National Council of Provinces - 25 March 2003
TUESDAY, 25 MARCH 2003 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:05.
The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICES OF MOTION
Mr N M RAJU: Thank you, Chair. I give notice that I shall move at the next sitting of the House:
That the Council -
(1) notes with consternation that the unilateral act of war declared by the United States of America, in a coalition pact with Great Britain, against Iraq has already resulted in the loss of lives of both civilians and combatants on both sides;
(2) further notes that this act of aggression by America and Britain has weakened the sinews of multilateralism considerably, especially as the United Nations Security Council, being divided on the issue, did not sanction the act of war by the coalition forces; and
(3) therefore calls on all South Africans, indeed the whole world, to stand with the people of Iraq, not with the dictator Saddam Hussein, in their hour of anxiety and fear and be prepared to make modest, but honourable, contributions to rebuilding a new Iraq, founded on the principles of human rights and democracy.
Mr P A MATTHEE: Chair, I hereby give notice that I shall move at the next sitting of the House:
That the Council notes that -
(1) the New NP is fully committed to taking the hands of all communities and to building a South Africa where coloured, white, black and Indian South Africans will be playing a meaningful role together;
(2) the New NP received a mandate from its supporters in 1999 to ensure co-operative government and that the MPs and MPPs who have left the New NP for the DP/DA are now letting those voters down;
(3) minorities in South Africa have a clear choice and that they, together with the DP/DA, can fight back against the majority, they can fight back against change and isolate their little group into an enclave and marginalise themselves from the real important issues and fight their children right out of South Africa, or they can, together with the New NP, take part and grasp the huge opportunities that exist in our country; and
(4) through the minorities and the majority working together, grappling with the problems that need to be overcome, working towards a win-win situation, a future of hope will be created for minorities and majority alike in our wonderful country.
The CHAIRPERSON OF THE NCOP: Mr Krumbock, members are saying that they are very pleased to see you here today. [Laughter.] [Applause.]
Mr G R KRUMBOCK: Thank you, Madam Chair. May I respond that I was very pleased to see you in Swellendam. I hereby give notice that I shall move at the next sitting of the House:
That the Council -
(1) takes note that -
(a) the DA convincingly won all five by-elections that it contested
on Wednesday, 19 March 2003;
(b) the DA's percentage of support increased in the majority of
these by-elections;
(c) not only was the right wing, including the FF and CP, crushed in
Ward 53 Tshwane, but nearly one in five of former ANC supporters
voted for the DA candidate in Lulekeni Township near Phalaborwa;
and
(d) the New NP finished a distant third in Swellendam; and
(2) acknowledges further that these watershed results, combined with the mass defections to the DA this week, proves yet again that South Africa is moving rapidly to a two-party system in line with modern democratic states, thereby strengthening our young democracy.
SOUTH AFRICA ON PRIORITY WATCH LIST OF INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE
(Draft Resolution)
Mrs E N LUBIDLA: Madam Chair, I move without notice:
That the Council -
(1) notes that South Africa has been placed on a priority watch list of the International Intellectual Property Alliance, a US body dedicated to protecting copyright materials;
(2) further notes that this step was taken as a result of the activities of syndicates smuggling counterfeit DVDs into the country and selling them for as little as R60 at flea markets and roadside stalls;
(3) expresses its concern that from 1996 to 2001, US studios lost about R96 million annually in South Africa - in 2002 that figure more than doubled with losses of R240 million;
(4) believes that illegal smuggling of counterfeit goods has a damaging effect on our own economy in that -
(a) brand owners are losing revenue because consumers are opting for
cheaper items that look the same;
(b) jobs are lost in the country; and
(c) the State is losing money because taxes are not paid on these
counterfeit goods; and
(5) calls on the police to ensure greater urgency in respect of this problem and to allocate more resources to infiltrate these syndicates and embark on full-scale surveillance operations against these syndicates.
Motion agreed to in accordance with section 65 of the Constitution.
NEW NP MEMBERS WHO CROSSED THE FLOOR
(Draft Resolution)
Mr A E VAN NIEKERK: Madam Chair, I move without notice:
That the Council -
(1) notes that -
(a) the New NP members that crossed the floor to the DP is a
temporary setback for the New NP; however, anybody who thinks it
is more than this is making a major mistake;
(b) it is not the first time that the New NP pays a price for doing
the right thing for South Africa;
(c) in 1982 when the party decided on a policy of power-sharing, the
party also suffered losses like now, although it was the right
thing to do for South Africa;
(d) in 1990 when the New NP decided to negotiate with the ANC about
the new democracy in South Africa, many voters voted against the
party in 1999, because of the so-called sell-out at Codesa,
although those negotiating were also doing the right thing for
South Africa; and
(e) now when the New NP decided to work with the ANC to make South
Africa work and to make it a better place for all its people,
some members decided to cross the floor to the DP; and
(2) believes that working together for the benefit of all our people and for peace, stability and prosperity is the right thing to do for South Africa and that the New NP will keep on doing it. [Interjections.]
The CHAIRPERSON OF THE NCOP: Is there any objection to the motion? There is an objection. The motion therefore becomes notice of a motion.
HUMILIATING REFERENCES TO DA
(Draft Resolution)
Ms E C GOUWS: Madam Chair, I move without notice:
That the Council -
(1) takes cognisance of the fact that honourable members in this Council have referred to the DA in a humiliating way as the ``Dead Alliance’’;
[Interjections.]
The CHAIRPERSON OF THE NCOP: Order! Order!
Ms E C GOUWS: Chairperson, I need your protection.
The CHAIRPERSON OF THE NCOP: Order! Order! Hon members, order!
Ms E C GOUWS: I continue:
(2) notes that, in the light of the number of MPs joining the DA, those honourable members now re-evaluate that interpretation;
(3) agrees that the DA is vibrant and growing; and
(4) is of the view that the real corpse in this House is the party that is in alliance with the ANC.
I thank you.
[Laughter.] [Applause.] [Interjections.]
The CHAIRPERSON OF THE NCOP: I am not sure what members are doing. [Laughter.] That may be the Mexican wave. [Laughter.] I am not sure. Is there any objection to that motion? There is an objection. The motion therefore becomes notice of a motion.
DEVASTATION CAUSED BY FLOODS IN MONTAGU
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:
That the Council -
(1) notes its concern for the devastation that was caused by the floods in Montagu;
(2) expresses its solidarity with the people who have been afflicted by the storms;
(3) commends the municipalities, the SA Defence Force, as well as the provincial government for the decisive steps they have taken and their intervention in the area; and
(4) wishes the people of Montagu well during this difficult and traumatic time.
Motion agreed to in accordance with section 65 of the Constitution.
CONGRATULATIONS TO BIZIMALI HIGH SCHOOL
(Draft Resolution)
Nkk J N VILAKAZI: Mphathisihlalo, ngiphakamisa ngaphandle kwesaziso:
Ukuthi uMkhandlu -
(1) ukushayela ihlombe lokhu okwenziwa ngothisha nabantwana baseBizimali High School eNkandla kwaZulu-Natal;
(2) uyaluzwa usizi abantwana abafunda kulo beswele izindlu ezanele zesikole, kanye nezinye izidingo zemfundo umntwana ofundayo azidingayo ukuze afunde kahle ekhululekile;
(3) uzwa ukuthi laba bantwana balesi sikole baphumelela kahle kakhulu yize abanye babo befundela ngaphansi kwezihlahla; (4) uzwa nokuthi laba bantwana sebephumelele ekuhlolweni kwabo kwebanga le-10 ngo-100% iminyaka emithathu ilandelana;
(5) ukhuthaza othisha nabantwana ukuthi baqinise ngomsebenzi wabo omuhle;
(6) ululeka uMnyango wezeMfundo ukuthi ubheke ngeso elibanzi laba bantwana, ukuze kuthuthuke izinga lemfundo, liphakame kunakuqala kulesi sikole. (Translation of isiZulu draft resolution follows.)
[Mrs J N VILAKAZI: Chairperson, I move without notice:
That the Council -
(1) applauds what is done by the teachers and the learners of Bizimali High School at Nkandla in KwaZulu-Natal;
(2) notes the plight in which the learners learn, running short of classrooms and other learning resources which a learner needs in order to learn comfortably;
(3) notes that learners in this school passed very well although some of them received their lessons under the trees;
(4) notes that 100% of the learners in this school have passed matric in the past three years;
(5) encourages the teachers and learners to keep up the good work; and
(6) advises the Department of Education to give serious attention to these learners so that the standard of education in this school can improve even more than before.]
The CHAIRPERSON OF THE NCOP: There was no interpretation service available. The motion concerns a particular school that the member is congratulating on its performance in a range of areas, and seeks acknowledgement from the National Council of the successful educational progress of this school.
Given that there wasn’t an interpretation, I would ask that we ask that a translation be made available, and that we deal with this. Mrs Vilakazi, are you satisfied that I have captured the objective of the resolution?
