Bills with Constitutional Court deadlines: Parliamentary Legal Services briefing

Meeting report

The Chairperson said the Committee would redo its programme to accommodate the bills with Constitutional Court (ConCourt) deadlines.

Mr X Nqola (ANC) asked to be excused at 10:00 to attend a meeting of the Section 194 Enquiry Committee.

Adv S Swart (ACDP) also asked to be excused at 10:00.

Progress in respect of suspended Constitutional Court Orders

Ms Noluthando Mpikashe, Parliamentary Legal Advisor, Constitutional and Legal Services Office (CLSO), delivered the presentation.

The presentation contained the following headings:
1. Progress on suspended Constitutional Court Orders
2. Recent judgments impacting the role of Parliament
3. Committee Bills

Progress on suspended Constitutional Court Orders

Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another [2020] ZACC 25 (27 November 2020)
• Riotous Assemblies Act, 1956 (Act No. 17 of 1956)
• Suspension of the order lapses 26 November 2022 - A read-in provision was provided, and will apply during and after the suspension has lapsed. There is thus no gap in the law.
Progress:
• The Department confirmed that a draft Bill (Conspiracy and Inducement to Commit Serious Offence Bill), which will address the issues in the EFF judgement, has been finalised, with inputs from the National Prosecution Authority and the South African Police Services.
• The Department is engaged in processing the Bill through to Cabinet to obtain approval to introduce the Bill into Parliament.
• The Bill has been placed on the draft Legislative Programme for the Department for 2022.

Sonke Gender Justice NPC v President of the Republic of South Africa and Others [2020] ZACC 26 (4 December 2020)
• Correctional Services Act 111 of 1998
• Suspension of the order lapses 3 December 2022 - No read-in provision, nor measure to apply during the suspension or thereafter was provided.
• Progress:
• The Department briefed the Portfolio Committee on progress of the relevant Bill in June 2022.
• The Department plans to present the draft Bill to the JCPS Security Cluster on 18 August and to Cabinet on 23 August. They estimate briefing the Portfolio Committee early September 2022.
• If introduced in September, the programming of this Bill will require careful planning and possibly prioritisation to pass this Bill in time for the President to assent by 3 December 2022.
• Our Office has alerted the Chairperson of the Portfolio to this and has offered other options related to dealing with this matter by way of a Committee Bill (also see slides 7 and 8).
 
Smit v Minister of Justice and Correctional Services and Others [2020] ZACC 29 (18 Dec 2020)
• Drugs and Drug Trafficking Act 140 of 1992 —section 63 + amendments to Schedules 1 and 2.
• Suspension of the order lapses 17 December 2022 - No read-in provision nor measure to apply during the suspension or thereafter was provided.
Progress: 31 May 2022:
• The Department confirmed that a draft Drug and Drug Trafficking Amendment Bill and a draft Extradition Bill had been finalised.
• The Department is processing the Bills through the established structures to obtain Cabinet approval for the introduction of the Bills into Parliament.
• The Bills have been placed on the draft Legislative Programme for the Department for 2022.

On the Sonke Gender Justice Matter, Ms Mpikashe added that the judgement found sections 88(1)(b) and 91 of the Correctional Services Act 111 of 1998 to be unconstitutional for their failure to provide the Judicial Inspectorate with independence. The judgement found section 63 and the amendments to Schedules 1 and 2 of the Drugs and Drug Trafficking Act 140 of 1992 to be unconstitutional because they gave the Minister of Justice and Correctional Services and the Minister of Health wide powers. The ConCourt found that that violated the principle of separation of powers.
 
Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 (30 July 2021)
• Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
• Suspension of the order lapses 29 July 2023 - A read-in provision was provided and will apply during the suspension period and after the suspension has lapsed. There is thus no gap in the law.
• Progress: 31 May 2022:
• The Department confirmed that the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, which the Department has already developed, will be amended to incorporate the required amendments to section 10 as per the Qwelane judgment.
• The Department is currently processing the comments received from the public and has scheduled a meeting with stakeholders who made substantive comments. A workshop is planned for early June 2022.
• Thereafter, the Bill will be processed for Cabinet approval to introduce the Bill in Parliament. The Bill has been placed on the draft Legislative Programme for the Department for 2022.

AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others [2021] ZACC 3
• Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002.
• Suspension of the order lapses 3 February 2024 - A read-in is provided, but only during the period of suspension.
• Progress: 31 May 2022:
• The Department confirmed that a draft Bill to address the issues raised in the judgement, is being drafted and will soon be consulted with key stakeholders.
• The Bill has been placed on the draft Legislative Programme for the Department for 2022.

