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HOME AFFAIRS PORTFOLIO COMMITTEE
13 September 2006
CIVIL UNION BILL, FILM AND PUBLICATIONS AND IMMIGRATION AMENDMENT BILLS: BRIEFING
Chairperson: Mr H Chauke (ANC)
Civil Union Bill presentation
Films and Publications Amendment Bill presentation
Immigration Amendment Bill 2006 presentation
Immigration Amendment Bill [B28- 2006]
Films and Publications Amendment Bill [B27- 2006]
Civil Union Bill [B26-2006]
Constitutional Court case judgment: Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister
Summary of judgment
The Committee received briefings from the Department of Home Affairs on the Civil Union Bill, the Films and Publications Amendment Bill and the Immigration Amendment Bill. The Chief State Law Advisor and Parliament’s Legislation and Proceedings Unit also briefed members about the process that had been followed for the contentious Civil Union Bill. Members raised concerns about the Department of Home Affairs’ apparent disregard of the public consultation process as well as the implications of same sex marriages as far as adoption was concerned. The Chairperson declared that the Committee would not support any regulations that did not clearly address issues around pornography and said that public concerns and the protection of children would have to be balanced with the freedom of the press.
Chairperson’s opening remarks
The Chairperson said that the meetings held with the Deputy Minister of Justice and Constitutional Affairs, Mr J de Lange and the Minister of Home Affairs Ms N Mapisa-Nqakula the previous week provided the political overview of the Bills to be discussed that day. Problems had been identified around the certification process especially in relation to the Civil Union Bill. The Office of the Chief State Law Advisor’s (SLA) input differed from the Minister’s position. In Parliament there was "clear confusion" around the status of the Bills. The Committee now sought clarity as far as the procedure for the tabling of the Bill to the Portfolio Committee especially in the light of the fact that the SLA had not certified it.
The Committee was of the understanding that Cabinet had approved the Civil Union Bill and that it had been sent to the SLA for certification. The latter would in that day’s proceedings clarify the confusion, which he thought was nothing more than "small politics". It was also important to know the status of the Film and Publications as well as the Immigration Bills.
The Committee was very concerned about the procedures that had bee followed and did not want to start the public hearings without all the necessary procedures having been followed. The Committee’s programme was meant to start on 14 September and due to the confusion this would no longer be possible. He emphasised that the Committee could not proceed with a flawed process, which would be challenged as soon as the Bill had been passed. Challenges would not be based on the content of the Bill but on the procedure that had been followed in its tabling. He did not want to be associated with such confusion. Those who were responsible for ensuring that procedures and processes were followed would that morning have an opportunity to clarify their position. Only then would the Committee be able to continue with its programme.
He said that the Civil Union and the Film and Publications Bills had generated much public interest. He wanted to make it very clear that Parliament believed in giving everyone the opportunity to make his or her presentation before the Committee. He knew, through his interaction with Deputy Minister M Gigaba (who was responsible for the Film and Publication Bill), that a number of meetings had been arranged with the editors’ forum and other stakeholders. There was a concern around the fact that people had the public had already starting commenting on the content of the Film and Publications A/B before it had even been tabled before Parliament. Neither Government nor Parliament wanted to take away freedom of the press. Editors as well as the public would be given the opportunity to voice their concerns.
Parliament’s Legislation & Proceedings Unit on Parliamentary Legislative Process
Mr Neil Bell (Legislation and Proceedings Unit of Parliament) explained that departments had to comply with three measures before a Bill could be introduced.
In compliance with Joint Rule 159 of the Rules of Parliament a draft version of the draft Bill had to be submitted to the presiding officers immediately after Cabinet had approved it. This allowed the portfolio and select committees to develop a position on the legislation to be introduced and to allow them to work out a programme. The DHA had complied with this rule.
As the Civil Union Bill was a Section 75 Bill, which could only be introduced in the National Assembly (NA), there had to be compliance with National Assembly Rule 241 which dealt with publication in the Government Gazette. A notice informing the public of the Minister’s intent to introduce the Bill along with at least a summary of the Bill had to be published in the Government Gazette.