Mrs J N VILAKAZI: I think that you have done it. You have summarised it. Of course they encounter many difficult circumstances. But they got a 100% matric pass rate for three successive years. Thank you very much for your interpretation.
Motion agreed to in accordance with section 65 of the Constitution.
The CHAIRPERSON OF THE NCOP: We must ensure that we do have services available for interpretation, particularly during motions, because being a subject that is dealt with without notice, we should be able to provide the language interpretation services for the 20 minute period of motions. So, we will certainly look into improving in that regard.
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA THIRD AMENDMENT BILL
(Consideration of Bill and of Report of Select Committee on Security and Constitutional Affairs thereon)
The CHAIRPERSON OF THE NCOP: Order! I am pleased to welcome and call on the Deputy Minister for Justice and Constitutional Development, who is becoming a good friend of the National Council of Provinces.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Thank you, Madam Chair. I started my parliamentary career in this House and I am definitely attached to it by the hip. It is always a pleasure to be back. I bring to you today my Minister’s apologies; he is abroad. This is a very important piece of legislation and I know that he would very much have liked to have dealt with it. His loss is obviously my gain. Thank you.
Madam Chair and colleagues, as we seek innovative and practical ways to give systemic support to local government, we need constantly to review our policy and legislative environment. Where impediments to effective service delivery are identified, it is the duty of the Government to approach Parliament for assistance. The Bill in front of us today addresses some very important issues. The main objectives of the Bill are the following: It regulates provincial intervention in local government; it provides for Bills regulating certain financial matters to be dealt with in accordance with the procedure set out in section 76(1) of the Constitution; it changes the name of the Northern Province to Limpopo Province; and it simplifies the process of review by the National Council of Provinces in the case of national executive intervention in provincial government.
The original motivation for the changes to section 139 was to deal with local crises that occur when municipal councils cannot govern, or when municipalities find themselves in a state of financial emergency. The aim was to provide a clear process to deal with a municipality in financial crisis. In the absence of such a process, we have seen a few conspicuous failures of local governance harm the reputation of the entire local government sphere and create unnecessary barriers for responsible municipalities seeking private sector investment. Furthermore, with such a process in place, Government will be embarking on a major drive to encourage private sector lending to municipalities.
However, as deliberations and consultations on possible amendments to section 139 unfolded over the past two years, it became clear that a more general reworking of the section 139 mechanism for provincial executive intervention in local government was needed. For example, it is necessary to address both the legislative responsibilities of municipal councils, such as the adoption of a timely and balanced budget, and the executive responsibilities of municipalities to ensure that residents receive the services to which they are constitutionally and morally entitled. It has also been accepted that national and provincial government must do more in terms of capacity-building, monitoring and supporting local government. Preventing problems is easier and more effective than fixing them.
The amendments to section 139, which regulate interventions by provincial executives in local government, form the crux of the Bill. These amendments provide a comprehensive pathway for interventions by provincial executives in municipalities - a scheme that recognises and preserves the role of a democratically elected municipal council and which at the same time assures all residents and stakeholders that serious or prolonged failures of governance will be dealt with. They also ensure each municipality’s ability to deal with its obligation to provide basic services and to meet its financial commitments.
The current section 139 limits intervention by a province in a municipality where a municipality fails ``to fulfil its executive obligations’’. The intervention by the province is discretionary, so a province is not obliged to intervene, even if there is a serious crisis in a municipality. The Constitution does not allow provinces to intervene where there are legislative failures by a municipality, even when such failures cause severe service delivery problems.
Passing a budget, for example, is a legislative measure, so a province cannot intervene where a municipality fails to pass a budget. This could paralyse a municipality and disrupt the provision of essential services. The Constitution currently restricts a province’s intervention to executive failures only.
The changes to section 139 essentially introduce a mandatory intervention mechanism by a province in the event of a serious financial crisis in a municipality. The amendments to section 139 will therefore serve to ensure that local government meets its constitutional obligations that include, among other things, providing services to communities, promoting social and economic development and promoting a safe and healthy environment. The amendments will also enhance investor confidence in municipalities. It is our opinion that these changes will improve governance in the local sphere by improving access to affordable and quality services.
The general experience with previous discretionary interventions is that they occur too late, and are therefore invariably ineffective. There is little evidence to suggest that interventions such as these can happen swiftly unless they are mandatory.
Smaller changes to section 139 also include a very limited form of national intervention where a province fails to intervene, but only when a mandatory provincial intervention is relevant. Although the constitutional amendment orginally tabled in Parliament in 2001 allowed national Government to intervene directly in a municipality, the Bill before the NCOP retains the status quo. In other words, only a province may intervene directly in a municipality when an executive failure occurs. National intervention is restricted to a serious budget or financial crisis, and only if the province fails to intervene as required.
It is the intention of this legislation, therefore, to ensure effective service delivery at local government level through speedy and effective intervention by the provinces, when and where necessary. This legislation thus removes the obstacles that stand in the way of achieving that goal. To this end, I commend this Bill to the House. Thank you. [Applause.]
The CHAIRPERSON OF THE NCOP: Hon members, I should have indicated that we have members of a delegation from the Limpopo Province who have come to ensure that we do approve this legislation. [Laughter.] A group of educators from the province of Limpopo are here. Avuxeni! [Applause.] We welcome them. [Applause.]
Kgoshi M L MOKOENA: Chairperson, it’s a tradition that when a kgoshi speaks his subjects must be present. [Laughter.]
Before 1994, we had four administrations in our province, which had to form one province. Looking at all the different groupings in our area, we had to agree on a name for our province. Because of where we are located geographically, the name Northern Transvaal Province was agreed upon.
After some time, the majority of our people were no longer comfortable with
the name Northern Transvaal'' because there was a rugby team in Pretoria
that called itself Northern Transvaal. Just imagine sharing a name with a
rugby team! [Laughter.] It was then agreed to remove Transvaal’’ and
retain ``Northern Province’’. We all celebrated the name, and that was it.
We discovered after a while that there are many northern provinces in many parts of the world. When some countries wanted to access us, it was difficult because the information at times … [Interjections.]
The CHAIRPERSON OF THE NCOP: Order! Hon Vilakazi, are you raising a point of order?
Mrs J N VILAKAZI: The member was wrongly identified on the screen as Mr Mkhaliphi. [Laughter.]
The CHAIRPERSON OF THE NCOP: This is Kgoshi Mokoena, to those who have compared him with Mr Mkhaliphi. He is very different from Mr Mkhaliphi. [Laughter.] Proceed, hon member.
Kgoshi M L MOKOENA: Thank you, Chairperson. Thank you, Mam’ V.
As I was saying, we discovered that there were many northern provinces in the world and that when some countries wanted to access us, it was difficult because at times the information would go to the wrong country.
In addition, we had to market ourselves as a province. It was not easy, as I said, because there are many northern provinces all over the world. We then decided to invite the public to propose a name for our province. There were some phone-in programmes at our local radio stations. Some wrote on small pieces of paper to propose names. We conducted public hearings in all our regions. The majority of our people came up with the name ``Limpopo’’. This is the isiNdebele word for a river.
Limpopo ka Sesotho sa Leboa ke diphororo'' [In Northern Sotho Limpopo’’
means ``river’’.]
This river links our province with Botswana, Zimbabwe and Mozambique. You can feel it, hon members, that the name is appetising! [Laughter.] That is where we come from, and that is who we are - Limpopo. Mr Nyakane and I used to be harassed by our colleagues hon Kgoali, hon Mkhaliphi and hon Maloi, who used to call us to order when we called ourselves Limpopo. Today those points of order are gone! [Laughter.] From now onwards we are Limpopo.
There are times when our municipalities cannot function for a variety of reasons. This Bill addresses the problems of municipal councils during interventions. This Bill makes it possible for the national executive and provincial governments to intervene if a municipality can no longer function, as was correctly stated by the hon Deputy Minister. The Bill allows the provincial government to come up with a recovery plan so as to provide services to our people, if that need arises. This Bill outlines what must be done before, during and after an intervention. One of the requirements is that a report must be submitted to the relevant Minister and to the NCOP after initiating this intervention.
What is good about these amendments is that this Council can disapprove any intervention if it feels that the intervention is not necessary.
A concern was raised by Salga that it was not thoroughly consulted and they wanted some things to be done their way. I will leave that in the capable hands of my colleague, hon Mkhaliphi.
There was also a concern from KwaZulu-Natal, which objected to the arrangement that the NCOP and the Minister had to approve an intervention. KwaZulu-Natal proposed that the Council alone should approve an intervention.
The question we put forward as the committee and as the Council was: If we wait until we approved an intervention, what will happen if that municipality is falling apart and cannot provide services? Obviously, we can’t wait for that approval until whenever. If a province initiates an intervention, and, during the course of the intervention, we feel that the intervention is not necessary, we will simply stop it and disapprove it. It is as simple as that.
