Hansard: NA: Unrevised hansard
House: National Assembly
Date of Meeting: 02 Jun 2022
Summary
No summary available.
Minutes
UNREVISED HANSARD
NATIONAL ASSEMBLY
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Watch: Plenary
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:00.
House Chairperson Ms M G Boroto took the Chair and requested members to observAe a moment of silence for prayer or meditation.
ANNOUNCEMENT
The HOUSE CHAIRPERSON (Ms M G Boroto): The sound that was playing took me aback, I thought we are in a different
country. Hon members, in the interest of safety for all, we all know that we adhere to by keeping our masks on.
Mr B A RADEBE: I hereby move on behalf of the Chief Whip of the Majority Party:
That the House, with the concurrence of the National Council of Provinces –
(1) recognises that climate change and global warming have become priorities for South Africa and the global community;
(2) notes that South Africa has made a number of commitments to combat climate change in the context of a just transition and sustainable development;
(3) further notes that Parliament requires a coordinated, consultative approach to ensure that it can oversee and contribute to South Africa’s climate’s strategy;
(4) therefore, resolves, in accordance with Joint Rule 142, to establish a Joint Steering Committee on Climate Change for the duration of the Sixth Parliament; the Committee to;
(a) facilitate the co-ordination of parliamentary activities related to climate change;
(b) facilitate a joint parliamentary programme of action to prioritise climate issues and commitments;
(c) be co-chaired by a House Chairperson from each House;
(d) exercise those powers provided for in Joint Rules 32 and 33 and may consult any other committee or forum;
(e) have the power to establish sub-committees to assist with the fulfilment of its mandate;
(f) consist of;
(i) one member designated from each of the portfolio committees on Agriculture, Land Reform and Rural Development; Higher
Education, Science and Technology; Human Settlements, Water and Sanitation;
International Relations and Cooperation; Public Enterprises; Minerals and Energy;
Trade and Industry; and Transport;
(ii) one member designated from each of the select committees on Education and Technology, Sport, Arts and Culture; Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour; Cooperative Governance and Traditional Affairs, Water and Sanitation
and Human Settlements; Land Reform, Environment, Mineral Resources and Energy; Public Enterprises and Communications; and
Transport, Public Service and Administration, Public Works and Infrastructure;
(iii) one member designated from each of the standing and select committees on finance and appropriations;
(iv) 11 other members from the National Assembly (ANC 6, DA 2, EFF 1 and other parties 2); and
(v) 9 other members from the National Council of Provinces; and
(5) report to the Houses at least annually. Question Put Motion agreed to.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON HEALTH ON NATIONAL HEALTH AMENDMENT BILL [B 29 – 2018]
Dr K L JACOBS: Thank you Chairperson. The National Health Amendment Bill B29 of 2018 was a Private Members Bill tabled
and referred to the committee on 3 September 2018.
The Bill had lapsed in accordance with NA rules which are Rule 3332 at the end of Fifth Parliament and was revived during the Sixth Parliament.
The Bill sought to amend section 4 of the National Health Act 61 of 2003 to provide clinics in the public sector to open and
operate for 24 hours and seven days a week.
The committee met with the sponsor of the Bill Dr Suzan Thembekwayo on 7 October 2020 to receive a briefing relating to the Bills contents and provisions. The committee subsequently received input on the Bill from the national Department of Health on the 21st of October 2020.
Following extensive committee deliberations and input from the Department of Health, the committee concluded that the
National Health Amendment Bill in its current form would have massive financial implications on the Department of Health and
the quantification of course had not been done. Moreover, it was of concern to the committee that the country
was currently under financial stress and the Department of Health would have great difficulty in adjusting its current
budget against the health requirements resulting from the Covid-19 pandemic.
The committee understood that the Department of Health has committed to ensure that ultimately all primary health care
facilities operated for 24 hours a day and this goal would be achieved through progressive means when and as resources will become available.
The committee was of the opinion that there is a need for comprehensive data on the factors informing the operation of 24 hour facilities such as human and financial resources needed for expanded service delivery.
Further noting that the Bill would require urgent investment and health infrastructure which is not tuneable given current
limited resources. In its deliberations, the committee noted that the Bill was not subjected to a socio economic impacted assessment system
to determine whether the Bill was the correct vehicle to achieve the intended objective.
The committee was and continues to process the National Health Insurance Bill which will likely have an impact on the
proposed legislation as well as provide for consequential amendments of the National Health Act.
Based on the aforementioned reasons, the committee adopted a motion that the Bill was not desirable at the stage. The
committee thanks Dr Suzan Thembekwayo for sponsoring the Bill and in so doing giving the committee the opportunity to engage
in a continuous debate on improving the health system of our country.
We are reminded that the government’s goal is to address the access to quality and affordable health care to all South Africans. This is in line with Alma-Ata declaration of 1978 of the World Health Organisation. I will only call the section on
primary health care;
“Primary health care is essential health based on practical scientifically sound and socially acceptable
methods and technology made universally accessible to individuals and families in the community through the
full participation at a cost that the community and country can afford to maintain at every stage of their
development in the spirit of self-reliance and self- determination. It forms an integral part of both the
county’s health system of which it is the central function and main focus and of this overall social and
economic development of the community. It is the first level of contact of individuals, the family and community
with the National Health System bringing health care as close as possible to where people live and work and
constitutes the first element of continuing health care process.”
Chairperson, we are in the final stages of the processes of the NHI Bill in the Portfolio Committee on Health.
The EFF jumped the gun with this Bill. Yet, incomprehensively the EFF says they do not support the NHI Bill yet they were
seeking to have our clinics at this point in time as early as 2018 on a 24hour seven days a week basis.
A Bill that seeks as its intention to achieve its universal access to quality health care services in the republic, in
accordance with the section 27 of the Constitution is sounding that they said they would not agree with and this was done
just yesterday as we were deliberating further on the Bill. This Bill runs the opportunity to all the political parties to
show that they do care about the poor and the marginalised, change of perspective on the NHI Bill, please consider
supporting the NHI Bill as we proceed further with deliberations. Thank you once again Chairperson.
Declarations of Vote:
Ms M O CLARKE: Hon House Chairperson, with reference to the proposed Private Member’s Bill, by the hon Dr Thembekwayo, the
DA supports a noble objective of extending access to medical care. This Bill will realise bringing health care to the poor
and vulnerable in particularly within rural areas. The objectives in the Bill with regards to improving access to
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health care services having it been realised particularly
within the City of Johannesburg under the DA-led governance.
The concerns that the DA have revolves around the practical
implementation of such an amendment. Prior to considering a
legislative amendment, the first need to properly capacitate
these clinics. Currently this amendment will not solve the
current problem of the access of health care services.
Its implementation will place an enormous financial burden on
the state that will inevitably hamstring other health
programmes. Not to mention the impact that it will have on the
National Health Insurance, NHI, once implementing this Bill.
The national department and most provincial departments will
not have the resources, staff, equipment to implement this
Bill as legislation. Expanding on current capacity may prove a
breach too far.
Currently, South Africa has 0,31% of doctors per 1 000
patients. It is unclear where the necessary human resources
will come from to meet the needs of clinics to operate 24
hours. Doctors and nurses are already working extremely long
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hours and the PMB does not take into consideration such
shortages.
Additionally, the financial resources needed would have to
double. Considering the current economic context, COVID-19
pandemic and its implications on the health care environment,
the financial sustainability of such an amendment is
questionable.
Another concern I would like to raise around the state of
compliance, norms and standards that is provided around our
clinics. Should they be mandated and operated within 24 hours?
I do not think our clinics would cope with that kind of stress
as many of our clinics do not comply with the norms and
standards.
There are a total of 3 473 public health care, PHC,
facilities, of which only 2 200 facilities qualify as ideal
clinics. This means that 63% of facilities comply with the
norms and standards of which only 1 050 PHCs, facilities have
adequate space to accommodate 24 hour services. The concerns
raised is that the clinics that do not meet the criteria of
ideal clinics pose a risk to the quality health care provided
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and could result in an increase of legal cases against the
state.
As long as the Bill cannot be adequately implemented, it has
no real value as legislation.
The following caveat must be put in place to realise the
outcome of this Bill. A proper evaluation must be undertaken
and at the hand of social requirements and the ability of the
department. The undertaking of the Socio Economic Impact
Assessment System, SEIAS, is therefore recommended to ensure
that an informed decision is made in this regard. Expand,
update and maintain health infrastructure to be able to
accommodate the 24-hour service mandate. Expand and increase
the number of health care workers in the sector, have an
adequate financing to sustain and meet financial demands of
such a provision.
The Portfolio Committee on Health must ensure that oversight
is exercised in terms of these clinics.
In conclusion, indeed, the Constitution does highlight the
right to access health services. However, the provision of the
resources provides for a limitation in this regard. We must
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therefore aim in accordance with the resource availability to
extend the operational times of the clinics in order to meet
the rights enshrined in section 27(1) of the Constitution.
However, I do not believe that this PMB will effectively
result in increased and improved access to health care
services as it does not consider the human and financial
resources. This should be done in a faced approach in order to
realise the outcomes of the Private Member Bill.
Additionally, overworking doctors by stretching the 0,31
available to provide services for 24 hours, will have a
negative impact on staff morale and mental health which will
ultimately in lower quality of health provisions.
It is important to address any issue that hinders universal
health care within the public sector. If all these
shortcomings are realised in the public health system, the DA
will support this Private Member’s Bill. Just to note the DA
does not support the NHI. Thank you. [Applause.]
The HOUSE CHAIRPERSON (Ms M G Boroto): Hon members, I am not
sure. Information and Communication Technology, ICT, I did not
want to disturb the member on the podium, but the echo or the
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sound that comes from – something is not right. The sound is
disturbed when the member is on the podium. So, please check.
Sometimes you find that the TV sets are not fully off or
whatever monitor. “Ja.”
Alright. We now proceed now and call on the EFF, hon Chirwa.
Ms N N CHIRWA: Hon House Chairperson, what brings us today is
yet another affirmation that the ANC-led government and its
agents masquerading as political parties in this House who
never care about the people of this country. Today, is a firm
reminder that when the legislators of this House found an
opportunity to legislate the universal health care coverage in
the form of supporting an EFF Private Member’s Bill that was
to see hospital and clinics opening 24 hours and seven days a
week, they chose to rather reject this opportunity, because of
political jealousy and a deep disdain for our people who
continue to stand in queues at 4:00 am in the morning, just to
collect medication and vaccination for their infants and
grandparents.
It is a lie that this Bill is not financially feasible. The
ANC-led government would rather spend health care money on
doing programmes set for them by Bill Gates, than programmes
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than programmes that will result in quality and accessible
health care for our people.
The ANC-led government is committed to buying salons for
Minister’s girlfriends with money meant to save lives of our
people like we saw with the Digital Vibes cash heist during a
global pandemic.
Unfortunately for the country, this Bill was not going to
benefit ANC thugs with handouts. It was not going to create
opening for an increase executive personnel. This Bill was
going to ensure that more nurses and doctors are employed.
More community health care workers are permanently absorbed.
More Emergency Medical Services, EMSs, are available and put
an end to our people being turned back at 4:00 pm, because a
clinic, a place meant for health care and our wellbeing has
office hours’ like is an accounting firm in Sandton is closed.
In Limpopo, in Madimbo Clinic just last year, a woman gave
birth on a pavement outside of a clinic in full view of
passers-by because it was closed and nurses were sleeping.
This is a clinic that was initially meant to be opened for 24
hours, but was not because a commitment to have a clinic to
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function for 24 hours and seven days a week is not the same as
the legislative responsibility for the same purpose!
Elina Maseko had a same catastrophic event outside Stanza
Bopape Clinic in Mamelodi East. Another woman gave birth in
Mapela Clinic outside Mokopane, just last year while waiting
for the clinic to open. Hundreds of other women and their
children die at the gates of health care facilities because of
ANC promises and commitments that never manifest in this House
doing their legislative duties to usher access to our most
destitute communities and especially the women of this country
who utilise health care services the most.
Today, the ANC-led government want to tell us about committing
to opening clinics for 24/7 and yet the very same people
rejects legislating the very same commitment.
Our people will not be assisted by mere commitment that cannot
be reflected on paper as the law. In 1994 the ANC committed to
ushering free education and almost 30 years later, it is still
not a reality. Our people need laws that will protect their
rights, no slating promises and commitments that never become
a reality.
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The rejection of this Bill is indeed a form of gender-based
violence and ignoring our rights to health care. It is
precarious that in the year 2022 the EFF has to teach a
supposedly liberation party that our people need health care
facilities that open for 24/7. Rejection of this Bill,
subsequently means and accepting the status quo.
The poor are once again left out entirely accepting Bills such
as the National Health Insurance, NHI, while a meaningful Bill
like a National Health Amendment Bill surprisingly reminds
people in this room that the country has money issues.
They do not remember that we have money issues when they steal
our money. They do not remember that we have money issues when
SA Health Products Regulatory Authority, Sahpra, donates to
America for health products that are not recognised for. They
do not remember that we have money issues when they discard
expired vaccines bought with our money because they fail to
educate our people of the importance of vaccination. They do
not remember that we have money issues when they outsource our
health care to the private sector through the NHI. They
remember that we have money issues when we want our people to
be able to go to the clinic at 2:00 am because they got sick
at 2:00 am.
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Prevention, primary health care and education will forever
remain a myth in this country so long as the poor person has
to wait for the weekend to pass in order to be assisted in our
clinics.
This Bill seeks to ensure medical intervention at the point of
need for our people. [Time expired.]
Mr A H M PAPO: Hon House Chairperson, on a point of order
The HOUSE CHAIRPERSON (Ms M G Boroto): The IFP. Mama Hlengwa
just before you proceed: Why are you rising hon Papo?
Mr A H M PAPO: Hon House Chairperson, my point of order is: I
wanted to check whether is it parliamentary for the hon member
to start her speech without greeting the president of her
organisation?
The HOUSE CHAIRPERSON (Ms M G Boroto): Hon Member, that is not
the point of order.
IsiZulu:
Nk H O MKHALIPI: Hhayi wena. Yazi amakhehla ePhalamende adina
kanjena ke.
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Nk N P SONTI: Ayifuni wena! Ayifuni wena leyo!
English:
The HOUSE CHAIRPERSON (Ms M G Boroto): Order hon members!
Order!
IsiZulu:
Nk H O MKHALIPI: Uyaphapha! Uyaphapha!
Nk N P SONTI: Uyaphapha!
English:
The HOUSE CHAIRPERSON (Ms M G Boroto): The hon Sonti, please!
I will deal with everything that is being raised! Please,
stop!
IsiZulu:
Mama Hlengwa, ithuba ngelakho.
English:
Ms M D HLENGWA: Hon House Chairperson, the COVID-19 pandemic
without doubt brought the global society in the stand still.
It forever changes the ways we view and access the health
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care. The pandemic also tragically had a much greater impact
on the poorest of the society.
