Films and Publications Amendment Bill: voting; South African Citizenship Amendment Bill: adoption

Home Affairs

03 February 2004
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Meeting report

HOME AFFAIRS PORTFOLIO COMMITTEE
4 February 2004
FILMS AND PUBLICATION AMENDMENT BILL; SOUTH AFRICAN CITIZENSHIP AMENDMENT BILL: ADOPTION

Chairperson:
Mr H Chauke

Relevant Documents
Films and Publications Amendment Bill [B61-2003]
Film and Publications Amendment Bill - Portfolio Committee Amendments (Appendix 1)
Summary of Submissions on Films and Publications Amendment Bill
South African Citizenship Amendment Bill [B55-2003]
Len Dekker Attorneys submission on SA Citizenship Amendment Bill (Appendix 2)
Indoda Skills, Arts and Development Trust submission on SA Citizenship Amendment Bill
Zanele Mhlanga-Karl submission on SA Citizenship Amendment Bill

SUMMARY
The Committee adopted the Film and Publications Amendment Bill with amendments. The Democratic Alliance reserved their position. The amendments such as the provision for a Chairperson and a deputy Chairperson, the insertion of 'knowingly' and sentencing had been accepted. The DA raised serious reservations about Clause 11 on the issue of jurisdiction over broadcasting of the Film and Publications Board in relation to the Independent Communications Authority of South Africa as well as a concern about the issue of censorship in relation to Schedule 10.

The Committee also passed the South African Citizenship Amendment Bill without amendments with the Democratic Alliance reserving their position.

MINUTES
Film and Publications Amendment Bill - proposed amendments
Adv S Mogotsi (Director: Legal Services) went through the proposed amendments to this Bill that had been suggested by the Department and the Committee. These included the provision for a Chairperson and a deputy Chairperson for the Board and the inclusion of the word 'knowingly' in order to criminalise service providers who knowingly distributed child pornography (see Portfolio Committee Amendments).

The Chair confirmed that the proposed amendments were correct.

Democratic Alliance concerns about the Film and Publications Amendment Bill
Mr M Waters (DA) commented that the Democratic Alliance supported the banning of child pornography which was the object of the Bill. However, after consultations with their justice and communications spokespersons, the party still had concerns regarding the Clause 11 amendment to Section 29 of the Act. This was because it was going beyond censorship and it related to the role of the Independent Communications Authority of South Africa (ICASA) right to regulate broadcasting. The Constitution had given the right to regulate broadcasting to ICASA and the Film and Publications Board (FPB) encroached on the Constitution through the Section 29 amendment. Therefore the DA could not support the Section 29 amendment.

The Chair said that the issue of Section 29 and its infringements on ICASA, the role of ICASA and the Board had been clarified in previous discussions.

Mr Waters said that Section 192 of the Constitution gave ICASA the right to regulate broadcasting. Section 29 says 'knowingly broadcasts' which gives the rights to the FPB. However the FPB had no control over broadcasting - that was the role of ICASA.

The Chair asked what would then be the role of the Board.

Mr Waters said that the Board's role was to grade movies and not broadcasting.

The Chair said that all the issues would be debated including the role of the Board and the Chairperson.

Adv R Malatji (Chief Director: Legal Services) said that the issue of ICASA versus the FPB had already been deliberated at length.

Adv O Kellner (State Legal Advisor) commented that Section 29 was in the existing act and that the only change had been the addition of 'broadcasts'. He explained that with the addition, Parliament was creating an offence therefore the Board was not regulating. The offence had been created by an Act of Parliament so it had nothing to do with ICASA or the Board. He did not understand how Parliament could be accused of usurping ICASA.

The Chair said that he did not understand the debate about the designation of roles. ICASA did not deal with child pornography and Parliament was passing legislation to deal with the problem of child pornography facing the country. ICASA could not deal with child pornography therefore it was the Board's responsibility through mechanisms such as the inspectors. The inspectors would be empowered to catch anyone 'knowingly' in possession and deal with the crime. In the deliberations it had been made clear that the Board dealt with the issues of child pornography. If broadcasters were aware of a crime, they could alert the Board who would then act. The issue had been clarified and if there were further issues, then ICASA could come and raise the issue.

