police Services” will not detract from the authority of the BMA officers.
The Chairperson allowed the Department of Home Affairs to respond to the comments of SAPS
Mr Deon Erasmus, DHA Chief Director: Legal Services, explained that it is important to give a background of the matter, to understand how the agreement came about. On 8 September 2016, there was a meeting wherein a discussion regarding those issues took place. Brig Van Der Walt has indicated that 99% of the issues have been covered in terms of the Implementation Protocol.
He would like to share with the Committee that following that meeting, there was an agreement between the Commissioner of SAPS and the Director General of DHA at that point in time. In terms of that specific agreement, it was said the DHA and the South African Revenue Services are in agreement that consensus was reached on the following key issues pertaining to the Border Management Authority: (1) Constitutional matters – the BMA Bill 2016 is not unconstitutional regarding its implications for SAPS’ classical policing for border control or policing functions and those substantive provisions are necessary to the current BMA of 2016 on this matter; (2)Legislative matters – the BMA 2016 does not affect the classical policing functions of SAPS. The SAPS will, despite the establishment of the BMA 2016, continue to deal with the classical policing functions that relate to crime investigation, whilst the BMA will deal with the Border Law Enforcement functions pertaining to the illegal movement of persons and goods as envisaged in the Bill. Subject to the above, classical policing will be a concurrent function between the BMA and SAPS within the ports of entry and Border Law Enforcement areas and; (3) SAPS’ specific functions – various SAPS specialised functions, such as investigations and intelligence gathering, will remain in SAPS and will neither be transferred nor be assumed by the BMA. SAPS police stations currently located within the ports of entry or Border Law Enforcement areas will remain in place after the establishment of the BMA. The general mandate of the SAPS for classical policing remains unaffected while the BMA will assume primary responsibility for Border Law Enforcement.
Following the discussions that took place in the Portfolio Committee and even the previous Select Committee, there was even a legal opinion that was prepared based on request by the Select Committee at the time. That opinion is dated the 16th of February 2016. The issue of Clause 4(2) was addressed in the legal opinion. SAPS indicated that they are concerned because of what Section 205 of the constitution implicates. Section 25 of the Constitution relates to the police service. What is clear is that Section 205 does not provide SAPS with a specific mandate that relates to the borders. Except to state the National Legislation must establish the powers and functions of the police service and it must enable the police service to perform its responsibilities effectively. Section 205(3) of the Constitution states that the objects of the police are to prevent combat and investigate crime; to maintain public order; to protect and secure the inhabitants of the Republic and to uphold and enforce the law. Section 205(2) of the Constitution states that national legislation must establish the powers and functions of SAPS. This must be established in terms of National Legislation, which is indicated in Section 13(6) of the SAPS Act. In this regard, the legal opinion’s view is that Section 13(6) of the Act provides only for certain border control functions for SAPS where it is necessary. The legal opinion goes on to say that in the Constitution itself, the Law Advisement found that there is no specific reference to the border control functions of SAPS. They then turned to the interim Constitution of the Republic of South Africa and in terms of Section 215 and 218(1) of the interim, those sections have not been repealed. Section 215 of the interim Constitution list powers and functions of SAPS, but that section does not specifically refer to border control. It does make reference to the preservation of internal security. In paragraph 12 of that specific legal opinion, the State Law Advisers indicated that that specific section does not specifically indicate how the functions may be assigned to SAPS, except that it states that it may assigned by Law.
It should be noted that, SAPS does not have like the SANDF has exclusive performance of functions as set out in Section 13(6) of the SAPS Act, since there are other Departments and agencies within the Border Law Enforcement area where they perform certain functions within the Border Law Enforcement area itself.
The functions of the BMA as enlisted in Clause 5 of the Bill consist of facilitating, managing and coordinating the matters that take place within the Border Law Enforcement area and at ports of entry. There are three terms that have been defined in the Bill; (1) the Border Law Enforcement Functions; (2) the Border Law Enforcement Area and; (3) the offices that that will be performance the functions. There are specific functions by specific offices which do not take away the functions that need to be performed by SAPS.
