National Assembly - 17 February 2004
TUESDAY, 17 FEBRUARY 2004 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met 14:01
The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
PASSING AWAY OF SOUTH AFRICA'S AMBASSADOR TO VIETNAM
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:
That the House - (1) notes -
(a) with profound sadness the passing away on 11 February 2004 of
South Africa's Ambassador to Vietnam, Mr Sipho Sydney Makana;
(b) that Mr Makana joined the African National Congress in 1952 and
left South Africa in 1963 and lived for many years in the former
Soviet Union where he obtained a Master's degree in economics
from the Moscow State University;
(c) that Mr Makana received military training in the Soviet Union,
served on the Revolutionary Council of the African National
Congress, was elected to the NEC of the ANC at the Kabwe
Conference in 1985 and worked as Administrative Secretary at the
ANC Headquarters in Zambia; and
(d) that during the period 1990-1997 Mr Makana was Head of the ANC
Mission in the Soviet Union;
(2) remembers that Mr Makana -
(a) was a Senator in the South African Parliament representing
Gauteng and also served as Chairperson of the Senate Select
Committee on Defence, Safety and Security, and Correctional
Services, as well as the Ad Hoc Committee on Intelligence;
(b) in 1996 was appointed as South Africa's Ambassador Extraordinary
and Plenipotentiary to the Russian Federation and on 18 November
2003 was appointed South Africa's first Ambassador to Vietnam;
(3) recognises the great and selfless work that Mr Makana did as a servant of our country and people; and (4) conveys its heartfelt condolences to the Makana family and his loved ones.
Agreed to.
PASSING AWAY OF ARCHBISHOP DENNIS HURLEY
(Draft Resolution)
Ms E THABETHE: Madam Speaker, I move without notice on behalf of the Chief Whip of the Majority Party:
That the House -
(1) notes with a deep sense of sorrow the passing away of Archbishop Dennis Hurley on 13 February 2004;
(2) remembers Archbishop Hurley’s great contribution to the struggle against apartheid, and believes that his passing away robs South Africa of one of its greatest spiritual leaders, a person of rare foresight and courage; (3) believes that, even as we mourn his loss, we must celebrate the life of this South African who, throughout his life, chose to work, together with the majority of his countrywomen and countrymen, for a just solution, the reconstruction and the development of our country, and that his life and memory will continue to inspire and encourage us in the quest for a transformed South Africa;
(4) expresses its great sense of loss at Archbishop Hurley’s passing away; and
(5) conveys its deepest condolences to Archbishop Hurley’s next of kin, the Roman Catholic Church and the millions of our people in all walks of life who looked up to him for guidance and leadership.
Agreed to.
SUSPENSION OF RULE 253(1)
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice on behalf of the Chief Whip of the Majority Party:
That Rule 253(1) be suspended for the purposes of conducting the Second Reading debate on the Local Government: Property Rates Bill [B 19 - 2003] (National Assembly - sec 75).
Agreed to.
CONDOLENCES ON DEATH OF KARABO GWALA
(Member's Statement)
Ms E NGALEKA (ANC): Madam Speaker, the ANC would like to express its deep sense of sadness at the passing away of three-year-old Karabo Gwala, who disappeared down a sewerage hole in Soweto on Monday, 2 February 2004. We are angered by the results of an urgent preliminary investigation by the Department of Labour, which found that the company carrying out maintenance work violated health and safety regulations.
We applaud the prompt action by the Department of Labour and the Johannesburg Metro in dealing with this matter, and urge that the final report be expedited so that the bereaved family can begin the healing process. The ANC conveys its heartfelt condolences to the family and friends of young Karabo. I thank you.
ADMISSION BY MINISTER OF HEALTH THAT SA HEALTH CARE SYSTEM IN A SHAMBLES
(Member's Statement)
Mrs S V KALYAN (DA): Madam Speaker, the admission by the Minister of Health that the health care system in South Africa is in a shambles is remarkably honest considering that it is an admission of abject failure by herself, the ANC and the New NP Deputy Minister.
The hon Tshabalala-Msimang has been in charge of the health care system for the past five years and her ANC predecessor was in charge for the five years before that. Together they have turned a functioning, and in places world-class, health care system into a shambles.
She must take responsibility for this mess, not throw up her hands and use it as an excuse to ignore a court ruling to roll out antiretrovirals to people living with HIV/Aids. The hon Minister must explain to us the extent of the shambles and set out her plans to put things right. We need to know the timeframes for getting health care back on track, and the names of those who will take responsibility for implementing this plan.
This public admission of her inability to manage the health care portfolio competently and the resultant shambles are costing South Africans their lives. South Africa deserves better. [Interjections.] [Applause.]
FEW SA COMPANIES RESPONDING CONSTRUCTIVELY TO HIV EPIDEMIC
(Member's Statement)
Dr R RABINOWITZ (IFP): Madam Speaker, HIV/Aids is having a devastating effect on the lives of millions of people and families in South Africa. It is also having a negative effect on our economy and on business. The IFP is therefore disturbed to learn, according to a recently conducted survey, that few companies in South Africa are responding constructively to the HIV epidemic.
The SA Business Coalition on HIV/Aids conducted a survey of 1 006 companies during October and November last year. According to the survey, only a quarter of those surveyed had implemented a formal HIV/Aids policy and even fewer had voluntary counselling and testing programmes. Also, 34% reported a negative impact on their profits owing to HIV/Aids.
Neither Government nor business can ignore this epidemic and hope that it will just disappear. If both do not play their part in dealing with it as a matter of urgency, it will have a crippling effect on the country and its economy. It is therefore of the utmost importance that companies across the various sectors of business implement the appropriate policies and measures to deal with this epidemic.
Government should use every election platform to confront and not evade HIV, and to inform the public as to exactly where it stands on the roll-out of antiretrovirals, which remains, as yet, a promise and not a reality. Thank you.
LAND RESTITUTION PROGRAMME REDRESSING LAND NEEDS
(Member's Statement)
Mrs S F BALOYI (ANC): Madam Speaker, since coming to power the ANC has made giant strides towards restoring the dignity of our people through the land restitution programme. This programme stands as a proud example of the ANC’s commitment to directing an immediate intervention in terms of redressing land needs, alleviating poverty and maintaining social stability.
In my constituency, Mataffin in Mpumalanga, 6 000 hectares of farmland has been bought at a price of R71 million. This farmland will accommodate 6 000 beneficiaries of the Mdluli clan, including other families. Sugar cane, avocados, pecan nuts and litchis are produced on part of the land. On 13 December last year the land was officially handed over to the clan by Deputy Minister Dirk du Toit.
This project would not have been possible without the ANC Government’s programme on land restitution. This programme is an example of how the ANC is improving the lives of our people on the ground, bringing to fruition the ideals of the Freedom Charter and fulfilling the ANC’s contract with the people for a better life for all. I thank you. [Applause.]
TELEVISED DEBATES BETWEEN ANC AND DA
(Member's Statement)
Mnr C B HERANDIEN (NNP): Mevrou die Speaker, die DA se standpunt dat kiesers slegs ‘n ingeligte keuse voor die verkiesing kan maak as die President en die agb Leon deelneem aan ‘n reeks debatte wat op TV uitgesaai word, is lagwekkend. [Tussenwerpsels.] Wat kan meer voorspelbaar wees as ‘n debat tussen die agb Leon en die President? Ons weet mos die agb Leon sal bloot kritiseer en nogmaals kritiseer. [Tussenwerpsels.] Die kiesers het nie nodig om die agb Leon op TV op en af te sien spring om die DA se beleid te verstaan nie, want elke keer as ‘n DA-lid sy of haar mond oopmaak, stel hulle die DA se raas-en-blaas-beleid bekend.
Die NNP wil ook graag weet of, indien so ‘n debat sou plaasvind, die DA van plan is om grootskermtelevisies aan al die areas te verskaf waar so baie van Suid-Afrika se kiesers woon wat nie televisies het nie. Of is dit ‘n aanduiding dat die DA die sake wat die agb Leon wil debatteer net op ‘n klein groepie elite kiesers van toepassing wil maak en nie op die meerderheid van die leiers van die kieserskorps nie?
