Prevention & Combating of Corrupt Activities Bill: consideration of NCOP amendments; Protocol on Amendments to Constitutive Act

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Justice and Correctional Services

24 February 2004
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 February 2003
PREVENTION AND COMBATING OF CORRUPT ACTIVITIES BILL: CONSIDERATION OF NCOP AMENDMENTS; PROTOCOL ON AMENDMENTS TO CONSTITUTIVE ACT OF AFRICAN UNION; CONDITIONS OF SERVICE OF PUBLIC PROTECTOR

Chairperson: Adv J H de Lange (ANC)

Documents handed out:
Prevention and Combating of Corrupt Activities Bill [B19B-2002]
NCOP Proposed Amendments to the Prevention and Combating of Corrupt Activities Bill
Further amendments by this Committee to Prevention and Combating of Corrupt Activities Bill
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill [B 12B-2003]
NCOP Proposed Amendments to Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
Protocol on Amendments to the Constitutive Act of the African Union
Explanatory Memorandum on the Protocol
Legal Opinion by Chief State Law Advisor: International Law on the Protocol
Public Protector Service Conditions
Comparison between Remuneration and Conditions of Service of Public Protector and Judges
Letter of Request by the Public Protector on Conditions of Service
Committee Report on Public Protector Service Conditions (document awaited)

SUMMARY
The Committee considered the amendments proposed by the National Council of Provinces (NCOP) on the Prevention and Combating of Corrupt Activities Bill and accepted these with further amendments.

It also approved the Protocol amending the Constitutive Act of the African Union. These amendments had been proposed by the countries attending the first General Assembly of the African Union.

The Committee approved amendments to the Conditions of Services of the Public Protector.

Together with the Portfolio Committee on Safety and Security, it considered the NCOP amendments proposed by the Select Committee on Security and Constitutional Development to the Protection of Constitutional Democracy Against Terrorist and Related Activities Bill. Some changes were accepted and others rejected.

MINUTES
The Chair noted that the Committee would not be able to finalise all the legislation presently before it. The incoming Parliament would have to decide what to do with those pieces of legislation.

Prevention and Combating of Corrupt Activities Bill
The Chair went through the amendments proposed by the Select Committee on Security and Constitutional Development.

The Committee accepted the proposed amendments but rejected the amendment of Clause 1(xi)(d) and the insertion of the Employment of Educators Act 76 of 1998, National Sport and Recreation Act 110 of 1998 and Local Government: Municipal Systems Act 32 of 2000 to the Schedule. The proposed amendments to Clauses 3 and 25(3) were accepted however further consequential amendments were also effected to these clauses.

The Chair read the Committee Report and the Bill was unanimously adopted with amendments.

Protocol on Amendments to the Constitutive Act of the African Union
The Chair noted that there were no major changes effected to the Constitutive Act of the African Union except for the creation of a Peace and Security Council. He called on the Department of Foreign Affairs to brief the Committee on the Protocol.

Mr H Lambrechts, Parliamentary Liaison Officer: Department of Foreign Affairs, noted that in the first session of the Assembly launching the African Union held in Durban in July 2003, a number of countries, including South Africa, proposed a number of amendments to the Constitutive Act of the African Union. The proposed amendments focused on two main themes:
- strengthening of the Constitutive Act and a technical 'clean-up'
- enhancing the continental integration process towards the early establishment of a 'United States of Africa' or 'Federation of African States'.

The Protocol contained these amendments and were endorsed by the Heads of the States including our President. Parliament was called on to ratify the Protocol in terms of its constitutional powers as contained in Section 231 of the Constitution.

The Chair read the Committee Report and the Protocol was unanimously approved.

Public Protector Service Conditions
The Chair noted that previously meeting the Committee had decided that the best approach would be to peg the salary and conditions of service of the Public Protector to that of an Appeal Court Judge. He noted that while the Committee would go ahead and deal with the matter, it had not yet received the views of the Departments of Finance and Justice and Constitutional Development. In unforseen issues Therefore he proposed that any aspects which the Committee could not readily decide on, the Public Protector should take up with the incoming Parliament.

Non Taxable Allowance
The Chair proposed that the Committee should not allow this proposed change to the non taxable allowance as it is determined by an Act of Parliament.

The Committee therefore unanimously rejected the proposed amendment.

Entertainment Allowance
The Chair noted that the Judge President, as the head of the Court, does receive such an allowance of R7 000. He thus proposed a consequential amendment to the proposal made by the Public Protector so as to put that office on par with that of the Judge President.

Ms S Camerer (DA) objected to the proposal made by Chair noting that it was agreed that the Public Protector's Conditions of Service would be pegged against those of an Appeal Court Judge. Nothing had been said about pegging them against those of the Judge President or President of the Supreme Court.

The Chair reminded Ms Camerer of the reasoning behind the creation of this provision which also formed part of the original Condition of Services. It must be borne in mind that while pegging the Public Protector's Condition of Services to those of the Appeal Court Judges, the former is the head of the office which is not the case with the latter.

The Committee agreed with the Chair's proposal and rejected the proposed 5% annual increase.

Motor Vehicle Scheme
The Committee accepted the proposed amendment.

Settlement Allowance
The Chair proposed that the amendment proposed in 7.2 in the Conditions of Service document be rejected since it applies to within three months of appointment only and not thereafter.

The Committee thus rejected the proposal in 7.2 while accepting the one made in 7.1.

New Insertion

The Committee rejected this proposal noting that the Appeal Court Judges also pay for their domestic workers. However it was noted that if the Public Protector wants to be treated differently then he has to give proper motivation on why should the domestic worker be provided to him and thereafter follow proper channels.

Transport and Subsistence Allowance
The Committee accepted the proposed amendment.