I am glad that, after a very hectic debate, our colleagues finally agreed with our argument. What is the use of having a mind if you can’t change it? We feel it is better to stop the damage and deal with the logistics later.
With these few words, we support the Bill fully. I thank you. [Applause.]
Mrs E N LUBIDLA: Thank you, Chairperson. The amendments to the Constitution which we seek to introduce through this Bill are important in a number of respects.
With regard to the amendment in respect of section 76 of the Constitution, a more flexible approach is envisaged in terms of ordinary Bills where some of the provisions of such Bills affect the financial interests of provinces and others not.
The current practice is to split such Bills into section 75 and section 76 Bills, which causes practical problems and defeats clarity. To prevent these problems, the need was felt for a new mechanism which will not necessarily require the splitting of such Bills and will allow for a more rigorous process in the NCOP; hence the amendment to section 76 of the Constitution.
The other two important areas which the amending Bill touches on are interventions in provincial and local government. Intervention by the national executive in a province or by a provincial executive in a local government does not necessarily have to be seen as an abandonment or renunciation of the principles of co-operative governance. On the contrary, an intervention may sometimes be required to strengthen the principles of co-operative governance. The whole idea around interventions is to ensure the continuation of good governance at provincial and local government levels to speed up transformation, reconstruction and development.
Where a serious crisis evolves in a province or municipality, which threatens to sink the ship of good governance, transformation, reconstruction and development, it may become necessary for some form of intervention to steer the ship clear. This is the whole intention behind the interventions. It is not some sinister attempt to dilute the constitutional provisions relating to the relative independence of these spheres of government.
The ANC is committed to upholding the core principles of our Constitution, including the principles of co-operative governance. Indeed, the amendments strengthen the role which the National Council of Provinces should play in the event of interventions by the national executive, where a provincial administration fails to exercise an executive obligation, or in the event of interventions by a provincial executive where a municipality fails to exercise an executive obligation.
The ultimate aim should of course be to limit the need for interventions. As the NCOP we must proceed from the basis that interventions need not be inevitable. They can be prevented.
The need for intervention in a province by the national executive, or in a municipality by a provincial executive, does not arise overnight. The executive does not just wake up one morning and says: ``I see province X is in trouble. It cannot fulfil this or that executive obligation.’’
It is normally a series of problems that will give rise to a situation in which a province or municipality can no longer execute a particular executive obligation. The NCOP should be able to identify these problems beforehand. What is needed is an effective early-warning system through which developments in provinces and municipalities can be monitored to identify factors that can and do ultimately lead to a situation where intervention will be needed.
When the time arrives where intervention is urgently required, the NCOP will know of it beforehand and will not be taken by surprise. This is one of the main challenges confronting us as permanent delegates of the NCOP. How do we use our special position to pick up on problems in provinces or municipalities, and become more resourceful in dealing with them before they give rise to a situation which merits intervention? That is the question, Chairperson.
The CHAIRPERSON OF THE NCOP: Would you like me to answer? [Laughter.] Mrs E N LUBIDLA: We support the Bill. [Applause.]
Mr L G LEVER: Dumelang Bagetsu! [I greet all of you!] [Applause.] I am afraid my Setswana is still in its very infant stages and I cannot proceed much further than that. [Laughter.] But at least the effort is being made, I can assure the House.
The Constitution of the Republic of South Africa Third Amendment Bill should be considered together with the Municipal Finance Management Bill. The two are interlinked and it would be preferable not to consider them separately. Despite a number of requests in the select committee to be briefed on the Municipal Finance Management Bill, sadly this did not take place. The Municipal Finance Management Bill started as a system of transparency and budgetary oversight, and as a fiscal watch over budgetary processes at local level. It has ended in onerous prescriptions and broad new discretionary intervention powers and an amendment of the Constitution that diminishes the oversight of the NCOP with regard to interventions.
In respect of the constitutional trumping clause contained in the Constitution of the Republic of South Africa Third Amendment Bill, we need to ask ourselves whether we are supporting and strengthening the capacity of municipalities to manage their own affairs, given that they raise the bulk of their own revenue, or are we simply stifling them with prescriptions emanating from the National Treasury and a potential avalanche of discretionary interventions by either provincial or national government?
There are four stages of intervention set out in the new amendments. In terms of section 139(1), (2) and (3), the intervention is discretionary and a range of options are available to the MEC, including dissolution of the council in exceptional circumstances. In terms of section 139(4), the intervention is mandatory and the MEC must act if a municipality fails to fulfil an obligation in terms of the Constitution or in terms of legislation to approve a budget or to adopt any revenue-raising measure to give effect to the budget.
In terms of section 139(5), not only is the intervention mandatory in the event of financial crisis, or where a municipality breaches its obligation to provide basic services or fails to meet its financial commitments, but the provincial executive may impose a recovery plan, binding the municipality to its executive and legislative functions. This may be untenable.
As a last resort, of course, in section 139(7), national Government may intervene instead of the province if the province fails to act.
This scheme is problematic. There is too much discretion. The lines delineating provincial and national responses are too indistinct. We agree that local government financial management is in a very parlous state. We agree that we need a PFMA-type system for local government to function properly and to deliver services to our people. We agree that our Constitution sets up a specific governance architecture with three levels of government, with distinctive powers and functions under a broad rubric of co-operative governance. We disagree fundamentally on whether or not it is desirable to undo and negotiate constitutional architecture through the introduction of a new card game, like the trumping clause that emasculates many of the other constitutional provisions aimed at protecting the local sphere of government and its integrity.
The system of provincial intervention we create today will be adding flesh to the Municipal Finance Management Bill and will have to meet all the requirements of section 41(1)(g) of our Constitution. The constitutional amendment before us today impacts on the executive, legislative and administrative functions of local government.
Finally, save for changing the name of the Northern Province to Limpopo - I am sure Kgoshi Mokoena is much relieved by that - the DA will oppose the amendments in respect of the third amending Bill. [Applause.]
Mr B J MKHALIPHI: Mgcinisihlalo, nine bekunene, ngiyabonga kunginiketa lelitfuba. [Chairperson, hon members, I thank you for giving me this opportunity.]
One of the prominent attributes of a constitutional democracy like ours is consistency of policies. By consistency we not only mean similar actions in all cases, but we also mean acting in tandem with the thinking of the prevailing constitutional dispensation, as amplified in our evolving intergovernmental relations, especially the intergovernmental fiscal relations.
This arrangement ensures that every citizen and every sphere of government knows exactly what role to play and what to expect of Government at any given time. Even a municipality or province that falls into the trap of not fulfilling its role knows exactly what will happen to it at that particular time.
We do not have the classic case which prevailed in the then apartheid South Africa, where a certain bantustan was deprived of its allocation because it would not opt for independence. With our democracy we know that every allocation, and every action that is taken against a sphere of government that is in default, is legislated and agreed beforehand, so that when we do take steps to rectify actions those actions are known beforehand.
Notwithstanding what I have said, I will concede that interventions by their very nature can be considered intrusive measures into another sphere of government. Therefore it impacts on, and even undermines, the relative independence of a sphere of government. But, as I’ve said, it is preceded by deliberations and informed by legislation. So, if you talk of intrusion, it is a regulated form of intrusion and therefore we call it intervention.
If I had it my way, I would have arranged matters in the Constitution in such a way that, before you even think of section 139 and 100, you go via section 154(1) of the Constitution, which reads:
The national government and provincial governments, by legislative and other measures, must support and strengthen the capacity of municipalities to manage their own affairs, to exercise their powers and to perform their functions.
If we did not have a very intricate system of intergovernmental relations, indeed our interventions would have been called out of order. In that case, it could be said that we were cutting off our nose to spite our face. But we have ensured that before we think of sections 139 and 100, the support, supervision and measures that are necessary in terms of finance and administration are in place to ensure that municipalities and provinces are able to perform their functions as expected by their communities. We could also say that the measures we are now introducing and contemplating this afternoon constitute some form of peer review.
We have heard some inputs from organised local government that would suggest that we also intervene if municipalities are failing in their executive functions. We could not contemplate that. To be practical, it would be foolhardy of us to think that a vehicle can move when its engine has stopped. By its very nature, the executive committee of a municipality is the engine of that municipality. If the engine has failed, we don’t have a vehicle, so we scrap the vehicle and don’t allow it to drive on the road.
These amendments are also informed by case studies that we have followed and carefully scrutinised. I am referring to our experience in Viljoenskroon, Ogies and many other places. We therefore have no doubt that these amendments are necessary in order to take our democracy in the local sphere of government a step further. I thank you. [Applause.]
Cllr C JOHNSON (Salga): Chairperson, hon Deputy Minister, hon members, it is indeed an honour to participate in this debate on the Constitution of the Republic of South Africa Third Amendment Bill of 2002.
The amendment of section 139 of the Constitution, which is the main body of this amending Bill, has been in the public domain for close on two years. The main purpose of the initial version of the amendment was to facilitate the intervention by other spheres into the local sphere when a municipality was experiencing a ``financial emergency’’, as it was then called.
