Judicial Services Commission Amendment Bill: Legal Opinion & Voting; Second-Hands Goods Amendment Bill: briefing

NCOP Security and Justice

06 May 2008
Chairperson: Kgoshi L M Mokoena (ANC, Limpopo)
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Meeting Summary

The Office of the State Law Advisor of the Department of Justice and Constitutional Development briefed the Committee on its legal opinion on the constitutionality of Clauses 11, 29 and 38 of the Judicial Services Amendment Bill. This was in response to a submission made by retired judges at a previous meeting. The conclusion of the legal opinion was that the Bill was constitutional. The Committee then went through some proposed amendments that had been drafted by the Department. A substantive amendment that the Select Committee had requested was that clauses that referred only to the “National Assembly” be replaced by “Parliament” to encompass both Houses of Parliament. Further, that the tribunal, in consultation with the Chief Justice, may determine that the hearing be held in public.
The Judicial Services Amendment Bill was approved with these amendments.

The South African Police Service (SAPS) provided a briefing on the Second Hand Goods Bill which replaces the 1955 Act. Highlighted were the key industries within the second hand goods market that would be targeted. There had been two extensive consultative processes on the Bill in 2003 and 2005. The theft of copper was given particular emphasis.

The Committee was unanimous in their support of this Bill, but raised concerns about the effective implementation of the Bill, especially with the stock register that each second-hand goods owner was required to have. Members were also interested in the motor industry’s comments on the Bill as well as the rise in theft of municipal property such as water taps from houses. The need for Identity Documents to be shown when selling goods to shops and scrap yards was emphasised to stem the tide of second-hand shops buying stolen goods.

Meeting report

Judicial Services Commission Amendment Bill
The Chair person explained that serious concerns had been raised by stakeholders at a previous meeting about clauses 11, 29 and 38 of the Bill. These clauses dealt with retired judges having to ask permission from the Justice Minister to do private consultation work as well as public and media access to disciplinary hearings of judges. The retired judges who had appeared before the Committee presented a very strong case on why they should not be required to seek permission from the Justice Minister if they wished to do private work. Mr Herman Smuts from the Office of the Chief State Law Advisor would brief the Committee on these clauses.

The Chairperson also emphasised that Parliament comprised both the National Assembly as well as the National Council of Provinces, not only the National Assembly as the Bill indicated and asked that clauses dealing with this terminology be amended.

Constitutionality of Clauses 11, 29 and 38: State Law Advisor's opinion
Mr Herman Smuts (Office of the State Law Advisor) replied that that the two concerns raised by members of the Committee pertained to key rights enshrined in the South African Constitution, namely, Freedom of Trade, Openness, Transparency, Freedom of Expression and Access to Information. An important issue had been raised as to whether Parliament had the right to enact this law. He proceeded in delivering the opinion that he had prepared (see document). He concluded that the DOJ was not convinced that changes were needed to make the Bill constitutional, contrary to the valued input by Judge Friedman.

Mr Johan De Lange, Principal State Law Advisor: DOJ, noted that the DOJ found itself in a difficult position as its views on the Bill's constitutionality were clear and that the Committee should consider the policies.

Kgosi Mokoena asked whether the same disciplinary procedures applied to magistrates.

Mr De Lange explained that disciplinary procedures differed as the public had access to these hearings and that the Committee should be reminded that disciplinary hearings for judges should be in private.

Mr D Worth (DA, Free State) commented that if it was such a non-contentious issue, why had it been allowed to become contentious. The Committee needed to decide whether the public and the media would be allowed to attend disciplinary hearings of judges.

Mr J Le Roux (DA, Eastern Cape) disagreed with the Department of Justice (DOJ) on clause 11 and said that the judiciary did not want nor did they need ministerial involvement in their actions.

In support of Mr Le Roux, Mr Worth noted that the separation of powers did not allow for the Executive to interfere with the work of the Judiciary and therefore the most suitable person for this function of granting permission to perform duties outside of the DOJ, would be the Chief Justice, to counter "political interference".

Mr De Lange replied that it was a matter of convenience for the Justice Ministry and that the practicalities of having a Chief Justice grant permission was too much of a risk. These risks emanated from the possibility that the Chief Justice might be taken to review of administrative action. He added that the existing provisions were actually there to empower the clause, not to weaken it.

Mr Z Ntuli (ANC, Kwazulu-Natal) stressed that Clause 11 was justifiable as Judges' salaries were paid by the state.

