Hansard: NCOP: Unrevised hansard
House: National Council of Provinces
Date of Meeting: 23 Nov 2010
Summary
No summary available.
Minutes
UNREVISED HANSARD
UNREVISED HANSARD
TUESDAY, 23 NOVEMBER 2010
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PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
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The Council met at 10:00.
The Deputy Chairperson (Ms T C Memela) took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
NOTICES OF MOTION
The CHIEF WHIP OF THE NCOP: Hon Deputy Chairperson, I give notice that I shall move at the next sitting of the Council:
That the Council —
(1) notes with profound sadness and deep sorrow the passing away of the hon Mrs Bertha Nonkumbi Gxowa who passed away on Friday, 19 November, only a few days before her 77th birthday;
(2) further notes that the hon Mrs Gxowa or Ma Bertha, as she was affectionately known, was born on 28 November 1934 in Germiston and will be laid to rest at the Thomas Nkobi, South Park, cemetery in Ekurhuleni, Johannesburg.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon member, may I propose that you hold that and pass it as a motion without notice. I think it will carry more weight. Thank you.
Mrs A N D QIKANI: Hon Deputy Chairperson, I give notice that I shall move at the next sitting of the Council:
That the Council –
(1) notes that Thursday, 25 November, marks the beginning of the 16 Days of Activism for No Violence against Women and Children Campaign, which is an international campaign to raise awareness about the persistence of violence against women and children in many societies across the globe;
(2) further notes that the theme for this year is “Don't look away, act against abuse”, which focuses on the unfinished agenda of uniting the global community to speak out against gender-based violence and the abuse of women and children in their homes and communities; and
(3) reaffirms its support for the 16 Days of Activism for No Violence against Women and Children Campaign and commits to brazenly speak out against the abuse of women and children in our society.
Mr K A SINCLAIR: Hon Deputy Chairperson, on a point of order: I just want to take you back to the decision that you have made regarding the notice of motion that was moved by the hon Chief Whip. In my understanding it is the prerogative of the member to decide how to present the motion. Procedurally, I don’t think it was right that you made that ruling.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon member, I think I have made a correct proposal to the respective Chief Whip and that is why she did not even query it, but I will call her when it is motions without notice. Thus far, I think I was correct.
Mrs E C VAN LINGEN: Hon Deputy Chairperson, I give notice that at the next sitting of the Council I shall move on behalf of the DA:
That the Council –
(1) notes that the National Youth Development Agency, NYDA, is using the World Festival of Youth and Students to partner with radical groups such as the Workers’ Party of North Korea and Zanu-PF of Zimbabwe;
(2) further notes that a budget adjustment of R29 million was approved for the nine-day extravaganza with 30 000 delegates, ill-afforded by the mandate of the NYDA;
(3) recognises that the NYDA approached all nine provinces for a R4 million contribution to the festival;
(4) requests that a financial report be submitted to this House that clearly indicates the expenses of this delusional grandeur, as well as a report by each of the nine provinces as to what provincial contributions were made for which expenses; and
(5) calls on the President, members of Cabinet, Parliament, state departments and the private sector not to attend the festival as such attendance would legitimise the undemocratic, oppressive and totalitarian regimes associated with the festival.
Mr D A WORTH: Hon Deputy Chairperson, I give notice that at the next sitting of the Council I shall move on behalf of the DA:
That the Council, on behalf of the Democratic Alliance and all members of the National Council of Provinces –
(1) wishes to thank the support staff of Parliament for the organisation and arrangements for “Taking Parliament to the People” in Qwaqwa, Free State province;
(2) recognises that the facilities such as clean toilets, a huge marquee tent, accommodation and the food was a big improvement on the previous “Taking Parliament to the People” programme; and
(3) is wholeheartedly and truly thankful for the assistance provided to members by the support staff.
Mrs B L ABRAHAMS: Hon Deputy Chairperson, I give notice that at the next sitting of the Council I shall move on behalf of the DA:
That the Council –
(1) notes that the acid mine water crisis will reach disastrous and irreversible proportions at the Witwatersrand by February 2012;
(2) further notes that the critical level will be when the acid mine water reaches a level of 150 m below the surface at the South Western vertical shaft at ERPM just south of Germiston;
(3) recognises that it is predicted that a few weeks after February 2012, when the ground water will be contaminated, it will flow into the central business district in Boksburg from the Cinderella East Shaft at an average flow rate of 57 megalitres per day;
(4) requests that the task team, Cabinet, and Parliament take this matter and their responsibility seriously in respect of disaster management and prevention, and take immediate necessary action to resolve as much of the disaster as possible with timeous preventative measures within the next few weeks; and
(5) calls on the relevant stakeholders to inform this House of the financial management and progress of the process.
Mr D B FELDMAN: Hon Deputy Chairperson, I give notice that at the next sitting of the Council I shall move on behalf of Cope:
That the Council –
(1) notes the failure of government to act decisively against those drug dealers who are robbing Aids patients of their life-supporting drugs to create a concoction, with dagga, called “Whoonga”;
(2) further notes failure of government to go on the offensive to win public support in order to stamp out this practice successfully; and
(3) recognises the urgent necessity for government to not only be highly proactive in this regard, but to be seen by the public to be proactive.
Mr M W MAKHUBELA: Hon Deputy Chairperson, I give notice that at the next sitting of the Council I shall move on behalf of Cope:
That the Council –
(1) notes the unacceptable lack of adequate security in our courts to allow for safe and incident-free hearing of cases against those suspects who are brought before these courts;
(2) further notes the frequency with which those in detention escape from court cells, as happened once again in the Somerset West regional court on Friday, 19 November 2010, when six detainees escaped from their cells; and
(3) recognises the need for government to ensure that security within the court precincts is thoroughly reviewed as a matter of utmost urgency.
Mr D V BLOEM: Deputy Chairperson, on a point of order: I also have one on Ma Bertha. Can I also read it? [Interjections.] I am going to read it now.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I actually appealed to hon Ntwanambi to hold back the motion. We can’t have two motions on one thing.
Mr D V BLOEM: Deputy Chairperson, I don’t think it will be proper to suppress what Cope wants to say about Ma Bertha’s funeral.
The CHIEF WHIP OF THE NCOP: I don’t think there should be an argument. Hon Bloem is out of order. He is now speaking as hon Bloem and not as an organisation or a party. I think we should not even engage in dialogues here.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, let me consult. Can you take your seat?
Mr D V BLOEM: Deputy Chairperson, please consult.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, actually there was no need for even discussing the issue. The mistake you have made is that you say you are no longer talking as an hon member in this Chamber but that you are now promoting your party. I actually explained to you that I had asked the hon Chief Whip to hold back. So, let’s not argue about it. Take your seat. Thank you.
Mr D V BLOEM: Thank you, I will give it to the newspapers.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, are you saying that I must take it as a threat?
Mr D V BLOEM: Deputy Chairperson, no, not at all.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Can you then withdraw what you have just said?
Mr D V BLOEM: In what way, Deputy Chairperson?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon member, can you withdraw it?
Mr D V BLOEM: In doing what, Deputy Chair? I am going to give it. Even if I do read it, I will give it to the newspaper.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, I will not argue with you. Take your seat. I want an apology in writing around that threat.
The CHIEF WHIP OF THE NCOP: Deputy Chairperson, you have ruled. You have moved and there is time set for motions and you can’t go beyond that. Members must understand that.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I am sorry about it. I’ll try next time.
The CHIEF WHIP OF THE NCOP: Deputy Chairperson, I move ... [Interjections.]
Mr D V BLOEM: Deputy Chairperson, on a point of order: The member there has raised his hand and now the Chief Whip is making a ruling by telling you that you ... [Interjections.] It is not correct.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, I looked around and the last person ... [Interjections.] Unfortunately, the time is up.
Mr O DE BEER: Deputy Chairperson, on a point of order: This Council started at 10:00. It is now 10:15. In terms of the 20 minutes allocated for motions, I am still in the timeframe of this Council.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): When did you have your hand up?
Mr O DE BEER: Deputy Chairperson, at the beginning.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): She also noted the people and I verified my list against this list. May I explain to the hon members that 20 minutes are allocated for both notices of motions and motions without notice. Is that understood? Thank you.
PASSING ON OF MRS BERTHA NONKUMBI GXOWA
(Draft Resolution)
MOTION OF CONDOLENCE
(The late Mrs Bertha Nonkumbi Gxowa)
The CHIEF WHIP OF THE NCOP: Deputy Chairperson, I move without notice:
That the Council -
(1) notes with profound sadness and deep sorrow the passing away of the hon Mrs Bertha Nonkumbi Gxowa on Friday, 19 November, only a few days before her 77th birthday;
(2) further notes that the hon Mrs Gxowa or Ma Bertha, as she was affectionately known, was born on 28 November 1934 in Germiston and will be laid to rest at the Thomas Nkobi, South Park cemetery in Ekurhuleni, Johannesburg;
(3) acknowledges that Ma Bertha dedicated her life to serving the people of South Africa, and was a Member of Parliament for the past 16 years, and played a pivotal role in the fight against apartheid, and served the national democratic revolution as a trade unionist, treason trialist, and as one of the organisers of the 1956 women’s march to the Union Buildings;
(4) further acknowledges that Ma Bertha was an embodiment of the principles, values and character of the African National Congress, and the African National Congress Women’s League, and that her untimely death has robbed us of a distinguished cadre of the ANC who dedicated her life to changing the lives of the people of South Africa;
(5) takes this opportunity to dip its head for comfort on the shoulders of a nation in mourning and on the chests of so many of our people who are mourning with the Gxowa family, friends, and comrades;
(6) hopes that they will find comfort in knowing that Ma Bertha’s dedication, commitment, words and deeds will serve as a living memorial and a living heritage for many of us who know that she shared her life with our nation; and
(7) calls on the House to observe a moment of silence.
Motion agreed to in accordance with section 65 of the Constitution.
CONDOLENCES TO FAMILY OF MURDERED BRITISH TOURIST, MS ANNI DEWANI
(Draft Resolution)
Mr T M H MOFOKENG: Deputy Chairperson, I move without notice:
That the Council –
(1) notes with utter dismay the shocking developments that seem to suggest that the slaying of Ms Anni Dewani, the British tourist who was hijacked with her new husband Mr Shrien Dewani in Gugulethu last week and later found dead in Khayelitsha, might have been a planned hit;
(2) further notes that as the British tabloid The Sun raised serious allegations about the financial position of Mr Dewani and that Mr Dewani refuted the claims and allegations as untrue, the chauffeur Mr Zola Robert Tongo has since been charged with murder and intends to turn state witness and enter into a plea bargain with the state;
(3) takes this opportunity to convey its profound condolences to the family of Ms Dewani who was cremated in London last Saturday; and
(4) extends its congratulations and profound appreciation to the police for their relentless effort to solve the case, and to the people of Khayelitsha and Gugulethu for assisting the police with solving this repulsive and senseless murder.
Motion agreed to in accordance with section 65 of the Constitution.
CALL FOR INVESTIGATION INTO ESCAPE OF SIX DETAINEES AT SOMERSET WEST MAGISTRATE’S COURT
(Draft Resolution)
Mr A G MATILA: Deputy Chairperson, I move without notice:
That the Council –
(1) notes that six detainees escaped from the Somerset West Magistrate’s Court on Friday, 19 November 2010;
(2) further notes that the detainees overpowered a police officer and took his firearm and keys to the holding facility before they managed to escape through the main door leading to the cells; and
(3) takes this opportunity to call on the Ministers of Justice and Constitutional Development, Correctional Services, and Police to investigate the incident and to strengthen security in courts.
Motion agreed to in accordance with section 65 of the Constitution.
AROUND-THE-WORLD JOURNEY IN A TRACTOR TO RAISE AWARENESS OF VIOLENCE AND CRIME, PARTICULARLY AGAINST WOMEN AND CHILDREN
(Draft Resolution)
Mr R A LEES: Deputy Chairperson, I move without notice:
That the Council –
(1) notes the incredible mission of Tony Tractor, real name Tony Psaila, who will embark — from Cape Town today, 23 November 2010 — on the next leg of his around-the-world journey driving a 1948 Vaaljaapie Ferguson tractor at a speed of just 22 km/h;
(2) further notes that Tony has undertaken this journey to raise funds and build awareness for victims of violence and rape, and particularly with regard to abuse against women and children;
(3) acknowledges that Tony embarked upon his epic journey from Howick in KwaZulu-Natal on Women’s Day, 9 August 2010;
(4) recognises that he has set himself a target to raise R1 billion whilst travelling through countries such as Australia, New Zealand, the United States of America, Canada, Russia, Europe and the United Kingdom; and
(5) wishes Psaila well on his journey, and urges all citizens of the world to support this worthy project.
Motion agreed to in accordance with section 65 of the Constitution.
REFUSAL OF WESTERN CAPE MEC TO MEET WITH BACKYARD DWELLERS AND RESIDENTS OF KHAYELITSHA
(Draft Resolution)
Mr M P SIBANDE: Deputy Chairperson, I move without notice:
That the Council –
(1) notes that Western Cape member of the executive committee, MEC Mr Bonginkosi Madikizela, is refusing to meet a group of backyard dwellers in Khayelitsha to resolve a long-standing dispute over the allocation of housing in the area and the allocation of houses in a new housing project;
(2) further notes that the Khayelitsha backyard dwellers are insisting that the more than 100 houses be allocated evenly between those from the area living in backyard shacks and families from other townships;
(3) takes this opportunity to condemn MEC Madikizela’s refusal to meet the backyard dwellers and for labelling them silly; and
(4) calls on the MEC to meet the residents to resolve the situation.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Are there any objections to the motion? [Interjections.] In the light of the objection, the motion cannot be proceeded with. The motion without notice will now become a notice of motion.
DISREGARD FOR PARLIAMENT BY MINISTERS
(Draft Resolution)
Mr K A SINCLAIR: Deputy Chairperson, I move without notice:
That the Council –
(1) notes the increasing disregard that many Ministers have for Parliament and in particular their unwillingness to account to Parliament as envisaged in the Constitution;
(2) further notes the continued extent to which the executive is denuding Parliament of its real status and power in its daily interaction with the two Houses of Parliament; and
(3) recognises the urgent necessity for restoring to the legislature its full authority so that Parliament can indeed remain a true watchdog over the activities of the executive and not become its tame lapdog.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Are there any objections. [Interjections.] In the light of the objection the motion cannot be proceeded with. The motion without notice will now become a notice of motion.
CONGRATULATIONS TO NEWLY APPOINTED PREMIER MS THANDI MODISE
(Draft Resolution)
Ms R N RASMENI: Deputy Chairperson, I move without notice:
That the Council –
(1) notes that the Deputy Secretary-General of the African National Congress, Comrade Thandi Modise, was sworn in as the Premier of the North West Province on Friday, 19 November 2010;
(2) further notes that Premier Modise’s political activity began in 1976 when, as a student, she was jailed for 10 years for fighting the apartheid regime, and she has served the ANC in various capacities, including as a member of the African National Congress Women’s Executive Committee since 1994, and as deputy president from 1994 until 2004, Speaker of the North West province in the last term of Parliament, and she was elected Deputy Secretary-General of the ANC in Polokwane in 2007, and chaired the Portfolio Committee on Defence, the Joint Standing Committee on Defence, and the Ad Hoc Committee for the Ratification of the Convention to Eliminate All Forms of Discrimination against Women in the National Assembly; and
(3) takes this opportunity to congratulate Premier Modise on her new deployment and wishes her well in our national quest to build a better South Africa and advance the lives of our people.
Motion agreed to in accordance with section 65 of the Constitution.
Mr A WATSON: Deputy Chair, I just made an interjection to say that we should give it a try but I don’t think she will succeed. [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson and the rest of the people in this House, can we keep to ourselves our personal objections to whatever is said. [Interjections.]
Mr A WATSON: [Inaudible.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): No, that is fine, keep it to yourself.
An HON MEMBER: Deputy Chairperson, I think hon Watson has not learnt from what the President said to him on Friday. [Interjections.] He must take the lesson from that.
Mr A WATSON: [Inaudible.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Can you allow us to proceed? Thank you.
FIVE-YEAR-OLD BOY MAULED TO DEATH BY ROTTWEILER DOG
(Draft Resolution)
Ms M W MAKGATE: Deputy Chairperson, I move without notice:
That the Council –
(1) notes a tragic incident in which a five-year-old boy was mauled to death by a Rottweiler dog in Durbanville in Cape Town on Saturday, 20 November 2010;
(2) further notes that the dog was released from the back section of the house in order to guard the home owners’ wedding gifts;
(3) takes this opportunity to convey its profound condolences to the families of the deceased boy, especially the mother of the boy, Ms Shannon Saunders, and the boy’s friend Clint who helplessly witnessed the tragic incident; and
(4) calls on families with aggressive dogs to ensure that they are secured all the time, especially where there are children.
Motion agreed to in accordance with section 65 of the Constitution.
WASTEFUL EXPENDITURE BY MINISTERS OR DEPUTY MINISTERS
(Draft Resolution)
Mr D V BLOEM: Deputy Chairperson, I move without notice:
That the Council –
(1) notes the ongoing saga of yet another Minister or Deputy Minister in the government incurring expenditure running into the millions by regularly booking into a five-star hotel, several days a week, for a stretch of four years, at a cost to the taxpayer of around R5 000 a night, in spite of having his official residence only a few hundred metres away;
(2) further notes the failure of the government to curb such unnecessary expenditure considering that it is now having to deal with a growing deficit; and
(3) recognises the dismal failure of government to inculcate a higher moral conscience in public representatives and government Ministers, seeing how morally bankrupt many of them are.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Is there an objection to the motion without notice?
HON MEMBERS: Yes!
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): In the light of the objections, the motion may not be proceeded with. The motion without notice will now become a notice of motion.
INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE BILL
CIVILIAN SECRETARIAT FOR POLICE SERVICE BILL
(Consideration of Bills and of Reports thereon)
The DEPUTY MINISTER OF POLICE: Deputy Chair, members of the National Council of Provinces, the Independent Police Investigative Directorate Bill, together with the Civilian Secretariat for Police Service Bill placed before this House, form an important part of our approach to policing and the type of force we envisage and wish to move towards.
We once again wish to re-emphasise that as the ANC government and current police administration, we have committed ourselves to actively combating crime, including serious and violent crime, by being tougher on criminals and organised syndicates.
However, we have always emphasised that this tough stance on crime must be balanced by our philosophy that policing must also be oriented towards having respect for human rights, being community centred, and being biased in favour of the weak and the safety needs of society.
These two pieces of legislation seek to establish and put in place mechanisms that will ensure that the rule of law is upheld at all material times, even by the law enforcement agencies themselves. Therefore, this approach is a far cry from the alleged militarisation approach that had been bandied about by some in our society.
The Bills were concurrently introduced in Parliament. These two Bills speak to our commitment to civilian oversight of the police. The issue of civilian oversight of the police is not just a mere rhetorical slogan on our part, but is fundamental to our policing approach.
The fact that we have introduced these Bills before introducing other pieces of legislation further confirms the seriousness with which we value this function. This seriousness affirms our view that this government and Ministry of Police do not have the desire for a police state, neither is there the likelihood of this country moving towards a such state at any point.
In changing the focus and the name of the Independent Complaints Directorate, ICD, to the Independent Police Investigative Directorate, Ipid, we are sending out a clear message that the new body will not just focus on processing complaints but will also emphasise developing a strong investigative capacity. We also seek to investigate and substantiate systemic defects in policing as well as general corruption.
This draft policy drew on the comprehensive guidance given by the White Paper as well as on past ICD experiences and reports emanating from Parliament regarding ICD functions. The Independent Police Investigative Directorate Bill before you not only changes the name of the ICD to the Independent Police Investigative Directorate, Ipid, but also creates a separate piece of legislation for the Ipid and removes it from being governed under the South African Police Service Act, as was the case previously.
Historically, there have been several problems that have plagued the smooth operation of the ICD. While it had investigative powers over the police, it still had to submit its recommendations to the national Commissioner of Police. The ICD has had no powers to ensure the implementation of its recommendations. There have also been concerns raised in Parliament regarding the broad focus of the ICD’s mandate and its inability to implement this mandate effectively.
Equally, there have been concerns raised in relation to the ICD’s lack of powers when investigating cases of corruption, especially within the police.
It is important to note that the monitoring by the ICD of compliance with the Domestic Violence Act by members of the police and general complaints by members of the public have been removed from the mandate of the Ipid. The Ipid will locate some of the oversight functions, such as those relating to the Domestic Violence Act, within the secretariat. The Bill further recognises that the police themselves must ultimately be responsible for investigating, irrespective of whether or not the perpetrator is a police officer.
The one area we have specifically located under the new Ipid is the investigation of any police officer involved in rape. We adopted this stance primarily because crimes against women and girls remain one of the government’s key priorities. We want to ensure that in cases where a police officer is suspected of committing such a crime, the case should be investigated by an independent body.
This approach will go a long way towards building public confidence in the force while at the same time reinforcing government’s commitment to ensuring that the most vulnerable in society are not abused by the very same people who should be protecting them.
