Correctional Services Amendment Bill: Finalisation; Prohibition or Restriction of Certain Conventional Weapons Bill: Briefing
Meeting Summary
The Committee adopted the Correctional Services Amendment Bill as amended. A great deal of discussion ensued over Clause 70, which dealt with the appointment of the CEO of the Judicial Inspectorate. At the outset of the meeting it was already apparent that the drafters were not in agreement over the provisions of the clause. The issue was whether the National Commissioner was obliged to appoint a CEO for the Office of the Inspecting Judge that had been recommended by the Inspecting Judge. In the end the formulation drafted by the Parliamentary Legal Advisers was accepted with amendments.
The Department of Defence briefed the Committee on the Prohibition or Restriction of Certain Conventional Weapons Bill. SA had become a state party in 1995 to the Convention on the Prohibition or Restriction on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects. The Bill was the result of the convention requiring party states to enact enabling legislation to give full effect to the convention. As the title suggested the Bill prohibits or restricts the use of certain types of dangerous weapons.
Meeting report
The Correctional Services delegation comprised of Minister Ncgonde Balfour, the National Commissioner, Mr Vernie Petersen, Adv Millicent Malebye Deputy Commissioner: Legal and Special Operations and Mr Carel Paxton Director: Code Enforcement. Ms Bongiwe Lufundo represented the State Law Adviser’s Office and Mr N Vanara was from the Parliamentary Legal Office.
Mr Vanara provided the Committee with insight into the amendments that had been effected to the Bill. He explained that most of the amendments were agreed on by the department, the state law advisors and himself. There was however a difference of opinion on Clause 70 which dealt with the appointment of the Chief Executive Officer of the Judicial Inspectorate.
Ms B Lufundo, State Law Advisor said that she agreed with the provision that the Inspecting Judge identifies a candidate for appointment as CEO and that the National Commissioner would do the actual appointment. She disagreed with the part of the formulation that gave no discretion to the National Commissioner for the appointment of the recommended candidate by the Inspecting Judge. The National Commissioner therefore had to appoint the recommended candidate.
Ms Lufundo stated that Clause 56 dealing with the incarceration framework was another clause that needed to be reformulated as it had interpretation problems. The content however remained the same. It had never been the intention to give the Minister the discretion to prescribe periods for incarceration for qualification for parole. The clause as amended now gave the discretion to the National Commissioner to determine the periods. A great number of amendments had been effected to the Bill but those discussed stood out from the rest.
Mr Mokoena stated that there seemed to be agreement on most of the amendments. He felt that the issue surrounding Clause 70 was not insurmountable and asked whether there were any constitutionality concerns over the formulation drafted by Mr Varana. If not, the Committee would solve the matter by itself.
The Chair asked about appointment practices in other departments. He asked if the National Commissioner was obliged to appoint the recommended candidate.
Ms Lufundo stated that the National Commissioner should use his discretion on whether to appoint or not. The National Commissioner did not have to appoint the candidate. She said that the matter was nevertheless debatable.
Mr S Shiceka (ANC, Gauteng) noted the concerns of Ms Lufundo in that the candidate recommended by the Inspecting Judge might fall short of what the National Commissioner expected. The National Commissioner would then find himself in an awkward position. He however noted Mr Vanara’s concern as well in that the Inspecting Judge was in a better position than the National Commissioner was in choosing a potential candidate for CEO. The Inspecting Judge was essentially part of the entire process much longer than the National Commissioner was. He noted that there was agreement that the Director-General of Public Service and Administration (DG) should not be a party to the CEO appointment decision.
Mr J Le Roux (DA, EC) felt that the Inspecting Judge should select the candidate and the National Commissioner should make the appointment.
Mr A Manyosi (ANC, EC) said that conditions of service were governed by the Public Service Act. He felt that there was a role for the DG in the appointment of the CEO. Given that the National Commissioner was to make the appointment, he should have the final say in the matter.
Mr N Mack (ANC, WC) disagreed and said that the DG should not be involved in the appointment of the CEO. The DG’s role relating to conditions of service should be separated from the appointment of the CEO.
Mr Vanara explained that the Portfolio Committee on Justice and Constitutional Development had taken a policy decision. The independence of the Judicial Inspectorate should be guaranteed. The Inspecting Judge should select the CEO, as they would be working closely with one another. The snag was that the Inspecting Judge could not make the actual appointment, as it was an administrative function, which he could not perform. Hence the appointment had to be made by the National Commissioner. The choice of candidate was with the Judicial Inspectorate but if the candidate was unsuitable the National Commissioner did have the discretion not to appoint.
Mr Mack said that the issue was about the use of the word, “must”. The National Commissioner must appoint the candidate selected by the Inspecting Judge. He asked what the consequences were if the word “must” was not used.
