Hansard: NCOP :Questions for Oral Reply: Deputy President; Cluster 4: Economics

House: National Council of Provinces

Date of Meeting: 04 Mar 2014

Summary

No summary available.

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Minutes

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 31

WEDNESDAY, 5 MARCH 2014

PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES

The Council met at 14:05.

The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.

The CHAIRPERSON OF THE NCOP

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 31

Start of Day

PRECEDENCE TO BE GIVEN TO THIRD ORDER OF THE DAY

(Announcement)

CHANGE IN LEGAL PRACTICE BILL NUMBER

The CHAIRPERSON OF THE NCOP: Hon members, I have received a request that precedence be given to the Third Order of the Day, immediately after the motions and, further, that the Legal Practice Bill number should read [B 20D - 2012] instead of [B 20B – 2012].

Question agreed to in accordance with section 65 of the Constitution.

Does any member wish to give notice of a motion? Does any member wish to move a motion without notice? Hon Sinclair ...

Mr M J R DE VILLIERS: Chairperson, can I address you? On a point of order: We, as the Whips, did not receive any information that motions would be on this afternoon's agenda. We also did not make that decision in the Whips' Forum. This is my information.

Ms M G BOROTO: Chairperson, I do not know what happened. You should have been informed that there would not be any motions today. I apologise for that.

MOTION WITHOUT NOTICE – Mr K A SINCLAIR

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NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 31

Ms M G BOROTO

FAILURE BY ICASA TO ACT DECISIVELY ON CELLULAR COMPANIES' MEDIA WARS ON ASYMMETRICAL COSTS

(Draft Resolution)

Mr K A SINCLAIR: Chairperson, on a lighter note, it seems like I am the only one who is right today. [Laughter.] I move without notice:

That the Council-

(1) notes the cellular company wars in the media between the major operators in the country on pending regulations on asymmetric costs, and that Telkom has joined the fray;

(2) acknowledges the open letter written by the Telkom chief executive officer alleging that other operators hide behind regulations to protect their profits, thereby holding back the country in the required access to and expansion of the technology in the industry;

(3) further acknowledges that growing wars and tension and the subsequent failure of the Independent Communications Authority of South Africa, Icasa, to act decisively, in this instance, is disadvantageous and costly for users and subscribers of these network providers; and

(4) recognises that the sooner there is transparency in the proposed regulations, the better it is for pedantic technological development in this country.

Motion agreed to in accordance with section 65 of the Constitution.

Ms M G BOROTO

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NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 31

Mr K A SINCLAIR

SUSPENSION OF RULE 239(1)

(Draft Resolution)

Ms M G BOROTO (On behalf of the Chief Whip of the Council): Chairperson, I move the draft resolution as printed in the name of the Chief Whip of the Council on the Order Paper, as follows:

That Rule 239(1), which provides inter alia that the consideration of a Bill may not commence before at least three working days have lapsed since the committee's report was tabled, be suspended for the purposes of consideration of the following Bills on Wednesday, 5 March 2014:

(a) Legal Practice Bill [B20D-2012] (National Assembly – sec 76);

(b) Judicial Matters Third Amendment Bill [B53 – 2013] (National Assembly – sec 76); and

(c) Private Security Industry Regulation Amendment Bill [B27D - 2012] (National Assembly – sec 75).

Mr R A LEES: Chairperson, on a point of order: Rule 239(1) has two sections to it, being that a Bill has to fall in line with either (a) or (b). Subsection (a) says "unless it is a Bill before the House in terms of Rule 216 of the Joint Rules", and (b) "an urgent Bill before the House." Could we please be informed whether, indeed, this is an urgent Bill and, if so, on what basis are these three Bills urgent?

Question put: That the motion be agreed to.

Mr M J R DE VILLIERS

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NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 31

Ms M G BOROTO (On behalf of the Chief Whip of the Council)

Declaration of vote:

Mr M J R DE VILLIERS: Chairperson, the Western Cape is actually against the motion as printed on the Order Paper, for the following reasons. In relation to the three Bills on the Order Paper, there is nothing urgent. The three Bills are not threatened by time. Therefore, it is not necessary to have put this motion on the table to handle these Bills. Thank you.

The CHAIRPERSON OF THE NCOP: Mr Lees, what is happening?

Mr R A LEES: I am not getting the voting, sir. I need to vote manually, Mr Chairperson.

The CHAIRPERSON OF THE NCOP: No, you are not the head of a delegation, are you?