For the Ipid to achieve its objectives and strategic goals it is imperative that its operational framework is properly aligned. To this end, the structure of the new Ipid must speak to its core functions. Past experiences indicated that there have been structural challenges that impacted on the directorate’s successes.
Therefore, the Bill speaks to the fact that the national office should be a lean, administrative office providing strategic leadership and direction, but with the capacity to execute the mandate located in the various provinces. Members who have previously been in the National Assembly know this. Currently that is not happening. We hope that this legislation will make a change.
As we indicated earlier, there can be no question that the historical, dysfunctional nature of the secretariat created a vacuum that the ICD unsuccessfully tried to fill. Section 208 of our Constitution gives effect to the establishment of the civilian secretariat under the direction of the Minister of Police.
The 1998 White Paper on Safety and Security provides for the SA Police Service to be the vehicle for law enforcement for the Republic. The White Paper further required and mandated a need to reform the system in which policy planning and monitoring occurred within the former Department of Safety and Security.
The Civilian Secretariat for Police Service Bill has been brought to this Parliament with very clear intentions on the part of the Ministry of Police. We have been forthright in our assertion that the current policing environment in our country requires us to fight crime smartly, toughly and with no mercy for those heartless criminals.
It also became apparent that as part of our legislative framework we required strong policing oversight bodies that would make sure that the policies of policing are determined by the executive. We adopted this framework precisely because, as we have said before in this House, we have no intention of sliding our policing approach towards a police state. We are of the firm view that there needs to be transparency and a separation of powers when determining policy and the implementation thereof. The Civilian Secretariat for Police Service Bill gives effect to that separation of powers and functions.
It requires the secretariat to provide sound civilian oversight over the SAPS, drive partnerships, provide policy advice to the Minister and to provide for the organisation of the civilian secretariat into a designated department. It further provides for the co-operation between the Independent Police Investigative Directorate and the secretariat, as well as enhancing co-operation between the SAPS and the civilian secretariat.
Importantly, the Bill uncouples the budget of the secretariat as a core centre of the SAPS so that it can maintain its independence from the SAPS. We have every confidence that a revamped, efficient and effective secretariat will enable us to develop policy that is sound and on par with international best practices, hon Makhubela, unlike previously when the secretariat had to beg to get funding from the Police.
It should also be remembered that by accepting this legislation we are in no way second-guessing the work of the police. On the contrary ... [Interjections.]
Mr R A LEES: Deputy Chair, on a point of order: Would you please request the hon Deputy Minister to desist from directing her remarks at hon members of this House and to direct them through you, please.
The DEPUTY MINISTER OF POLICE: Thank you, Deputy Chair, I didn’t think that hon Makhubela would be offended. He knows what I’m talking about; he’s my friend.
It should also be remembered that by accepting this legislation we are in no way second-guessing the work of the police. On the contrary, we are making sure that the police render their duties with excellence across all facets of their interaction with society. We expect the Civilian Secretariat for Police Service to take responsibility for strategic and indicative planning, research and the formulation of departmental policy proposals, which, when approved by the Ministry, would guide the activities of the SA Police Service.
We expect the Bill to monitor the department to ensure alignment with policies approved by the Minister and to develop and implement performance controls of the performance agreements, which direct functions of members of the South African Police. It is also expected that the Bill will provide ministerial support services, including the management and control of departmental and international media and stakeholder liaison as well as legal services.
Therefore, we envisage that the Bill will implement a communication strategy aimed at informing and mobilising role-players and partners outside the department regarding policing matters.
Ultimately, the Bill must strengthen the partnerships on social mobilisation to deepen the national dialogue on safety. The Civilian Secretariat for Police Service will be accountable to the Minister and to Parliament for its functions and activities.
Another key aspect of the Bill relates to the establishment of provincial secretariats. We expect better alignment between the civilian secretariat and the provinces with the establishment of provincial secretariats. It is here in the engine room of the provinces that we will expect to see strong and functioning monitoring and evaluation units in the provinces.
We also intend to deepen the national dialogue on safety by establishing partnership units as part of the provincial secretariats. We are certain that the Bill before this House provides us with a sterling opportunity to put into practice the policies, methodologies and strategies to refine our policing for all South Africans.
We remain committed to seeing through our vision of a transformed, accountable and effective police service. With these two pieces of legislation, we are committing ourselves to continue working for the entrenchment of a human rights culture. We have now provided the new Independent Police Investigative Directorate and the Civilian Secretariat for Police Service with the necessary tools, and it will be up to the leadership of these bodies to implement this mandate. I thank you. [Applause.]
Mong T M H MOFOKENG: Motlatsa Modulasetulo, matona a kgabane a Lekgotla la Diprofinsi, Motlatsa Letona Sepolesa Mme Maggy Sotyu. E re pele ke nke monyetla ona ho o lebohisa boikarabelong ba hao bo botjha jwalo ka Motlatsa Letona la Sepolesa.
Ke lakatsa ho qala morao selemong sa 1992 ka tokomane ya ANC, “Re malala a laotswe ho ka busa”, e ileng ya sisinya hore ho Afrika Borwa e ntjha ya demokrasi, dipelaelo tsa boitshwaro bo bobe ba sepolesa, di tla sebetswa ka mokgwa wa botletlebi bo ikemetseng le dipatlisiso. Ntlha ena e ne e habile hore sepolesa se be le boikarabelo setjhabeng seo se se lebeletseng ka mokgwa o ikemetseng ebile o se na leeme. Ena ke tjhebelopele ya ANC sepoleseng sa Afrika Borwa kamora kgethollo. Modulasetulo ya kgabane, tjhebelopele ena, ke yona motheo wa ho tshepahala le maikemisetso a dikamolao ka tatelano.
Mothating wa jwale karolwana 53 ya Tshebeletso ya Sepolesa sa Afrika Borwa, e fana ka matlataelo a molao ho Lekgotla le Ikemetseng mme e lebisitse ho Karolwana 18 ya Molao wa Merusu Malapeng, 116 e reng ke boitshwaro bo bobe hore setho sa sepolesa se hlolehe ho ikamahanya le molao oo se o nehilweng ho ya ka mokgwa oo.
Matlataelo ana a ananela hore diketso tsa sepolesa di tlameha ho ba kahare ho meedi ya molao esita le leano la boikarabelo. Matlataelo ana a sireletsa seabo sa tekolo ya ICD ho sepolesa e le hore ho lwantshwe ditlolo tsa molao. Re a ananela hore ka tlasa demokrasi ya molaotheo sepolesa se ke ke sa e ba molao ka bosona.
Mohoo wa ANC wa Dikgetho tsa 2009 o boela o paka ntlha ena ya kgale ya ho lwantsha ditlolo tsa molao kgahlanong le basadi le bana ka ho eketsa bokgoni ba sepolesa ba ho sebetsana le dinyewe tse jwalo. Ho ja setsi ha ditlolo tsa molao tse nang le dikgoka ho entse tlhokeho ya hore ho matlafatswe Tshebeletso ya Sepolesa ya Afrika Borwa. Ka lebaka leo, ditlolo tsa molao tsa mofuta ona di hlaloswa e le ditlolo tsa molao tse ka sehloohong ke mmuso wa rona.
Ka dilemolemo diphumano tse fapafapaneng tsa diphuputso le ditlaleho tsa palamente di pepesitse diqholotso tse ngata mabapi le ho ikamahanya ha sepolesa le ditshitsinyo tsa Lekgotla le Ikemetseng la Ditletlebo.
Diqholotso tsena esita le boiphehiso di utollotse kgaello ya ho kenngwa tshebetsong ha Molao wa Merusu Malapeng, DVA, oo e leng matlataelo a sepolesa le ICD. Diphuputso le ditlaleho di utollotse kgaellonyana ya bokgoni ho nnetefatsa bofuputsi bo matla ba ICD kgahlanong le boitshwaro bo bobe kapa bonyofonyofo ba sepolesa bo kenyeletsang ho se ikamahanye le tlhekefetso ya malapeng. Ka sebele hona le kgaello ya ICD ya ho sala morao e le ho nnetefatsa hore e ikamahanya le ditshitshinyo tsa yona. Ka lebaka leo sekamolao sa Lekgotla le Ikemetseng la Bofuputsi ba Sepolesa se lohothwa ho kwala sekgeo seo.
Modulasetulo ya kgabane, Lekgotla le Ikemetseng la Bofuputsi ba Sepolesa, le tla sebetsa ka boikemelo, le sa itshetleha ho Tshebeletso ya Sepolesa sa Afrika Borwa. Ho ya ka sekamolao ya boikemelo ba lekgotla la bofuputsi bo bohlokwa tshebetsong e ntle le ho ba molaong.
Ho ya ka maikemisetso a sekamolao se akaretsang Hlooho ya Mokgatlo e tla ba boemong ba Molaodi wa Phethahatso ho nnetefatsa boikemelo le ho se be le leeme ha IPID. Ho ya ka leano la boikemelo le puso e ntle, ke tshwanelo hore setlamo se thonyang se kenyeletse ditho tsa palamente le batho bohle ba nkang karolo ba sisintsweng le ba bang ba amehang ba kgethilweng. Molaodi wa Phethahatso a ka nna a fetisetsa dinyewe ho NPA bakeng sa ho tjhutjhisetswa ditlolo tsa molao.
Hona ke mokgwa o hlokolosi wa sepolesa, le mofuta wa lebotho leo re le labalabelang re bile re lakatsa ho le bona ha re ntse re tswelapele.
Sekamolao sena se beha ka sehlohlolong ntwa kgahlanong le ditlolo tsa molao. Re ikitlaeditse ho lwantsha ditlolo tsa molao tse mpefetseng haholo, haholoholo ditlolo tsa molao tse nang le dikgoka kgahlanong le bana le basadi. Ntwa ya rona kgahlanong le ditlolo tsa molao ha se ya matsoho empa e molaong, ka mekgwa e kenyeletsang sepolesa sa setjhaba, ho phethisa molao le tlhompho ya hore motho o nkuwa a se na molato. Sepolesa sa rona se tshwanela ho hlompha taba ya hore mmelaellwa o nkuwa a se na molato ho fihlela a fumanwa a e na le molato lekgotleng la dinyewe.
Molao o tla nnetefatsa hore puso ya molao e a latelwa ka nako tsohle, le ke baphethisang molao. Sekamolao sena se ananela haholoholo kamano pakeng tsa meralo le tshebetso ya molao. Mapolesa a rona a phethahatsa molao o hlokang ho tataiswa ke sekamolao sena kamehla. Komiti ya Tshireletso le Ntshetsopele ya Molaotheo e hlahisitse dihlomathiso tsa setegeniki ho amahanya sekamolao le Mohopolo wa Thibelo ya tlolo ya molao le boikarabelo le boikemelo jwalokaha e hlaha ho Molaotheo wa rona. Sekamolao sena se sebetsana le boikemisetso ba seabo seo baahi ba tlamehang ho ba le sona tekolong ya sepolesa. Ntshetsopele ya melao ena e tla nnetefatsa hore dikgoka tsa malapeng di tloswa ho ICD mme di behwe tlasa Secretariat.
Ntlhakemo ya rona e hatella hore ditlolo tsa molao kgahlanong le basadi le bana di dula di le sehloohong mmusong. Dinyewe tsa peto le teteko ya basadi le bana di tshwanetse ho behellwa ka sehloohong.
Sekamolao sena se hlahella e le mokgwa wa ho matlafatsa kamano pakeng tsa ICD le Civilian Secretariat ya Sepolesa. E tla ntlafatsa botebo ba kamano e be e matlafatse tshebedisano pakeng tsa mekgatlo ena e mmedi. Ka tsela ena re lebile tebisong ya demokrasi ya sepolesa.
Re sisintse dihlomathiso tse ding ho matlafatsa bokgoni ba Civilian Secretariat ho nnetefatsa hore mokgwa wa ho tlatsa dikgeo o etswa ka bokgabane nakong e sa fediseng pelo. [Mahofi.] Re hlokomela hore ho ya ka nalane, Secretariat ya Naha e nka thomo ya yona ho Molaotheo le Molao wa Sepolesa. Karolo ya 208 ya Molaotheo e batla Letona la Sepolesa ho thea Civilian Secretariat e sebetsang ka kotlolloho tlasa bolaodi ba taelo ya Letona.
Karolo ya bohlokwa ya Secretariat ke ho tla fana ka ketapele ho kenyeng tshebetsong ha maano tshebedisanong mmoho la banka karolo. Sekamolao sena se matlafatsa ho ikemela ha lekala lena mme se hlakisa ka ho otlolloha boikarabelo ba Letona le Matona a ikarabelang ka tlasa sepolesa sa diprofinsing le ho amahanngwa ha ditshebeletso tsa sepolesa naheng ka bophara. Sekamolao sena se tiseletsa le tshebedisano mmoho dintlheng tse amanang le tsa sepolesa hore ho se ke ha ba le dikgohlano.
Dikamolao tsena tse pedi di bohlokwa ntweng kgahlanong le bosenyi haholoholo tlhekefetso ya bomme le bana.
Re le ANC re tshehetsa dikamolao tsena ho thusa ho lwantsha bosenyi le ho aha setjhaba se senang botlokotsebe ho batho bohle. Ke a leboha. [Mahofi.] (Translation of Sesotho speech follows.)
[Mr T M H MOFOKENG: Deputy Chairperson, hon members of the National Council of Provinces, Deputy Minister of Police Maggie Sotyu, let me first take this opportunity to congratulate you on your appointment as Deputy Minister of Police.
I would like to start right at the back, in the year 1992, with the ANC’s document “We are ready to govern”, which suggested that in the new democratic dispensation in South Africa, allegations of police corruption would be dealt with through an independent process of investigation. The goal was to establish a police force which is accountable to the community it serves, in an independent manner and free from bias. This is the ANC’s vision for the police in postapartheid South Africa. Hon Chairperson, this vision is the foundation for building trust as well as introducing relevant Bills to that effect.
Currently, section 53 of the South African Police Service Act gives a legal mandate to the Independent Complaints Directorate, ICD, and it leads to section 18 of the Domestic Violence Act, Act 116 of 1998. This Act prescribes that it is bad conduct for a member of the police not to obey instructions accordingly.
This mandate stipulates that the actions of the police should be within the bounds of the law as well as the principles of accountability. This mandate protects the ICD’s investigations into the police in order to combat crime. We are grateful that under constitutional democracy the police won’t be a law unto themselves.
The ANC’s 2009 election manifesto is further proof of a long-held view of combating crimes against women and children by increasing the police’s capacity to deal with cases of such a nature. The increase in violent crimes has necessitated the bolstering of the SA Police Service. As a result, these kinds of crimes have been regarded as priority crimes by our government.
For many years different research findings and reports of Parliament highlighted many challenges that the police and the Independent Complaints Directorate agreed upon.
These challenges exposed the difficulty of implementing the Domestic Violence Act, which happens to be part of the mandate of the ICD. The research as well as the reports also exposed the lack of capacity in ensuring proper investigative skill on the part of the ICD in dealing with bad conduct or corruption in the police, which also involves failure to adhere to the Domestic Violence Act. In fact, there is a lack of follow-up on cases by the ICD, as well as ensuring that it adheres to its own principles. As a result the Independent Police Investigative Directorate Bill is intended to close that gap.
Hon Chairperson, the Independent Police Investigative Directorate, Ipid, will function independently without relying on the SA Police Service. According to the Bill, the independence of the Ipid is important in respect of its functioning as well as compliance with legislation.
According to the objects of the Bill, the head of the organisation will be at the level of executive management in order to ensure independence as well as fairness of the Ipid. According to the principles of independence and good governance, it is appropriate that the oath must include Members of Parliament as well as all the other relevant people who have been nominated. Furthermore, the presiding officer should be able to forward cases to the NPA for criminal prosecution.
This is an important policing method, as well as the type of police force that we wish to see as we move on.
This Bill regards as its priority the fight against crime. We are determined to fight heinous crimes, especially violent crimes against women and children. Our fight against crime is not personal but it is legal, which also involves the national police force, and honouring and respecting the principle that a person is considered innocent until proven guilty. Our police must respect the principle that a suspect is considered innocent until proven guilty by a court of law.
The Bill will ensure that the rule of law is followed at all times, even by those who implement legislation. The Bill welcomes the relationship between the draft and implementation of the legislation. Our police should perform their duties in a lawful manner and be guided by this Bill at all times. The Select Committee on Security and Constitutional Development introduced technical additions to link the Bill with crime prevention methods as well as responsibility and independence just as it appears in our Constitution. This Bill deals with the role citizens should play in the evaluation of the police. The implementation of this Bill will ensure that domestic crimes are removed from the ICD and become the responsibility of the secretariat.
Our standpoint emphasises the fact that crimes against women and children will always be a priority for our government. Crimes involving rape and women and child abuse should be the main priority.
This Bill comes about as a way of strengthening the relationship between the IPID and the Civilian Secretariat for Police Service. It strengthens the bonds of the relationship and improves co-operation between these two organisations. In this way we are heading towards the deepening of democracy within the police.
We have suggested some additions to strengthen the capacity of the civilian secretariat to ensure that the strategy of filling vacancies is done properly and in good time. [Applause.] We are aware that, according to history, the national secretariat gets it directive from the Constitution and the South African Police Service Act. Section 208 of the Constitution requires the Minister of Police to establish a civilian secretariat that works directly under the management of the Minister.
The most important role of the secretariat is to provide leadership in respect of implementing policies as well as participation of stakeholders. This Bill is strengthening the independence of this division, and it specifies the responsibilities of the national Minister and Ministers who are accountable for provincial police services as well as the linkage of police services nationally. This Bill ensures close co-operation on issues that pertain to police matters so that there is no conflict.
These two Bills are very important in the fight against crime, especially women and child abuse.
As the ANC we support this Bill in order to contribute to the fight against crime and to build a society free of criminality for everyone. [Applause.]]
Mr T B BEYLEVELDT: Madam Deputy Chair, hon members, hon Deputy Minister of Police, I prepared my speech in English for today, but as I moved forward, I was so encouraged that perhaps I should go and change it into Afrikaans.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Sorry, hon Beyleveldt, can you just hold on? Members, the air conditioning has been turned down, but because it is an old piece of equipment, it takes time to actually take effect. So, veteran, just keep your jacket fastened up. [Laughter.] Thank you. Continue, please.
Mr T B BEYLEVELDT: Thank you, Madam Deputy Chair. Today, we are debating two very important Bills: the Independent Police Investigative Directorate Bill, Ipid, and the Civilian Secretariat for Police Service Bill.
The Independent Police Investigative Directorate aims to ensure independent oversight of the SAPS and municipal police services. Furthermore, it must provide for the independent and impartial investigation of identified criminal offences allegedly committed by members of the SAPS and municipal police services. The directorate functions independently from the SAPS, but reports to the Minister of Police.
The civilian secretariat, however, must monitor the performance of the police and its policies. The secretariat will also be responsible for monitoring the implementation of the budget. According to both these Bills, the Minister must appoint the executive directors. The success of the Bills will depend on how independently the organisations will operate.
During a public hearing in Qwaqwa last week, members of the public complained bitterly about the behaviour of members of the SAPS. They alleged that after they had laid their complaints, their allegations were investigated by local friends of the police.
I do not say that it was the truth, but we need to protect the independence of the investigators at all costs, so that they can do their job without fear or favour. The manner in which the results of investigations will be handled will determine the legitimacy of the organisations.
Chapter 6 of the Bill makes provision for the appointment of fit and proper persons as investigators, according to certain laid-down guidelines. We trust that those appointments will be done in an open and transparent manner. Under no circumstances should political affiliation play a role in the appointments.
We, as citizens, want personnel with a strong set of values. They should be characterised by trustworthiness, show respect by honouring others, be responsible by being accountable, and be fair by being impartial regarding the needs of those they must serve and protect.
We want an environment where we have an open society with equal opportunities for all. We want to see to it that only the best men and women are entrusted with positions where they can ensure that only people with the highest quality of leadership are appointed to manage these two independent organisations that must give effect to our Constitution.
The question of sufficient funding will also be a fundamental imperative in determining the success of the operations. If there are only sufficient funds to appoint the top structures and not enough investigators to perform their duties, then we should reconsider our endeavours to serve the people of our country.
I conclude by asking: In South Africa, who is guarding the guardians? I thank you, hon Deputy Chair. [Applause.]
Mr M H MOKGOBI: Deputy Chairperson, Deputy Minister and hon members, I rise on behalf of the ANC, which adopted the Freedom Charter in 1955. This Freedom Charter was conceived by the ANC at its 1953 congress, and later the Congress Alliance led the processes, through volunteers, that resulted in the adoption of the Freedom Charter. Amongst the aspirations of the people in that process ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon member, could you please hold on. Hon Mlenzana!
Mr Z MLENZANA: Just to check, Deputy Chairperson ... [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): He is standing, unfortunately, he will ... [Laughter.] Order, members! Order! [Laughter.]
Mr Z MLENZANA: Deputy Chairperson, I am just standing to check if the hon member is ready to take my question.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I beg your pardon. Can you repeat that?