The initial version of the amendment to section 139 made provision for severe inroads into the sphere of local government. It provided for direct intervention by the national sphere into the local sphere, as well as the power to adopt a budget for a municipality.
The SA Local Government Association adopted a very clear and principled position in respect of the initial proposals. In summary, it made the following points. Salga affirmed and supported the current constitutional status of local government, and the current constitutional framework wherein the supervision of municipalities amounts to monitoring, support and, in the last instance, intervention by the province. Salga reiterated its stance that adequate monitoring and support will obviate the need for interventions by provinces, and its stance that a clear legislative framework for provincial supervision was urgently needed and long overdue. Salga was, and still is, firmly of the view that the financial viability of municipalities is not dependent on the ability of other actors to intervene in municipal affairs. It also believed that the current regime for supervision was adequate and that the then proposed amendments, in so far as they made inroads into the legislative authority of municipalities, undermined the constitutional integrity of local government.
The Bill currently before this House took the views of Salga firmly into account. This was made possible through the active participation of Salga in the deliberation process in the Portfolio Committee on Justice and Constitutional Development. Allow me to express our gratitude to the chairperson of Portfolio Committee on Justice and Constitutional Development, Adv Johnny de Lange, for allowing us the latitude to engage with members of the committee to convince them of the correctness of our views. Salga supports the Bill now before this House. The Bill, in so far as it relates to section 139 of the Constitution, still maintains the original intention of the constitutional drafters. In terms of the Bill, the overall responsibility for monitoring, support and intervention remains firmly with the provincial sphere. It also maintains and preserves the institutional integrity of local government by not allowing any intervention to make inroads into the legislative authority of a municipality.
While Salga appreciates the need to amend section 139, so as to facilitate the implementation of Chapter 13 of the Municipal Finance Management Bill, there is still a glaring omission in the total scheme of the intervention framework. There is still no national legislation in place to regulate the processes in section 139(1) and (2), or the so-called nonfinancial interventions.
There is a critical need to have such legislation because, most often, the need for interventions would arise because of the nonfulfilment of an executive obligation. Where such nonfulfilment is left unattended, it would escalate into a financial emergency. The chairperson of Salga, Father Mkhatshwa, made this point in his address to the inaugural Salga Consultative Assembly of Mayors in Rustenburg, and we have repeated this call for legislation in our submission to the portfolio committee.
In our view, the legislation must provide for the rendering of support to municipalities and for intervention where support has failed. Building capacity can be seen as the main purpose for rendering support. This can take place through the training of staff and councillors, through the provision of material and technical support, making available legislative support systems through methods of skills transfer, and through the sharing of resources.
In respect of the requests by municipalities for support, there is a clear need for legislation to determine issues such as when and how support may be requested; the role of organised local government in that process; the identification of instances where support may be imposed, for example disaster management; and general criteria in terms of which indicators that show a need for support may be drawn up.
In terms of a clear framework for interventions, the following issues must be provided for in legislation. Prior to intervention, there must be statutory recognition of the role of, and consultation with, organised local government within the province and the NCOP. There must be an obligation to report regularly to organised local government and the provincial standing committee. Permanent intergovernmental structures must be established at provincial level to provide for consultation on identification of problems, terms of intervention, reporting mechanisms, and the appointment of an administrator. Interventions must be preceded by measures to support and strengthen local government in general and municipalities in particular. Provincial commissions of inquiry must be preceded by consultations with organised local government, and a regulatory framework to capacitate provinces to deal with interventions.
Furthermore, it would be ideal if a uniform framework for provincial supervision could be contained either in an Act of Parliament that regulates intergovernmental relations or in a stand-alone Act.
This legislation adds to the ever-expanding framework legislation for local government. As Salga, we are mindful that our system of local government is young and that our legislature must take care not to overburden local government with legislative and executive obligations. We are confident that this Bill, together with the soon-to-be enacted Municipal Finance Management Bill, will provide the necessary platform for local government to continue delivering on our promise for a better life for all and pushing back the frontiers of poverty. I thank you. [Applause.]
Mr R RATSHITANGA (Northern Province): Chairperson, and hon members of this House, I am not going to bother this House by touching on the aspect of intervention by a provincial executive or the national executive in municipalities when they fail to render a particular service. I fully agree with what other members such as hon Mkhaliphi have aptly described.
My address will deal with the change of name from the Northern Province to Limpopo. This is because it affects me very much, as I come from that province, and I was in the committee that dealt with that. The name change from Northern Province to Limpopo could not have come at a better time than the present, for several reasons.
To begin with, the change of name sets the historical and political record straight. All of you who are present here will agree with me that most civilisations in the world that we read about, talk about and praise so much have been associated with rivers. At least, I don’t know of any that is not associated with a river. With this river in particular, which according to SA National Geographic Names means ``small waterfalls’’ as Kgoshi Mokoena aptly said, quite a number of civilisations were established and nurtured.
I may remind this august House that after the hunting and gathering period came to a close, the Mapungubwe civilisation was established and nurtured by this very river. After that, the Great Zimbabwe civilisation ensued. Not only that, but we have a famous history that deals with the manufacturing of guns in that region around Sofala, where the famous Mondlani was born at another stage. We are very proud of this civilisation, which was associated with the smelting of iron at Tshimbupfe and the mining of gold in that area, as well as the mining of copper.
To some of us the renaming of the province means that indeed the civilisations that would otherwise have been buried, will perhaps be remembered. This amendment has caused us to remember the people who lived in that part of the country, where they civilised themselves, like many others in this great country and on the greatest continent. We have learnt a lot about these civilisations, and much still remains to be learnt, as archeology continues to dig up more evidence.
The change of name from Northern Province to Limpopo also has to do with another aspect of civilisation, namely that South Africans, led by the ANC, had to change the political affairs of this country from that of colonialism and the apartheid regime to the democracy we enjoy today. This occurred because of freedom fighters, many of whom crossed this river while going to the mecca of the struggle, Lusaka. This history, as President Mbeki aptly says, should be written. It must also be part of the entire history of this country during this epoch.
The change of name occurs because tourists and investors from abroad were having problems locating us, because there are many northern provinces in the world, as Kgoshi Mokoena aptly said. [Time expired.] [Applause.]
Mr C ACKERMANN: Chairperson, it seems today is a day of celebrations. The colleague from the Limpopo explained to us now why the name change is necessary. From the Western Cape we want to congratulate the now Limpopo Province on their new name. We are indeed sure that this will lead to new prosperity in that province. So, congratulations colleagues, on your new name.
The other celebration is the fact that Salga is in the House today. [Applause.] They have not been here for a very long time. The contribution that the hon member made here was very interesting. I must advise Salga that the buck doesn’t stop with the portfolio committee of the National Assembly. The buck stops with the committee of the NCOP. The contributions that the member made today would have been wonderful if he had made them in our committee. [Interjections.] There was even a mandate from the Eastern Cape that specifically asked: What about Salga’s contribution?
The fact is that Salga is part of the National Council of Provinces. That is why we negotiated the Constitution to bring in third-tier government and to make this the place for you. But it seems to us in this House - and I am not fighting with you - that you are negotiating with the portfolio committee of the National Assembly. It could be the right place; that is where it starts, but the buck stops in the NCOP. I want to appeal to you to participate more in our committees. Come and make the contributions that you made today. It is wonderful and that is what we want. We have missed it for a long time.
I am not going to say much about the legislation. The Minister and our chairperson have covered everything. From the Western Cape we support the legislation. Thank you very much to our chairperson for the efforts that he made, also to accommodate KwaZulu-Natal to a large extent. I think the legislation is good legislation and we support it. Thank you. [Applause.]
Mr P D N MALOYI: Chairperson, just yesterday Kgoshi Mokoena presented the
final mandate from the Northern Province/Limpopo. Unfortunately, at the top
was written Northern Province'', and at the bottom Limpopo’’.
[Laughter.]
We were not sure whether we should call them Limpopo or Northern Province. We are happy that today we are doing away with that confusion. Hopefully, from now on we’ll call them Limpopo, and the North West supports that.
The Select Committee on Local Government, at that time led by Mahomed Bhabha, visited an area called Stilfontein in the North West. We had meetings with councillors, people who deal with administration, the manager for finance, the CEO, everybody. But something which was not palatable to members of the committee was that whilst we were intervening administratively, it appeared as though there were political problems.
Legislatively we are failing to address problems in this particular area, and the Constitution before us does not empower us to intervene at that level. We were just able to intervene administratively, appoint an administrator, etc. But the Council could not do certain things which were supposed to be done by that particular council. So we just had to leave, and say that there was nothing we could do.