Mr M Nyusile (ANC, Eastern Cape) commented that the Judiciary interacted with the Executive (Minister of Justice) every day and asked whether the Democratic Alliance would be comfortable if permission were to be sought from the President.

Mr A Moseki (ANC, North West) said that it seemed as if the Democratic Alliance wanted to create institutional constraints and that the Minister must continue to play an oversight role.

Kgosi Mokoena, as well as Mr N Mack (ANC, Western Cape ), requested that the Democratic Alliance clarify their core objections to Clause11 as well as what they meant by "political interference".

Mr Worth emphasised a previous point by stating that the Judiciary did not want to be seen to be asking permission from the Executive. Mr Le Roux added that this was not in essence a Democratic Alliance issue, but a principle issue and that if the Judiciary was kept independent then South Africa would have a bright future.

Mr Moseki noted that South Africa's future not only depended on the Judiciary, but on several other encompassing attributes, as well. Furthermore, no one was above the lines of accountability and that Mr De Lange had proved that there was and there would not be any political interference. He called on the Democratic Alliance to forget about their political motives and to see the bigger picture.

Kgoshi Mokoena asked Mr De Lange how many requests the Minister had granted so far.

Mr De Lange replied that all requests had been granted where discharged Judges were concerned and that three had been turned down as they were from sitting Judges.

Proposed Amendments to Judicial Services Commission Amendment Bill: discussion
The Committee was taken through the proposed amendments to Clauses 12, 13, 19, 20 and 35.

The Chairperson asked why "JCC "was not defined and how lesser complaints against judges were going to be dealt with.

Mr De Lange responded that the JCC was defined as the "Committee" in the Bill and that a complaint that did not fall within the parameters as provided by the Bill would not be investigated in terms of the laws governing the Act.

Judicial Services Commission Amendment Bill: voting
The Committee voted on each of the clauses and approved the Bill with amendments.
In conclusion the Chair asked why the National Prosecuting Authority (NPA) was involved with the work of the Judiciary.

Mr De Lange replied that the NPA needed to take control of investigations where there were serious allegations or proof of criminality from the side of Judges. He added that he was happy with the provisions made and that it did not regulate access to information and would ensure that confidential information stayed confidential.

Second Hand Goods Bill B2-2008: briefing
Director J van der Walt (SAPS) went through the presentation and explained the reasons for the review of the 1955 Act. He explained each of the clauses, noting that a certificate of registration would be issued by the National Commissioner and would be valid for five years. This Bill made provision for a variation of conditions. Disqualifications included previous convictions, being under eighteen years or not being permanently resident in South Africa.
The Bill made provision for a degree of self-regulation. The functions of dealers' associations included establishing categories of dealers according to goods and inspecting business premises of members. The records of dealers needed to include the identity and particulars about all acquisitions and disposal of goods. False information and suspicious transactions had to be reported to the police. It was a criminal offence if not reported. Conditions were stipulated on the type of records kept for motor vehicles and communication equipment. There was an obligation to register as a recycler. Provision was made for routine inspections during working hours for enforcement purposes. The Minister decided on appeals against decisions taken by the National Commissioner.

The Bill provided for a strong regulatory environment that impacted on all second-hand goods and dealers. It would address each market segment uniquely through regulations. Legitimate dealers would benefit from the Bill. Recylers of metal must be registered as such. No recycling equipment could be kept at premises that were not registered recyclers. He referred to the two news articles that highlighted the problem of copper cable theft. Eskom had indicated that the bill covered their concerns adequately.

The Chairperson asked Ms M Sotyu (Chairperson of Portfolio Committee on Safety and Security) to provide insight into Second-Hand Goods Bill as her Committee had already accepted the Bill.

Ms Sotyu explained that the Committee tried its best to convince stakeholders to accept the provisions of the Bill, especially the seven-day waiting period applicable to the automotive industry before they could sell the cars they bought. This provision was included due to the high level of hi-jacking incidences in South Africa.

She noted that the police could now enter premises to search for stolen goods, without a search warrant, if the situation warranted such action. Furthermore, Telkom was allowed to submit their views on the Bill, after initially not turning up, as this piece of legislation was deemed high priority.

Director van der Walt added that the Portfolio Committee on Safety and Security had made their decisions based on the level of regulation that the intended Act covered. He said that the cut-off amount of R100 was accepted by the Portfolio Committee.