According to the World Bank extreme poverty increased in all
countries in 2020. It is expected that COVID-19 induced
extreme poverty is set to increase by 1,3 percentage point in
the Sub-Saharan countries alone.
It is against the backdrop that we should renew and review the
National Health Amendment Bill which proposes to amend the
National Health Act to provide that public health care clinics
must operate and provide health service for 24 hours a day and
seven days a week.
The reality is that the direction in which the economic state
of our country must inform the deliberation of this Bill. The
fact that no costing model was provided makes this proposal as
noble as it is not feasible.
With an expected gross domestic product, GDP, growth rate of
only 1,8% over the next three years and a government debt
burden of over R4,3 trillion. This proposal will have grave
financial implications.
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However, this reality should not mask urgent need of
government to ensure our public health facilities do need to
serve the people.
Corruption and fraud within this sector must be attended with
extreme urgency. The deliberations on the National Health
Insurance Bill should also not be used to mask the urgent need
to attend to maintenance of the public health care facilities.
The IFP has always been vocal about the alarming delays in the
repair work of the Charlotte Maxeke Hospital and it seems that
this delay has been further escalated by reports of
corruption. Access to health care must be ... Thank you, hon
House Chairperson. The IFP accepts this report.
Afrikaans:
Mnr P A VAN STADEN: Agb Voorsitter, dit is een ding om ’n
bestaande wetgewing te verander, al is dit net met ’n klein
sin of ’n woord, maar die uitvoering daarvan kan, soos in die
huidige geval van Suid-Afrika se openbare gesondheidsorg, ’n
baie, baie groot uitdaging raak.
Dit is baie maklik om die woorde tot die Nasionale
Gesondheidswet te voeg wat opdrag gee dat klinieke wat deur
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die staat befonds word dienste moet lewer 24-uur per dag sewe
dae per week. Dit is baie maklik, maar dit gaan nie gebeur
nie.
Die Minister het reeds in ’n geskrewe antwoord aan my in die
afgelope tyd aangedui dat Suid-Afrika tans met 10 831 vakante
poste vir verpleegsters en 1 339 vakante poste vir dokters
sit. Met die portefeuljekomitee se besoeke gedurende die
Nasionale Gesondheidsversekering, NGV, verhore aan landelike
gebiede die afgelope tyd, waar klinieke ’n uiters belangrike
rol in hierdie verafgeleë gebiede speel, het dit tog deurgekom
en was dit duidelik gewees dat die tekorte aan dokters,
verpleegsters, medisyne, toerusting en die daaglikse
infrastruktuur soos krag en water ver tekort skiet, en dat
pasiënte vir dae aaneen van hul huise af moet loop om by
hierdie klinieke uit te kom, net om daar te kom en om nie
gehelp te kan word nie weens al die tekorte wat ek so pas
genoem het.
Daarom kan die wetgewing verander word maar die vraag is, hoe
gaan die spesifieke wetgewing dan tot uitvoering gebring word?
Dit kan nie, dit gaan nie en dit gaan glad nie gebeur nie, en
onder die huidige omstandighede gaan dit bloot net ’n
onbegonne taak wees om uit te voer.
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Intusssen mors hierdie regering sy tyd en ons
belastingbetalers se geld met die Nasionale
Gesondheidsversekering en gee nie aandag aan kritiese
infrastruktuur wat reeds in duie gestort het nie. Die
R8 miljard wat uit vanjaar se Gesondheidsbegroting aan die NGV
spandeer word kon eerder spandeer gewees het om die openbare
gesondheidsinfrastruktuur op te gradeer, om kundiges aan te
stel, die vakante poste van dokters en verpleegsters te vul en
vir die uitwissing van wanbestuur, wanadministrasie en van
korrupsie.
Alhoewel die VF Plus hierdie verslag ondersteun, kan ons nie
hierdie wysiging aan die Nasionale Gesondheidswet ondersteun
nie. Ek dank u.
Ms M E SUKERS: Hon Chairperson, we firstly wish to recognise
the work of Dr Thembekwayo to bring this Bill before the
committee. We however support the report by the committee.
The ACDP notes the important issue of access to health care
and the expansion of healthcare services at a primary care
level that the Bill seeks to address. Primary health care
facilities, such as day hospitals or clinics are at the
forefront of health care and disease management. The quality
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of health care is greatly impacted by the long waiting hours
at these facilities, the shortage of staff, the lack of
security and the lack of appropriate infrastructure to ensure
the comfort and safety of patients - especially the elderly
and those suffering from illness.
To change this, there are two critical elements that must be
addressed: The ability of the state, to perform and execute
what is needed and the environmental readiness to facilitate
the change of extending service hours. It is evident that the
biggest hurdle to transformative, and quality health care is
the deficiencies of the state.
This is not primarily a lack of funding or even on-the-ground
capacity, but that the state insists on controlling the sector
and dictating to communities concerning their health care. The
key reason we do not turn the money invested into healthcare
by the taxpayer into health outcomes is the state’s desire to
control health care. We cannot constantly be saying we don’t
have money to open clinics when communities need them or
pretend that funding doesn’t matter. The state needs to
devolve power to communities to determine how their needs are
best served, and when they want their clinics to be open.
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We want to see a model, especially in rural communities or
areas, with a high population that reduces pressure on the
system. What is needed to make this shift possible, and
thereby improve services and access to quality health care, is
a further deep-think and consultation before legislation that
extends service hours can be developed and implemented. This
legislation needs to form part of a fundamental reform of the
healthcare system, and no hon Jacobs we do not support the
National Health Insurance, NHI.
As long as the states dictates health care centrally, it will
demonstrate its inability to create a conducive environment to
pursue improvement and transformative health care services
that will improve our people’s experiences at health care
facilities.
We thus conclude with the committee that the Bill is not
implementable or desirable in the current circumstances. We
would welcome working with Dr Thembekwayo and the whole
committee to create community-led healthcare. Thank you,
Chair.
The HOUSE CHAIRPESON (MS MG BOROTO): The UDM?
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Mr N L S KWANKWA: No declaration, Chair.
Mr A M SHAIK-EMAM: Thank you very much, House Chairperson. The
NFP notes the report that is tabled here today. And allow us
to express our concern about a whole lot of matters pertaining
to this particularly.
I think it is common knowledge that people in this country and
all over the world get ill at any time of the day or night.
And that as human beings, we ought to have services available
to them when they do take ill.
I want to give an example of Mohammed Khan from Durban who got
ill on a very wet and rainy Saturday could not get an
ambulance, the facilities were not available. In two days
later, he died in hospitals, all because there was a delay in
not having facilities available.
Chairperson, is it okay or acceptable that when somebody takes
ill on a weekend or after hours, they must then wait for a
Monday to receive medical attention? Is it not the
responsibility of the state to provide quality healthcare, 24-
hours a day seven days a week? Yes, indeed, we will raise
concern about whether we have the financial resources and the
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capacity to deal with it, but 28-years later House
Chairperson, we think that something ought to have been done
in order to address the challenges many of our people face.
Let me give you the case of the Lambert’s Bay. There’s not
even a day-care hospital, the Chairperson and people have to
rely on going 10,20 or 30 kilometres away. No ambulance
services available and many people are dying as a result of
this.
An initiative of this must be welcome, while we understand
that we may not have the necessary resources. Currently, the
first thing we need to ask how will we be able to introduce
universal health care in South Africa if the issue of
financial resources and the capacity is always going to be the
one in question? I think the time has come when we need to
take more seriously the lives of all people whether they are
rich or poor, black or white, and provide a more quality
healthcare service in the country. Thank you.
Mr S M JAFTA: Thank you, hon Chair. The progressive
realisation of the right of access to primary health care in
our view, constitutionally be achieved in a phased manner,
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subject to available resource. The Constitution itself
delineates this.
This Bill was effectively going to have huge implications for
the balance sheets of the Department of Health. We must remind
members, hon Chair that private Bills bearing financial and
policy implications must be carefully studied. Such Bills must
consider existing policy framework and the strategic objective
of government departments.
While the issue of opening clinics 24-hours is not
unimportant, it must be aligned to other ancillary
considerations in place. In this regard, it is common
knowledge that the National Health Insurance, NHI, is on the
pilot phase and will likely cover these aspects.
We therefore do not share the sentiment that the rejection of
this Bill is inconsistent with primary health care. We know
that it may be tempting to sponsor private Bills with the view
to achieve in certain political gains, but this must be
informed by empirical evidence. We support this report, hon
Chair.
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Dr K L JACOBS: Thank you, Chairperson. I will say amen and
more. Thank you very much from the DA. Chairperson, we thank
the members of the political parties who came to give their
views and we also want to thank those who are supporting this
report.
We do understand that there is an urgency for our people to be
able to receive healthcare whenever it is needed. But we also
need to understand that there are different tiers of
healthcare, just to talk to what hon Shaik-Emam was speaking
about.
There is a situation where somebody needs emergency medical
care, then we have facilities for their type of care. It is
not a primary healthcare challenge for you then having to
access a clinic at that point in time. You go to the relevant
hospital which could either be a district hospital, a regional
hospital or a tertiary hospital for that matter, as you are
then referred up the chain according to the challenge health
challenge which you are experiencing.
We must also be reminded that this Bill at this point in time,
the report by the ANC says that it is not a desirable and by
the committee and we had intense deliberations and it was a
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decision of the committee that it is not desirable at this
time. Notwithstanding the fact that we know that our people do
need access to the health care as put by the hon member of the
EFF wanting to portray the ANC as being an organization that
does not want people to have access to the healthcare.
It is through the systems which we have in place where our
people know where they are able to access healthcare that we
want people to understand that due to the nature of the
illness which you present with at that point in time you are
to access the health care that is provided for you. Thank you
very much chairperson, the ANC stands to that report.
Mr B A RADEBE moved: That the Report be adopted.
Motion agreed to.
Report accordingly adopted.
NATIONAL HEALTH AMENDMENT BILL
(Second Reading debate)
Question put.
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There was no debate.
Bill not read a second time (Economic Freedom Fighters
dissenting).
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON CO-OPERATIVE
GOVERNANCE AND TRADITIONAL AFFAIRS ON DISASTER MANAGEMENT
AMENDMENT BILL
Mr F D XASA: Thank you, hon Chairperson, hon members, the Co-
operative Governance and Traditional Affairs has convened
several meetings to receive briefings and deliberate on a
proposed Disaster Management Amendment Bill. This was a
private members’ Bill sponsored by Dr P J Groenewald of the
FFPlus. The Bill aimed to constrain the perceived power of the
executive in relation to the duration of a state of disaster
by means of affording Parliament, provincial legislatures and
municipal councils. The explosive power to extend the duration
of national, provincial and local state of disaster
respectively as well as allow for the legislatures to exercise
greater oversight in respect of the management of disasters.
The portfolio committee resolved to invite public comment on
the proposed Bill before deciding on its motion of
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desirability. A call for submissions was open from 19 July to
26 of August 2021 to afford entrusted persons and institutions
a period of at least three weeks to comment on the proposed
legislation. Virtual public hearings were also convened to
receive oral inputs on the written submissions as some
stakeholders had explicitly indicated a preference to meet
with the committee and discuss their proposal with the view to
ensuring a proper understanding of an objective and the intend
of these proposals.
The committee duly complied with this consideration while the
majority of the stakeholders and the minority of the committee
members saw a need for the proposed amendments to the Disaster
Management Act. The majority of committee members did not
agree with the desirability of the proposed Bill. This
disagreement was based mainly on the view that the current
accountability and oversight mechanisms provided in the
Constitution are adequate to address the gaps identified in
the Bill.
Furthermore, allowing the legislatures to encroach on the
executive functions, including the declaration and the
extension of the state of disaster and the making of
regulations pursuant to such declaration would amount to a
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violation of the principle of separation of powers between the
arms of state. As a matter of fact, Parliament has delegated
regulation making powers to the executive. However, the
portfolio committee wishes to thank Dr Groenewald for the
extensive work involved in drafting and introducing the
private members’ Bill and assure him that his efforts were not
fruitless and that the inputs of stakeholders were not in vain
as they contribute meaningfully and generate more debate
around the declaration of state of disaster and the regulation
made under ...[Inaudible.] such debate is encouraged as it may
promote reasonableness and rationality in the management of
disaster. Thank you very much, Chairperson.
Mr C BRINK: There we go, it’s my first time here. Chairperson,
the report before us is not just about the COVID-19 pandemic,
it’s about the abuse of power under the guise of necessity,
and what Parliament can do to stop it. The majority of public
submissions received by the portfolio committee were in favour
of subjecting of government power to a state of disaster, to
more constraints in amending the Act. The excuses offered by
the Minister and officials as to why this cannot happen, don’t
make sense. The ANC has clearly not learnt the lessons of
COVID-19.
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They are still in denial about harm done to the people of
South Africa by the COVID-19 lockdown. Many of the jobs that
were lost, the businesses that were never reopened, the
setbacks in teaching and learning, weren’t the matter of
necessity, that’s because of incompetence of the decision
makers, because the people in power didn’t want to listen or
learn, and because they didn’t care to explain themselves to
the public. Just how government used the Disaster Management
Act to override Parliament’s law-making function and oversight
function, was not foreseen by Parliament when the Act was
passed 20 years ago.
The Disaster Management Amendment Bill is a sincere attempt to
fix this defect in our law, and it accords with the DA’s case
in a Supreme Court of Appeal against section 27 of the Act.
Consider the anomaly in our law, Chairperson, between
disasters and emergencies. Both the State of Emergency Act and
the Disaster Management Act grants the government
extraordinary power, but only the State of Emergency Act put
parliamentary breaks on the abuse of that extraordinary power.
Had an emergency been declared in response to COVID-19, then
the power of government would have been subject to three
important steps.
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First, the declaration would’ve been tabled in Parliament.
This would’ve allowed elected representatives of the people,
in full glare of the public and media to debate the merits of
the COVID-19 lockdown, but by the time that this House debated
it for the first time, all the decisions had already been
made, one of the hardest lockdown in the world. Second, in a
state of emergency, Parliament would’ve had the power to amend
and vote down regulations.
So, instead of having to go to court, to determine that the
cigarette ban was based on faulty scientific evidence, we
could’ve determined that in Parliament, here in Parliament,
that there was more scrutiny than it was applied behind the
closed doors of the so-called, Coronavirus Command Council.
That also applies to many other irrational and unreasonable
decisions. Finally, an extension of a state of emergency
would’ve been subject to the concurrence of Parliament if were
to pass this Private Members’ Amendment Bill, then these
procedural constraints would also apply to a disaster, and
that is a good thing, we need that.
The argument that such restrictions will constrain
government’s ability to manage a disaster, is simply not
accurate. Think of the measures that government could have
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taken that don’t require emergency powers. Procuring the Covid
vaccine, keeping drunk drivers off the roads by policing and
out of the emergency rooms, using PR agencies to convince the
public about the efficacy of the vaccine instead of lining the
pockets of the Health Minister, these don’t require
extraordinary powers.
