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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
25 October 2007
VAN DER MERWE’S FLOOR CROSSING PROPOSAL; GERBER’S PROPOSAL FOR REPEAL OF DUTCH REFORMED CHURCH UNION ACT, APOSTOLIC FAITH MISSION ACT, METHODIST CHURCH ACT, BIBLE SOCIETY OF SOUTH AFRICA ACT: DELIBERATIONS
Chairperson: Ms P Mentor (ANC)
Documents handed out:
Dutch Reformed Churches Union Repeal Act
Apostolic Faith Mission of South Africa (Private) Repeal Bill
Methodist Church of South Africa (Private) Repeal Bill
Bible Society of South Africa Repeal Bill
Audio recording of meeting
The Committee deliberated further on the way forward on the van de Merwe Floor Crossing proposal. The Committee had been questioned on the decision to conduct the survey, but considered that it was empowered to do so. It would be useful to have a preliminary workshop to invite all stakeholders and to clear the situation. A quotation was tabled from Markinor, and the terms and conditions discussed, as also whether a stand-alone survey should be done, or whether it should rather undertake omnibus research, including the twice-yearly standard political research that this firm already did, with results to be given next March. A fourth quotation had been received and this would be forwarded to the Chairperson before being placed before the Committee. She would clarify the business plan approach with the Presiding Officer. It was stressed that the language issue be raised with Markinor in the meantime.
The Committee had considered a proposal by Mr Gerber to repeal six Acts relating to churches, on the basis that they contained terms and clauses inconsistent with the Constitution. The Dutch Reformed Church and the Department of Justice gave their comments on the proposal to the Committee. The Dutch Reformed Church expressed its support for the repeal of the Dutch Reformed Church Union Act on the grounds that it had never been implemented and was no longer relevant. The Department of Justice commented that although the Acts could be repealed, there should be consideration given to whether there was a need for transitional arrangements in relation to property, pension schemes or other arrangements, and legal action by or against the institutions. The suggestion was made, and accepted, that the South African Law Reform Commission, which was in any event surveying all pre-1994 legislation, should be asked to give urgent attention to these Acts. Further comments would be heard the following week from interested religious groups.
It was noted that the study tour to Brazil was again cancelled due to authorisation not given. It could proceed any time between 15 November and 15 December. The Committee noted that this was particularly unfortunate as it would have provided an opportune occasion to study why Brazil had just struck down floor crossing.
Study Tour to Brazil
The Chairperson announced that the study tour to Brazil had been cancelled, but the Committee was permitted to go to Brazil when Parliament rose, any time between 15 November and 15 December.
The Chairperson welcomed and introduced Ms L Maloney to the Committee. Adv Swart too welcomed her, saying that one of her functions as Chief Whip would be to ensure quorums.
Van der Merwe’s Floor Crossing Proposal
The Chairperson said that a third proposal for the research had subsequently been received from Markinor, who had guided the Committee through a way that was very cost effective. They said a stand-alone survey that would cost between R2 million and R3 million, and they could rather do an omnibus research. Markinor apparently normally did political research twice a year, and could link matters together, with the results out by March next year. They claimed they were the most reliable, especially if they were required to survey the whole country. They would be sending the Committee the results of a fairly recent survey they themselves had conducted on floor crossing, to avoid duplication and more costs.
The Chairperson had also received correspondence from the Presiding Officer raising questions about the Committee’s decision to undertake a survey. The Committee had a long outstanding workshop with Mr Doige, so she wrote a letter suggesting that the Committee fast track that workshop, so that all matters could be discussed. The Chairperson suggested to the Presiding Officer that one of the Fridays scheduled for the Committee’s meeting should be used for a preliminary workshop from 09h00 to 12h00, and then move forward in terms of the study and other related matters.
Mr S Mshudulu (ANC) noted that whenever there were bottlenecks the Chairperson bore the brunt. Last week the committee had mandated the Chairperson to write a letter to the Speaker. The Committee was dealing with matters properly. The Researchers had been asked to try to access other information in the meantime.
Adv P Swart (DA) agreed that all decisions taken were to be regarded as Committee decisions. He agreed that a workshop would be useful, but that in view of the Minister of Finance would attend the following meeting, the workshop would have to be on the following Friday. He thought the suggestion for an omnibus and cost effective research by Markinor was useful. However, the timing must be considered.
Mr H Bekker (IFP) agreed and stated that the IFP would definitely support the lowest possible cost. He concurred that the IFP was fully supportive of the Chairperson, and she represented everyone.
Mr Magwanishe suggested that the Committee should first consider Markinor’s research that was already conducted, and check whether that research met the need; if not, the Committee could consider the omnibus.
Ms S Rajbally (MF) noted that the Chairperson had been in a very embarrassing position in relation to the trip to Brazil. She thought this was unacceptable.