Mr R A LEES: Mr Chairman, I am the only delegate today. [Laughter.]

IN FAVOUR: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, Northern Cape, North West.

AGAINST: Western Cape.

Motion agreed to in accordance with section 65 of the Constitution.

Mr T M H MOFOKENG

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NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 32

The CHAIRPERSON OF THE NCOP

PRIVATE SECURITY INDUSTRY REGULATION AMENDMENT BILL

(Consideration of Bill and of Report thereon)

Mr T M H MOFOKENG: Chairperson, the Private Security Industry Regulation Amendment Bill provides for the regulation of the private security industry in order to give effect to the White Paper on Peace and Security to strengthen the legislation and regulatory framework of the private security industry. It also regulates security services rendered outside the Republic and sets out offences and penalties in this regard.

The Bill proposes extensive amendments to the principal Act in order to address shortcomings in the principal Act and align it with the Constitution as well as the Public Finance Management Act. In order to achieve the objective of regulating the private security industry, the Bill also proposes amendments to certain definitions and assigns additional powers to the Minister. These powers include ministerial supervision of the authority, filling a vacancy on the council, suspending or removing any member of the council from office, as well as mediating in the event of a dispute between the council and its members. Council members must be South African citizens and must obtain security clearance by the National Intelligence Agency.

Other matters covered by the Bill include the registration of security service providers and their members. However, it is possible to apply to an exemption advisory committee for an exemption in this regard. The Bill places a restriction on foreign ownership in private security businesses and requires that 51% of ownership must vest in South Africans. This provision was extensively debated by the select committee.

The DA and some submissions were of the view that this will have a negative impact on foreign investment and that it is in contravention of South Africa's obligations under the World Trade Organisation's General Agreement on Tariffs and Trade and General Agreement on Trade in Services. However, the majority of delegates were satisfied with the department's responses that the agreement allows for certain exceptions, which include national security considerations.

The Select Committee on Security and Constitutional Development reports that it has considered the Bill and recommends that the Council passes the Bill. I thank you. [Applause.]

Debate concluded.

Question put: That the Bill be agreed to.

Mr R A LEES: Chairperson, the DA wishes to make a declaration. It will be made by hon Boshoff, and then we will call for a division.

Ms H S BOSCHOFF

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 32

Mr T H M MOFOKENG

Declarations of vote:

Ms H S BOSHOFF: Chairperson, the DA maintains that the passing of the Private Security Industry Regulation Amendment Bill will have detrimental consequences for our economy and will cause our country's unemployment to soar. This, in addition to various other reasons, is why we oppose the Bill.

The DA believes that the reintroduction of section 22(c), which seeks to restrict foreign ownership, in the Private Security Industry Regulation Amendment Bill will constitute an unlawful expropriation under section 25 of the Constitution. This controversial Bill allows for the state to expropriate at least 51% of any foreign-owned security-related company. It has also been noted that the Bill further allows for a 100% expropriation at the discretion of the Minister. It is the DA's belief that the reintroduction of this clause, at a time when our rand is in a sustained weakness against major global currencies and when analysts are stating that ours is one of the hardest-hit currencies in the emerging market, will have catastrophic consequences for our economy and investor confidence.

Furthermore, in addition to this, we believe it may also place the government in breach of international trade agreements, specifically the World Trade Organisation's General Agreement on Trade in Services. The DA is also concerned that the members of the National Assembly committee were not able to fully apply their minds to the reinsertion of section 22(c) on the last day of their deliberations and that several submissions from foreign states were withheld from the committee by the chairperson. Because of the failure of the portfolio committee to take into consideration the views of certain foreign states relating to South Africa's obligations contained in existing international agreements, the DA believes that the Bill should have been returned to the National Assembly for further deliberation.

The CHAIRPERSON OF THE NCOP: Order, Ms Boshoff.

Ms M G BOROTO: Chairperson, may I be assisted on the following point: The hon member is referring to the decisions that were made in the National Assembly. Is it correct to do that? We are now dealing with the Bill in the National Council of Provinces.

The CHAIRPERSON OF THE NCOP: Did you refer to the National Assembly, Ms Boshoff?

Ms H S BOSHOFF: Yes, Chairperson.

The CHAIRPERSON OF THE NCOP: If you referred to the National Assembly, that has nothing to do with this House. They do have their own deliberations, and you have your own.

Ms H S BOSHOFF: Mr Chairperson, I will retract that.

