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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
11 September 2007
NAMIBIAN DELEGATION MEETING & JUDICIAL SERVICE COMMISSION BILL: DELIBERATIONS
Chairperson Ms F Chohan (ANC)
Documents handed out
Judicial Service Commission Bill (version as of 11/09/2007)
Judicial Service Commission Submission on the Bill
Members of the Committee met with a delegation from the Namibian Parliament, to discuss matters of mutual interest. The composition of the parliament in Namibia was briefly described, and it appeared that it too suffered from lack of resources. This Committee outlined its problems as lack of resources and capacity, and described the administrative accountability and budgeting. The Committees tended to rely on assistance from the Executive. Training initiatives were briefly described, and the separation of powers and oversight functions were also set out. The possibility of public hearings, study groups and detailed party study groups were outlined. The Namibian members asked how the Committee ensured effective implementation of the legislation, remarked that it had similar problems in capacity, especially in exercising its functions, which was a residue of its previous administration as a fifth province of South Africa. The role of the opposition was discussed. IT was noted that South Africa was a civil democracy, where the final arbiter was the Constitutional Court. The role of National Treasury was also outlined, and the point was made that this could give rise to tension, yet relations between the Asset Forfeiture Unit and the Public Finance Management Act could also be beneficial. The personalities also played a part. Further discussions were held on the position of traditional leaders and courts, and it was noted that this was the subject of a current investigation.
The Committee then proceeded with its discussions on the Judicial Service Commission Amendment Bill. It was noted that the comments of the Judicial Service Commission had also been considered. The drafters from the Department of Justice explained the provisions of the new Sections 14 and 15, which were concerned with the complaints mechanism. There was a need to strike a balance between considering all complaints and not overburdening the Judicial Complaints Committee. The procedures for the less serious, repetitive, or impeachable complaints were briefly explained; each being dealt with separately in the Bill. It was agreed that the drafters needed to work on the wording in the new Section 15; that the references to "guilty" should be used only where these related back to the Constitutional provisions, that there should be reference to "respondent" and that the procedures for appeals, the noting of complaints and reasons in writing and the conveying of this to complainants, should be checked again. The Committee would continue with the remainder of the Bill at a future meeting.
Meeting with Namibian National Assembly Delegation
The Chairperson introduced Members of the Committee, and Dr Moses Amweelo, Member of the Namibian National Assembly of Parliament and leader of the delegation, introduced his colleagues as Ms Ida Hoffmann, Mr Reggie Diergaardt, Members of the Namibian Parliament, and Mr Albius Mutonga, member of staff.
Dr Amweelo stated that Namibia was a young country with a short parliamentary tradition, and that the purpose of the visit was to learn from the South African Parliament on a number of issues. These would include the Parliamentary oversight over the Executive, the importance and role of Traditional Courts, funding of the Committee, how it handled assets and funding. The delegates also wished to learn how South Africa trained the members of its Justice Committee in technology and the swiftly changing new technologies. Thirdly, the delegation would examine how the Committee, as a representative of the legislative arm, exercised checks and balances over the Judicial and Executive arms of Government. In addition their programme included studying how the Committee exercised supervisory functions over the trial courts and the institution of the Small Claims Courts. South Africa was particularly well equipped to serve as a model as South Africa had a population in the region of 44 million, and Namibia had a population of 1.8 million.
The Chairperson commented that in a sense the South African parliament was younger than the Namibian, as it only commenced under its current dispensation in 1994. It had the buildings, but not the institutional memory and everything which now existed was started afresh. The chief problems were lack of resources and capacity. Under the South African electoral system, which was proportional representation, each Member of Parliament was deployed to a constituency where he or she had a constituency office, funded through that Member’s political party . The Member would be deployed there for five years. She herself had been deployed to five different constituency offices in her membership of Parliament since 1994. She added that capacity was a problem; and funding for often simple matters required several different channels. She cited an example that if an inspection in loco was necessary at a court in Bloemfontein, it might take up to four weeks to access the necessary funding. She felt that it was all a matter of accountability, and this related to a budget and the freedom to spend the money without accounting to other bureaucratic levels. As a rule, this Committee did not proceed on inspections in loco but would call for recommendations and specialists to appear before the Committee in Cape Town. The Committee had recently been hearing submissions on the proposed legislation for the interception and monitoring of electronic telecommunications. Many of the specialised and technical terms and concepts used had required both defining and explaining to the Members of the Committee. In her opinion, this Committee was, through force of circumstances, far too reliant upon assistance from the Department (the Executive branch of Government), and this was not an ideal situation, particularly when bearing in mind the doctrine of separation of powers as an abstract ideal. This Committee had a budget of around R400 000.00 annually, but access to the funds budgeted was a problem, with the unfortunate result that funds were rolled over in the budgetary process. Last year, for the first time in five years, all the Members of the Committee were able to travel overseas to study comparative committees. The Committee was currently busy with six "normal" and one Constitutional Justice Bill, and the allocation of resources to handle these matters in the most ideal way was a problem.