Also, think of those measures that you require, the
extraordinary powers such as mask mandates. That could’ve been
debated in this Parliament in a matter of weeks, and then
reviewed on a monthly basis. Chairperson, the truth is that
government’s handling of COVID-19 was worse, because they had
too much power, and the same is going to be true of the next
disaster. So, by quashing this Amendment Bill to the Disaster
Management Act as this report review, the ANC confirm that
they’ve learnt nothing, and that they see nothing beyond their
own command and control.
It will now be up to the court to do what Parliament has
failed to do, and to bring the law in line with the
Constitution. The DA does not support this Bill. I thank you.
Mr K CEZA: Chairperson, our Constitution and the laws that
spring from it, imperfect as they are, must be changed when
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there is a view, based on empirical evidence, that these laws
have failed society. What we cannot afford to do is to change
laws on the basis of the incompetence of those currently in
power, because those in power today may not be in power
tomorrow. The frustration by the member of the FF Plus, which
led to him initiating this Private Member’s Bill, emanates
from the gross incompetence of this present government in
dealing with the Coronavirus.
The member alleges that the powers that the Disaster
Management Act granted to the Cabinet member responsible for
the administration of that Act were draconian, and left
Parliament with little room to influence the response. While
we may disagree that the handling of the pandemic by the
Ruling Party was abysmal, we do not agree that this is because
of the powers the laws given to the Cabinet member. It is the
incompetence of the government, and not the undesirability of
the law that led us to the mess we are in today as a result of
the Corona pandemic.
The Act allowed the Minister to take a number of decisions,
and these decisions are reviewable in court. It is not the Act
that forced the Cabinet to ban the sale of hot foods, for
instance, when they first published their disaster management
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regulations, it is the foolishness of those who published
these regulations that made them link the spread of the virus
to the sale of hot foods, or of particular pieces of clothing.
It is not the Act that forced the government to close off many
industries while not taking measures to shield these
industries from the negative effects of these closures, it is
the foolishness and the shortsightedness of those who lead.
We cannot over-legislate the conduct of the Executive, we can
review the decisions they make. We cannot legislate out
foolishness and legislate in wisdom, it is impossible to do
so. Lastly, Chair, the architecture of our constitutional
democracy makes distinction between the functions of the
Executive and those of the legislature. The legislature must
initiate legislation and hold the executive to account, but we
cannot be responsible for taking Executive decisions as
Parliament, as the Bill would have asked us to do so.
This remains the territory of the Executive, ours is to hold
them to account, call out their foolishness, and if needs be,
review unlawfulness of decisions in court. We therefore. are
in full support of the committee recommendation not to go
ahead with this Bill. Thank you very much, Chair.
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Ms S A BUTHELEZI: Hon Chairperson, it is undisputed that the
COVID-19 pandemic had a devastating impact on our economy and
our daily lives. Facing the third year of this pandemic, we
must ask ourselves whether our laws, which were not
necessarily drafted to provide checks and balances for such an
unprecedented event, are aligned with our constitutional
democracy? From the outset, the IFP wishes to state that it
supported the objectives of the Disaster Management Amendment
Bill, which proposes to amend the Disaster Management Act.
The Bill, aimed to amend the duration of a state of disaster
and provide that only the National Assembly, a provincial
legislature or municipal council may resolve to extend the
declaration of a national, provincial or local state of
disaster. We strongly submit that although it is critical that
the Executive be placed in a position to act swiftly in such
unprecedented events, Parliament must be placed in a position
to adequately provide oversight in terms of the Act. This is
not currently the case. Currently, the Minister may, in terms
of section 27 of the Act, extend the national state of
disaster one month at a time, after the initial three months.
This power can be exercised indefinitely by the Minister,
without any input from Parliament. This is not aligned with
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our constitutional democracy, which requires adequate checks
and balances on the Executive. We do not believe that the Bill
would have encroached on the Minister’s role at all. The Bill
provided a necessary draft, which could have been reworked by
the committee to strengthen the Act. Not all provisions of the
Bill had to be accepted as is. For instance, the percentage of
supporting votes required for further extensions, could have
been further deliberated on and reworked.
However, the rejection of the Bill in its entirety, is not
justified. The committee was given a unique opportunity to
strengthen the Act and provide adequate checks and balances on
Executive power. The IFP also shares the sentiment that the
Act was never envisioned to regulate an event of this scale
and nature. Our laws are not set in stone and must reflect the
reality of our circumstances. If we do not grab this
opportunity and strengthen our laws, we may risk abuse of
power at the expense of the people of South Africa. The IFP
does not accept the Portfolio Committee’s Report and rejection
of the Bill. Thank you, Chairperson.
Dr P J GROENEWALD: Hon House Chair, section 92(2) of the
Constitution determines that the Cabinet members are
individually and collectively accountable to Parliament. It’s
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a constitutional obligation, but that doesn’t mean that
Parliament can sit back and wait for the executive to be
accountable. No, the constitutional obligation is on this
House to ensure that the executive is accountable to
Parliament.
The former Speaker, the hon Thandi Modise, at the Zondo
Commission with regard to state capture, apologised to the
people of South Africa for the fact that Parliament did not
hold the executive accountable.
When it comes to the Disaster Management Bill, which I
proposed in this House, at the committee we had a procedure
where we had to vote as far as the desirability is concerned.
The committee majority being the ANC decided to say no, there
is no desirability for such a Bill. It means that the ANC says
that we don’t have the desire to hold the executive
accountable. You didn’t even read the Bill. This Bill proposes
that when it comes to the disaster that the Minister is
accountable to Parliament in the same way as you would have a
state of emergency. Go and do your homework. Don’t come and
sit here and not know what is it all about. [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto): Order.
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Dr P J GROENEWALD: Go and do your homework and you’ll find
that worldwide, other countries don’t have an Act as far as
disasters are concerned. They only have an emergency Act.
That’s the way ... [Inaudible.]
I want to put it clearly that the FFPlus and those who
supported this Bill wanted to fulfil their constitutional
obligation. The ANC is failing the people of South Africa
again. I thank you.
Mr S N SWART: Thank you, House Chairperson, the ACDP, like all
parties, initially supported the hard COVID-19 lockdown
regulations for the reasons given, namely to flatten the curve
and enable public health care facilities to prepare for the
expected COVID-19 pandemic. We all thought it would be short-
lived, understanding the delicate balance that was struck
between saving lives and livelihoods. However, it soon became
apparent that many irrational regulations were having a
devastating impact on the economy, resulting in tens of
thousands of businesses closing, with millions losing their
jobs.
Besides the many irrational lockdown regulations such as that
relating to whether roast chicken could be sold, what type of
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clothes and shoes could be bought, where you could exercise,
worship and pray, there was also the flagrant disregard for
the rights of citizens.
The worst possible abuse occurred early in the lockdown with
the tragic death of Mr Collins Khoza at the hands of security
officials. It is sad that High Court Judge Fabricius had to
restate what should have been obvious, that every citizen is
protected by the Bill of Rights. But he went further to find
that there was a complete lack of trust between the government
on the one hand and society on the other during the lockdown.
This is deeply disturbing, yet Parliament as the elected
representatives had no say over the contents of draconian
disaster management regulations, or the monthly extensions of
the state of disaster for more than two years.
Dr Groenewald’s proposed amendment sought to restrict the
Minister’s powers and to make her more accountable to
Parliament. This is eminently reasonable and supported by the
ACDP.
The argument about the separation of powers is deeply flawed.
In a section 37 state of emergency, which is very similar to
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what was practically experienced under the state of disaster,
Parliament’s permission must be sought for an extension. There
is no reason why Parliament should not similarly have a say on
the extension of the state of disaster.
A court may also decide on the declaration, extension, or any
legislation enacted, or any other action taken, in consequence
of a state of emergency. Yet, astonishingly, government
lawyers in the Collins Khoza case had the audacity to argue
that a court had no function in that matter and ought not to
even hear a case under a state of disaster. Thankfully, this
argument was given short shrift by the judge, but it does
illustrate an arrogant attitude that prevailed at that time.
In many cases, traumatized citizens were even told even by
municipal and traffic police that they had no rights under
lockdown regulations. More than 350 000 citizens were arrested
for minor breaches, and where they paid admission of guilt
fines, now they have criminal records.
The ACDP commends Dr Groenewald in his Bill, and hence we will
not support this report. I thank you.
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Mr B N HERRON: Thank you, House Chair, disasters by nature are
unpredictable and pose existential and unforeseen challenges,
whether they are induced by a pandemic, climate change or
civil unrest, mitigating human suffering and loss requires
agility from those in charge of managing the response.
Across the world from Australia to Canada, the COVID-19
pandemic has seen legislatures tailoring disaster regulations
with the view to better managing future calamities.
South Africa is no exception. Here, as in many other
territories the impacted unprecedented lockdowns were
economically disastrous. Here, as elsewhere, many citizens
held strong views about the appropriateness of some of the
regulations. Not least, due to the manner in which we are
curtailing most of our civil and economic liberties, they seem
to enable the corrupt to flourish.
We don’t all need to agree on everything but it is best not to
have to conduct our disagreements on the manner our response
and recovery while on the teeth of a disaster. We therefore do
our best to lay down some robust frameworks in advance
suitable to managing a broad’s worth of eventualities because
who can tell what the nature of the next disaster will be.
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What we do know is that we don’t want government red tape and
excessive consultation to slow down the ability of the state
at all its levels to respond in a co-ordinated fashion. We
don’t want jurisdictional protocol to inhibit emergency
operations. We don’t want to add another layer of misfortune
to disasters by creating conducive conditions for crooks.
The three most South African disasters; COVID-19, last year’s
attempted insurrection, and the recent flooding in KwaZulu-
Natal demonstrated that there is ample room for improvement in
the Disaster Management Act. We may disagree as politicians
what steps to take when faced with a tsunami, a new virus or
more social unrest, what we should all agree in advance is
that our response is unlikely to be perfect, because disaster
have a way of confounding order and usual logic. We should
agree that our response must evolve as we learn. We have just
learned from COVID-19.
In this context, GOOD accepts how disaster management
legislation needs to be re-examined frequently so that we can
always be as responsive as we can achieve and act informed by
contemporary experience and knowledge by putting better
strategic contingencies, plans in place, we can limit negative
impacts of the next disaster we face. We cannot support knee-
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jerk populist reactions to the implementation of a national
response to unprecedented event.
In the context of the world’s response to COVID-19, South
Africa’s response was neither excessive nor unusual. Errors
were made here and abroad, but these cannot be the basis for
the amendment proposed. The amendments do not enhance our
response to disasters, they intend to inhibit our response.
Thank you.
Mr S M JAFTA: Thank you, House Chairperson, the Disaster
Management Bill that was introduced by hon Groenewald will not
be supported by the AIC. Our opposition is not grounded on the
argument of separation of powers, which the committee raised
in its report. We don’t agree that the doctrine of separation
of powers is implicated.
Still, Parliament’s oversight function is not necessary at
least not on the terms articulated in the Bill. We argue that
executive conduct which goes beyond the scriptures of the
Disaster Management Act, can be challenged on the basis of
rationality. In other words, the courts will have to determine
whether there is a rational connection between the decision to
extend the duration of a state of disaster and a legitimate
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government purpose. That choice does not involve separation of
powers analysis.
On the merits, we don’t believe that the role of Parliament
will be necessary to check executive actions as there are
sufficient guarantees that already exists to foolproof this
process, for instance, Parliament has section 156 powers to
summon anyone before it.
The Minister of Cogta equally accounts to the Portfolio
Committee on Co-operative Governance and the President may,
from time to time, be called upon to respond to questions in
Parliament. Therefore, the rationality ... [Inaudible.] ...
the duration of the state of disaster. We therefore support
report but on different grounds. I thank you.
IsiXhosa:
Mnu G G MPUMZA: Masibulele Sihlalo weNdlu yoWiso-mthetho
yeSizwe.
English:
The ANC reaffirms its support for the National Management
Disaster Act, Act 57 of 2002, which provides for an integrated
and co-ordinated disaster management policy that focuses on
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prevention, reduction of disaster and mitigation of the
severity of the disasters, emergency preparedness, rapid and
effective response to disasters, as well as postdisaster
recovery.
The Act in its current form does invoke the necessary agility
from the state in order to act promptly to disasters. We
locate the importance and the relevance of this Act in the
context of the principles of co-operative governance and
intergovernmental relations outlined by section 41(1) of the
Constitution, wherein provision is made that all spheres of
government and organs of state within each sphere must
preserve peace, national unity and indivisibility of the
Republic, as well as secure the wellbeing of the people of the
Republic.
These fundamental principles outlined in the Constitution
serve as a technical and a moral compass against which to
measure the Disaster Management Act.
During the COVID-19 global pandemic, the Disaster Management
Act provided a framework for government’s well co-ordinate,
streamlined and cogent response to the challenges and
realities presented by the virus, which was spreading rapidly
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and having a negative socioeconomic impact on the rest of
society.
Through the mechanisms provided by the Disaster Management
Act, the state was able to control the spread of the virus and
saved millions of lives and softened the economic blows on the
most vulnerable sections of society.
The state in all its spheres, through the disaster management
centres, was able to streamline resources, eliminate silos,
and worked in a co-ordinated approach in the true spirit of
co-operative governance.
During the pandemic, the challenges of poverty, unemployment
and equality that we have committed to eradicate through the
National Development Plan, NDP, were even more pronounced. One
of the lessons we have drawn from the COVID-19 pandemic is
that in situations of disaster and crisis, the poor and the
vulnerable section of society need protection from the
excesses of the market.
The global trend which can also be observed in society is that
during pandemics, while the poor and the working class
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sections of society lose their jobs and fell into poverty, the
wealthy classes amassed more wealth.
The developmental state has the responsibility to protect the
vulnerable sections of society and this must inform its
approach during the disaster management. The approach to
disaster management intended in the Constitution and
subsequent to the Act is that all sections of society, whether
market or nonmarket stakeholders towards addressing the plight
of those negatively affected. For this to succeed, the state
must ensure a wider consultation.
The Act, in its current form provides for the establishment of
advisory forums at national, provincial and municipal levels,
which may be drawn from the different stakeholders of society,
including organized business, labour, agriculture, traditional
leaders, insurance industry, religious and welfare
organizations. We call upon these forums to broaden their work
on stakeholder consultation to ensure that all critical
sectors are engaged and taken on board during the disaster
management.
Parliament must adopt a heightened oversight approach to
ensure that our intervention during disasters to produce the
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desirable outcomes and further ensure that there is
accountability in the utilization of public funds. We ensure
that government responds to audit opinions and that funds are
recovered wherever they have been mismanaged.
Lastly, the ANC sends its heartfelt condolences to those who
have lost their families, friends and loved ones in the recent
floods in KwaZulu-Natal. We are however encouraged by the fact
that the state has been able to mobilise different sectors of
society to ensure that all hands are on deck in rebuilding the
lives of those communities. Our understanding is that
practical competency begins at the polls and at the execution
level.