The Chairperson noted that the Committee would also be asking Markinor about its questionnaires and looking not only to results, but also at the size of the sample, the objectives, and how were the questions framed. The secretary would today ask Markinor to forward that to the Committee. Markinor had already indicated that the omnibus would cost something between R150 000 and R250 000, excluding VAT, and that awareness questions would be added, so it would also be an educational tool. She read the relevant part from their letter.
The Chairperson thanked the committee for its support and the manner in which the Committee worked. It was a fine example of Parliament’s work. She noted that although the Constitution deliberately used the words “ public participation” and “public involvement”, this did not only mean public hearings. There seemed to be some unease about this Committee treading a new path, but she felt there was no reason why the Committee should not continue this line, demanding the right to ensure public involvement.
Mr A Ainslie (ANC) said that the size, the distribution and the questionnaire used for the sample were all important. The Committee had agreed at the last meeting that it was important to communicate with people in the local and dominant language in each area. He was wondering whether the assessment of costs included translation into local languages and suggested that this point must be clarified with Markinor.
Mr Ainslie suggested, with regard to the proposed workshop, that the previous minutes be circulated again, together with the documentation dating back to a previous successful workshop with external input, with speakers from UCT.
Ms L Maloney (ANC) noted that the Chairperson had raised a very important point about public involvement and the question of the budget. The workshop with the Minister of Finance would also assist him to understand public participation and the need for an appropriate budget.
The Chairperson said the Minister of Finance would attend to engage on the Kellerman petition. Although the Committee could write to the Minister, the budget was more of an internal issue. Should this become a constraint she could raise it with the Presiding Officer. She noted that the Minister would be abroad in the next week.
The Chairperson mentioned that it would have been useful to visit Brazil, as the main reason it was chosen was that Brazil had just struck down floor crossing. International study tours were held to strengthen links and to monitor as Parliament, to link in with whatever government was doing in relation to other countries. IT was critical that if government had an India-Brazil-South Africa relationship the Committee should strengthen that relationship monitor what was happening within it. When the study tour eventually did take place the issue of floor crossing would be investigated.
Mr Gary Rhoda, Parliamentary Researcher, reported that a fourth quotation had been received from The Research Lamppost. This quotation was very detailed and included eleven languages, the sample size and detailed the number of people in each province. The quotation was of good quality, but was expensive. He was working with the Committee Section on the funding. In comparing the costings, it had said that because of the amounts, the tender process should be used unless there was urgency, in which case the business plan route could be followed. The information had been received, but needed to be translated. He was also trying to piggyback on media reports.
The Chairperson said the fourth quotation was not to be put before the Committee before the Chairperson had seen it and decided whether it was relevant because normally three quotations would be sufficient. She had also engaged on the funding and she had already cleared obstacles, discussed the short term business plan, and did not think time should be wasted on the tender process.
She confirmed that the Committee Secretary would communicate with Members early next week as to the date on which Mr Doige would come for the workshop. Because the Minister of Finance was also entering the mid-term budget process, it might be difficult for him to attend, but the Committee could ask him to delegate Treasury and Government Pension Fund officials to speak to the Kellerman matter.
Gerber’s Proposal for repeal of Church Acts: Dutch Reformed Church Briefing to Committee
The Chairperson said that the Secretary had struggled with getting contact details of the people who should have been invited to attend today, so this issue would stand over. Invitations in writing would go out today. People must not be invited telephonically, and full records kept of the Committee’s activities.
Adv Swart referred to the presentation by the proposer last week on this issue. It was very difficult for him to think that the Jewish Board of Deputies and the Muslim Judicial Council would have any interest in this proposal. He did not want to pre-empt what any other grouping would say, but would prefer, in view of time constraints, to focus only on the Bible Society, the Methodist Church and the Apostolic Faith Mission for next Friday. If the main interested parties could attend and reach consensus the Committee would not even need to extend further invitations. Courtesy invitations could even be sent out, without this amounting to an instruction to attend.
The Chairperson pointed out that the issue was not so much who was legislated for, but was the broader issue of a secular or non secular State. Courtesy letters would be useful, and if the bodies did not want to attend, they could send written input. The invitation was intended to check what their view was on the fact that only some religious bodies were legislated for, but not all.
Mr Mshudulu pointed out that he had proposed to invite all the independent churches and even unregistered churches, as a matter of principle. There were issues of principle that were very fundamental, and he felt that in principle they should be invited, that it was in fact an honour for them to receive an invitation.
Mr Magwanishe suggested that since Friday was a short meeting day, the Presiding Officer be asked to allocate an entire day for meaningful participation, which should be fully inclusive. In addition, perhaps a press release could be sent out. Perhaps the Committee should approach Parliament to take this as a public hearing.
