Hansard: NA: Unrevised hansard
House: National Assembly
Date of Meeting: 23 May 2012
Summary
No summary available.
Minutes
UNREVISED HANSARD
WEDNESDAY, 23 MAY 2012
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PROCEEDINGS OF THE NATIONAL ASSEMBLY
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The House met at 14:02.
The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
NOTICES OF MOTION
Ms J L FUBBS: Hon Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates celebrating the legacy of the fourth President General of the African National Congress (ANC), Mr Josiah Tshangana Gumede, who served as the President of the ANC from 1927 to 1930.
I thank you.
Ms L D MAZIBUKO: Mr Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the high levels of youth unemployment in South Africa and addressing this problem through the introduction of a Youth Wage Subsidy.
Thank you.
Mr D A KGANARE: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of Cope:
That the House debates the link between service delivery protests and corruption within municipalities and ways to curb it.
Thank you.
Ms H N MAKHUBA: Hon Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House debates the detrimental socio-economic effects that “easy access to credit” advertisements have on our society.
Thank you.
Mr N J J KOORNHOF: Mr Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of Cope:
That the House discusses the issue of racism in South Africa and ways to address it.
Mr N B FIHLA: Hon Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates celebrating the legacy of the second President of the African National Congress (ANC), Sefako Mapogo Makgatho, who served as the President of the ANC from 1917 to 1924.
Thank you.
Mr K S MUBU: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the outcomes of the review and appeal actions by the various Departments against the decision of the Competition Tribunal on the Walmart-Massmart merger.
Thank you.
Mr G S RADEBE: Hon Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates honouring the Legacy of Pixley ka Isaka Seme as President-General of the African National Congress from 1930 to 1936.
Mr G G BOINAMO: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates lawlessness displayed during strikes related to service delivery, where infrastructure is intentionally damaged and destroyed, and measures to address the situation.
Thank you.
Mrs H S MSWELI: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House debates the crisis of the lack of staff in Eastern Cape hospitals and the detrimental impact this has on the lives of our people.
Thank you.
Mr M M SWATHE: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the degree of skills transfer acquired by individuals participating in the Expanded Public Works Programme and recommendations to improve the situation.
Thank you.
Adv T M MASUTHA: Hon Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates the progress made regarding the implementation of the Oversight Model that the House has adopted to ensure accountability.
Dr D T GEORGE: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates concerns that were raised by the Auditor-General regarding the vulnerability of his office resulting from a lack of support from government and measures to resolve deteriorating standards of governance of the public finances.
Thank you.
Mr L SUKA: Mr Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House assesses the situation of farm workers over the past 18 years.
Thank you.
Mr A P VAN DER WESTHUIZEN: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the delays in the implementation of improved benefits by the Unemployment Insurance Fund for those that have lost their jobs and ways to speed up a final decision in this regard.
Thank you.
Chief M NONKONYANA: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates the extent to which the current co-operative governance system contributes towards the building of a developmental state.
Thank you.
Mrs M WENGER: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the findings of the 2012 Blue Drop Report on drinking water management in South Africa’s municipalities and recommendations to improve performance where required.
Mr P M MATHEBE: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House debates the assessment of water allocation to the previously disadvantaged and how this scarce resource can be used equitably and sustainably in order to support the developmental objectives of the country.
Thank you.
Mnr N J VAN DEN BERG: Agb Speaker, ek gee hiermee kennis dat in die volgende sitting van die Huis ek ’n voorstel namens die DA sal doen:
Dat die Huis so spoedig moontlik die volgende debatteer: die herwaardering van Suid-Afrika se diverse kultuur en kuns erfenis, om sodoende kennis en begrip van alle groepe se verlede te kry, sodat ons almal saam ’n toekoms kan bou.
Ek dank u. (Translation of Afrikaans notice of motion follows.)
[Mr N J VAN DEN BERG: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates re-evaluating South Africa’s diverse arts and cultural heritage so as to recognise and develop an understanding of the histories of all groups in order to build a future together.]
Mr M MNQASELA: Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DA:
That the House debates the workings, risks and opportunities posed by the South African immigration regime and solutions to improve the situation.
Thank you.
HONORARY DEGREES AWARDED TO JONAS GWANGWA
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Speaker, I move without notice:
That the House –
- welcomes with a great sense of pride the honouring of one of the greatest jazz geniuses South Africa has ever produced, Jonas Gwangwa, with an honorary doctorate in music education by the Walter Sisulu University in Mthatha, on Saturday, 12 May 2012;
- notes that this honorary doctorate was awarded in recognition of his sterling contribution to the development and promotion of African art and culture, particularly the jazz music genre;
- acknowledges that the University of South Africa also awarded a Doctor of Literature and Philosophy degree to Jonas Gwangwa on 3 May 2012;
- further acknowledges his impressive musical and political contributions towards a free and democratic South Africa; and
- wishes him much success in his future endeavours.
Agreed to.
GOLD MEDAL FOR SOUTH AFRICA AT CHELSEA FLOWER SHOW
(Draft Resolution)
The CHIEF WHIP OF THE OPPOSITION: Speaker, I move without notice:
That the House -
- notes that the Royal Horticultural Institute hosts its annual Chelsea Flower Show, the “Olympics” of flower shows, in London from 22 to 26 May 2012;
- further notes that South Africa will be represented by the South African National Biodiversity Institute’s (SANBI) Kirstenbosch;
- believes that this year will be the 37th year that South Africa has exhibited at the show;
- recognises that the theme for this year’s exhibition is aptly named Gateways – A botanical journey, showcasing the different climates and flora that South Africa has to offer;
- further recognises David Davidson and Ray Hudson for creating the concept and design of the South African exhibition;
- is aware of the fact that this year’s South African exhibition was awarded a gold medal;
- acknowledges that our ecological diversity is an extremely valuable national asset and that we embrace the opportunity to share our natural heritage;
- further acknowledges the importance of protecting our natural heritage for generations to come; and
- congratulates David Davidson, Ray Hudson and the SANBI Kirstenbosch and their entire team for a remarkable exhibition and bringing home the gold.
Agreed to.
SITTING HOURS
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Speaker, on behalf of the Chief Whip of the Majority Party, I move the motion as printed in his name on the Order Paper as follows:
That, notwithstanding the hours of sitting of the House as provided for in Rule 23(2), the hours of sitting for Tuesday, 12 June 2012, shall be 11:00 to adjournment.
Agreed to.
EXTENSION OF DEADLINE FOR AD HOC COMMITTEE TO REPORT
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Speaker, on behalf of the Chief Whip of the Majority Party, I move the motion as printed in his name on the Order Paper as follows:
That the House extends the deadline by which the Ad Hoc Committee on the Code of Judicial Conduct and Regulations on Judges’ Disclosure of Registrable Interests has to report to 14 August 2012.
Agreed to.
EXTENSION OF DEADLINE FOR AD HOC JOINT COMMITTEE TO REPORT
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Speaker, on behalf of the Chief Whip of the Majority Party, I move the motion as printed in his name on the Order Paper as follows:
That the House, subject to the concurrence of the National Council of Provinces, extends the deadline by which the Ad Hoc Joint Committee on Request for Recommendation of Candidate for Appointment to Board of National Youth Development Agency has to report to 14 August 2012.
Agreed to.
SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL
(Second Reading debate)
The MINISTER OF POLICE: Thank you, hon Speaker. Hon Members of Parliament, criminals continue to prey on our people and society. Organised crime, serious economic and transnational crimes, as well as corruption, undermine our democracy and have a negative impact on our people.
To address this it is essential that we wage an all-out war against criminal elements involved in these types of crimes, criminals who seek to derail the progress we have made as a society. Of critical importance is that Members of Parliament, public representatives across all levels of our governance system, and public servants in general must participate in this offensive in a determined and co-ordinated manner.
Internationally, it is accepted that you cannot separate organised crime and corruption, and that the two forms of crime are considered to be two sides of the same crime coin. It is also internationally accepted that to address these forms of crime a strong multiagency approach and focus are required.
In 2008-09, government and Parliament engaged in a lengthy and consultative process that ultimately resulted in the establishment of the Directorate for Priority Crime Investigation, DPCI, within the SA Police Service.
As government we are continuously seeking to improve the quality of law enforcement agencies and the criminal justice system as a whole. It is for this reason that, after finalising the process to establish the DPCI, we agreed that the legislation which created this unit would be subject to a three-year review in terms of section 17K of the South African Police Service Amendment Act of 2009 after being enacted. This review was aimed at using the operational experience gained in these three years to further strengthen our legislation and the effective functioning of the DPCI.
On 17 March 2011 the Constitutional Court, in Glenister v President of the Republic of South Africa and Others, declared Chapter 6A of the South African Police Service Act, which deals with the Directorate for Priority Crime Investigation, DPCI, to be inconsistent with the Constitution of the Republic of South Africa, because it failed to secure an adequate degree of independence of the DPCI. The Constitutional Court suspended the declaration of invalidity for a period of 18 months to afford Parliament an opportunity to remedy this defect. We respected the Constitutional Court and at the same time began in earnest to work on the changes as highlighted during the judgment.
The Bill that is before this House therefore seeks to achieve two objectives. The first is to address our commitment and undertaking that we would review and improve the legislation governing the DPCI, three years after its enactment.
The second is to honour and respond to the Constitutional Court’s ruling regarding the DPCI. It is important to reiterate that, contrary to what has been projected by some members of the opposition and certain so-called legal experts, the Constitutional Court in its judgment indicated that the creation of a separate crime-fighting unit within the SA Police Service, the SAPS, was not, in itself, unconstitutional.
The court also, contrary to what some have inappropriately projected in the public domain, stated that the Constitution does not require full independence, but rather adequate levels of structural and operational independence. In defining independence, international standards require political commitment and adequate resources, powers and staffing of the structure or approach.
The process of drafting the legislation began in April 2011 and included, amongst others, a serious review and analysis of what the Constitutional Court ruling actually implied; and a review of international standards, approaches and positions regarding such organised crime and corruption-fighting mechanisms.
In addition, during the process of drafting this legislation there was a serious review of different options, and there were extensive consultations with the National Treasury and the Department of Public Service and Administration, DPSA, regarding what models would best work. This was a relatively detailed process and took about 10 months to complete. However, at the end of this process we had satisfied ourselves that amendments to Chapter 6A of the South African Police Service Act and strengthening of the role and position of the DPCI were the correct way to go.
During our international review we were able to recognise that international standards neither offer a blueprint for the setting up of the administration of an anticorruption institution, nor advocate a single best practice model or a universal type of anticorruption agency.
The Bill that is now before this House therefore seeks to align our legislation with the Constitutional Court judgment and, based on the extensive research and analysis process, seeks to improve the legislation governing the functioning of the DPCI and our approach to fighting organised economic and transnational crimes. The Bill provides the DPCI with the adequate structural and operational independence to perform its functions.
However, what is also important is that the anticorruption law enforcement approach is not overburdened by its having to investigate cases of petty corruption. Therefore, it is ideal to limit its jurisdiction to serious cases.
The Bill ensures that there is a strong legal basis for the approach to organised crime and corruption. This should include a clear mandate; institutional placement; appointment and removal processes; internal structures; functions; jurisdictions; powers; responsibilities; budget; personnel-related matters; relationships with other institutions; accountability; and reporting lines.
We believe that the Bill before this House addresses all these issues and will ensure that we as a government are able to enhance and build on our existing successes and approaches in the fight against corruption and organised crime.
In the final analysis, the Bill further recognises that anticorruption bodies or structures do not operate in a vacuum. It emphasises a strong need for co-ordination and co-operation with other government departments and specialised areas.
It also recognises that the SAPS has a constitutional mandate to fight crime and that such mandate must include organised economic and transnational crimes, as well as corruption.
The democratic state, through the Constitution, has tasked the police with being responsible for investigating and preventing crime, including organised crime and corruption. The passing of this important piece of legislation is a step forward as we advance our fight against organised crime and corruption - an effort in which every one of us must put a shoulder to the wheel. Thank you. [Applause.]
Mrs L S CHIKUNGA: Hon Speaker, members of the executive, Members of Parliament, and comrades and friends, corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality, and the advancement of human rights and freedoms. Corruption and maladministration are the antithesis of the open, accountable, democratic government required by the Constitution. They are transnational phenomena that cross national borders and affect all societies and economies. They are equally destructive in the public and private sectors, and regional and international co-operation is essential to prevent and control corruption and related crimes.
Today in this House we are tabling a Bill that establishes an adequately independent Directorate for Priority Crime Investigation, DPCI, in line with the Constitutional Court judgment, and moreover in line with our conscientious minds.
As the Minister has said, on 17 March 2011 the Constitutional Court declared Chapter 6A of the South African Police Service Act, Act 68 of 1995, which established the Directorate for Priority Crime Investigation, the DPCI, to be inconsistent with the Constitution of the Republic of South Africa and invalid to the extent that it failed to secure an adequate degree of independence for the DPCI.
As a result of the declaration of the invalidity, as the Minister has said, the Constitutional Court suspended it for a period of 18 months to afford Parliament an opportunity to remedy the defect.
Can I mention here that this judgment was a split judgment? Out of the ten judges who listened to the arguments, four ruled that the chapter was constitutional, one judge abstained and five ruled that the chapter was unconstitutional. We remain bound by and respect the majority judgment.
In ruling on the constitutionality of Chapter 6A, the Constitutional Court asked two questions: firstly, whether the Constitution required the state to establish and maintain an adequately independent body to combat corruption and organised crime; and, secondly, whether or not the DPCI met the requirements of independence.
In answering the first question, the court concluded that the Constitution indeed imposed an obligation on the state to establish and maintain an independent body to combat corruption and organised crime.
In answering the second question, on the independence of the DPCI, the court concluded that the legislation did not meet the requirements of independence on the basis of the following issues: firstly, the DPCI was insufficiently insulated from political influence in its structure and functioning, thereby lacking the necessary structural and operational independence to be an effective corruption-fighting mechanism; secondly, the conditions of service of its members, particularly its head, made it vulnerable to undue political influence, due to a lack of security of tenure of the members of the DPCI; and, thirdly, the Ministerial Committee’s accountability and oversight of the DPCI was found to undermine its independence, “as the Ministerial Committee possessed untrammelled power to determine policy guidelines in respect of functioning of the DPCI, as well as the selection of national priority crimes.”
