Hansard: Second Reading debate: Civil Aviation Bill [B 73B – 2008]

House: National Assembly

Date of Meeting: 19 Nov 2008

Summary

No summary available.


Minutes

WEDNESDAY, 19 NOVEMBER 2008

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PROCEEDINGS OF THE NATIONAL ASSEMBLY

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The House met at 14:03.

House Chairperson Mr A C Nel took the Chair and requested members to observe a moment of silence for prayers or meditation.

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.

CHARLIZE THERON INDUCTED AS UN MESSENGER OF PEACE

(Draft Resolution)

The CHIEF WHIP OF THE OPPOSITION: Chairperson, I move without notice:

That the House -

(1) notes that South African actress Charlize Theron was inducted as a United Nations Messenger of Peace on Monday, 17 November 2008;

(2) further notes that she joins only nine other people in becoming a messenger for the UN in waging peace and conducting its humanitarian work worldwide;

(3) recognizes that growing up in an environment of domestic abuse has resulted in her working tirelessly when it comes to fighting violence against women and children and addressing the social ills of poverty and HIV/Aids that include her working with a Cape Town rape crisis centre in 1999 and founding the Charlize Theron Africa Outreach Project to promote HIV/Aids education for poor children and their families in our country;

(4) acknowledges that both her roles as an Academy Award winning actress and as a humanitarian have placed our country in the international spotlight and have demonstrated what can be achieved through hard work and perseverance irrespective of ones social background; and

(5) congratulates her on this great honour that has been bestowed on her and for inspiring all South Africans to reach for their dreams.

Agreed to.

CIVIL AVIATION BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the report be adopted.

Motion agreed to.

Report accordingly adopted.

CIVIL AVIATION BILL

(Second Reading debate)

The MINISTER OF TRANSPORT: Chairperson and hon members, it is indeed an honour and a privilege to present to you the Civil Aviation Bill. Last year South Africa was audited and assessed by the International Civil Aviation Organisation, ICAO, and the Federal Aviation Administration, FAA, of the United States of America. Both the ICAO audit and the FAA International Aviation Safety Assessment, IASA, reflected a finding which warranted the review, consolidation and harmonisation of our various pieces of civil aviation legislation, thus ensuring that it complies with international requirements.

As we may appreciate, given our past history, the core spine of our civil aviation legal foundation stems from the Aviation Act, Act 74 of 1962, an Act which is to date at the very least 46 years old. Civil aviation has certainly evolved over the past decades and has moved at a very fast pace and so too must its legislative framework; more so in the light of the tragic event of 9/11, the ongoing imminent global threat of terrorism and equally concerning the increase in the rate of civil aircraft disasters.

It is therefore on this platform that the department has concentrated its focus on ensuring that the three main Acts, the Aviation Act of 1962, the South African Civil Aviation Authority Act of 1998 and the Civil Aviation Offences Act of 1972 are all harmonised, consolidated, strengthened and modernised in one Act. This will ensure that we have a simple, single piece of aviation legislation, which addresses the needs of the aviation transport sector both on the domestic and international fronts, with a clear reporting line for the control and regulation of both the safety and security oversight for civil aviation headed by the Director of the South African Civil Aviation Authority.

This Bill empowers the director to issue technical standards for civil aviation on matters as may be prescribed by regulations from time to time.

In addition, and in keeping with the challenges we face on a daily basis, the Bill contains an expediency clause which allows for the director to call on the Minister to issue emergency regulations when there is an imminent or prevailing danger to the safety and security of the civil aviation industry. This is most necessary given the dastardly acts committed against aviation in recent times.

The Bill tabled today proposes to repeal, consolidate and amend aviation laws giving effect to certain International Aviation Conventions and it provides for the control and regulation of civil aviation within South Africa. This Bill further sets out to provide for the establishment of the South African Civil Aviation Authority and its objects, amongst other things, are to control, regulate and promote civil aviation safety and security, develop regulations that are required in terms of this Act and also monitor and ensure compliance with this Act and all conventions.

The CAA will have a board whose core mandate is to oversee and provide strategic direction for the corporate governance structures of the CAA in order to attain the objectives that have been mentioned. This board will also be tasked to monitor service standards and customer satisfaction and report to the Minister of Transport on any matter concerning such issues.

In line with international best practice, the Bill provides for the establishment of the independent Aviation Safety Investigation Board which is structured in compliance with the provisions and procedures of Annex 13 of the Chicago Convention, to which our country is a signatory.

I am pleased to note that the Aviation Safety Investigation Board is fully independent and that its members, staff, accredited representatives, experts and advisors must serve and execute their duties in an impartial and independent manner. They will also carry out their powers, duties and functions in good faith and, most importantly, without fear, favour, bias or prejudice and subject only to this Act and the Chicago Convection.

Unlawful, unruly behaviour and acts of terror targeted at the civil aviation sector must be dealt with decisively. This requires an ongoing preventative programme which sets out very clear parameters and deliverables on what is required of security at all our designated airports.

Annex 17 to the Chicago Convention, and the guidelines to the security manual, as populated for the Annex, require that each state must have within its administration a National Civil Aviation Security Programme, NCASP.

This Bill makes provision for the NCASP and establishes a National Civil Aviation Security Committee whose core purpose is to ensure the efficient and proper co-ordination of security agencies dealing with civil aviation security in South Africa, thus ensuring the proper and diligent implementation of the National Aviation Security Programme.

The Bill also requires that the CAA as a regulator must be tasked with oversight of safety and security for civil aviation. In fulfilling this mandate it will take enforcement decisions and in all likelihood make administrative decisions on a daily basis.

The Bill will apply to every aircraft, aerodrome and aviation facility, all designated airports and so on; every person employed in the navigation facility; and all foreign registered aircraft. The Bill, in essence, is a product of the review, consolidation and harmonisation of all the various Acts that have been referred to.

I request that the NA pass this Bill, please. I thank you. [Applause.]

Mr J P CRONIN: Thank you, Chairperson, Minister Radebe, friends, colleagues and comrades. The airlines operating within South Africa, our civil aviation regulator, the Civil Aviation Authority and our air traffic navigational services all have an excellent international safety reputation.

It is true that in recent weeks there has once more been a spate of accidents on the light and leisure side of aviation – what is known as general aviation. Most of these appear to have been related to human error. Notwithstanding these unfortunate incidents, it is simply a fact that it is infinitesimally safer to travel in our skies than, unfortunately, it is to travel on our roads.

However, the tragedy of 9/11 in the United States and concerns about the safety of air travel in some parts of the world, including in parts of our continent, underline just how important it is not to become complacent about aviation standards and about safety and security. It is against this general global background that the South African Civil Aviation Authority, the CAA, is regularly audited by the International Civil Aviation Organisation, ICAO. In recent years the US Federal Aviation Authority has also been auditing other national regulators, particularly in countries like our own, into which US airlines are flying, or whose airlines are flying into the US. I would like to be anti-imperialist, but given the FAA's enormous experience and expertise, I think, as South Africans, we should welcome these audits that they have been conducting.

The present legislation, in fact, flows directly out of some of these recent audits, which raised questions on the structuring of our civil aviation regulatory regime, in particular in regard to the lines of reporting, command and answerability around aviation safety and security.

The problems in this area arose from the fact that there were three separate Acts that had been passed at separate times - going back to the Aviation Act of 1962; the Civil Aviation Offences Act of 1972; and the more recent South African Civil Aviation Authority Act of 1998. These Acts did not properly align with each other and this Bill now seeks to repeal all of those Acts and introduce a more aligned dispensation for aviation regulation.

Among the challenges that were raised in these international audits of our system was the fact that we had an Aviation Commissioner sitting in the Department of Transport and reporting directly to the Minister on the one hand, and then on the other hand a CEO of the CAA reporting to a board, with the board reporting to the Minister. The lines of authority and responsibility were open to potential confusion. Fortunately I don't think that ever happened in practice, but if there had been a serious or major national security threat, for instance, these confusing lines of command, authority and responsibility might have provoked problems.

In the past several months we've tried to produce a patch-up solution to this - we've made the commissioner and the CEO of the CAA one and the same person. Clearly that was a temporary solution, so in this current legislation we have sought to clean up this whole area. We have done away with a separate commissioner and CEO and created a Director of Civil Aviation. That director will head the CAA and on critical matters of aviation safety and security the director will report directly to the Minister.

What then is the role of the CAA board? This became a critical area of debate and dispute and discussion in our public hearings. Some stakeholders favoured a board with full responsibility for all of the CAA's functions. That is, they favoured a model in which the director would report to the board on all matters and the board would then report to the Minister. On the other hand, some of us wondered why we needed a board at all. The CAA is, after all, a safety regulator and not a publicly owned entity operating as a commercial enterprise like Transnet, SAA or Eskom. In those latter cases, like Transnet or SAA, a board focusing on the complex corporate market interests of the entity makes eminent sense.

In the end, the committee settled for a hybrid arrangement for the CAA, as was proposed in the original Bill tabled before Parliament. The director, as I said, reports directly to the Minister on the key regulatory functions of safety and security. The board, however, is responsible for corporate governance matters such as financial management, human resource policies, etc.

In the committee stage we added a further functional responsibility for the board, because among its tasks, the CAA is also a service provider to the private sector. It licences pilots, for instance. We've now added that the board should be required to monitor the service standards and customer satisfaction levels and report to the Minister on any matters concerning such issues.

So we didn't take the more radical step, which some of us favoured, of entirely dispensing with the CAA board. The committee, however, in its report to Parliament on this Bill, has recommended that the new Parliament – and presumably therefore the new executive - should do a more comprehensive review of the broad spectrum of corporate and governance models that are in place for a range of public entities.

We have SOEs, public utilities, agencies of all kinds, economic regulators, safety regulators, etc. Over the past three Parliaments, we have surely begun to develop a more grounded experience. I think in the mid-1990s we might have made the assumption that a one-size-fits-all institutional arrangement for this vast array of entities made sense - a kind of corporate entity with a board of directors, etc.

In our experience, certainly over these last four years, as this portfolio committee, I think we've run into a number of problems in this whole governance because we are dealing with different entities and they're not the same kind of entity. Whether the same corporate structure is appropriate is something that we would like to see reviewed by the next government and the next Parliament.

The committee is recommending that next year some kind of White Paper policy process, perhaps led by the Department of Public Enterprises and by the corresponding portfolio committee here in Parliament, should review our experience across the spectrum of parastatal entities.

