Legislative programme & bills with Constitutional Court deadlines; Remuneration of public office bearers of independent constitutional institutions, with Deputy Ministers

Meeting report

The Chairperson said that the Committee would be receiving a report or a briefing from the Deputy Minister of Justice, Mr John Jeffrey, on the salary determination for the Office of the Public Protector, Deputy Public Protector and the South African Rights Commission. He handed over to the Deputy Minister.  

Briefing by the Ministry of Justice and Correctional Services on the determination of salaries and allowances of the Public Protector, Deputy Public Protector and Commissioners of the South African Human Rights Commission

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (DoJ&CD), briefed the Committee on the determination of salaries and allowances of the Public Protector, Deputy Public Protector and Commissioners of the South African Human Rights Commission.

Deputy Minister Jeffery tended the apology for the Minister. He was not sure whether Deputy Minister Holomisa was present. The Ministry had been notified on Thursday and it had other programmes. The Minister was giving a lecture on the 25th anniversary of the Constitution in Limpopo. He was addressing a workshop of the Office of the Public Protector in Muldersdrift. Deputy Minister Holomisa had another engagement in Limpopo as well.

The first issue was the issue of salary increases. This was the same as what the Committee had done for the Magistrates and Judges before the end of the last session. The Commission for the Remuneration of Public Representatives makes recommendations for everybody, members of the Executive, provincial legislators, counsellors, traditional leaders and now, the Chapter Nine office-bearers. Its determination was 3% across the board for everyone, with effect from 1 April 2021. The President accepted that determination by the Commission. It then needed to be approved in the case of the Chapter Nine institutions that were linked to the Department. That would be the Public Protector, the Deputy Public Protector and the SA Human Rights Commission Commissioners. The determination had to be approved by the National Assembly. That was effectively what the Department was asking for. He was not sure if the Chairperson wanted him to go into any further detail.

The Remuneration Commission had, as he had said before in the case of the Magistrates and Judges, considered submissions from stakeholders, the fiscal condition of the State, the wage bill, the impact of the salary increment on the fiscus and the general economic status of the country. The President then considered that report and submitted his determination to the Speaker of the National Assembly with regard to the Constitutional institutions. The President submitted that in June 2022. That was recommending the 3% increase. That was what the Department was asking the Committee to support so that the House could support it as required by the Act. It would be a 3% increase for the Public Protector, Deputy Public Protector, Chairperson of the Human Rights Commission, Deputy Chairperson of the Human Rights Commission, full-time Commissioners and part-time Commissioners. 

Discussion

The Chairperson thanked the Deputy Minister for the briefing. He asked the members if they had any questions.

Adv G Breytenbach (DA) had a question unrelated to the topic that the Committee had been briefed on. She wanted to know what progress had been made with the implementation of the occupation specific dispensation (OSD) at the National Prosecuting Authority (NPA). The Deputy Minister knew her views on this matter, and he knew very well what the demoralising effect was of this huge salary discrepancy between senior deputy directors and senior state advocates. While the salaries were being increased by 3 or 4%, what is being done about the occupation specific dispensation? The question was continually dodged so she wanted some specific information.

The Chairperson said that he took it she did not have a problem with the 3% increase and that was why she moved to the second issue.

Adv Breytenbach said that she did not have a problem per se. She would have to take it to her caucus.

Ms N Maseko-Jele (ANC) welcomed the presentation and supported the increase. She said there was no choice. If there was no 3% increase, there would be a lot of noise. She thought that it was fair.

The Chairperson asked the members if there were any dissenting views on the 3% being given to the Office of the Public Protector and the South African Human Rights Commission.

There were none.

The Chairperson asked the Deputy Minister if he had any updates on the question raised by Adv Breytenbach.

Deputy Minister Jeffery said that he, unfortunately, did not. The point raised by Adv Breytenbach was a valid one. The occupation specific dispensation was not just a problem with the NPA. It was also a problem within the Department of Justice, where people with specific skills who are not in management positions get paid more. The result is that people who are in the OSD category then do not want to apply for more senior posts that are not in the OSD category because those posts were earning the same, because they were not on OSD. There was a problem. He respectfully asked that the Committee, if it supports Adv Breytenbach, which it probably should, raise this with the National Director of Public Prosecutions and the DoJ&CD Director-General. They should be given sufficient time to respond to the issue. He told Adv Breytenbach that it was a little bit of an ambush.