In fact, the judgment was too critical of the Ministerial Committee powers. It found that Parliament’s oversight function was undermined by the level of involvement of the Ministerial Committee. The judgment further stated that the complaints system involving a retired judge, regarding past incidents, did not afford sufficient protection against future interference.
However, the court was unanimous that Chapter 6A of the South African Police Service Act could not be invalidated on the following bases: that it was irrational; that Parliament had failed to facilitate public involvement in the legislative process that led to its enactment; that section 179 of the Constitution obliged Parliament to locate a specialised corruption-fighting unit within the National Prosecuting Authority; that the creation of a separate corruption-fighting unit within the SAPS was unconstitutional; and that the legislative choice to abolish the Directorate for Special Operations, DSO, and to create the DPCI offended the Constitution. It is important to note that in these matters that I have just mentioned the Constitutional Court found nothing unconstitutional.
The Constitutional Court defined the independent anticorruption body. In this regard, the Court endorsed the definition of the Organisation for Economic Co-operation and Development, which provides that independence means: firstly, that anticorruption bodies should be shielded from undue political interference; secondly, the political will to fight corruption is the key; thirdly, the level of independence can vary according to specific needs and conditions; fourthly, it is the structural and operational independence that is important; fifthly, there is a clear legal basis and mandate for a special body, department or unit, and this is particularly important for law-enforcement bodies; and, lastly, that transparent procedures for the appointment and removal of the director, together with proper human resources management and internal controls, are important elements to prevent undue interference.
On structural and operational independence, the Constitutional Court ruled that what is required for an anticorruption body is not full independence, but an adequate level of structural and operational independence, secured through institutional and legal mechanisms to prevent undue political interference, and appropriate to the nature of such an organisation.
The Constitutional Court further ruled that the public’s perception of independence also plays an important part in evaluating whether an entity is, in fact, independent. In determining the public perception of independence, the Constitutional Court drew up a test, which involves a reasonably informed and reasonable member of the public, who will have confidence in an entity’s autonomy-protecting features, which is important in order to determine the degree of independence. One will not just go to a court and claim that members of the public have no confidence in this directorate. One will have, in the structure and operation, to prove to the court such claims.
The Constitutional Court appreciated the following: that our legal system requires some level of executive involvement in any area of executive functioning - I think this is important; that the international agreement issue requires the Republic to establish an anticorruption agency in accordance with the fundamental principles of the legal system; and that what is required for an anticorruption body is not full independence, but an adequate level of structural and operational autonomy.
What we have just outlined is the core and gist of the Constitutional Court judgment. Allow me to explain to the House the legislative process that unfolded in Parliament, lest we are misled into doubting our own process.
It is normally not necessary to bring to the attention of the House the Bill or legislative processes that have taken place in Parliament. However, it is important to do that in this debate. The South African Police Service Amendment Bill was tabled in Parliament on 23 February 2010 by the Minister of Police.
It was then referred to the portfolio committee on 28 February 2012. On 7 March 2012, the portfolio committee received a briefing on the Bill from the Civilian Secretariat for Police. I must indicate that many civil organisations and legal professionals attended that meeting. The process that was to follow, as per the portfolio committee programme, was outlined by the chairperson in that meeting.
On 9 March 2012 the Bill was advertised in most of our main national newspapers, such as Ilanga, Mail & Guardian, Sunday Times, Business Day, New Age, City Press, Sowetan and Rapport, and written submissions from interested individuals and organisations were invited.
The closing date for written submissions was 27 March 2012. This was well in line with Parliamentary procedures, which call for two weeks plus a weekend for the written submissions. During that time the portfolio committee received just 20 written submissions. We then decided to extend the due date for written submissions to 10 April 2012, in which time only one written submission was received, and this gave a total of 21 written submissions.
Of the 21 written submissions, 12 were substantive and 9 were one-line or very short submissions. Nine organisations were invited to come before the portfolio committee to make oral submissions, as the two other organisations indicated their unavailability. Out of the nine invited organisations, eight came and one did not turn up. We stated, however, that we would accept and consider submissions that came in, up to the time when we adopted the Bill, but nothing more came.
Let me take this opportunity to express my sincere appreciation for the written and oral submissions that all the organisations and individuals made, particularly those of Prof Pierre de Vos, who also provided alternative and constructive proposals for a directorate either outside or inside the South African Police Service, SAPS. We have included most of the proposals in the Bill that we are debating today. Mention must also be made of Prof Mhango of Wits School of Law for his independent and well-thought-through submissions.
We set aside four days for oral submissions but, as indicated above, we received few substantive submissions, so we ended up listening to them over two days, that is on 24 and 25 April. The portfolio committee started with its deliberations on the Bill on 2 May and easily adopted the Bill on 16 May and we are debating it today, 23 May 2012.
Let me mention that this is the fourth Bill that the portfolio committee has processed during this term. It is the only Bill that took almost 12 weeks to process – from the time it was referred to the portfolio committee on 28 February 2012 until the day of debate. The Independent Police Investigative Directorate Bill, the IPID Bill, and the Civilian Secretariat for Police Service Bill both took only five weeks to process. Speaker, we gave ourselves time to be more thorough with this Bill.
By the way, we were warned even before it was drafted that it would again be challenged in the Constitutional Court. In regard to that we say, the sooner it happens, the better for all of us. [Applause.]
I want to thank members of the Portfolio Committee on Police, particularly those from the ANC, Cope, the IFP and the ACDP, who from the beginning of our legislative process were determined to produce a Bill that would stand the test of time. I am omitting the DA this time, because at one stage I thought they were missing a golden opportunity to make a contribution to the Bill we were processing. A little later they woke up to the realisation that we were committed and seriously doing our work on behalf of the approximately 50 million people of this country.
Let me once more remind members that the Constitutional Court ruled that our legal system requires some level of executive involvement in any area of executive function. The judgment further appreciated that the Constitution requires a member of the Cabinet to be responsible for policy-making. The judgment stated that these constitutional duties can coexist and will do so, provided that the anticorruption unit has sufficient attributes to fulfil the functions required of it under the Bill of Rights.
It further stated that adequate independence did not require insulation from political accountability. It said that in the modern polis that would be impossible, and it would be averse to our uniquely South African constitutional structure. Hon members, I quote the statement by the Constitutional Court:
What is required is not total insulation from political accountability, but only insulation from a degree of management by political actors ...
The heads of the Directorate for Priority Crime Investigation, DPCI, will now be referred to as the national head, the deputy national head and the provincial heads of the DPCI. This makes the point that these people are independent.
The Minister, with the concurrence of the Cabinet, shall appoint the head of the DPCI. This time around we have included the criteria which the Minister will have to consider. This is a deputy director-general, position and it has to go to Cabinet.
The Minister, in consultation with the national head of the directorate and with the concurrence of the Cabinet, shall appoint the national deputy head, as well as the provincial heads of the DPCI. In all these cases the Bill sets out appointment criteria that the Minister must consider. All of them will be appointed for a nonrenewable fixed term of not less than seven years and not more than 10 years. The period will be determined at the time of appointment.
Let me state here that an appointment by the Minister of a person to the directorate does not automatically imply that the appointee will not act independently or impartially. The Constitutional Court has previously commented that:
There is a difference between being nominated by the executive to perform a duty which calls for an independent decision and being (appointed) by the executive to perform that duty in accordance with its wishes.
Remember, “adequate independence” does not mean insulation from political accountability but a degree of insulation from management by political actors that may threaten the independent functioning of the entity.
The current head of the DPCI is accountable to the National Commissioner of Police, which the Constitutional Court found to compromise “adequate independence”, particularly because the term of office of the National Commissioner is renewable, which might render him or her vulnerable to political influence. This is according to the Constitutional Court.
We have ensured that the national head of the directorate is accountable to the Minister. Hon Annelizé van Wyk from the ANC will talk about the removal from office of the national head of the DPCI, and we have strengthened the process.
Chairperson, hon members and fellow South Africans, as I conclude let me remind all of us that section 199(7)(b) of the Constitution provides that, and I quote:
Neither the security services, nor any of their members, may, in the performance of their functions –
(b) further, in a partisan manner, any interest of a political party.
We are hereby humbly presenting to this august House and the people of South Africa the South African Police Service Amendment Bill, being confident that it will pass the constitutional muster. We believe that it will be a concrete and effective tool to fight commercial and organised crime and, in the main, to fight the corruption that threatens everything we hold dear and precious in our hard-won constitutional democracy.
Amandla ngawethu! [Power to the people!] I thank you. [Applause.]
Ms D KOHLER-BARNARD: Speaker, as a member of the Police Portfolio Committee, I have found myself asking over the past weeks whether it is enough to achieve something that may at best be described as “adequate”. Is this how the Fourth Democratic Parliament should be written up in our history books, as “adequate”?
When the 130-page Glenister judgment was presented, it was stated that only the Constitutional Court had the jurisdiction to decide whether Parliament had failed to facilitate public involvement in the legislative process. In an attempt to ensure that we did not fall foul of the Constitutional Court on this occasion, the committee conducted public hearings, and then, with 21 submissions, 12 of them substantive, and all but one calling for the unit to be removed from the SA Police Service, the committee proceeded to ignore them!
One must ask why. The answer lies in the fact that the officials, who, some claim, actually run Parliament rather than the hon members, took it upon themselves not only to take a full year to put together what was at first glance a deeply flawed Bill, but also not to give the committee options – a proposal to place it under the National Prosecuting Authority, or another perhaps creating a unit with its own budget, such as IPID. No, it seems the officials decided to give us just one option, which we were then instructed to work with, and which tinkered with the Hawks in an attempt to comply with the Constitutional Court ruling.
Speaker, tinkering with the wheels of a car that has no engine is a futile exercise. It will not put this Fourth Democratic Parliament on the road into the history books as having achieved something extraordinary. And we did have that opportunity, but it was an opportunity missed.
That conglomeration of SAPS units which the Ministry decided to name the Hawks, as though it was everyman’s answer to the Scorpions, certainly does good work on priority crime. However, here’s the rub – when it comes to looking at corruption in high places its role has to date been extremely limited. The reasons for this are legion but, to sum it up, it is a body within the SAPS – its members are part of a ranked structure where juniors take and obey orders from their superiors, and their superiors are politicians!
When the Bills shutting down the Scorpions were compiled, we were offered four options, and they were actually taken to the ANC caucus for a vote by members who had never spent a single second in the deliberations or on the Police portfolio committee. Every attempt at creating a unit that was not the Scorpions, but that still had a modicum of independence, was thrown out and so it was left to the SAPS to try to sell the Hawks as a body that the South African public believed were independent. They failed at that job miserably.
As a country, we did have an independent unit, but because it stung various top politicians, some of them in this House today, they went from hero to zero in the ANC’s eyes. As a nation the Scorpions made us proud of their conviction record of 94%, and their mere presence assured us that the good guys were doing a great job. The unit became the bar other nations sought to reach.
Today we stand on the brink of handing the NCOP a Bill that the banks of advocates and law professors told us should have been worded differently. But once the Police Portfolio Committee completed the tick-box exercise of public hearings, the committee moved on as though it had never happened.
Do we have a body which is sufficiently independent to tackle the challenges of systemic and endemic corruption eating away at the very foundation of our democracy? I don’t think so! Hugh Glenister, who won this case in the Constitutional Court, doesn’t think so. But of course, what we think doesn’t really matter! It’s not the DA or Hugh Glenister who has to be convinced – it’s the Judges of the Constitutional Court who must be satisfied.
We have until 17 September to pass this Bill, which will address Parliament’s failure to secure an adequate degree of independence for the Hawks in the existing legislation.
We began processing this Bill in March, and hours were spent poring over legislation by members of civil society, academia and, indeed, the official opposition. Our stating that sufficient independence was unattainable within the SAPS hierarchy fell on deaf ears. I hear the laughter – it is still going on! The Institute for Security Studies, the Institute for Accountability in Southern Africa, and the Helen Suzman Foundation, to name just three, all said, “Take it out of the SAPS!”
The Constitutional Court judgment stated:
To create an anti-corruption unit that is not adequately independent would not constitute a reasonable step.
The court approved the criteria applicable for the creation of a best practice anticorruption unit of the kind South Africa has promised its treaty partners around the world. It would be a unit that would: pay specialised attention to corruption; have properly focused training; be independent from political interference, influence and manipulation; have resourcing that is guaranteed; and have security of tenure of staff.
In the committee’s attempts to force a square peg into a round hole, I fear there were members who focused on the Polokwane resolution of 2007, on which Luthuli House has to report back at the upcoming conference in Mangaung. The resolution then was that the powers of the Scorpions would be tucked safely back into the SAPS, where political control over the unit could be maintained. And, indeed, what we saw was a single-minded determination to ensure that this Bill spoke to the initial move after the scrapping of the Scorpions, and this Bill today does just that, irrespective of the ruling of the court, and irrespective of what will be of greatest benefit to the citizens of South Africa. Never once was that even referred to by those determined to make the square peg fit.
The DA was obviously not expecting to see, for example, the degree of independence enjoyed by the judiciary or the National Prosecuting Authority. Less could be adequate, if we were not a country where corruption was endemic, and if indeed we were a country where there was zero tolerance for corruption. We are not! Adequate independence must be adequate to the realities of the day, and today we are not! If we were, adequate independence might be set at a relatively lower standard than that which is required to arm the state sufficiently to see off any major challenges posed by corruption. It is a relative concept and the judgment states:
There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order.
The SAPS itself was labelled as a dysfunctional part of our dysfunctional criminal justice administration by the hon Adv Johnny de Lange who, of course, paid a huge political price for telling that particular truth.
How else could we describe an entity that boasts a former police chief languishing in prison – of course, not in a cell – serving 15 years for corruption? His successor was suspended pending the findings of a board of inquiry, and his acting substitute is under investigation by the Public Protector. A Crime Intelligence boss, Richard Mdluli, has the civil society advocacy body, Freedom Under Law, seeking to interdict him from carrying out his duties, because the Minister failed to do the right thing.