In this legislation we have chosen to strike a more cautious middle road. In addition to these matters, this rather long and technically complicated Bill also establishes an independent Aviation Safety Investigation Board in compliance with Annex 13 of the Chicago Convention. The Bill also gives effect to provisions of the international Convention on Offences and Certain Other Acts Committed on Board Aircraft.

I would like to thank our hardworking colleagues from the Department of Transport, including Anwar and the team that he led. Given its technical complexities, this was not an easy piece of legislation, and so our special thanks go to the drafters and also to the state law advisers. I know, as a chairperson, that my own preferred, rather open-ended workshop style of tackling legislation like this does not make it easy for the drafters or the lawyers, but hopefully it results in a better product at the end of the day. Thanks also to our colleagues from the CAA and its board, and to the civil aviation sector, that kept us on our toes as a committee and helped us tremendously with their professional and technical knowledge. Finally, thank you to all the members of the portfolio committee. The ANC supports the Bill. Thank you. [Applause.]

Mr S B FARROW: Chairperson, firstly I would like to welcome the Minister in the House. We haven't seen much of him and I trust that while he is in the precincts of this Parliament, he will go to his office and pick up some pressing correspondence that I have sent to him recently.

The Bill before us is the culmination of a process that started some time ago and, as has been said by the two speakers before me, this was brought about as a result of and compliance with the Regulations of the International Civil Aviation Association, and to address matters of concern which were raised by the FAA.

Both these agencies report on and audit the aviation safety and security status of some 89 states worldwide to ensure that they are compliant with international standards and, in South Africa's case, that we meet our obligations applicable to the conventions and agreements that we have signed.

During the 2007-08 financial year both these reports gave South Africa Category 1 status, which is of major strategic importance to South Africa. Failure to maintain this status would have resulted in the closure of routes and the prevention of aircraft being flown by our carriers to the USA and abroad, and would have severe implications for our preparations for the Fifa World Cup in 2010.

To this end, the Bill repeals, consolidates and amends the current aviation laws whilst providing for a newly structured and independent Aviation Investigation Board, the appointment of a director reporting directly to the Minister and in so doing separating the current dual function of the chief executive officer/commissioner of the Civil Aviation Authority, CAA.

The role of the CAA's present board now changes from one of being purely the accounting authority of the entity under section 49(2)(a) of the Public Finance Management Act, in other words, oversight of the corporate governance element of the CAA, on the one hand.

The director, on the other hand, is now tasked with oversight powers and functions as embraced in the Bill before us, including all technical civil aviation safety standards. His or her financial responsibilities will be held to account through the normal Auditor- General's reporting function whilst one of his or her prime roles will be, through the Department of Transport, to monitor, implement and enforce the National Aviation Security Program, Nasp, and to serve on the National Aviation Security Committee. This body comprises aviation and security personnel from the state entities and also relevant government departments.

The object of this committee would be to advise the director with regard to Aviation Security Policy and co-ordinate the proper and diligent implementation of the Nasp. The success of any such programme relies heavily on the support of the aviation industry and it would be imperative for the director to meet regularly with these stakeholders that our chairperson spoke about to ensure that they conform to international and domestic standards and regulations which may be introduced from time to time.

One of the more positive aspects of the Bill was that it removes any chances of conflict of interest or opportunity of corruption by any person appointed to perform any function in terms of this Bill. Clearly, the authors have learnt from the history of this authority and all the problems associated with the likes of Messrs Trevor Abrahams, Myeza and Naidoo, who cost the CAA and our taxpayers millions in corruption. Also, in trying to get rid of them, we had to pay them millions of rands.

One aspect which stood out in deliberations on the Bill was the apparent need for the establishment of the Aviation Regulatory Authority, which my chairperson has already covered, and this would take care of the nearly R180 million in the form of user fees, fuel levies and aircraft safety charges that come into the CAA every year. This is something that needs really good control and independent regulation if it is to avoid a budget balancing exercise which the CAA may try to introduce. But more importantly, it will prevent the payment of excessively high salaries to personnel and the acquisition of plush offices and fancy cars for its management.

The DA will be keeping a very close eye on this type of expenditure until something is enacted to regulate the level of levies and what they can be used for.

The DA will nonetheless be supporting the Bill, you will be pleased to know, Mr Minister. Thank you.

Mr E J LUCAS: Chairperson, the Civil Aviation Bill is very important because it has the function of conducting safety and security oversight. South African Airways has been one of the safest carriers in the world and most certainly in Africa. However, to maintain this standard we must continue to monitor the safety performance of the aviation industry. We have to look at the risk factors and safety and security trends. Without a doubt we have to make use of major aviation skills and do all we can to retain the technical skills in our country.

The Bill was a complicated one which needed much discussion. Firstly, I must say the size of the Bill was intimidating. However, the chairman and the committee were courageous in their approach. It is also important to add that the Department of Transport and the legal advisers were extremely patient and helpful. The Aviation Safety Investigation Board and the operators were also on hand to clarify certain aspects of the Bill.

The main issue that the IFP grappled with was the director's position. It was our assumption that there was a danger of forming two centres of power. He or she would interact with the board and was also permitted to go directly to the Minister of Transport. This was a cause for concern.

It was made clear to us that the director would only go to the Minister regarding matters pertaining to the threat or imminent risk to safety or security. Eventually there was a statement by the committee acknowledging that the issue of the director will be revisited.

I regret that the Bill had to be debated today, and not on Thursday, which would have been after our caucus meeting. The IFP supports the Bill. Thank you.

Mr S N SWART: Chairperson, the ACDP shares the view that there was a clear need to tighten up and consolidate legislation regarding civil aviation, particularly following the 9/11 tragedy and, domestically, the now infamous incident of an engine falling off a Nationwide aircraft, as well as a spate of fatal light aircraft incidents and accidents in the recent past.

Aviation safety cannot be compromised in any manner, particularly in the run-up to the 2010 Soccer World Cup when many thousands of additional tourists will be coming to South Africa. This Bill will also address comments and concerns expressed by the FAA in its audit report and other concerns expressed by those involved in the local aviation industry.

The primary purpose of the newly established Aviation Safety Investigation Board will be to prevent aircraft accidents. It will, inter alia, identify safety deficiencies and report publicly on its findings.

Although the Bill makes provision for the establishment of a number of new structures, the majority of these structures currently exist within the aviation framework, although in a different form.

The ACDP will support this Bill as well as the report which recommends a comprehensive review of the government's regulatory entities. Thank you.

Ms S RAJBALLY: Chairperson, air travel has become a very common mode of travel. However, to travel by air has become very expensive and is not accessible to the people. Airport taxes increase on a weekly basis, offering no relief, and cheaper airlines now charge as much as R2 000 for a one-way ticket.

While this Bill clearly assists in making air travel safer, better managed and sustainable, the MF seeks ways of making air travel more accessible by minimising costs. The MF remembers that not too long ago, when cheaper airlines were officially introduced, their prices were very similar to bus travel and accessible. Those limits have now been exceeded. The Civil Aviation Bill, however, offers a major turnaround for this sector.

It would be wise to conduct comparative studies of civil aviation safety exercised globally to assist in making air travel even safer. Thank you.

The HOUSE CHAIRPERSON (Mr A C Nel): Before I call the next speaker, could I just appeal to members to lower the level of noise. It is becoming difficult to follow the debate. We know that some parties have relaunched themselves and they are very excited, but let's keep it down.

Mr B L MASHILE: Chairperson, the hon Minister of Transport, hon chairperson of the portfolio committee, Mr Jeremy Cronin, and all members, it is an honour for me to participate in the debate on the Civil Aviation Bill of 2008.

The debate on this Bill is intended to result in a piece of legislation to inform the regime of the civil aviation industry. In the past two months this country has seen numerous aircraft accidents and incidents. Quite a number of persons have lost their lives during these accidents. The safety and security of our lives in the aviation industry is slowly and gradually becoming suspect. Our international safety record is crumbling.

Acknowledging and responding to this turn of events, the ANC-led government proposed to introduce measures to intervene and eventually tighten the screws and close the gaps within the aviation industry. Recognising our international standing, and as a signatory to international conventions, the current regime needed a complete repeal, hence this Civil Aviation Bill of 2008.

The Civil Aviation Bill of 2008, as it is presented to the House today, seeks to establish the South African CAA and the Aviation Security Investigation board. The CAA will have a safety and security oversight function and will be led by the director, who will be responsible for the general management and administration of the authority under the direction of the board, and the safety and security of the aviation industry under the direction of the Minister.

The CAA board is responsible for the corporate governance of the authority. It is a rare situation where the director of the CAA will be reporting to two masters on different matters handled by the same entity. This anomaly arises from the dictates of the International Civil Aviation Organisation. The possibility of contradictions was mitigated with the inclusion of the director as a board member. The relationship is such that he or she will report to the board on matters of safety and security in the civil aviation industry.

Given the nature and the complexity of the industry and the number of interested parties in the industry, further institutional arrangements were necessary to ensure that safety and security is not compromised. In this Bill, therefore, a further number of structures are created to deal with issues relating to safety and security. The Minister will institute a national aviation security committee whose object will be to advise the Minister with regard to aviation policy, review and make recommendations regarding the effectiveness of security measures and procedures and provide for co-ordination to ensure the proper and diligent implementation of the national aviation security programme.

The Minister will appoint one or more appeals committees consisting of three part-time members to consider and decide appeals. The Bill empowers authorised persons to effect, arrest of a person who has committed or is reasonably suspected to have committed any offence under this Act. These authorised persons are empowered to use force reasonably necessary under the circumstances to effect arrests against resistance or fleeing.

The authorised persons are, as defined in the Act, any member of the service as defined in the South African Police Service Act of 1995, any person appointed in writing by management of a designated airport with the approval of the Minister, any member of the SANDF, as defined in the Defence Act of 2002, any person designated in writing by the director of the South African CAA as an authorised person in terms of section 94(1) of this Act, or any person appointed by the Minister for purposes of this Act.

The Bill also provides for the institution of a civil aviation regulations committee to advise the Minister on proposals with regard to the introduction, amendment, or withdrawal of any regulation, the introduction, amendment, or withdrawal of any technical standard and any matter relating to civil aviation, including any such matter referred to it by the director. The committee may, subject to the approval of the director, establish such subcommittees as it may deem necessary for the performance of its functions.

Lastly, this Bill also provides for the establishment of the aviation safety investigation board to advance aviation transportation safety by conducting independent investigations, identifying safety deficiencies, making recommendations to reduce or eliminate any safety deficiencies, report publicly on its investigations and on the findings, promoting compliance with the provision of Annex 13 to the convention, investigating aircraft accidents and incidents, in compliance with the provisions of Annex 13 to the convention, and discharge all other functions and obligations in compliance with the provisions and procedures of Annex 13 to the convention.

