Hansard: NA: Unrevised Hansard
House: National Assembly
Date of Meeting: 14 Mar 2024
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Minutes
UNREVISED HANSARD
NATIONAL ASSEMBLY
THURSDAY, 14 MARCH 2024
PROCEEDINGS OF NATIONAL ASSEMBLY
Watch video here: Plenary
The House met at 14:00.
The Acting Speaker Mr C T Frolick took the Chair and requested members to observe a moment of silence for prayer or meditation.
FILLING OF MR M H HOOSEN’S VACNCY BY MR S G VILAKAZI
(Announcement)
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon members, before we proceed with today’s business, I wish to announce that the vacancy which occurred in the National Assembly owing to the resignation of Mr M H Hoosen, has been filled by the nomination of Mr S G Vilakazi, with effect from 8 March 2024.
The member has made and subscribed the oath in the Acting
Speaker’s office.
I welcome you to the National Assembly, hon member.
Mr B A RADEBE: Hon Deputy Speaker, I hereby move on behalf of the Chief Whip of Majority Party that the House revives the Report of the Joint Committee on Ethics and Members’ Interests on the complaint against hon Deputy Minister of Correctional Services, Mr Thabang Makwetla, MP, that was on the Order Paper and which in terms of Rule 351(2) lapsed at the end of the last sitting of the term of the Fifth Parliament, and refers the report back to the committee for further consideration.
Thank you.
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon members, I now put the motion. Are there any objections?
Yes, hon Lotriet!
Dr A LOTRIET: Chairperson, although we do not object, I want to rise in terms of Rule 92(2). This is in terms of procedure. This matter was Announcements, Tablings and Committee Reports, ATCd on 28 March 2019. Now, it’s a full five years to almost to the day that the matter is now revived. Our members who serve on that committee, the Ethics Committee, have no idea about this.
So, the question is: Why now when we, again, about to rise is this matter revived? Thank You.
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon member, I note
that you are not objecting. I’ll come back to your point.
Is there any objections? There’s no objections. It’s agreed
to.
May I address the point that you’ve raised, hon Lotriet. As you are aware at the start of a new Parliament, we usually revive matters from a previous Parliament. The assembly is able to do so by resolution. And the issue of members’ cases who were before the Joint Committee on Ethics but not concluded, has been raised in a number of forums, also outside of Parliament.
The member, himself, has raised concern that as long as the matter is not finalised it taints his reputation.
The rationale is, therefore, that the matter has lapsed. It should again to the Joint Committee on Ethics and for them to report to the House. We do this, rather than a situation where the report comes directly to the House without the members of
that committee having had a chance to look at the matter, given the length of time that has lapsed.
It is, indeed, important, as you have stated, that close attention is to be paid to these matters and reviving them as speedily as possible. Thank you.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON MINERAL RESOURCES AND ENERGY ON ELECTRICITY REGULATION AMENDMENT BILL
Mr B A RADEBE on behalf of the Chief Whip of the Majority Party moved that the Report be adopted.
There was no debate.
Motion agreed to.
Report accordingly adopted.
ELECTRICITY REGULATION AMENDMENT BILL
(Second Reading Debate)
The MINISTER OF MINERAL RESOURCES AND ENERGY: Hon House
Chairperson, Chairperson of the Portfolio Committee on Mineral Resources and Energy, hon Luzipo, hon members in the House.
In 2006, this democratic government passed the Electricity Regulation Act, ERA, to establish a national regulatory framework for electricity supply industry and to provide for licenses and registration as a manner in which generation, transmission, distribution, trading, import and export of electricity are regulated in South Africa.
Since the promulgation of this Act 18 years ago, several developments in the electricity sector necessitated development, necessitated fundamental changes to the regulatory framework. These include: decline in energy availability factor, need to stimulate economic development through the restructuring of state energy assets and encourage competition within the energy market in line with the White Paper on Energy Policy.
As part of the government’s concerted effort aimed at transforming the electricity sector, the Sixth Administration sought to amend the Act by introducing the Electricity Regulation Amendment, ERA, Bill.
In line with these electricity reforms called by President Ramaphosa, the Department of Mineral Resources and Energy effected amendments to the Act, among others, provide for open market platform that will allow competitive electricity trading in South Africa, make provision for creation of transmission systems operator to act as the wheeler and the dealer of electricity ... [Interjections.] ... strengthen the role of National Energy Regulator of SA, Nersa, to include powers to license entities that will implement the competitive market and have regulatory oversight during the transitioning to the competitive market, introduce provisions on offenses and penalties to address the theft and vandalism of the electricity infrastructure.
In keeping with the Batho Pele Principles, the Bill went through extensive consultations with the people of South Africa through various processes, including periods for public comments initiated by both the Department of Mineral Resources and Energy, DMRE, and Parliament.
The Portfolio Committee on Mineral Resources and Energy conducted physical public hearings on the Electricity Regulation Amendment, ERA, Bill in all provinces between September 2023 and February 2024. We were buoyed by the
overwhelming support for the amendments of the ERA Bill by citizens of this country.
Cognisant of the concerns raised by some members of this House regarding Nersa retaining the powers to set and approve price and tariffs, we are in full support of the portfolio committee’s view that end-users need to be protected from possible price manipulation by market participants and, therefore, Nersa needs to retain the powers to intervene when necessary.
Notwithstanding the divergent views raised by the public on the introduction of a competitive market, the establishment of the transmission entity that is a stand-alone, a market and the wheeler, and the offenses and penalties of those who vandalize electricity infrastructure, we are of the firm view that changes to the regulatory framework will radically transform the structure of the electricity sector for the future generations.
Let me conclude by emphasizing the fact that the ERA Bill is tabled here for adoption because we need to modernize this sector as a country. It’s not an ANC Bill, it’s a country’s Bill. Therefore, we are proposing that it should be adopted.
We are, therefore, convinced that the adoption of this Bill will not only give effect to Eskom unbundling reforms, but it will also encourage private sector participation in the electricity industry and thus introduce competition in the industry.
We are tabling this Bill for adoption. The committee handled it, it is tabling the Bill and we are just introducing it.
It’s a portfolio committee Bill that is before the House.
Thank you very much.
Mr S LUZIPO: Hon House Chair, hon members of the august House, ladies and gentlemen, in 1998, White Paper on Energy provided the much more rigorous analysis of the South African electricity market and recommended the full vertical unbundling of Eskom, established the conditions under which the electricity regulation market would achieve the optimal equilibrium between supply and demand of electricity. In other words, the White Paper understood that the monopoly position of Eskom in the generation transmission and distribution segments of the market was extraordinarily restrictive to the desired results of energy security in South Africa.
Now, 26 years later, the Electricity Regulation Amendment Bill provides for the necessary legal framework to transform the electricity sector of South Africa and move from a monopoly driven market towards a competitive open market. The transition from monopoly driven market to competitive market requires significant and substantive legislative changes.
Therefore, the Portfolio Committee on Mineral Resources and Energy ensured that meaningful multi stakeholder engagement in the form of nationwide public consultation and oral submission from stakeholders as explained in the committee report.
As a starting point, it is crucial to simplify certain terms and demystify concepts contained in the Bill. Firstly, the Electricity Amendment Bill makes provision for the establishment within five years of a state-owned Transmission Systems Operator that is legally distinct from Eskom. As an interim step towards that goal, the Bill authorizes a ring- fenced subsidiary of Eskom holding in the form of the National Transmission Company of South Africa, NTCSA, to fulfil the functions of the Transmission Systems Operator, TSO.
The TSO is an enabler of the competitive market operation and the creation of a central purchasing agency that will take care of the legacy of vesting contract. This Bill makes it
very clear that the TSO is independent and remain 100% state- owned and there are no provisions, therefore, that enables privatization of the TSO. Therefore, a careful distinction must be made between independence and privatization.
Secondly, the underlying factor to the transformation of the electricity sector is economic efficiency, which this Bill showcases in the form of functional operation of the sector by distinguishing between electricity generation and distribution transmission. This is an enabler of the unbundling process to take place elsewhere, but it does not take place in this Bill. In simple terms, the question of the unbundling does not reside with the policy. The question of unbundling resides with the operation, which will fall in another category. All what it says, it sets a framework under which unbundling will take place. Therefore, the Electricity Regulation Amendment Bill extend the scope of licensing activities to include market regulator and systems operators participating in a competitive market. As a result, the regulator empowers system operator participation in a competitive market. As a result, the regulator powers extend to license and register this activity.
Lastly, the regulator’s powers extend from initial ... [Inaudible.] ... of dispute to now arbitration of dispute between generators, transmitters, distributors, customers and users. The powers also extend to conduct investigation. It is also important to note that in the Bill, it also makes provisions for the participation of the private sector. Also, the powers for of the regulator to set and approve prices and tariffs. It also makes provision based on the contributions received from the public of penalties and sentencing for individuals who are found damaging or destroying electricity infrastructure. It proposes a period of not more than five years or R1 million.
It also proposes for those who trade in illegal electricity activities, including damage electricity infrastructure and property. It gives a period not more than 10 years or a penalty of R10 million. We draw a distinction between individuals, but also those who make commercial trade in an illegal manner. We make this provision on the basis that the burden of proof, as far as criminal charges are concerned, will lie with the complainant. It will be before the courts to determine whether that is conducted has been conducted in a negligent or in a wilful manner. It is not the prerogative of the portfolio committee to make such prescription.
It is also important to note that, amongst other issues that the Electricity Regulation Amendment Bill provides for, it is a firm indication that poorer customers can pin their hopes for lower electricity prices on the Electricity Regulation Amendment Bill as it attempts to distribute gains between them and generators in the competitive and excessive market. The possibility of the new entrance into the market enables the ending of loadshedding, expedite energy development, expands transmission infrastructure and extracts investment in the energy sector, thereby ensuring that no one is left behind.
I wish to take this opportunity to thank our hon members, particularly the component of the ANC that has made and worked beyond the call of duty and ensured that at all material times they put the interest of the ANC as the major custodian of the major interest of the country. And on those bases, we wish to thank ... [Time expired.]
Mr K J MILEHAM: House Chairperson, there can be no denying the impact that 17 years of loadshedding has had on the economic and social well-being of South Africa. Seventeen years of darkness, cold, and a lack of productivity, that can be firmly laid at the feet of an incompetent ANC government, its deployed cadres, its corrupt practices and its policy
incoherence. Seventeen years in which the unemployment level has spiked to the worst in the world. Seventeen years in which our economic output has dwindled, and the exchange rate has skyrocketed. Seventeen years in which Cyril Ramaphosa, Gwede Mantashe, Pravin Gordhan and Ebrahim Patel have had their feet firmly on the neck of a once thriving electricity sector.
Mr B A RADEBE: Chairperson, I’m rising on Rule 82. The member referred to the President on first name terms.
The ACTING SPEAKER (Mr C T Frolick): Hon Mileham, we do not refer to each other like that. Let’s refer to each other in respectful terms.
