Public Funding of Represented Political Parties Act: Approval of Amended Regulations; Child Justice Bill: Deliberations on NCOP proposed amendments; Rejection of Clause 80(2) proposed amendments, adoption of remainder.

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Justice and Correctional Services

12 November 2008
Chairperson: for First session: Kgosi L Mokoena (ANC, Limpopo) & Adv C Johnson (ANC); Chairperson for Second session: Mr J Jeffery (ANC)
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Meeting Summary

During the first session, a joint sitting of the Ad Hoc Committee (consisting of the Portfolio Committee on Justice and Constitutional Development, and the Select Committee on Security and Constitutional Affairs) to consider the Amendment of the Regulations, the Department of Justice explained that now that the floor crossing legislation was effectively being abolished, it was also necessary to amend the regulations relating to funding. These initial regulations had been made in 1998, but were amended in 2005 when floor crossing was first introduced, as the time periods no longer were appropriate. It was now effectively necessary to revert to the position prior to introduction of the floor crossing proposals. A draft set of regulations and a draft proclamation were tabled. It was noted that the Proclamation must be signed by the President and a Cabinet Minister. Members approved the draft Regulations.

In the second session, the Portfolio Committee on Justice and Constitutional Development sat to deliberate upon the amendments proposed by the National Council of Provinces to the Child Justice Bill. These had been considered before, but there were two issues outstanding. The first related to the proposal to alter the definition of “appropriate adult”, where the NCOP had specifically requested the inclusion of this phrase, or “guardian”. The second related to Clause 80 of the Bill. The version adopted by the National Assembly had specified, in Clause 80(1) five duties incumbent upon a legal representative representing a child. Clause 80(2) then provided that if a presiding officer was of the opinion that the legal representative did not comply with the requirements of Clause 80(1), then he or she must record displeasure by way of an order that included an appropriate remedial order or sanction. The NCOP had considered the first requirement of Clause 80(1)(a), that a child give independent legal instructions,  not to be an essential requirement. It had therefore put this as a single requirement under a new Clause 80(1). The four remaining duties were listed under a new Clause 80(2) and the NCOP proposed that the sanctions by the presiding officer apply only in respect of breaches of the proposed new Clause 80(2). It was noted that a submission had been received from the Centre for Child Law, objecting to this on the grounds that it could give rise to abuse. Members agreed that this was a valid view. Therefore Members decided to reject the proposed amendments to Clause 80.  However, all other amendments proposed by the NCOP, in respect of the Table of Contents, and Clauses 1, 3, 9, 13, 18, 19, 20, 21, 22, 23, 24, 25, 28, 38, 40, 42 to 44, 46 to 49, 52, 53, 55, 61, 65, 73, 74, 87, 90, 94, 97, Schedule 4 and Schedule 5 were accepted.

Meeting report

Public Funding of represented Political Parties Act: Amendment of Regulations: Briefing by Department of Justice (DOJ)
Co-Chairperson Adv Carol Johnson noted that the first session would be a joint sitting of the Portfolio Committee on Justice and Constitutional Development and the Select Committee on Security and Constitutional Affairs, who together comprised the Ad Hoc Committee to consider the Regulations under the Public Funding of Represented Political Parties Act. Although this Ad Hoc Committee was established by the National Assembly, the Report would nonetheless need to be approved and signed by both the Select and Portfolio Committees.

Mr Johan Labuschagne, Director, Department of Justice and Constitutional Development (DOJ) noted that the Public Funding of Represented Political Parties Act (the Act) provided, in Section 10, that the President, on the recommendation of a Joint Committee of the National Assembly (NA) and National Council of Provinces (NCOP) may make regulations on the funding of political parties. The first set of regulations under this Act was issued on 20 November 1998. In 2005 the Act was amended to deal with the funding of political parties in the period of floor crossing, and that also necessitated amendment of the Regulations, because the political parties had been entitled to receive payments every three months, but this did not tie in with the floor crossing period in September.

Now that the floor crossing was about to be abolished, it was necessary once again to amend the Regulations. Essentially the latest amendment, which was tabled in the form of a draft Proclamation and draft Regulation, would revert to the position as it had been prior to 2005. 