Adv Breytenbach responded that it was not intended to be an ambush.

Deputy Minister Jeffery said that he understood her seeking any opportunity to raise the issue. He did not have a problem with that.  

The Chairperson thanked the Deputy Minister for his response. This matter had been raised on a number of occasions, even with the National Director of Public Prosecutions on two or three occasions. The Committee would request that when the Minister comes before the Committee, for the Budgetary Review and Recommendation Report (BRRR) process, he should dedicate some time to give a detailed briefing on this matter on what progress was being made. At some point, it was before the Supreme Court of Appeal. The Committee was told that even at that time work was being done to address this issue. The Committee was quite concerned because it was a funny distinction to distinguish between a Senior State Advocate and the Director of Public Prosecutions because in most cases most of the senior cases, complex cases, were either dealt with by the Deputy Director of Public Prosecutions or the Senior State Advocate. It was something that the Committee would like to be finalised as soon as possible.

The Chairperson asked the members if they were done with this item.

Mr X Nqola (ANC) said that he was cut off when the Deputy Minister was saying the Department was here to ask the Committee to support the 3% increase and make this recommendation to the House. He was not sure what the Committee had agreed upon. Was the Committee supporting the proposed increment?

The Chairperson responded that the Committee would support the proposed increase.

Briefing by the Department of Justice on Bills with Constitutional Court deadlines

The Chairperson said that the Committee would move to the next item. This item arose the previous week when the Committee was receiving a report from the Parliamentary Legal Services on the Bills that had Constitutional Court deadlines. It was not on the original programme but because of the urgency that this matter deserved, the Committee thought that it should urgently invite the Department. It was quite clear that for this year there were already two Bills that had Constitutional Court deadlines, which Parliament would not be in a position to finish on time. Both Bills had gaps in the law. There were no read-in provisions. Should the Bills not be passed there would be a gap in the law. The Committee thought that it needed to have a briefing from the Department so that there was a way forward. The Committee did not want to only cover the two Bills but wanted to cover all the Bills that would be coming early next year. One of the decisions that the Committee took last week was that by October next year the Committee would have passed all the Bills that had Constitutional Court deadlines that are ending either in 2023 or 2024. The decision was that the Committee would ask the Departments, both Correctional Services and DoJ&CD, to make a presentation on how they were going to make sure that those deadlines were met. From now on the Committee wanted to receive regular briefings on all the Bills to monitor their progress so that the Committee was not caught napping again. The Committee did not want to be told in two months that there were Bills with looming court deadlines. It was not good for the relationship between the Constitutional Court, or judiciary, and Parliament. At the end of the day, it was Parliament that had to pass Bills. The tendency has been that the executive kept Bills within its system for a very long time and only introduced Bills when Parliament was left with little time to pass those Bills. Then the court would say Parliament, not the executive, did not meet the Constitutional Court deadlines. The Committee thought that it would be proactive. The Committee needed to project manage this whole process from now until October of next year. The Committee would make sure that it prioritised Bills that had deadlines and there were no read-in provisions, as the first priority. After that, Committee would prioritise Bills that had Constitutional Court deadlines and there are read-in provisions. It would not want a situation where a lot of Bills that had read-in provisions were not being passed by Parliament. That was the main reason why the Committee invited the Departments. The Committee wanted to see a plan that would navigate it out of this predicament. The Chairperson handed over to Deputy Minister Jeffery.

Deputy Minister Jeffery thanked the Chairperson for the invitation to address the Committee. The Department had a presentation on the Justice Bills with Constitutional Court deadlines. The Deputy Minister requested the Department to take the Committee through the presentation.

Ms Kalayvani Pillay, Deputy Director-General: Legislative Development, DoJ&CD, briefed the Committee on Justice Bills with Constitutional Court deadlines. The briefing detailed progress on a number of suspended Constitutional Court Orders. The presentation highlighted the Cannabis for Private Purposes Bill [B19-2020] that was being considered by the Portfolio Committee, which is deliberating on proposed amendments to the Bill. The presentation highlighted a draft Bill, the Conspiracy and Inducement to Committee Serious Offence Bill, which would address the issues in the EEF judgement of November 2020. The Bill has been finalised with inputs from the National Prosecution Authority and the South African Police Services. The Department was engaged in processing the Bill through Cabinet to obtain approval to introduce the Bill into Parliament. The presentation noted that the Drugs and Drug Trafficking Amendment Bill has been introduced in Parliament. A draft Extradition Bill has been finalized and is being subjected to a short consultation period.

