National Council of Provinces - 02 September 2003
THURSDAY, 2 SEPTEMBER 2003 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:08
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 0000.
APPLAUSE FOR SOUTH AFRICAN ATHLETES IN PARIS
(Draft Resolution)
Mr N M RAJU: Chair, I move without notice:
That the Council -
(1) applauds our South African athletes for capturing medals at the International Athletics meeting, just concluded in Paris;
(2) congratulates -
(a) Hestrie Cloete and Jacques Freitag for winning gold medals
in their respective high jump events;
(b) Ockert Brits for his silver medal in the pole vault; and
(c) Mbulaeni Mulaudzi for his bronze medal in the 800m event;
and
(3) notes that these athletes bring pride and joy to the South African nation which has such an insatiable appetite for fame and glory for its national teams whenever they participate in international events.
Motion agreed to in accordance with section 65 of the Constitution. SUCCESSFUL IMBIZOS IN WESTERN CAPE
(Draft Resolution)
Ms J L KGOALI: Chairperson, I move a motion without notice:
That the Council -
(1) notes the successful Imbizos attended by the President in the Western Cape;
(2) also notes the gesture of reconciliation by the President when he attended the Groote Kerk service; and
(3) further notes and welcomes the invitation by the President to the Groote Kerk to attend the opening of Parliament.
Motion agreed to in accordance with section 65 of the Constitution.
DEAF AWARENESS WEEK
(Draft Resolution)
Ms E C GOUWS: Voorsitter, ek stel sonder kennisgewing voor:
Dat die Raad -
(1) kennis neem daarvan dat -
(a) 1 September tot 7 September Bewustheidsweek vir Gehoorgestremdes
is;
(b) die gehoorgestremdes se slagspreuk vanjaar is: "Jy hoef dit nie
te hoor om dit te voel nie";
(c) die Suid-Afrikaanse Federasie vir Dowes (DeafSA) saamgespan het
met 'n bekende musiekhandelaar om mense bewus te maak van die
1,6 miljoen Suid-Afrikaners wat gehoorgestrem is; en
(d) net 1% van die gestremdes heeltemal doof is en dat die res almal
die vermoë het om minstens die trillings van musiek aan te voel;
en
(2) sy dank uitspreek teenoor musiekhandelaars wat gedurende hierdie week geld insamel om DeafSA te ondersteun. (Translation of Afrikaans draft resolution follows.)
[Ms E C Gouws: Chairperson, I move without notice:
That the House -
(1) notes that -
(a) 1 September to 7 September is Deaf Awareness Week;
(b) this year the slogan of the hearing impaired is: "You don't have
to hear it to feel it";
(c) the Deaf Federation of South Africa (DeafSA) has joined forces
with a well-known music retailer to make people aware of the 1,6
million South Africans who are hearing impaired; and
(d) only 1% of the impaired are completely deaf and that the rest
all have the ability at least to feel the vibrations of music;
and
(2) expresses its thanks to music retailers which are collecting money this week to support DeafSA.
Motion agreed to in accordance with section 65 of the Constitution.
CURRENT ROUND OF TALKS IN THE SUDAN
(Draft Resolution)
Mr K D S DURR: Chairperson, I move without notice:
That the Council -
(1) notes that the current round of talks by the Sudanese parties, sponsored by IGAD (Intergovernmental Authority on Development), calls upon the warring parties to make some hard choices in the coming weeks;
(2) is of the view that -
(a) if this, the best chance of peace in 20 years, is missed,
the war in the Sudan, which has already cost over a million
lives, may become more deadly and destructive than ever;
(b) it is crucial, not only for the participants from the
region, but also for the mediating countries and the official
observers (from the US, the UK, Norway, Italy, the AU and the
UN) to fully support the process;
(c) currently there are disturbing signs of a breakdown
between the main parties concerned, i.e. the government of the
Sudan and the SPLM, that they need to show greater flexibility
and that, if they allow a complete breakdown, it may be very
difficult to put a peace process back on track in the Sudan;
and
(d) both the government of the Sudan and the SPLM need to know
that a price will have to be paid by any side deliberately
wrecking the talks; and
(3) calls upon the South African Government and the Minister of Foreign Affairs to also support the process and to use our influence to keep the parties in the Sudan talking and the process on track towards a genuine, acceptable, practical, sustainable and peaceful transition and towards becoming a nation at peace with itself and the world.
Motion agreed to in accordance with section 65 of the Constitution.
SUCCESSFUL CONVICTION OF GOLDEN ARROW BUS COMPANY
(Draft Resolution)
Ms D M RAMODIBE: Chairperson, I rise to move without notice:
That the Council -
(1) notes with appreciation the successful conviction of the Golden Arrow Bus Company for fraud after a two year investigation by the Scorpions Elite Unit;
(2) also notes that the bus company was convicted for incorrectly linking government-subsidised passenger cards between 1997 and 2000; and
(3) further notes that the state stands to receive R57 million from this conviction.
Motion agreed to in accordance with section 65 of the Constitution. LAUNCH OF RAIL SAFETY CAMPAIGN
(Draft Resolution)
Ms P C P MAJODINA: Chairperson, I move without notice:
That the Council -
(1) notes the launching of the Rail Safety Campaign in the Northern Cape last week;
(2) further notes that this campaign strives to ensure the total safety of commuters, residents living adjacent to the railway reserves and employees of Spoornet;
(3) also notes that this campaign will educate communities about the inherent dangers of the railway lines;
(4) believes that this campaign will further assist in stopping cable theft; and
(5) therefore calls on communities to cooperate with Spoornet authorities in this campaign.
Motion agreed to in accordance with section 65 of the Constitution.
SALUTE TO THE UDF
(Draft Resolution)
Ms B N DLULANE: Chairperson, I move without notice:
That the Council -
(1) notes that on Sunday, 31st August 2003, more than 40 veterans of the struggle in the Western Cape, amongst whom was the former member of the Council, Mr Christmas Tinto, were saluted for their contributions to the work of the United Democratic Front (UDF); and
(2) in recognition of the major contribution by these giants of the struggle, therefore joins in saluting these heroes and heroines for their dedication in the struggle against apartheid.
Motion agreed to in accordance with section 65 of the Constitution.
PUBLIC PROTECTOR AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, as hon members will remember, the Office of the Public Protector was established by the Constitution to investigate matters such as maladministration in connection with the affairs of Government, improper conduct or undue delay by a person performing a public function, improper or dishonest acts with respect to public money and improper or unlawful enrichment of a person performing any public function.
The Constitution regulates the procedure to be followed in appointing the Public Protector. In terms of section 193(4) of the Constitution, the President, on the recommendation of the National Assembly, must appoint the Public Protector. Provision is further made that the National Assembly must for that purpose recommend a person nominated by a committee of the Assembly that is proportionally composed of members of all parties represented in the Assembly and approved by the Assembly by a resolution adopted with a supporting vote of at least 60% of the members of the Assembly.
The Public Protector Act of 1994, to which I refer as the principal act, provides for the appointment of one or more Deputy Public Protectors to assist the Public Protector in the performance of his or her functions. In terms of section 3(2) of the principal Act, the Minister responsible for the administration of justice must, after consultation with the Public Protector, appoint one or more persons as Deputy Public Protectors. The Public Protector is included in Chapter 9 of the Constitution, which deals with state institutions that strengthens our constitutional democracy. In other words, it is part of the so-called Chapter 9 institutions.
In terms of the Constitution, these institutions are independent and accountable only to the National Assembly. There have been arguments that the present appointment mechanism for Deputy Public Protectors, namely that they must be appointed by the Cabinet member responsible for the administration of justice, erodes the independence of that office, as such a person may eventually assume the duties of the Public Protector. In order to address those arguments, the Bill before the Council today seeks to introduce a new appointing mechanism for the Deputy Public Protector.
It also contains amendments relating to the Office of the Public Protector. Provision is, for example, made that a person who has for a cumulative period of at least 10 years been a member of Parliament, will now also qualify to be appointed as Public Protector. I have been informed that a concern has been raised that this new provision opens the door for possible political appointments to the Office of the Public Protector. That concern is, in my view, obviated by the provisions of section 181(2) and (5) of the Constitution, which provide, among other things, that the Chapter 9 institutions must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice and are accountable to the National Assembly.
The Bill further contains a few minor technical amendments, bringing the terminology in the principal Act in line with latest developments. For the convenience of the hon members who, due to their very busy schedules, did not have an opportunity to read the Bill, I would like to briefly mention some of the new principles relating to the appointment of the Deputy Public Protector that are contained in the Bill.
Firstly, provision is made for the appointment of only one Deputy Public Protector. He or she will be appointment for a period not exceeding seven years, but may at the end of his or her term of office be reappointed for one additional term. Secondly, the Deputy Public Protector will be appointed by the President on the recommendation of the National Assembly. Provision has been made that the Assembly must recommend a person nominated by a committee of the Assembly and approved by the Assembly by a resolution adopted with a supporting vote of the majority of the members of the Assembly. Thirdly, the Deputy Public Protector must be a South African citizen who is a fit and proper person to hold such office and who has, for a cumulative period of at least 10 years, for example, practised as an advocate or attorney or been a member of Parliament. Fourthly, the Deputy Public Protector may be removed from office only on the grounds of misconduct, incapacity or incompetence, and on the adoption by the National Assembly of a resolution calling for his or her removal from office. Such a resolution must be adopted with a supporting vote of a majority of the members of the Assembly.
I would like to take advantage of this opportunity to thank the Chairperson of the Select Committee on Security and Constitutional Affairs, Kgoshi Mokoena, and the members of the committee for the hard work they have put into the consideration of this piece of legislation. I have noted the amendments to the Bill which are being proposed in the select committee’s report on the Bill. I am of the opinion that those amendments reflect the high standard that this committee has set for itself in its approach to and processing of legislation in general.
Lastly, I would like to mention that a directorate was specifically established in my department to give effect to the constitutional responsibility contained in section 181(3) of the Constitution, namely that organs of state must assist and protect the Chapter 9 institutions to ensure their independence, impartiality, dignity and effectiveness. That directorate is responsible for, among other things, promoting and maintaining communication channels between the relevant Chapter 9 institutions and state departments, ensuring that proposals emanating from and recommendations made in reports of the Chapter 9 institutions receive the required attention after reviewing and evaluating the existing budgetary processes and financial arrangements applicable to the Chapter 9 institutions. It could be mentioned that some good progress has already been made in this regard.
As the Deputy Minister for Justice and Constitutional Development pointed out when she addressed the National Assembly on the provisions of this Bill, the Chapter 9 institutions are now able to liaise closely with the department on any problems that they might experience and which they feel could have an effect on their independence, impartiality, dignity and effectiveness. I would also like to make use of this opportunity to invite the relevant Chapter 9 institutions to approach this directorate with any problems that they might indeed experience in this regard. I thank you. [Applause.]
Kgoshi M L MOKOENA: Chairperson, once more I would like to take this opportunity to thank the hon Minister and his department for coming up with this progressive piece of legislation.
We are experiencing something very unusual. Hon members would recall that the principal Act, as the Minister rightly said, allows the Minister to appoint Deputy Public Protectors, while the Public Protector is appointed by the President. However, the amendment before us is that the Deputy Public Protector will now be appointed in the same way as the Public Protector. This simply means that the Minister will no longer appoint the Deputy Public Protector.
I want members to follow me correctly regarding this proposal so that they understand what is happening here. This proposal was triggered by the fact that it is possible that the Deputy Public Protector may eventually assume the duties of the Public Protector. Therefore, we are dealing with a delicate and very sensitive office, an office that is independent and that must be respected, supported and trusted by all South Africans. That means, again, that the Deputy Public Protector will now be appointed by the President with the involvement of Parliament.