This had to be followed by the certification by the relevant state law advisor. Thereafter the Bill was submitted to Legislation and Proceedings Unit of Parliament. In this particular case, the Civil Union Bill had not been certified. He pointed out that the state law advisors complied with National Assembly Rule 243 (1)(b) which read that "if a Bill is not certified as contemplated in sub-rule 1(a) the Bill must be accompanied by a record or legal opinion by a state law advisor mentioned in sub-rule 1(a) on why it has not been so certified". This had been done on the day of the deadline.
Mr Bell said that in his opinion all three of these rules had been complied with. He explained that there was an explanatory note on the implication of deadlines in the parliamentary programme, which was distributed weekly and updated by the programming committee of the National Assembly. A period of up to two weeks was required between certification or compliance with the deadline and the actual introduction of the Bill. This allowed the state law advisers, the relevant department and the Legislation and Proceedings Unit of Parliament to revise the proofs and properly peruse the content of the Bill before a final discussion took place. If agreement was reached the Bill was introduced. It was then be printed and appeared in the next ATC (Announcements, Tablings and Committee reports notice).
He said that there was a slight difference between the introduction of this particular Bill and the introduction of other Bills. The Civil Union Bill had not been referred to any Committee. It had been referred to the Joint Tagging Mechanism (JTM) as was required by the Joint Rules. The Speaker had the power to refer the Bill not only to the appropriate Committee but also to another Committee who might have a direct interest in the Bill. It was possible for the Bill to be referred to the Home Affairs portfolio committee with the request for the committee to consult or confer with another committee. This had happened in the case of the Anti-Terrorism Bill (B12-2003), which was introduced on 10 March 2003 and was not referred to a particular Committee. Four days later it was referred to the Portfolio Committee on Safety and Security with the instruction to confer with the portfolio committees on Foreign Affairs and Justice as well as the Joint Standing Committee on Intelligence. He felt that it would not be long before the Speaker made a decision as far as the Civil Union Bill was concerned. It had been officially introduced as B26-2006 and was now in the circuit.
On the Chairpersons request Mr Bell continued to clarify the tagging process. The moment a bill was introduced it was referred to the JTM, which consisted of the presiding officers of the National Assembly and the National Council of Provinces as well as the Deputy Chairperson and the Deputy Speaker. The parliamentary law advisors normally write an opinion on the proposed section in respect of which the Bill was introduced and it was up to the JTM to accept or change the proposed tagging or classification. The JTM had to wait for at east three days before it could officially classify the Bill. This allowed anybody who wanted to give input on the classification to do so in writing. Thereafter the official tagging could go ahead. He explained that the Civil Union Bill had been formally introduced, was formally before the JTM and was expected to be referred at any given moment.
The Chairperson said that he had a copy of the letter from the Speaker, which went into detail about the Constitutional Court judgement and referred the Civil Union Bill to the Committee. It further read that the Bill had to be considered as a matter of urgency. The Committee was now in receipt the Bill and people outside would want to hear, engage and understand. They would not be delayed because of the rules of Parliament had not been followed.
He then requested Mr Enver Daniels, Chief State Law Advisor to briefly share with the Committee his Office’s reasons for not having certified the Bill. He wanted to know why they considered the Bill to be unconstitutional. It needed to be understood that the committees of parliament were not the rubber stamps of the Executive. The Committee would consult and interrogate the Bill and would make sure that everybody’s views were taken into account.
Chief State Law Advisor’s Comments
Mr Enver Daniels explained that his office’s task had been "fraught with difficulties". They only received the final version of the Bill as approved by Cabinet on 28 August. After Cabinet’s approval of the draft on 23 August his office had to negotiate and do considerable footwork to obtain the final draft. With the deadline of 1 September looming his office had been placed under considerable pressure to deal with the Bill. In addition to only receiving the final version very late, they did not receive a copy of the memorandum on the objects of the Bill until the morning of 1 September.
The state law advisors nevertheless attempted to deal with the Bill. They scrutinised it very carefully, put considerable time and effort into it but were not able to certify that they believed that the Bill complied with the Constitution and that it was drafted in a format and a style which would be acceptable to the House. They did nevertheless attempt to address some of the concerns.