Mr K J MILEHAM: And the crisis we find ourselves in is not unforeseen. The bumbling ANC government were warned as far back as 1998 that sectoral reform was necessary. That new generation was urgently required. Their own White Paper on Energy confirms this. It is worth noting that the unbundling of Eskom into separate generation, transmission and distribution entities was first seriously bandied about by President Ramaphosa in early 2019. Later that same year, the DA’s hon Mazzone, introduced a Private Members’ Bill – the
Independent Electricity Management Operator Bill – which sought to facilitate exactly that.
While there might have been elements of that Bill which we disagreed with, these could have been negotiated and compromised upon. Instead, the ANC “rejected it with the contempt it deserves” at the motion of desirability stage. Let me unpack that. We could have brought the unbundling of Eskom forward by five years if the ANC were willing to open their eyes and minds to the concept that not all good ideas emanate from their ranks, and that other parties can and do contribute to the improvement of South Africa.
The Electricity Regulation Amendment Bill, although approved by Cabinet in April 2023, was only introduced to Parliament in August of last year. This despite repeated warnings to the Minister and in this House that the delays in introduction would result in a rush to conclude the legislative process before Parliament rises for the election, and so we find ourselves here today. A section 76 Bill, which will be passed in all likelihood by the National Assembly today, but which will not be able to be considered by the National Council of Provinces before the end of the 6th Parliament. That means, it
is extremely unlikely that it will be signed into law before the end of 2024.
At its core, this amendment Bill seeks to create a new state- owned entity – the Transmission System Operator – and to make that entity responsible for the establishment of an open market platform that allows the competitive trading of electricity. Now that’s a very interesting function, because some of the clauses that will be approved today undermine that precise objective.
Specifically, by assigning the National Energy Regulator of South Africa the power to set and approve prices and tariffs as per clause 5 of the Bill, it is in fact, the antithesis of competition. Everyone will have to conform to prices determined by National Energy Regulator of South Africa, Nersa. It should be pointed out that Nersa did not want this function. In fact, they claimed they lack the capacity to monitor and enforce it.
A further concern relates to the broad powers assigned to the Minister to make determinations for new or additional generation capacity. In the amended section 34 of the Act, the Minister is granted the power to deviate from the Integrated
Resource Plan – the country’s roadmap for electricity generation and procurement – in making these determinations in an “emergency”, “in the national interest” or when there is a “failure of the market”. But none of these terms are defined in the Bill. Therefore, it is left to the Minister to determine exactly what they are.
The proposed section 35B sets out offences and penalties in terms of the Act. One of the changes to the draft Bill -which the ANC pushed through forcefully in committee - is the removal of the term “wilfully”. In so doing, it criminalizes even accidental damage, removal or destruction of electricity generation, transmission and reticulation infrastructure, cables or equipment. What this means is that you will be guilty of a criminal act if you accidentally hit a pothole while driving down the road and crashing into a street light. The Bill makes no provision for accidental damage or destruction of such property.
The Bill further sets the maximum penalty for a person who contravenes the provisions of the Act, or who without lawful authority, damages, removes or destroys the equipments I’ve described, at a maximum of five years imprisonment and/or
R1 million fine. But this is significantly less than a person
who receives such goods from a person who they do not have reasonable cause to believe is duly authorized by the owner of those items to deal with or dispose thereof. In this latter case, the penalty is set at a maximum of 10 years imprisonment and/or a R5 million fine.
The portfolio committee had an opportunity to make good far- reaching legislation. And as has become the norm with the ANC, they blew it. We remain concerned that the creation of a Transmission System Operator state-owned entity, as envisaged by the Bill, does not go far enough to ensure the independence of the unbundled entity. A World Bank report from 2002 notes that a Transmission System Operator must be independent of the ownership and control of market participants. It goes on to state that independence is required:
So that the Transmission System Operator does not discriminate in favour of one market participant over another.
The Department of Public Enterprises has previously suggested that independence is unnecessary, given the unbundling of Eskom into 3 separate entities, all housed under Eskom holdings and with the government as the sole shareholder. But
the World Bank has a view on this too. Functional unbundling or the idea that:
Allows the grid operator to remain within a larger power enterprise that owns generation and transmission facilities but tries to establish detailed conduct rules so that the grid operator will act as if it is separate, even though it really isn’t.
Is fraught with problems. It does not work for two reasons. Firstly, it conflicts with the normal incentives of any commercial enterprise to try to protect the profits of its parent companies. Secondly, it is virtually impossible for the regulator to enforce the rules.
It’s been 17 years since the scourge of rolling blackouts was inflicted on this country. In that time, our inept ANC government has failed to meaningfully address the problem.
Unless we want another 17 years of load shedding and economic stagnation, we need to get rid of them. On the 29 May, let’s vote in a government committed to providing reliable electricity to all South Africans. Let’s vote for the DA to rescue South Africa from the dark days of ANC failure.
Chairperson, despite our misgivings, it is vital that the system operator be established, and the electricity sector opened up to private sector participation. The DA supports the Bill.
Ms O M C MAOTWE: House Chairperson, the EFF unapologetically and unashamedly rejects the Electricity Regulation Amendment Bill. Therefore, we call on all South Africans to reject this Bill. As much as the Bill was introduced by the Minister of Mineral Resources and Energy, we know that the irrational and corruption intentions to privatise electricity generation is driven by Mr Gordhan. The deliberate and purposeful collapse of Eskom was meant to pave a way for this Bill. The collapse of electric generation ... [Interjections.]
Mr B A RADEBE: Hon House Chairperson, I’m rising on Rule 85, the member has just cast aspersions on the integrity of Minister Gordhan. I think it must be done through the substantive motion. Thank you.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon Maotwe, you must withdraw that remark. Hon Maotwe, you must withdraw that remark.
Ms O M C MAOTWE: Which remark, House Chair?
The HOUSE CHAIRPERSON (Mr C T Frolick): The remark that you made pertaining to the Minister of Public Enterprises.
Ms O M C MAOTWE: No, House Chair, I said ...
The HOUSE CHAIRPERSON (Mr C T Frolick): If you don’t withdraw the remark, hon member, then you must leave the platform.
Ms O M C MAOTWE: No, but House Chair, you don’t know which remark I must withdraw. I’m trying to ask you on what I said
...
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon member, you know exactly what you said, and I will not repeat your unparliamentary remark. I request you to withdraw it.
Ms O M C MAOTWE: I withdraw, House Chair, let me finish my debate, please.
The HOUSE CHAIRPERSON (Mr C T Frolick): Thank you.
Ms O M C MAOTWE: As much as the Bill was introduced by the Minister of Mineral Resources and Energy, we know that the irrational intentions to privatise electricity generation is driven by Mr Gordhan. The deliberate and purposeful collapse of Eskom was meant to pave a way for this Bill.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon member, I’ve asked you to withdraw that remark, and you’re doing it again. Hon member, are you withdrawing the remark or not?
Ms O M C MAOTWE: Withdraw.
The HOUSE CHAIRPERSON (Mr C T Frolick): Please continue.
Ms O M C MAOTWE: The collapse of electric generation, the failure to maintain power stations, the inflated prices of coal purchased from Glencore and Mr Cyril Ramaphosa’s company, Shanduka, and the misguided and illegal firing of competent people from Eskom were all means to pave a way for this Bill. The persistence and devastating electricity blackouts, so- called load shedding, was allowed to happen in order to pave the way for the so-called the need to open the market that allows for competitive electricity trading. The so-called competitive electric trading is nothing but privatisation of
electricity generation, profiteering from what should be a foundation of rebuilding South Africa’s industrial base. The nonsensical and irrational Eskom split into three separate entities is nothing but mutilation of what should be one entity responsible for dependable, affordable and reliable electricity generation and supply.
The reality is that Mr Cyril Ramaphosa, Mr Jamnadas Gordhan, the clueless and dancing Minister of Electricity who confuses Eskom with tourism, and the Minister of Mineral Resources and Energy, and the whole of the governing party have made empty promises about resolving the electricity crisis. They told us without any believable plan that electricity crisis will end by December 2023. That never happened. They have now shifted the goal post to 2025. Shame on them.
After the Minister of Public Enterprises shenanigans to enter into a corrupt deal with Takatso to privatise SA Airways, SAA, we should look at everything that he does together with this government with suspicion. The reality is that we don’t need to privatise electricity in South Africa. So far, the Economic Freedom Fighters is the only political party that has tabled a believable coherent and political plan to solve electricity crisis. We have to ensure that the insecurity of electric
supply for at least the next 20 years. We have to invest in repairing existing fleet of power generation and adopt clean coal technologies to enhance the energy availability factor.
We have to reduce the electricity demand of major electricity users implementing strategies that are economically viable.
This will include revoking preferential tariffs deals signed with the apartheid government. In all that we do, we must not lose sight that we have to prioritise the affordability of electricity, ensuring that energy costs continue to be sustainable so that we can revive our economy. We will commit to decarbonisation of electricity sector but are going to maximally leverage all the coal reserves that we have as a country. We will be very jealous of which coal leaves our shores, how much of it, and who is buying it from us.
We know that there are some with neocolonial tendencies who want to dictate to us what electricity we must use, when and how. We are told that we must decarbonise by people who themselves are dumping their adventurism of renewable energy and are going back to coal power stations. All those loans and multilateral agreements that were signed and promised to the World Bank, International Monetary Fund, IMF, and the Europeans that this Bill will pass today, when we take over
power in June 2024, we’ll relook at each and every agreement and anything that does not promote South Africa’s interest will become.
We will use all means necessary, including legislating against privatisation of electricity generation. There is no private sector that will be responsible for control of South Africa’s energy generation capacity because they can easily use energy generation to give us instructions on how to run our country. We’ll wake up one day and when we want to expropriate land without compensation, they will threaten to switch off all the electricity because they don’t agree with expropriation of land without compensation, and therefore we cannot allow privatisation of the electricity in South Africa. The EFF rejects the Electricity Regulation Amendment Bill. In fact, we must correctly call it that it is the electricity privatisation Bill. The EFF rejects this Bill.
Ms Z MAJOZI: Hon House Chairperson, for far too long ... [Interjections.]
Prof C T MSIMANG: Hon House Chair ...
Ms Z MAJOZI: What’s happening?
The HOUSE CHAIRPERSON (Mr C T Frolick): We seem to have a problem. The hon Msimang was on the Speaker’s List, but I was informed that the hon Majozi will deliver it on behalf of the hon Msimang. May you proceed, hon Majozi.
Ms Z MAJOZI: Thank you, hon House Chairperson. For far too long Eskom has been playing the entire field of electricity generation and supply uncontested. Unfortunately, this has led to the citizens of South Africa having to suffer under constant load shedding with no alternative service provider to turn to. Over the years we have seen the management of Eskom deteriorating due to deeply entrenched systems of corruption and the repercussions were billions of rands and bailouts.
This has led the IFP to repeatedly call for the privatisation of Eskom as it has become a bottomless money pit funded by the hard-earned money of South African taxpayers.