The conclusion that was reached by Office of the State Chief Advisors regarding the issue of Clause 4(2) is that the clause cannot be interpreted to exclude police functions being performed within the Border Law Enforcement Area and the ports of entry. It is an understanding that there will be cooperation between the BMA and SAPS in terms of the performance of Border Law Enforcement functions and policing functions within the Border Law Enforcement area concerned. The clause may be interpreted to exclude SAPS when it needs to act in terms of Section 13(6) of the SAPS Act. The conclusion that was reached there is that the SAPS will not be prevented or excluded from performing policing functions within the area and the point of entry. Instead there will be an integrated border law enforcement within the border law enforcement areas and the point of entry. The BMA will be the lead agency in charge of Border Law Enforcement functions clearly defined within that area. There may be instances where the SAPS will be performing its policing functions in terms of Section 13(6) of the SAPS Act concurrently with the BMA, but in those instances the BMA will cooperate with the SAPS and coordinate the functions performed within the Border Law Enforcement Area and at ports of entry.
The Legal Opinion goes on to say that the functions of SAPS as far as border control is concerned are contained only in Section 13(6) of the SAPS Act which is ordinary legislation which can be amended or repealed by any other legislation.
State Law Advisers indicated that they are not in favour of the proposals by SAPS to exclude the police functions of SAPS as contemplated in Section 205(3) of the Constitution from the application of the BMA Bill. They are not in favour of the amendment of Clause 4(2) of the Bill as proposed by SAPS.
To conclude, the legal opinion emphasises that the BMA is established and to complete an integrated Border Law Enforcement within the Border Law Enforcement Area and at points of entry. Cooperation and coordination are Border Management matters in general. That is the intention of the BMA and the BMA will continuously have due regard to the functions of all other organs of state, Departments and agencies.
Brig Van Der Walt expressed that SAPS is in total agreement with what M Erasmus had just said. He wanted to add that the legal opinion that Mr Erasmus referred to was provided in a different context where it was interpreted as if SAPS want exclusive border control, which is not the case. They are in agreement with Mr Erasmus, except for the fact that the police are mandated to do certain arrests and search procedures in terms of the Criminal Procedure Act and that those procedure may be challenged if there is an interpretation other than that of the State Legal Advisor in court. This may present certain jurisdictional challenges for SAPS.
He reiterated once more that the words “with due regard to the functions of the South African Police Services” will not in any way detract from the authority of the BMA authorities.
Mr A Gxoyiya (ANC; Northern Cape) expressed that he would need to be educated as he feels that this Bill has been coming on for a very long time.
Mr S Mfayela (IFP; North West) interjected by suggesting that Members be given a chance to say something on the matter before they comment, given that they do not have a legal adviser.
The Chairperson considered the suggestion and allowed the Parliamentary Legal Adviser to give some comments.
Ms Suanne Isaac, Parliamentary Legal Adviser, explained that she thinks that the issue is whether the Bill clearly states what the intention is. The intention is to create a BMA, but not to override the functions of SAPS. Her reading of it is that it merely defines that the BMA will have exclusive functions in a particular area and it does not to exclude SAPS from concluding its functions. Specifically, the functions of the BMA in Clause 5(d) say that the functions of the authority are to cooperate and coordinate border law enforcement functions, so that inherent within the functions of the BMA is they must coordinate with SAPS.
Mr Gxoyiya noted that to a certain extent he is getting clarity. The BMA has been coming for a long time and the various stakeholders were given an opportunity to engage with each other. They agreed on certain decisions, but when they went home they started to have new plans and then they come with new concerns. This becomes a problem because then they will never resolve the issue. There were issues that were raised, addressed and attended to. To his knowledge, there is law that governs trafficking between two countries, which is border law. It had got nothing to do with crime as it regulates the inflow and outflow of goods and persons in between countries. When one speaks of border law enforcement, one is speaking specifically to that. There was an example made by SAPS has got nothing to do with border law enforcement, but rather crime. He cannot see SAPS being prohibited from performing their policing functions in that regard.
Furthermore, every piece of legislation is subject to interpretation and that interpretation is subjective to the reader. They may agree on a detailed BMA, however, someone among them may have a different interpretation of the same issue.
He believes that t is a pity that the Deputy Minister of SAPS is not present because this something Member would have love to engage directly with them in dealing with this thing.