Mr Z MLENZANA: I am rising, Deputy Chairperson, to check if the hon member is ready to take my question.
Mr M H MOKGOBI: Yes, I am ready.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Your question?
Mr Z MLENZANA: Deputy Chairperson, is it correct for the hon member to stand at the podium and pronounce or announce on wrong history in terms of years?
Mr M H MOKGOBI: Can I respond, Madam?
Mr A G MATILA: Deputy Chairperson, if the member does not have listening skills, he should not ask questions. He was not listening because there was nothing wrong with what was said by the hon member.
Mr Z MLENZANA: There was!
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Mokgobi, are you prepared to answer hon Mlenzana?
Mr M H MOKGOBI: Yes.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Can you do so, please?
Mr M H MOKGOBI: Deputy Chairperson, in 1953, in case people are not aware, the ANC went to its conference. At that conference the need for a gathering where the vision of the people would be set out was deliberated upon. That was in 1953. In 1955, the Freedom Charter was adopted as a result of that. [Applause.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Mlenzana, I am not going to give you a chance to start a dialogue. That is history. Please, sit down. [Laughter.]
Mr M H MOKGOBI: Thank you very much, Deputy Chairperson. [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Veteran, may I plead with you to save our time as we don’t have much. If there is a query, would you please put it in black and white and then I will process it? Could you please allow the hon member to proceed.
Mr M H MOKGOBI: Thank you very much. To those who want political education, I am free after delivering this speech. I have documents with me and we will share them. [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Mokgobi!
Mr M H MOKGOBI: From there, clause 5 states that everyone shall be free and equal before the law. In that instance, during the April 1994 breakthrough, a serious fundamental process began to ensure that what was an injustice and declared as a crime against humanity by the United Nations was corrected.
The ruling party, which is the ANC, started the process, as from 2004, to undo what was a serious injustice against the people of South Africa. As we debate this Bill, we see a reflection of what people said during the gathering in 1955.
The two Bills seek to ensure that the people of South Africa are building a nation that will thrive under peace and harmony, precisely because we came from a nation that was defined differently before 1994. The other nation is the nation that was racially secured by law, and appointments and many other things were done on the basis of racial discrimination.
Now we are building a nonracial nation through our strategic objective. Firstly, the Bills that we are debating today are aimed at ensuring that the police force in this country responds to the issues of injustice irrespective of skin colour.
Secondly, we want to see the country being serviced by the type of police and justice system that would apply to each and everyone, regardless of colour. This is a fundamental objective of the ANC.
When we, as the ANC, went to Polokwane in 2007 — Polokwane was a conference for the ANC and the country — and when we went to Durban again to reassess how far we were, we emphasised the point that indeed issues of police services must be looked into. We gave a mandate to our deployees in Parliament to ensure that they come up with the type of law that will ensure that South Africans are safe.
We believe that these two Bills, particularly the Independent Police Investigative Directorate Bill, which tries to transform the ICD, will now ensure that the police are no longer doing as they wish; precisely because previously the police were doing as they wished, especially from a racial point of view. Now we want to see to it that they don’t do as they wish, and that they don’t for example investigate a murder without it being overseen. As we do so, the question of “shoot-to-kill” will be debated later and not now.
We have inherited certain police elements through our sunset clause, ensuring job security. We believe that there will be training to change the mind-sets and attitudes of members of the former police force, and to make them more oriented towards a democratic order through this Bill. This is because some of them are hard nuts; they don’t want to change and they still pursue a certain element within the system.
Through the Independent Police Investigative Directorate Bill, we will know that, indeed, the police will be monitored, and if there is any wrongdoing, the police will be brought to account. Previously, the Independent Complaints Directorate, ICD, as we looked at it, was there but did not have the teeth to bite.
We want a system that has the teeth to bite because the public wants a safe environment. If the system of safety is corrupt, then our people won’t be safe precisely because the police are not punishable. We do not have the power to return to them and punish the perpetrators within the police services.
Therefore, that is the essence of the importance of the Independent Police Investigative Directorate Bill, as created by the resolutions of the ANC in 2007, and in Durban 2010.
In terms of the Civilian Secretariat for Police Service Bill, we see the strengthening of the relationship, particularly between the management component and the Minister, and it also provides for overseeing the police.
The Civilian Secretariat for Police Service Bill and Independent Police Investigative Directorate Bill will work together to ensure safety and security, and ensure that, within the context of co-operative and intergovernmental relations, any element of corruption or crime does not go undetected in any unit within the departmental system. If we leave it too independent, some elements might end up in other units.
Therefore, we will have to ensure that the security force units work together within this context, precisely because what we call “collective work” will be reflected in reality within the departmental system. This is part of the national democratic programme of the movement. At the end of the day, we would want to see all people living together as equals, in harmony, free from fear and from war.
We had been living in fear for most of our lives before 1994, but we want everybody - even those who tortured us - to live with us in harmony, without any fear. They must not have any fear of the democratic order, because the Constitution explains clearly that everyone is equal. Therefore it is important that these two Bills be passed.
These Bills will also strengthen the work of the police in order for them to be able to prevent, combat, and investigate crime, and to protect and secure the inhabitants of this country. They must also be able to enforce a law that is guided by the procedures in the system that we put in place through these Bills.
After these Bills, obviously, there would be a particular regulation that would direct specifications on the behaviour of the police. As the ANC, we are en route and we are happy about what Parliament is doing. When we took over in 1994, we had to be fundamentally persistent in respect of transformation to put in place new laws that are in line with the Constitution.
That was a task carried out until 1999. From 1999 to 2004, we knew that our Parliament was seized with certain oversight, and had to ensure that after the oversight there was implementation.
We then moved from 2004 to 2009. During this time implementation was a core event in the Department of Police and Department of Justice and Constitutional Development; implementation was an issue.
These things inform us, precisely because when we check prior to where we are today, there was an outcry from the public that crime levels are too high. Now we are putting the system in place to ensure that crime is reduced. When crime is reduced, economic growth and development in this country indeed will be high.
In this way we will create a stable society where everyone in our nonracial, nonsexist, democratic country will enjoy the fruit of freedom. We are doing this because we are creating a country that is going to be much better. [Interjections.]
Yes, let us pass this Bill, to correct apartheid’s legacies. [Applause.] [Time expired.]
Mr K A SINCLAIR: Deputy Chairperson, on a point of order: I didn’t want to interrupt while the member was speaking, but it’s important that the Chairperson must also adhere to the decorum of the House. You referred to the hon Mokgoro as “Veteran”. I think it’s unparliamentarily to do that and I want to request you to call him by his name. [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Unfortunately, dear hon Sinclair, you are out of order.
Mr A FRITZ (Western Cape): Madam Deputy Chair, members of the NCOP, the Deputy Minister of Police – I acknowledge you – ladies and gentlemen; allow me at the outset to say that although the Western Cape government opposes the Civilian Secretariat for Police Service Bill, we fully subscribe to the need for the secretariat to be empowered.
Viewed through a national lens, the Bill makes provision for proper policing, oversight and monitoring, which is most welcome. However, from a provincial basis, the Bill got its wires crossed and confused the powers and functions of a secretariat with those powers exclusively conferred on the provinces by the Constitution of South Africa.
This is why, as a province, we do not support the Civilian Secretariat for Police Service Bill. This is the primary reason for opposing the Bill. All South Africans must jealously protect our Constitution, and it is our opinion that this Bill is inconsistent with certain provisions of the Constitution. I will highlight only a few examples.
The Constitution confers powers on the provincial executives to monitor police conduct, oversee the effectiveness and efficiency of the SA Police Service and to promote the relationships between communities and the SAPS. The provinces also have legislative competence to regulate these functions.
However, Chapter 4 of the secretariat Bill provides for the very same monitoring and overseeing of the police service by a provincial secretariat. We believe that this is inconsistent with section 206(4) of the Constitution, which provides that the provincial executive is the reasonable body for these policing functions, which include monitoring, assessing and overseeing the police services.
These policing functions are reserved for the provincial executive and may not be assigned by national legislation, even to a provincial organ of state such as the provincial secretariat.
From a legal perspective, the Western Cape is of the opinion that the provision regulating the status of the provincial secretariats is ambiguous and that interpretational difficulties may arise. If the intention is for the regionalisation of the secretariat described in section 208 of the Constitution, it must clearly say so; and again it must be stressed that the secretariat cannot encroach on the functions of the provincial executive.
Chapter 3 of the Constitution determines that each sphere of government, and all organs of state within each sphere, must respect the constitutional status, institutions, powers and functions of government in the three spheres; not assume any power or function except those conferred on them in terms of the Constitution; and must exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.
The Bill, therefore, is in disharmony with section 41 of the Constitution as it attempts to assume functions conferred on provinces and thus does not respect the constitutional stature of the provincial government.
I urge the drafters of the Bill to study section 100 of our Constitution. I sometimes think that we don’t read the Constitution! This clearly spells out when and how the national executive may intervene in provinces.
The Bill addresses this very important issue in a very cavalier manner. The Constitution clearly states that where the national executive intervenes in a province, a notice of intervention must be tabled in this Council and then it must end unless the NCOP approves it within 30 days of its first sitting.
I want to say that this is an important House and the Constitution confers important powers to this House; and I think sometimes you make a joke of this House. The Bill, however, ignores these constitutional imperatives and refers to interventions for 90 days at a time.
It is important to understand that a civilian secretariat really is a civilian secretariat. The drafters of the Bill erroneously argued for the independence of the secretariat - as if that will solve the problem of a weak and dysfunctional secretariat. And why should the Civilian Secretariat for police Service be any different from that of defence?
I urge members to read sections 204 and 206 of our Constitution. Section 204 reads:
A civilian secretariat for defence must be established by national legislation to function under the direction of the Cabinet member responsible for defence.
Section 208 is an exact duplication bar the words “police service” for “defence”.
I want to conclude by reiterating that the Western Cape supports the idea of empowering the secretariat. We fully acknowledge that, at present, the SAPS, which should receive its budget and policy directives from the secretariat, treats the secretariat as a nuisance. But the solution is not to create a separate department; the answer is in the White Paper.
The Department of Defence is structured along similar lines. Please let us look at this important piece of legislation again. I thank you, Madam Deputy Chair. [Applause.]
Mr P C MCKENZIE (Western Cape): Hon Deputy Chairperson, it’s an honour to be here in this House, and thank you for the invitation, and my congratulations also to the Deputy Minister in this portfolio.
What we are looking for in South Africa is a credible, honest, dependable and true service. Whatever political party we belong to, what we really want to see and know is that the men and women in blue have our interests and safety at heart.
For that reason, I want say thank you to this Parliament for coming up, as one of the first stages, with these two Bills. This is because what these Bills really do is that they are trying to show the seriousness of this government in combating crime, even if that crime is committed by the SA Police Service.
I believe that we are really serious, and what the public out there wants to see is that we don’t really waste time on certain technicalities. But if these Bills are passed, are our citizens going to be safer out there: Yes or no?
Crime must be fought and the public must see that crime does not pay, especially when hon members here and I would get phone calls, sometimes in the middle of the night, to say a policeman had just raped a girl.
The worst thing is that when that happens, the Independent Complaints Directorate, ICD, would not be available; their telephone would not be available in the middle of the night. What happens is that the same policeman who has raped the girl must take the complaint.
I believe that those people will now realise that this is not a police state. The police will be responsible for their actions, whatever they may be. These Bills will help us to have a credible police service and the citizens will respect our men and women in blue.
Let me say that the scenes and sights that we saw on television the other day, which are happening in KwaZulu-Natal - I don’t know if it was staged or not – where a policeman was sitting on someone and hitting him, must not be tolerated in South Africa.
Minister, talking about the Western Cape in particular and looking at some of the things our Metro Police are doing, I want to say that the police are not a law unto themselves. We, as leaders and representatives of our people, with the support of these Bills, entrust them with the power om daardie mense vas te vat [to clamp down on those people].
I don’t know how to say that in English. I need to say this because not only do I speak on behalf of the ANC here, but I’m also from the Western Cape.
Do you know that these two Bills were discussed in our legislature, but I promise you that it’s the first time that I have heard the sentiments in this regard that I have heard from the MEC today. There is no record in any document in the Western Cape that these were the sentiments that the MEC has just shared.
In fact, I am actually surprised that these Bills are before this House when the MEC did not discuss this in the Minmec. We must try to not play politics. We must begin to be honest. These Bills do not take away any power from the present Constitution; they do not.
Let me tell you that I know that the MEC is new at this, so I’m taking care here; he needs some help. I know that, and won’t go against him because every one of us must learn.
The power that the Constitution gives to all provinces, not only the Western Cape, is that if there is anything wrong with these two Bills, the Constitutional Court will never approve them. I would therefore challenge them to take this to the Constitutional Court and let’s see who will be right then. This province has borne the brunt of men and women in the police who are not acting correctly.
Let me say how a mandate was arrived at in the Western Cape. These Bills came before the Western Cape parliament twice. In fact, the first time they came before the province, I actually got up in the House and said that it was a mistake for these Bills to come before us then because we were told that there was no deadline at that time. At that session, we even asked for a division in the House. So, seriously, the Western Cape was divided on this issue.
It was not a unanimous decision that they must vote against the Bills here. All political parties, excluding, of course, the DA and ID who are in agreement with them, voted for these Bills and also those who were not in agreement with them voted that these Bills must be approved. [Interjections.]
You just read the Hansard and you’ll get the answers.
Do you know that when they came before this House the second time, the House was so wrong. In fact, the Leader of the Opposition talked about democracy in the House; as a result all the opposition parties, including the ANC, had to leave the House and walk out. The only remaining parties, and not the full ... [Interjections.]
Mr A WATSON: Madam Deputy Chairperson, on a point of order: The proceedings of a provincial legislature have absolutely nothing to do with these Bills. I suggest that the member prepares a better speech next time.
Mr P C MCKENZIE (Western Cape): Deputy Chairperson, the proceedings of the legislature are important so that members can know how a decision was arrived at with regard to the amendments.
During the second time, everyone had to walk out of the House and the only people who remained were the DA and ID. Do we know that then these Bills were pushed through the House without knowing that, a week prior to that, the opposition made a standpoint in the House to say that we support this Bill?
I want to say that, firstly, this was not a unanimous decision. Secondly, from the other members of the House, we support these Bills and we want to see them implemented in the way that they are before this House. We also want to see that these Bills will bring a better quality of life to all the citizens of this country; whatever their colour, and that is what we stand for. I thank you. [Applause.]
Mr M W MAKHUBELA: Deputy Chairperson and the Deputy Minister of Police, what a fitting and correct appointment the President made with the Deputy Minister because she knows everything! [Applause.]
As Cope, we note these two Bills. It is very interesting, however, when you check these two Bills, that the Independent Police Investigative Directorate Bill deals with the conduct of the police. At the same time there was an amendment to the Criminal Procedure Act, which deals with the conduct of section 49(2). Here the Minister has three pillars: the secretariat, Ipid and the police. You tell a child to hit hard; you tell another child to put - what do you call it - a disciplinary action on that particular person.
Now the Minister also came back with the military ranks in order to give fuel to the police to shoot. At the same time here is the Bill - you are coming here with two very good Bills. What is the rationale for this? Will the Minister sit down and try to relay that when the police use the force, even though the Ipid is there, they should be sensitive when dealing with that? This is a very good Bill on the Ipid, but is there any capacity? I want to see the branch or unit at Jacobsdal helping people there on the ground.
At present, there are 197 000 or 200 000 police members. How many directorates are there to deal with the situation? How many secretariats are there? Some of the monitoring mechanisms have been removed from the Ipid, in order for them to come to the secretariat so that they can strengthen them just to fill posts there.
We don’t want a federal state; we want a continuous chain of command from the national commissioner to the national Minister and down. The MEC cannot come with his or her own rules analysis and say, “Okay, he or she has done this or that”. But I want to tell you this is a wonderful Bill.
Minister, what you can do is to line up the strategy about the budget – yes, I used to control the secretariat and give them the budget. She is right! But now, Deputy Chairperson, really, I am very moved by these two Bills.
Just check, when you go on to the implementation of this; we must try to sensitise or to have these things connected together so that we can move with them. I support the Bill as Cope. Thank you.
Mr M G WILEY (Western Cape): Madam Deputy Chair, thank you very much. I too would like to extend my congratulations to those who have made maiden speeches here this morning, and also to the Deputy Minister on her appointment. I noted with interest her remark about “he is my friend”, and would like to remind her that some other person in this line of policing said, “He is my friend, finish and klaar!”
One wonders if the new Ipid is going to have the ability or the spine, when a National Commissioner of Police of steps out of line, to be prepared to take the national police commissioner to task. That really is where the nub of this matter lies.
Independence itself is not a matter of degree; either a body is independent or it is not. The criteria determining independence are judged as set out in the heads of argument filed by the Helen Suzman Foundation in the recent appeal before the Constitutional Court in the Glenister litigation, in which the reinstatement of the Directorate of Special Operations is sought.
The question, therefore, remains: Who will guard the guardians? For those of you who know a bit of Latin: Quis custodiet ipsos custodes, which is also the national motto of our intelligence agency.
The existing Independent Complaints Directorate in South Africa is not functioning well. This has been admitted by the Deputy Minister, and I think that we all agree that it has severe shortcomings. But any body formed to investigate and adjudicate upon a criminal activity needs to enjoy a measure of independence for it to function properly and in accordance with those requirements of law.
Fairness is at the core of the rule of law. I listened with some interest to some of the remarks made, especially by my colleague in the Western Cape legislature, Mr Patrick “Promises” McKenzie, who said that we are arguing a technicality; but we are arguing about constitutional law. The Constitution of South Africa is not a technicality.
This House is here to protect the rights and responsibilities of the provinces, both to hold it in judgement and, at the same time, to support the powers of provinces. The argument made by the hon MEC for Community safety did just that.
As far as the Western Cape is concerned - just to put your minds at ease about whether we just took unilateral decisions or not - what we did was to hold four public hearings. We had over 40 community police forum chairpersons who attended the public hearings. We had inputs and evidence from lawyers, from departments and the like. We gave that information.
We also had input from the two sponsors of the two Bills. We gave the findings of those hearings to the various sponsors and, in the case of the Independent Complaints Directorate, they declined to answer the arguments as raised in the hearings by the public and simply said that the department supports the adoption of the Ipid Bill.
In other words, they weren’t prepared to even discuss the technicalities or arguments that had been raised. They are simply trying to force through a Bill, despite the fact that there is a very credible legal argument - specially as far as the Independent Police Investigative Directorate Bill is concerned - that proper independence is not involved.
The Bill says that the directorate functions independently of the SA Police Service. It is the opinion of the Western Cape Standing Committee on Community Safety that the independence afforded by the IPID Bill is grossly inadequate.
The directorate, although removed from the SAPS, continues to reside under the Ministry of Police. The Minister is therefore the political head of both the SA Police Service and the directorate. The Minister in question is therefore the responsible Minister against whom complaints may be lodged in terms of the Bill.
If one is concerned about whether the Minister may or may not involve himself in the matters of policing, I refer you to an article of 10 November 2010 which reported that Minister Nathi Mthethwa issued an instruction for the boys to be arrested, and that this was done. That was in regard to that case of those youngsters who filmed each other having sex, and it was a case of rape. They arrested the kids and then had to let them go because due process had not been followed. I thank you. [Time expired.] [Applause.]
UMntwana M M M ZULU: Phini kaSihlalo waleNdlu, namalungu ahloniphekile, Phini likaNgqongqoshe noma selingasekho, njengenhlangano ye-IFP siyawemukela ngokupheleleyo loMthethosivivinywa Wophiko Lwamaphoyisa Lophenyo Oluzimele ngoba uyinto enhle kakhulu ekusebenzeni.
Kwakungamele nakancane kuvunyelwe amaphoyisa abengonqeqe bezazi zomthetho, bavele badubule abantu bakithi. Sebekhulumile abanye abafowethu abangaphambili kwami kunomuntu oyedwa odlala imidlalo eminingi ngingeze ngagxila kukho lokho ngoba akufuneki umuntu anikeza ukuba abantu benze okuthile kwabanye bese etshela abanye ukuthi benze okuthile kwabanye. Into edidayo-ke leyo.
Into esifuna ukuyiphakamisa eqenjini elibusayo uma behlongoza okuthile okuhle kumele sikuxhase lokho, ukuze ezweni lethu kuzoba khona ukuchaza nokuzibophezela kuzo zonke izinhlaka zikahulumeni. Ukungaziphathi kahle kwamaphoyisa akuzukwamukeleka, uma ngingenza isibonelo esisodwa, kukhona umfana esifundeni sakwaNongoma endaweni okuthiwa uSuthu, kwathiwa lomfana wadlwengula intombazane encane.
Lo mfana wayengesona isigebengu wayeyisakhamuzi sendawo, eziphuzela amambawa njengawo wonke umuntu. Ngalolo suku wathola lengane ishiywe ngabazali bayo wase uyayithatha, uhamba nayo endlini. Emva kwalokho wase eboshelwa ukuthi uyidlwengulile. Amaphoyisa amshaya waze wafa, lelo kwakuyicala elikhulu.