In consultation with the standing committee in my province, and in consultation with the ANC, we then agreed that the legislation before us today is correct. Nobody who is politically mature can disagree with what is before us. Mr Lever is my friend and colleague. I must tell you that he drove me from Mafikeng to Taung and we had a nice chat. I warned him, and said: ``You know, Mr Lever, I don’t like instant coffee-creamer politics. What I suggest we as the ANC should do for you, is to prepare a political incubation programme, put you in it and prepare you.’’ He did not agree with me. Even today he still continues with his instant coffee-creamer politics. But we will address that. We are from the same province. We will address that problem.
I don’t want to spoil what the chairperson, the Minister and other speakers have said about this legislation. The ANC is in support. I thank you. [Laughter.] [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Thank you, Madam Chair, and thank you to all the members for their input.
The hon Mokoena’s input demonstrated that apparently simple governance processes can suddenly become extremely complex. Complexities notwithstanding, however, the province’s new name resonates. It feels right, it sounds right, and the provincial representatives in this House seem thoroughly pleased with the outcome of the provincial name-changing process. Limpopo it is, and now it shall surely stay.
I am interested, from a language point of view, that we in the Free State
refer to it as Limpopo'', and I noticed the representative here referred
to it asLimpompo’’. I will take guidance from you. Just like Mr Lever, I
am language impaired. I wondered: I find in Sesotho that the l'' is often
pronounced as ad’’. So you will excuse us if sometimes the Free Staters
come up with something like ``Dimpopo’’ … [Laughter.] … while we are
trying to learn and become familiar with the many nuances of language.
The hon Lubidla referred to the dynamic relations between the tiers of government. This amendment has, in my opinion, just the correct amount of what I like to call the ``push-me, pull-you’’ ingredient to give balance to these intertier relations.
Hon Lever’s input was thoughtful, but it fails to recognise the need for provinces and national Government to support capacity-building and delivery in local government. He himself referred to the lack of capacity and the challenges for delivery, and I think that this input provides just the correct measures that are required.
When I first heard Councillor Johnson’s input I thought ``how nice’’, because I knew the relationship between Salga and the NCOP, and how wonderful of our system that a local government body can participate here, and participate in the National Assembly process. Well, then I heard Mr Ackermann’s response. Councillor Johnson was being tapped on the wrist for not engaging the NCOP committee.
I know how ferocious our MPs can be so I will read something on your requirement for additional legislation. This is a resolution that was adopted by the portfolio committee in the National Assembly. But this is a section of it and it refers to legislation. It says:
The committee has for purposes of consistency with section 139(3) decided not to amend section 100(3), so as to make the enactment of the national legislation contemplated in that section compulsory. However, the committee would like to recommend that the Minister of Finance be requested to submit a report to the National Assembly within three months of the adoption of this report by the National Assembly -
(a) including or indicating all steps that he has taken or will be taking in order to table the national legislation contemplated in section 100(3), or, if he does not envisage tabling such legislation, providing motivation for this decision.
So there you have a decision by the portfolio committee that is leading to the place where I think you were going. Let me just say that while you’ve learnt to interact with both Houses of Parliament, it would be wise and diplomatic to show your preference for the NCOP. [Laughter.]
The hon member Ratshitanga’s delight and pride at his altered provincial designation was clearly evident. His reference to ancient civilisations in that province were thought-provoking and profound. I have a sense - we went through this with the coat of arms process - that there is so much rich and diverse history that we have to learn about our country.
And so, in hon Ackermann’s words, this is a celebration. It is a rediscovery and a redefinition of us as a society, and particularly of that province. Mr Ackermann was in a very benevolent mood, so it’s easy to close.
I thank all the members for their input, and for their preparation for this debate. I am firmly of the belief that it will provide a really good mechanism to the kind of problems that have been addressed. Thank you. [Applause.]
Debate concluded.
Question put: That the Bill be agreed to.
IN FAVOUR OF: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West, Western Cape.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
EXPLOSIVES BILL
(Consideration of Bill and of Report of Select Committee on Security and Constitutional Affairs thereon)
The MINISTER OF SAFETY AND SECURITY: Thank you, Madam Chair and hon members. Over lunch I was thinking about how I would approach my task this afternoon of placing this Bill before this hon House. In my other life, as some of you would know, I was a recorder of history. I was wondering how I would define the atmosphere in this House today, as we begin to deal with this Bill.
I had to pose that question because as we are sitting here, there are very huge volumes of explosives that are exploding in some parts of the world. As we are speaking, the children of Iraq are victims of these explosives. But the issue of Iraq is not an isolated incident. If it was an isolated incident, we would say that maybe the world is beginning to understand that the human soul is important and we would move away from the many programmes that seek to destroy the human soul. But there are other areas where these explosives are being detonated and they are killing human beings.
I was wondering what kind of atmosphere would permeate this discussion. I was wondering whether there would be a sense of eeriness that would confront us? Would it be a sense of commitment to ensuring the safety and security of all people? Would it be dismembered attention to what is happening elsewhere in the world in regard to explosives? Or would we sit down here and say it is indeed the responsibility of South Africans who, coming from our particular background, would want to negotiate peace, not only in our country, but everywhere where human beings are in conflict with one another.
And I came to the conclusion that because we have this particular history and experience in South Africa, all of us would want to say that as South Africans, we would want to assist people in areas of the world where there is still conflict, to sit down and negotiate, through a process of discussion, those areas of conflict that we have. Therefore, I do believe that when we look at this particular Bill, we will understand the injury that explosives do to human beings and the human soul.
But let me start from the beginning, with the fact that our democratic breakthrough has seen a systematic process unfolding in our department, to ensure that the legal framework which serves as a tool for law enforcement and to exercise the constitutional mandate of the SA Police Service is continuously being reviewed and updated to suit present-day circumstances.
The Explosives Act of 1956 is one of the archaic pieces of legislation which urgently needed such review. Even while we were in the process of adopting this Bill, we were faced with the news of terrible bomb explosions in Bali, Tanzania and also at home. It happened in Soweto last year, events which are stark reminders of the need to continue to improve measures to control explosives.
Modern technology, globalisation, the increased use and availability of fireworks, inadequate penalty provisions and the concerns surrounding the possession and use of explosives by persons or groups with sinister motives also necessitated the review of the Explosives Act of 1956. Our Government has the responsibility to protect its people, and this it will do within the framework of effective and ever-improving laws.
The main objective of the Bill before this House today is to ensure adequate control over the possession and manufacture of explosives through the introduction of severe penalty provisions for offences.
This Bill, together with the Fire Arms Control Act and the Anti-terrorism Bill that was introduced in Parliament recently, are building blocks in the legislative toolbox needed to create a safe and secure environment. In the review and update of the Explosives Act of 1956, a number of factors were taken into account, including the following.
Firstly, the threat of international terrorism demands better and stricter control over explosives. The recent tragic events globally are clearly indicative of this need and the threat that explosives pose to all.
Secondly, incidents where explosions occur deliberately or inadvertently are simply too frequent. The loss of life and large-scale destruction in a residential area in Pretoria - I am sure you will remember that incident - which resulted from an explosion in a house where explosives were kept illegally, and the more recent suicide effected through the use of explosives, to mention just a couple, are indicative of the need for improved control over explosives, including the licensing of users.
Thirdly, the need to create a database of explosives that are manufactured in or exported from the Republic, or imported into the Republic, is urgent to enhance investigations of criminal explosions and to bring the perpetrators to book.
Furthermore, the Bill places a duty on persons to keep records of explosives, and to report lost and stolen explosives, and provides for the use of end-user certificates to ensure that exported explosives are not diverted into the hands of criminals. It introduces the investigative tool of presumption of possession of explosives in circumstances that make it difficult to link, with reasonable certainty, the possession of explosives to any person. The Bill empowers the police to take prints and bodily samples of suspects for investigative purposes. Whilst these provisions are necessary and not without a degree of controversy, the Bill ensures that they comply with constitutional norms and that they can withstand constitutional muster. The Department of Safety and Security and the SA Police Service have an overarching responsibility to ensure the safety and security of all members of the public. The Department of Labour bears the responsibility for explosives within the workplace and the Department of Minerals and Energy within the mining environment. In this Bill, the respective roles of the departments vis-à-vis the Explosives Bill and the Department of Safety and Security are determined by providing for certain exemptions which may be given by the Minister of Safety and Security in respect of mining and occupational health and safety.
The possession and use of fireworks without a permit has also raised controversy amongst certain sections of our community. The Bill clearly does not encroach upon the cultural or religious rights of certain communities. In fact, the Bill allows for these under controlled conditions, by means of a power to the Minister to make certain exemptions in respect of cultural, religious or traditional celebrations. Therefore, the Bill strikes a neat balance between the broader interests of our society in general and the interests and practices of certain religious and cultural communities.
I am especially indebted to the Select Committee on Security of this House for effecting amendments to the Bill that were extremely important, such as an amended definition of the term ``explosion’’ in the Bill, following continued consultations with the industry. Furthermore, it became clear that although the Bill provided for the criminalisation of the possession of incendiary devices, such as petrol bombs, in circumstances where the presumptions in the Bill apply, there was a lacuna where a person is actually found in possession of a petrol bomb. The committee consequently proposed that this House make such recommendation to the National Assembly. These amendments are fully supported, as they enrich and appropriately round off the Bill. Thank you very much for that.