Die NNP vind dit ook ironies dat die agb Leon se pasaangestelde pryssanger, die agb Gibson, die President van presidensiële arrogansie beskuldig; dit komende van ‘n party wie se leier opposisionele arrogansie vervolmaak het. Selfs die DA se verkiesingsplakkate basuin dit uit dat Suid-Afrika beter verdien as om na die agb arrogante leier van die DA in ‘n debat op televisie te kyk. [Tussenwerpsels.] Die NNP dink dit is nie net die President wat beter dinge het om te doen nie, maar selfs ook die kieserskorps. Ek dank u. [Applous.] [Tussenwerpsels.] (Translation of Afrikaans member’s statement follows.)
[Mr C B HERANDIEN (NNP): Madam Speaker, the DA’s view that voters can only make an informed choice before the elections if the President and the hon Leon participate in a series of debates on TV is ridiculous. [Interjections.] What could be more predictable than a debate between the hon Leon and the President? Surely we know that the hon Leon will merely criticise and criticise yet again. [Interjections.] The voters do not have to see the hon Leon jumping up and down on TV to understand the policy of the DA, because every time a DA member opens his or her mouth, they make known the “huff and puff” policy of the DA.
The NNP would also like to know, if such a debate were to take place, whether the DA intends providing big-screen television sets to the areas where so many of South Africa’s voters who do not have television sets live. Or is this an indication that the DA wants the issues that the hon Leon intends debating to be applicable only to a small group of elite voters and not to the majority of the leaders of the electorate?
The NNP also finds it ironic that the hon Leon’s newly appointed praise singer, the hon Gibson, accuses the President of presidential arrogance; this coming from a party whose leader has perfected oppositional arrogance. Even the DA’s election posters proclaim loudly that South Africa deserves better than to watch the hon arrogant leader of the DA in a debate on television. [Interjections.] The NNP thinks that it is not only the President who has better things to do, but also the electorate. I thank you. [Applause.] [Interjections.]]
The SPEAKER: The UCDP … [Interjections.] Order! [Interjections.] Electioneering in two weeks’ time, please!
VIOLENCE AGAINST WOMEN AND CHILDREN
(Member's Statement)
Mrs M A SEECO (UCDP): Madam Speaker, it is unfortunate that we are still losing our daughters, who are being murdered by their so-called husbands. Thato Setlogelo from Ratloung, Thaba Nchu was laid to rest on Saturday 14 February 2004. Once again, we hear the cry to unite and stand together against the killing of our women and children. Everyone has a right to live. The UCDP wants the law to take its course.
Letsogo la molao le letelele. [Justice will prevail.] [Applause.]
DEATH OF TEBOGO BENEDICT MADINGOANE
(Member's Statement)
Mr S L DITHEBE (ANC): Madam Speaker, the ANC is deeply saddened by the news of the death of Tebogo Benedict Madingoane this past weekend in Soweto. Through his multi-award-winning band, Mafikizolo, Tebogo played a key role in the advancement of youth development by encouraging youngsters to bravely face life’s challenges. His band, Mafikizolo, has visited Aids care centres and youth centres around the country in a bid to spread a message of hope and encouragement to the youth of our country.
We call on all our people to be patient on our roads so as to avoid the unnecessary loss of life through road rage. The ANC extends its sincere condolences to the Madingoane family, friends, the Mafikizolo band and all those he worked with in the music industry.
Robala ka kagiso “mpintshi”. [Rest in peace, friend.] [Applause.]
MATOLA RAID - COMMEMORATION
(Member's Statement)
Mr V D MABUYAKHULU (ANC): Madam Speaker, the ANC would like to thank the Government and people of Mozambique, together with the Freedom Park Trust, for making it possible for families of South Africans and Mozambicans who lost their lives in the South African struggle for liberation to commemorate the Matola Raid of 30 January 1981.
As we celebrate the first decade of freedom, it is appropriate that we also, as people, solemnly pay tribute to the heroines and heroes who paid with their lives for us to be free. It is also appropriate that at this moment in our history we extend our sincere gratitude to the Mozambicans for their comradeship and sacrifices including the loss of life of Comrade President Samora Machel. We should find relief in the fact that all these heroic human sacrifices were not in vain.
Today South Africa is a democratic state. We should continue to work together for peace on our continent and strength in the AU, and towards consigning to the dustbin regional aggression and cross-border raids. We should do all this in order to create, continually, the conditions necessary for us to progressively create work and push back the frontiers of poverty. [Applause.]
AMNESTY FOR PRISONERS
(Member's Statement)
Mr D H M GIBSON (DA): Madam Speaker, crime is one of our most serious problems. People expect that criminals will serve their sentences and pay for the crimes they have committed.
The criminal justice system is weak. Our prisons are full of awaiting-trial prisoners. The ANC does not have the political will to prioritise the fight against crime. It fails to speed up the justice system, it fails to build enough prisons and it fails to rehabilitate prisoners. Because the jails are bursting at the seams, now the ANC wants to release prisoners for the 10th anniversary.
Voters will think that the authorities have gone crazy. They do not want 50 000, or however many prisoners, being given amnesty. They know that between 85% and 94% of convicts commit repeat offences. Voters do not want to be hit by a crime wave and they reject any such amnesty.
The Correctional Services department now has an NNP Deputy Minister. Is it a coincidence that so soon after he was appointed prisoners are given amnesty? He must have used his influence to plead for amnesty, or does he have no influence at all? South Africa deserves better. [Applause.]
ATTACK ON IFP
(Member's Statement)
Dr U ROOPNARAIN (IFP): Madam Speaker, the IFP opposes the tactics of the Christian Action Network in disseminating the Biblical Issues Voter’s Guide
- The IFP opposes this election propaganda in the strongest of terms and treats it with the utter contempt that it deserves.
For the record, the IFP is a political party based on Christian principles. Our acknowledgement of God is evident in the fact that every meeting is opened and closed with a prayer. We believe that the Christian Action Network is totally ill-informed, it is deceptive and it is misleading the voters. Also, it is with shock and utter disgust that political parties use and manipulate God as an electioneering tool. The lies and deceit orchestrated by the Christian Action Network are tantamount to being a false witness against God and his teachings. We stand against such vilification of our party’s principles. Thank you. [Applause.]
SUCCESS OF POLICE SERVICE
(Member's Statement)
Ms L L MABE (ANC): Madam Speaker, we welcome the good news by the Government, which on Friday 13 February, 2004 reported on the successful transformation of the police apparatus. As in many other areas, this is a success story that has been made possible by the genuine commitment of our people, led by the ANC, to the people’s contract of a better life for all.
Despite the enormous challenges that continue to face our police service, Government disclosed during those briefings that, since 1994, murder cases had decreased by 30,7%; rape by 5,7% in 2002-03; hijacking by 20,2% and bank robberies by 15,4%. Our police machinery has been transformed from being an enemy of the people into a police service that prioritises respect for human rights and greater accountability to the community at large.
These achievements should serve as a inspiration to all of us as South Africans to work to overcome the remaining challenges and to celebrate our first decade of freedom with pride, rededicating ourselves to creating work and pushing back the frontiers of poverty. Viva ANC. [Applause.]
THE DEATH PENALTY
(Member's Statement)
Mr F BEUKMAN (NNP): Thank you, Madam Speaker.
Die moord op ‘n 82-jarige man en die verkragting van sy 75-jarige vrou, oortuig die NNP opnuut om weer te vra vir die herinstelling van die doodstraf. Elke dag dien hoofopskrifte van koerante as ‘n stille getuienis van die absolute brutaliteit en gebrek aan respek vir menselewens wat voorkom onder sommige in ons samelewing. Daarom is die NNP oortuig dat daar net een gepaste straf vir hierdie brutale moordenaars is, en dit is die doodstraf. Die Nuwe NP sê reguit: maksimum straf vir vroue- en kinderverkragters.