Ngalawo magama Ngqongqoshe ohloniphekile ngifuna ukuthi osopolotiki abangagxambukeli emsebenzini wamaphoyisa.
Ngoba uma singagxambukeli emsebenzini wamaphoyisa, amaphoyisa angenza umsebenzi omuhle.
Loluphiko olusha lwamaphoyisa kumele lwethulwe kuNdunankulu ngamunye wesifundazwe ngasinye ukuze sazi ukuthi kumele aziphathe kanjani. Uma kumele sichaze kuMkhandlu kaZwelonke Wezifundazwe noma kuphi akusho lutho ukuthi iPhalamende lihlezi kuphi.
Kumele sikhombise abantu bethu ukuthi iPhalamende akulona izulu. Sifuna ukwazi ukuthi kwenzakalani kusifundazwe ngasinye futhi abantu kufanele bazi.
NjengeIFP siyayesekela leMithethosivivinywa emibili ukuqapha ukuziphatha kwamaphoyisa. Ngiyabonga. (Translation of isiZulu speech follows.)
[Prince M M M ZULU: Deputy Chairperson of this House, hon members and the Deputy Minister in absentia. The IFP fully accepts this Independent Police Investigative Directorate Bill because it is good.
The police were not supposed to be allowed to be super experts in legal matters, who just randomly shoot at our people. My fellow brothers who have spoken before me, there is a person who plays a lot of games but I would not concentrate on that because that person is sending mixed messages. This is confusing.
What we want to say to the ruling party is that if they propose something good, we must support it, so that there can be accountability and commitment in all spheres of government. Inappropriate conduct by police officers is not going to be tolerated. If I can give just one example, there was a boy in the district of Nongoma in a place called uSuthu, who was alleged to have raped a young girl.
This boy was not a criminal; he was a member of the community who used to drink beer like anyone else. On that particular day, he found this child abandoned by her parents and took her to his home. Thereafter he was arrested because it was alleged that he raped her. The police fatally beat him up, which was a serious crime.
With those words, hon Minister, I want to say that politicians should not interfere with police work. If we don’t interfere, the police would do an excellent job.
This new police unit must be presented to the premier of each province so that we know what to expect from them. If we have to explain this to the National Council of Provinces or anywhere else, it doesn’t matter where Parliament will be sitting.
We must show the people that Parliament is not heaven. We want to know what is happening in each province and people should be informed.
As the IFP we support the two Bills on monitoring the conduct of the police. Thank you.]
Mr A G MATILA: Deputy Chair, firstly ke rata ho lokisa taba e le nngwe [I would like to rectify one thing].
We have indicated, previously, that the Western Cape is not an island; it is part of this country. The MEC who spoke in Bloemfontein, when the President of this country and the premier were there, indicated to them that anything that is black is unqualified, whilst they have in their own midst people who are unqualified. If you go to the Western Cape now to check how many unqualified white males are leading departments there, you will be shocked.
Premier Ace Magashule had a document to show to them and they ran away. Some of them, seated here, own a lot of farms that they never bought. Now, the point I am raising here ...
Mr A WATSON: Madam Deputy Chair, I have a point of order.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson...
Mr A WATSON: The member said a lot of the ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson...
Mr A WATSON: Madam Deputy Chair?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I have given you the floor.
Mr A WATSON: Thank you, Madam Deputy Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, behave.
Mr A WATSON: The hon member at the podium said that a lot of the members sitting here own farms that they never bought. That statement is out of context and he must withdraw it.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson, may I say to all members here that someone will be taking that statement and analysing it, and if need be, steps will be taken. Continue, hon Matila.
Mr A G MATILA: Deputy Chair, I know the guilty will always rise.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Just hold on. Hon Lees?
Mr R A LEES: Deputy Chair, is it parliamentary for an hon member of the House to accuse another member of being guilty?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Lees, I have made a ruling on that utterance and steps are going to be taken.
Mr A WATSON: No, no, Madam Deputy Chair, sorry; this is a new matter. The member said that those who have risen are guilty. I am the one who rose; he then implies that I am guilty. He must withdraw. You cannot postpone everything. We are raising points of order and you must rule on them, please. That is your job, Madam Deputy Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): With due respect, hon Watson, I made a ruling that the matter will be taken over. Now you are actually ... [Interjections.] Listen, listen! I listened to you when you rose in a huff, and right now I have made a ruling and I am going to pursue that. Continue.
Mr D V BLOEM: Maybe to help, Mama, let us take a short ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, is it a new matter?
Mr D V BLOEM: Yes, Mama. Maybe we must take a shortcut. Let the hon member name and shame and then it’s closed. [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, unfortunately, we are not the investigating team. I have made a ruling; can you please abide by that?
Mr D V BLOEM: I withdraw, Mama. [Laughter.]
Mr A G MATILA: Deputy Chair, Premier Magashule...
Mr K A SINCLAIR: Madam Deputy Chairperson, on a point of order: Is it parliamentary to call the Chairperson “Mama”? [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon, Sinclair, let’s not waste any more time. I am even more than a Mama. In isiZulu, it is not an insult. [Applause.] Continue, hon member.
Mr K A SINCLAIR: Deputy Chairperson, I am very serious on this point. It is fine; we agree that you are a Mama, but there are certain procedures and parliamentary protocol that we must adhere to. I have great respect for the hon Bloem, but to call you “Mama”, I think, is unparliamentary. [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Thank you, hon member, but I am not going to entertain that; continue.
Mr A G MATILA: There is a problem with two Copes here.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): No, continue.
Mr A G MATILA: The one is trying to cope, the other one I’m not sure ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Both of them are Cope members, and please do not waste time. Continue.
Mr A G MATILA: Deputy Chair, I think I am not going to read my speech, I’m going to ... [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, this is final!
Mr A G MATILA: You see, hon Bloem, I think it is important for you to second some of your members to these committees.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Matila, can you stick to the discussion? [Applause.]
Mr A G MATILA: No, Deputy Chair, I am on the discussion, because this matter was raised earlier. I want to correct it, you see, because people are calling themselves Cope, but they do not understand the history of the organisation, because they quote different dates. [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Is it a new thing?
Mr D B FELDMAN: Yes, it’s a new thing.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): All right.
Mr D B FELDMAN: I think the member’s time has expired. Thank you. [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): You are very wrong. Continue.
Mr A G MATILA: Deputy Chair, this House is not here to protect provinces. This House is here to deal with the interests of provinces. It’s not to protect; because you can’t protect wrong things. The MEC and the chairperson from the Western Cape want to protect wrong things.
I am referring to that precisely because of what the President of this country and Ace Magashule, the Premier of the Free State, indicated to them in the Free State: that they are looking at black and white people differently. I am saying this precisely because that is a racist approach, and Ace Magashule said that it is a racist approach and that it is wrong. [Interjections.]
The second thing that I wanted to bring to your attention is that these two Bills are here to strengthen and make sure that the wrongs of apartheid are dealt with properly, because they are strengthening the police. They are assisting the police. We must be aware that the police force, during apartheid, as the President has indicated, was highly corrupt. They were a law unto themselves.
Ace Magashule indicated that some of you were sitting in the National Party, making those particular laws and protecting the policemen while they were doing all those wrong things. You know that you gave them a fund to kill Africans, black people? I pity ...
Mr A WATSON: No, no, Madam Deputy Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson ...
Mr A WATSON: No, Madam Deputy Chair, the speaker cannot look at me and say: “Do you know you gave them a fund?” [Laughter.] In any case, which Bloemfontein meeting is he talking about?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson, and those who were not in Bloemfontein, and even people who are seated here right now, at no stage has the hon member said “Watson”. I then say, please, no further interjections. Continue, hon Matila; keep to the point and go on.
Mr A G MATILA: Deputy Chair, maybe let ... But what is wrong?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Continue, hon Matila.
Mr A G MATILA: Deputy Chair, as the ANC we are saying ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Matila, continue and go straight to the point.
Mr A G MATILA: Deputy Chair, as the ANC we say we support this particular Bill ...
Mr A WATSON: Madam Deputy Chair, can I just get a point of clarity?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Just hold on.
Mr A WATSON: Just on a point of clarity, both you and the speaker referred to Bloemfontein. When were we in Bloemfontein?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Is it a new matter, Mr Watson?
Mr A WATSON: Yes, I want to know which meeting in Bloemfontein you are referring to, Madam Deputy Chair.
Mr A G MATILA: The last sitting in Bloemfontein. [Interjections.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): That is the Free State.
Mr A WATSON: The Free State is not Bloemfontein, Madam Deputy Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Continue, hon Matila.
Mr A G MATILA: Thank you for your correction, Mr Watson; it is in Qwaqwa. Deputy Chair ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Continue. Your time is up.
Mr A G MATILA: I must indicate, Deputy Chair, I am sorry about this, I must indicate that, as the ANC ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): You have five minutes.
Mr A G MATILA: We will continue and we will make sure that this Bill is implemented, even in the Western Cape. Thank you.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): No, no, you have time; you have five minutes.
Mr A G MATILA: Deputy Chairperson, the purpose of this particular Bill ... [Interjections.]
Mr R A LEES: Hon Deputy Chair, hon Watson is not as handsome as I am.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I don’t know about that. [Laughter.]
Mr R A LEES: Hon Deputy Chair, is the member prepared to take a question?
Mr A G MATILA: Yes.
Mr R A LEES: Hon Deputy Chair, through you to the hon member: Does the hon member know in which province eThekwini is situated? [Laughter.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Continue, hon Matila. You don’t have to answer that.
Mr A G MATILA: eThekwini is in KwaZulu-Natal. eThekwini was previously Durban.
Deputy Chair, this Bill makes provision for establishing an Independent Police Investigative Directorate and regulating the functions of the directorate. The Bill provides for the establishment of a management committee and a consultative forum, and their respective powers. It also provides for reporting obligations and co-operation from members of the SA Police Service and municipal police services.
The essential changes that the Bill seeks to effect are summarised as follows. The directorate will be known as the Independent Police Investigative Directorate. The directorate has a specific and clearly defined mandate.
It is no longer complaints-orientated but investigation-focused. The Bill compels the police to comply with the directorate’s disciplinary recommendations. The responsibility to monitor police compliance with the Domestic Violence Act was removed and transferred to the Civilian Secretariat for Police Service.
The Bill creates clear lines of co-operation between the directorate and the municipal police and the SAPS, as well as between the directorate and the Civilian Secretariat for Police Service, and provides a mechanism for referral of matters from the directorate and Civilian Secretariat for Police Service.
The Bill provides for the establishment of a Civilian Secretariat for Police Service in the Republic in accordance with section 208 of the Constitution. The Civilian Secretariat for Police Service functions under the direction of the Minister. Furthermore, the Bill defines the objects, functions and powers of the Civilian Secretariat for Police Service, and, for this purpose, aligns the operations of the secretariat in the national and provincial spheres of government.
The Bill reorganises the secretariat into an effective and efficient organ of state. It regulates the appointment, duties and functions, powers and the removal from office of the secretary for the police and heads of provincial secretariats. Let me conclude and the rest will be read later.
In conclusion, the Select Committee on Security and Constitutional Development, having considered these particular Bills, moves that we adopt these Bills. I thank you. [Applause.]
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon members, I’m pleading with you. Can everybody in this Council be very attentive because we are calling back the Deputy Minister. [Applause.]
The DEPUTY MINISTER OF POLICE: Deputy Chairperson, Members of Parliament, and all parties who supported the fight against crime, to support this legislation is to support the fight against crime. If you don’t support it, it means you are comfortable with the level of crime that is taking place.
I would like to apologise on behalf of my Ministry for raising the blood pressure of some members in the House with these pieces of legislation.
As I have said, my time is very limited. I just want to thank hon Beyleveldt from the DA, who is concerned about the independence of the two structures. I have taken note of your concerns, and we are going to make sure that they indeed remain independent.
Hon Mokgobi, thank you very much for the political induction that you gave the House. Chairperson of the portfolio committee, and members of the ANC, thank you very much for giving your guidance with regard to these two pieces of legislation. To the Western Cape MEC, and the chairperson of the committee in the Western Cape, unfortunately, when we legislate, we legislate for the country and not for a certain province. We legislate for everyone, as government.
This Bill is about fighting crime effectively and not about giving powers to provinces to do whatever they want to do. It is about fighting crime in this country. Secondly, I would like to say let’s concern ourselves with fighting crime and not with fighting one another to keep our power. It is not about that, but it is about fighting crime. That is the purpose of these two pieces of legislation.
This piece of legislation deals with the police. It does not deal with defence. Defence and the police are two different structures with two different mandates. So, there is no way they can be the same. They can’t be the same and they won’t be the same.
To my friend over there, I told you that you are my friend and, indeed, you did attest to that. Hon Makhubela from Cope, I would like to thank Cope for supporting that.
...abazi bona ukuthi mina nawe sivelaphi na? [... they do not know where we are coming from.]
I have listened to two or three people who mentioned the issue of “shoot to kill”. To shoot to kill was never a policy of the ANC, but we are saying that if the police find themselves confronted by such a situation and an accident happened in such a way that someone dies, that person shouldn’t be the police member. That is what we are saying. Thank you very much, Deputy Chair, and thanks for the support. [Applause.]
Debate concluded.
Question put: That the Independent Police Investigative Directorate Bill be agreed to.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): That concludes the debate. I shall now put the question in respect of the First Order. The question is that the Bill be agreed to.
In accordance with Rule 71, I shall first allow provinces the opportunity to make their declaration of vote, if they so wish.
Before I continue, are all your cards in, or where they are not working, can the members be supplied with the voting papers?
I now call upon the provinces to vote: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West and the Western Cape. Have all the provinces voted? Voting will close. Could the Table staff submit the results?
Hon members, as we all understand the ruling, the Northern Cape has not sent in the relevant paper. So, in that case, it means then that the Northern Cape vote will not be accepted. Can the Northern Cape make a follow-up on that, that the mandate was not received?
Mr G G MOKGORO: Deputy Chair, I will definitely make a follow-up. It is the first time I come across something like this.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I think it’s a delay on the part of the provincial officers. But right now, in this case, I can’t accept the Northern Cape vote.
This means that out of the nine, the Western Cape has not voted in favour. They have abstained, which has left us with eight. Now we are cutting off the Northern Cape and we are left with seven. The policy allows us then to declare the Bill accepted. [Applause.]
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West.
AGAINST: Western Cape.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
Mr A WATSON: Madam Deputy Chair, on a point of order ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Yes, sir!
Mr A WATSON: There is no way that this House can vote for two Bills at the same time.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): No, no! I am correcting that. We are now going to be voting for the second one. Thank you.
Mr A WATSON: Then we must start afresh if you are ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): We are now going to vote for the second one! Thank you.
Mr A WATSON: But you didn’t announce that we are voting for the first one.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I am announcing it, Mr Watson, thank you very much.
Now, can we vote for the second one. I shall now put the question in respect of the Second Order. The question is that the Bill be agreed to.
Question put: That the Civilian Secretariat for Police Service Bill be agreed to.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): In accordance with Rule 71, I shall first allow provinces an opportunity to make their declaration of vote, if they so wish.
We shall now proceed to the voting on the question. I shall do this in alphabetical order per province. Delegation heads must please insert their cards.
Before I call the vote, please press button number one to confirm your presence. There should be a light flashing. If not, the Chamber staff will assist you.
We now come to the voting. When I call the name of the province, the delegation heads will vote by pressing button number four for those who vote in favour, button number two for those who vote against, and button number three for those who abstain.
I now call the provinces to vote: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape? [Interjections.]
Mr G G MOKGORO: I just want to know whether the second Bill’s mandate has been received.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Has it? No, ok, so it has not been received.
North West and Western Cape? Have all the provinces voted? In case there is any member who has mistakenly pressed the incorrect button, he or she now has an opportunity to press the correct button. Voting will close. Table staff, could you submit the results?
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West.
AGAINST: Western Cape.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
DEFENCE AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mong T M H MOFOKENG: Ke a leboha, Motlatsamodulasetulo.
Sekamolao sena maikemisetso a sona ke ho tla beha boikarabelo ho batho ba ithaopang lebothong la sesole hore ba tlamehe ho fana ka ditshebeletso tsa bona; le ho tla theha khomishene ya ditshebeletso tsa sesole; le ho tla fana ka lohotho ya tlhaloso ho se bitswang “military command”.
Mafatsheng ka bophara lebotho la tshireletso le hlomamisitswe ka batho ba banyane bao e kang ba fuwe kwetliso e boima. Mme ka mora mona ho na le bao ba fanang ka ditshebeletso tsa bona feela ka ho ithaopa.
Maemong a naha ya rona mona, batho ba ithaopang sesoleng ba fana feela ka ditshebeletso tsa ho ithaopa nakong eo ba hlokwang, mme ha ho na letho leo le ba qobellang hore ba itlalehe kwetlisong, le hore ba fane ka ditshebeletso tsa bona nakong eo ho tlamehang hore ba tlo thusa ka maemo a polokeho dinaheng tseo ho nang le dintwa le ho hloka botsitso.
Ba qobelehile feela ho fana ka ditshebeletso tsa bona nakong ya ntwa le maemong a qomatsi, le ha ba tlamehile ba fane ka tshebeletso tshireletsong ya naha. Hona ho etsa hore ho be thata ho ba apesa morwalo wa tshireletso hore ba fane ka mehlodi moo e tlamehileng hore e fanwe teng.
Sekamolao sena se etsa hore batho bao ba ithaopang sesoleng ba tlamehe ho fana ka ditshebeletso tsa bona ha ho hlokahala hore ba fane ka ditshebeletso tsa bohlokwa; ba tshehetse mafapha a mmuso; le moo ba tlamehileng hore ba tshehetse teng ho sebetsanwe le ho nyollwa ha maemo a moruo; le ho fana ka tshireletso meeding.
Ho a hlokahala hore maemong a tjena, ka ha ditekanyetso tsa lefapha di ntse di fokotseha, sekamolao sena se kenngwe tshebetsong. Komiti, ka morao hore e sekaseke sekamolao sena, e tshehetsa sekamolao sena. Ke a leboha. (Translation of Sesotho speech follows.)
[Mr T M H MOFOKENG: Thank you, Chairperson. The objects of this Bill are to make Reserve Force members accountable so that they can assist with their services; to establish a Defence Force Service Commission; and also to provide a definition for what is called “military command”.
In countries around the world, the defence force comprises few people who have been trained very thoroughly. On the other hand, there are those who provide their services voluntarily.
With the situation in our country, Reserve Force members provide their services only when they are needed. There is nothing forcing them to report for training, and also to provide their services when there is a need for assistance with stability in other countries where there are wars and unrest.
They are only obliged to provide their services when there is war and during crisis situations, and also when their services are needed for protecting the country. This makes it very difficult to make them responsible for the country’s defence as well as provide resources where they are needed.
This Bill will ensure that all Reserve Force members are obliged to provide their services in the best possible manner, support governmental departments, help wherever they can in developing the economy of the country, and give protection at border gates.
It is important that, under conditions where the departmental budget is being reduced, this Bill should be implemented. After a great lengthy discussion around this Bill, the committee supports it. Thank you.]
Debate concluded.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Before I actually continue with procedures, may I now announce that the Northern Cape’s permission is here. So we will include your voting, and you are going to vote from now on. [Applause.] [Interjections.]
I shall now put the question in respect of the Third Order.
Mr A WATSON: Madam Deputy Chair, on a point of order: Could you please explain to this House, how you can, after receiving a piece of paper, declare a vote that you have already declared, changed? You cannot declare a vote and then change it again - your vote was declared!
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson, I explained earlier that, though they have voted, because we hadn’t received the mandate, that is why we said we were withholding their vote. Now the mandate has come ... [Interjections.]
I beg your pardon! Can you repeat that, hon member, can you? Can you repeat what you’ve said? Then may people behave, because I have a very sharp ear! A very sharp ear! Sinclair, you are out of order!
The thing is now, Northern Cape, you may vote; your mandate is here.
May I continue now?
Mr K A SINCLAIR: May I have a point of order, Madam?
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): If it’s a different matter, I will listen to you, but if it’s connected to this, unfortunately, hon member, I won’t entertain it.
They had voted, but I then had to withhold their votes, because the mandate was not in yet. Now, the mandate has come in and they had voted; we accept those votes and they are going to continue voting. [Interjections.]
Mr K A SINCLAIR: Madam Deputy Chairperson, can I just plead with you to understand that the process that we are following is a very important process. And nowhere in the Rules is there a position that allows the Chairperson to withhold a vote, as you remarked now. It is not procedurally proper. So, all we are trying to do is to assist in the process.
If the Northern Cape, which only received their mandate now, wants to continue voting for specific votes, then I suppose they would be in a position to do it, but the Northern Cape couldn’t partake in the process of the previous two that were presented.
Mr M C MAINE: Thank you, Deputy Chair. I think now ...
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Is this a new matter?