Chairperson, this Bill seeks to give practical expression to a number of provisions of the Bill of Rights in our Constitution. This Bill talks to section 12(1)(c) on freedom and security of persons and section 24(a) and (b) on an environment that everyone has a right to. It is in this spirit that the rights of citizens are protected from the ills of the aviation industry. The institutional arrangements are meant to put people first in the conduct of aviation business within and beyond the borders of the Republic.

As the ANC, the only tested and trusted organisation interested in advancing the interest of the citizens, we will not pass legislation which has not been checked against the wishes of the people.

When we say the people shall govern, we really mean what we say. The ANC, therefore, supports the Civil Aviation Bill of 2008. I thank you.

The MINISTER OF TRANSPORT: Chairperson, I would like to thank all Members of Parliament and the portfolio committee for their total support of the Civil Aviation Bill. I can only say amen and thank you very much.

Debate concluded.

Bill read a second time.

CONSIDERATION OF REPORT AND RECOMMENDATION OF AD HOC COMMITTEE ON APPOINTMENT OF A PERSON TO FILL A VACANCY IN SOUTH AFRICAN HUMAN RIGHTS COMMISSION

There was no debate.

Question put: That the House approves the nomination of Ms P Govender to fill the position of a full-time commissioner on the South African Human Rights Commission.

AYES - 252: Abram, S; Ainslie, A R; Anthony, T G; Arendse, J D; Asiya, S E; Baloyi, M R; Bekker, H J; Beukman, F; Bhengu, P; Biyela, B P ; Blanché, J P I; Bloem, D V; Bogopane-Zulu, H I; Boinamo, G G; Bonhomme, T J; Booi, M S; Botha, C-S; Burgess, C V; Camerer, S M; Cele, M A; Chalmers, J; Chohan, F I; Cronin, J P; Cupido, H B ; Cwele, S C; Dambuza, B N; Davidson, I O; Davies, R H; Ditshetelo, P H K; Dlali, D M; Doidge, G Q M; Doman, W P; Du Toit, D C; Dudley, C; Ellis, M J; Fankomo, F C; Farrow, S B; Fazzie, M H; Fihla, N B; Frolick, C T; Fubbs, J L; Gabanakgosi, P S; Gasebonwe, T M A; Gaum, A H; George, D T; Gerber, P A; Gigaba, K M N; Godongwana, E; Gogotya, N J; Gololo, C L; Gore, V C; Greyling, C H F; Gumede, D M; Gumede, M M; Hajaig, F; Hanekom, D A; Hangana, N E; Hendrickse, P A C; Huang, S; Jacobus, L; Jeffery, J H; Johnson, C B; Johnson, M; Jordan, Z P; Julies, I F; Kalako, M U; Kalyan, S V; Kasienyane, O R; Kekana, C D; Kgabi, L M; Khauoe, M K; Khoarai, L P; Khumalo, K K; Khunou, N P; King, R J; Kohler-Barnard, D; Koornhof, G W; Labuschagne, L B; Landers, L T; Lebenya, P; Lekgetho, G; Lishivha, T E; Louw, J T; Louw, S K; Lowe, C M; Lucas, E J; Ludwabe, C I; Luthuli, A N; Maake, J J; Mabaso, S B; Mabe, L L; Mabena, D C; Madasa, Z L; Madella, A F; Maduma, L D; Madumise, M M; Magwanishe, G B; Mahlaba, T L; Mahlangu-Nkabinde, G L; Mahlawe, N M; Mahomed, F; Mahote, S; Maja, S J; Makasi, X C; Maloney, L; Maluleka, H P; Maluleke, D K; Manana, M N S; Mapisa-Nqakula, N N; Marais, S J F; Martins, B A D; Mashiane, L M; Mashigo, R J; Mashile, B L; Mashishi, A C; Mathebe, P M; Mathibela, N F; Matlala, M H; Matsemela, M L; Matsomela, M J J ; Maunye, M M; Mayatula, S M; Mbete, B; Mdaka, N M; Meruti, M V; Mfeketo, N C; Mfundisi, I S; Mgabadeli, H C; Mkhize, Z S; Mkongi, B M; Mlangeni, A; Mncwango, M A; Mnguni, B A; Mnyandu, B J; Moatshe, M S; Modisenyane, L J; Mofokeng , T R; Mogale, O M; Mogase, I D; Mohamed, I J; Mohlaloga, M R; Moiloa-Nqodi, S B; Mokoena, A D; Mokoto, N R; Moloto, K A; Monareng, O E; Montsitsi, S D; Moonsamy, K; Morobi, D M; Morutoa, M R; Morwamoche, K W; Mosala, B G; Moss, M I; Motubatse-Hounkpatin, S D; Mpontshane, A M; Mtshali, E; Mzondeki, M J G; Nash, J H; Ndlazi, Z A; Ndlovu, V B; Ndzanga, R A; Nefolovhodwe, P J; Nene, M J ; Nene, N M; Newhoudt-Druchen, W S; Ngaleka, E; Ngcengwane, N D; Ngcobo, B T; Ngcobo, E N N; Ngcobo, N W; Ngculu, L V J; Ngele, N J; Ngwenya, W; Nhlengethwa, D G; Njobe, M A A; Nkabinde, N C; Nogumla, R Z; Nqakula, C; Ntuli, B M; Ntuli, R S; Nwamitwa-Shilubana, T L P; Nxumalo, M D; Nxumalo, S N ; Nyembe, K K M; Nzimande, L P M; Olifant, D A A; Oliphant, G G; Oosthuizen, G C; Padayachie, R L; Phala, M J; Pieterse, R D; Pule, B E; Rabie, P J; Rabinowitz, R; Radebe, B A; Radebe, J T; Rajbally, S ; Ramakaba-Lesiea, M M; Ramgobin, M; Ramodibe, D M; Ramotsamai, C P M; Sayedali-Shah, M R; Schippers, J; Schneemann, G D; Schoeman, E A; Seaton, S A; Sefularo, M ; Selau, J G; Semple, J A; Seremane, W J; Sibande, M P; Sibhidla, N N; Siboza, S ; Sibuyana, M W; Sigcau , S N; Sikakane, M R; Singh, N; Sisulu, L N; Sizani, S; Skhosana, W M; Skosana, M B; Skweyiya, Z S T; Smith, V G; Smuts, M; Solo, B M; Sonto, M R; Sosibo, J E; Sotyu, M M; Stephens, J J M; Steyn, A C; Sunduza, T B; Swanson-Jacobs, J; Swart, S N; Swathe, M M; Thomson, B; Tinto, B; Tobias, T V; Tolo, L J; Tsenoli, S L; Tshivhase, T J; Twala, N M; Vadi, I; Van Der Walt, D; Van Wyk, A; Vos, S C; Wang, Y; Waters, M; Weber, H; Wright, F J; Xolo, E T; Zikalala, C N Z; Zulu, B Z.

Question agreed to.

Nomination accordingly agreed to in accordance with section 193(5)(b)(ii) of the Constitution.

The HOUSE CHAIRPERSON (Mr A C Nel): I would like to recognise the presence of Ms P Govender in the gallery. [Applause.] Congratulations, Ms Govender.

TOBACCO PRODUCTS AMENDMENT BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

MEDICINES AND RELATED SUBSTANCES AMENDMENT BILL

(Consideration of Bill and of Report thereon)

There was no debate.

Declaration of vote:

Dr R RABINOWITZ: Chairperson, when this Bill was discussed in the House, the IFP was strongly opposed to the structure as it was adopted, because it meant that a multibillion rand industry would work through the Sapra, and it had a structure that lacked transparency and accountability. It also meant there was merely a CEO who was accountable to the Minister in a public entity.

Since then, the NCOP introduced this amendment, which has introduced a further structure between the CEO and the Minister. It has resulted in the body not being a full public entity, and it has created transparency and accountability. It is an excellent amendment.

We commend those people who introduced it; it shows the value of having the NCOP as a check on what we do. We are very happy to support this Bill now that the structure is more transparent and accountable. It is going to be a much better body which will regulate our medicines and we are all going to be safer as a result.

So, the IFP would particularly like to put on record that we support the changes and also feel that the changes to the Ethics Committee and the Appeal Committee have been very constructive. Thank you.

The CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill, as amended, be passed.

Motion agreed to.

Bill, as amended, accordingly passed.

PREVENTION OF AND TREATMENT FOR SUBSTANCE ABUSE BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

MANDATING PROCEDURES OF PROVINCES BILL

(Consideration of Report of Mediation Committee on Bill)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

CHILD JUSTICE BILL

(Consideration of Bill)

Mr J H JEFFERY: Chairperson, the amendments from the NCOP were largely of a technical nature and the NA committee agreed with all of them bar one. I don't think I need to go into the reasons.

However, there were problems with the quality of the printing of the D version of the Bill. It was originally printed with a number of mistakes. Those mistakes have been corrected, but there is still a mistake in the Bill which needs to be corrected.

Chairperson, I therefore want to move:

That in clause 65, line 12 on page 38, the words "or a guardian" should be inserted after "adult".

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Mr Chairperson, I move:

That the Bill, as amended, be passed.

Motion agreed to.

Bill (with textual corrections), as amended, accordingly passed.

The HOUSE CHAIRPERSON (Mr A C Nel): I've been informed that Orders 9 and 10 on the Order Paper will stand over. Therefore, the Secretary will now read the 11th Order.

BROADCASTING AMENDMENT BILL

(Consideration of Bill and of Report thereon)

Mr I VADI: Chairperson, you caught me off guard with the change on the Order Paper.

It is my pleasure to report on the progress that the Portfolio Committee on Communications has made on the Broadcasting Amendment Bill. Hon members will remember that this Bill was introduced and approved by the NA earlier this year.

Essentially, the Bill provides for the resignation of a member of the board or for the removal from office of a member of the SABC board. It further makes provision for a resolution of the NA calling for the dissolution of the board if the board fails in any of the following: discharging its fiduciary duties; adhering to the charter of the corporation; or properly and judiciously managing the affairs of the corporation.

The original Bill empowered the President, in conjunction with the Speaker, to appoint and remove the SABC board if recommended to do so by the NA. It also made provision for the appointment of an interim board. The Bill was then referred to the NCOP.

It is important to note that the NCOP held its own public hearings on the matter, and it wisely introduced two key amendments. The first is that the President remains the appointing authority of the SABC board. While the original suggestion was that the appointing authority should be the President in conjunction with the Speaker, the NCOP said it should be the President only. This is a sensible amendment as it eliminates the possibility for the constitutional ambiguity that relates to the original clause. It reaffirms the principle of the separation of powers that underpins our constitutional order.

