National Assembly - 24 October 2002
THURSDAY, 24 OCTOBER 2002 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:01.
The Chairperson of Committees 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
Mrs P TSHWETE: Chairperson, I shall move on behalf of the ANC:
That the House -
(1) notes -
(a) that the theme of the month of October is ``the rights of the
child''; and
(b) further notes that that the Department of Social Development is
considering legislation that will provide a comprehensive
framework for the promotion of children's rights and the
protection of children against abuse and exploitation;
(2) believes that this reflects the commitment of the ANC Government to defending and upholding the rights of children and the ANC’s commitment to creating a caring society and a nation that embraces the value of ``every child is my child’’; and
(3) welcomes the initiatives of the Department of Social Development to pioneer legislation which will protect and uphold the rights of children …
[Time expired.] [Applause.] Adv P S SWART: Chairperson, I hereby give notice that I shall move:
That the House -
(1) expresses its regret at the murder of British tourist, Diane Conway, in Mpumalanga on Tuesday;
(2) conveys its condolences to her husband, who was wounded in the incident, and to her family;
(3) notes that thousands of South Africans are murdered each year, including 108 police officers so far in 2002;
(4) welcomes media reports that a large number of detectives have been detailed to track down Mrs Conway’s killer; but
(5) insists that the murder of South Africans receives the same attention and careful investigation to provide an effective deterrent to crime.
Prince N E ZULU: Chairperson, I hereby give notice that I shall move, on behalf of the IFP, on the next sitting day of the House:
That the House -
(1) appreciates the normalisation of port operations in the Durban harbour after the disruptions caused by the Cosatu strike called to oppose the Government’s liberalisation of the economy early this month;
(2) notes that the port of Durban is the most important in Africa and the largest in the southern hemisphere, and that targeting it for disruption has dire consequences for an untold number of innocent people in the hemisphere; and
(3) calls on the Government to review the commitment of the tripartite alliance to the philosophy of a shared economy which attracts foreign investment or a rigid nationalised stereotype.
Mr N H MASITHELA: Chairperson, I hereby give notice that I shall move on behalf of the ANC:
That the House -
(1) notes that -
(a) the window period allowing political representatives to cross
the floor at local government level ended on Tuesday, 22 October
2002; and
(b) this period has resulted in a reconfiguration of the political
landscape and realignment of political forces in the country;
(2) believes that the new political realignment represents a rejection of the racial polarisation of the country’s political paradigm engineered by the DA’s ``fight back’’ strategy;
(3) welcomes the new political realignment and reconfiguration of the political landscape; and
(4) calls on the DA to reconsider its strategies as they only perpetuate racial divisions amongst the people of South Africa.
[Applause.]
Mnr C B HERANDIEN: Voorsitter, ek stel namens die Nuwe NP voor:
Dat die Huis -
(1) met misnoeë kennis neem van die volgende growwe, rassistiese, beledigende uitlating wat Dinsdag per selfoon aan ‘n lid van die Nuwe NP gestuur is:
'n Hotnot kon nog nie 'n teelepel ontwerp nie. Hoe het jy gedink,
gaan julle dit regkry om George oor te neem. Julle is te ...
onnosel. Lank lewe die DA - Die Baas.
[Tussenwerpsels.]
(2) verder kennis neem dat die Nuwe NP in besit is van die nommer waarvandaan dit gestuur is en, ongeag die sender van hierdie boodskap, die Menseregtekommissie gaan versoek om hierdie saak dringend te ondersoek; en
(3) tesame met die Nuwe NP, hierdie haatspraak in ‘n baie ernstige lig beskou en glo dat Suid-Afrikaners dit ten sterkste sal veroordeel, want Suid-Afrika het nie plek vir mense met hierdie gesindheid nie. [Tussenwerpsels.] [Applous.] (Translation of Afrikaans notice of motion follows.)
[Mr C B HERANDIEN: Chairperson, I move on behalf of the New NP:
That the House -
(1) notes with disappointment the following rude, racist, insulting expression that was sent per cellphone to a New NP member on Tuesday:
'n Hotnot kon nog nie 'n teelepel ontwerp nie. Hoe het jy gedink
gaan julle dit regkry om George oor te neem. Julle is te f...
onnosel. Lank lewe die DA - Die Baas.
(2) further notes that the New NP is in possession of the number from which it was sent and, regardless of the sender of this message, will request the Human Rights Commission to urgently investigate this matter; and
(3) together with the New NP, views this hate speech in a very serious light and believes that South Africans will strongly condemn this, because South Africa does not have room for people with such an attitude.]
Prof L M MBADI: Chairperson, I hereby give notice that I shall move on behalf of the UDM at the next sitting of this House:
That the House -
(1) acknowledges the importance of tourism to the South African economy, and its positive contribution to job creation;
(2) notes that the success of the South African tourism industry has resulted in South Africa being one of the best performing tourist destinations in the world in the past year;
(3) condemns the criminal violence to which some tourists have been exposed during their visits to South Africa, recognising that such attacks have a direct effect on South Africa’s desirability as a tourist destination; (4) extends its sympathy to the Conway family and to Mr John Conway, who is currently in a Nelspruit hospital, after being shot and witnessing the death of his wife at the hands of a criminal in their hotel room in Mpumalanga; and
(5) urges the Government to ensure the safety of visitors to this country.
Mr G C OOSTHUIZEN: Chairperson, I hereby give notice that I shall move, on behalf of the ANC:
That the House -
(1) notes that the ANC in the Free State held a successful meeting with a broad spectrum of the Afrikaner community in the Braam Fischer Building, Bloemfontein, yesterday;
(2) further notes that this historic meeting provided a platform for South Africans with different backgrounds to engage in a dialogue on issues which are of mutual concern; (3) believes that dialogues of this nature contribute positively towards new patriotism, nonracialism and nation-building;
(4) congratulates the ANC in the Free State on embarking on this historic dialogue; and
(5) urges all organisations and leaders to emulate this example and encourage dialogue amongst South Africans in order to build national unity and reconciliation.
[Applause.]
Mnr C AUCAMP: Voorsitter, ek gee hiermee kennis dat ek op die volgende sittingsdag, namens die AEB, sal voorstel:
Dat die Huis –
(1) kennis neem van ‘n klaarblyklik regeringsbetaalde radio-advertensie waarin versoening en verandering in Suid-Afrika voorgehou word; (2) ook kennis neem dat hierdie advertensie, in sy poging om ‘n verbeterde situasie sedert 1994 te illustreer, onder andere ‘n uitspraak van voormalige minister Carel de Wet oor kontak oor die kleurskeidslyn aanhaal, asook die uitspraak van die oud-minister van justisie, Jimmy Kruger, dat ``ÿ.ÿ.ÿ. die dood van Steve Biko hom koud laat’’;
[Tussenwerpsels.]
(3) saamstem dat ‘n aanhoudende selektiewe fokus op die foute van een groep in die verlede, nie versoening nie, maar vervreemding in die hand werk, en ook nie, soos die nuwe Uitsaaiwet vereis, in die openbare belang is nie;
(4) glo dat die tyd aangebreek het om die sogenaamde ``sondes van die vaders’’ te begrawe en daardie hoofstuk af te sluit; en
5) die Regering en die SABC versoek om die advertensie te staak en te
vervang deur een wat nie teer op die verlede nie, maar op die
toekoms fokusseer. (Translation of Afrikaans notice of motion follows.)
[Mr C AUCAMP: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the AEB:
That the House -
(1) takes note of a radio advertisement, apparently paid for by Government in which reconciliation and change is favoured;
(2) also notes that this advertisement, in its effort to illustrate an improved situation since 1994, inter alia quotes a statement made by former minister Carel de Wet about contact across the colour bar, as well as the statement by the former minister of Justice, Jimmy Kruger, that the death of Steve Biko left him cold;
(3) agrees that the repeatedly selective focus on the mistakes of one group in the past does not bring about reconciliation, but estrangement and this is not, as required by the new Broadcasting Act, in the public’s interest;
(4) believes that the time has come to bury the so-called “sins of the fathers” and close that chapter; and
(5) requests the Government and the SABC to discontinue the advertisement and replace it with one that does not hanker back to the past, but focuses on the future.]
Mr N MTHETHWA: Chairperson, I hereby give notice that I shall move on behalf of the ANC:
That the House -
(1) notes that the ANC Policy Conference of 2002 resolved that -
(a) the Government must expedite the separation of social security
from social development; and,
(b) consistent with this resolution, the Cabinet has approved the
establishment of the SA Social Security Agency to distribute
social grants;
(2) believes that the establishment of the Social Security Agency will improve the distribution of social grants and will extend the social net to include all people who qualify for social security;
(3) further believes that the establishment of the Social Security Agency will contribute to rolling back the frontiers of poverty; and
(4) welcomes the plans to establish the Social Security Agency.
[Applause.]
Mr B G BELL: Chairperson, I hereby give notice that I shall move:
That the House -
(1) expresses its dismay at efforts by the ANC mayor of Govan Mbeki municipality, Mdibanisi Tsheke, to reinstate a council official who was dismissed after being found guilty on multiple fraud, corruption and misconduct charges;
(2) condemns the mayor’s suspension of the municipal manager on gross insubordination charges for refusing to reinstate the guilty official;
(3) demands a full forensic investigation into this matter as well as allegations that tenders were awarded to companies which made large donations to the mayor’s soccer club; and
(4) calls on the ANC in Mpumalanga to clean up corruption in the province.
Mrs L R MBUYAZI: Chairperson, I hereby give notice that I shall move on the next sitting day of the House on behalf of the IFP:
That the House -
(1) notes that five of the eight South African beaches that were recently accredited with ``blue flag’’ status are located in the province of KwaZulu-Natal;
(2) further notes that ``blue flag’’ status is a well-known environmental and tourism campaign in Europe, providing local and international visitors with proof that the awarded beaches adhere to international safety, cleanliness and other tourist standards; and
(3) congratulates all eight beaches accredited with this honour and hopes that they will maintain the high standards they have set. Ms E THABETHE: Chairperson, I hereby give notice that I shall move on behalf of the ANC:
That the House -
(1) notes that South Africa will appoint an ambassador to the World Trade Organisation in Geneva;
(2) further notes that the imminent appointment of the ambassador reflects the ANC Government’s acknowledgement of globalisation and global structures of economic governance;
(3) believes that this will provide an opportunity for South Africa to effectively lobby and network during the current Doha round of the World Trade Organisation’s negotiations which, amongst other things, are designed to put pressure on the European Union, Japan and the US to scale down heavy subsidies to their farmers;
(4) also believes the massive scaling down of subsidies to farmers in the countries of the north will level the playing field and will allow commodities and agricultural products from developing countries to compete on an equal footing with those of the north;
(5) further believes that this reflects the commitment of the ANC Government to building a better and fairer world for all; and
(6) welcomes the decision of the ANC Government to appoint an ambassador to the World Trade Organisation.
[Applause.]