The Chairperson intervened and asked what was soon. The Committee wanted specific dates so that it was able to plan. It cannot work with ‘soon’. The Department needed to work on concrete timelines. The Committee would not accept things like ‘soon’. The Committee was in crisis mode. The Committee wanted to get out of crisis mode, so it wanted to plan better.

Discussion

Dr W Newhoudt-Druchen (ANC) said that she did not have questions about the presentation. She wanted to ask a question about the South African Sign Language which had been gazetted. It was published for 30 days to solicit public comments. She sought clarity on the process that will be followed and if the bill will before the Committee before its term of office expires.

Ms Maseko-Jele raised that last week when the Committee was dealing with these issues, it was a very sensitive matter. She and Adv Breytenbach raised the issue of capacity. She wanted to raise it again. Looking at the term, the Committee was only left with one year. The Committee wanted to make sure that most of the work would have been done by the time it exited the term. She wanted the Department to reassure the Committee that there was capacity and that there was no risk of the Committee not reaching the deadlines that it was talking about. She raised this because the presenter kept on saying that some of the work the Department had been doing, it had been doing for quite some time. The presenter said that the Department had been working on the Bills for some time. That also needed to be considered. If the Department had been working on these Bills for some time maybe by now the Committee would have seen most of the progress on these Bills. She wanted to know if there was any risk relating to these Bills not being finalised before the members exited. She would appreciate it if the Bill concerning paralegals could be dealt with. The Committee needed to finish that one before it exited in honour of a departed member, who was passionate about the issue of paralegals.

Mr Nqola said that he was not quite convinced or happy with the presentation as it was structured. He was also not happy with the progress that had been made in respect of these Bills. He expected that when the Committee is presented with Bills with Constitutional Court deadlines that there would be a slide that spoke in detail about the progress made in each and every Bill. For example, the most urgent Bill was the Drug Trafficking Bill. The Drug Trafficking Bill’s deadline was 17 December 2022. That in a nutshell said that there were four months for Parliament to finish up the Bill and send it to the President. There was no detail that said since December 2020, this was the progress that had been done. The presentation did not detail when the Department had conducted consultations on the Bill. The deadline on the Drug Trafficking Bill was fast approaching without the Bill having been submitted to Parliament within a reasonable time. Parliament was expected to work on a Bill, a very important Bill, in the space of four months, if not less. The riskiest part was that it was said that the Bill had no read-in provision. That in effect meant that there was a vacuum throughout. That was how Parliament should operate. The Department must be able to submit these Bills to Parliament within a reasonable time so that it allowed the legislature to process these Bills within that particular reasonable time. Parliament applying for an extension did not guarantee that the Constitutional Court would grant it an extension. Even if Parliament was granted an extension on a Bill, it would not be working on extension mode. It was time that the Department help and be fair to Parliament. Bills must be submitted to Parliament in a reasonable time so that Parliament could process them. He proposed that the Department go back with this presentation, re-work it so that in the Bills that are reaching deadline next year and 2024 the Committee was not facing the same problem it was facing as it related to the Drug Trafficking Bill. The Department needed to work out a timeframe that on this particular Bill it was expected to have done ‘ABCD’ from this date to this date. There needed to be specifics as to how the Department was working on these Bills. If that was done, he believed that Parliament would be able to effectively work on these Bills within the period given by the Constitutional Court. If the problem which has found the Committee where it was now related to what Ms Maseko-Jele was saying of capacity, then the political principals of the Department needed to work on that. The political principals needed to work on the capacity-based challenge if there was a capacity-based challenge in the Department. The Committee needed to work in a properly coordinated way for it- to execute what the Constitution required it to execute. He proposed to the Committee that the plan be reworked properly.

The Chairperson responded that the Drug Trafficking Bill was introduced the previous day but the arguments he raised still stood.

