National Assembly - 17 October 2002
THURSDAY, 17 OCTOBER 2002 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:01.
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 J H NASH: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the DA lost control of Stellenbosch Municipality on Tuesday, 15 October 2002;
(2) believes that the crossing of the DA councillors in Stellenbosch is a victory for democracy, nonracialism, nation-building and development;
(3) welcomes the councillors who left the DA and believes that this will help to restore stability and integrity of governance in the Western Cape; and
(4) looks forward to the people of Stellenbosch hosting ANC delegates who will be attending the 51st conference;
Maatla! All power to the people! And a lesson to the DP: Do not count your chickens before they are hatched. [Applause.] [Interjections.]
The DEPUTY SPEAKER: Order!
Mr M L DA CAMARA: 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 the ANC’s path to power is littered with broken promises, including those to the IFP prior to the 1994 elections about international mediation, and to the FF about a volkstaat;
(2) further notes that the New NP is basing its betrayal of the voters on a promise from the ANC of seats in national and provincial cabinets, ambassadorships and well-paid jobs at various levels; and
(3) warns the New NP that the ANC is using them to gain total power at every level of government and that they will get few jobs and no influence in return.
[Interjections.] Prof H NGUBANE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House -
(1) notes that Warrant Officer Magriet Strydom has become the first woman to carry the senior flag of the South African Navy;
(2) further notes that this flag is paraded at all important occasions where the Chief of the Navy is officiating and also when the navy participates in parades with all the arms of service of the SA National Defence Force (SANDF) every two years; and
(3) congratulates Warrant Officer Strydom on her achievement.
Ms S H NTOMBELA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House
(1) notes that -
(a) the ANC-led Government embarked on an Imbizo focus week on 7 to
13 October under the theme ``Lend a hand to protect children's
rights''; and
(b) people's representatives in all spheres of government joined
hands with public servants to register all children who are
eligible for child support grants and other forms of assistance;
(2) believes that the Imbizo programmes reflect the commitment of the ANC- led Government to ensure ongoing and dynamic dialogue around government programmes aimed at creating a better life for all;
(3) believes that the massive mobilisation for registration of eligible children for social grants reflects the commitment of the ANC to uphold children’s rights to a brighter future and to fighting the scourge of poverty; and
(4) commends the ANC Government for embarking on this important programme. [Applause.]
Dr S J GOUS: 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 utter disgust that DA chief whip of the Ekurhuleni Metro Caucus, Malcolm Lennox, instructed the immediate removal of several councillors as representatives on portfolio committees;
(2) further notes that his actions are not only against the ruling of the Constitutional Court ordering that no councillor may be denied any rights and privileges attached to his or her membership, but are also in direct contrast with the Constitutional Amendment Act, which in no uncertain terms states that no party may perform any act whatsoever which may cause such a councillor to be disqualified from holding office as such a councillor in that Council, without the consent of the councillor concerned; and
(3) condemns in the strongest possible terms the deplorable actions of this DA chief whip and calls on the relevant metro council to institute disciplinary action against him for contravening the Constitution of the Republic of South Africa.
[Applause.]
Mr T ABRAHAMS: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the UDM:
That the House -
(1) notes with shock the latest horror research findings that rural poverty in the Western Cape, one of the richest provinces, is in fact much higher than expected;
(2) further notes that researchers found that many households in Ceres lived on less than R100 a month, and that these findings point towards the truly horrific scale of rural poverty throughout the country;
(3) agrees that these findings are a staggering indictment of the various political rulers in the Western Cape who, for these past two years, have engaged non-stop in the politics of self-promotion and pettiness, and continue to do so even now at the expense of the people of the Western Cape; and
(4) calls upon the national Government to admit that its policies to create jobs and curb poverty have failed, and to implement policies, including a food parcel or stamp system, that will benefit all South Africans and not just a small elite associated with the ANC gravy train. Dr E A SCHOEMAN: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes -
(a) the ANC's commitment to fighting poverty, ensuring food security
and building a better life for all; and
(b) that escalating food prices are affecting poor communities in a
negative manner;
(2) further notes the announcement by Government to -
(a) subsidise special maize meal to the tune of R20 per 12,5kg;
(b) increase old-age pensions, child support grants, foster care
grants and care dependency grants;
(c) intensify the campaign to register eligible citizens for social
grants; and
(d) monitor food prices and enhance the school nutrition programme;
(3) believes that this represents the ANC’s commitment to food security, especially for the poorest of the poor, and fighting poverty; and
(4) welcomes the announcements made by the Government to ensure that people are protected from impoverishment and the vicious cycle of poverty.
Adv Z L MADASA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ACDP:
That the House -
(1) welcomes the decision of the Constitutional Court that upheld legislation which illegalises brothels and prostitution;
(2) notes that our Constitution does not recognise a right to be abused;
(3) notes that brothel owners are pretending to be fighting for women’s rights when in fact they are the ones who are treating women as commodities to be exploited for pleasure and financial gain;
(4) notes that the decision will help the state to curb girl-child trafficking; and
(5) hails the decision as a victory in the fight for the protection of girl children, women’s rights, family values and moral regeneration.
Dr A I VAN NIEKERK: Mevrou die Speaker, ek gee hiermee kennis dat ek op die volgende sittingsdag van die Huis namens die FA sal voorstel:
Dat die Huis -
(1) kennis neem -
(a) dat die statistiek van Interpol aantoon dat Suid-Afrika die
moord-hoofstad van die wêreld is, met 52 485 moorde of pogings
tot moord, met Venezuela tweede met net 8 022 moordgevalle per
jaar; en
(b) dat dit beteken dat daar in Suid-Afrika 143 moorde of verwante
gevalle plaasgevind het elke dag, oftewel een geval elke tien
minute;
(2) met ontsteltenis kennis neem dat die Minister van Veiligheid en Sekuriteit verklaar het dat hy tevrede is dat die misdaadvlak in Suid- Afrika gestabiliseer het; en
(3) ‘n beroep op die Regering doen om die konstitusionele verpligting om Suid-Afrikaners teen geweld te beskerm, na te kom deur aan die polisie die nodige fondse te verskaf om die plig te volvoer. (Translation of Afrikaans notice of motion follows.)
[Dr A I VAN NIEKERK: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the FA:
That the House -
(1) notes -
(a) that Interpol statistics show that South Africa is the murder
capital of the world, with 52 485 murders or attempts of murder,
with Venezuela second with only 8 022 murder cases per year; and
(b) that this means that in South Africa 143 murders or related
incidents took place every day, or one incident every ten
minutes;
(2) notes with alarm that the Minister of Safety and Security has stated that he is satisfied that the level of crime in South Africa has stabilised; and
(3) appeals to the Government to keep to the constitutional responsibility of protecting South Africans against crime, by providing the police with the necessary funds to fulfil its duty.]