Therefore, while the Electricity Regulation Amendment Bill is not exactly what the IFP would have wanted, considering our country’s current predicament with regards to electricity, this is certainly a step in the right direction. Once enacted, the Bill will introduce much anticipated changes, such as the establishment of the independent transmission system operator, which will act as a system and market operator. Crucial to the
ultimate unbundling of Eskom, the Bill will also establish a multi-market system that will accommodate trading off a competitive and open market platform. Our daily load shedding schedule is a clear indication that Eskom is extremely unreliable.
Therefore, we cannot be trusted as the only entity to generate electricity. The IFP has always been a staunch supporter of public-private partnership. Therefore, while the Bill does not privatise the electricity system, we welcome the fact that it enables private sector investment and generation to supplement Eskom’s generation and meet national electricity demand.
However, we would not be doing our constitutional democracy justice if we did not point out the Department of Mineral Resources and Energy lack of respect for one of the most crucial checks and balances in the democracy, which is a public participation in the legislation process.
This is the bedrock of the functioning democracy as it ensures that the voices of all stakeholders are heard and considered. Therefore, this is not a process that should be rushed and treated as an add on to finalise legislation. We sincerely urge the department to do better in the near future. The IFP supports the Bill.
Dr W J BOSHOFF: Hon House Chairperson, ...
Afrikaans:
... die wêreld verander vinnig en wie nie by bly nie, raak agter. Die era na die Tweede Wêreld Oorlog was die tyd van reuse staatskorporasies, wat die land se wiele aan die rol hou, veral op die terrein van energie, was die voordeel van staal oorweldigend en kleiner eenhede moes maar op sy staan. Elektrisiteit in Suid-Afrika was geen uitsondering nie. Die land se tekort aan petroleumprodukte is gedeeltelik vergoed deur ’n oorvloed van steenkool. Kragstasies het dus veral, sedert die 1960s in die hoëveld naby steenkoolmyne opgeskiet en ’n verspreidingsnetwerk het geleidelik die hele land bereik.
Een vir een het dorpe se eie kragstasies gesluit en selfs op plase het die raserige ... [Onhoorbaar.] ... stilgeword. Die woord Elektrisiteitsvoorsieningskommissie, Evkom, het op die platteland vooruitgang gespel, selfs toe dit Eskom geword het. Die prys van gerief is dikwels ’n verlies aan selfstandigheid en dit is presies wat gebeur het, nie dat dit juis saakgemaak het nie, want wie wil energie-selfstandig wees as die alternatief so aantreklik is? Wel, dit is die probleem. Selfs
die magtige Eskom was nie bestand teen die nuwe praktyk van, vat wat jy wil, die land sal betaal nie.
Gelukkig het die tegnologie in die teenoorgestelde rigting ontwikkel. Terwyl Eskom verval, het die prys van fotowoltaiese panele begin daal. Sonkrag het van ’n duur opsie vir rykes of hippies verander in ’n goeie belegging. Dit het die hele mark verander. Eskom en die regering met sy liefde vir sentralisasie het aan die kragmonopolie probeer vasklou, maar op die duur, kon dit nie hou.
Trouens, Eskom het self nie oor die bronne beskik om opwekkingsvermoë uit te bou nie en die son het goedkoper as steenkool geword. Die gevolg is dat Eskom toenemend van die privaatsektor afhanklik is om sonkrag op te wek, om dit weer aan diegene wat nie hul eie aanlegte opsit nie, te verkoop. Dit het ’n nuwe mededingende energiemark genoodsaak – die onderwerp van vandag se debat.
Hierdie is nie ’n slegte wet nie. As mens die VF Plus se manifesto sedert 2016 deurwerk, sou mens dink die ANC het dit dalk gelees. Ek dink nie hulle het nie. Hulle het maar net die werklikheid raakgesien wat ons toe al beskryf het. Liewer laat as nooit.
English:
However, there is a gap in this legislation. Well, several, but I want to stress one. According to media reports, Eskom estimates its loss, due to power theft as R20 billion per year. And yet there is no agreement in legal circles that theft of electricity is in fact a crime. Surprisingly enough, no law prohibits the stealing of electricity. Two High Court judgements disagree on the point. The one holds that it is a common law crime, while the other says that energy is intangible, and that common law therefore does not apply to its theft.
Whether it is, is a quaint question for the legal eagles to argue, but prosecution should not have to wait for an answer. We as legislators can and should clear it up by making a law. The Bill before us creates an offensive, if one damages or destroys cables or equipment used in the reticulation of electricity, or if one acquires such cables or equipment.
However, to steal the electricity itself is still not an offence.
The FF Plus will carry this into the select committee of the NCOP, as it should not be difficult to reach an agreement.
With that qualification, we support the report.
Mr S N SWART: House Chair, Eskom’s unreliable electricity supply has resulted in ongoing load shedding, which has had a devastating impact on households and businesses and on economic growth and job creation. The power crisis is caused by many different factors, including state capture and corruption, aging and underperforming power stations, financial bankruptcy, and a culture of nonpayment, as well as acts of sabotage and even attempted murder.
The ACDP played a key role in the Eskom parliamentary inquiry, which exposed state capture and corruption at Escom, which contributed to the grand failure of Eskom and ongoing load shedding. These findings were confirmed and amplified by the Zonda Commission of Inquiry.
Now, this Bill is intended to make it easier to produce and sell electricity in the country. If properly implemented, it could be a game changer, a positive step towards a more reliable, affordable, and sustainable electricity system by enabling multiple electricity producers to compete on a national playing field. This is intended to ensure that South Africa’s energy security is assured and entrenched, while improving efficiency and bringing down electricity prices in the long term.
And this, hon Minister, through you, Chair, the ACDP supports. This Bill is a step in the right direction, as it establishes the transmission system operator, which will be managed by the National Transmission Company of SA, NTCSA, an independent state-owned entity. Of course, Minister, the challenge, through you, Chair, again is that this is another state-owned entity and as we know, in the past, if it is run by deployed cadres, we may well again see corruption. It will be managed by the National Transmission Company, and it will have a key role in establishing a market platform, through which electricity can be bought and sold by multiple buyers and sellers.
However, during the public hearings, those who supported the Bill said that the idea of opening the market for competitive electricity trading, where Eskom will have to compete with private companies, should be welcomed. And the ACDP welcomes and supports that aspect, as this will help the country to address the challenges of electricity shortages, which cost the economy billions of rands in losses, due to the unreliable power supply.
However, Parliament will need to tighten its oversight responsibilities and ensure that the planned new state-owned
entities are protected from any degree of corruption, something that contributed to the collapse of Eskom. The ACDP has noted some of the reservations about the wordings and the powers assigned to the Minister, as well as the issues concerning the subjective interpretation of failure of market emergency and national interest. We believe, despite those reservations, this Bill should be supported and the ACDP will support this Bill. Thank you.
Mr A M SHAIK EMAM: Chairperson, the NFP will support the Bill tabled here today. Allow me first to raise some concerns that in, at least 1998, we were aware that we will have an energy crisis if we do not address the need for additional capacity in terms of generation. Added to that was the issue of maintenance, not forgetting the skills shortage. Well, of course, many of those, at that time, were skilled artisans that we had, who actually left Eskom. Very importantly, added to that was the evergreen contracts that continue up to this very day.
Now, these are big conglomerates that have been having these evergreen contracts and they continue to enjoy these benefits at extremely high prices. Something strange that I picked up the other day is that we are exporting high-grade coal, but
strange enough, we are importing low-grade coal, and it is the same company that is supplying Eskom. And really, you know, that is a matter of serious concern.
I think some of the measures that have been put in this Bill will, to a very large extent, help Eskom, while there is also a matter for concern that this might make Eskom eventually redundant, or it may have to shut down, because its expenditure will remain the same, but its income generation capacity will be lowered. These are some of the ...
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon Shaik Emam, there seems to be a problem with your connection.
Mr A M SHAIK EMAM: Chairperson, should I switch off the video?
The HOUSE CHAIRPERSON (Mr C T FROLICK): Yes, please.
Mr A M SHAIK EMAM: Sorry about that. Should I just start again? First of all, let me raise the concern that as early as 1998, we were fully aware that we are going to reach a crisis as far as energy supply is concerned, if we do not deal with further energy ...
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon member, you are not audible at this stage.
Mr A M SHAIK EMAM: The NFP will support this. Thank you very much.
Ms V T MALINGA: House Chairperson, in South Africa energy insecurity and rising electricity tariffs are compounding each other, thereby locking the country into an ecodevelopment trap of permanent poverty, inequality and unemployment. Energy security and affordable electricity prices play several important roles in the processes of inclusive development and structural transformation in the country.
From a structural transformation perspective, a reliable supply of electricity enables households headed by women as well as large and small enterprises to engage in wider economic activities that serve as an engine of strong productivity growth required to make a significant dent in the obscene levels of poverty, inequality and unemployment.
From an inclusive development perspective, affordable electricity prices discourage illegal connections and improve the purchasing power parity of poorer households headed by
women to afford necessities such as food and transport, thus making them active economic agents. Ironically, the current structure of the electricity market pulls in the opposite direction to the country’s ambitious goals of inclusive development and structural transformation. The slow pace of inclusive development and structural transformation in the South African economy has renewed the momentum in the amendment of the Electricity Regulation Amendment Bill. Whilst estimating and quantifying the net positive effects of the Electricity Regulation Amendment Bill is challenging, the push for the amendment of the Bill makes South Africa’s need for inclusive development and structural transformation more urgent and attainable. For instance, the unbundling of Eskom which is anchored in the Electricity Regulation Amendment Bill is an attempt to shift the electricity market from the current structure that forecloses competition to the one that endorses full blown competition.
In turn, a competitive electricity market may not only fill the existing generation gap and deliver electricity price reductions for poorer households and poorer labour intensive industries such as agriculture and manufacturing sectors, but also encourage investment and innovations in solar, wind and renewable technologies. For a country like South Africa whose
production is depended on fossil fuel energy investment in renewable technologies could place the country’s exports at an acute competitive advantage in a world where critical trading partners in the European Union and the United States are beginning to impose carbon price and carbon border tax to correct environmental externalities. As such, the Electricity Regulation Amendment Bill increases both competitiveness as well as access to critical export markets and in turn accelerates inclusive development and structural transformation prospects.
However, encouraging investments in renewable energy technologies through the Electricity Regulation Amendment Bill barely suggests that the ANC-led government pursues whatever it takes to abandon fossil fuel energy strategy often advocated by the ignorant DA and its ideological wind commonly known as environmental justice organisations. Unlike the DA, the ANC is not in a perpetual state of manic disorder hence the ANC-led government will never relegate coal to a subordinate position in the medium-term in favour of placing the supply of electricity at the mercy of whether conditions. Nonetheless, investments in renewable energy technologies is a prerequisite for an uninterrupted supply of electricity which is critical in reversing the trend of downsizing economic
activities in polluting industries especially in mining, basic, metals and chemicals thus serving productive capabilities and decent jobs for women.