The Bill is discriminatory and unconstitutional. It will harm investor confidence, batter our already ailing economy, and, ultimately, result in job losses. It will also place an added burden on the SA Police Service and, therefore, undermine the fight against crime. The DA, therefore, opposes the Bill. I thank you. [Applause.]

Mr A G MATILA

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 32

Ms H S BOSHOFF

Mr A G MATILA: Chairperson, the ANC supports the Bill, as debated and deliberated on in the committee. The problem that we are faced with is that, in the committee, the member who just made that particular declaration never raised the issues she had raised now.

The problem is that somebody else writes these things for them. They agree with us in the committee, at some point. The point I wanted to raise is that the reality of the matter is that the DA cannot be a representative of the international community, of Europe, in particular. We have indicated that in Africa ... in Europe, in particular, whether in America – in America, whether ... what you are trying to do in this particular law ... in this particular law ...

Mr R A LEES: Chair, on a point of order: The hon member Matila is misleading the House. The questions that were contained in the declaration were raised with the committee. In fact, it was recorded as a minority view, and the hon member who made the original declaration actually stated that the DA had made that. I would request that that be withdrawn, please.

Mr A G MATILA: Chairperson, can I respond by saying that the hon members did not raise it in the committee. They came to another committee to raise a declaration.

We concluded the Bill. We concluded everything in the committee meeting. When we were dealing with a certain Bill, they came with this particular declaration to the committee. We then said that we could not discuss that declaration. That is the point we had raised with them. They came with a signed document. We do not know who had written that document, and they wanted to sign that document in the committee. We then said that we could not discuss that particular matter. We had made it very clear to them, and they started signing that document in the committee. We said that the first meeting had concluded that particular Bill and that we could not reopen that Bill, because the report had already been written. It had been completed. It had been closed.

It is unfortunate that when they came in later – we do not know who they spoke to - in the committee; it was never raised. We want to make it very clear. In the committee that took that particular decision, the DA did not raise anything else. They only said that they would vote against the Bill, but they did not do anything else, apart from that.

Let me continue with the declaration, Chairperson.

The CHAIRPERSON OF THE NCOP: Your time is running out. Let me answer Mr Lees first. Hon Lees, Ms Boshoff retracted what was said in the National Assembly. So, I do not know what happened in the committee. If that is the case, we will look at the minutes of the committee and make a ruling at the next sitting of the House.

Mr R A LEES: Thank you very much, Mr Chairperson.

Mr A G MATILA: Chairperson, let me finish up. The point we are raising is that the DA wants to take us back to apartheid times. [Interjections.] What they are trying to do is to make sure that everything else is owned by Europe and white people. The issue, we are saying, is that Africans and South Africans – when we say South Africans, we mean everybody else – must win in this particular situation. That is the point we are raising. When you go to each and every country, whether it is England, whether it is Kenya, whatever, what you find there is that private security is in the hands of those particular people and nothing like foreigners.

In this country, what is worse is that these particular companies employ more than 60% to 70% foreign people that came in illegally, which is a problem for this particular country. It is a risk to the security of the country, and the DA wants that, because it is in their interests. Thank you very much. [Applause.]

The CHAIRPERSON OF THE NCOP: Mr Lees, did you call for a division?

Mr R A LEES: Yes, Chairperson, I did.

The CHAIRPERSON OF THE NCOP: All right. [Interjections.] Hang on. Sit down and take your seat. Do not be in a hurry. Let me hear Mr Mashile first.

Mr B L MASHILE: Chairperson, I really have a problem. We thought that the DA is led by De Villiers this side, but today it looks like Mr Lees is the conductor of the DA activities.

The CHAIRPERSON OF THE NCOP: This is a section 75 Bill. It does not matter. It is not a section 65 matter. [Interjections.]

Mr R A LEES: Just for clarity, hon Chairperson, the names of those who vote for and against will be recorded. Is that correct?

The CHAIRPERSON OF THE NCOP: Let me just check with the staff. I am told that the machine will record your name and the vote.

Division demanded.

The Council divided:

AYES – 21: Adams, F; Boroto, M G; Chaane, T E; de Beer C J; Faku, Z C; Jacobs, M P; Mabe, B P; Makgate, M W; Makhubela, M W; Mashile, B L; Matila, A G; Mlenzana, Z; Mncube, B V; Mnguni, B A; Mofokeng, T M H; Mokgobi, M H; Moshodi, M L; Nesi, B; Plaatjie, S H; Rantho, D Z; Sinclair, K A.