That weak, weak decision to shift Mdluli rather than suspend him may well speak to the fact that the Minister of Police himself is apparently under investigation for alleged misappropriation of secret slush funds for the purpose of building a wall around his holiday home, irregular use of a motor vehicle belonging to the state, and nepotism. This House knows that the President himself has 783 unresolved counts of corruption against him, charges which could be revived if the decision not to proceed on them is successfully reviewed in the courts at the insistence of the DA.
All of this speaks to the fact that an effective anticorruption unit ought to be located as far away from the SAPS and the executive as possible. Anticorruption units elsewhere report to Parliament, and not to the executive.
What is before us here today is a Bill that establishes an entity within the SAPS that flouts SAPS regulations, and allows a junior to supersede a superior officer, who on the other hand in the Constitution controls the SAPS in its entirety. What has been created is necessary to speak to the judgement, but what has been created is also actually a convoluted constitutional conundrum. Nowhere is there a clause in the Constitution which reads that the national commissioner controls all of the SAPS except for the doings of the Hawks.
The Hawks are not a specialised anticorruption unit; the unit also deals with the prevention, investigation and combating of national priority offences, in particular serious organised and transnational crime, and serious commercial crime. The efforts to make it seem independent of political interference have been legion, but one of the most important calls of the judgment was simply pushed aside. From paragraph 207 of the judgment regarding public perception:
... the appearance or perception of independence plays an important role in evaluating whether independence in fact exists.
Will the public have confidence in a unit where the head is merely appointed by the Minister, with no involvement of Parliament, and where his or her rank is subordinate to that of the national commissioner?
As the ruling says, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. It is hard to imagine that the Bill before us today for its Second Reading convincingly allays public fears and concerns of political interference in the work of the Hawks, especially given the fact that the public submissions were simply bulldozed through and largely ignored.
A month and a half of fiddling and tinkering with the Hawks is unlikely to persuade the public that Parliament has adequately protected the Hawks from fiddling and tinkering by corrupt politicians in high places and in the halls of government. Are we once again going to be told that we are offending the constitutional obligation on Parliament to create an independent anticorruption entity, which is intrinsic to the Constitution itself and which Parliament assumed when it approved the relevant international instruments, including the United Nations convention? The judgment stated that the now defunct Scorpions were independent – the Hawks are not! The Hawks are not the Scorpions, and little effort has been made to replicate what was independent.
In conclusion, the Bill before the House today does not adequately deal with at least three of the key concerns consistently raised by the DA.
Financial independence is a prerequisite for independent anticorruption efforts. The national commissioner remains the accounting officer for the Hawks budget and the money allocated to it forms part of the Budget Vote for the Police. The Hawks, like the Independent Police Investigative Directorate, should have a separate Budget Vote and they require greater financial independence to ensure that they will not face spurious budget cuts or resource constraints when zooming in on corrupt officials and politicians.
The Hawks and their members remain in the Department of Police, with all the powers, duties and functions of police officers. While it is necessary for the Hawks to have these powers and functions, it is unacceptable that their members operate within the rank and file of the SAPS, where independence is undermined by a culture of taking orders from superiors without question.
The appointment process for the Head of the Hawks is still the overall responsibility of the Minister of Police, with the concurrence of Cabinet. The DA put five recommendations to the committee to involve Parliament, but the committee disagreed. The committee failed to secure a positive role for Parliament as custodian of the democratic voice and concerns of the people of South Africa in the appointment of the head of this corruption buster.
The haste with which this Bill was introduced, deliberated on and finalised is of great concern. It is apparent that there was a predetermined outcome and the bare minimum was done on the Bill in its short time before the committee. It is unfortunate that Parliament was not given adequate time to consider a menu of options in order to create a truly confidence-inspiring corruption buster for our country. Speaker, the DA maintains that so much more could and should have been done. Parliament missed a “golden opportunity” to assert itself as legislative authority.
South Africans deserve an independent, effective and highly specialised, prosecution-driven anticorruption unit to combat the scourge of corruption that undermines the goals of increasing growth, creating jobs and fighting poverty. The Hawks, as created by this Bill, are very unlikely to be that independent, effective and highly specialised anticorruption unit which will courageously combat the scourge of corruption. The police who fall under that umbrella body will try, but at this stage, with the Bill in its current form, I doubt very much that the judges of the Constitutional Court will even allow them to. [Applause.]
Mr L RAMATLAKANE: Thank you, hon Speaker. Deputy President, Ministers and hon members, let me state at the outset that Cope, having engaged with the Bill over a period of days and weeks, and having evaluated the work on the basis of the Constitutional Court judgment that we had before us, will support the Bill. [Applause.]
I need to state that in our consideration of this Bill we, as committee members coming from opposite poles, engaged robustly on it. The end result was that we agreed that we had done our best under the circumstances, and it was, of course, the right of the Constitutional Court to assess the Bill in its current form to determine whether we had done enough or not.
We based our engagement on the four pillars that were instructions in the judgment. The first one was security of tenure. Having engaged with the issue of security of tenure in the committee, we were satisfied with the powers for the national Directorate for Priority Crime Investigation, DPCI, to do the implementation and the appointment of staff, including the fixed term of seven to ten years.
We went further and said that all the staff that were in this component were the responsibility of the national director. In fact, the second pillar we discussed was the issue of subordination, which is part of the judgment. On that score we agreed that, having engaged robustly as a committee, we had to find a middle road in order to make sure that the director was not subordinate to the national commissioner. The post was called “deputy national commissioner” and we agreed that we needed to change the name of the position. It had to be independent, and it had to be the national head of the Directorate for Priority Crime Investigation, the head of the DPCI. It would basically be the equivalent of the national commissioner. We did not engage in regard to the remuneration, the salary, at this stage.
The third issue was the finances. We engaged on this, weighing up whether we wanted to support the Bill, and looking at the judgment. I need to say that if you look at section 214 in the judgment, you will see it speaks to the issue of co-existence provided that there is adequate independence. We engaged in regard to resources in the light of the judgment, and we agreed as a committee in our engagement that the budget of the directorate was the responsibility of the national director, from its drafting to preparing it for submission by the national commissioner. There is no veto right. There is no veto right in that respect, in regard to independence.
The last issue was the location. We also weighed this up in our engagement on the location. Where should the directorate be located? We looked at the judgment. The judgment makes the instructive comment that it is not their responsibility to say where it should be located. In fact, it goes on to say that whether it is in the police or in the National Prosecuting Authority, as was the case with the Directorate of Special Operations, DSO, in terms of justice its placing is not necessarily illegal.
Having considered all that was presented in the judgment, we then felt that the work we were doing was to correct what had happened. What had happened in the abolishment of the Scorpions was that it had been a rushed process, it had been incorrect and it had had loopholes in it. Let us state that as a fact. We also agreed that we had done the best we could in this regard, although it might not be one hundred per cent of what we wanted to achieve.
We agreed that the Constitutional Court was the final arbiter on the Bill. We should submit it to the Constitutional Court for it to have its say. If we needed to correct something, we would have to correct that. However, having received a legal opinion from Parliament, we were convinced that the legal opinion gave us a direction that we needed to take.
Therefore, I declare that we support the Bill. We say that while it should be put to the test of the Constitutional Court, we have done our work! [Applause.]
Mr V B NDLOVU: Thank you, Deputy Speaker. Hon members, Deputy President and hon Minister, there are three very important points that I want to raise here. The first one is accountability. The Head of the Directorate for Priority Crime Investigation will now report directly to the Minister, not through the national commissioner, as was happening before.
The budget will be prepared and submitted to the national commissioner for the national commissioner to submit to Treasury as is. The national commissioner will not have the power to change or make variations to the DPCI budget. We are creating a synergy between the national commissioner and the head of the DPCI.
The head of the DPCI will accompany the national commissioner to assist in presenting the service budget or estimate to Treasury, in order for the head to account for the monies that will be allocated to the DPCI. We in the Portfolio Committee on Police acknowledge that section 217(1) and (2) of the Constitution of South Africa give the national commissioner the powers to manage and control the police. We know that. However, that is why we put the head in tandem or in synergy with the national head of the DPCI.
On security of tenure, the head of the DPCI will control the structure for its employees and manage them under the policy that has been laid down by him or her under the guidance of the Minister. The secure period of employment, from seven to ten years, allows for the management, control and direction of the DPCI. Discipline will be controlled within the DPCI, without the interference of the national commissioner. Consultation will take place with the national commissioner whenever there is a need to do so.
On judicial oversight, the national Civilian Secretariat for Police will now be able to know and prepare the budget of the judge in its wing. This is to ensure that nothing interferes with the independence of inquiries that will be conducted by such a judge.
Lastly, on the ministerial committee, the powers and functions of this committee have been curtailed and limited. It now only has to report to Parliament on their function and unblock the obstacles within the department whenever they occur. They have no power to direct the DPCI on how to do its work and no power to influence cases anymore.
This means that the amending legislation before the hon House has been overhauled and is different from what was presented to the Portfolio Committee on Police. The portfolio committee has attempted to satisfy the objections of the Constitutional Court. If the Constitutional Court disagrees with us as a committee, or with Parliament, it should be very specific on what points it disagrees with us. The IFP supports the South African Police Service Amendment Bill. [Applause.]
Mr P J GROENEWALD: Hon Deputy Speaker, I want to say to the hon Chikunga ... [Interjections.] ... that when the Scorpions unit was scrapped, the speakers from the ANC were just as sure then as she is today in saying that the scrapping of the Scorpions was constitutional, when in reality it was a different story.
I want to quote from the response of the hon President, Jacob Zuma, on 16 February this year to the debate on the state of the nation address. He said:
But, the fight against crime and corruption continues. We will not become complacent.
I want to say that with this Bill the ANC has become complacent. [Interjections.] In accepting this Bill you are only paying lip service to the people of South Africa when it comes to corruption.
Hoekom sê ek dat hierdie wetsontwerp net lippediens aan die publiek van Suid-Afrika is, as dit oor korrupsie gaan? Die rede is dat die ANC ’n gulde geleentheid gehad het om ’n struktuur daar te vestig wat totaal onafhanklik die beste praktyk kon beoefen het om korrupsie in Suid-Afrika te beveg – spesifiek ook korrupsie soos dit in die SA Polisiediens voorkom.
As u met iets totaal buite die SA Polisiediens gekom het, dan sou die regering van die dag vertroue by die publiek van Suid-Afrika geskep het. Dit sou dan vir die publiek van Suid-Afrika gesê het dat ons ernstig is om korrupsie te beveg. [Tussenwerpsels.] (Translation of Afrikaans paragraphs follows.)
[Why do I say this Bill only pays lip service to the South African public, when it is about corruption? The reason is that the ANC had a golden opportunity to establish a structure that could, with total independence, exercise the best practices to fight corruption in South Africa – specifically also such corruption as occurs in the SA Police Service.
If you had come up with something that was completely separate from the SA Police Service, then the present government would have created trust among the South African public. It would have indicated to the South African public that we are serious about fighting corruption. [Interjections.]]
However, the ANC has become complacent and that is the problem.
Die tyd aspek wat hier ter sprake is, is ’n bewys daarvan. Daar was amper ’n jaar gewag voordat die wetsontwerp by die Parlement ingedien is. In terme van openbare verhore, was alles gejaagd. Dit was so erg dat hierdie komitee selfs gesit het terwyl belangrike begrotingsdebatte aan die gang was. Dit is eintlik minagtend teenoor die begrotingsdebatte, want ek dink dat een van die belangrikste take van ’n parlementslid is om by begrotingsdebatte teenwoordig te wees, want dit gaan oor belastingbetalers se geld. Daar is ander komitees wat aangaan, maar u het dit net deur gestoomroller. (Translation of Afrikaans paragraph follows.)
[The time aspect that is under discussion is proof of this. Nearly a year passed before the Bill was submitted to Parliament. In terms of public hearings, everything was rushed. It was so bad that this committee was meeting while important Budget debates were taking place. It is in effect disregard of Budget debates, because I think that one of the most important duties of Members of Parliament is to be present at Budget debates, because it concerns taxpayers’ money. There are other committees that proceed, but you just steamrollered it through.]
Saying to the people that we went through all the drills and procedures was only window-dressing. [Interjections.]
Ons sal moet wag om te sien – as u so seker is dat u aan die grondwetlike vereistes voldoen – of dit hierdie keer weer die geval gaan wees. Die VF Plus sal nie hierdie wetsontwerp ondersteun nie. Ek dank u. [Tussenwerpsels.] (Translation of Afrikaans paragraph follows.)
[We will have to wait and see – if you are so sure that you meet the constitutional requirements – whether it will once again be the case this time around. The FF Plus will not support this Bill. I thank you. [Interjections.]]
Mr S N SWART: Deputy Speaker and hon Minister, the ACDP, together with other political parties, vigorously opposed the disbanding of the Scorpions, believing that it was a highly successful anticorruption unit, and that it was being disbanded because it had successfully prosecuted high-profile members of the majority party. It was their success that ultimately led to their demise.
We also opposed the South African Police Service Amendment Bill that replaced the Scorpions with the Hawks. Subsequently we learnt that the Constitutional Court, in a 5 to 4 split decision, found that the Hawks were not sufficiently independent, and were vulnerable to political interference, and we as Parliament were required to amend the Act.
Let us be reminded of what the court said about the need and rationale for combating corruption. The court said:
When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.
We agree wholeheartedly with these sentiments. Systemic poverty will not be eradicated without eradicating systemic corruption. Hence the need for an independent unit.
Much debate surrounded the location of this unit. The ACDP would have preferred that the unit be located outside the SAPS. However, as pointed out by the Constitutional Court, the Constitution does not require the creation of a specialised crime unit outside the SAPS, or for that matter, within the National Prosecuting Authority, NPA, as desirable as this may be. The head of the Hawks, Lieutenant General Dramat, significantly indicated that the unit should remain within the SAPS.
The committee made substantial and far-reaching amendments to the South African Police Service Act. It is noteworthy, for example, that the executive can no longer dismiss the head of the unit. This can only be done by a majority vote in Parliament, and that only after an enquiry has determined that his dismissal is warranted. The unit’s head also has a veto right over the unit’s budget, prepared in consultation, while the Hawks and not the National Police Commissioner will present the unit’s budget and annual report to Parliament.
The crucial question is whether these amendments form a sufficiently protective layer of independence for the Hawks as an effective anticorruption entity. We in the ACDP say that this goes a long way toward that.