I know hon members can remember how the incumbent is appointed, so I am not going to bore them by outlining the details of how this office is appointed, because by doing so I will be preaching the gospel to the converted.
I said that we are experiencing something very unusual. What do I mean by that? Here is the hon Minister, who is saying that he no longer wants to appoint Deputy Public Protectors. He says: Let this exercise be done by the President and Parliament. Where, if not in the ANC, could you get a Minister who was not selfish and not greedy?
He is doing all this in the best interests of this office, because it has to be independent and trusted by everybody. We salute you, hon Minister. We are not suprised, as you are the product of OR, the product of Langalibalele Dube, the product of Oom Gov and others - this is the school where the Minister comes from.
The second issue in this Bill addresses the kind of people who are to be appointed to this office - people who qualify to be appointed as the Public Protector or the Deputy Public Protector. Let me confess that when dealing with the clause that outlines how MPs can qualify to be appointed as the Public Protector or the Deputy Public Protector, I had to use my traditional powers to call for calm from our committee members, because the gloves were off; they were down to their knuckles.
What caused members to fume - for our colleagues who do not serve on this committee to understand - were clauses 2 and 4(2A). Both clauses direct that an MP can only be appointed as the Public Protector or the Deputy Public Protector if he or she has, amongst other requirements, for a cumulative period of at least 10 years been a member of Parliament.
This did not go down well with my committee members, except one. This proposal was seen as catering for MPs who served in the previous government only, excluding the current MPs who started, for example, in 1994. Let us assume this clause was in place last year. That simply means or tells you that the current Public Protector would not have been appointed. That is what ruffled feathers in the committee that day.
I’m happy to report that the select committee brought about some amendments to this clause and these were, as always, accepted by the portfolio committee when we consulted them. This is because an MP can now be appointed as the Public Protector or the Deputy Public Protector if he or she has served as an MP for five years, plus the other requirements, as stated in the Bill, that would make up 10 years.
In simple terms this means that it must be the period you should have served as an MP and those requirements that must form the 10 years, for example, if one is a judge of a High Court, is admitted as an advocate or attorney, plus the other requirements.
My colleague Adv Lawrence Lever had some reservations about these amendments. I hope that over the weekend he reconsidered his position because I trust him. He is a seasoned politician, so I know he would have done just that.
Once more, I want to thank my committee members for doing what is expected of us as the NCOP committees. I once said in this House that no matter how deep the bottle is, the cream will always be on top. I hope that all of us will do the right thing and support this Bill. I thank you. [Applause.]
Mr L G LEVER: Chairperson, hon Minister, colleagues, as the members of the select committee know, I was opposed to the Bill in the committee. The hon Kgoshi Mokoena, the chairperson of the select committee, offered to come and see me in my office to persuade me to see things differently. Unfortunately, the hon Kgoshi did not come to my office. The hon Kgoshi knows that he would always be welcome to my office and that I respect his views.
However, it was not him, but my own caucus that persuaded me to change my views. The basis on which my caucus persuaded me to change my views is that this Bill introduces a mechanism in terms of which a public process is followed for the appointment of the Deputy Public Protector. This process is similar to the one followed for the appointment of the Public Protector in the present Act, and this is commendable. However, the concerns I expressed in the committee, I believe, are still valid and need to be expressed in this open and public debate which we are having before the nation today.
In order to place these concerns in a proper context, one must examine the nature of the state institutions supporting democracy, the so-called Chapter 9 institutions. The nature of these institutions is most aptly described in section 181 (2) and (3) - which the hon Minister referred to - of our Constitution. Subsection 2 goes:
These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must excercise their powers and perform their functions without fear, favour or prejudice. Subsection 3 goes:
Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
In order to be effective, these institutions need not only be independent, but also be perceived as independent by the public at large. The problem is that this Bill, in clauses 2 and 4, introduces a new clause, 1A subsection 3(e) and 2A subsection 4(d), providing a new ground to qualify for this position. With 10 years experience as a member of Parliament, there are two difficulties with this position.
Firstly, it undermines the public perception of independence. This is so because, no matter how tenuous the connection between the candidate and the Government of the day may be, to appoint someone like that - however remotely connected - would undermine the perception of independence. I must stress that this is so regardless of the Government of the day. My view in this regard would not change even when my own party comes to power.[Laughter.]
Secondly, this ground makes no provision or sets no requirements for what qualifications or experience a member of Parliament needs in order to qualify for the job. I think that a Public Protector or his deputy must of necessity have a legal qualification or some connection to legal training or experience. However, this is not required in the present subsection 3 and 4(d) as they stand at present. However, despite my concerns, my party supports this Bill. Thank you. [Applause.]
The CHAIRPERSON OF COMMITTEES: Thank you very much, Mr Lever. I am sure it is because of that that I decided to withdraw from participating, because I wanted to deal directly with you.
Mr B J MKHALIPHI: Hon Chairperson, hon Minister and hon members, the fact that of the nine institutions supporting constitutional democracy the Office of the Public Protector is mentioned first in the Constitution, underlines the importance attached to this institution in our democracy.
The amendments before us this afternoon seek to regulate matters connected to the Office of the Public Protector and, to a larger extent, regulate procedures and conditions for the appointment of a Deputy Public Protector.
Here we observe critical ways and means aimed at ensuring that the somewhat anomalous situation which prevailed in allowing the Minister to be involved in the appointment of deputy public protectors, is addressed by allocating that responsibility to the President and Parliament. The Bill also seeks to give more clarity on the levels of authority between the Public Protector and his or her deputy.
In its deliberations, our committee focused for some time on the criteria for the appointment of the Public Protector. The majority of us shared the view that some of the requirements for appointment as Public Protector did not make real sense, hence we opted for the combination of experiences in order to level the playing field, to cater for categories of potential candidates who would otherwise had been excluded.
In doing this we were informed by the practical situations which dictate that the Office of the Public Protector is not necessarily a one- dimensional institution serving as a guardian of the public interests on judicial matters only. We might recall that recently the Office of the Public Protector was called upon to take on review some matters of commercial interest and to weigh this interest against the greater public interest, with particular reference to the principles of fairness, transparency and honesty.
When such matters come under review, the concerned legislature will have to investigate whether a legal instrument such as the Executive Members’ Ethics Act of 1998, and your own code of conduct as members of Parliament have been complied with. Our action, therefore, to amend the set requirements was motivated by our commitment to sustaining the dignity and decorum which is bestowed on the Office of the Public Protector, so that every citizen of this country can feel the benefits of constitutional democracy.
We should, therefore, support this amending Bill. Thank you, Chairperson.
Mnr P A MATTHEE: Voorsitter, die belangrikheid van die instelling van die Openbare Beskermer as een van die staatsinstellings wat grondwetlike demokrasie ondersteun kan nie maklik oorbeklemtoon word nie en daarom wil ek dit vandag weer beklemtoon.
Die onafhanklikheid van die Openbare Beskermer en die feit dat hy of sy slegs teenoor die Parlement verantwoordingspligtig is, is eweneens baie belangrik. Dit spreek vanself dat indien dit verwag word van die persoon wat die posisie van die Openbare Beskermer beklee, dit ook verwag kan word van die persoon wat die posisie van die Adjunk-Openbare Beskermer beklee. Daardie persoon moet met dieselfde mate van onafhanklikheid en gesag as die Openbare Beskermer kan optree, en daarom behoort daardie persoon ook met dieselfde mate van onafhanklikheid en gesag beklee te word.
Tans is die posisie egter dat daar meer as een Adjunk-Openbare Beskermer kan wees wat deur die kabinetslid verantwoordelik vir regspleging aangestel moet word. Die wysiging van hierdie wetsontwerp stel nou voor dat daar slegs een Adjunk-Openbare Beskermer moet wees wat, soos die geval met die Openbare Beskermer, deur die President met die betrokkenheid van die departement aangestel moet word. (Translation of Afrikaans paragraphs follows.)
[The importance of the establishment of the Public Protector as one of the state institutions that supports constitutional democracy cannot easily be overemphasised, and therefore I want to emphasise it again today.
The independence of the Public Protector, and the fact that he or she is only accountable to Parliament, is also very important. It stands to reason that if this is expected from the person who occupies the position of Public Protector, it can also be expected from the person who occupies the position of Deputy Public Protector. This person should be able to act with the same degree of independence and authority as the Public Protector, and therefore the same degree of independence and authority should be vested in this person.
Currently the position is, however, that there can be more than one Deputy Public Protector who have to be appointed by the cabinet member responsible for the administration of justice. Now the amendment of this Bill recommends that there should only be one Deputy Public Protector who has to be appointed by the President, as in the case of the Public Protector, with the involvement of the department.]
The portfolio committee has added two further possible qualifications for a person to be appointed as Public Protector or Deputy Public Protector: firstly, a person who is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university or has for a cumulative period of at least 10 years been a member of Parliament. The other possible qualifications are that the person be either a judge or a person admitted as an advocate or an attorney and has for a cumulative period of at least 10 years, after having been so admitted, practised as an advocate or an attorney or has specialised knowledge of or experience for a cumulative period of at least 10 years in the administration of justice, public administration or public finance.
It does not seem logical that a person has to fall in either one of the categories mentioned to qualify to be appointed as a Public Protector or Deputy Public Protector. When I pointed this out and suggested a possible solution, the committee, of course, under the capable leadership of our chairperson and with the able assistance of Adv Johan Labuschagne, immediately accepted this further amendment which we now propose that the other House also accepts, namely that a person who has acquired any combination of experience mentioned in the other subparagraphs for a cumulative period of at least 10 years also qualifies.
I believe that this amendment also largely accommodates the objection to the period of 10 years in respect of members of Parliament, in that our new democratic Parliament will only be in existence for 10 years during April next year. Although this leaves us with only a few months, it is important that no member of Parliament who has been a member since 1994 should be disqualified from being appointed as a Public Protector or Deputy Public Protector on the grounds that he or she has as yet not served as such for the full period of 10 years. If, Mr Minister, there is any possibility of this happening, a proviso should be included to cater for this.
As you have heard, not all of us agreed as far as the position of a member of Parliament is concerned and that that should be one of the qualifications. However, it is my submission that members of Parliament should at least, during a period of 10 years as members of Parliament, have gained enough knowledge and experience about the workings of our constitutional democracy, our whole government system, public administration, etc, to at least put him or her on a par with somebody who has specialised knowledge or experience of, for example, public administration, as stated in subparagraph 3(d) of clause 2 and subparagraph 4(c) of clause 4 where there is no requirement of any legal qualification, but only experience in, for instance, public administration for that period.
If, of course, a member of Parliament does not fulfil these requirements, he or she will not in any event be nominated for such an appointment by the National Assembly. The added advantage, of course, is that members of Parliament are well-known to each other. We know who among us are capable of fulfilling the qualities that make one eligible to be appointed as a Public Protector or a Deputy Public Protector, whereas other people may not be that well-known. I cannot see a position, as the Minister has pointed out, where 60% of the National Assembly could vote for a person whom they have known for such a long period if that person would not be able to be independent and act in the best interest of this country in that position … [Time expired.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Deputy Chair, I am rising really to thank the hon members for what I think is a very good and positive debate on this. I have no doubt that, to the extent that the Matthee-proposed amendment would help, none of us would have any objection to it. Of course, the implication of accepting that would be that the Bill then has to go back to the National Assembly in order to be able to put that in, and he might not want to start an unneccesary debate there over the amendment. However, if it becomes unavoidable and the amendment has to be effected, I do not think that anybody would fight it. It would be objectionable to do so.
I am particularly grateful to Adv Lever for declaring the DA’s support of the amendment. I must say, however, I do not share this fear with anybody who has it, because as has been said, it is unimaginable that members of the public could trust us so much that they actually elect us to come and make the sorts of decisions and laws that we make in this institution, and yet not trust us enough to be able to excercise the functions of the office of Deputy Public Protector.
