Cannabis for Private Purposes Bill: response to submissions; Judicial Matters A/B, Correctional Services A/B; with Deputy Ministers

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Justice and Constitutional Development

05 September 2023
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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In a virtual meeting, the Portfolio Committee met with the Department of Justice and Constitutional Development (DoJCD) and the Department of Correctional Services (DCS) and deliberated on the Judicial Matters Amendment Bill, the Cannabis for Private Purposes Bill, and the Correctional Service Bill with both Deputy Ministers present. The drafters presented the Committee proposed amendments (A-list) for each Bill.

The Department also gave responses to the submissions made during the second call for public comments on including hemp commercialisation in the Cannabis for Private Purposes Bill. Based on the comments, it had decided to withdraw Chapter 2 on commercialisation and reduce  certain penalties.

On the Judicial Matters Amendment Bill, Committee members asked if clause 11 on witness subpoenas was clear enough when referring to 'provincial Head of the province in which the court is situated'. The Committee requested that the final draft be ready by 8 September 2023 so the Committee could vote on it.

On the Cannabis for Private Purposes Bill, Committee members asked if people were opposed to the principle of commercialisation or to commercialisation being in the Bill. Would people accept if commercialisation of cannabis was in another Bill. The Committee asked if there was a breathalyser test for THC level. A Committee member suggested if such a machine was not available, it should not be included in the Bill. The Deputy Minister explained that such a provision had to be included but the Department would only bring this specific provision into operation when such testing was available.

On the Correctional Services Amendment Bill, Committee members asked from where the Judicial Inspectorate for Correctional Services (JICS) funding would come once it went independent and became a government component ­­– would the funding still come via the department vote or directly from National Treasury? They asked about the separate powers of the JICS CEO as accounting officer and the National Commissioner as the DCS accounting officer. The delay in the JICS Bill and the reason for the Correctional Services Amendment Bill in order to meet the Constitutional Court deadline of 3 December 2023 was discussed, as well as the general delay in meeting Constitutional Court deadlines.

Meeting report

Opening remarks
The Chairperson noted the three Bills for deliberations and appealed to everybody to stay extremely focused during the meeting. This was how meetings would be managed going forward because the Committee was dealing with multiple bills at a time. In its agenda, there would be more than two bills every day. This was so the Committee could push these bills and meet the Constitutional Court deadlines that had been set for the Bills on its legislative programme. Time was of the essence. The Chairperson welcomed the Deputy Minister.

Deputy Minister's opening remarks
Deputy Minister of Justice and Correctional Services, John Jeffrey thanked the Chairperson. He said Adv Tsietsi Sebelemetja would take the Committee through the Judicial Matters Amendment Bill. The last meeting included going through the responses to the public submissions and then an A-list of proposed amendments had been drafted and submitted to the Committee. He understands the Department also submitted the B-version which was the text of the Bill with the proposed amendments incorporated. He was not sure how the Committee wanted to proceed, if it wanted to do clause-by-clause deliberations or do it differently. He did not think there was much complexity in the issues. He asked for the Chairperson’s guidance before handing over to Adv Sebelemetja.

The Chairperson asked if they could do clause-by-clause deliberations so the Committee would know it was done with the Bill once it was done with the clause-by-clause.

The Deputy Minister suggested that Adv Sebelemetja take the Committee through the B-version of the Bill, with the proposed amendments in it. If Adv Sebelemetja merely went through the A-list, it would be difficult to follow and see what has happened in the actual Bill.

Judicial Matters Amendment Bill: Committee proposed amendments
Adv Tsietsi Sebelemetja, Acting Chief Director: Legal Services, noted the B-version working document, which indicated the changes emanating from the A-list. There would be some consequential changes on the Long Title for the clauses that were being changed or rejected altogether. On page five, the first consequential amendment was on the rejection of the clause that dealt with indicated the electronic service of documents initiating legal proceedings. The first one was at the bottom of page five. That would be removed from the B Bill.

The other change on the Long Title would be on page six. It would be the transitional arrangements that would flow from the rejection of the clause that dealt with the crime of defamation. This was to be removed; all pending cases should proceed unless the prisoner had already pleaded. The proposal was to reject that clause.

Next, it was proposed that (4) in Section 51 on the calling of a witness by the Court should be deleted. This was where the deletion came in. The next subclause would change from (5) to (4).

The Deputy Minister asked the Chairperson if he wanted the Department to pause at the end of each clause because this was now Clause 1 dealt with. Alternatively, Adv Sebelemetja could go through the whole document.

The Chairperson said if a Committee member needed clarity or wanted to raise a point then they could, otherwise the presentation could continue.

Adv Sebelemetja said in clause 3, the change spoke about the amount where it was proposed that instead of having the R1000 in the Act, it would be an 'amount determined by the Chief Master by directive from time to time'. This was because there was a comment that the Department should increase it to R5000, but it thought that every time it changed, it would have to amend the Act. Instead, if it was determined by the Chief Master by directive, this would be much better. There was an issue that current and transactional accounts were the same and the words ‘current or’. Next, instead of saying ‘or account’, ‘the type of’ was added which would be directed by the Chief Master from time to time. This could be anything other than a transactional account such as an investment account, and then the Chief Master issued a directive.

The next change was in clause 10 on page 18. It was proposed that the Department do away with the criteria for the types of offences. Once a person paid an admission of guilt fine, the Department would not bring up a previous conviction. It proposed doing away with C because high-volume offences were difficult for people to understand along with posing a low risk of harm or danger to others or the accused. These would be removed because there was generally a criterion that indicated the type of offence. This additional wording did not add much value and complicated the understanding of what types of offences were being referred to. Consequentially, the removal of (c) meant that the current (d) became the new (c).

For clause 11 on page 22, in the Department response to submissions, it indicated that section 186 spoke more to witnesses in the proceedings. The appropriate or relevant section was section 342(a) which spoke to delays in court proceedings. The person to be called, court manager or deputy director-general (DDG) responsible for court administration, was not a witness in the proceedings but rather called about the court delays. The proposal was to reject clause 11 altogether. A new clause would take its place in Section 342A where the wording would be substituted as Section 342A(1). The clause that stipulated that the court may subpoena a witness would then be deleted.

Section 342A(1) provided that ‘a court before which criminal proceedings are pending shall investigate any delays in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the State or a witness. Provided that when the court requires information pertaining to an infrastructure-related or operational matter that arose at the court which falls within the responsibility of the Department of Justice and Constitutional Development, the court manager of that court must be subpoenaed to give evidence for this purpose and if he or she is unavailable or unable to respond or provide a satisfactory response, the following officials may be subpoenaed:
(a) the provincial Head of the province in which the court is situated;
(b) the Deputy Director-General is responsible for court administration; or
(c) the Director-General of the Department of Justice and Constitutional Development.

What he read out was exactly as it was in section 186. It was just put in as a proviso to deal with a subpoena as a result of Department of Justice infrastructure or operational matters challenges.