Mr K W MORWAMOCHE: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes with concern the eruption of violent conflict between government troops and rebel forces in the Ivory Coast, and that this conflict threatens the stability of the Ivory Coast and the region of West Africa;
(2) further notes the leadership of the rebels have indicated that they are ready to sign a ceasefire agreement;
(3) believes that peace and stability are important preconditions for development and prosperity on the African continent;
(4) calls on the fighting parties to work towards the peaceful resolution of the conflict in that country; and
(5) commends the hon President, Thabo Mbeki, and other heads of state in Western Africa for their work towards the realisation of peace in the Ivory Coast.
[Applause.]
Mrs B N SONO: 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 steep rise in the price of food and other items has led to
much suffering among South Africans; and
(b) there is a good chance of a fifth interest rate hike this year;
and
(2) calls on the Government to take urgent steps to improve South Africa’s standing in the world to strengthen the Rand and curb inflation, in particular to encourage investment by -
(a) taking a stand against the undemocratic and illegal actions of
the Mugabe government in Zimbabwe; and
(b) relaxing strict labour legislation which is destroying jobs in
South Africa.
Mr E T FERREIRA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House -
(1) notes that the Department of Home Affair’s anticorruption drive, Project Molopo, has been extended to cover all of South Africa’s provinces;
(2) further notes that a police operation in July 2002 led to the arrest of 45 Home Affairs officials, 32 agents working with the officials and 1 232 illegal immigrants;
(3) also notes that a high-ranking Home Affairs official has been arrested for contravening the Aliens Control Act in respect of a Congolese citizen with false immigration papers;
(4) congratulates the Minister and the Department of Home Affairs, as well as the SA Police Service for the effective and successful manner in which corruption relating to illegal immigrants is being addressed; and
(5) expresses its sincerest hope that further successes in the fight against corruption will soon be forthcoming.
Ms L M T XINGWANA: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that Ms Seadimo Chaba, the Deputy Director-General of the Gauteng Department of Public Transport, Roads and Works, became the first woman Boss of the Year 2002 on 16 October 2002;
(2) believes that this confirms the ANC’s long-held view that women have leadership qualities and are a driving force in the processes of social and economic transformation;
(3) further believes that the transformation of state and society under the leadership of the ANC has provided a solid framework for the empowerment and development of women;
(4) congratulates Ms Seadimo Chaba on her recent achievement; and
(5) calls on young women to emulate this shining example.
[Applause.]
Mnr S SIMMONS: Mevrou die Speaker, ek gee hiermee kennis dat ek op die volgende sittingsdag van die Huis namens die Nuwe NP sal voorstel:
Dat die Huis -
(1) kennis neem dat -
(a) sekere plaaslike owerhede belasting op landbougrond eensydig en
te hoog hef; en
(b) die appèlhof verlede maand die instelling van sodanige belasting
sonder die nodige waardasies as ``onredelik en diskriminerend''
bestempel het;
(2) die Wes-Kaapse Minister van Landbou, mnr Johan Gelderblom, se versoek verwelkom dat ‘n moratorium op die instelling van grondbelasting in die Wes-Kaap geplaas moet word totdat ‘n nasionale beraad tussen georganiseerde landbou en munisipaliteite gehou is oor die billike en regverdige instelling en heffing van grondbelasting; en
(3) kennis neem dat die Nuwe NP ‘n dringende beroep op die Regering doen om so gou moontlik, in samewerking met die tersaaklike rolspelers, duidelike riglyne en ‘n eenvormige nasionale beleid ten opsigte van grondbelasting in te stel. (Translation of Afrikaans notice of motion follows.)
[Mr S SIMMONS: 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 that -
(a) certain local authorities levy agricultural land tax
unilaterally and excessively; and
(b) last month the Appeal Court found the introduction of such tax
without the necessary valuations to be ``unreasonable and
discriminatory";
(2) welcomes the request by the Western Cape Minister of Agriculture, Mr Johan Gelderblom, that a moratorium be placed on the introduction of land tax in the Western Cape until such time as a national summit is held between organised agriculture and municipalities on the fair and just introduction and levying of land tax; and
(3) notes that the New NP urgently appeals to the Government, in collaboration with the relevant role-players, to introduce clear guidelines and a uniform national policy in respect of land tax as soon as possible.]
Ms ANNELIZÉ VAN WYK: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the UDM:
That the House -
(1) learns with disgust that the Minister of Safety and Security has agreed to pay an amount of R2,25 million to the trustees of the Harksen estate;
(2) condemns unreservedly the fact that South African taxpayers have to foot the bill for what is either a blatant fabrication by a convicted fraudster, or sheer incompetence by the police, regarding the existence and supposed theft of money from a gymnasium locker belonging to Mr Harksen;
(3) further notes that Mr Harksen has succeeded in embarrassing and tainting the names of several parties in this House, and has further succeeded in making a mockery of this Government and this country’s courts; and
(4) calls upon the Minister of Justice and Constitutional Development to immediately fast-track the long overdue and thoroughly justified extradition of Mr Harksen.
SUSPENSION OF RULE 253(1) REGARDING MEDICINES AND RELATED SUBSTANCES
AMENDMENT BILL
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice: That Rule 253(1) be suspended for the purposes of conducting the Second Reading debate on the Medicines and Related Substances Amendment Bill [B 40 - 2002] (National Assembly - sec 75).
Agreed to.
The DEPUTY SPEAKER: Due to the unavailability of the Minister of Minerals and Energy, the statement on the Mining Empowerment Charter will be rescheduled for another day.
SUSPENSION OF RULE 253(1) REGARDING MEDICAL SCHEMES AMENDMENT BILL AND OCCUPATIONAL DISEASES IN MINES AND WORKS AMENDMENT BILL
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move the motion as it stands in the name of the Chief Whip of the Majority Party:
That Rule 253(1) be suspended for the purposes of conducting the Second Reading debates on the following Bills:
(a) Medical Schemes Amendment Bill [B 37 - 2002] (National Assembly - sec 75); and
(b) Occupational Diseases in Mines and Works Amendment Bill [B 39 - 2002] (National Assembly - sec 75).
Agreed to.
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION AMENDMENT BILL, PROMOTION OF ADMINISTRATIVE JUSTICE AMENDMENT BILL, PROMOTION OF ACCESS TO INFORMATION AMENDMENT BILL AND INSOLVENCY SECOND AMENDMENT BILL
(Second Reading debate)
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, colleagues, ladies and gentlemen, and comrades, I will be dealing with four pieces of legislation during this input, and while that might sound complicated, it is, in essence, quite a simple procedure.