I know a whole lot of us are wont to suggesting that our own fears are fears of the public and that our own ideas are ideas of the public because
- I do not know how this happens: but maybe it is part of those terrible elements in human nature - there is a tendency to think that the public and I are synonymous or interchangeable concepts. So, if I have a fear that I may not trust anyone who has spent 10 years here, I then say that the public out there shares this fear. You would be surprised to know that they do not. They will trust our judgment. Once 60% of us say X or Y is fit, proper and suitable for this position, they will accept our judgment. After all, we were elected to make all manner of judgments and we make them. We have made so many of them in the past nine and a half years already. Thank you, Madam Deputy Chair. [Applause.]
Debate concluded.
JUDICIAL OFFICERS (AMENDMENT OF CONDITIONS OF SERVICE) BILL
(Consideration of Bill and of Report thereon)
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Chairperson, the Judicial Officers (Amendment of Conditions of Service) Bill amends five Acts in all. These Acts deal primarily with the appointment of magistrates and conditions of service for judicial officers, that is, judges and magistrates.
The main objectives of the Bill are the following. Firstly, provision is made for new appointment mechanisms in respect of acting and temporary magistrates; secondly, a new mechanism is created for the determination of judicial officers’ remuneration; thirdly, the provisions relating to the suspension of magistrates pending investigation by the Magistrate’s Commission into allegations of improper conduct are revised, so as to ensure maximum procedural fairness in such cases; and fourthly, provisions pertaining to benefits accruing to spouses of judicial officers are brought into line with the decision of the Constitutional Court.
Regarding the new mechanism for the determination of judicial officers’ remuneration, the Bill makes provision for this to be determined by the President and approved by Parliament. However, the President must make this determination after taking into consideration recommendations of the Independent Commission for the Remuneration of Public Office-bearers. Hon members will be aware of the fact that this commission also makes recommendations to the President regarding the remuneration of, inter alia, members of Cabinet, members of the national and provincial legislatures, municipal councils and traditional leaders.
Judicial officers are indeed in a unique position when it comes to the determination of their salaries and other benefits as it would be clearly inappropriate for them to engage in negotiating and bargaining processes in this regard. Reflecting on this, the Constitutional Court stated the following, in paragraph 139 of the Van Rooyen judgment, and I quote:
Judicial officers ought not to be put in a position of having to engage in negotiations with the executive over their salaries. They are judicial officers, not employees, and cannot and should not resort to industrial action to advance their interest in their conditions of service. That makes them vulnerable to having less attention paid to their legitimate concerns in relation to such matters than others who can advance their interests through normal bargaining processes open to them.
However, the Court also took notice of the intention to involve the Independent Commission for the Remuneration of Public Office-bearers in this matter, as proposed in the original Judicial Officers Amendment Bill, and expressed itself as follows, in paragraph 146 of the judgment, and I quote:
Unlike the magistrates, there is no filter between the judges and the executive to mediate the determination of their remuneration. Recognising this, the Minister has submitted a Bill to Parliament to vest the Independent Commission for the Remuneration of Public Office-bearers with the power also to make recommendations on the salaries of judges and magistrates. This is part of the evolving process of judicial independence in South Africa.
I cannot improve on this perspective given by the Constitutional Court other than to confirm this intention and to assure this House that we will do our best to ensure that this mechanism will address the concerns of the judiciary in a satisfactory manner. Also, in the Van Rooyen case the Constitutional Court held that section 9(4) of the Magistrates’ Courts Act of 1944 which relates to the appointment of acting magistrates is unconstitutional. Clause 1 of the Bill substitutes the relevant provisions of that Act in order to put the appointment of acting and temporary magistrates on a sound footing.
The suspension from office of a judicial officer is clearly a sensitive matter that needs to be approached with circumspection. Magistrates may only be removed from office on the recommendation of Parliament upon a finding by the Magistrates Commission that the magistrate is unfit to hold such office. However, in terms of section 13 of the Magistrates Act of 1993, the commission may provisionally suspend such a magistrate from office, pending an inquiry by the commission into his or her fitness to hold such office. In terms of the existing provision, Parliament will only be informed of such suspension when and if the commission recommends that a magistrate must be removed from office. However, the Bill amends section 13 in order to provide that Parliament must also, in the case of a provisional suspension, be informed of such suspension within seven days and must, as soon as possible, pass a resolution as to whether or not the provisional suspension is confirmed. The same procedure applies in regard to any decision by the commission to reduce or to withhold a magistrate’s remuneration for the duration of such suspension. Parliament may at any stage, pending the completion of the inquiry into a magistrate’s fitness to hold office, set aside the suspension of that magistrate.
The second Constitutional Court case that is relevant to the Bill is the Satchwell case, where the court held that the failure of certain provisions of the Judges’ Remuneration and Conditions of Employment Act of 2001 to afford the same rights to same-sex life partners of judges as those enjoyed by spouses of married judges, is unconstitutional.
The Bill, therefore, amends the said Act in order to make provision for the process in terms whereof an unmarried judge may register not more than one partner with the Director-General of Justice and Constitutional Development as his or her permanent life partner. The Bill follows the criteria laid down by the Constitutional Court in this regard in that the judge must be involved in a permanent life partnership in which both parties have undertaken reciprocal duties of support. Provision is also made for the deregistration of such a partner, as well as for the registration of heterosexual life partners.
The Bill carries this principle forward in respect of the lower court judiciary through the insertion of a clause of general application in the Magistrates Act of 1993. In terms of this clause, a magistrate may, likewise, register a life partner who is, for all relevant purposes, regarded as a lawfully wedded spouse of that magistrate.
During the consideration of the Bill by the Select Committee on Security and Constitutional Affairs, it came to light that certain amounts that the Minister for Justice and Constitutional Development may determine by regulation pertaining to travel expenses, maintenance of their practices by advocates acting as judges and the like, are not matters that the Independent Commission for the Remuneration of Public Office-bearers should be burdened with.
On the other hand, the so-called settlement allowance payable to judges of the Constitutional Court and the Supreme Court of Appeal, which presently also falls under the regulatory powers of the Minister, should in future be dealt with by the aforesaid commission.
The select committee has taken cognisance of these issues and are proposing certain amendments that, in my opinion, would address these matters much more satisfactorily. I would like to thank the committee, which is under the able chairmanship of Kgosi Mokoena, for their careful consideration of this legislation. Thank you.
Kgoshi M L MOKOENA: Chairperson, hon Minister, as correctly, rightfully and warmly put by my hon Minister, the Bill that we are bringing amends some five piece of legislation.
It is a known fact that our Constitution is regarded as one of the best in the world. Unlike other countries, we respect our courts. For example, when our courts, especially the Constitutional Court, can show us that there are some pieces of legislation that are unconstitutional, we, in this people’s Parliament, will make sure that we immediately amend those pieces of legislation accordingly. That is why this all-five-in-one Bill is before the Council.
When the committee visited some magistrates’ offices, there was, amongst others, a complaint that cases drag on for too long. As you are aware, there are many reasons as to why cases are not finalised as quickly as is expected. As you are aware, magistrates are also human beings. They can be committed; they can be sick or ill; they can be involved in accidents; and they can fail to preside over cases because of many other reasons. That is why, in this Bill, it is proposed that someone can be temporarily appointed to stand in for that particular magistrate in order to cater for such circumstances. How this will be done will be outlined by my colleagues.
The second amendment deals with remuneration of magistrates. The Bill proposes that the President approve magistrates’ salaries after being properly advised by the relevant commission. There are some processes to be followed on how this exercise would be carried out. Again, that will be dealt with by my colleagues.
The Bill, again, gives direction as to how the hon Minister can suspend any magistrate after being advised by the commission. Mr Maloyi and Mr Matthee will tell a good story about how that will take place.
There was a serious debate about clauses 5, 15(a) and 14 that deal with equal benefits accruing to spouses and partners of magistrates. You can picture what is going to happen when the hon Joyce Kgoali does not see her way clear. Your guess is as good as mine. Let’s not state the obvious.
Per agreement, my colleagues will deal with the other issues in the Bill. However, I’m proud to inform the House that all the amendments proposed by the select committee were accepted with a smile by the department and my colleagues in the National Assembly.
This dynamic committee would be delighted if the Council can support this Bill with these proposed amendments. I know you are not going to disappoint us. We now rely on you to do just that. Let’s support this Bill. I thank you. [Applause.]
Mr P A MATTHEE: Chairperson, although it may not at first appear so, this is a very important piece of legislation as it further strengthens that vital principle of our present constitutional democracy, namely the rule of law, “die oppergesag van die reg”, which forms the basis of our whole constitutional dispensation and, of course, embodies the independence of the judiciary.
A country can have very and many good laws, but if it does not have a judiciary which is willing and able to apply those laws in an independent way and without fear or favour, those laws are not much more than nice- sounding rhetoric. Our courts have proved that they are fearlessly independent but, as the saying goes, justice must not only be done, but must also be seen to be done, and therefore this Bill is so important, in that it gives effect to the Constitutional Court judgments in the Van Rooyen and Satchwell matters, as has already been pointed out, and adresses various problems.
Firstly, regarding the temporary appointments of magistrates, two situations are catered for, namely the appointment of an appropriately qualified and fit and proper person to act in the place of any magistrate, additional magistrate or assistant magistrate who is not available, or in any vacant office of a magistrate, by the Minister for Justice, after consultation with the head of the court concerned, for a period not exceeding three months at a time. The Minister must, of course, cause Parliament and the Magistrate’s Commission to be informed whenever any vacancy in the office of the magistrate has remained unfilled for a continuous period exceeding three months.
Secondly, an acting appointment of a competent person can be made by the head of a regional division or a person occuppying the office of Chief Magistrate in consultation with the Minister, or an official designated by him, whenever a magistrate, additional magistrate or assistant magistrate is for any reason unavailable to carry out his or her functions. In this instance, which can be described rather as a kind of emergency situation, where that head has to act, the appointment can only be for five days at a time.
The remuneration of magistrates will henceforth, as it has been pointed out in terms of this Bill, be determined by the President after considering the recommendations of the Independent Commission for the Remuneration of Public Office-bearers. Magistrates will in terms of this Bill also in future be paid out of the National Revenue Fund. Any magistrate appointed in an acting or temporary capacity to any other judicial office for a continuous period exceeding one day, and where the remuneration attached to that other office exceeds the remuneration attached ordinarily to the position held by the magistrate, shall now be entitled to such additional remuneration. I can assure you, Minister, magistrates will be very, very happy about this, because many of them have been acting and have been doing fantastic work in acting capacities, and in the past they have not received the remuneration that they should have.
It is also important now that the remuneration of magistrates shall not be reduced, except by an Act of Parliament. Clause 4 of this Bill deals with the suspension of magistrates, and the administrative justice requirements regarding suspension of magistrates are bolstered substantially in this Bill. The Minister may only provisionally suspend a magistrate on the advice of the Magistrate’s Commission and Parliament, and we must all remember this. In other words, this House will henceforth also be directly involved, because we will have to ultimately decide whether a magistrate should be removed from office, or whether a suspension should be confirmed or not. So Parliament will in future be directly involved, also in terms of this Bill.
Lastly, it is extremely important that we not only ensure the fair treatment of our judicial officers, magistrates and judges when it comes to disciplinary matters and remuneration, but also ensure - and this is of the utmost importance in the times that we live in - that our judicial officers at all times experience a feeling of safety and security when they go about their most vital and important work in the interest of the whole country. I thank you. [Applause.]