Clause 30 was on page 35 on the electronic transmission of documents. This clause emanated from the public submission that noted the clause complicated what currently existed. The proposal was to reject this clause altogether.

Due to the rejection of clause 30, the numbering would change and clause 31 would become the new clause 30, and so on. On page 37 what was clause 34 became clause 33. The changes in the clause numbers were indicated.

Clause 36 spoke about transitional provisions. The proposal was to reject it altogether based on the inputs. The public hearings indicated that to keep the proceedings that were currently running was unfair and should be removed altogether. This meant that clause 37 became clause 35 because two clauses were rejected.

The Memorandum on the Objects reflected these changes made to the Bill.

Discussion
The Chairperson asked if there were any questions or comments on the changes to the Bill. There were no questions. He asked the Deputy Minister what the next steps were.

The Deputy Minister said the Department was in the Chairperson’s hands. It wanted to see the Bill adopted by the Committee as amended. It was up to the Chairperson if he wanted to put each clause to a vote and approve the Bill now.

The Chairperson asked if the Committee members had a problem with the Bill as a whole or wanted to raise questions on certain clauses.

Adv G Breytenbach (DA) said that the Democratic Alliance (DA) would reserve its position.

The Deputy Minister said that was what the DA always did so it was not unexpected. He assumed there were no further questions from Adv Breytenbach on the content.

Adv Breytenbach said at least the Committee did something, unlike the Potchefstroom Magistrates Court, which had absolutely nothing done to its infrastructure one year later.

The Chairperson intervened and told the Deputy Minister not to provoke other debates in the meeting. He told Adv Breytenbach to focus on the Bill at hand.

Mr S Swart (ACDP) said he was largely covered by the explanations for the proposed amendments. On the subpoena of the Department of Justice, the Committee was aware of the background to that. Infrastructure challenges were beyond the purview of the Department and was actually the Department of Public Works. How would it be covered? Is it not possible to also include the Department of Public Works? Or would that complicate matters? Those infrastructure challenges lay with Public Works yet the Department of Justice was subpoenaed.

The Deputy Minister replied that the magistrates had already been issuing subpoenas in terms of section 342 about delays to criminal proceedings due to infrastructure and other challenges such as court recording technology (CRT) machines or cameras not working. As he understood, the magistrates had not ever issued a subpoena for Public Works. His gut feeling was that it was better to make the DoJCD Director-General responsible for everything, as it was responsible for managing the court’s infrastructure.

The Bill allowed the magistrates to issue subpoenas for other courts such as civil courts and family courts which they were not able to do before. He hoped this answered Mr Swart’s question. From an accountability perspective, it is better that the DoJCD Director-General came in and spoke about infrastructure and what Public Works was doing about it. It was for information purposes and the DG would have to ensure DoJCD had all the information, which it had to obtain from Public Works.

Ms Christine Silkstone, Committee Content Advisor, asked if "the Provincial Head of the province in which the court was situated" was clear enough in clause 11.

The Deputy Minister replied that it was the Provincial Head of the Department of Justice in that province. He thought it was clear enough, but it could be changed to ‘Provincial Head of the Department of Justice of the province in which the court was situated'.

Adv Sebelemetja agreed that clarity would be needed. The Department would revise the A-list to reflect the change to clause 11.

The Deputy Minister repeated what had been agreed to.

The Chairperson said he assumed that the Committee agreed to the Bill. The DA reservations were noted. He asked if it was possible that the Bill and the Committee Report could be ready by tomorrow so the Committee could vote on it or if extra days were needed.

Adv Sebelemetja said the A-list would be updated and sent through. The B Bill would be updated to incorporate the change that the Portfolio Committee agreed to. The B Bill would be ready and the Committee could take it from there. He would send the revised A-list to the secretariat immediately so that the Bills Office could attend to the B Bill, which would be sent to the Department to proofread to ensure that all the consequential changes were taken care of. As soon as the Department received the prepared B Bill, it would be ready.

The Deputy Minister said Adv Sebelemetja was not answering the Chairperson’s question. Can that be done by tomorrow or do you need more time?

Adv Sebelemetja said he would send the A-list immediately after this agenda item was finished in the meeting today, and if the Department received the B Bill from the Bills Office today, then it would be ready by tomorrow.

The Chairperson said the vote on the Bill would take place on 8 September after the Department made its changes as the Bill needed to go to the National Council of Provinces (NCOP).

The Chairperson thanked the Department for the good work.

The Deputy Minister referred to the Committee Report. He did not know if the Committee wanted one; this was drafted by the Committee content advisor. Presumably, the Committee would also consider that on 8 September.

The Chairperson agreed and said this would be done. The Committee was done with this Bill unless there were objections from Committee members.

Mr Q Dyantyi (ANC) said that the Committee would consider the Committee Report so the Deputy Minister should not think that it would just do it.

Cannabis for Private Purposes Bill: Department response to public submissions
The Deputy Minister said that Adv Makhubela Mokulubete and Mr Henk Du Preez would take the Committee through the Cannabis Bill. He would assist in helping to resolve the issues in the Bill, but Adv Mokulubete would be presenting.

Adv Makhubela Mokulubete, DoJCD legal advisor, noted the Committee had made a second call for comments on the Cannabis for Private Purposes Bill about proposed amendments to broaden the scope of the Bill to include provisions on the commercialisation of hemp. On the 24 May 2023 the Committee held public hearings on this. The Committee will recall from the public hearings that there were much opposition to the introduction of a hemp commercialisation clause. As a result, the Department revisited the issue. The Department response document has responded to each submission. However, he would not outline each submission response as many were a repeat and he did not want to take up the Committee’s time.

Afristar opposed the regulation of industrial cannabis/hemp for industrial purposes as it created a licensing permitting system that was a barrier to entry to the rural poor and continued to leave the existing smallholder cannabis farmers out of the potential value chain. There was no clear motivation for the Department to follow this approach as it fell entirely on Parliament and the South African government to determine how to approach cannabis for industrial purposes.

The Bill made a provision for national legislation to be enacted to regulate the total commercialisation of cannabis and hemp in clauses 11 to 14. Many role-players were opposed to commercialisation provisions being included in the Bill. Therefore, the Department had reconsidered the position and proposed to the Committee to remove entirely Chapter 2 which dealt with cannabis commercial activities and commercial hemp activities.

The Chairperson asked what would make those people agree. Are they opposed to the principle of commercialisation or are they opposed to commercialisation being in this Bill? If commercialisation were to be in another Bill, would this make them unopposed to it?