He pointed put that there was very little difference in the approaches used by his office and the Departments of Home Affairs and Justice. The SLA understood that given the deadline for the enactment of the legislation the Departments had been under extreme pressure and faced time constraints. The Constitutional Court’s judgement would come into effect on 1 December which meant that both Departments as well as Parliament only had until 30 November to ensure that the Civil Union Bill was not only passed but was also assented to by the President. His office’s scrutiny had not only been based on the Fourie judgement which had placed the Executive, Parliament as well as his office under considerable pressure to amend the legislation or to alternatively introduce separate legislation but they also very carefully studied all other Constitutional Court cases and other relevant jurisprudence on the topic of same sex marriages. He admitted that due to time constraints they were not able to adequately consider the domestic partnership aspect of the Bill. His office was of the opinion that perhaps the two issues (same sex marriages and domestic partnerships) should be separated in order to give them the opportunity to concentrate on the same sex unions and to then consider the domestic partnership section in a more leisurely fashion.
The Constitutional Court had very clearly indicated that it felt that the enactment of the new legislation should be left to Parliament but nevertheless felt that it should give some guiding principles regarding the approach that should be adopted. He felt that this was unfortunate because it limited the options Parliament had at its disposal. According to the Constitutional Court Parliament had three options but indicated that a separate but equal approach would probably not be appropriate. The Bill provided for civil unions between people of the same sex. Why the DHA and the DOJ had opted to adopt the approach they had, could not be clearly determined from the memorandum on the objects of the Bill.
The certificate the SLA had submitted to Parliament indicated that the Bill might pass constitutional muster. The SLA was of the opinion however that the separate approach that was currently contained in the Bill could possibly be problematic. Due to severe time constraints they were not able to adequately consider its constitutionality.
The SLA thought it possible to have a separate approach to same sex unions and the marriage of opposite sex couples. They did not think that it would be unconstitutional to deal with same sex unions provided there were a rational base for it and it could withstand scrutiny in terms of the Constitution. They believed that it was possible to overcome those challenges. Looked at in isolation of everything else the separate approach appeared to be separate but equal and may face constitutional difficulties.
The SLA had identified certain other problems, some of which were fairly fundamental but not insurmountable. One related to the use of marriage officers to solemnize the civil partnerships between two people of the same sex. In the context of the approach being adopted by DHA and DOJ, the SLA would need to understand why the DHA was using people called "marriage officers" in terms of the Marriage Act (1961) to solemnize civil partnerships between people of the same sex, before they could subject the Bill to a Section 36 limitation scrutiny.
The Chairperson at this point interrupted the Mr Daniels to point out that the SLA’s concerns would be discussed in detail at the public hearings. He was also curious as to whether there was a precedent whereby some bills came straight to Parliament.
Mr Daniels explained that in terms of Parliamentary rules all bills had to go to the SLA after they had been approved by the Cabinet. If his office were not able to certify a bill they filed a report (as they had in this instance) in terms of Rule 243(1) (b).
The Chairperson said that there was a need for clarity especially in the light of the fact that the public had the perception that even the SLA did not agree with the legislation. He asked what the relationship between the SLA and the Parliamentary legal advisors (PLA) were and how they had worked together to solve the matter.
Ms Suraya Adhikarie (Senior Parliamentary Legal Advisor) explained that her offices advised the JTM. They went through the bills to ensure that procedures had been adhered to. Once the bill had been referred to the Committee it was up to the Chairperson to decide whether he or she needed their input on procedural or constitutional issues.
Mr S Swart (ACDP) and the Chairperson wondered whether the Committee could have access to the SLA’s report. Ms Adhikarie said that the report went to the JTM whose decision was final. Beyond that there was no other procedure as far as the tagging of the Bill.
Kgoshi Morwamoche (ANC) said that there was talk that the relationship between the SLA and the legal section of DHA was not very good. He wondered what advice the SLA could give to the Portfolio Committee as far as the adequate execution of the Constitutional Court’s judgment.
The chairperson pointed out that he too had had the sense that the cooperation between the office of the SLA and the DHA had posed a challenge. A number of meetings had been called by the SLA but the DHA failed to attend them. He said that the points the SLA had raised were very critical and he would give them an opportunity to discuss them in detail at a later stage. The Portfolio Committee, the SLA a well as the PLA would work very close to ensure that the Bill would meet the constitutional requirement.
Kgoshi Morwamoche said that the memorandum of the Bill indicated that since it did not contain provisions related to customary law or customs of traditional communities the SLA had found that it was not necessary to consult with traditional leaders or other stakeholders. He pointed out that traditional leaders did not only "rule" people who opted for customary marriages.
