Spies’s Legislative Proposal to amend Employment Equity Act, Lowe’s Legislative Proposal to Amend Labour Relations Act, Selfe’s Legislative Proposal to expunge criminal records related to Apartheid Laws, Bekker’s Legislative Proposal to amend Protection o

Meeting report

Chairperson’s opening comments
The Chairperson thanked Members of the Committee for their work during her lengthy study leave.

Due to the consistent lack of quorum, Members agreed that the Committee would not meet unless the House was sitting.

The Chairperson noted that she had received a signed petition and correspondence from people in Acornhoek, Mpumalanga, alleging corruption in the awarding of houses in Ward 20 of Acornhoek. She thought the petition was meant for the Speaker, and had advised the writer to redirect the matter to the Speaker, as it was not in the nature of the petitions that this Committee could address.

Spies’s Legislative Proposal to amend the Employment Equity Act No. 55 of 1998
The Chairperson recalled that the Department of Labour did not support Mr Spies’s proposal. She asked the Committee Secretary, Mr Disang Mocumi, to recap.

Mr Mocumi said the views of the Department had been that the shortcomings of affirmative action were not yet adequately addressed and the equity targets set by the Department of Labour were still far from being achieved. The Department of Labour accordingly did not see any reason to support the proposal.

The Chairperson said that, notwithstanding the previous discussions, she would like Members to express their views.

Mr A Ainslie (ANC) supported the position of the Department. Affirmative action was not a permanent arrangement, had been founded on sound purposes, and it was clear that the targets of employment equity had not been met. He believed until that happened the legislation was still needed. It was still most easy for white people to be employed, and the least number of unemployed people were white. The majority of those unemployed were black people and this situation was untenable. The legislation that Mr Spies sought to amend was designed to meet those challenges and they remained largely unaddressed. 

Mr Ainslie disputed the point that was repeatedly mentioned that white school leavers were leaving the country because they could not find employment. That was not the case, and it was not only whites that were leaving the country, and it must be recognised that those leaving did so for a variety of reasons.

Mr Ainslie thus said that, in the light of the very comprehensive input from the Department, he would not support the proposal. He considered it to be premature, and it was necessary for everyone from every party  to understand the purpose, and make affirmative action work.

Adv P Swart (DA) pointed out that the committee had already spent time deliberating the issue. He had understood that the purpose of this meeting was to take decisions. He suggested that the Committee would not move forward if it had to debate all four proposals. He conceded that the Chairperson had not attended all the meetings, but he was not prepared to repeat what he had already said so many times before. He had made his points and stated the position of the party.

The Chairperson said that she did not want to direct the decision of the Committee from the Chair. She asked if Members wanted to state anything further. She believed that the majority of the Committee did not accept the proposal, although she would not like to pre-empt the decision.

Adv Swart said he had made reference to the previous discussions, and pointed out that the final decision must still be made by the Committee.

The Chairperson noted that she had read the minutes and reiterated that her impression was that the Committee was opposed to the proposal.

Ms S Rajbally (MF) agreed.

The Chairperson asked for confirmation that the Committee was opposed to the proposal.

Adv Swart added that this was not a unanimous decision. He stated that although he did not feel that the proposal was necessarily undesirable in principle, he did not support it in its present format, and retained the views previously stated.

Lowe’s Legislative proposal to amend the Labour Relations Act No. 66 of 1995
The Chairperson recapped that the Department of Labour did not support this proposal because they felt the issues were covered under common law. Furthermore, in view of the prescripts of the International Labour Organisation (ILO) there was a danger that if the Committee agreed to the proposal, this could be interpreted that the Committee was interfering with the right to strike. It had been pointed out that anyone who suffered damage to property or other loss occasioned by strike action was entitled to seek compensation under common law from the organisers, provided that certain aspects could be proved. Members making proposals should ensure that their suggestions were not covered under any other law. She agreed with the Department of Labour’s points. 

Adv Swart explained that this was not in fact about impinging on the right to strike, although he understood that it could be interpreted this way. The issue was who had to prove what in order to succeed in a civil claim. He cited the example of the private security strike, when much damage was caused. The idea behind the proposal was to place responsibility and accountability on the organisers of legitimate strikes so that they would conduct the strike in a more careful manner that would safeguard business, the public and their property. He regarded the principle of the proposal as desirable. The problem was that under the common law, although compensation could be claimed, the burden of proof was on the claimant (plaintiff), and it was very difficult to deal with the issues.