There is a law that is supreme to every other piece of legislation in this country, which is the Constitution. Every other piece of legislations is guided by that document. The Constitution is clear on the role of the police and the role of each and every organ. He does not see a problem with Clause 4(2) which reads that “the border law enforcement functions within the border law areas must be performed exclusively by the offices of authority”. This means that police cannot leave their crime prevention responsibilities so that they can go regulate the inflow and outflow of goods and persons. SAPS and Border Law Enforcement are not two separate entities which belong to two separate institutions. They are both institutions of the same government.
If that is the only concern that SAPS has with regards to the Bill, then they do not have a serious case, because Clause 4(2) does not prevent them from performing their crime prevention responsibilities. The clause binds the BMA to cooperate with SAPS. Cooperation is not one-sided.
He would like to appeal that SAPS let this issue go as it is not a serious case.
Mr S Zandamela (EFF; Mpumalanga) expressed that he was in total agreement with Mr Gxoyiya. Additionally, he feels that the Members are moving forward and are getting somewhere.
The Chairperson noted that it seems to be the stance of the Committee that there is in actual fact no issue in terms of the Clause and that SAPS’ concerns are covered in the Bill. She asked if there were any Member who had a different opinion than that of Mr Zandamela and Mr Gxoyiya.
Mr Sileku noted that he was listening to what SAPS was saying that they were partly covered.
Mr T Dodovu (ANC; North West) interjected by point of order, expressing that he forgoes his opportunity to speak based on the Chairperson’s summary that there is no issue. He feels that Members keep on repeating the same thing which in is his view is not right. He expressed his irritation that SAPS was just wasting the Committee’s time. This issue needs to be finalised so that the Committee can move on.
The Chairperson noted that she had thought that Mr Sileku would have a different opinion.
Mr Sileku explained his point is that they have not heard from SAPS that they are happy –
The Chairperson interjected by noting that the point is not for SAPS to be happy, but for the Committee to take a decision on the matter.
Mr Sileku quickly reminded the Chairperson that SAPS has a certain responsibility that they must –
The Chairperson interjected once more noting that she is aware that they have a certain responsibility. She asked him if he had anything different to say.
Mr Sileku was adamantly expressed that SAPS did not give an indication that they were happy.
Mr Mthethwa expressed that he is of the same opinion. As Members, they must not say that these concerns are a waste of time. They should all be patient so that they can better understand what they are doing. They are not against the Bill.
The Chairperson responded by noting that she had said that if he has anything different to say about the Bill –
Mr Mthethwa interjected by emphasising his opinion on the issue of the distance.
The Chairperson interjected, noting that the issue of distance is related to the functions of SAPS.
Mr Mthethwa explained that there must be deliberation on the issue so that SAPS can be covered.
Ms Mmola suggested that the Committee not rush things because if there are people who are not happy, it is the responsibility of the Committee to hear them out. They are dealing with a Bill which will be adopted at the end of the day. So it important that all relevant stakeholders are happy. It is wrong to say that any stakeholders are talking nonsense.
The Chairperson noted that the Members all have different interpretations in terms of what was presented, but the point is that the Members have been allowed the opportunity to express their views.
Ms Ncitha noted that in her opinion there is no change in terms of SAPS because their concerns are covered. It is important that Department should not come to the Committee after they have had their own meetings, discussions and opinions because then they confuse the Committee. The confusion was clarified, and the Members are happy with the Bill.
Mr Zandamela noted that in the presentation by DHA, there was mention of Section 5 and he would like some clarity on that section.
Mr Dodovu expressed that he had chosen not to speak on the matter based on the Chairperson’s summary. However, since Members are speaking he would like to tell them something. Last week he raised a point in the meeting where he asked what was outstanding and needed to be resolved so that the process could be finalised. The sense that he got was that everything was okay. He is raising this point because this Bill was passed by the National Assembly on the 8th of June 2017. More than two years later, they are still stuck. He expressed his opinion because SAPS was supposed have long expressed its concerns to DHA. All the Members know that they need to finalise the issue urgently.
It seems that the concerns that SAPS has are clarified, and so they should move forward and ensure that they finalise the issue.