Mrs S M CAMERER: Chairperson, I hereby give notice:
That the House -
(1) welcomes the approval by Cabinet yesterday of legislation which provides for compulsory testing for HIV of rape suspects if requested by the rape victim, and urges the Government to bring it to Parliament as soon as possible;
(2) believes this is a victory for all the women of South Africa as a measure to combat violence against women and the spread of HIV/Aids;
(3) notes that this has been part of the New NP’s policy on measures to combat Aids and protect victims of rape since 1999 and that the New NP has supported this at every opportunity; and
(4) also believes it can look forward to many positive outcomes from the close co-operation between the ANC and the New NP in terms of their co-operative governance agreement.
[Applause.]
Mr S ABRAM: Chairperson, I shall move at the next sitting of the House: That the House -
(1) acknowledges that the founding principles of the African Union and Nepad are rooted in the principle of human rights, and, without its enforcement, any other political and economic successes achieved under the auspices of these programmes will not bring an improvement to the lives of the people of Africa;
(2) further acknowledges that human rights abuses lend credence to the incidence of Afro-pessimism and the negative perceptions of the African continent;
(3) notes with concern the continued occurrence of various forms of gross human rights abuses, including such atrocities as the systematic rape of innocent civilians, military and police-inspired torture and the use of children in warfare in many parts of the African continent from the Ivory Coast to Burundi, from the Democratic Republic of Congo to Zimbabwe, and from Rwanda to Sudan - and that the death in detention of Learnmore Jongwe, a Zimbabwean MP, is an example;
(4) unreservedly condemns the occurrence of such human rights abuses as antithetical to the dignity of African people; and …
[Time expired.]
JUDICIAL MATTERS AMENDMENT BILL
(Consideration of Report of Portfolio Committee on Justice and
Constitutional Development thereon)
Report adopted without debate.
ADMINISTRATION OF ESTATES AMENDMENT BILL
JUDICIAL MATTERS AMENDMENT BILL
(Second Reading debate)
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, colleagues, I will be dealing with two separate pieces of legislation during this input, beginning with a piece of legislation whose discriminatory provisions need to be relegated to the legislative dustbin as swiftly as possible, so that we can completely eliminate any distinction in terms of race when dealing with intestate estates.
Although it is now nearly nine years since our country’s transition to a society based on democratic values, social justice and fundamental human rights, we are still faced with an anachronistic and discriminatory piece of legislation on our Statute Book, namely the Black Administration Act.
The existence of this piece of legislation has, since 1994, been a constant and painful reminder of this country’s deeply divided past. The Constitutional Court recently pointed out that the concepts on which the Act was based, ``the memories it evokes, the language it continues to employ and the division it still enforces are antithetical to the society envisaged by the Constitution’’. There can be no doubt that we would have wanted to do away with this archaic Act long ago. However, the obstacles created by this Act are difficult to resolve without delay because they relate to practical problems of administration and policy questions, which relate to achieving equality in our society.
The Constitutional Court faced a similar question. As one of the presiding judges asked at the time:
How, then, may we cleanse our Statute Book of all traces of a law which was a pillar of the past, of a deeply divided society characterised by strife, conflict, untold suffering and injustice, while at the same time preventing undue dislocation and hardship?
I am referring to the case of Moseneke v The Master in which the Constitutional Court declared a section of the Black Administration Act of 1927 inconsistent with the Constitution.
I will not do justice to this debate if I do not briefly refer to the contents of a section of the Act and the main objects of the Bill now before us. I am, however, happy to announce that the promotion of this Bill represents another nail in the coffin of the Black Administration Act.
The offending section provided that if a black person died without a valid will, the appointment of an executor was not necessary and, further, that the Master did not have powers in connection with the administration and distribution of the relevant estate. The Constitutional Court also declared regulation 3(1) of 6 February 1987, which was made in terms of the provisions of the Act, invalid, but suspended the order of invalidity until 6 December 2002.
It is important to note that reporting an intestate estate of a black person was previously confined to magistrates’ offices, and the court subsequently ordered that the regulation should be interpreted so that the beneficiaries of an intestate black estate had the choice of reporting the estate to a magistrate or the Master. It should be emphasised that the Constitutional Court’s decision dealt with estates that devolve according to common law and not with estates that devolve according to customary law.
The Bill proposes that an estate of a deceased person, which does not devolve according to customary law must be administered under the control of the Master of the High Court. The Bill states clearly that the Master will not have jurisdiction or functions in respect of any property that devolves according to customary law.
I wish to point out that this Bill should be regarded as an interim measure. This is because the SA Law Commission’s investigation into the customary law of succession is in its final stages of completion. We eagerly await the relevant report from the commission.
The law of succession dictates who the beneficiaries of a deceased person are. The rules for the administration of estates, on the other hand, prescribe the procedure for the administration of the estate, namely how creditors should be paid and how benefits should be transferred to beneficiaries. Under customary law where a beneficiary steps into the shoes of the deceased, there is no clear distinction between the rules for the administration of estates and the law of succession.
Pending the finalisation of the Law Commission’s review of the customary law of succession, no changes are proposed to the administration of estates that devolve according to customary law.
The Moseneke judgment pointed out to us that the benefits of administering deceased estates by magistrates, such as convenience and low cost, can also be accomplished by a nondiscriminatory provision. The Justice department considered all possibilities and concluded that the best way to reap the benefits of a central records system, while achieving service accessibility across the board, was to administer all estates under the control of the Master. The Bill therefore inserts a new section in the Administration of Estates Act in terms of which provision is made for the designation of service points where officials of the department will exercise functions on behalf of and under the direction of the Master. The new section provides that the Minister may designate officials at service points to exercise powers and perform duties on behalf of and under the direction of the Master. The relevant provision was based on statistics and information of officers who currently fulfil certain functions regarding the administration of estates at magistrates’ offices.
Turning to the second Bill, it is almost traditional that a Judicial Matters Amendment Bill, the purpose of which is to correct deficiencies that may have arisen in practice in certain Acts of Parliament and to repeal certain redundant provisions, comes at the end of a parliamentary session. The Bill usually contains a variety of amendments which do not require individual amending Bills. The Bill before Parliament today is no exception - it is a real omnibus of legislation. I do not intend explaining the technical amendments to the House today. Many are straightforward and require no explanation. Allow me to make a few remarks about some of the provisions which have a little more substance.
A few of the amendments in the Bill bring some older provisions on our Statute Book into line with the constitutional dispensation, such as the amendment to the Stock Theft Act of 1959, which is intended to address an undesirable presumption in line with a judgment of the Constitutional Court. In a similar vein, the amendments to sections 415 and 417 of the Companies Act emanate from judgments of our Constitutional Court from which we obtained guidance.
These amendments, in keeping with the right against self-incrimination, prohibit self-incriminating evidence obtained in interrogation proceedings, as contemplated in the Companies Act, from being used in subsequent criminal proceedings, except in perjury-related criminal proceedings.
We are amending a section of the Magistrates’ Courts Act of 1994 which allows the court to rescind default judgments in cases in which plaintiffs have agreed in writing that such judgments be rescinded. This will come as a relief to many poor debtors who have found themselves in financial difficulties and who get court orders against them, causing untold hardship when they later try to obtain credit of any sort.
Often the debt in question is subsequently paid in full, but yet the debtor still has to bear the consequences of having a court order against him or her. In many cases, the people involved are those most marginalised in our society, those who are so often exploited, particularly within the credit framework.
The General Law Amendment Act of 1962, among others, provides that a person who has sole custody of his or her minor child in terms of an order of court and who, contrary to such order, refuses the other parent access to the child, is guilty of an offence. These provisions also criminalise the failure of a sole custodian parent to notify the noncustodian parent of a change of address of the sole custodian parent. The Bill seeks to amend that provision in order to make it clear that the provision will apply to any custodian parent, whether sole or not.
The Bill also amends the SA Law Commission Act so as to effect a name change; it will now be known as the SA Law Reform Commission. This will focus attention on the core business of the commission, and that is dealing with law reform. The amendment will also bring the commission’s reporting obligations in line with those of the Public Finance Management Act.
I have so much more to say, but I will just limit myself to closing remarks. I thank, once again, the very diligent portfolio committee members and their chair, as well as the officials who supported them through the process. I propose that the Bill be accepted by the House. [Applause.]
Adv J H DE LANGE: Chairperson … [Interjections.] Listen, your party has received so many hidings this week I would have thought that you would keep quiet today.
Chairperson, I rise on behalf of the ANC in unconditional support of these two pieces of legislation, namely the Administration of Estates Amendment Bill and the Judicial Matters Amendment Bill. I will constrain my comments today to the former, that is the Administration of Estates Amendment Bill.
Once again, this House, unfortunately, has to deal with an aspect of the Black Administration Act of 1927. I would like to remind this House that on 26 September 2000, during the passing of the Limitation of Legal Proceedings Against Government Institutions Bill, this House adopted a report on that occasion which dealt with the Black Administration Act. In terms of paragraph 6 of that report, the House accepted the following, and I quote:
The Committee expresses its concern that it had to amend the Black Administration Act, 1927 (Act No. 38 of 1927), once again, on a piecemeal basis. The Committee is aware that the said Act was one of the cornerstones of the previous dispensation and reflects many of the injustices of the past. The Committee also expresses the view that it is unacceptable that six years after the new constitutional dispensation came into being, the above-mentioned Act has still not been reviewed in its entirety with a view to bringing it into line with the Constitution. In this regard, it was further brought to the Committee’s attention that on 5 September 2000 the High Court of Pretoria, in the case of D E Moseneke and Others v The Master of the High Court (Case No. 20006/2000), declared the provisions of clause 3(1) of the Regulations promulgated in terms of the above-mentioned Act to be invalid, unconstitutional and of no force and effect. In the light of the above, the Committee recommends that each Member of the Executive who is responsible for a Department that administers specific sections of the above-mentioned Act, and especially those Members who are responsible for the Departments of Home Affairs, Justice and Constitutional Development and Land Affairs, be requested to review the sections which their respective Departments administer with a view to bringing those sections into line with the Constitution. As it appears that the above-mentioned Act is administered by various different government structures, which may explain why no Department is taking responsibility for the review of the whole Act, the Committee recommends that this matter also be brought to the attention of the President. The Committee urges the Minister for Justice and Constitutional Development to consider referring the review of the whole of the above-mentioned Act to the South African Law Commission as a project of the highest priority.
Now from the briefings that we have received, I have to say, unfortunately, that not much seems to have happened in this regard. The matter has been referred to the Law Commission, but the Law Commission still has not appointed a committee to research the matter. They are in the process of doing so, and that means that it is still going to be some time before we have a review of this Act.
As far as I can establish, it also seems that none of the departments that administer aspects of this Bill have brought any legislation before Parliament, except, of course, for this piece of legislation, to deal with the matter before us today. We would, once again from the committee, urge that this matter be moved forward as fast as possible. We all know that this Bill was a cornerstone of the previous dispensation and it really needs to be removed rapidly from the Statute Book.