Mr M C MAINE: I just wanted to give clarity to the House. Deputy Chair, I think the vote of the Northern Cape is with regard to the two Bills that we have passed. The following Bills that we are going to consider do not need that particular document, and that would not in any way change the outcomes because the House has already adopted the Bills. Thank you, Deputy Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Thank you for the clarity. Hon Watson, is it a new matter?
Mr A WATSON: Madam, I request that I may address the Chair. Can I please remind you, Madam Deputy Chair, that before we voted for the second Bill, hon Mokgobi stood up and asked if that applied also to this vote. Was there no mandate? Advocate Maine stood up and told you that there wasn’t one. He then said, in that case, “I will not vote”.
So, really, I do not understand how you now can declare that they have voted in favour. Voting was closed. I ask you to please investigate.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Watson, I said they had voted, and we withheld those votes. But now the mandate is here, they can vote. May I continue?
I shall now put the question in respect of the Third Order. The question put is that the Bill be agreed to.
In accordance with Rule 63, I shall first allow political parties to make their declarations of vote, if they so wish. Is there any party that wants to make a declaration? None.
We shall now proceed to the voting on the question. Before I call the vote, please press button number one to confirm your presence, all hon members, not delegation heads only.
There should be lights flashing. If not, the service officers will assist you. May I draw the attention of the service officers to please be on the alert to assist members.
Could you please give everybody the voting papers, because the machines are not working? Are they? But for those that are not working, the staff will be moving around to take manual votes.
Have all members voted? In case there is any member who has mistakenly pressed the incorrect button, he or she has an opportunity to press the correct button.
Voting is closed. Could the Table staff submit the results? Have all members submitted their votes?
Forty two members have voted in favour. [Applause.] I therefore declare the Bill agreed to in terms of section 75 of the Constitution.
Bill agreed to in accordance with section 75 of the Constitution.
MAGISTRATES’ COURTS AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mr A G MATILA: Deputy Chair, the Magistrates’ Courts Amendment Bill amends the Magistrates’ Courts Act of 1944, and regulates the qualifications required for the appointment of a person as a magistrate, additional magistrate and magistrate of a regional court. The Bill also seeks to regulate the inclusion of magistrates of regional divisions on the list of magistrates who may adjudicate on civil disputes, amongst other things.
The amendment that most concerned the select committee proposes that the minimum requirement of an LLB qualification be deleted and be substituted with the words:
... any appropriately qualified man or woman who is a fit and proper person may be appointed as a magistrate, an additional magistrate or a magistrate of a regional division.
The Select Committee on Security and Constitutional Development, having considered the Magistrates’ Courts Amendment Bill [B 23B-2010] (National Assembly-sec 75) referred to it, reports that it has agreed to the Bill without amendments. Thank you. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution.
REPEAL OF THE BLACK ADMINISTRATION ACT AND AMENDMENT OF CERTAIN LAWS AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mong T M H MOFOKENG: Modulasetulo wa komiti e kgethilweng ya ntshetsopele ya molaotheo le tshireletso, ke a leboha. Motlatsi wa Modulasetulo, Molao wa Tsamaiso ya Batho ba Batsho o ile wa hlakolwa ka selemo sa 2005, mme tse ding tsa dikarolwana tsa teng di ile tsa tlohelwa hore makgotla a dinyewe a setso a nne a tswele pele.
Ntho e etsahalang hajwale ke hore Bili ya Makgotla a Setso e tla hlakola Molao wa Tsamaiso ya Batho ba Batsho, mme ho kopuwang feela hajwale ke kekeletso ya nako hore ho tle ho sebetsanwe le dintlha tse salletseng morao biling ena. Komiti e ile ya dula ho sekaseka tlaleho ena jwaleka ha e tlisitswe ho yona mme e dumellana le kekeletso eno ya nako. Ke a leboha. [Mahofi.] (Translation of Sesotho speech follows.)
[Mr T M H MOFOKENG: Chairperson of the Select Committee on Security and Constitutional Development, thank you. Deputy Chairperson, the Black Administration Act was abolished in 2005, and some parts of the Act were amended so that traditional courts would continue.
What is happening at the present moment is that the Traditional Courts Bill will replace the Black Administration Act, and what is required at this moment is the extension of the deadline so that the outstanding matters pertaining to the Bill can be dealt with thoroughly. The committee sat down to discuss this requirement as it was submitted to it, and therefore the time was extended. Thank you. [Applause.]]
Debate concluded.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): I shall now put the question. The question is that the Bill subject to the proposed amendments be agreed to. In accordance with Rule 63, I shall first allow political parties to make their declarations of vote if they so wish
We shall now proceed to the voting on the question. Before I call the voting, please press button number one to confirm your presence. There should be lights flashing. Are your lights flashing? Those in favour, please press button number four. Those against, press button number two and those who are abstaining, press button number three. Have all members voted?
If any of the members have mistakenly pressed the incorrect button, please press the correct button now.
Mr D V BLOEM: Is it parliamentary for a member to intimidate another member about how to vote, because there is a member of the ruling
party telling me that I must vote in favour.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Hon Bloem, do me a favour, stop playing. We are busy with our business here.
Bill agreed to in accordance with section 75 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL DEVELOPMENT - AMENDMENTS TO CONVENTION ON PROHIBITIONS OR RESTRICTIONS ON USE OF CERTAIN CONVENTIONAL WEAPONS WHICH MAY BE DEEMED TO BE EXCESSIVELY INJURIOUS OR TO HAVE INDISCRIMINATE EFFECTS (CCW)
Mr M H MOKGOBI: Chairperson, the significance of the Bill is that it is legally binding, it enjoys wide acclaim, it contributes to the control of measures, it stabilises Africa, it maintains international peace, and it limits and alleviate, the suffering caused by excessively injurious weapons.
It means that South Africa will also contribute to international peace and security. It has no financial implications for South Africa other than the meeting. We therefore recommend its adoption. [Applause.]
Mr A WATSON: Madam Chair, May I respectfully request the hon member who has just spoken to withdraw the word “Bill,”. He said “the Bill” instead of “convention”; we are not voting on a Bill, we are voting on a convention. I thank you.
Debate concluded.
Question put: That the Report be adopted.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Okay, it has been done. I shall now put the question that the report be agreed to. In accordance with Rule 71, I shall first allow all provinces the opportunity to make their declarations of vote.
Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape? Have all the members voted?
HON MEMBERS: Yes.
The DEPUTY CHAIRPERSON OF THE NCOP (Ms T C Memela): Voting will now close. May I bring to the attention of the Western Cape that they have voted twice; and we only have nine provinces. [Interjections.] Anyway, all nine provinces have voted in favour.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON TRADE AND INTERNATIONAL RELATIONS – ACCESSION TO THE AFRICAN CHARTER ON DEMOCRACY, ELECTIONS AND GOVERNANCE
Mr D D GAMEDE: Deputy Chairperson, even though I am being strongly lobbied, I will stick to the main points. This is about the African Charter on Democracy, Elections and Governance. [Interjections.] Well, if the hon member must know, the African Charter is derived from the Freedom Charter.
Even in the postcolonial years, Africa remains a troubled continent due to conflicts and skirmishes that occasionally erupt in some parts of the continent. It is uncommon in most conflict-ridden African countries to observe that those who are in positions of power tend to ascend to such positions through conventional means. Subsequently, they use the state to improve their individual economic position and that of their allies and cronies at the expense of service to the electorate.
Dictatorship, repression and oppression cannot be conceptualised unless there is exclusion of socioeconomic development. The instability caused by skirmishes and corrupt practices has for many years had the effect of perpetuating Africa’s underdevelopment and the deepening of poverty and inequality.
It should also be noted that while individual countries have sovereign powers and nonderogative rights to self-determination, the exercise of such rights and powers cannot prejudice the fundamental human rights of citizens of such countries.
It is against this background that the Eighth Ordinary Session of the African Union held in Addis Ababa, Ethiopia, on 30 January 2007, adopted the African Charter on Democracy, Elections and Governance as a means to safeguard democracy. The state parties have assented to the provisions of the Charter.
Democracy in Africa, in context, is anchored by three pillars: representative democracy with a right to vote for and stand for election to any legislature in a country; equality of rights for all citizens regardless of race, colour or sex; and participatory democracy as a struggle of collective self-emancipation by democratic organs of self-government.
State parties reaffirmed their collective will to work for the deepening and consolidations of the rule of law, peace, security, and development, and committed themselves to the universal values and principles of democracy, good governance, human rights, and the right to development.
State parties bound themselves to the fact that the use of, inter alia, the following illegal means of assenting to or maintaining power constitutes an unconstitutional change of government aforementioned: any coup d'état against the democratically elected government; any intervention by mercenaries to replace a democratically elected government; and any replacement of a democratically elected government by armed dissidents or rebels; any refusal by any incumbent government to relinquish power to the winning party or candidate after free, fair and regular elections; any amendment or revision of the constitution or legal instrument which is an infringement of the principles of a democratic change of government.
The South African Constitution is regarded as one of the best in the world as it entrenches the Bill of Rights. It is reasonable to conclude that this charter attempts to extend these fundamental values to the rest of the continent. If South Africa were to fail to live up to the articles of the Charter, it would constitute a breach of her own Constitution, a wrongful act worthy of impeachment and blame. I, therefore, urge that this House adopts accession to this charter.
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON ECONOMIC DEVELOPMENT - AMENDMENTS TO ARTICLES VI AND XIV.A OF INTERNATIONAL ATOMIC ENERGY AGENCY STATUTE
Mr M C MAINE: Thank you, Deputy Chair, the Select Committee on Economic Development has considered and adopted amendments to the International Atomic Energy Agency Statute Article VI, Board of Governors and Article XIV.A, Finance. We therefore recommend to this House to adopt the report. Thank you, Deputy Chairperson.
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
The Council adjourned at 12:51.
__________
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
MONDAY, 22 NOVEMBER 2010
ANNOUNCEMENTS
National Council of Provinces
The Chairperson
1. Referral to Committees of papers tabled
(1) The following papers are referred to the Select Committee on Finance for consideration and report:
(a) Report and Financial Statements of the South African Revenue Service (Sars) for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP173-2010].
(b) Report and Financial Statements of the Financial Intelligence Centre for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP240-2010].
(c) Report and Financial Statements of the Accounting Standards Board for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10 [RP206-2010].
(d) Report and Financial Statements of the Independent Regulatory Board for Auditors for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP207-2010].
(e) Report and Financial Statements of Vote No 7 – National Treasury for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(f) Financial Statements of the Project Development Facility for Auditors for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(g) Financial Statements of the Office of the Technical Assistance Unit for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(2) The following papers are referred to the Select Committee on Education and Recreation for consideration and report:
(a) Report and Financial Statements of the Human Sciences Research Council (HSRC) for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP164-2010].
(b) Report and Financial Statements of the Africa Institute of South Africa for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(c) Report and Financial Statements of the South African Council for Natural Scientific Professions for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(d) Report and Financial Statements of the National Advisory Council on Innovation for 2009-10.
(e) Report and Financial Statements of Vote No 17 – Sport and Recreation South Africa for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP205-2010].
(3) The following papers are referred to the Select Committee on Social Services consideration and report:
(a) Report and Financial Statements of Vote No 16 – Department of Social Development for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP127-2010].
(b) Report and Financial Statements of the National Development Agency for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP19-2010].
(c) Report and Financial Statements of the National Health Laboratory Service for 2009‑10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(4) The following papers are referred to the Select Committee on Security and Constitutional Development for consideration and report:
(a) Report and Financial Statements of the Department of Justice and Constitutional Development for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP219-2010].
(b) Report on Monies in Trust kept in the Guardian’s Fund for 2009-10, including the Report of the Auditor-General on Monies in Trust kept in the Guardian’s Fund for 2009-10 [RP237-2010].
(c) Report and Financial Statements of the Department of Justice and Constitutional Development on the Criminal Assets Recovery Account for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP224-2010].
(d) Report and Financial Statements of Vote No 18 – Correctional Services for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP119-2010].
(5) The following papers are referred to the Select Committee on Land and Environmental Affairs for consideration and report:
(a) Report and Financial Statements of the Trans-Caledon Tunnel Authority (TCTA) for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(b) Report and Financial Statements of the Water Research Commission for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2008-09 [RP188-2010].
(c) Report and Financial Statements of the Agricultural Research Council for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP201-2010].
(d) Report and Financial Statements of the Perishable Products Export Control Board for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(e) Report and Financial Statements of the National Agricultural Marketing Council for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP199-2009].
(f) Report and Financial Statements of the Department of Agriculture, Forestry and Fisheries for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP218-2010].
(g) Report and Financial Statements of the Onderstepoort Biological Products (Ltd) for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(6) The following papers are referred to the Select Committee on Public Services for consideration and report:
(a) Report and Financial Statements of the Air Traffic and Navigation Services Company Limited for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009- 10.
(b) Reports and Financial Statements of the Cross-Border Road Transport Agency for 2009-10, including the Reports of the Auditor-General on the Financial Statements and Performance Information for 2007-08 and 2008-09.
(7) The following papers are referred to the Select Committee on Education and Recreation for consideration and report:
(a) Report and Financial Statements of the South African Heritage Resources Agency for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(b) Report and Financial Statements of the Blind SA for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(c) Report and Financial Statements of the Afrikaans Language Museum and Language Monument for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP239-2010].
(d) Report and Financial Statements of the Artscape for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP200-2010].
(e) Report and Financial Statements of Business and Arts South Africa for 2009‑10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10 [RP70-2010].
(f) Report and Financial Statements of the Ditsong Museums of South Africa for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(g) Report and Financial Statements of the Freedom Park Trust for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP213-2010].
(h) Report and Financial Statements of the Iziko Museums of Cape Town for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP166-2010].
(i) Report and Financial Statements of the Luthuli Museum for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP187-2010].
(j) Report and Financial Statements of the Market Theatre Foundation for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP54-2010].
(k) Report and Financial Statements of the Msunduzi/Voortrekker Museum for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(l) Report and Financial Statements of the Natal Museum for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP203-2010].
(m) Report and Financial Statements of the National Arts Council for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP245-2010].
(n) Report and Financial Statements of the National English Literary Museum for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(o) Report and Financial Statements of the National Film and Video Foundation for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP186-2010].
(p) Report and Financial Statements of the National Heritage Council for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP221-2010].
(q) Report and Financial Statements of the National Library of South Africa for 2009-10, including the Report of the Auditor-General on the financial Statements and Performance Information for 2009-10 [RP209-2010].
(r) Report and Financial Statements of the Nelson Mandela Museum for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP225-2010].
(s) Report and Financial Statements of the Pan South African Language Board for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(t) Report and Financial Statements of the KwaZulu-Natal Performing Arts Company (Trading as the Playhouse Company) for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009‑10.
(u) Report and Financial Statements of the Robben Island Museum for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP180-2010].
(v) Report and Financial Statements of the South African Library for the Blind for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP159-2010].
(w) Report and Financial Statements of the South African State Theatre for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP161-2010].
(x) Report and Financial Statements of the War Museum of the Boer Republics for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10.
(y) Report and Financial Statements of the William Humphreys Art Gallery for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009‑10.
(z) Report and Financial Statements of the Windybrow Centre for the Arts for 2009‑10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009‑10.
(8) The following paper is referred to the Select Committee on Land and Environmental Affairs for consideration and report:
(a) Report and Financial Statements of Vote No 27 – Department of Rural Development and Land Reform for 2009-10, including the Report of the Auditor-General on the Financial Statements and Performance Information for 2009-10 [RP241-2010].
(9) The following papers are referred to the Select Committee on Trade and International Relations:
(a) Agreement between the Government of the Republic of South Africa and the Government of the Republic of Kenya on Cooperation in the Field of Tourism, tabled in terms of section 231(3) of the Constitution, 1996.
(b) Explanatory Memorandum to the Agreement between the Government of the Republic of South Africa and the Government of the Republic of Kenya on Cooperation in the Field of Tourism.
(c) Agreement between the Government of the Republic of South Africa and the Government of the Arab Republic of Egypt on Cooperation in the Field of Tourism, tabled in terms of section 231(3) of the Constitution, 1996.
(d) Explanatory Memorandum to the Agreement between the Government of the Republic of South Africa and the Government of the Arab Republic of Egypt on Cooperation in the Field of Tourism.
(10) The following paper is referred to the Select Committee on Labour and Public Enterprises for consideration and report:
(a) Report and Financial Statements of Sentech Limited for 2009-10, including the Report of the Independent Auditors on the Financial Statements and Performance Information for 2009-10.
(11) The following paper is referred to the Select Committee on Public Services for consideration and report:
(a) Report and Financial Statements of Vote No 16 – Human Settlements for 2009‑10, including the Report of the Auditor‑General on the Financial Statements and Performance Information for 2009‑10 [RP185‑2010].
COMMITTEE REPORTS
National Council of Provinces
1. Report of the Select Committee on Finance on the Amendments to Schedules 1 and 2 of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), dated 17 November 2010.
The Select Committee on Finance, having considered the Amendments to Schedule 1 of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001) and Amendments to Schedule 2 of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), reports that the House, in terms of section 73 (3) and section 75 (3) of the Financial Intelligence Centre Act, approves the said Amendments.
Report to be considered.
TUESDAY, 23 NOVEMBER 2010
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) Bills passed by National Council of Provinces on 23 November 2010:
(a) Defence Amendment Bill [B 11B – 2010] (National Assembly – sec 75).
(b) Magistrates’ Courts Amendment Bill [B 23B – 2010] (National Assembly – sec 75).
(c) Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B 37 – 2010] (National Assembly – sec 75).
TABLINGS
National Assembly and National Council of Provinces
1. The Minister of Justice and Constitutional Development
(a) Government Notice No R.880 published in Government Gazette No 33601 dated 8 October 2010: Amendment of Schedule 1 in terms of the Drugs and Drug Trafficking Act, 1992 (Act No 140 of 1992).
(b) Proclamation No R. 43 published in Government Gazette No 33506 dated 27 August 2010: Referral of matters to existing Special Investigating Unit and Special Tribunal in terms of the Special Investigating Units and Special Tribunals Act, 1996 (Act No 74 of 1997).
2. The Minister of Police
(a) Proclamation No 4 published in the Government Gazette No 33000 dated 5 March 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(b) Proclamation No 5 published in the Government Gazette No 33000 dated 5 March 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(c) Proclamation No 18 published in the Government Gazette No 33180 dated 14 May 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(d) Proclamation No 22 published in the Government Gazette No 33180 dated 14 May 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(e) Proclamation No 28 published in the Government Gazette No 33281 dated 14 June 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(f) Proclamation No 29 published in the Government Gazette No 33281 dated 14 June 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(g) Proclamation No 30 published in the Government Gazette No 33281 dated 14 June 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
(h) Proclamation No 32 published in the Government Gazette No 33392 dated 28 July 2010: Notification by President in respect of entities involved in terrorist and related activities identified by the United Nations Security Council, made in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities, 2004 (Act No 33 of 2004), tabled in terms of section 26 of the Act.
COMMITTEE REPORTS
National Council of Provinces
1. REPORT OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS ON CONSIDERATION OF THE PROGRESS REPORTS ON THE INTERVENTIONS IN ALFRED NZO DISTRICT, SUNDAY’S RIVER VALLEY AND KOUKAMMA LOCAL MUNICIPALITIES IN THE EASTERN CAPE, ISSUED IN TERMS OF SECTION 139(1)(B) OF THE CONSTITUION, 1996 – DATED 23 NOVEMBER 2010
1. Background and Overview
1.1 Intervention in local government in terms of section 139 of the Constitution is an integral part of the institutional framework for developmental local government. It is a necessary corrective when a municipality fails to govern and thus jeopardises the enterprise of development. It is also an aspect of intergovernmental relations and, as such, it must be exercised within the spirit of co-operative government as outlined in Chapter 3 of the Constitution.
1.2 Against this background, three municipalities in the Eastern Cape Province received a considerable amount of section 139 interventions during the 2009/10 and 2010/11 financial years. These included, Alfred Nzo District, Koukamma and Sunday’s River Valley Local Municipalities. The observation, situation and gap analysis of the current situation revealed the following shortcomings:
* Absence of co-operative governance amongst critical stakeholders
* Poor institutional capacity and organisational systems impacting on service delivery
* Problems with respect to municipal debt and inadequate billing systems
* Problems with financial management and control. There was no adherence to regulations of the MFMA.
* Public accountability has been one of the worst challenges as the municipalities continue to obtain disclaimers and qualified opinions from the Auditor-General.
* Performance challenges of senior municipal officials.
2. Introduction
2.1 On 19 October 2010, the Eastern Cape MEC for Local Government and Traditional Affairs, Hon S Gqobana briefed the Select Committee on Co-operative Governance and Traditional Affairs on the progress made in respect of interventions at Alfred Nzo District, Koukamma and Sunday’s River Valley Local Municipalities.
3. Progress Report on the Intervention in Alfred Nzo District Municipality
3.1 It was reported that an Administrator had been appointed from 20 April 2009, and he assumed responsibilities on financial management (financial recovery plan); corporate services, including general administration and human resource; infrastructure development and MIG funding and public participation.