Ms Zoraya Adhikarie, Senior Parliamentary Legal Advisor, emphasised that the Constitution enjoined Committees to be sensitised to the Muslim sabbath on a Friday. This should be borne in mind. If the Committee invited Muslims on a Friday this would not be facilitating their attendance.
Members discussed a suitable day and it was agreed that as a once-off, the Committee would meet on the following Friday from 08h30 to 14h00.
Dutch Reformed Church comment
Dr Ben du Toit, Parliamentary Desk, Dutch Reformed Church, gave a short presentation supporting the repeal of the legislation, and enlightening the Committee on the historical background (see attached presentation).
Adv Swart pointed out that there was an objection noted on page 2, paragraph 10, but this related only to part of the motivation for Mr Gerber’s proposal.
Mr du Toit agreed.
The Chairperson said that the Committee noted the objections, and noted also the procedure, which would allow the sponsor of the legislation to speak again, and to give a response. This would take place the following week.
Department of Justice comment
Adv Deon Rudman, Deputy Director: Legislation, Department of Justice, noted that he had received the documentation only two days ago so the views expressed were only preliminary. The Department accepted
that there were many pre-1994 pieces of legislation that were in conflict with the Bill of Rights, and it was on that basis that Cabinet approved that the South African Law Reform Commission embark on a project to identify all these Acts and the specific provisions that were redundant or obsolete or inconsistent with the Constitution. 2800 Acts on the Statute books needed to be scrutinised to see whether they complied with the Constitution, and it must be determined which departments were responsible for administration of those Acts. Unfortunately the Acts mentioned as Private Members’ Bills were not administered by any one department that accepted responsibility for them. He understood that they were listed under Arts and Culture, but they did not administer them, probably because they were introduced by Ministers rather than departments.
Adv Rudman had looked at the Acts and clearly some of them contained provisions in conflict with the Equity Clause of the Constitution. The problem lay in how the Department could support the amendment, as in fact the Acts regulated internal procedures of the institutions, and also dealt with rights of ownership and possession and administration of property, and established pension funds, so that a repeal would need to be carefully examined. The Department of Justice thought that there was a strong possibility that if the Acts were repealed, there would have to transitional arrangements to ensure proper vesting of property and pension schemes. He suggested that the two options were to leave the matter (as a longer term process) to the Law Reform Commission, or to speak to the Researchers at the Law Reform Commission to see whether they could look at these Acts urgently and make recommendations on the possibility of transitional arrangements. He also suggested the need to consult with the institutions that created structures in terms of these Acts. He was in essence saying that although the Acts could be repealed, caution must be exercised as to the consequences and the effect on vested rights, and how claims would be dealt with in future.
The Chairperson noted that the Committee could liase with the Law Reform Commission. She agreed that nothing should be done without consent of those affected. She asked Mr Rudman to research why the Evangelical Lutheran Church of Southern Africa had no special arrangements for that Church, and why he was proposing special arrangements for the Dutch Reformed Church which they themselves had not proposed.
Adv Swart declared there were six different Acts which contained these provisions. He asked which sections in the Dutch Reformed Church legislation could be problematic. He fully agreed with the Chairperson’s argument in terms of legislation for one Church and not for others. He further pointed out that the Committee could have a problem if a section of one of the statutes had been used for contractual purposes. The Dutch Reformed Church did not seem to have a problem as the provisions of this Act had never been used before by anybody.
Mr Bekker reflected that Muslims, Catholics, and other Churches who had their own legislation were probably working from a basic draft. He suggested to Mr du Toit that in the meantime the Church should look at their property rights and other aspects raised, as well as internal arrangements, and consider how best to structure them internally.
The Chairperson thanked Mr du Toit and Adv Rudman, and asked Mr Ainslie and Mr Magwanishe to liase with Mr Rudman, and also to alert those who could not attend today so that the letter would fully prepare them for further discussions the next week.
Mr du Toit drew attention to the time frames. He had made the point, under paragraph 4, that because the required 75% majority vote for unification from all the congregations (represented by the local church councils) could not be attained in 1912, the unification was never realised in terms of the 1911 Act, and therefore it was never implemented. In 1962 the unification of the churches did take place in terms of a new Act, which repealed all previous Acts. He appreciated the Department of Justice’s caution, but as far as the Dutch Reformed Church was concerned, there was nothing needing intervention in any of the areas mentioned.
Mr Rudman responded that other churches may have been established in terms of a contract or agreement or articles of association or their own constitution, and these might contain provisions in relation to property. There were only essentially four pieces of legislation (two were amendment Acts), and all had contained reference to property. He had not had time to consider in depth the consequences of repeal, but wished to reiterate that these aspects must be taken into account. He would instruct the Secretariat of the Law Reform Commission to look at this, and to advise him and the Committee in turn. He would also take it up with his Minister.
The meeting was adjourned.
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