Let us be reminded that the court’s decision was a majority judgment of 5 judges, and that 4 judges held a different view. They held that the Hawks were sufficiently protected under the pre-amended Act. The minority judgment, led by the then Chief Justice Ngcobo, held that:
The inclusion of each branch of government ... serves as an important safeguard against encroachment by any single branch into the independent operation of the DPCI.
The minority judgment said that these were adequate checks and balances to ensure the independence of the DPCI. The question is, when it goes back to the courts, will they find that the present view is constitutional, or not?
We in the ACDP believe that these substantial amendments go a long way, and that they may well pass constitutional muster, given the view that there were four minority judges that found that the previous version was constitutional. Notwithstanding the fact that we would have preferred to see the unit located elsewhere, the ACDP will support this Bill. I thank you. [Applause.]
Ms A VAN WYK: Hon Deputy Speaker, hon Deputy President, hon Minister, and members of the House, section 199(1) of the Constitution states that, and I quote:
The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
Section 199(4) states that, and I quote again:
The security services must be structured and regulated by national legislation.
Section 199(6) states that, and I quote yet again:
No member of any security service may obey a manifestly illegal order.
Section 199(7) states that, and I quote further:
Neither the security services, nor any of their members, may, in the performance of their functions –
- prejudice a political party interest that is legitimate in terms of the Constitution; or
- further, in a partisan manner, any interest of a political party.
The above speaks to the independence and impartiality that we require from our security services, including the police. Section 205(3) states that, and I quote:
The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
Hon members, you may well ask why I am starting with these extracts from our Constitution. Hon Deputy Speaker and hon members, the reason is that throughout the process of the consideration of this Bill we were subjected to some of the crudest interpretations of our Constitution, as we have seen repeated here in the debate today. I therefore thought that it would be a good point of departure for this debate to remind ourselves of what it is that the Constitution requires from a democratic police service in a democratic South Africa.
If we accept the Constitution as the supreme the law of a democratic South Africa, and this side of the House certainly does, then I think we can all agree that the Constitution places the primary obligation to fight all forms of crime, including that of corruption, at the door of the SA Police Service, SAPS. So, while we address the issues raised by the Constitutional Court, we have as legislators the added responsibility to draft legislation that will provide for the best possible directorate within the SAPS to fight corruption, priority crimes and organised crimes. Hon Deputy Speaker, that is exactly what we, from the side of the ANC, have committed ourselves to doing.
Today false allegations were made by members from certain quarters that the ANC had arrived with preconceived ideas and had therefore not considered submissions made during the public participation process. Nothing can be further from the truth! I do not know how one can argue that at least 53 substantial amendments to the introduced Bill is not applying your mind!
At night, when the committee had finished the public participation hearings or deliberations on the Bill, the ANC study group remained behind. We then summarised and debated amongst ourselves the issues that had been raised, and started working on possible ways of addressing the concerns through introducing amendments to the Bill. That is why, on the first day that the committee started to deliberate on the Bill, the ANC was already in a position to propose amendment after amendment after amendment. Following further debate with some political parties on the committee, we amended some of our own proposed amendments in order to find common ground and agreement!
Now I don’t know about you, hon Deputy Speaker, hon Minister and members of the House, but I humbly submit that to any reasonable citizen there can be no other perception than that a serious consideration of the public submissions took place, and that serious deliberations thereon by the ANC and, indeed, most parties represented on the committee took place. If some parties, through their lack of participation, their preoccupation with other topical issues of the day, and their prefixed and predetermined mind-set and agenda, have neutralised themselves in the process, then they surely cannot blame those that took the task at hand seriously and took it forward.
The chairperson spoke about the appointments of the heads, and I am not going to repeat that. We took to heart the concerns that were raised in the public participation process regarding the lack of criteria in the Bill on the type of head that we would like to see appointed. We have included such criteria.
We went further. We said, and that is where Parliament’s participation in the appointment process comes in, that as part of the regulations the Minister must bring to Parliament for its concurrence the regulations on the process of appointment – concurrence, not notification. So Parliament and the Minister would have to agree on the “how” of the appointment process. If at any point this Minister or any future Minister wanted to change that process, they would have to come back to Parliament with the amended process and Parliament would again have to concur with the proposed amendments.
That brings us to the removal of the head of the directorate. Clause 17DA of the Bill determines that the national head of the directorate can only be suspended from office pending an inquiry into his or her fitness – on the grounds of misconduct, continued ill health, incapacity to carry out the duties of office efficiently, or no longer being a fit or proper person to hold office.
The decision to remove the head must be communicated to Parliament. The Minister, after consultation with the Minister of Justice and Constitutional Development and the Chief Justice, must appoint a judge or retired judge to lead the inquiry. The national head shall be informed of any allegations and shall be allowed to make submissions to the inquiry. This was not in the Bill before.
Furthermore, the Bill now also makes provision for the National Assembly to remove the national head of the directorate. The same criteria as for the removal of the national head by the Minister apply. One may well ask why it was necessary to include a provision for the National Assembly to remove the national head. This was done to further enhance independence and to protect the directorate against interference.
Parliament may feel that the head is not doing a proper job and when a Minister is not acting against such a person, Parliament, through the National Assembly, can then start a process of removal. The National Assembly will establish a committee to look into the matter. The report of such a committee will be tabled in Parliament and, with two-thirds support by members of the National Assembly, the head of the directorate will then be removed.
The security of tenure of the staff was addressed, and through that we also further strengthened the structural independence of the directorate. It will be the national head that will determine the fixed establishment and the grading of posts in the directorate. It is also the national head that will appoint the staff of the directorate. The national head of the directorate must develop a recruitment policy for the directorate. Any disciplinary matters that involve any member of the directorate must be done within the confines of the directorate.
No member of the directorate may be transferred or dismissed from the directorate without the consent of the national head of the directorate. The national head, deputy national head and provincial heads are not allowed to get involved in any management activities of the SAPS other than those associated with the directorate. The staff of the directorate cannot be deployed in national joint operations unless the head determines that such operations will be of assistance to the directorate in the execution of its functions and mandate.
Clause 17D of the amending Bill determines that the Minister must table policy guidelines for approval by Parliament. This was such a big issue. The determination of policy is the prerogative of the executive. The execution of those policies is the responsibility of a department. That is democracy, and that is the democratic dispensation that we are in. For enhanced transparency, these guidelines will be brought to Parliament for approval. We will not just take note of them but will actually have to apply our minds to the matter.
For some, as we heard earlier, the reference to “selected offences” in Chapter 2 and in section 34 of the Prevention and Combating of Corrupt Activities Act, Act 12 of 2004, is an issue. It simply lists a whole lot of offences, some of which are cases of fraud and corruption that can and should be investigated by ordinary detectives. The Directorate for Priority Crime Investigation will deal with the top slice of crimes committed.
The head will determine which crimes are to be investigated, guided by the policy guidelines. The Bill makes provision that when there is a difference of opinion between the national head and the national commissioner or a provincial commissioner on whether a case falls within the mandate and scope of the directorate, the position of the national head of the directorate will prevail.
All members of the directorate will be expected to undergo security clearance. Members of the directorate are expected to do their work impartially and independently. Members will be expected to take an oath, in which they undertake to conduct their work in accordance with the Constitution – which underlines their independence – and the law.
It will also be a criminal offence for any person to interfere with the work of the directorate, including anyone from the South African Police Service, SAPS. Such a person is liable, upon conviction, to a fine or imprisonment for a period not exceeding two years.
The head of the directorate will now directly request secondments from other departments, and this will no longer occur through the national commissioner, thus enhancing its structural and organisational independence, Mr Groenewald.
Furthermore, the Bill obliges the head of Crime Intelligence to make available to the directorate dedicated intelligence capacity for a specific case. The directorate will thus not be allowed to form its own intelligence capacity, but will receive intelligence support from the existing intelligent structures within the SAPS.
The role of the ministerial committee is now simply to co-ordinate the relevant government departments. They will meet as often as is required, and are no longer obliged to meet at least four times a year. The ministerial committee is expected to report to Parliament on its activities as part of the annual report of the directorate. If they have not met during a particular year, they will simply report that they did not meet, as there was no need. The ministerial committee will also have to report to Parliament upon request. This brings oversight over the executive, as determined in the Constitution and as required by the Constitutional Court’s ruling, into the Bill.
The co-ordinating committee will now be chaired by the national head of the directorate and the deputy head will be the deputy chairperson. It was previously chaired by the national commissioner. The national commissioner will no longer sit on this committee. The committee will review, monitor and facilitate the support of the respective government departments or institutions to the director. It will also look at secondments and address problems that might arise regarding such support and assistance.
One of the most contentious issues during deliberations was the financial independence or dependence of the directorate. In the end, the committee decided to provide for dedicated and exclusive funds for the directorate, the so-called ring-fenced funds.
The head of the directorate shall prepare and provide the national commissioner with the budget from the directorate. The national commissioner shall then include it in the SAPS budget. Clause 17H(3) determines that if there is a dispute between the national head and national commissioner regarding the budget, the Minister will mediate.
The Bill further makes provision that the national head must be part of all deliberations on the directorate’s budget, including National Treasury. The national head will thus put his or her own case in negotiations for budget allocations. The national head will also make his or her own submissions to Parliament during the budget process. The annual report to Parliament must include, as a distinct programme, the report on the performance of the directorate.
All monies appropriated by Parliament for the directorate must be seen as specifically and exclusively appropriated for that purpose, or what is popularly referred to as a “ring-fenced budget”. They cannot be used for any other purpose. The head will control the funds of the directorate; this, we believe, is adequate financial independence.
A separate budget would have meant that the directorate staff would have had to be increased by at least a further 1 900 people dedicated to administration only, thereby shifting the focus from their primary task.
Provisions regarding the appointment of a retired judge to deal with complaints by the directorate or its members, and also by members of the public, have been improved. The judges’ operational budget will now reside with the Civilian Secretariat for Police and will also be a ring-fenced budget. The secretary, in consultation with the retired judge, shall develop an awareness programme regarding the work of the judge amongst the public and members of the directorate, including the role and functions of the complaint mechanism.
Refusal to assist the retired judge with his work, or interference with the work of the judge, is a criminal offence, punishable by a fine or imprisonment or both. It is interesting to note that the judge, in the period since enactment, has received only three complaints. Now, you have some who complain about that, instead of celebrating the low number of complaints, which speaks to the fact that the directorate has been able to do its work without interference or hindrance.
Hon Deputy Speaker, Minister, Deputy President and members, two issues were quite significant in the debate on where this directorate should be placed.
One was the decision to selectively ignore what was happening internationally and the findings of the United Nations Convention against Corruption, UNCAC, and the Organisation for Economic Co-operation and Development, OECD. The majority of signatories to the UNCAC have based their anticorruption units within existing law enforcement agencies. International bodies warn against creating new bodies that will become bureaucratic in nature, and get bogged down by administration, thereby diverting limited resources. They point to a strong link between organised crime and corruption, hon Kohler-Barnard, and warn against overburdening corruption bodies, saying that they should not investigate cases of petty corruption. Therefore, best practice in anticorruption bodies is that they should investigate selective rather than all offences. I would argue that these were ignored because it did not support a certain agenda.
The second issue was the argument for the establishment of a Chapter 9 institution. Here we were told to adhere to a Constitutional Court judgment by changing the Constitution! It boggles the mind. I think it is also important to remind ourselves that a Chapter 9 institution does not in itself guarantee success. It is often dependent on the incumbent.
Hon Speaker, we in the ANC believe that we have not only adhered to the Constitutional Court ruling, but that we have established the best possible directorate with adequate independence, which will be able to fulfil its mandate without fear or favour, with determination and commitment, and in the service of our country and its people.
I must react to what the hon Groenewald said. I would like to ask the hon Groenewald whether he actually read the Bill that is before the House, because I am pretty sure he did not! From his speech you could hear that he had not done so. Hon Groenewald, we made at least 53 substantial changes to the introduced Bill, which is apart from word changes here and there. [Interjections.] That is the principle. You were not there, you did not participate, and you missed an opportunity. As you said, you missed an opportunity.
Then, to the hon Kohler-Barnard, may I explain to you the process of a Bill? I know that you are not in government. [Interjections.] The fact of the matter is that no Bill ever has more than one option. Options come in discussion papers – that is where options come in. Government makes policy. Even when you get to the point of a Green Paper, there are no longer options, hon Kohler-Barnard. So, I don’t know where you get these “options” in a Bill from. Options were considered during the period when you complained that it took so long before the Bill was introduced. That was when they were looking at the options! That was when they were discussing them with the Treasury and the Department of Public Service and Administration. That was when the options came into play. [Interjections.]
Mr P J GROENEWALD: Agb Adjunkspeaker ... [Hon Deputy Speaker ...]
Ms A VAN WYK: I am not going to take a question! So you can sit down. It’s fine.
Mr P J GROENEWALD: Hoe weet die agb lid ek wil dit doen? Wys bietjie jy het durf, man. [How does the hon member know I want to do that? Show us that you have guts.] [Interjections.]
Ms A VAN WYK: I am not going to take a question! You are wasting my time. The problem is, as Abraham Miller said:
Ten gods cannot change the opinion of one fool, especially if another fool agrees with him.
[Laughter.] [Applause.]
Firstly, on the issue of public perception, public perception will be determined by the success of the Hawks. May I also state to the hon Kohler-Barnard that it was not the Minister who named the unit the Hawks; it was business that named them the Hawks.
Secondly, public perceptions of independence will also best be determined by the success of the directorate – let their deeds speak for themselves. Therein lies the responsibility to improve their communications regarding their successes.
Let me quote Sophocles in Antigone:
The kind of man (or woman) who always thinks that he (or she) is right, that his (or her) opinions, his (or her) pronouncements, are the final word, when once exposed shows nothing there. But a wise man (or woman) has much to learn without a loss of dignity.
[Interjections.] Your opinion is your opinion! [Interjections.] Your perception is your perception! [Interjections.] Do not confuse them with facts or truth. [Interjections.] Wars have been fought and millions of people have lost their lives because of the inability of men and women to understand the idea that everybody has different viewpoints.