Mr L G LEVER: Thank you, Chairperson, hon Minister and colleagues. The hon Minister and the speakers prior to me have given a comprehensive overview of the contents of this Act, so it is not necessary for me to repeat the same things to everybody and make you listen to them. Suffice it to say that from my party’s point of view there are no policy matters or technical matters which we disagree with. We support the motivation by the hon Minister, and we will support this Bill. I thank you. [Applause.]
Mr B J MKHALIPHI: Hon Chairperson, hon Ministers, hon members, one of the major amendments in this Bill is the insertion of section 15A in the Magistrates Act of 1993, that is Act 90 of 1993, which addresses the issue of equal benefits accruing to spouses and partners of magistrates. This amendment recognises, for the purposes of benefit, a partner of a magistrate who is not legally married, but involved in a permanent heterosexual or same-sex life partnership which is registered with the Director-General of Justice and Constitutional Development in accordance with the regulations made under section 16 of the Act.
A partner so registered is recognised for all relevant purposes of the Act as the lawfully wedded spouse of the magistrate and is therefore entitled to benefits such as pensions of his or her spouse for their entire lifetime. The recognition of such a spouse brings the Act into line with the decision of the Constitutional Court. We should also bear in mind, ladies and gentlemen, the stipulations of section 176(3) of the Constitution, which states that the salaries, allowances and benefits of judges cannot be reduced. So we’ve got to act in that way. I thank you. [Applause.]
Mr K D S DURR: Chairperson, Minister, I am very sorry that I have to break this nice, cosy and warm support for your Bill, which we oppose. Most of this Bill is very good, Minister, and I want to congratulate you so much on what you do.
What my party has to object to is that the Government consistently drives the values of an alternative counterfeit religion in the way it proposes this kind of legislation. This Bill, as with previous pieces of legislation, finesses in, along with the good - and most of it is very good
- secular, humanist ideas on what, in this case, constitutes a family.
We understand this flows consequentially from what we think was a shameful decision of the Constitutional Court on 17 March, which decided that after the word “spouse”, the following words are to be added, and I quote: “or a partner in a permanent same-sex partnership in which the parties have undertaken reciprocal duties of support”.
That decision, Minister, in our view, strikes at the very heart of family values in South Africa. Now we find also included heterosexual people who choose not to marry, but to live together, who in future will also enjoy full pension rights as if they have been married.
Again, this clause is corrosive of the traditional family unit, which should be the building block of a healthy society, and heaven knows, this society, given the sexually transmitted diseases pandemic that we are faced with, needs a moral renewal.
How on earth will the Government implement these provisions? How do you deal with matters such as divorce between partners, for example? The potential for defrauding the state is colossal, and what are the tests and discretions that are going to be used and applied to prevent fraud? How is the state going to defend the rights of the taxpayer and have the financial consequences costed?
It is our view, given our world view, that if you subvert the family, you subvert the country. If one threatens the family unit, one breaks up the foundations upon which stable societies are built. In our view, this is another example of secular, humanist advance by stealth in this country.
The Government says it listens to the people. I don’t know if we are listening to the same people, Minister. I respect the fact that the President is, for example, now busy shortening the distance between himself and the people. We welcome that. However, there is also a cry of anguish coming from the people. They are tired of gambling, promiscuity, pornography, crime, violence, assaults against their lives and property, and now we also see a very finesse assault against the family.
South Africans wish, for example, to see a return to the death penalty as an option for murder. [Time expired.]
Mr P D N MALOYI: Mr Chairperson, I had a discussion with the Minister a minute ago. The Minister said to me: “You know, Mr Maloyi, you have seven minutes and I have 10. If you want me to use my 10 minutes, please leave whatever Mr Durr was saying to me.” And I agreed. [Laughter.]
My speech is a bit long, Chair, I’m sorry to bore you. We stand before you on behalf of the ANC, and I was told by Luthuli House to send greetings to you, Chair. [Laughter.]
The ANC supports this Bill before us and, because I have agreed with the Minister, let me allow the Minister to handle what was said by Mr Durr. I thank you, Chair. [Laughter.]
The CHAIRPERSON OF COMMITTEES: Hon Minister, I’m sure that there were no bilateral discussions between the hon member and yourself outside this House.
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, the hon member is right. We had a telepathic communication. I was hoping that the hon member would respond to what I regard as an extreme form of fundamentalism that parades on shoes with very high stiletto heels and pretends to be the voice of the people.
The people of the Republic of South Africa empowered us to draw up Constitution, and part of that Constitution is a very basic value: equality.
You know, if you listen to all manner of religious fundamentalists - some come as Muslim fundamentalists, others come, as is the case now, as Christian fundamentalists - they will all, indeed, want us to believe that they are the only ones who are the repository of truth. In fact, this is very dangerous. In the past they even ran all sorts of programmes and killed people for daring to disagree with them. Their world view was the correct one, was the God-given one and anything outside that framework was unacceptable to them, and they would commit the most horrendous of sins in the name of the Lord. [Interjections.]
They will tell us, when they speak from one angle of their mouth: “Thou shalt never kill”, and yet when they decide to speak from a different angle of the same mouth, they will tell us: “Bring back the death penalty.” We won’t do that, because we don’t believe that it is appropriate for any government to sink so low as to begin to match the criminal with the criminal’s violence. We won’t do that, precisely because we believe in a society founded on these basic values, including equality.
For us it doesn’t matter who sleeps with whom in what bedroom, honestly, … [Laughter.] … and I won’t even sit down and imagine whether there is a man lying in bed with another man right now. I don’t want to have anything to do with that. Whether they are heterosexuals, homosexuals or gays, they are equal before the law of the Republic of South Africa, and we passed that Constitution of ours in full public view.
We told the people that, indeed, from now on anything that might in the past have constituted a basis for unfair discrimination against anyone shall not apply, and this includes discrimination against people because they do things slightly differently from the way we Christian fundamentalists think they ought to be done. It’s improper in the extreme.
Do it the way you want to believe is correct in your own bedroom, in your own household. Don’t bother us when we do it differently elsewhere. We are entitled to our privacy under the Constitution. We are entitled, indeed, to be regarded and treated as equals before the law, and we shall not accept any fundamentalist dictatorship that parades the way we have experienced it here.
Having said all that, I commend this Bill to all the members and I thank the members for, indeed, supporting it. It’s very progressive. It is indeed an acknowledgement of reality, rather than pretend that reality does not exist or seek to change it and bend it the way your fundamentalism dictates it ought to look. Thank you. [Applause.]
The CHAIRPERSON OF COMMITTEES: That concludes the debate. I shall now put the question. The question is that the Bill, subject to the proposed amendments, be agreed to. In accordance with Rule 63, I shall first allow political parties the opportunity to make their declarations of vote, if they so wish.
I shall now proceed to the voting. Those in favour say “Aye”.
HON MEMBERS: Aye.
The CHAIRPERSON OF COMMITTEES: Those against say “No”. [Interjections.]
The CHAIRPERSON OF COMMITTEES: I think the “Ayes” have it. [Applause.]
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution (African Christian Democratic Party dissenting).
PUBLIC PROTECTOR AMENDMENT BILL
(Resumption of Consideration of Bill and of Report thereon)
The CHAIRPERSON OF COMMITTEES: Hon members, we now come to voting in respect of the First Order of the Day.
I shall now put the question. The question is that the Bill, subject to the proposed amendments, be agreed to. In accordance with Rule 63, I shall first allow political parties the opportunity to make declarations of vote, if they so wish. [Interjections.]
There is none. We shall now come to voting. Those in favour will say “Aye”.
HON members: Aye. The CHAIRPERSON OF COMMITTEES: Those against … [Interjections.]
An Hon MEMBER: No.
The CHAIRPERSON OF COMMITTEES: The hon member’s vote will be recorded. The majority of members have voted in favour of the Bill. I therefore declare the Bill, subject to the proposed amendments, agreed to, in terms of section 75 of the South African Constitution. [Applause.]
NATIONAL SMALL BUSINESS AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The DEPUTY MINISTER OF TRADE AND INDUSTRY: Madam Chairperson, hon members, it is indeed a pleasure for me to introduce to this House the National Small Business Amendment Bill.
Small business development is critical for the development of our country’s economy. It is critical to improve the levels of equity in our country, and it is critical as a mechanism for the creation of jobs in South Africa. The promotion and support of the SMME sector is a priority of the national, provincial and local governments.
The second reading of the National Small Business Amendment Bill, the purpose of which is to amend the National Small Business Act, incorporates the necessary adjustments proposed by the National Assembly and the National Council of Provinces. The changes to the Act will have a direct impact on the national institutions that have been created to promote and support small businesses.
I would like to remind the House of these changes, which include the following. The first one is the creation of a voice for small businesses. We all know that, due to the closure and liquidation of the National Small Business Council, it is necessary that such a voice be re-established and that any reference to the NSBC in the Act be removed. The amendment to the Act will also ensure that the mandate of Ntsika Enterprise Promotion Agency is more focused, and that some of the functions provided by this institution, which overlap with other organisations, are removed. Ntsika has already embarked on a process to rectify this situation.
Other technical amendments allow for the extension of the due date for the tabling of the annual small business review in Parliament, in addition to streamlining the process of appointing the directors of the board of Ntsika and enhancing information on the Schedule of the Act with regard to the definition of a small business.
These changes are necessary for us to ensure that a legitimate voice is created to articulate the needs of small and medium enterprises. The purpose of this body will be to advise Government on critical issues such as the impact of current and new legislation on small business, and the identification of areas of market failure for small businesses so that appropriate support and interventions can be made. It will provide advice on the constraints, the needs and communication mechanisms to interface with small businesses. Finally, it will give us methods to monitor support services that are necessary to the small business sector.
By making these amendments, we will be paving the way for even more changes to our support framework by giving a voice to the small and medium enterprises. We will be provided with information on our impact and performance in supporting this sector, and based on this feedback the department might be able to make changes and improvements.
In an ever-changing global economy it would be unwise for us not to have a dynamic approach to small and medium enterprise development. We therefore need to keep our ear to the ground and listen to what small businesses have to say. Furthermore, we are committed to ensuring that, once this amendment Bill is passed, the establishment of this advisory body will take place within a reasonable time period, and that the constitution for this body will be drafted in an open and transparent process of consultation, like we’ve been doing up to now. We will also ensure that institutions such as Ntsika are focused on their core business and that their internal structures are strong enough so that they can adapt to the change in domestic and international environments. The streamlining of Ntsika, as proposed in the National Small Business Amendment Bill, should go a long way in helping us to achieve such objectives.
It is also important that we recognise the role of provincial and local government in the SMME support framework. This sector is a very large sector, and according to our latest statistics it constitutes over 880 000 businesses in South Africa. Clearly, it would be impossible for a few national institutions to support this sector in isolation from the provincial departments of economic affairs, local government SMME development units that have been established across the country, and other private sector and NGOs that have been set up to support small and medium enterprises.
Strategic partnerships in the delivery of SMME support services are, therefore, key to the success of the SMME sector, and they remain part of our overall approach.
It is, however, necessary that we focus and co-ordinate the provision of support by these institutions, so that we avoid the overlaps that we have observed, the duplication of services and sometimes competition between the different tiers of Government.
To conclude, I would like to report that we have consulted widely on the proposed changes to the legislation, and we have broad support for these amendments. The challenge for us now is to ensure that there is effective delivery of support to the small and medium enterprise sector by all tiers of Government in a co-ordinated and well-structured manner. Given the importance of small business development to our country, it is necessary that the institutions that we have created and continue to support are efficient and well-run organisations, hence the necessity of the amendments that seek to improve the operations of these institutions. I commend the Bill before this House. Thank you. [Applause.]
Mr B J TOLO: Chairperson, Deputy Minister and hon members, the White Paper on Small Business Promotion and the National Small Business Act, Act 102 of 1996, provided guidelines for the promotion and regulation of SMMEs in the Republic of South Africa based on three elements, namely, provision of financial support, provision of nonfinancial support and creation of a representative body for the SMME sector.