As the ANC, we support the report and its recommendations. I
thank you.
Mr B A RADEBE: House Chairperson, on behalf of the Chief Whip
of the Majority Party moved: That the Report be adopted.
Question put.
Motion agreed to (Democratic Alliance, Freedom Front Plus and
African Christian Democratic Party dissenting).
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Report accordingly adopted.
DISASTER MANAGEMENT AMENDMENT BILL
(Second Reading)
There was no debate.
Question put: That the Bill not be read a second time.
Division demanded.
The House divided.
The HOUSE CHAIRPERSON (Ms M G Boroto): Hon members, order! The
Speaker has determined that, in accordance with the Rules, a
manual voting procedure will be used for this division.
Firstly, in establishing the quorum, I just want our
secretariat to make sure that the numbers that they have,
which we get from all the parties that will be voting, are the
same numbers that are confirmed by the information and
communications technology, ICT ... I would request the Table
to confirm that we have a requisite number. Do we? Yes, we
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have a requisite number in the Chamber and also on the virtual
platform to take this decision.
Party Whips will then be given an opportunity to confirm the
number of their members present and indicate if they vote for
or against the question. A member who wishes to abstain or
vote against the party vote may do so by informing the Chair.
Hon members, having confirmed that we have the requisite
quorum, I will now proceed. The question before the House is
that the Disaster Management Amendment Bill not be read a
second time. Voting will now commence. The doors of the
Chamber are locked and those on the virtual platform who are
not in yet will not be allowed to enter the virtual platform
until we have concluded with the voting. Whips can confirm the
number of their members present in the Chamber and on the
virtual platform, and indicate if they vote for or against the
question. I will start with the ANC.
Mr B A RADEBE: Thank you, hon Chairperson of the House. The
ANC has 137 on the virtual platform and 18 in the Good Hope
Chamber. So, it’s a total of 155. The ANC is in support of the
Bill not being read a second time. So, we are ... [Inaudible.]
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The HOUSE CHAIRPERSON (Ms M G Boroto): So you are voting yes.
Mr B A RADEBE: Yes, we are. [Laughter.]
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The DA?
An HON MEMBER: Thank you, House Chair. The DA has 46 members
online and 16 members present in the House, totalling 60. The
DA objects. In other words, it is against the second reading
not being read. To be very clear, we are in favour of the ...
[Inaudible.]
The HOUSE CHAIRPERSON (Ms M G Boroto): Don’t confuse me.
[Laughter.] Don’t try to confuse me. You are voting no. Thank
you. The EFF?
Ms Y N YAKO: Thank you, House Chair. The EFF is in support of
the Bill not being read a second time.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. Did I get
the number from the EFF?
Ms Y N YAKO: We are 24 on the virtual platform.
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The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you very much.
The IFP?
Mr M HLENGWA: Hon House Chairperson, the IFP has four on the
virtual platform and one in the House, and we are voting no.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The FF Plus?
Mr W W WESSELS: Thank you, Chairperson. We are six on the
virtual platform and one in the House, which is a total of
seven, and we are voting against.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The ACDP?
Mr S N SWART: Thank you, House Chair. The ACDP has three on
the virtual platform and we are voting against the question.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The UDM? The
ATM? Good?
Mr B N HERRON: House Chair, there is one of us on the platform
and we vote yes to the question.
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The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The NFP?
Okay. The AIC? Hon Jafta, you have been here. Are you gone?
Okay. Cope? The PAC? Al jama-ah? All these other parties.
Okay. I waited to hear for any party saying we are here, and
nobody is saying we are here. So, hon members, is there any
member who wishes to abstain or vote differently to their
party? Thank you very much. The voting session is now closed.
Hon members, you ... pardon us. You know the manual way of
working and the issue of abstentions. Remember, we take all
those who did not respond as abstentions, neither yes or no.
So, that was what delayed ... Thank you.
Hon members, we have six abstentions ... those parties. We
have 60 who voted no and then we have 196 who voted yes. The
question is accordingly agreed to and the Bill will not be
read a second time.
An HON MEMBER: Malibongwe!
Mr M HLENGWA: Hon House Chairperson, on a point of order.
The CHIEF WHIP OF THE OPPOSITION: House Chairperson, sorry ...
[Inaudible.]
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The HOUSE CHAIRPERSON (Ms M G Boroto): Okay, I will come to
you, hon Hlengwa. Let me listen to this one.
The CHIEF WHIP OF THE OPPOSITION: On a point of clarity, Madam
Chairperson. We were voting against the ... [Inaudible.] ...
Bill, right? Correct?
The HOUSE CHAIRPERSON (Ms M G Boroto): Yes, that’s the 60.
The CHIEF WHIP OF THE OPPOSITION: We were not the only ones
and we were 60 in total.
The HOUSE CHAIRPERSON (Ms M G Boroto): No, you said 48.
The CHIEF WHIP OF THE OPPOSITION: [Inaudible.] ... so we were
60 on our own, and the FF Plus and other people voted against
it. So 60 must be an incorrect number. The ACDP voted against
it.
The HOUSE CHAIRPERSON (Ms M G Boroto): I know. I thought it
was 48. However, I hear what you are saying and I will allow
them to check. If it’s possible, we will redo it.
The CHIEF WHIP OF THE OPPOSITION: Okay.
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The HOUSE CHAIRPERSON (Ms M G Boroto): If it’s possible. Hon
Hlengwa?
Mr M HLENGWA: Thank you very much, hon Chairperson. If I may
beg your indulgence. When you put the question on the previous
Order in so far as the report of the Portfolio Committee on
Co-operative Governance and Traditional Affairs ... due to
these technical glitches ... as you may have heard ... hon S A
Buthelezi’s declaration, could you kindly record the objection
of the IFP to that Order please? It was a technical glitch
with the member who was meant to be on the platform. We
apologise in that regard.
The HOUSE CHAIRPERSON (Ms M G Boroto): What is your request,
clearly?
Mr M HLENGWA: That you record the objection of the IFP to that
Order.
The HOUSE CHAIRPERSON (Ms M G Boroto): Which Order? The Order
before this one?
Mr M HLENGWA: Yes, ma’am, if you could please ...
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The HOUSE CHAIRPERSON (Ms M G Boroto): Unfortunately, when we
have passed the Order we don’t go back. If it was something
else, I would agree.
IsiZulu:
Mnu HLENGWA: Ubukhaxakhaxa Sihlalo lobu obusihluphayo.
English:
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you, I am aware.
I am aware. Maybe the issue of a hybrid ... should be highly
considered by you. We do have a member of the IFP in the
House. Maybe that should’ve assisted if the message was sent.
Hon members, you are correct. I can see what they have written
here. The DA was 46 plus 16 which totals 60. Then we also have
another party that also ... yes. So something went wrong with
the calculations there and I’m not going to allow it to go
that way. I believe that we are still logged into the voting
... No, wait please. Don’t disturb me. We are still in the
voting ... and I will really wish to urge that we redo it. All
members ... all parties. Please, let’s redo it because this is
an obvious mistake that was made here. We cannot overlook it.
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Hon members, I will also try to write from my side. Table
Staff, you should write the members in the House and check
whether they vote no of yes. If you can assist me, let’s
forget ... The question is that the Bill not be read a second
time. If you agree with that you simply say yes. If you want
it to be read a second time, like the proposer of this ...
Maybe to put it clearly, the FF Plus will obviously say no,
because that is the recommendation of the committee. I just
want to clarify that, so that we go smoothly. Thank you.
Hon members, I’m going to start again with all of the parties.
Maybe ... and I don’t believe that those that had abstained
will be here. That will show that we are inconsistent.
Mr T M LANGA: Chairperson, I’m just checking on the number of
the participants here. It looks like they are increasing,
meaning that we will have more numbers than before when we
initially voted.
The HOUSE CHAIRPERSON (Ms M G Boroto): No, we have not opened
the voting ... as yet.
Mr T M LANGA: But the numbers ... [Inaudible.]
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The HOUSE CHAIRPERSON (Ms M G Boroto): If ICT has done that,
it is very wrong.
Mr T M LANGA: Yes, the numbers are increasing now.
The HOUSE CHAIRPERSON (Ms M G Boroto): They are?
Mr T M LANGA: Yes.
The HOUSE CHAIRPERSON (Ms M G Boroto): Can ... Okay, maybe
they thought the meeting was over. Let us look into this now
and say that this is the beginning of the voting session, to
cut matters. Please don’t open anymore, ICT. Please don’t do
that. We know how the Rules work. We don’t want to fight each
other for the mistakes that you have made. Let’s agree that we
are starting the voting session now. I will go straight to ...
Don’t worry. I will go straight to the parties to record now.
The ANC, please record and tell us how many members are in and
outside. We will verify with ICT whether you are voting yes or
no. Don’t come with another language please. Let’s speak the
language that we all understand.
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In terms of Rule 117(1) the presiding officer, House
Chairperson Ms M G Boroto, directed that the initial division
be disregarded and that the division be repeated.
Mr B A RADEBE: Thank you, House Chair. The ANC has 137 on the
virtual platform and 18 in the House. The total is 155 and we
vote in favour of the question. It’s yes!
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. [Inaudible.]
... hon member. Please, let’s do ... Let’s be ... Yes?
The CHIEF WHIP OF THE OPPOSITION: Ma Boroto, the DA has
46 members online and 16 in the House, which gives us a total
of 60 members who vote no.
The HOUSE CHAIRPERSON (Ms M G Boroto): Understood. We now
proceed to the EFF.
Ms Y N YAKO: Thank you, House Chair. The EFF has 25 members on
the virtual platform and we vote yes for the Bill not to be
read a second time.
The HOUSE CHAIRPERSON (Ms M G Boroto): Okay, thank you. The
IFP?
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Mr M HLENGWA: Hon House Chairperson, the IFP has five on the
virtual platform and one in the House, and we vote no.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. Members,
please be quiet. We must not get this wrong again. The
secretariat here must be able to hear what is being said.
Thank you, IFP. FF Plus?
Mr W W WESSELS: Thank you, Chairperson. We are six on the
virtual platform and one in the House, which makes seven and
we vote no.
The HOUSE CHAIRPERSON (Ms M G Boroto): Thank you. The ACDP?
Mr S N SWART: House Chair, we indicated earlier three on the
virtual platform voting no. We have a fourth member who has
now joined so we have four members. So, we are not sure how we
should vote. However, I have given an indication that we are
now four on the virtual platform voting no.
The HOUSE CHAIRPERSON (Ms M G Boroto): No, it’s fine. We will
record that four. The UDM did not participate and the ATM did
not participate. Good?
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Mr B N HERRON: House Chairperson, there are now two of us on
the virtual platform and we vote yes. Thank you.
The HOUSE CHAIRPERSON (Ms M G Boroto): Yes. No, we agreed to
that. The NFP? No, they did not, hey? The AIC? Baba Jafta was
also not here.
The CHIEF WHIP OF THE OPPOSITION: House Chair, I’m terribly
sorry but I’ve just been informed by my Whip sitting closest
to the back that I gave you the incorrect number. The number
of members in the House is actually 18 members ...
The HOUSE CHAIRPERSON (Ms M G Boroto): You said 16.
The CHIEF WHIP OF THE OPPOSITION: ... so it will be ... I said
16 ... [Inaudible.]
The HOUSE CHAIRPERSON (Ms M G Boroto): That can be corrected
because we can count. No problem.
The CHIEF WHIP OF THE OPPOSITION: I’m terribly sorry about
that. So, we are 62 voting no. I’m terribly sorry.
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The HOUSE CHAIRPERSON (Ms M G Boroto): No problem. That can be
done. The AIC? No. Cope? No. The PAC? No. Al Jama-ah? No. So
those numbers ... Hon members ... Please do not open for
anybody else, ICT. We are waiting now for the results as the
calculations are done.
An HON MEMBER: Sorry ...
Afrikaans:
Die HUISVOORSITTER (Me M G Boroto): Huh-uh, ek gaan nie terug
nie. Sit!
English:
These are the final corrected numbers ... checked with ICT.
There is correspondence with the members on the platform. We
will proceed now with the abstentions. We have seven. There
are 78 who voted no and 182 who voted yes.
[VOTING TAKE IN FROM MINUTES}
Question agreed to.
Bill accordingly not read a second time.
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CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF
AMENDMENT TO THE CONVENTION ON PHYSICAL PROTECTION OF NUCLEAR
MATERIAL
Mr S LUZIPO: Hon House Chair, hon members and interested
parties in the proceedings of Parliament, on behalf of the
Portfolio Committee on Mineral Resources and Energy, I hereby
table to this House the report on the amendment to the
Convention on Physical Protection of Nuclear Material. The
report in the main seeks to introduce before this House a
careful assessment that has been made with regard to
international terrorism, especially where there has been a
loss of innocent lives, and the threat of terrorism has not
declined but rather increased over the past years. Therefore,
this necessitated the call to expand the scope of the
Convention on Physical Protection of Nuclear Material, in
short, the CPPNM.
A shortcoming of the original Convention that was adopted in
1979 and came into effect in 1987 is that its scope of
application was limited to three aspects which are the
physical protection of nuclear material which is used for
peaceful purposes, the criminalisation of offences, these
includes amongst others the theft or robbery of nuclear
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material, it is based on international co-operation, in the
case of theft, robbery or any other unlawful taking of nuclear
material or credible threat thereof.
The amendment of the Convention seeks to fill the existing gap
in the original Convention by measuring sources of new
emerging threats, and therefore map out a possible solution in
the context of the threats in an internationalised or
globalised world. This also being impacted or affected mostly
by the new threat of democratic processes, which amongst
others, is the matter of freedom of movement, the
microeconomic policies which promote trade as well as the
unlimited consequences as a result of large-scale terrorism
nuclear facilities. In other words, the use of nuclear
material for energy generation and medical purposes dominate
the international landscape. The concern therefore is that
nuclear material used for peaceful purposes could, at some
point, fall into the hands of the non-state actors or
terrorist groups who could do harm in society.
The reason why the Convention has to be amended is that it
greatly strengthens the original Convention by adding the
following non-existing new obligations. It broadens the scope
of the CPPNM to also include physical protection requirement
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for nuclear facilities and nuclear material in domestic use,
storage and transport. It seeks to expand the co-operation
between and among states regarding rapid measures to locate
and recover stolen or smuggled nuclear material, mitigate any
radiological consequences of sabotage, prevent and combat
related offenses. It also seeks to provide for the sharing of
information on potential and actual attacks on nuclear
material and facilities and the provision for assistance if
attacks should occur.
Lastly, the amendment recognises the rights of all states to
develop and apply nuclear energy for peaceful purposes in
their legitimate interests in the potential benefit to be
derived from the peaceful application of nuclear. In addition
to these new obligations, the amendment expands the list of
offences that member states are obligated to criminalise as
well as specific provisions to bring to justice those who
commit acts of nuclear theft or smuggling or even sabotage.