More importantly, investment in renewable energy technologies is expected to improve the stagnation of mineral beneficiation as mining and chemical firms will be enabled to reduce emissions relating to the processing of raw minerals and chemical materials.
As it stands, schedule 2 of the Electricity Regulation Amendment Bill empowers mining and chemical firms to pivot the small scale embedded generation to enhance energy security and in turn broaden the basis for economic growth and employment creation for women. Of course, opposition parties especially those that have a mistaken confidence that there is an annex between hearing uproars and revolutionary consciousness would argue that the Electricity Regulation Amendment Bill is prune to be captured by the private sector because its proposed reforms mirror the interests of big capitals. Much of the evidence of the capture of the Electricity Regulation Amendment Bill at least according to hearsay fighters is deduced from the fact that reform gains accrue to identifiable groups and sectors. However, the cognitive framework
underpinning this view is flawed and indefensible because the Electricity Regulation Amendment Bill attempts to redistribute gains between consumers, generators and distributors in the proposed competitive electricity market.
For illustrative purposes, schedule 2 of the Electricity Regulation Amendment Bill not only empowers mining and chemical firms to shift to small scale embedded generation, but also empowers households headed by women and public institutions to migrate away from the Eskom grid to enhance energy security and reduce dependency on the grid. More important, initial decision to allow such migration, for example, empowers households to resell excess energy back to the Eskom grid. Similarly, the Electricity Regulation Amendment Bill empowers municipalities redistributing licenses to procure electricity from cost effective and efficient producers in the generation network. Nothing like this has ever happened before in South Africa therefore the rejection of the Electricity Regulation Amendment Bill based on fears of capture sounds like as it is not meant to make sense gigantic South African joke. Perhaps, of more impressive is that the stand objectives of the energy security and reliability as well as quality of supply in the Electricity Regulation Amendment Bill are particularly important for supporting
improved education and health outcomes in a country that is desperate for a healthy and skilled labour force, especially among women. In turn, an increase in a healthy and skilled labour force presents an opportunity for South Africa’s democratic dividend to reach its full potential. I thank you, Chair.
Mr N L S KWANKWA: Chairperson, a sustainable solution to curb electricity crisis in South Africa is long overdue. South Africa has been battling with the chronic power outages since early 2008, and if you like, but nearly 20 years later we are still facing the same problem which has become even more severe than before. For example, in 2023 alone, South Africans endured more than 280 days electrical blackouts. Indeed, the dire need for this Bill to solve the problem at hand.
However, the UDM opposes any attempt on the part of the ruling party to privatise electricity supply in South Africa. Yes, we agree that indeed there need to be a reasonable energy mix which would be able to meet the demand of South Africa’s energy needs, however, for as long as the South African government and the state does not supply most of the energy demands of the country, we would not support that.
In one of our meetings with the President of Azerbaijan, one of the things he stated was that, one of the things they had to do as a country was to ensure that they have energy independence in order not to undermine their sovereignty as a country because we run the risk if we leave the supply of energy to competitive markets and to market role-players in their entirety, and that they might be able to manipulate domestic events by manipulating supply or increasing prices and making energy unaffordable especially for those who are poor.
According to the 2020 study published by the University of Pretoria, 52% of South Africans most of whom are poor experience energy poverty. Already, the cost of electricity is becoming an increasing heavy burden for many South Africans.
Unfortunately, our people have to carry this burden in addition to the high unemployment rate, low wages and stagnant economic growth. Eskom, when developed, was meant to serve the people of South Africa with affordable electricity as contained in the Constitution, but not to burden them with high costs from the private sector which puts the profit motive above everything else.
The UDM will not form part of betraying the poor and ensuring that there is further marginalisations of South Africans especially the poor. We have seen in developing countries such as the US, UK, Germany and Australia which were faced with the same challenge where ordinary residential energy Bills have increased fivefold or even more due to private sector companies increased tariffs based on the unexpected events such as what we see due to geopolitical issues around the world.
Therefore, we cannot allow our people to be at the mercy of the private sector. A solution that caters for the poor, a solution that caters for the lower middle class and the working class in particular, need to be found that does not depend solely on us relying on the private sector to provide energy. [Time expired.]
Mr M G MAHLAULE: Chairperson, the amendment to the Electricity Regulation Amendment, ERA, Bill, is not only a bespoke solution to a multiple inadequacies and complexities in the electricity market, but also a sign that the ANC-led government can reinvent itself and self-adjust quickly and efficiently to a new wave of changes in the electricity market across the world. Therefore, any attempt to reform the
electricity market that disregards what the ERA Bill is proposing would likely engineer a toxic cocktail of changes that push the country into further energy insecurity and customers into energy poverty.
In fact, opposition parties that seek to reject the ERA Bill are either disconnected or detached from reality since there are most surprising common feature in the inability to acknowledge the inadequacies in the electricity market that the Bill is designed to address. The ANC is committed to the stated objectives of the ERA Bill which include among others, introducing an electricity market that is competitive enough to deliver electricity price reduction for the poor households, small medium enterprises, industry, agriculture and the services and mining sectors, and expanding the scope for the ethical, capable and developmental state that could accelerate a just transition to a low carbon economy.
However, infrastructure investment in the generation, transmission and distribution networks of the electricity market falls behind the stated objectives of the ERA Bill. There is no doubt that South Africa lets the fiscal space to self-finance the infrastructure funding gap due to the rapid rising of public debt to Gross Domestic Product ratio. The
National Treasury’s focus on fiscal discipline and the growing public commitment to invest the lion’s share of the country’s limited budget in social infrastructure, especially, education, health and social security.
Now, to close this infrastructure funding gap, hon Kwankwa, the ERA Bill introduces two modalities for regulatory and financial derisking that are aimed at making infrastructure projects in the generation, transmission and distribution network of the electricity market investable. The bottom line is that the ERA Bill reverses the regulatory and financial risks that private sectors and investors require derisking to accelerate investment in the infrastructure projects in the electricity market. In order to prevent regulatory risks for materialising, Schedule 2 of the ERA Bill, for an example, removes the licensing threshold for small scale embedded generation, thus, enabling the private sector to participate in the generation of electricity without having to apply a license from the National Energy Regulator SA, NERSA, to feed into the distribution network.
Equally important, section 34 of the ERA Bill empowers the Minister - something that hon Mileham hates, - it empowers the Minister to decide what additional generation capacity is
needed to ensure that uninterrupted two months supply of electricity in the country is insured. Both Schedule 2 and section 34 of the ERA Bill derisk regulatory barriers that create uncertainty and unpredictability for private sector participation. In turn, investment in infrastructure projects in the generation and distribution network would be an inevitable outcome of the regulator derisking in the form of Schedule 2 and section 34 of the ERA Bill.
The private sector investment in infrastructure projects in the generation and distribution network have clearly discernible effects on Eskom and the municipalities. Consider for an example, infrastructure projects in generation capacity and distribution that offer potential opportunities to address the backlog of infrastructure, refurbishment and maintenance in many stations and municipalities, which remains an ongoing challenge. As such, purposeful effort to reduce regulatory uncertainty through the amendment of this Bill, may result in the development of infrastructure projects that are more responsive to the energy action plan and the economic reconstruction and recovery plan imperatives.
Of course, neophobic and pessimistic opposition parties like the EFF are accustomed to saying the Amendment Bill is hardly
a success story because Eskom and the municipalities stand to lose revenue from private investment in infrastructure.
Project in the generational distribution network. I must clarify upfront that this simplistic view is inconsistent with the facts, and therefore, there is no objective justification that exists for it. In particular, this Bill empowers Eskom and the municipalities to compete aggressively with the independent power producers in the generation and distribution network.
We are putting facts to our people because people stood here and have spoken about things that do not exist. Eskom and the municipalities are likely to benefit especially in the generation network where scale economies in the renewable energy technologies are important, thus making this Bill a profitable strategy. The ERA Bill would serve as a profitable strategy because the capabilities of Eskom and municipalities to shift towards greener practices of energy generation are not fully realised under the current uncompetitive structure of the electricity market. In other words, early mover advantages in clean energy would allow Eskom and the municipalities to find more profitable opportunities along the renewable energy technological trajectory.
The Bill goes a step further beyond regulatory and derisking. It also includes financial derisking as well. For instance, the empowerment of NERSA to set tariffs and regulate prices, and the use of power purchase agreement to procure additional generation capacity through section 34 ministerial determination, prevents financial risk from materialising.
Therefore, leading to certainty over financial projections for investors, as stipulated in section 15 of the ERA Bill, tariff prices and Power Purchase Agreements, PPAs, must allow for the reasonable return proportionate to the risk of the licensed activity.
Now, Mr Mileham, don’t get hurt when we reject... It must not be personal when we reject the Private Member’s Bill, because it comes from the DA, never mind the relationship that the member you have it with. It was simply not a well-thought Bill, but it was simply privatisation, and we are not in the business of privatisation, I’m sorry. Thank you very much.
The MINISTER OF MINERAL RESOURCES AND ENERGY: Hon Chairperson
and hon members, I think the DA must get rid of the obsession about cadre deployment. Let me tell you why and let me give you a lesson, because when I joined mining, my Director- General was a white male having matric as the highest
qualification. However, in the eyes of the DA, that was competence. I am now sitting with the Director-General who has an engineer and Master of Business Administration, MBA. In the eyes of the DA, that engineer-MBA Director-General is cadre deployment. Don’t be obsessed. The reason that you are obsessed with this thing is that you had an entity that supplied 34% of citizens who were mainly white citizens.
Today the 93% of black citizens who have access to electricity it’s cadre deployment. Please get rid of the obsession, it is racist actually, that obsession is racist. Now, let me take it further. You know, independent transmission is called the Dutch model because transmission will be a wheeler and a dealer, it will be the market of electricity which is controlled by the state. This is not new, it is the Dutch model. Please go and read it. Lastly, cities have a right to generate their own electricity now. We have effected that reform ourselves. Any city or any town can generate its own electricity.
So, it’s not just opening private sector, it is opening competition in the electricity market. That’s all that is in this Bill. So, don’t limit it to the private sector, allow that in cities and towns for everybody. The deregulation of
embedded generation opens up opportunities for anybody to generate electricity. Thank you very much.
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided.
The ACTING SPEAKER (Mr C T Frolick): Hon members, could you please take your seats. Hon members, the Speaker had determined that, in accordance with the Rules, a manual voting procedure would be used for this division. Firstly, in order to establish a quorum, I would request the Table to confirm that we do have a requisite number of members physically in the Chamber and on the virtual platform to take this decision. The party Whips will then be given an opportunity to confirm a number of the 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. I have been informed that we do have a quorum. We will thus proceed.
The question before the House is that the Electricity Regulation Amendment Bill be read a second time. Voting will now commence. The doors to the Chamber will now be locked and the members in the Chamber will not be allowed to enter the virtual platform until voting is concluded. Whips you will now be requested to confirm the number of your members present in the Chamber and on the virtual platform, and you must also indicate if they vote for or against the question.