Mr Vanara said that the Committee needed to identify its policy decision around the issue. Did the Committee wish for the National Commissioner to have the final say? It was only because the Inspecting Judge could not make the appointment himself that the National Commissioner was needed. The appointment of the CEO was an administrative function that the Inspecting Judge could not perform. Mr Vanara said that the formulation drafted had been based on the policy decision of another Committee. The Committee therefore had to take its own policy decision.
Ms Lufundo reiterated that the use of “must” placed an obligation on the National Commissioner to appoint the candidate chosen by the Inspecting Judge. The National Commissioner had no discretion in the matter.
Ms Malebye said that the formulation before the Committee only allowed for the National Commissioner to have discretion to intervene when there was non-performance by the candidate. She asked why the National Commissioner had no discretion at the beginning of the process when he received the recommendation from the Inspecting Judge.
The Chair asked if a middle ground could be found.
The National Commissioner of Correctional Services, Mr Petersen said that the principle was for the Judicial Inspectorate to have unfettered independence. He felt that the Offices of the Inspecting Judge should ideally have its own Act. The Act would ensure that there was direct accountability. He stated that whoever appointed should also be allowed to discipline. Mr Petersen said that the use of “must” placed an obligation and did not give a compromise. He noted that a possible step forward would be to insert in Clause 70(4) the formulation that the appointment would also be regulated by the Public Service Act.
Mr Vanara supported the suggestion made by the National Commissioner to insert in subsection 4 that the appointment also be regulated by the Public Service Act.
The Committee agreed.
Mr Shiceka stated that all the requirements that the candidate needed to fulfill were covered in subsection 1 of the Clause 70 formulation. He supported the draft but nevertheless felt that subsection 3 dealing with the level of appointment of the CEO was not needed.
The Committee agreed to delete subsection 3 of the Clause 70 formulation.
The National Commissioner felt that subsection 5 of the Clause 70 formulation undermined the Inspecting Judge. The subsection made it a requirement that the Inspecting Judge must refer CEO work performance matters to the National Commissioner.
Mr Shiceka said that subsection 5 was fine as it was.
The National Commissioner also preferred the use of, “misconduct and incapacity” over the use of “work performance” in subsection 5.
The Committee agreed to the suggestion.
Ms Lufundo suggested a reshuffling of words in subsection 2 of the Clause 70 formulation.
It now read as follows: “ The person contemplated in subsection 1 must be appointed by the National Commissioner.”
Mr Le Roux asked for the reason for the change.
The Chair said that it was not a big issue and that the new wording was better.
Adoption of the Correctional Services Amendment Bill
The Bill was placed before the Committee and was adopted as amended.
Prohibition or Restriction of Certain Conventional Weapons Bill briefing
Mr S Dladla, Director: Defence Policy, gave the briefing. He was accompanied by Major General S Mmono, Chief Military Legal Services, Mr S Dladla, Director: Defence Policy, Colonel N Apsey, Deputy Director: Arms Control Policy and Mr S Njikela, Director: Legal Section.
The Committee was given a brief background about SA becoming a state party in 1995 to the Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to have Indiscriminate Effects. The Bill was the result of the Convention requiring party states to enact enabling legislation to give full effect to the Convention. The key policy tenets of the Convention had been captured in the Bill. There were prohibitions on the use of non-detectable fragments, restrictions on the use of mines, booby-traps and other devices, the use of incendiary weapons was also restricted and lastly there was a prohibition on the use of blinding laser weapons. The Bill also contained provisions on its extraterritorial application and jurisdiction, identified penal sanctions for both natural and juristic transgressors and contained provisions on the surrender of prohibited weapons and forfeiture to the state. The Bill additionally made provision for reporting on compliance with the Convention. The Bill provided for exemptions from the prohibitions and restrictions, guidelines for training issued by the Minister. The Minister may make regulations pertaining to the implementation of the Bill and he may delegate any powers or duties imposed on him by the legislation.
Discussion
Mr M Mzizi (IFP, Gauteng) said that it would have assisted the Committee had there been a slide show of the actual weapons that were being referred to in the briefing. He asked what were non-detectable fragments. Were they possibly chemical gases that were inhaled? He also asked about the prosecution of persons outside SA borders and who they were.
Mr Apsey explained that doctors using an x-ray machine could not find a non-detectable fragment. Bombs filled with fragments such as glass or plastic would fall within this category. A bomb designed to cause unnecessary suffering would not be allowed.
Mr Njikela said that extraterritorial application applied to two categories of persons. The first could for example be a SA using these weapons in Zimbabawe. He could be found guilty of an offence. The second category of persons would be those persons who were not South African but who committed crimes against SA.
Mr Le Roux asked whether countries were ratifying the Convention. He additionally asked why there was a ban on blinding weapons and not on weapons that kill.
Mr Dladla replied that more or less 50 countries had ratified the Convention.
Mr Apsey explained that lasers could be powerful and could cause great suffering. It had the potential to burn out eyes or to blind people for life. Lasers built with the intention of harming persons would be banned. A laser rangefinder on the other hand would be legal, as there was no intention to cause blinding. He added that incendiary weapons were essentially fire bombs and that they had been extensively used in World War Two to burn down cities. Firebombs were magnesium based and could even burn in water. The military use of incendiary weapons was restricted but use against civilians was banned.