To begin, the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill amends sections 16 and 31 of the principal Act in respect of the designation of presiding officers of the equality courts, training as it pertains to presiding officers for purposes of the Equality Act, and the establishment of equality courts at magistrates’ courts level. The promulgation of this amendment will facilitate the implementation of this very important piece of legislation, and it is to be welcomed.
Clause 1 of the Equality Bill substitutes section 16 of the Equality Act, which at present provides that every High Court and every magistrates’ court is an equality court for the area of its jurisdiction.
The practical effect of this is that, at the magisterial court level, such a court may only hear cases arising within its geographic and jurisdictional limits. These courts are therefore unable to convene as equality courts in cases that, for instance, do not arise in their own magisterial districts. The Justice Department has therefore faced the challenge of ensuring that every magistrates’ court is fully equipped to operate as an equality court at the date of implementation of chapter 4 of the Equality Act, and all this within the constraints of an extremely limited resource base. Constraints in respect of equipment and other infrastructure were aggravated by the fact that, in many magistrates’ courts, there is a shortage of suitable courtrooms, and despite an extensive programme of subject-specific training, there still exist areas that lack the appropriate levels of capacity to effectively implement this legislation at both the clerk of the court level, as well as the presiding officer level.
An incremental approach to the implementation of equality courts at the magistrates’ court level was thus essential to the effective implementation of this legislation. We also need to do this in a way that strikes a balance between addressing the demand for a sufficient number of equality courts and managing the resource constraints that continue to be a stark reality in the day-to-day operations of our courts. To achieve this, and in order to facilitate the implementation of chapter 4 of the Act, the relevant provisions of section 16 had to be revised.
As far as equality courts at High Court level are concerned, the provision that every High Court is an equality court for the area of its jurisdiction is left unchanged. The amendment to this section allows for one or more magistrates’ courts in an administrative region to be designated as an equality court. This decision now only occurs after consultation with the head of the relevant administrative region. The jurisdiction of each equality court will be defined very carefully, and in that process, we hope to achieve an acceptable spread of equality courts at the magistrates’ court level. We will be able to establish these courts as soon as the relevant sections of the Equality Act become operational. As far as presiding officers are concerned, new provisions dictate that any additional magistrate and/or judge may, by reason of his or her training, experience, expertise and suitability in the field of equality and human rights, be designated as a presiding officer of an equality court. In addition, the Cabinet member responsible for the administration of justice designates the presiding officers after consultation with the Judge President or head of an administrative region.
As we all know, objections have been raised that sections 16 and 31 of this legislation infringe upon the independence of the judiciary, and upon the principle of separation of powers.
During a meeting between the heads of courts and the Ministry, it was agreed that the Act should be amended so that the designation of presiding officers should be left to the heads of courts. The amendment thus provides that only a judge, magistrate or additional magistrate who has completed a training course as a presiding officer of an equality court may be designated as such - a presiding officer. This designation will become the responsibility of the Judge President or the head of the administrative region, as the case may be.
Another important feature contained in the Bill is that the Director- General must keep a list of every judge, magistrate and/or additional magistrate who has completed the relevant training or has been designated as a presiding officer of an equality court. This requirement ensures the existence of a single database that captures the particulars of all appropriately capacitated presiding officers for the purposes of this legislation.
The section relating to the clerks of the equality courts in the amendment deals with two aspects. Firstly, the Director-General may only appoint persons or designated officials of the department who have completed the appropriate training modules as clerks of the equality courts. Secondly, the Director-General must compile and maintain a database of the names and particulars of those persons and officials who have completed the necessary training, and those who have been appointed or designated as clerks of the equality courts.
The Bill places the obligation to develop the content of the training courses upon the chief justice who must do so in consultation with the Judicial Service Commission and the Magistrates Commission. The relevant subsection is unambiguous in that it confers upon the judiciary the responsibility to determine the content of the relevant training courses, so as to avoid any interpretation that there might occur an infringement upon judicial independence.
This legislation now makes it clear that the role of the Cabinet Minister responsible for the administration of justice is to ensure financial and logistical support in respect of training for the purposes of this legislation. That, in short, deals with the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill.
It is now necessary for me to refer briefly to the Promotion of Administrative Justice Amendment Bill. The term `court’, as it pertains to the principal Act, is defined as a magistrates’ court, either generally or in respect of a specified class of administrative actions designated by the Minister via notice in the Gazette. A similar definition is contained in the Promotion of Access to Information Act. The relevant definitions in this Act that relate to the designation of judicial officers by the Minister were subject to the same criticisms as those directed at the designation of judges, magistrates and additional magistrates in the Equality Act.
Clause 1 of this amendment, which must be read in conjunction with clause 2, amends the definition of court so as to address this objection. The new provision in clause 2 gives the head of an administrative region the power to designate a magistrate ot additional magistrates for the purposes of presiding in court proceedings, as contemplated in the Act. Only magistrates or additional magistrates who have received training may be designated as presiding officers. The content of the training courses will again be developed by the judiciary in a similar fashion as previously described in the equality amendment. Again, the chief justice determines the content and implementation of the training modules required.
Here again, the role of the executive is limited to ensuring that financial and logistical support is made available in respect of implementing the necessary training.
The provisions of the Promotion of Access to Information Amendment Bill are identical to those of the Promotion of Administrative Justice Amendment Bill, and I do not intend to repeat them.
Turning to the Insolvency Second Amendment Bill, I wish to point out that the Bill is the product of a joint effort by the Department of Labour and the Department of Justice. In 1999, the Minister of Labour and his department conducted a review process that included extensive consultations with all relevant stakeholders. The conclusion, at the end of the process, was that the policy fundamentals that shape the relevant laws are sound, but that adjustments and refinements were required to improve the sensitivity of our legal framework to the imperatives of creating employment to address unintended consequences of some provisions of our laws, and to ensure the effective alignment of our laws with the changing labour market environment.
Taking these observations into account, the Department of Labour then prepared draft amendments in respect of the Labour Relations Act and the Basic Conditions of Employment Act. The Department of Justice’s role in this initiative was to prepare a draft amendment in respect of the Insolvency Act. The proposed amendments were published in the Government Gazette in July 2000 in order to solicit comments from all interested parties. Fifty-four responses were received, 10 of which dealt directly with the draft Insolvency Bill.
The amendments deal with the issues around notices of impending insolvency. We are all aware that employees often become aware of the insolvency of their employer at a point in the process where little can be done to ameliorate the consequences of the insolvency. Very often, they are confronted with the closure of work premises, and even more often, the first inkling of impending doom is communicated to the employees via the appointed liquidator or trustee. This is undesirable, and is severely detrimental to the interests of the employees.