Recent judgements impacting the role of Parliament

Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23

Regarding the SCA judgement: “[25] On the first issue, the Court held that Parliament has the responsibility to make laws; the President and Cabinet merely have a discretionary power to prepare and initiate legislation. Therefore, ordering the state to enact legislation on the basis of section 7(2) alone would be an infringement of the separation of powers doctrine. The Supreme Court of Appeal held that section 85 of the Constitution vests the executive authority with the power to prepare and initiate legislation. Sections 43 and 44 make it plain that the national legislative authority is exclusively in the hands of Parliament.”

(See Presentation)

Discussion
Adv Swart thanked the CLSO for its input and the letter dated 12 August from the Chief Parliamentary Legal Advisor that contained the reference to the Sonke Gender Justice issue. He felt it was a matter that the Committee had to raise with higher levels of Parliament so that mechanisms were in place to ensure that when a judgement was given, Parliament was alerted to it as soon as possible. He appreciated the CLSO indicated that half the time should be allocated to Parliament, and not the last minute when the Executive brings the bill to Parliament.

On the recommendation of a Committee Bill, that was something that the Committee would need to look at going forward. With the Sonke Gender Justice issue, given that the Committee should get input in September, although it was “regrettably very late”, it might not help to present a Committee Bill. He suggested giving a deadline to the Department as soon as possible, perhaps at the beginning of September, to get that bill to the Committee since the cut-off date was in December. It was highly unlikely that both Houses of Parliament would be able to consider that bill in time by then.

Dr W Newhoudt-Druchen (ANC) observed that the presentation discussed financial implications. Parliament could pass a Committee Bill, but the Department of Justice and Constitutional Development (DoJ&CD) must still implement that bill. Who decided what the financial implication was? Who decided on the costing of the bill and the costing of whatever needed to be implemented? Would the CLSO decide or did the Committee still have to ask the Department? At what stage did the Department come in to assist the Committee, especially with the costing of the Bill or explaining what the financial implications of the bill could be?

Mr W Horn (DA) was with both of his colleagues to an extent. Adv Swart was correct in saying that Parliament, specifically responsible committees, should be made aware of court-enforced deadlines. In two judgements, the court had pointed out that committees bore responsibility for meeting the deadlines. He agreed with the sentiments on how one ultimately allocated time to give the Executive an opportunity to introduce the legislation. In his view, Parliament should enter into a formal protocol with the Executive. For example, one had the Leader of Government business, and from Parliament’s side, the Speaker, the Chief Whips’ Forum. Ultimately, he believed that to not be at the receiving end of that type of judicial criticism, a more formal protocol would have to be put in place, in which it was agreed with the Executive that in the event of the courts declaring some legislative amendment that had to be effected by Parliament, there had to be a firm deadline by which the Executive had to introduce legislation, which needed to be realistic. Such a deadline needed to be realistic in the sense that in the absence of that, Parliament should have enough time to finalise legislation initiated by Parliament itself. In his view, the current proposal was a starting point, but would not solve that issue. As those who were ultimately being criticised, he believed that Members had the responsibility to ensure that something more formal was put into place. He admitted that some of the matters in the briefing were things that he had seen for the first time. The deadlines were looming. With some of those matters, the Committee would have to “eat humble pie” and go back to ask for an extension again. Ultimately, if the Members wanted to make serious business of making Parliament work, and of discharging their constitutional obligations properly, he did not think that the way things worked currently could be continued. He believed that the informal way of trying to be more proactive would also not solve that issue. Perhaps other Members would not share his views, in which case the Members could try and address the issue in the Chief Whips’ Forum. But he believed that ultimately, it would add value if the Committee, as the one responsible for the bulk of those legislative processes enforced by court orders, took a stance that something more formal should be put in place.

Ms Y Yako (EFF) agreed with Mr Horn. She observed that some of the bills were still with the Minister, or the bills had been waiting for the Minister and Cabinet to come back and clarify the way forward. That put the Committee on the back foot because it was tied to what it could and could not do. She was hoping that the Committee could then have a roadmap, because it was quite confusing. The Committee did a lot, and some of the items had been earmarked to take place in 2022, which was this year. It put the Committee in a position where it was trying to get a bill out there or setting a bill up. There were a lot of bills sitting with the Committee as it was. She suggested the Members sit together and strategise what they wanted to get done. It would not necessarily be a calendar drawn up as to what the Committee was going to do, but would look at what was “hanging in the air”. Such a plan would also lay out the strategy for what the Committee would do moving forward to make sure that when it left the current Parliament, it would have covered all of its bases, and would not be leaving any loose ends for the next Members of Parliament (MPs) who might sit on that Committee to look after having inherited those from the current Committee.