This process underlined once again the important role that this House has in the parliamentary processes and the broader task that we have for the democratisation of our country. Accordingly, I move that this Bill be approved by the House, with the amendments recommended by the committee. Thank you. [Applause.]
Kgoshi M L MOKOENA: Chairperson, it was very interesting to hear of one country accusing Iraq of not respecting the Geneva Convention. When it suits them, they want people to adhere to certain rules and conventions but they give themselves licence to act unilaterally.
The bombing of Planet Hollywood at the V&A Waterfront a few years ago was a bitter pill to swallow for all South Africans. The bombing of a church in Bronkhorstspruit, petrol stations in Soweto and other strategic places by the Boeremag left all patriotic South Africans very angry. The pipebombs used to destroy many houses in the Western Cape were not going to be ignored by our Government. There is no way we can ignore the concern raised by the SPCA that fireworks pose a danger to our animals, and even to human beings.
I don’t think there is anyone in this House who has forgotten the pictures shown on TV and in some newspapers of people in Angola and Mozambique whose limbs had been blown off by unwanted explosives. Just think of those homes which were destroyed by petrol bombs.
As the Minister has rightly said, technology is so advanced these days. The Explosives Act of 1956 could not deal effectively with some of these worrying activities. In reviewing this Act, some corrective measures had to be put in place. The Explosives Bill will limit the excessive use of fireworks. There were people who took advantage of the gaps or shortcomings in the previous legislation. The Bill makes it an offence to manufacture explosives without authorisation by the state. No person can possess explosives without the necessary authorisation. No person will be allowed to import or export explosives without a permit. If you are found to be engaged in the above things without a licence or permit, the punishment is severe - for example, between 15 and 25 years imprisonment. Don’t say you haven’t been warned!
To deal with people who are fond of cheating, the Bill puts in place monitoring mechanisms. That is why the chief inspector of explosives and other inspectors can search, seize, inspect and even enter any premises to investigate compliance with the Bill.
The Bill allows other departments or groupings to be exempted from its provisions. There was a submission from Armscor, which wanted to fall under the same category; that is, it also wanted to be exempted. Unfortunately, the committee could not accommodate their request because any person can apply to the Minister to be exempted if tangible reasons are furnished. So, their concerns have been taken care of, for example, in clause 2(3)(a) in Chapter 1.
It was pleasing to note that all parties in the committee supported the Bill. The committee agreed with the new formulation that will make it an offence for anyone to be found in possession of a petrol bomb. As a civilised country, we cannot allow a situation where our country’s image is tarnished by irresponsible elements - hence these measures to control, observe, monitor and inspect these explosives.
In life, as in football, you won’t go very far unless you know where the goalposts are. Don’t say you haven’t been warned because it is not a mistake to make a mistake, but it is a mistake to repeat the same mistake.
We support the Bill. [Applause.]
Mnr P A MATTHEE: Voorsitter, ek kan nie anders nie as om te begin deur hierdie paar woorde op te dra aan so baie mede-Suid-Afrikaners, en ook mede- Afrikane, wie se lewens deur ontploffings van plofstowwe en bomme vernietig is. Baie van hulle is vandag nog vermink as gevolg van dié ontploffings deur landmyne, pypbomme, ens.
Ons kan ook nie anders nie, Voorsitter, as om op hierdie dag, terwyl ons oor hierdie wetgewing besin, weer eens opnuut hulde te bring aan ons voormalige leiers en presidente van dié land, Mandela en De Klerk, wat ons land weggelei het van die afgrond van ‘n burgeroorlog, waar ons land en ons toekoms vernietig sou word deur onder andere ontploffings. Ons moet weer hulde bring aan daardie leiers wat ons op dié pad gesit het. Ons moet nooit vergeet dat dit deur toegewydheid aan ‘n vreedsame oplossing is dat ons dit reggekry het nie. Ons kan vandag in ons strate loop en ons teaters besoek sonder om die hele tyd vir ‘n ontploffing te vrees.
Maar dit is ook nodig dat ons te alle tye waaksaam moet wees, en die strukture en wetgewing moet daarstel wat ons veiligheidsmagte en polisie in staat sal stel om ons te beveilig teen enige internasionale terroriste, of ander mense wat weer van dié tipe metodes sou wou gebruik maak.
Dit is ook belangrik om te besef dat ons voortdurend ons mense moet lei op ‘n pad van vrede, ‘n pad na ‘n vreedsame toekoms, en dat dit nie help om die ou gevegte weer oor te baklei nie, maar dat ons moet aanbeweeg, en dat ons die toekoms gesamentlik moet ingaan om die vyande van armoede en misdaad aan te spreek, én om dinge te verbeter om ‘n beter lewe vir al ons mense in hierdie land daar te stel.
Die huidige regulering van plofstowwe ingevolge die Wet op Plofstowwe van 1956 is nie meer toereikend en effektief nie, as gevolg van verskeie faktore, onder andere die ontwikkeling van nuwe plofstowwe, moderne tegnologie, globalisering en die daarmee gepaardgaande nuwe klassifiseringstelsels van die Verenigde Nasies, asook ‘n groot toename in die beskikbaarheid en gebruik van vuurwerk en die ontoereikende strafbepalings van die huidige wet.
Die hoofoogmerk van hierdie nuwe wet is dan ook in die eerste plek om seker te maak dat daar voldoende beheer is oor die besit, die gebruik, die invoer en die uitvoer van hierdie plofstowwe wat so lewensgevaarlik vir al ons mense kan wees. Ons is bly dat die erns van die oortredings met plofstowwe benadruk word in die wetgewing. Dit blyk duidelik uit die maksimum vonnisse wat voorgeskryf word, soos in die geval van persone wat skuldig bevind word aan die oortreding van die regulasies wat in die vooruitsig gestel word, selfs tot 25 jaar gevangenisstraf. Ander vonnisse wissel vir eerste oortreders vanaf 15 jaar, vir tweede oortreders vanaf 20 jaar en vir derde oortreders ook 25 jaar. Ons steun dit, want hierdie is lewensgevaarlike en dodelike plofstowwe vir ons mense.
Die verbod op die vervoer van plofstowwe onder sekere omstandighede, wat tans vervat is in die Wet op Oproerige Byeenkomste, word nou ook in dié wetsontwerp opgeneem om sodoende die maatreëls ten opsigte van plofstowwe te konsolideer.
Internasionale neigings met betrekking tot die beheer van plofstowwe vind vergestalting in hierdie wetsontwerp om te verseker dat Suid-Afrika sy verpligtinge in hierdie verband kan nakom.
Ek wil afsluit deur die hoop en die vertroue uit te spreek dat dié wetgewing een van die boublokke sal wees om ‘n veilige en beter toekoms vir al ons mense in dié land te verseker. [Applous.] (Translation of Afrikaans speech follows.)
[Mr P A MATTHEE: Chairperson, I have no choice but to start by dedicating these few words to so many fellow South Africans, and also fellow Africans, whose lives were destroyed by explosions caused by explosives and bombs. Many of them are still maimed today as a result of these explosions caused by landmines, pipe bombs, etc.
We also have no choice, Chairperson, on this day when we are considering this legislation, once more to pay tribute to our previous leaders and presidents of this country, Mandela and De Klerk, who steered our country away from the abyss of civil war, where our country and our future would have been destroyed by explosions, among other things. We must again pay tribute to those leaders who have put us on this path. We must never forget that we have achieved this through a commitment to a peaceful solution. Today we can walk our streets and visit our theatres without the constant fear of an explosion.
However, it is also necessary for us to be cautious at all times, and to create the structures and legislation that will enable our security forces and police to protect us against any international terrorists, or other people who would want to use these types of methods again.
It is also important to realise that we should continually guide our people on a path of peace, a path towards a peaceful future, and that it serves no purpose once again to engage in old battles, but that we have to move forward, and that we should move into the future united in order to address the enemies of poverty and crime, and to improve things in order to create a better life for all our people in this country.
The current regulation of explosives in terms of the Explosives Act of 1956 is no longer relevant and effective, due to various factors, including the development of new explosives, modern technology, globalisation and the concomitant new classification systems of the United Nations, as well as a huge increase in the availability and use of fireworks and the inadequate penal clauses of the current Act.
Consequently, the principal objective of the new Act is, firstly, to ensure adequate control over the possession, use, import and export of these explosives which could endanger the lives of all our people. We are pleased that the seriousness of offences that involve explosives is being emphasised in the legislation. It is evident from the maximum sentences that are being prescribed, as in the case of persons who are found guilty of contravening the envisaged regulations, even up to 25 years imprisonment. Other sentences vary from 15 years for first offenders, 20 years for second offenders and also 25 years for third offenders. We support it, because these explosives are life-threatening and perilous to our people.