[Take in from Minutes.]
Question agreed to.
Bill accordingly read a second time.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES - SUSPENSION FROM OFFICE OF Mr H C RAATH, ADDITIONAL MAGISTRATE, OBERHOLZER, ON GROUND OF MISCONDUCT IN TERMS OF SECTION 13(4)(A)(I) OF MAGISTRATES ACT, 1993 (ACT NO 90 OF 1993)
Mr G MAGWANISHE: Thank you very much, House Chairperson, Ministers and Deputy Ministers, hon members. The Magistrates Commission received several complaints on different occasions
about Mr Raath’s conduct. There were complaints from individuals that Mr Raath had approached them to invest money in a property development, in the Ivory Coast. The complainants were aware that Mr Raath is a magistrate, and trusting him, they invested large amounts of money in the scheme.
Subsequently, it was found that there was no such development. Also, Mr Raath, signed an MOU with a company giving certain properties as surety, while knowing that the properties did not belong to him when he signed the documents. A prosecutor at Oberholzer filed a complaint against Mr Raath, alleging that he had, at least on two occasions, referred to him using offensive and derogatory language.
The commission viewed the complaints against Mr Raath very seriously and resolved to conduct a preliminary investigation. The commission charged Mr Raath with six accounts of misconduct and the charge sheet was served on him on 23 July 2018. The misconduct inquiry began on 17 March 2021 and concluded on 29 November 2021. Mr Raath was found guilty on all charges and the presiding officer recommended that he be removed from office.
The commission supported the recommendation that Mr Raath be removed, but a minority of members believe that the commission should impose a lesser sanction. These members were then invited to submit reasons but did not respond. On 14 September 2023, the commission informed the Minister of its decision to recommend Mr Raath’s suspension. The minister suspended Mr Raath from office with immediate effect on 23 November 2023, and tabled his report in Parliament.
In its deliberation, the committee took note of the extraordinary length of time it took to finalise this and other similar matters. The committee has met the commission to discuss the delays and will include these concerns in the legacy report. Having considered the Minister’s report dated
23 November 2023, concerning the suspension from office of Mr H C Raath, additional magistrates at Oberholzer, on the grounds of misconduct, the committee recommends that the National Assembly resolve not to restore Mr H C Raath to the office of magistrates. I thank you.
Declarations of Vote:
Mr W HORN: I waited today! House Chair, we will not repeat the details of the report already put on record by the hon Magwanishe. From our side, it is but to repeat again our
concerns regarding the very slow pace at which the Magistrates Commission process matters of complaints of misconduct. A charge sheet served in July 2018; a founding of guilt on all six charges already in November 2021; and only, removal from office or suspension as the Act calls it, two years later!
As a National Assembly, playing an oversight role and final checks and balances in respect of this system, the time has arrived for us to remark in respect of each one of these matters that, this type of a delay is simply not good enough. Having said that, Chair, in terms of the merits, it is of course. It goes without saying that public confidence in the magistracy is an essential precondition for the rule of law in our country.
Similarly, integrity and honesty cannot be compartmentalised. It is either a present on the part of a member of the judiciary or it is not. In this regard, Mr Raath has made it clear that he does not possess the necessary integrity and honesty. He has made himself guilty of the type of misconduct that ultimately leave us with no choice, but not to support restoration to office. Thank you, House Chair.
Adv B J MKHWEBANE: Thank you, Chairperson. Mr Raath was appointed in 1997, as an additional magistrate at the Oberholzer in Gauteng province. He also acted as the head of the court. The commission received numerous complaints about his conduct, including enticing investments in a scam property development in Ivory Coast, as hon Magwanishe has dealt with the facts.
However, it is also critical that we repeat for the benefit of those who would want to hear actually what Mr Raath has done. So, the presiding officer recommended his removal from office, which the commission supported. On the 14 September 2023, the commission informed the Justice Minister of the decision to recommend Mr Raath’s suspension, pending a resolution from Parliament and his removal from office.
So, it is deeply concerning indeed that Mister Raath’s misconduct inquiry commenced a staggering two years and eight months after he was charged on the 23 July 2018. [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon member, our apologies. May I request the NA Table to remove that member from the platform? Please proceed.
Adv B J MKHWEBANE: Furthermore, the failure to provisionally suspend Mr Raath in accordance with section 13(3)(a) of the Magistrate Act, despite the serious nature of the allegations against him, is alarming. The charges against Mr Raath, including dishonesty and offensive behaviour clearly warranted provisional suspension to uphold the integrity of the magistracy.
The commission’s delay in recommending Mr Raath’s removal from office, coupled with a further delay in notifying the Justice Minister demonstrates the lack of urgency and accountability. This negligence has not only undermined public trust in the magistracy but has also perpetuated a damaging impact on the local communities’ perspective or perception to integrity. It is imperative that the Magistrates Commission addresses these issues with urgency and transparency, so that they can restore the administration of justice.
During the meeting with the commission, it was revealed that the report of Mr Raath was inaccurate and the investigating. person was unavailable, raising questions of favouritism and concealing crime by the ethics division. What happened to those officials – we asked; and who are they – we never got their responses, but we will have to follow that up.
This raises serious concerns about the integrity and transparency of the Magistrates Commission. The EFF-led government will introduce compulsory screening and vetting of judges and magistrates every three years. The EFF-led government will ensure that all magistrates courts have competent magistrates. The EFF support the report by the portfolio committee to the National Assembly that Mister Raath must not be reinstated. Thanks.
Mr N SINGH: Thank you very much, hon chairperson. Judicial independence and impartiality are enshrined in our country’s constitution. Section 165(2) provides that, and I quote:
The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
Hon Chairperson, fraudulent and corrupt individuals have no place working as part of our country’s justice system. We only have to look at the state of disarray that our state-owned enterprises are in, to see the results of fraud and corruption, as it has left our country bleeding taxpayers money. Therefore, as the IFP, we condemn any and all forms of fraud and corruption displayed by any public servant, as our
top priority will always be to serve in the best interest of the South African people.
Hon Chairperson we have seen one of our former Presidents taken to court over abusing the power entrusted to him for personal gain, and as a nation we have unanimously taken a very decisive stance against corruption, regardless of who the individual is. How then can we overlook or spare an individual who should have acted as a custodian of our judicial system but choose to do the opposite.
Through his actions, Mr Raath has demonstrated a complete and utter disregard for the oath he has taken to serve our constitutional democracy. Having been found guilty by the Magistrates Commission and recommended for suspension as public servants would strive to uphold the rule of law, there should be no question in any of our minds on which course of action to take. The IFP therefore fully supports the committee’s recommendation to suspend Mr Raath. Thank you.
Mr W W WESSELS: Hon House Chairperson, The FF-Plus is in support of the recommendations of the report, and thus, the removal of Mr Raath. I thank you.
Mr S N SWART: Thank you, House Chairperson. The ACDP supports this report. Magistrates and all members of the judiciary must be, and must give the appearance of being, an example of impartiality, independence and integrity. What is demanded of them is something far above what is the mandate of their fellow citizens. Citizens look to the courts to be just and to act equitably. Therefore, they must be of the highest and above reproach.
The ACDP has studied the report and the complaints that were lodged on against Mr Raath. We find one interesting aspect, that there were certain members of the commission that believed a lowest sanction should be imposed. Those members of the commission were invited to submit reasons but did not respond. So, we fully support the commission’s findings and the committee’s deliberations and its report.
Of course, as other members have indicated, we share the concerns about the inordinate time that it took to finalise this matter: From the charge sheet been filed in 2018; to the finding of guilt in 2021; to the processes now, with the Minister into findings; and then the committee reaching its finalisation now in 2024.
The ACDP appreciates the fact that the committee has met with the commission. We fully support the recommendation that the next Parliament looks into the issue of the delays with the Magistrates Commission finalising its matters, bearing in mind that Members of Parliament, like me, previously served on the Magistrates Commission, but are not part of these deliberations - given that it comes to us at a later stage.
The CDP supports this report. I thank you.
Ms N H MASEKO-JELE: Hon Chair, members of the executive, members of the legislature and compatriots, in the case of Nkabinde versus the Justice and Correctional Services, JCS, the Supreme Court of Appeal referenced a Canadian Supreme Court judgment that related to a Canadian judge but that was equally applicable to South Africa. The important points out of the Canadian judgment were as follows: The judge is a pillar of the entire justice system and of the rights and freedoms which the system is designed to promote and protect. The personal qualities, conduct and image that a judge projects affect those of the judicial system as a whole and have a significant impact on public confidence in an effective judicial system and in democracy founded on the rule of law.
Chairperson, the Magistrates Commission received complaints as it is indicated from individuals that Mr Raath had approached them to invest money in property development in Ivory Coast in the Gauteng province. The complaints were then introduced to Mr Raath’s brother-in-law as a potential investor, as the chairperson indicated. At that time Mr Raath was acting as the head of court of Oberholzer. The complainants were aware that Mr Raath is a magistrate and had invested large amounts of money in a scheme which never existed. These allegations were of such a serious nature, running a Ponzi scheme whilst a magistrate. It was inappropriate for him to continue to perform the functions of a magistrate.
Chair, not only was Mr Raath accused of dishonesty due to his involvement in a financial scheme affecting members of the community of Oberholzer, but the committee also viewed this matter very serious. It was inappropriate for Mr Raath to continue to perform the functions of a magistrate. The Magistrates Commission viewed complaints against Mr Raath in a very serious light and resolved to conduct a preliminary investigation in terms of regulation 26(1) of the Regulations for Judicial Officers in the Lower Courts, 1993.
However, of concerning, just as it was indicated earlier, Mr Raath was charged but his matter was delayed. The misconduct inquiry only commenced two years and eight months later, after the matter was reported to the commission. That must be emphasised. The commission charged Mr Raath with six counts, as indicated earlier, of misconduct and the charge sheet was served on Mr Raath on 23 July 2018. The misconduct enquiry commenced on 17 March 2021, almost three years later. This is the issue that the committee has noted and took the initiative to visit the Magistrates Commission last week Friday and to investigate exactly what are the problems that the Magistrates Commission is experiencing.
On 14 September 2023, the Magistrates Commission informed the Minister of Justice and Correctional Services of its decision to recommend the suspension of Mr Raath pending a resolution from Parliament and his removal from office on grounds of misconduct. On 23 November 2023, the Minister suspended Mr Raath from office with immediate effect pending Parliament’s decision on whether or not to restore him to office. The Minister Tabled his report in Parliament in terms of section 13(4)(b) of the Magistrates Act 1993. The matter was subsequently referred to the committee for consideration and report on 29 March 2023.
Chairperson, it is important that judges and magistrates at all times seek to maintain, protect and enhance the status of the judiciary. To that end, they should be sensitive to the ethical rules which govern their activities and behaviour both on and off the bench. Any judicial misconduct breaks down the very fiber of what is necessary for a functional judiciary and to the citizens who believe their judges and magistrates are fair and impartial. The judiciary cannot exist without the trust and confidence of the people. Judges and magistrates must, therefore, be accountable to legal and ethical standards. We urge the Magistrates Commission to attend to the grave issues of delays. It is very important in finalising matters of such nature. Justice delayed is indeed justice denied. The ANC supports the Report, Mr Raath must not be restored. Thank you.