Adv Sebelemetja replied that the sense was that they opposed to this Bill, including the commercialisation. The submission was that the commercialisation legislation was the one that should deal with commercial aspects of cannabis and not this Bill. Following the Prince judgment, the Constitutional Court made provision that the amendments should be effected to the Drugs and Drugs Trafficking Act so as to regulate the use of cannabis in private spaces. The intention is that this Bill should be confined to dealing with the Constitutional Court judgment for regulating cannabis. The commercialisation aspect of cannabis in its entirety should be dealt with by separate legislation. This Bill should only focus on cannabis for private purposes. The enactment of separate legislation was also opposed, which would deal with the commercialisation aspect of cannabis. He was not sure if that answered the Chairperson’s question.

Mr Swart apologised for interrupting. He wanted to follow up on the Chairperson’s question because the response seemed inadequate. If the rationale for the Department was to remove Chapter 2 on commercialisation, due to objections lodged, and if those objections persisted even in later legislation, then the Committee had to deliberate on this. He thought this needed a more persuasive argument from the Department, particularly when it came to industrial hemp and medicinal usage. If the sole rationale was a result of submissions that were vociferous against the entire Bill, then it could be problematic. The Committee had to ensure it deliberated on this.

Adv Mokulubete replied that was not the sole rationale for the Department to have separate legislation enacted for the commercialisation of cannabis. Even when the Bill was introduced, it was the Department’s stance that this Bill was dedicated to dealing with the Constitutional Court judgment and not deal with other aspects relating to cannabis. In the first instance, the Department was not the ideal entity to deal with commercialisation. There was another department able to do that. Hence, the Department said this Bill would focus on the judgment and the other department would create legislation that would regulate all aspects of cannabis in the form of commercialisation legislation, which was not within the purview of the Department of Justice. He would touch on this aspect as he went along in the presentation.

The Chairperson told Mr Swart to allow Adv Mokulubete to proceed and then the Committee would engage afterwards.

Adv Mokulubete said another aspect raised was that the term “industrial cannabis” should be used instead of “hemp” to describe cannabis. It was the Department’s submission, in addition to what it gathered in public hearings, that the term “hemp” was synonymous with “industrial cannabis”. It could use either of the terms. However, it proposed that this Bill would not deal with hemp at all, but with cannabis that had a psychoactive component. This was the Department's proposal to the Committee.

The Chairperson asked the Deputy Minister how this Bill helped with the issues raised by the Minister of Agriculture and Rural Development with the new approach to cannabis.

The Deputy Minister replied that his understanding was that DoJCD introduced the Bill to comply with the Constitutional Court judgment . In the first set of hearings, there was a push for the Bill to also deal with the growing of cannabis for commercial purposes. There was then an attempt to provide for that in the version of the Bill that the Committee advertised in April 2023 but that version was considerably criticised in the public participation process. He was not too on top of this Bill but thought Adv Mokulubete could explain further. There were other provisions the Department thought would make life easier for everybody. It was difficult for the Minister of Justice and Constitutional Development to pass a Bill regulating the growing of cannabis for commercial purposes. The Department tried it and it did not really work.

Adv Mokulubete continued that the Cannabis Action Group submitted that, in keeping with World Health Organisation (WHO) principles, the Bill should not criminalise citizens. The Department was in support of this proposal and would be making proposals to the Committee for a reduction of the penalties proposed in the initial version of the Bill. Through the processing of the Bill in the Committee, the Department's response was for the reduction of penalties as many complaints were raised that the penalties were too steep and there should be an avoidance of incarceration of citizens due to cannabis. The Department proposed a reduction of penalties but serious offences that were cannabis-related, would see heavier penalties. This was also in line with the Prince judgment not to criminalise citizens as it were.

The Cannabis Trade Association’s submission dealt with how different forms of cannabis were defined in the Bill. The Bill defined cannabis in accordance with different forms, quantities, sizes and levels of maturity of the cannabis plant, and distinguished cannabis from “hemp” (as defined). The Department’s response was that national legislation, that it contemplated would be enacted, would be able and suitable to deal with different forms of cannabis, quantities, sizes and all other aspects related to cannabis. The Department proposed the removal of quantities because it was one of the aspects that was highly contested. They were seen to be too limiting and closed the doors on citizens where cannabis was concerned.

The Maginqgi Community Trust submitted that there was no need to regulate the cannabis industry. The Department’s response was that although it was regulating cannabis, its intention was not to regulate the cannabis industry as a whole through this Bill. However, cannabis was a substance that had THC content; it was something that needed somehow to be regulated because it had a narcotic substance. South Africa was obliged by the United Nations convention, of which it was a signatory, to regulate narcotic substances.

The Magingqi Community Trust also proposed the promotion of access to the industry to the traditional cannabis-growing communities in the country who have faced persecution and trials for generations in the past. This should have a reprieve in terms of the new dispensation that allowed the legalisation of cannabis. The Department’s response was that there were currently permits that were issued in terms of the legislation, specifically the Medicines and Related Substances Act and the Plant Improvement Act. These Acts currently provided for the issuing of permits. The Bill did not come up with something new with permits and licences. It was something that was regulated by existing legislation. The Department also made provision for the expungement of criminal records of those convicted for possession and use of cannabis in certain instances involving possession or cultivation. This was the expungement process that is in the original Bill.

The Magingqi Community Trust proposed the insertion of provisions that promoted the “fit for purpose” approach, where industrial and/or commercial cannabis was considered for the purpose it was processed and regulated at that point. This was a fair submission because the Department proposed that the hemp commercialisation clauses be removed from the Bill, so they were dealt with through commercialisation legislation.

Lastly, the Mangingqi Community Trust requested that Parliament should consider distinguishing between commercial and industrial cannabis. The Department response was that this was a matter that could be dealt with in national legislation to commercialise cannabis and not in this Bill.

COSATU supported the Bill in principle to address the Constitutional Court directive to legalise cannabis and to provide a legal framework for the legal cultivation, sale, and consumption of cannabis and related products. The Department noted the support, but the Constitutional Court did not permit the sale of cannabis. However, contemplated commercialisation legislation would regulate the sale of cannabis and related products. The Court was specific in stating the sale of cannabis amounted to dealing in cannabis, which was a very serious problem in the country. However, the Department noted the support for what the Bill was trying to do.

COSATU submitted that Parliament should pass the Bill as it was rapidly running out of time to do so before the 2024 elections and to meet the timeframes of the Constitutional Court directive. This submission was noted. The deadline set by the Constitutional Court for Parliament to correct the constitutional defects had passed, and the reading-in proposed by the Court was applicable until the Bill was passed.

Doctors for Life made submission about the various strains of THC. The submission spoke about Delta-8-THC and Delta-9-THC. This proposal did not belong to this Bill and the Department did not need to include this in the Bill. It was a matter for separate legislation.

Doctors for Life stated similar to others that the commercialisation of hemp fell unequivocally outside the purview of the Cannabis for Private Purposes Bill, which was supposedly designed to regulate the private use of cannabis. Given the distinct nature of hemp and its vast potential abuses, it was strongly recommended that a separate, dedicated Bill be introduced to address its potential negative effects. This would ensure that the full legislative process was rigorously followed, allowing for comprehensive consideration of harms as mentioned in the submission. There were numerous risks and significant health concerns associated with hemp derivatives. It would be reckless to attempt to incorporate it into the Bill without proper consideration. By introducing a separate Bill, lawmakers could ensure that these risks were thoroughly addressed. The Department supported this submission, and the contemplated commercialisation legislation would regulate hemp in its entirety and deal with such aspects as harm and demand reduction. This legislation would be subject to extensive consultative processes to address all aspects.