The National Small Business Amendment Bill contains essentially institutional changes that are aimed at creating a voice for small business. The Bill seeks to align the focus of the department to deal with the small business sector and aims to remove any duplication of functions between the department and Ntsika.
The main reason behind the enactment of this Bill is to repeal all provisions pertaining to the National Small Business Council which was abandoned way back in 1998; to provide ministerial powers to establish a new body or a new voice for small business and to amend technical provisions relating to the agencies by narrowing down the broad mandate of Ntsika; and to refocus it by providing financial support to all small businesses.
In practice Ntsika is not making any impact in the SMME sector as was envisaged. The diversity of tasks such as training, research, policy advocacy and running of badly integrated institutions contributed towards it not realising its stated intentions. The lack of institutional capacity to deliver became one of the major obstacles for Ntsika in its role as a nonfinancial adviser in Government’s small business strategy.
In order for Ntsika to be effective it needs to correctly identify and positively address the regulatory framework of the financial systems to be in line with the mandate of DTI, which is to keep Ntsika more focused. The amendments to this Bill are aimed at changing, streamlining and overhauling Ntsika by taking away its policy-making and research functions. Then it would be more focused on its activities on small business support.
The Bill seeks to remove Ntsika’s general and broad mandate to conduct research and now aims to provide a more focused mandate on service delivery. In addition, the Bill also seeks to make the Public Finance Management Act applicable to Ntsika as well, and to establish a dedicated institution that is directly involved with small business.
In the old Act, the National Small Business Council was tasked to represent and promote the interests of small business, and to advise them on policy matters at all Government levels. However, in practice, it was unable to get sufficient buy-in to be a credible representative body and took on a number of auxiliary functions instead of concentrating on the main function.
The amending Bill grants the Minister the power to set up a body that represents the interests of small business, as a decision was taken to provide a more flexible formulation in the National Small Business Amendment Bill. Specific details that seek to spell out every possible circumstance would not be beneficial.
It further tries to create a network of service providers to ensure that the majority of the people of South Africa play a more meaningful role in the economy of the country. Market constraints and the inability to sell their products and services are some of the major obstacles for small businesses to play a meaningful role in the economy of the country.
There was a need, therefore, to make its advocacy role more inclusive, as this function cannot be limited to merely furthering the interests of its members. Section 18 of the principal Act, dealing with the implementation of strategy, authorises its advocacy function via the Minister of Trade and Industry’s guidelines. We need to overcome the problem regarding the provision of smooth transition from one system to another.
The monetary provisions which are regarded as problematic for SMMEs should be defined, so that they are not dependant on monetary exchanges. The framework currently used in every useful and other jurisdiction is defined in terms of the number of historically disadvantaged people employed. It has to be remembered that this only serves as a broad guideline and, therefore, the monetary aspects are not only focused on it, but on the broader factors as well.
Institutional and other problems to strengthen the capacity of agencies to provide a strong business support to a small business are being addressed in the National Small Business Amendment Bill.
Lastly, the proposed Bill seeks to lay out a process of consultation with stakeholders, as well as to define the functions and powers assigned to the advisory board. We propose that this Bill be adopted.
Debate concluded.
The CHAIRPERSON OF COMMITTEES: I shall now put the question. The question is that the Bill be agreed to. In accordance with Rule 63, I shall first allow political parties the opportunity to make their declaration of vote, if they so wish. We shall now proceed to the voting. Those in favour say “Aye”.
HON MEMBERS: Aye.
The CHAIRPERSON OF COMMITTEES: Those against say “No”.
HON MEMBERS: No.
The CHAIRPERSON OF COMMITTEES: I think the “Ayes” have it. The majority of members have voted in favour. I therefore declare the Bill agreed to in terms of section 75 of the Constitution. [Applause.]
NATIONAL ROAD TRAFFIC AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The CHAIRPERSON OF COMMITTEES: Hon members, as you are well aware, the hon Minister has requested that the debate continues as he is still taking his medication. He will be here to close the debate.
The CHIEF WHIP OF THE COUNCIL: Chairperson, may I ask that we proceed with item three, and that Mr Mhlahlo from the Eastern Cape start with the debate. Thank you.
Mr T MHLAHLO (Eastern Cape): Hon Chairperson and members of this hon House, I wish to make a submission on behalf of the province of the Eastern Cape on this important Bill. I wish to submit immediately that we fully support the amendments contained in this National Road Traffic Act, especially as it seeks to rectify the categories of persons who were undergoing medical treatment, those who were imprisoned with proof and those who were outside the country at the time of the conversion of drivers’ licences in this country.
We believe that this is a reasonable consideration on the part of the Government in this country, especially the Minister of Transport. Of course, we need to strengthen the capacity of registering authorities and motoring mechanisms to make sure that all the above categories of people and communities are provided with the necessary service. We also believe that those who decided to ignore the process of conversion of drivers’ licences and failed to meet the deadline must not exploit this good intention.
The Eastern Cape supports this Bill, and we are fully confident that the process of conversion which was undertaken by the Minister will be successful in this country. We have monitored the fact that, for the first time, drivers in South Africa are beginning to be co-ordinated and a sense of law is taking place across our roads. However, we do want to make the point that we must not take this process for granted. Government must pay attention to our infrastructure, especially roads, because it is only through our road network and a strong traffic system that we’ll defend our democracy. This is the point where the weaknesses of any democracy become visible. We therefore support this important Bill.
Those admitted for medical reasons, for sure, as it is stated in the Bill, will be taken care of. Of course, those who were on foreign missions in other countries will also be catered for, as well as those who were employed outside the country with fully acceptable permits, and students who had academic responsibilities in foreign countries and institutions.
With those few words we wish to make the submission that as a province, we support the Bill with amendments. Thank you very much. [Applause.]
Dr P J C NEL: Mr Chair, it is an honour for me to present this speech in this esteemed House on behalf of the hon MEC of Transport and Public Works of the Free State. I’ll read it to you.
There are currently about 6 million licensed drivers and about 6,7 million registered and licensed vehicles on South African roads. This figure is made up of 3,8 million sedan cars, 252 000 minibuses of which 126 000 operate as minibus taxis, 24 000 buses, 227 000 heavy freight vehicles, 1,2 million light delivery vehicles, 1,1 million other vehicles such as trailers, motorcycles, etc.
Having these statistics for South African road users, we are confronted by the following safety problems. There are currently about 512 000 road accidents per year. Of these about 28 000 are fatal or lead to serious injuries. The total cost of these crashes to the South African economy is currently estimated at about R13,8 billion per year. Where does this situation put us in global terms? The statistics are sobering: The state of Victoria, in Australia, registers only 1,2 deaths per 10 000 vehicles, while China registers 26. South Africa, despite the welcome drop from 15,13 deaths per 10 000 vehicles in 1995 to 13,73 in 1998, still falls well on the wrong side of the mainstream.
Two important aspects could be deduced from the foregoing situation. Firstly, our record has always been bad, notwithstanding the significant downward blips in the last years of World War 2, when we had a severe fuel shortage, resulting in less domestic travelling and in 1974 when, as a result of the global oil crisis, drastic speed restrictions were enforced on South African roads. Secondly, in recent years, particularly since the launch of the Arrive Alive campaign, we witnessed what is starting to look like a significant downward trend.
Clearly the adoption of the Road to Safety Strategy, in combination with the all-year Arrive Alive campaign, will consolidate and accelerate this trend. It is against this background that we should start identifying the weaknesses within our legislation so as to enhance the implementation of the Road-to-Safety Strategy. This could only be achieved through the amendments like the one in front of us, which is aimed at, amongst others, empowering the Minister to determine a date for expiry of licences in the former TBVC states and self-governing territories. This will indeed go a long way in ensuring that all drivers on our roads are in possession of appropriate drivers’ licences, thereby contributing to safety on our roads.
Further, this will also be indicative of our commitment to the objectives of the Road Safety Strategy. Mr Chair, the Free State supports the Bill.
Mr N M RAJU: Hon Deputy Chair, hon special delegates and hon colleagues, at the outset and in anticipation of the presence of the hon Minister Dullah Omar who, I believe, will be coming to the House a little later, I take great pleasure in welcoming him back to our Chamber.
The National Road Traffic Amendment Bill in effect sets different deadlines for different classes of persons to substitute their driving licences, that is, it sets different dates for the expiry of certain licences and for the simultaneous substitution of these driving licences with the new national ID-type licences.
Different challenges and difficulties have to be addressed as they arise along the way. One of the main challenges was in respect of licences issued in the former TBVC states. Much to the dismay of the department, it was found that no database existed to ascertain the correct number of licensed drivers. According to a briefing to the Select Committee on Public Services by the department, in the Ciskei/Transkei territories for example, only some 500 000 have been identified. A major problem in provinces such as Mpumalanga and Limpopo for example, was that a lack of a database was compounded by the fact that documents either went missing or were burnt in domestic fire accidents.
At this moment I would like to beg your indulgence, hon Chair, to pause and sympathise with our compatriots in Mpumalanga, KwaZulu-Natal and other places, who suffered terrible damages through the raging veld fires over the past couple of days.
One can understand the gravity of the challenge faced by the Transport Ministry. The scenario faced by the Ministry is no different from a situation a farmer finds himself in when his cattle go wandering all over the countryside. Therefore, one sympathises with the farmer who wishes to bring all his stray cattle into one cattle pen.
The DA also felt concerned that other categories of motorists who through the vagaries of fortune, such as economic imperatives, might find themselves employed outside the borders of the country and/or are even students pursuing further studies abroad, might otherwise be found guilty of driving without the new ID-type licences if no accommodation is made to extend the deadlines for application for the new licences.
What this Bill seeks to do is to legitimise these categories. The DA welcomes these changes sought by the Bill and has no hesitation in supporting the Bill. My party expresses the hope that the final streamlining of the new driving licences will radically and substantially reduce the number of motor accidents and the resultant deaths and injuries on our roads.
Kgoshi M L MOKOENA: Chairperson, I was mandated by the hon Nyakane to inform you about something that he was told by his province. This is what he said I must tell you. He said that, as we are all aware, there was this hullabaloo about the conversion of licences to the ID-card type system. We are all aware that there were people who were trapped and could not convert for various reasons. Because of this, Government, which feels and thinks for its people, deemed it fit and proper to accommodate people who could not convert for various reasons when the deadline caught up with them. These are people who were in hospitals, or were part of the troops in Burundi and other countries. They had to be covered by this amendment.
There will be a window period of six months to allow people who were not in the country when the deadline to convert their licences was reached to do so. Mr Nyakane said I should say the following. As Limpopo we have this foresight. We are progressive and considerate. Our economy is growing by 6%. In order for this economy not to go down, as the hon Tolo and Nkuna have confirmed, we have sent our students to go and study outside. As I am speaking now, those students are still there and when they return, they will be skilled in order to assist the province. Those who are licensed would find themselves in the predicament of not being able to convert their licences. This amendment will also cover them. This is what we are doing as Limpopo.
There are people whom we have sent to do some research on how to improve our economy in Limpopo. Those people have been there for years and they are also caught up in this predicament. This Bill will assist them to convert their licences when they return, to enable them to be licensed drivers and do what Dr Nel said.
Other aspects of the Bill were well-covered by my colleagues. I wanted to dwell specifically on this point, which is the aim, objective and vision of a peace-loving and progressive Limpopo. Having said that, I have no doubt that we will all support this Bill. [Applause.]
Mnr A J WILLIAMS (Wes-Kaap): Voorsitter, die Wysigingswetsontwerp op Nasionale Padverkeer van 2003 poog om sekere probleme wat tydens die pas afgelope proses van omskakeling van die ou identiteitsboekie- bestuurderslisensie na die kredietkaarttipe na vore gekom het, aan te spreek.
