National Council of Provinces - 27 June 2001
WEDNESDAY, 27 JUNE 2001 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:04.
The Deputy Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICE OF MOTION
Mrs E N LUBIDLA: Chairperson, I hereby give notice that I shall move at the next sitting of the Council:
That the Council -
(1) notes with great concern the findings of Greenpeace International to the effect that -
(a) the stocks of Patagonian toothfish around South Africa's Prince
Edward and Marion Islands have been fished by poachers to the
point of commercial extinction; and
(b) billions of rands which could have accrued to South Africa have
instead lined the pockets of the owners of private fishing
vessels;
(2) notes that the French and the Australian authorities patrol their sub- Antarctic islands and South Africa has no anti-poaching vessels guarding its own waters;
(3) despite the shortage in patrolling vessels, commends the role played by our Department of Defence by patrolling South African waters; and
(4) recognises the importance of the Convention on the Conservation of Antarctic and Marine Living Resources, CAMLAR, which South Africa has ratified in response to overfishing of endangered species.
SUCCESSFUL SEPARATION OF SIAMESE TWINS AT KING EDWARD VIII HOSPITAL
(Draft Resolution)
Mr P A MATTHEE: Chairperson, I move without notice:
That the Council -
(1) notes that -
(a) the Gazu Siamese twins, Sizwe and Sizani, underwent a successful
six-hour separation operation at King Edward VIII Hospital in
Durban by a team of top specialists headed by Professor Larry
Hadley last week;
(b) the babies have been released from the intensive care unit and
are recovering in the paediatric ward;
(c) it was expected that the twins would make a full recovery and
that, according to Professor Hadley, there was no reason why the
twins would not lead a normal life; and
(d) the operation did not cost the Health Department any additional
funds as the specialists' time and equipment had been donated;
(2) congratulates Professor Hadley, the team of specialists, King Edward VIII Hospital and the medical staff involved on their great medical achievement and sincerely thanks the specialists for donating their time;
(3) wishes that they may be richly blessed for this deed of human kindness; and
(4) wishes the twins a long, normal and happy life.
Motion agreed to in accordance with section 65 of the Constitution.
INITIATIVES BY YOUTH LEAGUES TO FIGHT GANGSTERISM IN SCHOOLS
(Draft Resolution)
Mr P D N MALOYI: Chairperson, I move without notice:
That the Council - (1) congratulates the youth leagues of the African National Congress, UDM, DA and ACDP on their initiatives and plans to eradicate and curb gangsterism in the schools in Cape Town;
(2) expresses the opinion that this is a good sign for the future of the country as the youth are taking it upon themselves to tackle the social issues in the country;
(3) calls upon the leaders of the country to give assistance and support to the initiatives of the youth in being part of building the future of this country; and
(4) notes that this is a promotion of unity in diversity amongst the youth of South Africa, which is a necessary prerequisite considering our divisive past.
[Applause.]
Motion agreed to in accordance with section 65 of the Constitution.
LAUNCH OF LEARNERSHIP PROGRAMME
(Draft Resolution)
Mr M A SULLIMAN: Chairperson, I move without notice:
That the Council -
(1) notes the initiative by the Ministers of Labour and Education in launching the Learnership Programme which -
(a) is designed to replace apprenticeship and to bridge the gap
between trade and profession;
(b) intends to introduce lifelong learning into the labour market;
and
(c) aims to develop and consolidate skills; and
(2) expresses the view that this is a step towards resolving the dilemma faced by South Africans seeking jobs.
Motion agreed to in accordance with section 65 of the Constitution.
CONGRATULATIONS TO PRESIDENT KABILA’S GOVERNMENT ON ITS STANCE ON HUMAN RIGHTS
(Draft Resolution)
Ms S N NTLABATI: Chairperson, I move without notice:
That the Council -
(1) congratulates President Kabila on opening the Human Rights Forum calling for his country to show respect for law and freedom of opinion and calling for the end of human rights abuses in the DRC;
(2) acknowledges his government for ratifying seven International Labour Organisation Conventions including the one banning the worst forms of child labour;
(3) notes that this shows their manifest determination to improve the living conditions of the Congolese people;
(4) further notes that this is an impressive step by an African country, showing its commitment to peace, democracy, stability and respect for human rights; and (5) supports all these initiatives to show the way in which we can make this century an African century.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion?
Ms J L KGOALI: Chairperson, I move as an amendment:
That, in paragraph (1), after President'' to insertJoseph’’.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Does the hon member Ntlabati have any objection to the proposed amendment?
Ms S N NTLABATI: No, Chairperson.
Amendment agreed to in accordance with section 65 of the Constitution.
Motion, as amended, agreed to in accordance with section 65 of the Constitution, namely:
That the Council - (1) congratulates President Kabila on opening the Human Rights Forum calling for his country to show respect for law and freedom of opinion and calling for the end of human rights abuses in the DRC;
(2) acknowledges his government for ratifying seven International Labour Organisation Conventions including the one banning the worst forms of child labour;
(3) notes that this shows their manifest determination to improve the living conditions of the Congolese people;
(4) further notes that this is an impressive step by an African country, showing its commitment to peace, democracy, stability and respect for human rights; and
(5) supports all these initiatives to show the way in which we can make this century an African century.
FARM KILLING AT STUTTERHEIM
(Draft Resolution)
Me C BOTHA: Mnr die Voorsitter, ek stel voor sonder kennisgewing:
Dat die Raad kennis neem -
(1) vir die soveelste maal, van ‘n moord op ‘n plaas - dié keer van mnr en mev Monise wat in Stutterheim met ‘n byl doodgekap is;
(2) dat hul baba ten tyde van die moord saam met hulle in die huis was;
(3) dat hierdie insident waarskynlik geen verband hou met rassisme, armoede, wraak, politieke motiewe of enige ander van die legio redes wat dikwels aangegee word ter verduideliking van ons skrikwekkende vlak van gewelddadige misdaad nie; en
(4) dat dit ‘n weerspieëling is van die morele verval van ons nasie en die onvermoë van die staat om ons teen sulke verval te beskerm; en
(5) dat dit nie sal verbeter as ons aanhou om te konsentreer op die regte van die misdadiger, in plaas daarvan om ons te skaar om die slagoffer, soos in hierdie geval die wesie, baba Monise. (Translation of Afrikaans draft resolution follows.)
[Ms C BOTHA: Mr Chairperson, I move without notice:
That the House notes -
(1) for the umpteenth time, a farm murder, this time of Mr and Mrs Monise, who were axed to death in Stutterheim;
(2) that their baby was at home with them at the time of the murder;
(3) that this incident is probably unrelated to racism, poverty, revenge, political motives or any one of the many reasons put forward in explanation of our alarming level of violent crime; and
(4) that this is a reflection of the moral decay of our nation and the state’s inability to protect us from such decay;
(5) that matters will not improve if we continue to concentrate on the rights of the criminal, instead of taking the side of the victim, which in this case is the little orphan, baby Monise.]
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection?
Mr M V MOOSA: Yes, Chairperson.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! In the light of the objection, the motion may not be proceeded with. The motion without notice will now become notice of a motion.
