TUESDAY, 25 JANUARY 2000 __

                PROCEEDINGS OF THE NATIONAL ASSEMBLY
                                ____

The House met at 11:33.

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

ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.

                          NOTICES OF MOTION

Mr L ZITA: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:

That the House -

(1) notes the recent ambulance-chasing antics of the DP, attempting to make political capital out of human tragedy by criticising Government when people suffer loss of life and property;

(2) believes that this is an attempt to deflect public attention from the internal weaknesses of the party, as evidenced by the demeaning fighting amongst the leadership which has led to an internal inquiry regarding the alleged manipulation and falsification of membership lists; and

(3) calls upon the DP to abandon its negative stance towards transformation while it chases right-wing votes and rather to commit itself to supporting the process of transformation led by the ANC.

[Interjections.] [Applause.]

Mr W J SEREMANE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:

That the House -

(1) notes that -

   (a)  the number of pupils passing with matric exemption has dropped
       from 88 000 in 1994 to 63 000 in 1999;

   (b)  there is an alarming shortage of teachers able to teach
       mathematics and science; and

   (c)  some universities are enrolling students who do not have matric
       exemption as there are insufficient qualified learners who can
       afford a tertiary education;

(2) recognises that South Africa cannot hope to compete on global markets with so few learners available to study technical subjects; and

(3) calls on the Minister of Education to take urgent steps to -

   (a)  encourage pupils to take mathematics and science to matric;

   (b)  prioritise the training and upgrading of qualifications of
       teachers capable of teaching these subjects; and

   (c)  provide bursaries for students studying for degrees which are
       much-needed in our economy.

[Applause.]

Mr M F CASSIM: Madam Speaker, I wish to give notice that on the next sitting day of the House I shall move on behalf of the IFP:

That whereas -

(1) all of South Africa mourns the massive destruction caused by runaway fires in the Western Cape; and

(2) many responsible authorities were to blame at organisational and various other levels for allowing the catastrophe to become as big as it did,

the House calls on the Government to invite information from the public, the insurance industry, the firefighters and other interested parties on buildings, areas and places which are high-order fire and accident risks, likely to cause immense destruction, in order for a centralised data base rapidly to be set up for action to be taken.

Mr L M KGWELE: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:

That the House -

(1) notes the shocking statistic that only 3 000 African students obtained their matric last year with higher grade mathematics and science;

(2) recognises that these disciplines are essential if South Africa is going to become globally competitive;

(3) welcomes the appointment by Minister Asmal of a science and technology adviser; and

(4) calls upon all members of the House to assist with the promotion of science and mathematics in the schools in their constituencies by offering any assistance they are able to in order to ensure that we reverse this dire situation.

Dr P J RABIE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the New NP:

That the House -

(1) notes with regret that a number of European Union members have threatened to withdraw from their original position regarding the implementation of the European Union free-trade agreement;

(2) notes that it appears that some European Union members are determined to deviate from the original agreement in order to protect their vested interests; and

(3) is of the opinion that the European Union free-trade agreement is of vital importance to trade and industry in Southern Africa and appeals to all role-players concerned to honour the original agreement.

Ms A VAN WYK: Madam Speaker, I hereby give notice that at the next sitting of the House I shall move:

That the House -

(1) acknowledges and congratulates the Minister of Finance on his realisation and acknowledgement that ANC policies are not realistic and that they do not necessarily provide the best possible solutions for the country;

(2) invites the Minister to peruse copies of UDM policy in the office of the Chief Whip of the ANC, Mr Tony Yengeni, who, following his media statements, we have gladly furnished, for his enlightenment, with comprehensive copies of UDM policy, policy that does provide, we believe, the best possible solutions …

[Interjections.]

… for the challenges facing South Africa; and

(3) urges Mr Manuel not to be intimidated by the schizophrenia within his own party, which includes nationalists, communists and trade unionists, but to carry on realistically criticising policies that have been proven unworkable.

Dr S E PHEKO: Madam Speaker, I give notice that at the next sitting of the House I shall move on behalf of the PAC:

That the House -

(1) notes the alarming poverty among the children of this country;

(2) urges the Government to vigorously create a climate conducive to the eradication of poverty by cutting down on large sums of money spent on luxuries, such as the R20 million spent on luxurious cars for Ministers and Deputy Ministers and unnecessary trips;

(3) notes that six out of ten children live in poverty and that there are 17 million children in South Africa - 45,25% of the population;

(4) is of the opinion that the reduction of child poverty must be prioritised through programmes that improve equity and access to basic social services for children; and

(5) is of the opinion that allegations of mismanagement and corruption in administering the programmes aimed at eliminating child poverty must be urgently investigated and the culprits must be given the most severe punishment.

Adv P S SWART: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:

That the House -

(1) notes -

   (a)  the tragic and unnecessary deaths of hundreds of our fellow
       citizens on our national roads during the festive season,
       including the latest bus accident on 23 January 2000 in the
       Eastern Cape which claimed another 30 lives;

   (b)  that the Arrive Alive Campaign has once again failed to curb or
       decrease this tragic loss of life; and

   (c)  that Government has failed to implement either the Road Traffic
       Management Corporation Act, published in the Gazette of 20 April
       1999 or the Administrative Adjudication of Road Traffic Offences
       Act, published in the Gazette of 11 September 1998;

(2) offers its condolences to the families and friends of all the road victims; and

(3) calls on Government immediately to implement all traffic Acts that have been passed and to fulfil its obligations to ensure safety on our roads.

Prince N E ZULU: Madam Speaker, I give notice that on the next sitting day of the House I shall move:

That the House -

(1) notes that while whereas South Africa has embarked on a great journey towards total transformation underpinned by the most democratic constitution on the continent of Africa and the President of the Republic has signalled that this is the dawn of the African century and the beginning of the African renaissance, the prognosis for a great moral, artistic and intellectual awakening remains bleak on account of wars, violence and the overthrow of elected governments; and

(2) calls on the Government, and on the President in particular, to seize on Inkosi Buthelezi’s ringing call for a revolution of goodwill as a necessary and important ingredient for the new awakening and to factor this into the African renaissance equation.

Mr B M SOLO: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:

That the House, commending the announcement by the Minister for Provincial and Local Government of the municipal projects to benefit from the Local Economic Development Fund of R42 million of the Department of Provincial Affairs and Local Government and recalling the remark of the Minister that: ``The overwhelming response to this fund is indicative of the seriousness of municipalities as it relates to their constitutional mandate to be developmental in their character’’, calls on those with means, both individuals and organisations, to contribute to the solution of the employment problem by matching Government funding to support municipal initiatives to create employment.

[Applause.]

Mr R S SCHOEMAN: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the New NP:

That the House, in view of the continuing instability and authoritarian rule in the nondemocratic Republic of the Congo, calls on the Government of the Republic of South Africa -

(1) to do all in its power to ensure the immediate and complete implementation of the ceasefire agreed to in terms of the Lusaka Accord;

(2) to exert maximum pressure to ensure the speedy establishment of the national dialogue agreed to in the accord, which is already significantly overdue;

(3) to resist vigorously all actions by the dictator Laurent Kabila aimed at prolonging his undemocratic hold on power; and

(4) to ensure that legitimate home-grown political forces such as, inter alia, the Union for Democracy and Social Progress, led by its president, Dr Tshisikedi, are included in the democratisation process.

Mr C T FROLICK: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move:

That the House -

(1) notes with dismay the imminent closure of at least 700 rural and farm schools in the Eastern Cape;

(2) condemns in the strongest possible terms the apparent lack of interest and intransigence that the provincial government of the Eastern Cape are displaying;

(3) acknowledges that the provincial government is, at the very least, guilty of negligence and possibly even gross human rights violations as a result of its inability or unwillingness to supply transport and other subsidies, as well as the payment of rent for school buildings; and

(4) calls on the Office of the President to respond to the crisis immediately since the President received a letter from concerned parents as early as August 1999.

Ms N R BHENGU: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:

That the House, noting the outstanding performances of a number of individual and team sportspersons on the international stage -

(1) congratulates -

   (a)  Hansie and the boys on winning the Millennium Test series
       against England;
   (b)  Ernie Els on winning the Million Dollar Challenge at Sun City;

   (c)  Amanda Coetzer and Wayne Ferreira on winning the Hopman Cup in
       Australia;

   (d)  Elana Meyer on winning the Tokyo half marathon; and

   (e)  Bafana Bafana on the successful start to their African Nations
       Cup campaign; and

(2) wishes Bafana Bafana well for the rest of the African Nations Cup and the best of luck to the national cricket team in the triangular limited overs series.

[Applause.]

Dr C P MULDER: Mevrou die Speaker, ek gee hiermee kennis dat ek met die volgende sitting van die Huis namens die VF sal voorstel:

Dat die Huis -

(1) sy dank en tevredenheid uitspreek met die pogings wat tans aangewend word om blywende vrede in Burundi te verkry;

(2) die wens uitspreek dat die mense van Burundi en die Groot Mere-gebied ingevolge hierdie proses nou eens en vir altyd toegelaat sal word om hul eie toekoms te bepaal; en

(3) ‘n beroep op president Mbeki en die ANC-regering doen om die lesse van die etniese konflik in Burundi ter harte te neem en te besef dat etnisiteit betyds verreken en erken moet word omdat die ignorering daarvan altyd katastrofale gevolge het. (Translation of Afrikaans notice of motion follows.)

[Dr C P MULDER: Madam Speaker, I hereby give notice that at the next sitting of the House I shall move on behalf of the FF:

That the House -

(1) expresses its gratitude for and satisfaction with the efforts that are currently being made in securing a lasting peace in Burundi;

(2) expresses the wish that in accordance with this process the people of Burundi and the Great Lakes area will now once and for all be allowed to determine their own future; and

(3) appeals to President Mbeki and the ANC Government to take the lessons of the ethnic conflict in Burundi to heart and to realise that ethnicity should be taken into account and recognised timeously because ignoring it always has catastrophic results.]

Mr D H M GIBSON: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:

That the House -

(1) deprecates the manner in which Mr Parks Mankahlana has displayed his contempt for Parliament and its committees by anticipating the findings of the ad hoc committee charged with recommending the sanctions to be implemented against the Minister for Justice and Constitutional Development as recommended by the Public Protector; and

(2) urges him to -

   (a)  apologise to Parliament for his actions; and

   (b)  refrain from repeating this unacceptable conduct.

[Applause.]

Dr B G MBULAWA: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:

That the House -

(1) notes that the Transnet Phelophepa Health Care Train, which offers clinic services to rural dwellers, is operating in the Eastern Cape this week;

(2) further notes that since 1994 staff on board the train have treated more than half a million people, delivering services in basic health care, health education and counselling; and

(3) commends the sponsors and health professionals who provide the service for their outstanding contribution to the health of the needy of our nation.

[Applause.]

                    BUS ACCIDENT IN EASTERN CAPE

                         (Draft Resolution)

The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:

That the House -

(1) notes the tragic bus accident which occurred on Sunday, 23 January 2000, between Queenstown and Cofimvaba in the Eastern Cape which resulted in the loss of 26 lives and injuries to many passengers;

(2) extends its condolences and support to the bereaved; and

(3) wishes the injured a speedy recovery.

[Applause.]

Agreed to.

                      HOURS OF SITTING OF HOUSE

                         (Draft Resolution)

The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move the draft resolution printed in my name on the Order Paper, as follows:

That, notwithstanding Rule 23, the hours of sitting of the House for the remainder of this week shall be as follows:

(1) Tuesdays to Thursdays:

   14:00, or such later time as the Speaker determines, to adjournment;
   and   (2) Fridays:


   09:00, or such later time as the Speaker determines, to adjournment.

Mr D H M GIBSON: Madam Speaker, the matter has not been discussed with my party and I am not sure whether it has been discussed with any other members of the opposition. For that reason, I am not in favour of the motion.

The SPEAKER: Order! I do not think this is a matter for debate, Mr Momberg. What I would suggest, as we cannot proceed with the motion if anybody … [Interjections.] It is on the Order Paper, so we can proceed with it even if there is an objection. Are there any other objections? If not, those …

Mr K M ANDREW: Madam Speaker, may I just point out to you that this is a resolution which proposes that for the whole of this year, a certain rule of Parliament be changed. Now, surely the normal procedure is to take that to the Rules Committee of the National Assembly so that the Whips of the various parties can hear what the motivation for it is, discuss it and maybe support it or suggest amendments. I would like to appeal … [Interjections.]

The SPEAKER: Order! I think we are now debating the motion.

Mr K M ANDREW: Yes, I know. I am debating it.

The SPEAKER: No, I am suggesting we cannot debate it at this point. I would like to suggest, if you would, please, that we accept it now because it concerns something immediate, but that it does get taken either to the Rules Committee or be settled by consultation amongst parties. [Interjections.] In other words, I am agreeing with you but saying we do not need a debate on that point.

Mr K M ANDREW: Madam Speaker, yes, we may not need a debate, but I do not know why we need to accept it now, because I do not know what the essential differences are, as opposed to the existing Rules, and why it has to say this week or some other period, or the remainder of 2000. This is surely entirely inappropriate. Once we have supported it, we would then have to wait until there is a Rules Committee meeting and some recommendation, something which could take weeks or months.

The SPEAKER: We did this last year as well, so I think the Rules do need to be changed. In the interests of the House, could I suggest to the Chief Whip that we accept it for the week, and that there be consultation, after which we continue for the year? If that is acceptable, it will be amended to ``for this week’’, and there will be consultation amongst parties thereafter. Is that acceptable?

Mr D H M GIBSON: Madam Speaker, is it being proposed that the motion should read ``for the remainder of this week’’?

The SPEAKER: Yes, that is really what I am suggesting from the Chair.

Mr D H M GIBSON: Madam Speaker, on that basis, and for the smooth running of the House, the DP will support the motion. However, we do so with the reservation that this motion was on the Order Paper last week and a portion of it was held over for today so that discussions could take place, and none did. I think it is a lapse of good manners. [Interjections.]

The SPEAKER: Hon members, as amended, the motion will read`` for the remainder of this week’’. Is that accepted? [Interjections.] If there are no objections, we can proceed.

With leave, altered motion put and agreed to, namely:

That, notwithstanding Rule 23, the hours of sitting of the House for the remainder of this week shall be as follows:

(1) Tuesdays to Thursdays:

   14:00, or such later time as the Speaker determines, to adjournment;
   and

(2) Fridays:

   09:00, or such later time as the Speaker determines, to adjournment.

                    ALLOCATION OF SPEAKING TIMES

                         (Draft Resolution)

The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move the draft resolution printed in my name on the Order Paper, as follows:

That, notwithstanding the provisions of Rule 106, the following times be allocated to parties for comment on today’s statement by the Minister for Provincial and Local Government:

 Minister: 15 minutes; African National Congress: 25 minutes; Democratic
 Party: 6 minutes; Inkatha Freedom Party: 5 minutes; New National Party:
 4 minutes; United Democratic Movement: 3 minutes; all other parties: 2
 minutes each.

Agreed to.

                         DISASTER MANAGEMENT

                             (Statement)

The SPEAKER: Order! Hon members, I should advise you that the Minister for Provincial and Local Government requested an opportunity, in his capacity as chairperson of the Interministerial Committee on Disaster Management, to make a statement. I also had requests from parties and members that we debate the fires in the Western Cape, as well as other disasters. Accordingly, I agreed to the Minister making his statement, and that it would be followed by an hour’s debate.

The Minister informed me yesterday that he would be accompanying the President today at the meeting with the delegation of amakhosi from Kwazulu- Natal, and that he had requested hon Minister Kasrils, who is a member of the interministerial committee, to read his statement to the House. I also subsequently got the request in writing. Accordingly, I now call upon Minister Kasrils. [Interjections.] [Applause.]

The MINISTER OF WATER AFFAIRS AND FORESTRY: Madam Speaker, hon members - all included - disasters show us nature at its most violent and unforgiving, but they often bring out the best in people.

A few days ago, the citizens of this province experienced some of the most frightening fires in the Cape’s history which were caused by a combination of factors. Flames devoured plants, fuelled by high-risk invading alien vegetation. Very low rainfall meant that the veld was unusually dry, and a howling southeasterly wind drove the fire further and further across the peninsula, making it almost impossible to control. Temperatures, as we all experienced, rose to over 40 degrees.

Homes were destroyed, and a pall of smoke hung over the area, as though in mourning for the terrible destruction wreaked by the fire. It looked as though - and I think it was the Minister of Defence who made the point - a nuclear bomb had been dropped on the peninsula. Throughout these ghastly days people from all backgrounds came out into the stifling heat to assist. Emergency services did sterling work, reinforced by their colleagues in other provinces, Ministers, MECs and local government officials, and some members of Parliament - well done to hon Tony Yengeni and Minister Lekota - welfare institutions and NGOs, the SAPS and the SANDF, and at their side, ordinary civilian volunteers who worked tirelessly in the battle to extinguish the fires.

The details of the remarkable way in which national, provincial and local government responded are documented. The report is available to anyone who wishes to have a look at it, and despite inevitable hiccups, a gallant and commendable effort was maintained. Some worked for days without sleep. Others joined them when they heard how exhausted the firefighters were. Still others brought food and provided shelter, and all over the country, people stared aghast at the images on our television screens, horrified at the spectre of a fire that at times seemed as though it was all-engulfing. For many, of course, the fire is not over. The damage it has caused will cost millions of rands to repair. Homes have been destroyed, wildlife has been killed and vegetation razed. The trauma of this fire will live on for a long time.

When all is said and done, however well we prepare, disasters will occur. We have witnessed several disasters in our country over the past months. We all remember the freak storm that devastated Manenberg and Guguletu last August. Last December, just before Christmas, torrential rains caused flooding in most parts of the country. Some of the most devastating flooding occurred in the Durban-Pinetown and surrounding areas, where 17 people lost their lives and many were injured. In the Northern Province, several rural villages were cut off. A number of houses collapsed, roads were closed and three people were reported drowned. In the Eastern Cape, rooftops were ripped off by strong winds, homes damaged and trees uprooted in the Umtata area.

Inevitably, the cost in human life, injuries and loss of property are the legacies of these disasters. Although nature is indiscriminate in its fury, it is usually the poor and the dispossessed who, simply by virtue of their precarious existence, suffer the most. The question is, what can we as Government do to reduce our vulnerability to the effects of natural disasters and the vulnerability of our people and our country? In fact, it is pertinent to question just how natural some of our natural disasters really are, and to concede that many of the problems lie in the inequities of the past, based on poverty and malpractice, and the hill that we must climb to raise South Africa out of the ashes of the apartheid past.

In Pinetown, for example, dwellings built by the poor on the banks of the river, were swept away in the floods, and not for the first time. People cannot be allowed to put themselves at risk by building in flood-prone areas such as the river banks. Their fate reflects a need to plan properly, to enforce appropriate options and to seek viable alternatives. That is very much an issue for the local government to enforce.

Similarly, Government has developed a major focus on land use practice. Poor land use practices over the decades in the past have increased the intensity of almost every flood which we are witnessing. Overgrazing, erosion, the invading alien vegetation, the destruction of our wetlands, planting too close to river banks or planting on steep slopes are all major contributing factors. The solution is being provided by Government’s planning, through education, through the enforcement of our wise legislation, through giving people viable choices and through partnerships and co-operation.

In looking at disaster management, we must also consider the global influences. We recall the threat of El Niño two years ago, and the sea temperature phenomenon that threatened drought in many parts of the world. Although the disaster did not materialise, the decision to invest against risk was amongst the difficult decisions we made and will continue to have to make. The crucial decision is always the extent to which we commit scarce resources to counter a perceived threat and to what extent we accept a level of risk.

Individuals have choices too. The recent fires that swept through the Cape showed that many property owners were either ignorant of the risks they faced or were prepared to take the risks. For some time now our Government has focused its concern on problems caused by alien vegetation, often in the face of great opposition from property owners and some sections of the public. Perhaps a lesson has now been learned.

We need to clear all invading alien plants. We need to ensure that effective fire breaks are in place in terms of the National Veld and Forest Fire Act of 1998 and undertake ecologically sound block burning of the natural vegetation. We are investigating how these firebreaks were organised and maintained in the Cape Peninsula, and the extent to which they may not have been properly maintained. The Act is clear:

Every owner on whose land a veldfire may start or burn … must prepare and maintain a firebreak … between his or her land and any adjoining land. Those living next to fire-prone vegetation need to fireproof their dwellings. We need to look at zoning and property development, and the impact that our planning decisions have on the potential damage during disasters.

The insurance industry needs to reassess fire risk in such circumstances and the way in which the risk is borne by those with insurance. After all, a shift of a few degrees in the wind can cost the insurance industry billions. They must recognise the need to protect their stakeholders’ investments.

Government too has acted quickly to put measures in place. Within a matter of days of the fire, we - the Minister of Environment and Tourism and I - were able to announce that our Working for Water programme would put R2,5 million into countering the severe problem of regrowth of these unwanted weeds that are borne to burn. Other measures are under discussion and will be announced soon.

Mitigation is one side of the story. The other relates to planning and foresight. We as Government, must at all levels - national, provincial or local - continue to take steps to ensure that we are properly prepared. We need to be able to react fast when disaster strikes in order to minimise the damage that may be caused. In this respect we must commend the many people from the different structures of government who moved into action with speed and efficiency. When it became clear that reinforcements were needed during the fire, Minister Mufamadi arranged for the deployment of emergency services from Gauteng. They flew down to fight side by side with their Cape colleagues and with those from Minister Lekota’s National Defence Force, and our police services in carrying out the most sterling work. This kind of co-operation and teamwork is essential in any disaster.

One of the ways of ensuring an efficient and effective response is through co-ordinated preparation and planning. The establishment of the National Disaster Management Centre in order to deal with the possible threat of the millennium bug is a case in point. During elections joint operational centres were set up in advance in case problems developed. Such centralised structures make it easier to mobilise forces when disasters occur.

One of the problems in the Western Cape has been the multiple responsibility by a variety of structures and services, militating against the optimum co-ordination of effective actions. Thankfully, this will now change with the establishment of the new megacities which are a fundamental aspect of this Government’s policy. Co-ordination is always the key to successful management and will help us to overcome some of the initial management problems that surfaced during the peninsula fires. In addition, we will be looking in greater depth at the underlying reasons for the severity of this fire and the lessons that can be learned for fire management. We shall be bringing in international experts to help us to do this, and ensure that the focus is on fire protection and not on turf protection.

The success of the National Disaster Management Centre, in particular, has persuaded Government of the good sense of creating a permanent disaster management centre. This is the purpose of the Disaster Management Bill gazetted by the Minister for Provincial and Local Government four days ago. The Bill departs from the previous disaster management strategy that focused mainly on response, recover and relief and changed to preparedness and mitigation of the consequences of disasters. Good disaster management depends on co-ordinating the efforts of all three spheres of Government: national, provincial and local, including the emergency services and other organisations. It requires teamwork, a partnership committed to common goals.

The National Disaster Management Centre will concentrate on strengthening co-ordination and our ability to manage disasters, as well as taking steps to reduce community vulnerability to their effects. We are all horrified by the random cruelty of natural disasters. These days, with our instant access to world news, we sometimes seem to share in the terrifying events that take place worldwide. Our planet experiences earthquakes, floods, hurricanes, volcanic eruptions and other horrors which we see on our television screens and in our newspapers, and hear about on the radio. Our hearts go out to those whose lives, families, homes and communities are devastated.

There is often little that we can do to help, although we are sometimes able to provide relief or assistance. What we can do is to profit from each other experiences and learn to plan, prepare and act with speed and efficacy when disasters occur. We can find ways to prevent unnecessary damage and suffering by constantly improving on the way we respond when the first flare goes up. It is this that my Government has committed itself to do and is determined to do, as well as to improve upon and perfect as far as is humanly possible. On behalf of President Mbeki’s Government, I wish to express our heartfelt sympathy to all those who have suffered in these tragic disasters. [Applause.]

Mr J SELFE: Madam Speaker, we in the DP would like to extend our condolences and sympathy to those people who lost loved ones, property or prized possessions in the series of natural disasters that have hit South Africa in the recent past. These disasters have come in the form of floods, wind, storms and fires. They have struck KwaZulu-Natal and the Western Cape and carved a trail of destruction and misery.

The DP sent teams to see the extent of the devastation in Durban, the Peninsula and on the West Coast. We would like to extend our thanks and appreciation to the staff of the emergency services who worked professionally, tirelessly and selflessly to avoid the spread of these disasters and to cope with their consequences. We salute each and every one of them. Along with the professionals, we salute the thousands of volunteers who, when the call went out, responded in their many numbers to help.

The natural disasters we have recently lived through were horrendous. They were also becoming increasingly common. Some argue that they are as a result of weather patterns changing or global warming. Whatever the reason, I suspect that these natural disasters will become a regular feature of life in South Africa, and we must learn to anticipate them and cope with them. If there is anything positive that can come from these disasters, it is that we need to learn to deal with them more effectively and speedily.

The question is: Do we learn from our mistakes? Each time there is a disaster a debriefing is held, but are the essential lessons learnt and communicated to those people who need to learn from them? We believe that there are several lessons that need to be learnt from the recent fires in the Western Cape, and members will forgive me if I concentrate on these.

In our view, there are short-term and longer-term steps that must be taken in the aftermath of the fires. In the short term, we must avoid compounding the damage. For example, we all know that the fires have left the mountainside extremely vulnerable to mud slides if it should rain now. The mountainsides need to be stabilised very quickly, and local authorities must know that money is available from other spheres of government, if needed, to perform these essential public works.

However, there are other longer-term steps that we must consider and Minister Kasrils dealt with some of them. Firstly, we must improve our disaster management co-ordination, and this process needs to be driven by central Government. In the Western Cape, a variety of different institutions were involved in firefighting. Each institution reported to a different authority, each was using different equipment, and each used different radio frequencies and had different priorities. At times, their efforts were chaotic. Too little was done too late, and as a result, the damage was far worse than it could have been. It was only after the metropole was declared a disaster area that this co-ordination was effected, and the fire was brought under control within the space of 12 hours.

Secondly, we must increase our disaster management capacity. In this, all organs of state have a role to play. The SA National Defence Force, in particular, can play a crucial role, since it has the personnel and equipment that allows it to react effectively and rapidly in emergency situations. I have discussed this matter with the Minister of Defence and hope that we can create a disaster management force within the SA National Defence Force.

Thirdly, we must have the capacity to react more quickly, and the Minister made reference to this. We know that high summer is the season of fires in the Western Cape. We need to have the right personnel and the right equipment on stand-by. The question needs to be asked as to why that equipment and personnel were not on stand-by. Specifically, we need to have helicopters readily available to be able to deal with the fires before they get out of hand.

Fourthly, we need to create and maintain firebreaks. Where these existed, and where they had been maintained, they proved enormously valuable in containing the fires and saving property. Sadly, not all the firebreaks were created and maintained, apparently because of budget cuts and other administrative problems. We need to find out why that was the situation and we need to put it right.

Fifthly, we must do far more to educate the public, because in the end, it is usually a member of the public who starts a fire of this nature. We must teach the public how to avoid disasters and how to cope with them once they have started. For example, one of the major problems in the South Peninsula last Wednesday was not the volunteers, it was actually people coming there to sightsee.

In conclusion, we cannot let these situations recur. We must set this matter right. We owe it to those people who suffered during these disasters, and we must be very focused about getting it right. [Applause.]

Mr J H MOMBERG: Madam Speaker, on behalf of the ANC, I want to thank the Minister for the clear-cut message he sent out about dealing with disasters. I have been the member of Parliament for the Simon’s Town/Fish Hoek area since 1989, and most of the big fires which raged in the Western Cape last week fell inside my constituency. Those devastating fires of last week sent shock waves throughout our country. It follows on the devastation brought by the hurricanes to Guguletu and Manenberg. The devastation created new heroes and showed how much goodness there is in our people when others need it most.

All hell broke loose in Simon’s Town on Wednesday afternoon. Fires were jumping 600 metres high at times, water pipes were bursting in the main street and a motor car caught fire. At one time, fires were burning right behind the houses and shops in the main street. A helicopter waterbombed the fire and scored a direct hit that extinguished the fire and saved the town.

I visited the owners of houses that were destroyed. The Alexander family lives in Glencairn, and they could only build their house after the Group Areas Act had been repealed. The 66 year old Mr Alexander is a retired builder who lovingly built his dream house brick by brick. It took the fire five minutes to destroy that dream.

There are three informal settlements in the area that has been ravaged by the fire, and all of them were threatened at various times. Fortunately, nobody was injured and no damage was reported. This is a blessing from the Almighty, since we all know the vulnerability of informal settlements to fire hazards.

I want to pay tribute today to the various groups which fought the fire. To Admiral Koos Louw and the navy who saved Simons Town, the Police Service, the various fire stations, the firefighters, the CMC and the great many selfless volunteers, we say thank you. [Applause.]

I visited the various command centres and thanked the people. The Oryx helicopter pilots who flew almost 2 000 sorties and dropped 4 million litres of water on the flames, were the people who saved Hout Bay, Noordhoek, Capri, Scarborough, Ou Kaapse Weg and the winelands of Stellenbosch. We are grateful for the gesture of Gauteng Premier, Comrade Mbazima Shilowa, of sending 100 firefighters to our area. They assisted in bringing the West Coast fire under control. The Western Cape is now licking its wounds and counting its losses.

The first objective is to make sure that this does not happen again. Why were the fires so devastating and so widespread? Some people say it is sabotage. Maybe so, but it is also a fact that it was the hottest period in 50 years. There is too much alien vegetation which fans the fires and makes it difficult to reach the burning areas. It is clear that the existing measures were insufficient to prevent the loss of millions of rands worth of agricultural and residential property, not to mention the trauma suffered by thousands of residents whose properties, from luxurious mansions to informal dwellings, were threatened by the fires.

According to fire prevention specialists, prevention lies in three areas: public awareness, creating firebreaks and control burning. The public should also be made aware of the dangers of fires and the need for responsible behaviour, such as avoiding throwing cigarettes out of car windows.

Another major problem preventing a uniform fire policy is the fact that five different local authorities control the areas. When the new megacity comes into effect later this year, a meaningful fire prevention policy must be put in place as a top priority. I sometimes get the impression that there is a reactive mindset instead of a proactive one. Some areas had not burnt for 30 years and were disasters waiting to happen.

Another crisis that is waiting in the near future, as the hon Mr Selfe has pointed out, is mudslides when the winter rains start falling and the devastated land that is without any vegetation starts sliding. I want to urge the South Peninsula Municipality to start planning now in order to prevent another disaster.

In conclusion, and as things go back to normal, let us learn from the past week’s disaster. I want to call on all political parties not to politicise this disaster as the DP has already done. [Interjections.] Let us put in place, as communities, local and provincial authorities, and disaster management and rescue services, effective plans that will ensure that disasters are managed in the way that is least disruptive, sympathetic to victims and which overcomes the effects of disasters speedily.

Let us be thankful that no lives were lost, and let us thank those who worked so hard to get things under control. [Applause.]

Mrs L R MBUYAZI: Chairperson, during the first month of this new millennium South Africa has had to bear the brunt of both fires and floods. Over recent weeks brave people from our emergency services and armed forces, as well as individual volunteers, have battled to deal with both the fires that have engulfed the Cape and the floods which assailed much of the rest of the country. I wish, first of all, to commend all those people for their bravery and willingness to risk their personal safety in order to protect their communities. The whole of South Africa owes them a debt of gratitude and, on behalf of the IFP, I offer these courageous people and the Minister of Defence our sincere thanks. I also wish to extend our condolences to the families and friends of those who died in the recent flooding and those who lost their property to fire in the Cape.

As the firefighters were gallantly tackling the fires throughout the Cape Peninsula, Cape Town witnessed the highest temperatures ever recorded for the city. It is too early, of course, to say whether the recent hot weather in the Cape and torrential rains elsewhere were just some of those freak incidents that occur from time to time or whether it was part of the broader environmental factors which are altering weather patterns throughout the world.

What we do know, however, is that a wealth of scientific evidence now exists that demonstrates beyond doubt that human actions are having a very serious effect upon the global environment. Yet, despite all this evidence, environmental conferences, the global summits and the fine-sounding resolutions, we seem unprepared to take the tough decisions necessary to protect the environment which provides us with the air we breath, the food we eat and the water we drink.

Much of the failure is due to a lack of commitment on the part of the rich industrialised countries which account for the vast majority of the pollutants which are daily pumped into the atmosphere. But we South Africans also have a duty to protect the environment here in South Africa, and often we fail to discharge this duty adequately.

We read that one of the reasons that the fires in the Cape spread so quickly was that the nonindigenous vegetation that has been planted burns much more rapidly than our native vegetation, that is our indigenous forests, which are much more resistant, hence the fires spread more rapidly than might otherwise have been the case. This should teach us the dangers of interfering with our natural environment.

I understand that the authorities in the Cape are currently seeking to clear this nonindigenous vegetation, but that it is a time-consuming and costly business. We in Parliament and in Government must ensure that we play our part by ensuring that resources for such important work are made available. Over the next few weeks I am sure that the relevant authorities will be reviewing the way in which both the floods and the fires were dealt with and considering how to minimise the chances of these events being repeated. This will be a very important process because the sooner we can learn a lesson from these occurrences, the better we will be able to deal with them in future.

If anything good came out of the events of the past few weeks it is the fact that those events can act as a wake-up call for all of us. Let the fires and floods remind us that despite all the technology and the advancements of the previous centuries, we remain extremely vulnerable to the environmental forces. Let us remember that we who are here today do not own the earth. Rather we hold it in trust for those who will come after us. Each one of us has a duty to ensure that the world we hand over to our children is in good repair. If we can act now we can still prevent environmental catastrophy, but the clock is already ticking. Any further delay, and we will find that we are too late. [Applause.] Mrs M E OLCKERS: Mr Chairman, the New NP finds it disturbing that the Minister for Provincial and Local Government requests a debate that is of national interest but has such disregard for Parliament that he is not attending the debate. [Interjections.] Something else seems to be more important than Parliament. Surely, better planning between the Office of the President and the Office of the Minister could have taken place. [Interjections.]

The New NP also shares in the sadness and the loss of the people who lost everything in the fires and the floods. We also pay tribute to all those who assisted in fighting the fires. In the case of the recent devastating fire, the four so-called Joint Operational Centres were immediately activated because the powers that be saw that this was not an ordinary fire. The Joint Fire Agreement between Tygerberg and Cape Town was also immediately activated, from the first day, in fact. Therefore no fingers need to be pointed at the local government of the South Peninsula in hindsight.

However, lessons have to be learned from this experience. The Working for Water campaign has been very successful, but it poses a danger of fire if the dead branches are left in heaps to dry. Alien vegetation burns ten times faster than other vegetation. Therefore the Minister of Water Affairs and Forestry should set strict rules about the removal of dead branches that accumulate on the ground. According to firefighters, this was a big problem.

Premier Morkel declared the Peninsula a disaster area on Wednesday. That enabled the various municipalities to ask for assistance from anyone, without red tape. In times of disaster, red tape should not be in the way of helpers. This needs to be streamlined.

However, one must remember that when the last big fire raged in the South Peninsula, what happened afterwards was much worse than what happened during the fire, because after the rain came, there was no vegetation to bind the ground and a mudslide of two kilometres moved down into Fish Hoek Village and Glencairn, and in that disaster more homes were damaged than in the fire that preceded it. The Western Cape will soon be in the rainy season and the same disasters may happen. Therefore we thank the South Peninsula council for already taking steps to employ the Council for Geo- Science and the city engineers to see what can be done about mudslides that could occur. Given the fact that reserve trained groups of people are not available as was the case in the past when there was the conscription campaign in the army, and given the fact that there is no special drive to attract more policemen and reservists and there is no drive to employ more people in the correctional services, the depth of assistance of trained people is very shallow. The Government will have to look into this situation seriously. But prevention is better than cure, and the public at large will have to be better informed about precautionary measures. The public have to be taught that they must also look after their own surrounds so as to eradicate the alien plants around their homes and buildings.

The South Peninsula municipality needs to be commended on the initiative they are taking in setting up a firefighting unit of volunteers that will be trained in firefighting. All local governments should follow this example. The South Peninsula has been hard hit in the past two months from a tourism point of view. First it was the closure of Chapman’s Peak drive and now the lunar landscape that has been created by the fire. All spheres of government need to assist these areas to help to rebuild the infrastructure.

The impact of the fire disaster on the environment still needs to be determined, but already experts tell us that the heat was so intense … [Time expired.] [Applause.]

Mr T ABRAHAMS: Mr Chairman, the fearsome fires that we have experienced in the Western Cape and the recent floods suffered in several parts of the country took their inevitable toll in human lives, homes, pain, loss and discomfort. The UDM feels deeply for the victims and communities who suffered in some way or other in these disasters. A visit to any of the sites which were ravaged by these disasters, particularly by fire, leaves one with a feeling of devastation and empathetic loss.

However, despite the awful experiences of floods, hurricanes, tornadoes and awesome fires, including another home that was burnt down by a primus stove, we, as South Africans, would be wise to count on our blessings. South Africa remains a blessed and very fortunate country, when compared with many other parts of the world. The devastating floods we have simply do not compare in scale, severity or frequency with those in other climes, a ready example being India. When we are shocked by the suddenness of the havoc caused by an earthquake, it can be some consolation to think of several other countries, like Turkey, which recently suffered a similar experience.