Doctors for Life made a submission that cannabis (including hemp and its derivatives) and alcohol negatively impacted motor vehicle accidents and in combination, had a pronounced effect on accidents. By extrapolation, this also applied to workplace accidents. The Department response was that Schedule 5 of the Bill would amend the National Road Traffic Act to prohibit a person from driving or occupying the driver’s seat of a vehicle that was running on a public road whilst that person had blood concentration of prescribed quantities of alcohol, THC, a drug with a narcotic effect or a combination thereof. Labour laws and relevant employment contracts dealt with drug and alcohol use at the workplace.

The Chairperson asked if the Department had a machine to test THC levels.

Adv Mokulubete replied that there was no machine to test for THC levels.

The Chairperson asked what the use of this amendment was.

Adv Mokulubete replied that if the Bill got promulgated, measures had to be taken to ensure the facilities were available to do testing especially at roadblocks. However, if there was not facilities set up for that, then this provision would not be given effect. There were breathalyser tests for alcohol and there could be a similar mechanism to test for THC levels, hence the introduction of this provision.

The Chairperson said an inquiry into whether such technology existed was never made. The Committee assumed that it could exist.

Adv Mokulubete replied that his colleague had asked the Department of Transport if such technology existed, which it did not. It was agreed upon that this proposal would be in the Bill and it would be processed. However, there had to be measures put in place to ensure the instrument was made available to do the testing.

The Chairperson referred to measures in place. The Committee did not know how much it would cost taxpayers if there was such technology. He was aware of the situation where items that could not be implemented were included in legislation.

Adv Mokulubete replied that he could not submit further than that. If the Committee decided, then the National Road Traffic Act amendment in Schedule 5 could be removed. The Committee could decide if it was necessary to remove this amendment. In any event, once the testing machine became available, there was still an opportunity for an amendment to be effected so that the testing of THC concentration could be done at a later stage. He left this in the Committee’s hands as he was not in the position to take it further than this.

The Chairperson told the Committee members to take note of this.

Ms N Maseko-Jele (ANC) added that it was fair for the Committee to make the determination that if the machine was not available, it did not have to be included in the Bill. The Department had included it without conducting thorough research to ensure that when the Bill was passed, it would be available. Is it fair for the Committee to make that determination?

The Deputy Minister said he would have thought that the Department could not have people driving under the influence of cannabis. Presumably, they could cause accidents. He suggested that this provision remain; however, as far as its implementability, what could be done was that it could come into operation on a date fixed by the President by proclamation in the Gazette in the clause dealing with the short title and commencement. This would include a provision for different clauses to come into operation at different times. It would be put in the Bill and there would be pressure on other stakeholders to obtain such devices. He imagined that currently blood tests were taken, which was what was done with alcohol. He did not know if there was an equivalent to a breathalyser for THC. If there was concern about its implementability not holding up, the President was allowed to put different sections into operation at different times. This could then be put into operation once it was implementable. There had to be a provision for this; people could not drive under the influence of THC.

The Chairperson thanked the Deputy Minister. He thought the Committee’s concern was that the Department had not established if such technology existed. In a situation where the Committee said it should be implemented at a later stage, it would find that it was unimplementable because there was no such technology. The Department did not provide the Committee with a sense of comfort that this technology existed therefore the Bill was implementable. The Committee did not oppose or support but asked for evidence that the research was done that testing and machines existed, or there was a way to ensure testing could be conducted on a person with THC in their system. This was what the Committee asked for.

Adv Mokulubete said the Department noted this and would take it further and conduct that research and return to the Committee with a response at a later stage. He noted that "THC" was a new insertion following the DoT engagement but "drug having an intoxicating effect" was in the National Road Traffic Act before. He appreciated the Chairperson’s guidance and DoJCD would take it forward.

The other submissions repeated these concerns and he would not bother the Committee with those.

Fields of Green for All enquired why the subject of the use, cultivation, and trade of industrial cannabis was included in the Cannabis for Private Purposes Bill. This was one of the repeat submissions. The Department response was that the Bill did not commercialise industrial cannabis, but merely provided that national legislation should be enacted to regulate cannabis and hemp for commercial purposes.

The Green Mammoth NPC submitted that with the limited amendment to the Bill, it would allow for the legal operation of cannabis social clubs, pending the finalisation of the commercial legislation for cannabis envisaged in the Bill, and thus would serve the purpose of interim legislation. Grow One Africa also made a similar submission. The Department response was that the Bill was intended to regulate the use of cannabis for personal consumption in private, and could not be amended to provide for social clubs. These could ideally be accommodated in the national legislation intended to commercialise cannabis.

Ignited made three submissions. The first was that the Cannabis for Private Purposes Bill remained dysfunctional in many parts and read holistically, advanced prohibitionist and draconian policies that effectively limited commercial cannabis activities in South Africa. Secondly, the restriction of hemp activity to “approved cultivars” was a lethal impediment to a viable, scalable commercial hemp sector in South Africa. Choosing to restrict activity to “approved cultivars” created a chokepoint whereby it could summarily dismiss all development, restricting activity to select industrial fibre and seed strains. Thirdly, it was globally recognised that certification processes giving rise to “approved cultivar” classifications for industrial hemp were difficult to develop, usually dysfunctional, and had adverse effects on the market. The Department response was that the Bill contemplated that the national legislation be promulgated in the future, which would deal with all aspects relating to cannabis and hemp.

JD Acton submitted that the licence and permitting approach to any cannabis commercial activity was intended to exclude the ordinary citizen from the benefits of cannabis. The Department response was that the submission did not explain how the licence/permit system would exclude ordinary citizens. However, other countries that had decriminalised cannabis used the permit system to properly regulate the industry.

The Marijuana Board of South Africa suggested that the Committee should consider the broader benefits of legalising cannabis, including potential economic benefits and opportunities for research, innovation, and job creation. The regulation of the cannabis industry could also help to ensure the safety and quality of cannabis products, protect consumers, and reduce the risks associated with the black market. The Department supported this submission, but this was the matter to be dealt with in the contemplated national legislation.

RasTafari proposed the insertion of clauses in the Bill as follows:
Members of the RasTafari are exempt from cultivating hemp in furtherance of scientific research, on lands and areas approved for that cultivation and research.
The RasTafari student organisations are exempt from cultivating hemp on designated premises of different institutions of learning or on organisations’ own property for purposes of research.
Members of the RasTafari are exempt to possess and use hemp when facilitating industrial teaching and learning in public and at institutions of learning.