Mr Waters reiterated that the DA had no problems with the clamping down on child pornography but that the censorship of other bodies was a major issue. He introduced the issue of sentencing in Section 30. There had been no amendments made regarding the increase of sentencing. The current stipulated maximum sentence of ten years was an insult.

The Chair clarified that there had been a discussion about giving a life sentence to those found with child pornography. The Committee had agreed that ten years would be the minimum sentence.

Mr Waters raised the issue of committing an offence overseas then facing prosecution in South Africa. He had checked other forms of legislation and it was current practice. He gave the example of terrorism. Thus the DA was satisfied with this provision.

Mr Waters then raised a concern with Schedule 10. This schedule had nothing to do with child pornography. The DA did not support the fact that an XX film could be banned because this was going back to old apartheid censorship laws. Schedule 10 had nothing to do with child pornography.

The Chair asked for comments from the Committee.

Mr P Sibande (ANC) pointed out that the issues being debated had been deliberated in meetings during the previous year as well as the previous day. To return to these issues was not correct.

The Chair noted that the Committee was in agreement to move onto the motion of desirability and voting.

Voting on the Film and Publications Amendment Bill
Mr J Vermeulen (Committee Secretary) read the motion of desirability.

The Chair asked to move on to adoption of each of the clauses:
- Clauses 1 to 8 were agreed to. The DA "reserved their right" on Clause 8.
- Clause 9 was agreed to.
- Clauses 10 to 12 were agreed with the DA reserving their right.
- Clause 13 to 18 were agreed to. The DA reserved their right on Clause 18.
- Clause 19 and 20 were agreed to.

On the voting on the Bill as a whole, the Committee agreed with the DA reserving their right. The Chair confirmed the Bill reported with amendments and with the DA reserving their right.


SA Citizenship Amendment Bill
The Chair noted that the Bill was supposed to be adopted but public submissions had been received.

Adv E Krizinger (Director: Identification - Home Affairs) explained that the amendment was a repeal of Section 9 of Act 88 of 1995. The object of the amendment was to bring the Act in line with Section 20 of the Constitution: "No citizen may be deprived of citizenship". Currently the Minister could deprive a person of South African citizenship by virtue of the use of the citizenship of another country. Section 9 was to be repealed. Deprivation of citizenship was now replaced with a sanction as specified in the Bill: is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 12 months.''.

The Chair asked for comments and directed the Committee to the submissions.

Mr M Lekgoro (ANC) pointed out that the submissions had been distributed to committee members a while back. Members were encouraged to raise issues if any, because there had been enough time for perusal.

Mr I Pretorius (DA) reserved the position of the Democratic Alliance. The party broadly agreed with the amendment but it would be confirmed at its caucus that would be held the following day. He asked if a record existed of people who had been deprived of their South African citizenship. He then asked if citizenship would be reinstated for those that had had their citizenship removed.

Adv. Krizinger said that since 1996 he was not aware of a single case where a South African was deprived of the use of passport or citizenship of another country.

The Chair observed that it would be good for legislative purposes if a record were kept.

Adv. Kellner agreed that this was a good piece of legislation because Section 9 was unconstitutional.

The Chair introduced a Motion of Desirability for the Bill's three clauses and for the Bill as a whole. The motion was supported with the DA reserving their position.

The Chair adjourned the meeting.


Appendix 1
Film and Publications Amendment Bill - Portfolio Committee Amendments
FILMS AND PUBLICATIONS AMENDMENT BILL

PORTFOLIO COMMITTEE AMENDMENTS

 

 

CLAUSE 1

1. On page 3 in line 5, to omit "provides" and to insert "carries on the business of providing".

NEW CLAUSE

1. That the following be a new clause to follow on clause 1:

Amendment of section 4 of Act 65 of 1996

2. Section 4 of the principal Act is hereby amended -

(a) by the substitution for subsection (1) of the following subsection:

"(1) The Board shall consist of -

(a) a [chief executive officer] chairperson and a deputy chairperson. appointed bv the Minister as non-executive members: and

(b) the chief executive officer and such number of senior personnel, chief examiners and examiners as the Minister may determine having regard to the likely volume of applications and complaints which will be submitted to the Board in terms of this

Act.";

(b) by the substitution for subsection (2) of the following subsection:

"(2) [The chief executive officer shall be the chairperson of the Board] In the absence of the chairperson the deputy chairperson shall act as chairperson."