The second amendment introduced by the NCOP sets a quorum for an interim board. This was an oversight on our part which has now been corrected. The portfolio committee therefore welcomes and accepts all the amendments proposed by the NCOP and commends the revised Bill to the House. If this Bill is approved by the House today and is assented to by the President, a lawful mechanism will have been created to act against the SABC Board if it displays any signs of dysfunctionality and if it fails in discharging its statutory responsibilities.

The truth of the matter is that the current SABC board, for various and different reasons, lacks popular credibility, even though it was established through a legitimate process. At present there is widespread dissatisfaction with the board over the manner in which it carries out its corporate governance responsibility. Important voices in civil society, the media and political formations have, therefore, either called for the resignation of members of the board or for their removal from office.

Parliament cannot be deaf to these growing concerns. However, the law, as it stands now, precludes that from happening. Well, the law is now being amended and a legal basis is being created for acting against the SABC, should it be deemed necessary. In this regard, I wish to counsel the House that if it institutes any proceedings against the board in future, the administrative processes must be fair, just and legally defensible. Simultaneously, the reasons for such action must be cogent and consistent with the legal conditions set out in this Bill. If these conditions are met in an open and transparent manner, I have no doubt that there will be significant public support for the decisions of the NA.

With these few words of introduction, the ANC supports the Broadcasting Amendment Bill and recommends that the House adopts the Bill. Thank you.

There was no debate.

Declarations of vote.

Ms M SMUTS: Chairperson, the NCOP has removed one of two constitutionally offensive provisions from this Bill. It has removed the redefinition of the appointing authority that would have forced the President of the Republic to appoint the SABC board in consultation with the Speaker.

That provision offended against the doctrine of the separation of powers. It is now gone; so is Mr Thabo Mbeki, which is the real reason for the change. Still, it is a vindication of the position taken here by all opposition parties, and we obviously support the NCOP amendment in this respect.

However, the NCOP has not changed the second constitutionally problematic provision. We will therefore not vote in favour of the Bill in this, its final form. We will vote against it. We will also petition President Motlanthe not to sign it but to send it back to this House because the proposed purge of a duly appointed board without due inquiry is unconstitutional.

Mr Blade Nzimande can pontificate as much as he likes on public platforms that the board cannot remain in office for, I quote, "another day". He can terrify the SACP and Members of Parliament into trying, against their better judgement, to pass meaningless motions of no confidence in the board, as they tried again yesterday until we stopped them in their tracks and allowed the board to give what I thought was a very good account of itself on the fiduciary front and in respect of its duties under the charter.

You are not going to be able to evict this board! These are the same Members of Parliament who removed the requirement for due enquiry after the SACP's Mr Malesela Maleka, in a submission, called such due inquiry "a counter-revolutionary attempt to protect bourgeois space with legal concepts".

The proposition that an entire board may be dissolved is intimidatory, as I have said before. It is destructive of the independence without which the SABC cannot protect its editorial staff and the right of the public to be informed. The proposal that this can be done without an inquiry is obviously unconstitutional.

The SACP is already ventilating the names of the five lefties it thinks it is going to install without due process as an interim board in terms of this Bill. This isn't going to happen, Mr Nzimande, not before the election and certainly not after it. [Applause.]

Ms S C VOS: Chairperson, the IFP supports the amendment to this Bill that comes to us from the NCOP because we opposed the clause in Parliament when the Bill was first debated here.

Nevertheless, the IFP opposes this Bill in its entirety for all the reasons we have previously stated. It is a bad law. It is motivated by the ANC alliance wishing to control the SABC Board and hire and fire its members without any semblance of administrative justice – without due inquiry. We believe that this is unconstitutional. That is what the chairperson, Mr Vadi, told us there today from this very podium. He has told us that this is in fact their intention. Their intention is to fire the current SABC board.

However, we also intend to petition the President of the Republic not to sign this Bill into law. Thank you.

Mr L W GREYLING: Chair, the ID certainly supports the removal of the clause in this Bill by the NCOP as we opposed it in the NA.

The ID is still vehemently opposed to this Bill, however, as it allows for the removal of the board without due inquiry, which is in complete contravention of all the rules of administrative justice. We must avoid drafting laws simply to satisfy changing political dispensations. The ID opposes this Bill. Thank you. [Applause.]

Dr P W A MULDER: Chairperson, let there be no doubt that we are in the middle of a very serious fight for the soul of the SABC. The elections make it more serious for the moment as the ANC, for the first time, experiences being on the receiving end of biased reporting. We are used to this as we have been experiencing it for many years! This is what this Bill is all about.

Die SAUK is 'n openbare uitsaaier, nie 'n staatsuitsaaier nie. Mag hy nooit dit word nie, want dan het ons moeilikheid in Suid-Afrika.

Die harde werklikheid is dat die SAUK tans grootliks 'n nuus-monopolie het. Daar is SABC 3 wat jy met eTv se Engelse nuus kan vergelyk, maar al die ander nuusbulletins het net die SAUK in die bulletin. Daarom is dit belangrik dat hy objektief moet bly, neutraal moet bly en niemand beheer oor hom moet kry nie.

'n Onafhanklike regstelsel is net so belangrik soos 'n onfahanklike openbare uitsaaiser wat oor nuus beheer het.

Ek wil u nie terugvat na Zimbabwe toe nie, maar gaan kyk maar wat daar verkeerdgeloop het. Vanaf 1980 het Robert Mugabe onmiddelik die uitsaaistelsel beheer. Dit het gelei tot waar ons vandag met die moeilikheid sit.

Hoe kry jy beheer oor 'n uitsaaistelsel? Jy kry dit op 'n subtiele manier. Jy hou 'n swaard oor die kop van die mense daar. Jy dreig hulle met afdanking op die geringste die-kant of daardie-kant. Sonder om hard te praat, weet elkeen dat hulle uiteindelik moet doen wat van hulle verwag word, want daar is base oor hul koppe.

Regters word aangestel sonder enige moontlikheid om van hulle ontslae te kan raak; dit verseker dat hulle onafhanklik is. Die SAUK behoort in dieselfde posisie te wees, dat iemand aangestel moet kan word, volle vetroue geniet en in sy posisie kan aanbly.

Ek ken die argumente van onbekwaamheid, van probleme hier en daar, maar ek sê vir u, hierdie maak eintlik van die SAUK 'n skoothond na alle kante toe.

Ek praat nie eers van die feit dat dit nie so maklik is om van 'n Parlementslid hier ontslae te raak sonder 'n ingewikkelde regs- en administratiewe proses nie. Gaan probeer maar 'n bietjie om van u mense hier af te dank. Hierso, maklik soort van, gaan ontslae geraak word van SAUK raadslede, om sekere politieke doeleindes.

Die VF Plus gaan teen die wetgewing stem en neem graag deel aan die petisie uiteindelik om dit by die President te kry en dit daar te stop. Ek dank u. [Applous.] (Translation of Afrikaans paragraphs follows.)

[The SABC is a public broadcaster, not a state broadcaster. May it never become one, because then there will be trouble in South Africa.

The harsh reality is that the SABC to a large extent presently enjoys a monopoly on news. We do have SABC 3, which one can compare to eTv's English news, but the other news bulletins are all SABC throughout. That is why it is important for it to remain objective and neutral, while nobody gains control of it.

An independent judiciary is just as important as an independent broadcaster in control of news.

I don't want to take you back to Zimbabwe, but just take a look at what went wrong there. From 1980 onwards Robert Mugabe immediately gained control of the broadcasting system. This led to the problems we are faced with today.

How does one gain control of a broadcasting system? You do it in a subtle way. You hold a sword over the heads of the people there. You threaten them with instant dismissal at the least sign of divergence. Without any voice being raised everybody knows that in the end they must do what is expected of them, because there are bosses at their heels.

Judges are being appointed without any possibility of getting rid of them; this ensures their impartiality. The SABC should be in the same position, that someone can be appointed, enjoy full confidence and remain in his or her post.

I know the arguments about incompetence and problems here and there, but I am telling you that this is actually turning the SABC into a lapdog on all sides.

I am not even talking about the fact that it is not so easy to get rid of a Member of Parliament here without an intricate legal and administrative process. Just try to dismiss some of your people here. In this instance, kind of effortlessly, certain SABC board members are going to be done away with for certain political purposes.

The FF Plus will be voting against this legislation and would like to support the petition in order ultimately to present it to the President and to stop it there. I thank you. [Applause.]]

Mr S N SWART: Chairperson, the ACDP shares the sentiments expressed by the opposition parties. Whilst we support the NCOP amendment that removes the need for consultation with the Speaker on the appointment of the board, we clearly still maintain on record our opposition to the Bill in its entirety, which seeks to control the appointment of the members of the board without fair administrative action and their firing in terms of that.

In our view, there would be endless litigation if this Bill is passed in its present form. The intention is clear – to fire the board without what would be due administration. The ACDP, therefore, will not support the Bill in its entirety. I thank you. [Applause.]

Mr L M GREEN: Chairperson, the first object of the Bill is, of course, to allow for the Speaker to assist with appointing the SABC board. This should not have been a consideration worthy of the time spent on the matter in the portfolio committee. From the outset, the content of the Bill was unconstitutional and undemocratic. The portfolio committee should have then made a decision in principle not to consider the Bill.

The NCOP in having considered the Bill has come to the conclusion that it will be inappropriate of the executive to be directly involved with the selection of the SABC board. The amendments to the Bill by the NCOP reverse the one adopted by the NA and recommends that the powers of the executive will be limited with regard to the SABC board.

We must applaud the second Chamber for taking a stand in this regard. The FD, a member of the Christian Democratic Alliance, has always maintained that public broadcasting enterprises should not be used for purposes of political gain.

The purposes of the executive, in particular, in this regard must be subject to public scrutiny; and since the people have entrusted Parliament with that responsibility, it is our duty to exercise appropriate controls over the executives.

The elections in 2009 demand that the SABC we want is one that is committed to editorial independence and which ensures that election coverage is done without any bias towards any political party. This morning the SABC board met with political parties and promised that we can expect equitable and fair coverage of the 2009 elections. The Bill we will support will be one that informs the democratic principles of an open and transparent public broadcasting system. Anything less remains unacceptable. The FD will therefore not support the Bill.

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill, as amended, be passed.

Motion agreed to (Democratic Alliance, Inkatha Freedom Party, Independent Democrats, African Christian Democratic Party, United Christian Democratic Party, Freedom Front Plus and Federation of Democrats dissenting).