The Department did not support these proposals as these aspects fell outside the scope of the Bill, which was intended to regulate cannabis for personal consumption in private. Further, cannabis for research purposes was regulated by other legislation. In addition, the prescribed quantities that necessitated the need for the exemption of cultural or religious communities would be removed from the Bill, subject to approval by the Committee.

The Nyahbinghi Order of South Africa submitted that the Bill should allow for the use of local hemp from local low THC dagga landraces as long as the analytic tests could show that the THC percentage component was low. Indigenous landrace owners should be supported to register these seeds and become registered suppliers of local hemp cultivars. The Department response was that this was a matter for incorporation in the contemplated national legislation.

The Nyahbinghi Order of South Africa also submitted that there should be no imprisonment and steep fines as if cannabis cultivation were a dangerous crime. It proposed the use of a system similar to ticketing penalties when a licensed driver broke the rules of the road, or when the car was not roadworthy, or when someone had not renewed their car licence. The Department response was that proposals would be made to the Committee for penalties in the Bill to be further reduced, and heavier penalties to be imposed for dealing in cannabis, or engaging a child to deal in cannabis. Most penalties would be proposed to be in the form of fines of up to R2000 and imprisonment period of up to 12 months.

Cullinan and Associates submitted that it support comprehensive cannabis legislation to facilitate the emergence of a hemp industry and provide for a regulated trade in cannabis, but it did not believe that the Bill, in any of its iterations, would achieve that. The Department response was that it was not intended for the Bill to achieve total commercialisation of the hemp industry. However, the contemplated national legislation would regulate the entire trade in cannabis and hemp.

Cullinan and Associates also submitted that some aspects of the Bill were unconstitutional and if enacted in its current form, it would be challenged in the courts. The Department response was that the Committee had invited comments specifically and solely on the clause dealing with commercial hemp activities. The clauses of the Bill in its proposed revised form would be constitutional.

Qure (Pty) Ltd submitted that the commercialisation of cannabis should be regulated by the Department of Trade Industry and Competition (DTIC), with secondary departments involved as they were affected. The Department supported this submission and a decision would be made in the future on which department – whether DTIC or the Department of Agriculture, Land Reform and Rural Development (DALRRD) – would be the suitable department to regulate cannabis. Either of these departments could be entrusted with the commercialisation of cannabis.

The RasTafari Nation Council proposed the following:
The Bill should allow for the use of local hemp cultivars from the ARC-bred hemp one and hemp two to the existing local landraces that have naturally low THC even if they are not yet registered;
The Bill should discourage the use of exotic cultivars and protect the local cannabis industry against big multinational capitalists’ individuals and companies conducting anti-competitive behaviour, by disallowing imported hemp seed and products that are currently flooding the South African market;
The legal hemp limits should be a maximum of 5% which is not psychedelic;
Instead of destroying hemp plants that have high THC levels, the plants should be converted into functional products for donation to those who are disadvantaged and resource-poor;
Conditions on hemp permits must not create barriers for hemp farmers from disadvantaged and poor communities.

From (a) to (c) the Department submitted that these were matters for consideration and possible incorporation in the national legislation that would commercialise cannabis. They were not for incorporation in this Bill.

For (d) the Department referred to paragraph 16.3 which stated that the Bill empowered the Minister to regulate the destruction of the hemp plant or propagating material that was not approved, and also the destruction of hemp products that had extensive THC concentration. The Department response was that the Bill would not provide for the destruction of cannabis, and the contemplated national legislation could regulate to the extent necessary.

For (e) the Department submitted that hemp permits were regulated in terms of other legislation, and the Bill would no longer deal with hemp commercialisation.

Tijmen Grooten enquired if traditional landrace strains in the Dagga Belt region, particularly in the Eastern Cape Pondoland were recognised as an approved cultivar. This was important because the registering of the traditional landrace cannabis varieties was a crucial step to allow the commercialisation of the traditional cannabis strains for hemp products. The Department response was that it was possible that the commercialisation legislation could deal with strains that were approved as acceptable in South Africa.

Umzimvubu Farmers Support Network submitted that the latest iteration merely contained a further unconstitutional addition, that is, the “hemp” provisions, without having changed any other patently unconstitutional provisions in any meaningful manner. It wondered what the purpose of requesting comments a second time from affected communities, when quite clearly Parliament did not consider the original submissions in any meaningful fashion. The Department response was that the grounds that the hemp and other provisions were unconstitutional was not set out in the submission. Public comments were all evaluated by the Department. The Bill could be amended in light thereof to the extent necessary.

Umzimvubu Farmers Support Network also submitted that despite the “hemp” regulations and permitting scheme, the overarching Drugs and Drugs Trafficking Act had not been amended and still defined cannabis as “the whole plant and any part thereof” which necessarily included “hemp”. As such, all “hemp” cultivation remained unlawful and in conflict with the Drugs Act. The additions to the Bill would not cure that defect either. The Department response was that the schedule to the Bill did amend the Drugs Act by deleting Dronabinol from Part II and cannabis and THC from Part III of Schedule 2 of the Drugs Act. A proposal would be made to the Committee for the definition to make specific reference to cannabis to the extent that it contained psychoactive components from the purview of the Bill.

Umzimvubu Farmers Support Network stated that the Bill in its currently revised format, would undo all that potential because it would, in essence, continue criminalising the amaMpondo cannabis farmers who had a long history of cultivating cannabis as part of their custom and culture. It was these farmers that the government itself considered to be the backbone of an enabling cannabis economy in South Africa yet no such enabling provisions were paving that way. The Department response was that the Bill criminalised certain specific acts. Farmers who could farm through a permit or licence issued in terms of other legislation. This Bill would regulate cannabis for personal consumption, and will not criminalise cannabis farmers.

The Western Cape Government submitted that the inclusion of commercial activities within the Bill was supported for this would provide unique growth opportunities within the sector, contribute towards economic stimulation and job creation, and export opportunities. The Department noted this. However, the Bill would be revised to remove the hemp commercial activities so that these activities were dealt with in other legislation.

Max Ozinsky submitted that government departments still did not have a coordinated policy on cannabis as there were different and contradictory positions on the legislation of cannabis. As a result, amendments were added in drips and drabs to this Bill, with the intention of delaying the Bill further. Most of these amendments contained proposals that were at odds with the Constitutional Court judgment and likely to be found unconstitutional if adopted. The Department response was that a coordinated cannabis policy was being formulated, that would ultimately give way to the commercialisation of cannabis and hemp. The DoJCD mandate was limited to giving effect to the judgment and it was not its mandate to formulate policy on the entire cannabis industry. Parliament was entitled to improve the Bill to the extent that was necessary, so as to be satisfied with the Bill that it ultimately passed.

Gareth Prince submitted that the Bill’s continued insistence to separate dagga and hemp, and to define and link commercial hemp activity to a concentration of THC, remained problematic, primarily because it did not honour the constitutional rights and ideals of South Africans, and thus endangered the constitutionality of the Bill. The Department response was that the hemp clauses would be removed from the Bill. The Bill would only deal with cannabis that had a psychoactive component.