Now, let me deal with a specific matter before us today in respect of the Black Administration Act and that is the amendments that we brought about in this Administration of Estates Amendment Bill. I start with a quote by Judge Sachs in the Moseneke judgment, and it reads as follows:
The Black Administration Act has been described by this Court as an ``egregious apartheid law which anachronistically has survived our transition to a nonracial democracy’’. Subordinate legislation made under it has been referred to as part of a demeaning and racist system, as obnoxious, and as not befitting a democratic society based on human dignity, equality and freedom. The Act systematised and enforced a colonial form of relationship between a dominant white minority who were to have rights of citizenship and a subordinate black majority who were to be administered.
… It is painful that the Act still survives at all. The concepts on which it was based, the memories it evokes, the language it continues to employ, and the division it still enforces, are antithetical to the society envisaged by the Constitution. It is an affront to all of us that people are still treated as ``blacks’’ rather than as ordinary persons seeking to wind up a deceased estate, and it is in conflict with the establishment of a nonracial society where rights and duties are no longer determined by origin or skin colour.
It is this issue we are addressing today, because Judge Sachs then went further to declare section 23(7)(a) of the Black Administration Act inconsistent with the Constitution and invalid with immediate effect. This section provided that the appointment of an executor was not necessary in, nor did the Master of the High Court have any powers in connection with, the administration and distribution of the estate of any black person who died without leaving a valid will. Previously, of course, under the Black Administration Act, such estates were dealt with as intestate estates of black persons and, of course, within the magistrates’ court.
Judge Sachs, further, also found that Regulation 3(1) of Regulation 200 of 1987 to be invalid and suspended the order of invalidity until 6 December
- This is why we are urgently passing this law today, of course, to meet that deadline. The court ordered that the regulation should be interpreted so that beneficiaries of an intestate estate of a black person had a choice to report the estate to a magistrate or the Master. The court emphasised that the decision deals with estates which devolve according to common law only, and not with estates which devolve according to customary law.
What all this means in a nutshell is that during the previous dispensation the administration of estates was dealt with on a racial basis. If one was a white person, then one’s intestate estate was dealt with in terms of the Administration of Estates Act and the rules and regulations which emanated from that legislation, and the Master’s office was the institution which looked after and dealt with the estate. If one was classified an African person, then one’s intestate estate would fall under the Black Administration Act, and the magistrates’ court would deal with the matter in terms of different rules and regulations.
This, now, is being taken away …
Mr G B D McINTOSH: [Inaudible.] Adv J H DE LANGE: You were one of those who supported those laws, so I would not be too loud if I were you.
Mr G B D McINTOSH: Oh, do you think so?
Adv J H DE LANGE: Yes. Go and look at the records. You will see you people supported that law.
Mr G B D McINTOSH: You are ignorant.
Adv J H DE LANGE: No, I am not ignorant. You are the ignorant one, because you are the ones that supported such laws that created such racial divisions in our country.
Mr M J ELLIS: Do not talk rubbish, Johnny.
Adv J H DE LANGE: Go and look at the law. You will see who supported it. I have looked at it. Go and look at it. [Interjections.] You got a hiding this week already; do not get another hiding today. Be careful. [Interjections.] You used to have a lot of councils in the Western Cape. Today you only have nine councils left. We have 22 councils. [Interjections.] That I call a hiding. If I were you I would keep quiet. I would not raise these issues. [Interjections.] In any case, let us get back to the unbundling of racism, as supported by yourselves.
The unbundling of racism is as follows. As I have explained, those laws will no longer be the same. In terms of this judgment, African people were now given an option. They could either deal with the matter in terms of the Master’s office or they could deal with it in terms of the magistrates’ court.
This regime will only be in place until 6 December. Once we have passed this Bill, then the Act will come into operation on 5 December. From that moment onwards, for the first time ever in this country, the estates of whites and blacks who have died and who have not left a will, will henceforth be dealt with in terms of the same law - the Administration of the Estates Act - and by the same institution - the Master’s office. Of course, there was one worry which we did have in this regard and that was that Masters’ offices are only situated in a few places in this country, usually the seat of a High Court. We were very worried that poor people and people in rural areas would have difficulty accessing Masters’ offices. So we have also changed the law to allow the department now to appoint an official at a court who acts on behalf of and under the Master in each magistrates’ court.
Henceforth, blacks and whites will still be able to do what blacks did in the past. They will be able to go to the magistrates’ court and deal with their administration of estate matters generally, but intestate estate matters in particular, at the magistrates’ court. The only difference is that this will be done under a different law and the official will now act as a representative of the Master’s office.
May I also just thank all those persons involved in making sure that this piece of legislation was at last brought before Parliament in order for us to get rid of something rather obnoxious from our past. I would, particularly, like to thank Mr Cronje of the Law Commission and Mr Koos van der Merwe, not this House’s Koos van der Merwe, another Koos van der Merwe
- there are so many of them in the Master’s office - for all their efforts in this regard. [Laughter.]
Then, lastly, to show that I am magnanimous, I really want to thank all the opposition parties in this Parliament for supporting this piece of legislation and for getting rid of what some of them caused, created and supported in the past. [Applause.]
Mnr N J J van R KOORNHOF: Mnr die Voorsitter, sedert my vertrek in 1998 om regeringsdiens te gaan verrig in die Wes-Kaapse regering, lewer ek vandag, ná bykans vier jaar, weer ‘n toespraak in dié raadsaal.
Agb LEDE: Hoor, hoor!
Mnr N J J van R KOORNHOF: Dit is lekker om terug te wees, en nog steeds so baie bekende gesigte te sien. Dit is vandag nie ‘n nuwelingstoespraak nie, maar ‘n hertoetredingstoespraak, en dit sal kort wees. Ek praat ook, soos die agb De Lange, oor die eerste deel van hierdie wetgewing. Ek hoop om in die komende maande wat oorbly van hierdie termyn, ‘n positiewe en opbouende rol in hierdie raadsaal te speel.
Die DP verwelkom die wysigings aan hierdie wetgewing. Soos gestel deur die agb Adjunkminister en die agb De Lange, moes hierdie wysigings lankal reeds plaasgevind het. Die SA Regskommissie is nou al geruime tyd besig met die hersiening van die erfreg, veral met betrekking tot die inheemse reg. Dit is ‘n jammerte dat hierdie proses altyd so tydsaam verloop. Alhoewel die SA Regskommissie ‘n verduideliking gee daarvoor, is die vertraging nié altyd goed vir die bouproses om vertroue te vestig in ‘n regstelsel nie.
Die SA Regskommissie moet nog terugrapporteer oor die harmonisering van die inheemse reg en die gemene reg rakende die erfreg. Dit is veral belangrik dat die regte van vroue hier beskerming moet kry. Nog te dikwels veroorsaak die sinergie tussen ras, geslag en kultuurgewoontes die vermoë om te diskrimineer, veral teenoor weduwees.
Te dikwels nog word menseregte ondergeskik gestel aan die gesag van ‘n tradisionele hiërargie. Natuurlik is dit belangrik dat ‘n balans tussen die inheemse reg en die gemene reg gehandhaaf moet word, maar daar is ‘n verpligting om die regte wat in die Grondwet beskerm word, ook te beliggaam in die daaglikse weë en wandel van burgers, en dit vind plaas deur wetgewing.
Die huidige wetswysigings word verwelkom en reguleer nou minstens die administrasie van alle intestate boedels, buiten dié wat deur die inheemse reg beheer word, vir die eerste keer onder die heerskappy van die Meester van die Hooggeregshof, soos genoem deur die agb De Lange. Die feit dat landdroshowe nou dienspunte vir die Meesterskantoor se personeel word, is ‘n voorwaartse stap vir dienslewering in die land. Dit is goed om kennis te neem dat die bogenoemde dienspunte nou ook beskikbaar is vir die publiek ten opsigte van alle ander Meesterskantooraangeleenthede. Dit is ‘n baie gunstige verbetering. Ek hoop en vertrou dat die Meesterskantoor se personeel vinnig en effektief ontplooi sal word binne die landdroskantore.
Die DP steun graag die wetswysigings. [Applous.] (Translation of Afrikaans speech follows.)
[Mr N J J VAN R KOORNHOF: Mr Chairperson, since my departure in 1998 to go and perform Government service in the Western Cape government, I am again, after almost four years, delivering a speech in this chamber.
Hon MEMBERS: Hear, hear!
Mr N J J VAN R KOORNHOF: It is nice to be back, and still to see so many familiar faces. This is not a maiden speech today, but a re-entrance speech and it will be short. I am also speaking, like the hon De Lange, about the first part of this legislation. I hope to play a positive and constructive role in this chamber in the coming months remaining in this term.
The DP welcomes the amendments to this legislation. As stated by the hon Deputy Minister and the hon De Lange, these amendments should have taken place a long time ago. The SA Law Commission has now for a considerable time been busy with the revision of the law of succession, especially with regard to indigenous law. It is a pity that this process is always so time consuming. Although the SA Law Commission does provide an explanation for it, the delay is not always good for the building process to establish faith in a legal system.
The SA Law Commission still has to report back on the harmonisation of indigenous law and common law in connection with the law of succession. It is especially important that the rights of women should receive protection here. Too often the synergy between race, gender and cultural customs still causes the ability to discriminate, especially against widows. Too often human rights are still made secondary to the authority of a traditional hierarchy. Of course it is important that a balance should be maintained between indigenous law and common law, but there is an obligation also to embody the rights which are protected in the Constitution in the daily comings and goings of citizens, and this takes place through legislation.
The current statutory amendments are welcomed and now at least regulate the administration of all intestate estates, except those which are controlled by indigenous law, under the authority of the Master of the Supreme Court, as mentioned by the hon De Lange. The fact that magistrates’ courts now become service points for the personnel of the Master’s office is a forward step for service delivery in the country.
It is good to note that the above-mentioned service points are now also available to the public in respect of any other Master’s office matter. It is a very favourable improvement. I hope and trust that the personnel of the Master’s office will be deployed in the magistrates’ offices quickly and effectively.
The DP gladly supports the statutory amendments. [Applause.]]
Mr M F CASSIM: Chairperson, I rise on behalf of the IFP to fully support both Bills that are in front of us. Knowing the hon Johnny De Lange as well as I do, both on the sports field and in Parliament, I know that he gives more than 16 ounces to the pound. Where he gets the additional ounces from I do not know, but I will vouch for the fact that he does do that.
This raises a very important and pertinent point in that we who make the laws, also need to reflect deeply on the laws we are making. This is because it would indeed be a terrible thing if the legacy we leave behind is one in which the laws we make today - the things we do badly - have to be followed and painfully undone by those who succeed us.
In this respect, if one of the laws is still, anachronistically, on the Statute Book eight years after we have achieved our democracy, the question then arises: How many more such laws may still be hiding somewhere waiting to be taken out and replaced, with the old laws consigned to the dustbin?
In that respect, I think we should also say that if Rule 49(5), similarly, is a Rule that is no longer consistent with our Constitution and no longer in sync with our Constitution, then how many hundreds, maybe even thousands of rules and regulations - and I do not think I would be exaggerating if I said that there may even be ten thousand rules and regulations - are being used at the moment and do not fit in with the constitutional provisions that now exist?