The new legislation requires that a petitioner for the voluntary surrender of an estate must furnish a copy of the notice of voluntary surrender to registered trade unions and employees. The notice must be affixed to a notice board to which the employees have access inside the premises. If there is no access to the premises by the employees, the notice must be affixed to the front gate or door of those premises. In order to expedite the administration of the estate and safeguard the interests of the state, a copy of the notice must also be furnished to the SA Revenue Service.
The new Bill provides that a creditor who applies for the sequestration of a debtor’s estate must notify the employees of that debtor, their registered trade unions and the SA Revenue Service of the relevant application. For the sake of uniformity, a copy of the relevant petition must be furnished to the debtor unless the court dispenses with the notice. The court will exercise its discretionary power in this regard if it is fully satisfied that it will be in the interests of the debtor or of the creditor to dispense with the relevant requirement.
The amendment provides for additional requirements with regard to provisional sequestration of a debtor’s estate. This includes that a copy of a provisional sequestration order must be served on registered trade unions, employees and the SA Revenue Service. Service on employees must again take place by affixing a copy of the order to a notice board on the employer’s premises or to the front gate, whichever is most appropriate.
It does not require much imagination to realise that sounding a false alarm in respect of a debtor’s financial position may have dire consequences for that debtor’s business. The amendment therefore makes provision for the court to award compensation to the debtor if the court is satisfied that a petition for sequestration amounts to an abuse of the court’s procedure.
I would like to thank the officials and the committee for their support in this process. [Time expired.] [Applause.]
Ms F I CHOHAN-KHOTA: Madam Speaker, hon members, one of the biggest challenges that faces members of Parliament at this time of day is actually staying awake, so I promise not to be too long. I rise on behalf of the ANC to unequivocally and unreservedly support the four Bills that we are debating today.
Three of these Bills relate to an attempt to implement Acts previously passed by this Parliament. These Acts are, as the Deputy Minister has said, the Promotion of Equality and Prevention of Unfair Discrimination Amendment Act, the Promotion of Access to Information Act and the Promotion of Administrative Justice Act. In each of these Acts, provision is now made for the designation of presiding officers in court proceedings. The concern with regard to the Acts that we have already passed was that the matter of separation of powers and the independence of the judiciary requires further protection than those Acts provide.
Simply put, Parliament has sanctioned the process that allows the hon the Minister for Justice and Constitutional Development to designate presiding officers in each of these courts. As I have said, it has been suggested that this poses a potential problem around judicial independence. To avoid problems in this regard, the department has pre-emptively proposed these amendments, the details of which will be dealt with by others in the portfolio committee.
The amendment to the Promotion of Equality and Prevention of Unfair Discrimination Act also provides for the designation of magistrates’ courts. This heralds the introduction of the phased approach, which is broadly supported. I wish to just briefly draw attention to two aspects of the portfolio committee’s report relating to this particular amending Bill. The first issue is a substantive one that deals with the concern raised by certain activists of the intersex community. The word `sex’, as we conventionally use it, is understood in an exclusively dichotomous sense. Those who are born intersexed are not exclusively male or female, and it is trite that our Constitution is inherently averse to unfair discrimination of any kind, but in particular, to vulnerable groups. Therefore, we have requested that the department investigate the possibility of promoting an amendment by ensuring that the definition of sex in the Equality Act includes, explicitly, intersexuality. We further asked that stakeholders be consulted and, hopefully, we will get a report in this regard sooner rather than later.
This concern, of course, arises out of our oversight role. This brings me to the very next point that we raise in the report, relating to the viability and feasibility of an equality review committee which was established in the first Act. This review committee is meant to be established at some significant cost, and its role is primarily to monitor the operation and efficacy of the Equality Act. It is meant to submit regular reports to the Minister on the operation of the Act, including recommendations on any necessary amendments relating to its improvement.
We believe that this function is already catered for in the very existence of this Parliament and the host of Chapter 9 bodies that we have, including the SA Human Rights Commission, the Commission for Gender Equality and even the Public Protector. It is our contention, upon reflection, that this review committee would be an unnecessarily expensive duplication, and we refer the matter to the department for consideration.
Lastly, the fourth amending Bill relates to the Insolvency Act. It is a small but very important amendment dealing with notice to employees in the event of liquidation or sequestration of the employer body. My colleague Mr Solomons will deal with the contents of this amendment in detail.
Finally, on behalf of the Chairperson in his absence, and the members of the portfolio committee, I would like to extend our thanks to the officials of the department, in particular Mr Lawrence Basset, Mr Henk Du Preez and Mr Tienie Cronjé for their efforts in this regard. We really appreciate all the help that they gave us.
Ms M SMUTS: Hon Chair, an identical defect in three laws is corrected by these amendments. The trio of Acts are those giving effect to three of the rights in the Bill of Rights - administrative justice, information, and equality.
The defect is the designation by the Minister of presiding officers in the High Courts or magistrates’ courts who may hear cases brought under the equality, information or administrative justice laws.
Allow me to say that I told members so. I told members in respect of the Equality Act. I argued that judges and magistrates who were hand-picked by the Minister would be Penuel’s poodles or chihuahuas, as the case may be. I said in the second reading debate at the end of that sultry summer of legislating against the constitutional deadline for the passage of the law as follows:
The Minister’s powers of designation of High Court judges is in clear breach of the Constitution. We cannot vote for a Bill which undermines the Constitution, most especially not when it attacks the constitutional order at its foundation. The constitutional order rests on the independence of the judiciary, which interprets and protects our rights against the government of the day. One cannot let Government designate classes of judges.
Parliament should not have allowed this measure through. It is a tragedy that Parliament as a whole, which stands between the executive and the judiciary, did not throw this provision out. Hon members, too, have a duty under oath to uphold the Constitution and to protect citizens.
This was all the more the case when a clear agenda had emerged from the drafters of the Equality Act. It became quite clear that the Bill, as it then was, intended in fact to challenge the highest court’s interpretation of the Constitution’s equality section, and in addition, a departmental official was quite frank with us when saying that she had a problem with judgments, the judges and their ``attitude’’.
We are delighted that the DP’s position on the Equality Bill is vindicated by these amendments and, the hon Randy, if I heard his interjections correctly, should please take note that our objection is vindicated by these amendments. It is actually worth listening to our arguments, in other words [Interjections.] …
An HON MEMBER: Opposition is important.
Ms M SMUTS: … and opposition is important. These amendments vindicate our opposition to that Bill. We did not then … [Interjections.] The fact that we are standing here, amending these Bills, proves that we are, I would like to say to the hon Luwellyn Landers. Of course it does. So we did not then and we do not now object to the training courses in themselves when they are in appropriate hands with appropriate safeguards.
The designation of presiding officers is back now in the hands of Judges President and of Chief Magistrates, where it belongs, in the case of the Equality Act, and of Chief Magistrates in the consequential cases of the other two laws.