The ban on the conveyance of explosives under certain conditions, currently entrenched in the Riotous Assemblies Act, has now also been included in this Bill in order to consolidate the measures in respect of explosives.
International trends relating to the control of explosives are embodied within this Bill to ensure that South Africa fulfils its obligations in this regard.
In conclusion, I want to express the hope and confidence that this legislation will be one of the building blocks which will ensure a safe and better future for all our people in this country. [Applause.]]
Mntw B Z ZULU: Sihlalo, Ngqongqoshe ohloniphekileyo namalungu ahloniphekileyo, uma umuntu ekhuluma ngeziqhumane ezikhathini eziningi usuke ekhuluma ngokufa okungekho-ke noyedwa ongumngani wakho kule Ndlu.
Kubaluleke kakhulu ukuba khona kwalo Mthetho weziQhumane ukuze kuvikeleke labo abazisebenzisayo kanye nomphakathi. Iziqhumane lezi ziyingozi ngisho nakulabo abazenzayo uma nje kwenzeke iphutha elincane ekuziphatheni kwabo. Yingakho uMnyango wezoBulungiswa nokuThuthukiswa koMthethosisekelo ukubone kubalulekile kakhulu ukuba wenze lesi sichibiyelo salo Mthetho.
Lo Mthethosivivinyo ukubeka kucace ukuthi akekho umuntu ovumeleke ukuba neziqhumane - ukuzithengisa noma ukuziphatha ngaphandle kwemvume. Akekho umuntu ovumelekile ukwenza noma ukugcina iziqhumane, ukuzithumela ngaphandle kwezwe noma ukuzingenisa ezweni ngaphandle kokuba abe nencwadi yemvume yokwenza njalo. Lo Mthethosivivinyo ukugcizelela kakhulu kuzo zonke izigatshana zawo ukuthi ngumuntu onjani okumele anikezwe igunya lokuphatha nokuthengisa iziqhumane.
Ukuqhuma kweziqhumane kuyawuhlukumeza kakhulu umqondo walowo muntu okuzwayo. Ngisho izilwane ezifana nezinja ziyabaleka ziwashiye amakhaya azo uma zizwa umsindo weziqhumane ohlasimulisayo.
Sizibonile iziqhumane zibhidliza izakhiwo, ngemizuzwana emibalwa zishabalale ziphele. Uma ingane ibe neshwa yabona kuhlaselwa kubo ngesiqhumane, umqondo wayo uyahlukumezeka kakhulu. Kwesinye isikhathi ingane iyabaleka ilishiye lelo khaya ngokubona ukuthi ayiphephile kulo lapho ibona lidlavuzwa yiziqhumane, libhidlika liphela.
Sizibonile iziqhumane zisetshenziswa ngabantu basePalestine abasuke sebehlukumezeke kakhulu beziqhumisa ngazo ukuze bafe nezitha zabo ezingi. Namuhla siyalubona ulaka olubhodla amalangabi omlilo lwempi yeziqhumane elwayo e-Iraq. Umonakalo eziwenzayo uyothatha iminyaka ukuba ulungiswe.
Uma uhambela amazwe amaningi ase-Afrika ayelwa nalwo asalwayo, uthola abantu abaningi kuwo benqamuke imilenze nezingalo ngenxa yeziqhumane okwakuliwa ngazo. Nangemuva kwezimpi iziqhumane zisala ziyingozi enkulu, lezo ezisuke zimbelwe phansi, ngoba ziyaqhubeka nokulimaza abantu.
Lapha eMozambique kade sibona ochwepheshe abanolwazi lweziqhumane behamba becwaninga iziqhumane ezazimbelwe phansi ukuze bazithene amandla. EMozambique iziqhumane zihlale zaba yingozi kubo nangaphezu kweminyaka engaphezu kwamashumi amabili nesithupha izwe labo lakhululeka. Ngakho-ke kubalulekile kakhulu ukuba uhulumeni wentando yabantu ahlinzeke ngomthetho ofana nalo ukuze ukuphathwa nokusetshenziswa kweziqhumane kwenzeke ngaphansi kwesandla esiqinileyo. Lokhu kwenzelwa ukuvikela izimpilo zabantu abayizakhamuzi zaseMzansi Afrika. Thina njenge-ANC siyaweseka lo Mthethosivivinyo. [Ihlombe.] (Translation of isiZulu speech follows.)
[Prince B Z Zulu: Chairperson, hon Minister and hon members, when one speaks of explosives, more often than not one speaks of death, which is no friend of anyone in this House.
It is imperative that the legislation on explosives is there to protect those who use them and the community at large. These explosives are hazardous even to those who produce them, if by some mistake something goes wrong in handling them. That is why the Department of Justice and Constitutional Development saw fit to amend this Bill.
This Bill states explicitly that no one is allowed to have explosives in their possession - to sell or possess them without permission. No one is allowed to produce or keep explosives, to export or import them without a document authorising that particular person to do that. This Bill strongly emphasises in all its clauses what kind of person should be given the authority to handle and sell explosives.
The explosion of explosives traumatises the mind of the particular person who hears it. Even animals such as dogs run away from home if they hear the terrible sound of explosives going off.
We have seen explosives destroying buildings; in a few seconds buildings vanished. If a child is unfortunate and witnesses his/her home being attacked with explosives, the child’s mind is traumatised. Sometimes a child runs away from home because s/he feels unsafe when s/he sees it being destroyed by explosives.
We have witnessed explosives being used by the people of Palestine, who have been very traumatised, to blow themselves up so that they could die together with their enemies. Today we see a horrible, explosive war in Iraq. The damage they cause will take years to rectify.
If you go to many of the African countries that have been in conflict and those who are still in conflict, you will find many people in those countries with broken legs and arms because of the explosives which they used. Even after wars explosives remain hazardous; those that are buried underground, because they continue to hurt people.
In Mozambique we have seen explosives experts going around studying explosives that were buried underground so they could deactivate them. In Mozambique explosives remained hazardous to the people for twenty-six years after their country became independent. It is therefore important that the democratic Government provides an Act like this so that the handling and usage of explosives could take place under strong supervision. This is done to protect people’s lives, those who are citizens of South Africa. We as the ANC support this Bill. [Applause.]]
Mr L G LEVER: Chairperson, hon Minister, hon Kgoshi Mokoena, hon Matthee and hon Prince Zulu have dealt with most of the aspects of this Bill. I am not going to repeat those aspects, but I am just going to highlight a few issues that have not yet been highlighted.
I wish to say that the Bill enjoyed the thorough process of consultation and negotiation in the National Assembly. It appears that most of the problematic aspects of the Bill were adequately dealt with in the portfolio committee. The few outstanding issues that remained were thoroughly dealt with in the select committee, and both the hon Minister and hon Kgoshi Mokoena have already alluded to those aspects.
The definition of ``explosives’’ includes pyrotechnics and fireworks, but sufficient provision has been made for the film industry, organised fireworks displays and the use of fireworks for traditional and religious purposes, as the hon Minister has already alluded to.
The only aspect of the Bill that creates some concern is the issue of presumptions. One always has to be careful of writing presumptions into legislation. The select committee was very careful with the wording of these presumptions, and I believe that everyone in the select committee is now satisfied that the wording of these presumptions is both constitutional and lawful.
Accordingly, the Democratic Alliance supports this Bill.
Mr B J MKHALIPHI: Thank you very much, Chairperson. With my name appearing at the bottom of the list, I now have to resist the temptation to repeat what has already been said on this Bill.
Sober deliberations and consultations enabled us to overcome what would have been insurmountable problems when we were dealing with this Bill. I can recall that the chairperson had to stop the committee meeting for consultations. I think it is to our credit that we dealt with that impasse so effectively.
The question was: How do we deal with explosive situations in dealing with this Bill, with the explosions in other parts of the country at the back of our minds? Again, sober deliberations enabled us to overcome that as well.
When we were dealing with the issue of fireworks used for entertainment purposes, again it happened that on that Monday a front-page newspaper report showed a child with half an arm amputated due to fireworks. We deliberated and said that we could not overlegislate. Our democracy will rely more on voluntary compliance with legislation by the populace than on draconian legislation that will do nobody any good.
A further point is that when we pass this piece of legislation it will add value to the protocol, in that it will be recognised internationally that South Africa is contributing to the control of explosives, which are sometimes misused by countries, as we are witnessing right now.
We therefore approve this legislation. I thank you. [Applause.]
The CHAIRPERSON OF THE NCOP: I was intrigued by the hon Mkhaliphi’s reference to ``sober consideration’’, and wonder what occurs in other committees. [Laughter.]
Mof J L KGOALI: Modulasetulo, ha nke ke lebohe monyetla ona. Ha Letona la rona le kgabane le ne le qala le aletsa puo ya lona ka ha Molao ona oo re tlileng ho o fetisa tsatsing lena, o ile a nkama maikutlo haholo. (Translation of Sesotho paragraph follows.)