The Deputy Minister noted that one things should be made clear is that their views are supported by a legal opinion that was dated from the 16th of February 1016. If one looks at page 21 of the legal opinion from the office of the Chief State Law Adviser, it is clear that SAPS is restricted from carrying on with their functions. They are allowed to carry on with their functions, regardless of the distance from the border law enforcement area. The only part that the BMA will be dealing with is the border law enforcement, which is very specific to the movement of goods and persons in and out of the country.
The Department’s predicament is that if they are to change Clause 4(2), they would have to go back to the State Law Adviser and say that they will not follow the legal advice that was given to them. This is a serious predicament, because as the process continues it needs to have the support of the Chief State Law Adviser.
Mr Erasmus clarified Section 5 of the BMA. He explained that Act 68 of 1995 is the SAPS Act in which he specifically referred to Section 13(6) which was raised by SAPS. As far as Section 205 of the Constitution is concerned is that as it stands, the Constitution does not provide SAPS with a specific mandate that relates to the protection of the borders of the Republic. In other words, when one looks at the Constitution there is nothing that stipulates that SAPS should perform any functions in terms of border law enforcement. The State Law Advisers then turned to the interim Constitution of the Republic of South Africa and in terms of Section 215 and 218(1) of the interim, those sections have not been repealed. Section 215 of the interim Constitution list powers and functions of SAPS, but that section does not specifically refer to border control. It does make reference to the preservation of internal security. In paragraph 12 of that specific legal opinion, the State Law Advisers indicated that that specific section does not specifically indicate how the functions may be assigned to SAPS, except that it states that it may assigned by Law. In other words, when it comes to crimes, there has to be cooperation between SAPS and BMA. If for instance, a murder has been committed in the border law enforcement area, SAPS will be brought in to carry out an investigation. It is not a function of the BMA to carry out investigations.
The Chairperson noted that the Committee’s interest in terms of the Bill is the Constitutionality of it. The Bill is not unconstitutional. They also have a responsibility to ensure that they mitigate as much as possible in terms of the coordination and cooperation between the different organs of state. That is why Clause 27 deals with the implementation protocol. As a Committee it would be most responsible to include in that implementation protocol a mandatory provision. This ensures that even if it comes to SARS and SANDF, within a six-month period, there is an implementation protocol in place to ensure that there aren’t any problems with each and every entity with regards to their various functions.
Considerations of the amendments to the Bill
- Support by Mr Dodovu
- Objection by Mr Sileku
- No abstentions
- Support by Mr Dodovu
- No objections
- No abstentions
- Support by Mr Dodovu
- Objection by Mr Silkeu
- No abstention
- Support by Mr Dodovu
- Objection by Mr Sileku
- No abstentions
- Support by Mr Dodovu
- Objection by Mr Sileku
- No abstentions
- Support by Mr Dodovu
- No objections
- Abstention by Mr Sileku
- Support by Mr Dodovu
- No objections
- Abstention by Mr Sileku
Adoption of the report
The report was moved by Mr Dodovu and seconded by Mr Zandamela
Report of the Select Committee on Security and Justice on whether or not to restore Advocate Nomgcobo Jiba and Advocate Lawrence Sithembiso Mrwebi, to their positions of Deputy National Director of Public Prosecutions and Special Director of Public Prosecutions at the National Prosecuting Authority, in terms of sections 12(6) of the National Prosecuting Authority Act 32 of 1998
The Chairperson noted that the Members may recall that in the last meeting they had agreed to allow Advocate Jiba and Mrwebi to make representation to the Committee. On the 7th of November, the Committee received a letter from Advocate Jiba regarding the matter. Additionally, the Committee received a correspondence from Advocate Mrwebi in which he requested further representation. The intention is that Committee deliberate on the matter in this meeting and then in the following meeting, put a report together. She welcomed a briefing by a legal adviser.
Mr Siviwe Njikela, Senior Legal Adviser to Parliament, briefed the Committee briefly. In the last engagement they spoke with regard to the judgement in the Jiba. Since that engagement, there have been two developments in the matter. One, is the letter that was received in response to the request by the Committee for Advocate Jiba to present before the Committee. The second one is the letter that was received by Mrwebi which was an unsolicited correspondence. In response to the letter by the Committee to Advocate Jiba to present the reasons he should be restored as a Member of the NPA.