The measure of the effectiveness of a government lies, firstly, in the steps it takes to afford assistance during the occurrences and subsequent short-term relief to the victims of disaster, and, secondly, the measures it takes to prevent a recurrence wherever possible. Disasters will happen and they do happen worldwide.

Hats off to the heroic people who risked life and limb to help the system meet the first requirement. We agree full-heartedly with the hon James Selfe from the DP, when he says that a disaster management fund, initiated and co-ordinated by central Government, must be established. We have to be ready for disasters. That is the basic message. It is being done worldwide. Wherever people have become aware of the fact that disasters will happen, they prepare for disasters. We can do it too.

It is my intention to comment on the second requirement. It is sad to note that far too little attention is paid to preventative action, in terms of some of the disasters we suffer. The Cape fires are a case in point. One does not have to be a climatologist to know that the Cape lies in a winter rainfall area. Meteorologists talk about El Niño, while ordinary people know from pure observation that Cape summers are getting longer, drier and hotter. While the latest fire was a massive one, it is not only the learned who know that fires usually break out in the Cape at about this time and that the Southeaster is there to help them. [Time expired.]

Mr M MPEHLE: Mr Chairperson, hon Minister, hon members and comrades, we enter this debate with, indeed, heavy hearts. Yes, heavy and painful hearts, precisely because of what is happening as a result of disasters that are confronting our people.

At no time are we certain that those of our people who still have shelter at the moment will have shelter by nightfall. Flooding due to widespread rain occurs intermittently in vast areas of our country. I am not starting with the fire disaster in the Western Cape, as this has certainly been widely covered by all the other speakers.

I would like to direct my attention to the areas where we have the majority of disadvantaged people, because these are the people who suffer most whenever disasters visit them. I refer to the people of those areas, whether they are in Ladysmith, which was flooded in 1994, resulting in 400 families being evacuated from their homes, or whether they are in Pietermaritzburg, which was flooded in 1995, where 173 lives were lost and 5 500 people lost their homes.

When we look at the statistics in the areas where these are taking place, we will find that the majority of people who were generally historically disadvantaged in this country have become the victims of these disasters. I am certain that the people of Tsolo, the people of Mount Frere, the people of Matatiele and the people of Mpumalanga will agree with me, because they constitute the poorer sections of our population. When disasters come, they are the hardest hit. Perhaps we here will not be hit so hard by these visitations, because we can afford to rush with our motor cars to areas where we must report disasters and because we can afford to live in places where, at least, the effects of disasters are not as severe as they are in those areas.

We all know what has been happening in the Eastern Cape where one has had torrential rains and all kinds of visitations, flooding being one of the most important of these. If we take Pietermaritzburg, we will find that in 1995, in the areas where one mostly had disadvantaged people, floods resulted in the deaths of many people. In 1996 floods damaged the entire infrastructure of Ladysmith and, again, if we concentrate on those areas, we will find that it is mostly the historically disadvantaged people who are adversely affected by disasters. So when one considers these, one must understand that it is because of the socioeconomic conditions under which the majority of the people in our country live today that they are the prime victims of these disasters.

The people of Qumbu, in Lower Tyirha, in Blackhill, in Sulenkama, in Umtata, in Mount Frere and in Lady Frere are my witnesses in this regard. On 1 January 2000, at 16:25, heavy rains fell in these areas. One person was reported dead, struck by lightning, and seven people were injured. The exact numbers are not yet known. Some of the people who sustained injuries in Blackhill and Qumbu were conveyed to Sulenkama Hospital and some were conveyed to Umtata General Hospital.

Vehicles on the national road between Qumbu and Sulenkama were badly damaged and in Blackhill the roofs of a shop, church building and schools were damaged. Trees were uprooted, damaging a sheep kraal and killing a number of sheep and chickens. In Umtata, in a place called Location, a number of homesteads were damaged. When poor people suffer damages of this nature, the first question is their survival and where they are going to sleep that night. Therefore I should indicate that our Government has taken drastic measures to address these disasters throughout the country. When this happened in Ncambele, the Minister of Health from the Eastern Province legislature was there. In Tabankulu at the Dambeni location, the Minister of Health was there two days later in order to assess the damage caused by these disasters.

All in all, I think I would like to commend our Government for the steps and the measures it has taken to address these disasters. It is true, of course, that more is going to be done and that we cannot address all these problems and solve all of them in one day in all the areas where they occurred. [Applause.]

Ms C DUDLEY: Mr Chairperson, hon members, the ACDP wishes to express its sincere condolences and sympathy to communities devastated by the recent spate of fires around the Cape Peninsula and the floods in KwaZulu-Natal, and empathises with those who have suffered the loss of homes and family valuables. However, we thank God for His protection of many during these terrifying times.

We also wish to express our sincere thanks to the many unsung heroes such as volunteers, civic organisations and communities, as well as the navy and fire departments, for their unselfish and brave efforts to bring the disaster under control. Throughout South Africa, where natural disasters have struck, our people have shown courage and voluntarism in helping one another in a time of crisis. This is to be commended and encouraged. If we as people possess these qualities, why is it that there is so much hostility and violence displayed at other times?

The ACDP believes that the answer lies in our being too slow to nip in the bud the malicious activities of the criminal minority who seek to undermine and paralyse the good works of the majority of people of this country. With this in mind the ACDP believes that the causes of the recent fires need to be investigated thoroughly to allay the suspicions among some communities.

Many lessons have been learned through these natural disasters, not least that South Africans collectively have proved that if the Government will apply itself to effective and good governance, then this nation will be able to face any obstacle and overcome it with national pride and commitment. Disaster management, therefore, to be effective, must, in its primary focus, acknowledge and preplan to utilise the energy and resources of volunteers in a positive manner. Local authorities may be encouraged that as they take the lead in preparing to avoid future disasters which affect the health and safety of our people, communities will respond positively for the benefit of the whole nation. [Time expired.]

Mr G E BALOI: Mr Chairperson, it is very important to know how disaster can be managed in order to save lives and prevent economic loss and damage to property. This management should also aim to protect the environment or anything that might be endangered.

When we talk of disaster we really talk of a monster with many heads. What kind of a disaster are we talking about? Disaster can come in many ways, such as floods, fires, tornadoes and cyclones.

With regard to flooding, the Government and municipalities can prevent disaster by conducting certain activities before it occurs. These can include constructing dams to control flood water and ensuring that there are proper socioeconomic development and active ownership and participation by the communities.

Now I come to fires. Fires must be prevented by legislation, national building regulations and municipal by-laws. The Fire Brigade Services Act of 1987 covers fire-fighting, rescues and emergency medical operations.

With regard to tornadoes and cyclones, it is the responsibility of the Weather Bureau to immediately warn the responsible authority at local level of imminent danger. This will allow the local authority to mobilise resources in time to deal with the effects of tornadoes and cyclones.

Burgerlike beskerming is van die uiterste belang. [Civil protection is of the utmost importance.] Part A of Schedule 4 to the Constitution identifies disaster management and related issues as functional areas of concurrent national and provincial legislative competence. In 1997 the Cabinet approved the formation of an interministerial committee on disaster management, the so-called IMC.

Mrs P DE LILLE: Mr Chairperson, the Departments of Welfare, of Water Affairs and Forestry and of Provincial and Local Government must design a clear-cut policy for dealing with natural disasters. It is clear that these departments have proverbially been caught asleep while the house was burning down. The policy must have a national strategy that will co- ordinate at national, provincial and local levels. This is necessary, because currently we have a trend of Ministers visiting disaster areas, doing a walk-about and making all kinds of promises, whereupon they return to the safety of their homes. To prove my point, I want to cite the cases of the survivors of the 1998 Eastern Cape and 1999 Western Cape tornadoes as examples of this bureaucratic bungling.

These poor people have, to this day, received very little or no assistance at all. The people of Manenberg and Guguletu are entangled in a fight with the Cape Town City Council because the council wants to experiment with an urban renewal project at the expense of the people who are suffering instead of getting on with the job of giving the survivors homes.

During the recent fires in the Cape Peninsula, emergency services were falling over one another’s feet because local authorities did not plan properly and they did not have a workable disaster management plan in place.

In closing, the PAC must urge that a clear set of guidelines has to be developed to help survivors access a natural disaster fund; secondly, that a national budget be created that is specifically destined to assist the survivors; and, thirdly, that a R30 billion arms procurement process be scrapped and the money be applied for disaster and poverty alleviation programmes.

Dr A I VAN NIEKERK: Mr Chairperson, I would like to extend, from the FA, our condolences to those who suffered during the disasters and our appreciation to all those who helped to contain the fires and the other disasters.

Namate mensgetalle toeneem, ook in Suid-Afrika, sal die effek van natuurrampe al hoe meer mense raak, en namate ons meer kennis opdoen, sal ons ook beter in staat wees om rampe te kan hanteer. Daarom stem ek saam met wat die Minister gesê het, naamlik dat dit noodsaaklik is om ‘n koördinering te hê van al die infrastrukture wat ons in die land het om vinnig te kan reageer. (Translation of Afrikaans paragraph follows.)

[As the population increases, also in South Africa, the effect of natural disasters will impact on an increasing number of people, and as we acquire more knowledge we will also be better prepared to deal with disasters. I therefore agree with what the Minister has said, namely that it is essential to have co-ordination of all the infrastructures we have in the country, in order to be able to respond quickly.]

The key to dealing with disasters is a quick reaction time. It is easier to contain a small fire than a big fire. But usually we wait until the clouds form a mushroom before we really get our act in place, and I think that is the importance of having a disaster centre where people can react quickly, and from where a telephone call could bring a reaction team to the area.

Another point is that there are many different types of disasters, for instance in the mining industry and agriculture, and each has to be dealt with in terms of a different infrastructure. I think it is important that we have the co-ordination centre to do that.

Ek wil ook graag iets sê oor die kwessie van natuurlike plantegroei versus uitheemse plantegroei. [I would also like to say something about the issue of indigenous vegetation versus foreign vegetation.]

I must say that foreign vegetation such as maize is an essential asset for South Africa. It is a question of how to manage the foreign vegetation in South Africa and not how to eradicate it, because it is an economic base which we cannot do without. Another example is pine trees, which are necessary in this country. So it is the unnecessary ones and those which create the hazards which will have to be identified, and not all foreign plants in the country.

The CHAIRPERSON OF COMMITTEES: Order! Hon member, your speaking time has expired. Dr A I VAN NIEKERK: The last point is that in terms of …

The CHAIRPERSON OF COMMITTEES: Order! Hon member, your speaking time has expired.

Miss S RAJBALLY: Mr Chairperson, Minister, and hon members, the spate of sporadic fires in the Cape Peninsula, the floods and mudslides in KwaZulu- Natal and many other disasters throughout the country have caught South Africa off guard. Heroic and noble efforts have been made by the Defence Force, the firefighters, the Air Force, the Cape Argus/Pick ‘n Pay Cycle Tour, the Rotary Club of Hout Bay and many other concerned organisations and citizens to cope with the fire disaster.

It is only human nature that the public at large does not foresee the emergency and disaster, but only reacts to them. This reaction never corrects the wrong and may be attributed to the absence of responsible emergency and disaster management. In terms of prevention and mitigation planning in our cities and informal settlements to provide a safe living environment, it is necessary that city managers and chief executive officers of all major cities and towns secure full partnership with and commitment of private and public sectors to form a partnership to execute proactive and reactive measures to sustain production, protection and development during emergencies and disaster.

The MF applauds all citizens throughout South Africa who assisted in the disasters. The MF empathises with the disaster victims; we wish them well, we love them, and may God give them all the strength. God bless them. [Applause.]

Mnr C AUCAMP: Mnr die Voorsitter, namens die AEB ook ons meegevoel aan almal wat verliese gely het aan lewe of eiendom in hierdie rampe, en ons groot dank aan hulle wat, ook op gevaar van hulle eie lewe af, so ernstig gewerk het om dit te bekamp.

Ek gaan nie vandag my lyf rampspesialis hou nie. Ek kan grootliks aansluit by wat deur elke party vandag gesê is. Veel eerder wil ek my waardering uitspreek dat hierdie debat nie in kleinlike politieke vlieë-afvangery ontaard het nie. (Translation of Afrikaans paragraphs follows.)

[Mr C AUCAMP: Mr Chairperson, on behalf of the AEB we also convey our condolences to all who have suffered losses of life or property in these disasters, and a heartfelt word of thanks to those who, endangering their lives to do so, worked so seriously to combat this.

I am not going to pretend to be a disaster specialist today. I can largely associate myself with what has been said by every party today. I would much rather convey my appreciation that this debate did not turn into a petty political point-scoring exercise.]

To turn the disaster field into a political battlefield would be to add insult to injury, and my appreciation goes to all the parties and to the Minister for not allowing that to happen. Let us remember that in natural disasters we have to hear and listen to the voice of God speaking, sometimes also through the big and dangerous three: water, wind and fire. Petty infighting would therefore not be appropriate, especially not for us here in the cosy protection of this House, while others are mourning their losses.

Sekere maatskaplike omstandighede stel mense meer bloot, ja, maar laat ons onthou, natuurrampe is nie selektief nie. Dit verdien daarom almal se aandag. In breë wil ek kortliks die volgende punte maak. (Translation of Afrikaans paragraph follows.)

[Certain social circumstances do leave people more vulnerable, yes, but we should remember that natural disasters are not selective. For that reason they demand the attention of all of us. In general I briefly want to raise the following points.]

Local responsibility should be enshrined in a framework of provincial and national co-ordination.

Die sleutelwoord is nie megastede nie, maar megakoördinasie; koördinasie tussen staat en gemeenskap, tussen besigheid en individu. Verder is individuele verantwoordelikheid- en bewuswordingsprogramme en voldoende paraatheid, ook by wyse van begroting, ook noodsaaklik. Kom ons stuur van hierdie Huis ‘n sein na buite dat hierdie probleme eendragtig en gekoördineerd aangepak sal word. (Translation of Afrikaans paragraph follows.)

[The key word is not megacities, but mega co-ordination; co-ordination between state and community, between business and individual. Furthermore individual responsibility and awareness programmes and adequate preparedness, also by way of budgeting, are also essential. Let us send out a message from this House that these problems will be tackled in unison and in a co-ordinated manner.]

Mr D A A OLIFANT: Chairperson, let me take this opportunity, firstly, to sympathise with all those families who have lost possessions and important belongings as a result of the devastating fires over the past two weeks. Secondly, I also wish to express my deepest condolences to those families who have lost loved ones in previous natural disasters.

I am also aware that substantial damage has been done to the environment and that it is going to take a very long time for the environment to recover. What needs to be emphasised and commended is the spirit of solidarity among members of the community who have rushed from all corners to help the victims to safety and to assist fearlessly in putting out the fires.

I was personally touched and struck by the devastation of this disaster, but I want to express my regret that the opposition parties are trying to score cheap political points out of these natural disasters. One is tempted to suggest that the opposition parties almost want these disasters to happen so that they can launch attacks on the Government. [Interjections.]

But let me emphasise this point: Why now this huge outcry, as they are doing now, from the DP and the New NP coalition when these fires happened in certain areas? [Interjections.] Is it because they were in the affluent areas of Constantia, Glencairn and Simons Town? I would like to ask Mrs Olckers why there was no outcry when late last year 600 shacks were burnt down in Langa. Nobody said anything about that in the Western Cape. [Interjections.] Why was it never mentioned? When these things happen to poor people nobody says anything.

I spoke to somebody when we were discussing these fires and this person said: ``Ag man, they are only shacks that have been burnt down.’’ [Interjections.] During any natural disaster most people who lose belongings are shack-dwellers and they are not covered by insurance, because insurance companies do not cater for shacks, whilst those who live in mansions have ample security to replace their material belongings. Both lose their homes at the end of the day, whether they are shack-dwellers or people living in mansions, but it is often the shack-dweller who loses the most. Let us therefore acknowledge the gravity of the plight of all people, irrespective of where they live.

I further want to ask why there was no outcry during the Manenberg-Guguletu disaster? Why was there concentration only on Constantia during the fires that occurred and not on a small place like Atlantis? Instead of acknowledging what Government has done with its limited resources that are available, the opposition parties are only concerned with opportunistic attacks on the Government.

Natural disasters should provoke a spirit of working together in a way which makes people forget their party-political differences. In fact, this has happened among ordinary people. It happened in KwaZulu-Natal during the floods, it happened in the Eastern Cape during the hurricanes, it happened in Manenberg and Guguletu, it happened in Constantia, in Atlantis and other areas where there were fires, but we cannot say that the same spirit prevails among the opposition parties. [Interjections.]

I want to urge them to take lessons from their very supporters when it comes to these issues. [Interjections.] What has the Government done?

The CHAIRPERSON OF COMMITTEES: Order! Order! That hon member over there is causing great chaos. Let us give the hon member at the podium the time to be heard, please. Hon member, please carry on.

Mr D A A OLIFANT: Thank you, Chairperson. What has this Government done? Unlike the previous government, this Government has actually evolved a policy and is setting up structures to effectively deal with natural disasters.

Why did this not happen under the previous government? Is it because most of the people who were affected by natural disasters were the poor? [Interjections.] I need to emphasise that the proposed Bill on the management of natural disasters will be tabled in Parliament later this year. It is obvious that Government has done a lot, but a lot more needs to be done.

We are to develop a very important system that will minimise the impact of natural disasters. We also need to work together as a nation to assist one another and Government when these disasters occur. A very crucial aspect when dealing with natural disasters is to ensure co-operation between national, provincial and local government. However, this has not happened to the extent that it should in the Western Cape province, and we urge the government of this province to do a lot more.

We are happy to say that, when the megacity system of government comes into being, it will have to put, and it will put, a number of structures into place that can effectively deal with these kinds of disasters. At the end of the day, when all is said and done, all of us, whichever party we belong to, should avoid cheap politics, but rather go out and help our people who are suffering. [Applause.]

Business suspended at 13:00 and resumed at 14:03.

                          Afternoon Sitting

CONSIDERATION OF REPORT OF AD HOC JOINT COMMITTEE ON OPEN DEMOCRACY BILL ON PROMOTION OF ACCESS TO INFORMATION BILL

Order disposed of without debate.

Report adopted. PROMOTION OF ACCESS TO INFORMATION BILL

                       (Second Reading debate)

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, this week witnesses the final tabling in this Chamber of a trilogy of detailed law reform measures that will lengthen our strides in the quest to bring about dynamic social justice and reconstruction.

The Promotion of Access to Information Bill, the Promotion of Administrative Justice Bill and the Promotion of Equality and Prevention of Unfair Discrimination Bill are vital enactments in the ongoing legislative process of adding a concrete dimension to the cornerstone of our constitutional democracy, namely the Bill of Rights. These legal instruments are by no means exhaustive, but will add significantly to the firm foundation we are building upon in our pursuit of equity and the rule of law. The three Bills provide the vital substance to affirm the democratic values of human dignity, equality and freedom.

I now want to focus my attention on the first Bill before us today, namely the Promotion of Access to Information Bill. This Bill honours our constitutional responsibility to give effect to the fundamental right of access to information held by the state or information held in the private domain. This legislative measure is remarkable, considering the legacy of secrecy we inherited from the decades of illegitimate minority rule. With this Bill we are turning on the light to bring to an end the secrecy and silence that characterised decades of apartheid rule and administration.

The purpose of the Bill is to foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information. Our aim is to actively promote a society in which the people of South Africa have effective access to information to enable them more fully to exercise and protect all their rights and to make informed decisions.

One of the leading principles governing public administration is the fostering of transparency by providing the people of South Africa with timely, accessible and accurate information. The Promotion of Access to Information Bill therefore promotes a society that is responsive to the rights of the people. It recognises the need to maintain a balance between competing rights in the Bill of Rights, and, above all, it takes into account the need for good governance, privacy and commercial confidentiality.

The interim constitution limited the right of access to information to the vertical application of access to all information held by the state or any of its organs in any sphere of government in so far as that information was required for the exercise or protection of any right. However, the new Constitution also gives us horizontal application. There can be no doubt that the direct horizontal application of this legislative initiative will significantly empower ordinary citizens to assert their basic human rights in all spheres.

In response to the needs of all the people of this country, and not just those who have suffered under apartheid, we have extended the right of access to information to the state as well. In terms of these rights a public body may, in the public interest, request information held by a private body. Such a request may only be made if the public body concerned wishes to exercise or enforce any rights other than its own rights. This right has been severely criticised by those who automatically feel that they need to oppose any measure designed to promote good governance and accountability amongst private bodies. One of the grounds of complaint as reported in this morning’s Business Day, for example, is that the legislation will compel the chief executives of companies to disclose their salaries. Those who oppose this measure are the very same people who demand that we limit the rights of workers and unions. They are the same people who are clamouring for changes to the Employment Equity Act and the Labour Relations Act, to name but a few. [Interjections.]

They do so, because they claim that our laws will undermine investor confidence in our country and drive away foreign investment. They condone the secrecy practised by business concerns in their dealings with the public and with one another. They fail to mention that very often the same companies which claim that they cannot afford to give workers increases or that they will go bankrupt if they have to pay the minimum wages demanded by the unions - that is, a living wage - award huge salary increases to their managements. Those increases often exceed the inflation rates, may I add. [Interjections.] The opponents of this clause fail to reveal to the public that those increases are paid for by the long-suffering consumers of this country, who have to put up with price hikes all the time. Yet they demand transparency on the part of Government. Even the President has to disclose his salary … [Interjections.] … and the salaries of officials are often bandied about in newspapers. These are hailed as victories for good governance, but they deny the right of the people of this country to demand the same of the private sector.

We have inserted this right in accordance with the mandate given to us by the people of this country to effect changes which will improve the quality of life of all South Africans. Government will, in terms of this Bill, take whatever steps it deems necessary to exercise or protect any of the public rights.

In conclusion, I wish to thank the chairman of the committee which dealt with the Bill, the committee itself for the long hours which it devoted to the Bill, the committee members and the officials whose co-operation and dedication made it possible for us to meet our constitutional deadline in respect of this Bill. [Applause.]

Adv J H DE LANGE: Madam Speaker, hon Deputy President, hon Minister, hon members, ladies and gentlemen, I rise on behalf of the ANC in unconditional support of every provision in this Bill, as being both constitutional and desirable. I am also proud and honoured to have been associated, as part of a large collective, with the drafting and passing of this Bill.

Unfortunately, I have not been able to write the speech which I would have liked to on this occasion because of the importance of the Bill and some controversial issues. Our full programme and a stomach bug this morning has not allowed for that. So, if I dash out of the Chamber at any time during my speech, it will not be because I am scared of the opposition, but because I have to be somewhere else. [Interjections.] I shall meet that hon member there. That is where he will be!

Let me commence by thanking certain people within this collective that I have spoken of. Firstly, the major driving force behind getting the Bill here today and allowing us to meet our constitutional obligations was, of course, the President of our country. In 1995, as Deputy President, he was tasked to make sure that this Bill was initiated and drafted. He has done so and has given able leadership at all stages.

Secondly, I want to thank the task team that he then appointed under the very able, creative and visionary leadership of Adv Mojanku Gumbi, the President’s legal adviser. The late Etienne Mureinik was also part of that team and I want to pay tribute to him. I specifically want to mention that the drafter from the state law adviser, Adv Empie Van Schoor, was appointed at that stage. She has been with the Bill since then and has done a magnificent job. I think if she enters into a consultancy on open democracy hereafter she will make a packet of money, and I suggest that she thinks about it. [Applause.] However, in recognition of her tremendous work, she has now been appointed to the President’s Office and I think that she is going to be a great credit to that office.

Certainly, the previous Minister of Justice needs to be thanked for piloting the Bill through the first Parliament and the new Minister for Justice and Constitutional Development, Dr Penuell Maduna, needs to be thanked for providing able leadership in this period when we were under pressure to make sure that the Bill meets the constitutional deadline.

Then I want to thank the ad hoc committee. I specifically want to thank the opposition parties. They co-operated very well. We differed, sometimes very strongly, but at no stage did I ever feel that they were trying to impede the progress of the Bill. When we differed, we differed strongly, but they co-operated at all times. They worked late into the night and sat for weeks during the recess. I want to thank them for their co-operation and for enabling us to pass the Bill, even if there are aspects on which we disagree.

Then I have to thank my long-suffering ANC component in the committee. Those who know me from the previous justice committee clearly knew what they were in for, but I must say that I saw astonishment and often bemused expressions on the faces of the new ones relating to the processes we followed. We hope we have integrated them nicely into the committee and that they will enjoy coming back.

I particularly want to thank my co-chair, Jabu Mahlangu, from the NCOP, who did a magnificent job in helping me to hold the process together. I also have to thank our clerks, Tobogo Sepanya, Ben Kali and Phila, for the excellent service they provided. Then, of course, all the organs of civil society who played a tremendous role in making submissions have to be thanked. Even when we were already voting on the Bill, they were bringing submissions in order to try to persuade us to do or refrain from doing certain things.

Lastly, a very big thank you to Adv Empie Van Schoor and the drafter from the department, Mr Henk du Preez. If it were not for them and the work that they put into this process, we would not have the Bill before us today.

I can say that this is truly a patchwork quilt of a Bill that includes the views of everyone. I can point out the Dene Smuts clause, the Priscilla Jana clause, the clause of the Human Rights Commission, of the Department of Defence, and so forth. That is the kind of Bill this is and the process that we have gone through. I think that everyone can claim credit for this Bill. There is no single party or any single person who can claim sole credit for the provisions of this Bill. This is also witnessed by the fact that probably 90% of the Bill was passed unanimously, or, at the very least, in respect of which there was a very strong consensus amongst the parties.

I think there were two issues that were very strongly disputed. The first is the exclusion of Cabinet from the operation of the Bill and, secondly, there was the inclusion of public bodies in the definition of a requester. The attacks on these two issues were mainly twofold - firstly, that they were unconstitutional and, therefore, invalid, and secondly, that if they were not unconstitutional, they were undesirable. Of course the latter point is more of a political issue than a legal one. However, on that alone a clause will not fall or fail. Obviously, the question of whether a clause or concept is undesirable is an area of contestation; something that is undesirable to one person may not be undesirable to another person, and vice versa.

As far as the Bill and its provisions are concerned, I have no doubt that a very strong case can be made that every one of the provisions are constitutional. If there is a provision in this Bill that is in conflict with any provision in the Constitution, then alone can it be declared unconstitutional. I have not been made aware and I do not know, in respect of both these arguments, of any clause or any concept which directly or indirectly can be said to be in conflict with any clause in the Constitution.

I am not going to deal with the exclusion of Cabinet, as my colleague the hon Masutha will do so. I want to deal briefly with the inclusion of public bodies in the definition of requester. What does this mean? What is the hullabaloo all about? Now, to deal with this, I think we need to go a little bit back in history, because some very wild and wrong statements have been made in the past few weeks about this issue and the ANC’s motives in this regard.

I want to point out, firstly, that until, as we know, the interim Constitution was passed in 1993, we did not have a Bill of Rights, and at no stage therefore did we have a right to information. It was only with the passing of the Bill of Rights in 1993 that for the first time we had the right to information in this country, but only in terms of access to information held by the state. But it was a very limited right because it was only available when one was required to exercise or protect one’s own rights - ``their rights’’, the Constitution said - then only did the right existed.

Then in the same interim Constitution there was Constitutional Principle IX, which was not included with all the other clauses that dealt with rights in the Constitution, but was under the part that dealt with the structures of government. It only made provision for freedom of information held by government, not a right. Now it is very important to see how the Constitutional Court in the certification case saw the matter. They said:

Details governing freedom of information are not ordinarily found in a constitution, and it is unlikely that the drafters of the constitutional principles contemplated that such provisions would be contained in the draft itself. It is also significant that freedom of information is not a universally accepted fundamental human right', but is directed at promoting good government. That is why it is dealt with in Constitutional Principle IX, as a series of principles dealing specifically with government. One can add there not in the Bill of Rights’. Had freedom of information indeed been a fundamental human right or one of the basic structural requirements in the new dispensation, its suspension would have been unconstitutional.

That is how the court saw this right.

Firstly, we drafted section 32 in the 1996 Constitution. Those who were part of that debate would know that a very strong debate took place where we did create a right for access to information as far as the state was concerned, and it was an unrestricted right without any internal limitations. We then created a second portion which contains an internal limitation and which is part of the right to information, and reads that everyone will have the right to information held by anybody if they require it in the exercise or protection of any rights'', and I want to emphasiseany rights’’.

In the previous Constitution the right was drafted so as to say that one could get access to information only when one was exercising or protecting one’s rights - in other words, one’s own rights. In the new Constitution, it was very clear that a differentiation had been made and that the exercise and protection of that right could be in terms of any rights. This was particularly argued very strongly on behalf of the trade unions, because they could then act on behalf of their members and would be able to exercise any rights, which would include the rights of their workers, not just the rights of the trade union. So a specific change in the wording of the right has occurred.

Secondly, we passed section 8 in the Constitution, which was left out of this debate by the opposition. Section 8 is a general right providing for horizontal application of rights in the Bill of Rights. This right is very, very clear. It applies against both natural and juristic persons, and the persons that can exercise the right are both natural and juristic persons. In fact, section 8(3) states categorically:

When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection 2, a court -

(a) in order to give effect to a right in the Bill must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right …

So, in this implicit wording is the fact that legislation could provide for horizontal application, where applicable, of certain rights and in terms of a certain kind of juristic person. Where there is no such legislation, the court has a duty actually to make those rights horizontally applicable. So against this background, we have to then see all the debates and discussions that have taken place around the Bill.

Again, it was said that this issue was suddenly sprung on people - this was particularly said by the ACDP, which is, of course, a load of nonsense. This issue arose, as parties would know, in November and December when we discussed the matter. We then got the first draft on private bodies, as there was no text on this issue because the Bill was drafted before the 1994 Constitution was passed. We then let the drafters draft a text on this issue. At the end of November, when it arrived, two issues arose for debate in terms of that part of the document. Firstly, whether Government can be included as a requester. We had a very strenuous argument about this. In fact, there was a fallout in the committee, and there were certain consequences in respect of that. That was the debate where we first discussed this issue. Secondly, at that same debate we discussed whether foreigners should be requesters, permitted to use this legislation. So, any suggestion that this issue suddenly arose on the last day when some communist who was not part of the original debate - who, I assume, is the hon Jeremy Cronin - arrived in the committee, is not true. Clearly, this debate was part of our discussions. [Interjections.] Well, he is a major communist, but I wish I was him: The credit he gets for things is amazing. He gets credit for things he did not even discuss. It is amazing. [Interjections.] I wish I was a communist like that! [Laughter.] [Interjections.]

Let me now deal with the issue in dispute and say this: What we have done, as I have said, is to provide merely that in terms of information held by a private body, a public body may also be a requester.

There are two concepts, namely requester'' andpublic body’’, that we must understand. The definition of ``public body’’ has got three components to it. Firstly, public bodies are all those structures which form the usual three levels of government - we call that hard-core government - namely, national government, provincial government and local government. That is continued in the (a) part of the definition. In the (b) part of the definition one has all those functionaries and institutions which have been created by the Constitution, in other words Parliament, provincial legislatures, cabinets, including all the commissions for democracy created under Chapter 9. They are also public bodies in terms of paragraph (b)(i) of the definition. Then there are the public bodies defined under paragraph (b)(ii), and those will be any functionary or institution that falls outside of those mentioned above, which exercise a public power or a public function in terms of legislation.

The courts have held, for example, that the JSE, the jockey clubs, etc, exercise public powers. There are articles that express the opinion that even political parties exercise public powers in certain instances. NGOs, when they are exercising a power in terms of legislation, may be exercising public powers. So one can see that the category of public bodies is enormously wide. Each one of these categories, in our law and in other jurisdictions in the rest of the world, is a bearer of rights in certain instances.

Therefore, the Government is the bearer of rights in certain instances. It bears rights in terms of contractual obligations, property it owns, when it purchases services and so forth. The Human Rights Commission, the Gender Commission and all those other commissions clearly have rights which they exercise every day. We can refer back to the JSE and to that whole group of public bodies that exercise a public power in terms of legislation. Clearly they have rights, and clearly they should be able to exercise and protect those rights at any given opportunity. That is why I say if you can bring me any principle, either in law, in any constitution, in politics or in morality, indicating why this should not be so that government in some instances can be a bearer of rights, I would gladly entertain that thought.

I hope members have got an idea of what ``public bodies’’ are, and that we are not just talking of government. I must add, quite honestly, that a lot of the opposition parties in fact said on many occasions that public bodies like parastatals and regulating bodies should be able to exercise these rights, but when it came to the crunch of voting on it, it appeared that they were scared of the concept of public bodies being requesters and voted against it.

This would have meant that all those public body structures would be excluded from being able to use this right. Hon members as MPs and MPLs would also be excluded. Hon members fall under the definition of a ``public body’’, a functionary in terms of the Constitution. So if an hon member wanted to act on behalf of his or her constituents, and wanted to ask for information from a private body to try and enforce a right of that constituent, and we did not have this in the Bill, the hon member would not be able to do so. I do not understand why that is such a big problem, nor why it is supposedly insidious. I do not understand why it amounts to the ANC grabbing powers, and I definitely do not understand why it is apparently unconstitutional.

The LEADER OF THE OPPOSITION: [Inaudible.]

Adv J H DE LANGE: Why does the hon Mr Leon not take one of his speakers’ time slots, and then he can come and talk here and entertain us. He was not part of these debates. [Laughter.] He clearly has not been on television for a while, so now he is trying to get a bit of a focus on him. [Interjections.]

Let us turn to the requirements before one can exercise this right … [Interjections.] Look, he is looking for attention. There is the television. Could someone just put the camera on the hon Mr Leon so he does not have to talk? [Laughter.]

The LEADER OF THE OPPOSITION: [Inaudible.]

Adv J H DE LANGE: I am not funny, the hon Mr Leon is the one that is funny.

The requirements, therefore, to exercise these rights are the following: This right can only be exercised by a public body, including those categories that I have mentioned, if it complies with four requirements. Firstly, one must show that this information is required for the exercise or the protection of any rights. So one cannot just go up to the person and take the document away from him or her. One must show that it is for the exercise or protection of any rights.

Secondly, one must comply with all the procedural requirements in the Bill, for example, paying fees and so forth. Thirdly, the document must not fall under one of the exemptions. There are about six or seven exemptions applicable to ``private bodies’’. Only if one complies with all those requirements, will one be able to ask for the document, request it, and be able to obtain access to it.

We then added a fourth requirement that only applies to public bodies. When a government body exercises this right, it may only do so when it is acting in the public interest. A government body may not use it, for example, to benefit an individual person; it must be in the public interest.

Now let me explain to hon members what this means, so that hon Mr Leon can also understand. I do not know where he did his law degree, but let him also try to understand. [Laughter.] What this means is that if a document is in the hands of a private body - one could take any private body - the public body, including government, like anyone else, must then fill in a form, give the form to the private body and request access to that document, because they want to exercise a right, they comply with the procedural requirements, the record does not fall under one of the exemptions, and they do so in the public interest. Compliance with all four of these requirements are interpreted and decided upon by the private body. The private body has the document, so they can say: No, it falls under one of the exemptions.'' Or they can say:No, it is not in the public interest. We are not going to give you the document.’’ Even if that particular public body complies with the four requirements, the private body still does not have to hand over the document. The only way that this can be enforced is if the public body then goes to court and asks; ``Please, I have complied with these four requirements. Give me access to this document.’’ Then, even if the court decides that the document should be given, that decision can be taken on appeal to the Supreme Court of Appeal. It can also be taken on appeal to the Constitutional Court.

This is the fundamental point on which we have a difference of opinion. The ANC is saying that it is a right which is only enforceable through the courts, and the argument on the opposition’s side, therefore, that this is a power which somehow diminishes the rights of people, does not make sense. Of course it is not a power that diminishes the rights of people, because it is not diminishing the rights of anyone. This right is not exercised at the expense of anyone. Anyone else can also exercise this right. This right does not diminish any right. It is a request for information, so how does it diminish rights? So, it is clearly not a power. In fact, in a later statement on television the other night, the position of the opposition had started shifting to where it now says that, yes, it is a right, but then it becomes a power. This, of course, is a legal concept which I am not familiar with, but we will also hear what it means later.

Now, having said that, let me raise another example which I find extremely strange. I am now going to read to hon members from the National Environmental Management Act, Act 107 of 1998, also called Nema. I am told by the chairperson of the Portfolio Committee on Environmental Affairs and Tourism that this Bill was passed unanimously through Parliament. All the parties agreed to this Bill.

An HON MEMBER: It is a lovely Bill. Adv J H DE LANGE: There we are, it is a lovely Bill. We all agreed that it is a lovely Bill. Now I am going to read to hon members what is in this Bill and then I am going to show hon members that this lovely Bill does exactly what our lovely Bill does. [Laughter.] Remember that we have been told that it is unconstitutional to give a public body a right of access to information of private bodies. We are told that this is unconstitutional, but those hon members voted for this ``unconstitutional’’ Bill. Let me read from it to hon members. In section 31(b) it says:

… organs of state are entitled to have access to information relating to the state of the environment … held by any person where that information is necessary to enable such organs of state to carry out their duties …

[Interjections.] Exactly! It is an environmental issue. Why do those hon members vote to give rights to public bodies when it is an environmental issue, and why do they not vote for it when we are trying to help and uplift the poor? [Interjections.] [Applause.] Why is it not unconstitutional when it is the environment which those members want to protect, but it is unconstitutional when this right is to be used to uplift the poor, the disadvantaged, etc? Why is it unconstitutional then?