Mr W Horn (DA) said that if one had not properly been under the impression about the workload of the legislative drafting unit of the Department up to now then the one thing the briefing achieved was to confirm that it was a very busy drafting unit. As part of the Committee’s oversight, it might consider interrogating as to whether the organogram and capacity of the unit was sufficient to serve the country properly. But that was a conversation for another day. He shared the sentiments expressed by Mr Nqola and especially if one considered the tradition in South Africa’s constitutional democracy that legislation was initiated by the executive. If one considered the findings against Parliament of late regarding the constitutional fact that it was Parliament that must pass laws, then this presentation unfortunately did not take Parliament forward in a big way. A new system must be set up in which Parliament could properly manage and keep oversight over whether the legislation to be initiated by the executive would not bring Parliament into trouble. There needed to be a specific safety net in place in terms of timeframes so that Parliament could act. Last week he had said that it was something that needed to be wrestled with in other forums. It remained a firm point of view on the side of the DA.

He wanted to understand something better from the Department. He referred specifically to the Drugs and Drug Trafficking Bill which had been tabled yesterday. He had perused it quickly. The one interesting aspect is that in the memorandum it was made clear that in respect of this Bill the Department did not follow any public or stakeholder engagement process. It was an interesting question as to whether that was a necessity in order to pass valid laws that the Department must, prior to tabling this, follow such a process. He wanted to know the Department’s views specifically in the event as it was argued in the memorandum this was to give effect to a specific and focused finding by the court of unconstitutionality. If this was the reason, and it was an acceptable reason in this specific case, and if it was not enforced by the very tight timelines then why in relation to other Bills where there had also been a very specific finding about unconstitutionality and even guidance by way of the read-in proposal, why then does the Department embark on a very lengthy and complicated consultation process? Should the Department not then distinguish in future between those legislation that is enforced by court orders, and as a matter of principle decide that if it is to give effect to court orders then the Department must really just assist the Committee to introduce a Bill to give effect. The legislative agenda of the Department must then work in a parallel but separate way, ultimately. He wanted the Department to give its thoughts on this specific issue, as part of this engagement.

Deputy Minister Jeffery responded that he shared a lot of the frustrations that members had raised. There were two types of court orders. The most usual one was that the court would do a reading-in provision and give Parliament two years to affect an amendment, failing which the reading-in provision would continue. The Committee would recall with the Customary Marriages Amendment Bill that the Department was late because it was a section 76 Bill, so it had to take longer. The Department approached the court for an extension. The court said it would not give the Department the extension because it did not need it. The court said that the Bill could be passed whenever Parliament liked, the reading-in provision took effect from the moment of judgement and would continue indefinitely. Parliament did pass that Bill eventually but some time after the deadline. The court had not been prepared to give an extension. In some Bills, it’s the same judgement as in the Drugs and Drug Trafficking. The courts struck down a section of the Extradition Act immediately. There was no read-in. The Department had continued for almost two years without that provision. It was deemed not to be necessary. There was a revision of the draft Extradition Bill. It had been published by the Department for public comment. The Committee would know that with the cannabis legislation, Parliament was not going to make the deadline. It had been with Parliament for some time. It had been with the Committee for some time. If Parliament was just amending the legislation to comply with the court judgement, it would have been easy. It had become more complicated because of other issues that people were raising. There was not going to be any prejudice, there was not going to be any gap if Parliament did not make that deadline.

He discussed the Drugs and Drug Trafficking Bill. The main Act was short. It had a provision that allowed the Minister to add a schedule of drugs by regulation. This was struck down by the Constitutional Court, which said that Parliament could not delegate its legislative-making powers to amend the schedule to the Minister. It had to be done by Parliament. The Bill was taking out that offending section and then putting into the schedule of the Bill all the drugs that previous Ministers over the years had put in by regulation. His understanding was that it was nothing new to the existing law. It was just being redone so it was done by Parliament. That was why it was not published for comment. The question was, why did it take so long? That was a valid question. Initially, the delays were that the official who was working on the Bill wanted to revise the whole Drugs and Drug Trafficking Act. This Bill was meant to be introduced in February in Parliament. After the Bill was completed, it would then be subject to bureaucratic processes. That unfortunately also took time. He had to intervene with that Bill specifically, with the DG and the Presidency, to get it put onto the programme for the Cabinet Committee. The official who was working on it did have COVID quite badly, so he was out of action because of that. Those were some of the problems.