Bill, as amended, accordingly passed.

COMPANIES BILL

(Consideration of Bill)

Mr B A D MARTINS: Hon Chairperson and hon members, the Companies Bill provides for the repeal of the current Companies Act, Act 61 of 1973 and proposes a new legislative framework for the incorporation, registration, organisation and management of companies.

After conducting public hearings and a thorough consideration of the introduced Bill, the Portfolio Committee on Trade and Industry agreed on a number of substantive and legal technical amendments. Subsequently, the amending Bill, Bill No 61 of 2008 was sent to the NCOP for concurrence.

The HOUSE CHAIRPERSON (Mr A C Nel): Order! I'm sorry, hon Martins. Hon members, please lower your voices. Those leaving the Chamber, do so quietly. Continue.

Mr B A D MARTINS: Chairperson, during this process, upon further reflection on the amending Bill, a few errors were identified. Amendments aimed at rectifying inconsistencies in the use of terminology and the correction of printing errors were submitted to the Select Committee for Economic and Foreign Affairs. It is these amendments which are reflected in Bill No 61C of 2008 which were recently agreed upon by the Portfolio Committee on Trade and Industry.

I submit that Bill No 61D of 2008, incorporating the amendments embodied in Bill No 61C of 2008, be adopted by this honourable House. I thank you. [Applause.]

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: I move:

That the Bill, as amended, be passed.

Motion agreed to.

Bill, as amended, accordingly passed.

NATIONAL QUALIFICATIONS FRAMEWORK BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE AMENDMENT BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT BILL

(Consideration of Bill and of Report thereon)

There was no debate.

The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Mr Chairman, I move:

That the Bill be passed.

Motion agreed to.

Bill accordingly passed.

The House adjourned at 15:16.

__________

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

ANNOUNCEMENTS

National Assembly and National Council of Provinces

The Speaker and the Chairperson

1. Bills passed by Houses – to be submitted to President for assent

(1) Bill passed by National Assembly and National Council of Provinces on 19 November 2008:

(a) Mandating Procedures of Provinces Bill [B 8F – 2007] (National Council of Provinces – sec 76(2)).

(2) Bill passed by National Assembly on 20 August 2008:

(a) Constitution Fifteenth Amendment Bill [B 63B – 2008] (National Assembly – sec 74).

(3) Bills passed by National Assembly on 19 November 2008:

(a) Child Justice Bill [B 49D – 2002] (National Assembly – sec 75), with textual corrections (see Minutes of Proceedings of National Assembly, 19 November 2008).

(b) Broadcasting Amendment Bill [B 72B – 2008] (National Assembly – sec 75).

(c) Companies Bill [B 61D – 2008] (National Assembly – sec 75).

(d) National Environmental Management Amendment Bill [B 36D – 2007] (National Assembly – sec 76(1)).

(e) Medicines and Related Substances Amendment Bill [B 44D – 2008] (National Assembly – sec 75).

(f) Tobacco Products Control Amendment Bill [B 7D – 2008] (National Assembly – sec 76(1)).

(g) Prevention of and Treatment for Substance Abuse Bill [B 12D – 2008] (National Assembly – sec 76(1)).

(h) National Qualifications Framework Bill [B 33D – 2008] (National Assembly – sec 76(1)).

(i) General and Further Education and Training Quality Assurance Amendment Bill [B 35D – 2008] (National Assembly – sec 76(1)).

(4) Bills passed by National Council of Provinces on 19 November 2008:

(a) Constitution Fourteenth Amendment Bill [B 62B – 2008] (National Assembly – sec 74).

(b) General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill [B 64B – 2008] (National Assembly – sec 75).

(c) National Road Traffic Amendment Bill [B 39B – 2008] (National Assembly – sec 75).

2. Withdrawal of Bill

The Minister for the Public Service and Administration withdrew the following Bill on 11 November 2008:

(a) Public Administration Management Bill [B 47 – 2008] (National Assembly – sec 76(1)).

National Assembly

The Speaker

1. Message from National Council of Provinces to National Assembly in respect of Bills passed by Council and returned to Assembly

(1) Bills, subject to proposed amendments, passed by National Council of Provinces on 19 November 2008 and transmitted for consideration of Council's proposed amendments:

(a) National Prosecuting Authority Amendment Bill [B 23B – 2008] (National Assembly – sec 75) (for proposed amendments, see Announcements, Tablings and Committee Reports, 17 November 2008, p 2193).

(b) Criminal Procedure Amendment Bill [B 42B – 2008] (National Assembly – sec 75) (for proposed amendments, see Announcements, Tablings and Committee Reports, 18 November 2008, p 2260).

The Bills have been referred to the Portfolio Committee on Justice and Constitutional Development of the National Assembly for a report on the amendments proposed by the Council.

(c) South African Police Service Amendment Bill [B 30B – 2008 (Reprint)] (National Assembly – sec 75) (for proposed amendments, see Announcements, Tablings and Committee Reports, 17 November 2008, p 2193).

The Bill has been referred to the Portfolio Committee on Safety and Security of the National Assembly for a report on the amendments proposed by the Council.

(d) Bible Society of South Africa Act Repeal Bill [B 71B – 2008] (National Assembly – sec 75) (for proposed amendments, see Announcements, Tablings and Committee Reports, 13 November 2008, p 2135).

The Bill has been referred to the Portfolio Committee on Arts and Culture of the National Assembly for a report on the amendments proposed by the Council.

TABLINGS

National Assembly and National Council of Provinces

1. The Minister of Education

(a) Revised Strategic Plan of the Department of Education for 2008-2012 and the Operational Plans of the Department of Education for 2008/9.

COMMITTEE REPORTS

National Assembly

1. Report of the Portfolio Committee on Minerals and Energy on the National Radioactive Waste Disposal Institute Bill [B41B-2008] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Minerals and Energy, having considered the National Radioactive Waste Disposal Institute Bill [B41B-2008] (National Assembly – sec 75), and the proposed amendments by the National Council of Provinces (Announcements, Tablings and Committee Reports, 17 October 2008, p 1921), referred to the Committee, reports the Bill with amendments [B41C-2008].

2. Report of the Portfolio Committee on Public Service and Administration on the Public Service Commission's Fourth Consolidated Monitoring and Evaluation Report of 2007, adopted by the Committee on 19 November 2008:

1. Introduction

The Public Service Commission (PSC) was established in terms of The Public Service Commission Act (No.46 of 1996) and Chapter 10 of the Constitution (No. 108 of 1996). Its powers and functions are set out is section 196 (4) of the Constitution. It states: "the powers and functions of the Commission are –

(a) to promote the values and principles set out in section 195, throughout the public service;

(b) to investigate, monitor and evaluate the organisation and administration, and the personnel practices of the public service;

(c) to propose measures to ensure effective and efficient performance within the public service;

(d) to give directions aimed at ensuring that personnel procedures relating to recruitment, transfers, promotions and dismissals comply with the values and principles set out in section 195 (1);

(e) to report in respect of its activities and the performance of its functions, including any finding it may make and directions and advice it may give, and to provide an evaluation of the extent to which the values and principles set out in section 195 are complied with"

The Fourth Consolidated Monitoring and Evaluation (M&E) Report is a product of the legislated functions and powers of the PSC. It reports on the implementation of the nine constitutional values and principles governing public administration listed in Section 195(1) of the Constitution.

2. Overview of the Fourth Consolidated Public Service Monitoring and Evaluation Report

The focus of the "Fourth Consolidated M&E Report" was service delivery. This focus influenced the selection of the Departments to be evaluated. Most departments responsible for service delivery are provincial departments. The sample of sixteen departments that the PSC evaluated included the following:

National Departments:

Department of Public Enterprises Department of Labour Department of Water Affairs and Forestry Department of Safety and Security

Provincial Departments:

Western Cape: Department of Local Government and Housing Gauteng: Department of Community Safety Limpopo: Department of Agriculture Gauteng: Department of Sports and Recreation North West: Department of Economic Development and Tourism Eastern Cape: Department of Public Works Kwa-Zulu Natal: Department of Education Eastern Cape: Department of Local Government and Traditional Affairs Northern Cape: Department of Sport, Arts and Culture Eastern Cape: Department of Social Development Mpumulanga: Department of Safety and Security Free State: Department of Local Government and Housing

The methodology used was to score the departments between zero and five on the achievement of performance indicators as identified by the PSC. Five was the highest score, and meant that the departments were implementing legislation and governmental policies in line with the nine basic values and principles outlined in Section 195(1) of the Constitution. Zero was the lowest score and meant that departments were not meeting the requirements of legislation and policies governing the public service.

Overall, the National Department of Public Enterprises scored the highest (4.33 out of 5) for the 2006/07 research cycle. Thirteen of the sixteen departments scored less than three overall. This meant that thirteen of the sixteen departments sampled were not implementing policies that govern the administration in the public service.

Some of the challenges raised in the report were:

1) Departments experienced challenged in implementing poverty reduction projects, due to lack of guidelines. Difficulties were experienced in engaging with communities to achieve greater beneficiary participation and the alignment of projects with local development initiatives.

2) Departments, whilst having shown an improvement in the preparation of their annual reports, continued to face difficulties when it came to meeting all of the guidelines for annual reports. This was most evident with regard to ensuring public access to such reports.

3) Departments continued to miss Employment Equity targets, and failed to properly consider diversity management issues.

The report also provided an overview of performance over time. The overall scores fluctuated but were relatively low. However, an improvement in scores was reported as 'promising', and was influenced by the improvements in reporting standards. The change observed could be attributed to the implementation of reporting requirements of the Auditor-General, the International Financial Reporting Standards and the Public Audit Act (No. 25 of 2004).

3. PSC Findings

The Department of Public Enterprises was noted as the top performing department. There were a few departments that performed well on specific constitutional principles. The Department of Water Affairs and Forestry was highlighted as a department that scored 100 per cent for the "Public Participation in Policy-Making" constitutional basic value.

The Eastern Cape Provincial Department of Public Works was noted for its poor performance in terms of its average time taken to fill a vacancy, from the date that the post has been advertised to the date of appointment. The average time taken to fill a vacancy was 949 days. This practice contravenes the eighth constitutional value of "Good human resource management, career development and practices".

Absenteeism was highlighted as the main reason for misconduct in the departments studied. The implementation of attendance registers could resolve this systemic problem.

Many of the problems identified by the PSC over the years still persisted. Reasons noted by the PSC for the lack of improvement in performance were the management and leadership of departments, and the lack of continuity and the high staff turnover. This was found to be one of the underlying challenges for departments to achieve the necessary stability required for effective policy implementation.