It is problematic that at least two of the three laws, after two and half years since their passage, are not yet a reality for the citizens that they must serve. Most public servants are said to be unaware of the Access to Information Act, according to a survey by the Open Democracy Advice Centre. I must say that we, and perhaps other political parties, receive queries about the Equality Act routinely from citizens seeking streamlined remedies. I hope that these amendments herald the full implementation of measures which are there to help make the rights a reality. [Applause.]
I commend Ms Chohan-Khota on her customary clarity, and just want to indicate that if she is interested in crossing the floor, she is very welcome on this side of the House! [Applause.]
Mr M A MZIZI: Chairperson, the four pieces of legislation we are debating today come at a time when there is great uncertainty and concern in South Africa about job losses, increasing unemployment and growing of poverty.
Due to the limited time at my disposal, I would like to deal in more detail with the Insolvency Second Amendment Bill than with the other three Bills. That is not to say that the other three Bills do not also deal with very important matters in our daily lives.
The IFP welcomes the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill. For instance, the training and designation of presiding officers of equality courts are vital in preventing unfair discrimination, and the Bill also provides for the incremental implementation of equality courts at the magistrates’ courts level.
Furthermore, we can also look at the question of independence of the judiciary and the constitutional principle of the separation of powers. My belief is that independence without accountability means nothing, and the two therefore should go hand in hand.
The IFP also welcomes the Promotion of Administrative Justice Amendment Bill which provides for regulating the designation of magistrates or additional magistrates for the purposes of presiding in court. Training for the magistrate and additional magistrates will no doubt be of the utmost importance.
Returning to the Insolvency Second Amendment Bill, the IFP strongly supports the proposed amendments. It came as an eye opener to some of us that, in the past, employees and workers would not have known the state of the company they worked for, or even that the company or the employer had been declared insolvent or liquidated. The first time the workers would know about it was when they found the gates and doors chained and locked or when they were told by the trustees or liquidators.
The IFP supports the fact that the Bill provides that the employees and their registered trade unions must be informed of impending insolvency to enable them to find a solution that would protect their interests and their jobs. In a nutshell, employers will no longer be able to play with a closed hand, but will have to lay all their cards on the table for all to see the true state of affairs.
In conclusion, it is clear that any employer running into financial difficulties must notify his or her employees in a manner that will ensure that all employees are aware of the situation. This will create the opportunity for all interested parties to find a solution for the problem long before they have actually materialised and may even result in protecting employees’ livelihoods and employment. Amidst growing concern over unemployment and alarming job losses, this step must be welcomed as a positive attempt to help those who in the past received no protection whatsoever.
It is also important to note that a creditor who applies for the sequestration of a debtor’s estate, must notify employees, the relevant trade unions and the SA Revenue Service of the application. What is very appropriate about these changes is that the Bill also provides for compensation if such an application represents an abuse of court procedure or is considered to be malicious.
Engithanda ukukusho nje Sekela likaNgqongqoshe ukuthi uma sikhuluma ngezinyunyana asisho ukuthi izinyunyana zenze konke okuhle ngoba phela izimboni zihambe nje, zihambe ngazo izinyunyana. Izinyunyana yizo ezidale ukuthi umnotho waleli zwe ufadalale ngoba zifuna ukuthi zibe ngama-director ezinkampanini lapho khona zingenalungelo, ngoba okwazo ukudayisa amandla azo izinkampani bese zibakhokhela. Kodwa sengathi sebeqile kulokho sebefuna ukuthi nabo babe nesabelo ekukhulumeni izinto zenkampani. Yingakho izinkampani zizohamba nje eSouth Africa sigcine sesingasenalutho, abantu babe mpofu. Kungabi bikho misebenzi ekhona.
Siyacela-ke ukuthi uNgqongqoshe akubhekisise lokho. Sengathi uhulumeni ubengake azame ukuzinciza izinyunyana ukuthi cha azingabi ama-director, azikhulumele abasebenzi. Ngiyabonga. (Translation of Zulu paragraphs follows.)
[What I would like to say to the Deputy Minister is that, when we talk about unions, we do not say that trade unions have done all the good things, because companies left South Africa as a result of the trade unions. Trade unionists are the ones who have caused the economy of this country to collapse because they wanted to be directors in companies when they did not have a right to do so. Their duty is to sell their labour and companies have to pay for it. Now it looks as if they overstepped the line. They too want to have a share in discussing the companies’ issues. That is why companies will leave South Africa. We will end up having nothing, and people will be poor because there will be no jobs.
We would like to ask the hon the Minister to look carefully at that. We want the Government to try and secretly warn the trade unionists that they should not be directors. They should speak for employees.]
Mr G B MAGWANISHE: Chairperson, it will not assist this debate to respond to the hon Ms Smuts because she finds happiness in being negative.
Our struggle has always been about equality, restoration of human dignity and elimination of unfair discrimination. We fought for a society where people would not be judged according to the colour of their skin, but by their character. Since 1994 we started a process of creating a nonracial, nonsexist democratic and prosperous South Africa through people-centred programmes and legislation.
The Bills before us are a part of this process. They are aimed at creating a government and a society that is transparent, humane and caring. Day by day, the ANC-led Government makes laws which are aimed at empowering each and every citizen to enjoy rights given to him or her by the Constitution. By passing these Bills, we are recommitting ourselves to the commitment we made in 1965 at Kliptown when we said:
South Africa belongs to all who live in it, black and white, and no government can just claim authority unless it is based on the will of the people.
The three Bills that I am debating are the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, the Promotion of Access to Information Amendment Bill and the Promotion of Administrative Justice Amendment Bill. The Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill deals with the training and designation of presiding officers of equality courts and it also provides for the incremental implementation of equality courts at magistrate level.
Section 16(1)(a) stipulates that only a judge who has completed the training course contemplated in subsection 2 may be designated by the Judge President as a presiding officer of the equality court. Section 16(1)(c) provides that the Minister must, after consultation with the head of an administrative region defined in section 1 of the Magistrate Courts Act of 1944, designate one or more magistrates as equality court magistrates for the administrative region concerned.
The Bill further empowers the Minister to define the area of jurisdiction of each equality court. The designation of magistrates and additional magistrates will, in terms of the proposed section(1)(c), be left to the administrative regions concerned.
The new subsection 4 places an obligation on the Director-General to compile a list of the names of judges, magistrates and additional magistrates who have completed the course as presiding officers of the equality courts. A presiding officer of the equality courts may perform his or her duties as a magistrate in the normal course of events. It is only an officer in the Department of Justice or another person who has completed the course as clerk of the equality court who may be appointed clerk of the equality court.
