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MEMBERS' AND PROVINCIAL LEGISLATIVE PROPOSALS SELECT COMMITTEE
12 September 2003
VAN NIEKERK'S COMMISSION FOR PROMOTION & PROTECTION OF RIGHTS OF CULTURAL, RELIGIOUS & LINGUISTIC COMMUNITIES AMENDMENT BILL
Chairperson Mr P Matthee (NNP, Kwa Zulu Natal)
Documents handed out
Memorandum on Mr van Niekerk's legislative proposal (see Appendix)
Mr van Niekerk's legislative proposal intends to provide the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities with more effective powers. He motivated that without the requisite powers the Commission would not have the authority to enforce its recommendations which could have a negative impact on its efficiency.
As a matter of procedure, the Committee decided to refer the legislative proposal to the Select Committee on Provincial and Local Government for comment.
Committee budget and study tours
The Chair said the Committee's budget was initially calculated at just under R 1 million including one oversees trip to Australia. Australia had a very active Senate with private members successfully proposing many legislative bills. He noted some successful legislative proposals that its senators had introduced dealing with compulsory participation in elections and banning tobacco advertising.
He said that after further discussions, two additional trips to African states had been included in the budget. Too often the South African parliament looked to Europe for guidance and they should invest more attention in Africa. He said the Pan African Parliament meeting in early 2004 provided additional incentives to be more involved in Africa. Provision had also been made in the budget for at least two conferences bringing the 2005 budget to just over R2 Million
Mr B Mkhalipi (ANC, Mpumalanga) said the Committee should focus more on African countries as South Africa, as the leading nation in Africa, had a responsibility to learn from and assist other African states.
Mr van Niekerk's proposal: Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Amendment Bill
Mr A Van Niekerk (NNP Western Cape) quoted the Constitution where it states that South Africa belonged to all that live in it united in their diversity. He said that it was hoped that the Commission would be established by October 2003 after the interviewing of prospective commissioners was completed. However he warned that the Commission could not effectively fulfill its functions without the authority to enforce its recommendations which would complement the work of the South Africa Human Rights Commission. He reiterated that the legitimacy of the Commission would be undermined if it did not have the required powers. He pointed out that PANSALB had been established with much initial enthusiasm. Unfortunately due to insufficient enforcement authority, it did not currently receive the respect it deserved. He cautioned against making the same mistake twice.
He said the intention was not to have the Commission run to court, unless every reasonable endeavor had been exhausted and the Commission was satisfied there was sufficient reason to pursue the matter further.
Mr Mathee pointed out to Mr van Niekerk that more detailed information needed to be included in his proposal document.
Kgoshi M Mokoena (ANC Northern Province) said aggrieved communities could currently refer matters directly to the Public Protector.
Mr Van Niekerk said he had obtained legal opinion that referral from the Commission would provide additional legal emphasis to the Public Protector's processes.
Kgoshi Mokoena expressed reservations that the amendment would create unnecessary delays. In the land restitution process, the Commission itself was empowered to resolve certain cases to ease the burden on the Land Claims Court.
Mr Van Niekerk said this was a good comparison and emphasised that the Commission would only go to court as a last resort. Currently it was intended that the Commission make recommendations without considering the compliance with those recommendations.
Mr Mathee said that, as a creature of statute, the Commission's authority was derived from statute and it would not have legal jurisdiction beyond that. As a matter of procedure, the Committee would first consult the relevant NCOP committee, the Select Committee on Provincial and Local Government before proceeding further. He added that if there were financial implications to this amendment, it should be stated with an explanation as to why it should not negatively impact the desirability of the amendment.
Mr Van Niekerk agreed and said that there were no financial implications that negatively impacted the desirability of the amendment. He acknowledged that there were indirect costs.
Kgoshi Mokoena said even when departments employed legal assistance to draft a bill they still stated there were no financial implications. He commented that Mr van Niekerk had used his own resources to prepare this legislative proposal.
The meeting was adjourned
MEMORANDUM BY MR VAN NIEKERK
The purpose of this memorandum is to obtain the permission of the National Council of Provinces in terms of rule 163(1) to initiate legislation.
The memorandum sets out:
a) Particulars of the proposed legislation
b) The objects of the proposed legislation
c) The financial implications for the state
1. Particulars of the proposed amendments to Act No.19 of 2002 (Commission for the Promotion and Protection of the Rights of CuItural, Religious and Linguistic Communities Act)
As the above Act does not have any provision to enable the Commission to enforce any of the recommendations, amendments to this effect is proposed.
- To afford the Commission in the "Act on the Promotion and Protection of the rights of Linguistic, Cultural and Religious Communities" more effective powers as envisaged by the South African Constitution as set out in Section 185
- To involve the relevant parliamentary committees in the activities and establishment of the Commission.
The financial implications for the State
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