Another important challenge that the PSC noted was the limited use of internal monitoring and evaluation by departments. The PSC asserted that unless management kept abreast of developments within their respective departments, intervention could prove difficult when required.

3.1 PSC Recommendations

The PSC made the following recommendations, amongst others:

Departments need to ensure that poverty reduction projects are well managed and implemented in accordance with best management development practice. Also, greater efforts must be made to integrate these projects with local processes. The Department of Public Service and Administration should assist departments with their policy formulation process, especially with regards to public participation. The PSC has formulated guidelines, which should be used by departments. Fraud Prevention Plans aligned with department specific needs, identified during the risk assessment exercises, should be developed, formally adopted and implemented. Departments should develop their own department-specific policy on recruitment and selection. The PSC toolkit on recruitment and selection can be utilised as a guide in this regard. Departments should put in place a strategy of prioritising skills development activities to ensure that the activities that have been planned are implemented and that the impact of the training on the enhancement of service delivery is assessed. Departments must adhere to the requirements of the Employment Equity Act (Act 55 of 1998).

4. Conclusion

The PSC's findings in the report reflect negatively on the public service's ability to deliver services, and the embodiment of the nine basic values, as outlined in Section 195(1) of the Constitution. There were a few departments that scored above average and in some instances 100 per cent for specific performance indicators. The PSC made many valuable recommendations in its report. Overall, the Committee was pleased with the report.

5. Recommendations

It is against the above report that the Committee recommends the following:

5.1 Guidelines for public participation in policy-making should be developed by the Department of Public Service and Administration, in conjunction with the Department of Water Affairs and Forestry and the Public Service Commission. Progress on this initiative should be communicated to Parliament by March 2009 in writing.

5.2 Departments, as per the PSC report, should put in place a strategy of prioritising skills development activities. The Public Administration Leadership and Management Academy (PALAMA) should be consulted by the relevant departments. Progress of the formulation of the strategy should be reported to Parliament by March 2009 in writing.

5.3 Departments should ensure that planned training is implemented and that the impact of the training on the enhancement of service delivery is monitored. This should be done in conjunction with the Public Administration Leadership and Management Academy (PALAMA). Progress on the implementation of planned training should be communicated to Parliament by March 2009 by the departments identified by the PSC in its M&E Report.

5.4 A review of the Disciplinary Codes and Procedures should be done, with a view of tightening enforcement of disciplinary procedures, specifically related to absenteeism. The Department of Public Service and Administration should report to Parliament by March 2009 on progress made with the review of the disciplinary codes and procedures.

5.5 Dispute resolution time periods, as set out in the Disciplinary Codes and Procedures should be adhered to by the departments mentioned in the PSC report. Unresolved disputes should be resolved as a matter of urgency, and reported to the PSC before March 2009.

5.6 Members of the Executive and Director-Generals of the departments sampled in the PSC's Fourth Consolidated M&E Report should report to Parliament on progress with implementing recommendations from the above-mentioned report by the end of March 2009.

5.7 The PSC should report in writing to Parliament by the end of March 2009 on progress with departmental implementation of recommendations from the Fourth Consolidated Monitoring and Evaluation Report 2007.

5.8 The PSC should consider as part of its future M & E reports a section dedicated to Departmental implementation of previous PSC M& E report recommendations.

Report for be considered.

3. Report of the Portfolio Committee on Public Service and Administration on the State of the Public Service Report 2008, dated 18 November 2008:

1. Introduction

The basic values and principles governing public administration are set out in the Constitution (Act 108 of 1996) under Section 195 (1). It states "Public administration must be governed by the democratic principles enshrined in the Constitution, including the following principles:

(a) A high standard of professional ethics must be promoted and maintained.

(b) Efficient, economic and effective use of resources must be promoted

(c) Public administration must be development orientated.

(d) Services must be provided impartially, fairly, equitably and without bias.

(e) People's needs must be responded to, and the public must be encouraged to participate in policy-making.

(f) Public administration must be accountable

(g) Transparency must be fostered by providing the public with timely, accessible, and accurate information.

(h) Good human-resource management and career-development practices, to maximise human potential, must be cultivated.

(i) Public Administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation".

The State of the Public Service Report is an annual report that is compiled from a series of monitoring and evaluation reports that are periodically compiled. Each edition of the report highlights progress and challenges faced in the Public Service, whilst simultaneously re-enforcing the principles of accountability and transparency.

The reports also served as an important advocacy and learning function; as the focus on these reports strengthened debates on improving public service performance. The report presented was the seventh edition of the report since 2004.

2. Overview of SOPS report

The committee received a briefing by the Public Service Commission (PSC) on the State of the Public Service Report 2008 (SOPS Report) on the 14 May 2008. This report will focus on the findings and recommendations of the SOPS report per constitutional principle.

2.1 A high standard of professional ethics must be promoted and maintained.

The SOPS report highlighted that a range of key policy instruments, frameworks and commitments to several multi-lateral anti-corruption agreements were in place by 2004. After 2004, milestones towards supporting and deepening implementation included the promulgation of the Prevention and Combating of Corruption Activities Act (Act 12 of 2004), and the development of guidelines on the implementation of the Act.

The National Anti-Corruption Hotline (NACH) was the most visible, and collaborative anti-corruption effort since 2004. The NACH has become the most widely used facility to report acts of alleged corruption. The partnership approach to anti-corruption promoted by the National Anti Corruption Forum was further strengthened with the adoption in June 2005 of the National Anti-Corruption Programme.

The post-2004 ethics landscape also witnessed renewed debates on conflicts of interest beyond merely declaring potential conflicts of interest. However, the PSC was disappointed by the limited progress on the policy options it proposed in this area in 2006. An important milestone in 2006 was when South Africa became the eighth country that underwent a voluntary review process through the African Peer Review Mechanism in 2006. Its institutions and legislation on anti-corruption was commended.

The overall low rate of feedback from departments (36%) regarding cases of alleged corruption was concerning, as this marred the efficacy of the Anti-corruption hotline. All departments sampled had not met the minimum anti-corruption requirements. The high number of unresolved cases affirmed perceptions of a corrupt Public Service. The PSC recommended that an investment of resources in investigative capacity-building should be prioritised, as this would progressively improve the standard of professional ethics in the public service.

The Financial Disclosure Framework is a mechanism to allow staff in the public service to disclose private interests they have in order to avoid conflicts of interests. It was highlighted that the rate of returns for the Financial Disclosure Frameworks at 85% fell short of the 100% return rate required. The under reporting, the PSC found in terms of the framework, pointed to poor political and administrative leadership which put the Public Service at risk around potential conflicts of interest. The PSC highlighted that the lack of a national integrity system could be a cause of this underreporting; the system would take into consideration all the current tools that exist to fight corruption, but are not yet aligned.

The PSC recommended that a 100% return rate of Financial Disclosures should take place and that unethical conduct be identified and dealt with. Policy gaps around dual employment should also be dealt with. The Anti-Corruption summit taking place in 2008 could serve as a platform for the promulgation of interventions.

2.2 Efficient, economic and effective use of resources must be promoted

The adherence to this principle is difficult to monitor, as it is difficult to objectively determine how resources could be effectively and efficiently utilised; and implies that productivity could be standardised without taking into consideration the current context of a skills shortage that the public service is in. The foundation for greater adherence with the principle was, however laid with the introduction of the Public Finance Management Act (No. 1 of 1999) (PFMA), which deals specifically with measurable and quantifiable resources.

The introduction of nationally uniform sector-specific budget structures has helped to simplify budget structures and facilitate comparisons of performance between provinces after 2004. There was a reported shift from narrow compliance based performance reporting towards reporting focused on assessment of value delivered. Overall, there has been a decrease in the level of under-spending. This suggested that departments were progressively overcoming difficulties they experienced with spending their budgets.

A recurring concern over the period under review has been the practice of unauthorised, irregular, fruitless and wasteful expenditure. Such forms of expenditure are not in the interest of efficiency, effectiveness and economy. It is also in contravention of sections of the Public Finance Management Act (No. 1 of 1999).

It was observed that a significant increase in the number of misconduct cases was reported by departments. The number of cases reported was 1042 cases in 2006/7. Section 86 of the PFMA outlines criminal proceedings that should result from offences, and penalties that should be enforced. The cost of the misconduct reported amounted to R45 million in 2005/6. Departments need to ensure that they also increase the rate of recovering money from officials involved in acts of financial misconduct

The PSC recommends that in order to bring an end to the practice of unauthorised, fruitless, irregular and wasteful expenditure, departmental performance management and disciplinary processes should decisively deal with unacceptable forms of expenditure.

2.3 Public Administration must be development oriented

The Millennium Development Goals (MDGs) were promulgated as government's development agenda after 1994. The MDGs are:

Eradicate extreme poverty and hunger; Achieve universal primary education; Promote gender equality AND empower women; Reduce Child mortality; Improve maternal health; Combat HIV/AIDS, malaria and other diseases; Ensure environmental stability; and Develop a global partnership for development.

Addressing poverty has been a critical objective. The economic growth of the country since 2004 has enabled an increase in public expenditure by over 9% per annum since 2004 on services, such as housing, education, income support and primary health. The Expanded Public Works Programme created 854 406 job opportunities nationally. The programme aimed to create 1 112 000 jobs by September 2007. This meant that programme achieved a 77% implementation rate.

The introduction of no-fee schools also promotes the developmental principle of the public service, with 55,2% of public schools open to the poor. There has also been a broadening of access to services, such as the provision of piped water, basic sanitation facilities and the delivery of subsidised houses. The report found that attention should be paid to the infrastructure that government has created to support development.

Approximately 25% of the population benefit from social grants. The rapid increase in the number of beneficiaries suggests that what was intended as a safety net is becoming an increasingly costly intervention. It was found that this programme's sustainability was questionable.

Steps have also been taken to develop a poverty matrix for the country. This matrix, however, should not lead to oversimplifications of the lived experiences of the poor. PSC studies showed that active beneficiary participation and alignment of projects with local development plans remain a challenge. The co-ordination of poverty reduction programmes also remained a challenge. The challenge of inequality also prevails, with intra-race inequality increasing as poverty is reduced.

The PSC recommended that the work that has been initiated to develop and implement a comprehensive poverty reduction strategy should be accelerated. Monitoring and evaluation of government's poverty reduction programmes is essential to understanding appropriate interventions to alleviate poverty.

