Land Court Bill: consideration of NCOP amendments; SAHRC vacancies: discussion; DoJ&CD Budget: Committee Report; with Deputy Minister

Meeting report

The Chairperson acknowledged the presence of Mr John Jeffery, Deputy Minister of Justice and Constitutional Development.

The Committee recorded three apologies which were submitted by Mr R Dyantyi (ANC), Mr X Nqola (ANC) and Mr S Swart (ACDP). The former two had to depart early to join the s194 enquiry, and the latter would join the meeting late.

Draft report on Budget Vote 25

The Committee considered the draft report on Budget Vote 25: Justice and Constitutional Development.

The report was duly adopted.

The Democratic Alliance reserved its position on the adoption.

NCOP amendments to Land Court Bill

The Chairperson indicated that the Committee had received the amendments made by the National
Council of Provinces (NCOP) on the Land Court Bill. Since it was a s75 bill, the NA Committee was not obliged to agree to the amendments as proposed by the NCOP.

Deputy Minister Jeffery informed the Committee that public submissions emanated from the NCOP’s public comment process.

The Department had had engagements with the land court judges, who still had issues with the draft Bill from which most of the amendments emanated. The concern was that the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), was coming out of the jurisdiction of the Land Court. At present, the High Court deals with many land dispute matters, which is not ideal because that would set up a different jurisprudence for the High Court and the Land Court. Land Court judges had also revealed that they may not be able to deal with all the disputes. The Department had agreed to take PIE out of the Land Court for now, and for it to be re-installed when the court was back up and running again.

There were also some transitional provisions relating to the rules, and staff of the Land Court that were highlighted. The judges wanted the removal of proceedings from any other court to the Land Court or vice versa so that any cases incorrectly placed could be referred to the Land Court without having to withdraw the case. Also, Land Court judges wanted concurrent appointments in both the Land Court and the High Court. The concern was that people may not want to be Land Court judges, and then it might be difficult to even appoint a judge for the Land Court. From the Department’s perspective, it envisaged the Land Court as a standalone court similar to the Labour Court. The Department had noted the concern and made a compromise that only those already High Court judges could serve concurrently. Those who were not High Court judges at the time would need to have their appointment determined by the Judicial Service Commission (JSC).

Deputy Minister Jeffery also acknowledged that there were discrepancies between the published Bill and the Bill that the Committee approved.

Mr Henk du Preez, State Legal Advisor, briefed the Committee on the proposed amendments to the Bill, which could be categorised into technical or consequential amendments; or substantive amendments.

(see NCOP amendments here https://pmg.org.za/tabled-committee-report/5352/)

Discussion

Adv G Breytenbach (DA) was not entirely happy with the arrangement of assessors, as provided by clause 12. Evidently, the assessors, as envisaged in the Bill, were being paid by the state, which was the Department of Justice. That would undermine the independence of those assessors. Also, she expressed her concern at the availability of assessors, because her experience told her that it was difficult to find and retain assessors. She remarked that such an arrangement blurred the boundary between the judiciary and the state, and she would need the Department to comment on that.

The Chairperson recalled that Adv Breytenbach had also raised the same issue on the availability of assessors in regional courts. Would it not cause problems if assessors were not readily available, or did not finish cases?

Deputy Minister Jeffery clarified that it was a completely different matter, since that was about the Criminal Procedure Act in regional courts, where the accused could elect to have assessors. In this case, it would be for the presiding officers to determine if they needed assessors or not.

He understood Adv Breytenbach’s point about not being happy with assessors being paid for by the state. He indicated that the role of assessors was to provide the court with expertise, whereas the judge was still making the ultimate decision. He conceded that he was unsure how else the payment issue could be addressed. The Minister determined the remuneration of assessors after consultation with the Minister of Finance.

Adv Breytenbach clarified that she had no intention to redo the whole Bill; she was just not in favour of the arrangement for assessors. She also conceded that she was unsure how the remuneration of assessors could be dealt with to ensure their optimal independence. She asked if those assessors would be required to take an oath in those courts, and what the content of the oath would be.

Mr Du Preez confirmed that the assessor would be taking a prescribed oath, and said that the Department would need to pay more attention to the content of the oath. It would also be emphasised to assessors that they were appointed not to decide the questions of law, but rather on questions of facts. They played the role of advising judges on questions of facts, and not deciding on the judges’ behalf.

Adv Breytenbach urged the Department to consider the content of the oath.

The Committee accepted the amendments as submitted by the NCOP. The Chairperson suggested that the report be adopted on Tuesday next week.

Deputy Minister Jeffery urged the Committee to pass the Bill in the plenary before the National Assembly rises so that it would give the Department more time to set things up. As he was certain of the support of the majority party, he urged Adv Breytenbach to lobby the Chief Whip of the Democratic Alliance as well.