Question put: That the Report of the Committee be adopted, including the recommendation that the removal from office of Mr H C Raath be confirmed.
Question agreed to.
Report adopted and removal from office of Mr H C Raath confirmed.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON PROVISIONAL SUSPENSION FROM OFFICE OF MS R GOVENDER, MAGISTRATE, LENYENYE, LIMPOPO, TABLED IN TERMS OF SECTION 13(3)(B) OF MAGISTRATES ACT, 1993 (ACT NO 90 OF 1993)
Mr G MAGWANISHE: House Chairperson, Ministers and Deputy Ministers, hon members, Ms R Govender was permanently appointed as a District Court Magistrate at the Lenyenye Magistrate Court on 01 February 2018. The misconduct charges against Ms Govender stems from the criminal case in the state versus Mongwe Victor Mangena in which the presiding officer, Judge Kganyago, ordered that a copy of the judgement be forwarded to the Magistrates Commission.
According to the judgement, Ms Govender was dishonest, her behaviour inappropriate and brought the name of the magistracy into disrepute. As a result, the commission charged Ms Govender with misconduct on the basis that she; one, changed the accused plea and acquitted the accused without a trial taking place, and secondly, she willfully and unlawfully provided false and or incorrect statements to the reviewing judges. Ms Govender was invited to make representation on why the Magistrates Commission should not recommend her
provisional suspension from office, but she did not address the issues of her possible suspension or the charges against her. In this regard, Miss Govender elected to remain silent. In the circumstance, the Magistrates Commission recommended that Ms Govender be provisionally suspended.
On 20 December 2023, on the advice of the commission the Minister decided to provisionally suspend Ms Govender from office with immediate effect pending the outcome of the misconduct hearing into her fitness to hold office and Tabled his report for consideration by Parliament in terms of section
13 subsection 3(b) of the Magistrates Act of 1993. Having considered the report of the Minister of Justice and Correctional Services dated 20 December 2023, and Tabled in term of section 13 subsection 3(b) of the Magistrates Act of 1993 on the provisional suspension of Ms R Govender from office on the ground of misconduct pending the outcome of a misconduct hearing into her fitness to hold the office of magistrate, the committee recommends that the National Assembly confirms Ms R Govender’s provisional suspension from the office of magistrates. Thank you.
Declaration of Votes:
Mr W HORN: Hon House Chairperson, let us firstly remark that this is an example of the fact that the Magistrates Commission can indeed deal with the matter expeditiously. The decision to charge Ms Govender was only taken on 30 August 2023. Now in the first part of 2024, we already sit with an outcome and Parliament can deal with its oversight on the matter. So, that is the type of turnaround times we believe the Magistrates Commission should strive for.
Hon House Chairperson, having said that, ordinarily it is of course so that procedural errors on the part of the judiciary must be dealt with either by the judicial review or repeal.
Therefore, the type of misconduct here is much more than an error in law or an error in fact. We are satisfied that is either a staggering level of incompetence or it indicates a corrupt motive. That is a type of activity which can only one effect and that is to seriously undermine the trust and confidence of the public in the judiciary. Therefore, we are very happy to support the report of the portfolio committee and the recommendation to not restore Magistrate Govender to office. Thank you.
IsiNdebele:
UGq B J MKHWEBANE: Sihlalo ...
English:
... Ms Govender was permanently appointed as a District Court Magistrate at Lenyenye Magistrate Court.
Sepedi:
Kua Limpopo ...
English:
... on 1 February 2018. A judgment she made in the matter of S vs Mangena was referred for special review to the Limpopo division of the High Court by the head of the court at Lenyenye Magistrate Court. In a judgement on January 2021, the High Court identified serious gross irregularities and held that the proceedings of the case in S vs Mangena matter were not in accordance with justice.
The judge found that Ms Govender had deliberately attempted to mislead the court and manufactured evidence that did not exist. The High Court set aside the acquittal of the accused by Ms Govender.
Sepedi:
O dirileng yena Moh Govender? Moh Govender o ile a fetola letlakala la tatofatio ya molatofatiwa. Ditatofatio tia
molatofatiwa e be e le gore o ile a tihentiha boipiletio a be a rile o ipona molato. Yena a e tihentiha a e dira gore e re ga a na molato. Ge a fetia moo, Moh Govender a ntiha yena Mangena yoo, a re ga a na molato. Taba ye Mna Mangena a bego a lebane le yona ke gore o ile a gononelwa gore o dirile bosenyi bja thobalano (sexual misconduct}. Rena re le komiti ya phothefolio, ebile re le EFF re a e thekga ya gore Moh Govender a tiwele pele a emiiwe moiomong ka gobane ga re nyake bomaseterata bao ba swanago le boMoh Govender gore ba ete pele. Taba ke gore ge a tiea ditihelete, a dira gore batho ba tiwele pele go ioma ka bokebekwa, seo re ka se dumelelane le sona.
English:
We support this report.
The HOUSE CHAIRPERSON (Ms M G Boroto): The IFP.
Hon Maotwe, do not do that. You have no right to do that. Please. IFP, proceed.
Mr N SINGH: Hon House Chairperson, in a country riddled with corruption, it is imperative that we must ensure that our courts are not captured. Judges and magistrates play a vital
role in our own society. They are endowed with the powers and privileges of carrying out some of the most important legal decisions that underpins the values as set out in our constitutional train board.
There are a variety of factors that give rise to corrupt activities and create an environment conducive to corruption. Our courts should not be a fertile ground for any kind of corrupt goings on.
Integrity is undermined by incremental concessions and compromises made by lawyers, judges and magistrates and not by a single titanic incident. It is for this reason that at a very instance of impropriety, we need to hold accountable those that purport to undermine the integrity of the legal profession.
The allegations levelled against Ms Govender constitute conduct that is short of the standards of integrity as set out in the Magistrates Act and therefore should feel the full might of the law.
It is for these reason that the IFP supports the recommendation of the provisional suspension of Ms R Govender
from office on the grounds of misconduct, pending the outcomes of a misconduct hearing into a fitness to hold the office of magistrate. I thank you, hon House Chairperson.
Mr S N SWART: Hon House Chairperson, it is significant that in this matter a High Court judge found that a magistrate was dishonest, her behaviour inappropriate and that her conduct had brought the name of the magistracy into disrepute. It is almost unbelievable that a magistrate would change a plea of guilty to not guilty and then acquit an accused without a trial taking place at all. And then to aggravate the situation to then provide false and incorrect statements to a higher court, to a reviewing judge that gave or created the impression that in fact a full trial had taken place and that the matter was postponed for judgment whilst that had never taken place.
The Magistrate Ms Govender knew or aught have known that she acquitted the accused without a trial taking place and then to perpetrate that dishonesty to a higher court is deplorable.
One wonders if other similar acts have taken place and that this was the only one that came to the knowledge of a higher reviewing court.
The ACDP fully supports this report and wants to commend the commission in this instance dealing with this matter expeditiously. We support this report which relates to the provisional suspension of Ms Govender. I thank you.
Mr S M JAFTA: Hon House Chairperson, we have no declaration.
Mr T LOATE: Hon House Chairperson, we support this report.
Mr X NQOLA: Hon House Chairperson, the ANC rise in support of this report of the Portfolio Committee on Justice and Correctional Services. Our Constitution is founded on amongst others the rule of law, supremacy of the Constitution and the multiparty system of the democratic government to ensure accountability and openness.
Appropriate checks and balances are an important ingredient of democracy. Checks and balances allow for the involvement or the inclusion of firstly, the arm of government into another to ensure that there is no overconcentration of power. Thus, the composition of the Magistrates Commission envisages co- operation in the appointments, suspensions and removal of magistrates between all arms of government including other stakeholders such as the legal profession and academia.
Former Chief Justice Sandile Ngcobo describes public confidence in the judiciary as vital at the preservation of the rule of law and ultimately to the preservation of our constitutional democracy.
Justice Ngcobo endorses the famous observation that judiciary has neither sword nor purse, but only the confidence of the public meaning that the public recognises the legitimacy of judicial decision even it disagrees with their contents.
Absent such public confidence, people may abandon the courts and resort to self-help.
The more the public respects and heeds the important of court decisions recognising that their content broaden the facts and the moral convictions of the community, the more legitimate the court becomes an institution.
Ms R Govender, was permanently appointed as a District Court Magistrate at the Lenyenye Magistrate Court, on 1 February 2018. The misconduct charges referred against Ms Govender stem from a case where the presiding officer Judge Kganyago ruled that the copy of the judgment be forwarded to the Magistrates Commission for its attention.
According to the judgment, Ms Govender was dishonest, her behaviour inappropriate and broad. Yes, of there is the highest forms of dishonesty. If it goes to an extent of changing the accused plea. Inappropriate and brought the name of the magistracy into serious and gross disrepute.
The commission resolved to charge Ms Govender with misconduct. On 30 August 2023, served her with a charge sheet and a provisional letter of suspension dated 24 August 2023. She was charged with contravening amongst others the Magistrate Act of 1993, the regulations for judicial officers of the lower courts and the code of judicial conduct for magistrates on the basis that she changed an accused plea to, “Not guilty,” and acquitted the accused.
This means that the accused pleaded guilty and the magistrate herself change the plea to, “Not guilty.” She did not only stop there, but she also acquitted the accused.
Wilfully and unlawfully provided false and incorrect statements to the reviewing judges that gave a picture that on
9 September 2019 there was a full-blown trial used to some meetings where some credentials were cooked. This was a clear cold court sitting. That was not there. It was nonexistent.
That on 9 September 2019 there was a full-blown trial for the whole day. There after the matter was postponed for judgment. However, did not specify to which date was the matter postponed when in the truth and in fact Magistrate Govender knew or aught to have known that she acquitted the accused without a trial taking place to the prejudice of the administration of justice.
The commission invited Ms Govender to make representations as to why it should not recommend her provisional suspension from office. However, she did not address the issue of a possible suspension or the charges against her. In this regard, she elected to remain silent.
The commission recommended that she be provisionally suspended as the allegations against her are of such a serios nature and it will make it inappropriate for her to further perform the functions of the magistrate.
Following advice of the commission on 20 December 2023, the Minister decided to provisionally suspend Ms R Govender from office with immediate effect pending the outcome of the misconduct hearing to her fitness to hold office.
Those entrusted with responsibility should always be mindful of what William Shaikspear said and I quote, “Uneasy is the head that wears the crown.” Those charged with major responsibility carry a heavy burden and should always be mindful of their conduct. The conduct of the magistrates should always be beyond reproach if we are to ensure public confidence.