This is why it is imperative that the subcommittee that is charged with the responsibility of looking at delegated legislation should come into being quickly, because every single one of these rules that is out of sync and that is still functional and operational is an impediment to someone in respect of doing business, or going about his or her ordinary life and doing the ordinary things.
So it would be our function to try to be as reflective as we possibly can be in order to remove the last remnants of those laws that are still discriminatory and which still do not function in the spirit of the Constitution that we now have.
One of the issues we should also highlight here is that it is a great pleasure to be able to stand up on behalf of an opposition party and give our full support to legislation that is build on a consensual basis. This signifies not just to our nation but the world at large that this Parliament not only believes in the importance of the Constitution but walks the talk; that not only does it pay lip service to the Constitution but that, in effect, it is deeply sworn to upholding the Constitution and to doing every single thing that help not only the Constitution, but also the great reconciliation process that we have embarked on.
Although my colleague Abram Mzizi sat through the painful, hard hours when these changes were being made, I have the pleasure to be able to say, on his and on our party’s behalf, that if this spirit prevails, then it is not only good for the party that is the majority party, but also for Parliament as a whole; it is good for all of us in the country as a whole that we continue to respect one another’s views, that we continue to build consensus and that we continue to build laws which we can be proud of in the future.
This is unlike the laws today which we are repealing, because these laws were made with a different mindset. They diminished the humanity of the people who lived in this country and did not accord the human dignity that all should have been accorded. What we are now doing is affording that dignity.
What I like about the Administration of Estates Amendment Bill is that it is going to reach out to rural people; that not only will it be good on the Statute Book, but it will be good in the way in which it is implemented. For these reasons the IFP supports these two Bills. [Time expired.]
Mrs S M CAMERER: Chairperson, these Bills are both technical in nature, and the New NP supports them both. The Judicial Matters Bill is a compendium of small but necessary technical amendments.
The Administration of Estates Amendment Bill, while technical, is of significance along the road to building a nonracist and nonsexist democracy, as other speakers have also pointed out. It not only amends the Administration of Estates Act, but also a provision in the notorious Black Administration Act of 1927, a racist and discriminatory piece of legislation, which is inexplicably still part of our law. I associate myself with the remarks of other speakers today that this law is a shameful blot on the body of law applicable in our fledgling democracy, and there can be no justification whatsoever for its continued existence.
We have Judge Dikgang Moseneke, who is now a candidate for appointment to the Constitutional Court, to thank for this piece of legislation. By taking his father’s estate to the courts, he successfully challenged the inherently discriminatory practice of distinguishing between black and white intestate estates devolving according to the common law - the former being administered by magistrates, as has been pointed out, and the latter being administered by the Master of the High Court. He won the case and Parliament was given a deadline of 6 December to amend the law. As usual, we are making the deadline by the skin of our teeth.
Although this amendment impacts only on black estates devolving under the common law and not customary law, it nevertheless raises wider questions about the customary law of succession. We were advised in the committee by officials of the Justice department that the regulations under the Black Administration Act cannot be fully amended or even repealed until the customary law of succession is amended.
In the meantime, a Bill to amend the customary law of succession is still bogged down in consultations being conducted by the SA Law Reform Commission, as it will be known once we pass the Judicial Matters Amendment Bill before us today.
The original Bill amending the customary law of succession was tabled in this House in 1998. However, the Government buckled under pressure from traditional leaders and referred the Bill to the Law Commission. Last Friday, four years later, the project committee dealing with the Bill for the commission reported to Parliament’s Monitoring Committee on Improvement of Quality of Life and Status of Women on the progress being made or the lack of it.
According to the project committee, the first round of investigations and consultations has been completed. The committee found that women spoke with one voice in supporting the amending Bill, noting that under the present customary law of succession women’s interests were sidelined and even compromised, and that race, gender and culture interacted in a way that discriminated directly and indirectly against black widows.
Traditional leaders were also consulted. While the KwaZulu-Natal leaders, to their credit, welcomed the projected reforms, traditional leaders from the Eastern Cape, the Free State, the Northern Province, North West and Mpumalanga did not accept the elimination of the principle of primogeniture contained in the draft Bill and rejected many of the reforms.
For this reason and ignoring the unanimous position of women consulted, the project committee has embarked on another seemingly open-ended round of consultations. The memorandum to the Bill before this House optimistically states that the commission has almost finalised its investigation. Unfortunately, this was not the impression that was given by the project committee to the women’s status committee last Friday. It is a great pity that the Constitutional Court has not laid down a deadline for the full- scale reform of the customary law of succession. Mr J T MASEKA: Chairperson, hon members, the UDM fully supports the two Bills before the House.
The Administration of Estates Amendment Bill shall come into operation on 5 December 2002, or any earlier date as the President may determine by proclamation in the Gazette. Currently, estates of deceased persons are administered differently in that all the estates of white persons are reported to the Master of the High Court, whereas those of blacks are reported either to a magistrate or to the Master of the High Court.
From 5 December 2002, all persons irrespective of their colour shall report estates to the Master, except property ``if the devolution of the property is governed by the principles of customary law, or of the estate of a person if the devolution of all the property of the person is governed by the principles of customary law, and no documents in respect of such property or estate shall be lodged with the Master, except a will or a document purporting to be a will’’.
This Act shall apply in respect of the estate of persons who died on or after the date of commencement of this Act, and it shall not affect the estates that have been reported before 5 December 2002. There shall be a Master’s office at each magistrates’ office where a deceased estate can be reported, and all persons appointed or acting in these offices shall perform duties assigned to them by the Master of the High Court.
The Minister may designate posts in, or additional to, the fixed establishment of the Department of Justice and Constitutional Development so that people can report a deceased estate without travelling long distances and/or spending moneys to acquire the services of attorneys, as is currently the case.
Persons appointed to, or acting in, posts which have been designated by the Minister, must exercise the powers and perform the duties delegated to them on behalf of, and under the direction of, the Master.
This Bill will reduce the workload at Masters’ offices as some of the administration of estates will be finalised at the service points within the area of jurisdiction of the Master. It is now imperative that all people be informed or educated in one way or another, particularly those in remote and rural areas. [Time expired.]
Mr M T MASUTHA: Chairperson, hon members, I must apologise to our masses out there in that I would have loved to give my speech today in both Tshivenda and Shangaan, but it would have taken a little longer for me to master reading those languages in Braille. Unfortunately, I did not have enough time, so I have to speak in English.
We are today seized with the task of considering the Administration of Estates Amendment Bill of 2002, which seeks to realign our law regarding the administration of estates of deceased persons in line with our Constitution, following the ruling of the Constitutional Court in the case of Moseneke and Others v the Master of the High Court, delivered in 2001. The Constitutional Court in the aforesaid matter ruled that section 23(7)(a) of the Black Administration Act, 1927 to be inconsistent with the Constitution and thus invalid with immediate effect. This section rendered the appointment of an executor unnecessary in, and excluded the Master of the High Court from, the administration and distribution of ``the estate of any black’’ who died without leaving a valid will.
In like manner, the court also declared regulation 3(1) of R200 Gazette No 10601 of 6 February 1987 invalid, but suspended the order of invalidity until 6 December 2002, the day immediately after this Act comes into effect, which is 5 December this year. It ordered that the regulations should be interpreted in such a way that beneficiaries of ``an intestate black estate’’ have a choice to report the estate to a magistrate or the Master, that is the reporting of an intestate estate of a black person having been previously confined to a magistrate. This will basically extend the possibility of such reporting to be done to the Master as well. This judgment articulated the view that the benefits of administering deceased estates by magistrates, such as convenience and low cost, can also be accomplished in a nondiscrimatory dispensation. The court also emphasised that the decision dealt with estates that devolve according to common law only and not with estates that devolve according to customary law.
After considering the various possibilities, the Department of Justice and Constitutional Development opted for the administration of all estates under the control of the Master of the High Court with the designation of service points where officials of the department would act on behalf of and under the direction of the Master. This would, in most instances if not all, be in magistrates’ offices. The beauty of this, of course, is that deceased estates of white people, which, under the current dispensation, are dealt with by the Master’s office, which is located only in High Court offices in the country - and as hon members know, the High Courts are not as dispersed across the country as magistrates’ offices - can now also be dealt with at the magistrates’ court level, thus extending the benefits of accessibility and low cost to white people as well.
This will yield the benefit of centralising record keeping and control in the Master’s office whilst, at the same time, maintaining and even promoting accessibility and assistance for people at grass-roots level on a nonracial basis.
The officials of the department that I referred to can, for instance, issue appointments of executors in small estates, convene meetings of beneficiaries and assist with the finalisation of small estates. In some cases, however, the officials will merely forward documents to the Master and assist with enquiries.
Although the Bill before us deals with the administration of deceased estates and not with the substantive issues of African customary law of succession, may I beg the House’s indulgence to raise some issues relating to the latter, which is currently a subject of enquiry by the SA Law Commission.
There are two distinct yet very closely related legal regimes under which colonial and apartheid rulers governed blacks, namely African customary law, which is based on customs that have evolved amongst African communities themselves, and African law which reflected, in the main, colonial and apartheid rules created specifically to govern Africans couched mainly in legislation such as the Black Administration Act, No 38 of 1927, the provisions of which the Constitutional Court has ruled in the Moseneke case to be discriminatory and thus unconstitutional, aspects of which, sadly, are still on our Statute Book several years after we have relieved ourselves of these regimes.
In their book entitled A Sourcebook of African Customary Law for Southern Africa, 1991, published originally as Acta Juridica, Bennett, Devine, Hutchinson and others interrogate, amongst other things, whether the African family and women’s rights are ``friends or foes’’. On page 136 of the article they state the following, and I quote:
It is now fairly well documented that what is applied in many African countries as customary law is, in Martin Chanock’s popular phrase, ``neither customary nor law’’. In this paper I adopt the view of customary law which is influenced by recent accounts of the interaction between African custom and colonial rule.
They then proceed to state the following, and I quote:
These accounts describe the shift from custom to customary law, which took place most prominently in the sphere of the family during the colonial period in most of Africa, the process consistently involving an alliance between the colonial administration and African male elders, the latter as the traditional holders of power over strategic resources, namely land, cattle, women and children … They sought to manipulate the institutions such as lobola and guardianship. The colonial administration, for its part, either misunderstood the nature of African institutions or held a view of African society which saw women as rightless entities under the authority of men. Whatever their different motivations, these forces between them promoted, in the name of tradition, the emergence of rigid rules of customary law.
[Time expired.] [Applause.]
Mr S N SWART: Chairperson, I do not intend dealing with the details of the Bill, suffice to say that this ammendment will assist all persons dealing with intestate estates, no matter what their race, to access the Master’s office via their local designated magistrates’ court.
We also share the sentiment that it is shocking that almost nine years into our new democracy we still have the Black Administration Act on our Statute Book. Whilst we appreciate that the SA Law Commission is investigating this Act, in particular to harmonise the customary and common law rules for the administration of estates, we trust that this Act will be speedily repealed.