Under the Promotion of Administrative Justice Bill and under the Promotion of Access to Information Amendment Bill, it is proposed that, in order to safeguard the independence of the judiciary, it is proposed under clause 2 that the head of the administrative region designate a magistrate or an additional magistrate for the purposes of presiding in court proceedings, as contemplated in the Act, in that administrative region. The Bill also says that only a magistrate or an additional magistrate who has received training, the content of which is developed by the judiciary, may be so designated. In as far as the promotion of equality and the prevention of unfair discrimination are concerned, the chief justice, in consultation with the Judicial Service Commission and the Minister, must implement the relevant courses. It is our wish that not long from now, every court shall perform all of the duties contained in these Bills.
Equality and justice must be part of our value system as people, and not be in the Statute Book alone. In supporting this Bill, we would have made a major contribution in creating a nonracial and nonsexist democratic South Africa. [Applause.]
Mrs S M CAMERER: Chairperson, the four Bills that we are debating today are, in the main, technical, and the New NP, along with all other parties in this House, will be supporting the Bills. Perhaps it is important to highlight one or two aspects of the Bills in relation to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill.
The point needs to be made that I think the Equality Act was passed by this House in a great rush at the end of 1999 and promulgated early in the year
- However, this Act has been implemented in slow motion. It is one of the worst cases we are dealing with. We are nearly three years down the line, and the only operational part of it which has been implemented, is the appointment of the Equality Review Committee.
According to a reply to my question on this, given by the Minister last week, R1,5 million has been found for this committee to research, in conjunction with the SA Human Rights Commission, the possible inclusion of HIV/Aids status, socioeconomic status, nationality and family responsibility as prohibited grounds for discrimination.
The key aspect of the Act, namely the establishment of the equality courts, has been on ice since the passing and implementation of this Bill, which should hopefully change. In answer to another question I posed about the number of equality courts in existence, the Minister answered last week that he had already designated 48 courts as equality courts, but that none were in operation. He also answered that 190 judges, 843 magistrates, 85 clerks of the magistrate courts and registrars in High Court had been trained, but none had been appointed yet.
The purpose of this Bill is to take the establishment of the equality courts forward on a properly managed basis, and hopefully, at a quicker pace. In this sense, this piece of legislation is catching up with what is already happening in the Department of Justice and Constitutional Development. For instance, section 3 of the Bill provides that the Director- General of the department must develop and implement a training course for clerks which includes sensitivity training. Hopefully those 85 clerks who have already been trained will have also received this tuition.
The amending Bill improves certain aspects of the Equality Act, particularly as far as transparency is concerned in that it does provide for the Director-General to keep a list of trained and designated equality courts presiding officers. The Government has rightly had second thoughts about the provision in the original Act giving the Minister discretion to appoint suitably sensitive types as equality courts presiding officers and, as indicated by the hon Dene Smuts, it was much criticised by most of the opposition parties as I recall, certainly ours as well at the time. Now he may only appoint them if appropriately trained.
The Bill also ensures the proper spread of equality courts, although every high court is an equality court. The Bill provides that the Judge President must designate at least one duly trained presiding officer to sit in an equality court in his or her area of jurisdiction, and the Minister must designate at least one magistrate court as an equality court in any administrative region.
Although not yet promulgated, the regulations under the Act have also at last seen the light of day, and it may soon be all systems go for equality courts. Similarly, the Promotion of Access to Information Amendment Bill and the Promotion of Administrative Justice Amendment Bill before us provides for the designation of duly trained magistrates to preside in cases for the purposes of these Acts.
The Insolvency Second Amendment Bill introduces, amongst other improvements, important safeguards for employees. In the case of a petition for the sequestration of a debtor’s estate, notice must now be given also to the employees of the debtor and registered trade unions representing those employees. There are similar provisions in terms of the Companies Act for the winding up of the company.
Although the Law Society of the Cape expressed some reservations about these provisions, expressing the view that might impact negatively on the liquidator’s role in protecting the assets of such a business, nevertheless, we believe that it is an appropriate and a necessary protection for these employees and we therefore support the measure. Also, on behalf of the New NP, I would like to thank the officials of the department for all the help they gave the committee in relation to these Bills which, although short and sweet and agreed to across the board, nevertheless entailed a lot of work on their part.
Mr J T MASEKA: Chairperson, hon members, the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill regulates the designation of presiding officers of equality courts, and also makes provision for the designation of magistrates courts as equality courts.
The Bill empowers the Minister to publish a notice in the Gazette after communication with the head of an administrative region to designate one or more magistrates courts as equality courts for the region, and also to define the area of jurisdiction of each equality court.
A list of judges, magistrates and additional magistrates who have completed a training course as presiding officers of equality courts must be kept, and such presiding officers must perform their functions assigned and conferred to them by this Act. The Bill further makes provision for the appointment of clerks for each equality court by the Director-General of the department, provided such clerk has completed a training course as a clerk of equality court. The UDM supports this Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill.
The promotion of Administrative Justice Amendment Bill amends the definition of court in section 1 by substituting definition of court to mean the Constitutional Court acting in terms of section 167, subsection 6(a) of the Constitution or a High Court or another court of similar status or a magistrates court.
Section 9(a) has been inserted after section 9 of the principal Act, and it deals mainly with the designation and training of presiding officers whose names are included in the list after they have completed a training course before the date of commencement of this section or as contemplated in subsection 5.
The heads of administrative regions must take all reasonable steps with available resources to designate at least one presiding officer for each magistrates court and inform the Director-General and the Department of Justice and Constitutional Development of any magistrate or additional magistrate who has completed a training course. The UDM supports this Promotion of Administrative Justice Amendment Bill.
The insolvency Second Amendment Bill deals with the manner in which the notice of petition for the sequestration of a debtor’s estate should be handled. Section 4 of the Insolvency Act is amended by substitution for subsection 2(a) and (b), and stipulates a time period of seven days after the date of publication of the notice of petition in the Gazette when the petitioner must deliver or post a copy of the notice to all creditors of the debtor whose addresses are known.
The petitioner must also, within a seven day period, furnish such copies of notice by post to every registered trade union that, to such practitioner’s knowledge, represents any of the debtor’s employees and also to the employees themselves. Such copies are to be affixed on the notice board to which employees have access, inside the debtor’s premises or to the front gate of the premises if there is no access to the premises. The UDM supports this Bill. [Applause.]
Mr G SOLOMON: Chairperson, as the hon Fatima Chohan-Khota has indicated, I am going to deal with the Insolvency Second Amendment Bill and those amendments requested specifically by Cosatu, dealing specifically with the provisions on notification in the process of the sequestration of individuals, companies and close corporations.
Before the advent of Cosatu and its affiliates, it was common amongst coloured people in the townships of the Western Cape to hear the following:
Ek het my job verloor, want die factory het toegemaak.