INFORMATION ON AND EXTENSION OF APPLICATION OF CODE OF ETHICS FOR MEMBERS
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move the draft resolution printed in my name on the Order Paper, as follows:
That the Council resolves -
(1) that the Joint Subcommittee on Ethics and Members’ Interests conduct a review, one year after the promulgation of the Code of Ethics for Members of the Cabinet and Executive Councils;
(2) to refer to the Joint Rules Committee the proposal that Parliament, specifically the Joint Subcommittee on Ethics and Members’ Interests, assume responsibility for the production of an information pamphlet for the general public on the ways in which the public can hold executive members accountable for their conduct, and the kinds of sanctions which may be applied by the relevant executive head and the relevant legislature; and
(3) that Parliament extends the application of the Code to all members of Parliament, with such modifications as may be appropriate, and that such Code be adopted by the Joint Rules Committee of Parliament by the end of the year.
Motion agreed to in accordance with section 65 of the Constitution.
CONSUMER AFFAIRS (UNFAIR BUSINESS PRACTICES) AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The DEPUTY MINISTER OF TRADE AND INDUSTRY: Mr Chairperson and hon members, the consumer affairs committee is established by section 2 of the Act and consists of nine members appointed by the Minister of Trade and Industry. Under the Consumer Affairs Act, the committee is charged with investigating unfair business practices.
During May 1998 the committee, after conducting an informal investigation into the business practices of Omega Trust, resolved to launch a formal investigation under section 8(1)(a) of the Act to determine whether the business practices of Omega Trust constituted what was then called a harmful business practice.
The decision of the committee was challenged and Omega Trust launched urgent proceedings in the High Court in which it sought an order declaring the whole Consumer Affairs Act, or specific provisions thereof, to be unconstitutional and invalid.
On 29 September 2000 the Constitutional Court, having considered the matter, found that section 8(5) of the Act was unconstitutional. This subsection empowers the Minister of Trade and Industry, on the recommendations of the Consumer Affairs Committee, to stay or prevent any unfair business practice under investigation, and to attach money or property relating to any such investigation.
The reason given by the court for the invalidity of the provision is that, while it confers a wide discretion on the Minister, the section does not provide guidance as to the exercise of those powers, nor does it suggest any administrative procedures to be followed in exercising them. The court found that the provision infringes on the right to just administrative action and therefore could not be justified. The court, however, also determined that it would not be in the public interest to simply strike down the provision, thus allowing persons who are under investigation for unfair business practices to continue those practices or dissipate or hide the assets.
The relevant order of the Constitutional Court was therefore suspended for a period of 12 months from the date thereof, to enable Parliament to correct these defects that had resulted in the declaration of invalidity. As a temporary measure, the court gave directions to ensure the administrative fairness of the exercising of these ministerial powers.
The Bill before us is intended to introduce certain amendments to the Consumer Affairs Act of 1988, so as to provide for the questioning of an expert witness by a person who has experience in cross examination, to provide for guidance as to how the Minister of Trade and Industry should exercise his or her powers, to expand the powers of the curator and to repeal certain obsolete provisions.
The amendments will assist the chairperson of the Consumer Affairs Committee and the committee to comply properly with the functions and duties imposed by the Act and will, at the same time, enable the Minister, prior to any investigation or report by the committee, to stay or prevent an unfair business practice pending the final outcome of an investigation by the committee.
Apart from the fact that this amendment is necessary to conform to the Constitutional Court judgment, its insertion is important to ensure that the objects of the principal Act and its application are not frustrated.
The Government believes that the Bill will improve and strengthen consumer protection for the benefit of the community in general and will enable Government to discharge its duties in the most resourceful, effective and cost-efficient manner possible. [Applause.]
Mr M V MOOSA: Chairperson, I want to start off by just underpinning the importance of consumer law. I think that it will be beneficial for both members and whoever is listening to this debate to know that in this country we are beginning to develop a body of law to protect consumers against unfair business practice, to get in line with international best practice on consumerism.
In many countries, particularly in the West - the USA and Europe - consumers are very heavily protected against people who might sell products that are not up to standard - people who develop financial products that might result in losses. Sometimes in this country we also have such instances, for example the pyramid schemes.
Consumer law is very important. One often has very clever, innovative businesspeople who are sometimes crooked; they put together schemes that deceive those who are less in the know, for example they take the savings of old-age pensioners. There have been many instances in this country - and internationally, as well - where consumers have lost huge sums of money. Sometimes consumers bought products that affected their health. Sometimes consumers purchased products that did not do the things that the person who sold them claimed that they could do.
It is very important in any country to have consumer law to protect consumers. Of course, in our country we are busy developing a body of law and practices that increase protection for consumers. That is why this is a section 76 power. Presumably, the provincial legislatures, who are closest to consumers, will keep an eye on the kind of business practices that are taking place in their provinces. At provincial level they will ensure that whenever a business practice is not acceptable or is harmful to consumers, they will take some form of action. Many provinces have their own consumer laws to protect consumers. These laws are substantially in line with the national law.
The Consumer Affairs (Unfair Business Practices) Act which we are looking at today has, from time to time, been utilised by the Minister to declare certain practices as harmful. The Act contains a power through which the Minister can, from time to time, actually do these kinds of things. Recently, when the Minister did that, a company called Omega Trust Power Marketing CC took him to court, saying that he had not exercised his power within the context of what we would broadly call just administrative action. They went to the High Court and won the case.
The Minister appealed in the Constitutional Court and they, as the Deputy Minister has correctly indicated, upheld the judgment of Judge van Dijkhorst. The court said that that particular power that Parliament has given to the Minister is wide and vague. The courts did not want to remove this power. If they removed this power, there would be no mechanism to protect consumers. The court sent this law back to Parliament and gave us until 30 September to fix it; if by that date it was still not fixed, then the provision would be unlawful. From that point onwards, consumers would not be protected.
As a result of that, the department and its legal advisers put together an amending Bill and tabled it in Parliament. The Bill started here in the NCOP, and has not yet gone to the National Assembly.
One of the provisions in the Bill, clause 8(a) that was introduced, sought to require the Minister to go to court every time he or she wishes to declare a business practice harmful, so that they should not have the kind of problems they had with the Omega case. When it came to Parliament, we had a look at this and, as committees - we were sitting jointly with the National Assembly committee - we felt that this would be some kind of abdication of Government responsibility.
If we expect Government to go to court every time it wants to protect the interest of consumers, we would be binding its hands. It is a lengthy, expensive and difficult process every time we want to declare something as a harmful business practice.
Sometimes a matter is very urgent and we need Government to act fast. If there is a pyramid scheme that has taken money from many pensioners through some clever, crooked businessperson and Government indicates that it intends stepping in to protect consumers, that person or company could move the money overseas into a Swiss bank account. The consumers’ or pensioners’ money could be lost forever. This has happened before in this country, as people know.
We were very concerned with the way the Bill was drafted. One of the things we said was that we as Parliament do not expect Government to approach courts every time they wish to protect consumers. Government has a responsibility to protect consumers, and we must give the Minister that power.
If the court feels that the Minister’s power is vague and unfettered, then we must clarify that in the legislation so that when the Minister does exercise the power, he or she should do that within the context of what we know as just administrative action. That way the next time the Minister declares a business practice as harmful, nobody can go to court and say that the Minister is exercising his or her power without just administrative action or without making sure that the action taken is broadly legal in terms of our Constitution.