In order to move this process forward, we would urge all stakeholders to speedily resolve the problems surrounding the customary law of succession so that the surviving spouse and children are protected, whilst not abandoning those positive aspects of the customary law of succession.
The case of Mrs Mildred Mtembu and her daughter, who were thrown out of their home by the father-in-law, highlights the plight of women and children in customary law matters and should never be allowed to happen again.
In so far as the Judicial Matters Amendment Bill is concerned, the ACDP fully supports the proposed amendments. Of particular significance are the proposals relating to the attorney’s profession. As an attorney myself, I am embarrassed that the profession has been wracked by such a large number of highly public cases involving the theft of clients’ funds, with the Road Accident Fund fraud being at the forefront.
We trust that the amendments to the Attorneys Act relating to the Fidelity Fund and the provision of professional indemnity insurance will serve to better protect the public from unscrupulous legal practitioners. We also look forward to increased criminal prosecution of such persons.
In conclusion, the ACDP supports these amending Bills. [Applause.]
Miss S RAJBALLY: Chairperson, there are so many laws and provisions concerning every sector of concern or aspect of running the country - common law, statutory law, with constitutional law structuring this process.
With the entire transition from a colonial state to an apartheid state and now, proudly a democratic state, changes to legislation have been crucial. With a diverse and enormous legal system it is not easy for such a transition to be made. There are many factors to be taken into account, but the constant testing of laws against the national Constitution is an important and valuable way of bringing all legislation into line with current state needs, wants and standards.
The constitutional principles upon which the Constitution has been designed form the foundation of our society with all legislation being part and parcel of it. It is worrying that our society is faced with laws that have not reached the amendment stage, and that we may still be choking on apartheid laws. This might suggest that the Government still holds to some discriminatory standard, which is certainly not the case. The public must be reassured that transition is still happening and that it will not stop till it has reached every corner and till the law’s content has been brought into line with the South African democracy.
The amendments made to both Bills appear, once again, to bring legislation into line with democracy and the South African standards that the MF stands for.
A number of matters are attached to the Judicial Matters Amendment Bill, but time constraints prevent me from touching on them. The MF, though, is pleased by the hard work of the Justice department to fill the loopholes in our judicial system. Now it is hoped that the courts can be made more secure in holding prisoners, as prisoners breaking out of prison in Cape Town for the second time is not a good reflection on our system.
The MF supports the Judicial Matters Amendment Bill, and has no reservation about the amendments made in terms of the administration of estates. We support the original Bill. [Time expired.] [Applause.]
Mnr C AUCAMP: Agb Voorsitter, oor die Judicial Matters Amendment Bill, die volgende oor een aspek daarvan. Klousule Artikel 3 stel ‘n onduidelikheid reg in die bestaande wetgewing, wat redelike toegang van ‘n geskeide ouer tot sy kinders reël. Die AEB verwelkom hierdie regstelling, wat die reg van toegang van so ‘n ouer bo alle twyfel stel.
Uit ondervinding in die bediening, weet ek dat kinders dikwels deur die ouer wat toesig het, gebruik word, misbruik word, as speelbal en strafmaatreël teen die geskeide eggenoot, so half met die verwronge uitgangspunt van “possession is nine points of the law.”
Die AEB steun die uitgangspunt in die Suid Afrikaanse reg dat nie die twiste van die ouers nie, maar die belang van die kind, die deurslaggewende faktor moet wees. Ek wil by die behandeling van hierdie wetsontwerp ‘n dringende beroep op geskeide ouers doen: moenie jul kinders die slagveld maak van jul eie gevegte nie.
En verder: geen wet kan die onverkwiklike situasie van ‘n egskeiding en die posisie van die kinders volkome reël nie. Billikheid en volwassenheid deur die ouers bly die deurslaggewende faktor. Moenie dat onskuldige kinders die sweep word waarmee u u gewese man of vrou wil bykom nie. Hulle het nie daarvoor gevra nie.
Oor die wetsontwerp op boedeladministrasie verwelkom die AEB die reëlings wat hierdie wetsontwerp wil tref om enersyds die diskriminerende maatreëls in die bestaande wet, soos deur die Konstitusionele Hof uitgewys, reg te stel, maar terselfdertyd, deur die toewysing van bestaande justisiepersoneel tot die kantoor van die Meester, die regsproses van boedeladministrasie vir almal toeganklik te maak. Sodoende word die vakuum wat geskep is, deur dié uitspraak ordelik gevul.
Verder doen die AEB ‘n beroep op sowel die Regering as op groot finansiële instellings om gesamentlik ‘n bewusmakingsveldtog te loods en eenvoudige, toeganklike en goedkoop fasiliteite te skep ten einde alle Suid-Afrikaners aan te moedig en in staat te stel om testamente op te stel. Dit is ‘n basiese reg van elke persoon om self te beskik oor sy eie besittings. Intestate boedels moet sover moontlik uitgeskakel word.
Die AEB steun albei hierdie wetsontwerpe. (Translation of Afrikaans speech follows.)
[Mr C AUCAMP: Mr Chairperson, concerning the Judicial Matters Amendment Bill, just the following about one aspect thereof: Clause 3 removes an uncertainty in the existing Act which regulates reasonable access of a divorced parent to his or her children. The AEB welcomes this correction which puts the right to access of such a parent above all doubt.
I know from experience in the ministry that children are often used, and abused, as puppets and punitive measures against the former spouse by the parent who has custody, almost with the distorted point of departure that possession is nine points of the law.
The AEB supports the point of departure in South African law that not the disputes of the parents, but the interest of the child should be the determining factor. In dealing with this Bill I want to make an urgent appeal to divorced parents: Do not make your children the battlefield of your own battles.
Furthermore, no Act kan completely regulate the unsavoury situation of a divorce and the position of the children. Reasonableness and maturity by the parents remain the determining factor. Don’t let innocent children become the whip with which you try to get at your former spouse. They did not ask for that.
Concerning the Administration of Estates Amendment Bill, the AEB welcomes the regulations that this Bill seeks to implement, on the one hand to rectify the discriminatory measures in the existing Act, as pointed out by the Constitutional Court, but at the same time by making the judiciary process of estates administration accessible to everyone by the allocation of existing justice personnel to the office of the Master. Thus the vacuum which has been created by the verdict will be filled orderly.
Furthermore the AEB calls upon the Government as well as large financial institutions to launch a joint awareness campaign and establish simple, accessible and cheap facilities in order to encourage and enable all South Africans to draw up wills. It is a basic right of every person to dispose of his or her own possessions. Intestate estates should be eliminated as far as possible.
The AEB supports both these Bills.]
Adv H C SCHMIDT: Chairperson, the Judicial Matters Amendment Bill makes provision for various divergent issues; they are totally unrelated to each other. However, as the name indicates, the Judicial Matters Amendment Bill intends to amend various procedural, and to a certain extent, make substantive changes to the South African law. For instance, the name of the SA Law Commission is amended to read the SA Law Reform Commission - one of the more formalistic amendments.
Van belang, is die wysiging van Artikel 1 van die Algemene Regswysigingswet van 1962 ten einde voorsiening te maak dat ‘n ouer aan wie beheer en toesig oor ‘n minderjarige kind toegestaan is, ingevolge ‘n hofbevel, hetsy hy of sy alleen of gesamentlike beheer en toesig toegestaan is, skuldig is aan ‘n oortreding indien die een ouer die ander ouer toegang tot die minderjarige kind weier - ‘n aspek wat die Demokratiese Party steun. (Translation of Afrikaans paragraphs follows.)
[Of importance is the amendment to Section 1 of the General Law Amendment Bill of 1962 to make provision for a parent to whom control and custody of a minor child was awarded in accordance with a court order, regardless of whether it is joint or sole custody, to be guilty of an offence if the one parent refuses the other access to the minor child. This is something which the Democratic Party supports.]
Of more importance is the insertion of a clause in the Attorneys Act of 1979 which allows the board of control of the Fidelity Fund to enter into a contract with a company carrying on professional indemnity insurance business for the provision of group professional indemnity insurance to practitioners. Provision is also made for every attorney to pay an amount annually in respect of the cost of group professional indemnity insurance. It is, however, still doubtful whether full cover is provided to those members of the public who, from time to time, are negatively affected by the lack of professionalism by attorneys in the execution of their duties towards their clients as members of the public.
It is our view, judging from numerous complaints received from the public, that this matter should be investigated by the Department of Justice and Constitutional Development in order to establish whether the Fidelity Fund, in fact, fulfils its role as indemnity insurance for the provision of group professional insurance to practitioners in order to ultimately benefit the public.
The DA also welcomes the application of the Attorneys Act of 1979 throughout the country by repealing the apartheid-originated Attorneys, Notaries and Conveyancers Admission Acts as applicable in the former Transkei and the former Bophuthatswana in order to alleviate numerous problems, evidently flowing form their reincorporation.
Vanweë die noodsaaklike aard van die wysiginge voorgestel, steun die DP hierdie wetsontwerp. [In view of the necessary nature of the proposed amendment, the DP supports this Bill.]
Mr J H JEFFERY: Chairperson, as the Deputy Minister said right at the start of the debate these are technical Bills, and during the inputs from the different speakers a number of provisions have been highlighted.
Most of the speakers have focused correctly so on the Administration of Estates Amendment Bill, correctly so because it repeals a discriminatory provision on our Statute Book. I think it will also, though, be of benefit to everybody in that access to the magistrates’ office for the administration of estates will then be easier for everybody in the country.
I wanted, really, to highlight some provisions of the Judicial Matters Amendment Bill, in particular, as the previous speaker highlighted, is the change of name of the SA Law Commission to the SA Law Reform Commission.
There is also a provision for an opportunity for the President to appoint two additional members of that commission. It is hoped that these additional people will assist the Law Commission, or the Law Reform Commission, as it will be known, with the workload that it faces in order to assist it in fulfilling its duties.
I think the most important provision of the Judicial Matters Amendment Bill is the amendment to the Attorneys Act which, hopefully, should result in greater protection for the public when there are problems with attorneys that members of the public have gone to.
Lastly, there was, as is contained in our report, a clause relating to problems that attorneys and candidate attorneys from the former Transkei and Bophuthatswana faced that was to be included in this Bill and that was taken out by the committee. As our report states, the measures in this clause were intended to be of an interim nature pending the enactment of the Legal Practice Bill.
However, because of presentations, it would appear as though the matter is not as straightforward as originally thought. The committee has therefore requested the department, in its report to this House, to have further consultations and revert back to the committee in February of next year. It is hoped then that we can address that further outstanding issue, which is also a legacy of our past. With those words, I support the Bill. [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, I would like to thank all the opposition parties for their support of the Bill. I do recognise the importance of the concerns that they expressed in terms of the pace of the work of the SA Law Commission, or the SA Law Reform Commission as it will soon be known. The Minister has also expressed concern about this.
