Second Hand Goods Bill: Final mandates & Adoption of Bill & Recommendation to remove Magistrate S P Zwelibanzi from office

NCOP Security and Justice

07 October 2008
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
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Meeting Summary

The Committee deliberated on the Second-Hand Goods Bill, and received the final mandates from Provinces, who had previously been provided with a copy of the South African Police Service’s comments and a revised Bill. The Member representing Kwazulu-Natal stated that his province claimed not to have received the final amended Bill and therefore had agreed to defer its final voting mandate until the Bill was presented to the province. After further deliberation, the province noted that all their recommendations were taken into account, and that although they could not support the Bill without having a final mandate to this effect, it seemed that there would not be any objections to the content of the Bill. All other provinces indicated their support of the amended Bill, and Kwazulu Natal accordingly recorded that it did not have a final mandate. The majority of provinces being in favour, the Bill was therefore adopted. The Committee also adopted its Committee Report. 

The Committee then re-considered the request from the Minister and recommendations from the Magistrate’s Commission on the suspension of Magistrate SP Zwelibanzi. When the matter was previously discussed the Committee had requested some further information and had also asked Mr Zwelibanzi to comment as to why he should not be suspended. The Magistrates Commission informed the Committee that Mr Zwelibanzi had an alcohol dependency problem, and had been found guilty of misconduct on three occasions. Mr Zwelibanzi was aware of the recommendation to remove him from office, and had also received a further letter, via his estranged wife, informing him of Parliament’s further questions, and asking him to respond to the allegations. He had finally done so on 5 September. The Committee noted that Mr Zwelibanzi had been admitted to a rehabilitation centre, but he had failed to respond in detail to the allegations, and had stated that the suggestion that he be suspended had increased his tendency to alcohol abuse. Most Members did not believe that he had acted responsibly, nor was a fit and proper person to hold office. The Committee therefore supported the Minister’s recommendation to remove Mr Zwelibanzi from office.

 

Meeting report

Second-Hand Goods Bill [B 2B-2008] (the Bill): Presentation of Final mandates and adoption
The Chairperson stated that major changes had been made to the Bill, and he asked Members comment on their interactions with their respective provinces since they had received the comments of the South African Police Services (SAPS) on the Bill.

Mr Z Ntuli (ANC, Kwazulu Natal) informed the Committee that Kwazulu-Natal (KZN) had not received the newly amended version of the Bill, and therefore could not comment on it. 

The Chairperson stated that the Bill had been sent to all the provinces via e-mail.

Mr Ntuli asked if there was any way of checking how the confusion had occurred.

The Chairperson noted that KZN could not support the Bill until they received the final version. KZN could only reject the Bill because the province did not agree with the content, not because of procedural issues.

The Committee Secretary, Ms Grace Dinizulu, stated that she had sent all the provinces the final amended Bill.

Mr J Slabbert (ANC, KZN: Provincial Legislature) commented that he thought the Bill was a good piece of legislation. He would accept the Committee’s word that KZN’s suggestions were taken up in the Bill. Since books and clothing were now taken out as categories in the Bill, KZN should not have any problem in supporting the Bill.

Mr W Mcoyi (IFP, KZN Provincial Legislature) stated that it was very possible that the Bill could have been forwarded to officials in KZN, but that it had not been received by him.

The Chairperson wondered if the Committee would be able to accept a “yes” vote from KZN even if they did not have a final mandate that supported the Bill.

Ms Ntombi Mnyikiso, State Law Advisor, Office of the Chief State Law Adviser, noted that all KZN’s inputs were taken on board when drafting the final Bill. She asserted, from the discussion, that there was no serious objection to the Bill from KZN, and this province had put forward no objection to adopting the Bill. Therefore, the Committee would be able to adopt the Bill.

Mr Ntuli did not think that it would be the correct procedure for KZN to support the Bill if they did not have the final mandate to do so. Currently, the mandate said that KZN could not support the Bill, until they saw the final amended version. He wanted to consult with officials in the province so that they could send the Committee another mandate supporting the Bill.

Mr J Le Roux (DA, Eastern Cape) added that the Committee would set the wrong precedent if they followed the wrong procedure. He confirmed that he agreed with Mr Ntuli that the provinces had to give the final mandate.

Dr F van Heerden (FF+, Free State) stated that the Committee had deliberated on the Bill for quite some time, and he thought it was now time that the Committee must come to a decision about the Bill.

Mr A Manyosi (ANC, Eastern Cape) stated that this was not a question of life and death. He warned that the Committee should not change parliamentary procedure at the “drop of a hat”. He suggested that the Committee grant KZN an extension so that they could get a final mandate supporting the Bill.

The Chairperson stated that the Committee could finalise the Bill and vote on it or they could give KZN an extension so that they could look at the Bill and draw up a final mandate.

Mr Ntuli stated that he was not saying that the Committee could not move forward with finalising the Bill. He said that he would consult with his province, KZN, to draw up a final mandate. He did not wish to suggest that the decision be deferred until KZN could draw up a mandate.

Mr M Mzizi (IFP, Gauteng) stated that the Committee should finalise the Bill in this meeting.

Mr Mcoyi stated that the system did not allow special delegates to give a final mandate, and he agreed that the usual procedure should be followed.

Mr Le Roux proposed that the Committee finalise the matter immediately.

The Chairperson stated that the Committee did not have any other choice but to vote on the Bill without a mandate from KZN. KZN would use their original mandate in the vote. He asked the provinces to address the Committee as to whether their provincial legislatures supported the Bill or not.