So, together with the department, we drafted very extensive amendments to this Bill. The primary amendment is in section 8 (a), where we have brought the power to declare a business practice as harmful back into the hands of the Minister. In other words, we have given the power to declare a business practice as harmful back to the Government.
In doing that, we have created a number of mechanisms which will prevent anybody from attacking the legislation as being unjust when the Minister exercises this discretion. We have ensured that the Minister may, in the Gazette, declare that a particular practice has been declared harmful for a temporary period of six months, while the main investigation is being completed.
When doing so, the Minister has the power to appoint a curator to look after the assets of consumers which that business has been taking care of, if the Minister is of the view that it might run away with such assets.
When the Minister exercises this power, he will do so after having been satisfied that the practice in question amounts to, or is likely to amount to, an unfair business practice; that there is no alternative remedy; that the prospect of harm to consumers outweighs the potential prejudice to the business that is being asked not to operate; and that if the Minister does not act quickly, that person has the intention of concealing or dissipating assets that belong to the consumer.
We have amended the Bill very substantially. We have given the Minister the power that Omega said he or she cannot have because it is unlawful, but we have given it within the context of just administrative action. The Minister can step in and declare a business practice as harmful without having to go to court, and so forth.
But there are some instances where the Minister may still want to go to court, so we have made sure that in drafting this legislation we do not say that the intention of the legislature is that the Minister cannot go to court. All of us can go to court. We all have the right to go and bring an interdict against anybody who is harming our interests or human rights as consumers or individuals, whatever the case may be. All of us have that right and so does the Minister.
We did not want this legislation to imply that the Minister did not have that right, so we drafted another clause, clause 8 (b), which says that, notwithstanding clause 8 (a), which gives the Minister the right to declare business practices as harmful …
The CHAIRPERSON OF THE NCOP: Order! Hon member, I am afraid your time has expired.
Mr M V MOOSA: Chairperson, I just want to say that we have changed the Bill and we hope that the House and provinces will support it. The other members will explain the details. [Applause.]
Mnr J L THERON: Mevrou die Voorsitter, agb Adjunkminister en kollegas, hierdie is uiters belangrike wetgewing vir verbruikers daar buite, en daarom het ons in die gesamentlike komitees baie aandag aan hierdie wetgewing gegee, en die provinsies het ook. Daarom is dit belangrik dat ons hierdie wetgewing in die Parlement deurgevoer kry.
Die Konstitusionele Hof het op 19 September 2000 bevind dat artikel 8(5) van die Wet op skadelike Sakepraktyke, Wet 71 van 1988, ongrondwetlik is. Gedurende Mei 1999 is verskeie amendemente aan hierdie wet aangebring en sedert 14 Mei 1999 is die wet geadministreer deur die Verbruikersakekomitee, ‘n statutêre liggaam in die Departement van Handel en Nywerheid.
Die rede wat die Konstitusionele Hof verskaf het, is dat terwyl die wet wye diskresionêre magte aan die Minister verskaf, die wet nie leiding verskaf oor hoe hierdie magte uitgeoefen moet word nie. Verder verskaf die wet nie administratiewe prosedures om hierdie magte van die Minister uit te voer nie. Die Konstitusionele Hof het dus bevind dat die voorskrifte inbreuk maak op die reg tot billike administratiewe optrede en dat dit dus nie geregverdig kan word nie.
Die gesamentlike komitees oor ekonomiese sake het by verskeie geleenthede vergader en baie belangrike veranderings is aan die wet voorgestel. Daar was goeie samewerking van al die politieke partye wat voorstelle ter verbetering van die wet gedoen het. Al die betrokke partye het gevoel dat dit noodsaaklik is dat die wet reggestel word om verbruikers teen onbillike en skadelike sakepraktyke te beskerm.
Aan die ander kant moet die wet ook duidelik aandui hoe die Minister sy magte moet uitoefen en moet verseker word dat regverdige administratiewe prosedures voorgeskryf word sodat billike administratiewe optrede sal volg. Die definisie van onbillike sakepraktyke is uiters wyd in die wet gestel. Dit is enige sakepraktyk wat direk of indirek die effek het of moontlik kan hê om die verhoudinge tussen besighede en verbruikers skade te berokken, enige verbruiker onredelik te benadeel, enige verbruiker te mislei of enige verbruiker onredelik te affekteer.
Die belangrikste veranderings wat deur die onderskeie komitees in die provinsies in die wet aangebring word, is in die voorgestelde artikels 8A en 8B van die wet, soos ons reeds gehoor het. In die voorgestelde artikel 8A van die wet word sekere ondersoeke voorgeskryf wat deur die Verbruikersakekomitee gedoen kan word. Ter bereiking van die oogmerke van die wet word wye ondersoekmagte aan die komitee verleen.
Die komitee kan twee breë tipes ondersoeke doen, naamlik spesifieke en algemene ondersoeke. Onder spesifieke ondersoeke is daar weer twee tipes ondersoeke, naamlik informele ondersoeke ingevolge artikel 4(1)(c) van die wet, en formele ondersoeke ingevolge artikel 8(1)(a) van die wet. Duidelike voorskrifte vir hierdie ondersoeke word in die wet verskaf.
Die informele ondersoeke is vooraf ondersoeke om inligting in te samel vir moontlike verdere optrede. Sou die ondersoekbeamptes van die komitee gedurende ‘n ondersoek bevind dat daar ‘n onbillike sakepraktyk bestaan of mag ontstaan, sal die komitee dienooreenkomstig ingelig word. Die komitee kan dan besluit om te poog om die onbillike sakepraktyk ingevolge artikel 9 van die wet stop te sit.
Indien hierdie stap nie suksesvol is nie, sal die komitee noodwendig ingevolge artikel 8(1)(a) van die wet om ‘n formele ondersoek aansoek doen. Kennis van ‘n formele ondersoek ingevolge artikel 8(1)(a) van die wet word in die Staatskoerant gepubliseer, en die voorsitter van die komitee reik ook ‘n persverklaring oor so ‘n voorgenome formele ondersoek uit.
Sou die komitee ná so ‘n ondersoek bevind dat ‘n onbillike sakepraktyk bestaan, sal regstellende stappe by die Minister aanbeveel word. Die magte van die Minister word in artikel 12 van die wet uiteengesit.
Die fokus van algemene ondersoeke ingevolge artikel 8(1)(b) van die wet, aan die ander kant, is enige sakepraktyk wat in die algemeen toegepas word vir, of verbind is aan, die skepping van ‘n onbillike sakepraktyk. Die bevindings van die Minister is toepasbaar op alle individue en entiteite wat betrokke is by sulke bepaalde sakepraktyke.
Sedert 1988 het die komitee 11 sulke algemene ondersoeke volgens artikel 8(1)(b) van die wet gedoen en tans is twee sulke ondersoeke aan die gang. Die bevindinge van die Minister volgens hierdie artikel word ook in die Staatskoerant gepubliseer. Oortredinge van sulke bevindinge van die Minister vorm kriminele oortredinge en is onderworpe aan die straf soos uiteengesit in artikel 2(1)(1) van die wet.