Well, I know why, because those parties do not necessarily represent the interests of the poor, the disadvantaged and so on. [Applause.] [Interjections.] For them it is a nice academic exercise when it comes to the environment, but when it comes to the upliftment of the poor, dealing with the poor, trying to help them access information - not for any other reason but to exercise or protect their rights - and we then say that the state must comply with four requirements to access such information, we are told that it is unconstitutional. I challenge anyone to find that unconstitutional. If anyone can find a principle why it is unconstitutional, I am happy for the Constitutional Court to then tell us what that principle is, where it is to be found to enable it to declare this Bill unconstitutional on those grounds.

Let me skip a few points. Let me give hon members an example of how this will work. If there is, for example, a health issue or an environmental issue, or whatever issue, and a whole poor or rural community was not able to access the information to find out what is the cause creating this health or environmental risk? Then, if the local veterinarian in say the former Transkei suspects there is a factory up river that is pumping effluent into the water, and he or she wants to find out what is causing this problem, one fills in a form and requests: ``Listen, Mr Private Body, will you please give me this document so that I can see what you are pumping into the river, so that I can exercise these people’s rights to see what we are dealing with.’’

Does the hon member want to tell me that under those circumstances we are going to rule that unconstitutional? Will it be unconstitutional under those circumstances where one is acting in the public interest, in terms of a narrowly defined right that can only be enforced through the courts of this country? As I said to someone, implicit in the opposition’s argument is this that they do not trust the courts. If only the courts can enforce these rights, why are they scared of the courts?

Nowhere in this Bill have we given the Government any power to seek access to information of private bodies. One can only do it through the courts. Why do the opposition fear that the High Courts and the Supreme Court of Appeal will not be able to interpret this right, that they not be able to protect people’s interests? And if any of the exemptions do apply, not even the Government can get that document. Why is it insidious when we try to direct the Government into a rights-based culture, into a justification culture. The Government will have to justify exercising that right before a court of law. Why is this insidious? Why is it unconstitutional? [Applause.]

Dr J T DELPORT: Madam Speaker, at the outset I wish to thank the FA for allocating me their time slot. I trust that I shall do justice to this kind gesture. [Interjections.]

According to the Bill of Rights and the Constitution private persons have the right to access information held by others in order to exercise or protect their rights. Should this be extended to the state? That is the issue I wish to address. Immediately, however, I must point out that this debate is not merely about the extent of and limits to a right of access to information. It goes far beyond that; in fact, it concerns the very nature of our state.

The real issue at stake today is whether this Parliament will allow a slow whittling away of some essential and key features of our Constitution; whether it will allow the natural and logical consequences of our Bill of Rights to be implemented and expanded and given full effect, of whether it will shy away from that and will prefer to follow a process of slow mutilation of the spirit and essence of the Constitution in the name of transformation.

We have already witnessed, during the term of this Parliament, in legislation and in the approach of some Ministers, particularly the hon the Minister of Justice, the curtailment of judicial discretion as well as a fairly blatant attack on the independence of the judiciary. Today we are witnessing a lack of appreciation for the importance and role of the Bill of Rights and an outright rejection of the spirit and essence of our Bill of Rights.

Scholars point out that the doctrine of human rights played a key role in the struggle against political absolutism. Weston sums it up:

At bottom, human rights limit state power.

The Constitutional Court endorsed this approach. The court stated:

What the drafters had in mind were those rights and freedoms recognised in open and democratic societies as being the inalienable entitles of human beings.

I repeat: the inalienable entitles of human beings''. The right to information is contained in the Bill of Rights as part ofthe inalienable entitles of human beings’’. It must be concluded, inevitably, that the drafters of the Constitution wanted to create a right of access to information for the people of this country. That is why it was included in the Bill of Rights, not elsewhere. That is why the Constitutional Court referred to rights confirmed upon individuals'', not upon the state, in its comments onthe horizontal application of the Bill of Rights’’. That is why, despite what my hon colleague said, no political party or any other body have remotely mooted the idea that the right of access to information held by private persons should be extended to the state until recently when the ANC seized the idea. [Interjections.]

During the drafting of the right to information, the ANC never had this in mind. So much is clear from the minutes of the theme committee dated 19 April 1995. To grant the state a right enshrined in the Bill of Rights under the guise of a measure to protect the fundamental rights and freedoms of the people of this country runs contrary to the spirit of our Constitution. To seize this right and to strengthen the position of the state vis-à-vis its citizens is nothing but a travesty of everything that the drafters of the Constitution had in mind.

We say that the constitutionality of this legislation is questionable. This is not the time or place to argue at length the constitutionality or otherwise of the legislation. But the DP urges the hon the President to take advice on the question of the constitutionality of the legislation before he signs the Bill.

There is also something amiss in this Bill. The interests of those who seek information will be in constant conflict with the interests of those who will be affected by a disclosure of the information. In order to give guidance to the person with whom the decision lies to refuse or grant the request, the DP proposed the inclusion of a section that prescribes the weighing up of the adverse effects of disclosure and nondisclosure when weighing up the interests of people with competing rights and interests. This proposal was unfortunately rejected. It would have improved the legislation, set a guideline and at least indicated that Parliament was aware of the fact that competing interests needed to be balanced against one another.

I want to pose a question to the ANC Government. When practically all opposition parties have expressed their opposition to this aspect of the Bill, why, in the light of this, does the ANC persist in its insistence that the right be extended to the state?

Tot op hede het daar nog geen behoorlike antwoord uit ANC-geledere gekom nie. Enersyds word gesê die opposisie maak ‘n berg van ‘n molshoop. Daar word gesê dit is ‘n onbelangrike stukkie innovasie. Waarom is hulle dan so verbete om dit deur te voer? Die optrede van die ANC is verdag. Wat wil die ANC regtig hiermee bereik? [Tussenwerpsels.]

Andersyds word daar gesê dat die staat die mense moet help wat nie hulself kan help nie, maar hoekom moet dié reg dan aan die staat gegee word as ‘n reg, as ‘n ``human right’’? Waarom is daar dan nie eenvoudig ‘n bepaling in die wetsontwerp wat die Menseregtekommissie opdrag gee om sulke mense te help en by te staan nie? Dit is tog nie nodig dat die staat self daardie reg moet kry nie.

‘n AGB LID: Hoekom nie?

Dr J T DELPORT: Die staat kan tog net bystand verleen. [Tussenwerpsels.] Weer eens: hoekom nie? Dit is wat ek ook vra: hoekom wil die staat hierdie reg hê? Wat wil hulle presies bereik? [Tussenwerpsels.] Hoekom wil die staat ‘n totaal vreemde begrip aan alle demokrasieë hier inbring, naamlik ‘n begrip dat die staat die draer is van ``human rights’’, dat die staat fundamentele regte het. Die staat het tog verpligtings, die staat het funksies, die staat het magte. ‘n Nuwe begrip in ons staatsreg is dat die staat nou regte het. Watter wanbegrip bring dit nie hier in nie!

Ja, ek wil aan my geagte kollega adv Johnny de Lange sê dit is waar, die begrip regte vir die staat sal ‘n mens vind in die raamwerk van Marxistiese denke. [Tussenwerpsels.] Daarom is dit opvallend dat die agb lid mnr Cronin skielik tot die debat toegetree het toe ons binne die raamwerk van die dialektiese materialisme begin beweeg het. [Tussenwerpsels.] (Translation of Afrikaans paragraphs follows.)

[Up to now we have not received a proper answer from the ranks of the ANC. On the one hand it is being said that the opposition are making a mountain out of a molehill. It is being said that this is an unimportant bit of innovation. Why then are they so determined to pass this legislation? The ANC’s conduct is suspect. What does the ANC really want to achieve? [Interjections.]

On the other hand it is being said that the state should help those people who cannot help themselves, but why should this right be conferred upon the state as a right, as a human right? Why is there not simply a provision in the Bill instructing the Human Rights Commission to help and assist such people? It is surely not necessary for the state itself to be given that right.

An HON MEMBER: Why not?

Dr J T DELPORT: The state can merely be of assistance. [Interjections.] Once again: Why not? That is what I would also like to know: Why does the state want this right? What are they actually trying to achieve? [Interjections.] Why does the state want to introduce a concept here which is totally foreign to all democracies, namely a concept that the state is responsible for human rights, that the state has fundamental rights. Surely the state has obligations, the state has functions, the state has powers. A new concept in our constitutional law is that the state now has rights. This is a total misconception!

Yes, I want to say to my hon colleague, Adv Johnny de Lange, that this is true, the concept of rights for the state can be found in the framework of Marxism. [Interjections.] It is therefore significant that the hon member Mr Cronin suddenly joined the debate when we started entering the framework of dialectic materialism. [Interjections.]]

I want to say, in conclusion, that it is not the omnipotent government that succeeds, but one that limits its interference in the daily lives of people and citizens, and sets them free to build a country. That is the true meaning of power to the people.

Die DP sal nie weifel of wankel in sy toewyding aan die stryd om ware vryheid vir die mense van Suid-Afrika te bring nie. Dáárom sal en moet die DP teen hierdie wetsontwerp stem. [Tussenwerpsels.] [Applous.] (Translation of Afrikaans paragraph follows.)

[The DP will not waver or falter in its dedication to the struggle to bring real freedom to the people of South Africa. For that reason the DP will and must vote against this Bill. [Interjections.] [Applause.]]

Mr P F SMITH: Madam Speaker, before getting into the meat of the debate, perhaps I could just take this opportunity to thank the chairperson of the committee for an exemplary period of chairing. Members know that we have had a very intense period of roughly 10 to 12 weeks of daily meetings, six of which were during recess. It was an intense process, and the product is a very complicated Bill. The language used in the Bill is not easy, and the cross-references are not easy. It is not a Bill one can pick up and read very easily. The chairing, in a committee which was top-heavy with lawyers, had to be suitable to enable everybody to participate, especially those of us who were not lawyers. I think that the chairperson succeeded in doing that very well.

Having said that, I would like to get onto the main issue which is the controversy which the chairperson in fact addressed, ie the right of the state to request access to information from private bodies. I want to say, first of all, as a precursor to the comments I am going to make, that we as a party have never held the view that the issue was one of constitutionality. We are not of the view that the Bill is unconstitutional. We are simply of the view that it has certain undesirable consequences and those are the things I wish to highlight.

The state is granted this right to information in two ways. The first is when it exercises its own powers or rights. We have to be very careful to recognise that what we are in fact doing here is giving effect to the provisions in the Bill of Rights, as contained in section 32 of the Constitution. We are not just drafting a piece of ordinary legislation. We are expressly fulfilling a mandate contained in the Bill of Rights and this is giving effect to a right.

I have never heard of a Bill of Rights, worldwide, which is designed to protect the state against itself or its citizens. The Bill of Rights, in a classical sense, and in fact all senses, is designed to protect the citizen against the state, and by implication it has gone beyond that to protect juristic persons against an abuse of power by the state. To that extent, a state cannot be a beneficiary of a Bill of Rights, because it cannot protect itself against itself.

However, this is not to say that the state cannot have rights. The chairperson made reference, for example, to contractual rights or property rights and, yes, it is true to say that the state, to that extent, does have rights. However, it would be erroneous to say that those rights are rights to be exercised in terms of the Bill of Rights. However, I think if we go beyond that and look at public bodies in general, and not just at the state narrowly, then one would acknowledge that there are public bodies that are potential beneficiaries in terms of the Bill of Rights.

Let us take, for example, the freedom of expression. Freedom of expression applies to ourselves as individuals, it applies to juristic persons, such as the corporate media, and it also applies to universities and to the SABC, which are at arm’s length from the state, but are broadly regarded as public bodies. They can apply for protection under the Bill of Rights, precisely because the state can encroach upon their right to freedom of expression. That is the hub of the notion here, ie protection against an intrusion into one’s rights by a potentially omnipotent state.

That is why we have a problem with the notion that the state can access, in its own right, rights and can exercise these rights. It is all very well to talk about public bodies in general. If by that one was to only mean the SABCs, the stock exchanges, and us as individuals, then it would not be a problem. The problem arises when the hard-core state is incorporated within the definition. Frankly, to talk about the Cabinet, the President, this Parliament and the Department of Health as having rights under the Bill of Rights is problematic, and we are not very happy with that.

The second issue, which was also raised by the chairperson of the committee, was the question of the state being granted the permission to access information from private bodies when it is required to exercise other persons’ rights or to protect other persons’ rights and it is within the public interest. Here we have a different objection and it is not the same issue at all.

I think it is very important to state upfront that we do not under any circumstances object to the state being granted access to information from private bodies. Patently it is silly to claim that that is a problem, because if it were a problem, there would be no state and government would collapse. The most obvious example is that there would be no tax collection system if inland revenue could not obtain records from us. There would be no inland revenue to start with, and there would be no state. The issue is not one of principle, ie whether the state should be able to get information. The question is how, and the relationship between the executive and Parliament.

Let me expand. The chair read, for example, an extract from the National Environmental Management Act, and I am sure that if one read through a number of statutes one would find similar provisions elsewhere. They are eminently desirable and we must do that. But the point about it is how it is done. What happens in each instance is, first of all, it is a sectoral approach. One identifies a problem, and after having done that one proposes a remedy. The remedy in this instance would be that the executive can access private records in order to protect the environment. It will be the Receiver of Revenue who can access one’s records to make sure that one pays one’s tax. One identifies the problem and then proposes a remedy. The second part of that is that Parliament applies its mind in each instance. Parliament sits here and says: ``In respect of this particular matter before us, we believe that this law must be passed in such a way as to give the executive certain powers.’’ We are not doing the same thing here with this Bill, and that is where we have a problem.

What we are effectively doing in this instance is giving the executive, if we are referring to the state in a narrow sense and what potential problems there are, a plenary right. It is really a shotgun approach. The sectoral approach is like pointing a rifle at a particular target in that one one goes for the bull’s eye and solves the problem. This is a shotgun approach. One pulls the trigger and simply hopes that the pellets hit something, but one is not sure what one is going to hit. In this instance Parliament is not applying its mind to each and every instance in which the executive may or may not, for example, seek to request information.

We have a problem, too, with the fact that although we can sit here and say that the ANC, for example, as a major party in Parliament, also happens to run the executive - effectively there is a tendency for people to forget that the executive and Parliament are not one and the same body - the issue here is that Parliament exercises its mind and the executive is subservient to Parliament. When we pass a plenary law like this which says the executive - the state, the President and the Cabinet - could just go and request any information at any time, even if there is a public interest qualification, that is an undesirable way of doing things from a process perspective.

We have a new Bill of Rights and a new Constitution with new rights, and there is going to be new jurisprudence flowing from that. We accept that, but I must say that when we discussed this issue in committee it tended to be a very ideological debate. We have not had a debate which gets down to the practicalities of what exactly is intended, why and how. Of course, the chair raised the issue of the environment versus the poor.

Phrasing it in that ideological fashion is one thing. We have never sat down in the committee and said, for example, from the ANC side: ``What precise need is there? How is that need to be given expression? How is the right meant to be used? For what purpose?’’ That debate has never happened. So we really do not see the need for the provision. No need has been demonstrated, and we do not see it. We would rather be cautious in these things. It is a new right, there is a lot of newness ahead of us and we do not want mistakes to happen.

We are not of the view that this is unconstitutional. We are of the view that it is undesirable. For that reason we will nonetheless have to weigh up whether it is preferable to have the Bill go through, ie have an imperfect Bill passed, or have no Bill at all. From our perspective we would acknowledge that, imperfect as it is, we would rather have the Bill and we will support it. [Applause.]

There is one other issue, and that is the exclusion of Cabinet. In fact, we wanted to go a bit further than that. We wanted the exclusion of Cabinet and the provincial executive councils. The reason for that is twofold. One of the principles underlying what we have been doing is that of getting good governance, ie a good effective government. One does not want things to end up in people having to take decisions behind closed doors and undertake processes that really run counter to the way this access to information right should be exercised.

It is certainly the case that in terms of best international practice, when Bills like these are passed in respect of a federal or sub-national level, the equivalent of one’s cabinet is excluded. That was the request that we put forward. Unfortunately, neither the majority party nor any of the opposition parties supported that, so it did not go through.

Overall, that is our position. We will vote for the Bill, but we object strenuously to the extension of the right of the state to be a requester of information from private bodies. [Applause.]

Mrs S M CAMERER: Madam Speaker, the New NP will not be able to support this Bill, a decision not taken lightly because we agree with large portions of the Bill. This is specifically because of the inclusion of the Government as a requester of information from a private body in a way which is undesirable and possibly unconstitutional. It strikes a blow at the very foundation of the Bill and contravenes the spirit and the purpose of the Bill of Rights which, after all, is a bill of human rights, and we therefore cannot support it.

The united stand of the opposition parties on this issue is unprecedented and should be taken seriously by the ANC. We appeal to them to rethink the issue. If there was one piece of legislation of the four required by the Constitution to be passed by 4 February 2000 that was apparently uncontroversial, it was surely the Open Democracy Bill, now renamed the Promotion of Access to Information Bill.

Section 32 of the Bill of Rights guarantees to everyone the right of access to information held by the state or by another person required by the requesting party for the protection of any rights. We believe that the intention of the constitution-makers was very clear. ``Everyone’’ was intended to mean persons in civil society, both natural and juristic. I was one of the negotiators of the Bill of Rights from the first day to the last and I can confirm that that was the approach.

As the hearings and discussions on the Bill proceeded, the whole focus of the legislation began to be on how best to limit this right. The problems inherent in this right were foreseen in the Constitution where it is mentioned in section 32(2) that reasonable measures to alleviate the administrative and financial burden on the state'' incidental to this right should be included in the legislation to be enacted. The ANC took this very seriously and rushed in to protect their government from this burden with such dedication that at one stage it looked as though the Bill should be renamed theClosed Democracy Bill’’.

Evidence to the committee that giving effect to this constitutional right could bring Government to a standstill was given by several departmental spokespersons. However, to their credit, the ANC settled down to a fairly reasonable position which is indeed reflected in the Bill. The process by which ordinary members of the public exercise their constitutional right to information in Government hands is possibly more burdensome than we would have liked to see it, but on the whole the process is a reasonable one, if overcomplicated and expensive.

There is a tendency on the part of the ANC to want to overlegislate. The structure of information officers, compulsory publishing of records, forms to be filled in and fees to be collected is going to cost money, certainly more money than the fees bring in. Nevertheless, certain aspects of the Bill are excellent, such as the protection afforded to third parties’ information and personal information. There is one blackout of governmental information, namely the records of Cabinet and Cabinet committees, with which we do not agree. We would have preferred a more differentiated approach to allow access to those records that are of a purely administrative nature. There is even an indication that this exclusion could be unconstitutional, but the ANC nevertheless decided to go ahead with it.

The second half of this piece of legislation deals with the horizontal aspect of the right, namely accessing information held by another person required for the exercise and protection of a right. This is an entirely new arena of the law and has not previously been tackled in this kind of detail. I would like to offer a bouquet to the hardworking legal drafters who tackled these unknown waters with energy and intelligence and a wary eye for the unintended consequences.

In spite of all these difficulties, all was going well until after the Christmas break when the ANC dropped a bombshell in our midst by insisting that the Government, or a public body, should, if it is in the public interest, be entitled to don the guise of a person in civil society and acquire the same right of access to information in the hands of a private body as any other person. By insinuating itself into the definition of a requester in this way, the Government has become a veritable wolf in sheep’s clothing.

The ANC claims that making a public body eligible, as a requester, in relation to a private body, only if it is acting in the public interest, will cure the problem. This is nonsense. Firstly, Government and a public body should always be acting in the public interest. In the nature of a democratically elected government, it should always act in the public interest and accordingly, this is an entirely irrelevant qualification.

Section 7 of the Bill of Rights, which sets out its parameters, makes a clear distinction between people'' on the one hand andthe state’’ on the other. Section 7(1) states that the Bill of Rights - a bill of human rights - enshrines the rights of all people and it particularly highlights the values of human dignity, equality and freedom as governing our Bill of Rights. These values and rights clearly adhere to people only. It would be nonsensical to suggest that these have any relevance at all to the state. All the other rights in the Bill of Rights, which, as I have said, is a bill of human rights, can clearly only apply to people.

The state, on the other hand, is referred to separately in the Bill of Rights in section 7(2) and it is given the duty in that section to protect the rights of people set out in the Bill of Rights. It is only duties, and no rights in this context. It is surely ridiculous - other speakers have made reference to this - to suggest that the state should use the Bill of Rights and the Constitution to protect itself. Whether or not Government should be entitled to obtain information from a private body is a question that can be, and is, in fact, addressed in specific legislation, for example to cater for an emergency or the security of the state or the maintenance of law and order, or for the purposes of environmental protection or even to protect the poor, as the chairperson of the committee keeps mentioning.

Accordingly, governments and public bodies such as the Human Rights Commission and the Gender Commission already have certain overriding rights and powers where these are needed in terms of legislation for these purposes. Government should not try to employ a constitutional provision designed to protect people in civil society to gain more rights and grab more power than is strictly necessary against members of civil society. If the state requires such specific powers in legislation to invade the privacy of persons, then this must be tested in terms of the limitations clause in the Constitution to establish if the limitation in question is a reasonable and justifiable one in an open and democratic society.

The state has limitless access to the courts because of its resources and can also use the courts to get information in appropriate cases. Every single example that has been given by the ANC in the various discussions we have had, to illustrate the need for a public body to get the rights of a requester in this Bill can, in fact, be covered by existing or future specific legislation or through court action.

The situation in relation to countervailing rights in the Bill of Rights also becomes confused if the state is allowed to don the attire of an ordinary person for the purpose of this statute. Clearly, the balance between rights can be maintained - for example, in this case, balancing the right to privacy and the right to information - where equals exercise them. However, as I have already mentioned, the unequal power relationship between the state and a person must be recognised and, in fact, is clearly acknowledged and demonstrated in the Constitution.

Specifically for this reason, although we find that there is a lot of good in this Bill, the New NP will be unable to support this legislation. [Applause.]

Mr J P CRONIN: Madam Speaker, Deputy President, this Bill is a very important step in buttressing and giving greater legal and practical substance to the rights that are enshrined in our Bill of Rights.

All parties and, indeed, many other forces in civil society support, I think, most of the main core features of this Bill. I think it is important for all of us to state and realise this. We all agree, I think, that the so- called vertical application of the right to information is, indeed, a critical pillar of this Bill. In other words, individual South Africans, some 40 million of us, have a constitutional right to information that might be held by the state and a wider spectrum of public bodies - information which we as individuals might require to exercise or defend our rights. We all agree on the importance of this.

We all, I think, agree equally that this individual right to information in regard to information held by public bodies, is not an absolute right, but has to be balanced by the imperative of safeguarding other rights, and that the courts - not the Government but the courts - should be the final arbiter of this. There are, however, as we have heard this afternoon, two areas, at least, in which some of the opposition parties have sought to stir up controversy. With a connoisseur’s nose, they have zoomed in on two issues in which the sometimes ill-begotten powers and privileges of a tiny minority might just be challenged.

Stripped of all the rhetoric that we have heard over the past few days, and again today, about creeping state authoritarianism, the slow whittling away of rights, as Dr Delport put it, not to mention the card of ultimate intellectual bankruptcy - the card that was played again this morning by the leader of the opposition - insinuations about some kind of Cold War communist conspiracy, the core concern of the DP and the New NP in this matter is that a tiny elite will be challenged by the democratisation of information in our country. That is what worries them. [Interjections.] [Applause.]

What are the areas in the Bill which these parties find so objectionable? The first is that a private corporation may, under certain circumstances, be required to divulge salary scales and remuneration policies. True to its aspirations to be chosen as a shop steward for big capital, the DP yesterday again auditioned for this role. It issued a mischievous claim, which is not true, that a last-minute ANC amendment to the Bill would mean that CEOs would now be obliged - that was their word - to disclose salary scales.

While a few thousand DP supporters might find such an obligation scandalous, millions of ordinary South Africans do not find it scandalous at all. What would be scandalous would be a situation in which a CEO, while drawing an outrageous salary packet, pleaded company poverty and pontificated to working people about tightening belts and about the need for retrenchments. That would be scandalous.

In its press statement, the DP is being completely disingenuous. The Bill does not literally obligate CEOs to automatically disclose salary scales. Yes, clause 63(f)(iii) of the Bill states quite correctly that revealing salary scales or remuneration is not, by definition, an unreasonable disclosure of personal information. Therefore one cannot use that as an excuse for declining to release a record. However, if one can - and perhaps one can - put up a good argument that disclosing salary scales or remuneration would, in terms of clause 68, be likely to cause harm to the commercial and financial interests of the private body, then one can certainly claim an exemption and refuse access to a record.

Sound business arguments, in short, exempt a CEO from disclosing information. So, what is the DP trying to conceal? Surely the DP is not embarrassed to make public the fact that a tiny minority earns 50 to 70 times more than an average shop floor worker?

An HON MEMBER: Like Cyril Ramaphosa!

Mr J P CRONIN: I thought that the great virtue of the untrammelled free market, propagated in such unnuanced ways from the opposition benches, was a transparent play of supply and demand, in which prices were out there to be seen. Surely prices include the price tag on those at the upper end of the labour market. So why the secrecy? [Interjections.] We will come to that in a moment.

We can think of situations in which a record on salary scales would be entirely relevant to the exercising of a right, where mass retrenchments or even an impending company liquidation were threatened. Yes, indeed, as the ANC and all of us, we must vigilantly protect the rights of private individuals. I hope that the DP is not suggesting that secrecy about someone’s exorbitant salary should trump the right of many, many individuals to a job, food and even survival itself.

An HON MEMBER: Come to the point.

Mr J P CRONIN: No, you know it is a point. You raised it yesterday. [Interjections.] However, let me come to the point. The second area which, again, the DP members have raised as the cause and in which they have tried to stir up a storm, has been in regard to the right of public bodies to request, in terms of this legislation, records from private bodies.

In discussing and preparing this Bill the ad hoc joint committee had, in response to a DP request, a focused debate last week on this question. The hon Delport went to some considerable trouble, preparing a seven-page document on this matter. In his presentation the DP spokesperson on justice talked in hyperbolic terms of the usurpation of more and more powers by the state and he spoke about the slow whittling away of rights, which adds to what the hon Delport has just described as the existing powers of search and seizure enjoyed by the state.

Let us be sober. All that this legislation is saying is that a public body may, like anyone else, request a record of, for instance, a tobacco company if it is in the interests of defending or exercising a right, if it complies with the procedures envisaged in this legislation, if the record is not exempted by this legislation and - the test is fourfold in the case of public bodies - if the request is in the public interest. Even then the private body can still refuse to supply the record in its control and the matter would then be decided by the courts.

The DP has tried to conjure up out of this benign right the image of a state grabbing more and more power. It is the very opposite. This is not a power that we are giving to the state, but a relatively limited right. If we wanted, as some have said …

The DEPUTY SPEAKER: Order! Hon member, would you like to take a question?

Mr J P CRONIN: No, I want to continue.

Dr J T DELPORT: Surely you can take a question?

Mr J P CRONIN: If we wanted as the ANC to give the state additional search and seizure powers then, as others have said already, we could use our own parliamentary majority to ram through legislation to give the state powers to seize and to search. But what we are trying to do here is exactly the opposite. It is something entirely different. We are nudging public bodies in the direction of seeing themselves as actors, like anyone else, in a rights-based society in which the Constitution and not the state is sovereign.

The hon Delport tries to turn this into a usurpation of an all-powerful state with a corresponding diminishing of the status and dignity of the individual. I want to underline two fundamental assumptions at work in his position. Firstly, in his view the state is basically a necessary evil, a state of ``search and seizure’’ which one needs for the protection, presumably, of one’s private property, like a vicious guard dog, but which one simultaneously fears and needs to restrain. Secondly, his position rests on the assumption that powers that one vests in a public body are powers necessarily taken away from individuals. There is no idea that an effective state might also be an empowering factor for millions of poor and disadvantaged citizens. There is no notion of that at all.

I am glad to see that at the beginning of the 21st century the hon Delport has discovered 19th century liberalism. [Laughter.] We should not laugh. I am sure in his case this represents considerable progress. [Laughter.] Happily, we have moved along considerably in theory and, above all, in practice here in South Africa. [Interjections.] The state, governance …

The DEPUTY SPEAKER: Order! Order, hon member. Dr J T DELPORT: Would the hon member now be prepared to take a question or would he rather shy away from it? [Interjections.]

The DEPUTY SPEAKER: He is not, hon member.

Dr J T DELPORT: Not even a simple question, Madam Speaker? [Interjections.]

The DEPUTY SPEAKER: He is not prepared to take a question, hon member.

Mr J P CRONIN: Regarding the state, governance and public bodies, it should not surprise us that this idea of the state simply as a police state is one that Delport enjoys.

The LEADER OF THE OPPOSITION: What about the state under communism, Jeremy?

Mr J P CRONIN: I am coming to that. The state, governance and public bodies are much richer, more diverse and more pluralistic realities than the hon Delport’s ``search and seize’’, mean-spirited state. Public bodies - that is the term that we are using in this legislation - span the Cabinet and the Police Service, yes indeed, but also parastatals such as Eskom, the Truth and Reconciliation Commission, the Human Rights Commission and, indeed, in certain of their functions, even the DP and the New NP. Rather than eroding our new democracy, we have democratised by eroding the hard boundaries between the state and ordinary society. With an innovative approach to co-operative governance we have sought to reduce the strong, hard verticality between the national, provincial and local spheres. Our conception of co-operative governance and of a developmental state include many things, such as Nedlac, community policing forums, public-private partnerships and school governing bodies. An unreconstructed resurrection of John Stuart Mill from the 19th century or, indeed, let me admit, Karl Marx from the 19th century, is not going to make sense of this reality that is evolving here in South Africa.

The watchdog version of the ideal state in the DP and New NP’s approaches has, as its corollary, a wonderfully idealised version of the private sphere, which we heard again from the hon Camerer. This sphere, by their accounts, seems to be peopled entirely by atomistic individuals entering into more or less equal horizontal relations with each other. However, the private sphere is not just made up of individuals. It also includes vast, privately controlled information banks and corporations. The NP, through the hon Camerer, again talked about the undesirability of the state dressing up in the attire of a private individual and evoking this particular piece of legislation. However, nowhere do the NP or the DP wonder just for a moment about the implications of Microsoft, Anglo- American or Absa donning the attire of a private individual and, in the name of the Bill of Rights, crying: ``Totalitarian invasion of privacy’’, when the Human Rights Commission, for instance, acting in the public interest, requests a record from them using this legislation.

For those who can afford private health care, private security guards, private transport, a modem, a cellphone and a set of encyclopedias, the public sector might seem, at best, like an unfortunate tax burden, and at worst, like an incipient monster taking one more step towards totalitarianism every time it requests a record from a private body. However, for those who cannot afford these privately owned resources, the public sector can be the very precondition for enjoying any rights.

With this legislation, we are seeking to remedy a situation in which millions of people are information-deprived because they live in marginalised rural areas, because the racialised education dispensation under which they were schooled has left them semiliterate, because we live, all of us, in the South and not in the North, because, as in the case of the Cosatu general secretary, the white farm-owner forbade your birth to be registered when you were born, and so to this day, you do not know your own exact age.

For millions of ordinary South Africans, if this is to change, then we require an active diversified public sector. Public bodies, like anyone else, must, but with the additional requirement of acting in the public interest, be able to request information on behalf of the marginalised, the poor, the unemployed and the unregistered. This is not some illegitimate usurpation of power. It is an important precondition for a meaningful rights-based society in which individuals are respected, not in somebody’s 19th century textbook, Marxist or liberal, but in actuality, now, here in South Africa. [Applause.]

Mr M E MABETA: Madam Speaker, the Constitution requires that legislation be passed to realise the objectives of the Bill of Rights, which is why we are here today to debate the Promotion of Access to Information Bill. It is, indeed, a crucial further step towards consolidating further development of our democracy by strengthening our culture of human rights. This intent and purpose of the Bill is fully supported by the UDM.

The Bill, as it stands, is the result of strenuous efforts by the ad hoc committee, and I would like, in particular, to commend and applaud the dedication, fairness and very hard work with which the chairman of the committee conducted and concluded this demanding task.

I would also like, at this point, to recognise the pains that the hon Jeremy Cronin took in trying to articulate the conceptual and the philosophical underlying reasons for the idea of a co-operative government and the diminishing role of the state. However, I am afraid that the cohesive nature of the state, despite these ideological or theoretical attempts, has tended to persist elsewhere on our continent and on the other side of the continent.

It is the view of our party that, under the present Constitution, the suggested co-operative governance and the diminishing role of the state cannot be achieved. We adopted a Constitution that specifies a certain set of rights and we must comply with it. Having said that, I must hurry to say that it is a matter of great disappointment and even sorrow that the Government has seen, in our view, fit to use this seminal Bill to arrogate to itself rights which are constitutionally and clearly reserved for the protection and exercising of the basic human rights of individual.

We can ask by what stretch of the imagination a private body can be defined to include a public body as it is purportedly done in the definition in clause 1 of the Bill. How can any government become part of the ``everyone’’ on whom the Bill of Rights confers individual human rights? The Bill of Rights exists only to safeguard individuals against encroachment on their private lives and abuse of their individual human rights by Government and private bodies or persons.

It has been said in justification that the Government requires the locus standi of a requester for information from private bodies to enable it to assist the less literate and knowledgeable part of our population to access information. However laudable this clause, this is a spurious argument. Surely, it would be a simple matter to establish mechanisms for this process for which the Bill makes provision by way of involving the Human Rights Commission.

An ordinary Bill to confer a basic human right on a government? Nowhere in the modern world will a single credible opinion be found in support of such a preposterous proposition. Let us please continue the debate quite honestly and not be urged to hurry in passing this Bill with these very important contentious issues.

In an attempt to justify their abuse of the provisions of the Bill of Rights for this totally unintended purpose, the majority party’s spokespersons have referred to the uniqueness of our situation as requiring unique solutions. I must point out that such accumulation of power by central Government striving for hegemony is by no means a unique one in the world, especially not on our beleaguered continent.

As part of a consistent trend in Government action since it attained power, this small legislative step indeed represents a further leap towards the very same centralist authoritarianism that the African renaissance, much espoused by Government, is supposed to eradicate from the face of Africa. With what moral authority will the Government, in future, be able to pursue this admirable course?

It is true that exclusions and limitations have been included in the Bill, and it is said that the Government in its role as a requester has one more criterion to satisfy, namely that it is required to do so in the national interest when acting as a requester. Surely, this is a disingenuous argument. The Government is, in fact, always required to act in the national interest in everything it does. Otherwise it would be acting ultra vires the Constitution and the mandate it holds from the people of South Africa.

As the Government itself would determine what the national interest in any particular case entails, this argument seems calculated to mislead. Neither does it hold water to argue that recourse to the courts may always be had by anyone. Many persons, businesses and other organisations will not be able to afford taking the Government to court. The Government already has powers of search and seizure in fighting crime in all its forms. It has powers through the revenue service to conduct inquiries into tax matters of private individuals and corporations. So, why these further rights and corresponding powers of enforcement to the Government?

Let us, for a moment, reflect on the fact that in the last six years we have experienced numerous changes in the incumbents of the positions of director-generals and other senior Government officials. [Time expired.]

Mr S N SWART: Madam Speaker and hon Minister, the ACDP from the outset adopted the view that access to public information held by Government and to that held by the private sector should be treated differently in this Bill.

We understood that the underlying rationale for privacy and access to information was antagonistic, the former by its nature restricting access to information, whereas the latter provides access to information. We accordingly proposed that a privacy Bill be passed as soon as possible to deal with matters relating to the individual and that a minimalist approach be adopted in the Bill sufficient only to satisfy the constitutional requirements.

Until such a Bill is passed, the interface between privacy and access to information would be the privacy exemption, which contains the embryo of privacy legislation read with the definition of ``personal information’’. We were seeking to give effect to the Constitution, and at no time did we foresee that Government would have the constitutional right to access information in the hands of private bodies as the right is currently formulated in the Bill. We were undeniably surprised when the amendment was suggested at a late stage in the proceedings.

We further suggested in the committee a sectoral approach to the Bill whereby the implications of compelling disclosure by various sectors of society could be thoroughly debated and proposed that a chapter dealing with whistle-blowing provisions be contained in a separate Bill. We are pleased to note that certain of these suggestions have been included in the committee’s resolution.

Whilst the general horizontal clause in section 8 of the Constitution and the horizontal clause in section 32 are novel worldwide, the interpretation given by the majority party, namely to provide the state with the right to information held by private bodies; albeit following a four-step test could never have been intended by the drafters of the Constitution.

Whilst I do not wish to labour the point so compellingly argued by my colleagues in the opposition, I would like to emphasise the following: The primary purpose of the Bill of Rights is to secure citizens against untrammelled state power. The Constitutional Court confirmed this when it stated the following in the certification judgment:

What the drafters had in mind were those rights and freedoms recognised in open and democratic societies as being the inalienable entitlements of human beings.

The Supreme Court has further confirmed that private bodies such as companies are entitled to privacy and may not be unlawfully intruded upon. The Constitutional Court has furthermore recognised that there are countless small companies that need and deserve protection no less than do natural persons.

Whilst the majority party has argued that the provisions in the Bill relating to access by the state to information of private bodies will pass constitutional muster - a point I do not concede - the further question arises as to the desirability of this provision.