There was a capacity issue. The capacity issue is also related to legislative officials passing away. New staff had been brought in, but it took time. Legislative drafting was a specific exercise. A number of officials had retired. The Department would welcome the Committee looking at that branch particularly. He was just raising some of the problems. The other problem was that the Department would provide deadlines and then not keep it. The Drugs and Drug Trafficking Bill was meant to be introduced in February or at least the first quarter of the year. As far as the other Bills, the Department would need to engage with the Committee. The urgent one was the Drugs and Drug Trafficking Bill because there was a gap. Although it should not be difficult to pass because that was effectively keeping the law as it was, but just do it through the right procedure. Not by ministerial proclamation but by Parliament.

The other Bills, Parliament was not going to make the Cannabis Bill deadline. The Riotous Assembly Bill, there was a reading-in provision that was not going to be met. A draft was prepared as Ms Pillay had said. There were some issues that the NPA was now raising on that Bill. The RICA Bill was going to be particularly important. Other Bills were more technical. He discussed the new Bills. The Constitution Eighteenth Amendment, he was not sure how many submissions were received and how many of those submissions were substantial. It was a very short Bill. He was hopeful that it could be introduced soon. It had been through the Cabinet process already. He hoped that it could come to Parliament soon. The Judicial Matters Amendment Bill, as Ms Pillay said, was an omnibus bill.

There were a lot of things that needed to be changed. The Department would do a Human Rights Bill, a revision of the whole Act. That gets passed by Parliament in the last session. Everybody is happy with it, including the Human Rights Commission. Then, there is a new Human Rights Commission that then started saying no, they wanted further amendments. Some of those were in the Judicial Matters Amendment Bill. The Maintenance Amendment Act had been passed relating to the blacklisting of maintenance defaulters. He was not sure if Mr Horn had the reply to his Parliamentary question. There was a lot of controversy around the blacklisting, but it was carried; it was passed. The blacklisting had not been happening because there was a gap where there was a requirement for the court staff to send the names to the maintenance defaulters but there was no provision for the credit bureaus to actually put them on a blacklist. That had to be corrected. There was section 55(a) of the Sexual Offences Act, which allowed the Minister to designate sexual offences courts. The intention of section 55(a) was for specific courts to be designated so that the public could know that this was a sexual offences court and that this was what the regulations said one could expect in that court. It had hit a legal problem in that it would seem that there was only one regional court for a province and the Minister could not legally designate specific regional courts as sexual offences courts in that province. The Minister had to designate all the regional courts so that was something that required an amendment. Parliament passed the Domestic Violence Amendment Act which allowed for applications to be made online. One of the issues that had come up was that still needed to be done via way of affidavit. It could be done by way of declaration as happened with SARS, which is what the Department wanted to see happening. But there was no provision in the legislation to penalise making a false declaration and it could not work unless there was that penalty. The Department had looked at whether that could be done in regulations, but it effectively could not. He was raising these as examples where they thought they got things right, whether it was the Department or Parliament, and then something else was found that no one had thought about that had come up.

He discussed publication for public comment by the Department relating to Mr Horn’s question. As far as he was aware, there was no Constitutional obligation for the Department to publish. The requirement for public comment was with Parliament and that was where matters had been struck down. He was not aware of any cases relating to a lack of consultation by the Department before Bills were brought to Parliament. The Department did publish Bills to make the members’ lives in Parliament easier. The Magistrates Bill, the Lower Courts Bill had been published for public comment. The Extradition Bill had been put out for public comment. The PEPUDA Amendment Bill had been put out for public comment. The idea was to try and make it easier. The Drugs and Drug Trafficking Bill was not put out for public comment because of time problems. That Bill was ensuring that the existing law continued. The Department would need to engage on which Bills it proceeded with.

He spoke about the Judicial Matters Bill. There are a number of areas that would deal with some of the ones requiring Constitutional Court deadlines. There was a Bill on sex work, which had been a hot topical issue.