(c) by the insertion after subsection(2) of the following subsection:

"(2A) The chairperson or deputy chairperson and such number of the persons

contemplated in subsection (1)(b)as is equal to one half of the total number of such persons shall constitute a quorum of the Board.": and

(d) by the substitution for subsection (4) of the following subsection:

"(4) Decisions of the Board and the executive committee shall be taken by a majority of votes, and in the case of an equality of votes the chairperson of the [Board]

meeting shall have a casting vote.".

NEW CLAUSE

1. That the following be a new clause:

Amendment of section 14 of Act 65 of 1996

3. Section 14 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:

"(1) As soon as practicable after the end of each financial year the chairperson of the Board shall, from information supplied to [it] the Board by the chief executive officer and the chairperson of the Review Board, compile a report on all the activities of the Board and Review Board during that financial year, and on the financial position of the Board and Review Board as at the end of that financial year.".

NEW CLAUSE

1. That the following be a new clause:

Amendment of section 15 of Act 65 of 1996

4. Section 15 of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph:

"(a) shall, whenever it becomes necessary for the performance of the functions [the exercise of the powers or the carrying out of the duties] of the Board or the executive committee, convene a meeting of the Board or the executive committee, as the case may be: Provided that a meeting of the Board may only be convened at the request of, or in consultation with, the chairperson of the Board."

 

CLAUSE 8

1. On page 5 in line 33, before "exports" to insert "knowingly".




Appendix 2
Len Dekker Attorneys submission on SA Citizenship Amendment Bill

LEN DEKKER ATTORNEYS

SOUTH AFRICAN CITIZENSHIP AMENDMENT BILL, 2003

COMMENTS

 

1. INTRODUCTION:

The South African Citizenship Bill, 2003 [B55-2003] is presently serving before the Home Affairs Port Folio Committee.

The said Portfolio Committee invited comments on the Bill before 14 November 2003 and we wish to submit the following comments to the committee.

2. DUAL CITIZENSHIP:

South Africa is one of the few countries in the world that tolerates dual citizenship. Dual citizenship is a phenomenon that stems from the initial citizenship regime that existed in the member states of the British Commonwealth, but apart from South Africa, the situation has changed dramatically after those member states became independent. Today, the citizenship legislation of those member states (including the UK), and for that matter, most other countries in the world, contain provisions that either directly or impliedly, prohibits dual citizenship.

Nearer to the RSA, the SADC countries for instance, also prohibit dual citizenship. With the exception of the RSA, the general requirement from persons who wish to become naturalised citizens of those countries, is to first denounce their existing citizenship.

A foreigner who applies to be naturalised as a South African citizen is not compelled to denounce his/her citizenship of the other country, but most countries have a similar provision as section 6 of our Act, that provides for the loss of South African citizenship by major citizens who, by some voluntary and formal act other than by marriage, acquires the citizenship of another country

 

3. SOUTH AFRICAN CITIZEN WHO MAKES USE OF THE CITIZENSHIP OF ANOTHER COUNTRY

In terms of section 9 of the South African Citizenship Act, 1995 ("the Act") the Minister may by order deprive a South African Citizen of his/her South African citizenship. if he/she also has the citizenship of another country, and has at any time made use of the franchise or passport facilities of that country or performed such other act which, to the

satisfaction of the Minister, indicates that such citizen has made use of the citizenship of that country.

This is the provision that the Bill now seeks to repeal.