2.4 Services must be provided impartially, fairly, equitably and without bias

The SOPS report noted that there have been important achievements for this principle. Inequality between races has dropped to 41% in 2006, compared to 45% in 2004. Policies like Broad Based Black Economic Empowerment (BBBEE) have elevated the prospects of previously disadvantage individuals. In 2006 mergers and acquisitions of BEE amounted to 15% of total mergers and acquisitions and totalled R56 billion. However, there are growing concerns that policies of this nature have exacerbated intra-racial inequality, as only some individuals in a particular race group are able to take advantage of the opportunities.

Improvements have also been noted with regard to access to education, with Africans comprising 60% of university and university of technology students.

The review of Institutions Supporting Democracy has been an important development as it re-enforces and promotes the institutions that promote fairness and equity.

The SOPS report noted the efforts to improve compliance to the Promotion of Administrative Justice Act (PAJA). Training was offered by the Dept of Justice and Constitutional Development. However, after 7 years it is a concern that progress remains slow and procedures are not adhered to. This may be due to the lack of sanctions for non- compliance. This concern is compounded by the fact that very few departments have service standards in place, and when members of the public complain, redress mechanisms are either not available or are ineffective.

The PSC found that the high investment in raising awareness of PAJA and training for the past seven years have not translated into commensurate improvement in how the decision-making is carried out. Of the 53 departments that the PSC evaluated on PAJA compliance, it was found that the majority of departments were not meeting their basic compliance requirements.

Experience in the promotion of whistle-blowing in the public service suggests that fear of victimisation is an important factor affecting the public's involvement in reporting allegations of corruption. The possibility that fear of victimisation impacts on the implementation of PAJA, the SOPS report warns, should not be ignored. More education for the public on their rights is required. It was recommended that with awareness programmes like 'knowing your rights' campaigns, complaint channels and recourse mechanisms in departments should be functional and operational.

2.5 People's needs must be responded to and the Public must be encouraged to participate in policy making

Recently, the service delivery protests drew attention to the need for public participation in policy making. This showed that it was necessary that government-community relations should be stable in the interest of good governance.

Izimbizos, which are government meetings with communities, have been used to strengthen relations with communities. Although these meetings provided opportunities for communities to communicate directly with government, it did not allow for government to communicate with communities, the progress of implementing concerns raised at Izimbizos. The lack of a proper feedback loop is a concern the SOPS report highlighted. This does not allow communities to track the progress or implementation of concerns they raised at izimbizos.

Taking into consideration that Government hosted Izimbizos since 2000, when it was adopted by Cabinet, it does pose a problem for monitoring and evaluating the implementation of decisions taken at forums like Izimbizos.

The 3000 Community Development Workers were deployed in 2000 participating municipalities, and play an important role in supporting communities to access government services. They also participate in local development initiatives, but their impact needs to be monitored.

A recurring problem remains the lack of guidelines prescribing minimum levels of consultation. This is an important indicator to see how well the public is encouraged to participate in policy-making. Given the challenges of creating a common understanding of participatory governance; formulating and implementing minimum guidelines on consultation, by departments, is important.

A recurring challenge is the lack of redress mechanisms in terms of the Batho Pele Principle of Redress. A very small proportion of departments (3-5%) rated themselves as excellent in the implementation of this principle.

Since 2003 the PSC completed 4 Citizen Satisfaction surveys and the average satisfaction level was 67%, with the Departments of Transport, Correctional Services, Home Affairs and Housing receiving the lowest ratings. It was important to look closely at what citizens were saying in these surveys. For example only 44% of respondents indicated satisfaction with the crime reporting services of South African Police Services (SAPS). This means that 56% of the respondents were not satisfied with the crime reporting by the SAPS. This implies that the reporting by the SAPS is not satisfactory. Therefore, when SAPS reports an annual murder rate of 20 000 and 52 000 rapes, the veracity of the figures reported should be questioned.

The SOPS report recommended that Government should look critically at strengthening public participation in policy formulation, with a view of formulating a policy on how this can be done across departments.

2.6 Public Administration must be accountable

To facilitate accountability various instruments, such as the Promotion of Access to Information Act (PAIA) and PAJA have been put in place to allow citizens certain levels of unfettered access to information held by departments.

A key instrument for accountability is the Performance Management and Development System which, since 2006, requires senior managers to incorporate all the Batho Pele principles into their work plans. Accountability has also been extended by disqualifying HoDs from receiving financial performance rewards if their department under- or over spend materially. The development of a Government Wide Monitoring and Evaluation system during the period under review also marked an important development in efforts to improve accountability for performance.

Qualified audit opinions have remained a source of concerns over the period under review, with some departments receiving such an opinion for fours years in a row. This goes against the principle of an accountable public administration. It also raises questions about the seriousness with which government's responsibility of accountability is being taken by the public service.

The PSC report found that there was no reason for the cycle of qualified audits and poor performance management not to be broken decisively. The poor use of performance agreements (PAs) as an accountability mechanism was also a recurring concern; these agreements were not always entered into, or were concluded late. In some instances, officials receive performance bonuses without concluding PAs. It was an indictment on the Executive and Heads of Departments that the completion of PAs was ignored to a point where the President found it necessary to highlight it in the State of the Nation Address.

The PSC has previously proposed a round-table discussion on the challenges of effective implementation of the Performance Management Development System for Heads of Departments. The report recommended that a meeting should be convened as a matter of urgency. It was further recommended that the use of organisational performance assessment should also be considered to provide further insight into the performance of departments.

2.7 Transparency must be fostered by providing the public with timely, accessible and accurate information

The transparent sharing of information enables the public to participate in policy making and also assist the public in its decision-making about the service Government provides. Government's Programme of Action is published on the government's website and progress on implementation updated every two months. Whilst progress has been made in terms of Annual reports, there are still weaknesses with full adherence to the Treasury Guidelines.

Many of the weaknesses in departments are attributed to the non-compliance with policy requirements, such as appointing a Deputy Information Officer. Departments should appreciate those mechanisms that promote access to information, which in return also boosts public confidence in government institutions. It is also important that Annual Citizens reports are completed, as required by prescripts. The development of Annual Citizens` Reports should be something each department commits to. There is no reason why departments work plans and quarterly plans are not published on department's websites. This would also assist in making the public aware of how departments implement their annual strategic plans.

Public confidence is also influenced by the transparency and reporting on how government manages the private contributions that members of the public offers public servants. Only 4 in 10 departments keep gift registers.

2.8 Good Human resource management and career development Practices, to maximise Human Potential, must be cultivated

As interpreters and implementers of policy, public servants play a critical role in service delivery and their potential should be optimised. There has been a shift in the Public service away from past management practices that were compliance driven, to approaches that harness human potential and support good performance. The Accelerated Development Programme is a useful initiative, targeting middle managers from designated groups to prepare them for the challenges of functioning in senior management. However, the programme should be supported and monitored. The Khaedu training programme also assists in keeping senior managers in touch with up-to-date implementation practices.

A stable environment is required for effective Human Resource Management and collective bargaining has been used to reach agreement on a wide range of issues. The massive Public Service strike of 2007 should lead to honest reflection on what went wrong with the process.

The long period of time taken to fill posts remains a challenge. Line Managers should also play an active role in Human Resource management. The report recommends that skills development should also be prioritised.

2.9 Public Administration must be broadly representative of the South African People

It is important that the Public Service mirrors the South African population in all its diversity. The effectiveness of measures such as Affirmative Action (AA) needs to be carefully considered at this juncture as there are debates around whether AA is still necessary and whether it is in fact not perpetuating class divisions. The most visible success has been the extent to which the Public Service reflects the demographic composition of the country. Race representivity has continued to improve with the figure for African employees increasing from 74% to 80% in 2007.

Concerns were raised that departments have taken exceptionally long to conform to gender representivity target of 30%; it has been reported that it may take longer to reach the revised target of 50% at Senior Management Services level.

The greatest challenge has been in improving disability representivity, which at 1,79% is below the target of 2%. The hearings by the PSC attempted to provide an appreciation of the challenges faced by departments in the achievement of disability representivity. The development of a central database for people with disabilities should assist, and strategic partnerships in this regard are important.

To improve gender mainstreaming focus needs to move beyond numeric targets to also consider issues of family friendly policies and improved gender relations in the workplace. It is important that representivity continues to be monitored. It is also important that diversity management receives attention and that efforts to create dynamic, co-operative and productive work place cultures are enhanced.

3. The PSC SOPS Roundtable report.

The Committee noted the excellent recommendations and questions that participants at the SOPS roundtable, held earlier this year, added to the discussion around the report.

Some key questions were asked by Professor McLennan in the Roundtable discussion the PSC hosted. The Committee believes that these discussions will assist the PSC in its mandate to better monitor and evaluate the administrative practices in the Public Service.

4. Conclusion

The Public Service Commission found that overall, good progress has been made during the period under review. However, there should be an appreciation of the fact that more needs to be done, and that the quality and pace of service delivery should be accelerated.

The Public Service has now had sufficient operational experience in implementing new policies. It is important that effective monitoring of performance continues and that action is taken where concerns are identified.

5. Recommendations

It is against the above report that the Committee recommends that:

Departments identified in the Public Service Commission's report should implement recommendations made by the Public Service Commission in its State of the Public Service Report 2007. Progress on the implementation of this recommendation should be reported to Parliament by June 2009, in writing. The Public Service Commission should report to the Committee the success of Departmental implementation of the recommendations made in its State of the Public Service report, in writing to Parliament, by June 2009.

Report to be considered.

4. Report of the Portfolio Committee on Minerals and Energy on the Minerals and Petroleum Resources Development Amendment Bill [B10D-2007] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Minerals and Energy, having considered the Minerals and Petroleum Resources Development Amendment Bill [B10D-2007] (National Assembly – sec 75), and the proposed amendments by the National Council of Provinces (Announcements, Tablings and Committee Reports, 20 October 2008, p 1972) referred to the Committee, reports the Bill with amendments [B10E-2008].

5. Report of the Portfolio Committee on Minerals and Energy on the Mine Health and Safety Amendment Bill [B54 - 2008] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Minerals and Energy, having considered the Mine Health and Safety Amendment Bill [B54 - 2008], (National Assembly – sec 75), and the proposed amendments by the National Council of Provinces (Announcements, Tablings and Committee Reports, 24 October 2008, p 2023), referred to the Committee, reports the Bill with amendments [B54A – 2008].

6. Report of the Portfolio Committee on Justice and Constitutional Development on the Draft Rules of Procedure for Applications to Court in terms of the Promotion of Access to Information Act, 2000 (Act No 2 of 2000), dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the Draft Rules of Procedure for Applications to Court in terms of the Promotion of Access to Information Act, 2000 (Act No 2 of 2000), referred to the Committee (Announcements, Tablings and Committee Reports, 7 April 2008, p 537), recommends that the Draft Rules be approved.