He responded to Ms Maseko-Jele, the Regulation of Community Advice Offices Bill was on the programme. There was the Legal Practice Amendment Bill which the LPC are wanting urgently. Then there were the corruption-related matters including one on the Special Investigating Unit and Special Tribunals Act, which the SIU wanted. The government would be producing a response to the Zondo Commission report and that may affect some of those issues. Also, with the new advisory council on preventing corruption, they may have issues that required amendment. The Department would have to sit with the Chairperson and other members of the Committee to look at what can be brought and what cannot be brought. The Committee had been raising that it wanted a revision of the Public Protector Act, which was not on the Department’s programme at this stage. It was an issue of both capacity in the Department and capacity from the Committee and Parliament. Whilst the court did say that Parliament was the legislative body and that Parliament must amend legislation, one also had to consider the capacity of the legislature. When a Committee is processing a Bill, the officials from the relevant Department would sit with the Committee to effect the necessary amendments. It was not Parliamentary officials who were doing those amendments that the Committee wanted.

He handed back to Ms Pillay and her team if they wanted to add other issues. He was not happy and apologised for the lateness of the Drugs and Drug Trafficking Bill. That was a priority because there would be a lacuna. Although he did not think that there was anything that one had to apply one’s mind to. Notwithstanding this, it should have not come so late. The Committee should look at the capacity of the Department on this issue. He had raised some of the questions. A post could not just be filled and then expect that person to hit the ground running. Ms Pillay could provide details on the numbers of people who were retiring or had already retired. It needed to also be remembered that those officials also had to draft regulations. The one official who was involved in the Drugs and Drug Trafficking Bill was also doing regulations for the Cyber Crimes Act. He seemed to have a lot on his plate.

Ms Pillay said that the Deputy Minister had answered most of the questions. She wanted to add on the issue of capacity and whether there was a risk to deadlines. She noted that after Mr Bassett had retired in February 2020, the Department was left with two senior drafters on the LP10 level. Theresa Ross was one of them and in February this year, Dr Ina Botha also retired. At the end of this month, on the State Law Advisor level, which is all the Department had remaining, the Department had 10 people on that level. Ms Van der Walt would retire the next day. The Department had two retirements expected by the end of February next year. The Department was running a serious risk of lack of experience capacity. What the Department had done in the past few months was to pair the new junior officials with senior officials. Senior officials would also be asked to come back and assist in finalising certain other Bills while those posts were awaiting being filled. The other issue was that the Department could not fill the LP10 positions because of the moratorium on the filling of LP10 vacancies. There was an option to fill those on the LP9 level, which was what the Department was currently exploring. There was a serious risk in the unit in terms of senior staff exiting. The junior staff that the Department employed were very committed and skilled. However, everyone was aware that legislative drafting took a long time to learn in terms of what needed to be done. The Department was also tightening up on the management side, to monitor the deadlines.

She agreed with Mr Nqola that the Department should be providing more specific dates. That would assist the Department as well in managing those outcomes. The Deputy Minister had covered the rest of the issues.  

A Department official said that the Department was addressing the capacity issue. It was training the new officials so that they were able to get into the mode of processing what was required timeously. The Department was making that intervention in terms of capacitating the new officials. The Department would bring a timeline on the processing of the Bills that the Committee would want to deal with first. The Department would get an indication from the Committee when it would need to submit that so that the Department could start focusing on those identified pieces of legislation that it would have to process.  

The Chairperson thanked the Department for their responses. He suggested that the Department, the Parliamentary Legal Advisors and the Committee Secretariat sit and work on the timelines in the next two weeks. Then those would be presented again to the Committee. At least once a month the Committee would have a slot dedicated to a briefing on the progress that was being made in legislative drafting. It would be part of the Committee’s agenda. Once a month the Committee would get a detailed briefing from the Department, working together with Parliamentary Legal Services and the Committee Secretariat.

Deputy Minister Jeffery asked to be excused from the rest of the meeting. He also noted that he had asked if the meeting could start at 9am the next day because he was addressing a community meeting in Mitchell’s Plain later in the morning. He asked that the Chairperson raise the matter of an earlier starting time tomorrow with the Committee.

The Chairperson said that the matter could be processed now. He asked if there were any objections from the members to the meeting starting at 9am.  

Mr Horn said there was no objection.

Ms Maseko-Jele requested that the Department put the Bills in order of priority and categorise them, as the Deputy Minister had talked about.

Ms Pillay noted the request.

The Chairperson asked for the Committee to proceed to Correctional Services.