Die Wes-Kaap is van mening dat die wysigings ‘n stap in die regte rigting is, en dat dit die weg sal baan vir verdere wysigings wat reeds aandag geniet. Die Wes-Kaap steun die aanvaarding van die wetsontwerp. (Translation of Afrikaans paragraphs follows.)
[Mr A J WILLIAMS: Chairperson, the National Road Traffic Amendment Bill of 2003 envisages addressing certain problems that arose during the recently completed conversion from the old identity document driver’s licence to the credit-card type.
The Western Cape is of the view that the amendments are a step in the right direction, and that it would prepare the way for further amendments that are already receiving attention. The Western Cape supports the adoption of the Bill.]
The Western Cape standing committee thoroughly studied the contents of the amended Bill in close consultation with MEC Essop, as well as the head and officials of the Western Cape department of transport and public works.
The proposed amendments may not necessarily address all the problems still in contention, encountered in the Western Cape. Having had the privilege to study the comments that were tabled during the initial consideration stages, I believe that the amending Bill does address certain issues that must be attended to.
Daar is ook ‘n paar praktiese gevalle van voortdurende swak gesondheid wat ook in die toekoms aandag moet geniet. Die huidige wetsontwerp maak wel in artikel 18(6) voorsiening vir persone wat deur ‘n hof in staatsinstellings geplaas is, en mense wat tot mediese instellings toegelaat is. Op sigself is dit ‘n baie goeie en aanvaarbare wysiging tot die bestaande wet, en daarom steun ons dit.
Hopelik, met die volgende wetswysiging sal ander aanvaarbare, uitgerekte siektetoestande, wat nie noodwendig hospitalisasie verg nie, egter ook aanvaarbare gronde vir vrystelling wees. Ek sien baie daarna uit, aangesien ek persoonlik daarvan bewus is dat swak sig en ellelange waglyste vir oogoperasies in beide staats- en privaathospitale baie persone die voorreg ontneem het om tydens die omskakelingstydperk hul wetlike verpligtinge na te kom. (Translation of Afrikaans paragraphs follows.)
[There are also practical cases of continued ill health that must receive attention in the future. The present Bill, in section 18(6), does in fact, provide for persons who were placed in state institutions by a court, and for persons admitted to medical institutions. This in itself is a very good and acceptable amendment to the existing Act, and for that reason we support it.
However, it is hoped that with the next amendment there will be other acceptable, long drawn-out conditions of ill health that do not necessarily require hospitalisation that would also be acceptable grounds for exemption. I am looking forward to it very much as I personally am aware that poor eyesight and very long waiting lists for eye operations in both state and private institutions deprived many persons of the privilege to meet their legal obligations during the conversion period.]
The huge shortcoming that must still be addressed in future is the question of affordability. This is an immense problem as a result of poverty and unemployment. This should, however, not delay the addressing of other problems that may be attended to when the amending Bill is accepted as drafted.
The national Department of Transport and all other nine provincial counterparts should really pull out all the stops to properly address the issue, and should put legislation in place to meet the needs of the poorest of the poor in our country. Hoewel die wysigingswetsontwerp, soos dit op die oomblik daar uitsien, nie in alle opsigte aan provinsiale verwagtinge voldoen nie, behoort dit nie verder vertraag te word nie. Die Wes-Kaap sien uit na die goedkeuring en ondertekening van hierdie wet deur die President van die Republiek. Ons sien ook uit na die volgende sarsie wysigings om ander aangeleenthede aan te spreek. Ek dank u. [Applous.] (Translation of Afrikaans paragraph follows.)
[Although the amending Bill, as it stands at present, does not comply in every respect with provincial expectations, it should not be delayed any longer. The Western Cape is looking forward to the approval and ratification of this Act by the President of the Republic. We are also looking forward to the next set of amendments to address other matters. I thank you. [Applause.]]
Nksz P C P MAJODINA: Sihlalo, bendiye kwagqira ngokukhawuleza, kuba bendikhe ndafumana ingozi yemoto. Ndicela uxolo ngako oko. Asikuko ukuba ndiyidelile le Ndlu.
Sihlalo namalungu ahloniphekileyo eBhunga leSizwe lamaPhondo, mandibubulele ubukho bukaMphathiswa, ngakumbi emva kokuhlutshwa kwakhe yimpilo. Lo Mthetho oYilwayo oFakela iZilungiso uza kuncedisa wonke ummi welizwe lakowethu owaye washiywa ngaphandle ngexa wawupapashwa ngonyaka ka-1996. Kuselungelweni ke ukwenza inyoba yokuba uMphathiswa anikwe amandla athe xhaxha okujongana nezi meko sele ezikhankanyile ngokubhekisele kwabo bakwiinkonzo zoluleko, abasezibhedlele nakwabo bakumazwe ngamazwe ngenxa yemisebenzi, khon’ ukuze banikwe ithuba nabo xa bebuyela emakhaya.
Ke, ikomiti yale Ndlu ejongene nezothutho ivume ngazwinye okokuba lo Mthetho oYilwayo oFakela iZilungiso uchaphazela onke amaphondo, ngakumbi lawo ayesakuba ngoozimele geqe, phofu ke ajika aba ngoozifele geqe, bethunana.
Mandiwudlulise umbulelo kubaqhubi boMzantsi Afrika ngokuguqulela iilayisenisi zabo njengoko umthetho usitsho.
Mandilumkise le mibutho iphikisayo okokuba le nto yokusoloko ingxola ngamanani isithi abantu abaziguqulanga iilayisenisi ayina bunyani, kuba abanye babantu abangaqulanga ngabo bangasenalo ilungelo lokuqhuba ngokwasempilweni, abanye besenziwa bubudala, kanti abanye bakula maziko akhankanyiweyo. Yiyo loo nto ke sisenza le nyhweba yalo Mthetho oYilwayo oFakela iZilungiso.
Hleze kuthi kanti abanye bazifumana ngondlela-mnyama iilayisenisi, babe bayoyika ke ukuza kuguqula into eyeza ngondlela-mnyama. Nawe ke Mzantsi Afrika, ngenxa yale layisenisi ehamba ingene kuwo onke amazwe, ubungemncinane ukuba ungangabalwa kumazwe ngamazwe.
Siyakhumbula okokuba siye solula umhla kwabo bantu babefumana iingxaki ngenxa yeSebe leMicimbi yezeKhaya, ngakumbi kula mazwana bendikhe ndawakhankanya. Kaloku khukho imimandla efana nePhesheya kweNciba, uMneno Nciba, iBophuthatswana, kwaVenda, kwaNgwane, eQwaqwa nakwaNdebele. Ewe, lo Mthetho oYilwayo oFakela iZilungiso uzama ukulungiselela loo mazwana aye ngamazwe phakathi kwelizwe, phofu ke kungengakuthanda kwawo. Yiloo nto sisithi ke siyawuxhasa ngokuzelyo lo Mthetho oYilwayo oFakela iZilungiso. Ndiyabulela, Sihlalo. [Kwaqhwatywa.] (Translation of isiXhosa speech follows.)
[Ms P C P MAJODINA: Chair, I quickly went to a doctor because I was involved in a car accident. My apologies. It is not that I treat this House with contempt.
Mr Chairperson and the hon members of the NCOP, let me thank the Minister for his presence, especially after being plagued by illness. This amending Bill will assist all the citizens of this country who did not benefit when the National Road Traffic Act was passed in 1996. It is appropriate that the Minister should be provided with additional powers so as to enable him to deal with the situations he has already described in relation to those who are in correctional institutions, hospitals and all over the world as a result of their employment, so that they are also given a chance when they return.
The Select Committee on Transport therefore unanimously agreed that this amending Bill affects all provinces, especially the former Bantustans, now defunct.
Let me thank all the drivers of South Africa for converting their licences, as required by law.
Let me put it to the opposition parties that their constant noise about statistics, saying that many people have not converted their licences, is misleading, because some of the people who have not converted theirs are those who have been disqualified from driving owing to ill health and old age, whereas others are in the institutions mentioned. That is why we are providing for a window period, through this amending Bill.
Maybe some people obtained their licences by corrupt means, and for that reason are afraid to come forward and convert their licences. South Africa has proved its international worth because this licence is valid in all the countries of the world. We will remember that we extended the window period for those who experienced problems with the Department of Home Affairs, especially in the former Bantustans mentioned earlier. These are areas such as Transkei, Ciskei, Bophuthatswana, Venda, kwaNgwane, Qwaqwa and kwaNdebele. Yes, this amending Bill caters for those areas that were states within a state, although this was not of their own making. That is why we are saying we fully support this amending Bill. Thank you, Chairperson. [Applause.]]
Mr E M SOGONI (Gauteng): Hon Chair, hon Minister and the House, Gauteng would like to welcome the Minister back at work and wish him a full recovery after his ill health.
The death of over 9 000 people per year in South Africa, as a result of road crashes, is a national tragedy. Although the various Arrive Alive campaigns have started to address this issue, I think it will be prudent for us to pause for a while and look at the causes of these crashes. There are only four factors that can individually or collectively contribute towards crashes: the behaviour between the driver and the pedestrian; the vehicle itself; the road design or condition; and the time of day or night, or weather conditions.
Research on the causes of crashes has shown that the human element is the deciding factor in more than 80% of all the road crashes. It goes without saying that, if we are serious about reducing the carnage on our roads, we have to address the factor that is responsible for more than 80% of all crashes.
We are conscious of the fact that the Department of Transport has initiated quite a few changes in the national legislation. In the past, you did your learners’ licence and then your drivers’ licence and, if you passed, you received a lifelong drivers’ license. The process itself was open to manipulation, and fraudulent drivers’ licences became part of our daily lives. To address both these issues, it was decided to introduce the credit card-type licence. This would be very difficult to forge and would allow for a five-year validity period of a licence. This opened the door for retesting every five years. Currently, we are only retesting eyesight for the first renewal after five years but, in future, this could include retesting on the K53 test track.
The process entails converting the ID book-based drivers’ licence to the credit card-type license. A period of five years was initially allowed for this conversion and was subsequently extended by six months and, finally, by another two months.
Whatever the debate here, today must be seen within the context that the Government decided to go for the credit card-type licence in order to save lives. The amending Bill seeks to amend the principal Act with regard to valid licences of certain individuals that were contained in the identity documents or other documents and which have, for various reasons, not been converted yet.
The Bill describes individuals who have a deserving case to allow them to apply without penalties to have their ID-based drivers’ licences deemed valid, and allow them more time to convert their ID-based licences to a credit card-type licence.
However, there are areas of concern. Firstly, the amending Bill does not go far enough in recognising other deserving cases and, if new deserving case are to be identified in future, it could lead to a number of amendments being tabled in Parliament. Secondly, it might make law enforcement very difficult if, when enforcing the carrying of credit card-type drivers’ licences while driving is done, a whole list of exemptions have to be noted and taken into consideration by the law-enforcement officers. Thirdly, if the period of exemption drags on for too long, the whole focus of reducing the carnage on our roads could be lost.
At some stage, we, as the representatives of the public, must say that if a person has been out of the transport scene, in other words, has not been driving in South Africa for an extended period, it would be advisable and safer to have that person retested before he or she is issued with a credit card-type licence. In order to avoid a situation where every time a new deserving case is identified a new amendment Bill has to be passed, Gauteng would, therefore, recommend the following: that perhaps in subsection 6(b) we create subsection (iv) which will state that, ``people prevented from applying by any such other circumstances or factors as may be determined by the Minister, in consultation with the MECs in the provinces tasked with road traffic and the Minister of Home Affairs, by notice in the Gazette, either generally or subject to such conditions as the Minister, in consultation, may deem fit’’.