Adv Swart then said that although this was not the job of this Committee, he really thought that the time was ripe for the Portfolio Committee on Labour or some other body to consider legislation that would impose a greater duty of care on the organisers of strike action, without in any way infringing on their right to strike. Perhaps the Committee could raise this with the Speaker, to be tabled to the relevant Committee, to ensure that the debate commenced. That was not likely to happen this term, and so even if the Committee deemed it was desirable that the proposal go forward it would lapse. He noted that probably none of these pieces of legislation could go through Parliament before it closed for elections.
 
Ms Rajbally noted that she was speaking from a background of forty years in trade unions. She did not believe the Committee could support the proposal. Most often, damages were caused by outside people as well as or instead of the strikers, and if this proposal was passed the unions would bear the brunt for all damages occurring during a strike.

Mr H Bekker (IFP) accepted the principle that common law covered this aspect. Whilst he was inclined to feel sympathy for the reasons behind the proposal, this Committee should be guided by the common law principle. He wondered if perhaps a message should not go out to bodies such as the South African Local Government Association (SALGA), not so that the marches would be affected, but to try to hold the organisers more responsible.

The Chairperson agreed with Adv Swart that there was a need to deal with how to increase the duty of care on the organisers, but pointed out that it was not only labour organisations who organised marches. This proposal was unduly punitive towards one sector. There was merit in wanting to make organisers more responsible. She asked what type of recommendations this Committee should make.

Ms I Mars (IFP) thought that if the organisers of a march were to be held responsible, they must ensure sufficient marchers and internal controls and marshals to ensure that any unauthorised people attaching themselves to the march and causing mayhem would be repelled. 

Adv Swart agreed with the Chairperson that this principle must apply to any public event organised by any body. There could be no change to the common law right to claim for compensation. He reiterated that currently the claimant would have to prove who caused the damage, and claim from that person as an individual, or prove that this was damage occurring in the scope or course of a march to claim from the organisers. The suggestion related to shifting that burden of proof to the organisers, on the basis that it was presumed that anything that took place within the auspices of a march or public event was the responsibility of the organisers. Instead of the claimant having to prove, and the organisers refuting, the position would be reversed. The organiser would instead have to prove, in order to refute the claim, that he took the necessary actions, deployed sufficient marshals and maintained full control of the strike.

The Chairperson interjected that that was not what the proposal was saying.

Adv Swart agreed that the current form of the proposal was limited. What he had explained was indeed the proposer’s intention. He did not know if this would be sufficient for the Committee to express its concern, or set in motion the procedures that might bring about the results proposed. 

Mr Ainslie supported Ms Rajbally’s suggestion that the proposal be rejected. He appealed to the Committee to deal only with the proposal before it, and not with other suggestions. There was not sufficient time to consider the effect of the extension of liability, therefore he would not like to see any reference to it in the Committee’s report. The common law and Criminal Procedure Act, as well as the ILO, covered the matter. The City of Cape Town had instituted some successful prosecutions after the security strike. He maintained that the proposal must be rejected. Perhaps the Committee might find time to have further discussions on the principle at another meeting.

Mr J Gogotya (ANC) asked the hypothetical question whether, if a woman was raped during a church gathering, could the priest be blamed.

The Chairperson said the Committee had previously rejected issues where the proposal was not clearly defined. She agreed with Mr Ainslie that members were now finding reasons outside the proposal and outside of the committee’s mandate to accommodate recommendations.

Adv Swart said he would go back to the proposer and suggest that, after elections, when the new Parliament was in place, he should perhaps consider bringing a broader based proposal before the Committee. 

The Chairperson reminded Adv Swart that the proposal must go to the Speaker.

Bekker’s Legislative Proposals for Protection of Constitutional Democracy Against Terrorist and Related Activities Act
The Chairperson recapped that the Committee had been broadly in support of the proposal and its objectives, but that South African Police Service (SAPS) had expressed reservations, as it did not see that copper theft fell squarely into the terrorist related activities as defined, and also argued that the matter was being dealt with under the Second Hand Goods Amendment Bill. Adv Swart had asked that this be checked against the other legislation that would deal with subversion and terrorism.

Adv Swart had also suggested that Mr Bekker inform the Committee if the Second Hand Goods Amendment Bill, which had been passed in the interim, had addressed his concerns. He himself was not sure that this Bill had taken care of the concerns. Although SAPS had not seen copper theft as necessarily falling under the definition of terrorist-related activity, he noted that theft of the cables in fact resulted in major businesses and parts of the country being without communication, which he thought could indeed in the broader sense be classified as terrorism.