Ms N Maseko-Jele (ANC) agreed with her colleagues; the responsibility indeed lay with the Committee in ensuring those bills were passed. It was also the Committee’s responsibility to monitor and be in constant consultation with the departments to ensure that the bills coming from their side were indeed “on top of the game”. She did not think it was possible that the Committee would meet many of the deadlines. One was supposed to be on 24 June 2024. In 2024, some of the Members might not be on the Committee. There would be a new Parliament in 2024. The current Committee was now leaving the problem to the new colleagues that were coming in.

She thought that the Committee needed to also look into the teams working with bills within the Department. She suggested capacitating them so that they could assist the Committee. The Committee needed to have a team that was specifically dealing with those issues. She was unsure if timelines would still help the Committee with the deadlines. It had to come up with something new to see if it would be able to cover the work that was already lost. She supported getting extensions. She suggested checking which bills the Committee could request an extension on. She reminded Members that the Committee still had other legislation it was working with. Understanding the work put into passing those bills and the direction they needed to take with bringing in everybody to comment was not easy. She supported the idea of extensions. In particular, the Committee needed to check on the bill that was supposed to be due in December 2022. She felt that the Committee would not be able to cover that one in time. Her take was that the Committee take responsibility; it was “not on top of the game”. It was an unfortunate situation because sometimes, when the Committee asked for permission, it was not possible for it to get permission to work for an extra period of time. It was working on its schedule, which was “very tight”. She agreed with the suggestions that would enable the Committee to work harder to finish the upcoming bill if possible.

Adv G Breytenbach (DA) found the presentation “a little startling”. There was legislation mentioned that the Committee had not seen before, and she was “quite sure” that the Committee would not get to it. It would again have to ask for a postponement, which created the impression that the Committee was not working. The Committee was “probably the hardest working Committee in Parliament”. When it asked for extra time, it was denied, so she did not see a way in the time available to the Committee to deal with that legislation. The Committee needed to come up with a better manner of dealing with it.

With the Department’s drafting unit, as far as she was aware, many people would be retiring quite soon. She did not know how well-capacitated the Department was. It was a difficult department and demanded really hard work, long hours and meticulous attention to detail. It was “exhausting”. She was sure that not many people were particularly interested in doing that work because it was such hard work. She suggested asking for a briefing at some point from the Department about the status of its drafting unit, and what sort of continuity and longevity it had. Because if the Department found itself in a position where no one was left to draft, it would be too late to rectify that situation.

The Chairperson thanked the CLSO for the presentation. It had prompted the Committee to jump into action, especially where the CLSO drew the Committee’s attention to court judgements. Various judgments put it very clearly that the passing of laws was the Committee’s domain and could not be excused from that.

He generally agreed with the Members. He thought that the Committee needed to package that discussion because Members were all in agreement. One of the issues that the Committee needed to attend to (which was raised by Ms Yako and Ms Maseko-Jele) was that it should not transfer problems to the next Parliament. If the next Parliament started its work with six deadlines already passed, then the current Committee passed a penalty to the next Parliament. Mr Dyantyi would say that it was “an investment in crisis”. He thought that it was important that its handover report, people must know and see that there were people elected for five years and executed the mandate properly.

Secondly, the Committee needed to distinguish between those court deadlines with a read-in provision and those that did not have a read-in provision. The Committee’s responses could not be the same to the different types of deadlines. He was informed generally that the court would be reluctant to give extensions, especially where there were read-in provisions. He suggested that the Committee make a separation between those that had read in provisions and those that did not have read in provisions. The underlying principle should be that the Committee must strive to ensure that whether a bill has a read-in provision, or it does not have a read-in provision, Parliament must pass that bill so that it does not inadvertently make the courts into drafters of laws. As long as those laws operated purely by operation of that particular judgement, and Parliament had not passed that bill, he did not think that was something that Parliament should be encouraging. Parliament should always do its work of passing laws.

He also wanted to package the discussion of the Members into two broad areas: The macro areas that were advanced by Mr Horn and the micro areas that were advanced by Ms Yako, Adv Swart, Ms Maseko-Jele and Adv Breytenbach. The Committee needed to look at itself as Members of Parliament. It would be counterproductive if the Committee could meet all its deadlines and other committees did not meet their deadlines. Adv Swart had made an important point, namely that the Committee should be preparing some document on its side to alert the House Chair and the Chief Whips’ Forum as to the needed approach. It needed a formal protocol to be followed, and for the Speaker to actively monitor that protocol so that from time to time, that protocol would regulate the issue of the Leader of Government Business and in Parliament. In Cabinet, with the Leader of Government Business, there was always a standing item, either on questions or bills. From time to time, the Leader of Government makes a presentation, but the Committee needed to firm up those protocols so that both the Speaker and the Whippery got a handle on that issue, and is prioritised by Parliament because it did have the potential of creating tensions between the legislative branch and the judicial branch. On the micro issues, the first issue that the Chairperson proposed the Committee attend to was that on Tuesday, after it had dealt with the Land Court Bill, it would invite the Minister, the Department, and everybody who was a drafter of any of the bills, starting from the Deputy Director-General (DDG) responsible. The CLSO also needed to be invited to such a meeting. He felt that it would be important to do what Ms Yako suggested: having a programmatic approach. Additionally, the Committee would need to have project management, so that it knew where a bill was in the process. If it was working with CLSO and could not draw up a bill by a certain time, it would then need a committee period; in short, the Committee and support staff would work together as a project team. The Committee would then “sit on those timelines like hawks”. He recalled that the Committee tried to do that with the last Correctional Services Bill that was eventually passed. The Committee was pushing that Bill, but it needed a much tighter programme to ensure those bills mentioned in the meeting were passed.