During the "struggle era" the South African passport was not acceptable in many countries, and it stands to reason that this was the primary reason for dual citizens to obtain approval from the previous South African Government for a dispensation that would allow them to use their passport facilities of the other countries. For this reason also, many South African citizens with ties in other countries, are acquiring the citizenship of those countries where the laws of those countries permitted such acquisition and where such acquisition, does not endanger their South African citizenship.

 

4. WHY DO SOUTH AFRICAN CITIZENS UNDER PRESENT CIRCUMSTANCES STILL MAKE USE OF THE CITIZENSHIP OF ANOTHER COUNTRY?

Since 1 994 the doors of the world have swung open for South Africans. Our passport is accepted everywhere and we have reciprocal visa arrangements with all those countries where South Africans are welcome.

Why then is there still a need to make use of the passport facilities of another country?

The Department of Home Affairs will most probably be able furnish all the reasons, but we dare say that those reasons will only reveal that South African citizens with foreign passports are using those passports simply for the sake of convenience, eg to avoid the need to apply for visa and to pay via visa.

A few years ago the Minister undertook to apply a stricter policy regarding the giving of permission to dual citizens to use the passport facilities of the other countries. It seems however that the increasing administrative burden to deal with these applications is caused by relaxation of that policy.

5. MUST SECT. 9 OF THE ACT BE REPEALED?

For the reason mentioned above it is our respectful submission that section 9 of the Act should not be repealed. In fact, we do believe that Parliament should rather investigate ways and means that will ensure that the present dispensation will no longer abused by citizens with dual citizenship.

In par. 1 of the "Memorandum on the objects of the South African Citizenship Amendment Bill" it is stated that the Bill "seeks to bring the South African Citizenship Act into line (sic) with section 20 of the Constitution as far as dual citizenship is concerned." This, with respect, is a nonsensical statement, as section 20 does not deal with "dual citizenship" at all. It merely provides that " no Citizen may be deprived of citizenship".

If the Department is of the opinion that section 9 of the Act should be repealed as it is in conflict with section 20, because provision is made for the possible deprivation of citizenship, the Department is also wrong because section 3(3) of the Constitution specifically provides th4t "National legislation must provide for the acquisition, loss and restoration of citizenship".

It is our respectful contention there exists no reason whatsoever, neither on principle nor on legal grounds, to repeal section 9 of the Act.

 

6. IS THE NEW SECTION 26B AS PROPOSED BY CLAUSE 2 NECESSARY?

In rather inelegant language the Department endeavours to explain in par. 1 of the "Memorandum on the objects of the South African Citizenship Amendment Bill" "that the Bill replaces that provision(sect.9) with one which imposes penalties on a citizen using a foreign passport to enter or depart from the Republic or utilising his or her foreign citizenship while in the Republic to gain an advantage or avoid a responsibility or duty".

The new clause 26B (a) makes it an offence where a major citizen enters into or departs from the Republic making use of the passport of another Country. We respectfully wish to draw the Committee's attention to section 9 of the Immigration Act, 2002(no. 13 of 2002), which regulates the entry and departure from RSA of all persons. That section, read with section 9 of the South African Citizenship Act presently prohibits a dual citizen to enter into or depart from the RSA with his/her foreign passport. Should Parliament finds it necessary to repeal section 9 of the Act as proposed in the Clause 2 of the Bill, section 9 of the Immigration Act should to our mind, be revisited to further regulate the situation as envisaged in the proposed section 26B(a). The regulating of the entry into and departure from the RSA of all persons should not be spread over two pieces of legislation.

It is our respectful contention that paragraph (b) of the new section 26B should be summarily rejected because of the ambiguity and vagueness of the wording "gain an advantage or avoid a responsibility or duty contained in that paragraph. What exactly is meant by that wording? And, who will be responsible to determine under what circumstances an advantage is gained or a responsibility or duty is avoided? It is our submission that the new section 26B (b) is fraught with legal uncertainty and that the proposed offence will be impossible to be properly policed.

7. CONSEQUENTIAL AMENDMENTS

The Committee's attention is invited to sections 11(3) and 3(3) of the Act that contain references to section 9 of the Act. The Bill should have made provision for the consequential deletion of these references in those sections, in view of the proposal that section 9 be repealed.

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