Ons glo dat die doodstraf sal dien as ‘n effektiewe afskrikmiddel teen gewelddadige moorde. Wanneer moordenaars meer as een lewenslange tronkstraf opgelê word, beteken dit in elk geval nie dat hulle lewenslank uit die samelewing verwyder word nie. Volgens wet moet hierdie vonnisse gelyktydig uitgedien word. Hulle kan dus heel waarskynlik oor 10 tot 15 jaar vrygelaat word op goeie gedrag. (Translation of Afrikaans paragraphs follows.)
[The murder of an 82-year-old man and the rape of his 75-year-old wife convince the NNP to ask once again for the reinstatement of the death penalty. Every day headlines of newspapers bear silent witness to the absolute brutality and lack of respect for human lives occurring amongst some people in our society. For this reason the NNP is convinced that there is only one appropriate penalty for these brutal murderers, and that is the death penalty. The NNP says frankly: Maximum punishment for rapists of women and children.
We believe that the death penalty will serve as an effective deterrent to violent murders. When murderers are sentenced to more than one life sentence, it does not, in fact, mean that they will be removed from society for life. According to the law the sentences must be served simultaneously. They could therefore quite probably be released in 10 to 15 years’ time on account of good behaviour.]
The NNP also calls on the Minister for Safety and Security to do research on the causes of violent crime in this country because it has become such a serious problem that one simply cannot ignore it any more.
The NNP also noted that the leader of the IFP yesterday called for a referendum on the death penalty. Maybe the hon Buthelezi should first call for a referendum among his party and its alliance partners, the DA, because they still do not have an official policy on the death penalty. [Interjections.]
Die NNP se benadering is: geen genade vir misdadigers nie. [Tussenwerpsels.] [The approach of the NNP is: No mercy for criminals. [Interjections.]]
The SPEAKER: Order. Order, hon members! There were two parties that did not take up their slots. Is the PAC in the House? No. Azapo? Not in the House. So, UCDP, you may do so now, if you have a statement you wish to make. No. The ANC.
BRINGING JUDICIAL SERVICES CLOSER TO THE PEOPLE
(Member's Statement)
Ms N MAHLAWE (ANC): Madam Speaker, in an attempt to bring judicial services closer to the people, the Minister for Justice and Constitutional Development has issued a notice to alter the area of jurisdiction for which a High Court has been established in terms of section 2(2) of the Interim Rationalisation of Jurisdiction of High Courts Act, Act 41 of 2001.
The Eastern Cape province has benefited the most from this process as many communities do not have to travel long distances to High Courts, as they used to have to do in the past. However, the process has been met with skepticism by communities in the areas of Umzimkulu and Maluti. This is because these areas have been incorporated into the High Court of KwaZulu- Natal, ie Pietermaritzburg.
Secondly, it is alleged that the staff in these KwaZulu-Natal offices claim that they have not been informed about the changes and the interim incorporation of Umzimkulu and Maluti. Therefore, an appeal is being made on behalf of these communities to the Minister for Justice and Constitutional Development to investigate these claims in order to ensure proper arrangements for the benefit of all. I thank you.
The SPEAKER: Thank you. The PAC and Azapo are still not in the House. That brings us back to the ANC. I’m sorry, but I’m bound by the order in the regulations.
PAC ALIGNED WITH DIKWANKWETLA PARTY IN THE FREE STATE
(Member's Statement)
Mr S PHOHLELA (ANC): Madam Speaker, the PAC has moved to align itself with the Dikwankwetla Party in my constituency, which is the Thabo Mofutsanyane District in the eastern Free State.
While the Dikwankwetla Party is a mere municipal party in the Thabo Mofutsanyane District, wielding a mere 0,1% of the vote in the last election in 1999, with the PAC wielding 1%, it is very ambitious for them to think that they will garner 20% in the coming election as the ANC wins in this area. Thank you.
The SPEAKER: Time for statements is now over. Ministers, are there any ministerial responses arising from your portfolios? Minister Asmal, I’m sure there will be a way in which you will make a statement. [Interjections.]
AMNESTY FOR PRISONERS AND CAPITAL PUNISHMENT
(Minister's Response)
The MINISTER FOR SAFETY AND SECURITY: Thank you, Madam Speaker. The IFP - which is in an the alliance with the DA - is pleading for the amnesty of certain people who are in prison. The DA, however, is saying no. This is but one of the many instances where you see the disjuncture between the members of this coalition. [Interjections.] Oh! I am coming to that my friend, thank you.
By the way, I have two questions to which I want to respond. Secondly, the Minister for corrections …
Mr T D LEE: Not corrections, Correctional Services.
The MINISTER FOR SAFETY AND SECURITY: … has come before this House. I know that you do speak English. I am not English-speaking. You can’t speak Xhosa, but I can speak English. [Applause.]
The Minister of Correctional Services appeared before this House and explained about many programmes that they have that relate to the rehabilitation of offenders. Not only that; we have also come to this House and indicated the various members from structures in our communities that deal with that subject. Many of them are funded by the Government, to assist them in doing this. Our rehabilitation programme is the best in the world.
The Minister, who is a member of the IFP, stands condemned now by a leader of a party that his party is in a coalition with. They don’t see the good work that he is doing in that department. Again, this is one of the areas that indicate that this coalition, actually, is a nonsensical coalition. But of course, we have it from the Minister of Home Affairs himself, who is the leader of the IFP, who said that this is a coalition that is not based on any principle. He was forced into this coalition. In other words, these are not people he would ordinarily have wanted to be associated with. [Applause.] Again, I can bet my last money that the Minister of Correctional Services is going to come here during the Budget debate speech and indicate the other things that have been done for purposes of rehabilitation.
It will always be like that, not only in South Africa, but even in other countries in the modern democratic world, where now and again people will be released from prison on the basis of pardons, amnesties and so on. In South Africa, because we are a democratic country, that was brought about through the very, very intense struggles, during which lives were lost at times, by people who are law-abiding and peace-loving citizens of our country. We will continue to be like that.
The second question relates to capital punishment. You are correct, hon member, to say that the DA has no policy on this matter. But at least there is one person who is clear on this matter. It is the hon Douglas Gibson. When you read books on capital punishment, you will see that those who push for this type of punishment are described as conservative. That is true. In other words, we have somebody who argues that he is liberal, but his attitude, even towards life, is as conservative as his position is. [Applause.] Now if the DA actually say that they have a policy on this matter, why are they not talking about it? The last time something was said about it, was when the hon Gibson said, “I support”, which is what the case is. Thank you. [Time expired.] [Applause.]
CONSIDERATION OF REPORT OF AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
There was no debate.
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move that the report be noted.
Motion agreed to.
Report accordingly noted.
POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL
LEGISLATURES BILL
(Second Reading debate)
Mr P A C HENDRICKSE: Madam Speaker, this year we celebrate 10 years of freedom and along with that the 10th anniversary of the very first democratic Parliament of South Africa. How appropriate it is that today we meet to discuss a Bill that forms and gives expression to the very democratic nature of this Parliament - the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill. At the very outset allow me to dedicate this debate to a remarkable freedom fighter, a comrade, colleague and former chairperson of this committee, Comrade Peter Mokaba. It was a privilege to serve with him.
There was a time in our terrible past when Parliament was sovereign and as such it was used, or rather abused, to visit all types of inequities on our people. Can we forget how the Senate was immorally enlarged to remove coloured people from the voters’ roll and how, year after year, parliament was used to keep Robert Sobukwe on Robben Island? This is besides all the thousands of immoral laws passed in that parliament.
Today we have a Constitution as the supreme law of the land under which and in terms of which our Parliament too must operate, thus the need for this Bill. We need to read the Bill in conjunction with the committee report published in the ATC on 26 November last year. I shall be referring to both the Bill and the report as the report highlights matters that must be further addressed by the Rules Committee and the Constitutional Review Committee. May I say that both the report and the Bill were unanimously accepted in the committee.