Whilst South Africa is the pioneer in the area of horizontal rights, and the majority party may be innovative in the contentious private body'' definition, or what I would refer to asreverse vertical application’’, the law of unintended consequences should be borne in mind. As was pointed out in the media an immediate danger is that potential domestic and foreign investors may be put off by the idea that their business plans and other data may not be covered by the exemptions and may be just an application away from broad public scrutiny. Foreign investors are furthermore unlikely to encounter such legislation in any other emerging market or in any other country, for that matter.

We would implore the Government to take cognisance of the concerns of the united opposition parties as its sets sail in these uncharted waters. It is furthermore interesting to note that the majority party specifically excluded the Cabinet whilst intruding into the private sphere.

I wish to conclude by echoing the sentiments expressed by Prof Marinus Wiechers at the Open and Accountable Democracy Conference hosted by the Human Rights Commission:

I have an inborn distrust for a government which tries to be each and everything to each and everybody, because it leads to bureaucrats and corruption and ends up destroying the very high values which the Bill of Rights wants to promote.

This Bill, whilst containing laudable provisions regarding access to state information to ensure open and accountable government strengthens the impression that the Government remains committed to the concept of the intrusive state and unfortunately cannot be supported by the ACDP. [Applause.]

Mr M T MASUTHA: Chairperson, the Bill before us is monumental in that it adds yet another pillar to support our young democracy so that it may continue to rise among other democracies. This it seeks to achieve by, for the first time in our legal history, introducing a comprehensive legal framework to give effect to the right of access to information held by the state and persons in the private sphere.

In this information age that we live in, access to information is pivotal to the effective functioning of all societies. If a carefully designed legal framework is not created to manage information which seeks to create a balance between competing interests in this regard, as this Bill seeks to achieve, this could result in a real nightmare for both requesters and holders of information.

It is particularly for the sake of ordinary South Africans who are vulnerable to the evil deeds of some corrupt officials who abuse the privilege of obtaining, processing and storing information belonging to service users to achieve their own ends. Through this law, greater accountability will be imposed upon information holders and information managers in the spirit of Batho Pele.

Goba ga ke e bee gabotse ka Sepedi ke re batho pele. [Let me put it accurately in Sepedi and say, people first.]

This constitutional obligation to provide and access information was, in fact, contained as Constitutional Principle IX in the interim Constitution, which reads as follows, and I quote:

Provision shall be made for freedom of information so that there can be open and accountable administration at all levels of government.

The new Constitution took the matter a step further by extending this right to the private sphere in recognition of the reality that it is often in that sphere especially that ordinary citizens need to be protected from the abuse of rights, particularly because of a lack of regulation or inadequate regulation aimed at protecting service users in that sphere.

Having said all this, however, we are reminded of a principle which was pithily stated in the Constitutional Court judgment in S v Makunyane and another, 1995 (3) SA 391 cc, which, in providing guidance on the application of the limitation clause in the Bill of Rights, states the principle as involving, and I quote:

… the weighing up of competing values and ultimately an assessment based on proportionality which calls for the balancing of different interests.

It is especially this matter, which goes through the heart of this Bill like a golden thread that holds together a delicate fabric and which constituted the most difficult part of the work of the committee during drafting, that I now seek to address. In drafting this Bill a balance had to be found between providing for maximum access to information on the one hand and protecting other competing interests on the other.

The Bill seeks to achieve the latter in two ways: mainly by, in the first instance and in line with international best practice, excluding the records of certain public institutions from the provisions of the Bill, and, secondly, by exempting records which contain certain kinds of information from the Bill.

One of the specific exclusions contained in the Bill is that of Cabinet records as provided for under clause 12(a) of the Bill. In this regard the committee was favoured by a legal opinion by the Chief State Law Adviser who, having considered the law in this regard quite thoroughly, came to the conclusion that sufficient legal basis exists for the exclusion of Cabinet records from the provisions of the Bill.

One may, quite appropriately ask why Cabinet must be excluded entirely from the ambit of this Bill. Apart from the fact that all other countries that have a law such as this exclude their cabinets, or at least have created special exemptions to protect the records of their cabinets entirely from public access, there exist real concrete grounds for this.

But before I deal with these grounds, I need to point out the following. Section 32(1)(a) of the Constitution states that everyone has the right of access to information held by the state. In addition, section 8(1) states that the Bill of the Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. Section 85 states that the executive authority of the Republic is vested in the President, who exercises it together with other members of Cabinet. It therefore follows that the right of access to information contained in section 32, unless limited in terms of section 36 of the Constitution, namely the limitation clause, would apply to all organs of state including Cabinet.

May I also mention at this stage that although Cabinet is not the only organ of state that has been excluded, expressly, from this Bill - and I will confine myself to the matter of its exclusion owing to time restrictions - there are other organs of state that have also been excluded, for example Parliament. It must also be pointed out that Cabinet is excluded only in its capacity as a collective. This means that the President, Deputy President and Cabinet Ministers are not excluded from the provisions of the Bill and therefore their records can only be protected in terms of the exemptions provided for in the Bill.

Given the extensive powers and responsibilities bestowed on members of Cabinet in their individual capacities concerning governance which they exercise directly without the involvement of Cabinet as a whole, the exclusion of Cabinet records therefore constitutes an exclusion of only a fraction of the records of the executive sphere of government.

I am under the impression that opposition parties are in agreement at least with the principle of protecting Cabinet records from the public domain and that the only difference between us is the manner of achieving this, their position being that these records should be protected through an exemption rather than through an exclusion. Our view, of course, is that if a less onerous approach exists, which in any event has been adopted in other countries to achieve the same purpose, there is no reason why it should not be followed, rather than expose Cabinet to a situation in which it may be exposed to protracted litigation on a regular basis which could undermine its efficient governing of the country.

Another reason why Cabinet must be excluded from the ambit of this Bill is that it constitutes a central point at which the different processes of governance converge, both in the domestic and international spheres. Cabinet therefore has to constantly deal with very sensitive and delicate matters of national and international importance which, for the sake of the security of our state and, indeed, that of other states as well as the protection of our national interests, require that its records be kept discreet.

An argument was also raised that whilst the Bill excludes Cabinet records entirely from its operations on the one hand, it did not exclude it from the definition of a requester'', as regards the records of private bodies. It was argued by certain political parties that the Bill of Rights in our Constitution was intended to protect human rights and not the rights held by the state, and therefore allowing the state the right of access to records held by private bodies would constitute a violation of the Constitution. It was further argued that the termeveryone’’ used in the Constitution cannot include the state or, to be more precise, an organ of state. Unfortunately, the protagonists of this rather constitutionally unstable argument did nothing to substantiate the legal basis for arriving at such a - with due respect - wild and misleading conclusion.

First of all, no rational basis was advanced for implying reciprocity of providing information between a requester and a holder of information, especially in the light of the exemptions which may apply in respect of one record and not apply in respect of another. Secondly, access to an information statute such as this is not intended - with due respect - to legitimise horse-trading of information as this rather contorted argument seems to suggest.

As regards the contention that the state, or rather an organ of state, does not fall within the ambit of the term person'' and that an organ of state is, therefore, not entitled to exercise the right of access to information held by a private body, the following argument needs to be advanced. Firstly, as mentioned earlier, section 8(1) of the Constitution states categorically that the Bill of Rights applies to all law and binds, amongst others, the executive arm of Government. Secondly, section 8(4) states that a juristic person is entitled to rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person’’. [Time expired.] [Applause.]

Dr C P MULDER: Mnr die Voorsitter, dit was interessant om na die agb lid mnr Masutha te luister, wat ‘n baie interessante uiteensetting van die hele gedagte van die uitsluiting van die Kabinet gegee het. Dit is tog interessant om te sien hoe ‘n bepaling wat in die Grondwet opgeneem is - in hierdie geval gaan dit oor die Kabinet - deur verskillende partye en individue verskillend vertolk word. Dit is vreemd om te dink dat ‘n bepaling kan sê dat elkeen die reg het op toegang tot inligting wat deur die staat gehou word en dit sluit die Kabinet as die kollektief van die uitvoerende gesag uit. (Translation of Afrikaans paragraph follows.)

[Dr C P MULDER: Mr Chairperson, it was interesting to listen to the hon member Mr Masutha, who gave a very interesting explanation regarding the whole idea of the exclusion of the Cabinet. It is really interesting to see how a provision that has been written into the Constitution - in this case it concerns the Cabinet - is being interpreted differently by various parties and individuals. It is strange to think that a provision can say that everyone has the right of access to information that is being held by the state, yet this excludes the Cabinet as the collective of the executive authority.]

Section 1 of the Constitution of South Africa contains the founding values of the present constitutional dispensation. This section is entrenched by the requirement of a 75% majority. Section 1(a) deals with core values, namely human dignity, the achievement of equality and the advancement of human rights and freedoms. This provision forms the basis of the need for a Bill of Rights, such as the one that one finds in Chapter 2 of the present Constitution. Section 32 of the Constitution deals with access to information and we all know the exact wording of that specific provision.

Artikel 32(2) bepaal dat wetgewing aanvaar moet word - ``must be accepted’’

• om uiting te gee aan hierdie regte. Dit is juis dié wetgewing wat vandag voor die Huis dien. Op die oog af lyk dit na ‘n doodeenvoudige reg wat geskep word, naamlik die reg op toegang tot inligting. Wanneer ons egter kyk na die wetsontwerp wat vandag voor ons dien, is dit baie duidelik hoe gekompliseerd hierdie saak is. Een ding wat vandag vir my baie duidelik geraak het uit hierdie debat, is dat dit aan litigante daar buite leeuplesier gaan verskaf wanneer hierdie wetgewing geïmplementeer word.

Die wetsontwerp is tegnies ‘n baie gekompliseerde en moeilike stuk wetgewing wat bestaan uit 93 klousules. Om uiting te gee aan hierdie reg op toegang tot inligting en om voorsiening te maak vir al die verskillende scenarios en moontlikhede, is ‘n geweldige moeilike taak. ‘n Groot getal organisasies het voor die komitee kom getuig om die wetsontwerp moontlik te maak, want dit is ‘n klein bepaling en ‘n klein reg wat geskep word, maar het verreikende implikasies.

Ek dink my kollegas het reeds verwys na die voorsitters wat baie hard moes werk, asook die komiteelede en die personeel. Soos gewoonlik was dit baie harde werk vir hierdie spesifieke komitee. Die wetsontwerp het baie goeie bepalings en skep baie interessante nuwe moontlikhede, wat verwelkom word.

Dit lyk egter of die probleem met betrekking tot hierdie wetsontwerp hoofsaaklik tot twee hoofstrydpunte wat reeds genoem is, gereduseer kan word. Die VF is van mening dat die wese van ‘n akte van menseregte die verlening van regte aan die burgery, individueel of kollektief, behoort te wees, met ‘n gepaardgaande beperking op vergrype deur die staat of owerheid. Ek het hier ‘n dokument wat uitgegee is deur die Menseregtekommissie, naamlik My Rights, Your Rights. (Translation of Afrikaans paragraphs follows.)

[Section 32(2) provides that legislation must be accepted so as to give expression to these rights. This is precisely the legislation now before the House. On the surface it appears to be a quite simple right that is being created, namely the right of access to information. However, when we look at the Bill before us today, it becomes very clear how complicated this issue is. A fact that has become quite apparent to me today from this debate, is that it will please the litigants outside no end when this legislation is implemented.

The Bill is technically a very complicated and difficult piece of legislation, consisting of 93 clauses. To express this right of access to information and to provide for all of the different scenarios and possibilities is a tremendously difficult task. A large number of organisations gave evidence before the committee in order to make this Bill possible, because a minor provision and a minor right are being created, but with far-reaching implications.

I think my colleagues have already referred to the chairpersons who have had to work very hard, as well as to the committee members and staff. As usual it was very hard work for this particular committee. The Bill has very good provisions and creates very interesting new possibilities, which are welcomed.

It seems, however, as if the problem with regard to this Bill can be reduced to mainly two principal points in dispute, and they have already been mentioned. The FF is of the opinion that the essence of a Bill of Rights ought to be the granting of rights to the civilian population, individually or collectively, with an accompanying restriction on transgressions by the state or authorities. I have here a document that was published by the Human Rights Commission, namely My Rights, Your Rights.]

In this document they explain the Bill of Rights. Their first question is: What is the Bill of Rights?'' According to them the Bill of Rights is a list of human rights which everyone has. The second question is:What are human rights?’’ The answer is: ``Human rights are the basic rights that everyone has, simply because they are human. They do not have to be earned and are not privileges which anyone gives to you. Instead, you have them from the moment you are born. Because they are rights, they cannot be taken away from anyone by the Government.’’

Hier het ons met ander woorde ‘n nuwe situasie, een waar die staat betrek word. Die wetsontwerp onder bespreking verleen die regte in die akte van menseregte aan die staat. Adv De Lange het in sy toespraak dit aanvanklik baie elegant gestel en verduidelik. ‘n Mens kan baie maklik verwar word as jy daarna geluister het en dit glo. In ligter trant, ek kan dink dat mense soos Pik Botha en Kallie Knoetze daarvoor sal val. Ek kan dit glo, want dit maak sin. Die Minister het egter die spel weggegee. (Translation of Afrikaans paragraphs follows.) [In other words, we have a new situation here, one in which the state is becoming involved. The Bill in question grants the rights in the Bill of Rights to the state. In his speech Adv De Lange initially put and explained it very elegantly. Listening to that and believing it, one could very easily become confused. In a lighter vein, I can see how people such as Pik Botha and Kallie Knoetze could fall for it. I can believe that, because it makes sense. However, the Minister has given the game away.]

The Minister was quite clear and quite categoric about this. He used the example of the upliftment of the poor. He also mentioned the trade unions. He said that the Bill would give them access to information. It would help them to access information on companies regarding matters such as salary scales, etc. He was quite categoric about it.

Mnr De Lange het ook verwys na die regte van die armes wat verdedig moet word. ‘n Mens sou kon redeneer dat die werklike arm mense dié mense is wat nie eens lede van vakbonde is nie, maar werkloos is. Daar is miljoene van hulle in Suid-Afrika. ‘n Mens wil die hoop uitspreek dat die Regering, wanneer hy hierdie regte gebruik, dit sal doen om by Cosatu en die SAKP uit te vind en inligting te kry oor hoe hulle te werk gaan wat veroorsaak dat die ``poorest of the poor’’ nie werk kan kry nie en daar nie werksgeleentheid in Suid-Afrika geskep kan word nie. Dít is die werklike probleem wat aangepak moet word.

‘n AGB LID: Moet ons nou dokumente by Cosatu gaan kry?

Dr C P MULDER: Ek dink daardie agb lid móét dokumente by Cosatu gaan kry. As hulle dié reg vir hulself wil opeis, dan wil ons sien dat hulle in die praktyk daardie reg gebruik vir die werklike ``poorest of the poor’’ en nie om ander mense te beskerm nie. (Translation of Afrikaans paragraphs follows.)

[Mr De Lange also referred to the rights of the poor, which should be championed. One could reason that the truly poor people are those who are not even members of trade unions, but who are unemployed. There are millions of them in South Africa. One would like to express the hope that the Government, in using these rights, will do so to find out from Cosatu and the SACP how they have gone about their business so as to cause the inability of the poorest of the poor to find work and the failure to create job opportunities in South Africa. That is the real problem that has to be tackled.

An HON MEMBER: Must we now get documents from Cosatu?

Dr C P MULDER: I think that that hon member should get documents from Cosatu. If they want to claim this right for themselves, then we would like to see them using that right in practice for the real poorest of the poor and not for the protection of other people.]

The Minister gave the game away here today, specifically by the one example he used. He is after the big companies and nothing else.

As daardie agb lede dié reg wil gebruik, moet hulle dit op die regte manier gebruik en by die mense uitkom wat dit werklik nodig het. Ons dink dit is verkeerd. Ook die uitsluiting van die Kabinet is verkeerd, en ons kan nie so ‘n wetsontwerp steun nie. [Tyd verstreke.] (Translation of Afrikaans paragraph follows.)

[If those hon members want to use this right, they should use it in the proper manner and reach the people who really need it. We think it is wrong. The exclusion of the Cabinet is also wrong, and we cannot support such a Bill. [Time expired.]

Ms D P S JANA: Chairperson, hon members, there is so much furore in such little circles about the inclusion of Government as a requester to access information from private bodies.

The hon Lawrence Lever, whom I do not see, posed a question in The Sunday Independent of 23 January 2000 on behalf of the DP. He asked: ``Do you want the Government to know where you buy your underpants?’’ [Laughter.] I continue to quote him. He said:

The problem is that we are moving into an age of electronic data storage. Somewhere out there is somebody who knows where you buy your underpants. If you pay for them by credit card, that information is available somewhere on an electronic record. Would you want the Government to know that?

Well, Mr Lever should not buy his underpants with a credit card. [Laughter.]

But more seriously, not only does Mr Lever not understand this Bill, but he misses the point completely. For the Government to access information from private bodies, it must comply with four requirements in the Bill. It must do so for the purpose of exercising or protecting rights, it must comply with the procedural requirements in the Bill, the information must not be precluded in terms of any of the 12 exemptions, and above all, the Government must do so in the public interest.

The last test of public interest does not apply to private bodies and, therefore, this will make it more difficult for Government to access information from private bodies. This Bill does not give Government a power to access such information. The Government cannot enforce this right unilaterally without the intervention of the court. This right is subject to the sanction by our independent courts, and the courts are the final arbiters on the matter.

Yes, under the law the Government may very well access information on an electronic record and such record may very well contain information about Mr Lever’s underpants. But that information in the record will not be to the exclusive access of Government. It will also be available for access by any private body. Once that information meets the three criteria - that is, the exercise and protection of rights and it does not fall under the exemption - and the private body complies with the procedures, such information immediately qualifies for access by any private body. And when that happens, the protection around this information immediately falls away.

If the Government wishes to access this information, it must go a step further and show that it is in the public interest. Therefore, it is not only the Government that can limit Mr Lever’s right. The right to information is one right in a spectrum of rights. In the application of horizontal rights, justifiable limitation of other rights will occur; that is a reality. This is so whether the Government is included or not. The Constitutional Court, when certifying our final Constitution in respect of horizontal rights, made this absolutely clear in its remarks. It said, and I quote:

Rights conferred upon individuals will justifiably be limited in order to recognise the rights of others.

Ultimately, our independent courts will have to play an increasingly important role in balancing rights. The DP’s argument, based on the assumption that only private bodies have rights, that Government only has obligations and that Government alone is vested with power, must surely be wrong. Government also has rights in terms of various pieces of legislation. [Interjections.]

There is no reason why an Act of Parliament cannot give Government a right. In fact, Government can be empowered by legislation. The reality of the world in which we are functioning is that the traditional divide between the public and private sectors has diminished. There is a great similarity in the operations of state organs and the large private corporations. It is accepted that the state wields immense power because of the volume of information it holds and utilises, and therefore the right to information is premised on transparent, honest and accountable government.

However, it has become increasingly clear, especially with the growth of large corporations, that this kind of power through information is no longer the exclusive ambit of the state. Both the state and corporations are responsible for the allocation and use of resources. Private companies are increasingly powerful in the formulation of public policy. Last week a new company, Glaxo Wellcome Smith Klein and Beecham was launched. It is reported that it will have an international market share of over R1 trillion.

The South African economy - a very middle-ranking one, we are told - has a Budget of about R218 billion only. So I ask them: Where does the real power lie? There would be a glaring anomaly if this company could access information from private bodies to further its own rights while Government could not access such information from private bodies in the public interest. We make no apology for a Bill that will protect not only the rights and interests of the rich and powerful, but the rights and interests of the weak and poor. [Interjections.]

Our Constitution includes not only political, but also socioeconomic rights such as the right to food, housing, health care, water, education and social securities. This considerably extends the obligations of the state, and certainly fortifies the notion that Government is the guardian of the public interest. Therefore the right to information in our Constitution cannot be linked simply to political value, but must forge a much deeper linkage with the evolution of socioeconomic progress. This concept has already begun to develop, and according to Prof David Goldberg from Glasgow, in his keynote address at the Conference on Open and Accountable Democracy in Cape Town in July last year:

The working group on the right to development in the United Nations has linked the notion of participation in society and the evolution of socioeconomic progress to access to information, and I think that is a very important linkage.

Our object clause clearly states that the limitations are that it must be done for social justice and the promotion of a human rights culture. It is not true that this Bill, in the overall perspective, does not conform to international developments and experience. We have a firm tradition of being informed by international standards, experiences and developments. However, in the area of horizontal application of the right to information, there are no international precedents. Therefore we had to draw on our own realities, peculiarities, circumstances and experiences.

No doubt this Bill will be seen as truly innovative and truly radical. It captures the spirit and the necessity of the time and place we live in. This Bill is traversing new ground that requires a profound conceptual mindshift. Therefore it is not surprising that the likes of the hon Kent Durr, who has apparently extended his diplomatic representation for the apartheid government to the representation of big business, is experiencing such difficulty in grappling with and understanding the full extent and meaning of this Bill. [Interjections.]

To the opposition parties who will vote against this Bill, I quote our President, His Excellency President Thabo Mbeki, in his address to this Parliament on 30 June 1999, when he said:

Relative to ourselves, the DP cannot but be a vigorous opposition party. This is dictated, not by some theory concerning the role of an opposition in a democracy, but by the reality that, indeed, we proceed from very different ideological, philosophical and political positions.

Let history record and judge their vote. [Applause.]

Ms R TALJAARD: Chairperson, hon members, firstly, in reply to both Mr De Lange and Mr Cronin, taxpayers have an interest in knowing what senior public servants and Government officials earn. Secondly, if the Minister and Mr Cronin had read the Business Day they would have seen that the British example was cited with approval where CEO transparency is an issue of corporate governance and not an issue of horizontalisation of rights.

Surely the appropriate way in which a government gets information from a citizen is by passing a law of general application which limits any given rights reasonably and justifiably. The state has these powers and I would like to inform Mr De Lange that that is what the National Environmental Management Act is all about. The state has such powers and it does not need to invent its own information rights. [Interjections.] I would like to tell Mr Cronin that inventing rights for the state is not the way to break information asymmetries.

If there are concerns about transparency in the private sphere, let them peruse the King report on corporate governance and not build the residual route provided for in clause 63(2)(f)(iii). It is not surprising that this controversy in our committee erupted when Government started actively pursuing a submission that was initially drafted by Cosatu, which submission they were pursuing with a sympathetic ear. In a press release dated 24 March 1999, Cosatu had the following to say about the right to know in the private sphere:

The second major shortcoming of the Bill is its failure to grant access to privately held information required for the exercise and protection of rights as mandated by the Constitution. Business, especially the big corporations, exercise enormous social power and routinely take decisions that have a profound impact on people’s lives. It is important that these institutions be held accountable for their decisions and actions, especially when their actions and decisions have a detrimental effect on people’s rights.

Within this context, it was hardly surprising to hear Mr Cronin focusing extensively on the horizontal application of the right to access in the preamble of the Bill that was drafted on Friday night and, for the first time, unambiguously stated the aims of Government.

No one denies the constitutional requirement in clause 32(2)(b) that everyone has the right to information that is held by another person and that is required for the exercise or protection of any rights. Neither is the fact of the horizontalisation of the Bill of Rights in section 8 of the Constitution a matter of dispute. These are our realities, but there are a number of caveats which the ANC seems to have ignored when it decided to include the state as a requestor of information from private bodies in the manner in which it is included in this Bill. Instead of feeling emboldened by the novelty of the horizontal application of the right of access to information, caution should have been the watchword.

Instead of trying to draw up catch-all mirror images of the public sphere provisions for the private sphere, the distinctive difference should have been accounted for. Instead of expressly including the state within the purview of everyone, as expressed in the Constitution, the ANC should have left this open-ended for the interpretation of the courts, instead of blunderbussing ahead like a bull in a china shop. It will undoubtedly be interesting for hesitant institutional investors, as indeed it will be for the DP, to keep a watchful eye as to what antecedent rights Government will cite it is aiming to protect or promote for the purposes of arguing that it needs access to privately held information.

For example, and assuming that the tripartite alliance is still healthy, the ANC Government could arguably act to exercise and protect the rights of Cosatu, in the public interest, to further the right to narrow the wage gap as provided in the Employment Equity Act. This becomes possible. However, is it desirable? That is the question. Ask the Reserve Bank which will try to implement inflation targeting, which is contingent on wage stability and the answer will be a resounding “no”.

Consistently throughout deliberations, the ANC has insisted that this measure is desirable. I can see how a Government faced with a resource- constrained environment would wish to amass information on, to cite a pertinent example, the social responsibility expenditure profile of a private company in pursuit of the realisation of the socioeconomic rights in chapter two of the Bill of Rights. Is this the express aim, is the question.

There should be a voluntary pact or partnership between the public and private spheres in pursuance of socioeconomic development. Having the threat of an ever-present information-grabbing state breathing down their necks will introduce a measure of threat, not voluntarism; mala fides, not bona fides; a socioeconomic hostage drama, and not a dynamic partnership for development in the private sphere, despite what the hon Ms Jana says about four tests that have to be complied with. [Interjections.] [Applause.]

Mr B M SOLO: Chairperson, Your Excellency the Deputy President of South Africa, Comrade Jacob Zuma, hon Minister of Justice and Constitutional Development, hon members of the House le mfitshimfitshi ibithethwa apha ngesilungu esiphezulu, ngokukhawuleza okukhulu, andizi kuyingena kakhulu ngoba ayisoze isise ndawo. Endifuna ukukutsho ngesilungu sabo kukuthi South Africa is a uniquely socially stratified society. [… I am not going to involve myself that much with the nonsense that was, with great haste, spoken here in English of high quality because it will never take us anywhere. What I would like to say in their English language is that …]

It does not matter from which perspective one looks at it. The situation needs to be corrected. Therefore the Promotion of Access to Information Bill seeks to address that situation amongst many. One aspect the Bill addresses is the empowerment of the marginalised poor and powerless sections of our people, particularly those found in the deep rural areas, farms, squatter camps or informal settlements, and finally what is generally known as townships, and that is where the vast majority of our people are found. That is where a dire need for transformation exists.

We cannot deny or dispute the fact that for a long time South Africans have been denied access to information. But this would be an understatement if we did not reflect on the reality that all kinds of means have been employed deliberately to ensure that a specific section of our community would be denied all access to information that impacted on their livelihood.

This Bill seeks further to ensure that people will have access to information and will be empowered to have this when they wish. I do not want to get into the business of interpreting sections of the Bill, or imitate lawyers when they want to convince the courts otherwise.

What I want to elucidate is how this Bill will impact positively on the people of this country. Firstly, we need to note from the complicated and complex draft that this Bill was fine-tuned to be user-friendly and simple to read, in order that the overall intentions would be understood, something which certain elements in this House cannot do. Secondly, it provides for a simple procedure that any person will be able to use when in need of relevant information. Thirdly, the language used has been made easy for people to understand.

Abantu ke ngoko baza kuba nakho ukwazi kwangethuba ngokuqhubekayo empilweni yabo. Baza kuba nakho ukuveza izimvo, iimbono neengcinga zabo kwangethuba. Abantu bakwaZulu, emaMpondweni, kwaVenda, njalo njalo, baza kuba nakho ukuzikhusela kuyo nayiphi na inkqubo enobungozi entlalweni yabo.

Ngokunjalo siyazi ukuba abantu beza ziphaluka abanankolo yokuba bangazithethela nokuba banganendlela yokufumana ulwazi ngale ndlela bafuna ngayo. Kungenxa yoko kubalulekile ukuba naye uRhulumente abe nelungelo lokuba afumane ulwazi kweminye imibutho ekhoyo.

Ndingathanda ukwenza umzekelo omfutshane. Phaya kwaThema, apho sisuka khona, kukho umzi-mveliso ekuthiwa yi-Ergo. Lo mzi-mveliso utsala udaka, andazi ukuba ulusa phi na, kodwa kukho izibi ezikhoyo apho ezenza ukuba abantwana xa bedlala apho ngorhatya babuye bemthuqwasi. Iinkukhu ezithe zasela apho ubani uye angazi nokuba zinxilile okanye aziboni kakuhle na.

Kwakhona kwaThema njalo, kukhe kwakhiwa kwindawo eyayingumgodi. Abantu babebona ukuba laa ndawo inengozi, kodwa ibhunga ledolophu elaliphethe lala ukubanika ulwazi ngento elaliyazi ukuba inobungozi. Namhlanje abantu basengxakini, izindlu zabo ziyawa kuba umhlaba unalento kuthiwa yi-dolomite …

Kutshiwo apha ukuba imithetho ekhoyo yanele ukuba uRhulumente angayisebenzisa. Ndicinga ukuba omnye woogxa bam uye wacacisa apha ukuba asifuni ukuba uRhulumente alawule ngegqudu. Sifuna ukuba amalungelo akhoyo afikelele kuye wonke umntu ngokufanayo njengoko uRhulumente emele abantu. (Translation of Xhosa paragraphs follows.)

[People will then be able to know in time about what is happening concerning their lives. They will be able to air their views, disclose their visions and thoughts in time. The people of, for example, KwaZulu- Natal, Pondoland, Venda, etc, will be able to protect themselves against any system that is dangerous to their way of life.

Similarly, we know that people in those areas have no belief that they can speak for themselves or find information the way they want to. It is for that reason that it is important for the Government to access information from other organisations that are present.

I would like to give a brief example. At KwaThema, where I come from, there is an industrial plant called `Ergo’. Mud is collected at this plant. I do not know where it is taken to, but there is a waste deposit place that makes children who have been playing there look light-greyish when they come back at sunset. One would not know whether the chickens that drink water in that vicinity are drunk or whether they cannot see properly.

Also at KwaThema, building construction took place on a former mining site. People could see that the place was hazardous, but the town council refused them access to information they had about the danger that existed. The people are at present in a dilemma; their houses are collapsing because they have been built on dolomitic land.

It is said that the existing laws are enough for the Government to use. I think one of my colleagues has explained that we do not want the Government to be dictatorial. As the Government for the people, we want the existing rights to reach everyone equitably.]

What is good about the Bill, is that it applies to both the private and the public sectors. Recently we have been reading in the newspapers the story of Sandra Laing and her struggle to know the whereabouts of her white mother. Without analysing what might have happened, a so-called ``grand plan’’ which we had no access to, until now, alienated Sandra from her parents due to pigmentation.

As it is my not intention to bore this House, I will say in conclusion: All parties in this House would do themselves and this country proud by supporting such a progressive Bill that seeks to ensure the improvement of the quality of life for all South Africans through transparency and accountability.

Mr P H K DITSHETELO: Chairperson, Deputy President, this Bill has taken a very long time to come before us. It has been through many changes, first as the Open Democracy Bill, and now as the Promotion of Access to Information Bill. In case we have forgotten during this time, the original and primary purpose of this Bill was to promote open and accountable government. In South Africa we should by now have learned that the abuse of power thrives on secrecy.

While the horizontal application of this Bill is important, it is essential that citizens be empowered to question their Government and that the state be required by law to provide answers. It is, therefore, with great disappointment and regret that my party is forced to vote against this Bill at the eleventh hour. We object to a last-minute bid by the ruling power to grant itself the right to information held by its citizens. This turns the original aims of this Bill on its head. We object most of all to the reason given for this travesty of the spirit of the Bill of Rights. The state says it needs even more power to protect the poorest and most marginalised citizens. In other words, it claims that it wants to demand information from some private bodies on behalf of others. Firstly, why should the state take sides? As soon as it gets involved in a dispute between two persons, it becomes a party to that dispute. In so doing, the state violates its constitutional obligation to treat all citizens equally. Secondly, why should some citizens need the state to speak for them? Those who live in the rural areas of South Africa, the poor communities, are painfully aware that information is power. They are the ones who need more power and information, not the state. The state must not hijack rights that are meant for the citizens. This collapses the distinction between citizens and their government and amounts to not recognising that the will of the Government and the will of the people is not always the same.

The people want to prosper, and the Government wants to be re-elected. The people lend power to the Government and retain rights to protect themselves from an abuse of that power. Instead of giving itself power in the name of the poor, the state should concentrate on giving marginalised people the resources to act for themselves. That is what true empowerment means. Legal aid and the Human Rights Commission are two resources to help poor or marginalised people to exercise their rights. The people have the right to demand certain information from each other. The state’s role is to assist the people to exercise this right, and not to take over the right for itself. It is for this reason that the UCDP cannot support the Bill in its current form.

Lastly, may I take this opportunity to congratulate the chairperson of the committee on the able manner in which he conducted discussions, and on his humility by accommodating our emotions throughout.

Mrs P DE LILLE: Mr Chairperson, the Promotion of Access to Information Bill is going to be central in the promotion of constitutional democracy, accountable and efficient government, and the protection and advancement of fundamental rights in South Africa.

It will and must transform ordinary people’s lives. Elsewhere, it should show that the road to achieving true democracy is through information. In fact, information is power and this Bill must bring that power to the people. It must further make our Government institutions accountable, efficient and responsive to the demands of constitutionalism and democracy. The Bill must release energy to truly bring change. It is for this reason that every South African must transcend the unfriendly boundaries of misguided political loyalty to engage the demands of the Constitution.

The Promotion of Access to Information Bill has a special position in our legislative hierarchy. Firstly, it provides details of the constitutional rights contained in section 32. Secondly, it provides for an enforcement mechanism. The Bill, therefore, must be paramount in carrying out the mandate of the Constitution, from where it derives the right. The PAC, therefore, supports the principles of the Bill, but we have to point out two flaws. We need to engage ourselves more intensely to realise the purpose of this Bill.

Firstly, the exclusion of Cabinet, MPs and and MPLs in clause 2 of the Bill must be debated further. Constitutionally it is doubtful that such an exclusion is permissible or qualifies as a justifiable limitation to the right of access to information. In terms of the Constitution, everyone has a right of access to information held by the state. Cabinet, as the executive branch of the state, falls within that ambit of this constitutional right. Obviously, this does not mean all information held by Cabinet needs to be released to the public. Our Constitution guards against this eventuality through its limitation provision. If the Constitution does not give blanket exclusion to Cabinet information, why should this Bill do so? If it was the intention of the drafters of the Constitution to exclude Cabinet, they would certainly have done so explicitly.

Access to information is an essential right in an open and democratic society. We should not abrogate it by creating blanket exclusions. Politically it is questionable whether such blanket exclusion of Cabinet is desirable. South Africa has come a long way from the apartheid era where terrible decisions that affected millions of people were made in secret by faceless men behind closed doors. Are we not risking the possibility of repeating the mistakes of the past by excluding Cabinet and by masking important Government decisions behind a veil of secrecy?

Secondly, clause 50 of the Bill, where the state may also be the requester for information, has also sparked legitimate concerns around the purpose of the Bill. The PAC accepts that it is a constitutional responsibility of the state actively to promote and protect the rights of its people. All over the world where a Bill of Rights has been developed, it was done to protect the citizen against the abuse of state power. The primary purpose of the Bill of Rights, as described in Chapter 2 of the Constitution, is to protect citizens of this country. Nowhere in the world is a Bill of Rights used to bolster state power. It is absurd and unconstitutional, and it was never the purpose of section 32 of the Constitution to give that power to the state. We must ensure that the South African Constitution does not become like the Russian constitution that looks good on paper, but in fact controls the lives of the people of Russia.

The PAC supports the Bill, except for the above-mentioned clauses 12 and 50.

Miss H F MALEBANA: Mr Chairperson, the democratic majority of our country does not deserve to be governed in the dark. Certainly, the Promotion of Access to Information Bill is viewed as necessary in order to guarantee a smooth political transparency and accountability in public and private bodies by giving effect to the right of access to information. This will give life to the poor communities, curtailing the secretive and unresponsive culture in the public and private bodies which often leads to an abuse of power and human rights violations.

The Constitution, which is the cornerstone of our democracy and which we have unconditionally accepted, guides the principles and functions of public and private bodies, as they are mechanisms designed to guarantee a fair application of open democracy with no danger to the communities of the Republic of South Africa. The Bill promises national cohesiveness and safeguards regional diversity, as it should in an open and democratic real world of socioeconomic disparities. I would like to highlight a few important aspects of the legislation and express a few thoughts about them.

Firstly, clause 14(1) of the Bill states:

Within six months after the commencement of this section or the coming into existence of a public body, the information officer of the public body concerned must compile in at least three official languages a manual containing - (a) a description of its structure and functions; (b) the postal and street address, phone and fax number and, if available, electronic mail address of the information officer of the body and of every deputy information officer …

The information officer must provide a description of the guide which will be provided by the Human Rights Commission within 18 months after the commencement of this proposed section. The guide must be compiled in each official language and must contain such information in an easily comprehensive form and manner as may reasonably be required by a person who wishes to exercise any right contemplated in this Bill.

The information officer must also provide sufficient details to facilitate a request for access to a record of the body, a description of the subject on which the body holds records and the categories of records held on each subject. Further, on a periodic basis, not less frequently than once each year and at the cost of the relevant public body, the Minister must, by notice in the Gazette, publish every description submitted by an information officer of a public body. The categories of records of the public body should be automatically available without a person having to request access in terms of this Bill.

In my view, the Bill has the objective of unleashing the full potential abuse of power and human rights violation by public as well as private bodies. Furthermore, a description of the services available to members of the public from the body and how to gain access to those services must be made available. There should also be a description of any arrangement or provision for a person, by consultation in certain categories of a public body making representation or otherwise, to participate in or influence the formulation of policy or the exercise of power or performance of duties of the body. It is surely necessary for one member to discharge the responsibilities of other members by explaining the smooth and efficient process of access to information which will undoubtedly reinstate us among the democratic countries.