3.2 On financial management systems, progress made was with regard to the activation of a financial system (SAMRAS) which had been bought and abandoned by the Municipality. A reliable billing system on SAMRAS has been developed. It was reported that accurate annual financial statements were submitted on 31 August 2009. Furthermore, a debt recovery plan was approved and implemented, and all creditors whose payments had been outstanding for more than 120 days were paid. In addition, an improved record-keeping system and a fully integrated payroll was now in place.
3.3 Significant achievements were also registered with regards to the appointment of the Municipal Manager, as well as the Chief Financial Officer. Specific financial policies were now in place, and public participation was starting to yield the desired results. The Municipal Infrastructure Grant (MIG) projects were ring-fenced and thus used for their intended purpose only. Intervention has since been terminated and the Administrator submitted a close-out report.
4. Progress Report on the Intervention in Koukamma Local Municipality
4.1 The Department reported on good governance and public participation. The lax attitude towards corporate governance processes and the lack of organizational leadership has been addressed. Steps have been taken to improve communication with the community through the establishment of the stakeholder forum. All of the recommendations of the Special Investigations Unit (SIU) have been implemented.
4.2 On financial reporting and billing management, progress has been made in terms of the new financial record-keeping systems which have been introduced using clean data. The annual financial reports for 2008/09 were compiled and the Auditor-General has started the audit.
4.3 Significant achievements were reported on the revenue management and enhancement strategy that has been developed. A Debt Collection Policy has since been adopted and promulgated. A total of 4 730 debtors who owed the Municipality a total amount of R47 416 683.14 have been contacted. An Asset Register has been developed and a draft fraud prevention plan is in place, with various cost-cutting measures having been approved and implemented.
4.4 The new draft organogram was approved by Council and was costed. It is envisaged that the new positions will be advertised and interviews completed. The appointments of a new Municipal Manager and other Section 57 Managers were finalized. A Performance Management System (PMS) has since been initiated, with PMS contracts being drafted. Lastly, the disciplinary matters for the Municipal Manager and other Managers have been finalized.
4.5 The remaining challenge is the lack of water resources in the area due to a long-term drought. Government intervention is required. In addition, the culture of non-payment for services by the community has not been completely overcome and needs more attention.
5. Progress Report on the Intervention in Sunday’s River Valley Local Municipality
5.1 In Sunday’s River Valley Local Municipality the intervention was effected from 18 February 2010, with the Administrator assuming duties on areas of finance, human resources, infrastructure and service delivery, and legal and public participation.
5.2 Progress reported on finance related to Credit Control and the Debt Management Policy which has been reviewed and adopted by the council. The staff complement at Finance has increased, with 13 new positions, of which 10 have been filled. There are now cost-cutting measures in place, e.g. telephone and 3G cards, travelling and fleet management.
5.3 In terms of institutional development, an HR Plan was now in place. The Local Labour Forum structure was reviewed and it has started pro-active labour engagement (5 meetings to date). It was reported that service delivery is at the core of the council’s agenda, and five council meetings have taken place in the past three months.
5.4 On good governance, it was reported that investigations of allegations of corruption, maladministration and misconduct are being dealt with administratively, but the council has been awaiting the outcome of SIU investigations since June 2010. Disciplinary processes and possible criminal charges have been considered for two officials at Community Services Directorate, with one official on suspension for alleged fraud and corruption.
5.5 What remains a challenge is the financial bailout needed for the survival of the Municipality. This is estimated at R20 million. If this is not forthcoming, the achievements on the interventions will be compromised.
6. Committee Observations and Opinion
6.1 The Committee has observed the remarkable improvements brought about by the interventions in the three municipalities. However, the Committee is of the opinion that the success of any intervention rests on the collective co-operation of all stakeholders in a municipality.
6.2 The Committee is of the opinion that, for service delivery to be effective and efficient in a municipality, there has to be a committed political and administrative leadership with sound administrative and management processes in place. The Department should continue providing this kind of support to all its municipalities in the Province.
7. Recommendations
7.1 Having deliberated on the progress reports of the three municipalities in Eastern Cape Province, the Select Committee on Co-operative Governance and Traditional Affairs recommends as follows:
7.1.1 The NCOP should endorse the progress reports on the interventions in Alfred Nzo District, Koukamma and Sunday’s River Valley Local Municipalities.
7.1.2 The Eastern Cape Department of Local Government and Traditional Affairs should continue providing ongoing support to all its municipalities, in order to help indicate potential problems before they become crises, so that municipalities are able to implement their own corrective measures when problems arises.
Report to be considered.
2. REPORT OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS ON CONSIDERATION OF THE 2007/08 PERFORMANCE REPORT OF NORTHERN CAPE MUNICIPALITIES – DATED 23 NOVEMBER 2010
1. Background and Overview
1.1 The Select Committee on Co-operative Governance and Traditional Affairs, having considered the directive of the National Council of Provinces (NCOP) to consider and report on the 2007/08 Performance Report of Northern Cape Municipalities’ tabled by the MEC for Co-operative Governance, Human Settlements and Traditional Affairs in terms of the requirements of the Local Government Municipal Systems Act (Act 32 of 2000), reports as follows:
1.2 Municipalities are required by legislation to produce annual performance reports in terms of section 46 of the Local Government: Municipal Systems Act. Based on these reports, the MEC responsible for local government has to compile a consolidated report on the performance of municipalities in the province and submit a report to the NCOP in terms of section 47 of the Act. In this case, the report provides an analysis of the municipal performance in the Northern Cape Province and also makes recommendations for corrective measures to be undertaken in that regard.
1.3 In terms of NCOP Rule 101, the Office of the Chairperson of the NCOP referred the 2007/08 Report of Northern Cape Municipalities’ Performance to the Select Committee on Co-operative Governance and Traditional Affairs for consideration and report.
2. Introduction
2.1 On 11 January 2010, the Northern Cape MEC for Co-operative Governance, Human Settlements and Traditional Affairs, Hon K Mmoiemang tabled the 2007/08 Performance Report of Municipalities in the Northern Cape to the Office of the Chairperson of the NCOP, in terms of section 47 of the Local Government Municipal Systems Act. Subsequent to the tabling, the Committee held a briefing meeting on 19 October 2010 with the Northern Cape Department of Co-operative Governance, Human Settlements and Traditional Affairs.
3. Presentation on the 2007/08 Northern Cape Municipality Performance Report
3.1 The MEC for Co-operative Governance, Human Settlements and Traditional Affairs, presented the Northern Cape 2007/08 Municipalities’ Performance Report to the Committee. In his political overview, the MEC indicated that only 18 of 32 Northern Cape municipalities had submitted Section 46 reports to the Department by end June 2009. In the previous year 18 annual reports were also received.
3.2 The MEC reported that Northern Cape municipalities perform, on average, 21 functions with some capacity, which is measured on budget information, staffing, equipment and the use of external service providers. On average 16% of positions at municipalities were vacant. Key positions, such as municipal manager, financial manager and technical service manager are filled in some cases by a person who does not have a relevant qualification for the position. Not all key positions are filled by MSA Section 57 appointments e.g. six municipal mangers were acting, eleven financial managers and two technical managers.
3.3 All municipalities provide free basic water, except for Pixley ka Seme District Municipality, which does not have any households living in settlements within its area of jurisdiction. By June 2008, 72% of the R222 million MIG allocation for 2007/08 to Northern Cape municipalities had been spent. Eighteen municipalities had not spent their full allocation by 30 June 2008. In addition, 31 municipalities’ 2007/08 financial statements have been audited by the Auditor General. One municipality’s audit report is still outstanding, namely, Phokwane, which submitted late. Audit outcomes have improved from 2006/07 to 2007/08 financial years.
3.4 The presentation focused on the 5-Year Local Government Strategic Agenda, which remains the guiding strategic approach in improving service delivery of all municipalities. These areas are: improving municipal transformation and organisational development, accelerating basic service delivery, putting in place viable local economic development strategies, improving the fiscal management and discipline, and ensuring overall good governance and public participation in the work of the municipality.
4. Municipal Transformation and Organisational Development
4.1 The Department reported that, at the end of July 2008, all municipalities had municipal managers although nine were acting-managers. All municipal managers are MSA Section 57 appointments, except for those who are acting. This is an improvement from March 2008, when 14 vacant municipal manager posts were recorded, with all 14 being filled by acting managers. All financial managers in July 2008 were MSA Section 57 appointments, except for acting managers at Magareng, Phokwane, Gamagara, Ga- Segonyana, Hantam, Karoo Hoogland, Emthanjeni, Siyancuma, Ubuntu, Siyanda and Tsantsabane. There is one vacancy and three other appointments.
4.2 SALGA Northern Cape is part of the independent provincial support task team to support all 32 municipalities with the appointment of municipal managers and section 57 managers. For the period under review, a total of 10 and 6 municipalities have benefited from this support for the appointment of municipal managers and chief finance officers respectively.
5. Basic Service Delivery
5.1 Since 2003/04 all the Northern Cape municipalities have been delivering free basic services to indigent households. In addition, some municipalities have also been providing free basic services to households that are not indigent e.g. Sol Plaatje provides free basic water to all households, as did Moshaweng, Ga-Segonyana, Siyancuma, Umsobomvu, Karoo Hoogland, Mier, Kai !Garib, Kgatelopele, Nama Khoi, Kamiesberg and Magareng at the end June 2008.
5.2 It is expected of municipalities to provide free basic services to its indigent in a sustainable manner. However, fourteen municipalities provide FBW to all households, not only registered indigents. It is not expected that a municipality provides free basic services beyond its financial and other capacities.
6. Local Economic Development (LED)
6.1 The Department reported that 10 municipalities reported almost 3,500 jobs created by municipal LED activities in 2007/08. Of these jobs, 38% benefited women, 27% youth and 2% the disabled. Furthermore, approximately 3,000 jobs were created by municipal capital projects, which employed people above the minimum wage for at least three months in 2007/08. This is a substantial decrease from the 10,000 jobs reported in 2005/06. Half the jobs benefited women.
7. Municipal Financial Viability and Management
7.1 Thirty–one Northern Cape municipalities had a combined income of over R2 billion in 2007/08. The largest income was received by Sol Plaatje of over R600 million and the smallest by Mier Municipality, with under R10 million. Eleven of the 20 municipalities that reported accumulated surpluses/deficits, had an accumulated surplus at the end of 2007/08, and nine had an accumulated deficit. Seventeen municipalities ended the 2007/08 financial year with a surplus. Fourteen municipalities ended with deficits, of which nine were over R1 million i.e. Karoo Hoogland, Siyancuma, Siyathemba, Dikgatlong, Magareng, Renosterberg, Ga-Segonyana, Kamiesberg and Siyanda. The highest deficit was at Magareng.
7.2 Hands-on support was provided to 10 municipalities i.e. Dikgatlong, Magareng, Pixley ka Seme, Emthanjeni, Renosterberg, Siyancuma, Siyathemba, Umsobomvu, Kamiesberg and Moshaweng. Support was given to municipalities for the development of Service Delivery and Budget Implementation Plans (SDBIPs) which have been linked to budgets and Integrated Development Plans (IDPs) by September 2007. Monitoring and further support is envisaged to be provided by the Department and Provincial Treasury.
8. Good Governance and Public Participation
8.1 By September 2007, 17 municipalities had established internal audit committees and by March 2008 another one municipality had done so. Thirteen municipalities share audit committees. Improvements in the capacity to account for public resources have been made. Internal Audit Committees have been established in 18 municipalities
8.2 All wards have ward committees established in the Northern Cape. The numbers of wards have increased from 174 to 183, with the establishment of nine wards at Mier Municipality. These used to function as Town Forums, in order to align with legislation. However, not all these committees are functional. A total of 46 ward committees are reported to be non-functional. These committees will thus have to be revised and reformulated.
9. Committee Observations and Opinion
9.1 The Committee has observed the remarkable improvements in certain areas, such as a decrease in backlogs, but, in other areas, no improvement has been made. An example here is MIG spending. Interventions were implemented to address the challenges of 2006/07 and 2007/08. These interventions are mostly on-going and demonstrate improved service delivery, good governance and capacity at municipalities. The Department should continue providing this kind of support to its municipalities in the Province.
9.2 Although progress has been registered in other areas, municipal finances remain a challenge to municipalities, especially with regard to the ability to effect proper credit control systems and the ability to generate income.
10. Recommendations
10.1 Having deliberated on the 2007/08 Northern Cape Municipalities’ Performance Report, the Select Committee on Co-operative Governance and Traditional Affairs recommends as follows:
10.1.1 The NCOP should endorse the 2007/08 Northern Cape Municipalities’ Performance Report.
10.1.2 The Northern Cape Department of Co-operative Governance, Human Settlements and Traditional Affairs should assists municipalities in the Province to improve their employment profiles with respect to disabled people.
10.1.3 The Northern Cape Department of Co-operative Governance, Human Settlements and Traditional Affairs should assist municipalities in the Province to improve the situation with respect to critical skills shortages and the filling of vacant positions, as well as ensuring that performance agreements are signed.
10.1.4 The Northern Cape MEC for the Northern Cape Department of Co-operative Governance, Human Settlements and Traditional Affairs should table quarterly progress reports to the NCOP in respect of municipal performance in the Province.
Report to be considered.
3. REPORT OF THE SELECT COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS ON INTERVENTION IN MSUNDUZI LOCAL MUNICIPALITY – DATED 23 NOVEMBER 2010
1. Background and Overview
1.1 The Select Committee on Co-operative Governance and Traditional Affairs, having considered the request made by the National Council of Provinces (NCOP) on 03 November 2010 to consider and report on the intervention notice invoked in terms of section 139 (1)(b) of the Constitution at Msunduzi Local Municipality by the KwaZulu-Natal Provincial Executive Council (PEC), reports as follows:
1.2 The Office of the Chairperson of the NCOP referred the notice of intervention in the affairs of Msunduzi Local Municipality to the Select Committee of Co-operative Governance and Traditional Affairs, in terms of NCOP Rule 101 for consideration and reporting. The Committee took a decision during its meeting to conduct an oversight visit to the above-mentioned Municipality on the 26 October 2010.
2. Purpose and Objectives
2.1 The main objectives of the oversight visit was to determine whether procedural requirements had been met and to verify whether the PEC had used its discretion appropriately, before the Committee could recommend approval/disapproval of the intervention to the NCOP. Through the deliberations and interaction with internal and external stakeholders, the Committee wanted to determine how the PEC was intending to restore the fulfilment of the relevant obligations and ensure fulfilment in the long term. The aim was to ensure intergovernmental checks and balances aimed at guarding the integrity and efficiency of the intervention process.
3. Delegation
3.1 The delegation of the Committee was composed of the following Members of Parliament and Officials: Hon MH Mokgobi, Limpopo (ANC); Hon AG Matila, Gauteng (ANC); Hon TMH Mofokeng, Free State (ANC); Hon A Watson, Mpumalanga (DA); Mr NA Mfuku, Content Adviser (Committee Section); Mr MC Mbebe, Procedural Officer (NCOP); Ms V Makubalo, Stand-in Committee Secretary (Committee Section) and Ms A Nkwandla, Administration Assistant (Committee Section).
4. Introduction
4.1 On 22 October 2010, the KwaZulu-Natal MEC for Co-operative Governance and Traditional Affairs tabled a notice of intervention in Msunduzi Local Municipality to the Office of the Chairperson of the NCOP. In terms of section 139 (2)(b)(ii) of the Constitution, the intervention must end if the NCOP does not positively approve the intervention within 180 days since the intervention began, in this case before the end of 19 April 2011.
5. Problems Identified by the Provincial Executive Council (PEC)
5.1 On 06 October 2010, the Executive Council of the KwaZulu-Natal Province resolved to intervene in the Municipality as contemplated in terms of section 139(1)(b) of the Constitution. The background to the intervention by the Provincial Executive is a result of serious financial problems and the fact that the municipal executive committee and the municipal officials had failed to exercise oversight and fulfil specific legislative obligations, and services could no longer be rendered effectively.
5.2 The PEC has authorised the MEC for Co-operative Governance and Traditional Affairs to approach the Chairperson of South African Local Government Association (SALGA) to release Mr Johann Mettler, a local government expert employed by SALGA, for appointment as the Administrator of the Msunduzi Local Municipality.
6. Appointment and Functions of the Administrator
6.1 The Administrator, amongst other functional responsibilities, was appointed to undertake the following functions:
* devise a turn-around strategy for the Msunduzi Local Municipality;
* ratify all decisions taken by Municipal Manager and Managers reporting to the Municipal Manager in terms of delegated or original authority;
* ensure implementation of Council resolutions and the administration;
* implement a system to control and approve all expenditure recommended by the intervention support team;
* implement all governance systems and procedures including appropriate councillor-oversight mechanisms;
* ensure implementation of financial systems, policies and procedures; and
* approve a strategy for addressing the municipality’s financial problems, including a strategy for reducing unnecessary expenditure and increasing the collection revenue.
7. Oversight Visit to Msunduzi Local Municipality
7.1 On 09 November 2010 the delegation of the Committee had interactive and robust engagements with the internal and external stakeholders of the Municipality. The main internal stakeholders the delegation interacted with in the Municipality included the Speaker, Executive Mayor, Chief Whip, Councillors, Ward Committee Members, Administrator and the representatives of the South African Local Government Association (SALGA). The main external stakeholders the delegation interacted with included members of the community, the business forum and non-governmental organizations.
8. Presentation by the MEC for Co-operative Governance and Traditional Affairs
8.1 The MEC indicated that the report of the Auditor-General reflected major problems in finances of the Municipality, in which the Municipal Council has condoned irregular, fruitless and wasteful expenditure. This was evident from the Auditor-General's report on the 2008/09 financial year. The Municipal Council has dismally failed to exercise an oversight role over the municipality's administration. Despite several interventions by the Provincial Department, it has gone from one disaster to another.
8.2 In providing support, the MEC has sent three experts, two accountants and an auditor to look at the expenditure and supply chain management of the Municipality. The deployed financial experts have reported that there was a lack of co-operation from certain Senior Managers of the Municipality who have issued instructions to staff not to provide urgently required information, on the basis of which a comprehensive financial recovery plan would be developed. Following this lack of co-operation, the provincial government was forced to introduce tougher measures. However, significant progress has been recorded and all the allegations of corruption are being pursued.
8.3 For the purpose of this report, the submissions made by both internal and external stakeholders are structured on the basis of the key strategic performance areas of the Local Government Strategic Agenda which are: Municipal Transformation; Basic Service Delivery; Municipal Financial Viability and Management, as well as Good Governance and Public Participation.
(A). Municipal Transformation and Organisational Development
8.4 Municipal Council: It was appealed that the Provincial Intervention Team (PIT), which was appointed to assist in turning around the financial crisis of the Municipality and to develop an overall business plan, should not be removed, as there are still huge challenges ahead. There has been a lot of infighting amongst politicians. The municipal workers were not discharging their work appropriately, as people who were not qualified were appointed. Furthermore, the Municipal Management has misled the Council in terms of their reports.
8.5 The Office of the Premier has set a new unit to expedite cases of investigations in the Province’s municipalities. The Municipality will engage with the Office of the Premier to take advantage of this new unit. Mr Mike Tarr, the current City Mayor, has since resigned from the Legislature to serve as the Mayor.
8.6 Administrator: The Administrator reported that the current political structure of Msunduzi was not supportive of overall corporate governance. As a result, a structure that will be embrace performance-based outcomes of all strategies has been implemented. The senior staff members that were alleged to be involved in fraud and corruption have been suspended, with civil and criminal charges pursued against them. However, certain current positions cannot be filled as a result of outstanding prosecutions.
8.7 Organised Labour: Both the South African Municipal Workers Union (SAMWU) and the Independent Municipal and Allied Trade Union (IMATU) supported the placement of the Municipality under administration. They further acknowledge the progress made thus far by the Administrator. Hence, they recommended the intervention to continue until the Local Government Elections in 2011.
(B). Basic Service Delivery
8.8 Municipal Council: Basic service delivery had deteriorated to a state of almost non-existence. However, this has been re-established to a semblance close to normality. It must be noted, however, that there is still some way to go before service delivery is fully functional and operational on an ongoing basis. It was reported that the sudden termination of the service delivery systems and processes would result in a disintegration of the efforts of the PIT, as the hand-over process to the relevant municipal officials was far from complete.
8.9 Administrator: In terms of infrastructure development and strategy, there were challenges on the poor running of fleet management. In rectifying this challenge, maintenance plans and tracking systems have been introduced to ensure vehicle availability. In terms of commercial and industrial waste collection, a new waste collection process was introduced in order to enhance waste collection. A process has been implemented that addresses water distribution and sanitation management, which was previously inadequate. Although 30 000 units for housing have been delivered since 1994, there are still challenges of a high demand for housing, shortage of skilled staff, missing beneficiaries and illegal occupation of units.
8.10 Ward Committees: There are high levels of unaccounted water losses in Msunduzi. The consumers, especially the poor, were paying for the loss of water at the reservoir. It was reported that water and electricity readers were not monitored, with rates being estimated.