[Ms J L KGOALI: Chairperson, I thank you for this opportunity. When our hon Minister started with his speech, about this legislation that we are going to pass here today, I was really touched.]
When you look at the faces of small children in Iraq, the question comes to mind …
… hore na ekaba ha e ne e le ba ka bana, ho ne ho tla etsahala eng? [… that if those children were mine, what would happen then?]
When you look at what is happening in Israel and Palestine, you ask yourself: What is happening in this world? Do some people think that South Africa is still the country that it was before, that they can still practise what they used to do, by bombing Gauteng and the Western Cape? What was in their minds?
The ANC-led Government is happy to support this Bill. We are saying to the nation that we are concerned and we want to see our people living in a free society and a happy environment. Therefore, the ANC supports this Bill. I thank you. [Applause.]
The MINISTER OF SAFETY AND SECURITY: Thank you, hon Chairperson. I like the
definition of explosives'' the hon Prince Zulu gave. He said explosives
mean death’’. That is exactly what it is. I was also reminded by the
contributions of many hon members of what some of us have seen in the
context of our other lives.
The first time I walked on the beach in Luanda, I saw a number of people who were coming from a nearby hospital that treated victims of the war that went on for many years in Angola. Limbs had been blown off, and ears and noses had been cut off. A similar situation, of course, had been the experience of the people of Mozambique. When you see that kind of sight, indeed, you want to say how it would have been better if people had sat down to discuss the future of their countries.
The SA Police Service, as we speak, is involved in a programme in Mozambique called Operation Rachel, where we are helping the Mozambicans to remove all illegal weapons from their country, but particularly explosives. We are helping to demine that country. We are destroying bombs that they used and shells of various kinds that were used during that war.
I want to say I am happy that Mr Lever raised the issue of the negotiation process that happened around this particular Bill. It is indeed the intention of our Government that, under all circumstances, in order for us to move forward, we need to interact with all stakeholders. This is what we are doing. We are under that instruction from our leadership in Government
- that we must negotiate all the time, to reach constructive outcomes in terms of the work that we do as part of our democratisation process.
I also want to say that, as we do that, what the hon Mkhaliphi said is correct. In the end it will not be the laws that we enact, it will not be the legal systems and frameworks that we put in place that will ensure that, indeed, democracy grows. It will be, as he said, voluntary compliance on the part of our people. We would also want to rely on that voluntary compliance for this particular legislation to be effective on the ground.
I want to end by picking up on what the hon Matthee said. Those leaders who led us away from conflict to peace, are leaders whose names we should honour all the time, because they saved us from a situation where our country would have experienced an orgy of violence. They took us away from that path to a path where our vision now is one of peace and stability in South Africa. We should not forget that historic moment when this was achieved, because if we do, we will not understand our obligation to defend this democracy. It will help us as a springboard as we move into the future, when we remember that sacrifices were made. At the moment when wise leadership was required, it was given.
You will remember how precariously our effort was poised in the aftermath of the assassination of that hero of our people, Chris Hani. You will remember how our leadership stood up and said that, while we understand your hurt and your natural desire for vengeance, this is not how we should be moving forward. This is part and parcel of the sacrifices we have already made, and that we will continue to make in the name of peace, purely because we understood, when that moment arrived, that peace in our land was more important than even our own lives. That is why we were at the ready to lay down our lives for the purpose of creating the system and the conditions that prevail at this time.
I want to thank you, Madam Chair, and the hon members for the support that this Bill has enjoyed in this House. Thank you. [Applause.]
Debate concluded.
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
The Council adjourned at 16:04. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
THURSDAY, 20 MARCH 2003 ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- Classification of Bills by Joint Tagging Mechanism:
(1) The Joint Tagging Mechanism (JTM) on 19 March 2003 in terms of
Joint Rule 160(3), classified the following Bills as section 75
Bills:
(i) Compulsory HIV Testing of Alleged Sexual Offenders Bill [B
10 - 2003] (National Assembly - sec 75).
(ii) Anti-Terrorism Bill [B 12 - 2003] (National Assembly - sec
75).
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
-
The Minister of Finance: (a) Explanatory Memorandum on the Food Relief Adjustments Appropriation Bill, 2003.
-
The Minister of Environmental Affairs and Tourism:
(a) Southern African Development Community Protocol on Fisheries,
tabled in terms of section 231(2) of the Constitution, 1996.
(b) Explanatory Memorandum on the Protocol.
National Council of Provinces:
- The Chairperson:
Report and press release of the Study Group of the Commonwealth
Parliamentary Association (CPA) on "Parliament and the Media".
Copy of the report available at the Office of the Clerk of the Papers.
MONDAY, 24 MARCH 2003
ANNOUNCEMENTS:
National Council of Provinces:
- Membership of Select and House Committees:
(a) Mr B J Tolo has been elected as chairperson of the Select
Committee on Economic and Foreign Affairs with effect from 24 March
2003.
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Minister of Home Affairs:
General Notice No 487 published in Government Gazette No 24952 dated 21
February 2003: Regulations for public comment in terms of section 7 of
the Immigration Act, 2002 (Act No 13 of 2002).
- The Minister of Foreign Affairs: (a) Report on South Africa’s International Relations for 2002-2003.
(b) Strategic Plan of the Department of Foreign Affairs for 2003-
2004.
- The Minister of Defence:
The Strategic Business Plan of the Department of Defence for 2003-2004
[RP 25-2003].
- The Minister of Housing:
Strategic Plan of the Department of Housing for 2003-2006.
- The Minister of Trade and Industry:
The Medium-Term Strategy Framework of the Department of Trade and
Industry for 2003-2006.
- The Minister for Agriculture and Land Affairs: The Medium-Term Strategic and Operational Plan of the Department of Land Affairs for 2003-2007.
- The Minister in the Presidency:
Strategic Plan of the Government Communication and Information System
for 2002-2005.
COMMITTEE REPORTS:
National Council of Provinces:
-
Report of the Select Committee on Security and Constitutional Affairs on the Constitution of the Republic of South Africa Third Amendment Bill [B 33B - 2002] (National Assembly - sec 74), dated 24 March 2003:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Constitution of the Republic of South Africa Third Amendment Bill [B 33B - 2002] (National Assembly - sec 74), referred to it, reports the Bill without amendment.
TUESDAY, 25 MARCH 2003
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- Classification of Bills by Joint Tagging Mechanism:
(1) The Joint Tagging Mechanism (JTM) on 25 March 2003 in terms of
Joint Rule 160(3), classified the following Bills as section 75
Bills:
(i) Bophuthatswana National Provident Fund Act Repeal Bill [B
13 - 2003] (National Assembly - sec 75).
(ii) Sefalana Employee Benefits Organisation Act Repeal Bill [B
14 - 2003] (National Assembly - sec 75).
(2) The Joint Tagging Mechanism (JTM) on 25 March 2003 in terms of
Joint Rule 161, classified the following Bills as money Bills:
(i) Food Relief Adjustments Appropriation Bill [B 16 - 2003]
(National Assembly - sec 77).
(ii) Gold and Foreign Exchange Contingency Reserve Account
Defrayal Bill [B 17 - 2003] (National Assembly - sec 77).
- Bills passed by Houses - to be submitted to President for assent:
(1) Bill passed by National Council of Provinces on 25 March 2003:
(i) Constitution of the Republic of South Africa Third
Amendment Bill [B 33B - 2002] (National Assembly - sec 74).
NOTE: If the Bill is assented to by the President, the name of the
Act will be Constitution of the Republic of South Africa Second
Amendment Act, 2003.
National Council of Provinces:
- Membership of Select and House Committees:
(1) The following members have been appointed to serve on the
Committees mentioned, viz:
Land and Environmental Affairs:
Appointed: Van Niekerk, A E.
- Messages from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and transmitted to Council:
(1) Bills passed by National Assembly on 25 March 2003 and
transmitted for concurrence:
(i) Pensions (Supplementary) Bill [B 11 - 2003] (National
Assembly - sec 77).
(ii) Food Relief Adjustments Appropriation Bill [B 16 - 2003]
(National Assembly - sec 77).
(iii) Gold and Foreign Exchange Contingency Reserve Account
Defrayal Bill [B 17 - 2003] (National Assembly - sec 77).
The Bills have been referred to the Select Committee on Finance of
the National Council of Provinces.
- The Chairperson:
(a) The Final Report of the Truth and Reconciliation Commission was
presented to the Chairperson on 21 March 2003.
(b) Copy of the report is available from the Library of Parliament.
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Acting Minister of Transport: Report and Financial Statements of the Department of Transport for 2001- 2002, including the Report of the Auditor-General on the Financial Statements for 2001-2002 [RP 167-2002].
- The Minister of Water Affairs and Forestry:
Strategic Plan of the Department of Water Affairs and Forestry for 2003-
2006.