Benefits for Spouses
The Committee accepted the proposed amendment.

National and International Visits
The Committee accepted the proposed amendment and further effected a consequential amendment to the proposed date. These amendments to the Remuneration and Conditions of Services of the Public Protector would be deemed to have come into operation on 1 September 2003 as they had been introduced to Parliament in August 2003.

The Chair noted that since the Committee had made these amendments without the benefit of the views of the Ministers of Finance and Justice and Constitutional Development. If there were any additional or new adjustments needed they should be tabled to the incoming Parliament.

The Committee accepted the proposal made by Mr J Jeffery (ANC) in its report. Thus it reported that the department should be mandated to undertake a comparative review of the remuneration and conditions of employment of the National Director of Prosecuting Authority, Public Protector and Commissioners of the South African Human Rights Commission and Gender Commission. The report further proposed that the findings of the review should be tabled in Parliament within 3 months of the adoption of the resolution by the House.

The Chair read the Committee Report and the Public Protector Condition of Services were unanimously adopted with amendments.

Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
In this session the Committee was joined by members of the Portfolio Committee on Safety and Security and the meeting was co-chaired by Mr M George (ANC) and Adv J de Lange (ANC).

Mr George (Co-Chair) gave a brief background to the Bill and thereafter handed over to Dr P Jacobs (South African Police Service Legal Advisor) to take the Committees through the amendments proposed by the Select Committee on Security and Constitutional Development to this Bill.

Dr Jacobs went through the amendments proposed by the Select Committee on Security and Constitutional Development.

Mr George (Co-Chair) noted that the Chairpersons of the Portfolio Committees on Safety and Security and Justice and Constitutional Development and that of the Select Committee on Security and Constitutional Development had met on 24 February 2004 to consider the proposed NCOP amendments. He asked the Chair of the Portfolio Committee on Justice and Constitutional Development Chair to brief the members on the outcome of that meeting.

Adv de Lange (Co-Chair) noted that the Chairs felt that when the Bill speaks about 'insurrection' that does not refer to general insurrection in other countries as 1(1)(xxiv)(a)(viii) seems to assume but only within the Republic. Therefore they are of the view that the words "in the Republic" should be inserted after the word "insurrection".

Further that when the Bill speaks about the territorial integrity of the State being threatened in 1(1)(xxiv)(b)(i), it only refers to the territorial integrity of South Africa and not of other countries as such could be problematic. Therefore the proposal is that the words "the Republic" be inserted to substitute the words "a State".

He noted that the reference in 1(3) to "(a)(i) to (vi)" is a technical error and it should be substituted by "(a)(i) to (v)". He noted that there were also other technical amendments that were identified and effected by the Chairs.

He said that while he normally agrees with Adv Donen's views on international law however this time he begs to differ with his opinion on 1(4).


If one looks at Cosatu submission, which members should take time to read through properly, then one would realise that there is nothing in their submission which is persuasive enough to move the Committees to effect any amendment other than what they have already done in the Bill. While Cosatu raises many issues, most of these issues are in the form of questions and it is not for Parliament to answer them as the Courts would have to ultimately give an interpretation to these. Parliament has created a test of which its parameters would crystallise during judiciary interpretation and practice.

The other serious issues raised by Cosatu which the NCOP also did not accept is with regard to the state of mind. As Parliament, they decided that it should be intentionally and therefore whenever someone acted intentionally, one would fall under this Bill; however where one acted negligently, then one would be excluded.

However the suggestions by Cosatu that this should only apply in cases of direct intention as opposed to indirect intention cannot be accepted. This is the case notwithstanding the number of cases quoted by them given during the existence of the previous regime. No serious government would ever suggest that terrorism be limited only to the highest form of intention (dolus directus). Thus the other forms of intentions such as eventuality and foreseebility should also be the test.

The Chair noted that an exception has been created in 1(3) of the Bill to exclude actions which are usually associated with dissent, protest and industrial actions from the scope of the Bill since on a wider interpretation they could be viewed as part of terrorism. However this exception only applied in cases were a dissent, protest or industrial action occurred within the parameters of the law and is done without the use of violent acts. Therefore the proposal that the word "lawful" be removed would not be accepted since its effect would be that all those who are involved in industrial action, whether lawful or unlawful or involving violence, would automatically be protected. This cannot be accepted despite the fact that this is done in Canada as this is not Canada but South Africa.


He said that the Chairpersons did not have a problem with the deletion of the words "physical integrity and physical freedom" in 1(1)(xxiv)(a)(iii) in so far as those words are used in relation to endangerment.

Ms Camerer pointed out that the word "physical integrity" is also contained in the Constitution and she thus felt that the Committees should retain this word and only remove "physical freedom" as the latter cannot be endangered but violated while the former can be endangered.

Mr P Swart (DA) proposed the following instead "endangers life or violates physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number or group of persons".

The Committee unanimously agreed with the proposals.

Mr George (Co-Chair) read the report of the Committees and the Bill was unanimously adopted with amendments. He thereafter thanked his co-chair for the work he has put in ensuring that this Bill becomes a success noting that it was a complicated piece of a legislation. He thereafter thanked the members of both Committees for the job well done and also wished them all the best in the forthcoming elections.

Adv de Lange (Co-Chair) also thanked the Chair of the Portfolio Committee on Safety and Security and members of both Committees for the job well done in this five year period and thereafter wished them all the best in their future endeavours. He also extended the words of thank to the Department of Justice and Constitutional Development, the media and the Committee Section. On behalf of the Committee he congratulated Mr S Jonas (Co-Committee Clerk) on his promotion.

Mr Jeffery on behalf of other members thanked the Chair of the Portfolio Committee on Justice and Constitutional Development for his wonderful chairpersonship.

The meeting was adjourned.

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