Mr Labuschagne ran briefly through the draft Regulations. Regulation 5 of the 2005 regulations would be amended by the substitution of Subregulation (1) and the deletion of subregulation (3). Regulation 8 was to be substituted, in subregulation (2) with a new paragraph (see attached document).

Co Chairperson Adv Johnson reiterated that the changes would result in turning the clock back to the 1998 position.

Members raised no questions or objections.

Adv Johnson noted that the wording of the motion was exactly the same as it appeared in the Order paper.

Co-Chairperson Kgosi Mokoena noted that his title, appearing on page 2 of the Joint Committee Report, must be reflected a “Kgosi” and not “Mr”. 

Mr Labuschagne addressed the Committee on procedure. The Joint Committee must report back to the National Assembly. The Report would be published in the ATC, and the NA and NCOP would approve it. The proclamation would need to be signed by the President and a Member of the Cabinet. He therefore suggested that as soon as the regulations had been passed by both houses, he would liaise with the Parliamentary officials to check how best to take the matter forward for signature by the Cabinet Member. 

The Select Committee Members of the Ad Hoc Committee, having established a quorum, voted unanimously to adopt the Motion and the Report.

The National Assembly Members of the Ad Hoc Committee, having established a quorum, then voted unanimously to adopt the Motion and the Report.

The Select Committee members were excused from the meeting.

Portfolio Committee on Justice and Constitutional Development: Consideration of amendments proposed by the NCOP to the Child Justice Bill
Mr J Jeffery (ANC) took the Chair.

The Chairperson noted that there were two particular amendments proposed by the NCOP that the Committee had wished to debate further. He noted that the first related to the wording around “appropriate adult” where the NCOP felt very strongly that this phrase must be linked with a reference to “guardian” despite the fact that a guardian was already included in the definition of an appropriate adult. Members had no particularly strong feelings about this proposal.

The NCOP had then proposed a new Clause 80. Clause 80(1) of the Bill as passed by the NA had specified the duties incumbent upon a legal representative representing a child, setting these out in five subclauses. Subclause (a) said that the legal representative must allow the child, as far as is reasonably possible, to give independent instructions concerning the case. Clause 80(2) then provided that if a presiding officer was of the opinion that the legal representative did not comply with the requirements of Clause 80(1), then the presiding officer should record his or her displeasure by way of an order that included an appropriate remedial order or sanction.

The NCOP had regarded the requirement in Clause 80(1)(a), that a child give independent legal instructions, as not essential requirement. It had proposed that the Clause be reworded, so that Clause 80(1)(a) should contain this requirement alone. A new Clause 80(2) would list the remainder of the requirements that had originally been contained in subclauses (b) to (e). The new subclause 80(3) would contain the wording relating to the sanction of the presiding officer, but said that this would apply only if the provisions of the new 80(2) had not been complied with. The remainder of the subclauses after 80(3) were then renumbered.

 The Centre for Child Law had sent through a submission taking issue with the proposed amendment. It believed that the removal of this subclause from the sanction provisions could give rise to abuse, and it had set out a possible scenario that could result. Mr Jeffery noted that he had discussed the matter with some colleagues and had also raised this again with Kgosi Mokoena, Chairperson of the Select Committee on Security and Constitutional Affairs, who felt that if the Portfolio Committee wished to reject this proposed amendment, his Committee would accept this. There was no need to have a Study Group on the issue.

Members agreed that the proposed amendment to Clause 80 be rejected.

Mr Jeffrey then read out all the other amendments proposed by the NCOP, clause by clause, following the Report of the Select Committee dated 5 September 2008. .

Members resolved formally to reject the changes proposed by the NCOP to Clause 80. They also resolved to accept the changes proposed for the Table of Contents, and Clauses 1, 3, 9, 13, 18, 19, 20, 21, 22, 23, 24, 25, 28, 38, 40, 42 to 44, 46 to 49, 52, 53, 55, 61, 65, 73, 74, 87, 90, 94, and 97, as well as Schedule 4 and Schedule 5.
 
The Chairperson noted that the adoption of the Bill, with amendments, would be placed on the Order Paper for the following Wednesday. 

The meeting was adjourned.

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