Maekemišetšo a Molaotheo wa Afrika-Borwa ke go šireletša ditokelo tša badudi ka moka ba naga ye. Se se iponagatša ka Molaokakanywa wo wa Open Democracy. Wona o leka go šireletša Maafrika-Borwa ka go a fa tokelo ya go nyakana le tshedimošo yeo e a amago letšatši ka letšatši.

Motho a ka ipotšiša gore ke tshedimošo e fe yeo a ka e nyakago go mmušo, goba go makgotla a bosetšhaba le ao e sego a bosetšhaba? Ge mmušo o swanetše go iša tlhabologo setšhabeng, sa mathomo seo o swanetšego go se dira, ke go bona gore go dirwa dinyakišišo, go fatišiša gore dinyakwa tša setšhaba tšeo se dumago ge di ka tlišwa ka pela go sona ke dife. Go tloga fao go ba le dingwalwa tšeo e lego tša setšhaba, tšsa go ama maphelo a batho. Tšona di fetoga go ba tša mmušo ka ge mmušo e le wona o dirilego gore go be le dinyakišišo.

Ge batho ba nyaka go tseba tšwelopele yeo mmušo o ka bego o e dira, le go tseba gore mmušo o eme kae mabapi le tlhabollo yeo o tlago go ba tlišetša yona, ba swanetše go ba le tumelelo ya gore ba ye mmušong goba go makgotla afe goba afe, ao a emelago mmušo, gomme ba nyake tshedimošo yeo.

Ka Molaokakanywa wo, makgotla a bosetšhaba le ao e sego a bosetšhaba a fiwa maikarabelo a gore a bone, le go hlokomela gore setšhaba se fiwa tshedimošo yeo e nepagetšego, ka nako ye kopana, go ya ka ditokelo tša sona. Ke maikarabelo a makgotla a bosetšhaba go bona le go kgonthiša gore dingwalwa tše tša setšhaba di maemong a maswanedi, le gore di lotegile gomme di bile di bolokegile gabotse. Tona ya tša Toka le Tlhabollo ya Molaotheo e filwe maikarabelo a go kgonthiša gore makgotla ao a phatlalatše, a be a kgone gore seo se phethagatšwe.

Molaokakanywa wo o fa motho tokelo ya go ka dira aphili, ge e le gore kgopelo ya gagwe ya go nyaka tshedimošo ga se ya dumelelwa. Aphili e dirwa lekgotleng la bosetšhaba, mo dikgorong tša tsheko, go ba go fihla Kgorongtsheko ya Molaotheo.

Komiti e ile ya sekaseka ka moo batho ba nago le bothata ka gona go ka hwetša tshedimošetšo, gagolo ka ge ba tlo be ba gapeletšega gore ba tsenye- diatla dipotleng. Ge e le ba-dikobo-dikhuswane ba ka se ke ba kgona go tsentšha diatla, go ya ka mokgwa woo go lego ka gona.

Molaotheo o kgopela gore komiti le Kgoro ya tsa Toka di nyakišiše mekgwa yeo batho ba ka thušwago ka gona gore ba kgone go ba le tokelo ya go hwetša tshedimošo. Ke ka baka leo ke kgopelago makgotla a kganetšo gore a ke a leke ka moo a ka kgonago ka gona gore a dire gore molao wo e be molao wo o tlago šireletša Maafrika-Borwa ka moka. [Legofsi.] (Translation of Pedi paragraphs follows.) [The intention of the Constitution is to protect the rights of all citizens of South Africa. This is what this proposed piece of legislation, the Open Democracy Bill, is about. This Bill tries to protect all South Africans by giving them the right of access to information that is vital to their everyday lives.

One could ask oneself what kind of information one could request from the state, public or private bodies. If, for example, the Government has to develop a certain region or place, it must first do the necessary research in trying to find out the primary needs of the people. Besides, there are documents which belong to the public and which affect their own lives. But these documents could become the Government’s, since it is the one which instituted research in the first place.

Therefore, if the public would like to know how far the Government has gone in so far as the development of their region is concerned, they would have to request that information from the Government or any organisation representing the Government.

With this Bill, an efficient system of identification, arrangement and retrieval of records will enhance the ability of public and private bodies to provide the public with timely and accurate information. It is the responsibility of public bodies to ensure that records are properly and safely kept. The Minister for Justice and Constitutional Development was given the responsibility of ensuring that the provisions of this Bill are closely followed by all public bodies.

This Bill gives any person the right to appeal if one’s request for access to information has been turned down. Application may be lodged with a magistrate’s court, High Court or even the Constitutional Court.

The committee has noted the inaccessibility of information to the public, mainly because it is often expensive to do so. This proves to be even worse for the poor because as things stand at present, they do not have money to pay for the courts.

The Constitution asks of the committee and the Department of Justice and Constitutional Development to look into finding and effecting ways in which people could have the right of access to information. That is why I am appealing to the opposition parties to do everything in their power to vote in favour of this Bill because it will protect the rights of all South Africans. [Applause.]]

Miss S RAJBALLY: Chairperson, hon Ministers, hon members, the Constitution is like a mirror that reflects the national soul. It identifies the ideals and aspirations of the nation. The Constitution articulates the values bonding its people and disciplining its Government. It guides the principles and achievement of democracy. Democratic accountability entails a public right of information about the activities of the Government. Any member of the public has a right to petition the Government and to seek redress through elected representation, the courts, the ombudsmen, etc, in the event of maladministration.

Section 32 of the Constitution extends the right of access to information to nongovernmental institutions and individuals. This would have a far- reaching effect were it not for the provision in section 32(2) which stipulates that the right of access to information should be enacted in legislation within three years of the commencement of the Constitution. Therefore, the Promotion of Access to Information Bill must be implemented to preserve and promote the dignity and fundamental rights of the individual, to achieve social justice, foster the economic and social development of the community, strengthen the cohesion of society, enhance national tranquillity and create a climate that is favourable for international peace.

The development of our society is marked by technological advances which are largely responsible for industrial growth. This phenomenon is pushing contemporary civilisation in the opposite direction to democracy. Most industries or corporations show no consideration for nature and the environment in which people live. Many citizens, especially the vulnerable, have suffered detrimental consequences because industries have a do-not- care, inhuman attitude and pump toxicants into the air and land at the expense of the lives of humans.

Most of the culprits have been getting away because access to information by victims or the Government to establish the truth was difficult. The majority of South African citizens are poor, illiterate or semi-literate and lack access to the necessary social resources that would empower them to challenge industries that cause environmental disasters.

The state is the supreme guardian of our people, especially the vulnerable. Therefore, within the boundaries of the law and the Constitution, the state has a virtuous right to access to information from any private organisation which violates human dignity. This is the intention in clause 42(5)(c) of the Promotion of Access to Information Bill. The Government, nongovernmental organisations and the individual must all be equally transparent and held accountable as far as the development and the security of the country is concerned. The MF supports this Bill. [Applause.]

Mnr C AUCAMP: Mnr die Voorsitter, dit is eintlik tragies dat ‘n wetsontwerp wat voor die hand liggend in ‘n oop demokrasie moet wees, nou so omstrede geword en soveel wye en ernstige teenkanting ontlok het, uiteraard ook van die kant van die AEB. Dít hoofsaaklik vanweë die gewraakte klousule wat die totale bedoeling van hierdie wetsontwerp geweld aandoen deur artikel 32 van die Grondwet te misbruik om aan die staat ook die reg op toegang tot inligting van individue toe te ken.

Van primêre belang is dat artikel 32, op grond waarvan hierdie wetgewing saamgestel is, deel vorm van die Handves van Regte. Die konteks van alle menseregteaktes reg oor die wêreld is juis om die regte van private individue te beskerm teen ingrepe deur openbare instellings. Die Grondwet van Suid-Afrika is geen uitsondering nie. Artikels 7 en 8 van ons Grondwet, wat die karakter van die handves omskryf, is daaroor baie duidelik.

Artikel 7, wat na die Handves van Regte verwys as a cornerstone of democracy in South Africa'', sê duidelik wat die doel daarvan is, naamlik to enshrine the rights of all people in our country’’. Die verwysing is na all people''. Om die legalistiese sprong te maak deur die staat vanweë sy karakter as regspersoon ook onderpeople’’ te kwalifiseer, is ‘n gedagtesprong en ‘n stuk breingimnastiek wat alle verstand te bowe gaan. En indien ons nog daaroor twyfel, gee artikel 8 volkome duidelikheid: ``The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.’’

Kom ons kyk verder na die konteks van die Handves van Regte. In elke artikel handel dit juis duidelik en spesifiek oor die regte van die individu teenoor dié van die staat. In gevalle waar die reg van die staat op ingrype teen dié van die individu gestel word, word dit ook duidelik as ‘n uitsondering vermeld, soos in artikel 37.

Ek opper ‘n laaste argument. Artikel 39 stipuleer hoe hierdie Handves van Regte vertolk moet word. Die volkereg moet geraadpleeg word. Kan die Minister my ‘n enkele voorbeeld noem van ‘n menseregteakte in ‘n demokratiese staat wat die regte van die staat teen die individu verskans? Inteendeel, die omgekeerde is juis waar. Artikel 39(2) sê ook duidelik dat die gees en doel van die handves by die uitleg daarvan deur die howe nagestreef moet word. Is dit nie ironies nie dat juis die doel en gees van die handves nou deur die wetgewer by die agterdeur uitgegooi word? (Translation of Afrikaans paragraphs follows.)

[Mr C AUCAMP: Mr Chairperson, it is really tragic that a Bill that should obviously exist in an open democracy has now become so controversial and is eliciting such widespread and serious opposition, naturally also from the AEB. This is in the main owing to the objectionable clause affecting the entire intention of this Bill by misusing section 32 of the Constitution to give the state the right of access to information concerning individuals. Of primary importance is that section 32, the basis on which this legislation has been formulated, forms part of the Bill of Rights. The context of all human rights charters all over the world is in fact to protect the rights of private individuals against interference by public institutions. The Constitution of South Africa is no exception. Sections 7 and 8 of our Constitution, which define the character of the Bill of Rights, are very clear in this regard.

Section 7, which refers to the Bill of Rights as a cornerstone of democracy in South Africa'', clearly states its objective, namelyto enshrine the rights of all people in our country’’. The reference is to all people''. For the state to take the legalistic leap by virtue of its nature to qualify as a legal entity underpeople’’ is a leap of the mind and a piece of mental gymnastics beyond all understanding. And if we still doubt this, section 8 provides complete clarity: ``The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.’’

Let us furthermore look at the context of the Bill of Rights. In each section the rights of the individual as opposed to those of the state are clearly and specifically dealt with. In cases in which the rights of the state to intervene take precedence over those of the individual, this is clearly stated as being an exception, as in section 37.

I would like to raise a final argument. Section 39 stipulates the way this Bill of Rights should be interpreted. International law should be consulted. Can the Minister give me one single example of a bill of rights in a democratic state that entrenches the rights of the state against the individual? On the contrary, the opposite is in fact true. Section 39(2) also states clearly that the courts should pursue the spirit and objective of the Bill of Rights in interpretation. Is it not ironic that it is in fact the objective and spirit of the Bill of Rights that are now being thrown out the back door by the legislator?]

The tragedy is that whereas the whole purpose and context of the Bill of Rights, under section 32, are to protect the rights of the individual against the state, in this Bill Big Brothers’s intrusion into the lives of ordinary citizens is again evident. This part of the Bill, if accepted by Parliament, will make South Africa the only alleged democratic Government giving the state a statutory right to seek privately held information. Clearly, this proposed stipulation is in contravention of the most basic trends of a true democracy.

The rights of an individual to obtain information from the state are already limited in terms of other stipulations of the Bill. There are qualifications, such as matters pertaining to state security, something that can be so easily misused in an inappropriate manner. The fact of the matter is that Government has a whole security network enabling it to obtain information from, and about, individuals. With this proposed Bill, if it is entrenched by law, as a right and on the grounds of this Bill, they will have the right to do so. Unbelievable!

As ek luister na wat die Regering met hierdie nuwe reg wil maak, soos vandag in die debat na vore gekom het, gee dit my koue rillings. Die ANC wil duidelik hierdie reg gebruik om sy sosialistiese model van ‘n welvaartstaat af te dwing, soos uitgespel deur mnr Cronin, wat nie vandag net toevallig ‘n rooi das aan het nie! (Translation of Afrikaans paragraph follows.)

[When I listen to what the Government wants to do with this new law, as has become evident in this debate today, it gives me cold shivers. The ANC clearly wants to use this law to enforce its socialist model of a welfare state, as expounded by Mr Cronin, who is not wearing a red tie today just by coincidence!]

Our second main point of critique is the fact that the Cabinet is exempted from the provisions of the proposed Act. Clearly, this is unconstitutional and against section 8, a provision which also includes the executive.

Op grond van genoemde twee besware kan die AEB die wetsontwerp nie steun nie. Inteendeel, deur die aanvaarding van hierdie wetsontwerp, wat veronderstel was om wye en skoon, oop horisonne aan die demokrasie in Suid- Afrika te verleen, pak die donker wolke van die totalitarisme van ‘n magshonger owerheid onheilspellend saam tot bedreiging van die demokrasie in Suid-Afrika. (Translation of Afrikaans paragraphs follows.)

[On the basis of the aforementioned two objections the AEB cannot support the Bill. On the contrary, by adopting this Bill, which was supposed to lend wide and clean, open horizons to democracy in South Africa, the dark clouds of totalitarianism of a power-hungry authority are ominously gathering, threatening democracy in South Africa.]

May I conclude by asking the ANC to apply the one sound test of good legislation to these two matters. Would they ever dream of supporting it if they were not in the shoes of the Government?

Mr L T LANDERS: Mr Chairperson, I will respond to the hon Mr Aucamp during the course of my address. I was one of those members who were privileged to go on the study tour to Australia in order to benefit from their experiences with regard to the system of freedom of information, which is the equivalent of our Promotion of Access to Information Bill, which is before the House today.

I want to use this opportunity to express my thanks to the sponsors of that tour, Ausaid, to this Parliament and to the ANC for that experience which was invaluable for the insight gained by members into the Australian system. Clauses 38, 39, 40 and 41 of the Promotion of Access to Information Bill represent, in my view, some of the most important provisions of this Bill, because they deal in a responsible and comprehensive manner with matters related to the mandatory protection of the safety of individuals and the protection of property, the mandatory protection of police dockets in bail proceedings and the protection of law enforcement and legal proceedings, the mandatory protection of records privileged from production in legal proceedings and, last but not least, the defence, security and international relations of the Republic.

The committee has sought to align the provisions in these clauses with, amongst other things, our witness protection programme and the Criminal Procedure Act, particularly section 60(14), which provides that the accused in a criminal matter is prevented from gaining access to the investigation docket or other related information for the purposes of bail proceedings.

We have also sought to align the provisions in these clauses, both with the imperatives contained in our Constitution and what is referred to as international best practices. An example of international best practices can be found in clause 39, which prevents the disclosure of any, and I stress any, information which could reasonably be expected to reveal or enable anyone to ascertain the identity of a confidential source of information.

To further ascertain that sensitive and confidential information and records in the hands of our security and intelligence services are not dealt with willy-nilly and irresponsibly, clause 39(3) provides that the information officer in certain instances can refuse to confirm or deny the existence or nonexistence of a record or document. A similar provision can also be found in clause 41 of the Bill, which deals with defence, security and international relations. The refusal to confirm or deny the existence or nonexistence of a record or document is, undoubtedly, in keeping with international best practices and must be welcomed by us all.

Listening to this, the impression may well be gained that all information in the hands of our intelligence services cannot be accessed. Were this the case, this Bill would be struck down as being unconstitutional. Checks and balances have, therefore, been put into this legislation so as to prevent any possible abuse by bureaucrats, the police and our intelligence services. These checks and balances can be found in clauses 46 and 80 of the Bill.

Clause 46 provides for the mandatory disclosure of a record if, firstly, the disclosure of that record will reveal evidence of a substantial contravention or failure to comply with the law or an imminent and serious public safety or environmental risk, and secondly, the public interest in the disclosure of that record clearly outweighs the harm contemplated in the exemption provisions, some of which I have already referred to.

Moreover, as a further check and balance against possible abuse, clause 80 provides that notwithstanding the provisions of this Act and any other law, any court hearing an application or an appeal against a decision on that application, such court is empowered to examine any record and no such record may be withheld from the court on any grounds. However, a further check in clause 80 provides that the court itself is prohibited from disclosing the contents of such a record to anyone. This prohibition includes the fact that the record neither exists nor does not exist.

The success or failure of the implementation of the Promotion of Access to Information Bill will lie in the willingness or otherwise of information officers and other civil servants to make it work. In the best of systems, access to information can be very bureaucratic and appeal or review processes can be time-consuming, frustrating and even expensive.

In South Africa, access to information must therefore be made as simple and easy as possible, both for the requester or general public on the one hand and for state departments and public bodies providing that information on the other. Public bodies must strive and endeavour to be facilitative, not only in providing access to records, but also in providing other assistance, for example explaining to the requester what is contained in a particular record or how to read or interpret that record.

Given the absence of an information commissioner in our system, the role of nongovernmental organisations and what are commonly referred to as organisations or organs of civil society becomes especially crucial in assisting particularly indigent and less-privileged people in gaining access to information they may require to exercise and protect their rights. We trust and hope that these organisations rise to this challenge. We have no doubt that the NGOs and similar organisations will welcome the passing of this Bill and are excited by its passage through Parliament. We share in that excitement.

When our President signs this Bill into law not only will South Africa be taking an important step in meeting the imperatives provided for in section 32 of our Constitution, but we will also be taking another leap forward in enriching our democracy for which so many of our people sacrificed, struggled and even gave up their lives. [Applause.]

Mr M A MANGENA: Hon Chair, congratulations and deep appreciation go to members of the ad hoc committee on the Open Democracy Bill, as it was always called, for their sterling work, sifting through piles of submissions from the public, sitting long hours, sometimes into the night, in order to prepare this complicated piece of legislation.

This Bill marks yet another deepening of democracy in our country. A people ignorant of the processes of government cannot intelligently participate in those processes, and it is almost impossible to exercise one’s rights, as guaranteed in the Bill of Rights, unless government is open and transparent and the information contained in its institutions is freely accessible to the citizens.

Considering the oppressive and secretive past we come from, what this Bill proposes to do is breathtaking and, indeed, revolutionary. The need for an aggressive public information campaign to alert the people to the arrival of the new era is obvious. The state, throughout history, has been notorious for its tendency to oppress and abuse its citizens and generally ride roughshod over their rights and concerns. There is therefore always a struggle on the part of civil society to protect citizens against their own state.

In our case the Constitution and, in particular, the Bill of Rights, the Human Rights Commission and other specialised but equally independent institutions are meant to protect persons against the all-powerful state in its dangerous tendencies. Thus our human rights credentials, at least theoretically and on paper, look impeccable.

That is why granting to the state the same rights as to individuals to request information held by private bodies is so unfortunate. The pity is that the state is not powerless to obtain any information it requires in order to fulfil its obligations to the citizens. Even now as we speak the state does have enough powers and machinery to obtain any information it might need to protect public interests. The provision is a pimple on an otherwise beautiful and exciting piece of legislation.

The state in our country today is benign, perhaps even benevolent, but it might not always be like that. It is therefore unwise to legislate with a benign government in mind. We should legislate for all seasons. As it stands at present, the provision giving the state the same rights to obtain information held by private bodies is not likely to harm. It is the simple notion of giving the state this right that sits uncomfortably in one’s mind.

Maladministration, abuse of public property and corruption are worrying problems in our country. The measures proposed in this Bill to protect whistleblowers will add another dimension to the armoury needed to fight this scourge. We hope that those who are inclined to corruption will take note of the dangers they face and desist. Azapo will support this Bill. [Applause.]

Mr H C SCHMIDT: Mr Chairperson, the urgency in the deliberation process of the ad hoc committee leading to the debate today, to give effect to section 32 of the Constitution, is caused by the constitutional obligation to pass legislation by 4 February this year. It is clear that the failure to put into operation before the constitutionally required date the contents of this Bill will lead to the exercise of the unqualified right to access to information, subject, of course, to the limitation clause. This unfortunate situation has been caused by the still unexplained failure of the Department of Justice and Constitutional Development to refer the Bill timeously in order to have it enacted as well as operational by the mentioned date.

Listening to the debate this afternoon, the question can be posed to the hon Mr De Lange and the hon Mr Cronin: How does the ANC view the purpose of the Bill of Rights? Is its purpose to allow the state to usurp the rights of the individual? As the hon Dr Delport has pointed out, it would not only be constitutionally questionable, but also undesirable to attempt to equate the state, a public body, to an individual in granting rights of access to records of other private bodies.

In addition, the Bill attempts to strenuously regulate the position of the private body in the private sphere, which would include individuals, companies, closed corporations and other private institutions, in the same way as it attempts to regulate the affairs and business of the state. In doing so, the various sections dealing with the manner and requirements of access in terms of which private bodies can obtain the records of other private bodies are regulated in detail. These include, inter alia, the form the request should take, fees, the procedure on how to come to a decision following a request for access to a record, notices to third parties and how to deal with representation by a third party.

The right of the private sphere to regulate its own affairs is severely eroded by the acceptance of the Bill. So, for example, the discretion of a private body is limited to such an extent that any request for access to a record concerning the classification, salary scale, remuneration, responsibility of the position held or duties performed by an individual may not - I direct this to Mr De Lange - be refused in terms of section 63. This, of course, leads to a serious invasion of the right to privacy of any employee of a private body. To such an extent are the affairs of the private sphere further regulated that it prescribes to private bodies which information they need or might need in order to process an application addressed to themselves by not only other private individuals, as contained in section 32(1)b), but also in respect of the state, acting as such and not as a contracting party, requesting access to a specific record of that private body.

This is in contrast to what happens in the international sphere, where the right of access to records of other private bodies is determined by the rules of law as developed over centuries. Despite the fact that the equivalent of section 32(1)(b) does not exist in other countries, it does not, by logic, follow that the inclusion of such a clause in our Constitution must negate the rights of the private sphere to manage and control its own affairs without being dictated to by the Government.

Add to this unknown concepts within our law such as ex parte representations during application proceedings, where an opposing party or parties might not even be aware of the contents of the representations submitted to the presiding officer. This negates the well-founded principle of audi alteram partem. The opposing party would not even be allowed to have knowledge of the contents of representations submitted to court by one of the parties.

It might be argued by parties supporting the serious intervention into the affairs of the private sphere that it is well intended. The short answer to that argument is that if Government requires any additional powers - and I deliberately accentuate the word powers - Government is entitled, within the confines of the principles of the rule of law, to amend certain statutory laws already in operation in order to effectively promote transparency, accountability and delivery of basic human services.

In this regard the National Environmental Management Act, which has been referred to earlier this afternoon, which the DP correctly and justifiably supported, granted the state limited powers to investigate environmental issues and did not grant the state a broad power, and certainly not rights. It is clear that rights do not equate with powers.

A further highly contentious issue, the contents of which appear to be inserted in every Bill recently submitted to Parliament, is the approach by the ANC of designating certain magistrates’ courts by the minister by notice in the Gazette. This connotes an impression that only certain members of the magistrates’ profession are fit and qualified to entertain certain cases.

Lastly, if Mr Cronin has attempted to portray the DP as the nightwatchman of a democratic society, then I wonder how much blame Mr Cronin and his SA Communist Party will take for the millions of people who died under Stalinist rule.

Dr Z P JORDAN: Madam Speaker, hon members, comrades, despite the doomsayers and the desperate cries of its detractors, this is the Bill that very deliberately sets out to prevent unwarranted state interference in the affairs of the individual citizen, private companies or other juristic persons. It gives no new rights to the Government, and in all instances where public bodies require information from private persons, those requests must first be tested in the law courts.

It is, of course, very wise to be vigilant against Government intrusiveness; and perhaps in that respect the remarks of the speaker from the ACDP, the hon Swart, are well taken. But I wonder, when I hear him, exactly what state intrusiveness is the ACDP opposed to? Is this the same ACDP that wants the state to regulate sexual preference? Is this the same ACDP that wants to regulate, through the state, the fertility of women? What intrusiveness, exactly, is the ACDP opposed to? I cannot, in the context of the ACDP’s other pronouncements, avoid the suspicion that the sphere the ACDP seeks to exclude from state inspection is that of private business and corporate power.

I found it amusing - and perhaps some parties should rethink who their principal spokespersons on these matters are - to listen to the hon Tertius Delport protesting here and posing as a white knight who stands opposed to the state and its powers, protecting the rights of the individual. Frankly, to me that sounds like a brothel-keeper protesting the great value he places on virginity. I am very sorry, but I do not find it credible. [Laughter.]

From what I have heard in the debate today, I remain unconvinced that the primary concern of the opposition parties and their spokesmen is in fact the protection of the individual. Their concerns centre around the powers and privileges accruing to big corporations as a result of the wealth they control, and this is what these parties would prefer to see protected from too close scrutiny by either private citizens or public bodies, including the Government acting in the public interest.

Their repeated references to socialism betrayed precisely that anxiety. Let us make no mistake about it: the power accumulated in the hands of private corporations has impacted and could continue to impact profoundly on the information age we are entering. In this regard the words of one professor, Ben Badgikian, professor of journalism at the University of California in Berkeley, are illuminating. The professor writes, and I quote:

On the one side is information limited by each individual’s own experience and effort; on the other, the unseen affairs of the community, the nation and the world, information needed by the individual to prevent political powerlessness. What connects the two are the mass media, and that system is being reduced to a small number of closed circuits in which the owners of the conduits … have that golden opportunity they speak of with financial joy, a guaranteed audience''. But the term guaranteed audience’’ is another way of saying ``captive audience’’.

The learned professor continues:

At the end of World War II, 80% of the private newspapers of the United States were independently owned, but by 1989 the proportion was reversed, with 80% owned by corporate chains. In 1981 20 corporations controlled most of the business of the country’s 11 000 magazines, but only seven years later that number had shrunk to three companies. Today, despite the more than 25 000 outlets in the United States, 23 corporations control most of the business in daily newspapers, magazines, television, books and motion pictures.

Two weeks ago, as if to underscore what the professor has said, we read about the merger between America-on-Line and Time-Warner. And just this morning the BBC announced the planned merger between Time-Warner and EMI. To pretend therefore, as the hon Sheila Camerer wants us to believe, that these huge aggregations of economic power are comparable to some lonely, ragged-trousered, barefoot individual is laughable. They are not. These are very powerful institutions and, being that powerful, it is only correct that they be subject to public scrutiny.

I want to bring the discussion back to the essentials of this Bill. Our vision as the ANC is one of democratising our society and progressively deepening that democracy. Unlike some, for whom democracy is merely a catalogue of abstract concepts, we have always regarded it as intimately linked to the challenge of reconstruction. In order to unleash the resources, the neglected skills and the stunted potential of our country and its people, South Africa requires an empowered population. This will be attainable through expanded rights, education, meaningful information and an institutional network that fosters representative and participatory democracy.

In the first instance, this means that all South Africans must have access to power. But above all, they must have the right and the capacity to exercise that power. Secondly, it means ensuring that all tiers of government conduct themselves in an accountable and transparent manner. For the ordinary citizen democracy must not end with formal rights and periodic one-person-one-vote elections, important as these are. Deepening democracy implies and requires empowered citizens whose formal rights translate into substantive rights.

Every pundit agrees that the 21st century will witness the arrival of the information age. In our age, therefore, a democratic order must have, as one of its cornerstones, a democratic information order which will foster and encourage free, unfettered debate, unfettered by either secular or ecclesiastical authority. In addition to that, it requires an information policy that guarantees an active exchange of information and opinion amongst all members of society and transparency in government. Such a policy, aimed at encouraging and facilitating the exchange of information within and amongst communities, and between the democratic government and society in a two-way process, within the broad parameters of our Bill of Rights, is what this Bill sets out to achieve.

We rest our case on the provision that, in exercising the rights contained in this Bill, public bodies will not, as the hon Tertius Delport would prefer us to do, exercise powers of search and seizure. No, they will not do that. They will respectfully request such information as they seek, and that request will have to be mediated by the law courts. [Applause.] The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, I rise basically to thank all hon members for what I regard as a very interesting and vibrant debate on this Bill.

I have no intention of responding to each and every one of the remarks that were made by numerous speakers here, because I think my colleagues from the majority party have done that superbly. I just want to make a couple of observations. The first one is that, indeed, if anybody amongst us was in any doubt whatsoever before that the institution of Parliament was an arena of class interests, that doubt is gone. We now know who represents what and who speaks for whom. It was very interesting that those of us who know where the shoe pinches spoke so vehemently in favour of this Bill, and it was also interesting that the opposition parties spoke so vehemently against it.

As I sat listening to some of the speakers of the opposition parties, I began to wonder whether, if the victims of asbestosis where to come in and listen to them, they would agree with them. A case is currently being heard where nobody is able to assist victims of asbestosis primarily because they have no resources whatsoever. They have even tried courts in the United Kingdom and have had to come back here. As Government we are saying: ``We cannot help you. We do not have the means because our legal aid system is in a parlous state.’’

Those who are pretending to be ardent advocates of human rights have not preferred their assistance to these people. Who do they speak for? I thought that the hon member Ms Taljaard was going to take advantage of the speech she was delivering and distance herself from the sentiments ascribed to her in today’s Business Day, and I want to quote:

We warn the private sector and the CEOs and directors of companies, which should be outside the purview of Government and trade union interference, that the consequences could be extremely stark if this latest amendment is proceeded with.

She is further alleged to have said the following: This latest amendment would give unions access to a powerful tool to use collective bargaining provisions to amass information that could subsequently be used in wage negotiations in the private sphere. [Interjections.] I want to say that if indeed unions as unions request information that it is in their interests to have at their disposal, this law would support that, with or without the assistance of the state. But we are talking here about cases similar to the asbestosis one.

I want to say that I was particularly enthralled by the speeches of these latter-day, passionate and Bible-thumping advocates of human rights. [Laughter.] I said to myself that it is a sad pity that they did not speak out against gross violations of human rights in the heyday of apartheid. [Applause.] They never spoke out. I have searched Hansard to see, for instance, whether Dr Delport ever spoke against his own system of apartheid with as much zeal and passion as he did today. I could not find anything. [Applause.] His leader, if hon members missed what he said, is saying he has changed. [Interjections.] Thank you. But, again …

The LEADER OF THE OPPOSITION: [Inaudible.]

The MINISTER: Yes. I want to say that I was particularly intrigued … [Interjections] … by the insinuation that transparency will smother democracy. I want to say to them … [Interjections.] Whether you call it bullshit or not I don’t care, but I want to say to them that transparency will never smother democracy to death, it is just the other way round. It will enhance it. It will advance it. It will enhance it in such a manner as has never happened before in the history of this country. [Applause.] So I call upon all those who are fair-minded, who are reasonable, who are concerned about the plight of the poorest of the poor to vote overwhelmingly for this Bill. [Applause.]

Debate concluded.

Question put: That the Bill be read a second time.

Division demanded.

The House divided.

AYES - 260: Abrahams, L A; Ainslie, A R; Arendse, J D; Asmal, A K; Balfour, B M N; Baloyi, M R; Baloyi, S F; Belot, S T; Benjamin, J; Bhengu, F; Bhengu, G B; Bhengu, N R; Bloem, D V; Booi, M S; Botha, N G W; Buthelezi, M N; Capa, R Z N; Carrim, Y I; Cassim, M F; Chalmers, J; Chauke, H P; Chiba, L; Chikane, M M; Chohan-Kota, F I; Cindi, N V; Coetzee-Kasper, M P; Cronin, J P; Cwele, S C; Davies, R H; De Lange, J H; Diale, L N; Didiza, A T; Doidge, G Q M; Douglas, B M; Duma, N M; Du Toit, D C; Dyani, M M Z; Ebrahim, E I; Erwin, A; Fankomo, F C; Feinstein, A J; Ferreira, E T; Fihla, N B; Fraser-Moleketi, G J; Gandhi, E; Gcina, C I; George, M E; Gerber, P-J A; Gigaba, K M N; Gillwald, C E; Gininda, M S; Gogotya, N J; Gomomo, P J; Goniwe, T M; Goosen, A D; Grové, S P; Gumede, D M; Hajaig, F; Hanekom, D A; Hangana, N E; Hendrickse, P A C; Hlangwana, N L; Hogan, B A; Holomisa, S P; Jana, D P S; Jassat, E E; Jeffery, J H; Joemat, R R; Jordan, Z P; Kalako, M U; Kannemeyer, B W; Kasienyane, O R; Kekana, N N; Kgarimetsa, J J; Kgauwe, Q J; Kgwele, L M; Khoza, T S; Kota, Z A; Kotwal, Z; Landers, L T; Leeuw, S J; Lekgoro, M K; Lekgoro, M M S; Lekota, M G P; Lishivha, T E; Lobe, M C; Lockey, D; Louw, J T; Louw, S K; Lucas, E J; Lyle, A G; Mabandla, B S; Mabudafhasi, T R; Maduna, P M; Magubane, N E; Magwanishe, G; Mahlangu, G L; Mahlangu, M J; Mahomed, F; Maimane, D S; Maine, M S; Makasi, X C; Makunyane, T L; Makwetla, S P; Malebana, H F; Maloney, L; Malumise, M M; Mangena, M A; Manie, M S; Manuel, T A; Maphalala, M A; Mapisa-Nqakula, N N; Mars, I; Marshoff, F B; Martins, B A D; Masala, M M; Maserumule, F T; Mashimbye, J N; Masithela, N H; Masutha, M T; Mathebe, P M; Matsepe-Casaburri, I F; Maunye, M M; Mayatula, S M; Maziya, A M; Mbete, B; Mbombo, N D; Mbongo, P F; Mbulawa, B G; Mbuyazi, L R; Mdladlana, M M S; Mgidi, J S; Middleton, N S; Mkhatshwa, S; Mkhize, B R; Mlangeni, A; Mnandi, P N; Mngomezulu, G P; Mnumzana, S K; Modise, T R; Modisenyane, L J; Moeketse, K M; Mofokeng, T R; Mohai, S J; Mohamed, I J; Mokaba, P R; Mokoena, D A; Molebatsi, M A; Molewa, B G; Moloto, K A; Momberg, J H; Mongwaketse, S J; Montsitsi, S D; Moonsamy, K; Moosa, M V; Morobi, D M; Morwamoche, K W; Moss, M I; Mothoagae, P K; Motubatse, S D; Mpahlwa, M B; Mpaka, H M; Mpehle, M; Mshudulu, S A; Mthembi-Mahanyele, S D; Mthembu, B; Mtsweni, N S; Mutsila, I; Mzondeki, M J G; Nair, B; Nash, J H; Ncinane, I Z; Ncube, B; Ndlovu, V B; Ndou, R S; Nel, A C; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngculu, J L V; Ngubane, H; Ngubeni, J M; Ngwenya, M L; Nhlanhla, J M; Nhleko, N P; Njobe, M A A; Nkosi, D M; Nqakula, C; Nqodi, S B; Ntshangase, I B; Ntuli, B M; Ntuli, M B; Ntuli, S B; Nzimande, L P M; Olifant, D A A; Oliphant, G G; Omar, A M; Pahad, A G H; Phala, M J; Phantsi, N E; Pheko, S E; Pieterse, R D; Radebe, B A; Ramakaba-Lesiea, M M; Ramgobin, M; Ramotsamai, C M P; Rasmeni, S M; Ripinga, S S; Rockman, G; Routledge, N C; Saloojee, E; Schneemann, G D; Scott, M I; Seaton, S A; Sekgobela, P S; September, C C; September, R K; Serote, M W; Shilubana, T P; Shope, N R; Sigcau, S N; Sigcawu, A N; Sigwela, E M; Sikakane, M R; Sithole, D J; Skhosana, W M; Skosana, M B; Slabbert, J H; Smith, P F; Smith, V G; Solo, B M; Solomon, G; Sonjica, B P; Sosibo, J E; Sotyu, M M; Thabethe, E; Tinto, B; Tolo, L J; Tshabalala-Msimang, M E; Tsheole, N M; Tshivhase, T J; Tshwete, S V; Turok, B; Twala, N M; Vadi, I; Van den Heever, R P Z; Van der Merwe, S C; Van Wyk, J F; Van Wyk, N; Verwoerd, M; Vilakazi, B H; Vilakazi, M I; Vos, S C; Woods, G G; Xingwana, L M T; Yengeni, T S; Zita, L; Zondo, R P; Zulu, N E; Zuma, J G.

NOES - 82: Abrahams, T; Abram, S; Andrew, K M; Aucamp, C; Bakker, D M; Baloi, G E; Bell, B G; Beukman, F; Borman, G M; Botha, A J; Bruce, N S; Camerer, S M; Clelland, N J; Da Camara, M L; Davidson, I O; De Beer, S J; Delport, J T; De Vos, P J; Ditshetelo, P H K; Dowry, J J; Dudley, C; Durand, J; Eglin, C W; Ellis, M J; Farrow, S B; Frolick, C T; Gaum, A H; Gibson, D H M; Gore, V C; Green, L M; Greyling, C H F; Grobler, G A J; Heine, R J; Kalyan, S V; Lee, T D; Leon, A J; Luyt, L; Mabeta, M E; Madasa, Z L; Maluleke, D K; Mbadi, L M; McIntosh, G B D; Meshoe, K R J; Mfundisi, I S; Mndende, O N; Moorcroft, E K; Morkel, C M; Mtirara, N Z; Mulder, C P; Nel, A H; Niemann, J J; Ntuli, R S; Odendaal, W A; Olckers, M E; Opperman, S E; Pillay, S; Pretorius, I J; Rabie, P J; Ramodike, M N; Schmidt, H C; Schoeman, E A; Schoeman, R S; Selfe, J; Semple, J A; Seremane, W J; Sigabi, N B; Simmons, S; Singh, A; Smit, H A; Smuts, M; Southgate, R M; Swart, P S; Swart, S N; Taljaard, R; Van der Merwe, A S; Van Deventer, F J; Van Jaarsveld, A Z A; Van Niekerk, A I; Van Schalkwyk, M C J; Van Wyk, A (Anna); Van Wyk, A (Annelizé); Waters, M.