NOES - 9: Abrahams, B L; Bekker, J M; Boshoff, H S; de Villiers, M J R; Faber, W F; Groenewald, H B; Joseph, D; Lees, R A; Worth, D A.

ABSTAIN – 1: Gunda, J J.

Bill accordingly agreed to in accordance with section 75 of the Constitution.

Mr T M H MOFOKENG

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 33

VOTING – THIRD ORDER

LEGAL PRACTICE BILL

(Consideration of Bill and of Report thereon)

Mr T M H MOFOKENG: Chairperson, the Legal Practice Bill is intended to address the following: to rationalise the current fragmented legislative framework in terms of which the former Republic and former homeland laws still in operation in various parts of the country will be repealed and replaced by a single statute regulating the profession in its entirety; to promote and protect the public interest byestablishing an Office of a Legal Services Ombud; and to make the legal profession more accountable in terms of the disciplining of legal practitioners.

Members agreed that the department had satisfactorily answered the amendments and concerns raised in the provinces' negotiating mandates. Members further agreed that the department must amend the Bill accordingly and effect consequential amendments.

The following provinces voted in favour of the Bill: the Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, North West and the Northern Cape. The Western Cape recorded its opposition to the Bill and KwaZulu-Natal abstained from voting. The committee consequently recommends that the Council approve the Legal Practice Bill. Thank you. [Applause.]

Debate concluded.

DECLARATION OF VOTE – Mr J M BEKKER

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 33

Mr T M H MOFOKENG

Declarations of vote:

Mr J M BEKKER: Chairperson, the declaration of vote by the Western Cape on the Legal Practice Bill is as follows. Regulatory reform of the legal professions has been happening in many common law countries in recent years. The reasons are always the same: affordability and access, choice, competition and consumer protection.

These are the same problems we should be addressing. Instead, what is South Africa doing? The Legal Practice Bill forces advocates and attorneys into one governing body, the Legal Practice Council, and puts the attorneys in charge. It is thus fusion in disguise.

The Western Cape proposed a variety of changes to the Bill. Of main concern is the formation of the Legal Practice Council. We proposed, rather, that there should be two separate chambers for advocates and attorneys at the national and regional level.

Our second main concern with the Bill is the areas of the Bill which give the Minister of Justice too much power over the SA Legal Practice Council and over the profession as a whole. These include the power to appoint members to the interim council, which will have a major impact on the final council.

We also believe that decisions regarding community service should be done in consultation with the council and not after consultation, as the Bill states.

Finally, the Minister has the power to dissolve the council. We believe that no such power should exist, as it is incompatible with the independence of the legal profession. As such, we believe that the Bill will fail to address the crucial issues of access to justice and will impact on the independence of the profession. We oppose the Bill.

Mr M H MOKGOBI

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 33

Mr J M BEKKER

The CHAIRPERSON OF THE NCOP: Is there any other province that wants to make a declaration of vote?

Mr M H MOKGOBI: No, Chairperson, it is not a declaration. I want to stand up on behalf of the ANC. [Interjections.]

The CHAIRPERSON OF THE NCOP: No, no. I am calling provinces. This is a section 76 Bill. [Interjections.] Yes.

An HON MEMBER: Limpopo! [Interjections.]

Mr M H MOKGOBI: Chairperson, as the Limpopo province, we say that it is very important for the Bill to be passed by this House, precisely because we are dealing with the patterns of briefings in the South African judiciary. If you look into the processes, Africans, in particular, blacks, in general, do not even have access to the current system of briefing. Therefore, this Bill wants to deal with the question of equity so that all South Africans in the judiciary system are getting the right briefings from everyone who has access to the law.

We are trying to follow the clause in the Freedom Charter that states that all shall be equal before the law. We cannot be satisfied with the current situation in which the judicial system is being run. If we say that all shall be equal before the law, we mean all South Africans, in a nonracial context, black and white, not black only and not white only. As our late former President said, we have fought against white domination and we have fought against black domination.

Therefore, this Legal Practice Bill is welcomed. It must be voted for, not only by the provinces, but by everyone in South Africa, black and white. Thank you. [Applause.]

Mr A LEES

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 33

Mr M H MOKGOBI

Mr R A LEES: Hon Chairperson, I note that neither of the members who made declarations of vote were heads of delegation, and therefore I request that I make a declaration on behalf of KwaZulu-Natal.