8.11 Pietermaritzburg Chamber of Business: Waste management was an unmitigated disaster in the Municipality, as management has yielded its authority to the workers. The airport almost lost its licence, because the Council had prevaricated over the question of who should manage the facility. The Chamber was in support of the intervention continuing, because, if the process was ended prematurely, serious flaws would remain, and it would only be a matter of time before the Municipality found itself in deep distress again.
8.12 Built Environment Support Group: The Municipality is faced with a chronic backlog in housing delivery and access to basic services. The Support Group has provided support to communities, who were evicted 14 years ago, to go to a transit area that is still awaiting development. Another 1 200 households had to share two standpipes while their eviction was on hold, because no land could be found for them. The Support Group acknowledged the progress made by the Administrator and PIT in the short term in saving the City from bankruptcy.
(C). Municipal Financial Viability and Management
8.13 Municipal Council: The finances of the Municipality reflected a net surplus of R58 million for the first quarter of the 2010/11 financial year, taking into consideration a deficit of R522 million in the 2009/10 financial year. However, the turnaround must be maintained and well managed by ongoing adoption of stringent financial controls, until the end of the current financial year. The control measures introduced by the Administrator have to be maintained to ensure continuity of the positive trend. In cases where capacity reflects a challenge, local FET colleges should be engaged in this regard to provide training.
8.14 Administrator: It was reported that apart from redesigning processes and implementing certain policies and procedures by the PIT, the following ongoing issues were still a major challenge confronting the Municipality:
* cost containment across the board;
* revenue enhancement processes;
* management accounting;
* performance management processes; and
* risk analysis.
8.15 On cash flow, projections were showing signs of recovery, as is reflected by a positive cash flow position of R18, 4 million by the end of October 2010, and an expected upward movement of R3 million at the end of November 2010. However, this requires diligent monitoring to keep the cash flow status in the positive. Furthermore, there is a need for staff training in management accounting, since this is a specialised section where all transactions and operating performance are tracked, traced and analysed. It stands to reason that if this function is aborted and/or does not get the attention it desperately needs, it will come to a standstill.
(D). Good Governance and Public Participation
8.16 Built Environment Support Group: The Support Group reported that the largest single problem in keeping the ratepayers and the public on board with the turnaround measures, has been the lack of communication and public participation. Public engagement has been non-existent, and the IDP/Budget process held on 27 June 2010 was reduced to a single, poorly publicised meeting.
8.17 Ward Committees: The Ward Committees reported their dissatisfaction with resource allocation for their activities, since there was no budget for ward committees.
9. Committee Observations and Opinion
9.1 Where Municipal staff members have been implicated in cases of fraud and corruption, the Hawks should be brought in for the successful prosecution of those cases. This matter should be speeded up.
9.2 The approach on forensic investigation should be suspended as, in most cases, it does not lead to immediate arrests. The Hawks should be approached instead, since there was no time for complacency in the fight against crime, and the Hawks would leave "no stone unturned" in fighting organised crime.
9.3 It was observed that some Councillors were irresponsible and not disciplined, since 70 Councillors should have been present during the meeting, but less than 50% were present. This raised questions of the seriousness in their commitment in providing leadership to the Municipality. The Mayor and Chief Whip should summon those absent Councillors, in order to understand the reasons for their absence.
9.4 The Committee is of the opinion that the lack of support and oversight by the Msunduzi Council points to the failure to provide an enabling framework to build the institutional strength and functionality of municipalities.
9.5 There are capacity constraints in the Municipality, especially with regards to financial accounting and management. This matter needs urgent address, otherwise all efforts to stabilise the Municipality will fail, with the real possibility of reverting to a worse situation than the Municipality was in at the commencement of the intervention.
10. Recommendations
10.1 Having conducted the oversight visit to Msunduzi Local Municipality and interacted with all relevant stakeholders, the Select Committee on Co-operative Governance and Traditional Affairs recommends as follows:
10.1.1 The NCOP approves the intervention in terms of section 139 (1)(b) of the Constitution in Msunduzi Local Municipality for a period of six months.
10.1.2 The Minister for Co-operative Governance and Traditional Affairs should approach the Hawks to pursue criminal investigation in all cases of financial irregularities and fraud in Msunduzi Local Municipality, as a matter of urgency. A progress report in this regard should be forwarded to the NCOP within one month.
10.1.3 The Administrator should fast-track the process of appointing skilled personnel, in order to facilitate the transfer of skills and to ensure continuity and stability.
10.1.4 The KwaZulu-Natal MEC for Co-operative Governance and Traditional Affairs should table quarterly progress reports to the NCOP and the Provincial Legislature on the status of the intervention in the Municipality, including the challenges encountered.
Report to be considered.
4. Report of the Select Committee on Appropriations on the First Quarter Conditional Grants Spending Patterns on the National School Nutrition Grant for the 2010/11 Financial Year, dated 14 September 2010
The Select Committee on Appropriations, having analysed the spending patterns of the provincial departments of Education on the National School Nutrition Grant, reports as follows:
1. Introduction
The Select Committee on Appropriations (the Committee) invited identified provincial departments of Education, who were either under-spending or over-spending on the National School Nutrition Programme Grant, to come and make a presentation on their first quarter spending for the 2010/11 financial year. The statistics on spending patterns were published by National Treasury in August 2010.
The Committee meetings took place on 11 and 24 August 2010.
2. Terms of reference
The hearings formed part of the Committee’s ongoing interaction with provinces to monitor their spending on conditional grants allocated to them. A framework for each grant sets out the purpose of the grant, measurable objectives, conditions, allocation criteria, and past performance among other things.
Provinces were requested to make an oral presentation on National School Nutrition Programme Grant and to take into consideration the following:
* Data trends in allocations, transfers and actual expenditure of conditional grants of the department;
* Assessment of department’s monitoring capacity for the 2009/10 financial year and indicate under/overspending and what capacity constraints that impacted on these outcomes; and
* Report whether monthly reports are received from receiving departments and or municipalities, and if not, what the departments are doing in order to ensure compliance with monthly reporting.
The provincial departments of Education of Eastern Cape, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape, Gauteng, Free State, and KwaZulu Natal were identified and invited. However, the Provincial Department of Education of Free State did not attend, and there was no notification that the province was not going to attend.
National Treasury was invited to brief the Committee on the first quarter spending of the above-mentioned provincial departments.
3. Presentations
3.1 National Treasury
National Treasury reported that R3.6 billion is the total available amount that is budgeted for National School Nutrition Grant for the 2010/11 financial year. Of this amount, National Treasury said that R1 billion (that is 27.5 percent of the total budget) has already been transferred to provinces, but only R593 million was spent as at the end of the first quarter of the 2010/11 financial year.
National Treasury reported that some of the reasons given for under-/over-spending by provinces are as follows:
• The Province of Eastern Cape spent R110, 288 000 out of R190, 353 000 that was received due to the late approval of a tender for April to June feeding. National Treasury emphasized that late approval of a tender has led to reduced spending for the first quarter since many schools were forced to revert to cheaper meals until the new tender was confirmed. Furthermore, the Province of Eastern Cape was projected to under-spend by over R101, 357 000 as at the end of the 2010/11 financial year.
• The Province of Gauteng spent R38, 611 000 out of R109, 116 000 received due to the late submission of invoices by suppliers.
• The Province of KwaZulu-Natal spent R132, 823 000 out of R235, 041 000 that was received due to a large number of claims that had to be sent back to districts to be corrected and resubmitted.
• The Province of Mpumalanga spent R48, 906 000 out of R97, 031 000 that was received owing to delays in the system which is used to validate claims.
• The Province of North West spent R26, 592 000 out of R67, 940 000 that was received due to the delays caused by the process of converting from the Walker System to the Basic Accounting System (BAS).
• The Province of Western Cape spent R30, 633 000 out of R48, 698 000 received. This is mainly due to the late submission of invoices by suppliers.
• The Province of Free State spent R49, 804 000 out of R53.594 000.
• The Province of Limpopo spent R135, 452 000 out of R181, 201 000
• The Province of Northern Cape spent R20, 860 000 out of R23, 183 000.
National Treasury reported that there has been an aggregate improvement in the spending rate on the National School Nutrition Programme (NSNP) grant. The spending rate is 12.5 percent higher in comparison to the first quarter of the 2009/10 financial year. This improvement in spending rate is attributable to the provinces of Free State, Northern Cape and Limpopo. National Treasury added that the provinces of Eastern Cape, Gauteng and North West are spending at a lower rate in comparison to the same time in the 2009/10 financial year that is 18.4, 8 and 47 per cent, respectively. A combination of supply chain challenges and invoicing are impending spending on the NSNP grant.
3.2 The Province of Mpumalanga
The Province of Mpumalanga (Education) reported that the total number of primary and secondary school learners that are accessing the National School Nutrition Programme Grant are 751 767 from 1 539 schools. The Province of Mpumalanga further reported that a total number of 3 091 food handlers are contracted at the ratio of 1 food handler per 240 learners for primary schools and 1 food handler per 200 learners for secondary schools. The food handlers are paid a stipend of R600 per month.
The Province of Mpumalanga reported that 26 NSNP monitors supervise the implementation of the NSNP by visiting the schools. After visiting schools, monitors prepare and submit reports to the provincial office for further monitoring and provision of adequate support to all schools. Moreover, the School Governing Bodies further monitor the supply and the quality of food at the school level.
The Province of Mpumalanga reported that it under-spent because the computerized system that was used for the capturing and verification of claims crashed. Consequently, there were delays in the validation of invoices for the months of April and May 2010, and payments thereof. However, the Province of Mpumalanga reported that the programme has been reinstalled and rewritten, and claims are processed faster.
With respect to monitoring, the Province of Mpumalanga informed the Committee that a provincial evaluation team, consisting of officials responsible for the 2 grants (namely NSNP and Life Skills HIV & AIDS Grant), conducts pre-evaluation of 10-20 schools before the final evaluation by the national department is conducted at the end of each financial year. Evaluation reports are compiled by the provincial evaluation team at the end of each financial year.
3.2.1 Committee Observations
* The Special School Learners do not benefit from grant.
* There is a challenge with respect to categorizing schools per quintiles. This has contributed to schools in the same area being classified in different quintiles whereas they are in the same area.
* The Province utilized the grant funds in order to compensate employees.
3.2.2 Committee Recommendations
The Committee recommends that:
* The Province of Mpumalanga should ensure that all needy learners are accessing the NSNP grant.
* The Provincial Departments of Basic Education and Agriculture should fast-track the one-household-one-garden programme. Furthermore, the National Department of Basic Education should coordinate the review/correction of quintiles.
* National Treasury should scrutinize why an unauthorized expenditure, using grant funds to pay salaries, was approved by the Province of Mpumalanga.
3.3 The Province of Limpopo
The Province of Limpopo (Education) reported that due to some constraint with regard to payment of food handlers on monthly basis as schools could not claim for reimbursement on time; the Province of Limpopo decided to transfer grant funds to schools on a quarterly basis as from the 2010/11 financial year. The Province of Limpopo added that the schools are requested to submit invoices as proof of expenses incurred every quarter.
The Province of Limpopo reported that the 2010/11 business plan for the NSNP provides that R3.7 million should be used to procure 24 vehicles for the National School Nutrition Programme Unit. The Committee was informed that the process of procuring these vehicles has started. The Province of Limpopo further reported that, during the 2009/10 financial year, the NSNP received funds from roll-over to erect a cooking area. However, these funds are yet to be utilised. As a result, eight schools erected kitchenettes utilising their own funds.
With respect to monitoring, the Province of Limpopo reported that all 134 circuit offices have an accounting clerk who monitors the NSNP grant. The Province of Limpopo added that the critical constraint that is faced by the monitors is lack of transportation. Furthermore, the Province of Limpopo further reported that the vehicles to be purchased will be stationed at district level and be used per cluster to minimize costs.
3.3.1 Committee Observation
* The most contributing factor to under-spending is that the Province of Limpopo is penalising service providers who supply insufficient quantities of food to schools.
3.3.2 Committee Recommendation
The Committee recommends that:
* In instances wherein few quantities of food are provided, the Province of Limpopo should encourage the service providers to supply additional stuff and invoke the penalty clause as a last resort.
3.4 The Province of Gauteng
The Province of Gauteng (Education) reported that it is currently providing nutrition to a total of 533 644 learners in Quintiles 1-3 primary schools, 85 305 learners in Quintiles 4-5 primary schools and 176 836 learners in Quintiles 1 and 2 secondary schools; and in total 795 785 learners were served with meals. The target number of learners to be fed was 670 000 and the number was exceeded by 125 785(19 percent). The Province of Gauteng explained that the excess was due to the extension of feeding programme to needy learners in Quintiles 4-5 primary school in township areas. The Province of Gauteng added that the NSNP has been successfully implemented in a total of 89 Quintile 2 secondary schools.
With respect to monitoring, the Province of Gauteng reported that, in order to ensure the effectiveness of service delivery as well as the identification of challenges that are facing the programme, two monthly meetings were convened in April 2010 and May 2010 by the district coordinators and provincial staff. The Province of Gauteng further reported that monthly financial reports are compiled.
Some of the challenges that have contributed to under-spending that were mentioned by the Province of Gauteng include delays in payments to service providers in the first quarter of the 2010/11 financial year. The biggest cause in relation to late payment was due to service providers that were sending their invoices late.
The Province of Gauteng reported that corrective measures, that were implemented together with the Provincial Treasury, include ring-fencing funds that were meant for conditional grants and infrastructure budgets; minor enhancements to the financial system have been made to enable the Province of Gauteng to effect this decision; internal measures have been put in place to rectify the matter as per resolution from interacting with the service providers which stated that processing of payments should be done in the second week of every month in order to ensure that all claims are paid on or before the end of each month in which a claim is made.
3.4.1 Committee Observations
* The Province of Gauteng under-spent in comparison to the first quarter of the 2009/10 financial year and the late submission of invoices by service providers is one of the main contributing factors to this under-spending.
* The Province of Gauteng has exceeded the targeted number of learners to be fed by 19 percent.
3.4.2 Committee Recommendations
The Committee recommends that:
* The Province of Gauteng should set stringent timeframes for service providers to abide by when they are submitting its invoices.
* The Province of Gauteng should ensure that the excess number of learners, 19 percent do not result in over–spending at the end of the 2010/11 financial year.
3.5 The Province of KwaZulu-Natal
The Province of KwaZulu-Natal (Education) reported that it was allocated R235, 041 000 for the first quarter of the 2010/11 financial year and it spent on R132, 823 000. With respect to reasons for under-spending, the Province of KwaZulu-Natal reported that June 2010 invoices were not captured due to the following: early closure of schools; late submission of claims by suppliers; an increase in activities for a programme which was not matched by reasonable increase in personnel due to cost-cutting measures; and the long process of reviewing payment process so as to eradicate bottlenecks.
With respect to monitoring capacity, the Province of KwaZulu-Natal informed the Committee that there are personnel at provincial and district levels that monitor operations at schools and deal with claim processing; and that on-site physical inspections is conducted in order to, amongst other things, ensure cleanliness and ensure that cooking processes are compliant with specifications including quality and quantity of food. The Province of KwaZulu-Natal further reported that examination of claims are conducted to ensure compliance with programme specifications and business plan; and that claims are in line with budget allocations are for approved schools per the programme.
The Province of KwaZulu-Natal reported that some of the challenges that the it is faced with include, among other things, increased volume of claims with the because the programme is expanded; high food costs especially on vegetables; inadequate/lack of kitchens and food storage space; cooking on rainy days is problematic because of lack of kitchens; shortage of water supply in rural areas limits food production in schools; and non-/late submission of claims by suppliers.
The Province of KwaZulu-Natal reported that the NSNP is feeding all learners in quintiles 1 and 2 in secondary schools in addition to the quintiles 1 and 3 in primary schools. The Province of KwaZulu-Natal added that learners are scheduled to feed for all school days. The Province of KwaZulu-Natal explained that the procurement method used is the quotation system and it has successfully used a combination of small medium and micro enterprises and local women cooperatives. The Province of KwaZulu-Natal further added on saying that it has employed contract workers in order to increase the capacity of the programme in processing payments to service providers.
3.5. 1 Committee Observation
* It is not only the late submission of invoices that contribute to late or non-payment of service providers. Internal bottlenecks are other contributing factors to late payment of service providers which then leads to under-spending.
3.5. 2 Committee Recommendations
The Committee recommends that:
* The Province of KwaZulu-Natal should ensure that it its internal control measures are fully implemented.
* The Province of KwaZulu-Natal should ensure that it continues to capacitate service providers to such a point that they can be able to bill properly.
3.6 The Province of Western Cape
The Province of Western Cape (Education) reported that it received R173,318 000 for the first quarter of the 2010/11 financial year and spent R30, 633 000. With respect to monitoring, the Province of Western Cape presented that it possesses capacity to monitor spending. The Province of Western Cape reported that additional fieldworkers will be required to increase its capacity to monitor the implementation of the NSNP at schools more effectively. Furthermore, the Province of Western Cape reported that monthly reports are received from districts offices i.e. monthly financial statements and quarterly statistical and narrative reports.
The Province of Western Cape reported that all quintile 3 secondary schools will be prepared for the inclusion of all learners. The Province of Western Cape presented that 361 321 learners are provided with nutritious meals on a daily basis at 1 004 targeted primary and secondary schools. The Province of Western Cape said that the total expenditure is below target as a result of fewer school days in June 2010. The Province of Western Cape further reported that a general increase in the number of learners accessing the grant in July 2010, and that spending, with regard to kitchen equipment and facilities for quintile 3 secondary schools, will cause normalization in the expenditure trends towards December 2010.
3.7 The Province of Northern Cape
The Province of Northern Cape (Education) reported that its spending, for the first quarter of the 2010/11 financial year, amounts to R20, 860 000 (25 percent) of the main grant budget. The Province of Northern Cape further informed the Committee that the NSNP is exceeding its targets (by approximately 1.3%) of the number of learners provided with a meal a day. However, the Province of Northern Cape revealed that 1 483 food handlers were employed instead of the targeted 1 700. With respect to service providers, the Province of Northern Cape reported that only 317 small medium and micro enterprises were utilised against a target of 500. The Province of Northern Cape further reported that there are vegetable gardens at 341 schools but a target was to establish vegetable gardens in 300 schools. But the Province of Northern Cape added that targets for providing garden tools and implementation of nutrition guidelines to schools were not reached.
3.7.1 Committee Observations
* The Committee observed that even though there are food gardens in 341 schools versus the target of 300, irrigation water is scarce.
* The Province of the Northern Cape has not employed garden caretakers as their documentation is was not provided by schools.
3.7.2 Committee Recommendations
The Committee recommends that:
* The Province of Northern Cape should form partnership with the Provincial Department of Agriculture that seeks to provide support to schools that have established vegetable gardens.
* The Province of Northern Cape should priorities the provision of garden equipment and the implementation of nutrition guidelines.
* The Province of Northern Cape should ensure that the number of schools with vegetable gardens are equal to or higher than 75 percent of 341 targeted schools before the end of the third quarter of the 2010/11 financial year in terms of their business plans.
3.8 The Province of North West
The Province of North West (Education) reported that it has under-spent during the first quarter of the 2010/11 financial year. The following were given as reasons for under-spending: migration to the national Basic Accounting System (BAS) delayed the transfer of NSNP funds to schools; and spending on cooking utensils that has not been effected yet.
With respect to monitoring of the programme, the Province of North West reported that day-to-day monitoring of the programme is performed by designated official at Area Project Office (sub-district) level and spending reports are submitted monthly. At school level, schools maintain registers that record expenditure and number of learners fed each day, said the Province of North West. The Province of North West further reported that monthly reconciliation is done against the approved business plan and monthly expenditure reports are submitted timeously to the National Departments of Basic Education and Higher Education, and Provincial Treasury as prescribed in the Division of Revenue Act and/or the Public Finance Management Act.
With regard to remedial steps, the Province of North West reported that schools were advised to use funds allocated to comply with Section 21 of Act No. 1 of 2010 to ensure that learners are not adversely affected and, personnel were deployed to support schools in the implementation of this intervention. The Province of North West further reported the following: that, with effect from July/August 2010, schools shall receive their NSNP funds as scheduled following the resolution of BAS related problems; delivery of cooking utensils for quintile 3 secondary schools is scheduled for third/fourth quarter; and secondary schools in quintile 3 shall receive their transfers in March 2011.
3.8.1 Committee Observation
* The Committee is of the view that the plan to transfer grant funds to secondary schools in quintile 3 at the end of the financial year is equivalent to fiscal ‘dumping’.
3.8.2 Committee Recommendation
The Committee recommends that:
* The Province of North West should ensure that it avoids delaying transfers of grants funds for cooking utensils to quintile 3 schools until the last month of the financial year.
3.9 The Province of Eastern Cape
The Province of Eastern Cape (Education) reported historical problems of the NSNP grant since 2004. These include: the inheritance of quintiles 4 and 5 schools which are not catered for by the conditional grant; payment backlogs because of collapse of SNP in 2006 due to premature incorporation of cooperatives; the approval forensic audit by a company called Ngubane & Associates which led to abrupt stoppage of programme due to investigation, the forensic audit led to additional payment backlogs estimated at R40 million.