Yes, the of course, the hon Jele, the hon Mkhwebane and the hon Horn are correct to say there is a greater concern from the committee of the longevity of how these cases take. Of one check, the time between the provisional suspension and the actual removal, there is a long period. To an extent that through the assistance of the committee chairperson, last Friday we met with the Magistrate Commission to understand deeper the impediments causing these delays. They have committed to work on the backlogs. Of course, with our support and assistance we are going to attend to these matters because the wheels of renewal must grain across all arms of the state even if it is in the judiciary.
We do not have time to massage misconduct. Thank you very much, hon House Chairperson.
Question agreed to.
Report adopted and provisional suspension from office of Ms R Govender confirmed.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON CONFIRMATION OF SUSPENSION/REMOVAL FROM OFFICE OF MR MD HINXA, CHIEF MAGISTRATE, BLOEMFONTEIN ON THE GROUND OF MISCONDUCT IN TERMS OF SECTION 13(4)(A)(I) OF MAGISTRATES ACT, 1993 (ACT NO 90 OF 1993)
Mr G MAGWANISHE: House Chairperson, hon Ministers and Deputy Ministers, hon members. Following allegations of sexual assault, rape. The magistrate commission initiated the preliminary investigation. And charges of misconduct were brought against Mr Hinxa. On the advice of the commission, the Minister provisionally suspended Mr Hinxa with effect from 29 November 2017. Parliament confirmed the provisional suspension, this House on the 25th of October 2018 and the National Council of Provinces on the 13th of November 2019.
The misconduct inquiry against Mr Hinxa began on the 30th of October 2018. On the 8th of July 2021, Mr Hinxa was found guilty and on the 29th of November 2021, the presiding officer
recommended that he be removed from office. On the 24th of December 2021, Mr Hinxa submitted representations on the sanctions imposed by the presiding officer and the commission.
On the 27th of January 2022, the presiding officer indicated that she had nothing to add to her reasons and sanctions. On the 13th of October 2023, the commission resolved to recommend that Mr Hinxa be removed from office on the grounds of misconduct.
Mr Hinxa also instituted legal proceedings in the Free State division of the High Court to interdict the commission, the Minister, the Speaker of the National Assembly, from implementing the decision of the presiding officer in the misconduct proceedings. However, the matter was struck off the role due to its lack of agency.
On the advice of the commission, the Minister confirmed Mr Hinxa’s suspension from office and tabled his report, dated 2nd February 2024. The Committee notes the delay in finalizing this matter and similar disciplinary matters against the magistrates. It has met the magistrates commission to discuss its handling of disciplinary matters against magistrate and
will also note this in its legal report, for the next Parliament to consider.
Having considered the Minister’s report dated 2nd February 2024 requesting that the National Assembly confirmed the suspension, stock removal from office of Mr M D Hinxa, Chief Magistrate of Bloemfontein, on the grounds of misconduct. The committee recommends that the National Assembly resolve not to restore Mr M D Hinxa to the office of magistrate. I thank you.
Declaration(s) of vote:
Adv G BREYTENBACH: House Chair, hon members, Chief Magistrate Hinxa, tends to be removed from office as a result of a disciplinary hearing in which was found guilty of two counts of misconduct. Two counts of misconduct followed two complaints of sexual assault. The elements of the two counts of ... [Inaudible.] ... are the same as the elements required to prove rape. He was found guilty.
Now as the chief magistrate, not only does he sit in judgment about the people every day, but he has wide responsibilities over a wide area. He has been found guilty of two counts of what technically amounts to rape. We’ll all agree that this is serious for anyone, the chief magistrate is unheard of.
The matter has taken far too long to come to this point, and it cannot be excused. But much worse when the magistrate commission had to debate on removal from office, they were divided. There was no unanimity about whether to remove him, and in fact half of the commissioners held that he should not be removed. Now that is something that should concern this House deeply. After some deliberation, they then managed to get a majority to agree to remove him, but there were still people who thought that he shouldn’t be removed. That’s a serious problem. As a result, the portfolio committee visited the commission, the visit was, in my view, not entirely satisfactory, and we will be keeping a close eye on this matter going forward. But we certainly support the removal of Mr Hinxa. Thank you.
IsiNdebele:
Adv B J MKHWEBANE: Ngiyathokoza, Sihlalo weNdlu.
English:
Adv B J MKHWEBANE: Mr Hinxa Chief Magistrate in Bloemfontein, Free State Province faced sexual assault allegations. He was provisionally suspended on the 29th of November 2017, confirmed by Parliament in 2018 and 2019. He applied to review the suspension on the 23rd of January but did not proceed.
The disciplinary inquiry began again 30 October 2018. The commission closed its case on the 26th of November 2020. Mr Hinxa was found guilty on two charges in July 2021.
Proceedings were postponed several times due to Mr Hinxa’s illness, mitigating factors were submitted in writing, but he did not attend the hearing on the 29th and 30th of November 2021. The presiding officer recommended sanctions after finding him guilty. The disciplinary process of Mr Hinxa involving sexual assault charges has taken over six years due to ongoing postponements, despite acknowledging the impact of COVID lockdown and Mr Hinxa’s ill health, these delays have incurred significant cost to the state, undermine the justice system integrity.
Following the decision to recommend his removal from office, it took an additional 21 months for the commission to resolve the recommendation for the Justice Minister. Partly due to disagreements within the ethics committee, the state law adviser has expressed that the commission not the ethics committee holds the ultimate responsibility in making recommendations to the Justice Minister, leading to further delays and uncertainty. The failure of the Justice Portfolio Committee as well to monitor Mr Hinxa’s case is alarming.
Due to the fact that this matter served before Parliament, I think we need to have systems put in place to continuously monitor such matters, so that we also don’t add to the delay, as well to fast track the process and to make sure that there’s integrity to the justice system.
The only concern which has been raised after our meeting with the commission was that apparently the victim tried several times to open a criminal case. The police never assisted the victim. They’ve been tossing her up and down until she approached the magistrate commission.
As this committee, I think we will have to follow that up with the police and as well determine why the police never opened the case. And I think that needs to be addressed so that the matter can be closed properly. Therefore, as the EFF, we support the report. Thank you.
Mr N SINGH: Hon House Chairperson, the host, there seems to have disabled my video, so I don’t think you can see me, but on my side, it says your host has disabled the video. But having said ... [Interjection.]
THE HOUSE CHAIRPERSON (Ms M G Boroto): Host, please don’t do that, host please, able that video. Procedure ntate [sir].
Mr N SINGH: Hon House Chairperson, once again, the case of justice delayed justice denied. But in this case, the public have been denied justice because this particular individual has been allowed to continue being a presiding officer.
However, having said that, hon House Chairperson, South Africa stands at a critical juncture where collective efforts must be made to eradicate sexual harassment and ensure workplaces are free from discrimination and harassment. It does, however, feel regressive and seems like such a miscarriage of justice when our judges, prosecutors, magistrates and court officials are sometimes the perpetrators of such sexual misconduct and harassment.
The testimonies brought before the committee paint a harrowing picture of a justice system that has failed to protect its citizens. It is unacceptable that the complainant was subjected to being sent from as they are, to quote pillar, to post by police officials who callously refused to open the case. Such negligence and disregard for the plight of survivors must be met with the full force of accountability,
and I agree with the last speaker that it needs to be investigated.
It remains outrageous that after the accusation of rape, Chief Magistrate Hinxa is still expected to sit on the bench. It is indicative of the brazenness and unmitigated audacity of men in his position.
Recent studies and the trends from the Commission for Conciliation, Mediation and Arbitration reveal a disturbing increasing sexual harassment cases across both the private and public sectors. This data sheds light from the alarming prevalence of sexual harassment within our workplaces, highlighting a systemic issue that demands immediate attention.
Hon House Chairperson, it is imperative to recognize that sexual harassment knows no boundaries. It affects individuals irrespective of gender, age or position within an organization. Furthermore, it perpetuates power imbalances, reinforcing inequalities and hindering career growth and personal development.
The very fabric of our society is frayed when individuals are subjected to such abuse in their places of work. Our laws regarding sexual harassment are deeply rooted in the principles of our Constitution, where gender equality and human dignity form the bedrock of our legal framework.
However, laws alone are not enough. We must ensure that these laws are not only upheld but are actively enforced to protect the vulnerable and hold perpetrators accountable. The IFP therefore fully supports the recommendation of the committee in this matter. Thank you.
Mr W W WESSELS: House Chairperson, we support the report and
... [Inaudible.] ... Thank you.
Mr S N SWART: House Chair, eight years, almost eight years since the complaint was lodged by this victim of sexual assault of rape. When the victim tried to lay charges at police stations and was sent from pillar to post and one then appreciates the influence that a magistrate has. But in this case a chief magistrate of the whole metro of Bloemfontein.
And it is disgraceful that police would not accept that complaint because it related to a chief magistrate.
The question arises for us as the ACDP how much more is this taking place in our nation, where complainants, vulnerable woman, wish to lay charges against influential people and they are not able to do so because of the possible repercussions? I fully agree that this matter that has taken so long to resolve needs to be monitored. I fully agree that in future when a matter comes to us for a provisional issue, we need to continue to monitor it.
But this is a classic case of the Stalingrad tactic of going to court for postponements. And even as we speak there is a pending High Court application against the commission, against the Speaker of Parliament.
But at the end of the day, one has to think of the victim in this situation that she has waited almost eight years for the magistrate to be dealt with in terms of removal from office, where he has had a full salary. But to date, she’s had no justice, no justice, her criminal case., there’s nothing on the indication of the reports that a criminal case was ever reported. And I would agree that Independent Police Investigative Directorate, IPID, needs to look into this.
She resorted to approaching the Minister. There’s no information before us that there’s any criminal case being investigated against this chief magistrate. That, to me is absolutely disgraceful and indicates the dysfunctionality in our criminal justice system, when a high-level chief magistrate commits these deeds that has now been found guilty of in a disciplinary action and then escapes the criminal justice system itself. The ACDP fully supports this recommendation. I thank you.
Ms A RAMOLOBENG: House Chair, members of the executive, members of the House. The late Chief Justice Ismael Mahomed once remarked that:
The ultimate power of the courts must rest on the esteem in which the judiciary is held within the psyche and soul of a nation and in the confidence, it enjoys within the hearts and the minds of potential litigants.
House Chair, for the nation to have confidence in the judiciary, it is fundamental that the magistrates remain independent and accountable. Magistrates’ courts are generally accessible to the poor and most vulnerable in society. People
rely on magistrates to dispense justice accordingly as courts are the final arbiters of disputes.
The conduct of a magistrate should be beyond reproach, both on and off the bench. The conduct of magistrates should be commensurate with the esteemed office, which they occupy. A high standard of ethical and moral conduct is expected from magistrates. Conduct which tarnishes the good name, dignity and esteem of the office of the magistrate and the administration of justice should not be accepted. Society should have faith in the courts and those dispensing justice.
Allegations of sexual misconduct were preferred against Mr M D Hinxa, a Chief Magistrate in Bloemfontein. The complainant had tried to report the matter at different police stations but was unsuccessful. As the last resort, the complainant lodged a complaint to the Minister of Justice and Correctional Services. The matter was referred to the Magistrates’ Commission.