This is very important in the context of South Africa where
there is a growing concern in particular with regards to
illegal mining activities, fuel theft and infrastructure
vandalism in strategic centres of our economy.
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There have been wide consultations in terms of the report
received with other departments of interests ... [Time
expired.] Thank you, House Chair.
Declarations of Vote:
Mr K J MILEHAM: House Chairperson, the development and
utilisation of nuclear energy is one of the greatest
achievements of the twentieth century. It has greatly enhanced
the ability of humanity to understand and shape the world, and
it has had a significant impact on the development of
technology and civilisation.
Since its initial exploitation about 80 years ago, nuclear
energy has always promised a brighter future, but it is a
future that it hasn’t always delivered on. Nonetheless, we use
nuclear technology every single day in ways many of us don’t
even realise ... [Interjections.]
The HOUSE CHAIRPERSON (Ms M G Boroto): Hon Chabangu, please
let’s mute. Just mute, hon Makosini Chabangu, please.
Mr K J MILEHAM: Can I proceed, House Chair?
The HOUSE CHAIRPERSON (Ms M G Boroto): Proceed. I see that
your minutes were not stopped there ... [Interjections.]
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Mr K J MILEHAM: House Chairperson, as I was saying,
nonetheless, we use nuclear technology every single day in
ways that many of us do not even realise. From microwave ovens
to x-rays. From radiation treatments for cancer to nuclear
power generation. The downside, however, are the threats of
the nuclear mishap, incidents such as Chernobyl, Three Mile
Island and Fukushima, issues of nuclear security, and then
obviously, environmental contamination.
In 1979 the Convention on the Physical Protection of Nuclear
Material was developed under the auspices of the International
Atomic Energy Association aimed at strengthening the security
of nuclear materials during international transport. It is, to
this day, the only legally binding international undertaking
pertaining to the physical ... [Inaudible.]
Article seven of the original Convention obligates member
states to ensure that offenses such the possession, use or
disposal of nuclear material without authorisation becomes
punishable under member states national law. South Africa
signed that agreement in 1981, but they only ratified in
Parliament in 2007. Following concerns from the 911 attacks in
2001, that nuclear facilities might be targeted and that
threats of nuclear terrorism were on the rise, there was a
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move to address the lacunas in the Convention. So, in 2005 the
Convention was amended by consensus amongst member states, and
various aspects were strengthened, including the requirement
for increased security at nuclear facilities and the expansion
of the scope of the Convention to cover domestic use, storage
and transportation of nuclear materials, all of which had
previously been excluded.
Although South Africa signed that amended Convention in 2016,
it was only presented to Cabinet in September last year. And
now, more than six years later, it is being tabled in
Parliament. Some 17 years after all the member states,
including South Africa, agreed on what was contained in that
amended Convention. This is far too long. Both the various
government departments and the Cabinet need to move more
swiftly in bringing international treaties and conventions to
this House for ratification. Our failure to do so in this case
could have had severe ramifications in a purchase of nuclear
materials from other countries, including such items as fuel
for our various nuclear reactors.
South Africa must uphold and actively promote the ideal of a
safe future for nuclear technology. We need to review our own
legislation to ensure that we adhere to international
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obligations, and that the full force of the law is brought
against those who contravene the provisions of this
Convention. We must be responsible members of the global
community by ensuring that nuclear technology is developed
safely and in a manner that leaves no doubt of our commitment
to securing nuclear facilities, nuclear transport
infrastructure and any nuclear material that arrives on our
shores or are stored or transported within our borders. The
Democratic Alliance supports the ratification of this
Convention. [Applause.]
Mr T M LANGA: Hon Chairperson, the Convention on Physical
Protection of Nuclear Material was adopted in 1979 and seeks
to provide protection against the inappropriate handling of
nuclear material, in order to prevent injuries and loss of
lives that may resulted from poor handling of nuclear
material. South Africa ratified this amendment in 2007,
ensuring that the handling of our own nuclear material is on
par with global standards.
The amendment to the convention seeks to strengthen these
measures on handling and transportation of nuclear material to
prevent waste leakages and ensure safe storage. The reality
however is that South Africa is unable to implement any of
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these conventions. Let us take the example of the Koeberg
Nuclear Power Station, as colleagues report, that Koeberg
generates approximately 500 drums of low-level waste, 150
drums of intermediate-level waste and 32 tonnes of high-level
waste per year. Both low and intermediate-levels waste is
transported from Koeberg to a waste disposal site in Vaalputs
in the Northern Cape, where this waster is buried in shallow
eight-meter deep trenches.
The site was opened without any consultation in 1986 by the
apartheid government, which made sure it was located as far
away as possible from where white people lived. The National
Nuclear Regulator only consulted people who were living close
to the site in 2003. In 1997, the drums were found to have
been leaking for several years, while radioactive dose limits
were exceeded in 2012. The dangers posed by low- and
intermediate-level waste are relatively small compared to the
extreme dangers posed by high-level waste. We cite this
example to demonstrate that South Africa is either incompetent
in terms of handling its nuclear material or there is no
political and technical willingness to ensure that this is
properly handled.
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Our approval of this convention is not going to change our
need for internal capacity, to manage nuclear material. We
further note that the convention, as the only legally binding
treaty on nuclear security should be supported and
strengthened. It should furthermore clearly outline specific
standards for nuclear security, which is not the case
currently. Despite this, we approve the amendments to the
convention. Thank you.
Prof C T MSIMANG: Hon Chair, the purpose of the amendment to
the Convention on Physical Protection of Nuclear Material is,
and I quote, “to achieve and maintain worldwide effective
physical protection of nuclear material and of nuclear
facilities used for peaceful purposes, to prevent and combat
offences relating to such material and facilities worldwide,
as well as to facilitate co-operation among state parties to
those ends”.
When it comes to nuclear, South Africa is glowingly described
by the Nobel Peace Prize Winning organisation, the
international campaign to abolish nuclear weapons, as a
“champion for a world without nuclear weapons”. We cannot
therefore rest on our laurels when it comes the use of nuclear
material for peaceful purposes, such as energy generation.
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As the IFP, we share the committee’s concerns over the fact
that this amendment came into force in May 2016, yet, here we
are six years later and South Africa has not ratified it. We
have made gains in international fora and are considered world
leaders, we should be working to maintain such reputation.
Further, it is widely known that nuclear materials and
facilities, if not managed correctly, can be manipulated, so
as to inflict grievous harm upon the population. Therefore,
this amendment is not only necessary, but welcomed.
We note, and I quote: “The department has authorised 274
companies to trade nuclear material in this country and
abroad.” Further, it committed to provide inspectors to visit
these companies on a quarterly basis. These measures were
instituted, and I quote, “to ensure that companies met the
International Atomic Energy Agency, IAEA’s, standards for the
physical protection of nuclear material”. The department
stated that it, “would compile a report that illustrated the
state of compliance of each nuclear company with ... [Time
expired.] I thank you.
Afrikaans:
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Dr W J BOSHOFF: Agb Huisvoorsitter, kernkrag is sedert die
ontstaan daarvan omstrede. Die meeste mense het vir die eerste
keer daarvan gehoor toe twee atoombomme die Japanese stede,
Hiroshima en Nagasaki, vernietig het en daarmee ook die Tweede
Wêreld Oorlog beëindig het.
Behalwe dat oorloë skielik gevaarliker was, het die vreedsame
moontlikhede verbeeldings aangegryp. As al daardie energie op
’n beheerde wys vrygestel kon word, dalk kon elektrisiteit te
goedkoop word om te meet. In Suid-Afrika het ons voor in
hierdie ry gestaan.
Terwyl die kernmoonthede die land nie met die nodige inligting
vertrou het nie, is oorspronklike werk by Pelindaba en
Valindaba buite Pretoria gedoen.
Vreedsame en nie-vreedsame gebruike van kernkrag is nooit te
ver van mekaar nie. Suid-Afrika kon bewys dat Iran verryk is
en kernkrag vreedsaam gebruik is, maar met die oorgang van
1994 is uiteindelik erken dat die land ook oor atoombomme
beskik het, wat dit self ontwikkel en gebou het.
Oud-president De Klerk het wel kans gesien om eerloos oor te
gee, maar nie om sulke wapens in die hande van sy opvolgers te
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laat nie, of dalk was hy bang vir ’n guiselaarsituasie van
teenstaanders vanuit eie geledere.
Intussen is Koeberg, Suid-Afrika se enigste kernkragsentrale,
voor voltooiing in 1982 suksesvol deur die ANC se militêre
vleuel aangeval, terwyl Greenpeace in 2002 daarin geslaag het
om baniere aan die gebou te hang. In 2005 was daar die berugte
moer in die reaktor voorval, wat Kaapstad in die duister
gelaat het.
English:
Nuclear facilities are clearly not invincible. At Koeberg, the
high-grade nuclear waste is stored on site, the same site
violated in 1981 and 2002. The fact that spent nuclear waste
remains hazardous for centuries is widely known.
Maybe, fewer people know that spent nuclear waste leaving an
electricity generating reactor, is more useful for building an
atomic bomb than when it entered. What it means is that people
with the requisite knowledge and skills who want to ...
[Inaudible.] ... for a number of centuries, do not need to
manufacture nuclear material, they will only have to steal
what has been manufactured before.
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This is particularly relevant when people who had been trained
in this field become alienated from the state or its
government. It is therefore clear that this convention, which
South Africa had already signed in 1981 for the first time, is
essential.
The amendments considered today extend protection to not only
the material, as it is transported within and between
countries but also the facilities itself. International co-
operation in combating theft and misuse of nuclear material is
also strengthened by the amendments.
Afrikaans:
Die VF Plus ondersteun dus hierdie verslag. Baie dankie.
Mr S N SWART: House Chair, the ACDP supports the approval of
the amendment on the Convention on Physical Protection of
Nuclear Material and we support this report.
Mr N L S KWANKWA: House Chairperson, we support the amendment.
Thank you very much.
Mr M G MAHLAULE: Hon House Chairperson, the report on the
Amendment to the Convention on Physical Protection and Nuclear
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Material that the ANC fully supports, seeks to dispel two
dominant myths. The first myth is that the end of the Cold War
between the USSR and the West marks the beginning of a
peaceful international environment, thereby suggesting that
fear as well as enmity have dissipated, and that the United
Nations Security Council deserves enormous credit for having
recovered all the technical nuclear weapons across the world.
The second myth is that the repeat of the 9/11 attack is
impossible because the current international system promotes
the peace dividend where there is less international tensions
and nations are thus encouraged to reduce their spending on
the military intended to protect their borders against lawless
neighbours.
The reality is that the persistent notion that nations should
reduce their military spending due specifically to the easing
of international tensions is misplaced, as the case of the
conflict between Russia and the neighbour Ukraine proves.
Moreover, there is a growing concern that in the acquisition
of nuclear material, to make nuclear weapons by nations that
have agreed not to do so, or by nonstate actors or even by
terrorist groups and that such nations, nonstate actors and
terrorists groups have undoubted capacities to reach the South
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African border with long-range missiles, carrying nuclear
weapons suggests that effective measures against these threats
should be implemented by all means necessary.
This presupposes that South Africa’s international security is
not guaranteed. In order to facilitate further successes, in
guaranteeing South Africa’s international security, the
amendment to the Convention on Physical Protection of Nuclear
Material should be adopted and subsequently ratified, as it
seeks to ensure physical protection of nuclear weapons during
the international transport, enhancement of co-operation in
protection and recovery of stolen nuclear material, as well as
the criminalisation of offences such as theft or robbery of
nuclear material.
This is particularly important for a number reasons. Firstly,
the adoption and ratification of the convention will
compliment Priority seven of the Midterm Strategic Framework
2019-24 of the ANC-led government, aimed at establishing a
better Africa for all, in the hope of promoting regional,
global integration and improved peace, security and stability
on the African continent.
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Moreover, by adhering to the convention, South African
reaffirms its commitment to maintaining peace in the SADC
region, as well as fulfilling its transformation objective of
turning the region into a deep nuclearized zone for all. For
instance, the insurgence attacks linked to the Islamic states
in Mozambique’s northernmost province of Cabo Delgado since
October 2017, pose a threat to nuclear material and
radioactive sources, as the insurgents may get access to these
sources and utilise them to accelerate the attacks.
The co-operation between the Republics of South Africa and
Mozambique, in line with the convention, will greatly be
valued, as enabling the implementation of safety measures, to
mitigate the catastrophic consequences that could result from
insurgents gaining access to nuclear material and radioactive
resources.
Most importantly, such co-operation will enable the Republic
of South Africa to guard its interest in the ... [Inaudible.]
... pipeline that we have just required 75% state. Secondly,
the adoption and the ratification of the convention contribute
to Priority Two of the midterm strategic framework 2019-24 of
the ANC-led government, aimed at achieving economic
transformation and job creation ,as well as securing supply of
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energy, in particular the Koeberg Nuclear Power Station
Nuclear technology project and the Safari-1 rely on important
nuclear raw materials and equipment, including nuclear fuel
and thus, may not have access to such for operations, should
South Africa fail to adopt and ratify the amendment.
Furthermore, the ANC-led government’s goal of replacing
Safari-1 with the multipurpose reactor, which will create 5
000 direct and 26 000 indirect jobs during its construction,
the building of the central interim storage facility to store
nuclear waste material and the procurement of 2 500 megawatts
of nuclear nubuild may not see the light of day, should the
Republic not accede and amend the convention.
Thirdly, South Africa has some of the busiest ports on the
African continent and beyond like the Port of Durban. This is
the reason why the convention is important, since it
guarantees that nuclear material and radioactive resources
enter and leave the country safely and for the peaceful
purposes.
Perhaps important to this report, the convention will likely
improve the import and export and transit of nuclear material
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and related customs procedures in relation to those
circulating domestically within the country.
It is important to have thorough oversight of the circulation
of nuclear materials in the country’s points of entry and
exit, particularly the railway network and ports, considering
the infrastructure vandalism and theft that are frequent in a
fright transport sector.
What is worrying is that the syndicates responsible for
stealing fuel and vandalising infrastructure are equally
capable of stealing nuclear material for nefarious reasons
that could put the lives of citizens at risk and endanger the
supply of energy to the economy. [Time expired.] Thank you.
Question put.
Amendment to the Convention on Physical Protection of Nuclear
Material accordingly approved.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND
CORRECTIONAL SERVICES ON AMENDMENTS TO REGULATIONS FOR
APPROVAL IN TERMS OF SECTION 97(2) OF THE CHILD JUSTICE ACT,
2008 (ACT 75 OF 2008)
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Mr G MAGWANISHE: Thank you very much, hon House Chairperson.
Hon Ministers and Deputy Ministers and hon members, Amendments
to the Regulations to the Child Justice Act were tabled for
approval on 15 February 2022, and referred to the committee
for consideration and report. It is necessary to amend the
regulations to align them with the changes brought about by
the Child Justice Amendment Act 28 of 2019. The intention is
to promulgate the Amendments Act and the amended regulations
on the same date.