I do need to point out that this is not a case of nothing having been done. In fact, nearly all the aspects of the justice part of the Black Administration Act have been dealt with to the extent that they can be. In fact, the Minister responded to the committee’s recommendation exactly a month after it was given, by calling upon the SA Law Commission to investigate the matter of customary estates.
Quite clearly, we are caught in a catch-22 situation. The issue of customary estates has to be dealt with before we can get rid of the other provisions in this ghastly piece of legislation that still hangs over our heads. Let me just say that the attention of the other departments has been drawn to this matter.
However, what happens is that there are also huge provincial implications. Many portions of the Act also have implications within the provinces, and these vary from province to province. It is an extremely complicated reform process, but the criticisms around the pace are fully appreciated.
I would just like to say that the comments will be taken seriously and will be taken back to the Minister. I would also just like to refer to the issue around children and the comment by the hon Aucamp of children not being the battleground of two parents. I am going to take an irregular opportunity here to remind all those parents who default on maintenance payments that this is another area in which children suffer - when the battle between parents is not kept in the purview of the parents and the impact is on the children.
Maintenance is not about two adults; it is, in fact, about the children. I would appeal to all of us to make sure that the people we know, and the people that are our brothers and sisters and fathers and sons, pay their maintenance - an irregular use of the podium, but this is a very important message.
Obviously, the comments related to the profession were appreciated. Everybody is unanimously in support of the Bill. It clearly is a step forward and we, too, in the Ministry look forward to getting rid of this ghastly piece of apartheid legislation that hangs over our heads as a sorry reminder of a sad past. [Applause.]
Debate concluded.
Administration of Estates Amendment Bill read a second time. Judicial Matters Amendment Bill read a second time.
LOCAL GOVERNMENT LAWS AMENDMENT BILL
(Consideration of Report of Portfolio Committee on Provincial and Local Government thereon)
Report adopted without debate.
LOCAL GOVERNMENT LAWS AMENDMENT BILL
(Second Reading debate) An HON MEMBER: Malibongwe! [Praise!]
The DEPUTY MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT: Igama lamakhosikazi! [The name of women!]
Chairperson, hon members, the process of local government transformation has been proceeding steadily and systematically, and has been in accordance with the overarching plan that was set in motion by the Local Government Transition Act of 1993. This plan envisaged three phases, namely the preinterim phase, the interim phase and the final phase. We are now in the final phase, which started on 5 December in the year 2000.
The final phase itself unfolds in three stages. The first stage - the establishment stage - is expected to be completed by the end of this year, which entails a formal amalgamation and development of the new local government structures.
The second stage, which starts at the end of this year, is set to address consolidation and stabilisation of the local government dispensation, and this stage will run until the year 2005. This will require a concerted effort by all three spheres of government to attend to the full implementation of the systems and practices of local government. It goes without saying, therefore, that capacity-building efforts will have to be intensified.
The last and third stage in this phase is to ensure sustainability in local government, and this stage is envisaged to take effect from 2005 and to reach its peak in the year 2010. As hon members can see, we have come a long way in South Africa on a course to completely restructure the system of local government.
The new local government dispensation was heralded by the successful elections in 2000. The start of this new dispensation can be compared to the birth of a baby; and just as a newborn baby must be nurtured and will experience growing pains, so too the new local government system must be nurtured and will experience growing pains. It is some of these growing pains that the Local Government Laws Amendment Bill seeks to address.
The establishment stage that I referred to earlier highlighted the need to further refine the legal framework applicable to local government, and, to this end, the Bill seeks to amend the Organised Local Government Act of 1997, the Remuneration of Public Office Bearers Act of 1998, the Local Government: Municipal Demarcation Act of 1998, the Local Government: Municipal Structures Act of 1998, the Local Government: Municipal Systems Act of 2000 and the Local Government: Municipal Structures Amendment Act of 2000.
This Bill is intended to address the anomalies in the current legislation in order to create certainty. A number of these amendments are of a technical nature, whilst the rest of the amendments seek to clarify and to restate policy. The latter were informed by the practical realities that are being experienced on a daily basis by councillors and local government practitioners.
The process of transforming local government presents numerous challenges. It can be expected that from time to time similar legislative interventions may be necessary. It should be noted that our system of local government is widely recognised as a model for best practices as far as local government is concerned. This was confirmed during deliberations at the WSSD local government session. It follows, therefore, that our attempts to confront the challenges rising from the implementation of our local government system should be seen as giving direction to the international community for further improvement of local government models.
In conclusion, let me assure the House that the Ministry and the Department of Provincial and Local Government have taken note of the concerns raised by the portfolio committee in its report regarding the late introduction of the Bill to Parliament. This is regretted.
The Ministry and the department further note the concerns raised in the committee’s report regarding the transgression of the Remuneration of Public Office Bearers Act, the repeal of relevant provisions of the provincial ordinances and the expediting of the Property Rates Bill. We undertake to attend to these matters expeditiously.
We would like to thank the portfolio committee for their meticulous processing of this Bill despite the limited time afforded them. Our thanks also go to the departmental team that developed and processed the Bill, and to the stakeholders who submitted constructive inputs.
In commending this Bill to this House for discussion, may I remind members as well as the nation of the words of the then chairperson of the White Paper on Local Government Political Committee, Comrade Pravin Gordan, who said in the foreword of the White Paper:
Actually implementing the policies contained in this paper will take a supreme effort, tremendous resilience and constructive participation of all role-players. It will require our participation and rolling up of sleeves, our acting like citizens, as opposed to mere atomised consumers of municipal services. It will require very specific commitment and effort from national and provincial government and, not in the least, from councillors and the administrators within local government.
May I say that we believe that the intention of this piece of legislation is to assist in facilitating the smooth implementation of our new local government system. In following this route, we are sure to overcome the challenges that confront us from time to time on the road to a transformed system of local government. [Applause.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! The hon members on my left are transacting personal business instead of national business. Could I please call you, hon members, to order.
Mrs G M BORMAN: Chairperson, there were some aspects of this Bill that needed extensive consultation, and the haste with which we have had to ram it through Parliament is quite unacceptable. I am pleased that the Deputy Minister has referred to that and, also, it has been acknowledged in the portfolio committee’s report on the Bill.
In the time available I will confine myself to just three aspects. Clause 20 of this Bill seeks to amend the Local Government: Municipal Structures Act in order to validate the Property Valuation Ordinance of 1993 in the Cape. This affects municipalities in the Western, Eastern and Northern Cape provinces.
The Cape Town Unicity is a case in point. Valuations, which are essential to the revenue of municipalities, were last done in 1979. Cape Town did its valuations on the basis of an old ordinance, because the proposed Property Rates Bill, which has been promised for years, just did not materialise. I ask the hon the Deputy Minister: How long are we going to have to wait for this Bill? Is it until we have more court cases and total chaos in our municipalities? That aside, it would seem that the amendment is a technical one, and the DA supports it.
Clause 43 in this Bill, amending section 118 of the Local Government: Municipal Systems Act, is also of concern. When owners of properties occupied by tenants come to sell their properties, they sometimes find that the tenants have run up huge service charge backlogs. The owner cannot be responsible for something he has not contracted into. If the contract is between the municipality and the tenant, the tenant must pay. If the contract is between the municipality and the owner, then the owner must pay.
There are currently court cases pending in which arrears of R12 000 and R1 million for electricity have been allowed to mount up, because the municipality’s credit control is slack. Who pays? It is not the tenant, nor the municipality that has allowed the debt to run up, but the property owner who wants to sell his property. He can only sell his property when the municipality has issued a clearance certificate stating that all arrears for the past two years have been paid. This is unjust. It is unfair. This legislation fails to address this very real anomaly, and I submit that it needs to be amended to cover the property owners in the cases I have referred to. For this reason, the DA cannot support clause 43.
Clause 44 of the Bill amends schedule 1 to the Local Government: Municipal Systems Act, which says that ``a councillor may not be in arrears to the municipality for rates and service charges for a period longer than three months’’. Needless to say, the DA fully supports this amendment, but asks what action will be taken against defaulting councillors. Public representatives should be expected to set an example for the citizens that they represent.
With the exception of clause 43, the DA supports this Bill. [Applause.]
Mr Y I CARRIM: Mr Chairperson, comrades and friends, this Bill, as explained by the Deputy Minister, deals mainly with minor technical amendments to six pieces of local government legislation to ensure their proper implementation.
These amendments make it clear that the core principles and values of the new local government system are essentially sound. What is called for is the more effective implementation of the new model. For this, all of us have a responsibility. It is a responsibility that we must fulfil with much greater determination.
The main substantive issue addressed in the Bill is the extension of the transitional period for MECs’ authorisations of the division of powers and functions between district and local municipalities from 5 December this year to 30 June 2003.
As the House is aware, district and local municipalities share powers and functions. These have to be divided between them. The Minister, after appropriate consultation, decides on this division in respect of water, sanitation, electricity and health. The local government MECs decide on the division of all the other powers and functions on the basis of the capacity of municipalities, as assessed by the Municipal Demarcation Board.
On the eve of December 2000, when the local government elections were being held, it was decided to retain the status quo in respect of the division of powers and functions for a two-year period, and to change it thereafter. This period lapses on 5 December 2002. The six-month extension is necessary mainly to give stakeholders more time to prepare, and to ensure that the coming into effect of the new allocation of powers and functions coincides with the beginning of the municipal financial year and that it is property budgeted for.
As conveyed in our report to Parliament, the committee feels that consideration must be given to the following. Firstly, there should be alignment of the publication of the notices of the Minister’s authorisations of the four national powers and functions and the MECs’ publication of the notices of the adjustments of the remaining powers and functions must take place. The publication of these notices must take place by no later than the end of January 2003 in order to give municipalities adequate time to prepare and to budget accordingly.
Secondly, there must be alignment, over time, of the Minister’s authorisations of powers and functions and the MECs’ adjustments of the powers and functions. Thirdly, the Minister’s authorisations and the MECs’ adjustments should be reviewed over time to ensure that the important role allocated to district municipalities, both in legislation and policy, is fulfilled.
The Bill also deals with technical amendments relating to the Cape Valuation Ordinance, as the hon Borman explained. Related to this issue is the dispute between the Cape Town metropolitan municipality and a section of its ratepayers. It is regrettable that a section of the ratepayers is exploiting an unfortunate technical loophole as the basis for their legal action against the Cape Town municipality to address their concerns over the current equitable valuations and rates policy of Cape Town.
While it is right for the parties to the dispute to pursue legal action, the committee feels that all the parties to the dispute should seek to resolve their differences through discussions and negotiations. The committee feels, moreover, that these ratepayers’ concerns with the current equitable valuations and the rates policy might be more usefully served by engaging with the municipality on the current valuations and rates policy.
Aggrieved parties, it is felt by the committee, should also utilise appropriate objection and appeal procedures more effectively. If the effect of the current valuations results in undue financial burdens on any category of ratepayers, the municipality needs to explore, through its rates policy, whether there is anything it can do to provide appropriate relief to these ratepayers.