‘n Baie belangrike klouse van die konsepwet waarop ook gelet moet word, is klousule 8(b) van die wetsontwerp. Hiervolgens mag die Minister ‘n versoek tot ‘n hoërhof rig om ‘n interdik om ‘n besigheidspraktyk stop te sit of enige ander regstellende maatreël verkry in afwagting van die uitslag van die Verbruikersakekomitee. Hierdie gedeelte van die wetsontwerp is natuurlik noodsaaklik waar die Minister in spesifieke gevalle dringend moet verhoed dat verbruikers verder benadeel word en dat fondse wat so bekom word, verdoesel of uit die land uitgeneem word. Hierdie maatreëls is noodsaaklik sodat doeltreffende tydige beskerming aan verbruikers verleen kan word, en sodat verbruikers nie onregverdig van hul geld beroof word nie.
Verbruikersbeskerming en die voorkoming van onbillike sakepraktyke is vir die Gautengprovinsie ‘n prioriteitsaak en daarom het ons aktief meegewerk aan die formulering en opstel van hierdie nuwe wetgewing. Ons wil daarom ‘n beroep doen op die Minister - en ons vertrou dat die Adjunkminister dit sal oordra - om te verseker dat goed opgeleide personeel in die Verbruikersakekomitee aangestel sal word. Dit is uiters noodsaaklik dat hierdie amptenare die belange van verbruikers effektief moet beskerm, en daarom is bekwame senior personeel noodsaaklik om hierdie belangrike take te verrig. Al Gauteng se amendemente is aanvaar en ons steun dus die beginsel en besonderheide van hierdie nuwe wetsontwerp. [Applous.] (Translation of Afrikaans speech follows.)
[Mr J L THERON: Madam Chairperson, hon Deputy Minister and colleagues, this is extremely important legislation for consumers out there, and that is why we devoted a great deal of attention to it in the joint committees, as did the provinces. It is therefore important that we succeed in passing this legislation in Parliament.
The Constitutional Court found on 19 September 2000 that section 8(5) of the Harmful Business Practices Act, Act 71 of 1988, is unconstitutional. During May 1999 various amendments were made to this Act and since 14 May 1999 the Act has been administrated by the Consumer Affairs Committee, a statutory body in the Department of Trade and Industry.
The reason given by the Constitutional Court is that while the Act furnished the Minister with broad discretionary powers, the Act does not state how these powers should be put into practice. The Act furthermore does not provide administrative measures for putting into practice these powers of the Minister. The Constitutional Court therefore found that the prescriptions infringe on the right to fair administrative action and therefore cannot be justified.
The joint committees on economic affairs met on several occasions and very important changes to the Act were proposed. There was good co-operation by all the political parties that made proposals in respect of improving the Act. All the relevant parties felt that it was essential for the Act to be rectified to protect consumers against unfair and harmful business practices.
On the other hand the Act should also indicate how the Minister should exercise his powers and ensure that fair administrative procedures are prescribed so that fair administrative action would follow. The definition of harmful business practices is extremely broad in the Act. This is any business practice which, directly or indirectly, has or is likely to have the effect of harming the relations between businesses and consumers, unreasonably prejudicing any consumer, deceiving or unreasonably affecting any consumer.
The important changes that are made to the Act by the various committees in the provinces are in the proposed clauses 8A and 8B of the Bill, as we have already heard. In the proposed clause 8A of the Bill certain investigations are prescribed that could be undertaken by the Consumer Affairs Committee. To achieve the objectives of the Act, the committee is furnished with broad investigatory powers.
The committee can undertake two kinds of broad investigation, namely specific and general investigations. Under specific investigations, there are again two kinds of investigations, namely informal investigations, in terms of section 4(1)(c) of the Act, and formal investigations, in terms of section 8(1)(a) of the Act. Clear prescriptions for these investigations are provided in the Act.
The informal investigations are prior investigations to collect information for further possible action. If the investigating officials of the committee should find during the investigation that there is a harmful business practice, or that one may be established, the committee will be informed accordingly. The committee may then decide to stop the harmful business practice in terms of section 9 of the Act.
If this step is unsuccessful, the committee will necessarily, in terms of section 8(1)(a) of the Act, apply for a formal investigation. Knowledge of a formal investigation in terms of section 8(1)(a) of the Act is published in the Gazette, and the chairperson of the committee also issues a press statement in respect of such proposed formal investigation.
If the committee were to find, after such investigation, that there was an unfair business practice, rectifying steps would be recommended by the Minister. The powers of the Minister are expounded in section 12 of the Act.
The focus of general investigations, in terms of section 8(1)(b) of the Act, on the other hand, is any business practice that is applied for in general or is connected with the establishment of an unfair business practice. The findings of the Minister are applicable to all individuals and entities that are involved in such specified business practices.
Since 1988 the committee has undertaken 11 such general investigations in terms of section 8(1)(b), and at present there are two such investigations in progress. The findings of the Minister in terms of this section are also published in the Gazette. Transgressions of such findings of the Minister constitute criminal offences and are subject to the penalty as explained in section 2(1)(1) of the Act.
A very important clause of the draft Bill that should also be noted is clause 8B of the Bill. In terms of this provision the Minister may request the High Court for an interdict to make an end to a business practice or to obtain any other rectifying measure in anticipation of the results of the Consumer Affairs Committee. This part of the Bill is crucial, of course, where the Minister must prevent, urgently in some cases, that consumers are further prejudiced and that funds obtained in this manner are concealed or taken out of the country. These measures are essential so that consumers may be afforded effective, timeous protection, and so that consumers are not unfairly robbed of their money.
The Gauteng province regards consumer protection and the prevention of unfair business practices as priority matters and that is why we co- operated actively in formulating and drafting this new legislation. We therefore want to appeal to the Minister - and we trust that the Deputy Minister will convey this - to ensure that well trained staff will be appointed to the Consumer Affairs Committee. It is absolutely essential that these officials should actively protect the interests of consumers, and that is why it is essential that competent senior personnel perform these important tasks. All Gauteng’s amendments have been adopted and we therefore support the principle and detail of this new Bill. [Applause.]]
Mr K D S DURR: Chairperson, it is a particular pleasure for me today because on the day that I required very little time I have been given eight minutes. It shows one that all good things come to those that wait. [Laughter.] We support the Bill that is before the House, which, if anything, strengthens consumer protection. And I do not want to elucidate upon the excellent speech of our chairman and my colleagues, who have already set out the principle of the Bill.
However, I might just report to the House that it was the feeling of the provincial standing committee of the Western Cape on economic affairs, that the degree of effective consumer protection is insufficient. In spite of the fact that we have this Bill - and it is a good Bill, let me say - we still feel that the consumer protection is simply insufficient.
And if we look at Schedule 4, part A of the national Constitution, it provides for consumer protection as a national and provincial competence. The fact of the matter is that if one looks at the other provincial competencies - and I will not hold up the House by reading them all - one will find ones like health services, housing, population, pollution control, traffic regulation, tourism, trade and others.
The drafters of the Constitution put consumer affairs along with those other important competencies. They must have had in their minds at the time that this was something that needed attention and had the same priority as many of these other competencies.
Yet we feel that at provincial level - and I am not pointing a finger at the Minister or anybody else - the time has arrived really to look very hard at that provincial competence.
We feel that the most effective consumer protection would come from accessible consumer courts where justice could be obtained swiftly and inexpensively, rather like in the small claims court. Some of the conditions of this Bill, for example, could be tested in such a court.