The proposed amendments to the regulations are largely
consequential addressing one, the increase of the minimum age
of criminal capacity from 10 years to 12 years; two, the
retention of the rebuttable presumption for children who are
older than 12 years, but younger than 14; three, the manner of
dealing with a child depending on the age of a child from the
time of arrest to assessment preliminary inquiry and until
that child at the Child Justice Court; four, the removal of
requirements that prosecutors must consider the cognitive
ability of children when determining whether to prosecute a
child; five, that the criminal capacity of the child will only
be addressed during a plea and trial in the Child Justice
Court; and six, prohibiting magistrates from dispensing with a
pre-sentence report where a sentence can be given that
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involves a compulsory residents in a child and youth care
centre or imprisonment.
The committee recommends that the National Assembly approves
the amendments to the regulations in terms of section 97(2) of
the Child Justice Act of 2008. I thank you, House Chairperson.
Declarations of vote made on behalf of the Democratic
Alliance, Economic Freedom Fighters, Inkatha Freedom Party,
Freedom Front Plus, African Christian Democratic Party, United
Democratic Movement, Good, Pan Africanist Congress and African
National Congress.
Declarations of Vote:
Adv G BREYTENBACH: Thank you, hon House Chair. The proposed
amendments to the regulations for Child Justice Act are
largely consequential and were dealt with in details by the
previous speaker. The Child Justice Act 75 of 2008, came into
effect on 1 April 2010. It creates a special mechanisms
processes and procedures for children in conflict with the
law. It introduces a nonprimitive model premise on African
nation’s justice that embrace restorative approaches and
principles of ubuntu in a criminal justice process with the
aim of breaking the cycle of crime. It promotes co-operation
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between government departments, the Department of Justice,
Police, the National Prosecuting Authority, NPA, Legal Aid,
Correctional Services, Social Development, Health and
Education, and civil society.
What it does not deal with any particular details is what
precisely should happen to children younger than 12 years.
Therefore, this is matter that needs to be attended to. The
2021 Interdepartmental and report on implementation of the
Child Justice Act is the eighth annual report submitted in
terms of the Act. In the 2019-20 annual report the report
indicated that the National Intersectoral Committee for child
justice was in the process of developing a five-year
Intersectoral strategic plan for child justice that includes
the implementation plan for the National Policy Framework, and
the recommendations from the research report on the impact of
the Child Justice Act. However, no further international
privacy reported in the 2020-21 annual report, and again this
is major of some concern.
Also deeply concerning how the types of Child Justice
preferred against children awaiting trials. Rape pose the top
charge against children awaiting trial at 22% or 1 024
charges. Rape is a top charge against children age 10 to 16
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years awaiting trial. It is concerning that charges of rape
involved 116 children, age between 10 to 13. A 168 children
aged 14, 213 children aged 15 and 250 children aged 16.
Charges of assault with the intention to grievous bodily harm
contributed to 16% of 751 charges of the total number of
charges against children awaiting trial and murder charges
register 8% or 356. The top charge against children at 17
years was assaulted with intention to grievous bodily harm.
Charges of rape and assault with intention to grievous bodily
harm contributed to 24% of the total charges against children
awaiting trial. No information has given on case backlogs in
respect of Child Justice matters.
Despite the fact that rape was the top charge against children
awaiting trial in the Child Justice Courts that 1 024 charges
of rape, only ... [Inaudible.] ... children were convicted of
this crime. There is low conviction rape may be linked to the
challenges experienced by SA Police Service laboratories
regarding the delay release of the deoxyribonucleic acid, DNA,
reports. The ongoing impact of the delays in the DNA reports
across the criminal justice system is a measure of grave
concern. Considering that the purpose of a Child Justice Act
was to steer children away from the formal criminal justice
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system and the directive in the Constitution that children
should only be detained as measure last resort.
It is concerning that children were sentenced to direct
imprisonment most of the housebreaking with intent to steal
and theft, is a nonviolent economic crime. The
underutilisation of ... [Inaudible.] ... child justice option
may be an indication that the Child Justice Act implementation
is not fully embraced by magistrates. The key challenges in
the management of data and statistics with tracking ...
[Inaudible.] ... leave the criminal justice systems and no
timeframes are provided for the completion of this process. It
will assist greatly if it was a collective approach to risk
management, and if all identified risks and challenges and
responses were listed by stakeholders. It is critical to
remedy any ongoing issues around the effective implementation
of the Act. The regulations, unfortunately, do not and cannot
address this serious concerns and shortcomings. Nevertheless,
the DA supports the report. I thank you.
Ms Y N YAKO: Yes, it is. Thank you, House Chairperson. The EFF
rejected the Child Justice Amendment Bill back in 2019.
Therefore, the regulations we are adopting today emanate
directly from that Amendment Act. As you warn then it is
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important that we take cognisance of a particular context with
which influence and continue to influences the conduct of most
South Africans. This is particularly important when we make
laws that affect children. Many of whom grow up into
dysfunctional families and communities because of the ...
[Inaudible.] ... systems and structures that apartheid and
colonialism designed for African people. It has been reported,
for instance, that there is a racket escalation of a number of
child-headed households in the country. These children are
then more vulnerable to be drawn into criminal activity, drug
abuse and dropping out of school at an early age.
The Child Justice Amendment Bill directly diagnoses the
problem of assigning criminal capacity to children and
increases the age of criminal capacity from 10 to 12 years
old. Well this is welcome is still not sufficient, taking into
account the context with which most South African children are
raised. Reliance on international standards may not find
resonant in the South African context. Criminal capacity means
an appreciation for the wrongfulness of an Act and reconciling
one-self with two that wrongfulness. Therefore, in the
presence of all social ills facing the development of children
in this country can we for certain reconcile ourselves with
the 12-year-old having criminal capacity. Why should we seek
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to criminalise children for failures of the state and society
to provide a good enough foundation for the proper development
these children? This age limit is even below what the United
Nations Committee on the rights of a child are recommended,
even for countries without the burden that we have, that the
United Nations, UN, committee recommended that state should
set at age of criminal capacity at 14 or 16 years of age.
While we support other provisions of the regulations we do
implore on the state to take responsibility for its own
complicity in sustaining criminal activity in society,
particularly that of relation to children. On this basis we
reject these regulations, not ... [Inaudible.] ... should be
judged to have criminal capacity in this country. Thank you.
Mr SINGH: House Chairperson, Prof Msimang, was supposed to
contribute to this report. On consideration of the Report of
the Portfolio Committee on the Amendments to Regulations in
terms of the Child Justice Act of 2008, the IFP supports the
committee’s observations and recommendations.
Regulations by their very nature provide for the technical,
practical detail of provisions of an Act, and it is therefore
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critical that regulations do not delay the operation of an
Act.
Unfortunately, we often see a delay in the publication of
regulations or the failure of a Minister to publish
regulations as the discretionary power is not exercised, which
really hinders the operation of the Act. It is therefore
critical that these regulations must be carefully drafted with
clarity, and should ideally come into operation simultaneously
with the empowering provision in the Act.
As we understand, hon House Chairperson, the Child Justice
Amendment Act of 2019 intends to amend the Child Justice Act
of 2008, to regulate the minimum age of criminal capacity of a
child, the decision to prosecute a child, and to further
regulate the proof of criminal capacity of a child.
The Child Justice Amendment Act of 2019, although assented to,
has not yet come into operation and a date of operation is to
be fixed by the President. It is necessary to accordingly
amend the Regulations published in terms of Section 97(2) of
the Child Justice Act of 2008, to align with the changes
brought by the Child Justice Amendment Act.
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Amendments to the regulations were accordingly tabled in
February 2022, and referred to the portfolio committee. And
the Amendment Act will come into play now with the
regulations. And the IFP agrees with the portfolio committee’s
recommendation, that the National Assembly approves the
amendments to the regulations to the Child Justice Act.
In conclusion, it is vital that these amendments to the
regulations be passed urgently, so as not to delay the
operation of the Amendment Act, which provides critical
amendments to the Child Justice Act. The IFP accepts the
Report. Thank you.
Mr F J MULDER: House Chairperson, criminal justice system for
children who are in conflict with the law and who are accused
from committing offences, is unfortunate they are a given
reality. Children should be treated with special care,
considering the background or upbringing and individual needs
or circumstances. The FF Plus welcomes the consequential
amendment to the regulations.
House Chair, the question however remains, whether the
amendment will be sufficient? The FF Plus will however support
the Bill. Thank you, hon House Chair.
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Mr S N SWART: House Chairperson, the ACDP played a key role in
the drafting of the Child Justice Act which was and is a
ground breaking piece of legislation. And it aims to keep
children out of detention and away from the form of criminal
justice system. Mainly through historical justice measures,
such diversion, where such children do not present a danger to
society.
And it allows that child’s background or upbringing to ne
taken into consideration and ensures that the individual needs
and circumstances of children in conflict with the law are
assessed before a decision is made on how courts dealing with
that child.
It basically gives children a second chance without committed
crimes to prevent their being expose to imprisonment. Where
many cases there that can a rape and abuse into a lifetime of
crime.
Now over the years the provisions of the Act have been applied
with the degree of success. Lessons have been learnt however,
resulting in various amendments, including those passed in
2019, to increase the minimum age of criminal capacity and to
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obtain our rebuttable presumption for children who are old
than 12 years but younger than 14 years.
The regulations that being considered today are largely of
tactical nature which have been dealt with by previous
speakers. But, the Amendment Act has not come into operation
and it is envisaged that the draft regulations will come into
operation on the same day.
Therefore, once Parliament has approved the amendments to the
regulations that commence in that date for the Amendment Act
to be determined. We are also in conclusion to say that
Parliament required approval of these regulations in respect
that it is totally acceptable and in no way that no
infringement of the executive power as well argued earlier in
the rejection of the Disaster Amendment Bill.
In all depends on what the experts regarding the regulations,
but in this case, the Act requires regulations to be tabled
and passed by Parliament before they come into operation. The
ACDP supports this report. I thank you.
Ms W S NEWHOUDT-BRUCHEN: Hon House Chairperson, Members of the
Executive and the legislature, comrades and friends and
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various platforms watching today, good afternoon. The ANC
rises in support of the Child Justice Act of 2008 Amendment of
Regulations.
As we commemorate Youth Month, we remember the sacrifices of
the youth of 1976. The 76 generation led the militant struggle
against the brutal apartheid regime, in a manner and bravery
which remains unparalleled. The young lion’s generation, made
South Africa ungovernable. And, incubated energy to the
struggle for liberation, leaving the apartheid regime with no
option but to negotiate. We salute their bravery and courage.
House Chairperson, the Child Justice Act 75 of 2008, seeks to
establish a criminal justice system for children who are in
conflict with the law and are accused of committing offences
in accordance with the values underpinning the Constitution
and the international obligations of the Republic.
Among others, this Act seeks to provide a mechanism for
dealing with children who lack criminal capacity outside the
criminal justice system. The changes to the regulations are
intended to ... [Inaudible.] ... in line with the Child
Justice Amendment Act of 2019, which amended the Child Justice
Act of 2008.
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The most important provision of the Amendment Act, is to raise
the minimum age of criminal capacity from 10 to 12 years of
age. The amendments also provide for assessing criminal
capacity at the latest stage. Instead of it being done by the
... [Inaudible.] ... magistrate it would now be done by the
Child Justice Court.
But the director general of health must compile and keep an
annual list of psychiatrists and psychologists who are
prepared to conduct criminal capacity assessment.
The amendment includes the increase of the minimum age of
criminal capacity from the age of 10 to 12. The rebuttal
presumption is retained for children who are older than 12
years but younger than 14.
And then, there are some technical amendments. The manner of
dealing with a child, depending on the age of the child from
the time of arrest to assessment, preliminary inquiry and
until Child Justice Court. The removal of the requirements,
that prosecutors must consider the conflict of ability of the
children, when determining whether or not to prosecute a
child, since they are not to put to do so.
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But, the criminal capacity of a child will only be addressed
during a key and trail in Child Justice Court and not during
the preliminary inquiry and for the diversion purposes. And,
to prohibit a magistrate to dispense with a presentence
report, where the court may impose a sentence involving
compulsory resonance in a child and youth care centre or
imprisonment.
House Chairperson,
Our children are the rock on which our future will be
built, our greatest asset as a nation. They will be
leaders of our country, the creators of our national
wealth, who care for and protect our people.
and this a quote from President Mandela on 3 June 1995. I
thank you House Chairperson. [Applause.]
Mr B A RADEBE: Hon House Chairperson, I move that the Report
be adopted.
Motion agreed to
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CONSIDERATION OF REQUEST FOR APPROVAL OF AFRICAN CHARTER ON
STATISTICS IN TERMS OF SECTION 231(2) OF CONSTITUTION, 1996
REPORT OF PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND
ADMINISTRATION
Mr T H JAMES: House Chair, hon members, the African Charter on
Statistics was adopted at the 11th Ordinary Session of the
Assembly of Heads of State and Government of the African Union
in Addis Ababa, Ethiopia on 03 February 2009. The purpose of
this ground-breaking and elaborative work by the Executive
Council of the African Union to request the development of the
common Charter was to address the huge policy gaps regarding
reliable statistics. There are still glaring policy gaps that
exist between the supply and demand for reliable statistical
information to integrate the African agenda for common
challenges and solutions and address them. As a consequence,
of this challenge, the need to endorse the Charter was
addressed which led to the adoption of the Strategy for the
Harmonisation of Statistics in Africa.
The intention of the parties to this Charter’s statistical
methodologies and processes used to gather such statistics
should be congruent to the member states’ statistical
legislation or any legislation of that particular state. It
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does not mean that methodologies and processes should at all
costs be similar in all the states. We are aware that
statistical methodologies processes should conform to the
benchmarked standards of collective reliability and authentic
statistics. This serves to ensure that statistics play a
crucial role for governments in Africa to understand the
performance of the economy and the gross domestic product’s
growth and or stagnancy.
Statistics help governments to determine whether or not the
labour market caters for the demands of the economy as well as
whether or not all elements of the planning system are helping
towards addressing the demands of populations and societies.
Reliable statistics help governments to fully understand the
extent to which the planning and allocated budgets cater for
the needs of their people. Hence statistics cannot be
engineered but they must be real so that real, not imagined,
challenges are addressed. For Africa to solicit and receive
real financial aid where required, her statistical gathering
methods and processes must be internationally benchmarked and
must conform to international standards.
The process to adopt the African Charter on Statistics was
approved by Cabinet on 09 September 2015 and the memo
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initiating the finalisation of this process was approved on 03
May 2019. Statistics South Africa obtained an opinion of the
state law advisors on the Charter’s consistency with the
domestic law. The Department of International Relations and
Co-operation supported the signing and ratification of this
Charter. Therefore, the request for the tabling of the African
Charter on Statistics, its signing and deposing with the
African Union must be done in terms of section 231(4) of the
South African Constitution, so as to conform with
international law provisions.