Many of the basic political issues underlying the dispute will be addressed in the pending Property Rates Bill …
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Order, hon members! I appeal to you in that I think you are now really becoming too rowdy. This is making it difficult for Mr Carrim, who is now trying to speak at the top of his voice, to be heard. Please show him and the other speakers who will be following him respect.
Mr Y I CARRIM: I just want to go on to say that all stakeholders will be given a full opportunity to participate in shaping the new property rates dispensation when the Property Rates Bill comes before us.
I agree that the Property Rates Bill should be brought to Parliament expeditiously, but I think it is important that the department and the Ministry consult the various stakeholders. It is not true that we have this problem just because the Property Rates Bill has not been brought to Parliament, as Mrs Borman suggested.
In fact, there is a problem with the fact that on 27 April 1994, when the Constitution adopted all existing legislation, this Cape Valuation Ordinance was not in effect. It came into effect on 1 July 1994. This three- month gap explains why we have the current problems that we have. Hopefully, this Bill will redress that.
Finally, I want to say that in processing the clause dealing with the remuneration of councillors, the committee noted that municipalities are providing allowances and benefits to councillors in contravention of the Remuneration of Public Office Bearers Act. They do so, in fact, in terms of the provisions in provincial ordinances, but these provincial ordinances have no legal effect since the enactment of the remuneration Act.
The committee recognises that councillors’ salaries and allowances need to be adequate, but the dissatisfaction of municipalities around this should be negotiated through the appropriate channels. The present practice of transgressing the remuneration Act is wholly unacceptable. The Ministry and department should discuss this with Salga and other appropriate stakeholders.
The committee feels that, firstly, the Ministry and department should take active steps to stop this practice. Secondly, the MECs for local government should act more decisively against these transgressions. Thirdly, the Ministry and department should seek to have the relevant provisions of the provincial ordinances repealed. These matters, we believe, can be amicably addressed through sensitive negotiations involving all the stakeholders.
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! UDM members, I have been requesting compliance; it is in that area that you are continuing to defy the request by the Chair. Could I please call you to order? You may now continue, Mr Carrim.
Mr Y I CARRIM: Chairperson, I am about to finish. I just want to say, finally, that we would like to convey our thanks to the Ministry and the department, in particular to Jackie Manche, and Petra Bouwer who is here and who is, as usual, enormously helpful and co-operative and extremely hardworking. Thanks also go to Adv Khulong, who is not here; and my warmest thanks go to Chris Sibanyoni, the researcher attached to our committee if only for 25% of his time, but we, nevertheless, express our deepest thanks to him. [Applause.]
Mr P F SMITH: Chairperson, colleagues, in supporting this Bill I would like to make three points. The first relates to process matters. This Bill is brought to us as a fast-track item. There is a national crisis and this Bill, with its 48 clauses, must go through.
One had anticipated piles of urgent matters in it, but in reality there were two clauses out of the 46 - maybe three at a stretch - that were vaguely important and that had to be processed this year. The rest should, really, have been held over till next year. Although we did deal with the matter expeditiously, I really think, as a matter of principle, that the executive needs to know that we do not approve of this kind of behaviour. We think the committee should have rejected all the other clauses forcing them to reappear next year before us.
However, be that as it may, that is a process matter, and two of the issues were important. I am pleased to say that we agree with the content of those and that they have been processed adequately.
As far as the two substantive issues are concerned, the first relates to the extension of the transition from the end of this year to the end of June. The reason being that one cannot now, in midstream, have an adjustment of powers and functions of municipalities without causing chaos, particularly with regard to their budget cycle. They are now in the middle of a budget cycle, and to expect 284 municipalities to start readjusting their budgets as of consequence of readjusted powers and functions is not realistic. Therefore we approve of that.
However, we are of the view that in granting the extension we really should have put in this legislation that a fixed commitment be made by the MECs in law - meaning that we would have written into the law an obligation on them to resolve this matter timeously and to publish their determinations in January, so that everybody would know where they stood come the budget process.
We were led to believe by the department that this would not be necessary; they gave their word that it would all be done timeously and to that their reassurance should be taken for what it is. We will hold them to that. We will see, in January, whether it is all done in time, but we really urge that this is done timeously, because if it is not done in time we will have further chaos down the road as municipalities engage in budget processes not knowing what their powers and functions are going to be.
Finally, there is this matter of the rates issue. The fact of the matter is that there is no rates law governing the collection and levying of rates in three provinces in this country. That is not simply an anomaly, but a rather serious crisis if someone were to go to court to seek to have the basis upon which they are being rated nullified by law. This is, of course, precisely what is happening in Cape Town, where there is a rates action group and a couple of ratepayers who are taking the City of Cape Town to court on the basis that there is no law governing their being rated.
Now we had a bit of a problem, because the Bill that we are amending is retrospective in effect. This is, first of all, to validate the provincial ordinance in terms of which all these municipalities in the three provinces have, in fact, been levying their rates. Secondly, this Bill is retrospective to take care of this pending litigation.
I must say that retrospective legislation is problematic in any event, but to do so in respect of pending litigation, which has the effect of nullifying the applicants’ case, is more problematic.
However, we had to weigh that up against whatever is the lesser of two evils. Ultimately, it is more important that we save a potential crisis in terms of rates legislation - this vacuum or lacuna - than that we satisfy the applicants before the court.
We must add, of course, that the basis of the evidence that they will be using in court was not, in fact, discovered by them. It was provided to this Parliament by Cape Town and by the Western Cape government, who simply lacked the legal competence to resolve the matter. So, had the applicants themselves discovered all the information and on that basis we were nullifying it, this may have been more problematic. However, given the fact that they are simply piggybacking on information that was already in the public domain this is less important.
We would also like to say that it is very important to note that although some of the issues raised by the applicants - not in their court case - in their submissions to us are valid in terms of perhaps consultation, unhappiness with certain elements of the rating policy and so forth, it really is not the purpose of this legislature to accept that they can use this lacuna in the law as ``a stick to beat the municipality with’’ which is, in fact, to quote their own words. We would urge that they negotiate their problems with the municipality in question. The chair of the committee and the committee itself have offered to help mediate in this matter and we hope they take it up.
We are pleased to support the Bill. [Time expired.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! The hon Mr W P Doman returns to this Chamber, but this is nonetheless his maiden speech.
Mr W P DOMAN: Chairperson, my first sitting day as a member of Parliament was on 2 February 1990, when Mr F W de Klerk delivered his speech about transforming South Africa into a democracy. So I am always happy to say that since I entered politics, things started to change for the better.
In my maiden speech later that year I made the plea that all South Africans, but especially leaders at all levels, should sharpen their negotiation skills and emphasise that an attitude of give-and-take should be internalised because that is the very essence of negotiation.
I am very happy to say that through such an attitude a win-win situation has, to a very large extent, prevailed in South Africa over the past decade. This was also evident in the committee which dealt with this Bill with its 49 clauses. The New NP supports this Bill.
Met klousule 34 het dit om verskeie redes nodig geword om ‘n definisie te gee van wat ‘n munisipale diens is. Die komitee kon uiteindelik nie ‘n eng definisie gee nie, maar moes rekening hou met die feit dat munisipaliteite se rolle verander het van ‘n diensorganisasie wat ‘n paar kerndienste met eie personeel en bronne lewer na ‘n ontwikkelingsgerigte liggaam wat markgerig alle hulpbronne moet benut. Uit die Wet op Plaaslike Regering, Munisipale Stelsels, 2000, blyk dit duidelik dat ontwikkeling, nie regulering nie, die sleutelrol is wat munisipaliteite nou moet vertolk.
Gevolglik het ons vandag raadslede nodig wat soos entrepreneurs moet dink en wat nie daarop ingestel moet wees om alles en almal in hul jurisdiksiegebied te reguleer nie. Hulle moet nou vra watter potensiaal lê opgesluit in ons munisipale gebied wat volhoudend ontwikkel kan word met die doel om, soos die stelselwet sê, die lewensgehalte van almal te verbeter. (Translation of Afrikaans paragraphs follows.)
[With clause 34 it has for a variety of reasons become necessary to give a definition of what a municipal service is. In the end the committee could not give a narrow definition, but they had to take into consideration the fact that the role of municipalities changed from being a service organisation with a few core services with its own personnel and resources, to an organisation geared towards development and being market-orientated in order to utilise all resources. In accordance with the Local Government: Municipal System Act, 2000, it seems clear that development, and not regulation, is the key role that municipalities should play.
Consequently we need councillors today who should think like entrepreneurs and not be focused on regulating everything and anything in their jurisdiction. They should now ask what potential lies within our municipalities that must be developed on a continuous basis with the aim, as the system Act stipulates, of improving the quality of life of everyone.]
This also challenges Parliament and the provincial legislatures to create the legislative framework which can serve as instruments with which municipalities can fulfil their developmental tasks. We should not overregulate, and when we legislate we should allow for municipalities to render effective services as cheaply as possible to compete in the private sector for money and investments and to really develop their communities in an integrated way.
The whole concept of reinventing government, which was coined in relation to local government in the USA by Ted Gabler and others, is starting to take root in local government in South Africa. Its simple message is: More laws will not solve problems; allow for human initiative to do that. [Applause.]
Mr S ABRAM: Chairperson, I am not a member of the portfolio committee. However, I wish to refer to the amendment in clause 43. Section 118(3) of the original Act, the Local Government: Municipal Systems Act, Act 32 of 2000, states that an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property.
The problem here, I believe, is that this particular provision is discriminatory and unfair. What happens here is that when the owner of the property wishes to dispose of it, that owner is called upon to make good whatever amounts are owed by tenants of that particular property. In many instances the local authority has no credit control system, in spite of the fact that the above Act provides clearly that they should have a policy in place.
In instances like these, where the local authority has failed to collect service charges from tenants and where the owner of the property is not informed as to who the tenant is that he is seeking to connect up with, it is unfair to then expect the owner to make good because the local authority has failed. To my mind that is a principle that cannot be supported.
I want to appeal to the hon the Deputy Minister to look at this aspect very seriously, so that we can bring about an obligation on local authorities to keep the owners of properties informed when their tenants are not meeting their commitments.
Furthermore, there is another anomaly …
The DEPUTY CHAIRPERSON OF COMMITTEES: Order, hon member, unfortunately your time has expired.
Mr S ABRAM: Chairperson, can I not have some injury time? [Laughter.]
The DEPUTY CHAIRPERSON OF COMMITTEES: I gave you a few seconds, but you were starting on a new point.
Mr L M GREEN: Chairperson, hon members and chairperson of the portfolio committee, as hon members know, Mrs Southgate, who is a member of this committee, raised quite a lot of issues during the debate on this amending Bill. I would like to repeat the concerns raised by her.
First and foremost, the validity of the Cape Property Valuation Ordinance is at present being challenged in court. Secondly, whilst we appreciate that the consequence of a successful challenge would be the repayment of rates already paid, we are concerned regarding the constitutionality of retrospective legislation, particularly where it knocks out the court case in the Cape.
We, consequently, have reservations about supporting the amendment to section 93 of the Local Government: Municipal Structures Act, and for these reasons the ACDP will abstain from voting for or against this Bill.