Imam G Solomon (ANC) addressed the Committee and visitors with regard to training. He outlined that recently the Committee had interviewed the Chairperson of the Special Ad Hoc Committee that was constituted to investigate the Chapter 9 institutions. He explained that the South African Constitution made allowance for nine institutions aimed at supporting democracy. Members were associated with political parties and as such represented the views of their parties. When a person was deployed as a Member of Parliament he or she would receive technical training from Parliament itself, relating to the structures and functions of Parliament, the Committee structure, the legislative process and how this impacted and interacted with civil society , IT training (which was becoming increasingly complex), the Ideological aspect of the legislative process, and then the impact of various issues and policies. Training was becoming more formalized, and certain universities, primarily the University of Fort Hare, were running courses, which ranged from short courses through to PhDs.
Ms N Mahlawe (ANC) reminded the members and visitors that the separation of powers doctrine was built into the Constitution. The Legislative, the Executive and Judicial powers must be separated. This Committee had oversight of all proposed legislation pertaining to the judicial powers, including the Chapter 9 Institutions, debt collectors, the Sheriffs, and the Legal Aid Board. All these institutions presented annual reports and the Committee Members would have an opportunity to question the officials from the reporting institution, and make or question any proposals for change. In addition this Committee has oversight of the National Prosecuting Authority (NPA), and its subsidiary the Scorpions. From a logistical point of view the Committee would hear presentations. It could also hold public hearings are held at which submissions and representations would be put forward. In short, the Committee was engaged in oversight work over the Department of Justice and Constitutional Affairs. To effect its purpose the Committee might break itself down into study groups, and the political parties too could have study groups composed as the parties saw fit. The Minister and/or the Deputy Minister could, and did, attend these study groups when it was felt that issues need to be discussed with them. The study groups were used to attend to specific detail in the proposed legislation.
Dr Amweelo asked how the Committee ensured effective implementation of the legislation.
The Chairperson pointed out that the Committee could not do this, as the South African Parliamentary system did not enjoy the powers and functions enjoyed by certain other systems that had a greater investigative role afforded to them in terms of legislation, and ascribed to them by Parliamentary practice. Distances in South Africa also exacerbated the problem of effective oversight. She conceded that Parliament was currently a “rubber stamp” of the executive or administrative arm of Government. If the legislative arm were to be able to match the executive administrative arm, this would require a greater allocation of funding for the necessary resources. Public hearings were held, at which activists from civil society could make representations and give evidence and engage the Committee from across the party lines. The aim was always to reach a consensus and amicable settlement. However, the difficulty in oversight could be seen from the fact that the Committee supervised over 23 sub departments within the Department of Justice and Constitutional Development, and at presentation times the Committee would be faced by around 20 highly knowledgeable and competent departmental presenters. The Committee simply did not have the capacity to match, or improve upon, such capacity. On occasions the smaller sub-committees would meet for an investigative week of their allotted 4 weeks and spend the other 3 weeks polishing up their report. However, Justice and Constitutional Development came before Parliament at every session and there were tremendous demands made upon the Committee. In addition, there is only one Committee Secretary, Ms Sibisi, to give administrative support, and although she would keep track of when reports were to be presented, this was an enormous task. In addition, differing priorities would on occasion require intervention from the Secretary of Parliament. Fortunately there was cooperation from Departmental officials and there would be happy settlement in most cases.