Question accordingly agreed to.

Bill read a second time.

    CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND    CONSTITUTIONAL DEVELOPMENT ON PROMOTION OF ADMINISTRATIVE JUSTICE BILL

Order disposed of without debate.

Report adopted.

              PROMOTION OF ADMINISTRATIVE JUSTICE BILL
                       (Second Reading debate)

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, the right to administrative justice holds special relevance to us as South Africans.

The quest for administrative justice is the basic aspiration for a reliable remedy against injustice caused by maladministration, abuse or unfairness. It is the first line of defence against malice, bad faith and corruption by public bodies. It is the cardinal safeguard in the enforcement of administrative accountability and the realisation of substantive administrative justice.

The fact is that colonial and apartheid rule left a legacy of unparalleled, arbitrary, unfair and grossly unreasonable administrative action, both by government bodies and powerful public institutions. Through legislation, the pillage and plunder which dispossessed South Africans in the country of their birth was justified. In the process, judicial review experienced its darkest hour as the powers of the courts to pronounce on administrative action were severely curtailed.

Our main challenge in the current legislative process was to devise a framework in which public sector bodies could be held accountable for their actions. In our new constitutional dispensation the right to just administrative action has been elevated to the level of a fundamental right. The law-making process therefore requires of us to ensure an even greater level of circumspection.

The control of public power must be subject to legal limitations. There cannot be such a thing as absolute or unfettered administrative power. The fact is that any power can be abused, and the Bill before us is an effective measure to ensure public accountability. The Promotion of Administrative Justice Bill sets out a detailed code of full administrative action. It determines, in the first place, the substance of the right guaranteed in section 33 of the Constitution.

The Bill also advances the principle of fairness by imposing a duty on all organs of state, statutory bodies and public service institutions to be mindful of the obligations in execution of policies affecting the public. The right to seek redress before a competent court or tribunal imposes a positive duty on the public sector to observe the basic tenets of legality, fairness and reasonableness in all their actions. Our Government is committed to effective administrative mechanisms which will help South Africans enforce their constitutional rights. The administrative apparatus must serve the people, we say.

Before I conclude, let me take this opportunity to thank members of the justice committees from both the National Assembly and the National Council of Provinces, who sacrificed their holidays in order for us to meet the constitutional deadline. I would also like to thank officials from my department, who also worked tirelessly in drafting the Bills before the House today. [Applause.]

Adv J H DE LANGE: Madam Speaker, hon Deputy President, hon Minister, hon members, ladies and gentlemen, I rise, once again, to give unconditional support on behalf of the ANC to this Bill, both on constitutional grounds and as being desirable. [Interjections.] That is a surprise?

Luckily this Bill is much less controversial, although I think that when we look back on the passing of this Bill, its importance will have even outweighed that of the Promotion of Access to Information Bill. This is the Bill that will change the culture of how bureaucrats and public servants in this country work. Obviously the Promotion of Access to Information Bill reflects the end product of their work. But, this Bill will change the whole culture of how decisions are made, on what basis they are going to be justified, etc. As far as this Bill is concerned, in my view it is probably one of the most important Bills this Parliament will ever pass in terms of the way in which our public servants work. That is why I am very happy that most of the parties have voted for this Bill. In the committee the DP had abstained, and we will hear today what their position is.

Firstly, when we look at the right to just administrative action, it is clearly spelt out in section 33 of the Constitution. Before I get there, let me just say a few thank yous. Firstly, I want to thank everyone I thanked quite profusely earlier. I am not going to go through the list again, but there are two further categories we have to thank. From the department I want to thank particularly Mr Johan de Lange and Mr Johan Labuschagne, who have mothered this Bill through the committee and have done an excellent job without moaning and without any extra remuneration. I want to congratulate the two of them.

Then we also have to congratulate the SA Law Commission’s committee that dealt with this Bill: Adv Gauntlett, Prof Corder, Adv Breitenbach, Adv Hoexter, etc, who under tremendous pressure, consulting widely throughout the country, tried to get the views together to put before us. Unfortunately, in this regard we did not have what we usually get from the SA Law Commission because of time constraints, and that is a thorough piece of research and an audit of how this Bill will impact on the existing laws, and then have the Bill arising from that. So that was a bit unfortunate, but it was inevitable. That committee did not have the time to do so.

I again wish to thank the two justice committees very much, and in particular the opposition parties that assisted us in making sure that we met the deadlines - particularly the leaders of those parties, people like Ms Smuts, Dr Delport, Ms Camerer, Mr Smith, etc. We owe a debt of gratitude to all of them. I want to reiterate what I said regarding the last Bill. This Bill is truly a product of various inputs. I want to say that there is no party or individual that can claim credit alone for this Bill. As I said, the right to just administrative action provides that everyone will have the right to administrative action that is lawful, reasonable and procedurally fair - and everyone whose rights have been adversely affected by an administrative action has the right to be given written reasons. That is the extent of the right, and section 33 provides how the right must be given effect to. When we received the Bill, it was very broadly drafted and it was very difficult to see where the results of such an approach would lead us to. Basically, the committee that drafted the Bill had provided a definition of administrative action to mean any act or any decision, or any failure in that regard within any department of Government, as well as in certain structures in the private sphere that exercise public powers. That was the full extent of the width of the definition. Therefore the activities of the organ of state were linked to the existence of the organ itself, and not to the functions that had been fulfilled.

Then the Sarfu judgment was given by the Constitutional Court and it adopted a completely different approach. When it looked at what administrative action was, it linked it very clearly to what the function or the power was that one was exercising or performing, and not to the body that was performing it. Therefore, the SA Law Commission made another submission to the committee to change their original approach to this matter, and quite correctly so.

It is on that basis that we then looked at the Bill quite carefully. What struck me throughout was that it was a Bill that only gave broad guidelines to administrators and courts, but had very many unanswered questions contained within it. It was definitely not a Bill that was going to assist administrators to do their work, because they would have to read too much into it, and they would have to wait far too long before the courts decided what the parameters of these issues were for them to understand it properly.

One of the tasks we then set in the committee was to make sure that even though we would try to keep within the broad parameters of the Law Commission’s proposal, we drafted a Bill that was much more in line with giving the administrators guidelines on how to do their work and therefore getting better service delivery, than with concentrating on the other effect, which was to try to catch them out in court.

I am not saying the Law Commission had that in mind, but that could have been the effect of it. Therefore we looked very carefully at the definition of ``administrative action’’, and we dealt with it not in terms of all acts performed in a department, but in terms of decisions taken in a department, and the effect of those decisions. With regard to decisions, we then took a definition from the Australian experience that works very well and shows in what kind of instances we want it to be clearly known by the administrators that they are now performing an administrative action.

We also included the definition of ``failure’’, which would also mean a refusal to take a decision. I will discuss that a bit later. We then asked by whom this decision was taken, and we created two categories. The first is an organ of state when it fulfils a power or function in terms of the Constitution or when it fulfils certain public powers or functions in terms of legislation. The second category we created is all natural and juristic persons that were not organs of state when they were fulfilling a public power of function in terms of an empowering provision.

Then, very importantly, we also included in the definition of administrative action what the effect would be of such a decision. This is because the way it was originally drafted, every action and every decision in the department, also in terms of its internal workings, would have been hit by the definition of administrative action.

We could not find other countries in the world where that approach had been followed, where even one’s internal procedures and actions in a department, including those of the tea lady, would be affected by the administrative action. The test we created there is that it should adversely affect any right that a person has. When a decision is taken by those organs I have mentioned, and it has an adverse affect on the rights of any person, then clearly it should be an administrative action.

Secondly, we said it must also have a direct external legal effect, which is a concept we found in German law. What that means is that it should operate from the department outwardly affecting the rights of people. With those parameters, we felt that for administrators and for the courts we had set out much more clearly when it was an administrative action. From day one when this Bill comes into operation it will be easier for them to start implementing it. We also added certain exclusions to the above-mentioned definition. Of course, any executive functions, any judicial functions and any legislative functions were excluded. All the decisions of the Judicial Service Commission in terms of the appointments of judges were excluded. All the decisions taken in terms of the Promotion of Access to Information Bill were removed, because there are special procedures for dealing with such decisions in that Bill.

Against that background, we then had a definition providing for the parameters of this Bill. Going from there, what are the consequences once there has been an administrative action by a public servant? One must remember that here we are dealing mainly with the bureaucrats, with civil servants, although that does not exclude some activities in the executive when they are administrative in nature.

Once we set those parameters, what are their effects? The effects are fourfold: in terms of procedural fairness, both in terms of a person and the public; when and what reasons should be given; and, fourthly, if any of those rights are transgressed or impinged upon, then one will initiate a judicial review of such action. Let us first look at procedural fairness. Clause 3 of the Bill now provides five definite steps if one falls within an administrative action that has to be complied with by the administrator. If they do not, then it can be taken on review and their actions will be overturned. That is the usual audi alteram partem procedure.

Secondly, in terms of the rights of the public in general being affected, there we have said that the administrator must decide whether there is going to be a public hearing to give people a chance to air their views, or the usual notice and comment procedure. Here there is no direct consequence, but a decision should be taken whether to do so or not, and that decision will have to be justified, of course, by the administrator. Thirdly, once one has an administrative action, then one is entitled to adequate reasons, within a certain period of time, for that administrative action.

Now, in the first three of those instances, what we have done is that we have said that we know what the parameters of the definition of ``administrative action’’ is, but before administrative action falls under the categories where those three effects kick in, and the administrator has to comply with them, we made the test slightly stricter by saying one’s rights will have to be adversely and materially affected. So it is not automatically everything that falls within the definition of administrative action. It will have to proceed one step further to show that it is material as well.

Then, in respect of the grounds of judicial review, we have all the usual grounds of judicial review in common law that are there, and there should not be much more to be said about that. However, because one of the criteria for just administrative action is reasonableness, we have also now created a new ground of review for reasonableness. The ground is very simple, namely the reasonable person test. We have said that if there is any decision taken which is so unreasonable that no other reasonable person could take that decision, then that would be a ground of review.

Now this is, of course, revolutionary in our country. In our country, we do not have reasonableness as a ground of review. The furthest we have gone is in terms of the Kruse v Johnson test where, only in those instances dealing with delegated legislation, unreasonableness will be a ground of review. However, in no other area of law has it crystallised as a ground of review. So this is a major step forward, in that we have now created reasonableness as a ground of review in all administrative action, not just in the case of delegated legislation, and the test will be that of the reasonable person. Of course, that test will be developed by the courts in the arena of administrative justice. This is an approach that, for example, we also adopted from Australia.

Then, lastly, on judicial review, it was pointed out to us particularly by the churches, the Black Sash, etc, that they do not usually have problems where decisions are being taken by officials. The big problem they have is with decisions not being taken or where there is a refusal to take a decision. We have now created, for the first time in this country, a special ground of review, according to which there is a duty on someone to take a decision within a certain period - they must do so. That is a specific ground of review that can be taken to the courts. This will actually, of course, turn the whole situation around, particularly for the rural poor and the disadvantaged. This is going to be a major step forward, and I think that all of us should take credit for the fact that we have dealt with this matter and have taken this approach based on the Australian example.

Then, also because the parameters of this Bill are so wide, and because no audit was done of how this Bill will impact on other legislation that exists, we had to have a clause that the Law Commission provided for, which allows for exemptions or permitting certain variations of certain administrators, administrative acts or classes of acts. Now, we felt that it was problematic to exempt administrators, so we removed that, because an administrator, for example, can be a whole department. We think that that would not be what the Constitution enjoins us to do. We have said that particular acts or classes of acts should be able to be exempted. Let me give the example of the right of the police to arrest someone.

Clearly, when one is arresting someone, one cannot go and give them a right to be heard in terms of the audi alteram partem rule and ask: ``What do you think of me arresting you today? Do you think it is a good idea? Are there any views that you want to express in this regard?’’ Clearly, those types of actions should be exempted from the parameters of this Bill.

But we did not just want to leave it to the Minister to exempt certain actions. We have changed the legislation so that every exemption and variation has to be sent to Parliament and be approved by it, because that will have the effect of actually amending the legislation when certain classes or categories are excluded. So we are quite happy that this clause also falls within the boundaries of constitutionality.

It is also very important to say that in respect of every exemption itself there can be a challenge relating to its constitutionality and not only in respect of the clause itself. If the Minister and Parliament do exempt a class of actions, an aggrieved person will be able to go to court and challenge that exemption itself as being unconstitutional and not falling within the parameters of the limitations clause. Therefore there are a lot of checks and balances.

Review proceedings will have to be instituted within 80 days. We have also provided for something that did not exist before, and that is that if there are any internal remedies that one must first exhaust in any legislation, that must be complied with. But we have also given the courts the discretion, in some instances where there are exceptional reasons, actually to waive the internal remedies, and one can then go straight to court on review.

We have created, for the first time in this country, a special review jurisdiction which also includes magistrates. Obviously, they do not have it now. We are giving a year’s leeway for the rules to be drafted for this. Until such time that it has been drafted, one will still bring all review proceedings to the High Courts. In a year from now one will also be able to bring review proceedings in the magistrates’ courts. We know that magistrates’ courts are more accessible, but if I have to give a personal view here, I do not know whether this is really going to work.

The problem with magistrates’ courts is that they do not give binding precedents, and one may be incurring extra costs. If one does not have a binding precedent that binds the next person and other courts at the same level, but only the parties involved, the problem is that that will go from one appeal to the next one. One could end up with say 15 precedents in one jurisdiction of a magistrate’s court, depending on which magistrate is hearing the original case. Let us see how it works, and we hope it works well in the end.

We are also suggesting that Judges President should consider circuit courts which specialise mainly in administrative justice issues in order to take the circuit courts to the rural areas where problems are being experienced with access to courts, so that people do not have to take their cases, for example, only to Grahamstown or Cape Town. We shall see how this works in the end as well. I am not dealing with the remedies and so forth in that regard.

With regard to the issue of regulations, we have now made some of the regulations mandatory. In particular, we have made it mandatory that a code of good administrative conduct has to be drafted. There was a discussion and we all agreed in the end that this code should not have a binding legal effect. Our worry is that that would undermine what we are trying to achieve here. We wanted a code that could spell out what the options for administrators were. It should be something which they can learn from and not something which they would be scared of if they do transgress something or do not do something correctly - that it will be a ground of review. So the code that we are now creating will be a guide to try to create better administrations, better decisions and so on.

I just want to thank everyone who has been involved in the adoption of this Bill. I think it is an excellent Bill, and I think we could go very far in trying to achieve our objectives of creating public servants who will have to justify their actions and not simply accept everything they do as correct. [Applause.]

Ms M SMUTS: Madam Speaker, I want to commence with a quotation from the American judge Felix Frankfurter. He said:

The history of liberty has largely been the history of the observance of procedural safeguards.

Now, the ANC should know this better than anyone else in the House. Yet it falls to us, once again, as in the old days, to defend the liberties against the government of the day. Hon members will gather that we will oppose the Bill.

The difference is that this time we have a Constitution to defend. Sadly, it must be said that Frankfurter’s words bear no recognisable relation to the Bill, because the Bill does not, in fact, give effect to the Constitution, and that is why we cannot support it. Instead it gives effect to what an increasingly executive-minded ANC has wanted since 1995/1996.

It is a matter of public record that the ANC did not want an administrative justice right in the final Constitution at all, but instead a right to national legislation, in other words, no real right at all. That is not what the ANC got, thanks to the Black Sash and the DP. But that is in fact what we have before us today, namely a Bill that ignores the right in crucial respects and which therefore does not give effect to it.

I do not lay the blame for this at the committee’s door, although I think it ought to have known better. In fact, the committee has brought in a few really good innovations. I do have a shrewd idea where the mischief must have come from, considering that the published Bill emanating from the Cabinet substituted the interim Constitution’s administrative justice right for the section 33 right. They tinkered even with that and quite shamelessly passed it off for the final right.

No sooner had this subterfuge been exposed by us than the systematic whittling down of the definition of the right to mini-dimensions commenced. One cannot qualify the right to lawful, reasonable and procedurally fair administrative action at source. The right belongs to everyone, not only those adversely affected by decisions as defined in Australia or with direct, external legal effect as in Germany. Ausenwirkung! Nobody knows what that means here. Forty years of jurisprudence makes sense of it there. Incidentally, it does not mean what the hon Johnny de Lange just said it did.

Now here is the simplest way to explain why we believe that their definition does not give effect to the Constitution. The definition is the Open Sesame to all of the administrative rights. That includes lawfulness, which is the most basic and uncontroversial. Administrative action must always be lawful, and not only when there is adverse effect, let alone foreign thresholds. If their argument is that the definition pertains only to what is in the Bill, the answer is no. The Bill must fulfil the right. It purports to be exhaustive of remedies. They have dropped the clause respecting the common and the other law. Where must people find their remedies when they fall victim to administrative injustice?

One only has to think of the havoc wrought upon the lives of persons by Home Affairs, for example, to see the human point. It is authoritatively thought that the Bill threatens to reverse 10 years of progressive development under the Corbett and Mohammed courts. Even the Appeal Court in the bad old days upheld lawfulness in the Hurley case concerning the detention of a priest. Have hon ANC members forgotten the terrible years when legality, the ultra vires doctrine and ouster clauses were in dispute? Have they forgotten State President v United Democratic Front, and Minister of Law and Order v Dempsey, followed by Sisulu v State President and others, in which the courts refused to disturb the exercise of discretion even when the failure by a functionary to apply his mind to relevant data was evident. Have they, of all people, forgotten Omar v Minister of Law and Order?

I have strayed into the area of the grounds for judicial review, and this brings me to the second clear respect in which the Bill fails to give the effect of the Constitution. Section 33 - once and for all, and after many decades of debate - sets reasonableness as the standard for review. It speaks of an utter lack of historical memory or of the most cynical insensibility that the ANC actually proposed gross unreasonableness as one option in this Bill. It induces a sense of shock. [Interjections.] Well, who put it there, Johnny? Why was it there? One cannot have such a thing. It was on the theory that administrative action had to be grossly unreasonable before the courts would set it aside, that our courts used to decline to act on Group Areas Act removals.

Section 33 cuts clean through the years of painful judicial advance and retreat. Yet, the ANC has set a standard that is more restrictive than reasonableness, and therefore fails to give effect to the right. The reasonable person test is, firstly, not administrative law. Secondly, it is not even the same as the Kruse test. Thirdly, it is not even the same as the Wednesbury test. Besides, we have drawn a line below all of those and set a clear standard, reasonableness. The reasonable person test is more restrictive than that. It, therefore, fails to give effect to the Constitution and we cannot support it. [Applause.]

Mr P F SMITH: Madam Speaker, we do not have quite the same difficulties with this Bill as previous speakers. I must say that the stridency of the opposition is a bit stronger today than it seemed in the committee, though I am not quite sure why. [Interjections.] However, be that as it may, the right in question states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and that anyone whose rights have been adversely affected must be given written reasons. Of course, in addition to that the law requires that the Bill promotes an efficient administration, and on top of that we do have the limitations clauses. So we have to view them as a package.

I think, to be honest, that this Bill does succeed, both in giving effect to the right itself and to the need to balance the need for an efficient administration with the rights themselves. The first draft of the Bill which we received from the SA Law Commission was very idealistic, and perhaps the chairperson of the committee was slightly more polite than I would have been about it. Had we implemented something of that kind we would really be sitting with problems today. The point of the matter is that we are not sitting in Switzerland or Canada. We are sitting in a country with our own particular circumstances to take into account. The biggest problem that we have to face is that we have to live with an administration that is under pressure, and it is our duty not to make things worse for the administration.

We have reduced budgets every year, we have staff cuts, there are moratoria on staff recruitment, there is inadequate expenditure and there are vast demands on the administration. Thus it is vital that in giving effect to this right, which is a very important one, we do not make life so difficult for them that it becomes unworkable. Our view would be that the promotion of an efficient system is one thing, but that being overzealous in the application of the right on its own would lead us down the wrong road. For this reason our concern, right from the beginning, has been one of being as practical as possible under the given circumstances. The Bill, we are very pleased to say, is peppered with fundamental issues which address the matter of being a practical, implementable Bill which can work in practice.

Let me give hon members a few examples. Ms Smuts has addressed the first matter as well. Although the Constitution says ``everyone whose rights have been adversely affected’’, etc, we are not using the same phraseology in the Bill. Instead, we are referring to people whose rights have been materially and adversely affected. This is not a problem. One must not view this as if it is some dramatic withdrawal from the principles of the Constitution. The point is that the test is high, precisely because if the test was going to be too low it was going to be unworkable. Really, by making the test so low that the administrators should spend their entire lives having to write letters to everybody, because they feel that their rights have been adversely affected without being materially affected, would be highly problematic. That is just one example.

The issue of the code of good administrative conduct is also contained in the Bill. We had a big debate as to whether this code should be law or something a lot less than that. Our view, which is also the view captured in the Bill, is that it would not help to make the code have the effect of law, both because in reality it simply would not work and because it would result in a lot more litigation. It is better to have an approach which fosters an attitude towards improving administration and this is what the intent is here.

Let me give hon members another example pertaining to the definition of ``administrative action’’. We could define this notion as widely or as narrowly as we like. However, the definition we have used here, and which the chairperson made reference to in the German example, refers to administrative action which has a direct, external legal effect. There is no point, for example, in giving effect to this right when one was given leave, internally, at Christmas instead of at Easter. Really, that is not the issue. It is administrative action, but it has no real bearing on giving expression to this Bill of Rights in a way that is going to advance the interests of the people of this country. So there will be internal ways of dealing with that, and one does not need the Bill of Rights to do so. Far more important is that we create a system that is not too onerous, and connecting the administrative action to direct external effect serves as a very valuable purpose of dealing with problems within the administration when it has to deal with the public at large.

Thus far I have mentioned two examples. However, the major example I want to make reference to, and which I think is perhaps one of the most important examples of how we tried to be as practical as possible, is the provision to depart from the mandatory requirements and procedures set out in the Bill. The departure is by way of the Minister permitting administrators to vary the requirements, or to be exempt from them, in specified circumstances. In fact, the language of the limitations clauses is brought back into the Bill, ie it has to be reasonable and justifiable to exempt administrative action or a class of actions from this. This is necessary because we as a committee simply have not had an opportunity to conduct a thorough audit of the kinds of administrative actions that should in fact be exempt, and it has been given to the Minister.

There is no way that the section 33 right, as it stands now, could in fact be applied uniformly throughout the country. That simply is not reasonable. One has to provide for some form of relaxation of the rule, whether it be by way of permission to vary or by way of a direct exemption from the Bill per se. We are happy that this provision is here. We are happy that it is reasonable and justifiable.

We are not 100% happy that it is done by the Minister, but in the circumstances, there is pretty little else we could have done. It is an improvement on the earlier version in that the approval of Parliament is added as a requirement. Without that it would have been a lot more problematic, but even with the approval of Parliament we do not have certainty that this in fact fully complies with the requirements of the Constitution because, at face value, it does not appear to be fully in conformity with what is required because what is required is law, and a resolution of Parliament may have the effect of changing the law, but it is not law in itself. So we hope that that would pass muster constitutionally if that was required.

The approach that we would like to adopt is that this is the start of a process. One has to take into account the circumstances in which one finds oneself when one drafts legislation and the peculiarities of the country as such. We have to make a start, and the start we have made, we think, is an adequate one. It does not preclude a review; in fact, we would urge that, down the road, there be a review of the Act and how it is implemented and any problems occasioned by its implementation. At that stage, should circumstances justify it, we would then amend the Act to bring it into line perhaps with changed circumstances. [Applause.] Ms F I CHOHAN-KOTA: Madam Speaker, Dene Smuts is right. Historically, in our country, administrative law has been used, amongst others by liberation movements, to make inroads into the heavy-handed and unaccountable apartheid structures. In the hands of skilled lawyers, trade unions, student organisations, churches and other NGOs won battle after battle within this ever-evolving system of the law. Administrative law, up to now, has maintained a dynamism precisely because it has never been embodied in any one piece of legislation. Terms such as legitimate expectations'', audi alteram partem’’, reasonableness'',fairness’’ in the hands of our courts and our country’s leading legal minds were malleable tools, malleable enough to ensure just outcomes even in the darkest days of apartheid.

Evolving as it has within our legal system, this body of law has seen some of the most ingenuous legal debates, resulting in an ever more complex and sophisticated system of law. Certainly, this is a huge achievement for the legal profession.

But - and this is something that the DP completely misses - administrative law has had its drawbacks. Challenging, as it did, administrators engaged in service delivery, it failed in being a learning tool - a guide to the very administrators it was meant to regulate. Part of the reason is that not even many lawyers in our country understood it. [Interjections.] The ordinary public administrator was left, needless to say, without much understanding of it, and as a consequence, it was a law that was left to the courts to implement.

Our aim with this legislation, however, is to bring that implementation back to where it belongs, at the point of the decision making. [Interjections.] This is what the challenge was and this is something I believe we have achieved. Part of the challenge we faced in the enactment of this body of law was to simplify and codify it. We also had to provide guidance to decision-makers to ensure that the law was not simply ignored because it was unclear.

The third challenge we faced was to ensure that the law was sufficiently catalytic to enable progressive improvement, not only of the law itself, but of administrative justice as it was practised by officials. In the legislation, administrative action is defined very much along the guidelines provided by the Constitutional Court in the Sarfu case. The courts stressed that it was the function and not the functionary that defines whether an act is an administrative act or not. We have therefore defined this once complex and nebulous term ``administrative action’’ as meaning a public power or function performed by an organ of state or any person pursuant to any constitutional or legislative provision. Simple!

This ``administrative act’’, we say, must have a direct external legal effect, as captured by the hon Peter Smith. Excluded from the definition are all executive and legislative functions of all three spheres. Also excluded are judicial functions, including prosecutorial decisions. The guides to administrators are contained in clauses 3, 4 and 5, all of which, I am quite happy to say, are entirely legal and entirely constitutional.

Clause 3, quite simply, enjoins the administrator in instances in which someone’s rights are materially and adversely affected to do five things: to notify, to give reasonable opportunity to make representations, to ensure clarity in regard to the proposed action, to give notice of any right to review or appeal and, lastly, to give notice of the right to request reasons. Clause 4 is the guide in cases in which administrative action materially and adversely affects the rights of the public or classes of persons. Here, steps to be taken include the conducting of a public inquiry and the notice and comment procedures. Certainly, this is a novelty more in tune with our new democracy.

Clause 5 provides for the submission of reasons to anyone whose rights have been materially and adversely affected. Here, again, the administrator is guided through the process in a step-by-step fashion. The administrator is given 90 days to comply, failing which he or she is told what the consequences are in any subsequent judicial review. In addition, he or she is given the opportunity under specified circumstances to depart from furnishing adequate reasons, but such departure, we state, must only happen where it is reasonable and justifiable. We then go on to provide a list of six relevant factors that need to be taken into account in determining whether a departure is indeed reasonable and justifiable.

Therefore, all in all, I am saying that this is a very user-friendly guide and it simplifies a very complex area of the law. Of course, while all of this guidance is really geared up and directed at administrators, it actually results in a positive spin-off to the individual whose rights are affected by those decisions. The individual is assured upfront that he or she will be dealt with legally and fairly. Within this clause is also a provision for the Minister to publish by notice actions or groups or classes of actions in respect of which reasons will automatically be given without the individual having to request those reasons. This is, of course, to promote efficiency in administration but, again, it has obvious advantages for the individual.

Clause 6 is the part of this Bill that deals with the grounds for judicial review. The challenge here was to capture the traditional grounds that have evolved over the years in our courts, to codify them in a manner that would enable the ordinary person to determine whether or not an avenue of challenge was open to him or her.

Apart from just codifying the common law, hon members have heard the hon Johnny de Lange say that we have been innovative and we have added a nontraditional ground of review. This is where there is a failure or omission to act on the part of the administrator. In submissions by organisations such as the Black Sash and others, we were told of the absurd lacuna that exists in our law when bad administrators do absolutely nothing. They do not take a decision, and when no decision is taken nothing can be challenged and matters are simply ignored. The legal remedy in place for this is the ground of review that we have now added.

Finally, we have provided in this Bill that the Minister is to pass regulations in by-and-large three areas. Firstly, the Minister has the power to exempt specific actions or classes of actions from the application of the procedural aspects of the Bill. Therefore, where administrators are enjoined to give notices, hearings and reasons for their decisions, the Minister can, by notice, exempt them from these processes, again, only where it is reasonable and justifiable.

The chairperson of the portfolio committee alluded to a classic example that in the case of an arrest, when effected by a police officer, it would be quite laughable to expect that the perpetrator should be given a notice of the impending arrest, then allowed to state his case, and then be given reasons for the arrest even before ever being brought to trial. In fact, affording the perpetrator the right to be heard in the classic sense would almost certainly violate his right to be silent. Therefore, in such instances, the Minister may exempt arrests, for example, as a class of action. However, such exemption must, before publication, appear in the Gazette and be approved by Parliament.

The second area in which regulations are expected is that of administrative procedure. A code of good administrative conduct is envisaged to further guide administrators to promote the aims and objectives of this Bill and the constitutional rights. The last area in which regulations are expected is in the establishment of an advisory council which will, again, have as its function the monitoring and promotion of administrative justice.

Finally, let me say that this legislation is rather boring, particularly to nonlawyers. However, its effects are phenomenal. One thing that I must say

• perhaps other members of the portfolio committee will agree with me - is that Mr De Lange should know that when I am 80 years old, and I look at this Bill, with all its numerous amendments, no doubt the one vision that will crop up in my mind will be that of the chairperson of the portfolio committee, a young Johnny de Lange, in the Master’s Office where he was a public servant. Here, he explained to us, he spent two years of his life ticking boxes and sending these notices to people affected, and only two years later did he realise that he was actually acting in terms of the Administration of Estates Act. So, when I am 80 years old, I am going to have this vision of the young Johnny de Lange absolutely feverishly ticking boxes in the Master’s Office. I am sure that vision is going to stay with a lot of people in the portfolio committee. [Applause.]

Adv A H GAUM: Madam Speaker, it is indeed a privilege to participate in this historic debate. The Promotion of Administrative Justice Bill will not only bring about far-reaching and much-needed development in South African administrative law, but will also contribute to the building of an effective, transparent and accountable democracy.

The exercise of the rights contained in our Bill of Rights is directly affected by the right to just administrative action. Often a violation of the right to lawful, procedurally fair and reasonable administrative action in turn leads to a violation of other rights.

As Wiechers points out, administrative law, perhaps more than any other branch of law, gives life and meaning to everyday government. By regulating not only the day to day affairs of the state, but also by defining the essential relationship between the state and its citizens, as well as other persons who reside within its territory, it makes government concrete and real. At the same time, it puts into operation and gives effect to the democratic value system which underpins the entire constitutional order.

Administrative law has to give effect to the goals and ideals of modern democracy - openness, accountability, equality and participation. In this regard administrative justice is the key. Administrative justice does not simply require compliance with a given set of rules and procedures, but demands a mindset which, at all times, is reasonable and fair. One can only hope that the Bill will also contribute in this regard.

It is, however, regretted that the proposal of the SA Law Commission, that the Bill should expressly provide that every administrator must give effect to the right of everyone to administrative action that is lawful, reasonable and procedurally fair, was rejected by the majority party. If such a duty was imposed on administrators, it could have helped to develop a reasonable and fair mindset. Section 33 of the Constitution inter alia provides that:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

(3) National legislation must be enacted to give effect to these rights …

There can be little doubt that failure to comply with section 33(3) would render this Bill unconstitutional, as the Bill expressly provides that it is legislation contemplated in the Constitution.

The Bill defines administrative action as a decision taken, or a failure to take a decision, which adversely affects the rights of a person. This incorporates the right to administrative justice in the interim Constitution and fails to appreciate the fact that the right in section 33(1) of the 1996 Constitution is, in certain respects, wider than that contained in the interim Constitution. The rights in the interim Constitution are only applicable to persons whose rights, legitimate expectations or interests are adversely affected by administrative action, while everyone has the right set out in the 1996 Constitution.

The definition of administrative action is, therefore, likely to be unconstitutional as it fails to give effect to the broader rights contained in section 33(1) of the Constitution. The legislation contemplated in section 33(3) may not permit an overriding threshold limitation on the right to lawful, reasonable and procedurally fair administrative action.

This state of affairs is exacerbated dramatically by clause 3(1) of the Bill, which provides that:

Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. This introduces another test that a litigant should pass before being able to challenge administrative decisions, and permits an additional overriding threshold limitation on the right to lawful, reasonable and procedurally fair administrative action, which effectively amounts to an amendment of the content of the right, as contained in the Bill of Rights.

The same additional threshold limitation has been placed upon everyone’s right to be given reasons if his or her rights have been adversely affected, which is contained in section 33(2) of the Constitution. It would surprise me if the Constitutional Court would be willing to allow these kinds of amendments to the substance of human rights, which amount not to a limitation of rights but to a changing of its meaning.

Nadel proposed that the Bill should spell out the nature of reasons required, by requiring that the reasons provided should incorporate the essential facts and the legal basis for the administrative action. The rationale for this proposal was that the right to written reasons for administrative action is partly based on the need to establish whether the action is just or not. Thus the reasons provided have to be detailed enough to enable one to establish whether or not the action taken was lawful, reasonable and procedurally fair.

Unfortunately, this proposal was not accepted by the ANC. The incorporation of a basic minimum of information in the Bill that must be furnished could have assisted both administrators, in the formulation of reasons, and those who have to decide whether or not to challenge administrative action.

Another concern is the manner in which the unreasonableness ground of review has been drafted. It represents a departure from the test of unreasonableness, as provided for by the Constitution, and introduces a stricter test which nearly, if not indeed, amounts to a standard of gross unreasonableness. This test, also known as the Wednesbury test of unreasonableness, was inherited by us from English law. It has, for quite some time now, been subjected to harsh criticism both in our law and in English law. It also requires an extreme level of unreasonableness in common law to establish this ground.

The extreme degree of unreasonableness required meant in practice that the reasonableness of the action was not, in fact, considered, but instead, whether or not one of the other grounds of review was in evidence to such a degree that it led to an influence of gross unreasonableness. The end result was often an absurd reasoning process characterised by uncertainty and confusion and unattainable standards to be met by applicants.

The constitutional provision, which merely refers to reasonable administrative action, consciously moved away from the notion of gross unreasonableness, or something close to it, by omitting to carry it forward. The ignoring of this development in section 33 is most probably unconstitutional and a significant step backwards in the development of our administrative law.

Another area of concern is the definition of ``court’’ in the Bill. While we support the notion that magistrates’ courts will now also have jurisdiction to adjudicate administrative disputes, as we believe it will greatly improve access, we are concerned that the Minister of Justice is enabled by the Bill to designate specific magistrates to preside over such cases. This political interference with the judiciary may not only threaten its impartiality, but may also be in contravention of section 165(2) and (3) of the Constitution, which expressly states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice, and that no person or organ of state may interfere with the functioning of the courts.

Clauses 3, 4 and 5, dealing with procedurally fair administrative action affecting any person, administrative action affecting the public, and reasons for administrative action, contain identical provisions which allow an administrator to deviate from the provisions contained in such clauses if it is reasonable and justifiable in the circumstances. It is regretted that the ANC shot down the higher test suggested by the SA Law Commission that such deviation should only be permitted in exceptional circumstances.

Clause 2, inter alia, allows the Minister to exempt an administrator, among others, from the application of any of the provisions of clause 3, 4 or 5. According to an earlier draft of the Bill, such exemption could only be given under exceptional circumstances, and it was required that such departure should be compatible with the right to procedurally fair administrative action and the right to be given written reasons. Wording to this effect was unfortunately voted down on Friday night.

Despite our criticism, our overwhelming impression is that this Bill presents a valuable contribution to our law. We shall therefore support it. It will doubtlessly contribute towards building an effective and efficient public administration and give meaning to the constitutional right to just administrative action. In so doing, it will empower people, also the poorest of the poor, to exercise other human and constitutional rights. [Applause.]

Mr M E MABETA: Madam Speaker, one of the fundamental measures by which to gauge the democratic character of a society’s constitutional institutions is the provisions it makes or the lack of provisions for ensuring that citizens are treated justly and fairly by government and other persons and institutions acting in an administrative capacity. Such actions take place in a myriad of ways every day, and all of us are subject to them at some time or another. They therefore have a determining influence on the quality of our daily lives. We have the unhappy experience of the past decades of how seriously adverse to all aspects of human existence these effects can be if proper enforceable rules and guidelines are lacking. It is therefore a pleasure and a matter of pride that we have before us the Promotion of Administrative Justice Bill. It gives effect to the details of section 33 of the Constitution which requires us to enact in legislation the right of everyone to administrative action that is lawful or reasonable and procedurally fair, and to receive written reasons for administrative action that adversely affects a person’s rights or legitimate expectation. In the view of the UDM the Bill on the whole adequately does this and deserves the support of the House. We support this Bill. [Applause.]