A visiting Nigerian Chief commented that in Nigeria, where they had a multi ethnic and cultural community (close to 300 different ethnic nationalities) issues around civil union rights were also a matter of concern. Nigeria addressed these issues by taking traditional and cultural, legality and socio economics as well as issues around adoption into account. In Nigeria same sex marriages were illegal. The rights of the individual to associate in what ever way they wanted to were protected but one could not seek redress if ones view was not in accordance with the laws of the country.
The Chairperson said that it was important to also be aware of the views and concepts from the rest of Africa. He said that South Africa’s policies generated continental interest and the legislation would did not only impact on South Africa but also on the rest of the continent.
Civil Union Bill Presentation
Ms Jayshree Naidoo of the Department of Home Affairs’ legislative unit briefed the Committee on the Civil Union Bill, which aimed to provide for same sex unions and domestic partnerships. The legislation would in accordance the Constitutional Court judgment ensure that same sex and domestic partnerships would enjoy equal rights as opposite sex marriages. It would also include regulations around the solemnization and registration of civil unions. Civil partnerships would enjoy the same legal consequences of marriage as per the terms of the Marriage Act (1961).
The Chairperson wondered what other options the Department had considered before deciding on the one contained in the Bill.
Ms Naidoo explained that one of the options recommended by the South African Law Reform Commission (SALRC) involved the simple amendment to the Marriage Act by inserting the word spouse after the word husband and wife in a marriage formula. This would have resulted in an automatic amendment to the common law definition of marriage.
The second proposal was for a dual act which would have meant that there would have been two acts - one called the Reformed Marriage Act (dealing with same sex couples) and another called the Conventional Marriage Act (dealing with orthodox marriages). In taking the Civil Union option the DHA had intended to balance the various interests and sensitivities that were involved i.e. to balance the right to equality with the right to freedom of religion. Besides the Fourie case, the DHA had also taken into account another judgment in which the court did not issue a directive but highlighted that domestic partnerships had not been catered for in the legislation. The Fourie case had highlighted issues around same sex marriages. The Civil Union Bill dealt with civil partnerships (catering for same sex marriages) and domestic partnerships.
Kgoshi Morwamoche raised a serious concern around that the Committee not having a copy of the Constitutional Court judgment. They Committee needed to have first hand knowledge of what the judgment said. He wondered what the Committee’s mandate was as far as the Judgment was concerned. He wondered whether they should amend the legislation or formulate new legislation.
Ms Naidoo apologised that they had not made the judgment available to the Committee. She explained that after the last hearing the DHA had sent the judgment to the Parliamentary Monitoring Group (PMG) for inclusion on their website. She would forward copies of the judgment, which read that Parliament had to find a legislative means by which to rectify the defect in the law, to the members as soon as possible.
Mr W Skhosana (ANC) sought clarity on how the civil union legislation would impact on the adoption of children. He wondered whether two men would be allowed to adopt a girl-child.
Ms Naidoo said that the Bill gave same sex couples and domestic couples all the rights and legal consequences that the Marriage Act gave to married couples of opposite sex. This would include adoption and in her opinion there should be no discrimination. She pointed out that the Adoption Act would also be applicable.
Mr Skhosana said that he was not satisfied with the response and suggested that the matter be discussed again at a later stage.
Mr S Swart disagreed that there were only three options available as far as the legislation was concerned. The Constitutional Court had made clear that there were other legislative paths that could be followed to correct the defect in the existing legislation. Whilst the judgment gave very narrow guidelines the options were not exhaustive. The legislators could draft anything within those guidelines.
Ms Naidoo agreed that the options were not exhaustive and that the best possible route for rectifying the defect could be taken. The Chairperson said that he hoped Mr Swart was not suggesting that the Constitution be amended. Mr Swart responded that that would be an option.
Mr M Swart (DA) said that the purpose of the Bill was to rectify the right of individuals to have same sex relationships. The Bill also provided that the clergy could marry "these people". He wondered whether it was necessary for the Bill to provide that churches as well as marriage officers could perform this function. He was not sure whether churches would be interested in marrying "these people". Mr Swart also had concerns around some of the definitions and pointed out that he had also found some contradictory clauses. These concerns could be addressed at a later stage. He wondered whether one should not concentrate on protecting the right to same sex relationships (so that one could satisfy the requirements of the court) rather than relating these relationships to marriage thus involving the Marriage Act. If the purpose of the Bill was simply to allow an individual to enter into a relationship with a person of the same sex he had doubts as to whether it should refer to the Marriage Act at all.