They received a letter from his legal representatives and Mr Majabu, to which was attached a correspondence by Adv. Jiba herself. In the letter, she says that she has a meeting with her family, and they have come to the conclusion that it is time for her move on. As a result, she is no longer interested in restoration to her position within the NPA. It is for that reason that she has declined to make any recommendation to the Committee regarding her restoration. She believes that she has rendered her services to the country admirably, regardless of what is being said in the report by the Mokgoro Commission. She is no longer interested in serving in the NPA and has moved on.
They received another letter from Advocate Mrwebi. It should be noted that Advocate Mrwebi had made presentations to both Committees with respect to the reason he should be restored in the NPA. However, after the judgement was delivered, he wrote a letter to Parliament in which he wrote that he requested an opportunity to address Parliament with regards to how the President may or may have not have violated an order of the court in the Freedom Under Law versus NPA judgements. The Committee will recall that Freedom Under Law had gone to court to force the president to institute an enquiry into the fitness of Advocate Jiba and Advocate Mrwebi, and in that application they succeeded. The court directed the president to institute the enquiry. However, because there was an appeal against the General Councillor of the Bar, the court suspended its direction to the president to institute the enquiry, pending the appeal of the General Councillor of the Bar – which at the time was going to the Supreme Court of Appeal. It was for that reason that the court directed the president to institute the enquiry but suspended the implementation of that order because ther was still an appeal by Jiba and Mrwebi.
When the new President came in, he decided that he would institute an enquiry. He suspended Adv. Jiba and Mrwebi and instituted the Mokgoro Enquiry. Advocate Mrwebi feels that the president was not entitled to institute the enquiry while the appeal was still pending before the Supreme Court of Appeal. The issue is that the President was precluded by that order in the Freedom Under Law. He would like an opportunity to bring his counsel before Parliament.
He believes that what needs to be said is that this issue was raised by Advocate Jiba in the application before the High Court and the presidents have dealt with the matter. This is how they dealt with the matter; the President says that the order of the Court that they are referring to only suspended the implementation of that Court Order, but in instituting the enquiry, he was not implementing that order. He was exercising his statutory powers in terms of the NPA Act. Therefore his conduct was not a violation of the Court order. The court did not make any ruling of the order because it felt that matter belonged to part B of the Application and not part A. There has been a recent development that was brought to their attention, that that part B is not going to proceeding anymore. Advocate Jiba has filed a notice of withdrawal with the Western Cape High Court. This means there will not be an opportunity for part B to be determined and this issue to be ruled on by the court.
He is of the opinion that there a two issues that the Committee may want to consider. Firstly, the letter by Advocate Mrwebi was unsolicited. It was submitted to Parliament outside the given timeframe, after he had already given the presentation. It appears that the Committee will have to make a decision on how it will deal with that issue. Secondly, he understands that the letter was distributed to all Members of the Committee, meaning that Members are aware of the issue. The matter has already been dealt with, so regardless of the decision that the Committee takes, the matter is known and has been dealt with in Court.
Regardless of the fact that Advocate Jiba has decided that she is no longer interested in restoration, Parliament must still make a decision.
The Chairperson noted that in terms of Advocate Jiba, it is clear that the Committee should continue to consider whether or not she should be restored. On the issue of Mrwebi, the Committee needs to consider how they will deal with his presentation which came outside of the implicated timeframe. She noted that the matter was now open for discussion.
Mr Mthethwa sought clarity on whether there is any need for deliberation on a decision on Advocate Jiba’s restoration given that she has withdrawn it. In terms of the process of Parliament, can the Committee just convene in the meeting and close the matter or will it require any more deliberation.
Ms Ncitha wanted to check first before the Committee makes a decision on the Jiba issue, what are the processes followed in terms of Section 23 of the Bill of Rights?
Mr Dodovu expressed his view that it is the best interest of the nation that these two matters are finalised. With regard to Mrwebi, around July after the Committee received a report on how the matter was dealt with. They offered him an opportunity to make a presentation to Parliament as to whether or not they should consider the decision of the President. On the 31st of October, after the specified timeframe, he then asked to address Parliament. He believes that it is not fair on Parliament that Mr Mrwebi is behaving in the way that he is behaving. The Committee should note his letter, but not give him an opportunity to address the Committee on this particular matter.