Chapter 1, of course, deals with the normal definitions. In Chapter 2 we see that provision is made for the description of what constitutes the precincts of Parliament; that the Speaker and the Chairperson of the NCOP exercise joint control over Parliament - how this is done must be dealt with in accordance with the Rules; that members of the security services may enter upon or remain in the precincts of Parliament to perform policing functions only with the permission and under the authority of the Speaker or the Chairperson - members might recall the problem we had last week when the security services acted without the permission of the presiding officers, resulting in delays in the functioning of Parliament; the execution of process or warrants of arrest may also only be done with the permission of the Speaker.
Chapter 3 deals with the privileges, immunities, independence and protection of members and Parliament. The Constitution provides for freedom of speech in Parliament and provincial legislatures subject to the Rules and Orders. The Bill, therefore, does not deal with the form and manner in which this freedom is exercised, but the committee recommends that the Rules provide for this. As the Constitution does not specifically provide for freedom of speech in joint sittings of the Houses of Parliament, this is provided for in clause 6. It is, however, recommended that this lacuna be referred to the Constitutional Review Committee.
A further lacuna is that the Constitution does not provide for a Deputy Minister having freedom of speech in a joint committee. Another matter that needs attention is that an official in the national or provincial executive has freedom of speech in the NCOP and its committees, but not in the National Assembly. We believe that there should be consistency in the freedom of speech provisions for the Houses.
Clause 7 deals with prohibited acts in respect of Parliament and members. Acts that are prohibited include the following: A person may not impede the function of Parliament; a person may not assault or threaten members because of his or her conduct in the House and a person may not cause a disturbance while a House or a committee is sitting or fail to comply with an instruction by a duly authorised official.
Clause 8 deals with the improper influence of members. A person may not by fraud, intimidation, force, insult or threat of any kind, or by the offer or promise of any inducement or benefit influence a member in the performance of his or her duty; or influence a member to be absent; or attempt to compel a member to be for or against something pending before the House or the committee. A member may not ask for, receive or accept any fee, compensation, gift, reward, favour or benefit for voting in a particular manner or for not voting, or for promoting or opposing anything pending before a House or a committee or for making representations to such House or committee.
In clause 9 we look at the attendance by members before court, and this provides that a member cannot be compelled to attend a court on a civil matter or as a witness in a criminal matter when the Speaker or Chairperson has issued a certificate stating that the member is required to attend to business at Parliament.
In chapter 4 - and I think this is of particular importance to members - we deal with disciplinary action against a member. This chapter provides that a House has all the powers that are necessary for enquiring into and pronouncing upon any act or matter declared by or under section 13 to be contempt of Parliament by a member and taking the necessary disciplinary action provided therefore. A committee must be established to deal with all enquiries referred to it. Such enquiries need to be conducted in accordance with a procedure that is fair and reasonable. The ad hoc committee recommends that the Rules need to provide for these procedures and that they should be in place when the legislation takes effect. It is the House, and not that committee, that finds a member guilty of contempt.
Provision is made for sanctions, amongst others, that range from a formal warning; an apology to the House; the withholding, for a specified period, of certain facilities provided to members; the removal, or suspension for a specified period, of the member from any parliamentary position occupied by that member; a fine not exceeding the equivalent of one month’s salary and allowances; or the suspension of the member with or without remuneration for a period not exceeding 30 days. The Bill thus further provides that a member may not be suspended unless the House has found that a member is guilty of a serious or repeated contempt and that none of the other penalties will be sufficient. The committee also recommends that, as far as possible unparliamentary behaviour is concerned, it be codified in the Rules.
Chapter 5 deals with witnesses. This sets out how witnesses are subpoenaed to appear before a House or a committee. It provides, amongst others, that a person can only be subpoenaed by the Secretary to Parliament on the instructions of the Speaker or the Chairperson or the chair of a committee with the concurrence of the Speaker or Chairperson. It also makes provision for the administering of an oath or an affirmation. A very important aspect is covered in clause 16, dealing with the privileges of witnesses. A witness being examined under oath or affirmation may be required to answer any question or to produce any document despite the fact that doing so would incriminate him or her or would tend to expose him or her to criminal or civil proceedings or damages. Provision is made that evidence given under oath or affirmation by a person may not be used against that person in any court or place outside Parliament, except where the person stands trial on charges of perjury.
Clause 15 provides for certain limitations regarding the type of subject matter about which a witness may be questioned, or the type of document that a witness may be requested to produce. These limitations should be set out in the Rules, and could include the following: classified documents, sensitive information of a commercial or economic nature, the private affairs of individuals or institutions that are supplied in confidence or matters which are or may become the subject of sensitive negotiations with governments or other bodies. These need to be determined by the Joint Rules Committee and contained in the Rules of Parliament.
Clause 17 makes it an offence for a person subpoenaed not to appear or to fail to remain in attendance. It is also an offence to refuse to be sworn in or, without sufficient cause, fail to answer fully and satisfactorily all questions lawfully put. It is also an offence for a person to threaten or obstruct a person in respect of evidence to be given, or to assault or penalise a person on account of the evidence they give or intend giving.
Chapter 6 deals with publications and broadcasting, and it includes protection in respect of publication, unauthorised publishing, admissibility of journals as evidence, and the broadcasting of proceedings. The committee here, once again, requests that the Rules make provision for the broadcasting or the televising of proceedings of Parliament.
Under ``General’’, there is a particularly interesting clause, something which I think exists in one other country only, and that is a protection for members of the public. An entirely new and innovative provision is that of providing members of the public that are aggrieved by a statement or remark made by a member or a witness in or before the House or committee about that person with an opportunity to have a response recorded. The relevant committee would consider such request and, if approved, the response would be published in the appropriate parliamentary paper. The Act also provides for fines and imprisonment, or both, for the various offences determined in the Bill. Imprisonment could be for periods of up to three years in some instances and, in the case of bribery, up to 15 years.
Chapter 8 has provisions which make this applicable to provincial legislatures and their members when they so desire. If I may elaborate further with regard to the Rules, in the report, the committee also asks that reflections on the judiciary be dealt with in the Rules; and that the Joint Rules Committee consider whether reflections on members of another House or legislature, as well as the deliberate misleading of the House, should be declared contempt. Loss of membership and other sanctions for nonattendance of a House or committee should also be dealt with in the Rules.
Members’ conflict of financial interest should not be in this Bill, but should be dealt with in the code of conduct. Also, the procedure for initiating disciplinary action needs to be contained in the Rules. It is important that the report of the committee be read with this Bill, as it contains a number of recommendations relating to the implementation of this Bill. It is a sincere pleasure to recommend the Bill to the House. [Applause.]
Mr C W EGLIN: Madam Speaker, the process of bringing this Bill before Parliament has been a long and protracted one. Drafts, 13 in number, have been before parliamentary committees ever since 1997. I would like to congratulate hon Peter Hendrickse, the current chairperson of the committee, on his tenacity and persistence in getting the Bill before the House today.
Questions could be asked: How has our new Parliament managed to function for the past eight years without a powers, privileges and immunities Act? Secondly, how has our new Parliament been able to live with the dinosaurian Powers and Privileges of Parliament Act of 1963, which is still on our Statute Book, and was drawn up in the heyday of Verwoerdian apartheid, when supreme power was vested in Parliament and not in the Constitution? The answer to these questions lies in the fact that, in the apartheid days, all powers and privileges of Parliament were given to Parliament by itself in the form of the Powers and Privileges of Parliament Acts.
However, in the new South Africa, the powers, privileges and immunities of Parliament derive their authority from our new Constitution. That is the fundamental difference. But I want to ask: Where is the full range of powers, privileges and immunities of Parliament to be found? Let me say it is not in this Bill.
This Bill before us is really an extension or supplementation of the powers and privileges. They are to be found in three places. The core powers, privileges and immunities of Parliament are to be found in the Constitution, and they have been there ever since 1996. The key ones are in section 56:
The National Assembly or any of its committees may - (a) summon any person to appear before it to give evidence … (b) require any person or institution to report to it;
This is a very important power.