It is this light of this due consideration of these
benchmarked principles of international law and provision of
our Constitution that the National Assembly considers signing
and ratifying the African Charter on Statistics, which is,
therefore, my subsequent submission to this national esteemed
House to duly do so on behalf of South Africa as a country and
nation. May this House ratify and sign the African Charter on
Statistics. I so submit, House Chair. Thank you very much.
Declarations of Vote:
Mr Z N MBHELE: The African Charter on Statistics was adopted
by the African Union for the purpose of having a framework for
addressing the huge gaps that still exist on the continent
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between the supply and demand for statistical information that
is needed for socioeconomic developments and the African
integration agenda. As I stated during the Statistics SA
Budget Vote debate three weeks ago, ongoing changes in our
economic and social realities continually exert pressing
demand for useful statistical information that helps
policymakers, businesses and civil society to keep a finger on
the pulse of evolving trends.
In particular, more detailed statistics are needed and they
are required more frequently if policies are to be responsive
and effective. Meeting this increased demand for high-quality
statistics will thus require more innovation, partnership-
building and adequate funding so that we avoid the shambles
that happened with the 2022 Census with its poor planning,
operational delays, glitches with online functionality, under
resourcing and undercounting, especially in the Western Cape.
It is timely and resonant that this Charter should be tabled
before this House a week after we commemorated Africa Day
because it highlights the importance of the link between
statistical research and the aspirations and objectives of the
African Union and its member states to make ours a continent
of peace and prosperity for all. As my colleague, the hon
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Masango said during her Africa Day debate speech on this
podium, we wish to see the problems of hunger, conflicts, and
corruption on the continent be replaced by abundance, peace,
and justice. The key to that transformation is how those
information products promoted by this Charter will shape
government policy decision-making and programmatic action.
As mentioned just now by the hon James, statistics play a
crucial role for governments to understand the performance of
their economies, to help governments determine whether or not
the labour market caters for the needs of the economy, as well
as if all planning elements or addressing the needs of the
poor, the unemployed and the economically excluded. On that
score, the ANC national government is failing dismally,
judging by worsening employment, investments and other
socioeconomic figures. And the latest Quarterly Labour Force
Survey issued this week shows that this governing party has
run out of ideas on growth and jobs.
We are confronted with a pandemic of joblessness, represented
by the millions of chronically unemployed people in these
recent statistics, which urgently propels the need for fresh
economic thinking. Why are these ongoing findings of stubborn
and growing unemployment in South Africa, especially among
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young people, not leading to radical and fundamental reform,
such as scrapping the automatic extension of collective
bargaining council agreements to small and medium enterprises
who do not sign them in the first place, and certainly cannot
afford them? And when will our heart-sinking statistics
finally persuade the government to repeal investment
deterring, growth strangling and job-killing legislation, like
the disastrous and draconian Employment Equity Amendment Bill
currently sitting on the President’s desk.
Because these figures cannot be announced by our statisticians
and then simply ignored to suffer a quiet death suffocating in
cabinet file 13. In simple terms, counting should lead to
caring. I repeat. Counting should lead to a caring response
from the state and the work of crunching the numbers should
result in crushing all obstacles to opportunity, growth and
development. We support this ratification, but Parliament must
now ensure that our accession to this treaty will lead to
action on policy and reform that brings flourishing
employment, entrepreneurship and excellence. I thank you.
[Applause.]
The ACTING CHAIRPERSON (Ms R M M Lesoma): Hon member of the
DA, next to hon ... the second row from the back, I am not too
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sure you are aware that you are the only one with no mask. May
you kindly do the better one. Thank you very much.
Ms R N KOMANE: Chairperson, the African Charter on Statistics
was adopted by the African Union, AU, in 2009 already, and it
entered into force in 2015.
The intentions of the charter are to improve the quality of
the official statistical information available to public
administrations and other activity areas.
It recognizes that this largely depends to a large extend on
effective collaboration between statistical data providers,
producers and users.
The charter also enjoins African governments to efforts
undertaken to enhance the independence and status of
statistics institutes and to secure appropriate stable
financing for statistical activities.
The EFF is in support of the charter. If this were to be taken
seriously by African governments, it would make the work of
integrating African economies much more streamlined and
easier.
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We also urge all African governments to conduct a thorough
audit of the natural resources they have and who has vested
interests in all these resources.
There must be a proper population statistics reflecting levels
of development of income, of poverty and of growth indicators.
We, therefore, support the establishment of the African
Statistical Systems, which, according to the charter, is a
partnership composed of national statistical systems, data
providers, producers and users, statistics research and
training institutes, and statistic coordination bodies, etc.
Statistics units in the regional economical economic
communities, regional statistics organization, regional
training centres, statistics units of continental
organizations and coordination bodies at continental level.
South Africa’s ... [Inaudible] ... must play a pivotal role in
assisting the development of credible statistical data for the
rest of the continent, and that this data must be
scientifically rigorous, free of political manipulation and
paint the true picture of African development across all the
sectors.
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We are, therefore, in support of the charter, Chairperson, and
thank you very much.
Mr N SINGH: Hon Chairperson, the African Charter on Statistics
is an important agreement for charting the development of
Africa in general and South Africa in particular.
Africa’s role and integration in the world has long been
diminished through the poor attention paid to understanding
the people of the continent.
Africa provides the rest of the world with the most precious
and expensive resources. On the other hand, Africa remains one
of the poorest continents in the world. In fact, a study
undertaken in 2017 indicated that a US$134 billion entered the
continent, mainly in the form of loans, foreign investment and
aid. However, some US$193 billion was taken out, mainly in
profits made by foreign companies who are tax dodging and the
cost of adapting to climate change.
Africa was found to suffer a nip deficit of US$58 billion a
year. This, hon Chairperson, presents a problem for us, when
Africa as a continent has been robbed of its wealth, which is
needed for the beneficiation of its people.
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Whilst we share common challenges of development, we also
share the common ills of weak governance, poverty, inequality,
lack of political will and corruption.
Therefore, the importance of statistics in this regard are to
quantify the development needs of each community residing in
Africa. We need to understand what is available to the
continent in terms of resources and how these resources can be
extracted and refined for the development of Gross Domestic
Product, GDP, per country against the needs of their
inhabitants.
In conclusion, in South Africa, for example, our diamonds and
platinum and gold are extracted then sent overseas for
refining and then sold back to us. Why is this still the case?
Government invests billions of rands into education and skill
development, yet we rely on other countries to sell our
refined products back to us. This must be addressed with the
use of statistical data in order to benefit the development of
South Africa and Africa.
The IFP supports the request for this approval. Thank you,
Chair.
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Mr W M THRING: Hon House Chairperson, the ACDP acknowledges
that statistical knowledge helps governments use the proper
methods to collect data, employ the correct analysis and
effectively present the results.
Statistics is a crucial process behind how we make discoveries
in science, making decisions based on data and enables us to
make predictions.
Furthermore, the ACDP is aware that the African Charter on
Statistics is guided by Member States’ unambiguous and shared
vision on the Treaty Establishing the African Economic
Community adopted in Abuja, Nigeria, in 1991, with the aim of
promoting economic, social, cultural and self-sustained
development, as well as integration of African economies.
Jean Ping, the former president of the United Nations General
Assembly said:
The use of harmonized and reliable statistics in all fields
of political, social, economic and cultural activity is
recommended for the monitoring of the implementation of the
ongoing integration process in the continent on which
African States embarked several years back.
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Although there has been significant progress in Africa’s
statistical system over the last few years with the advent of
several initiatives, it should be pointed out that there is an
immense gap between the supply and demand for statistical
information needed for development and for the African
integration process. For the moment, quality statistical data
produced by the African statistical system is virtually
inexistent.
Mr Ping further stated: It is to remedy this shortfall, which
is a setback to Africa’s integration and development
processes, that the decision-making organs of the African
Union took the historic step to call for the elaboration of an
African Charter on Statistics, which will serve not only as a
legal instrument to regulate statistical activity but also as
a tool for advocacy and the development of statistics in
Africa.
Hon House Chairperson, in supporting the recommendation in
this report, the ACDP asserts that of all the challenges
Africa faces, the number 1 challenge is a challenge of poor
leadership. Like South Africa, Africa is not without moral,
ethical, upright and intelligent servant leaders. The African
electorate must learn to choose these leaders, rather than the
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corrupt, immoral, self-serving leaders of political parties.
The African Charter or Statistics has the potential to assist
the electorate in making these wise and informed choices. I
thank you.
Ms T MGWEBA: Hon House Chair, hon members, as government and a
member state of the African Union we are aware of the
decisions and new policy guidelines of the African Union for
accelerating Africa’s integration process and the commitments
to implement development programmes and combat poverty should
be based on clear evidence and, therefore, require a robust
statistical data system which provide reliable, comprehensive
and harmonised statistical information on the continent.
We recognize that statistical information is vital for
decision-making by all components of the society, particularly
policy makers as well as economic and social players, and is,
therefore, essential for the continent’s integration and
sustainable development.
In agreeing with this charter, as the ANC, we are adamant in
bringing about societal transformation in the country and we
also support the development of the African continent.
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We are thus aware of the need to enhance coordination and
statistical activities in the continent.
As the ANC we acknowledge that statistical information informs
policy and many organizations such private and public
institution, research institutions, civil society and tertiary
institutions largely rely on the credibility of statistics
produced by the Stats SA.
We also note and recognize that quality official statistics
demands professional and adequate technical skills and
capacity and respect for the fundamental principles of
official statistics, professional ethics and good practices.
The ANC aligns itself with the objectives of the charter,
which is to address gaps between the supply and demand of
statistical information needed for the development and
attainment of the African integration agenda.
It is important that statistics should be based on empirical
evidence and that part of the charter’s objective to serve as
policy framework for statistics development in Africa,
especially the production, the management and dissemination of
statistical data, and information at national, regional and
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continental levels to promote adherence to fundamental
principles of production, storage, management dissemination
and use of statistical information in the African continent.
Through the provision of credible statistics in Africa, we are
adamant that this ratification will assist Africa in driving
our African agenda towards 2063 of an inclusive sustainable
development and a contrict manifestation of the Pan-African
drive for unity, self-determination, freedom, progress and
collective prosperity pursued under Pan-Africanism and African
renaissance.
We hope that this charter will also assist in attaining
inclusive and sustainable economic growth and development of
the African heads of state and governments at large.
At home we acknowledge Statistics SA as a critical
organization in the work of building a developmental state
through the collection of data and interpreting it so that it
becomes useful information that guides policy formulation and
implementation.
The ANC, unlike many political parties here and governments,
is committed to driving social transformation through policies
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aimed at eradicating poverty, reducing unemployment and
inequality.
We, therefore, agree to the ratification of the charter and we
adamant that it will drive transformation for Africa to become
more developed.
We hope that the ratification of the charter will help assist
c=the challenges affecting the continent such as poverty,
gender equality, intrastate conflicts, the vast impact of
climate change in the continent and economic development by
taking Africa for =ward in various sectors of economy.
We are pleased to note that Stats SA has undergone the
ratification process and that during the process it has
obtained all relevant legal opinions.
We are adamant that this charter will also assist the nation
in advancing the National Development Plan, NDP, of 2030 as
the ANC moves in support of the African Charter on Statistics
report. I thank you, House Chair. [Applause.]
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CONSIDERATION OF ANNUAL REPORT OF JOINT STANDING COMMITTEE ON
INTELLIGENCE FOR FINACIAL YEAR ENDING 31 MARCH 2020, INCLUDING
PERIOD UP TO DECEMBER 2020
Mr J J MAAKE: Hon House Chairperson, maybe next time you must
start with me because there is load shedding here and I am
using a candle to read my speech. I am introducing the annual
report of the Joint Standing Committee on Intelligence for the
year ending 31 March 2020, including the period up to December
2020. It is only a week ago that we had Budget Vote debate on
the services that we conduct oversight on. I stated in my
speech that we seem to be repeating whatever we said in the
previous years, which means that even if there is some
improvement in the service delivery of departments, the
progress is however very slow. It is always very important to
state the purpose of the Joint Standing Committee on
Intelligence.
The Joint Standing Committee of Intelligence is established in
terms of section 2 of the Intelligence Services Oversight Act
40 of 1994. The purpose of the committee is to perform an
oversight function over the intelligence and
counterintelligence functions of the services, which include
the State Security Agency, the Intelligence Division of the SA
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National Defence Force, that is Defence Intelligence and the
Intelligence Division of the SA Police Service which is known
as Crime Intelligence. The committee hereby presents its
report to the Parliament of the Republic of South Africa in
accordance with section 6 of the aforementioned Acts.
During the year under review, for the start of the Sixth
Parliament, the committee was constituted on 30 October 2019
after a process of undergoing vetting for Top Secret Security
Clearance, which is a statutory requirement. Prior to the
establishment of the committee, an ad hoc committee was
established to process strategic plans, annual performance
plans and budgets of the intelligence services. The five
months’ report was published on 11 November 2020 due to the
impact of COVID-19.
Similarly, the annual report was also impacted by COVID-19.
Maybe it is necessary to explain the process of preparing the
report we are presenting here today. After the committee has
prepared the report, taking into consideration all of its
activities for the reporting year, legislation prescribed that
the report must then be taken to all services and the
President of the country, for them to double-check and add or
delete what they might deem to be threatening the security of
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the state, after which we then submit it for publication by
Parliament.
The committee also deals with, amongst others, the Auditor-
General’s reports of all services, the certificates of all
services prepared by the Office of the Inspector-General of
Intelligence, the Financial Intelligence Centre, the Office
for Interception Centre, OIC, and the interception judge. The
committee will admit that all is not well in the services,
maybe with the exception of the Defence Intelligence.
In their report our predecessor wrote and I quote: “The
committee made a case for the reconstruction of the State
Security Agency, given the many weaknesses within the entity
which the Joint Standing Committee on Intelligence became
aware of. The President in his response indicated that he had
also received a full briefing on those matters and had already
taken a position that it was necessary to rebuild the State
Security Agency. He will therefore sooner, rather than later
appoint a panel of experts to do an exhaustive assessment of
the entity and make recommendations on how the reconstruction
could be designed.”
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It is now public knowledge that this has been done and we are
now on the implementation stage with the committee seriously
worried about its slowness. Our report therefore focusses on
making sure that all the recommendations are speedily
implemented, including those that must be implemented by
Parliament. The report concludes with specific recommendations
for all the services, amongst others, is for the SA Airways,
SAA, that the high level review panel report be implemented
without delay. Those who are implicated in financial
irregularities be reported to the law enforcement agency and
that consequence management be effected. In relation to crime
intelligence, the committee recommended that the vetting
backlog of the ... [Time expired.]
Declarations of vote:
Ms D KOHLER: This is a report for the year before us and that
still leaves the committee activities for the whole of 2021 to
March 2022 as yet unaccounted for before this House. If you
had the opportunity to listen to last week’s budget speeches
you will know that our primary mandate as the Joint Committee
on Statutory Instruments, JCSI, is to perform oversight over
the intelligence and counterintelligence functions of the
three services, the State Security Agency, Defence
Intelligence, DI, and Crime Intelligence, CI.
