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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTOFORLIO COMMITTEE
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
11 February 2004
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES BILL; PREVENTION AND COMBATING OF CORRUPT ACTIVITIES BILL: VOTING
Chairperson: Mr N Mokoena (ANC)
Documents handed out
Anti-Terrorism Bill [B2B - 2003]
Proposed amendments (Anti-Terrorism Bill)
Prevention and Combating of Corrupt Activities Bill [B19B-2002]
Proposed amendments by Department to Prevention and Combating of Corrupt Activities Bill
It was pointed out that after consultation with Cosatu and the Minister that changes had been effected to Clause 1(3). It was agreed that the term 'lawful' would be deleted to address Cosatu's concerns. In this meeting, Cosatu however insisted that the difficulty of distinguishing between forms of activities other than terrorism activity was still blurred and therefore unsatisfactory.
The Committee did not make any further changes to the proposed amendments. It unanimously passed the Protection of Constitutional Democracy Against Terrorist and Related Activities Bill with the amendments agreed to.
The Committee removed the term 'including persons in the public sector' in the Corruption Bill. The Committee held the view that the phrase 'any person' should suffice to cover everyone and the addition of 'including persons in the private sector' was superfluous. It also created an unacceptable distinction between public officials and persons in the private sector.
It unanimously passed the Prevention and Combating of Corrupt Activities Bill with amendments, some of which were suggested by the Department and one at the Committee's specific request. The Committee's amendment was the removal of "including a person in the private sector" in Clause 3 so that in read: "Any person".
The Chair explained that the purpose of the meeting was to check whether the changes the Committee had requested after consulting their principals had been effected and, if that was the case, to vote on the Anti-Terrorism Bill and the Prevention and Combating of Corrupt Activities Bill.
Protection of Constitutional Democracy Against Terrorist and Related activities Bill
The Chair read the motion of desirability which was endorsed by the Committee. He noted that after consultation with Cosatu and the Minister, it had been agreed to effect some changes to Clause 1(3):
- On page 9, in line 22, to omit "lawful".
- On page 9, in line 24, to omit "(a)(i) to (vi)", and to substitute "(a)(i) to (v)".
The Chair invited Dr. Jacobs to explain the background to this clause.
Dr. Jacobs (South African Police legal drafter) said that the SA Law Reform Commission had derived the definition of the term 'unlawful' from the Canadian, Australian and to some extent the UK legislation. Cosatu's comments were in line with the Canadian definition. There have been new developments in Canada and consequently the term 'lawful' is no longer in use. It had been decided to take out the term 'lawful' from Clause1(3) and also to omit its reference to "(a)(i) to (vi)" and to substitute "(a)(i) to (v)" to address Cosatu's concerns.
Ms Kgoali (ANC) asked the Chair to allow Cosatu to respond to the new development and indicate whether their concerns had been addressed.
The Chair reiterated that he had earlier consulted Cosatu and the Minister and the agreement that was reached was that Cosatu's concerns would be adequately addressed by omitting the term 'lawful'. It would be unprocedural to open the matter for discussion at this formal stage.
Ms Kgoali clarified that she did not mean to open debate on the matter but merely to allow Cosatu respond to the Committee's goodwill gesture.
The Chair sought guidance from the Committee noting that if members felt that Cosatu should be given audience at this stage then that would be fine.
Mr Maloyi (ANC) supported Ms Kgoali's proposition. It was desirable and fair for Cosatu to express their views on the new amendment. The Chair invited Cosatu's representatives to air their views.
Ms Prakashnee Govender and Mr Neil Coleman (Cosatu) made the point that the real difficulty arises from the complication in finding an appropriate distinction between other unlawful activity and genuine real terrorism. Where an individual case arises involving criminal activity, Cosatu did not necessarily question the need to prosecute but it must be prosecuted appropriately, that is, terrorism or another offence. But how would one find a clear distinction between different forms of unlawful activities? This difficulty should be seen in view of the stated position that the government had no intention to prosecute forms of activities other than terrorism.