Moleboheng Semela submitted that hemp and cannabis should be regulated like any other commodity. It should be the end product of the herb that needed to be regulated. The Department response was that cannabis was a substance that had a narcotic effect, and as such needed to be regulated as required by the UN convention to which South Africa was a signatory. However, hemp clauses would be removed from the Bill.

Michael Fagan said raising the industrial hemp THC content to a worldwide acceptance of a 0.2% limit would unlock the potential of large-scale growth of industrial hemp. The effect of this would within a very short period of time unlock the huge potential of the industry to create a multitude of jobs in a variety of industries. The Department noted this.

Discussion
The Chairperson thanked Adv Mokulubete. He said Mr Swart had noted that there was a rapid saliva test that could be ascertained if cannabis had been used in the last four hours but it did not differentiate between CBD and THC. However, this information was useful to know.

Ms Maseko-Jele thanked the Department for the work it had done. From now onwards, it seemed as though there would be two separate Bills. It was a pity that after the Committee went through this re-advertising process, it would be in the hands of another committee. This was acknowledged. It would be interesting to see what would be separated out of this Bill and included in the coming Bill. Most of the concerns that had been raised needed to find expression through that future Bill. The Committee would go through the Bill later and discuss issues that perhaps fell within its mandate as per its response to the court judgment. In short, the Committee appreciated the Department's work. She remembered the last time, it was not good. The Department went back and did its work and reconsidered some of the provisions. The work had been done and was acknowledged.

The Chairperson thanked the Department for the work done. With this work, the Committee could have clear deliberations and conclude this Bill. When do it think the Bill will be ready for to consider clause by clause?

The Deputy Minister replied that Adv Mokulubete could speak to the current state of the Bill.

Adv Mokulubete said the Department had a working document that it used to formulate the responses. He saw the Department was on the Committee’s agenda for next week. It would be ready to present that working document when the Committee sat on this Bill next week.

The Chairperson asked if it was not possible to have that ready by Friday 8 September.

Adv Mokulubete asked to confer with his colleague so a coordinated response was given.

The Chairperson asked for a five-minute break while Adv Mokulubete conferred with his colleague.

Mr Du Preez said the Department could submit a working document on Friday. It wanted to consult with a few individuals, but it could present the Committee with a working document. Unfortunately, this meant no sleep for him and Adv Mokulubete. He understood the urgency. The Department did not want to disappoint the Committee. If the Committee wanted a document then it would receive a document. It would not be picture-perfect, but close to it.

The Deputy Minister said he had pushed Mr Du Preez to agree. He was pushing due to the amount of legislation that was coming. Adv Mokulubete and Mr Du Preez would prefer Tuesday but could do Friday if that was what the Committee wanted. Part of it was also consulting with parliamentary staff and technical advisors who had also been working on the Bill.

The Chairperson said it could be done on Tuesday 12 September then.

Dr Barbara Loots, Parliamentary Legal Adviser, asked for the Committee's indulgence for the finalised version of the Bill to be presented on Tuesday as this would allow Parliament's Constitutional and Legal Office (CLSO) the opportunity to engage with the Department’s document before it was presented.

The Chairperson noted that the Committee would not object if this was done on Tuesday 12 September. He asked the Department to work on the document it needed to present then. Hopefully, the Bill would be finished by Tuesday and ready to be debated in the House. He again thanked the Department for the work done.

Correctional Services Amendment Bill
The Chairperson welcomed the Department of Correctional Services and asked if the Deputy Minister was present and who else was part of the delegation.

Mr Jacques van Wyk from DCS Legal Services said that he did not know who else from the Department was on the platform. He proceed to read out the Preamble:

Preamble
To amend the Correctional Services Act, 1998, so as to amend certain definitions; to make further provisions for the custody of all inmates under conditions of human dignity; to insert, delete, and amend certain provisions related to the Judicial Inspectorate for Correctional Services; to make further provision for compliance management; and to provide for matters connected therewith.

Mr van Wyk said one of the main objects of this Bill was to comply with the Constitutional Court judgment in the Sonke Gender Justice matter and to provide for matters on the independence of JICS. It was also to enhance the perception of Correctional Services’ cooperation with JICS and the perceived independence of JICS.

Amendment of section 1 of Act 111 of 1998, as amended by section 1 of Act 32 of 2001, section 1 of Act 25 of 2008, and section 1 of Act 5 of 2011
1. Section 1 of the Correctional Services Act, 1998 is hereby amended -
(a). by the insertion after the definition of “Head of the Correctional Centre” of the definition:
“‘Head of the Remand Detention Facility’ means a correctional official designated by the National Commissioner to manage and control a particular remand detention facility,”;

(b). By the insertion after the definition of “sentenced offender” of the following definition:
“‘sexual violation’ has the meaning assigned to it in section 1 of the Criminal Law (sexual Offences and related Matters) Amendment Act, 2007 (Act No. 32 of 2007),” and

(c). by the insertion after the definition of “this Act” of the following definition:
“‘torture’ has the meaning assigned to it in section 3 of the Prevention of Combatting and Torture Persons Act, 2013 (Act No. 13 of 2013).”

Amendment of section 30 of Act 111 of 1998, as amended by section 16 of Act 32 of 2001 and section 24 of Act 25 of 2008
2. Section 30 is amended by the substitution for subsection 97) of the following subsection:
“(7)(a) An inmate who is subjected to segregation must be informed of the right to appeal and may refer the matter to the Inspecting Judge who must decide thereon within 72 hours after receipt thereof.
(b) The Head of the Correctional Centre or the Head of the Remand Detention Facility must, upon request, provide all relevant information relating to the matter contemplated in paragraph (a) to the Inspecting Judge within 24 hours of receiving the request”.

Amendment of section 31 of Act 111 of 1998, as amended by section 25 of Act 25 of 2008
3. Section 31 is amended by the substitution for subsection (5) of the following subsection:
“(5)(a) An inmate who is subjected to such restraints must be informed of the right to appeal and may appeal against the decision to the Inspecting Judge who must decide thereon within 72 hours after receipt thereof.
(b) The Head of the Correctional Centre or the head of the Remand Detention Facility must, upon request, provide all relevant information relating to the matter contemplated in paragraph (a) to the Inspecting Judge within 24 hours of receiving the request

Amendment of section 88A of Act 111 of 1998
4. Section 88A of the principal Act is hereby amended -
(a) by the substitution in subsection (1) for paragraph (a) of the following paragraph:
 “(a) is responsible for all administrative, financial and clerical functions of the Judicial Inspectorate; and”;
 (b) by the deletion in subsection (1) of paragraph (b);
(c) by the substitution for subsection (2) of the following subsection:
‘‘(2) The person contemplated in subsection (1) must be appointed by the [National Commissioner] Minister.’’;
 (d) by the substitution for subsection (3) of the following subsection:
‘‘(3) The appointment, career incidents and other conditions of service, including salary and allowances of the Chief Executive Officer are regulated by the Public Service Act.’’; and
(e) by the substitution for subsection (4) of the following subsection:
‘‘(4) Any matters relating to misconduct and incapacity of the Chief Executive Officer [must be referred to the National Commissioner by] vests in the Inspecting Judge who shall refer his or her decision to the Minister for implementation.’’.