Secondly, in section 57 is stated:
(1) The National Assembly may -
(a) determine and control its own internal arrangements, proceedings
and procedures.
Thirdly, on privilege and immunity:
(1) Cabinet members … and members of the National Assembly -
(a) have freedom of speech in the Assembly and in its committees,
subject to its rules and orders; and
(b) are not liable to civil or criminal proceedings, arrest,
imprisonment or damages for -
(i) anything that they have said in, produced before or
submitted to the Assembly ... ; or
(ii) anything revealed as a result of anything that they
have said in or produced before ... the Assembly or any
of its committees.
So, the core powers, privileges and immunities are found in the Constitution.
But, secondly, supplementary powers, privileges and immunities are located in the Rules and Orders. I mentioned some of these. In the ad hoc committee’s report before you, as Mr Hendrickse has mentioned, they draw attention to the fact that the Rules and Orders committee of our next Parliament will have to sit down and flesh out the Rules and Orders to see that, in fact, they give full effect to the powers, privileges and immunities of Parliament. However, the key ones amongst them are these: The National Assembly may make Rules and Orders concerning its business, with due regard for representative and participatory democracy and accountability, transparency and public involvement. The Rules and Orders, not national legislation or the Constitution, determine how we manage our business.
Rules and Orders have to make provision for the conditions under which
freedom of speech is exercised. Is freedom of speech subjected to the Rules
and Orders? When it comes to the issue of contempt of Parliament, what are
the important definitions of contempt of Parliament''? Is contempt of
Parliament’’ as it is defined in the Rules and Orders? So, the Rules and
Orders are the second very important component of the total powers,
privileges and immunities of Parliament.
The other area where these are to be found is the national legislation. This Bill is part of the national legislation which gives Parliament its powers, privileges and immunities. So, the National Assembly committees may compel, in terms of national legislation or Rules and Orders, any person or institution to comply with a summons to come and bear witness and give evidence.
The committee’s recommendation before you is that this matter should be dealt with by legislation, and not by Rules and Orders, because it deals with the public; it doesn’t deal with arrangements internally as far as members are concerned. So, there is provision in this Bill for this particular provision.
Further, the Constitution says: ``Parliament can, by legislation, have further privileges and immunities by national legislation.’’ So, this Bill also extends the powers and privileges of Parliament in a very important way.
Now, having said that, let me identify some of the ways in which this legislation does extend and deal with the powers and privileges, as the previous hon speaker mentioned, on the question of witnesses; that is, how they should be handled, what their rights and privileges are, and what the rights and privileges of Parliament are, which are dealt with under Chapter 5 of this Bill.
Chapter 3 deals with powers, privileges and immunities of the independence and the protection of MPs. This relates to the Constitution’s section 58(1), and it deals with freedom of speech in Joint Sittings, acts from which MPs are prohibited, attendance before the court, and with persons creating a disturbance. Finally, this Bill deals with disciplinary action against MPs for contempt of Parliament.
It is important to note that because Parliament has no judicial authority, it cannot sit as a court of law to convict persons of criminal offences; whether those persons be members of the public or MPs. This judicial function, in terms of our Constitution, has to be carried out by the courts. On the other hand, Parliament has the right to discipline its members to the extent that this may be necessary to ensure that the functions of Parliament are not disrupted and that the business of Parliament is carried out in an orderly fashion. That’s why it can take action against members as far as contempt of Parliament is concerned.
The hon member dealt with this, but I want to say one thing on it - we must make it quite clear that although a procedure is laid down, and penalties are identified, and the House could find a member guilty of contempt and it could refer that matter, if necessary, to the National Director of Public Prosecutions, it goes without saying that any action taken by this House in respect of a member’s conduct must be carried out in compliance with the Constitution; and in particular, with section 33 of the Constitution, which warns that there should be just administrative action and that there should be no kangaroo court action.
This Act deals with all the necessary and similar legislation to give effect to the powers which the Constitution has given to Parliament, to give effect to additional authorities and also to give effect to certain incidental matters, like the protection of the precincts of Parliament. The DA believes that this Bill is not only long overdue, but is very necessary, and that the provisions are appropriate, and, therefore, we have no hesitation in supporting the Bill. [Applause.]
Mrs S A SEATON: Madam Speaker, the birth of democracy in 1994 and the new legal framework created by the 1996 Constitution meant that many of the laws on our Statute Book became obsolete, inappropriate and in some cases unconstitutional. This Parliament and its predecessor have done a tremendous amount of work to weed out these laws, and to consign the most glaring examples of inequity and discrimination to the dustbin of history.
The Powers and Privileges of Parliament Act of 1963 is but one example of inappropriate and outdated legislation that still remains on our Statute Book. Today it is also to be consigned to the dustbin as we debate and approve the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill - a piece of legislation that retains the finest traditions of parliamentary practice, but which is also modern, up-to-date and in line with our constitutional dispensation.
It took six years and 14 drafts of the Bill before we could have this debate today. Some would say that that is way too long, but, on the other hand, no one can accuse Parliament of not being thorough when it deals with legislation affecting itself and its members.
The ad hoc committee established for the purpose of drafting this Bill must be congratulated for its endeavours and so must its chairperson and members, and last, but by no means least, the former chief legal adviser to Parliament, Adv Anton Meyer, who played a pivotal role over many years in drafting the Bill that the IFP can support.
The IFP will support the Bill because it retains and entrenches the finest traditions of parliamentary practice viz the ability of the legislature to control its own proceedings, freedom of speech for its democratically elected members and their immunity from prosecution for anything said while executing their constitutional duties.
These aspects are fundamental for the independence of the national legislature, the separation of powers guaranteed by our Constitution, and the successful day-to-day operation of the people’s Parliament.
However, it is said that every silver cloud has a dark lining and the Bill, unfortunately, is no exception. The IFP, therefore, has to take issue with a number of provisions contained in the Bill.
Firstly, the Bill refers to improper interference with the performance of Parliament and its members. But, what constitutes improper interference? The term is not defined and is therefore open to subjective interpretation by those charged with its implementation. Does this mean that peaceful protest - a cornerstone of democracy - will be taboo in Parliament in future? Does it mean that a candlelight vigil for the victims of Aids over a lunch hour will be construed as improper interference because the subject is not palatable to those in positions of power?
The undefined “improper” appears again in clause 8, which is intended to stop corrupt activities by parliamentarians and members of the public. Again, the subjectivity of the interpretation of “improper” is problematic and could potentially give legitimate lobbyists grey hairs in trying to decide if their approaches are improper or not.
Somebody should also alert the Minister for Safety and Security and the SA Police Service to clause 4 of the Bill which states that they derive their policing powers within the precincts of Parliament, under normal circumstances, from the permission and authority of the Speaker and the Chairperson, not the other way round as was witnessed by the recent security fiasco when an SAPS officer caused havoc with overzealous access control.
The Bill creates a standing committee to investigate contempt and to take disciplinary action in cases of contempt, as we’ve heard. The creation of such a committee is welcomed but the composition of the committee is bound to create controversy of its own. If the normal parliamentary practice of proportional representation is followed, it will mean that the majority party will be able to load the committee with its members. This creates a real potential for political skulduggery and a whitewash when members of the majority party are hauled before the committee. Of course, it also creates the potential for members of the majority party to victimise a member of a smaller party appearing on charges of contempt.
In the interests of balanced democracy, the IFP insists that, in the case of this standing committee, proportional representation be set aside and that the committee should consist of only one member from each of the parties represented in Parliament. A chairperson must be selected from within the committee and not be predetermined to be a member of the ruling party.
Clause 25 of the Bill is truly revolutionary in that it affords a member of the public who feels aggrieved at a statement made under privilege the opportunity to have a response recorded. This provision is highly laudable on paper, but when one notes that it is the same standing committee created by clause 12 that will adjudicate on the publication of the response or not, the alarm bells must be ringing loudly.