Mr M Nyusile (ANC, Eastern Cape: Provincial Legislature) stated that Eastern Cape supported the Bill.

Dr van Heerden stated that the Free State approved of the Bill.

Mr Mzizi added that Gauteng was in favour of the Bill.

Mr Ntuli stated that the officials in KZN had agreed not to confer their final mandate until they received the final amended Bill.

The Chairperson stated that the Limpopo Province supported the Bill

Ms F Nyanda (ANC, Mpumulanga) stated that Mpumalanga voted in favour of the Bill.

Mr A Moseki (ANC, North West) spoke on behalf of the North West who voted in favour of the Bill.

The Chairperson noted that the Western Cape’s final mandate showed that the province supported the Bill.

The Chairperson also noted that eight out of the nine provinces had voted in favour of the Bill. The Committee had enough consensus to vote on the Bill.

Members having duly proposed and seconded the motion, the Bill was adopted, with amendments

The Chairperson tabled the Committee’s Report on the Bill.

Members resolved also to adopt the Report.

The Chairperson informed the Committee that the Bill would be debated the following week. He thanked the special delegates from KZN and Eastern Cape for attending the meeting. He also thanked Mr Bertus van der Walt, Director of Legal Services, SAPS for his assistance.

Report on the Suspension of Magistrate SP Zwelibanzi
The Chairperson informed Members that the Committee had discussed this issue previously, to consider the Minister’s recommendation that Mr S Zwelibanzi be removed from office. However, the Committee felt that it did not have sufficient information to reach a conclusion and had thus asked that the Department of Justice (DoJ) investigate the matter further.

Mr J Meijer, Member of Magistrate’s Commission, reminded the Committee that they had previously discussed Mr Zwelibanzi’s removal from office on the 17th June 2007. It was reported on that day that Mr Zwelibanzi had an alcohol dependency problem. The Magistrate’s Commission (the Commission) was of the view that he had to be removed from office. He had pleaded guilty to the charges and was subsequently found guilty of misconduct on four counts in 2007. Taking into account his previous misconduct convictions, the Commission had recommended to Committee and Parliament that he be removed from office. At the request of the Committee, the Commission wrote a letter to Mr Zwelibanzi saying that a report was tabled in Parliament, which recommended that he be removed from office on the basis of misconduct in terms of the Magistrate Act of 1993. The letter also stated that Mr Zwelibanzi was suspended from office with effect from 19 December 2007, pending consideration from Parliament of his removal from office. Mr Zwelibanzi had been admitted to a rehabilitation centre for alcohol dependency. This was taken into account when considering his removal from office. Subsequently, at the request of the Committee, Mr Zwelibanzi was invited to provide Parliament with further representation on whether he was admitted to a rehabilitation centre, whether he was still receiving treatment for alcohol dependency and the current status regarding his alcohol dependency. The deadline for the response was 4 July 2008.

Mr Meijer informed the Committee that the Commission had trouble locating Mr Zwelibanzi, and therefore made arrangements with Mr Zwelibanzi’s estranged wife that she would forward the letter to him. She had given him the letter on 7July 2008. It was only recently that the Commission received a response from him, dated 5 September 2008.

Mr Mzizi noted that Mr Zwelibanzi had been given the opportunity to respond to the allegations levelled against him, but the Commission was not able to contact him directly. Mr Zwelibanzi did not take the opportunity to defend himself. He saw no reason why he should not be removed.

Ms Nyanda added that the Mr Zwelibanzi decided to absent himself even when the DoJ and the Committee told him to defend himself against allegations. This was irresponsible, and she did not think this was conduct befitting of a magistrate.

Mr Le Roux stated that he believed Mr Zwelibanzi was not fit and proper to hold such an important position. He agreed that Mr Zwelibanzi had to be removed as soon as possible.

Dr Van Heerden seconded what Mr Le Roux said and added that he was surprised that Mr Zwelibanzi had held his position for as long as he did.

Mr Ntuli asked if Mr Zwelibanzi’s salary had been discontinued since he was suspended.

Mr Meijer answered that the Commission had decided not to withhold Mr Zwelibanzi’s remuneration pending Parliament’s resolution of the matter. He was therefore, still receiving his salary.

Mr Mcoyi stated that Mr Zwelibanzi was probably initially a person of good character but should be seen as a victim because he was now being destroyed by alcohol. There was still a chance that he could be rehabilitated. It was the government’s responsibility to monitor what would happen to Mr Zwelibanzi, particularly since it received taxes from wineries and alcohol distributors. However, government should not protect him. He did not believe that Mr Zwelibanzi should be removed from his post altogether, but that government should seek to assist him.

Mr Moseki stated that keeping Mr Zwelibanzi in the system would cause more problems. The best thing to do was to remove him so he could not cause any problems.

Dr Van Heerden stated that Mr Zwelibanzi was not deserving of the respect that there should be for the legal profession and presiding officers.

The Chairperson stated that Mr Zwelibanzi’s response had stated that his suspension by the Commission contributed to his temptation to consume alcohol. He could not believe a magistrate would say this to justify his addiction.

Mr Meijer added that this was the third time that Mr Zwelibanzi had been convicted of misconduct.

The Chairperson stated that the Committee would base its decision on the Commission’s recommendations and findings, and the Minister’s recommendations. The majority of Members supported the recommendation that Mr Zwelibanzi should be removed from office, and this would be conveyed to the Minister.

The meeting was adjourned.

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