The Chairperson was curious as to the consultation process the DHA had followed during the drafting of the Bill. He wondered which stakeholders had been consulted.
Ms Naidoo responded the Bill had been drafted in consultation with the DOJ and the SALRC. The SALRC had done extensive consultations before they had drafted their report.
The Chairperson requested the presenters to provide clarity on Clause 11. Ms Naidoo responded that Clause 11 dealt with the civil partnership formula. It required a marriage officer to enquire whether parties, during the process of solemnization, wanted to refer to their union as being a civil partnership or a marriage.
The Chairperson asked which law would apply if parties opted to refer to their union as a marriage. Ms Naidoo explained that the Bill would still apply. The Marriage Act remained in tact without any changes whatsoever. It was just for registration certificate purposes that civil union or marriage would be specified.
The Chairperson wondered why the word "marriage" was then included in this legislation. He enquired as to how "marriage" was defined in terms of the legislation.
Ms Naidoo responded that the definition of "marriage" as used in the Marriage Act would still apply. Mr Deon Erasmus (DHA Drafting Legal Services: Director) added that there was no definition of "marriage" in the Marriage Act; the common law definition i.e. a marriage occurred between a man and a woman, applied. The Civil Union Bill tried to address the Constitutional Court Judgment which required a provision for marriage between same sex partners. "Marriage" was never defined in the Marriage Act because the common law definition which had never been defined was being followed.
The Chairperson said that "marriage" needed to be defined and requested that the issue be noted for further discussion.
Ms I Mars (IFP) wondered whether the Constitutional Court Judgment mentioned the word "marriage".
Ms Linette Louw (DOJ: Legislation) responded that the Constitutional Court judgment dealt specifically with marriages so the word definitely appeared in the judgment. The Court had ordered Parliament to find a dispensation that would provide people who entered into same sex marriages with the same rights as heterosexual couples. The Department was of the opinion that the Civil Union Bill did exactly that.
Kgoshi Morwamoche said that the Bill indicated that no one had been consulted. Saying that it was unnecessary to consult people in the rural areas and then claim that consultations had taken place was "totally unconstitutional".
Mr M Sibande (ANC) said that consultation was very crucial. He felt that the highest number of people stayed in rural areas yet when dealing with "progressive things" they were often not consulted. This was a mistake. People assumed that everyone had been consulted. Proper consultation needed to take place to avoid court cases. He feared that the Bill might end up being "very good" but Parliament would might be challenged in court because proper consultation processes had not been followed. This costed much money. He was not satisfied with the DHA‘s response as far as consultation was concerned and did not feel that proper consultation had taken place. He felt that something had to be done about continuous scant consultation.
The Chairperson added that the Committee took failure to consult very seriously. The Committee would have public hearings. The fact that the DHA had not consulted anybody was a serious cause for concern. The Film and Publication Amendment Bill that would be dealt with provoked much reaction from the media especially because they felt that they had not been consulted. Consultation was key in any work Parliament and Government departments did.
Ms Naidoo responded that consultation took place before and during the parliamentary process. Due to the short timeframe however there was very little time to consult. The consultation process would now start in earnest.
Ms Louw added that the SALRC consulted very widely and always consulted in the rural areas across all the provinces. The domestic partnership section in the Bill came directly from the SALRC’s report, which was based on wide consultation. They also consulted very widely on the same sex marriages issues. The judgment specifically dealt with Section 76 legislation where one needed to consult with the provinces. This Bill was a Section 75 piece of legislation and did not require a provincial mandate.
The Chairperson asked whether any of the presenters had the report of the SALRC and requested a list of the people who had been consulted. Ms Louw said that the information would be forwarded to the Committee.
Mr S Swart wondered whether international best practices, African practices as well as the African Charter on Human Rights had been considered when drafting the Bill.
The Chairperson felt that the member ought to have been aware that such legislation could not be found anywhere in Africa. He said that it would only be in South Africa that one would "maybe have it". Everything members needed would be supplied so that decisions were well informed.