This literally means ``I have lost my job, because the factory closed down.’’ The hon Randy Pieterse, sitting over there, is well acquainted with this type of experience.
What is the context of this Cape colloquial expression? I think it is the blatant abuse and exploitation of workers before the new democratic Constitution and progressive labour legislation which came into effect under the ANC-led Government.
Let me describe a typical scenario for a worker at that time. The worker would leave home at about six in the morning to arrive at work at 7:30. When he/she arrived at work, the factory gates would be locked and bolted. The workers would congregate outside the factory gates, ignorant and unsure about what was happening to their jobs and their future. At about 11 o’clock, official-looking people would arrive to inform the workers that their employer was insolvent. These would be the trustees, or the liquidators of the employer.
The worst part of this scenario is that, more often than not, it happened just before the Christmas holidays when the employer would have to pay holiday pay and bonuses. This had a devastating effect on workers and their families and their communities at large.
Cosatu has long called for the review and overhaul of the Insolvency Act in order to increase protection and minimise the devastating effect on workers when employers are liquidated. This Bill, combined with the provisions of the early Insolvency Amendment Bill, represents a significant step in that direction.
In compliance with agreements reached in the Nedlac, Cosatu requested the following provisions which are contained in the amending Bill before this House: Clause 1 of the amending Bill provides that, within a period of seven days from the date of publication of the notice in the Gazette, the applicant for a sequestration order must deliver a copy of the notice to all the creditors. He/she must also, within the same period, furnish a copy of the notice to sequestrate to every trade union representing any of the employees. In other words, before the court can proceed to grant the order of sequestration, the employees and their unions must be informed.
This creates an opportunity for trade unions, on behalf of workers, to negotiate with employers and make proposals to either salvage the business, or stake their claims as creditors against the business.
Clause 3 makes provision to serve a copy of the rule nisi on trade unions and employees upon the court granting a provisional sequestration. This rule enables the employer to appear in court and show cause why his or her business should not be sequestrated finally. The trade unions and workers must be given the same opportunity to show cause why the business should not be sequestrated finally. Clause 7 provides that, after the final order is granted, a winding-up order not only be served on the employer, but also on the trade unions and the employees. A winding-up order is where a curator or administrator is appointed to consolidate assets and liabilities, that is, what he has and what he owes to pay the debts from what is left of the business. In other words, the workers will know what assets are left in order to recover outstanding wages and benefits.
These amendments, called for by Cosatu, empower workers to be informed of the whole process of sequestration and to make interventions, if necessary, in their own interests. As a collective, the workers, in terms of wages and benefits, are certainly a major creditor and cannot be left out of the process.
The ANC supports Cosatu’s positions and the Bill. [Applause.]
Mr S N SWART: Chairperson, the ACDP is on record as having opposed the Equality Bill due, inter allia to its protection of sexual orientation and abortion. Notwithstanding this position, however, we support the principles of equality and non-discrimination as seen from a Biblical world view, and we believe the proposed amendments contained in this Bill should be supported.
As has been pointed out, the amendments are technical and seek to regulate the designation of presiding officers of equality courts, and to provide for their training with a view to building a dedicated and experienced pool of trained and specialised officers. The amendment meets the objection that the present definition dealing with the designation of magistrates and judges infringes on the independence of the judiciary and the principle of the separation of powers passed. In this connection, we commend the DP on the position they took, which has now been vindicated. Similar objections were raised to the Promotion of Administrative Justice Act and to the Promotion of Access to Information Act which have resulted in similar amendments.
The fourth amending Bill, as has been pointed out, relates to insolvency and makes provision for notice to be given to employees and other institutions when the employer is declared insolvent. There are amendments both to the Insolvency and the Company Acts, which seek to advise the employees and the registered trade unions of insolvency at an early stage to enable them to assist in finding solutions to the financial difficulties of the employer, and to warn them about the financial position of the employer. An important amendment to both the Insolvency and Company Acts provide for compensation if an application for sequestration of an estate or the winding up of the company is an abuse of the court’s procedures or is malicious or vexatious. We trust that this section will reduce the large number of sequestrations and liquidations the country faces each year and allow these individuals or companies a period of grace to bring their financial affairs into order and to enable them to pay their debts. [Time expired.]
Miss S RAJBALLY: Chairperson, the Promotion of Administrative Justice Act is strongly supported by the MF in view that it aims at upholding the constitutional responsibility of section 33.
However, it is felt that the Act did have a few loopholes, one of which is that presiding magistrates reviewing administration actions need not have any specialised skills to deal with the specified action arising out of the Act. This Bill corrects this by allowing only magistrates who have undergone a special training course to preside over such matters.
It is very important to ensure that persons holding such positions must have the correct tools to ensure that efficient and effective procedures further the provisions that allow Parliament to maintain a degree of oversight over the process, and to also allow for greater transparency and, in turn, accountability. The promotion of equality and the prevention of unfair discrimination are also to be upheld as a part of our national Constitution that governs supreme. The MF supports the establishment of equality courts that the Bill aims at putting in place, as well as the appointment of presiding officers. The MF further supports the amendment made to the Insolvency Act and finds it necessary for their fulfilment of the Bill. The MF supports the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, the Promotion of Administrative Justice Amendment Bill and the Insolvency Second Amendment Bill.
Mr M T MASUTHA: Chairperson and hon members, in addressing the three Bills which deal with similar matters, namely the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, the Promotion of Administrative Justice Amendment Bill and the Promotion of Access to Information Amendment Bill, allow me to commence by reiterating our commitment, as the ANC, to the independence of the judiciary which, as a constitutional value, we consider indispensable to sustaining the constitutional democracy.
However, I must express dismay at hon Dene Smuts for having the audacity to come and tell us and educate us with her so-called ``I told you so’’ speech, despite not having attended any committee meetings which considered all these Bills about the independence of the judiciary. It is typical of someone who wants to act as a judge when that person has not participated in the judicial proceedings which should lead to the judgment, except by way of remote control. These three Bills …
The CHAIRPERSON OF COMMITTEES: Order! Hon Masutha, please take your seat. Are you prepared to take a question from Ms Smuts?
Mr M T MASUTHA: No, I do not have the time to answer her question. I can deal with her question after we adjourn.
These three Bills assist in resolving the question on how far the role of the Minister for Justice and Constitutional Development should go in the advancement of the effective and efficient administration of justice, without in any way interfering with the independence of the judiciary. These three Bills seek to strike this delicate balance by, amongst other things, retaining the powers of the Minister to designate the specialised courts for the implementation of the specialised areas of the law on the one hand, and deferring the actual appointment of judicial officers for these courts and the determination of appropriate training for such judicial officers to the judiciary itself, on the other.