An HON MEMBER: Hear! Hear!

Mr M E MABETA: However, I must raise numerous areas of concern, some of which have been openly discussed in meetings of the committee. Clause 2 gives the Minister the power to exempt an administrative action or a group or class of administrative actions from all the broad conditions and safeguards of the proposed Bill, as set out in clauses 3, 4 and 5 of the Bill, subject only to his own judgment of whether such action would be reasonable and justifiable under the circumstances.

Furthermore, any administrator is, in terms of 3(4)(a), given the discretion, again on the strength of his or her judgment of what is reasonable and justifiable under the given circumstances, to depart from what are defined in clause 3(2)(b) as the essential elements of fair administrative actions.

It is accepted that circumstances may arise which might not make it possible to apply all the well-intentioned safeguards and measures to ensure the procedurally fair administrative action contemplated in the Bill. Merely vexatious actions by people alleging that their rights have been adversely affected by administrative action come to mind as an example. Situations could arise where such actions might result in confounding exactly what the Bill aims to ensure, namely good and fair administration.

It is our view that in the absence of provisions for internal appeals, apart from requesting reasons for adverse administrative decisions, the only recourse for someone who feels wronged is the judicial review procedures provided for in clauses 6 and 8. Once again, essentially the less fortunate part of our community will be faced with extended and expensive procedures in an effort to obtain judicial redress. We would therefore urge the Minister to accede to the request in paragraph 3 of the resolution proposed by the Portfolio Committee on Justice and Constitutional Development accompanying the Bill and, as a matter of urgency, to redress the anomaly set out in that paragraph.

We would also urge the Minister, should suitable procedures not be found in other legislation, to provide for the quickest, easiest and least expensive review procedures in the regulations he is to promulgate in terms of clause 10 of the Bill, and to ensure that the code of good administrative conduct is formulated and the advisory council is established as soon as possible. With these concerns and observations, the UDM supports and will vote for this Bill and the accompanying resolution.

The DEPUTY SPEAKER: Order! The hon Magwanishe will give his maiden speech. [Applause.]

Mr G B MAGWANISHE: Madam Speaker, hon members, it is an honour and privilege for me to stand in this Parliament of the people in memory of Comrade Alfred Nzo and many South Africans who laid down their lives for this freedom. On behalf of the majority party I stand before members to support this Bill.

When millions of South Africans voted in 1994 and in 1999, they did not only vote for jobs, houses, a good health system and other material things; they also voted to be treated as human beings. They voted for their dignity, which was taken away from them by the apartheid regime. With their vote in 1994 and in 1999 they said, and are still saying: Please, ANC, give us back our dignity. We want to go to any Government office and feel welcome.'' People of this country are saying:We want officials correctly to apply their minds when they deal with our applications for pensions and other things.’’

South Africans want an efficient and accountable public administration, an administration free from delays and corruption. Is this too much to ask? No, I do not think so. As a black South African I know how painful it is to be dismissed by an official without being given any reasons, and I know how painful it is to a pensioner of about 75 years of age to wait months and years not knowing when one will get one’s pension because nobody cares to respond to one’s application.

As this Government, we shall not fail the people of this country. We shall not betray their trust. As the ANC, we are saying Batho Pele'', or people first’’. We say all citizens should have equal access to services to which they are entitled. Citizens should be treated with courtesy and consideration. Citizens should be given full and accurate information about the public services they are entitled to receive.

As the ANC we say that never again will the people of this country suffer the humiliation that was suffered by the people of Sophiatown, District Six and other places - the humiliation of being forceably removed without any just cause. Provision in this Bill makes it obligatory for the administrator to act in a procedurally fair manner.

Clause 3(1)(a) of this Bill compels the administrator to give adequate notice of the nature and purpose of the action. Clause 5 also makes it possible for any person adversely affected by the administrative action, who has not been given reasons for the action, to request the administrator concerned to furnish him or her with written reasons for the action.

Also, clause 6(1) of the Bill further gives the affected person the right to institute proceedings in a court of law or a tribunal for judicial review on any of the grounds listed on page eight of the Bill. This Bill also allows magistrates’ courts to be used in the institution of regional proceedings. We have made this possible because magistrates’ courts are the most accessible courts in South Africa, both in terms of cost and proximity.

This Bill is the continuation of the foundation that we have laid as Government - the foundation to change the social basis and orientation of the administration that was geared towards the needs of the minority, to the administration that serves all the people of South Africa. For us to be a nation at work for a better life for all, we need a Public Service that is efficient and which is governed by democratic norms and values. Those democratic norms and values are here in this Bill.

This Bill, once passed, will help in the fight against corruption. Our success, as this Government, in meeting the basic needs of our people, depends on our success in fighting corruption. It is only through efficient and accountable public administration that we can be able to do that. This Bill is a weapon to achieve that.

Through efficient public administration, this Government is going to save a lot of money. Those savings will go to service delivery for the the poor. The success of this Bill is going to bring shelter to millions of our people. It is going to bring food to the poor. It is going to create a better life for all.

For us as African countries to realise our full potential, we need to implement policies that are people-centred. It is only those policies that can save Africa from corruption. Africa must realise her full potential. This is Africa’s century. We dare not fail. [Applause.]

Mr S N SWART: Madam Speaker, hon Minister, members, the Promotion of Administrative Justice Bill gives effect to the rights contained in section 33 of the Constitution, namely the right to administrative action that is lawful, reasonable and procedurally fair and the right to written reasons. The principle function of this section is to regulate conduct of the public administration, and in particular to ensure that where action taken by the administration affects or threatens individuals, procedures followed comply with the constitutional standards of administrative justice. The ACDP is mindful that a balance must be achieved between good, effective government on the one hand and the need to ensure that there is administrative justice on the other.

The words of constitutional court Judge O’Regan in the Premier of Mpumalanga matter capture this delicate balancing act:

In determining what constitutes procedural fairness in a given case, a court should be slow to impose obligations upon Government which will inhibit its ability to make and implement policy effectively, a principle well recognised in our common law and that of other countries. As a young democracy facing immense challenges of transformation, we cannot deny the importance of the need to ensure the ability of the executive to act efficiently and promptly. On the other hand, to permit the implementation of retroactive decisions without, for example, affording parties an effective opportunity to make representations would thwart another important principle, that of procedural fairness.

One must also bear in mind that the right to administrative justice does not only apply to the public administration, but also to private bodies which exercise public powers or perform public functions in terms of any legislation.

The ACDP supports the majority of the provisions of this Bill, and more particularly the new ground of review, relating to a failure to take a decision. The Legal Resources Centre in its submission highlighted that most of the difficulties encountered by organs of civil society related to the failure or refusal by administrators to take decisions.

The ACDP does, however, have certain concerns regarding the Bill, many of which have already been canvassed by opposition parties. We, too, believe that the words adversely affected'' should possibly not have been included in the definition of administrative action as this, in our view, limits the constitutional right to just administrative action, at source, in the Bill. Furthermore, clauses 3, 4 and 5, dealing with procedurally fair administrative action, administrative action affecting the public and reasons for administrative action respectively, contain provisions which allow the administrator to deviate from the provisions where it is reasonable and justifiable. We would have preferred adding the testin exceptional circumstances’’ to place a high threshold before such departures would be permissible.

Limiting a departure from the mandatory provisions of the relevant clauses to exceptional circumstances would also have been in accordance with the original proposals of the SA Law Commission. However, we concede that such departures must be approved by Parliament. Furthermore, we welcome the provision relating to reasons being automatically furnished, that is, without the need to request the same, to a person whose rights have been adversely affected by certain administrative actions, which have been specified by the Minister in the Gazette.

The provisions relating to accessibility of the courts are particularly welcomed as administrative justice was traditionally reserved for those who could afford to litigate in the High Courts. The extension of the definition of ``courts’’ to include magistrates’ courts is a development which we believe will result in great accessibility for persons in rural areas.

In conclusion, the ACDP trusts that this Bill will see the dawning of a new era in our nation, when citizens will be able exercise their rights to administrative justice in a practical and accessible manner, without good and effective government being compromised. We consequently support the Bill. I would like to take the opportunity to thank our chairman, Adv De Lange, for the gracious manner in which he has finalised both these Bills under severe time constraints. [Applause.]

Mr J S MGIDI: Madam Speaker, comrades and colleagues, the ANC Government continues unwaveringly and with even more vigour and commitment to pursue the noble objective of a better life for all our people. Its commitment to service for all in a climate of freedom, equality, human dignity and administrative justice is clearly reflected in its respect for and the upholding of the fundamental rights contained in Chapter 2 of the Constitution.

Inspired by the enthusiasm of the people, which is undoubtedly generated by their conviction that this Government is committed to its progressive and truly people-centred policies, as exemplified by this very Bill, and encouraged by the overwhelming mandates that the ANC received in the recent democratic elections, this ANC Government continues to break new ground and bring hope to our people.

The Promotion of Administrative Justice Bill before the House today is yet another milestone in the democratic history of our country. For the very first time our people, especially the disadvantaged communities, are being empowered through legislation to exercise their rightful place, including their right to receive services lawfully, reasonably and in a procedurally fair manner.

For the first time our people will, by law, be treated like the deserving owners of administrative services, not as beggars. A new culture of service to the people, as against the old apartheid government’s power over the people, a culture of accountability and transparency, a culture of democracy and a culture of better and efficient service delivery continues to unfold.

When an official exercising a power, or a public power, is by law expected to give reasons for an administrative action which adversely affects the rights of a member of the public, complacency, corruption and neglect of official responsibility are bound to give way in favour of efficiency, effectiveness and accountability; indeed, a better service to our people. When citizens have a right in terms of the law to challenge an unlawful, unreasonable and procedurally unfair administrative action, either through the courts or through independent and impartial tribunals, an improved service delivery is inevitable.

This is what this Bill in front of us today is primarily about. Keeping in mind the exemptions provided for in this Bill, this Bill provides in clause 3 that in order to give effect to the right to procedurally fair administrative action, an administrator must give a person concerned adequate notice of the nature and purpose of the proposed administrative action; a reasonable opportunity to make representations - no longer will arbitrary decisions be taken; a clear statement of the administrative action; adequate notice of any right of review or internal appeal, where applicable; and adequate notice of any right to request reasons in terms of clause 5, and at times even to hold public inquiries.

The public also has a right to be assisted by lawyers, in terms of this law, in serious and complex cases. Surely this Bill goes a long way towards empowering our people in absolute practical terms. When one genuinely wants to see delivery, one cannot fail to see this striking example we are presenting to this House today.

Our country is indeed in the momentous process of change. Yes, when our people cry out for fundamental change, laying a legal foundation as we are doing today through this Bill and the previous one, can only bring hope and enthusiasm to our people. This represents a continuing struggle that we are engaged in against the abominable apartheid legacy, a legacy whose inherent and central characteristics included corruption, and racial and unequal treatment of our people. Emerging from a past of that nature, the past of inequality, the past of unequal distribution of public resources, the past of artificial and racial determination of who deserves quality of service and who does not, this Bill can only empower people to reclaim their humanity, their human dignity and equality.

In the true spirit of creating a democratic and open society in which Government is based on the will of the people and on equality, the ANC has a vision, a capacity, a commitment and a dedication to take this country forward. It can only be thanks to the ANC Government - and thanks go to the opposition parties that supported this Bill, including the IFP, which plays an important reconstructive partnership role, so Peter Smith should be here

• that the people of Babanango, the people of Ga Masemola, the people of eMaphotla, the people of Ga Makau, the people of Botshabelo, eGuguletu, Mshenguville, eQunu and other areas will be given an opportunity to take their rightful place in this country and fully exercise their fundamental rights, including their right to be offered a lawful, fair, reasonable and dignified administrative service.

Utjho ukuthini-ke lo Mthetho-mlingwa? Uthi kini bantu beMbuzini, bakwa Mabhadu nakwezinye iindawo, isikhathi sokwenzela izinto ngerhorhomejeni siphelile. Beregisani umthetho lo ukuthuthukisa iimpilo zenu, nale ukungatjhejwa ngendlela efaneleko emaofisini. Ningavumi ukuthlagiswa; ukurareka nawuthlagiswako akuphele. Abokgari, abomrharibo, abomma nabogogo, abobaba nabobamkhulu, abomzala, abomntamama kunye nabesana namatlawana abatjhejwe ngendlela ekarisako nenomoya obutswetswetswe. (Translation of Ndebele paragraph follows.)

[What does this legislation say? It says to the people of Mbuzini, Mabhadu and other places: The time for doing things secretly has come to an end. They should use this legislation to make their lives better and refuse to accept deficient service in public office. They should not allow suffering; apathy must come to an end. Their aunts, sisters-in-law, mothers and grandmothers, fathers and grandfathers, cousins, nephews, nieces, boys and girls should be attended to with pleasure and harmony.]

This is people-oriented service in its practical terms. It is transparency, it is transformation of Government in society in the most visible and practical way, a better service for all. Those who vote against this Bill should be ashamed of themselves, because whilst this is not a complete Bill without faults, it is taking this country forward. We want to urge them, even at this last hour, to try to change their minds and be relevant with their current policies. [Applause.]

Mr P H K DITSHETELO: Madam Speaker, it is no exaggeration to say that public administration in South Africa is in a state of chaos. For the elderly woman waiting in a long queue for her pension, for the disabled man whose disability grant is suddenly withheld, for the schoolchild whose textbooks have not arrived, the bureaucracy is a vast, impersonal and intimidating machine. It is a machine that often fails, that often makes arbitrary decisions which make little sense to the ordinary citizen, yet, at the same time, it has the power to crush the rights of the citizen. A learner’s right to education, and the dignity of the elderly and the disabled are just three examples of what is at stake when the system fails.

The best way to improve the running of the public administration, to ensure delivery of all that the Government has promised to the people, is not to centralise and close off Government from scrutiny and criticism. The best way to improve implementation by the Public Service is to throw it open and point a public searchlight into the darkest corners of inefficiency, indifference and incapacity. To do this we must use the avenues of openness and accountability provided for by the Constitution. The section 33 right to just administrative action is one such avenue. Unfortunately, the Promotion of Administrative Justice Bill has qualified rather than extended the right to just administrative action as contained in the Constitution. Indeed, the nation would have been better off with the unqualified right to just administrative action contained in the Constitution, rather than with the narrower right contained in this Bill. In this sense the Promotion of Administrative Justice Bill is an unhappy companion to the other two Bills before Parliament this week. Like the Promotion of Access to Information Bill, it introduces a qualification which does not follow the spirit of the Constitution. Secondly, just like the Promotion of Equality and Prevention of Unfair Discrimination Bill, the Promotion of Administrative Justice Bill infringes on the independence of the judiciary. It gives the Minister for Justice and Constitutional Development the power to designate which magistrate should preside over cases of administrative action.

The UCDP has a problem with such executive interference in the judiciary, as it stands in the Promotion of Equality and Prevention of Unfair Discrimination Bill and also in the Promotion of Administrative Justice Bill. However, this is a good piece of legislation and deserves the support of the UCDP.

Dr S E PHEKO: Madam Speaker, the Promotion of Administrative Justice Bill is in accord with section 33(1) and (2) of the Constitution of our country, which provides, among other things, that everyone has the right to administrative action that is lawful, reasonable and procedurally fair; and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

The Bill is fairly straightforward and the PAC will vote for it. It must, however, be noted that it is not enough to make good laws. It is the implementation of good laws which is crucial and decisive and that benefits the people for whom they are intended. For the justice system to achieve what this Bill purports to offer, there must be an independent and effective machinery that ensures that justice is affordable. Millions of citizens in this country, especially Africans, cannot afford legal representation. Today many sit in prisons unjustly and may not be guilty, but they cannot afford the fees of junior or senior counsel. The legal aid in this country seems to have literally collapsed. It would have been prudent to reorganise and strengthen it, so that it could operate more effectively and without running out of funds in assisting those who cannot afford legal fees.

There are a number of issues that must be looked into in order to effect a promotion of administrative justice values. There is a need for the justice system to function efficiently. It must have well-trained and well-paid staff in order to fight corruption. It is known that hundreds of dockets have disappeared, thereby defeating the ends of justice. The escaping of prisoners from jail is still frequent. One of the causes may be the low salaries paid to justice system officers and the weak machinery which is incapable of fighting corruption in the justice system.

There is also the endless postponement of trials in court cases, causing much inconvenience and unfairness to the accused. Giving prosecutors charge sheets at short notice before appearance must be corrected. This Bill will fail in its objective if it does not deal with the prevailing conditions in the justice system. There have been too many cases where the accused were denied bail for as long as five years. This must be urgently corrected. Not even the apartheid justice system kept the accused that long without granting them bail or charging them. Justice delayed is justice denied.

In implementing this Bill, the state must constantly and consciously see to it that the independence of the judiciary is maintained and that decisions are not implemented based on political bias. Already there is a conception among many citizens that membership of the ruling party is a consideration for impartial service by some Government officials. There is also the question of the proliferation of courts in this country. Will they enhance the Promotion of Administrative Justice Bill or hinder it? All these courts need well-trained personnel and more money to run them. Will the tendency of this Parliament to create more courts promote justice for this country? Is there not too much duplication in the justice system, which will defeat the purposes of this Bill? These are matters which those who will be coming up with the regulation for this Bill, must consider seriously.

Adv H C SCHMIDT: Madam Speaker, the DP does not question the justification for introducing the Bill, given the constitutional imperatives in respect of the objectives of the Promotion of Administrative Justice Bill. It can, however, be asked whether the Bill places a burden on the administrator, thereby frustrating the implementation of policy considerations or otherwise of organs of state on the one hand and natural and juristic persons on the other. As indicated in a submission received from the Department Of Trade and Industry, and I quote:

… that implemented in its current form ….

Which apparently will happen -

… the Bill could paradoxically defeat its own good intentions.

And -

… the Bill ostensibly seeks to achieve more than its objectives within the strict operation of the Bill itself.

Despite the heightened onus on the administrator by setting out detailed requirements for actions to be fair and procedural, the Bill attempts to overregulate the grounds on which administrative action must be procedurally fair administrative action, in clause 4, and in respect of administrative action affecting the public in clause 5.

The Bill rejects the ill-inherited and convoluted English law test of gross unreasonableness, which unfortunately was at one time found in our common law. Introducing a foreign test in the definition of ``administrative action’’ in that an administrative action must have a direct external legal effect which adversely affects the rights of any person before being reviewable, is undesirable, indicating a lack of knowledge concerning the development that our administrative law should take. Section 33 of the Constitution clearly states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Thus, is a clear right envisaged by the Constitution.

The reformulation of this test to one where, in clause 3 of the Bill, it states that administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair'', and, in clause 4, thatadministrative action which materially and adversely affects the rights of the public’’ opts for an overtly unconstitutional provision and amounts to taking a step backwards in the development of administrative law.

The wide powers granted to the Minister responsible for justice, in that either generally or in respect of a specified class of administrative actions, the Minister may, by notice in the Gazette, designate a magistrate in writing after consultation with the Magistrates Commission, denote that by implication, within the discretion of the Minister, only certain officials employed as magistrates are fit and proper persons for the adjudication of certain issues, and could lead to the start of the negation of the independence of the judiciary.

The inclusion of a special ground of review - if members thought everything I had to say was negative - whereby in terms of this Bill a court has a power to judicial review of an administrative action if the action consists of a failure to take a decision, is welcomed.

However, the exclusion of ``interests’’ from the operation of administrative action in clauses 3 and 4 of the Bill, excludes, from the operation of the Bill, those individuals whose interests in having fair administrative action exercised are excluded, thereby resulting in consequences harmful to those who need it most. It is with the above reasons in mind that the DP cannot support this Bill.

I thank Adv De Lange for listening to me. Lastly, a vote of thanks goes to the hon member Adv De Lange for chairing the ad hoc committee in the way he did. [Applause.]

Mr G SOLOMON: Madam Speaker, the pros and cons of the legal subtleties of this Bill have been debated here at length, and might be debated still as time goes on during the debate.

I would like to take a different angle on this Bill here and speak about the unregulated capacity of public servants to make decisions which disturb or disrupt and put hardships on the orderly lives of people. During a state visit to the Peoples’ Republic of China, addressing a state banquet on 18 June 1968, the late Mwalimu Julius Nyerere made the following remarks:

I wonder if there is any country in the world where it can be truly said that no citizen is ever humiliated by the agents of his or her government, and no injustice is ever perpetuated against the people. In fact, I believe that all of us, everywhere, have to wage a constant struggle to support the supremacy of the people. We have to be constantly vigilant to ensure that the people are not used by the individuals to whom they have entrusted power, and are neither stifled by bureaucracy and inefficiency, nor misled by their own ignorance.

This, in a nutshell, is the underlying reason for section 33 of our democratic Constitution and the resultant legislation, the Promotion of Administrative Justice Bill, before this House today.

In the system of government before April 1994, we had the administrative machine which served as an instrument of domination where the administrative actions, namely decisions taken on behalf of citizens, were executed with draconian coercion without regard for rights and legitimate expectations. The fact that communities were bitterly opposed to the decisions was of little consequence. In this respect the attitude of public servants was chillingly candid. Those whose rights or legitimate expectations were adversely affected by the administrative action were forced to agree, with no recourse to any remedy. And if they persisted in their opposition they had to be crushed.

The main objective of this Bill is to rapidly change, psychologically and ideologically, this historical set of administrative doctrines, practices and mindsets, guiding administrators according to a code of conduct in the direction that is harmonious with the overall spirit of the democratic Constitution, and particularly section 33.

My experience as a public representative, particularly in the Western Cape province, is that the old and the new are still prevalent in an uncomfortable relationship, adversely affecting the rights of people at grass-roots level by exploiting the ignorance of these people. Let me relate some practical examples as to how the rights and legitimate expectations of people on the ground are violated by public servants and administrators who have to make administrative decisions on behalf of the departments of Government.

My first example is an incident which happened in Lavender Hill. For two months a mother in Lavender Hill took a 15-year-old child to the Retreat Day Hospital continually, because he was suffering from severe headaches. She returned to the hospital when an official decided, without due consideration for the needs of the people, to reduce the staff to a minimum during the vacation period. On Sunday, 9 January 2000, she was back at the hospital with the same complaint. The doctor, without supporting staff, told her that they should be in church and not bothering him on a Sunday. He sent the mother away with five Panado tablets.

On 10 January, the following day, the mother was back at the day hospital with the child, who had phlegm coming from his mouth. Another doctor examined the child and called an ambulance. Fifteen-year-old Eugene Randall October of Lavender Hill died before the ambulance arrived. The health worker, as a public servant administering health care, obviously has a mindset which does not fully comprehend the meaning of the English verb ``to administer’’, which comes from the latin word administrare, meaning to care for or to serve, giving due consideration to the dignity, rights and legitimate expectations of both mother and child.

The other example is when an empty school in Retreat was leased from the provincial administration by an estate agent. In violation of his lease agreement, he sublet the rest of the school to homeless families in the area. The estate agent disappeared after a while. The people, who were homeless, were allowed to stay on condition that they vote for a particular political party. When this did not happen, a public servant gave the eviction notices, served on them without consultation and due consideration for the plight of women, children and the aged. It cost the local civic association a High Court interdict at least to keep the homeless under a roof.

Another example is that of the local post office in Retreat, which used to pay our pensioners at 7:30 am. It is a time of day when it is cool and there is no rush or other uses for the post office. Pensioners can go shopping when markets are empty and it is cool during the morning. One day when pensioners arrived to collect their pensions, the post office was closed. They were told by the postmaster that an official had decided that the payout must only start at 11:30 am. Not only did some of the aged collapse due to the heat, but they had to go and do their shopping during the hottest time of the day, merely because some high official took a decision without due consideration for their needs.

There is another example which I want to quote here, and that is that a decision was taken in Pelican-Vlei in the southern suburbs that a high- density, subeconomic housing development was to be decided upon in 1985 already, without due consultation with the community at the time. That is how things were done at the time. This project was then shelved, because of the transition to democracy in 1994, and it is about to restart again. It was only last night that I attended a meeting with the Director of Administration, the Director of Planning, the Director of Community Affairs and the consulting engineer of the South Peninsula Municipality, as well as councillors, MPs, MPLs and civic representatives in the community, to discuss the proposed project and to listen to a number of issues adversely affecting the rights of existing residents in the area in terms of security, property rights, the environment and proper planning for the future development of the area. This indeed is a voluntary and practical application of clause 4 of the Bill where administrative action materially adversely affects the rights of the public.

The administrator in the public sphere is a key factor for the execution of the specific policy objectives in our developing country. He or she can be considered the cornerstone for the establishment of an administrative machinery capable of executing the Government’s plans in the socioeconomic sphere in order to ensure the improvement of the quality of life of the poorest of the poor, particularly the vulnerable groups of women, children and rural communities.

This is the primary concern of the ANC. The checks and balances, duties and obligations, review procedures and code of conduct provided for in this Bill are not there to scare and to frustrate administrators or to clog up the system. They are in the Bill to clearly promote an efficient administration and good governance, to create a culture of accountability, openness and transparency in the execution of public power or in the performance of a public function, and to give effect to the rights in section 33 of the Constitution.

The ANC and the people of the southern suburbs, together with the South Peninsula Municipality, will support this Bill in practice. [Applause.]

Miss S RAJBALLY: Madam Speaker, the new democratic South Africa is still young. However, the country has undergone a remarkable metamorphosis. The correct administration of laws gears up the democracy to take its course. The executive function of the national and provincial executives, and the legislative actions of Parliament, the provincial legislatures and municipal councils are the heartbeat of the public.

The administrative law must contain the general principles of law which regulate the administrative process, ensuring that fairness and efficiency is practised, and liability for administrative action and inaction exercised. Simultaneously, the administration of justice must govern the administrative and judicial remedies relating to such action or inaction.

The Promotion of Administrative Justice Bill of 1999 is a legal vehicle used to confirm section 33(1) and (2) of the Constitution, namely:

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

(2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. The contents of the Promotion of Administrative Justice Bill avoid the inclusion of unnecessary legal technicalities which hinder the application of a fair and reasonable administrative action. The MF supports the Promotion of Administrative Justice Bill of 1999.

Mr M A MANGENA: Madam Speaker, the vast majority of our people seldom interact with Government in any way except through the many state offices scattered all over the country where public servants, sitting behind desks and counters, from the humble clerk to senior officials, take thousands of administrative actions every day. Some of these decisions have profound implications for the lives of people. Unless one is well informed, well connected or well resourced, one simply has to live with the decisions the people behind desks make, the actions they purport to take under one law or another.

Because of the hostile and alienating nature of government towards the majority of blacks in this country in the past, most of our people are simply terrified of people sitting behind desks and counters. It would not come easy for most to demand explanations and fair administrative actions. The Promotion of Administrative Justice Bill will change the relationship between the public on the one hand and people sitting behind desks on the other, from one of power and submission to one of service with justice and fairness.

However, because isiqhelo siyayoyisa ingqondo [old habits die hard], it will take some time for both the people behind counters and the general population to embrace the new relationship advocated by this Bill. Precisely because public servants have always known the old way of interacting with the public, it might be necessary to educate them according to the new way of operating, lest most of them become paralysed by the fear that every administrative action they take could be challenged in the new era that appears to turn our country into a lawyer’s paradise. Such a situation could lead to a poor delivery of services by timid civil servants who are always looking over their shoulder for a lawyer with a briefcase itching to pounce on them. We support this Bill. [Applause.]

Ms D P S JANA: Madam Speaker, it is symbolic that I follow the previous speaker, the hon Mangena, as I have personal knowledge of the pain and suffering he suffered as a result of administrative injustices. I was there when he was banned and banished to Mahwelereng after serving his sentence on Robben Island, and to this day I am not sure whether he knows the reason why that was done.

It was Friday night and close to the zero hour. It was hot and balmy, as the air conditioning system was switched off. There were no refreshments. Even the usual witty exchanges between John Jeffery and Johnny de Lange had succumbed to sheer fatigue. It was then that we cast our final vote on this Bill. However, in spite of that, I think we did extremely well, because when I look around me here today, and it is not even seven o’clock, I see members already beginning to droop like wilting lilies. This Bill was dealt with with great enthusiasm and passion in our committee and much credit must be given to Mr de Lange and Mr Labuschagne of the department, our chairperson, Johnny de Lange and members of our committee.

Before I proceed any further, I would like to respond to Dene Smuts, who raised two very important issues here which were totally untrue, and it was totally disingenuous for her to do so. Firstly, the hon Dene Smuts said that the position of the ANC was to include the definition of ``grossly unreasonable’’, and she knows very well that this is not true. It was a submission made to the committee which we put as an option. We normally do that. We put several options in the Bill and finally we choose which option we want to vote on. [Interjections.]

Secondly, she said that clause 2 of the Bill was put into the Bill by Cabinet, with sinister implications. The hon Dene Smuts was present at the briefing when the department informed us that they put that clause in as an interim measure in case there were any cracks in the Bill, and removed it immediately after the briefing. Cabinet had absolutely nothing to do with it and it is absolutely surprising that the hon Dene Smuts should raise this. [Interjections.]

This Bill is of particular significance to me, and throughout the deliberations my mind remained crowded with the scenes of structural violence that inflicted gross pain and suffering upon all oppressed South Africans by the ruthless, arbitrary and authoritarian actions of the apartheid government. The importance of this Bill, the Promotion of Administrative Justice Bill, cannot be emphasised enough without the context of such experiences.

In only a few words I would like to relate a story, a true story, the story of Winnie Madikizela-Mandela. It was in the very early hours of a bitterly cold winter morning in 1977 when Winnie Madikizela-Mandela and her two young daughters were rudely awoken by the usual thunderous banging on her door in her home in Soweto. A document purporting to be a notice was shoved under her nose, barely giving her an opportunity to even read it. She was ordered to pack her meagre belongings and, within a short while, together with her children, was trucked out of her home in Soweto and sent to a strange little township in the heart of the Free State. There she remained banned and banished for six years until she defied this order and returned to Soweto in 1983, before the order had actually expired.

The order violated every basic human right and imposed heavy prohibitions on her freedoms, such as movement, association and speech. She was house- arrested and confined to a little matchbox house from 6 pm to 6 am. As the late Steve Biko said, she became her own jailer. She was not even allowed to work to support her children.

There were similar prohibitions in the many banning orders on hundreds of leaders and people who opposed apartheid in any way whatsoever. Many of them are members in this House today. Organisations and publications too were bannned in the same way. In 1977, in the Night of the Long Knives Operation'', 18 organisations were banned by a single stroke of the official pen. The guiding rule of government action in the sphere of internal security was:If it moves, ban it’’. This was later replaced by the rule: ``If it moves, detain it’’.

Detentions became an acceptable practice of the then government. There were various forms of detention, including indefinite preventative detention. The mere apprehension or suspicion that the detainee was likely to be involved in any act falling within a broad spectrum of activities justified the decision to order a detention. Administrative injustices permeated every area of our life. Such actions controlled not only political activities, but also the economy, influx control and a multiplicity of social conditions. It was through state administration that apartheid policy was perpetuated.

These actions were empowered by various pieces of legislation of the apartheid government. Even when this power could be challenged in a court - only if it exceeded the parameters of the empowering legislation - it was extremely difficult to do so, because of the secrecy in which decisions were legally cloaked. These actions were based on subjective discretion, and phrases such as if, in his opinion'' oris satisfied’’ or ``has reason to suspect’’ formed the basis of these decisions.

Such phrases in empowering legislation conferred uncontrolled discretion, and such discretion could not be challenged in court. These actions did not include the basic rules of natural justice. The affected persons were never given a hearing and reasons were never furnished. Even when the law provided that reasons may be requested, such requests were always refused by a standard phrase which read: ``It could not be disclosed for fear that it will be detrimental to public policy.’’

The dreadful disparities that resulted from these actions haunt our society, and will continue to haunt our society for generations to come. Can we ever forget the tragic stories of how entire communities were uprooted from their homes and land and displaced under the severest of conditions? These are the horror stories of Driefontein, Huhudi, Cato Manor, Matobestad, Nqcali, District Six and many more. Significantly, clause 4 of this Bill deals with administrative action affecting the public. This clause provides for fair procedure that includes public inquiries, notice and comment procedures and public hearings.

This Bill gives effect to our constitutional right to administrative action that is lawful, reasonable and procedurally fair, and everyone whose rights have been adversely affected by administrative action has a right to be given written reasons.

Various speakers have gone to great lengths talking about this Bill; therefore, I will not discuss it any further. But I want to conclude by saying that we believe that this Bill is the conscience of our history of state administration. Never again will that history be repeated under any circumstances. We believe that it will ensure transparency, honesty and accountability in Government. It will provide adequate checks and balances to executive powers.

Finally, we believe that this Bill will never allow administrative injustices to weaken nation-building and constitute a threat to democracy, good governance and the cultivation of a human rights culture. This Bill will be a living experience for every South African, and today we can truly celebrate its birth. [Applause.]

Ms R TALJAARD: Madam Speaker, hon members, as our 21st century society has matured, we have developed greater expectations of the services provided by both the public and private sectors. Without question, we are living in the era of the service-orientated Public Service and people have much higher expectations of being treated not only lawfully, reasonably and fairly, as our Constitution demands, but that there will also be a degree of professionalism in administrative conduct.

It is, therefore, incumbent upon us to draft an administrative justice Act that gives full effect to the rights in the Constitution. We cannot create adequate margins for the bureaucracy to erode those rights, whatever the amnesty requirements for a pressurised Public Service may be.

The questions that we are faced with today are the following: Does the Promotion of Administrative Justice Bill set the appropriate floor of minimal procedural requirements? In setting that floor of rights, does the Bill pass the muster of the constitutional requirement of just administrative action, that is lawful, reasonable and procedurally fair? Many of these questions have been dealt with by my colleagues, and I will deal with some remaining crucial shortcomings.

The foremost shortcoming that has been touched upon is the manner in which the section 33 right has been narrowed within the definition of administrative action. Not only does it import the notion of adverse effects into the definition, but it also incorporates a foreign legal concept drawn from the German experience of a direct external legal effect, which is unknown to our jurisprudence. What makes this importation worse is the fact that it will have to be applied in conjunction with a ``reasonable man’’ test - a concept drawn from the law of tort, and unknown to administrative law - to determine the grounds of review of administrative action. This is clearly an interpretative minefield.

The first albeit ambitious draft Bill prepared by the SA Law Commission clearly reflected the sentiment that we require the Public Service to go the extra mile; that we want clarity and publication of the rules and procedures that inform administrative decisions, as one can then properly judge discretion; and that one needs specialised administrative tribunals and a code of good administrative conduct to have binding force, in conjunction with more transparent rules of the administrative game. The submission by Prof Jonathan Klaaren of the Centre for Applied Legal Studies at Wits left no doubt in my mind that this clarity about rules and procedures was a non-negotiable building block of a really just administrative action right.

While these sentiments are maintained in the Bill before us today, they do not amount to a substantive awareness that the Public Service should go the extra mile. The fact that these aspects were tucked away in the delegated legislation provisions, where the Minister may merely provide for these matters, tells the entire tale. Scores of complainants knocking on the door of the Department of Home Affairs and many people who are desperate to ensure that they have legal recourse when their interests in social grants, for example, are affected, have had long-standing battles to ensure a greater degree of transparency of the rules and procedures affecting their rights.

The Bill before us today has taken out much of the heart and soul from administrative justice by placing the transparency of rules and procedures and the enforcement mechanism - ideally desired for specialised administrative tribunals - under clause 10, the regulation clause giving the Minister mere scope, as he is under no obligation in clause 10(2) to draft secondary legislation to deal with these matters.

As was the case with the Open Democracy Bill that subsequently became the Promotion of Access to Information Bill, it is clear that the name-change in the case of the Administrative Justice Bill to the Promotion of Administrative Justice Bill is an indication that we are not adequately giving effect to the constitutional requirements to further this right. We cannot sit back and watch the interests of bureaucrats trample on the interests of the public, where the interests of the public have to take a back seat to the interests of the bureaucrats, while South Africa is undergoing a modernisation of Government. [Applause.]

Mr J H JEFFERY: Madam Speaker and members, the Bill before us is a very important one. It gives, as many speakers have already mentioned, effect to the constitutional right of fair administrative action. It is part of the ANC’s programme of democratising the South African state and transforming a civil service that has come from a legacy of arbitrary administrative decisions. These included, as Ms Jana, in particular, has mentioned, decisions to detain without trail, to ban, to forceably remove, etc. A public service that comes from this legacy has to be transformed into one which is accountable for its actions. It has to give notice about administrative decisions that have to be taken to afford people the opportunity to comment and to set out a procedure for judicial review. So this is a very important and groundbreaking piece of legislation in that regard.

Unfortunately, many of the so-called born-again democrats that we seem to have on this side of the House have raised a number of problems with the Bill. They have raised problems with, if I understood them right, the Bill limiting the right of administrative action. Obviously, as other members have said, and as members would know from the Constitution, the Bill has to give effect to the right. The right of a fair administrative procedure needs to be qualified in certain circumstances, for instance in the case of minor decisions. For example, when the catering service of Parliament decides that they are going to serve fried, instead of grilled, fish for lunch, it is an administrative decision and they cannot be expected to give notice to every member that they are going to have fried, instead of grilled, fish. They cannot be expected to allow for representations from members. Quite clearly, there have to be procedures set out to ensure that this right can actually operate properly. If members read their Constitution properly, they would see that there is a limitations clause which does precisely that. It is there to ensure that Government can function effectively.