The Committee, however, wishes to make the following additional comments:

These Rules have been outstanding for some time and the Committee finds this regrettable, as the absence of these Rules impacts on the effective implementation of the Promotion of Access to Information Act; an Act which lies at the heart of our constitutional democracy.

The Committee is also of the view that the consultation process between the Rules Board and various stakeholders could have been more comprehensive. For that reason, the Committee will forward the 4 submissions received (from ODAC, the South African Human Rights Commission, Eskom and the South African History Archive) to the Rules Board for its attention.

Given the importance of these Rules and the issues raised in the various submissions, the Committee requires that the Rules Board consider the submissions, review the content and implementation of the Rules and report back to the Committee within 6 months of the new term of Parliament in 2009.

On the procedure to be followed by the Rules Board for the amendment or approval of any Rules, the Committee would suggest that any discussions or consultation around new Rules or amendments to existing Rules should take place at an earlier stage. In other words, that the Rules Board should ideally consult various roleplayers and reach agreement with the Minister of Justice and Constitutional Development before formally submitting the Rules to the Minister for approval. It would also make sense if, in future, the Committee was provided with the opportunity to comment, albeit informally, before any amendments to the Rules are tabled in Parliament for approval.

Report to be considered.

7. Report of the Portfolio Committee on Justice and Constitutional Development on the suspension/removal from office of Magistrate X I R Masimini, dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the report on the suspension/removal from office of Magistrate X I R Masimini tabled by the Minister for Justice and Constitutional Development in terms of section 13(4)(a) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

1. The Portfolio Committee noted from the report tabled by the Minister for Justice and Constitutional Development that the Magistrates Commission resolved on 7 March 2008 to recommend that Mr Masimini be removed from office on the ground of misconduct.

2. The Portfolio Committee noted that Mr Masimini was convicted in a court of law of assault with the intent to do grievous bodily harm emanating from an incident at a tavern in the district of Ezibeleni. He assaulted a woman by pulling her by her hair and hitting her with a glass tumbler on her chin, causing an open wound.

3. The Portfolio Committee further noted that Mr Masimini made a false or incorrect statement, when on 1 November 2006 he applied for an appointment to the Regional Court Bench, by failing to disclose in his application that there was a criminal case pending against him and that he had appeared as an accused in a court of law.

4. The Portfolio Committee was advised that Mr Masimini was on a previous occasion found guilty of misconduct on three (3) counts in that he had used "foul and/or injudicious language in court", that the Minister for Justice and Constitutional Development suspended Mr Masimini from office and that Mr Masimini's remuneration has been withheld.

5. The Magistrates Commission resolved to recommend that Mr Masimini be removed from office in terms of section 13(4)(a)(i) of the Magistrates Act.

6. In terms of section 13(4)(c) of the Magistrates Act, 1993, Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of a magistrate so suspended is recommended.

7. The Portfolio Committee therefore recommends that the National Assembly resolves to pass a resolution not to restore Mr Masimini to the office as a Magistrate in terms of section 13(4)(c) of the Magistrates Act, 1993.

Report to be considered.

8. Report of the Portfolio Committee on Justice and Constitutional Development on the provisional suspension from office of Magistrate A Bacharam, dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the report on the provisional suspension from office of Magistrate A Bacharam tabled by the Minister for Justice and Constitutional Development in terms of section 13(3)(b) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:

1. The Portfolio Committee noted from the report tabled by the Minister for Justice and Constitutional Development that the Magistrates Commission resolved on 7 March 2008 to recommend that Ms Bacharam be provisionally suspended from office in terms of section 13(3)(a) of the Magistrates Act, 1993.

2. The Portfolio Committee noted that Ms Bacharam has been criminally charged for defeating or obstructing the Administration of Justice. It is alleged that Ms Bacharam was charged for a traffic offence and that she was summoned to appear in the Scottburgh district court on 13 December 2005. She had an option to pay an admission of guilty fine of R300-00 (three hundred rand). On 27 October 2005 she was approached in her office by the Sheriff for service of the summons. Instead of accepting service of the summons she called an interpreter to her office and requested her to accept service of the summons on her behalf. The interpreter subsequently signed on the return of service and left Ms Bacharam's office. On 13 December 2005, the date of trial, all traffic summonses were brought before Ms Bacharam. She dealt with the cases, including her own. She herself struck case no B7309/05 in which she was an accused, from the roll. The case was thereafter filed. She did not pay the admission of guilt fine.

3. A misconduct inquiry was set down by the Magistrates Commission for 30 May 2008. Ms Bacharam's representative requested a postponement of the inquiry pending the finalisation of the criminal case against her.

4. In terms of section 13(3)(c) of the Magistrates Act, 1993, Parliament must, as soon as is reasonably possible, pass a resolution as to whether or not the provisional suspension of a magistrate is confirmed.

5. The Portfolio Committee therefore recommends that the National Assembly resolves to confirm the provisional suspension of Ms Bacharam in terms of section 13(3)(c) of the Magistrates Act.

Report to be considered.

9. Report of the Portfolio Committee on Justice and Constitutional Development on the suspension/removal from office of Magistrate S P Zwelibanzi, an additional magistrate at Ngqamakhwe, dated 19 november 2008

The Portfolio Committee on Justice and Constitutional Development, having considered the report on the suspension/removal from office of Mr SP Zwelibanzi, tabled by the Minister of Justice and Constitutional Affairs in terms of section 13(4)(a) of the Magistrates Act, 1993 (Act 90 of 1993), reports as follows:

1. The Portfolio Committee noted from the report tabled by the Minister of Justice and Constitutional Development, that the Magistrates Commission on 22 November 2007 resolved to recommend the removal from office of Mr SP Zwelibanzi in terms of section 13(4)(a) of the Magistrates Act, 1993.

2. The Portfolio Committee noted that on 19 December 2007 the Minister of Justice and Constitutional Development on the basis of the Commission's recommendation that he be removed from office on the ground of misconduct, suspended Mr Zwelibanzi from office in terms of section 13(4)(b) of the Magistrates Act.

3. The Portfolio Committee further noted that Mr Zwelibanzi was convicted of misconduct on two previous occasions (in 1998 and 2003) for infringements that included unauthorized absence from office, failure to enter results of criminal trials in the criminal record book, failure to timeously respond to reviewing judges' queries and failure to timeously refer a case for automatic review. He had also been convicted of driving a motor vehicle whilst intoxicated, and had been suspended from office for a period of six (6) months by the then Minister of Justice and Constitutional Development. At the most recent misconduct hearing (2007), Mr Zwelibanzi had pleaded guilty to all the charges levelled against him. He again, on numerous occasions absented himself from office without leave or valid cause.

4. In terms of section 13(4)(c) of the Magistrates Act, Parliament must, as soon as is reasonably possible pass a resolution as to whether or not the restoration of Mr Zwelibanzi to the office of magistrate is recommended.

5. The Portfolio Committee is of the view that Mr Zwelibanzi is not a fit and proper person to hold the office of magistrate any longer and therefore recommends that the National Assembly resolves not to restore Mr Zwelibanzi to his office in terms of section 13(4)(c) of the Magistrates Act, 1993.

Report to be considered.

10. Report of the Portfolio Committee on Justice and Constitutional Development on the Magistrates' Courts: Amendment of Rules of Court and the Amendment of the Rules regulating the conduct of the proceedings of the Provincial and Local Divisions of the High Court of South Africa, in accordance with section 7(c) of the Criminal Procedure Amendment Act, 2003 (Act No 42 of 2003, dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the Magistrates' Courts: Amendment of Rules of Court and the Amendment of the Rules regulating the conduct of the proceedings of the Provincial and Local Divisions of the High Court of South Africa, in accordance with section 7(c) of the Criminal Procedure Amendment Act, 2003 (Act No 42 of 2003), recommends that the Rules be approved.

The Portfolio Committee, however, wishes to make the following further comments:

The Committee regrets the delay in the finalization of these Rules. The Committee does accept the explanations given by the Rules Board and the Department of Justice and Constitutional Development and understands that much of the delay has been caused by the procedure that has been followed. The Committee further notes that the Rules Board and the Department have determined a less cumbersome procedure in the process of amending Rules in future.

The Committee would suggest that, with regards to the procedure, any discussions and consultation around amendments to the Rules should take place at an earlier stage. In other words, that the Rules Board should consult various roleplayers and should ideally reach agreement with the Minister of Justice and Constitutional Development before formally submitting the Rules to the Minister for approval.

It would also make sense if, in future, the Committee was provided with the opportunity to comment, albeit informally, before any amendments to the Rules are tabled in Parliament for approval.

The Committee will also raise the issue of procedure in its exit report for the attention of the Committee in the new term of Parliament in 2009.

The Committee wishes to note that the Judicial Matters Amendment Bill is likely to be passed by Parliament in due course and may possibly necessitate further amendments to these Rules in future.

Report to be considered.

11. Report of the Portfolio Committee on Justice and Constitutional Development on the National Prosecuting Authority Amendment Bill [B23B - 2008] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the National Prosecuting Authority Amendment Bill [B23B - 2008] (National Assembly – sec 75) and the proposed amendments by the National Council of Provinces (Announcements, Tablings and Committee Reports, 17 November 2008, p 2193) referred to it, reports the Bill with amendments [B23C-2008].

12. Report of the Portfolio Committee on Safety and Security on the South African Police Service Amendment Bill [B 30B- 2008] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Safety and Security, having considered the South African Police Service Amendment Bill [B 30B- 2008] (National Assembly - sec 75) and the proposed amendments of the National Council of Provinces (Announcements, Tablings and Committee Reports, 17 November 2008, p 2193) reports the Bill with amendments [B 30C-2008].

13. Report of the Portfolio Committee on Safety and Security on the Second Hand Goods Bill [B 2D -2008] (National Assembly – sec 76), dated 19 November 2008:

The Portfolio Committee on Safety and Security, having considered the Second Hand Goods Bill [B 2D - 2008] (National Assembly – sec 76), amended by the National Council of Provinces and referred to the Committee, recommends that the Bill not be agreed too.

14. Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Procedure Amendment Bill [B42B-2008] (National Assembly – sec 75), dated 19 November 2008:

The Portfolio Committee on Justice and Constitutional Development, having considered the Criminal Procedure Amendment Bill [B42B-2008] (National Assembly sec 75) and the proposed amendments by the National Council of Provinces (Announcements, Tablings and Committee Reports, 18 November 2008, p 2260), reports the Bill with amendments [B42C-2008].