Way forward on the Cannabis for Private Purposes Bill

The Chairperson noted that the Department was still not yet ready with the Cannabis Bill, and asked Mr Du Preez to indicate whether more time was needed to work on it. The Committee would rather deliberate on a bill that was of good quality.

Mr Jeffery indicated that the Bill was in a more complicated position.

Mr Du Preez indicated that a lot of the work on the Bill involved technical issues. Many issues had arisen during the most recent public comments on the Bill. That process prompted the Department to realise it needed internal meetings and consultation with external stakeholders, which were time-consuming. He indicated that the process would not conclude before Parliament rises. He apologised to the Committee. Some concerns had been raised around the constitutionality of the Bill, which was not an easy task to check.

The Committee supported the decision to grant the extension.

The Chairperson indicated that the next term would be difficult for the Committee, as it would deal with seven bills.

South African Human Rights Commission vacancies

Ms Christine Silkstone, Committee Content Advisor, took the Committee through the requirements for filling vacancies at the South African Human Rights Commission.

(Details of the presentation can be found in the attached slides.)

Discussion

The Chairperson used this opportunity to inform the Committee that some Members of this Committee, including Adv Breytenbach, Mr W Horn (DA), Mr R Dyantyi (ANC), as well as himself, had been recommended to serve on the ad hoc committee to appoint the next Public Protector in the next term. The interview process would be taking place between now and the end of August.

The Chairperson also informed the Committee that it had received a request from the Human Rights Commission to consider having all Commissioners as full-time from this upcoming term. The Commission currently has six full-time and two part-time Commissioners. The initial reason for having part-time Commissioners was because the Commission would need those part-time ones to assist in dealing with technical skills. The predicament which was later observed was that very few people with such required expertise would want to leave their full-time employment to work part-time. Hence, the Chairperson of the Commission made a request for the Committee to consider if all positions could be made full-time. He thus sought Members’ opinions.

Ms Silkstone interjected and reminded the Committee that before it made the decision, it also needed to consult Treasury to ensure that funding was available for full-time Commissioners.

Ms W Newhoudt-Druchen (ANC) agreed with Ms Silkstone’s input, and said that the Committee could not decide until there was certainty on the available funding. She also enquired about the deadline for the adverts for candidates who wished to apply for those positions.

The Chairperson brought the issue back to the main point about the decision, and replied to Ms Newhoudt-Druchen that once there was a decision about the full-time and part-time issue, the Committee would touch on those nitty-gritty operational matters.

Ms N Maseko-Jele (ANC) agreed with her colleague, reiterating that the Committee could not decide until there was certainty on the available funding.

Ms Silkstone recalled that when the SAHRC Act was passed in 2013/14, there had been a call to increase the number of Commissioners. At that time, the Committee had requested the Minister of Justice to engage with the Minister of Finance to find out that information, so she suggested the Committee follow that process to address the funding issue.

She added that the Committee was also responsible for recommending the Chairperson and the Deputy Chairperson of the Commission as well.

The Chairperson said that it was unlikely that the Commission would get the budget, based on his interaction with the Minister of Finance, so he still thought that the Commission should stick to the current arrangement and have a combination of six full-time and two part-time Commissioners. After all, the Committee had been persistently calling for doing more with fewer resources.

He then asked the Committee about the time length for which the advert for Commissioners should be published.

Members such as Adv Breytenbach and Ms Newhoudt-Druchen agreed that a one-month period should be sufficient time for applicants to apply.

The Chairperson asked Committee Members if any bills, such as those affecting the Judicial Inspectorate for Correctional Services (JICS), were ready in the middle of the recess, the Committee should not wait for briefings and instead should use the recess period for public comments and get briefings afterwards.

The Committee agreed to that suggestion.

The Chairperson described the recent developments on the Cannabis Bill as concerning, and said that this meant that the Committee would have to rework its programme in the next two weeks. A proposal on the adjusted programmes would be sent to Members by Tuesday next week.

The Committee agreed that the JICS Bill would be handled after recess.

Ms Maseko-Jele commented on public participation, and asked what Parliament’s executive did to assist those people who did not have the funds to reach Parliament, especially those people living in rural areas.

The Chairperson said this was part of a bigger issue that Parliament had to grapple with. Committees would go to communities for public hearings for big and substantive bills. He did not think those bills the Committee was dealing with warranted that process yet.

The Chairperson congratulated Ms Maseko-Jele on being appointed a Whip of the ANC, and Mr Dyantyi on being deployed as Chairperson of the Portfolio Committee on Planning, Monitoring and Evaluation.

The Chairperson adjourned the meeting.