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We have also ... [Inaudible.] ... amongst others, the Auditor-
General, the Audit and Risk Committee and the Inspector-
General of Intelligence, whose term is now expired with no
replacement in sight. The meetings are closed and no laptops
or phones are allowed into the meeting. So, any handwritten
notes are removed from the meeting room. They have to
acknowledge there will never be leaks from the JSCI, unlike
the veritable torrent of information which hits the headlines
from the SAA, CI and even DI, from either those desperate to
spill the beans or alternatively to bury someone who is about
to spill the beans. Yet the high level review panel report
said that this committee suffered from excessive secrecy,
virtually nothing is released to the media, there are no
updates, total radio is silenced on work done by people who
are paid to do it. Inevitably in gender, especially in
relation to our activities.
Since the start of this five-year term this committee after a
very long wait for our vetting to be completed. I finally
found it fit to announce it sometimes three or four times a
week, unlike previous terms where we had a single chairperson
although bizarrely any illness on his part means everything
just stops. The legislation doesn’t allow for a deputy and
indeed besides that, it’s totally out of date in terms of
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various entities being realigned from the Zuma year
deformities. But all efforts to update the legislation have
seemingly been stonewalled.
One of the major frustrations is that it is extremely
difficult to reach a quorum added to which the actual issues
raised and reported are really dealt with by the departments
and the recommendations detailed in this report seem to be
considered to be of interest rather than instructions from
Parliament. This committee is known mostly for delays and
meetings cancelled without notice, Ministers who have more
things to do than come before the committee, departments that
arrive unprepared and without having sent us documentation,
that is not reflected in this report. I am quite convinced
that this unprofessional behaviour rises from the fact that
there is no media coverage.
We are forced to stay silent about our shabby treatment we so
often receive. This is a situation all committee members spoke
about openly during our budget debates. Some of the long
vacant positions have been filled. Today, a whole
investigation is ongoing into that, especially considering
that some were brought back from suspension and promoted. Once
again it seems that the Minister has overstepped but he has
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gone on to pass his new to so ever we will see zero
consequences. As you can see, the SAA had a key role to play
in cyberspace protection, yet even President’s information has
been compromised, so that hardly fills one with confidence.
The SAA also claims that they will be capacitation of the
economic intelligence unit to be able to play a key role in
economic development. What a success that has been.
There is a shopping list of combating organised crime on how
many kingpins have been jailed. What you will see is that the
SAA was found to be involved in matters outside its mandate.
For example, its involvement in the matter of the Public
Protector pertaining to the Reserve Bank. Again, there were
zero consequences. While we may not appear on the committee
with our Top Secret Security Clearance, there are people
dealing with the most sensitive information in the country,
the thing is that they don’t even come before the committee
with no clearance at all.
This report covers a period before the apocalyptic Russian
invasion of Ukraine but it does touch on the ongoing war in
Mozambique and our role there. We were briefed on Project Veza
in 2020 and criminal action and asset recovery were listed as
priorities. We have yet to see any progress in this regard,
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which, considering the Zondo Commission revelations has one
asking if we will ever see any criminal action or asset
recovery at all.
Ten years on Richard Mdluli has yet to appear in court for a
Crime Intelligence looting. Since the top structure of Crime
Intelligence was unilaterally removed during this time when
head general Jacob was suspended along with five senior
colleagues, not a single criminal charge has been laid. This
entity was guttered pretty much just in time for last year’s
riots. Perhaps the new National Bargaining Council, NBC, can
resurrect something from this conflagration. As for the
mysterious and much suspended and much vindicated Robert
McBride - anyone knows what happened to him? I certainly
don’t. As a surface skimming exercise, this report is what it
is. Thank you.
Dr M Q NDLOZI: House Chairperson, the annual report for the
year under review shows the general inability of the Joint
Standing Committee on Intelligence, JSCI to develop teeth that
truly bites. One must ask two ... [Inaudible.] ... questions;
why would intelligence agencies take the JSCI seriously?
Precisely because it meets in secret. Many who are engaged in
corruption and irregularities within the agencies survive
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without being exposed in full view of citizens and voters. How
much – that’s the second question – has the JSCI done to
subject information they receive about corruption, crime and
irregularities to criminal investigations?
Officials are exposed by the Auditor-General and information
of criminality and corruption is given to this committee. Yet,
a single person has been taken to either the NPA or
investigated by this committee. So the annual report is about
what has committee has done on its duties of oversight? Has it
really developed teeth to the extent that the Constitution
requires Parliament to exercise oversight of the executive.
The committee during lockdown, ... [Inaudible.] ... was
refused basic information trust that must be afforded to
anyone who has been high security clearance and vetting, and
also sworn in front of a High Court Judge. Accordingly, the
country must not accept the explanation by the committee in
the annual report that they could not do its job because of
the lockdown or because of high levels of COVID-19 infections.
That we could not meet virtually on a secure line is totally
false and a serious reflection of backwardness. That we
accepted that explanation to begin with, is a serious
condemnation. It must be condemned by all of us that a
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committee engaged in intelligence could not meet virtually.
Its serious backward reasoning.
However, the report pointed a gloomy picture of our
intelligence agencies. Key amongst which, for example, in the
State Security Agency, SSA the Auditor-General indicates that
no evidence for programme achievements were submitted. Meaning
the State Security Agency makes claims about having achieved
certain programmes without bringing any shred of evidence for
their claims. Annual financial statements were not prepared in
accordance with Public Finance Management Act, PFMA. No steps
were taken to prevent wasteful and fruitless expenditure. They
claim that there is consequence management but they provide no
single shred of evidence for any of these claims.
Above all, no approved standards to guide collections storage
and verification of performance information. The Auditor-
General also points, in relation to crime intelligence which
also received a qualified audit that its goods and services
are understated, compensation of employees is understated,
operation leases are overstated by tens of millions of rands.
Office of the Inspector Judge, for instance, indicates that
State Security Agency only applied for only 61 communication
interceptions compared to 622 by crime intelligence. This tell
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you that SSA is a bunch of incompetent liars who could not
even be honest by their interception activities.
In this financial year that is under review, without any of
these challenges being fixed, the JCSI approved APPs and have
allocated more funds to the SSA and crime intelligence. These
intelligence agencies are no more that catch cow for corrupt
officials and politicians without the actual job of
intelligence being done for the protection of the country in
terms of national security or to combat crime with regards to
organised gangs. The JSCI remains generally toothless. They
make no brave moves and there are no steps to civilised
services. The report also does not detail how, even steps to
hold SSA and crime intelligence officials and defence
intelligence officials who deliberately misled the committee.
The ACTING CHAIRPERSON (Ms R M M Lesoma): Thank you, hon
member. Hon member your time is up.
Dr M Q NDLOZI: We are ... [Inaudible.] ... by this committee
and the Chairperson stopping any form of investigation. We
reject this report because the JSCI is incompetent.
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The ACTING CHAIRPERSON (Ms R M M Lesoma): Can we switch off
hon Ndlozi’s mic because his time up.
Dr M Q NDLOZI: The JSCI is not doing any of its duties. So we
must reject this report as the EFF. Thank you.
The ACTING CHAIRPERSON (Ms R M M Lesoma): Hon Ndlozi, I am
sure you know what is right. Don’t repeat it again in any near
future, please.
Dr M Q NDLOZI: Hai! You can’t tell me what to repeat and not
to repeat. I will repeat it again.
Mr N SINGH: House Chairperson, I think if there is any
department that has ghost employees, this department will
qualify. It will be number one there, because a number of them
are paid but you don’t see them – you don’t hear them. And
they all hide under the guise of being intelligence officers
and you don’t know who they are and we don’t even get
appropriate reports from intelligence. I am saying this from
my own practical experience of people having been paid and
doing nothing within the department of intelligence but it’s
not supposed to be that way. Taxpayers money must be accounted
for.
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Our intelligence services are barely functional in terms of
their mandate, which is to provide the government with
intelligence on domestic and foreign threats or potential
threats to national stability, the constitutional order and
the safety and wellbeing of our people. In fact, in some
instances it can be said that they actively work against their
mandate and this is because state security has become
politicised and weaponised against those who oppose the rule
of law and constitutional democracy in our country.
Chairperson, we have terror threats looming on our borders. We
hear allegations of terrorist organisations in neighbouring
countries and elsewhere in the continent being funded from
within South Africa. These are real threats to the rule of law
and constitutional order in this country. And, this is one of
the key areas of focus where state security should be
deploying resources and not settling political scores. Given
the highly sensitive nature of the mandate and information
dealt by the SSA, it is almost impossible for absolute
oversight of the intelligent services.
I don’t serve in this committee because I am not intelligent
enough, I suppose, but from what I hear from those who serve
in this committee, they tell us that. This is precisely why it
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is necessary to have an Inspector General of Intelligence who
reports to the JSCI and the President as required in the
Constitution in terms of the Intelligence Service Oversight
Act. The JSCI will only be as strong as the Inspector General
that reports to it. This position must be filled as a matter
of priority.
It is further imperative that the office of the Inspector
General of Intelligence be capacitated in terms of what human
and financial resources, as well as being independent from the
SSA, which currently supplies it with IT equipment. The SAPS
Crime Intelligence is still faced with inadequate budget which
directly translates to operational hindrances. This includes
the maintenance of CI capability that includes their
recruitment infiltration, handling and support of informal
police agents, co-workers and contacts. Greater budget must be
... [Inaudible.] ... In conclusion, we support the report, its
findings and recommendations. Thank you.
Mr S N SWART: Hon House Chairperson, the ACDP will support
this report. Just to say that the High Level Panel on July’s
rioting make a really severe indictment about the failure of
the reliable intelligence and made the recommendations that
the urgent need to implement the recommendations of the High
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Level Review Panel on State Security Agency and those
recommendations being implemented possibly the unrest and the
tragic loss of life could have been avoided. However, clearly
this report deals with the prior period in 31 March 2020 and
we appreciate concerns that have been expressed by other
parties in this regard. However, we will support this report.
I thank you.
Mr B M HADEBE: Hon House Chairperson, section 199 of the
Constitution provides that security services must be
structured and regulated by the national legislation. The
above section further stipulates that to give effect to the
principles of transparency and accountability, multiparty
parliamentary committee must have oversight of all security
services in the manner determined by the national legislation
or rules on order of Parliament. In this regard, the
Intelligence Services Act was promulgated to give effect to
the constitutional imperatives contained under this section.
Section 2(1) therefore creates a Joint Standing Committee on
Intelligence whose mandate is to oversee and perform oversight
function set out in this Act in relation to the intelligence
and counter-intelligence function of the services which
includes administration, financial management and expenditure
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of services. Hon House Chair, by services we refer to State
Security Agency, crime intelligence and defence intelligence.
In terms of section 2(1b) of the committee, we must report to
Parliament on administrative, financial management and
expenditure of services. This must be read in conjunction with
section 3(a) which empowers the committee to obtain the
following types of report and report to Parliament: an audit
report compiled by the Auditor-General in terms of section 22
of the Public Audit Act, any public report issued by the
financial statement of the services and any report issued by
the Auditor-General on the affairs of the service.
Hon Chair, following its establishment on October in 2019, the
committee was ceased with activities relating to the reform
and services to ensure good governance, accountability and
transparency. Therefore, the context of the work done in
2019/2020 for the State Security Agency was informed by the
findings of the High Level Review Panel. The newly constituted
committee had found itself needing to oversee the
recommendations made in this panel report.
This included but not limited to the legislation and policy
review. The committee had raised serious concern about the
lack of the review of the White Paper on Intelligence since
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1995 on instability, vacancies and vetting of senior
management. The committee discovered that senior positions at
the State Security Agency were occupied by acting
appointments. Since 2018, there was no permanent director-
general. Vetting backlog was a challenge. At the time, no
timeframe was provided on the process relating to the
President’s instruction on the separation of the State
Security Agency. Similarly, the committee was concerned with
the audited financial statement on crime intelligence,
specifically, the lack of sufficient evidence provided for the
achieved targets in relation to the annual performance plan,
APP.
The crime intelligence did not ensure that irregular
expenditure on sensitive projects were avoided. Some of the
deviations were not approved by the Treasury. Hon House Chair,
in the case of the defence intelligence the committee found
out that Rica Judgement was impacting negatively on the
defence intelligence regarding to bulk surveillance and human
resource challenges were identified there.
In an attempt to play our meaningful oversight and effective
role, the committee recommended the following to the services:
that the Rica terms of Judgement and participation on bulk
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surveillance, the Joint Standing Committee on Intelligence
should liaise with the Portfolio Committee on Justice and
Correctional Services in this regard. Subsequently, the
committee also recommended that, and I want you to listen
carefully on this one, all implicated officials when it comes
to irregularities must be reported to law enforcement agency.
Consequence management must be instituted across all three
services. The head of services of intelligent must report all
failures of intelligence to the Office of the Inspector-
General on intelligence. In return, the Inspector-General on
intelligence will monitor progress and report to the committee
on quarterly basis.
Furthermore, we recommended that the High Level Review Panel
recommendations must be implemented without delay. In this
regard, the committee will be briefed on quarterly basis. We
further recommended that all vetting backlogs must be
eradicated as soon as yesterday. The relocation of the State
Security Agency to the Presidency is also another step towards
the right direction in an attempt to strengthen civilian
intelligence environment. This, in our view, will provide the
critical strategic leadership where needed.
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Similarly, in dealing with instabilities, the appointment of
the Ambassador Thembisile Majola as the new director-general
indicates that things are slowly but surely turning towards
better. Now, let us give credit where it is due. If you have
an ability and appetite to criticise and those critics are
conceded and corrected, you must find it within yourself to
give credit where it is due. The fact that you are called an
opposition, it does not mean that your only role is to oppose.
IsiXhosa:
Andazi nyani ukuba kufuneka ndide ndinixelele kangaphi.
English:
Hon Chair, in conclusion, as we enter into the youth month, it
will be a serious injustice on my part if I were to fail to
take this opportunity to salute our fallen martyrs. The young
lions of yesteryears, who took upon themselves and vowed to
make the apartheid regime ungovernable. The generation that
was committed to the attainment of the political freedom in
their lifetime. When they were faced and confronted with
death, they stood firm and remain resolute.
Hon Chair, how can we forget one of our own, when he said
that:
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Tell my people that I love them and that they must continue
the fight, my blood will nourish the tree that will bear
the fruits of freedom, A luta continua.
I speak of Kalushi Mahlangu, Anton Lembede, Mxolisi Majombozi,
A B Mda, Adelaide Tambo, Oliver Tambo, Nelson Rholihlahla
Mandela, the list is endless. Lest we forget their sacrifices
shall remain forever indelible in our hearts. A luta continua!
I thank you. [Applause.]
Mr B A RADEBE: Hon House Chairperson, I move that the report
be adopted.
Question put
Agreed to.
The House adjourned at 17:38
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