The national Constitution recognises our various courts plus -
… any other court established or recognised in terms of an Act of Parliament, including any court of a status similar to the High Courts or the magistrates’ court.
It appears - and I have taken legal opinion on this - that while the provinces have the provincial legislative competence to legislate for consumer protection, subject to section 146, there is no provincial competence to establish courts for hearing matters regarding consumer protection. It is for that reason that I raise the matter here rather than at provincial level.
There can be - and, indeed, there are - such courts at provincial level, but they must be initiated at national level. Since the primary custodians of consumer affairs are, I believe, the Department of Trade and Industry, I have brought this to the attention of the Deputy Minister so that she can possibly give it some thought in the time ahead.
The question arises as to how local traffic courts, such as those operating in Cape Town, obtained their authority. While the court sits in the Cape Town City Hall, the magistrate presiding would be appointed by the national Minister for Justice and Constitutional Development after conferring with the Magistrates’ Commission. A similar situation prevails with the small claims court.
A consumer court would fit, I would have thought, into the same sort of mould. It is no good us having this wonderful legislation - and our legislation is good; it has been given more teeth and is now in line with the Constitutional Court guidance we were given when there was an appeal - when the fact of the matter is that the public in South Africa, particularly the unsophisticated people, are being exploited on a huge scale. We know it, and we see it happening every day in the newspapers. A recourse that is accessible, or a process by which they can access justice and defend their interests cheaply and easily, is simply not available to them.
In the meantime, this legislation makes provision for decentralised committees of the consumer council, and I would say that this is really something, because we need to take those committees to all of the major centres of our country where they do not exist already and make the public aware of their existence, so that they can access them when they have particular problems. Otherwise the undue exploitation will continue.
The problem is, as members would know, that although the Minister has the primary function to protect the consumer, it is also true that consumer protection lies diffused across many departments, parastatals, regulators and so on. Sometimes, if I may say so, consumer protection lies in the wrong place.
For example, we still believe that the public would be better protected from microlenders who continue to exploit the public on a terrible scale. This is not a reflection on the department at all, but the fact is that the public would be better protected if the supervisory authority were not the Department of Trade and Industry, but the Finanacial Services Board.
The Financial Services Board are much better able to police a financial institution than the DTI - and I say that with absolute respect and admiration for the DTI and its competence. This is clearly a financial matter which should definitely be with the Financial Services Board. Until that happens, we are going to continue having these exploiters. We have spoken about them, we have railed against them; we have raised the issue in this House; and we have moved motions, but still the public is being exploited by these people.
I mentioned before that I can still see the face of a man I knew intimately, standing in a queue. This man was a shepherd, a simple, godly and decent man. I asked him what on earth he was doing there, and he told me that he needed to raise some money because his daughter was getting married and he did not know what else he could do. I saved him from the jaws of despair. Those people would have taken everything he had. We simply cannot allow this to continue.
With those thoughts, I would like the Deputy Minister to give this matter her consideration. We will also be taking this up in the other place, ie the Western Cape government, to see how we can examine or push the matter from that side. We leave the Deputy Minister with those few thoughts, and we have great pleasure in supporting this measure. [Applause.]
Mr S L E FENYANE: Chairperson, it is a pleasure to see you presiding over proceedings in this House. We have missed you for quite some time now. [Laughter.]
I do not know why the hon members are laughing. I thought this was just a short joke!
The CHAIRPERSON OF THE NCOP: I suspect that members are surprised, Mr Fenyane.
Mr S L E FENYANE: Chairperson, I am saying this because every time when I gave a speech, you were not present. I had wanted to deliver a speech in your presence. When I was properly prepared, you were not here. It is such a pity! [Laughter.]
I rise to support the Bill …
The CHAIRPERSON OF THE NCOP: Order! Mr Moosa?
Mr M V MOOSA: Chairperson, I would like to know if Mr Fenyane will take a question? Is it an indictment on him or on you that he has not seen you in the Chair?
The CHAIRPERSON OF THE NCOP: I think, Mr Fenyane, I must have your answer to that question, for my protection! [Laughter.]
Mr S L E FENYANE: Chairperson, we will make time to talk about this outside the Chamber.
The CHAIRPERSON OF THE NCOP: I think it has more to do with Mr Fenyane’s speeches! Please proceed.
Mr S L E FENYANE: Chairperson, I rise to support the Bill on behalf of the Northern Province. The Northern Province, in particular, feels that the passing of this Bill is long overdue, since it is experiencing endemic problems regarding the prevalence of such shoddy business practices within its periphery.
If one were to travel to Messina and its neighbouring villages today, one would find a holding farm whose name is known to the Department of Labour. This farm is harbouring illegal immigrants who have been gathered by the farm owner as ready-made, cheap-labour capital for utilisation on neighbouring farms. They are also kept for businesses around the area that may at any time wish to make use of the farm’s cheap services.
In the process, South African nationals are denied the opportunity to be employed in businesses within that neighbourhood. Ironically, these South African nationals are expected to buy products of such farming businesses. I am informed that white farmers and businessmen in that neighbourhood argue that South African black nationals are lazy to work, especially when it is hot. Accordingly, they argue, illegal immigrants are a perfect substitute.
This practice clearly constitutes an unfair business practice, since it is likely to harm relations between white farmers and the black masses in that area. It also increases the incidents of xenophobia in the province and the country.
In the province, we also have blinking, potbellied blighters who operate convoluted microlending schemes that have virtually held many households to ransom, since such households are indebted to these schemes for life. I know of incidents where many professionals have been clinically rendered bankrupt, precisely because they were unable to repay their debts with these schemes.
In the town where I reside we call these schemes ``kamela’’, symbolically indicating that if a person takes a ride on the back of a camel, he would not alight easily since any attempt to jump off a camel is equivalent to violent crashing. I do not have any doubt in my mind that many microlending schemes perfectly fit the letter and spirit of a definition of an unfair business practice.
It is interesting to note that many furniture shops and other outlets have now joined the fray. They have opened business units within their normal operations wherein they operate these ``kamela’’ schemes.
If a customer were to plead poverty, they would offer such a customer a facility to lend him or her money. Thereafter, that customer would borrow moneys from that unit and purchase goods from the same business. This customer would then owe money to both the ``kamela’’ scheme unit and the core business for life.
Over and above that, the Northern Province is infested with a proliferation
of Mochina'' operators.Mochina’’ is a poor relative of the lotteries:
it is a scheme wherein one chooses numbers, with the hope of winning a
promised fortune - lo and behold, such a fortune is never realised.
This, in my opinion, constitutes an unfair business practice. I am appealing to department to hunt down these criminals who masquerade as business people, and bring them to book. I do not know why these individuals always deem it necessary to target the Northern Province. Maybe the citizens of this province are victims of their own kindness and humility. The province is the most peaceful in the country, and unscrupulous persons take advantage of that and terrorise it with impunity.
Occasionally, pyramid scheme operators create ambitious promises of quick material returns to unsuspecting investors in the province. They then milk them dry and thereafter disappear, only to reappear elsewhere, paying the first investors huge sums of moneys. And just when everyone, rightly or wrongly, believes that this time the operators mean business, they again milk the investors dry of their hard-earned moneys and then disappear into thin air. It is our hope that this Bill will put an end to this business chicanery. Let me now address the salient sections of the Bill in front of us. Section 8 says that if the Consumer Affairs Committee suspects that one is operating an unfair business practice, it will first inform the person so suspected of its intention to recommend to the Minister to prohibit that practice, pending investigations.