The CHAIRPERSON OF THE NCOP: No, no. The issue here is that I have been informed by their leaders. Mr De Villiers did declare that he had delegated Mr Bekker to make a declaration. The same goes for Mr Mokgobi. I was informed that he would be making it on behalf of Limpopo. I didn't get anything from the heads of delegation from KwaZulu-Natal stating that you could make a declaration of vote. [Interjections.]

Mr R A LEES: Thank you, Mr Chair. I shall have to speak to my leaders! [Laughter.]

The CHAIRPERSON OF THE NCOP: Thank you. [Interjections.] We shall now proceed to the voting on the question ...

Mr K A SINCLAIR: Chairperson, on a question of clarity: I understand that the KwaZulu-Natal Provincial Legislature is having its opening ceremony today. I just want to find out why the hon Lees is not there. [Interjections.]

The CHAIRPERSON OF THE NCOP: I don't know, Mr Sinclair. Perhaps you can have a chat with Mr Lees! [Laughter.] [Interjections.]

Question put: That the Bill be agreed to.

All right, we shall now proceed to voting on the question and we will use our electronic voting system. Heads of delegation vote in favour, against, or they abstain. Voting has commenced. [Interjections.] Please reactivate the gadgets. [Interjections.] Are they dead? [Interjections.]

Here are the results. Those who are in favour, five; abstention, one; those who did not submit their mandates, three. Therefore, five provinces are in favour ... [Interjections.] ... That's what I said. Five provinces voted in favour; one abstained; so far, three have not sent their mandates.

IN FAVOUR: Gauteng, Limpopo, Mpumalanga, Northern Cape, North West.

AGAINST: Western Cape.

Bill accordingly agreed to in accordance with section 65 of the Constitution.

SECOND ORDER - Mr T M H MOFOKENG / END OF TAKE

UNREVISED HANSARD

NATIONAL COUNCIL OF PROVINCES

Wednesday, 5 March 2014 Take: 34

FIRST ORDER – VOTING

JUDICIAL MATTERS THIRD AMENDMENT BILL

(Consideration of Bill and of Report thereon)

Mr T M H MOFOKENG: Chairperson, the Bill seeks to address practical and technical issues of a noncontentious nature by proposing amendments to the Attorneys Act, Act 53 of 1979, and the Child Justice Act, Act 75 of 2008, in the following way.

Firstly, in the Attorneys Act, the Bill seeks to regulate the powers of the board of control of the Attorneys Fidelity Fund in order to stem the increase of theft committed by attorneys for which the fund becomes liable to pay.

Secondly, amendments are proposed to the Child Justice Act regarding, among other things, the proof of criminal capacity of children who are 10 years or older but under the age of 14 years and who are alleged to have committed an offence. Currently, an inquiry magistrate or child justice court, when making a decision regarding the criminal capacity of a child, must consider the assessment report of the probation officer and all other evidence placed before the court, which may include a report of an evaluation done by a suitably qualified person.

The Bill will now require the inquiry magistrate or child justice court to consider the cognitive, moral, emotional, psychological and social development of the child on the basis of all evidence placed before the court. The relevant section in the Child Justice Act is thus amended to include different classes or categories of persons who may be determined for the purposes of the different aspects of development of a child.

The Bill also allows the Minister of Social Development to delegate to the provincial level certain powers relating to the accreditation of diversion programmes and diversion service providers in terms of the Child Justice Act.

The final amendments proposed by the Bill seek to give effect to the recent decision of the Constitutional Court in which it declared certain provisions of section 51 of the Criminal Law Amendment Act unconstitutional and that children who were under the age of 18 years at the time of the commission of an offence must be excluded from the Act's operation.

The committee recommends that the Council pass the Bill. Thank you. [Applause.]

Debate concluded.

Question put: That the Bill be agreed to.

IN FAVOUR: Gauteng, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.

Bill accordingly agreed to in accordance with section 65 of the Constitution.

Mr M J R DE VILLIERS: Chairperson, I would just like to bring something to your attention: I did vote on the Legal Practice Bill, but it was not recorded on the system. I voted against it. [Interjections.]

The CHAIRPERSON OF THE NCOP: It is recorded.

Mr M J R DE VILLIERS: You didn't say so. I missed that.

The CHAIRPERSON OF THE NCOP: It is recorded as against.

Mr M J R DE VILLIERS: Is it?

The CHAIRPERSON OF THE NCOP: Yes, it is recorded.

Mr M J R DE VILLIERS: Thank you very much.

The Council adjourned at 14:46.

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