Drugs and Drug Trafficking Amendment Bill & Land Court Bill: Department briefing; International Conventions

Meeting report

Opening Remarks 
The Chairperson welcomed Members in attendance. She noted apologies from both the Minister and Deputy Minister of the Department of Justice and Correctional Services.

The Chairperson received a phone call from the Deputy Minister stating that their non-attendance was due to a strategic planning session.

The agenda for the meeting was that the Committee would be receiving briefings on two bills. The first Bill was the Drugs and Drug Trafficking Amendment Bill; the second Bill was the Land Court Bill.

The Chairperson said the Department’s executive was not present because this would not be the last engagement of the Committee on the bills – it was a process.

If Members of the Committee had any issues that needed to be addressed concerning these bills, the Department could address them in the next engagement.

The third item on the agenda was the adoption of reports on the two international conventions that were dealt with in the previous meeting. The final report to be adopted was the Free State Oversight Report, involving the Park Road police engagement. The other engagements, including housing to benefits to military veterans, would be dealt with in a subsequent meeting. This engagement was a joint effort with the Department of Cooperative Governance and Traditional Affairs (COGTA).

Also on the agenda were minutes that needed to be adopted. 

The Chairperson said it was time to start the briefing on the first Bill.

She noted that the Drugs and Drug Trafficking Amendment Bill arose due to the Constitutional Court Judgment which declared section 63 of the Drugs Act unconstitutional and invalid.

The Amendments that were effected in terms of section 63 of the schedules of the Drugs Act are invalid.

The Constitutional Court suspended the order of invalidity for 24 months. This was done to allow Parliament to resolve the defects. The 24-month period ends on 17 December 2022. 

This Bill was referred to the Committee on 27 September 2022 for concurrence. This means the Committee did not have that much time with the Bill. She added that the Committee would still follow all necessary processes to process the Bill.

Mr Sarel Robbertse, State Law Advisor, Department of  Justice and Correctional Services, led the presentations.

Drugs and Drug Trafficking Amendment Bill, 2022 (B19 of 2022): Background
The Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992) (the Drugs Act), criminalises the manufacturing and supplying of any substance included in Schedule 1 to that Act; and the use, possession and dealing of any drug included in Schedule 2 to the Act.

In Jason Smit v Minister of Justice and Constitutional Development and Others [2020] ZACC 29, the Constitutional Court declared section 63 of the Drugs Act unconstitutional and invalid to the extent that it purports to delegate plenary legislative power to the Minister to amend the schedules to the Drugs Act; and the amendments (see paragraph 1.3 above) that have been effected in terms of section 63 to the Schedules to the Drugs Act, invalid.

Bill and Schedules
The Bill seeks to amend the Drugs Act to address the constitutional invalidity of section 63 and the amendments that the Minister effected in terms of section 63, to Schedule 1 and Schedule 2.

Part I of Schedule 1, Part II of Schedule 1, Part I of Schedule 2, Part II of Schedule 2 and Part III of Schedule 2 are amended.

(See Annexure)

Discussion
The Chairperson opened up for questions. She said she did not see any hands. The Chairperson asked since only 24 months were given to deal with the defect in legislation what were the delays in tabling the Bill in Parliament and what level of consultation was taken by the Department when tabling this Bill. 

Department of Justice and Correctional Services’ Responses 
Mr Robbertse indicated that the process to introduce the Bill started in April.

He noted before a bill could be tabled in Parliament, it had to undergo a socio-economic impact assessment procedure. After this, the Bill would have to be approved by DEFCOM, Justice Crime Prevention and Security (JCPS) Director-General Structure, and then to Cabinet. Once approval from Cabinet was received, it could be introduced in Parliament.

The period it took to introduce the Bill was from April to September. He noted a Directors-General meeting was cancelled and delayed the process by a month.

The state law advisors took a month and a half to consider the Bill before the Bill could proceed.

Mr Robbertse said there were various issues in the current Drugs and Drug Trafficking Act. In 2021 the Department tried to revise the Act. A complete bill was drafted and submitted to SAPS and two other experts were consulted. The issue was that he could not get the expert to verify the listing of the substances. The Department decided to address the constitutional issues first and deal with the revision of the Act at a later stage. The Drugs and Drug Trafficking Amendment Bill was already in draft form in 2019.

The Chairperson thanked Mr Robbertse for his response.

She said they should move to the briefing on the second Bill.