Secondly, the suspect will be given the opportunity to state his or her case; the suspect may bring along an expert to answer questions on his or her behalf. Thirdly, the Minister will publish in the Gazette the decision to prohibit that business from operating, pending investigations. Lastly, the suspect may appeal, after receiving a letter outlining all the processes from the Minister.
The Bill explains all the steps that should be taken by the Minister, who is expected to act with circumspection throughout, so that no one should feel that procedural justice has been undermined or violated. These clauses are exceptionally crafted and justifiable in terms of the law of general application.
The Bill does not give the Minister powers to act unilaterally and suspend any business as he or she wishes. The Minister does everything after consultations, and to put a cherry on top of this, he or she may apply for an interdict from a court of law. This behoves the regime of the separation of powers perfectly. No one can ever charge the Minister of corruption or abuse of power.
If I still have some minutes left, I would like to define the word ``corruption’’ as seen in the eyes of economists. Economists believe that corruption is the application of a monopoly plus discretion, minus accountability. They believe that it is monopoly, because when a person applies corruption, he does not have competition. He uses discretion, but does not have fixed rules and does not have to apply to anyone.
This Bill, therefore, does not give the Minister any chance whatsoever to practice corruption.
The CHAIRPERSON OF THE NCOP: Order! Your time has expired. I hope you noticed that I sat throughout your speech! [Applause.]
The DEPUTY MINISTER OF TRADE AND INDUSTRY: Chairperson, I thank all the hon members for their contribution and unanimous support for the Bill. I appreciate the vigilance of the committee dealing with this matter because, indeed, when the Bill was initially introduced, it restricted the Minister from approaching the court of law for an interdict to suspend a harmful business practice.
The committee was strongly against this approach, arguing that it may, in given circumstances, be time-consuming, resulting in prejudice to consumers.
The Bill, as it stands, gives the Minister the Gazette route and, where necessary, also enables the Minister to approach consumer courts. I think the Bill strikes a very good balance between the protection of the rights of businesspeople on the one hand, and the safety and interests of the consumers on the other.
I will just comment briefly on the concerns and issues that were raised by hon members. I can confirm to Mr Theron that, indeed, only well-trained and qualified personnel will be part of the Consumer Affairs Committee. Their selection is an open process that is carried out through calling for nominations in the media, whereupon the Minister and I will sit down, go through the shortlist and decide who are the people best qualified to be part of the committee. We assure hon members that we will continue to do so. The committee has people who have served it in the past and are quite experienced on issues of consumer protection.
I agree with Mr Durr that the consumer protection that is in place is not sufficient. I also appreciate that a lot of the education and information targeting consumers is done by NGOs, which we welcome greatly and support. I can also say that we are busy with a consumer policy document which we will be ready for release to the public as soon as we have consulted our colleagues from the other departments.
On the issue of consumer courts, Gauteng has set up its own and, if I heard the hon member correctly, that court might not be constitutional. I think that remains to be investigated. But I agree with him that decentralised consumer affairs committees is something that should happen, and it is the provinces that are supposed to take that up. The problem they have is that they do not have sufficient resources for that, and consumer monitoring is a very difficult process that requires resources.
I am not sure about having a problem with microlenders being housed under the Federation of Small Businesses. The DTI has set up a Micro Finance Regulatory Council to look after the interests of people who borrow money, so that these microlenders can be registered and those that charge interest that is not in accordance with the law can be taken to task. A few cases have been investigated and some microlenders are being prosecuted.
Finally, I am just wondering if Mr Durr ended up lending money to the poor man for his daughter’s wedding, and at what rate of interest? [Laughter.]
I have noted Mr Fenyane’s concerns about the schemes in Messina and the other areas. Mtshaela sounded like a pyramid scheme to me and, indeed, when schemes like that are reported to the Consumer Affairs Committee, they are investigated and action is taken.
Overall, I thank hon members for supporting the Bill. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 65 of the Constitution (Eastern Cape dissenting).
SUPREME COURT DECREE, 1990 (CISKEI) AMENDMENT BILL
(Consideration of Bill and of Report of Select Committee on Security and Constitutional Affairs thereon)
Mr J L MAHLANGU: Madam Chair, the Bill before the House emanates from a request by the President of the Bisho High Court, Mr Justice Pickard, to attend urgently to the shortage of accommodation being experienced by the said court.
The bench of this court consists of five judges, including Judge Pickard himself, but only three courts are available - five judges, three courts. Judge Pickard is also the President of the special tribunal established in terms of the Special Investigating Units and Special Tribunals Act of 1996, which is seated in East London and is equipped with excellent facilities, ie numerous offices and three modern courtrooms. These facilities are underutilised.
As Bisho and East London are close to each other, they could easily utilise those courtrooms when necessary and appropriate in order to address the courtroom problem in Bisho.
However, the Bisho High Court is still functioning under the Ciskei Supreme Court Decree, 1990 in terms of which the Judge President of that court may, if he or she deems it expedient, direct that the court sit in any other place in what is now known as the former Republic of Ciskei.
As it is common cause that the present superior courts’ structure and the legislation pertaining thereto are not in line with the model envisaged by the current Constitution, it must therefore necessarily be comprehensively rationalised through new legislation. We would ordinarily not be looking at addressing practical problems arising from this state of affairs on a piecemeal basis, ie through amendments to legislation which is clearly outdated and is about to be repealed by Parliament.
However, it has also become clear that such new, comprehensive legislation will not be passed within the near future. With regards to Judge Pickard’s problem of accommodation, the choice is therefore that we maintain the unsatisfactory status quo until the rationalisation is completed or alternatively engage in the building of new courts, notwithstanding the fact that such a step may turn into a fruitless expenditure once the rationalisation is achieved.
The third option is to amend the Supreme Court Decree, 1990 to enable the
Bisho Court to utilise the underutilised facilities of the special tribunal
in East London.
The view is held that the appropriate course of action would be to amend
the said decree as a temporary measure, in order to enable the Bisho Court
to hold sittings in East London. The Bill purports to amend section 4(2) of
the decree by replacing the word Republic'' with the wordsof the
province of the Eastern Cape’’, referred to in section 103 of the
Constitution of the Republic of South Africa.
I would also like to indicate to the House that the amendment before the House does not alter the area of jurisdiction of the Bisho Court: it remains as it is until rationalisation does take place. The Bill was put before the committee and all members of the committee, all parties, agreed to this amendment.
I therefore move that the House adopts the amendment as proposed. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution.
CRIMINAL PROCEDURE AMENDMENT BILL
(Consideration of Bill and of Report of Select Committee on Security and Constitutional Affairs thereon)
Mr J L MAHLANGU: Chairperson, with regard to the Criminal Procedure Bill, the amendment serving before this House was made necessary by the decision of the High Court in the case of one young man on 31 March 2001. In terms of this case it was ruled that it was illegal to allow retired teachers to act as intermediaries for children in a court.
In order to understand the reason for this amendment, it is necessary to briefly sketch the background which necessitated this amendment. In terms of section 170A of the Criminal Procedure Act, a court may appoint a competent person to act as an intermediary for a witness under the age of 18, if the witness is likely to be subjected to undue mental stress or suffering when testifying in criminal proceedings.