In conclusion, Gauteng supports the National Road Traffic Amendment Bill of 2003 and recommends the suggested amendment of subsection 6(b), as described. Thank you. [Applause.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon members, I must indicate that I had thought Sogoni comes from the Eastern Cape. [Laughter.]
The MINISTER OF TRANSPORT: Hon Chair, permanent delegates, delegates from provinces, hon members and friends, allow me to say that this is my first opportunity to address this hon House since my illness. I want to thank the Chairperson next to me here, other presiding officers and all members for the many messages of support and for your prayers.
I am still receiving treatment, but as you can see, medical treatment, support, prayers, family and community solidarity have all played their role to lift me in a way which makes it possible for me to be with you again.
I apologise for arriving in the middle of the debate. To try to lead as normal a life as possible, I attended the NCOP earlier to answer a question, after which I rushed to hospital to receive treatment. I received radio therapy and then I rushed back here for this debate. I did not … [Applause.] I insisted that my driver observe the speed limit. [Laughter.]
The subject matter today is the National Road Traffic Amendment Bill. We have, over the past five years, been involved in a minor revolution - if I could put it that way - in respect of an important aspect of the Road Traffic Management System, namely the issue of driving licences. I am referring to the process of conversion of licences into the prescribed credit card format, CCF, driver’s licences. That process has been largely successful.
Looking back over these five years, more than 4,5 million drivers have converted their licences in terms of the law. In the same period about two million new licences, also in the credit card format, have been issued. So, today we have approximately 6,5 million drivers on our roads with credit card format licences.
It will be recalled that on 30 April 2003, driving licences contained in identity documents ceased to be valid driving licences. At the time of the deadline it was believed that about 800 000 people had not converted to the CCF. That was an estimate. We did not have accurate figures.
The implication of the deadline, which was 30 April 2003, is that driving licences contained in identity documents are since 1 May 2003 no longer deemed to be valid driving licences. Those with licences contained in identity documents, but who failed to convert, no longer have driving licences. To obtain licences now, they will have to go through the entire process from application for a learner’s licence to the actual K53 driving test. For the sake of clarity, I want to make it clear that that deadline is final and it is not going to change.
It will also be recalled that Notice No 633 of 27 February 2003 in Government Gazette 24997 granted special exemptions to certain categories of persons who could not apply during 1 March 1998 to 30 April 2003 to convert their licences contained in identity documents to CCF licences.
There are still problems. We are dealing with real and legitimate problems encountered during the conversion period. Section 18(6) of the National Road Traffic Act, Act 93 of 1996, as amended by section 12 of the National Road Traffic Amendment Act, Act 21 of 1999, authorises the Minister to determine a date on which a driving licence contained in the identity document will cease to be a valid driving licence. However, the said provision does not empower the Minister to extend the period determined, neither does the provision allow the Minister to make exemptions. The Bill before the House seeks to deal with these problems.
Clause 1(a) of the Bill caters for several categories of persons who were unable to convert the driving licences contained in their identity documents to the prescribed driving licence format within the prescribed time period. These categories are, firstly, those admitted to any medical facility or detained in any state institution in terms of an order of court or a sentence imposed by an order of court; secondly, those posted by Government on a foreign mission or assignment; thirdly, those on a contract of employment outside the borders of the Republic and, fourthly, full-time students at foreign academic institutions.
Clause 1(a) of the Bill provides for a window period to enable persons falling into these categories to convert their driving licences to the credit card-format driving licences, so that in the window period they would be free from prosecution for not being in possession of a valid driving licence in the prescribed format. The expectation is that such persons will use the window period to obtain the CCF driver’s licences.
Clause 1(b) amends the Act, firstly, to provide for the date after which driving licences contained in identity documents and those that are not so contained will be deemed not to be driving licences in terms of the Act; secondly, to empower the Minister to set different dates for compliance for persons falling within different categories to substitute their driving licences; and, thirdly, to empower the Minister to set different dates for persons holding different types of driving licences to substitute their driving licences.
The national and provincial departments of transport, in their communication strategies, have been encouraging persons holding licences from former TBVC states and self-governing territories to convert their licences to credit card format driving licences before 1 September 2003, which has just gone by. All persons affected are very much aware of the 1 September 2003 time frame, and should be prepared for the Bill now under discusion.
Should the House approve this Bill, the Minister will be in a position to promulgate the date on which the TBVC state and self-governing territory licences will cease to be valid licences. This will bring this category of persons in line with those who formerly had driving licences in their identity documents.
Clause 2 of the Bill caters for persons who acquired their driving licences from the former TBVC states and self-governing territories and could not convert, because their records were available only at one of the offices in these territories or because those offices no longer exist. This is a particularly difficult problem to resolve. For example, it is also said that in at least one case the office burnt down and the records were destroyed during the fire. So, it is a particularly difficult problem to resolve, but hopefully it will not affect too many people.
The Bill empowers the Minister to set different dates for such persons to convert their licences. In other words, the Bill seeks to deal with those problem areas which have been identified during the conversion period, and I trust that the proposals placed before this House will meet with your approval.
In conclusion, both national and provincial governments will have to keep a close watch on this conversion and any further problems which may arise, and we must be prepared to deal with those problems. At the same time, as was pointed by hon Sogoni, we cannot just create category after category and clutter up our statute book with a number of categories which will make the law difficult to enforce. From the side of national Government, and I know from provincial governments, we are looking critically at the process, and where there are steps which need to be taken then, together, we will be prepared to take those steps. I thank you. [Applause.]
The DEPUTY CHAIRPERSON OF COMMITTEES: I am sure that members will agree with me that the Minister’s degree of commitment to his work is exemplary to all of us. [Applause.]
That concludes the debate. I shall now put the question that the Bill be agreed to as the decision is made in terms of Section 65 of the Constitution. I shall first ascertain whether all delegation heads are present in the Chamber to cast their provinces’ votes. I am told that they are present.
In accordance with Rule 71, I shall first allow provinces the opportunity to make their declarations of vote if they so wish. There is none. We shall now proceed to the voting on the question. I shall do this in alphabetic order per province. Delegation heads must please indicate to the Chair as to whether they are voting in favour or against or abstain from voting. Free State? I am sorry, Eastern Cape?
Ms B N DLULANE: Enkosi sihlalo, siyayi xhasa. [Thanks, Chairperson, we support it.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Free State?
Dr P J C NEL: Vrystaat ondersteun. [Free State supports.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Gauteng?
Ms D M RAMODIBE: Gauteng supports.
The DEPUTY CHAIRPERSON OF COMMITTEES: KwaZulu-Natal?
Mrs J N VILAKAZI: Supports. The DEPUTY CHAIRPERSON OF COMMITTEES: Limpopo?
Mr M I MAKOELA: I khou tendelana. [It supports.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Mpumalanga?
Ms M P THEMBA: Mpumalanga iyawusekela. [Mpumalanga supports.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Northern Cape?
Mrs E N LUBIDLA: Northern Cape iyavuma. [Nothern Cape supports.]
The DEPUTY CHAIRPERSON OF COMMITTEES: North West?
Mr Z S KOLWENI: North West ke ya rona. [North West supports.] [Laughter.]
The DEPUTY CHAIRPERSON OF COMMITTEES: Western Cape?
Mr C ACKERMANN: Die Wes-Kaap steun die wetgewing. [The Western Cape supports the legislation.] The DEPUTY CHAIRPERSON OF COMMITTEES: All nine provinces voted in favour. I therefore declare the Bill agreed to in terms of section 65 of the Constitution. [Applause.]
MR M A SULLIMAN'S STATEMENT
(Ruling)
The DEPUTY CHAIRPERSON OF COMMITTEES: Hon members, if you could allow me, before we conclude the business of the day, to make a ruling on the statement, as hon members will recall, by hon Sulliman. I would like to make a ruling on the objection that was raised by the hon member Lever against the statement which was made by the hon Sulliman in our plenary on Thursday last week.
At that time I ruled that the objection by the hon Lever was not a point of order. However, after perusal of the Hansard record, I noted that the allegations were of a serious nature. As members we cannot make such allegations against each other without a substantive motion alleging the facts which, if found to be true, would require that the House establishes a committee to look into the matter and pronounce itself accordingly.
I, therefore, rule that the statement made by the hon Sulliman was not in keeping with the decorum of the House. I would ask the hon Sulliman to withdraw the statement.
Mr M A SULLIMAN: I withdraw, Deputy Chairperson.
The DEPUTY CHAIRPERSON OF COMMITTEES: I thank you.
The Council adjourned at 17:26. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 29 AUGUST 2003
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- Classification of Bills by Joint Tagging Mechanism:
(1) The Joint Tagging Mechanism (JTM) on 28 August 2003, in terms of
Joint Rule 160(3), classified the following Bills as section 75
Bills:
(i) Promotion of National Unity and Reconciliation Amendment
Bill [B 34 - 2003] (National Assembly - sec 75).
(ii) Skills Development Amendment Bill [B 46 - 2003] (National
Assemby - sec 75).
(iii) Local Government: Municipal Systems Amendment Bill [B 49 -
2003] (National Assembly - sec 75).
(iv) Criminal Law (Sexual Offences) Amendment Bill [B 50 -
2003] (National Assembly - sec 75). 2. Introduction of Bills:
(1) The Minister for Justice and Constitutional Development:
(i) Superior Courts Bill [B 52 - 2003] (National Assembly -
sec 75) [Explanatory summary of Bill and prior notice of its
introduction published in Government Gazette No 25282 of 30
July 2003.]
Introduction and referral to the Portfolio Committee on Justice
and Constitutional Development of the National Assembly, as well
as referral to the Joint Tagging Mechanism (JTM) for
classification in terms of Joint Rule 160, on 1 September 2003.
In terms of Joint Rule 154, written views on the classification of
the Bill may be submitted to the Joint Tagging Mechanism (JTM)
within three parliamentary working days. TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Speaker and the Chairperson:
(a) Report and Financial Statements of Parliament of the Republic of
South Africa for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 153-2003].
(b) Report and Financial Statements of the Public Protector of South
Africa, including the Report of the Auditor-General on the
Financial Statements for 2002-2003 [RP 59-2003].
(c) Report and Financial Statements of the Financial and Fiscal
Commission for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 132-2002].
- The Minister of Finance:
Report and Financial Statements of the Accounting Standards Board for
2002-2003, including the Report of the Independent Auditors for 2002-
2003 [RP 45-2003].
- The Acting Minister of Transport:
(a) Report and Financial Statements of the South African Rail
Commuter Corporation Ltd for 2002-2003, including the Report of
the Auditor-General on the Financial Statements for 2002-2003 [RP
154-2003].
(b) Agreement between the Government of the Republic of South Africa
and the Government of the Republic of Cuba regarding Merchant
Shipping and Related Maritime Matters, tabled in terms of section
231(3) of the Constitution, 1996.
(c) Explanatory Memorandum to the Agreement between the Government
of the Republic of South Africa and the Government of the Republic
of Cuba regarding Merchant Shipping and Related Maritime Matters.
- The Minister of Environmental Affairs and Tourism:
(a) Report and Financial Statements of Vote 27 - Environmental
Affairs and Tourism for 2002-2003, including the Report of the
Auditor-General on the Financial Statements for 2002-2003 [RP 57-
2003].
(b) Report and Financial Statements of the Greater St Lucia Wetlands
Park for 2002-2003, including the Report of the Auditor-General on
the Financial Statements for 2002-2003.
- The Minister of Communications:
Report and Financial Statements of Sentech for 2002-2003, including the
Report of the Independent Auditors for 2002-2003.
- The Minister of Labour:
(a) Report and Financial Statements of Vote 28 - Labour for 2002-
2003, including the Report of the Auditor-General on the Financial
Statements for 2002-2003 [RP 72-2003].