The Land Court Bill was referred to the Committee on 17 September 2022 for concurrence. The Bill proposed to establish the Specialist Land Court concerning the 1994 Restitution Act to address the current backlog in land restitution claims, deal with more land-related matters as regulated by logistics, and contribute towards the development of appropriate jurisprudence about land matters.  

Briefing to the Committee on Security and Justice on Land Court Bill, 2021 [B11 - 2021]
Mr Makubela Mokulubete, State Law Advisor, Department of Justice and Correctional Services, lead the presentation on the Land Court Bill. He introduced his colleague who worked on the Bill with him, Mr Henk Du Preez, State Law Advisor, Department of Justice and Correctional Services. 

Background
The current Land Claims Court (“the LCC”) established under section 22(1) of the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994) (“Restitution Act”), has exclusive jurisdiction and power in respect of matters relating to land, more specifically on restitution claims arising from the Restitution Act.

Challenges such as the lack of permanency of judges in the LCC and the absence of permanent seats in the LCC contributed to the slow processing of, and backlogs in, land restitution claims, resulting in the dissatisfaction of land claimants.

To improve the current legislative framework and address its weaknesses comprehensively and holistically, the Bill seeks to establish a specialist Land Court, with its judgments appealable to its full bench. This will facilitate the expeditious disposal of cases and contribute towards the development of appropriate jurisprudence in relation to land matters. 

This is coupled with the cheaper and speedier alternative dispute resolution mechanism in the form of mediation. The Bill, however, makes provision for future legislation (new or amending legislation) to confer jurisdiction on the Land Court as and when the need arises.

Provisions of the Bill
The Bill aims to establish a Land Court (the “Court”) with jurisdiction to grant any order, appropriate relief or to impose any sanction as provided for in the Bill or any other law that confers jurisdiction on the Court. It also aims to establish an appeal process to hear and determine appeals emanating from the judgments and orders of the Court; and to provide for mediation.

The provisions of the Bill set out the composition of the Court,  its powers and its proceedings, as well as the Court’s jurisdiction, the appointment of judges and their tenure and remuneration. The provisions also cover intervention, right to appear, legal representation, witnesses, evidence and mediation.

General Provisions
General provisions of the Bill are dealt with in Chapter 6. The general provisions are applicable to Court (clause 33); transitional arrangements (clause 34); amendment of laws (clause 35); regulations (clause 36) and the short title of the Bill (clause 37), which provisions are standard. 

(See Annexure)

The Chairperson thanked Mr Mokulubete and suggested that Mr Du Preez comment on any issues the Committee had.

She noted the Bill was important and it would deal with current backlogs concerning land restitution claims and land-related matters as regulated by legislation.

Discussion
The Chairperson asked if any Members of the Committee had comments or questions.

The Chairperson also noted she was aware some part-time judges were now made permanent.

Given the Bill provides for the establishment of a new court, she asked what the cost implications would be for hiring court officials and implementing the Bill. 

Mr C Dodovu (ANC, North West) welcomed the report and noted it was a good presentation.

He said the matter of the Land Court was long overdue and needed to be fast-tracked after the National Council of Provinces (NCOP)  process was concluded. It needed to be taken to the President to sign. The Bill needed to be the law because it was long overdue due to the importance of the land question.

Mr Dodovu said the government, Parliament and South Africans needed to be criticised for the delay in addressing land restitution.

He noted a report from two years ago that said only 8% of the land restitution claims were settled. There were huge backlogs in terms of facilitating these processes.

The Land Court would assist the Commission on Restitution of Land Rights in settling matters quickly.

He said communities that were displaced needed land restitution or compensation.

He was impressed with the fact that the Court could instruct the matter to be taken to mediation or arbitration. This was good because it enhanced access to courts for poor and rural communities. He said it was good that matters could go to rural communities, schools and community centres as these were the communities most affected by land dispossession.

Mr Dodovu raised an issue concerning legal representation.

He said lawyers from the legal aid board were usually not well-versed in land matters. He asked if training would be given to these lawyers to ensure they could deal with land matters to ensure people received good legal representation. 

He said lawyers at the level of the Land Court would be made permanent. He could not understand why it was not foreseen that the restitution process would require permanent judges at the level of the current Land Claims Court. He said it was unacceptable, as dispossession had been an issue since 1652. Restitution as a mechanism of land reform should have been established immediately. He did not understand the lack of prioritisation of the land issue as it was at the heart of the socio-economic struggle in the country.