Briefing by the Department of Correctional Services on Bills with Constitutional Court deadlines

Deputy Minister Patekile Holomisa said that there were two Bills that were being processed. One was the JICS Bill, which was meant to establish JICS as an institution. It would be spearheaded by JICS itself while working together with the Department. Then there was the Amendment Bill to the Correctional Services Act. The difference between the two was that the JICS Bill assumed that the cooperate identity that was required to be established with Treasury has been established. That had not yet happened. It required Treasury to state exactly what form this corporate identity was to be. The Amendment Bill itself was simple. It intended to deal directly with the need to comply with the Constitutional Court order, which was to establish the independence of JICS. The Amendment Bill had been finalised. It had been taken through the processes within the Department’s Office of the Chief State Law Advisor. The Chief State Law Advisor had approved it. The development committee had approved it. The DGs of the JCPS Cluster had also endorsed it. Now it was the question of it being presented to the Cabinet Committee, which was scheduled for 15 September, and to the Cabinet on 21 September. The Department believed that the Amendment Bill would substantially comply with the ruling of the court. The other Bill required some work to be done. National Treasury seemed to be of the view that this particular institution ought to be part of a broader body of human rights defending bodies, where there was going to be a central position that was going to deal with the management of the finances and so on. It was difficult for the Department to formulate a Bill that appoints the CEO of, for instance as requested by the JICS, to become the accounting officer when the PFMA required that an appointing officer had to be the accounting officer of the Department to which that body was attached. The Department initially thought that the DPCI would be the equivalent of JICS. But on later scrutiny, the Department established that that was not the case. These two institutions were not the same. It was more similar to the IPID than to the DPCI. IPID was a body that was contemplated by the Constitution and therefore it was somewhat different to JICS, which was with the Department of Correctional Services. It was something of an anomaly that JICS had to be independent in form and conception. The Department required that the accounting officer of that body which exercised oversight functions over the Department had to have as the accounting officer; the National Commissioner in the Department’s case. It would be called a DG in other Departments. The Department believed that having scrutinised this and having gone through all of the processes, it should be able to pass Constitutional muster. The Department was aware that it was something of an anomaly that the accounting officer be the National Commissioner. The Department would even have to amend the PFMA in order to allow for the CEO of JICS to be the accounting officer. In the course of time, the Department should be in a position to come up with the Bill that was going to establish JICS as an institution in line with the Constitutional Court order. The amendments that were to be affected go a long way to applying the court order then the Department would be able to make progress.

Mr Jacques Van Wyk, Legal Services, Department of Correctional Services, said the Correctional Services Amendment Bill was firmly on route. The Department was presenting it to the Cabinet Committee on 15 September and to Cabinet on 21 September. It was envisaged that it would be introduced to Parliament directly thereafter. The Department was of the view that there would not be any opposition to the Bill. It was a straightforward, simple yet effective Bill to address the concerns of the Constitutional Court. The JICS Bill was a parallel process, and it was not being shelved. The Department was awaiting finality on the business case, corporate identity and funding model of JICS. Many of the provisions in that Bill hinged on the final determination from Treasury and from the government. Therefore, that Bill could not proceed further in this regard. He mentioned a brief history as to why the Bill was only introduced now. In 2019 before the Constitutional Court judgement, the Department, together with JICS, already worked on a business case as well as the JICS Bill. In fact, the JICS Bill was currently on version 20. Version one emerged from the Department’s deliberations and worked done in 2019. That was after the High Court judgement in the Sonke matter. That application was launched by Sonke Gender Justice NPC during January 2017. He was part and parcel of that. The Department had many deliberations at the Union Buildings with the Presidency, the Department of Finance, DPSA, Public Works, and JICS. It was agreed that at the end of the day, to address all of these issues, JICS should have its own Bill. The relevant provisions in the Correctional Services Act should be repealed and replaced by the provisions in the JICS Bill. That was how it was initiated at the time in 2019. Through that, deliberations took place, consultations took place, and it was envisaged at the time and mandated by the executive that any confirmation made by the Constitutional Court with regards to this of any impugned sections would then be cured through the JICS Bill. But it was also envisaged at the time that finality would then be received on the business case and funding model of JICS timeously so that the JICS Bill could go through its paces and ultimately be introduced into Parliament, to make sure that the Department made the Constitutional Court deadline way in advance. Unfortunately, by the end of last year, there was still no finality on this. A decision was made by the executive that a Correctional Services Bill be developed, which was done, and taken through its paces to address timeously the concerns raised by the Constitutional Court and cure those impugned sections through the Correctional Services Bill.