The last point that I want to raise is the fact that it is interesting that nobody raised the fact that in the Constitutional Court judgment a point was raised. In the minority judgment, which the majority judgment referred to as the main judgment, a point was raised where the minority judgment stated, “Luckily we were never asked to rule on the constitutionality of the Scorpions.” The ANC will support this Bill. [Applause.]
The MINISTER OF POLICE: Hon Deputy Speaker, let me thank members of the Portfolio Committee on Police. In fact, most of them are saying one and the same thing.
What the member from Cope, hon Ramatlakane, expressed here was that the committee did its best to ensure that we met the requirements of the Constitutional Court. He further spoke of the four pillars that they followed up.
The chairperson from the ANC and the hon Van Wyk expressed similar sentiments.
We listened attentively to the member of the IFP, hon Ndlovu, when he specifically went into detail about the security of tenure, accountability, judicial oversight and the ministerial committee.
To hon Swart from the ACDP, your expression of the fact that what you have done in regard to the Bill over the past weeks goes a long way is noted. I think that one could tell that from what the people who participated were saying.
Hon Groenewald, I think that you can still change your mind. The issue you raised was about the Act itself and the guarantee of passing the constitutional muster. May I remind you that there was a provision for a three-year review, because we had no crystal ball to know how this new entity was going to work.
Hon Kohler-Barnard, I really think that they gave you the wrong speech, unless you wrote it. I say this because, instead of arguing here in regard to what the ConCourt said, you were telling us about Luthuli House and Polokwane, and you were talking about Mangaung! But you can’t even pronounce the word “Mangaung”. [Laughter.] I really plead with the leadership of the ANC to afford her guest status at the ANC national conference, because I think she likes it. Thank you very much. [Applause.]
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided:
AYES - 220: Abram, S; Adams, P E; Ainslie, A R; Balindlela, Z B N; Bhanga, B M; Bhengu, F; Bhengu, P; Bonhomme, T; Borman, G M; Boshigo, D F; Bothman, S G; Burgess, C V; Buthelezi, M G; Carrim, Y l; Cebekhulu, R S; Cele, M A; Chikunga, L S; Chohan, F I; Coleman, E M; Cwele, S C; Dambuza, B N; Daniels, P N; Davies, R H; De Lange, J H; Diale, L N; Diemu, B C; Dikgacwi, M M; Ditshetelo, I C; Dlakude, D E; Dlulane, B N; Dubazana, Z S; Dube, M C; Dudley, C; Dunjwa, M L; Ebrahim, E I; Fihla, N B; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcume, N P; Gcwabaza, N E; Gelderblom, J P; Gina, N; Gololo, C L; Goqwana, M B; Gumede, D M; Hanekom, D A; Hlengwa, M; Holomisa, S P; Huang, C; Huang, S - B; Jacobus, L; Jeffery, J H; Johnson, M; Kekane, C D; Kenye, T E; Kganare, D A; Khoarai, L P; Khumalo, F E; Koornhof, G W; Koornhof, N J J v R; Kota-Fredericks, Z A; Kotsi, C M P; Kubayi, M T; Landers, L T; Lekgetho, G; Lekota, M G P; Lesoma, R M M; Line, H; Lishivha, T E; Lucas, E J; Luyenge, Z; Maake, J J; Mabasa, X; Mabedla, N R; Mabuza, M C; Mackenzie, G P D; Madlala, N M; Madlopha, C Q; Magagula, V V; Magau, K R; Magubane, E; Magwanishe, G; Makasi, X C; Makhuba, H N; Makhubele, Z S; Malgas, H H; Maluleka, H P; Maluleke, J M; Manamela, K B; Manana, M C; Manganye, J; Mangena, M S; Martins, B A D; Mashigo, R M; Mashishi, A C; Masutha, T M; Mathebe, P M; Mathebe, D H; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Maunye, M M; Mavunda, D W; Mayatula, S M; Maziya, M; Mbhele, P D; McIntosh, G B D; Mdaka, M N; Mdakane, M R; Mfundisi, I S; Mjobo, L N; Mkhize, H B; Mlambo, E M; Mlangeni, A; Mmusi, S G; Mncwango, M A; Mnisi, N A; Mocumi, P A; Mohale, M C; Mohorosi, M; Mokoena, A D; Molebatsi, M A; Molewa, B E E; Moloi-Moropa, J C; Moloto, K A; Morutoa, M R; Mosimane, C K K; Moss, L N; Motlanthe, K P; Motsepe, R M; Motshekga, M S; Motshekga, M A; Mpontshane, A M; Msimang, C T; Msweli, H S; Mthethwa, E M; Mthethwa, E N; Mufamadi, T A; Mushwana, F F; N'wamitwa-Shilubana, T L P; Nchabeleng, M E; Ndabandaba, L B G; Ndlanzi, A Z; Ndlovu, V B; Nel, A C; Nelson, W J; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngcobo, E N N; Ngcobo, B T; Ngele, N J; Ngonyama, L S; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; Njobe, M A A; Nkwinti, G E; November, N T; Ntapane, S Z; Ntshiqela, P; Nxesi, T W; Nxumalo, M D; Nyalungu, R E; Nyekemba, E; Oliphant, M N; Oosthuizen, G C; Peters, E D; Phaliso, M N; Pilane-Majake, M C C; Pilusa-Mosoane, M E; Plaatjies, S K; Radebe, G S; Radebe, B A; Ramatlakane, L; Rwexana, S P; Saal, G; Segale-Diswai, M J; Selau, G J; Shabangu, S; Sibanyoni, J B; Sibiya, D; Sindane, G S; Singh, N; Sithole, K P; Sithole, S C N; Sizani, P S; Skosana, M B; Skosana, J J; Smith, V G; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Sotyu, M M; Suka, L; Sulliman, E M; Sunduza, T B; Surty, M E; Swart, S N; Thobejane, S G; Thomson, B; Tinto, B; Tseke, G K; Tsenoli, S L; Tshabalala, J; Tsotetsi, D R; Turok, B; Van der Merwe, J H; Van der Merwe, S C; Van Der Merwe, L L; van Rooyen, D D; van Wyk, A; Williams, A J; Xaba, P P; Ximbi, D L; Xingwana, L M; Zikalala, C N Z; Zulu, B Z.
NOES - 57: Alberts, A D; Boinamo, G G; Bosman, L L; Coetzee, T W; Davidson, I O; De Freitas, M S F; Duncan, P C; Eloff, E H; Esau, S; Farrow, S B; Greyling, L W; Groenewald, P J; Harris, T D; Hill-Lewis, G G; James, W G; Kloppers-Lourens, J C; Kohler-Banard, D; Kopane, S P; Lamoela, H; Lee, T D; Lorimer, J R B; Lotriet, A; Lovemore, A T; Max, L H; Maynier, D H; Mazibuko, L D; Michael, N W A; Mnqasela, M; Mokgalapa, S; Morgan, G R; Motau, S C; Mulder, P W A; Mulder, C P; Ollis, I M; Paulse, S; Rabotapi, M W; Robinson, D; Ross, D C; Schäfer, D A; Schmidt, H C; Selfe, J; Shinn, M R; Smalle, J F; Smiles, D C; Smuts, M; Steenhuisen, J H; Steyn, A; Stubbe, D J; Trollip, R A P; Van Dalen, P; Van Den Berg, N J; Van Der Linde, J J; Van Der Westhuizen, A P; Van Dyk, S M; Van Schalkwyk, H C; Waters, M; Watson, A.
Question agreed to.
Bill read a second time.
CRIMINAL PROCEDURE AMENDMENT BILL
(Second Reading debate)
Mr L T LANDERS: Deputy Speaker and hon Deputy President, section 11 of our Constitution decrees that “Everyone has the right to life.”
Section 49 of the Criminal Procedure Act, Act 51 of 1977 determines the circumstances in which a police officer may use force in arresting a suspect, and the extent of the force that may be “reasonably necessary” in the circumstances.
In 1998 this Parliament approved the text that is being amended by the Bill before us. In 2002 the Constitutional Court, in the State v Walters judgment, declared section 49(2) of the old text as being unconstitutional. In the meantime the use of lethal force by the members of the South African Police has caused much controversy and created legal uncertainty.
In order to address that uncertainty, the portfolio committee has agreed that the new section 49 be aligned with the criteria laid down by Justice Kriegler of our Constitutional Court. These are: that the purpose of arrest is to bring before court for trial persons suspected of having committed offences; that arrest is not the only means of achieving this purpose, nor always the best; that arrest may never be used to punish a suspect; that where arrest is called for, force may be used only where it is necessary in order to carry out the arrest; that where force is necessary, only the last degree of force reasonably necessarily to carry out the arrest may be used; that in deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account and such force must be proportional in all those circumstances; that shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only; that ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrestor or others, or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are no other reasonable means of carrying out the arrest, whether at that time or later; and that these limitations in no way detract from the rights of an arrestor attempting to carry out an arrest to kill a suspect in self-defence or in defence of another person.
The portfolio committee was also of the unanimous view that, regardless of how eloquently or elegantly section 49 may be drafted, at the end of the day it all comes down to one thing: training, training and more training. Members of the portfolio committee expressed concern at the adequacy of training police officers receive, particularly in the use of firearms and the circumstances in which the use of deadly force is justified. Consequently, a definition of deadly force has been inserted in section 49(1). The portfolio committee was unanimous in its approval of this Bill, and we commend it to this honourable House. Thank you. [Applause.]
There was no debate.
Declarations of vote:
Ms M SMUTS: Deputy Speaker, the old section 49 of the Criminal Procedure Act provided that killing someone suspected of having committed a Schedule 1 offence would be justifiable homicide, if he could not be arrested or prevented from fleeing in any other way. The Constitutional Court ruled on the old section 49 in 2002. As you have heard, hon members, Judge Kriegler, for a unanimous court, took the trouble in State v Walters to tabulate in plain terms when, why and how force and deadly force might be used to effect arrest. Our amendment relies on these guidelines for the sake of legal certainty.
Let us remember that the Constitution means what the Constitutional Court says it means. We uphold the power of judicial review and the separation of powers, and we must abide by its rulings.
Our only task as a committee, therefore, was to ensure that this amendment was a true reflection of the Kriegler ruling and tabulation. It is a true reflection, and it is in part, in fact, verbatim.
Force must always be “reasonably necessary and proportional” in the circumstances, and deadly force, including shooting, may in addition be used only if “the suspect poses a threat of serious violence to the arrestor or any other person” or persons, or if the suspect is reasonably suspected of having committed a crime involving serious bodily harm and there are no other reasonable means of arresting him at that time or later.
Let us remember also that this is not just about the police. Citizens’ arrests are also governed by this section; it therefore directly affects every one of us here and everybody outside. So, let us remember then that the purpose of arrest is to bring a suspect before court for trial, but that it is not the only means of doing that, that it may never be used to punish a suspect. That that is what the judge said, and that that is what we therefore need not only our police to observe but also we ourselves, should we come into a situation where we need to effect an arrest. [Applause.]
Mr S N SWART: Thank you, Deputy Speaker. Hon Minister, the use of the lethal force by law enforcement authorities has always been a very controversial issue. Whilst the ACDP fully supports the usage of lethal force for self-defence or in defence of another, it becomes far more difficult when it involves using lethal force to arrest someone. Section 49 of the Criminal Procedure Act sets out the circumstances when such force can be used and the degree of force that may be reasonable and necessary under the circumstances.
This amendment, as other speakers have pointed out, follows the Constitutional Court ruling in the Walters decision that sought to bring legal certainty to the issue. The court had to strike a balance between the public interest, at which section 49 is aimed, and the impairment of the right to life, and it stated that, and I quote:
The debate is coloured by our history of state violence being used to enforce repressive policies, the state often being personified by armed policemen. Today the debate is given added pungency by the high level of violent crime that often targets the police.
We in the ACDP are also mindful of the high number of police shot dead by the criminals and, of course, by the high number of civilians that are shot dead by the police, with the brutal killing of Andries Tatane foremost in our thoughts.
In this regard the court has emphasised that shooting a suspect solely to carry out an arrest “is permitted in very limited circumstances only”, and then sets out these circumstances. These circumstances have now been set out in this amendment Bill and, in fact, the Bill went further and added the words that the force “must be reasonably necessary and proportional in the circumstances”. We, as the ACDP, believe that this will provide legal certainty.
The following must be borne in mind. I have done many court cases involving police shootings and the police officers have to take that decision in a split second. Later courts can sit back with an armchair approach and consider that decision that was taken in a split second.
In supporting this amendment we, as the ACDP, are mindful of the serious deficiencies in police training and we, like others, were shocked to learn about the high number of officers who had not yet successfully completed their firearm proficiency tests. The training and assessment of all skills of officers in the use of deadly force must be prioritised.
There must also be effective reporting and review processes for all incidents. I say effective processes for those incidents where deadly force is used, including a provision for the role and responsibilities of supervising officers at the scene of the shooting. Of course, the control, storage and issuing of firearms leave much to be desired and must be improved.
Once one has looked at this, we believe that this Bill will go a long way in this matter. What is significant in the Walters decision is that the Minister of Justice and Constitutional Development and the Minister of Police had opposing views, and the court has now given guidance. It is interesting that we, as members of the Portfolio Committee on Justice and Constitutional Development, are here supporting a Criminal Procedure Act that basically has to deal with the police. The ACDP will support this Bill. Thank you. [Applause.]
Mr J B SIBANYONI: Thank you, hon Deputy Speaker. The purpose of the Criminal Procedure Amendment Bill is “to substitute and align the provisions relating to the use of force in effecting arrest of a suspect” with the Walters decision.
The Bill seeks to amend section 49 of the Criminal Procedure Act which sets out the conditions under which the police may use force when effecting an arrest. The previous section 49 provided for the use of force where the arrested person resists arrest and/or attempts to flee. It prescribes that the force used should be:
... reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing ...
This section further provides for the use of deadly force in three instances. In the first instance, the arrestor believes that the use of deadly force is immediately necessary in order to protect himself or herself or any lawful person assisting him or her or any other person “from imminent or future death or grievous bodily harm”.
In the second instance, the arrester believes:
... that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed ...
In the final instance, the arrester believes:
... that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.
Now, one will note that it is extremely difficult to prove these subjective requirements. Hence, amongst others, the police raised serious concerns regarding the interpretation and application of these prescriptions. This view was confirmed by the judgment in the Walters case, which declared section 49 unconstitutional and invalid.