Miss S RAJBALLY: Chairperson, the light is flickering before I have even started.
One of the greatest features of South Africa’s democracy is the separation of powers that are curtailed by the national Constitution in chapter 3 on co-operative government. The division between national, provincial and local government has worked out well. The backlog and the impersonalisation of centralised government have been much relieved by this democratic process.
It has, however, not been a very easy process and many times it has resulted in conflict, but we have managed to work things out. That is what co-operative government is all about. The differences that arise in debate are healthy. As a representative Government, these differences are as a result of the will of our people, and it is the Government’s task to work out strategies to the satisfaction, protection and best interests of each citizen and South Africa as a whole.
Local government, though separate, is felt to have curtailed powers, but this is not so. Within our three-tier system, power and authority are shared from level to level. A local government area belongs in the provincial arena which, in turn, belongs in the national arena. We are all interrelated and these spheres help to sift through and magnify the needs of our community.
The MF supports the Local Government Laws Amendment Bill. [Applause.]
Rev A D GOOSEN: Chair, one of the objectives of our portfolio committee is to advance the implementation of the new system of local government. We have thus far pursued this goal with great vigour and determination. So, in spite of differences we may have in the committee, we nevertheless share a common interest. It is thus in working as a unit that we can strive to make the new system work.
A great deal of time is spent in processing legislation consensually. The chair, especially, tries his utmost to get everybody on board. Should a person have a problem with any particular clause in a Bill, no effort is spared in trying to resolve the issue amicably.
The ACDP is abstaining from voting on the Bill just because they have a problem with clause 20. Throughout the proceedings, the hon Rhoda did not indicate that she was opposed to clause 20. Then, suddenly, on the day of the vote, she opposes the Bill. As a Whip she does not even know that you can oppose a clause in a Bill while supporting the Bill as a whole.
She was very confused - an MP from another party had to help her to make sense of what she was saying. The hon Rhoda’s opposition to the Bill had absolutely nothing to do with the Bill itself; it was purely political opportunism. The Bill contains mostly technical amendments, and the substantive issues are not politically motivated. Now, maybe her researcher, or somebody else, helped her to understand why she had to oppose the Bill.
As for the hon Southgate, I would say that she should stop her holier-than- thou attitude, which is so often displayed in this House and which does not augur well for good relationships. I would suggest that she be less self- righteous and reveal a spirit of humility.
I suppose the ACDP opposes clause 20 mainly because they want to protect the privileges of rich ratepayers in Cape Town. May I just add one or two points here by saying that prior to 1998, the MECs were responsible for determining the allowances of councillors, but when the Remuneration of Public Office Bearers Act of 1998 came into being, the MECs could no longer do the determining. So, when both the MECs for Gauteng and the Western Province sent out circulars determining the allowances in the 1998-99 financial year, this was not consistent with the Act.
The clause pertaining to the validation of the Cape Property Valuation Ordinance has a bearing on the dispute which ratepayers have with the Cape Town metro. The committee has empathy for those who are detrimentally affected by huge increases in rates in certain areas, especially those who are residing along the Atlantic seaboard.
But while we would urge the aggrieved parties to enter into negotiations with the Cape Town metro, we also appreciate that, through the recent valuations, the playing fields have been levelled to suit all areas. Until now, it has been the ratepayers in the lower income groups and areas who have been paying higher rates and subsidising the rich.
I would say that the ACDP is opposing clause 20 mainly to protect the privileges of rich ratepayers on the Atlantic seaboard. [Time expired.] [Applause.]
The DEPUTY MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT: Chair, I would like to thank each and every member who participated in this debate. I know it was not a very exciting debate today, but I thank them very much for their contributions and for clarifying for the other members, who were speakers here today, what this Bill is about, particularly for speakers like the hon Mr Green, who simply did not understand the message from the hon Southgate. It is a pity that he is abstaining from voting and not supporting this Bill. Nevertheless, I say thank you very much.
Again, may I repeat, this Bill is mainly a technical matter. It is not, as people want to make it out to be, a matter that is talking about the valuation, as the hon Borman was saying. Incidentally, the hon Borman is a member of the committee and in the committee report the hon Borman agreed that the Property Rates Bill should be introduced in Parliament next year, but when she comes to the podium she posed …
Mrs G M BORMAN: I did not.
The DEPUTY MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT: Excuse me. But when she comes to the podium she wants to know from me when this Property Rates Bill will be introduced when, in fact, they have agreed that it will be introduced next year. [Interjections.]
The hon Borman was stating that the amendment creates undue …
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Order, hon Deputy Minister, if you will just take your seat.
Hon member, are you rising on a point of order? Ms G M BORMAN: Yes, I am rising on a point of order, Chairperson. The Deputy Minister is misleading this House. She has been given incorrect information …
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon member, that is not a point of order. [Interjections.]
Mrs G M BORMAN: It is a point of order, Chairperson, because she is misleading the House. [Interjections.]
The DEPUTY CHAIRPERSON OF COMMITTEES: That is not a point of order. Hon member, will you indicate what the issue is on which the Deputy Minister is misleading the House. [Interjections.] Hon Borman, what is the issue?
Mrs G M BORMAN: Chairperson, she is misquoting from a report that was tabled in the committee, because in the report I actually spoke about the urgency, and corrected what they spoke about as being a reasonable need to bring this before Parliament. I corrected that and said that I thought there needed to be an urgency about this. So there is incorrect information here.
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Again, hon member, the issue that you are raising could be one of perception; it is not a hard fact on which you are raising a point. If you have a substantive argument that the Deputy Minister is knowingly and willingly misleading the House, well, that is an issue on which you can rise. Yes, hon Ken Andrew?
Mr K M ANDREW: Chair, surely, with respect, this is not simply a question of debate, it is a question of parliamentary documents that are actually tabled and distributed in Parliament. Now, in the past, there was a convention, which has now fallen away, in which if you were going to quote from such a document, you, in fact, had to give the reference so that other members could check whether you were quoting correctly or not. It is not simply an issue of a matter of opinion or what somebody said or did not say, it is what is in a document, that is an official parliamentary report from a committee.
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon Ken Andrew, again, from the perspective of the Chair: How is the Chair required to uphold the veracity of a statement being made by either member? The only way in which this can be done is via a substantive motion, because the Chair can only judge on the basis of the information that is in front of the Chair, and the Chair at the moment does not have the document that you are referring to. Therefore, I cannot uphold the point of order that you are raising.
Mr K M ANDREW: Chair, I accept your dilemma and the problem, but I would suggest that given the fact that there is a dispute of fact on a parliamentary document, a written report from a committee, one request the speaker - not the Speaker in the sense of yourself, but the hon Deputy Minister on this occasion - to actually refer to what part of the report she is quoting from so that it can be checked whether or not she is misleading the House. [Interjections.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Order! Hon Andrew, again, I think you raise an issue about a pointed reference made by the Deputy Minister, and then you want me from the Chair to be able to give a ruling as to the validity or the nonvalidity of that. This is impossible. Therefore, I revert again to my original ruling, which is that it is not a point of order and if you do wish to raise a point of order, please bring a substantive motion in order that we can be referred to the actual document and to the actual statement of the Deputy Minister so that the veracity or otherwise of the point can be interpreted. [Interjections.] Hon Deputy Minister, you may continue.
The DEPUTY MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT: Chairperson, coming back to the third Order of the Day, we considered the portfolio committee report. The last point in the report states that he committee feels that the negotiations with the relevant stakeholders of the Property Rates Bill should be completed reasonably soon, and that that Bill should be introduced in Parliament next year. My question is: Why is the hon Borman asking me when the Property Rates Bill will be introduced, when it is clearly stated in this report, which we considered today? [Interjections.] I just want to prove that those hon members are arguing over nothing. [Interjections.] They are arguing over nothing.
I would also like to make the point that the hon Borman, in respect of the amendment to section 118, is incorrect in stating that the amendment creates undue hardship for home owners, because this is already law and the amendment does two things: it creates certainty in respect of the duration of the validity of the clearance certificate, and it makes special provision for first-time home owners who receive houses from the state.
I just want, again, to thank very much all those who participated in the debate. It is a pity that DP members always try to oppose even when there is no need to. [Interjections.] [Applause.]
Debate concluded. Bill read a second time.
ESTABLISHMENT OF JOINT BUDGET COMMITTEE
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Chairperson, I move without notice:
That the House, with the concurrence of the National Council of Provinces, establishes a Joint Budget Committee, the Committee to -
(1) consist of -
(a) 15 Assembly members of whom 9 must be from the Majority
Party and 6 from the opposition parties; and
(b) 8 Council members of whom 5 must be from the Majority
Party and 3 from the opposition parties;
(2) consider proposed allocations in the Medium-Term Expenditure
Framework and the Appropriation Bill and whether these allocations
are broadly in keeping with the policy directions of the
Government;
(3) make proposals regarding the processes Parliament should follow
with regard to its role in the developing of budgets in accordance
with constitutional requirements;
(4) on a regular basis monitor monthly published actual revenue and
expenditure per department, and to ascertain whether they are in
line with budget projections;
(5) consider, when tabled, the Medium-Term Budget Policy Statement,
with the exception of those sections dealing with the macro-
economic situation and revenue;
(6) conduct hearings on the Medium-Term Expenditure Framework and
Budget Policy Review Document, with the exception of those
sections dealing with the macro-economic situation and revenue;
(7) exercise those powers in Joint Rule 32 that may assist in
carrying out its functions; and
(8) report -
(a) on the Medium-Term Budget Policy Statement regarding the
matters referred to in paragraph 5; and
(b) quarterly regarding the matters referred to in paragraph
4.
Agreed to.
The House adjourned at 16:08. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- The Speaker and the Chairperson:
(1) The Joint Tagging Mechanism (JTM) on 23 October 2002 in terms of
Joint Rule 160(4), classified the following Bill as a section 76
Bill:
(i) National Environmental Management Amendment Bill [B 62 -
2002] (National Council of Provinces - sec 76).
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Minister for Justice and Constitutional Development:
Report and Financial Statements of the National Prosecuting Authority
for 2001-2002, including the Report of the Auditor-General on the
Financial Statements for 2001-2002 [RP 197-2002].
National Assembly:
- The Speaker:
Letter from the President of the Republic, dated 4 October 2002,
addressed to the Speaker of the National Assembly informing Parliament
of the resignation of Councillor Neël Smuts from the ICASA Council.
Dear Dr Ginwala
APPOINTMENT OF A COUNCILLOR TO THE COUNCIL OF THE INDEPENDENT
COMMUNICATIONS AUTHORITY OF SOUTH AFRICA
Councillor Neël Smuts of the Independent Communications Authority of
South Africa (ICASA) has tendered his resignation from the ICASA
Council and left office at the end of September 2002.
Please initiate the process for the appointment of a replacement in
terms of Section 5(1) of the Independent Communications Authority of
South Africa Act, Act No 13 of 2000.
Yours sincerely,
T M MBEKI