Discussion

The Chairperson said that in terms of the deadlines this Bill, the Correctional Services Amendment Bill came before the deadline of the Drug Trafficking Bill. The Drug Trafficking Bill was on 17 December. This one was on 3 December, which put the Committee in a more difficult position than the Drug Trafficking Bill. The Chairperson invited members to make comments and ask questions.

Mr Horn said that the members did not want to repeat all of the comments and arguments around timelines. That would serve no purpose at this stage. He wanted to focus on the other important issue. That was the issue of the Bill not being able to be finalised because of, he did not want to say conflict, the delay in finalising the classification of who would be the accounting officer. This was not the first time that this Committee came across a situation where this was bedevilling implementation. The Committee had the same situation with the Information Regulator, although there it happened after the legislation and after the appointment of the Regulator. What worried him was that from the presentation he was not forming the impression that the Department was closer to a solution. He did not know to what extent that would then call for action in terms of involving all stakeholders to ultimately get to a point where the Committee did not ‘get to see a repeat of this movie every time a new State institution or entity was about to be set up’. That was something that the Committee should consider. In the light of all the other delays, the Committee needed to find it regrettable that this was now the final nail in the coffin of Parliament again not meeting deadlines. The Committee needed to deal with it proactively in terms of going back to court.

Ms Maseko-Jele said that her concerns were the same as the ones of Mr Horn. Even if the Committee received a postponement on this Bill, the matter would still not be resolved unless all the stakeholders came together and resolve the matter of who was supposed to do what in terms of the accounting officer. She was concerned and did not see the Bill being finalised soon even after the deadline. She requested that the Committee needed to do something soon.

The Chairperson said that the members had asked him to write to the Speaker, on behalf of the Committee, so that she could write to the Leader of Government business. That was done. The Speaker wrote back informing the Committee that she had written to the Leader of Government Business for him to intervene in this matter. He was informed that the Leader of Government Business was dealing with the matter. However, it would still be important that the Committee received regular updates as to how far the Leader of Government Business was in dealing with the matter.

Mr Horn was correct. It would be important that the Department, as of yesterday, should have started the process of asking for an extension. In asking for an extension there had to be concrete actions on the side of the Committee regarding how it was going to deal with the matter. If the court gave the Department six months and in six months time nothing happened, the Committee would be in the same position. It would be important that there were concrete plans in place. There was a suggestion that even the role-players be called, that was Treasury, Public Service and Administration, the Department of Correctional Services, specifically on the issue of the accounting officer. But there was still a broader issue regarding the resources and the business plan that the National Treasury was talking about. He thought that it could take years because he was not sure if they had engaged with the South African Human Rights Commission and to what extent that would require an amendment even of the South African Human Rights Commission to incorporate JICS. It would take a very long time. Everything that the Committee could do needed to be done within the next few months, from now on. He did not see the court, even if it agreed to give an extension, giving an extension of more than 12 months. Usually, it would be six months. The Committee needed plans that could be implemented within the next four months or so.

The JICS Bill had not yet reached the Committee. That was the other problem. It would be important for the Department to ask for that extension. After the Department asked for the extension, the project plan should be laid out. If the court refused, because it was not guaranteed that the court would agree, then what was the Department and the Committee going to do? If the court granted that permission maybe for three months or six months, then what was going to be the course of action in line with that? At some point the Committee had mooted the idea of a Committee Bill. Because of the complication with National Treasury and all of those issues, the Committee had felt it would be better that the issues were resolved at that level. What needed to be done was for the Department to ask for an extension. It was one of the Bills that was very, very worrisome because the deadline was much closer than the other deadlines. The Chairperson asked the Department, the Committee Secretariat and Parliamentary Legal Services to meet and work out detailed plans that needed to be put into action the decisions that had been taken today, around the implementation of the JICS Bill.

The Committee Secretariat responded that a meeting would be arranged.

The Chairperson said that detailed plans needed to be worked out. One of the most important issues was that the Department needed to ask for an extension. Depending on whether the extension was given or not, a detailed plan needed to be developed as to how to fast-track this particular process. The Chairperson asked the members if that was in order.

The Committee agreed that it was in order.

The Chairperson said that the next day the Committee would meet at 9am. He thanked all those in attendance.

The meeting was adjourned.