The case assisted in providing the limited circumstances under which the use of deadly force would be permissible. It emphasised that the purpose of effecting an arrest is not to punish but to bring to court the suspect who is suspected of having committed an offence. Hence it is in this spirit that section 49 provides that deadly force may be used only under the two following circumstances:
... the suspect poses a threat of serious violence to the arrestor or any other person;
And, secondly:
... the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.
The Bill gives the proviso that generally the use of force should be “reasonably necessary and proportional in the circumstances”.
The committee is of the view that it has complied with the Constitutional Court’s decision on Walters and has brought section 49 of the Criminal Procedures Act in line with the Constitution. This is precisely because the limited circumstances under which deadly force may be used are derived directly from the Walters judgment itself.
The amendment brings clarity as to the use of force in circumstances under which deadly force may be used to effect an arrest. We are confident of the constitutionality of this amendment. The ANC supports the Bill. [Applause.]
Bill read a second time.
The DEPUTY SPEAKER: Order! Before we continue with the next Order, I wish to remind members that of the five members elected to the Pan-African Parliament three are nominated from the majority party and two from the opposition parties. Traditionally three of the five members have been women.
ELECTION OF MEMBER OF PAN-AFRICAN PARLIAMENT
The Deputy Speaker announced that, as a result of the passing away on 2 December 2011 of Mrs M N Matladi, a former member of the UCDP, it was necessary for the National Assembly to elect a member from the opposition parties to the Pan-African Parliament to replace Mrs Matladi.
The Deputy Speaker announced that the following nominations had been received for election: Mrs C Dudley, ACDP, and Mrs Z B N Balindlela, Cope.
There were no further nominations.
The Deputy Speaker announced that members would be called upon to vote on each candidate. The candidate with the largest number of supporting votes would be duly elected as a member of the Pan-African Parliament.
Question put: That Mrs C Dudley be elected as a member of the Pan-African Parliament.
AYES - 11: Alberts, A D; Dudley, C; Groenewald, P J; Maziya, M; Mokoena, A D; Mulder, C P; Mulder, P W A; Ntapane, S Z; Oosthuizen, G C; Smiles, D C; Swart, S N.
NOES - 222: Abram, S; Adams, P E; Balindlela, Z B N; Bhanga, B M; Bhengu, F; Bhengu, P; Boinamo, G G; Bonhomme, T; Borman, G M; Boshigo, D F; Bosman, L L; Bothman, S G; Burgess, C V; Buthelezi, M G; Cebekhulu, R S; Cele, M A; Chikunga, L S; Coetzee, T W; Coleman, E M; Cwele, S C; Dambuza, B N; Daniels, P N; Davidson, I O; Davies, R H; De Lange, J H; Diale, L N; Diemu, B C; Dikgacwi, M M; Dlakude, D E; Dlulane, B N; Dubazana, Z S; Dube, M C; Duncan, P C; Dunjwa, M L; Eloff, E H; Esau, S; Farrow, S B; Fihla, N B; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; George, M E; Gina, N; Gololo, C L; Goqwana, M B; Hlengwa, M; Holomisa, S P; Huang, C; Huang, S - B; Jacobus, L; James, W G; Johnson, M; Kekane, C D; Kenye, T E; Kganare, D A; Khumalo, F E; Kloppers-Lourens, J C; Kohler-Banard, D; Koornhof, N J J v R; Koornhof, G W; Kopane, S P; Kubayi, M T; Lamoela, H; Landers, L T; Lee, T D; Lekgetho, G; Lesoma, R M M; Line, H; Lishivha, T E; Lorimer, J R B; Lotriet, A; Lovemore, A T; Luyenge, Z; Maake, J J; Mabasa, X; Mabedla, N R; Mabuza, M C; Madlala, N M; Madlopha, C Q; Magau, K R; Magubane, E; Magwanishe, G; Makasi, X C; Makhuba, H N; Makhubela-Mashele, L S; Makhubele, Z S; Makwetla, S P; Malgas, H H; Maluleke, J M; Manana, M C; Manganye, J; Mangena, M S; Martins, B A D; Mashigo, R M; Mashishi, A C; Masutha, T M; Mathebe, D H; Mathebe, P M; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Mavunda, D W; Max, L H; Mayatula, S M; Maynier, D H; Mbhele, P D; Mdaka, M N; Mdakane, M R; Michael, N W A; Mjobo, L N; Mkhize, H B; Mlangeni, A; Mncwango, M A; Mnisi, N A; Mnqasela, M; Mocumi, P A; Mohale, M C; Mohorosi, M; Mokgalapa, S; Molebatsi, M A; Molewa, B E E; Moloi-Moropa, J C; Moloto, K A; Morutoa, M R; Moss, L N; Motsepe, R M; Motshekga, M S; Mpontshane, A M; Msimang, C T; Msweli, H S; Mthethwa, E M; Mtshali, E; Mufamadi, T A; Mushwana, F F; N'wamitwa-Shilubana, T L P; Nchabeleng, M E; Ndabandaba, L B G; Ndlanzi, A Z; Ndlovu, V B; Nel, A C; Nelson, W J; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngele, N J; Ngonyama, L S; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; Nkwinti, G E; November, N T; Ntshiqela, P; Nxesi, T W; Nxumalo, M D; Nyalungu, R E; Nyekemba, E; Ollis, I M; Peters, E D; Phaliso, M N; Pilane-Majake, M C C; Pilusa-Mosoane, M E; Plaatjies, S K; Rabotapi, M W; Radebe, B A; Radebe, G S; Ramatlakane, L; Ross, D C; Saal, G; Schafer, D A; Schmidt, H C; Segale-Diswai, M J; Selau, G J; Shinn, M R; Sibanyoni, J B; Sibiya, D; Sindane, G S; Singh, N; Sithole, S C N; Sithole, K P; Sizani, P S; Skosana, J J; Skosana, M B; Smalle, J F; Smuts, M; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Sotyu, M M; Steenhuisen, J H; Stubbe, D J; Suka, L; Sulliman, E M; Sunduza, T B; Thomson, B; Tinto, B; Trollip, R A P; Tseke, G K; Tshabalala, J; Tsotetsi, D R; Van Dalen, P; Van Den Berg, N J; Van Der Linde, J J; Van der Merwe, S C; Van der Merwe, J H; Van Der Merwe, L L; Van Der Westhuizen, A P; Van Dyk, S M; van Rooyen, D D; Van Schalkwyk, H C; van Wyk, A; Waters, M; Watson, A; Wenger, M; Williams, A J; Xaba, P P; Ximbi, D L; Xingwana, L M; Zikalala, C N Z; Zulu, B Z;
ABSTAIN - 9: Chohan, F I; Ditshetelo, I C; Motau, S C; Motshekga, M A; Oriani-Ambrosini, M G; Robinson, D; Shabangu, S; Surty, M E; Tsenoli, S L.
Question put: That Mrs Z B N Balindlela be elected as a member of the Pan-African Parliament.
AYES - 235: Abram, S; Adams, P E; Ainslie, A R; Balindlela, Z B N; Bhanga, B M; Bhengu, P; Bhengu, F; Boinamo, G G; Bonhomme, T; Borman, G M; Boshigo, D F; Bosman, L L; Bothman, S G; Burgess, C V; Buthelezi, M G; Cebekhulu, R S; Cele, M A; Chikunga, L S; Coetzee, T W; Coleman, E M; Cwele, S C; Dambuza, B N; Daniels, P N; Davidson, I O; Davies, R H; De Lange, J H; Diale, L N; Diemu, B C; Dikgacwi, M M; Dlakude, D E; Dlulane, B N; Dubazana, Z S; Dube, M C; Duncan, P C; Dunjwa, M L; Eloff, E H; Esau, S; Farrow, S B; Fihla, N B; Fubbs, J L; Gasebonwe, T M A; Gaum, A H; Gcwabaza, N E; Gelderblom, J P; George, M E; Gina, N; Gololo, C L; Goqwana, M B; Hlengwa, M; Holomisa, S P; Huang, S - B; Huang, C; Jacobus, L; James, W G; Johnson, M; Kekane, C D; Kenye, T E; Kganare, D A; Khoarai, L P; Khumalo, F E; Kloppers-Lourens, J C; Kohler-Banard, D; Koornhof, N J J v R; Koornhof, G W; Kopane, S P; Kubayi, M T; Lamoela, H; Landers, L T; Lee, T D; Lekgetho, G; Lekota, M G P; Lesoma, R M M; Line, H; Lishivha, T E; Lorimer, J R B; Lotriet, A; Lovemore, A T; Luyenge, Z; Maake, J J; Mabasa, X; Mabedla, N R; Mabuza, M C; Madlala, N M; Madlopha, C Q; Magau, K R; Magubane, E; Magwanishe, G; Makasi, X C; Makhuba, H N; Makhubela-Mashele, L S; Makhubele, Z S; Makwetla, S P; Malgas, H H; Maluleka, H P; Maluleke, J M; Manganye, J; Mangena, M S; Martins, B A D; Mashigo, R M; Mashishi, A C; Masutha, T M; Mathebe, P M; Mathebe, D H; Mathibela, N F; Matlanyane, H F; Matshoba, J M; Mavunda, D W; Max, L H; Mayatula, S M; Maynier, D H; Maziya, M; Mbhele, P D; Mdaka, M N; Mdakane, M R; Michael, N W A; Mjobo, L N; Mkhize, H B; Mlangeni, A; Mmusi, S G; Mncwango, M A; Mnisi, N A; Mnqasela, M; Mocumi, P A; Mohale, M C; Mohorosi, M; Mokgalapa, S; Mokoena, A D; Molebatsi, M A; Molewa, B E E; Moloi-Moropa, J C; Moloto, K A; Morutoa, M R; Moss, L N; Motau, S C; Motsepe, R M; Motshekga, M S; Mpontshane, A M; Msimang, C T; Msweli, H S; Mthethwa, E M; Mthethwa, E N; Mtshali, E; Mufamadi, T A; Mushwana, F F; N'wamitwa-Shilubana, T L P; Nchabeleng, M E; Ndabandaba, L B G; Ndlanzi, A Z; Ndlovu, V B; Nel, A C; Nelson, W J; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngele, N J; Ngonyama, L S; Ngwenya, W; Ngwenya-Mabila, P C; Nhlengethwa, D G; Njikelana, S J; Njobe, M A A; Nkwinti, G E; November, N T; Ntshiqela, P; Nxesi, T W; Nxumalo, M D; Nyalungu, R E; Nyekemba, E; Ollis, I M; Oosthuizen, G C; Oriani-Ambrosini, M G; Peters, E D; Pilane-Majake, M C C; Pilusa-Mosoane, M E; Plaatjies, S K; Rabotapi, M W; Radebe, B A; Radebe, G S; Ramatlakane, L; Robinson, D; Ross, D C; Saal, G; Schafer, D A; Schmidt, H C; Segale-Diswai, M J; Selau, G J; Shinn, M R; Sibanyoni, J B; Sibiya, D; Sindane, G S; Singh, N; Sithole, K P; Sithole, S C N; Sizani, P S; Skosana, J J; Skosana, M B; Smalle, J F; Smuts, M; Snell, G T; Sogoni, E M; Sonto, M R; Sosibo, J E; Sotyu, M M; Steenhuisen, J H; Stubbe, D J; Suka, L; Sulliman, E M; Sunduza, T B; Surty, M E; Thomson, B; Tinto, B; Trollip, R A P; Tseke, G K; Tsenoli, S L; Tshabalala, J; Tsotetsi, D R; Van Dalen, P; Van Den Berg, N J; Van Der Linde, J J; Van Der Merwe, L L; Van der Merwe, S C; Van der Merwe, J H; Van Der Westhuizen, A P; Van Dyk, S M; van Rooyen, D D; Van Schalkwyk, H C; van Wyk, A; Waters, M; Watson, A; Wenger, M; Williams, A J; Xaba, P P; Ximbi, D L; Xingwana, L M; Zikalala, C N Z; Zulu, B Z.
NOES - 4: Alberts, A D; Groenewald, P J; Mulder, P W A; Mulder, C P.
ABSTAIN – 6: Chohan, F I; Ditshetelo, I C; Dudley, C; Motshekga, M A; Ntapane, S Z; Swart, S N.
Mrs Z B N Balindlela was accordingly elected as a member of the Pan-African Parliament.
The DEPUTY SPEAKER: Order! It has been agreed that Order 6 will stand over. The secretary will therefore read Orders 4, 5, 7 and 8.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF PROTOCOL TO CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS IN TERMS OF SECTION 231(2) OF THE CONSTITUTION
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE COMMONWEALTH OF DOMINICA FOR THE EXCHANGE OF INFORMATION WITH RESPECT TO TAXES AND TAX MATTERS IN TERMS OF SECTION 231(2) OF THE CONSTITUTION
There was no debate.
Protocol to Convention on Mutual Administrative Assistance in Tax Matters approved.
Agreement between the Government of the Republic of South Africa and the Government of the Commonwealth of Dominica for the Exchange of Information with respect to Taxes and Tax Matters approved.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE REPUBLIC OF GIBRALTAR FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS IN TERMS OF SECTION 231(2) OF THE CONSTITUTION
Order stood over.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE REPUBLIC OF LIBERIA FOR THE EXCHANGE OF INFORMATION RELATING TO TAX MATTERS IN TERMS OF SECTION 231(2) OF THE CONSTITUTION.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF SUPPLEMENTARY PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE SULTANATE OF OMAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL
EVASION WITH RESPECT TO TAXES ON INCOME IN TERMS OF SECTION 231(2) OF THE CONSTITUTION
There was no debate.
Agreement between the Government of the Republic of South Africa and the Government of the Republic of Liberia for the Exchange of Information Relating to Tax Matters approved.
Supplementary Protocol amending the Agreement between the Government of the Republic of South Africa and the Government of the Sultanate of Oman for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income approved.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE REPUBLIC OF CUBA ON ECONOMIC ASSISTANCE IN TERMS OF SECTION 231(2) OF THE CONSTITUTION
Ms J L FUBBS: Hon Deputy Speaker, the Portfolio Committee on Trade and Industry heard on 9 May what the Department had to say regarding this particular agreement. We deliberated upon it and there were strong arguments for and against - notwithstanding the support that Cuba gave South Africa over many, many years.