Mr Doduvo noted that he was happy that the promulgation of the Bill was addressing the land issue and that judges (including a Judge President and Deputy Judge President) in the Land Court and Land Court of Appeals would be made permanent. 

 Mr K Motsamai (EFF, Gauteng) said this was one of the strongest bills he and the EFF had supported.

He said he was happy that consideration was given to those who had their land robbed and were suffering.

He said he was happy the court of law was going to assist the masses on issues concerning land. 

Mr E Mthethwa (ANC, KwaZulu-Natal) welcomed the report and said it was progressive and would be of great assistance. He said his concern was that lawyers were claiming to assist the poor but charging them a lot of money. He said now that there were permanent judges and expected advocates, how would this assist in dealing with the issue of lawyers robbing the poor? What would the new legislation do to assist on this matter?

The Chairperson thanked Members for their comments and questions.

She also asked for more information on two amendments made by the Portfolio Committee on Justice. They understood that the Portfolio Committee dealt with the removal of arbitrations as an alternative to speed resolution and the removal and substitution of the land court appeal provision. She asked for an overview of these key amendments to the Bill.

The Chairperson asked Mr Mokulubete to respond to the Committee’s questions. She noted that if there were policy matters Mr Mokulubete could not deal with that; those would be dealt with in their next engagement with Department and its executive. 

Response: Department of Justice and Correctional Services
Mr Mokulubete said he would deal with simple questions and leave the difficult questions to Mr Du Preez.

On the issue of financial implications, the Bill was taken to the costing unit where a costing report was prepared. It was correct that the Bill attracted huge financial implications due to the appointment of judges and other appointments made by the Minister. The costing report showed how much the implementation of the Bill would cost to allocate funds for the establishment of the Court. Cabinet was given the costing report during the approval for the introduction stage. He asked if the Committee wanted a copy of the costing report.

Mr Du Preez would address the issue concerning legal representation.

On the issue of appeal and arbitration, it was true that the Bill presented to the Portfolio Committee had a provision for arbitrating and establishing a special Land Court of Appeals. He said the Bill was published for public comment and many commenters were against the inclusion of a provision on arbitration which gave the Judge President power to send matters to arbitration where claimants would incur further legal costs and in the case of arbitration failing it meant the matters would still have to go to court. The commenters felt this added an unnecessary extra layer to the process. The Department felt that the exclusion of the provision was not a train smash because there were pieces of legislation that required matters to be resolved first by arbitration. There was also an Arbitration Act the parties could rely on to undergo the process of arbitration before proceeding to court. 
 
In terms of the appellate structure, there was a provision in the Bill presented to the Portfolio Committee that provided for establishing a specialist appeal court for land matters. The establishment of an appeals court was unnecessary due to there already being a Supreme Court of Appeal (SCA) that could be used to appeal land matters. Establishing the court would have also required an amendment to the Constitution. This was because, unlike the appellant structures for competition and labour matters, no constitutional provision allowed for the establishment of a Land Court of Appeal. He added there was debate over whether there was a provision in the Constitution that allowed for the establishment of the Land Court of Appeal. However, the Department agreed to remove the provision in the Bill because land appeals being sent to the SCA would not do any harm, Mr Mokulubete noted. The SCA was an established structure and would be able to deal with land appeals but there would be an influx of land cases. The influx would result from a fully capacitated Land Court that would be speedily dealing with land matters, but the SCA would be able to deal with this.
 
Mr Mokulubete experienced technological difficulties so the Chairperson asked his colleague Mr Du Preez to continue with the responses.
 
Mr Du Preez said he did not need to respond to the Committee’s questions at this stage o the briefing but the issues raised need to be worked through.

He said he could not speak to legal representation as it was up to the legal aid board to appoint legal representatives. But he trusted that they would appoint knowledgeable legal representatives.
 
Mr Mokulubete apologised for his poor connection. He said the issue of the capacitation of legal representatives that Mr Du Preez responded to was an issue that would be best dealt with by Legal Aid South Africa. He apologised for not being able to provide a comprehensive answer to this question.
 
Concerning the recalcitrant lawyers, he said the Land Court was empowered to refer the issue of corruption to relevant authorities to deal with.

Concerning the lawyers, even if the issue did not concern corruption, the court was still empowered to intervene in terms of the Legal Practice Act. This Act established the Legal Practice Council which deals with the conduct of legal practitioners.
 
The Chairperson thanked Mr Mokulubete and Mr Du Preez for their responses and noted that this was not the last engagement they would have concerning these bills.