Mr R Diergaardt (MP Namibia) remarked that the Namibian Parliament had similar problems with regard to capacity. In Namibia there were 72 voting members of Parliament, and 6 non voting members of Parliament, and 45 were engaged with the Executive. When Parliament was required to perform its oversight function there was a problem in finding adequate manpower and resources, and this led to frequent meetings in caucus. In his opinion such problems were the residue of Namibia having previously been administered as a fifth province of South Africa. The Namibian Parliament lacked resources and he had huge admiration for the library facilities in the South African parliament.
The Chair asked whether there were any opposition members in the Namibian Parliament and whether they could play an effective role on Parliament
Mr R Diergaardt and the Chairperson exchanged views on the role of the opposition in a Parliament. Mr Diergaardt said that by agreement the opposition was awarded Chairmanship of the Standing Committee on Finance, which gave it a more meaningful role than it might otherwise have enjoyed. However, the opposition could not influence policy. He added that in the Namibian Parliament membership of a Committee, by convention, meant the abandonment of party principles, so that the members were Members in their individual capacity, and not as party political representatives.
The Chairperson welcomed Ms M Meruti (ANC), who was at this point able to join from another meeting, and congratulated her on her appointment as a Whip.
Imam Solomon wished to comment upon the fact that it was difficult for an ordinary member to oppose, or even influence, the wishes and intentions of the Executive. He then added that South Africa was a civil democracy, and in his view the power lay in the Constitution more than with the executive or the legislature, and that the final arbiter was the Constitutional Court.
The Chairperson amplified that Parliament was subject to the National Treasury, which held the purse strings, and that even Parliament can not operate without funds. The operation of the oversight function was dependent upon the allocation of funds, and this gives rise to tension between the executive and the legislature. In her opinion the prime example of this tension was between the Standing Committee on Public Accounts (SCOPA) and the Executive at the time of the arms deal.” She was of the opinion also that the relations between the Asset Forfeiture Unit and the Public Management Finance Act (PMFA) gave rise to good relations between the legislature and the executive. It must be recognised that there were ebbs and flows in the relationship between the executive and legislative branches of government, and that on occasions the legislature was at a distinct disadvantage and would get outvoted. Furthermore there were differences of opinion, in the academic world and even in parliament itself, as to how these differences could be reconciled. The Executive might request a party political study group, and even attend such groups, or demand that the party vote en bloc. However, personalities made a difference and a forceful personality could persuade that policy be amended slightly, or changed more radically, or even be withdrawn or a forceful Minister overrule a Committee. She conceded that there were huge problems and that Parliament was not a mechanical process. At the end of the day, it was generally the Executive that prevailed. Further, it must be borne in mind that only the President resigned from Parliament when assuming his Presidential Office. Ministers and Committee Chairs remained members of Parliament and had to interact with the other members. Things could be done, but getting them done would require the personality factor which was always important.
The Chairperson continued that there was a concern, if not a fear, that while this might be the current situation, what would happen in the future, when there might be a different mixture of personalities and agendas? Apparently in the previous regime there was a theory that the Minister had to be trusted by the members, and that such an approach had reduced parliament to a rubber stamp function. She felt that this was not the best way to go.
Ms Hoffman (MP Namibia) asked for amplification about the position of Traditional Leaders and Traditional Courts.
The Chair conceded that Traditional Leaders and Traditional Courts might be termed a major problem before Parliament. She pointed out that the existence of Traditional Leaders were recognized by the Constitution and that there was subordinate legislation covering their roles and powers. However there was no consistency, and a Traditional Leader in one area of the country might exert more power and play more roles than another in another part of the country. The problem with Traditional Leaders began with defining who they were. From 1652 the colonizers recognised some traditional leaders, usually those who were favorably disposed to the colonisers and deposed those who gave opposition, whether from the San, Khoi-San or black tribes. True Traditional Leaders might have been sidelined. In addition, changes within the societies themselves had further changed the role. Currently there was a Committee investigating all traditional leaders and in due course it would produce its report. Not everyone would be pleased with the outcome. The powers of the Traditional Leaders were currently circumscribed by the Constitution which had lead to a White Paper on Traditional Leadership. Though the references to customs came through the oral, and thus uncertain, traditions, Traditional Leaders were ascribing to themselves all sorts of powers and functions which were in conflict with the Constitution. Thus there were huge disparities between the Traditional Leaders of the Kwa Zulu Natal and the Eastern Cape Provinces, and these were intertwined with the residual powers of the Black Administration Act of 1927, much of which had been repealed, but certain sections of which had to remain in place until further legislation was enacted around the powers and customs. Traditional Courts still operated in certain areas, and gave rise to a conflict of laws situation, especially as the equality concept of the Constitution was not advanced. However, there were study groups who were required to present a report, in line with the Constitution, by 30 June 2008. This subject required serious work and thought, and the outcome would no doubt cause some unhappiness.