The Province of Eastern Cape added on saying that all outstanding invoices since 2006 are being audited and additional funding will be required to eliminate payment backlogs. Furthermore, the Province of Eastern Cape reported that roll-over funds for the 2007/08 financial year to the value of R42.362 million, which was not granted to the Department, may assist to deal with these payment backlogs.
The Province of Eastern Cape reported that a total of 1 126 727 learners from grades R to 7 in quintiles 1 to 3 primary schools benefit from the grant over 186 days per annum. Furthermore, 300 173 learners in grade 8 to 12 in quintiles 1 and 2 secondary schools are benefiting from the grant over 186 days per annum.
The Province of Eastern Cape reported some of the contributing factors to under-spending as follows: delays in the loading of the conditional grant budget in April (due to conditional grant codes) which led to payments to be made only in the last week of April 2010; slow, late and non-submission of 1401’s BAS entity forms by schools which is an additional control measure and prerequisite for transfer of meal servers payments to schools; the non-awarding of NSNP tender resulted in further extension of the contract in April-June 2010 which was approved late in June 2010 with the old price of R1.65 instead of R1.95 for primary schools and R2.00 for secondary schools instead of R2.95 and this translated to delays in payments; the extended tender continued to provide food excluding quintile 2 senior secondary schools from April to June 2010 due to non-awarding of the tender.
With respect to remedial measures, the Province of Eastern Cape reported as follows: capacity issues in the programme are being addressed by assistance from the payment directorate to clear first quarter payment backlogs; an audit team, to deal with payment backlogs dating back to 2004, has been establish; the memorandum of understanding (MOU ), signed by the Eastern Cape’s Provincial Department of Education and King Hintsa Further Education and Training College, will be extended in order to provide quintile 3 schools (primary and secondary) and primary schools with mobile kitchens and feeding utensils in the second quarter of the 2010/11 financial year; and awarding of the new SNP tender and the rollout thereof in October 2010 will assist in addressing under expenditure.
The Province of Eastern Cape reported that monthly in-year monitoring reports were submitted in compliance with the Division of Revenue Act. The Province of Eastern Cape added on saying that compliance to menu and supplier performance have been monitored by districts and head office staff coordinators. The Province of Eastern Cape informed the Committee that actions are taken against non-performing suppliers to avoid fruitless and wasteful expenditure. The Province of Eastern Cape assured the Committee that regular monitoring visit by district staff and submission of reports are done as part of monitoring of spending.
The Committee was told that weaknesses in monitoring result in inaccurate data for budget planning (for example, confirmation of the number of grade R‘s at schools, closed schools, and farm schools will assist the Eastern Cape’s Department of Education in accurate budget planning); staff shortage in the NSNP Directorate and in some districts is exacerbated by the absence of a Director for NSNP and this affects implementation and management of the programme generally; and labour unrest in the department at Head Office has an impact on the timely processing of payments and delays in awarding of tenders.
The Province of the Eastern Cape reported that an application for a rollover and/or appeal for additional funding will be made to the Provincial Treasury to deal with the payment backlogs dating back to 2004. The Province of the Eastern Cape added that SNP Tender has to be awarded by the first week in September 2010 to ensure timeous issuing of award letters and orders to new service providers by Supply Chain Management; monitoring of programme to be improved and learner data to be verified and lastly, the Province said payments to current service providers have been updated and are to be made within 30 days.
3.9.1 Committee Observation
* The committee notes that the continuous extension of the contract that has expired is compromising the service provider because it can only charge the same price whereas food prices have increased. Furthermore, the supply chain unit is failing to discharge its function.
3.9.2 Committee Recommendation
The Committee recommends that:
* The Province of the Eastern Cape should ensure that the NSNP tender process is completed before the end of the second quarter.
4. General Findings
The Committee noted that:
* There is shortage of water in schools has negative effects in vegetable gardens; planted seeds die because they are not provided with sufficient water;
* The Supply Chain Managements challenges are contributing to under-spending; this is the biggest contributing factor to the Eastern Cape’s under-spending and
* There is a new trend that of contract workers forcing provinces to employ them permanently.
5. Further Recommendations
Having analysed the spending patterns on the National School Nutrition Programme Grant by provincial departments of Education, the Select Committee on Appropriations recommends that the National Council of Provinces considers the following:
5.1 That the Provincial Departments of Water should devise other means of preserving water;
5.2 That the Provincial Department of Agriculture should assist schools that have vegetable gardens and encourage other schools to have vegetable gardens; and
5.3 That National and Provincial Treasuries should provide support to the provincial departments that have Supply Chain Management challenges i.e. poor tender management that has lead to under-spending by certain provincial departments.
Report to be considered.
5. Report of the Select Committee on Security and Constitutional Development on the provisional suspension from office of Magistrate L Skrenya, dated 23 November 2010:
Introduction
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of a magistrate, Mr L Skrenya, a magistrate and judicial head at Cala, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
1. On 5 August 2009, the Director of Public Prosecutions:Transkei directed that Mr Skrenya be prosecuted on a charge of fraud.
2. On 18 September 2009, Mr Skrenya appeared in the Cala District Court. The criminal case was remanded to 21 and 22 September 2010 for trial.
3. The criminal charge emanates from misrepresentations Mr Skrenya made to his sub-cluster head. Mr Skrenya claimed that on 24 April 2009, he had used his private vehicle on an official trip from Cala to Dordrecht and submitted a claim for a transport allowance. Mr Skrenya, in fact, used a government vehicle for this trip. He therefore committed fraud by submitting a claim that he was not entitled to.
4. A preliminary investigation conducted into other complaints filed against Mr Skrenya found prima facie evidence that, on 12 May 2009, he irregularly refused to adhere to a request by the Prosecutor to withdraw a criminal charge against an accused before a plea was tendered, meru moto postponed the case to 30 June 2009 and ordered that the accused be kept in custody. This decision was later set aside by the High Court on special review. His conduct resulted in the Minster of Justice and Constitutional Development being sued for damages.
5. It is further alleged that Mr Skrenya held a criminal court which was not properly constituted, and that he postponed various criminal cases in chambers in the absence of the prosecutor.
6. On 26 October 2009, the Commission informed Mr Skrenya that it was contemplating recommending that he be provisionally suspended from office pending the outcome of an investigation into his fitness to hold office. He was requested to show cause why the decision should not be taken.
7. On 26 August 2010, the Commission, having considered Mr Skrenya’s response, resolved to advise the Minister to provisionally suspend him from office in terms of section 13(3)(a) of the Act.
8. The Commission is of the view that the alleged misconduct against Mr Skrenya is of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations are being investigated. It would also be inappropriate for a judicial officer, appearing as an accused before a court of law on a charge of fraud to still sit on the Bench.
Conclusion
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of Magistrate L Skrenya, recommends that the National Council of Provinces confirms the provisional suspension from the office of Magistrate L Skrenya.
Report to be considered
6. Report of the Select Committee on Security and Constitutional Development on the provisional suspension from office of Magistrate F R Rambau, dated 23 November 2010:
Introduction
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of a magistrate, Mr F R Rambau, a regional magistrate at Polokwane, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
9. The Regional Court President of the Limpopo Province informed the Magistrates Commission, on 8 February 2010, that Regional Magistrate Rambau together with the prosecutor and an attorney, was arrested for corruption on 5 February 2010.
10. It is alleged that Mr Rambau, the prosecutor and the attorney together arranged the outcome of the trial by pre-determining the sentence for financial reward.
11. Mr Rambau and his two co-accused appeared in the Musina District Court on 8 February 2010 on charges of corruption. They were released on R10 000 bail each. Mr Rambau was further prohibited from entering or visiting any Magistrates Office in the Thohoyandou Cluster.
12. The Regional Court President requested the Magistrates Commission to provisionally suspend Mr Rambau from office.
13. On 8 February 2010, the Ethics Division of the Magistrates Commission informed Mr Rambau in writing that the Commission was contemplating recommending that he be provisionally suspended from office, pending the outcome of an investigation into his fitness to hold office. He was requested to show cause, in writing, why such a decision should not be taken.
14. The Magistrates Commission considered Mr Rambau’s response and at its meeting held on 26 August 2010, resolved to advise the Minister to provisionally suspend Mr Rambau from office in terms of section 13(3)(a) of the Act.
15. The Commission was of the view that the charges against Mr Rambau were of such a serious nature as to make it inappropriate for him to continue to perform the functions of a Magistrate while the allegations were being investigated.
16. The Commission is of the view that the alleged conduct by Mr Rambau is of such a serious nature that it would justify his removal from office if he were found guilty of the misconduct charges against him.
Conclusion
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of Magistrate F R Rambau, recommends that the National Council of Provinces confirms the provisional suspension from the office of Magistrate F R Rambau.
Report to be considered
7. Report of the Select Committee on Security and Constitutional Development on the suspension from office of Magistrate MN Jassiem, dated 23 November 2010:
Introduction
The Select Committee on Security and Constitutional Development, having considered the report on the suspension from office of a magistrate, Mr M N Jassiem, an additional magistrate at Mitchells Plein, Western Cape, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
Background
1. On 9 October 2006, 28 August 2007 and again on 23 November 2009, Mr Jassiem wrote to the Magistrates Commission for approval to run his practice as an attorney whilst permanently appointed as a Magistrate.
2. Mr Jassiem was informed in July 2007 that the Service Conditions Committee of the Commission had resolved to refer the matter to the Magistrates Commission for further consideration.
3. The Commission, on 23 August 2007, resolved not to approve Mr Jassiem’s request to be allowed to practise as an attorney. In September 2001, the Commission informed the Judicial Head of the Administrative Region of its decision and requested the Judicial Head to inform Mr Jassiem.
4. Mr Jassiem was notified of the Commission’s resolution on 21 September 2007.
5. The Commission noted that Mr Jassiem was still practising as an attorney and that he was therefore deliberately in defiance of a decision by the Commission that he not be allowed to practise as an attorney whilst holding the office of Magistrate.
6. The Senior Legal Officer of the Cape Law Society submitted an affidavit, dated 17 September 2009, that:
1. Mr Jassiem ceased practising as an attorney on 9 October 2000, but recommenced to practise for own account as MN Jassiem and Associates from 1 November 2006.
2. He is the sole partner in the firm.
3. There are no other practitioners at the firm, and that he personally applied for a Fidelity Fund Certificate for 2007, 2008, 2009 and 2010.
4. He is in possession of a 2010 Fidelity Fund Certificate, and that he submitted an unqualified trust account audit for the period ending 28 February 2009 for MN Jassiem and Associates.
7. After considering the contents of the affidavit and other correspondence received from the Cape Law Society, the Chairperson of the Commission, on 12 November 2009, requested Mr Jassiem to give reasons why he should not be charged with misconduct for deliberately defying a decision taken by the Commission on 23 August 2007.
8. Mr Jassiem was charged with misconduct on 11 December 2009. The misconduct inquiry commenced on 6 April 2010.
9. Mr Jassiem initially pleaded guilty to the main charge but changed his plea to not guilty after indicating that he never ran any practice as an attorney but was doing conveyancing and estate administration.
10. In his judgment, the Presiding Officer found Mr Jassiem to be dishonest in that he had, on 8 October 2006, misled the Cape Law Society. He had indicated in writing that he had the Commission’s permission to practise as an attorney. He only requested the Commission’s permission on 9 October 2006. He had also misled his Judicial Head of Office in this regard and his conduct therefore showed lack of integrity as an officer of the court.
11. After considering all the evidence presented before him, the Presiding Officer found Mr Jassiem guilty of misconduct on the main count.
12. The Presiding Officer recommended, in terms of the regulation of 26(17)(b) of the Regulations for Judicial Officers in the Lower Courts 1994, that Mr Jassiem be removed from office as contemplated in section 13 of the Magistrates Act.
13. At its meeting held on 26 August 2010, the Commission considered relevant documents as required in terms of regulation 26(22) read with regulation 26(19) of the Regulations for Judicial Officers in Lower Courts, 1994. The Commission resolved to accept the findings of the Presiding Officer and to recommend to the Minister for Justice and Constitutional Development to remove Mr Jassiem from office on the grounds of misconduct in terms of section 13(4)(a)(i) of the Magistrates Act, 1993.
Conclusion
The Select Committee on Security and Constitutional Development, having considered the report on the suspension from office of magistrate Mr M N Jassiem, reports that it concurs with the Minister for Justice and Constitutional Development and recommends that Mr M N Jassiem be removed from office.
Report to be considered
8. Report of the Select Committee on Security and Constitutional Development on the provisional suspension from office of Magistrate I W O M Morake, dated 23 November 2010:
Introduction
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of a magistrate, Mr I W O M Morake, an additional magistrate at Lichtenburg, tabled by the Minister for Justice and Constitutional Development, in terms of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
1. Mr Morake, as a Magistrate and Judicial Head at Lichtenburg, has had several complaints lodged against him with the Magistrates Commission. The allegations were as follows:
1.1. Attorneys Ranamane Phungo Incorporated, acting on behalf of Moeder Moraine Tirano, alleged that Mr Morake instructed their client to vacate the property she was occupying without any application being placed before him. It is alleged that Mr Morake had called Ms Tirano to his office and had personally instructed her to vacate her premises.
1.2. The Provincial Head of the South African Police Detective Service, North West, requested the Commission to investigate a complaint made by one of its members against Mr Morake. The Investigating Officer, in a stock theft case, arrested a suspect in the Lichtenburg district and impounded the stolen livestock. The suspect was charged and appeared before the Lichtenburg Magistrates’ Court. The case was remanded for further investigation. The Investigating Officer alleged that a week prior to the remand date, Mr Morake phoned him and ordered him to appear before him. Mr Morke also threatened the Investigating Officer with arrest if he failed to appear. The Investigating Officer complied with the instruction and attended the meeting. The accused was also present at the meeting. Mr Morake asked the Investigating Officer how he could help the accused. The Investigating Officer replied that the matter was in court and that he could not help the accused. The Investigating Officer later reported that he found Mr Morake’s conduct unusual and threatening.
1.3. The Chef Magistrate of the North West Administrative Region received a complaint from Legal and Tax Services (Pty) Ltd, a legal expense insurance company, which alleged that Mr Morake agreed to assist one of their clients with a loan agreement. The matter was forwarded to the Chief Magistrate of the North West Administrative Region. The allegation was that their client had forwarded R950 to Mr Morake to secure the loan, but, since no assistance was forthcoming, they requested to be refunded.
1.4. It is further alleged that Mr Morake interfered in a private matter to such an extent that the complainant had to approach the court for relief. It was alleged that Mr Morake contacted Mr Shohag, a businessman, and ordered him to come to Mr Morake’s office immediately. Mr Shohag informed Mr Morake that he could not make it and was threatened with arrest. Mr Shohag was advised not to attend and later that day was visited by three police officers. The police officers informed him that his employee had a problem with him and he had to go and see the magistrate about the issue. Mr Shohag and his two partners went as instructed. Mr Shohag’s employee was present at the meeting and the magistrate questioned Mr Shohag about the problem between him and the employee. Mr Shohag was instructed by Mr Morake to sign an agreement that Mr Shohag would conduct business with his employee. Mr Morake threatened Mr Shohag with deportation back to Bangladesh if he failed to follow the instructions. Mr Shohag later obtained an interdict against Mr Morake and reported the incident to the SAPS Organised Crime Unit.
1.5. On 13 July 2007, Mr Morake appeared in the Lichtenburg District Court on three charges of theft. The case stands postponed to 18 October 2010 for judgment.
1.6. It is further alleged that Mr Morake visited a lady at her workplace regarding a rental dispute she had with another person. Mr Morake ordered the lady to come to his office to discuss the matter. She acceded to his request and, with her husband, attended the meeting where the other party was also present. The matter involved the payment of arrears in respect of electricity to the amount of R1 173. Mr Morake would not hear the woman’s reason for not paying and ordered that the woman pay the outstanding amount to him rather than to the municipality. He would pay the other party. He threatened the lady with incarceration if she did not follow his instructions. The lady paid the money to Mr Morake, but, a few weeks later, she was summoned to the Small Claims Court for payment of the amount of R1 173. The other party had not received the money from Mr Morake and was not aware that Mr Morake had received the money. Mr Morake no longer had the money and said that someone had taken it from his office.
2. On 10 February 2010, the Magistrates Commission informed Mr Morake in writing that the Commission was contemplating recommending that he be provisionally suspended from office pending the outcome of an investigation into his fitness to hold office. He was requested to show cause, in writing, why the decision should not be taken.
3. On 26 August 2010, the Commission, having considered Mr Morake’s response received on 25 February 2010, resolved to advise the Minster to again provisionally suspend Mr Morake from office in terms of section 13(3)(a) of the Act. The Commission is of the view that the existing evidence against Mr Morake is of such a serious nature as to make it inappropriate for him to perform the functions of a magistrate while the allegations are being investigated.
4. It would be furthermore be inappropriate for a judicial officer, appearing as an accused before a court of law in charges of theft, emanating from complaints within the district he is serving, to still sit on the Bench.
5. The Commission holds the view that the existing evidence against Mr Morake is of such a serious nature that it would justify his removal from office should he be found guilty of the misconduct charges against him.
Conclusion
The Select Committee on Security and Constitutional Development, having considered the report on the provisional suspension from office of magistrate I W O M Morake, recommends that the National Council of Provinces confirms the provisional suspension from the office of Magistrate I W O M Morake.
Report to be considered.
9. Report of the Select Committee on Security and Constitutional Development on the suspension from Office of Magistrate A Maharaj, dated 23 November 2010
Introduction
The Select Committee on Security and Constitutional Development, having considered the report on the suspension from office of a magistrate, Ms A Maharaj, an additional Magistrate on probation at George, tabled by the Minister for Justice and Constitutional Development, in terms of section 13(4)(a)(i) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
Background
1. Ms Maharaj was serving as an additional magistrate on probation at the Magistrates’ Court in George. She was charged with misconduct on 8 March 2007. The misconduct inquiry against Ms Maharaj commenced on 20 March 2007 at George Magistrates’ Court, but was postponed at the request of the defence to confer with Ms Maharaj.
2. On 24 July 2007 the inquiry resumed at Durban Magistrates’ Court, but was postponed sine die pending submissions to be made by Ms Maharaj to the Commission on the charges laid against her. The Commission received Ms Maharaj’s written submission on the charges and indicated that it accepted the explanation for charges three to eight and would only proceed with the first two charges laid against her.
However, a further five charges, i.e. counts 9 to 13, were brought against her on 17 July 2008.
3. The inquiry resumed on 12 March 2009 at Durban Magistrates’ Court. Ms Maharaj pleaded not guilty to the charges. The Commission led evidence on 18 August 2009 and the presiding officer found Ms Maharaj guilty on the first two counts and on counts 9, 10 and 12. No evidence was led on count 11 and, as a result, she was acquitted. She was also acquitted on count 13.
4. The Presiding Officer passed sentence on 15 April 2010 and concluded that each count on which she was found guilty “hits at the integrity of a judicial officer”. Having reviewed all the facts before her the Presiding Officer recommended that Ms Maharaj be removed from office as contemplated in section 13 of the Magistrates Act, 1993 (Act no 90 of 1993). The Commission resolved to accept the findings of the Presiding Officer and to recommend to the Minister for Justice and Constitutional Development to remove Ms Maharaj from office in terms of section 13 of the Magistrates Act, 1993.
Conclusion
The Select Committee on Security and Constitutional Development, having considered the suspension from office of magistrate Ms A Maharaj, reports that it concurs with the Minister for Justice and Constitutional Development and recommends Ms Maharaj be removed from office.
Report to be considered.
_______________________________ Date:
The Honourable Mr T H Mofokeng, MP
Chairperson: Select Committee on Safety and Constitutional Development
10. Report of the Select Committee on Security and Constitutional Development on the Draft Notice and Schedule in terms of section 12(3) of the Magistrates Act, 1993 (Act No 90 of 1993), determining the rate at which salaries are payable to magistrates annually, dated 23 November 2010
Introduction
The Select Committee on Security and Constitutional Development, having considered the Draft Notice and Schedule in terms of section 12(3) of the Magistrates Act, 1993 (Act No 90 of 1993), determining the rate at which salaries are payable to magistrates annually with effect from 1 April 2010, referred to it, recommends that the Council approve the said Draft Notice and Schedule.
Report to be considered
11. Report of the Select Committee on Security and Constitutional Development on the Draft Notice and Schedule submitted in terms of section 2(4) of the Judges Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), determining the rate at which salaries are payable to Constitutional Court judges and judges annually, dated 23 November 2010
Introduction
The Select Committee on Security and Constitutional Development, having considered the Draft Notice and Schedule submitted in terms of section 2(4) of the Judges Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), determining the rate at which salaries are payable to Constitutional Court judges and judges annually with effect from 1 April 2010, referred to it, recommends that the Council approve the said Draft Notice and Schedule.
Report to be considered
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