Substitution of section 91 of Act 111 of 1998
5. The following section is hereby substituted for section 91 of the principal Act:
‘‘Expenses of Judicial Inspectorate
91. (1) The [Department is responsible for all] expenses [of the Judicial Inspectorate] incurred in connection with—
(a) the exercise of the powers, the carrying out of the duties and the performance of the functions of the Judicial Inspectorate; and
 (b) the remuneration and other conditions of service of members of the Judicial Inspectorate, shall be defrayed from monies appropriated by Parliament for this purpose to the departmental vote in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999).
(2) The Chief Executive Officer, in consultation with the Inspecting Judge, shall prepare and provide National Treasury with the necessary estimate of revenue and expenditure of the Judicial Inspectorate.
(3) The Chief Executive Officer, as the accounting officer of the Judicial Inspectorate, must, subject to the Public Finance Management Act, 1999, and subsection (2)—
(a) be charged with the responsibility of accounting for State monies received or paid out for or on account of the Judicial Inspectorate; and
(b) cause the necessary accounting and other records to be kept.

Insertion of section 95D in act 111 of 1998
6. The following section is hereby inserted in the principal Act after section 95C:
‘‘Mandatory reporting obligations of Department to Inspecting Judge
95D. (1) The Head of the Correctional Centre or the Head of the Remand Detention Facility, or any official of the Department must immediately, after becoming aware, report all instances and notify the Inspecting Judge of—
(a) any deaths of inmates in correctional centres in terms of section 15(2);
(b) segregation and extended segregation of inmates in terms of section 30(6);
(c) the use of mechanical restraints in terms of section 31(3)(d);
(d) the use of force in correctional centres and remand detention facilities in terms of section 32(6);
(e) assault of an inmate by a correctional official;
(f) assault of a correctional official by an inmate;
(g) any act constituting torture or cruel, inhuman or degrading treatment or punishment;
(h) any sexual violations;
(i) any hunger strikes;
(j) any attempted suicides;
(k) any escape of an inmate; and
(l) matters related to dishonest practices or corrupt activities in correctional centres or remand detention facilities.
(2) The Head of the Correctional Centre or the Head of the Remand Detention Facility, or any official of the Department must within 24 hours after notifying the Inspecting Judge in terms of subsection (1), submit a written report to the Inspecting Judge in the prescribed form and manner on the matters contemplated in subsection (1)(a) to (l).
(3) The Inspecting Judge may investigate or instruct the National Commissioner or request any appropriate authority to investigate any matter contemplated in subsection (1).’’.

Mr van Wyk said the Department had dealt with the submissions last week. It submitted that if this Bill was found in order and positively voted on, then it could be forwarded to the NCOP.

Discussion
The Chairperson thanked Mr van Wyk and asked him to go to the amendment that spoke about the Head of the Remand Detention Facility. Why should this still be designated by the National Commissioner?

Mr van Wyk replied that it was the same situation with the Head of the Correctional Centre. If one looked at the definition of Head of the Correctional Centre, which spoke about the same post, it was safe to say one was for the correctional centre and the other for the remand detention facility. Currently, the Head of the Correctional Centre definition read: “a correctional official designated by the National Commissioner to manage and control a particular correctional centre.”

The Correctional Services Act stated that the National Commissioner had the power to regulate or appoint officials in certain positions. In this regard, the Head of the Remand Detention Facility was added as a definition, because there was no provision for it in the current Act. It had nothing to do with JICS, its independence, and its main objects.

The Chairperson said if a position of a Chief Executive Officer was being created, that person became the accounting officer. He asked if this was correct.

Mr van Wyk said this was correct.

The Chairperson then asked if the National Commissioner was the accounting officer for the Department of Correctional Services.

Mr van Wyk said this was correct.

The Chairperson continued with his questions. Why would you create a power for a National Commissioner to appoint staff for another accounting officer?

Mr van Wyk said if the Chairperson’s question was about the Head of the Remand Detention Facility, this individual fell under the establishment of Correctional Services and not JICS.

The Chairperson was satisfied with this answer.

Ms Maseko-Jele said noted that the JIC CEO and DCS National Commissioner were on the same level with separate powers as accounting officers. Is this in response to independence. Did it mean its independence took JICS completely out of Correctional Services and there would be no link between the two?

Mr van Wyk said this was a very good question. On establishing two separate powers, the ongoing process was quite advanced at this stage by the Department of Public Service and Administration (DPSA) and National Treasury on the establishment of JICS as a government component. The JICS Bill was also at an advanced stage and hinged on a final determination by National Treasury on the finances of JICS and the establishment of JICS as a government component. This was the ultimate goal which DCS was busy with. It was a parallel process and the intention was to ensure the references to JICS structure, powers and functions as contained in Chapters 9 and 10 of the Correctional Services Act, would be repealed by the JICS Act so that JICS could have legislative independence as highlighted in the Sonke judgment. After JICS had been created as a government component, it would comply with the provisions of section 36 of the Public Finance Management Act (PFMA) that the JICS CEO would be the accounting officer. Ultimately, establishing JICS as a government component and enacting the JICS Bill, would create the legislative grounds and the legal capacity for the CEO to become its accounting officer. The current accounting officer responsible for JICS finances was the National Commissioner, who would then be out of the picture regarding JICS funds. This was ultimately against the background that one should view this. The initial idea was that the JICS Bill would be enacted to replace all those Correctional Services provisions on JICS. Initially, the idea was that it should not be necessary for a Correctional Services Amendment Bill. Unfortunately, with the deadline of the Constitutional Court approaching, the decision was made by the executive to push this Bill through and comply with the Sonke judgment with the provision that the Act come into operation by proclamation by the President. This would assist the process for establishing JICS as a government component. The JICS Bill would ultimately override all the provisions on JICS in the current Act as amended.

On the independence of JICS, specifically its financial independence, National Treasury ring-fenced its funds although it was going through a department vote, but this was more as a conduit for the funds. The Department had no control over the funds and the functional and operational areas within JICS. This was the ultimate goal. To comply with the Constitutional Court judgment before 3 December 2023, the Department submitted that this Bill was efficient, constitutionally sound according to the Office of the Chief State Law Advisor. The Department was busy with other processes which it was trying to conclude. It was of the view that these would not be finalised before the 3 December 2023 deadline of the Constitutional Court judgment. He hoped this addressed Ms Maseko-Jele’s concern.