As was stated in the committee, South Africa has, if nothing else, at the very least a humanitarian obligation to assist a country that so readily came to our assistance, not only when we were isolated as it were, but also after our own people’s democracy, when they came at government’s request to assist us in the medical area and in the area of teaching, just to mention two, and received the same remuneration as any other doctor or teacher in the Public Service.
Now what does this amount to? What paltry sum are we talking about here? The agreement is divided into three facilities. Facility A consists of a R40 million grant for the purchase of seeds – seeds to feed the people there, to grow things!
Facility B of the agreement is a R100 million solidarity grant. And may I say that that caused such a furore! Solidarity! Yet you hear it all the time in the EU. They are talking about solidarity. They are not members of the ANC. [Interjections.]
The HOUSE CHAIRPERSON (Mr M B Skosana): Order! Order, please!
Ms J L FUBBS: Then we had Facility C. Facility C consists of R210 million for credit lines, nogal, [yes, really] in two tranches of R70 million and R140 million. This is a loan, actually – we are not talking of a grant, but a loan, which is expected to be repaid to South Africa.
I do think, members of this honourable House, that we need to remember those who remembered us and supported us in our hour of need. That is why this House now sits today under the Constitution of South Africa. The ANC supports this. [Applause.]
There was no debate.
Question put: That the Agreement between the Government of the Republic of South Africa and the Government of the Republic of Cuba on Economic Assistance be approved.
Declarations of vote:
Mr S S HILL-LEWIS: Hon House Chair, there are two important points of principle to be made here.
Firstly, a generous and charitable spirit is a praiseworthy quality for any nation, as it is for any person. It is right that South Africans should be known in the community of nations as a generous people who are willing to help where and when we can.
Secondly, when we have an opportunity to do so, we should always seek to lead other countries in democratic transition, respect for human rights, constitutionalism and freedom. When we can, we must leverage our influence and stand as an example to the world.
Now we must ask, given these principles, whether the solidarity grant and assistance package to Cuba we are considering today is appropriate. The short answer is, absolutely not. South Africa should not declare any solidarity with the Castro regime.
Cuban laws limit freedom of expression, association, assembly, movement and the press. [Interjections.]
The HOUSE CHAIRPERSON (Mr M B Skosana): Order! Order, please! Order!
Mr S S HILL-LEWIS: Human Rights Watch has documented evidence of systematic human rights abuses in Cuba, including torture, arbitrary imprisonment and extrajudicial executions, yet today the ANC is proposing that this government declares its “solidarity” with the Castro regime by giving it R350 million over and above the R1,1 billion of bad Cuban debt that President Zuma wrote off last year.
This solidarity grant is unconditional. It contains not a single word about respecting human rights, moving towards a freer society or the release of political prisoners. [Interjections.] If the ANC wants to betray its history of standing up for liberty and democracy, it is free to do so, but this Parliament should not. [Interjections.]
Ironically, the solidarity grant is being financed from an African Renaissance Fund in the Department of International Relations. Why this fund is being used to support a country thousands of kilometres from Africa is one question. But the more important point is that this fund is being used to prop up a system of government whose ideas are completely opposed to the idea of an African Renaissance.
The Castro regime should be consigned to the pages of political history, interesting only for what it can teach us about how not to organise society. It is a modern absurdity on the fringe of global politics. We should not be supporting it.
If the ANC wants to support Raúl Castro, then it should use Chancellor House money to do so. [Interjections.] The ANC should not make South Africa pay for its friendship with the Castro regime. Thank you. [Applause.]
Dr M G ORIANI-AMBROSINI: Mr Chairman, let me tell the House that R350 million of your money going to a government of tyrants is what is before you today. The reason for us to express solidarity with them is because they have inflicted injuries on their own people through economic policies that have failed because of tyranny! We cannot put that aside! We are not expressing solidarity with a people, but we are expressing solidarity with a regime which has placed those people in a position leading to the necessity for them to ask for solidarity! There are no references to human rights conditions. There are no references to the human rights dialogue.
The cost of this treaty is not only the R350 million. It is the opportunity cost of engagement with this country at the expense of not engaging with other countries with whom we could do business. It is a shift of policies, from what matters in business terms for the country, to what does not matter, except for political reasons.
If this is a political payback, the bill for this political payback should be sent to Luthuli House, not to the people of South Africa! [Applause.] What we want to say today by opposing this treaty, which the entire opposition opposed in committee, is to tell the Minister to get his hands out of our pockets when it comes to paying political bills. [Applause.]
We are also extremely concerned about the way this treaty has been phrased. It is really a non-recourse loan. There are provisions in this Bill that bypass the ordinary means of adjudicating disputes, and effectively the treaty says that if payment is not made, all that South Africa can do is to search for an amicable solution. I wish I could ... [Interjections.]
Mrs M T KUBAYI: House Chair, on a point of order: I think the hon member here is debating the wrong matter. He is talking about a Bill before Parliament, and this is a protocol that we are dealing with, not a Bill.
Dr M G ORIANI-AMBROSINI: Thank you very much. My colleague is correct. I referred to a Bill when it is a treaty. Thank you very much. But that doesn’t detract from the fact that it is a horrendous treaty. It is just as horrendous as it would have been had it been a Bill.
The ordinary procedures in an international treaty to adjudicate disputes, which would enable us to recover the money if there were default have been bypassed by the provision I mentioned. I wish I could have the same type of provision when I borrow money from my bank, so that if I don’t pay, all the bank can do is to come and have a friendly chat with me, and ask me to pay! This is not how South Africa should do business! [Laughter.] [Interjections.]
It might be a good cause, but it is not your money to give away! [Interjections.] It is the money of the people of South Africa, and they need that money for housing and hospitals. It is not yours to give! [Applause.]
Mr B A RADEBE: Hon Chairperson, the history of the Cuban people is intertwined with the history of the African people. [Applause.] We know very well today that while we are standing here claiming that we have the best Constitution in the world and that we have freedoms that are enjoyed by historically disadvantaged people, this would not have happened if it had not been for the Cuban people who took the battle of Cuito Cuanavale in 1988. [Interjections.] The very freedoms we are speaking about would not have come about if the Cuban sons and daughters hadn’t participated in that war.
What is absolutely critical here is that there is a lot for us to learn from the people of Cuba. An example is the issue of disaster management. Hurricane Gustav, which lashed Cuba in 2008, was far worse than Hurricane Katrina in America. Hurricane Katrina killed 1 800 people in America. Although Hurricane Gustav in Cuba was worse, it didn’t kill a single person. Why? [Applause.] It is because the Cuban system of disaster management is one of the most advanced in the world. That system was able to evacuate more than 250 000 people within two days, while America could not do that!
What is very important here is that we should value the ideas of the founding President of this country. When he was speaking to the Congressional Black Caucus of the Democrats in Washington, President Mandela once said that the morality of the South African people lay in the fact that they didn’t abandon their friends in their hour of need, but supported them. [Applause.] The Cubans are our friends and we are going to support them.
When this democracy was still young, they provided us with free facilities to train our doctors and engineers. They helped our departments with technical services that we as a country did not have. What kind of people can abandon such friends? [Applause.]
I would like to say to you, the people of South Africa, that the people of Cuba are our people. That is why, when this country says we must build a better South Africa, a better Africa and a better world, it must not be just a slogan – we must make it a reality! So, the ANC is calling on everyone in this House to support this protocol. I thank you. [Applause.]
Agreement between the Government of the Republic of South Africa and the Government of the Republic of Cuba on Economic Assistance approved (Democratic Alliance and Inkatha Freedom Party dissenting).
CONSIDERATION OF REPORT OF COMMITTEE ON PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS ON LEGISLATIVE PROPOSAL TO AMEND EXECUTIVE MEMBERS’ ETHICS ACT, 1998 (ACT NO 82 OF 1998), TO PROVIDE FOR MATTERS RELATED TO THE PRESIDENT OF THE REPUBLIC’S DECLARATION OF INTERESTS IN TERMS OF THE ACT
There was no debate.
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move:
That the Report be adopted.
Declarations of vote:
Mr R A P TROLLIP: Hon House Chairperson, I speak against the background that the President, President J G Zuma, did not meet the legislative deadline for making his own declarations of financial interest. He did so only after being forced to do so by the Public Protector.
Also, my experience when tabling this legislative proposal to the Committee on Private Members’ Legislative Proposals and Special Petitions left me wondering why the ANC members were so vociferously and vehemently opposed to such a proposal. The Majority Party Whip and an ANC member in the committee behaved in a particularly offensive manner. That they apologised at the next meeting serves to mitigate the conduct of the said members and I accepted their apology without reservation. However, this did nothing to address the defensive reasoning in their unilateral rejection of this legislative proposal.
In fact, I got the impression that any private member’s Bill emanating from the opposition was doomed to fail at inception. This is not the intention of the committee on private members’ Bills, and if the committee is allowed to become the graveyard of private members’ Bills, then we must do away with the charade of having a committee that considers private members’ legislation.
In the current legislation the President is expected to be the sole and final arbiter of his and his family’s declarations of interest. My proposal aims to address the fact that the President is subject to no one but himself. In this regard, all other members of the executive are expected to make their declarations to a higher office. This serves to ensure that there is independent oversight of these declarations. The office of the President should not be beyond independent oversight, which actually operates as a safeguard against the abuse of office.
My proposals are therefore intended to protect the office of the President. Though I used the example of a long and growing public list of the current President’s direct family members’ benefiting from lucrative state and state-linked tenders and business opportunities, my legislative proposal is aimed at protecting the President and his family members by placing their business practices above question and reproach.
Yesterday afternoon, the President asserted in this House that it was discriminatory against politicians to suggest that they should not benefit from government infrastructure contracts. It is for this very reason, hon members, that checks and balances are necessary to prevent the trading of political influence for undue financial gain.
This proposal recommends a remedy that proposes that the Auditor-General certifies the compliance of the President’s family members who conduct business with the state. This spares the President the ignominy of continuous public jaundice and recrimination. It is my considered contention that the ANC members of this committee in this House protested too much. If they applied their minds objectively to this legislative proposal they would see that it is, in fact, in the interest of the President and his family, regardless of whether he or she is an ANC or a DA President. Thank you. [Applause.]
Mrs M T KUBAYI: House Chairperson, I think it is important that we note that the proposal was sparked by an article that appeared in the Mail & Guardian. That is the first issue. That article is the one that drove hon Trollip to propose legislation whose purpose is to regulate the President’s declarations.
The second issue that we need to note is that the committee and the ANC felt that there are currently mechanisms in place that cover this area, and these are such that matters can be reported to the Public Protector.
Lastly, it is important to note that we viewed this proposal as an attack on the President himself and his family. It sought to create the impression that members of the President’s family are corrupt and their affairs therefore need to be regulated. It can’t be correct and it can’t be allowed, and we will not apologise, House Chairperson, for taking this stance as the ANC.
It is important that we note that there is no basis for proposing this legislation, because the current code of ethics is sufficient to cover this, and we raised this matter in the committee.
The issue is also that there is no court in the country that has found even one member of the family of President Zuma to be corrupt. I therefore urge the opposition to stop creating the impression among the public that members of President Zuma’s family are corrupt. It is wrong. You can’t continue to do that.
I think it is important for us as members of the House and as South Africans to understand that President Zuma and his families are members of the public; therefore, they are protected by the Constitution. This abuse of President Zuma and his family is unjustifiable and wrong. He is a member of society and a human being, and therefore the Constitution of the country protects him. The continuation by the opposition and members of the public to spread the notion that the President does not have human rights or standing in terms of the Constitution is wrong. The fact that he is the President does not mean that he cannot be protected by the laws of this country. We have the responsibility as the ANC and as members of this House to make sure that everybody is protected, including the President himself.
The other issue I need to correct, hon Trollip, is in regard to the apology that ANC put in the committee. This was in particular to one member, who said incorrectly in the meeting that we did not respect the Constitution. In response to that I, as the leader of the ANC in the committee, stood up to apologise and I withdrew that statement. But we never said anything else, and we do not withdraw anything or regret rejecting that proposal. [Time expired.] [Applause.]
Dr M G ORIANI-AMBROSINI: Mr Chairman, the IFP has taken a very critical position in respect of the workings of the Committee on Private Members’ Legislative Proposals and Special Petitions. Yes, before anyone points it out, I have been very noticeably absent from that committee, and that is why the matter is today before the Constitutional Court, where it will be heard on 7 August. We will discuss the issue of constitutionality on 7 August .
We feel that what is taking place here today is far from being democratic. This House is being called upon to give permission to a member of the House to exercise a right under the Constitution, a right that each and every member of each and every democratic Parliament has exercised in the past.
Adv T M MASUTHA: On a point of order: ...
Dr M G ORIANI-AMBROSINI: So, under these conditions ... [Interjections.]
The HOUSE CHAIRPERSON (Mr M B Skosana): Order! There is a point of order.
Adv T M MASUTHA: House Chair, on a point of order: I want to establish whether hon Oriani-Ambrosini has standing on the matter now that he has lost a case against this Parliament. Instead of raising issues here in the House, he runs to the court and he has lost his application ... [Inaudible.] ...
The HOUSE CHAIRPERSON (Mr M B Skosana): Hon member, that is not the issue here.
Adv T M MASUTHA: ... and he is still going to lose, I suspect.
The HOUSE CHAIRPERSON (Mr M B Skosana): Hon member, that is not the issue. He has the standing. Continue, hon member. [Applause.]
Dr M G ORIANI-AMBROSINI: Mr Chairman, that is the type of point of disorder that these people put!
The case is before the Constitutional Court, where it will be adjudicated to restore a right that has been enjoyed since the first parliament in Athens, the Boule [Ancient Greek council], and the Roman Senate, and enjoyed in each parliament since. However, we do not have that right!
That is why the hon Trollip has needed to come here and humiliate himself by asking permission to do what is obvious in each and every democracy, which is to have the right to introduce a Bill. We no longer even have a table before us where a Bill can be tabled.
What the hon Trollip is putting before us is not about President Zuma. It is about the Presidency, the most important institution in the country – the one that must unify everyone and in which we should take pride. We have not voted for this President, but we want him to be beyond reproach. We want this institution to function and the President to succeed because, if the President fails, the whole of the country fails. We are behind the President, whoever the President is, because he is the one who leads us.