Mr Maloyi said that Cosatu was not clear on whether the present amendment had helped their case or not. This being a section 75 Bill the Committee did not have the power to conduct public hearings. The opportunity extended to Cosatu in this instance was born out of the Chair's generosity.
Mr E Surty (ANC, NCOP Chief Whip) clarified that in fact the Committee had the power to conduct public hearings on a section 75 Bill. This was the case where the Chair deemed such an exercise to be absolutely necessary. He added that he had all along been seized with Cosatu's concerns through their submissions to the Portfolio Committee. This being a very important piece of legislation, Cosatu's concerns should be taken seriously. He said it was not the intention of the Committee to prejudice Cosatu's rights but asked whether Cossatu had raised anything new from their previous submission.
The Chair reiterated his earlier remarks that he had consulted the Minister who had suggested that the removal of 'lawful' would adequately cover Cosatu's concerns.
Ms Kgoali reminded members that since this was a section 75 Bill, any amendment the National Assembly disagreed with would not be incorporated.
Voting on Bill
The Committee passed the clauses as amended by this Committee (see proposed amendments):
The Bill was passed unanimously with these amendments.
Prevention and Combating of Corrupt Activities Bill
Ms Kgoali questioned why the Bill at Clause 3 stated "Any person, including a person in the private sector" as if to suggest that people in the private sector do not fall under the category of "any person". It was inappropriate to make reference to a person's occupation. She proposed an amendment to delete the term 'including persons in the private sector'.
Ms Dhulani (ANC) sought clarity as to whether the Committee was in a position to propose amendments to the Bill in spite of the fact that it was a Section 75 Bill.
The Chair clarified that the Committee is empowered and indeed has proposed substantive amendments to the Bill.
Adv. Nel (Department of Justice legal drafter) explained that initially there were two sets of references. One reference was to the public sector and the other to the private sector. The Portfolio Committee had introduced an amendment and the effect of this was to merge the two categories and thereby made the addition of 'including persons in the private sector'. He said he did not support the amendment by the Portfolio Committee.
Rev Moashe (ANC) noted that if the legal advisor was unhappy with the Portfolio Committee amendment then it could mean it leaves a loophole. Mischievous people could take advantage of such a lacuna to defeat the spirit of the law. He agreed with Ms Kgoali that the term 'including persons in the private sector' should be omitted.
Mr Sulliman (ANC) fully supported the proposed amendment.
The Committee agreed to exclude the phrase "including persons in the private sector" and refer to "any person" only.
Ms Kgoali sought an explanation as to why Clause 7 created special categories of persons.
Adv. Nel explained that it was an international practice known as the 'unbundling of corruption'. It was important in this discourse to refer to specific categories and specific offences. This would ensure that each corrupt activity in whichever category is dealt with comprehensively. The Preamble, in the last paragraph, also makes reference to this construct.
Ms Kgoali said Members of Parliament are governed by a Code of Conduct and wondered why parliamentarians are covered in this legislation.
Rev. Moashe offered that the different categories are meant to specifically isolate public representatives from other public officials. The Code does not exist in a vacuum but rather has a footing in legislation. The specification in this case supplies the law with the necessary sensitivity and to that extent is appropriately drafted.
Adv. Nel agreed with Rev. Moashe's remarks. The Code has no criminal sanctions. Other public officials are subject to a code of conduct as well. The specification is necessary in order to deal with the uniqueness of each category of corrupt activity.
Mr Sulliman (ANC) wanted to know how the Common Law offence of corruption sits with the corrupt activity as defined in the Bill.
Adv. Nel explained that the Common law crime of bribery is of limited application in that it only relates to public officials. The definition in the Bill has a much broader coverage in that it captures persons in the private sector as well.
Voting on Bill
The Chair then took members through the Bill clause by clause for adoption. The following clauses were passed with amendments: (see the proposed amendments)
They also agreed to the amendment in Clause 3 as discussed in this meeting.
The Bill was unanimously passed with these amendments.
Rev. Moashe thanked Dr. Jacobs and Adv. Nel for their sensitivity and broad knowledge of the law. This had helped to facilitate the process.
The meeting was adjourned.
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