Mr D Worth (DA, Free State) commended SAPS on the good work done on the Bill, but asked that the Bill be made stronger in terms of copper cable theft. He was also concerned with the effectiveness of policing this scourge.

Director van der Walt replied that whereas the 1955 Act had a R1000 fine, the new Act would ensure that perpetrators felt the pinch in their pockets and that a new specialised unit would be created within SAPS to deal with the policing in terms of the regulations set out by the Act.

Mr Ntuli asked to what extent car dealers were benefiting from organised hi-jacking syndicates and if they made any submissions on "chop shops".

Ms Sotyu relayed that the Motor Industry was not in favour of the Second-Hand Goods Bill and that may be because there were some elements within the industry that seemed to be benefiting from the spate of car hi-jacking in South Africa

Director van der Walt added that the Motor Industry had to comply, even though they had problems with the Bill as consultations between the Department and the industry dates back as far as 2003. He mentioned that legitimate dealers would start pointing out illegitimate ones as soon as they feel the pinch of the new legislation.

Mr N Mack (ANC, Western Cape) noted that there were three scrap yards operating in Beaufort West and that the local youth go there to sell copper and other household appliances, without having to show identification. This had led to a scenario where the scrap yard dealer who required identification was being ignored, whilst those not asking for identification seemed to be busy. He added that the theft of municipal property such as drain lids and water taps should also be addressed as this had major financial consequences.

Ms Sotyu emphasised that certain municipalities did make written submissions to the Portfolio Committee and that there need to be a drive to eliminate this market for municipal assets by stopping businesses from buying these lids and taps.

In his reply, Director Van der Walt noted that scrap yards went about their business without much interference from the state, but that the new Act would ensure that tighter controls were put in place to regulate scrap yards.

Mr D van der Merwe (DA : Northern Cape) asked to what extent the Registers were waterproofed to combat corruption and how many times would they be checked for accuracy.

Director van der Walt replied that annual inspections would be done at least once a year and that all measures would be used to ensure that there was no corruption and that the various governing bodies or associations would have to assist the Department as there were certain benefits attached to this. In addition SAPS would also report to Parliament on an annual basis to give an update on progress made.

Ms F Nyanda (ANC, Mpumalanga) informed the Committee of a recent house breaking involving the house of a Member of Parliament. Upon inspection the police recovered some of the stolen goods at a Cash Crusaders. The owners of the shop could not provide detailed information (ID copies of the people who sold the goods to them), because they were not required by law to do so. She asked whether the new Act would attempt to address this problem.

The Director replied that shops like Cash Crusaders would be required by law to ask for identification when goods were sold to them, to curb stolen goods ending up on their shelves.

Gauteng legislature special delegate, Ms J Mofokeng (ANC) noted that State-Owned Enterprises, such as Telkom, Eskom and Spoornet were suffering serious losses due to cable theft.

Ms Sotyu replied that SAPS did engage these three entities and that their investigators had been assigned some police powers to help them with their investigations.

It was also stressed by a member that the previous Act clearly showed that self-regulation had failed and that the clause on some form of self-regulation still being in place, was regrettable.

In a final question posed by Mr Ntuli, he asked what this Act aimed to do about members of the public buying stolen goods.

Ms Sotyu replied that stolen goods were stolen goods and that those members of the public who engage in this activity would face the full arm of the law.

The Chairperson adjourned the meeting.

NCOP proposed amendments: Judicial Service Commission Amendment Bill

1. On page 7, to omit ''the National Assembly'' wherever it occurs in lines 43 and 44, 48, 49, 50, 53 and 56 and to substitute ''Parliament''.

1. On page 8, to omit ''the National Assembly'' wherever it occurs in lines 42 and 43, 45, 46 and 47 and 50 and to substitute ''Parliament''.

1. On page 13, in line 6, to omit ''16(4)(c)'' and to substitute ''16(4)(b)''.

1. On page 16, after line 32, to add the following subsection:

(3)(a) Notwithstanding subsection (1), the (b) A determination contemplated in paragraph (a) must be made in consultation with the Chief Justice.
(c) Subsection (2) does not apply if a determination is made under paragraph (a), but the Tribunal President may prohibit the publication of any information or document placed before the Tribunal if that publication is not in the public interest.

1. On page 18, in line 1, to omit ''the National Assembly of'' and to substitute ''Parliament''.


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