What the hon Trollip is trying to do here is to come humbly and ask for permission – which he does not need under the Constitution –merely to have the possibility of strengthening the Presidency, no matter who the President is! I feel that it is humiliating and unfair for any of us to have to give permission to a colleague merely to present a Bill, which should go to the committee, and should be discussed on a par with any other Bill submitted by the executive.
On that basis I think we should give him the opportunity of being heard. Let the Bill go through, and if it is a bad Bill it can be killed in the committee. But we are operating like the Red Queen in Alice in Wonderland, who famously said, “Off with her head!” and “Sentence first – verdict later.” What we are doing is killing a Bill before the committee has had an opportunity, through public hearings, bilateral discussions and consultations, to decide whether or not it is a good or a bad Bill. That is the fundamental flaw of this democracy at this juncture. Thank you. [Time expired.] [Applause.]
Motion agreed to (Democratic Alliance dissenting).
Report accordingly adopted.
CONSIDERATION OF REPORT OF COMMITTEE ON PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS ON OVERSIGHT VISIT TO KWAZULU-NATAL, GAUTENG AND LIMPOPO LEGISLATURES FROM 17 TO 19 JANUARY 2012
There was no debate.
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Mr Chairperson, I move:
That the Report be adopted.
Motion agreed to.
Report accordingly adopted.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT – VOTE NO 24: JUSTICE AND CONSTITUTIONAL DEVELOPMENT
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON ENERGY – VOTE NO 29: ENERGY, AND STRATEGIC PLAN FOR 2012-13 TO 2015-16 OF DEPARTMENT OF ENERGY
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON TRADE AND INDUSTRY – VOTE NO 36: TRADE AND INDUSTRY
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON DEFENCE AND MILITARY VETERANS – VOTE NO 22: DEFENCE AND MILITARY VETERANS
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON BASIC EDUCATION – VOTE NO 15: BASIC EDUCATION, AND ANNUAL PERFORMANCE PLAN AND STRATEGIC PLAN OF DEPARTMENT OF BASIC EDUCATION AND ITS STATUTORY BODIES
CONSIDERATION OF REPORT OF STANDING COMMITTEE ON FINANCE – STRATEGIC PLANS AND VOTE NO 10: NATIONAL TREASURY, AND SOUTH AFRICAN REVENUE SERVICE
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES–VOTE NO 21: CORRECTIONAL SERVICES, AND STRATEGIC PLAN OF DEPARTMENT OF CORRECTIONAL SERVICES FOR 2012-13
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON PUBLIC ENTERPRISES – VOTE NO 11: PUBLIC ENTERPRISES, AND STRATEGIC PLAN OF DEPARTMENT OF PUBLIC ENTERPRISES FOR 2012-13 TO 2016-17
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION – VOTE NO 12: PUBLIC SERVICE AND ADMINISTRATION, AND STRATEGIC PLAN OF DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON RURAL DEVELOPMENT AND LAND REFORM – VOTE NO 33: RURAL DEVELOPMENT AND LAND REFORM
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON SCIENCE AND TECHNOLOGY – VOTE NO 34: SCIENCE AND TECHNOLOGY, AND STRATEGIC PLAN FOR FISCAL YEARS 2012-2013
CONSIDERATION OF REPORT OF STANDING COMMITTEE ON FINANCE – VOTE NO 13: STATISTICS SOUTH AFRICA FOR FINANCIAL YEAR 2012-13
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON MINERAL RESOURCES – VOTE NO 32: MINERAL RESOURCES, AND STRATEGIC PLAN OF DEPARTMENT OF MINERAL RESOURCES FOR 2012-2013 FINANCIAL YEAR
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES – VOTE NO 8: WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES, AND STRATEGIC PLAN OF DEPARTMENT OF WOMEN, CHILDREN AND PEOPLE WITH DISABILITIES FOR 2012-13 TO 2016-17 AND FOR FINANCIAL YEAR 2012-13
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON POLICE – VOTE NO 25: POLICE, AND DEPARTMENT OF POLICE FOR 2012-13
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON HUMAN SETTLEMENTS – VOTE NO 31: HUMAN SETTLEMENTS, AND STRATEGIC PLANS OF DEPARTMENT OF HUMAN SETTLEMENTS AND ITS ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS – VOTE NO 3: CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON POLICE – VOTE NO 23: INDEPENDENT POLICE INVESTIGATIVE DIRECTORATE FOR 2012-13
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON COMMUNICATIONS – VOTE NO 27: COMMUNICATIONS, AND DEPARTMENT OF COMMUNICATIONS AND ITS ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON PUBLIC WORKS – VOTE NO 7: PUBLIC WORKS, AND STRATEGIC PLANS 2012 TO 2016 AND ANNUAL PERFORMANCE PLANS 2012 TO 2014 OF DEPARTMENT OF PUBLIC WORKS AND ITS ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON LABOUR – VOTE NO 18: LABOUR, AND THE STRATEGIC PLAN OF DEPARTMENT OF LABOUR FOR 2011 TO 2016 AND ITS ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON SPORT AND RECREATION – VOTE NO 20: SPORT AND RECREATION FOR 2012-13, AND STRATEGIC PLAN FOR 2012 TO 2016 OF DEPARTMENT OF SPORT AND RECREATION
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON AGRICULTURE, FORESTRY AND FISHERIES – VOTE NO 26: AGRICULTURE, FORESTRY AND FISHERIES, DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES AND RELATED ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON COMMUNICATIONS – VOTE NO 9: GOVERNMENT COMMUNICATION AND INFORMATION SYSTEM, GCIS, AND MEDIA DEVELOPMENT AND DIVERSITY AGENCY, MDDA
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON ARTS AND CULTURE – VOTE NO 14: ARTS AND CULTURE
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON WATER AND ENVIRONMENTAL AFFAIRS – VOTE NO 30: ENVIRONMENTAL AFFAIRS
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON TOURISM – VOTE NO 35: TOURISM, AND MEDIUM-TERM STRATEGIC FRAMEWORKS, STRATEGIC PLAN AND ANNUAL PERFORMANCE PLAN OF NATIONAL DEPARTMENT OF TOURISM AND SOUTH AFRICAN TOURISM
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT – VOTE NO 19, AND STRATEGIC AND OPERATIONAL PLAN OF DEPARTMENT OF SOCIAL DEVELOPMENT AND ITS ENTITIES FOR 2012-13 TO 2014-15 FINANCIAL YEARS
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON HIGHER EDUCATION AND TRAINING – ANNUAL PERFORMANCE PLAN AND VOTE NO 17 OF DEPARTMENT OF HIGHER EDUCATION AND TRAINING FOR 2012-13 FINANCIAL YEAR
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON ECONOMIC DEVELOPMENT – VOTE NO 28 AND STRATEGIC PLAN OF DEPARTMENT OF ECONOMIC DEVELOPMENT AND ITS ENTITIES FOR 2012-2013 TO 2016-2017 FINANCIAL YEARS
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON HOME AFFAIRS – ANNUAL PERFORMANCE PLAN AND VOTE NO 4 OF DEPARTMENT OF HOME AFFAIRS AND ITS ENTITIES
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON INTERNATIONAL RELATIONS AND CO-OPERATION – STRATEGIC PLAN AND VOTE NO 5 OF DEPARTMENT OF INTERNATIONAL RELATIONS AND CO-OPERATION
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON HEALTH – VOTE NO 16 AND STRATEGIC PLAN OF DEPARTMENT OF HEALTH FOR 2012-13 TO 2014-15
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON TRANSPORT – VOTE NO 37 AND STRATEGIC PLANS OF DEPARTMENT OF TRANSPORT AND ITS ENTITIES
There was no debate.
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Mr Chairperson, I move:
That the Reports be adopted.
Motion agreed to.
Report of Portfolio Committee on Justice and Constitutional Development on Vote No 24: Justice and Constitutional Development accordingly adopted.
Report of Portfolio Committee on Energy on Vote No 29: Energy, and Strategic Plan for 2012-13 to 2015-16 of Department of Energy accordingly adopted.
Report of Portfolio Committee on Trade and Industry on Vote No 36: Trade and Industry accordingly adopted.
Report of Portfolio Committee on Defence and Military Veterans on Vote No 22: Defence and Military Veterans accordingly adopted.
Report of Portfolio Committee on Basic Education on Vote No 15: Basic Education, and Annual Performance Plan and Strategic Plan of Department of Basic Education and its Statutory Bodies accordingly adopted.
Report of Standing Committee on Finance on Strategic Plans and Vote No 10: National Treasury, and South African Revenue Service accordingly adopted.
Report of Portfolio Committee on Correctional Services on Vote No 21: Correctional Services, and Strategic Plan of Department of Correctional Services for 2012-13 accordingly adopted.
Report of Portfolio Committee on Public Enterprises on Vote No 11: Public Enterprises, and Strategic Plan of Department of Public Enterprises for 2012-13 to 2016-17 accordingly adopted.
Report of Portfolio Committee on Public Service and Administration on Vote No 12: Public Service and Administration, and Strategic Plan of Department of Public Service and Administration accordingly adopted.
Report of Portfolio Committee on Rural Development and Land Reform on Vote No 33: Rural Development and Land Reform accordingly adopted.
Report of Portfolio Committee on Science and Technology on Vote No 34: Science and Technology, and Strategic Plan for Fiscal Years 2012-13 accordingly adopted.
Report of Standing Committee on Finance on Vote No 13: Statistics South Africa for Financial Year 2012-13 accordingly adopted.
Report of Portfolio Committee on Mineral Resources on Vote No 32: Mineral Resources, and Strategic Plan of Department of Mineral Resources for 2012-13 Financial Year accordingly adopted.
Report of Portfolio Committee on Women, Children and People with Disabilities on Vote No 8: Women, Children and People with Disabilities and Strategic Plan of Department of Women, Children and People with Disabilities for 2012-13 to 2016-17 and for Financial Year 2012-13 accordingly adopted.
Report of Portfolio Committee on Police on Vote No 25: Police, and Strategic Plan of Department of Police for 2012-13 accordingly adopted.
Report of Portfolio Committee on Human Settlements on Vote No 31: Human Settlements, and Strategic Plans of Department of Human Settlements and its Entities accordingly adopted.
Report of Portfolio Committee on Cooperative Governance and Traditional Affairs on Vote No 3: Co-operative Governance and Traditional Affairs accordingly adopted.
Report of Portfolio Committee on Police on Vote No 23: Independent Police Investigative Directorate for 2012-13 accordingly adopted.
Report of Portfolio Committee on Communications on Vote No 27: Communications, and Department of Communications and its Entities accordingly adopted.
Report of Portfolio Committee on Public Works on Vote No 7: Public Works, and Strategic Plans 2012 to 2016 and Annual Performance Plans 2012 to 2014 of Department of Public Works and its Entities accordingly adopted.
Report of Portfolio Committee on Labour on Vote No 18: Labour, and the Strategic Plan of Department of Labour for 2011 to 2016 and its Entities accordingly adopted.
Report of Portfolio Committee on Sport and Recreation on Vote No 20: Sport and Recreation for 2012-13, and Strategic Plan for 2012 to 2016 of Department of Sport and Recreation accordingly adopted.
Report of Portfolio Committee on Agriculture, Forestry and Fisheries on Vote No 26: Agriculture, Forestry and Fisheries, Department of Agriculture, Forestry and Fisheries and related Entities accordingly adopted.
Report of Portfolio Committee on Communications on Vote No 9: Government Communication and Information System, GCIS, and Media Development and Diversity Agency, MDDA, accordingly adopted.
Report of Portfolio Committee on Arts and Culture on Vote No 14: Arts and Culture accordingly adopted.
Report of Portfolio Committee on Water and Environmental Affairs on Vote No 30: Environmental Affairs accordingly adopted.
Report of Portfolio Committee on Tourism on Vote No 35: Tourism, and Medium-Term Strategic Frameworks, Strategic Plan and Annual Performance Plan of National Department of Tourism and South African Tourism accordingly adopted.
Report of Portfolio Committee on Social Development on Vote No 19: and Strategic and Operational Plan of Department of Social Development and its Entities for 2012-13 to 2014-15 Financial Years accordingly adopted.
Report of Portfolio Committee on Higher Education and Training on Annual Performance Plan and Vote No 17 of Department of Higher Education and Training for 2012-13 Financial Year accordingly adopted.
Report of Portfolio Committee on Economic Development on Vote No 28 and Strategic Plan of Department of Economic Development and its Entities for 2012-13 to 2016-17 Financial Years accordingly adopted.
Report of Portfolio Committee on Home Affairs on Annual Performance Plan and Vote No 4 of Department of Home Affairs and its Entities accordingly adopted.
Report of Portfolio Committee on International Relations and Co-operation on Strategic Plan and Vote No 5 of Department of International Relations and Co-operation accordingly adopted.
Report of Portfolio Committee on Health on Vote No 16 and Strategic Plan of Department of Health for 2012-13 to 2014-15 accordingly adopted.
Report of Portfolio Committee on Transport on Vote No 37 and Strategic Plans of Department of Transport and its Entities accordingly adopted.
The House adjourned at 16:43.
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ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
1. Classification of Bill by Joint Tagging Mechanism (JTM)
- The JTM in terms of Joint Rule 160(6) classified the following Bill as a section 76 Bill:
- National Environmental Management Laws Amendment Bill [B 13 – 2012] (National Assembly – sec 76).
2. Reviewed Strategic Plan for Fourth Parliament 2009-2014
Strategic Plan for the Fourth Parliament 2009-2014. The reviewed Strategic Plan, as tabled in Parliament on 19 August 2010, submitted by the Speaker and the Chairperson. The reviewed Strategic Plan is available on Parliament’s website: www.parliament.gov.za
COMMITTEE REPORTS
National Assembly
1. Report of the Portfolio Committee on Justice and Constitutional Development on the Sheriffs Amendment Bill [B2-2012] (National Assembly) – sec 75), dated 23 May 2012:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Sheriffs Amendment Bill [B2-2012] (National Assembly) – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B2A-2012].
The Democratic Alliance abstained from voting.
Report to be considered
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