(b) Report and Financial Statements of the Mining Qualifications
Authority for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003.
(c) Report and Financial Statements of the Wholesale and Retail
Sector Education and Training Authority for 2002-2003, including
the Report of the Auditor-General on the Financial Statements for
2002-2003. [RP 83-2003].
(d) Report and Financial Statements of the Police, Security, Legal,
Justice and Correctional Services Sector Education and Training
Authority for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 98-2003].
(e) Report and Financial Statements of the Manufacturing,
Engineering and Related Services Sector Education and Training
Authority for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 90-2003].
(f) Report and Financial Statements of the Forest Industries
Education and Training Authority for 2002-2003, including the
Report of the Auditor-General on the Financial Statements for 2002-
2003 [RP 78-2003].
- The Minister of Minerals and Energy: (a) Report and Financial Statements of the Council for Mineral Technology (MINTEK) for 2002-2003, including the Report of the Auditor-General on the Financial Statements for 2002-2003 [RP 55- 2003].
(b) Report and Financial Statements of the Council for Geoscience
for 2002-2003, including the Report of the Auditor-General on the
Financial Statements for 2002-2003 [RP 46-2003].
(c) Report and Financial Statements of the National Electricity
Regulator for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 144-2003].
(d) Annual Financial Statements of the Central Energy Fund (CEF)
Group of Companies for 2002-2003, including the Reports of the
Auditor-General on the Financial Statements for 2002-2003 [RP 155-
2003].
- The Minister in The Presidency:
Report and Financial Statements of Vote 7 - Government Communication
and Information System (GCIS) for 2002-2003, including the Report of
the Auditor-General on the Financial Statements for 2002-2003 [RP 102-
2003].
MONDAY, 1 SEPTEMBER 2003
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- Introduction of Bills:
(1) The Minister for Agriculture and Land Affairs:
(i) Agricultural Produce Agents Amendment Bill [B 53 - 2003]
(National Assembly - sec 75) [Explanatory summary of Bill and
prior notice of its introduction published in Government
Gazette No 25311 of 5 August 2003.]
Introduction and referral to the Portfolio Committee on
Agriculture and Land Affairs of the National Assembly, as well as
referral to the Joint Tagging Mechanism (JTM) for classification
in terms of Joint Rule 160, on 2 September 2003.
In terms of Joint Rule 154 , written views on the classification
of the Bill may be submitted to the Joint Tagging Mechanism (JTM)
within three parliamentary working days.
TABLINGS:
National Assembly and National Council of Provinces:
Papers
- The Minister of Defence: (a) Agreement between the Government of the Republic of South Africa and the Government of the Federative Republic of Brazil on Cooperation in Defence Related Matters, tabled in terms of section 231(3) of the Constitution, 1996.
(b) Memorandum of Understanding between the Government of the
Republic of South Africa as represented by the Department of
Defence, and the Federal Ministry of Defence of the Federal
Republic of Germany on The Joint Execution of Helicopter Cross
Deck Operations within the Scope of Maritime Cooperation, tabled
in terms of section 231(3) of the Constitution, 1996.
(c) Agreement between the Government of the Republic of South
Africa, as represented by the Department of Defence, and the
Government of the Federal Republic of Germany, as represented by
the Federal Ministry of Defence, on the Provision of Equipment
Aid, tabled in terms of section 231(3) of the Constitution, 1996.
(d) Agreement between the Government of the Republic of South
Africa, as represented by the Department of Defence, and the
Government of the Federal Republic of Germany, as represented by
the Federal Ministry of Defence, on the Secondment of a Group of
Advisers to the Republic of South Africa, tabled in terms of
section 231(3) of the Constitution, 1996.
(e) Specific Arrangement between the Department of Defence of the
Republic of South Africa and the Federal Ministry of Defence of
the Federal Republic of Germany concerning the Training of Members
of the Armed Forces of the Republic of South Africa at Bundeswehr
Facilities as Part of Military Training Assistance, tabled in
terms of section 231(3) of the Constitution, 1996.
(f) Memorandum of Understanding between the Government of the
Republic of South Africa, as represented by the Armaments
Corporation of South Africa Ltd, and the Federal Ministry of
Defence of the Federal Republic of Germany concerning the Sirius
System, tabled in terms of section 231(3) of the Constitution,
1996.
(g) Memorandum of Understanding between the Government of the
Republic of South Africa and the Government of the State of Kuwait
concerning Defence Cooperation, tabled in terms of section 231(3)
of the Constitution, 1996.
(h) Military Cooperation Agreement between the Government of the
Republic of South Africa and the Government of the Sultanate of
Oman, tabled in terms of section 231(3) of the Constitution, 1996.
(i) Agreement between the Government of the State of Qatar and the
Government of the Republic of South Africa concerning Cooperation
in the Military Field, tabled in terms of section 231(3) of the
Constitution, 1996.
(j) Memorandum of Understanding between the Government of the
Republic of South Africa and the Government of Romania concerning
Defence Cooperation, tabled in terms of section 231(3) of the
Constitution, 1996.
(k) Implementing Arrangement between the South African Air Force and
the Swedish Armed Forces concerning Peacetime Cooperation between
the Respective Air Forces, tabled in terms of section 231(3) of
the Constitution, 1996.
(l) Memorandum of Understanding between the Government of the
Republic of South Africa and the Government of the United Kingdom
of Great Britain and Northern Ireland concerning the Attachment of
South African Air Force Flying Instructors to the Royal Air Force,
tabled in terms of section 231(3) of the Constitution, 1996.
(m) Renewal of the Memorandum of Understanding between the
Government of the Republic of South Africa and the Government of
the United Kingdom of Great Britain and Northern Ireland
concerning Defence Cooperation, tabled in terms of section 231(3)
of the Constitution, 1996.
(n) Memorandum of Understanding between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government
of the Republic of South Africa concerning Defence Cooperation,
tabled in terms of section 231(3) of the Constitution, 1996.
(o) Agreement between the Government of the Republic of South Africa
and the Government of the Republic of Zambia concerning Defence
Cooperation, tabled in terms of section 231(3) of the
Constitution, 1996.
(p) Specific Arrangement between the Government of the Republic of
South Africa and the Government of the United Kingdom of Great
Britain and Northern Ireland on The Funding of the South African
Protection Support Detachment in Support of the Implementation of
the Arusha Peace and Reconciliation Agreement for Burundi, tabled
in terms of section 231(3) of the Constitution, 1996.
(q) Technical Arrangement between Armscor and General Secretariat of
Italian Defence and National Directorate of Armaments for the
Provision of Government Quality Assurance Services, tabled in
terms of section 231(3) of the Constitution, 1996.
(r) Arrangement between the Netherlands' Minister of Foreign Affairs
and the Department of Defence of the Republic of South Africa,
tabled in terms of section 231(3) of the Constitution, 1996.
(s) Arrangement between the South African Department of Defence and
the Netherlands' Minister of Foreign Affairs, tabled in terms of
section 231(3) of the Constitution, 1996.
(t) Technical Arrangement between the Department of Defence of the
Republic of South Africa as represented by the Secretary for
Defence and the Secretariat General of Defence and National
Armaments Directorate of the Italian Republic concerning
Cooperation in the field of Command, Control, Communication and
Computers, Intelligence, Infrastructure, Information,
Reconnaissance and Surveillance (CIRS), tabled in terms of section
231(3) of the Constitution, 1996.
- The Minister of Trade and Industry:
Report and Financial Statements of the Export Credit Insurance
Corporation of South Africa Ltd for 2002-2003, including the Report of
the Independent Auditors.
- The Minister for Justice and Constitutional Development:
Amended Regulations regarding the Promotion of Access to Information
Act, 2000 (Act No 2 of 2000), submitted in terms of section 92(2) of
the Promotion of Access to Information Act, 2000.
- The Minister of Communications:
(a) Report and Financial Statements of Vote No 26 - Department of
Communications for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003.
(b) Report and Financial Statements of the South African
Broadcasting Corporation (SABC) for 2002-2003, including the
Report of the Independent Auditors for 2002-2003. 5. The Minister of Sport and Recreation:
Report and Financial Statements of the South African Sport Commission
for 2002-2003, including the Report of the Auditor-General on the
Financial Statements for 2002-2003.
TUESDAY, 2 SEPTEMBER 2003
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- Bills passed by Houses - to be submitted to President for assent:
(1) Bills passed by National Assembly on 2 September 2003:
(i) Mining Titles Registration Amendment Bill [B 24D - 2003]
(National Assembly - sec 75).
(ii) Natural Scientific Professions Bill [B 56D - 2002]
(National Assembly - sec 75).
(1) Bills passed by National Council of Provinces on 2 September
2003:
(i) National Small Business Amendment Bill [B 20B - 2003]
(National Assembly - sec 75).
(ii) National Road Traffic Amendment Bill [B 31B - 2003]
(National Assembly - sec 76). 2. Introduction of Bills:
(1) The Minister of Home Affairs:
(i) Electoral Laws Amendment Bill [B 54 - 2003] (National
Assembly - sec 75) [Explanatory summary of Bill and prior
notice of its introduction published in Government Gazette No
25422 of 1 September 2003.]
Introduction and referral to the Portfolio Committee on Home
Affairs of the National Assembly, as well as referral to the Joint
Tagging Mechanism (JTM) for classification in terms of Joint Rule
160, on 3 September 2003.
In terms of Joint Rule 154, written views on the classification of
the Bill may be submitted to the Joint Tagging Mechanism (JTM)
within three parliamentary working days.
- Draft Bills submitted in terms of Joint Rule 159:
(1) The Minister of Home Affairs on 1 September 2003 submitted the
following Bills:
(i) Electoral Amendment Bill, 2003.
(ii) Films and Publications Amendment Bill, 2003.
(iii) South African Citizenship Amendment Bill, 2003.
Referred to the Portfolio Committee on Home Affairs and the Select
Committee on Social Services.
National Council of Provinces:
- 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 2 September 2003 and
transmitted for concurrence:
(i) Broad-Based Black Economic Empowerment Bill [B 27B - 2003]
(National Assembly - sec 75).
(ii) Liquor Bill [B 23B - 2003] (National Assembly - sec 76).
The Bills have been referred to the Select Committee on Economic
and Foreign Affairs of the National Council of Provinces. 2. The Chairperson:
A response has been received from the City of Tshwane with regard to
the resolution adopted by the National Council of Provinces on 3 June
2003.
Copies of the response are available from the office of the Clerk of
the Papers.
TABLINGS:
National Assembly and National Council of Provinces:
Papers
- The Minister of Education:
Report and Financial Statements of Umalusi Council for Quality
Assurance in General and Further Education and Training for 2002-2003,
including the Report of the Independent Auditors for 2002-2003. 2. The Minister of Minerals and Energy:
(a) Report and Financial Statements of Vote No 31 - Department of
Minerals and Energy for 2002-2003, including the Report of the
Auditor-General on the Financial Statements for 2002-2003 [RP 113-
2003].
(b) Report and Financial Statements of the South African Nuclear
Energy Corporation Limited (NECSA) for 2002-2003, including the
Report of the Independent Auditors for 2002-2003.
(c) Report and Financial Statements of the National Nuclear
Regulator for 2002-2003, including the Report of the Auditor-
General on the Financial Statements for 2002-2003 [RP 36-2003].
(d) Group Annual Financial Statements of the Petroleum Oil and Gas
Corporation of South Africa (Pty) Ltd (PetroSA) for 2002-2003,
including the Reports of the Auditor-General on the Financial
Statements for 2002-2003 [RP 158-2003].
- The Minister of Sport and Recreation:
Report and Financial Statements of the South African Institute for Drug-
Free Sport for 2002-2003, including the Report of the Auditor-General
on the Financial Statements for 2002-2003 [RP 124-2003].