Ms Mahlawe pointed out that at present in terms of the Constitution certain tribal leaders were claiming the rights and privileges of Kings, and that they occupied a position analogous to Parliament.
Mr Diergaardt enquired about the role of this Committee in making appointments of Judicial Officers.
The Chairperson replied that this was done by the Judicial Service Commission, Some Members served on this Commission. There were two operating arms - one for the appointment of judges and the other for the appointment of Magistrates and discipline of magistrates. The Judicial Service Commission met behind closed doors.
Dr Amweelo thanked the Chairperson and the members for the interchange of ideas, and hoped that there would be future cooperation.
Judicial Service Commission Amendment Bill: Further deliberations
The Chairperson reminded Members that there had been many representations and submission about the previous drafts of this Bill, all of which had been taken into account by the Departmental drafters in producing the version that was before the Committee now. The comments from the Judicial Service Commission, received at an earlier stage, had also been circulated and these too had been taken into account. Not all the submissions and representations had been included in their exact form as presented, but the essence had been worked, where applicable, into the draft in suitable language. One of the more notable changes was to remove the Chief Justice from an active role in the JSC, leaving it to the Deputy Chief Justice. This would avoid the anomalous situation where the Chief Justice in one role was referring matters to himself in another role, and this procedure would lay the Chief Justice open to accusations of bias.
The Chairperson added that the other aspect was the Code, and it was felt that this should be produced with a tight time framework, such as 6 months from enactment or promulgation, since these Codes still had to be approved and passed by Parliament. These codes would include the list of assets, and the form the lists must take, and the updating process. The Chairperson felt that the parliamentary process would serve as a good guide, and this for required such lists to be produced and updated annually, within a restrictive time frame and to be open to the public. The intention was that litigants should be able to determine potential conflicts of interests, and hence bias, on the part of judicial officers, whether serving or non serving. Judges were appointed for life and would remain judges even if involved in arbitration work. If this came into operation there was the question of who would provide secretarial services for this function.
New Section 14
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, stated that this new Section dealt with consideration of complaints against judicial officers. It was envisaged that there would be three categories of complaints, firstly the minor complaints, often arising out of sheer irritation, which were often able to be considered and dismissed by a simple process; secondly the more serious complaints, which warranted investigation and a decision, which could involve a reprimand or other disciplinary action. There was also a category of complaints which might not seem so serious when taken on their own, but which were repeated against a particular judicial division or a single judicial officer, and which, by virtue of their recurrence, would alert the Judicial Conduct Committee (JCC) to the existence of a problem deserving investigation and treatment by the JCC. The " less serious" complaints might be delegated to the Head of the particular Court for investigation, unless the Head of Court was the subject of the complaint, in which case there were alternative procedures.
New Section 15
Section 15 was envisaged for the lesser complaints where there may be a summary dismissal of the complaint. If the complaint was one of a series, or more serious, then the new Section 17 was the suggested mechanism. Where it was discernable from the outset that impeachment was a possibility then there was another procedure. The difficulty was maintaining a balance between the acceptance of complaints, rather than automatic or frivolous rejection, and not over burdening the JCC with work where and when the complaints are trivial.
The Chairperson thought that there needed to be more work on the wordings. She was concerned, and Mr de Lange agreed, about the use of the word "guilty". It was noted that this word was at times used in the Constitution. Furthermore there was to be consistent use of the word "respondent" to reflect the judge against whom the complaint was lodged.
The Chairperson noted that there was, in the case of the "minor" complaints, always the possibility of an appeal to the full JSC. All complaints and reasons for decisions must be in writing. The reasons for the decision should be given to both complainant and respondent in writing within a suitably brief period. The investigations were to be conducted in an inquisitorial manner.
Mr de Lange pointed out that the respondent would be entitled to appeal against both the decision and punishment.
The Chairperson specifically called for comments from the Committee, and there was agreement from other Members with her and Mr de Lange's views.
The meeting was adjourned.
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