On the matter of Advocate Jiba, notwithstanding the fact that she has indicated her disinterest in her restoration, as Parliament they are still required to make a decision on the matter. He agrees with the process that President followed in dealing with the matter in terms of suspending the directors of the NPA as well as in instituting the Mokgoro Enquiry. He feels that the president followed the law in a way that is appropriate. Subsequent to that process, the President reported to Parliament. In his review, Parliament has acted accordingly and has given them an opportunity to make their presentations. The process was fair and the President’s decision is justifiable. In terms of how the Committee should proceed, his view is that the Committee endorse the decision of the President.
Ms Mmola sought clarity on whether Section (12)(6)(a) and (b) and Section 43 was followed by the President when he made his decisions.
Mr Njikela explained that on the issue of Advocate Jiba having decided not to seek restoration, Parliament still has a responsibility to look at the totality of the document and make the decision regardless of what it says. The decision was never hers to make, it was for Parliament to decide whether or not there are any ground for restoration. The fact that she has made the decision that she is no longer interested does not absolve the Committee from considering the evidence. However, the tricky part is discerning whether or not the Committee can restore someone who has clearly expressed that she is no longer interested. What is he saying to Ms Ncitha is that, if the Committee considers all of those issues and the report of the Mokgoro Commission, that will satisfy the requirement of fairness as required in Section 23 which she referred to.
On the matter of Advocate Mrwebi’s letter which was out of the timeframe that was allocated to him, he has made very substantive representations. There is only one issue in the letter that is a new matter is the issue of whether the President violated the Court Order or not. The first decision that the Committee has to make is what to do with the letter. The Committee is free to say that they have considered the content of the letter, but to them it does not make a difference. The second decision has to do with the legal representation. There is an established practice in Parliament that entails that legal representatives are not allowed to come address Committees. Legal assistance is allowed, however it is the individual that is accountable to Parliament.
The Chairperson suggested that the Committee close on the Mrwebi letter. She also proposed that the Committee look into their mandate in terms of the process. Their mandate is confined to Section 12(6)(c) and (d) of the Act, which is to make a recommendation to the NCOP on whether or not to restore a National Director, Deputy National Director or a Special Director into Office. It is with the understanding that the Act envisages two distinct processes, namely the removal by the president and the proceedings to consider restoration to office. The Committee is not to remove, but to restore or not. It is very important to be very clear about the Committee’s mandate on the process. The wording of the act is clear, Parliament’s role is not to remove but to restore, it plays no role in the removal, Parliament acts independently in terms of the oversight function of the President in terms of Section 55(2)(b). The Committee’s role is considering whether or not to restore requires that it exercises oversight over the President’s decision.
She proposes that the Committee has a deliberation on the final decision. The Committee should look into three areas; 1.) Whether the President complied with the requirements of Section 12(6)(a) and (d) of the Act; 2.) Whether the process leading up to the President’s decision was fair towards Advocate Jiba and Mrwebi and; 3.) Whether or not the President’s decision to remove based on good reasons.
Mr Dodovu expressed that he is convinced that the President complied with provisions of Section 12(6) of the NPA Act in removing them. Firstly, the president suspended them based on the fact that they were not fit to hold that particular office. Immediately after the decision was made, Parliament was accordingly informed. This process was supposed to have been finalised within 40 days, but because of the letters and the fact that the Committee wanted to afford them more opportunities for representations, the process was delayed. He believes that the President followed the law and complied with the provisions of Section 12(6) of the NPA and the Committee can therefore take a decision.
Mr Mthwethwa moved that the President has taken the correct decision and the Committee should endorse his decision.
Ms Ncitha expressed that both Mrwebi and Jiba were allowed representation, this concludes that there was fairness in the process.
Mr Dodovu agreed with Ms Ncitha that the process was in fact fair.
Mr Dodovu expressed that there was a lot of instability within the NPA and based on that, it was important the President restore leadership of that particular pillar of our Constitutional Democracy. The reasons that the President provided for removing them from Office are justifiable and in the best interest of our Criminal Justice System and subsequently our country.
The Chairperson asked if there were any other issues besides the three that have been discussed, or if the Committee had any issues they wanted to raise. She explained that a report would be put tighter on the matter and in the following meeting, the Members will receive the report.
The meeting was adjourned.
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