Turning to the Insolvency Second Amendment Bill, I should start by saying that this Bill is yet another explicit demonstration of the ANC-led Government’s unwavering commitment to the advancement of the interests of the working class and in line with the objectives of the alliance’s national democratic revolution.
It is not uncommon that the first time workers are informed about the insolvency of their employer is when, on a morning of a normal working day, they find the gates and doors of the premises where they work closed. Only after a desperate search for information are they then informed by the liquidator of the insolvency of their employer.
The Bill before us seeks to change all of that by requiring notice to be given by a petitioner who has become bankrupt of the voluntary surrender of his, her or its estate to the workers and their representative trade unions. A similar obligation is imposed on a creditor who applies for the sequestration of a debtor’s estate. In addition, a copy of a provisional sequestration order, that is a rule nisi in legal lingua, must be served on employees and their registered trade unions.
In view of the serious consequences that a notice of insolvency may have on workers, if an insolvency is in fact not imminent, the Bill seeks to counteract such potential abuse by empowering the court to award compensation to a debtor if a petition for sequestration is an abuse of court process, malicious or vexatious. Similar provisions are made in respect of liquidation of companies and closed corporations in order to align the Companies Act of 1973 and the Closed Corporations Act of 1984, respectively, with these amendments of the Insolvency Act in order to maintain consistency in this regard.
The ANC, in supporting this Bill, wishes to express its gratitude to Cosatu for its valuable contribution in the development of these Bills. Already, the current Labour Relations Act has, with the recent enactment of section 197 (b), made provision for an employer who faces financial difficulties that may reasonably result in the winding up or sequestration of his or her business, to advise amongst others, a workplace forum, trade union or representative nominated by the employees accordingly. The same applies where an employer applies for and receives an application for sequestration or winding up of his or her business. [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Mr Chairperson, I would like to thank all the members for their support of these amendments, and I would just like to make a couple of comments on some of the inputs that I found very useful.
The hon Chohan-Kota made some observations about the use of the word ``sex’’ and the dichotomous nature of that descriptive word. We have taken note, and I will certainly be taking it back to the Ministry to look at. I fully agree with the hon member that it does not speak well to the principles that underlie our Constitution and the values of equality. I also think that the hon member’s comments on the Review Committee are interesting, and these will also be taken back to the Ministry for consideration.
The hon Mzizi referred to unions acting as directors. I think that the hon Solomons’ input provided a really good reply to that view, in terms of the fairness that this new legislation or this amendment holds for workers.
Workers have always been kept in the dark, to their detriment, even under the best circumstances, let alone when information was withheld from them with the view to doing them in. So, I would like to think that the legislation speaks to the values of our Constitution and to the values that we uphold with our partners in the alliance. I do believe that this amendment will not be abused, particularly because of the fairness of its inputs.
I would like to thank the hon Solomon for putting the legislation into a context that we could all relate to. I found it very useful. It does reassure one, once the legislation is through, that one can feel good about what it is doing for the people of our country.
The hon Masutha, as usual, made some thoughtful inputs on this, and I think that we are all now fully conversant with the aspects that these amendments include. I would like to thank the members for their support of these amendments, and I look forward to the swift implementation of the equality legislation because, I think, this really does make provision for incremental and sustainable delivery. [Applause.]
Debate concluded.
Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill read a second time.
Promotion of Administrative Justice Amendment Bill read a second time.
Promotion of Access to Information Amendment Bill read a second time.
Insolvency Second Amendment Bill read a second time.
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION AMENDMENT BILL
(Consideration of Report of Portfolio Committee on Justice and
Constitutional Development thereon)
Report adopted without debate.
JUDICIAL MATTERS AMENDMENT BILL
(Consideration of Report of Portfolio Committee on Justice and
Constitutional Development thereon)
Report adopted without debate.
INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE BILL
(Consideration of Bill and of Report of Portfolio Committee on Justice and Constitutional Development thereon)
There was no debate.
Report adopted and Bill agreed to.
The House adjourned at 17:34. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS:
National Assembly:
- The Speaker:
Bill passed by National Assembly on 17 October 2002: To be submitted to
President of the Republic for assent:
(i) Institution of Legal Proceedings against certain Organs of State
Bill [B 65D - 99] (National Assembly - sec 75).
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Minister of Water Affairs and Forestry:
Report and Financial Statements of the Bloem Water for 2000-2001.
National Assembly:
- The Minister of Public Enterprises:
Letter from the Minister of Public Enterprises tabled in terms of
section 65(2)(a) of the Public Finance Management Act, 1999 (Act No 1
of 1999). The letter explains that the delay in the tabling of the
Annual Report and Financial Statements of Transnet Limited is due to
the auditors' verifications and amendments to the financial sections of
the Annual Report which resulted in the delay in the printing of the
final Annual Report.
The Annual Report of Transnet Limited will be available for tabling in
Parliament not later than 31 October 2002.
- The Minister of Water Affairs and Forestry:
Letter from the Minister of Water Affairs and Forestry tabled in terms
of section 65(2)(a) of the Public Finance Management Act, 1999 (Act No
1 of 1999). The letter explains that the delay in the tabling of the
Annual Report and Financial Statements of Bloem Water was due to the
fact that the report had too many flaws and was not reflective of the
performance of the Bloem Water. To protect the image of Bloem Water,
the Chief Executive Officer, Mr L Pelepele, referred the document back
to the relevant manager for re-compilation.
COMMITTEE REPORTS:
National Assembly:
-
Report of the Ad Hoc Committee on Intelligence Legislation on the Intelligence Services Control Amendment Bill [B 50 - 2002] (National Assembly - sec 75), dated 15 October 2002:
The Ad Hoc Committee on Intelligence Legislation, having considered the subject of the Intelligence Services Control Amendment Bill [B 50 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 50A - 2002].
-
Report of the Ad Hoc Committee on Intelligence Legislation on the National Strategic Intelligence Amendment Bill [B 51 - 2002] (National Assembly - sec 75), dated 15 October 2002:
The Ad Hoc Committee on Intelligence Legislation, having considered the subject of the National Strategic Intelligence Amendment Bill [B 51 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 51A - 2002].
-
Report of the Ad Hoc Committee on Intelligence Legislation on the Electronic Communications Security (Pty) Ltd Bill [B 59 - 2002] (National Assembly - sec 75), dated 15 October 2002:
The Ad Hoc Committee on Intelligence Legislation, having considered the subject of the Electronic Communications Security (Pty) Ltd Bill [B 59 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 59A - 2002].
-
Report of the Ad Hoc Committee on Intelligence Legislation on the Intelligence Services Bill [B 58 - 2002] (National Assembly - sec 75), dated 16 October 2002:
The Ad Hoc Committee on Intelligence Legislation, having considered the subject of the Intelligence Services Bill [B 58 - 2002] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B 58A - 2002].