Can any reasonable person really foresee a majority-party-dominated committee giving a critical response to a remark by the President on HIV/Aids or Zimbabwe the time of day? I certainly cannot and it is therefore crucial to true freedom of speech that the majority party must not dominate the said standing committee.
The Bill leaves many future discussions up to the Constitutional Review Committee and, ultimately, many detailed implementation decisions up to the Rules Committee of the National Assembly. Perhaps that was unavoidable, but the reality of the situation is that the new Parliament and its newly constituted committees will have to cover much of the same ground as has been covered over the past six years before this Bill will be fairly and fully implemented. Hopefully, it will not take another six years and umpteen drafts before a new Bill replaces the old. I thank you.
Ms E NGALEKA: Madam Speaker, comrades, friends and colleagues. Historically the ANC has prided itself on being a party of the people, uniting blacks across the boundaries of ethnicity, class and ideology. Since 1994 the ANC Government has even become more broad-based, representing all people of South Africa, white and black, men and women of all cultures and diverse backgrounds. Parliament has truly become the voice of the people.
The political landscape in South Africa between the first decade of the 20th century and the beginning of the 1990s has been described as one dominated by two streams: The history of a parliament without a legitimate democratic base that passed increasingly repressive apartheid laws, and the other a nonracial, inclusive movement that called for and later fought for political rights and freedoms for all.
Phambi konyaka ka-1994, iPalamente yayingalawulwa sisininzi, kwaye yayingena bameli. Ngoko ke, iKhabhinethi yayiyiyo eyayilawula iPalamente. Amalungu ePalamente ayengena kwenza ngakumbi ngaphandle kokwaleka umsundulo kwiziphakamiso zorhulumente wocalucalulo.
Abahlali namhlanje, kufanele bathabathe inxaxheba kwimicimbi yeeofisi zabameli babo nakuburhulumente, ukuze bafumane ingxelo eyiyo. Le Palamente imalunga nokuphuhlisa kwanokufezekisa amalungelo abantu. (Translation of Xhosa paragraphs follows.)
[Prior to 1994, Parliament was both undemocratic and unrepresentative. As the executive dominated parliament, parliamentarians could do little other than to rubber stamp the apartheid government’s initiatives.
Today Parliament is an equal partner with its own constitutionally enshrined powers. The Constitution vests Parliament with the legislative authority of the national sphere of government. As such, when exercising its legislative authority Parliament is bound only by the Constitution.]
Section 1 of the Constitution sets out principles by which governments in South Africa must be informed. Thus, a sovereign, democratic South Africa is founded on the following values: human dignity, equality and advancement of human rights and freedoms, nonracialism and nonsexism, constitutional supremacy and the rule of law, universal suffrage, a national, common voters’ roll, regular elections and a multiparty system of democratic government, so as to ensure accountability, responsiveness and openness.
These principles require Parliament to strive towards promoting constitutionalism and human rights, as embodied in inclusiveness, being accessible, open, responsive and participatory, effectiveness and efficiency, transparency, representivity and a multiparty parliamentary system. The Constitution committed South Africa to a democratic Government by committing it to constitutionalism and the protection and promotion of human rights. Furthermore, the Bill of Rights not only entrenches civil and political rights, but requires a progressive realisation of socioeconomic rights such as the right to housing, health services and social security.
Section 7 of the Bill of Rights states that the state must respect, protect, promote and fulfil the rights in the Bill. Thus, state institutions such as parliaments must oversee the development and implementation of policy. They must be proactive in developing a human rights culture and must be central agents in the realisation of rights and the transformation of the country.
The challenge to transform society suggests the need to transform this institution, Parliament. Yes, indeed, we can proudly say that major strides have been made in changing Parliament in order for it to become a tool to ensure transformation. To this end, a legislative framework in South Africa has since 1994 created an enabling environment for this strategic direction of the country.
Unjust legislation of the past has been revisited and amended while taking into consideration equity issues. The ANC-led Parliament has passed legislation such as the Employment Equity Act of 2000 and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
In most countries politics remains the domain of men. This is evident in the numbers of male representatives as elected members of Parliament. Statistics indicate that women constitute a mere 14% of parliamentarians at world and regional levels. However, there is a gradual increase of women parliamentarians in most countries.
South Africa is one of the countries that has made the greatest strides in the Southern African region towards attaining the 30% benchmark for women parliamentarians by 2005 as set by the Commonwealth heads of governments. We in South Africa have already exceeded that. Chapter 9, or section 181, of the Constitution establishes various institutions to aid and complement the work of Parliament in overseeing the work of the executive. These institutions are called state institutions supporting constitutional democracy. They are independent and impartial, able to exercise their powers and perform their functions without fear or prejudice and are subject only to the Constitution and the law.
Some of the institutions created by the Constitution include the Commission on Gender Equality, the Human Rights Commission and the South African Law Commission. The Commission on Gender Equality in particular has important consequences for the protection of women’s constitutional rights. It can make recommendations to Parliament or any provincial legislature on the promotion of women’s interests and can investigate violations of women’s rights.
The main objective of the Bill is to define and declare certain powers and immunities of Parliament, provincial legislatures, members of the National Assembly, delegates to the NCOP and members of provincial legislatures.
Parliamentary privileges are not a licence for members of Parliament to behave in ways that are unacceptable to society at large. Some form of codification of these rights is therefore needed to, firstly, clarify the immunities, powers and privileges of members both internally and to society at large. Secondly, it is needed to create some mechanisms of keeping members accountable for the effective execution of their functions.
Specific protection provided for in Chapter 7 includes liability for acts committed under the authority of Parliament. No person is liable in terms of damages or otherwise for any act committed in good faith.
Secondly, with regard to the duty of criminal courts in respect to members, the courts have a duty to inform Parliament when a member has been sentenced to a period of 12 months or more without the option of a fine. Public access to Parliament has been greatly improved, though we still face practical challenges that prevent people from getting to Parliament. For the first time in the history of this country, the public has mechanisms through which they can interact with Parliament, nationally and provincially.
Portfolio and standing committees have assumed new ways of functioning. The sittings are open to the public, who can meaningfully input into the processes of formulating policies and making law.
The ANC has the best record of servicing constituency offices across the country.
Yes, indeed, the tide has turned. [Applause.]
Mr D M BAKKER: Thank you, Madam Speaker. I have been involved with committees dealing with this Bill, first the Joint Subcommittee on Powers and Privileges and thereafter the Ad Hoc Committee on Powers and Privileges of Parliament, since 1998, and therefore it is indeed a privilege to participate in this debate today and to support this Bill.
It has been a very long and sometimes very frustrating process, but, I must admit, also a very thorough process which will always serve as a good example on how Parliament - and not a state department - can prepare legislation. We cannot debate and accept this legislation without properly thanking several role-players who, over the years, provided us with very valuable inputs with regard to this legislation.
When acknowledging role-players’ contributions, one always runs the risk of excluding certain people, but we must think of valuable contributions made by professors Murray and Soltau, Mr Fink Haysom, the Human Rights Commission, our own law advisers - and in this regard specifically Mr Palmer - and the Research Department of Information Services.
Al die lede van die ad hoc komitee sal egter sekerlik met my saamstem dat ons baie groot dank verskuldig is aan adv Anton Meyer vir die uiters waardevolle werk wat hy ten opsigte van hierdie wetgewing gedoen het. Telkemale moes hy maar weer teruggaan en groot dele van die wetsontwerp herformuleer. Hy het deurgaans verseker dat ons as komitee op die regte spoor bly en spesifiek toegesien dat hierdie wetgewing in ooreenstemming met die Grondwet is.
In dié verband is dit belangrik om daarop te let dat hierdie wetgewing nie ‘n herhaling of inperking van die voorregte oor vryheid van spraak, vervat in artikel 58 van die Grondwet, behels nie. Dit brei egter die voorregte uit sodat dit ook van toepassing sal wees in ‘n gesamentlike sitting van die Nasionale Vergadering en die Nasionale Raad van Provinsies.