Ms Maseko-Jele said she heard the explanation that JICS and the Department would be working separately. That was what she wanted to hear.

Ms W Newhoudt-Druchen asked from where would JICS get its funding once it is independent and no longer part of the Department. Will it come directly from National Treasury? Is it going to be a separate budget vote? For now the Department was a conduit and it came through the Department. From where is it envisaged that the funding would be coming?

Mr Van Wyk said this was a very good question. However, it was not within the Department’s powers to comment on that. It was a determination that had to be made by National Treasury as it held the proverbial wallet and was the one that had to make a determination on the exact funding route. What DCS had at this stage was confirmation from the Minister of Finance that in support of JICS being established as a government component, the funding would be channelled through a departmental vote. That was what the Department knew and could say at this stage. It was more a question for National Treasury to answer.

The Chairperson asked Ms Newhoudt-Druchen if she was covered, which she was. The Chairperson asked for any further inputs or questions. He then asked if there were any objections to the adoption of this Bill tomorrow.

Mr J Engelbrecht (DA) said the DA would like to reserve its position on the Bill. It was unfortunate that feet were dragged with the JICS Bill, resulting in this cut-and-paste job as a temporary measure to comply with the Constitutional Court deadline.

The Committee support staff noted that the Committee report would be ready tomorrow.

The Chairperson said the Committee would formally vote on the Bill tomorrow so that it would go to the Programming Committee on 7 September which would be able to give the Committee a date for the debate. The Chairperson thanked the Department of Correctional Services, specifically Mr van Wyk for the work done. It was nice and clear. He asked if the Department was available tomorrow.

Mr van Wyk thanked the Chairperson for the nice words. The Department was available tomorrow.

The Chairperson asked if the National Commissioner was still around.

Mr Raman Govender, DCS Deputy Director in the Office of the National Commissioner, noted that he had attended the meeting so that he could give the National Commissioner feedback, who was at the Justice, Crime Prevention and Security (JCPS) Cluster this morning.

Deputy Minister closing remarks
Deputy Minister of Correctional Services, Mr Sango Pathekile Holomisa, noted that he had joined the meeting closer to the end of Mr van Wyk’s responses because he was in a Cabinet Committee meeting. From his understanding of what was raised, the Department was of the view that it had done its part under difficult circumstances. It had to get the concurrence of other departments, specifically National Treasury, which contributed to the delay that was suffered. He thanked the Committee for its patience and assistance even before the Bill was taken to Cabinet for consideration and approval for tabling in Parliament. The Department understood there was a great deal of impatience for the Bill to be passed, so it addressed all the concerns experienced by JICS itself and people interested in its independence because it looked after the interests of the inmates. He assured the Committee that the Department would do all it could within the limited time available to facilitate the fast-tracking of the JICS Bill so it could be a fully-fledged piece of law that addressed the functionality of JICS and its independence. With this Amendment Bill, the Department managed to comply with the requirements of the Constitutional Court judgment.

Committee response
The Chairperson thanked the Deputy Minister. The Committee understood that it was always on the same side as the Department, but that the delays were beyond the Department's control. It was important that National Treasury understood that such delays affected everyone as government, as the Executive and Parliament. There should not be a department that enjoyed the luxury of time when there was a Constitutional Court deadline to meet. He thought the Seventh Parliament should be much harder on the Department about Bills taking forever to come before Parliament, especially those with Constitutional Court deadlines. For example, when the Cannabis for Private Purposes Bill was tabled in Parliament, the Committee was left with two weeks to meet the Constitutional Court deadline. Luckily, the Court agreed to an extension but that was not the way to work. Members of the Executive should be raising this matter quite sharply in Cabinet and within departments. They should emphasise that this way of working was not assisting anyone. Parliament did not have enough legislative drafters. If the departments delayed, it was Parliament that would be seen not to have complied with the Constitutional Court deadlines. He thanked the Deputy Minister. He knew this battle was fought together by the Ministry and the Committee to ensure they received this Bill in time to meet the deadline.

Committee programme
The Chairperson said that the next day was going to be a short day, the Committee had only the adoption of the Committee Report on the Correctional Services Amendment Bill. The Committee was trying to push so that by Friday 15 September, it would have Parliament legal advisors brief it on the Judge Motata matter.

Dr Loots said this was in order.

The Chairperson noted that there was a matter that had not been finalised. The Committee agreed that both the Ministers of Finance and Justice appear would before the Committee on the matters raised by the Information Regulator. He asked the Committee secretary to write to the ministers to find a suitable date for both ministers to appear before Parliament rose.

Mr W Horn (DA) noted that while the Committee was on the Judge Nkola Motata matter, he believed it should consider engaging the Speaker about the Judge John Hlophe matter as well. If news reports were to be believed, the review application of the Judicial Service Commission (JSC) findings by Judge Hlophe was stalled on the basis that he was of the view that the JSC should pay for the preparation of the record of the tribunal. Seemingly, the JSC ordinary rules made it quite clear that whoever wanted to make use of the record had to pay for it. The difficulty from the Committee’s standpoint was that it had one meeting where it dealt with this matter, which was subsequently paused because Judge Hlophe announced he was taking this matter under review, whilst interdicting Parliament to finalise it pending the review. The Committee was informed that the Speaker reached an informal agreement with Judge Hlophe that the matter would be paused on condition that he speedily lodged his review application. The difficulty now was that the Committee had been receiving questions on why the matter was not finalised. In the absence of an interdict, nothing prevented Parliament from finalising the matter. He requested the Chairperson engage with the Speaker in writing on when the matter would be dealt with, given the information that the review was stalled.

The Chairperson said his only difficulty was that this matter was dealt with by the Programming Committee and it took that decision. The Committee dealt with matters that were referred to it. Since the Judge Motata matter had been formally referred to the Committee, there was no decision that could withhold it like the Programming Committee. For now, he suggested focussing on the one that was referred to the Committee. He would raise the other matter when he met with the Speaker. It was important that the Committee finalised this matter as soon as possible before adjourning. The Committee was only left with two weeks and this term would come to an end. When the Committee returned, it would be left with three Bills: Divorce Bill, NPA Amendment Bill, Regulation of Interception of Communications and Provision of Communicator-related Information Amendment (RICA) Bill. Additionally, it would have the Budget Review and Recommendations Reports (BRRR). It also still had to deal with looking at its handover report. The Committee had to be involved in that handover report.

Adv Breytenbach agreed with Mr Horn’s input. Not dealing with Judge Hlophe brought the entire administration of justice into disrepute. The matter had dragged on for long. In her view, this was a dereliction of Parliament's duty if that issue was not dealt with before the third term came to an end. She urged the Chairperson to take the matter up with the Speaker.

The Chairperson suggested that all parties in the Committee were represented in the Programming Committee which met every Thursday. Since it was the Programming Committee’s decision, it would be important that the chief whips who sat in that Committee raised that matter there.

Meeting adjourned.

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