Mr M Swart said that in recent weeks there had been two cases where the Constitutional Court had ruled that insufficient consultation had taken place. He wondered whether there would be sufficient time to consult with all communities throughout the country and whether it would not be better to request the Constitutional Court to extend the deadline beyond the end of the year which would allow more time for consultation.
The Chairperson said that Ms S Kalyan (DA) who served on the Programming Committee reported that the Bill’s first reading debate would take place on 19 September. He was aware that, because members had only received the copy of the Bill that day, they had not had enough time to engage with it.
He was concerned that issues were not always taken seriously. He would have thought that work would have started as soon as the judgment had been made. Instead both the DHA and the DOJ had waited until the last minute and now the Committee was faced with having to finalize a Bill, which contained over 50 clauses, in less than two weeks.
Film and Publication Amendment Bill briefing
Ms Naidoo briefed the Committee on amendments made to the Film and Publication Act (1996). The amendments sought to amongst others define child abuse in relation to publications, films and interactive computer games. It also sought to regulate the broadcasting of certain publications, films, etc as a measure to protect children from age inappropriate materials and the associated sexual exploitation and degradation. The amendment of Section 4 sought to remove administrative staff from being part of the Board so as to ensure its effective functioning.
The Chairperson said the Film and Publication Bill was not yet available and no one from DHA could even indicate when it would be available. This presented a serious problem. He found it difficult to lead the Committee when the information they needed was not available. Lack of documentation and information made it very difficult for the Members to proceed. He warned that he would not tolerate this situation again. The documents the Committee requested needed to be provided. This was what departments were employed and paid to do. The Government was elected and had five years in which they had to fulfil its mandate.
He added that Parliament too needed to get itself in order. The Committee needed to battle to get a researcher. The Committee was dealing with an important piece of legislation yet no one felt that it should be provided with the resources to best perform its task. The Committee would not be concerned with the logistics but only with engaging with the people on these issues. Parliament needed to make sure that the programme was implemented. He requested the presenters to explain their consultation process in relation to the Film and Publications Amendment Bill.
Ms Shokie Bopape-Dlomo (Film and Publication Board: CEO) said that Board distributed the Bill to quite a number people they currently considered to be stakeholders and admitted that the media had not been consulted. Upon realizing the oversight the time period for public comments was extended so that media organizations could participate. She added that this Bill too was plagued by time constraints.
The Chairperson sought clarity on what the lifting of the exemptions for newspapers (Clause 22(3)) would entail. Editors were not concerned about the scourge of pornography, child pornography, or the abuse of women and children. They were only concerned about this particular clause, which they felt would affect freedom of the press.
Ms Dlomo said that the Film and publication Board (FPB) did not foresee that the lifting of the exemption would cause such a "hullabaloo". The provision of the Films and Publication Act (FPA) effected all publications including community newspapers and the exemption would affect both broadcasters and newspapers.
She explained that the exemption would be lifted in order to streamline the process. All other publications were subject to the provisions of the FPA. The main reason for lifting the exemption related to the protection through regulating material that was potentially disturbing and harmful. The same reasons that applied to the regulation of the Internet applied in this case too. Issues around classification would be standardized and issues related to age appropriateness with respect to access to information would be addressed.
She was surprised that newspapers were not saying anything about child pornography. If newspapers were in the possession of, created or distributed child pornography they were currently exempt from the provisions of the FPA.
Mr S Swart said that this matter would be discussed and emphasised that everyone was in support of provisions aimed at protecting children. The media was concerned about the practical implications. Newspapers were deadline orientated and he did not know how one would ensure that the new provisions were adhered to.
Ms Dlomo explained that the FPB had set up systems and were aware of how they worked. Currently they dealt with publications on a reactive basis and only interfered if the public made a complaint. The system for dealing with publications would remain the same. Newspaper were not required to present their material because there was no way that the FPB, which could hardly managed its current work load, would be able to deal with the quantity.
The legislation was aimed at protecting children and those people who did not want to access certain material that was blasphemous or derogatory to women. It also aimed to provide people with the information around what a publication of any sort might contain so that they could make decisions about whether they want to view it or not. There were directives in place and publications were required to adhere to the guidelines in whatever they did.
Ms Mars noted that the FPB explained that newspapers would not be jeopardized in any way, yet media organisations had not been consulted.