So the Bill has to balance this against what it is trying to do, and I believe, as many speakers have said, it has done so effectively. The Bill actually provides for the right and for proper procedures for administrative action. However, it provides for it in such a way that is practical. It will ensure that Government can continue with its main task which is to deliver to the people of South Africa, and not to be tied up in knots with giving hearings and writing out procedures for every little administrative action. The Bill is limited to those actions that adversely and materially affect people. A number of technical points have been raised, and I do not want to really dwell on a lot of them. However, I shall mention a few. The hon Ms Smuts, whose attendance, to put it politely, was not particularly regular at the committee hearing … [Interjections.] I will say it again. Ms Smuts, whose attendance, at the portfolio committee dealing with this Bill, was not exactly regular, stridently raised a whole lot of problems. One of them was that we dropped a clause from the Bill which recognised or respected the common law rights. If she had only looked at the clause that we dropped, she would have noted that that clause restricted the common law to being consistent with the Bill. What we have done in terms of removing that clause is to ensure that the common law can remain. People can still … Mr M J ELLIS: You are talking rubbish!

Mr J H JEFFERY: I do not know on what basis Mr Ellis, who has never attended a single one of those meetings, is talking now. [Interjections.] [Laughter.]

There are issues like that that were raised. As to the issues that Adv Schmidt raised regarding the dropping of interest, Adv Schmidt was not able to convince the committee that ``interest’’ needed to be included when rights and legitimate expectations were included.

There have been contradictions from Mr Ellis of the DP, from Adv Schmidt complaining about the Bill overregulating Government and referring to a letter sent some time ago from the Department of Trade and Industry, some time before the Bill was finalised. [Interjections.] So he on the one hand says that the Bill is overregulating, and Ms Smuts on the other hand complains that it does not specify things enough. [Interjections.] In the committee …

Mr M J ELLIS: Take your hand out of your pocket! [Interjections.]

The SPEAKER: Order! Hon member, will you take a seat please. Is that a point of order?

Mr G Q M DOIDGE: Madam Speaker, is it acceptable for members of the opposition to interfere with the speaker? I do not think that is in line with Rule 47. [Interjections.]

The SPEAKER: Order! I will not allow anybody to interfere with the speaker. Mr D H M GIBSON: Madam Speaker, the opposition has never interfered with the Speaker. [Laughter.]

The SPEAKER: Order! Is that another point of order? We have saved a lot of time on this debate and I hope we can end …

The MINISTER OF TRADE AND INDUSTRY: Madam Speaker, this is a very serious point of order. I think it is a complete act of disrespect to you even to imply that you would let something like that Opposition interfere with you. [Laughter.]

The SPEAKER: Order! Hon members, may I please repeat that no one will be allowed to interfere with this Speaker. [Laughter.]

An HON MEMBER: We believe you, Madam.

The SPEAKER: Order! Hon member Jeffery, you may now resume.

Mr J H JEFFERY: What has been interesting from the debate is how the DP, which participated quite constructively in the discussions of the committee, and in the end will abstain from voting, through the hon Ms Smuts shrilly tell us why they are opposing this Bill; the same Ms Smuts who barely attended any of the meetings.

The real issue is that this Bill has to balance the right to administrative action, the right of people, where administrative decisions affect them, to know about those decisions, to make an input and to be heard and considered, with the need for effective government. I believe that this Bill does that effectively. [Applause.]

The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, once again I thank all hon members for what I regard as a very good debate on this Bill. It is unavoidable that one or two observations should once again be made.

Firstly, the DP unfortunately thinks it has an obligation to oppose everything, every time and everywhere, even when they do not understand what they are opposing. [Laughter.] At some point I began to wonder whether Madam Dene Smuts understood what she was talking about. I think ordinarily one would excuse them because they behave like little spoilt brats. [Interjections.] The problem is, in the process of doing this they are trivialising and discrediting opposition. They are doing a real disservice to our democracy. [Interjections.] That is the problem. [Interjections.]

If the Leader of the Opposition can just shut up for a few seconds … [Interjections] … can shut his trap for a few seconds … [Laughter] … he will understand the point that I am making. He thinks that nothing good is happening in this country. I want to remind him that when he wants to believe for instance that there is no delivery it is because he comes from Lower Houghton where there is no need for delivery. [Interjections.] That is where he comes from. Indeed, the class that he represents, as was demonstrated in the earlier debate, does not need delivery.

At the same time, however, I think it also needs to be observed that Madam Dene Smuts has the effrontery to claim that the majority party did not want the inclusion of the right to just administrative action. [Interjections.] Nothing can be further from the truth. Those of us who were direct victims of the system of apartheid wanted to pack into even the interim Constitution all the rights that the member talks about today. We are actually the creators of the constitutional dispensation that she is enjoying now. [Applause.] Indeed, it is the height of arrogance for anyone to suggest that a tiny minority can influence, as she claims, the majority to clamour for rights that they were denied by the white minority for a very long time. [Interjections.] They dare not do that!

I want to deal with a remark by Mr Gaum. I say to Mr Gaum … [Interjections.] I say to the hon Mr Gaum or Goam or Gout or whatever … [Interjections] [Laughter] … that anybody who has read this Bill, particularly the definition clause which deals with the definition of ``court’’, will agree with me that it says:

``court’’ means -

(a) the Constitutional Court …

(b) (i) a High Court or another court of similar status; or ….

And this is what I want to deal with -

   (ii) a Magistrate's Court ...
   within whose area of jurisdiction the administrative action  occurred
   or ...

[Interjections.] Please listen!

   ... in respect of a specified class of administrative actions ...

However, I want to say that if the Minister has to designate any magistrate’s court for the purposes of this Bill, the Minister would have to comply with two requirements that are contained in the definition, namely, firstly, that he or she would do it in respect of a specified class of administrative actions, and secondly, solely after consultation with the Magistrates Commission. I do not know whether we should have done better than that.

Lastly, this is meant for one of our supporters, the hon member Dr Pheko. I want to tell Dr Pheko that, factually, there is not a proliferation of courts. [Applause.]

Debate concluded.

Question put: That the Bill be read a second time. Division demanded.

The House divided:

AYES - 299: Abrahams, L A; Abrahams, T; Abram, S; Ainslie, A R; Arendse, J D; Asmal, A K; Bakker, D M; Balfour, B M N; Baloi, G E; Baloyi, M R; Baloyi, S F; Bekker, H J; Belot, S T; Benjamin, J; Beukman, F; Bhengu, F; Bhengu, G B; Bhengu, N R; Bloem, D V; Booi, M S; Botha, N G W; Buthelezi, M N; Capa, R Z N; Carrim, Y I; Cassim, M F; Chalmers, J; Chauke, H P; Chiba, L; Chikane, M M; Chohan-Kota, F I; Cindi, N V; Coetzee-Kasper, M P; Cronin, J P; Cwele, S C; Davies, R H; De Beer, S J; De Lange, J H; De Lille, P; Diale, L N; Didiza, A T; Ditshetelo, P H K; Doidge, G Q M; Douglas, B M; Dowry, J J; Duma, N M; Durand, J; Du Toit, D C; Dyani, M M Z; Ebrahim, E I; Erwin, A; Fankomo, F C; Feinstein, A J; Ferreira, E T; Fihla, N B; Fraser-Moleketi, G J; Frolick, C T; Gandhi, E; Gaum, A H; Gcina, C I; George, M E; Gerber, P-J A; Gigaba, K M N; Gillwald, C E; Gininda, M S; Gogotya, N J; Gomomo, P J; Goniwe, T M; Goosen, A D; Green, L M; Greyling, C H F; Grové, S P; Gumede, D M; Hajaig, F; Hanekom, D A; Hangana, N E; Hendrickse, P A C; Hlangwana, N L; Hogan, B A; Holomisa, S P; Jana, D P S; Jassat, E E; Jeffery, J H; Joemat, R R; Kalako, M U; Kannemeyer, B W; Kasienyane, O R; Kekana, N N; Kgarimetsa, J J; Kgauwe, Q J; Kgwele, L M; Khoza, T S; Kota, Z A; Kotwal, Z; Landers, L T; Leeuw, S J; Lekgoro, M K; Lekgoro, M M S; Lekota, M G P; Lishivha, T E; Lobe, M C; Lockey, D; Louw, J T; Louw, S K; Lucas, E J; Lyle, A G; Mabandla, B S; Mabeta, M E; Mabudafhasi, T R; Maduna, P M; Magubane, N E; Magwanishe, G; Mahlangu, G L; Mahlangu, M J; Mahomed, F; Maimane, D S; Maine, M S; Makasi, X C; Makunyane, T L; Makwetla, S P; Malebana, H F; Maloney, L; Maluleke-Hlaneki, C J; Malumise, M M; Manie, M S; Manuel, T A; Maphalala, M A; Maphoto, L I; Mapiso-Nqakula, N N; Marshoff, F B; Martins, B A D; Masala, M M; Maserumule, F T; Mashimbye, J N; Masithela, N H; Masutha, M T; Mathebe, P M; Matsepe-Casaburri, I F; Maunye, M M; Mayatula, S M; Maziya, A M; Mbadi, L M; Mbete, B; Mbombo, N D; Mbongo, P F; Mbulawa, B G; Mbuyazi, L R; Mdladlana, M M S; Mfundisi, I S; Mgidi, J S; Middleton, N S; Mkhatshwa, S; Mkhize, B R; Mlangeni, A; Mnandi, P N; Mngomezulu, G P; Mnumzana, S K; Modise, T R; Modisenyane, L J; Moeketse, K M; Mofokeng, T R; Mohai, S J; Mohamed, I J; Mokaba, P R; Mokoena, D A; Molebatsi, M A; Moloto, K A; Momberg, J H; Mongwaketse, S J; Montsitsi, S D; Moonsamy, K; Morobi, D M; Morwamoche, K W; Moss, M I; Mothoagae, P K; Motubatse, S D; Mpahlwa, M B; Mpaka, H M; Mpehle, M; Mshudulu, S A; Mthembi-Mahanyele, S D; Mthembu, B; Mtirara, N Z; Mtsweni, N S; Mutsila, I; Mzondeki, M J G; Nair, B; Nash, J H; Ncube, B; Ndabandaba, L B G; Ndlovu, V B; Ndou, R S; Nel, A C; Nel, A H; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngculu, J L V; Ngubane, B S; Ngubane, H; Ngubeni, J M; Ngwane, L B; Ngwenya, M L; Nhlanhla, J M; Nhleko, N P; Niemann, J J; Njobe, M A A; Nkomo, A S; Nkosi, D M; Nqakula, C; Nqodi, S B; Ntshangase, I B; Ntuli, B M; Ntuli, M B; Ntuli, S B; Nzimande, L P M; Odendaal, W A; Olckers, M E; Olifant, D A A; Oliphant, G G; Pahad, A G H; Phala, M J; Phantsi, N E; Pieterse, R D; Pretorius, I J; Rabie, P J; Rabinowitz, R; Radebe, B A; Rajbally, S; Ramakaba-Lesiea, M M; Ramgobin, M; Ramodike, M N; Ramotsamai, C M P; Rasmeni, S M; Ripinga, S S; Rockman, G; Routledge, N C; Saloojee, E; Schneemann, G D; Schoeman, E A; Schoeman, R S; Scott, M I; Seaton, S A; Sekgobela, P S; September, C C; September, R K; Serote, M W; Shilubana, T P; Shope, N R; Sigcau, S N; Sigcawu, A N; Sigwela, E M; Sikakane, M R; Simmons, S; Sisulu, L N; Sithole, D J; Skhosana, W M; Skosana, M B; Slabbert, J H; Smit, H A; Smith, P F; Smith, V G; Solo, B M; Solomon, G; Sonjica, B P; Sosibo, J E; Sotyu, M M; Southgate, R M; Swart, S N; Thabethe, E; Tinto, B; Tolo, L J; Tshabalala-Msimang, M E; Tsheole, N M; Tshivhase, T J; Tshwete, S V; Turok, B; Twala, N M; Vadi, I; Van den Heever, R P Z; Van der Merwe, A S; Van der Merwe, S C; Van Deventer, F J; Van Jaarsveld, A Z A; Van Niekerk, A I; Van Schalkwyk, M C J; Van Wyk, A (Anna); Van Wyk, A (Annelizé); Van Wyk, J F; Van Wyk, N; Verwoerd, M; Vilakazi, B H; Vilakazi, M I; Vos, S C; Woods, G G; Xingwana, L M T; Yengeni, T S; Zita, L; Zondo, R P; Zulu, N E; Zuma, J G.

NOES - 36: Andrew, K M; Bell, B G; Borman, G M; Botha, A J; Bruce, N S; Clelland, N J; Da Camara, M L; Davidson, I O; Delport, J T; De Vos, P J; Eglin, C W; Ellis, M J; Farrow, S B; Gibson, D H M; Gore, V C; Grobler, G A J; Heine, R J; Kalyan, S V; Lee, T D; Leon, A J; Maluleke, D K; McIntosh, G B D; Moorcroft, E K; Ntuli, R S; Opperman, S E; Pillay, S; Schmidt, H C; Selfe, J; Semple, J A; Seremane, W J; Sigabi, N B; Singh, A; Smuts, M; Swart, P S; Taljaard, R; Waters, M.

Question accordingly agreed to.

Bill read a second time.

The SPEAKER: Order! Hon members, before adjourning the House, I would like, on behalf of all of us, to thank the portfolio committee and all its members for having worked through the past few months to allow us to complete the Bill today. [Applause.]

The House adjourned at 19:34. _______

            ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS

                       MONDAY, 24 JANUARY 2000 ANNOUNCEMENTS:

National Assembly and National Council of Provinces:

1. The Speaker and the Chairperson:

 (1)    The Minister for Welfare and Population Development on 21
     January 2000 submitted drafts of the Nonprofit Organisations
     Amendment Bill, 2000, and the Developmental Welfare Governance
     Bill, 2000, as well as the memorandums explaining the objects of
     the proposed legislation, to the Speaker and the Chairperson in
     terms of Joint Rule 159. The drafts have been referred by the
     Speaker and the Chairperson to the Portfolio Committee  on Welfare
     and Population Development and the Select Committee on Social
     Services, respectively, in accordance with Joint Rule 159(2).

National Assembly:

1. The Speaker:

Mr A C Nel has been appointed as chairperson of the Ad Hoc Committee on Report No 13 of Public Protector with effect from 20 January 2000.

COMMITTEE REPORTS:

National Assembly and National Council of Provinces:

1. Report of the Ad Hoc Joint Committee on Open Democracy Bill on the Open Democracy Bill [B 67 - 98] (National Assembly - sec 75), dated 24 January 2000, as follows:

 The Ad Hoc Joint Committee on Open Democracy Bill, having considered
 the subject of the Open Democracy Bill [B 67 - 98] (National Assembly -
 sec 75), referred to it and classified by the JTM as a section 75 Bill,
 presents the Promotion of Access to Information Bill [B 67B - 98].

 The Committee further wishes to report as follows:


 1.     This Bill, resulting from the constitutional obligation to enact
     legislation giving effect to the right referred to in section 32
     of the Constitution, amongst others, promotes transparency and
     accountability of public bodies by providing the people of South
     Africa with timely, accessible and accurate information.


     The Committee is of the opinion that proper record-keeping by all
     public bodies will contribute to the efficiency of public bodies
     in relation to their obligations in terms of the Bill. The
     National Archives of South Africa Act, 1996 (Act No. 43 of 1996),
     as a standard-setting piece of legislation for the proper
     management and care of records held by governmental bodies,
     standardises and regulates the operations of public bodies with
     regard to control over records. An efficient system of
     identification, arrangement, storage and retrieval of records will
     enhance the ability of public bodies to provide the public with
     timely and accurate information.

     Various submissions were received that public bodies were more
     often than not in breach of the National Archives of South Africa
     Act, 1996, not always acting in accordance with the provisions of
     the Act. The Minister for Justice and Constitutional Development
     is, therefore, requested to inform all public bodies of the
     importance and necessity of proper record-keeping, to request them
     to once again take note of the provisions of the National Archives
     of South Africa Act, 1996, and to take the necessary steps to
     ensure that its provisions are closely followed by all public
     bodies to which the Act applies. Furthermore, the Minister is
     requested to undertake an audit as to the feasibility and
     desirability of existing legislation dealing with record-keeping,
     and to suggest appropriate remedial action.
 2.     Clause 6 of the Bill provides that the Bill does not prevent the
     giving of access to records of public or private bodies in terms
     of any other legislation listed in the Schedule to the Bill.


     Clause 86 of the Bill requires that the Schedule to the Bill
     should be amended to include the provisions of legislation which
     provides for or promotes access to records of public and private
     bodies. A schedule of this nature will provide an individual who
     wishes to request access to a record held by a public or private
     body but is faced with a choice between utilising this Bill or
     another piece of legislation, with an efficient form of reference
     to enable him or her to make use of both options.

     The Committee, therefore, draws the attention of the Minister for
     Justice and Constitutional Development to the provisions of Clause
     86, which require the relevant amending legislation to be
     introduced in Parliament within 12 months after the commencement
     of Clause 6, and requests the Minister to initiate an audit
     amongst all public bodies as soon as possible in preparation of
     the relevant amending legislation.


 3.     Clause 5 of the Bill provides that the Bill applies to the
     exclusion of any other legislation that prohibits or restricts the
     disclosure of a record of a public or private body which is
     materially inconsistent with an object, or a provision, of the
     Bill. No audit appears to have been done in order to establish how
     this legislation will effect existing legislation, and vice versa.
     In the interim, this Clause has been provided for to reflect the
     intention of the legislature that this Bill applies to the
     exclusion of any other legislation that prohibits or restricts the
     disclosure of a record of a public or private body.


     The Committee still finds it advisable to request the Minister for
     Justice and Constitutional Development to do a comprehensive audit
     and, if necessary, to propose appropriate remedial action. The
     Committee requests the Minister to interact with all departments
     whilst undertaking this audit.


 4.     This Bill, amongst others, deals with access to personal
     information in the public and the private sector to the extent
     that it includes provisions regarding the mandatory protection of
     the privacy of third parties.


     This Bill only deals with the aspect of access to private
     information of an individual, be it access by that individual or
     another person, and does not regulate other aspects of the right
     to privacy, such as the correction of and control over personal
     information and so forth. Foreign jurisdictions with freedom of
     information regimes enacted separate legislation which, as an
     important component of democracy legislation, regulates aspects,
     inter alia, such as the correction of and control over personal
     information. Privacy legislation generally provides for more
     detailed mechanisms and provisions dealing with personal
     information in the hands of another person by empowering that
     individual to, amongst others, demand the correction of incorrect
     information. The part in the Bill that dealt with these matters,
     was removed, as the Committee felt that it would be dealing with
     the right to privacy in section 14 of the Constitution in an ad
     hoc and undesirable manner. Clause 88 of the Bill provides for an
     interim measure regarding the correction of personal information,
     and it is intended that South Africa, in following the
     international trend, should enact separate privacy legislation.

     The Committee, therefore, requests the Minister for Justice and
     Constitutional Development to introduce Privacy and Data
     Protection legislation, after thorough research of the matter, as
     soon as reasonably possible. Furthermore, it may be noted that,
     when the Privacy and Data Protection legislation is passed, this
     Bill may have to be amended, if necessary, in accordance with that
     legislation.


 5.     Clause 51 of the Bill provides that the heads of private bodies
     must compile manuals within six months after the commencement of
     that Clause.


     The manual referred to in Clause 51 must contain information which
     will facilitate a request for access to a record held by a private
     body. Provision is further made for the Minister, on receipt of a
     request or on the Minister's own accord, to exempt any private
     body or category of private bodies from any provision of the
     Clause for such period as the Minister thinks fit. The Committee
     is aware of and sensitive towards the fact that Clause 51, read
     with the definition of "private body" in Clause 1, might place an
     undue burden on certain private bodies to meet the requirements of
     Clause 51.
     The Committee, therefore, requests the Minister for Justice and
     Constitutional Development to consider exempting certain private
     bodies in accordance with Clause 51(4) simultaneously with the
     implementation of Clause 51.


 6.     The Committee has once again become acutely aware of the various
     shortcomings of the Interpretation Act, 1957 (Act No. 33 of 1957),
     during its deliberations on the Bill. This Act was drafted during
     an era when we had a system of unfettered parliamentary
     sovereignty and regulated matters of interpretation during the
     height of the Apartheid era. This Act is highly anacronistic and
     in no way is it in line with the principles of constitutional
     democracy. The Committee therefore urges the Minister to consider
     the amendment of the Interpretation Act, 1957, to bring it in line
     with the principles and ethos of constitutionalism and the new
     principles and practices of interpretation which Parliament and
     the courts have used since 1994.


 7.     The enforcement mechanism provided for in terms of the Bill
     includes internal appeals against the decisions of information
     officers of certain public bodies, whereafter an individual may
     remedy the matter in a court of law by lodging an application.
     Application may, on the other hand, be lodged with a court by a
     person who is aggrieved by the outcome of a request for access to
     a public or private body where an internal appeal procedure is not
     available to that person.


     The Committee is aware that it is adding further matters to the
     jurisdiction of Magistrate's Courts. Clause 79 of the Bill
     provides that the Rules Board for Courts of Law must within 12
     months after the commencement of that Clause make and implement
     rules of procedure for a court in respect of applications in terms
     of Clauses 78 and 80(3)(a) of the Bill. Clause 79 further provides
     that applications should be lodged with the High Court or another
     court of similar status before the implementation of the relevant
     rules of procedure for Magistrate's Courts. Therefore, in the
     first year after the commencement of this Bill, all applications
     must be lodged in the High Courts, until the appropriate Rules
     have been drafted and approved by Parliament.

     The Committee has, however, noted that other jurisdictions created
     an enforcement mechanism, namely an Information Commissioner,
     which is characterised by an accessible and inexpensive form of
     dispute resolution aimed at mediating disputes on an informal and
     speedy basis between interested parties, with the ability to
     adjudicate on disputes between parties. The Committee has noted
     further that the system enjoys great success in those
     jurisdictions in the sense that they have created an enforcement
     mechanism which tends to be widely accepted by members of the
     public and the relevant public authorities. However, the Committee
     is aware of the lack of financial and other resources, and it is
     not intended or advisable to allow for a proliferation of
     commissions, despite the desirability of such alternative less
     adverserial type of enforcement mechanisms in our nascent
     democracy. The existing court structures with its formal
     procedures will not be conducive to settling informal disputes of
     this kind between parties in our society.

     The Department of Justice and Constitutional Development is
     requested to investigate the feasibility of establishing an
     enforcement mechanism like the Information Commissioner and to
     report back to the Committee within 12 months after the Bill has
     been put into operation. The Committee is considering a proposal
     in this regard at this moment and will forward it to the
     Department in due course.


 8.     The Committee has spent much time in looking at the
     implementation of the Bill in a phased manner. It is an attractive
     and novel concept, but the phased implementation of the Bill is
     problematic. On 4 February 2000, section 32(1)(a) and (b) of the
     Constitution will come into operation in its unrestricted form,
     until the Bill is put into operation. This could last for a few
     months whilst the regulations are being drafted. The courts will
     have to enforce the right without any guidelines from the
     legislature contained in this Act now being passed. Against this
     background, the Committee suggests that the Bill should be
     implemented in all haste. Clause 87 of the Bill is flexible and
     will have to be used against the background that each public body
     has to create an information regime afresh and, therefore,
     provision is made that public bodies will be allowed to deal with
     requests for access within a period of 90 days within the first 12
     months after the commencement of the Bill, a period of 60 days
     within the next 12 months, and a period of 30 days within the
     third year.


 9.     The original Bill provided a chapter on the protection of
     whistle blowers. All parties were unanimous in their views that
     this legislation is vital for the fight against crime. The
     Committee was of the view that it is not apposite to include a
     chapter on whistle blower protection in legislation dealing with
     the right of access to information. Parliament has embarked on a
     process of redrafting the chapter into separate legislation. The
     whistle blower legislation will be the next priority of the
     Committee, and this task must be finalised by not later than the
     end of February 2000.


 10.    Provision was made in Clause 8 of the original Bill for a duty
     to disclose records of governmental bodies that reveal a serious
     public safety or environmental risk. However, information regimes,
     including our own, are request-based and, therefore, it was held
     to be undesirable to retain this Clause in the Bill. It was
     decided that it was best dealt with in those departments which
     administer legislation dealing with environmental and public
     safety issues. The Committee suggests that the various departments
     should review the relevant existing legislation, and those
     departments without such legislation should provide for a similar
     mechanism in new legislation to provide for this very important
     issue.


 Report to be considered.

National Assembly:

1. Report of the Portfolio Committee on Justice and Constitutional Development on the Administrative Justice Bill [B 56 - 99] (National Assembly - sec 75), dated 24 January 2000, as follows:

 The Portfolio Committee on Justice and Constitutional Development,
 having considered the subject of the Administrative Justice Bill [B 56
 - 99] (National Assembly - sec 75), referred to it and classified by
 the JTM as a section 75 Bill, presents the Promotion of Administrative
 Justice Bill [B 56B - 99].

 The Committee wishes to report further, as follows:


 1.     In terms of Clause 1, certain designated magistrates' courts
     will also have jurisdiction to judicially review administrative
     actions. As magistrates' courts are more accessible to all members
     of the public, a number of applications for judicial review of
     administrative actions may be brought in those magistrates'
     courts. The Committee expressed its concern about the lack of
     experience of magistrates in respect of administrative law and
     related matters. The opinion was expressed that magistrates who
     intend specialising in this field of the administration of justice
     and who are specially trained, will go a long way in building a
     pool of expertise within the magistracy in administrative law. The
     Committee consequently requests Justice College to ensure that
     training programmes in respect of administrative law and related
     matters for magistrates are initiated and implemented.

 2.     The Committee strongly recommends that the Minister for Justice
     and Constitutional Development should request the Judges President
     of the High Courts concerned to consider the establishment of
     circuit courts, specialising in administrative matters, in terms
     of section 7 of the Supreme Court Act, 1959, especially in the
     interim, whilst the magistrates' courts are not dealing with this
     matter as contemplated in Clause 7(4), in order to enhance the
     accessibility of such courts to the public. The Committee further
     requests the Department of Justice to monitor the number of
     appeals to the High Courts noted in respect of decisions by such
     designated magistrates' courts once Clause 1(iv)(b)(ii) comes into
     operation.

 3.     During its deliberations on the Bill, the Committee's attention
     was drawn to the fact that certain existing laws contain
     provisions providing for a procedure for the review of, or appeal
     against, an administrative action, other than a review by, or
     appeal to, a court of law. Due to the fact that no audit of such
     laws has been done and due to a lack of time, the Committee was
     not in a position to conduct an investigation in order to
     determine the impact of the Bill on such laws and the procedures
     created therein. The Committee expressed the opinion that the
     advisory council contemplated in Clause 10(2)(a) of the Bill would
     be the most appropriate body to conduct such an investigation. It
     therefore recommends that the Minister for Justice and
     Constitutional Development be requested to direct the advisory
     council, if established, to conduct such an investigation and to
     advise the said Minister on its findings. However, the Committee
     recommends that, in the meanwhile, the Minister for Justice and
     Constitutional Development be requested to direct his or her
     Department to conduct the said investigation. In the meantime the
     Committee has passed Clause 7(2) to deal with the issue on
     internal remedies.

 4.     The Committee also requests the Department of Justice to submit
     a progress report regarding the drafting of the code of good
     administrative conduct, as contemplated in Clause 10(1)(e).

 5.     The Committee further requests the Department of Justice to
     report back to it on all the above aspects within six months from
     the date of this resolution and six-monthly thereafter.

 6.     In terms of Clause 7(3) of the Bill, the Rules Board for Courts
     of Law must make and implement rules of procedure for judicial
     review of administrative actions. The Committee recommends that
     the Rules Board for Courts of Law should also consider the
     advisability of the framing of a tariff structure to be applicable
     in respect of such judicial review matters. The Committee requests
     the Department of Justice to report back to it once this matter
     has been considered.

 7.     In various submissions which were made to the Committee, it was
     pointed out that one of the problems experienced with public
     bodies is their failure or refusal to take decisions. In order to
     obviate this problem, the Committee has provided in Clause 6(2)(g)
     for a special ground of review, namely that a court or tribunal
     has the power to judicially review an administrative action if the
     action concerned consists of a failure to take a decision. The
     view is expressed that that provision will go a long way in
     addressing the above unacceptable practice, which appears to have
     developed amongst some administrators.
 Report to be considered.

                      TUESDAY, 25 JANUARY 2000

ANNOUNCEMENTS:

National Assembly:

1. The Speaker:

 (1)    The following papers have been tabled and are now referred to
     the relevant committees as mentioned below:


     (i)     The following paper is referred to the Standing Committee
          on Public Accounts for consideration and report and to the
          Portfolio Committee on Education for information:


          (a) Report of the Auditor-General on the Financial Statements
              of the University of the North West for 1997 [RP 164-99].


              (ii) The following paper is referred to the Standing
                     Committee on Public Accounts for consideration and
                     report and to the Portfolio Committee on Arts,
                     Culture, Science and Technology for information:


          (a) Report of the Auditor-General on the Foundation for
              Education, Science and Technology for 1997-98 [RP 168-
              99].


              (iii)     The following paper is referred to the Standing
                     Committee on Public Accounts for consideration and
                     report and to the Portfolio Committee on Minerals
                     and Energy for information:


          (a) Report of the Auditor-General on the Financial Statements
              of the Council for Mineral Technology for 1998-99 [RP 188-
              99].


     (iv)    The following paper is referred to the Standing Committee
              on Public Accounts for consideration and report and to
              the Portfolio Committee on Health for information:


          (a) Report of the Auditor-General on the Financial Statement
              of Vote 16 - Health for 1998-99 [RP 140-99].


     (v)     The following paper is referred to the Standing Committee
          on Public Accounts for consideration and report and to the
          Portfolio Committee on Provincial and Local Government for
          information:


          (a) Accounts of the Rustenburg-Marico Regional Services
              Council for 1993-94 [RP 145-95].


     (vi)    The following papers are referred to the Standing
          Committee on Public Accounts for consideration and report:


          Reports of the Auditor-General on the -

          (a) Financial Statements of the President's Fund for 1997-98
              [RP 165-99];

          (b) Group Financial Statements of Syncat (Pty) Ltd for 1997-98
              [RP 184-99].


     (vii)   The following papers are referred to the Portfolio
             Committee on Finance:


          (a) Annual Report of the Public Investment Commissioners for
              1998-99.

          (b) Fourteenth Report of the Public Investment Commissioners
              for 1997-98.


     (viii)  The following paper is referred to the Portfolio Committee
              on Agriculture and Land Affairs in terms of Rule 308:


          (a) Agreement between the Government of the Republic of South
              Africa and the Government of the Federal Republic of
              Germany concerning the project "Reorientation and
              Development of Agricultural Advisory Services in the
              Northern Province", tabled in terms of section 231(3) of
              the Constitution, 1996.
     (ix)    The following papers are referred to the Portfolio
              Committee on Provincial and Local Government in terms of
              Rule 308:


          (a) Agreement between the Government of the Republic of South
              Africa and the Government of the Federal Republic of
              Germany concerning the project "Promotion of
              Participative Development Planning in the Eastern Cape
              Province", tabled in terms of section 231(3) of the
              Constitution, 1996.

          (b) Agreement between the Government of the Republic of South
              Africa and the Government of the Federal Republic of
              Germany concerning the project "Provincial Administration
              Capacity Building Programme Mpumalanga", tabled in terms
              of section 231(3) of the Constitution, 1996.


     (x)     The following paper is referred to the Portfolio Committee
          on Trade and Industry in terms of Rule 308:


          (a) Agreement between the Government of the Republic of South
              Africa and the Government of the Federal Republic of
              Germany concerning the project "Small Business
              Promotion/Ntsika Enterprise Promotion Agency (NEPA)",
              tabled in terms of section 231(3) of the Constitution,
              1996.


     (xi)    The following paper is referred to the Portfolio Committee
             on Education in terms of Rule 308:


          (a) Agreement between the Government of the Republic of South
              Africa and the Government of the Federal Republic of
              Germany concerning the project "Teacher Training
              (President's Education Initiative)", tabled in terms of
              section 231(3) of the Constitution, 1996.


 (2)    The following member will vacate his seat with effect from 31
     January 2000:


     Meyer, R P. COMMITTEE REPORTS:

National Assembly and National Council of Provinces:

1. Report of the Ad Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill on the Promotion of Equality and Prevention of Unfair Discrimination Bill [B 57 - 99] (National Assembly - sec 75), dated 21 January 2000, as follows:

 The Ad Hoc Joint Committee on Promotion of Equality and Prevention of
 Unfair Discrimination Bill, having considered the subject of the
 Promotion of Equality and Prevention of Unfair Discrimination Bill [B
 57 - 99] (National Assembly - sec 75), referred to it and classified by
 the JTM as a section 75 Bill, presents the Promotion of Equality and
 Prevention of Unfair Discrimination Bill [B 57B - 99].

 The Committee further reports as follows:

 The Bill was tabled in Parliament in late October 1999. Parliament is
 required to enact a law in terms of section 9(4) of the Constitution by
 4 February 2000. Despite the limited time and the very difficult nature
 of the issues canvassed by this Bill, we received more than 100 written
 submissions. The Committee also held extensive and well publicised
 public hearings, at which a wide range of views were tabled for
 consideration by the Committee during its deliberations. The Committee
 has managed to successfully complete the difficult task it was given in
 respect of this important law.
 There are, however, some outstanding issues that need to be taken
 further, as detailed below:


 1.     Additional prohibiting grounds


     Based on the extensive written and oral submissions received,
     there is overwhelming evidence of the importance, impact on
     society and link to systemic disadvantage of discrimination based
     on the grounds of HIV/AIDS status, socio-economic status,
     nationality, family status and family responsibility. The Minister
     for Justice and Constitutional Development has been required to
     give special consideration to the inclusion of these as additional
     prohibited grounds. In this respect, the Bill requires the
     Minister, immediately upon enactment, to establish an Equality
     Review Committee which must, inter alia, make recommendations to
     the Minister regarding the inclusion of these grounds as listed
     prohibited grounds within one year.


 2.     Unfair discrimination against elderly persons


     Based on submissions to the Committee by specialised lobby groups,
     there is also evidence of a need to address specific forms of
     unfair discrimination against elderly persons. The Committee
     therefore requests the Minister for Welfare and Population
     Development to investigate this area of unfair discrimination and,
     where necessary, to adopt appropriate measures. A concerted and
     pro-active effort also needs to be made to sensitise society about
     this problem.


 3.     Hate speech


     In addition to section 16 of the Constitution, this Bill
     specifically prohibits and prevents hate speech from being
     uttered, except in the form of artistic creativity, academic and
     scientific inquiry and fair and accurate reporting in the public
     interest. There is a view generally held that, in the light of our
     apartheid, colonial and patriarchal past, the Minister for Justice
     and Constitutional Development is requested to give special
     consideration to the following:


     (a)     Tabling legislation in Parliament which deals with the
          criminalisation of hate speech. Such measures must be
          consistent with section 16 of the Constitution and the
          Convention on the Prevention and Elimination of all forms of
          Racial Discrimination. In addition, such legislation, needless
          to say, will also be required to create offences relating to
          hate speech.


     (b)     Taking any other measures that may be necessary to give
          effect to the Convention on the Elimination of all forms of
          Racial Discrimination and the Convention on the Elimination of
          all forms of Discrimination against Women, to the extent that
          these have not been dealt with in this or other relevant
          legislation.


 4.     Establishment of Equality Review Committee


     The Committee urges the Minister to establish the Equality Review
     Committee contemplated in the Bill as speedily as possible, and to
     resource that committee adequately so as to ensure that the useful
     role it may play in deepening our understanding of equality
     legislation and its impact on our society is reinforced.


 5.     Establishment of equality courts


     The Committee further urges the Minister to initiate the
     establishment of the equality courts as soon as possible. A long
     delay in the training of presiding officers and clerks and the
     establishment of these courts will seriously hamper the
     achievement of the objects of the Bill. Furthermore, the areas of
     our society that require the remedies afforded by the Bill are
     primarily the rural areas and people who are disempowered. The
     Minister has been given the power to make regulations to allow for
     people other than attorneys and advocates to appear in court on
     behalf of complainants, in order to represent them. It is vital
     that these and other regulations in respect of access to justice
     are promulgated urgently.


 6.     Ad Hoc Parliamentary Committee on Promotion of Equality


     Parliament is requested to consider the establishment of an ad hoc
     parliamentary committee to oversee the implementation of the Act.
     The role of the committee should be to monitor the progress made
     in implementing the Act and the regulations, and to assess the
     general impact that its implementation has had in various sectors
     of our society. The committee need not meet on an ongoing basis,
     nor should it be a permanent committee of Parliament. It is
     suggested that the committee should meet annually for a short
     period of three to four weeks in order to do its work.


 7.     Audit of laws


     The Cabinet is requested to direct a process of departmental
     auditing of legislation so as to identify laws which may impact on
     equality, in order to eliminate inconsistency, to introduce
     measures which reinforce fairness and equality, and with a view to
     giving effect to the strong pro-active measures to be taken by the
     State and all persons to promote and achieve equality.


 Report to be considered.