Mr H Bekker responded that the Second Hand Goods Amendment Bill was a broad bill, taking into consideration all used items, rather than being specific, and it did not address isolated aspects. He had asked the officer from SAPS who had addressed the Committee about the success rate under that Bill, and what it had achieved in addressing copper theft. The response was that it had been introduced too recently for there to be any full records, but he also indicated that there were mixed feelings from SAPS side. What Mr Bekker’s proposal amounted to might be interpreted as attempting to bring in the old sabotage provisions, and in future that might not sit well with government.

Mr Bekker noted that perhaps there should not be restrictions. Perhaps his proposal could pave the way to something more. For instance, the blowing-up of ATMs also caused massive disruption for the public and this, in his view could also be regarded as an act of terrorism, as it was not specified in the law. It could open the position to examine such matters more closely.

The Chairperson said there was a clear distinction between terrorism and subversion, as terrorism was defined as intention to instil fear. She did not want the Committee to pass something that could be rejected on a technicality. She strongly agreed that copper theft was an act of subversion, and so would be the blowing up of ATMs.

Mr Bekker suggested the Committee could possibly express they found the legislation desirable and could then let the matter be referred to the relevant State department so that legislation could  be discussed by that particular Committee

The Chairperson said Mr Bekker was out of order, as he was the proposer.

Mr Ainslie reminded her that the Members who had been present had agreed in principle that they supported this, but there was no quorum at that time. There were indeed some questions whether the theft was terrorism or sabotage. He thought terrorism had a political goal. He suggested that the Committee should in principle support the proposal, but must still ensure that the definitions were correct and that it did not conflict with any other legislation.

The Chairperson said that the definition of terrorism lay in the intention. The Committee noted that the theft culminated in lack of communication for the country, which was tantamount to sabotage. She proposed that she and Mr Bekker discuss the matter further with SAPS, discuss possible changes but attempt to
The principle was agreed in committee. He suggested the committee say yes it considered the proposal and in principle support this kind of legislation, ensuring that definitions were correct and ensuring that it didn’t impinge on any other law; but the committee supported the principle.

The chairperson said definition of terrorism was in the intention. The committee was basing its argument on the effects, culminating in lack of communication, which was tantamount to sabotage.
She proposed that she and Mr Bekker and SAPS get together and ask how Mr Bekker could realise the intention to punish the people committing thefts severely, by locating this proposal properly. She suggested that the matter stand over until the November meeting.

Members agreed to the Chairperson’s suggestions.

Selfe’s Proposal for the Expunction (sic) of Criminal Records arising from Apartheid Laws The Chairperson noted that she was not happy with the proposal put forward by Mr J Selfe. In his briefing notes he specifically quoted the Mixed Marriages Act, the Immorality Act and the curfew laws. However, his proposal had referred to “any apartheid law, ordinance, regulations, decree or by-law enacted prior to 27 April 1994 by South Africa or the former Transkei, Bophuthatswana, Venda or Ciskei” that had created an offence. She was cautious about using the word ‘any’ because she did not think the records of people who, for instance, had killed and were found guilty under apartheid legislation should necessarily have their records expunged. The proposal was too broad.

Adv Swart noted that the portion that she had read out referred specifically to an offence “which would not have been an offence in an open and democratic society based on human dignity, equity and freedom” He noted that anything that would have been regarded as an offence in an open and democratic society, such as murder, rape, theft and so forth, would not form part of the proposal to expunge.

The Chairperson still felt that there was not sufficient clarity on what mechanism would be used to determine this, and she cautioned that it was still too broad.

Ms Rajbally felt the proposal should be re-examined. It was not as simple as it seemed. The rights and feelings of any victims of the crimes must also be considered.

Mr Gogotya suggested that the proposal be rejected.

Mr Ainslie supported this as he agreed that in its current formulation, the proposal was too broad. It contained good principles but needed to be reformulated.

The Chairperson agreed, and Members agreed to reject the proposal in its current form.

Mr Bekker suggested that the Report should perhaps refer this matter to either the Human Rights Commission or one of the other Parliamentary committees.

The Chairperson reminded Mr Bekker that there were time frames to be considered. At the beginning of the next term anyone had the full right to re-submit a proposal with further details to the next Parliament.

The meeting was adjourned.