Mr Sibanda said that the Committee was fully supportive of what the legislation aimed to achieve. He was concerned however about the capacity for implementation.
The Chairperson said that the Committee had a problem with the fact that Hustler magazine had two versions of its publication one for South Africa (containing "hard porn") and one for the rest of the world (containing "soft porn").
He wondered if the Bill would address issues around access to pornography via cell phones. If it did not the Committee would make sure that there was a "total ban" on pornography on cell phones. Similarly if there pornography on free to view television would be allowed, the Committee would call for a "total ban" of pornography on television.
He said that many stakeholders had given inputs at a conference around pornography that was held in Port Elizabeth in 2005. Some stakeholders had decided not to attend the conference. The time had now arrived for the Committee to "tighten the screws". The issue of regulations as far as where adult businesses could be located would also have to be addressed by the Bill. The Committee would not approve any regulations that failed to address these issues. The legislation was in front of the Committee and the public would be consulted. If the public said that pornography should be banned this was what would be done. He said that loopholes were closed.
Tabloid newspapers particularly "The Voice" in the Western Cape contained much nudity and were sold by youngsters. They would be called to appear before the Committee to explain themselves and to explain how they felt about the new legislation. He did not see the church complaining about the issues of pornography; they seemed to only be concerned about gay and lesbian marriages.
He said that South Africa had become one of those countries where people felt they could dump just anything and "change the cultural behaviour" as much as they could. Parliament had a responsibility to protect the citizens as well as while taking into account freedom of expression.
He spoke of how the reed dance had been turned into a source of pornographic material by the international market. Journalists were flocking to come and take pictures to publish as pornography. This was a concern and exploitation of cultural activities would need to be addressed even if it meant meeting with the different kings and queens. He challenged everyone to protect society and children from these challenges.
The Committee would try to close the gap as far as pornography, child abuse and cultural exploitation was concerned. He said that many people tried to justify exploitative practices by calling on freedom of expression and believing that that no one could interfere. He wanted to make very clear that the Committee would interfere. Freedom of expression was not an absolute freedom. People abused the Constitution and that could not be allowed. All stakeholders would be engaged but the Committee would pass a law that would "protect our nation, our people". People fought for the liberties they enjoyed and knew where they came from. He said that a situation where one kept quiet in the name of freedom of expression, despite the fact that children had unlimited access to pornography, could not be allowed.
Mr S Swart endorsed what the Chairperson had said and would support his attempts to "clean up" the media. He commented that that "pornography was the theory and rape the practice".
Ms Kalyan commented that Parliament was in the business of making good legislation. She urged Ms Dlomo to try and understand the "hullabaloo" within the media around the lifting of the exemption because they felt that this piece of legislation was unconstitutional and open to a Constitutional Court challenge. Parliament could not pass legislation that would be instantaneously undone as happened with the Termination of Pregnancy Bill. Parliament had to be very responsible around such matters. She fully subscribed to the fact that everything had to be done to eradicate the scourge of pornography but Parliament also had to ensure that it passed good legislation. She agreed that scant consultation had to be remedied.
The Chairperson said that two weeks earlier there had been a meeting between the Deputy Minister and editors. People who thought legislation unconstitutional could use the Constitutional Court to resolve matters. If the Constitutional Court found that legislation was unconstitutional and that the rights of the press who "provided pornography as they pleased" were being infringed upon then one should perhaps consider amending of the Constitution. He added that the Committee respected the Constitution as the supreme law of the country and in the last twelve years they had made sure that every law that was passed was tested for constitutionality. It was only in recent times that problems had arisen.
Parliament would demonstrate that it would consult with the people. He urged members to consider what they did with the views that came from the public. If one were going to take a mandate from the people it might lead to the amendment of the Constitution. Members should remember that this was "the government of the people by the people" and that everyone, including the Constitutional Court understood this concept very well.
He said that the Constitutional Court in its ruling that Parliament should address matters within a certain timeframe had not taken issues around public consultation into account. He did not have the capacity to challenge that ruling, but pointed out that when making rulings the judiciary should take these issues into account.
He said that he would not influence the public but felt that it was very important for the Committee to always make sure that its views were clear. A platform should be created so that issues could be debated and then perhaps the Committee could be persuaded to change its mind.