Mr Dladla said that in terms of rules of engagement, killing was only done where it was absolutely necessary.
Mr D Worth (DA, Free State) felt that there was a problem over the enforcement of the Bill on extraterritorial persons. He specifically referred to South Africans serving in foreign armies. Mr Worth nevertheless felt that the Bill was a good piece of legislation.
Mr Njikela stated that the Bill did not deal with enlistment of South Africans in foreign armies. If a South Africans individual had obtained permission to serve in a foreign army, it would be difficult for SA to interfere with how that country ran its army.
Mr A Moseki (ANC, NW) asked why it had taken so long for SA to draft the Bill.
Mr Mmono apologised that the Bill had taken so long to come to fruition but that future efforts by the department would be stepped up.
Mr Shiceka asked for clarity on the provision in the Bill that provided that the Minister may make regulations pertaining to the implementation of the Bill. He asked how the charging of persons outside SA’s borders was to take place in the event that no extradition treaty or agreement existed. What were the criteria that the Minister used in granting exemptions? Lastly he asked about the reporting on Convention compliance to the UN and to Parliament and whether the report to Parliament was meant for engagement or merely for noting.
Mr Njikela replied that it was Parliament that ratified regulations. Regulations were delegated pieces of legislation. Once Parliament had delegated the Minister to make regulations, the Minister would thereafter table the regulations in Parliament for consideration. He said that it was a policy issue.
Mr Njikela explained that where no extradition treaties exist, the assistance of the country in which the South African was to be found was needed to get the individual back to SA to stand trial. International co-operation was what would be required.
Mr Mack was concerned that that the Bill might be lessening SA’s military capabilities. He asked what happened in the event that another country used these types of weapons against SA. How would SA retaliate? Mr Mack referred to the prohibition of use of certain weapons in civilian areas and asked how would such areas be identified. Why was the surrender of prohibited weapons left in the hands of the police? Were the police equipped to identify and store such weapons?
Mr Mmono said that the well being of SA’s soldiers was a priority. SA was however governed by conventions and humanitarian law. The hope was that if SA respected enemy combatants they would show South Africans soldiers the same courtesy. He said that the Bill by no means lessened SA’s military capability. SA was still effective without these weapons.
Mr Apsey shared the same sentiments.
Mr Dladla said that when war was waged, the choice of weapons was limited. The kind of force used must be relevant to the threat. The idea behind combat was to render the enemy ineffective and not to cause unnecessary injury. He noted that percentage wise the weapons mentioned in the Bill only formed a minor part of SA’s arsenal. SA’s capability was hardly affected. Mr Dladla said that the military had developed counter measures against the use of these types of weapons. Military Intelligence would be used to distinguish between military targets and civilian areas. Precision was crucial where civilian areas surrounded military targets. He pointed out that the police had bomb squads and other capabilities to deal with these types of weapons.
Ms F Nyanda (ANC, Mpumalanga) asked how did the department decide on the period of six months within which to surrender weapons.
Mr Mmono replied that there was no specific reason. It was felt that six months was a reasonable period of time.
The Chair referred to the requirement that the Minister had to report to the United Nations on compliance with the Convention and asked whether the UN had teeth to force compliance. He asked if it was worth the effort for SA to complain about non-compliance by other states.
Mr Mokoena asked if the exemptions given by the Minister applied to individuals as well and whether applications by individuals would be entertained. The Bill stated that the Minister “may” make regulations. He asked why not the use of “must”. Referring to the Bill’s provision for the Minister to delegate powers, he asked if the individuals to whom the Minister had delegated powers, could further delegate the powers.
In response, Mr Mmono said that it was difficult to say whether the UN had teeth. He noted that there was a debate on whether the UN needed to be reformed. He referred to the USA invading Iraq without cause and nothing being done about it. He did say that the UN had nevertheless achieved quite a lot. There was a need for the UN to be given more teeth in order for it to be a force to be reckoned with.
Mr Dladla added that SA subscribed to multilateralism as opposed to unilateralism. Hence SA’s position on the Bill. He responded that there was no further delegation of the Minister’s powers. The military had a chain of command and so the person to whom the Minister had delegated powers to could give orders based on the line of command but could not further delegate the Minister’s powers. Mr Njikela agreed that there could be no further delegation of a delegated power. Giving commands on the assignment of functions and duties were different. Mr Vanara agreed with Mr Njikela.
Mr Njikela said that the Minister “may” make regulations and the use of “must” was avoided. The reason was that regulations were rules used to implement legislation. In some instances legislation did not require regulations for its implementation. He felt it dangerous to make it obligatory to have regulations. If the legislation was sufficient, the need for regulations might not exist.
Mr Njikela said that exemptions did not apply to individuals, except where the state required you to act as its agent.
After deciding to continue the following day with this Bill, the meeting was adjourned.
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