Ms Maseko-Jele and Adv Swart raised the issue of two bills which had a deadline of 3 December and 17 December respectively. The Members had also suggested asking the Department to go and ask for an extension because there would be no point for the National Assembly (NA) to meet the deadline when the National Council of Provinces (NCOP) would not be in a position to meet the deadline, and the President would not be in a position to sign those bills within the given time frames into law. With the bills that had a deadline in December, there was no way that the Committee could meet those deadlines, but the Department needed to ask for an extension.

The Chairperson was informed that the Drugs and Drug Trafficking Amendment Bill would be with the Committee the following Tuesday. If Members agreed, perhaps on receipt of that Bill, the Committee could start advertising for public comments before it asked for a briefing. As the bills came in, the Committee should advertise for public comments, which would be given three weeks. The Chairperson was told that the Drug Trafficking Bill was “very simple”. The Committee did not know why it took so long for the Department to process that Bill. That talked to an issue that Adv Breytenbach raised, namely the capacity issue, which was “really starting to hit home in a big way”. The Committee knew that Ms Theresa Ross, Principal State Law Adviser, DoJ&CD, passed on last year. The issue that Adv Breytenbach raised of people retiring was one of the issues that he thought the Committee should prioritise in raising when the Minister came for the Budgetary Review and Recommendations Report (BRRR). It needed to be on the top of the Committee’s mind that it needed a presentation on succession planning. Adv Breytenbach had argued that it took about ten years to build a prosecutor, but it took about 20 years to build a good prosecutor. It was the same with the drafting. It took a very long time to build a good drafter; it was not an easy process. In fact, the Department needed to have a 15- to 20-year programme to develop drafters, because, without good drafters, Parliament would struggle to pass laws. It was a “tedious process”.

With those bills that had read-in provisions, the Committee needed to aim for next year in September or October to pass all the bills that appeared on the list in the presentation. The Committee’s project management approach was not going to rely on the legislative programme of Cabinet. It would have its own programme, which would target the end of October. Specifically, by the end of October, it should have passed all of those bills. The Committee knew that from January 2024, Parliament would be approaching dissolution, and parties would be campaigning. But the Committee should not leave behind a lot of outstanding work for the incoming Committee. Very few of the bills were very complicated, and most could be done “quite quickly”. He felt that in the meeting next week, the CLSO should come with the Department and work out which bills were at a level where the Committee could say that it just needed Committee Bills where CLSO could run with that particular process. Additionally, there were bills that Parliament might not be in a position to develop Committee Bills. Dr Newhoudt-Druchen raised the issue of there being serious financial implications involved. The Committee needed to do detailed work to say that a particular bill had no financial implications of such, and the Department had already developed the bill at a level where it would be easy to conclude the bill, but the deadline was nearer. The Committee would then take that bill through the process.

The Chairperson felt that the Committee should put pressure on the ministers to ensure that they took those bills to Cabinet, and the bills were processed as quickly as possible. He suggested that the Committee come up with targets during the coming week. The target needed to be that all of those bills should be passed by next year.

Members agreed with the Chairperson.

Ms Mpikashe did not have any comments to add; the Chairperson had covered what she wanted to say.

The Chairperson said that the Committee would meet the following week. The CLSO might need a lot of input, but a number of bills were with the Committee, so it would need a lot of support. He felt that most bills would not be too difficult to deal with. There was the problem of poor planning on the Department’s side.

Members had raised an issue related to the Department of Correctional Services (DCS), and the Chairperson thought the Committee needed to be “much harder” on the DCS. The DCS had not developed any drafting capacity. That was unsustainable.  Any other President who comes in for a term of five years might have a different view, and others might think that the DCS must be a standalone department with its own minister. What kind of department would it be without any drafting capability? The Committee had raised that issue before. The Chairperson felt that it was part of the problem that the DCS was using some of the skills of the DoJ&CD. He asked the Department to inform the Minister that that issue needed to be addressed.

The meeting was adjourned.