Based on the evidence gathered in the preliminary investigations, Mr Hinxa was charged with two counts of misconduct. On the advice of the Commission, the Minister provisionally suspended Mr Hinxa with effect from 29 November
2017. Both Houses of Parliament confirmed the suspension. The National Assembly resolved to confirm the provisional suspension on 25 October 2018 and the National Council of Provinces on 13 November 2019.
On 23 January 2018, Mr Hinxa applied for an order to review and set aside the Minister’s provisional suspension; the Commission’s decision to institute a disciplinary or misconduct inquiry against him; and declaring the disciplinary inquiry on the misconduct charges against him invalid and unlawful. The application was opposed by Mr Hinxa but did not proceed further with the application.
House Chair, the misconduct inquiry against Mr Hinxa began on
30 October 2018. The Commission closed its case on 26 November 2020. Mr Hinxa chose not to testify or call any witnesses in his defence and closed his case. After numerous postponements, Mr Hinxa was found guilty on both charges.
On 13 October 2023, having considered all the relevant documentation, the Commission resolved to recommend that Mister Hinxa be removed from office on the ground of misconduct. This was alluded to by the portfolio chairperson.
Mr Hinxa instituted legal proceedings in the Free State Division of the High Court to interdict the Commission, the Minister and the Speaker of the National Assembly from implementing the decision of the presiding officer in the misconduct proceedings. On 20 December 2023, the matter was struck from the roll due to its lack of urgency.
House Chair, in the case of Tshabalala v State and Ntuli v State, the Constitutional Court made the following remarks:
Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy, and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.
House Chair, the charges levelled against Chief Magistrate Hinxa are so serious that, to continue having him as a member of the magistrates would simply be unjustifiable and could be translated as condoning of wrongdoings. Justice must not only be done, but it must also be seen to be done. Justice delayed in processing this matter, is indeed justice denied as alluded to by hon Swart.
This matter must now be concluded, it has taken far too long. It would not be in the interest of justice to have such a magistrate presiding over cases when there is a cloud hanging over his head, especially a serious case of rape. Not when we are still trying to fight the scourge of gender-based violence.
But let’s clarify something, this matter was brought to the committee on 02 February 2020. Therefore, there are accessions on hon Mkhwebane are not correct. I agree that this matter indeed has taken far too long, and it should be addressed, especially when you are dealing with the scourge of gender- based violence that relates to rape. House Chair, the ANC supports this report.
Question put: That the Report of the Committee be adopted, including the recommendation that the removal from office of Mr M D Hinxa be confirmed.
Question agreed to.
Report adopted and removal from office of Mr M D Hinxa confirmed.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES ON DRAFT AMENDMENTS TO DIRECTIVES, SUBMITTED TO PARLIAMENT FOR APPROVAL, IN TERMS OF THE CHILD JUSTICE ACT, 2008 (ACT NO 75 OF 2008)
Mr G MAGWANISHE: House Chair, section 97 of the Child Justice Act of 2008 provides that the National Director of Public Prosecutions, in consultation with the Minister, must Issue directives. These directives assist the National Prosecuting Authority, NPA to ensure the effective implementation of the Act and provides for a range of matters, including the withdrawal of cases, criminal capacity, diversion of matters and trial.
The first directives were published on 31 March 2010. The amendments to the directives are necessary to bring them in line with the recent amendments to the Act, particularly the change to the age of criminal capacity, which increased from
10 to 12 years old.
Having considered the draft amendments to the directives submitted for approval in terms of section 97 of the Child Justice Act of 2008, the committee recommends that the National Assembly approve them. I thank you. [Interjections.]
IsiZulu:
ILUNGU ELIHLONIPHEKILE: Usho mhlawumbe beyehlise ... [Akuzwakali] ... indlela yokuthenga.
USIHLALO WENDLU (Nk M G Boroto): Mhlonishwa uMmemezi nesivakashi sakho lapho, cishani.
Declarations of vote:
Adv G BREYTENBACH: House Chair, we support the ...
HOUSE CHAIRPERSON (Ms M G Boroto): Okay. Thank you. Draft amendments.
Adv B J MKHWEBANE: My apology, Chairperson. I thought I will have two minutes to come to the stage. I think it’s very critical for us to share the information because we are addressing the public.
In support of the Child Justice Amendment Act as per section 97(4) of the Act, the National Director of Public Prosecution has issued directives in accordance with the Act. These directives and subsequent amendment have been submitted to Parliament and gazetted as required by the Act. Section 97(4) of the Act as amended mandates that the amendments be forwarded to Cabinet members responsible for administration of justice for submission to Parliament before publication in the gazette.
Further, the National Prosecuting authority, NPA, has amended the directives in line with the Child Justice Amendment Act, Act 28 of 2019. Therefore, Chairperson, these amendments are crucial in ensuring the effective implementation of the Child Justice Act and in safeguarding the rights and wellbeing of children within the justice system. They reflect the commitment to upholding the principles of justice, fairness and protection of minors in line with the International Standards and Best Practice.
Therefore, we fully support the amendment made in accordance with the Child Justice Amendment Act and affirm their importance in promoting a more just and child friendly justice system. Thank you.
Ms Z MAJOZI: Hon House Chairperson, criminal responsibility and incapacity have been a topic of debate worldwide. It is widely accepted that children should not be subjected to the criminal justice system unless necessary.
In terms of SA Criminal Law, the previous Stoned Apex resumption left the assessment of the child maturity and criminal responsibility to the court. This led to inconsistency, confusion and possible bias and discrimination against the minor accused. When turning to our jurisprudence in such matters, it has also been noted that the more severe the offence the less likely the child’s criminal capacity is considered. If the child is young, this is especially true when the child pleads guilty and has legal representation. The USA Apex Dolly did not provide the required protection in such instances.
To address these concerns and with the interest of our children being paramount of our laws directives have been
submitted to Parliament for approval under the Child Justice Act. These directives aim to improve the implementation and prosecutorial effectiveness of the Act by providing greater clarity on matters such as withdrawal of cases, criminal capacity, diversions and matters of trial. The IFP support the Draft Amendment to the Directives and the committee’s recommendation that they be approved. Thank you.
Mr W W WESSELS: House Chairperson, the FF Plus support the Draft Amendment and the report.
Mr S N SWART: House Chair, the ACDP support the concept Restorative Justice which is at the heart of the Child Justice Act particularly when dealing with children who are not a danger to society, and we played a key role in the finalising of this Act in 2008, which incorporate this concept. This is after we represented the country at am auxiliary meeting of the United Nations discussing Restoratives of Justice Act an option and this follow this Act.
So, what do we mean by restored of justice. Restored of justice is an approach to justice that involve the child offender, the victim, the families concerned and the community members to collectively identify and address harms, needs,
obligations by the child accepting responsibility making restitution and taking measures to prevent the occurrence of and promoting reconciliation. And this is very commendable. Some peoples will say it is weak on justice no more mostly definitely not, it is premise on the acceptance of responsibility. Why when a child might steal a loaf of bread, because that child is hungry. Should that child be in castrated and rape to an abuse into a lifetime of crime through criminal gangsters. And that’s the essence of restored of justice.
Now one of the aspects that is involved in restore of justice is that diversion option which where possible impart skills and the restored of justice element is based on the SA indigenous legal systems healing relationships, including the relationship with the victim and includes an element with the child understands the impact of the behaviour and is victim centred.
So, we believe that restored of justice programmes can be more broadly used and have been used efficiently when you have family group conferences, victim offender mediation and restitution to victims.
In many cases a Child Justice Court may find that the child is a child in need of tips. And I remember specifically when we were finalising this Act. But was important to have a probation of social workers report why is that child committing crime so that that can be attended to.
So, the ACDP support this report amending the directors but last year we want to issue a warning for those adults that used children to commit crimes that is a saviour crime, and we believe they should meet the full force of the law.
Let us be reminded of Mathew 18 verse 16: “If anyone causes one of these little ones—those who believe in me—to stumble, it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea”.
This This is how serious this is to be considered. The ACDP support this report. I thank you.
Mr T LOATE. We support the report.
Ms W S NEWHOUDT-DRUCHEN: Hon Chairperson, members of the executive and the legislature, comrades, friends on different platforms, good day, the ANC rises in support of the Draft
Amendments to the Directors in Terms of the Child Justice Act, 2008, Amendment of Regulation. This year marks 30 years of democracy and the month of March is regarded as Human Rights Month.
As the Sixth Administration ends, it is important that we remind ourselves of the great efforts of this ANC government. The freedom we enjoyed today did not fall from the sky. It came because of great effort, blood sweat and tears. Much work has been done by this government. Progressive legislation has been passed by this Parliament and the government continuous to implement the same. Services have been and continued to be delivered to the people especially the poor and vulnerable.
Strong state institutions have been established. We have a vibrant democracy. The examples of what has been achieved are unmountable. One of our greatest achievement in this democracy is the adoption of our world claim Constitution, which guarantees our freedoms and through generations of human rights includes of course the right of children.
Chairperson, it is often said that children are the soul of our society. And if we fail them then we have failed as a society.
Our common law prescribes that the child best interest must determine the outcome when a court must made order regarding a child.
The Bill of Rights in the SA Constitution is renounced for a substantive commitment to the protection of the rights of children. In section 28 particularly section 28(2) which intactly underscore was a paramountcy of the child best interest. By inventing the limitation of fundamental rights in certain circumstances. The Constitution emphasises children’s best interest. It singles them out for special protection affording children in conflict with the law specific safeguards.
Our Constitution acknowledges that children in conflict with the law must not be subjected to practises that could in danger the wellbeing, physical or mental health or spiritual, moral or social development.
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 international obligations of the Republic. Amongst others, the
Act seeks to provide mechanism for dealing with children who lack criminal capacity outside the criminal justice system.
According to section 97(4)(a) of the Act provides that the National Directorate of Public Prosecution in consultation with the Minister must issue directorate section 97(4)(b) of the Act provides that the directors must be submitted to Parliament for approval before publication in the gazette. The first directives was submitted to Parliament was to assist the NPA to ensure the effectiveness implementation of the Child Justice Act and to provides for a range of matters, including withdrawals on the basis of criminal capacity, diversion of matters and trial. The NPA amended the directives to bring in line with the amendment to the Act particularly a change to the age of criminal capacity of a child which increased from
10 years to 12 years old as well as some additional amendment.
I wish to end off with the quote by our former first democratically elected President Tata Nelson Mandela:
Our children are the rock on which our future will be built, our greatest asset as a nation. They will be the leaders of our country, the creators of our national wealth, those who care for and protect our people.
The ANC support this report. I thank you, Chair.
Question put.
Agreed to.
The HOUSE CHAIRPERSON Ms M G Boroto): Hon members, may I request you to stand and wait for the Chair and mice to leave the Chamber. That concludes the business of the day, and this House is adjourned. Thank you.
The House adjourned at 16:35.
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