She also indicated to members of the Committee that they would proceed with advertisement calls for public comment on these bills. This would be done bearing in mind the Constitutional Court deadline for the Drugs and Drug Trafficking Bill. Due processes would be followed to ensure the bills would be completed timeously.

She said there would also be further engagements with the Departmen’s’ executive on issues surrounding comments made on the Bill.
 
Adoption of Reports
The Chairperson moved on to the next item on the agenda which was the adoption of reports.
Report of the Select Committee on Security and Justice on the International Convention on the Suppression and Punishment of the Crime of Apartheid: Adopted by the General Assembly of the United Nations on 30 November 1973, tabled in terms of section 231(2) of the Constitution, 1996, and the Explanatory Memorandum to the International Convention on the Suppression and Punishment of the Crime of Apartheid: Adopted by the General Assembly of the United Nations on 30 November 1973
 The Chairperson noted the recommendation by the NCOP was to approve the Convention.
 
The Chairperson said Members would have received copies of the report and asked if Members wanted to make any additions or corrections to the report. In this case, there were no additions or corrections a move for the adoption of the report needed to be taken.
 
Ms M Bartlett (ANC, Northern Cape) moved for the adoption of the report.
 
Mr G Michalakis (DA, Free State) said the Committee would fail in their duty to not deliberate.

He commented that he was willing to second the adoption of the minutes because, as the DA, they would support any instrument that condemns the crime of Apartheid.

He said he found it questionable and concerning that the treaty was signed in 1973 but it was only being dealt with by the Committee 25 years after the end of Apartheid.

As there was the South African Constitution which condemned the crime of Apartheid and that South Africa was party to the Rome Statute which supported the fact Apartheid was a crime and should never be repeated.

He said he was happy to second the adoption of the report.
 
There were no objections or additions so the report was duly adopted and the comment made by Mr Michalakis would be reflected in the Committee meeting minutes.

The Chairperson added that the comment made by Mr Michalakis was addressed in a previous meeting.
 
The Chairperson moved to the second report.
Report of the Select Committee on Security and Justice on the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), tabled in terms of section 231(2) of the Constitution, 1996, and the Explanatory Memorandum to the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)
 
The Chairperson noted the recommendation by the NCOP was to approve the Convention.

She asked if Members had any additions or amendments to make before the adoption of the report.


Ms Bartlett moved for the adoption of the report and Mr M Dangor (ANC, Gauteng) seconded.

There were no objections to the report; it was duly adopted.
 
Report of the Select Committee on the Security and Justices on its oversight visit to the FreeState Province to oversee the conditions at Park Road Police Station on 18 August 2022, dated 12 October 2022.
 
The Chairperson asked if there were any corrections or additions Members of the Committee wanted to make.

She noted the Committee’s recommendations which included observations and questions raised with the Department of Justice and Correctional Services.
 
Mr Michalakis said the work done by the third and current contract was good and progress was being made. However, there was a dispute between the Department of Public Works and the contractor which the report did not touch on that was causing delays. The dispute was the result of escalating costs due to delays caused by the Development Bank South (DBSA) Africa concerning payments and progress.

He proposed an addition that stated where DBSA or the Department were responsible for delays, they needed to acknowledge this and, within reasonable terms, accommodate the contractor in so far as their work was good. This addition would be useful for moving the process along.

He moved for the adoption of the minutes.

The Chairperson agreed with Mr Michalakis on the proposed addition and noted that the matter had been brought up informally.

She said DBSA’s legal team and representation from the Department of Public Works were present and were trying to resolve this matter.

The Chairperson asked the Committee Secretariat to add the proposed addition to the report. She asked with the proposed addition if the Members of the Committee wanted to adopt the report. Or if they preferred to make the amendment and then move for the adoption of the minutes.

Ms A Maleka (ANC, Mpumalanga) moved to adopt the report with the amendment.

Mr Michalakis seconded the adoption of the report.

The Chairperson noted there were no objections and the report was duly adopted.

Adoption of Minutes

Committee minutes dated 15 June, 10 August, 24 August,  7 September 2022 and 21 September 2022 were considered and adopted.

The Chairperson thanked the Committee for their participation.

Mr Dangor noted that his absence from recent meetings was due to the scheduling and rescheduling of meetings by the Select Committee on Transport.

The Chairperson said they were aware of Mr Dangor’s issue and said that he should inform the Committee Secretariat in cases where he could not attend meetings.

The meeting was adjourned.