This section was inserted into the Act specifically to protect the interests of young children who have to testify in sensitive cases such as rape, indecent assault and related incidents.
Since then a practice developed in terms of which mainly retired teachers were used to act as intermediaries. Retired teachers were used because actively working teachers were not always available for court duties, and because of the fear that pupils would miss a school day as a result of the absence of a fully employed teacher, working teacher or actively working teacher.
In terms of Government Notice No 360 of 28 February 1997, one of the categories of persons who are competent to act as intermediaries is that of educators. The Educators’ Employment Act of 1994 was, however, repealed by the Employment of Educators Act of 1988. The 1998 Act states that an educator must, amongst others, be ``appointed in a post.’’ In other words, the educator must be employed by the relevant department, in this case the Department of Education. The implication of this definition is that it excludes former or retired teachers, which means they are therefore not competent to be appointed as intermediaries.
The High Court in the case before it acknowledged that its judgment would have unpalatable consequences. The judgment has created a loophole through which scores of convicted child rapists and molesters can now take their case on appeal. This could result either in their acquittal or orders that the trial be held again. This takes us back to the very first problem that we have been trying to address, and would mean that the victims would have to go through the ordeal of testifying again.
The Bill now before this House therefore aims to amend section 170A of the Criminal Procedure Act in order to determine a procedure to be followed by a court when it appears that evidence has been presented through an intermediary who, although appointed as an intermediary in good faith, was not competent to be appointed as such intermediary.
This Bill seeks to make provision that such evidence given shall not be inadmissible solely on the account of the fact that the intermediary did not qualify to be appointed as such when he or she was testifying as an intermediary.
The amendment will ensure that justice is upheld by not releasing molesters and rapists who have been found guilty. It deserves, I would believe, our unqualified support. There is general support for the Bill from all parties, and I am sure my colleagues in the committee will make statements to that effect.
I could also indicate that this Bill, as introduced by the committee, is spearheaded by the Select Committee on Security and Constitutional Affairs in the NCOP and the Portfolio Committee on Justice in the National Assembly. The amendment does not emanate from the department, but from the committee.
I would appeal to all members to support it. [Applause.]
Debate concluded.
Declarations of vote:
Mr L G LEVER: Chairperson, the necessity of this amendment arises from the manner in which the hon the Minister drafted and promulgated the notice in terms of section 170 (a) of Criminal Procedure Act. This resulted in retired educators not being competent to act as intermediaries to protect vulnerable victims of abuse, such as abused children or rape survivors under 18 years old. If we had not acted in this way, a number of trials might have been set aside on purely technical grounds.
These victims of crime go through secondary trauma every time they have to recount the details of the abuse they have suffered. It would have been ironic if a section designed to protect victims from secondary trauma failed them. They would have had to find the strength to testify again.
At the same time we are obliged to see that justice is done. We believe that the correct balance has been achieved by these amendments. For these reasons we will support the amendments set out in the Bill.
Mnr P A MATTHEE: Voorsitter, namens die Nuwe NP wil ek ‘n stemverklaring ter ondersteuning van dié wetsontwerp doen.
Die saak waarna my agb kollegas verwys het, Staat vs Bongani, sou ‘n uiters nadelige uitwerking gehad het op die beduidende getal sake wat tans gedeeltelik verhoor is. In die Wes-Kaap alleen is daar tans 46 deelsverhoorde sake. Regoor die land is daar blykbaar honderde sulke sake.
In die verlede sou kwesbare of jong getuies die trauma moes herleef deur òf self òf deur ‘n tussenganger te getuig. Dié wetsontwerp maak voorsiening vir prosedure met sulke gevalle. Hoewel ‘n mens in normale omstandighede nie retrospektiewe wetgewing sou ondersteun nie, is dit in dié geval uiters wenslik dat die wetgewing retrospektief van toepassing gemaak word. Dit sal voorsiening maak vir alle deelsverhoorde sake.
Ons steun die wetgewing ten volle. (Translation of Afrikaans speech follows.) [Mr P A MATTHEE: Chairman, on behalf of the New NP I would like to make a declaration of vote in support of the Bill.
The court case, State v Bongani, referred to by my hon colleagues, would have had a severely detrimental effect on the considerable number of court cases that are currently partly heard. In the Western Cape alone there are 46 partly heard court cases. Throughout the country there are apparently hundreds such court cases.
In the past vulnerable or young witnesses would have relived the trauma when giving evidence, either personally or by means of a mediator. This Bill makes provision for procedure in such cases.
Although one would in normal circumstances not support legislation retrospectively, in this case, however, it is very desirable that the legislation should be applied retrospectively. This will provide for all partly heard court cases.
We fully support the legislation.]
Mr M E SURTY: Chairperson, perhaps it is important for me to correct what has been raised by Mr Lever. He laid the blame for the error at the feet of the Minister. What actually occurred here - and perhaps he should look at the legislation - is that the anomaly arose as a result of the fact that the education legislation was amended to replace the provision in the old legislation. The definition, in terms of that legislation, referred to educators only post 1994.
This meant that an amendment had to be sought through the Department of Justice. The department did so by way of a promulgation, but the promulgation could not have retrospective effect. Consequently, in order to give effect to those matters that have been heard in the past and are in this particular anomalous situation, it was important that we amend this legislation.
So, certainly, no blame can be attributed to the Minister in terms of this. It occurred directly as a result of a technical difficulty that was encountered through the amendment of education legislation. The ANC will, obviously, support the Bill, as we recognise the urgency of this matter. I just thought that the correct version should be put to this House. [Applause.]
Bill agreed to in accordance with section 75 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON ECONOMIC AFFAIRS - PRIVILEGES AND IMMUNITIES OF INTERNATIONAL ATOMIC ENERGY AGENCY AGREEMENT
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON ECONOMIC AFFAIRS - UN
PRIVILEGES AND IMMUNITIES CONVENTION
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON ECONOMIC AFFAIRS -
SPECIALISED AGENCIES' PRIVILEGES AND IMMUNITIES CONVENTION
Mr M V MOOSA: Chairperson, I am not as good-looking as my colleague, Mr Mahlangu, but thanks for the compliment!
The CHAIRPERSON OF COMMITTEES: But when you smile, you are! [Laughter.]
Mr M V MOOSA: Thank you very much for that, Chairperson. I am actually blushing!
I have only 15 minutes to speak. My colleague, Dr Conroy, advised me to speak fast, so I will either speak fast for 15 minutes or speak slow for 15 minutes! Dr Conroy can take his pick. [Laughter.] Actually, I am not going to be very long. I will speak for approximately 14 minutes!
In 1994, when South Africa for the first time became a democracy, we started engaging with the international community in a very significant way. We started receiving delegations from other countries. South African missions in other countries started increasing, and those of other countries here also increased.
But one of the things that has happened between 1994 and today is that the UN has increased its operations on our soil. The UN and other agencies have been working with organisations inside the country on a whole range of matters. Articles 104 and 105 of the UN Charter provide that ``… any country that hosts UN staff, official and experts must grant them immunity.’’ There are certain UN conventions that must be ratified by countries that engage in these processes, in order to grant this immunity to UN official and members.