Immigration Amendment Bill briefing
Ms Naidoo presented the Committee with a brief background to the Immigration Amendment Bill whose main purpose was to address matters related to the intra-company work permit. In addition to providing for the increase of the duration of this permit from two to four years the Bill would also address issues related to amongst others, visitors’ and work permits.
Mr Sibanda sought clarity on Clause 11, which dealt with the visitor’s permit. People who had committed crimes would have their permits withdrawn. He said that there was an allegation that people applied for permits and then were contracted to work as mercenaries in other countries. The Chairperson wondered why a permanent residence permit would be withdrawn irrespective of the nature of the crime that had been committed.
Mr Erasmus answered that only if one committed one of the offences listed in the Immigration Act (2002) and the ones listed in the schedules would permits be withdrawn.
Mr Andre Goosen (DHA Permits: Director) added that anyone who came to South Africa had to meet specific requirements before being awarded a work permit. Some of these requirements were quite stiff. If a permit was granted, South Africa could not control that person’s movement to another country. The work permit was a temporary permit authorizing him or her to work for a particular employer. If he or she went to another country and committed an offence there, South Africa could not be held responsible.
Mr Sibande said that some people came to South Africa with a visitor’s permit and then started to make films that would be taken abroad. South Africa had no means of protecting its film industry. People thus easily avoided paying revenue. He wondered what protective measures could be put in place.
Ms N Mathibela (ANC) wondered whether the increment from two to four years that was mentioned in Clause 6 was in line with other countries. The Chairperson agreed that the intra-country work permit was the main point of concern.
Mr Andre Goosen (DHA Permits: Director) said that some countries actually allowed for intra-country work permits to be issued for up to five years. South Africa was in line with other countries. The original two years had been very conservative and had created problems in terms of investments.
The Chairperson sought clarity the provision that a person with a visitors permit could with the approval of the Director-General of Home Affairs be employed in South Africa. He wondered why this was necessary especially in light of the South Africa’s unemployment and asked which category of people this provision would apply to.
Mr Erasmus explained the provisions of Section 11(1) of the immigration Act which dealt with visitor’s permits made provision for a three month period which may be extended for another three months with the permission of the Director General. It made provision for certain categories of people who received visitors’ permits for up to three years.
The new Section 11(2) (b) (4) applied to people who would be in the country for longer than 7 months to replace machinery etc. This provision made it possible for such people to stay for the duration of the time they needed to perform the task they came to perform. The DHA found that the Section 11 visitors’ permit was being abused by people who entered into the country and then used this three-year permit to obtain work permits. The amendment aimed to curtail this practice.
The Chairperson wondered whether the amendments would affect the FIFA Special Measures Bill.
Mr Erasmus said that the DHA had tried to put current legislation in the in the Special Measures Bill. In certain instances they tried to make it easier so that some people could be accommodated on visitors’ permits. There might be a slight amendment to the Immigration Act but it was necessary for the purposes of the Accelerated Shared Growth Initiative for South Africa (ASGISA) and Joint Initiative for Priority Skills Acquisition (JIPSA) i.e. in order to attract investment. In other instances, such as matters related to soccer hooligans, checks and balances had been put in place.
The Chairperson wondered what the amendments aimed to address. Mr Erasmus said that the main concern related to the intra-country transit work permits. The DHA had tried to address other areas of concern.
The Chairperson pointed out that due to problems related to the Civil Union Bill and the processes involved in its tabling the Committee had had to amend its programme.
The programme would commence with public hearings on the Civil Union Bill at the Ephelegeng Community Hall in Soweto (10AM). Efforts would be made to popularise the event. The hearing would be held jointly with the Select Committee. The Committee would then proceed to Polokwane, the Free State, Mpumalanga, KwaZulu Natal, the Eastern Cape, the North West Province, Northern Cape and finally the Western Cape. He emphasised that Parliament had to be sure to involve all South Africans even the ones who could not come to Parliament. He emphasised thy people had to be taken seriously and politicians and parties had the responsibility to make sure that their mandate was delivered.
The Chairperson wondered whether the entire Committee had to be present at the first reading of the Bill.
Ms Kalyan explained that the new system would involve a 60-minute debate with every party having 3 minutes to speak. The system was new and the Civil Union Bill would be used as a trial. The process required that the Committee should not yet have deliberated upon the Bill and that public hearings should not yet have been held.
The programme was adopted.
The meeting was adjourned.
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