Hierdie spesifieke voorbeeld dien as ‘n goeie bewys van die belangrike rol wat adv Meyer in die komitee vervul het, en daarom kan ons nie anders as om ons opregte dank teenoor hom uit te spreek nie. (Translation of Afrikaans paragraphs follows.)
[All the members of the ad hoc committee will, however, certainly agree with me that we owe a great debt of gratitude to Adv Anton Meyer for the very valuable work he did in regard to this legislation. Time and again he had to go back and reformulate large parts of the legislation. He ensured throughout that we as a committee stayed on the right track and saw to it that this legislation was in accordance with the Constitution.
In this regard it is important to take into consideration that this legislation does not involve a repetition or restriction of the privileges of freedom of speech, contained in section 58 of the Constitution. However, it expands the privileges also to be applicable in a joint sitting of the National Assembly and the National Council of Provinces.
This specific example serves as proof of the important role played by Adv Meyer in the committee, and therefore we cannot but express our sincere gratitude to him.]
In analysing this Bill the question should be asked whether this Bill adheres to certain very clear and established principles. Firstly, it adheres to the doctrine of separation of powers, in that power is not concentrated in one place and Parliament has the power to regulate its own affairs without outside interference.
Secondly, democracy requires open and critical debate of matters of public interest. In claiming privileges, Parliament has to respect the Constitution, and this Bill further ensures that open debate can occur freely.
Thirdly, this Bill clearly sets out what acts would constitute contempt of Parliament. Broadly stated, it is contempt of Parliament to act in a way that imputes the functioning of Parliament. Contempt, specified in this Bill, includes bribing or attempting to bribe a member of this House; failing to appear before a committee of the House on request; obstructing, assaulting or threatening a member and disobeying the Rules and Orders of Parliament. Die verslag van die ad hoc komitee wat deur hierdie Huis aanvaar moet word vandag, dui egter ‘n groot aantal aangeleenthede aan wat nie in hierdie wetsontwerp hanteer word nie en waaraan dringend aandag geskenk sal moet word.
Hierdie wetsontwerp is nie die gepaste plek vir genoemde aangeleenthede nie, maar die Reëlskomitee en die Grondwetlike Hersieningskomitee sal dringend na die verslag moet kyk, want na 10 jaar van parlementêre demokrasie is hierdie aangeleenthede uiters belangrik vir die behoorlike funksionering van ons Parlement. (Translation of Afrikaans paragraphs follows.)
[The report of the ad hoc committee that this House must adopt today, points to a large number of matters which are not dealt with in this Bill and which should be addressed as a matter of urgency.
This Bill is not the appropriate place for these aforementioned matters, but the Rules Committee and the Constitutional Review Committee will have to look at the report urgently, because after 10 years of parliamentary democracy these matters are of the utmost importance for the proper functioning of our Parliament.]
I am of the view that this Bill represents a huge improvement on the present Powers and Privileges of Parliament Act of 1963 and is in line with the provisions of our democratic Constitution.
I have no reservations in supporting this Bill, but I need to point out to members that there is no provision in this Bill for the power of members of Parliament to strike and, therefore, members must remember that being a member of Parliament still remains an “essential service” in terms of labour legislation, and hon members cannot strike. I thank you.
Mr M S BOOI: Madam Speaker, members of Parliament, my colleagues, as has already been said, this is one piece of legislation that is very important in deepening our democracy continuously to offer a better life to our people.
The fact that we have been able to use the Constitution as the basis to entrench and empower ourselves, to improve our privileges and to improve on immunity means that the supremacy of the Constitution remains. And we, as the ANC, are quite committed to sustaining that.
But, there are things that have been said and there are things that we need to be able to learn from and that we need to be able to see. How do we continue to strengthen ourselves? That is why from the side of ANC it is being said that this Bill is about things that are fundamental, that run across democracies and that have always been.
What happened in 1963 has happened before in the 1800s. The questions of freedom of speech of members in the legislature and the power of the legislature to determine and control its own proceedings are some of the issues that cause me to say that this is a re-entrenchment of democracy. The ANC has not moved away from what it has committed itself to do, and what it has always been saying to the people, namely that, as the ANC, we are a democratic movement; as the ANC we are here to continue leading our people towards entrenching our democracy.
One of the things that we continue to build into our legislation is something that we would want to continue in our lives today, for within the Constitution there is the Bill of Rights and these are the things that, whenever you pause and think about freedom of speech, you have to continue reflecting on so that you do not go wrong in the way you do your things.
Because, as the ANC, we continue to carry that responsibility. We, the ones sitting here, are the ones who have really written the Constitution. We have used our majority to be able to achieve the goals and to lay down the foundations so that we would be able to build up a new South Africa, in which we would be able to give fundamental rights to our own people.
So, we will never be able to shy away from continuing to use our majority to build the present, because the ANC is not a new movement. It was born and bred in 1912. A number of us have been taken from its history and what we present here to you today and what we have been able to get written up in the Constitution, even in the Bill of Rights, talks of us as a movement that has a proud history; as a movement that has been able to live up to the needs of our people, and not just our own people.
We believe that we have been able to live within the world in an era of globalisation. We have taken the issues of globalisation upon our shoulders and have been able to present ourselves as a movement that is progressive, and that is able to live within the times that we are confronted with.
We continually say that we will always reflect on what happened during the apartheid era. There are issues that we have not been able to make use of, but we are very glad that we have never followed the trend of the apartheid regime. With regard to the issue of using detention cells - which were used during the apartheid times whenever there was a disagreement among members
- we have not followed that route.
But, Madam Speaker, even in the way in which you have been able to assist us in creating and making sure that there is a balance between minority and majority parties, you have played a very significant role in assisting in the running of Parliament. You have always made sure that we do not suppress or kill the voice of the minorities. That is why, with regard to the balance you have created in Parliament, we say, as the ANC, that you have not deviated from the responsibilities we have given ourselves, namely that we will always carry every South African along with us. Wherever, or to whichever party you belong, we have made it our responsibility that we will carry you along. That responsibility, Madam Speaker, as the Presiding Officer, has been lying with you. You have been able to carry it on behalf of the ANC.
One of the other things that have happened in this House, which is a very good trend is that we have been able to go to the Public Participation Unit in Parliament, just to see how the participation of our people has been. Because in the era before we came to Parliament people were not coming to Parliament. But since we came to Parliament, it is quite clear that there has been quite a lot of participation by our people.
In February alone they issued 1 239 tickets to people who visited Parliament. In March 1 009 tickets were issued to people who came to Parliament. In June about 3 255 were issued. Now, those things speak very loudly and quite clearly about how our people feel about the work that we are doing within the institution. At this time the figure stands at 14 447 people who have visited our Parliament. Those figures speak very loudly and clearly about our performance, and the vision and the views that we are expressing in this House.
We are proud of that type of response that we get from the public, although we do say, as the ANC, that we need to manage heckling amongst ourselves. We need to talk to each other, because it is not just about the ANC heckling the DA or the DA heckling the ANC. It is something that the broad public is not impressed about. It is something that we need to be able to manage amongst ourselves and be able to do something about, because it is not selling us properly to the broad public outside. They are not impressed with what we do.
One of the other things that we want to continue talking about - and it is quite good that it has happened within this institution - is our relationship with the African continent. We have been given the responsibility to go and assist in building the Pan-African Parliament. We are quite serious within this movement; we are quite serious within this Parliament.
It then shows how the ANC takes seriously the fact that our relationship with the African continent had to be entrenched. We have shifted from using arms and guns to build our international relations. We have taken a totally different approach to be able to engage with the African continent. And the fact that we gave you that responsibility, Madam Speaker, means that we take the continent very seriously. It means that we want to make sure that people on the African continent understand our relationship, as a Parliament, with them.
So, whatever the issues are in relation to that - even the multilateral structures that we are creating and the bilateral commissions that we are creating with the African continent - they all lead fundamentally to the relationship we would want to continuously build with the people on the continent.