From 1994 to date, we have not granted immunity to the good men and women of the UN who have been working on our soil. When they come here, we grant them immunity on an ad hoc basis. For instance, we give them immunity for one week, one month or for the duration of their employment contracts.
Let me highlight what these conventions are going to do - I will just read them out to members quickly. They are the Convention on the Immunities and Privileges of Specialised Agencies, which was adopted on 21 November 1947; the Convention on the Immunities and Privileges of the UN, which was adopted on 13 February 1946; and the Agreement on the Immunities and Privileges of the International Atomic Energy Agency, which was adopted on 1 July 1959.
As we know, later this year we have the UN world conference on racism - a very big and very significant conference - taking place in our country. Next year in 2002 we also have the World Conference on the Environment and Sustainable Development taking place in Gauteng.
At both these conferences we will have very large numbers of UN and international officials arriving on our soil. In fact, for the environment and sustainable development summit we are going to have no less than 50 000 delegates. Together with the media, NGOs and other people, we estimate that there will about 80 000 delegates coming to this conference next year. It is very important that when these organisations have operations on our soil, we take care of them.
So some of the things that the UN and its staff will be able to do on our soil after we have ratified these conventions include having the legal capacity to contract … [Interjections.] I notice that the Chief Whip is very interested in my speech! [Laughter.]
The premises of the UN will be invaluable. In other words, our country’s police and so forth will not be able to go into immune premises, ie premises that have been granted diplomatic immunity. The UN will be granted certain tax exemptions and representatives, officials, experts and staff of the UN will be entitled to immunity from civil and criminal jurisdiction of our courts. Also, these individuals may be granted certain tax and customs exemptions.
Our Cabinet has agreed to the fact that we need to accede to these conventions, but some reservations have been expressed. As members know, sometimes when we enter into these international conventions we are entitled to record reservations.
I am just going to enlighten the House about some of these reservations. One of the things the UN does when they enter into foreign countries is to keep their currency in gold. In other words, when they come here they might not keep their currency in rands - they might keep the donations or the funds that they receive from their head offices on South African soil, but actually in the form of gold. They do this in many countries, in order to protect their donations and funds from depreciation and the inflation implications of local currencies.
Of course, South Africa is the largest gold producer in the world. In fact, we are the most heavily regulated gold environment anywhere in the world. We certainly cannot allow anybody to come onto our soil and take care of their own gold outside our own regulatory framework.
So one of the things that we have expressed reservation about is the fact that we, in South Africa, do not consider ourselves bound by the provisions of section 6 of the Atomic Energy Agency, section 5 of the UN Broad Immunities Convention and, I think, section 7 of the Agencies Convention, because, in terms of all three of these, we have regulations in our country for the buying, selling, holding and trading of gold. We have regulations in terms of our exchange control regulations that no person or unauthorised dealer may buy or borrow gold, unless they have proper licences and fulfil the proper regulatory framework to do so.
As members know, the mining houses, producers and so forth may elect to enter into agreements with the UN in order to arrange for gold to be kept in particular ways, but the UN itself cannot do so on our soil and we do not consider ourselves bound by that part of the convention.
Another part of the conventions - all three of them - that we do not regard ourselves as bound by is the compulsory jurisdiction of the International Court of Justice. As members know, in our country - and I am sure Comrade Mahlangu here will also enlighten the House on this, if necessary - we have for a long time been speaking about the implications of subjecting ourselves, as a country, to the jurisdiction of the International Court of Justice.
Some of us, both in Parliament and inside the Ministeries - and I suppose even in Cabinet - have not yet finalised and arrived at a common understanding of what our policy position is as regards being subjected to the International Court of Justice. In the absence of that kind of policy position, we as a country cannot agree to the conventions’ provisions with regard to subjecting ourselves to the International Court of Justice.
The Atomic Energy Convention also has an additional reservation. We do not want to regard the staff and members of the Atomic Energy Agency that operates on our soil as exempt from our tax provisions. We think that the salaries, emoluments, and so forth, of the staff of that agency must, in terms of section 18(a)(2) of that agreement, be subjected to all the tax regulations that exist in our country. We have granted tax exemptions to the direct staff of the United Nations and some of its agencies.
Quickly, before I end, I thought I should let the House know that, apart from the Atomic Energy Agency and the UN’s general operations taking place in our country, members might wish to know which other agencies are operating on our soil. There are no less than 15 international UN agencies already operating here which will get the broad, general immunity in terms of this convention.
The International Labour Organisation, ILO; Food and Agriculture Organisation, FAO; International Civil Aviation Organisation, ICAO; UN Educational, Scientific and Cultural Organisation, Unesco; International Monetary Fund, IMF; and the International Bank for Reconstruction and Development, IBRD are already in the country.
We also have the World Health Organisation, WHO; Universal Postal Union, UPU; International Telecommunications Union, ITU; World Meteorological Organisation, WMO; International Maritime Organisation, IMO; International Finance Co-operation, IFC; International Development Association, IDA; World Intellectual Property Organisation, WIPO; International Fund for Agricultural Development, IFAD; and the UN Industrial Development Organisation, Unido working here.
These conventions will provide immunities to the premises, person and integrity of all the staff - the experts and the officials - of these organisations.
Finally, apart from the spin-off for acceding to these conventions, of allowing the conference on racism and next year’s summit on sustainable development to take place in an organised and orderly fashion, there is another hidden spin-off: the UN Pension Fund - which is probably one of the biggest pension funds in the world - has been looking to invest in this country by putting their pension money here. As we have not had provisions granting the immunities that are required, they have not yet invested in our country. They usually invest in developing countries in order to strengthen the objectives of development in some of the places where they work. With our accession to these conventions, the UN Pension Fund will, hopefully, invest some of its money in our country.
With those few words, I want to say that we are very excited about these provisions and we would like the House to confirm South Africa’s commitment to the UN and to immunity of its officials. [Applause.]
Debate concluded.
Reports adopted in accordance with section 65 of the Constitution.
The Council adjourned at 15:34. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS:
National Council of Provinces:
- The Chairperson:
Bills passed by National Council of Provinces on 27 June 2001: To be
submitted to President of the Republic for assent:
(i) Supreme Court Decree, 1990 (Ciskei) Amendment Bill [B 15 - 2001]
(National Assembly - sec 75);
(ii) Criminal Procedure Amendment Bill [B 37 - 2001] (National
Assembly - sec 75).
COMMITTEE REPORTS:
National Council of Provinces:
-
Report of the Select Committee on Security and Constitutional Affairs on the Criminal Procedure Amendment Bill [B 37 - 2001] (National Assembly - sec 75), dated 27 June 2001:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Criminal Procedure Amendment Bill [B 37 - 2001] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.
-
Report of the Select Committee on Security and Constitutional Affairs on the Administration of Estates Laws Interim Rationalisation Bill [B 24B - 2000] (National Assembly - sec 75), dated 27 June 2001:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Administration of Estates Laws Interim Rationalisation Bill [B 24B - 2000] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.
-
Report of the Select Committee on Finance on the Appropriation Bill [B 10 - 2001] (National Assembly - sec 77), dated 27 June 2001:
The Select Committee on Finance, having considered the Appropriation Bill [B 10 - 2001] (National Assembly - sec 77), referred to it, reports that it has concluded its deliberations thereon.