The increase in women’s participation in the chairing of our committees and speaking in the Chamber, and the way we interact with the NGOs or civil society all make it clear to us that there is a good response from the broader public outside. There is acceptance of the way we are doing our job here. There is an acceptance of how we are performing within Parliament.
A lot is being said about the ANC. That is why we say, when speaking about the people’s contract, that it is not simply an event that we are planning with a view to the elections. It is something that we have been building on and that has been coming for years. How do we continuously keep up our relationship with our people? How do we continue showing to our people that this is about them, and not just about the leaders they have appointed or annointed to come and lead them? It is a responsibility that they have given us.
People know that the ANC has been fighting for them since 1912. It continuously reiterates that our contract with the people is one of the most important things which will always ensure that we continuously better the lives of our people. We have been able to do so under your leadership, Madam Speaker. We have been able to show how important it is to us, as the ANC, that we continue relating to that particular relationship, and that we do not shy away from it.
I still want to come back to the hon Seaton and tell her that I think that the President has quite clearly said this before to the IFP. It is not going to be decided within the parliamentary precinct how a particular party becomes a majority party, and how you balance the act and treat the minority parties. We do have a political responsibility that we take upon ourselves of engaging all South Africans to participate within committees and to share the vision with us.
We know that within the different committees we do not become mere partisans. We sit down and exchange views because we as the ANC, as members of Parliament and legislators, know that it is in our interests to be able to convince members in different parties to understand the vision of the ANC and the commitment with which we have been able to stabilise South Africa.
It is in that commitment and it is in that responsibility that we say that we will continue to go and win the elections. We will become the majority party, but we will engage you and give you as the minority parties the necessary space. It has been proven over this past 10 years that we have given the minority parties opportunities, regardless of how small they are. Even when it comes to interpellations, even today, we were showing that commitment by asking and pointing out that there are parties that have even been able to declare their votes. That means that the ANC carried that commitment and we understand our responsibility.
But it is going to be very difficult to tell the public outside: Do not vote for the ANC so that we do not became the majority party. That is going to be difficult because the majority of people are in love with the ANC. They like it and they will always vote for it, and that is the passion that we carry with that responsibility. We would have loved to stop them and say: No, no; do not vote for us. It is not going to work for democracy. But within democracy there are opportunities. We should go and talk about your party and let it be understood by the people.
The additional votes they give us will allow us to continue with the majority vote which we have had since 1999. That majority vote we have not used to abuse the Constitution, or to change it the way people predicted that we would be changing the Constitution. We say that we are a responsible political party. We do take responsible decisions and we will continue to do so. We will be able to carry you along. Thank you. [Applause.]
Adv H C SCHMIDT: Madam Deputy Chair, I think the short answer to that long speech is to vote for the DA. The adoption of this Bill today leaves several issues, in fact, no less than seven, which in terms of the recommendations contained in the report need to be referred to the respective Rules committees for further attention.
Some of the particular issues referred to the Rules committees relate to the degree of limitation on the members’ freedom of speech, the adoption of a procedure setting out the relevant Rules and inquiries, with the reflections of another House or legislature, and when the deliberate misleading of the House or committee should be declared a contempt. In addition thereto, issues relating to the provision on loss of membership or other issues relating to witness fees and the procedure for initiating disciplinary action against a member, still need to be dealt with.
Two particular issues have been referred to the Constitutional Review Committee, due to the fact that no specific provision has been made in the Constitution for freedom of speech in the joint sittings of the two Houses of Parliament. The lack of a provision in the Constitution for a Deputy Minister, who is not a member of Parliament, to have freedom of speech in a joint committee, has also been referred.
Separate legislation is also required relating to the Pan-African Parliament and the SADC Parliament Forum.
It is clear that the Bill provides for the application of legislation to provincial legislatures, forcing legislatures to establish how far their own legislation and rules need to be adopted or supplemented. It is therefore definitely not correct to labour under the misconception that the Bill deals with all issues relating to the powers and privileges of members of Parliament.
A few important issues need to be noted. The Bill allocates equal responsibilities and duties to the Speaker of the National Assembly and the Chairperson of the NCOP, ensuring that both officials play a central role in the affairs of Parliament.
One of the more contentious issues in the Bill relates to clause 14, which states that a House or a committee requires that anything be verified or otherwise ascertained by oral examination. The person presiding at the inquiry may examine that person or require that person to produce any document in the person’s possession or custody or under his or her control which may have a bearing on the subject of the inquiry, subject to any limitation provided for in the Standing Rules.
The law regarding privilege, as applicable to a witness summoned to give evidence or to produce a document before the High Court of South Africa, applies to the examination of a person. An obligation is placed on a person who is being examined under oath or affirmation in that he may be required
- and that being the operative word - to answer any question being put to him or her in connection with the subject of the inquiry and to produce any document that he or she is required to produce, despite the fact that the answer or document will incriminate him or her, or attempt to expose him or her to criminal or civil proceedings or damages. These are the words that may be required to indicate the extent of the powers of the committee and compel the witness to testify and answer questions, despite the fact that such an answer or document will tend to incriminate him or her.
The clause limits an important right as contained in the Bill of Rights, namely the right to remain silent. However, we are of the view that it is important for the committee to be able to compel the witness to answer a question in certain circumstances, despite the fact that such an answer or document might incriminate him. Any evidence given under oath or affirmation by a person before a House or a committee may, however, not be used against that person in any court or place outside Parliament, except in criminal proceedings where the person concerned faces a charge of perjury.
The Bill furthermore places a duty on criminal courts having convicted a member of Parliament of an offence and having sentenced him or her to more that 12 months’ imprisonment without the option of a fine, to inform the Speaker or Chairperson of the nature of the offence and the sentence imposed.
One of the more interesting developments which have been introduced is that a person, other than a member of Parliament, who feels aggrieved by a statement or remark made by a member or a witness in or before a House or committee about that person, may submit a written request to the secretary to the relevant committee to have a response recorded.
The committee must consider such a request and, if approved, publish the response of the person in the appropriate parliamentary paper. This would enable a member of the public, for instance, to have his view stated in response to a remark in a House of Parliament or a committee, thereby affording the member a right of reply.
Despite the identified shortcomings in the Bill, the DA considers the Bill a step forward towards regulating the conduct of members in Parliament. I thank you.
Mr P A C HENDRICKSE: Madam Deputy Speaker, may I just, in concluding this debate, say to Mrs Seaton: You don’t have to be so negative. We appreciate your concerns, but I think you are being unnecessarily negative. You referred to the use of the word “improper”. I don’t think one should look at it in isolation. It is used in a sentence in which you talk about intimidation, force, insult, threat of any kind or inducement. So there is some context as to how the word “improper” is being used.
I also do not think it is fair to attempt to pre-empt the Rules of the next Parliament in terms of the composition of the committee of inquiry, although one cannot ignore the reality of our system of proportional representation. That’s why we are out there campaigning at the moment.
I am also confident that the next Parliament will deal speedily with the matters needed to implement this Bill successfully. This Bill is the result of, as has been said by others, many consultations, discussions and other forms of input from way back to 1997. We have gone through 14 drafts, or at least 14 drafts, over the past seven years.
One of the people involved since then until now has been Adv Anton Meyer, the former law adviser to Parliament and drafter of this Bill. I would like to thank him for his willingness at all times, and often at short notice, to make himself available both to me and to the committee.
Our thanks also go to Adv Adhikarie at Parliament’s legal services, and to Prof Christina Murray. Then, Madam Deputy Speaker, I think it is appropriate that both you and the Speaker, who have presided over this debate, also be thanked, as well as the other presiding officers for their input and assistance.
Mr Eglin, it was indeed a pleasure serving with you; being able to tap into your experience and your intellect. I wish you well in your retirement. To all members of this committee: Thank you very much for your contributions. To all those of you who are not returning or retiring - forgive me for not speaking about pensions today; we’ll do that another day - good luck and Godspeed. Can I also say thank you very much to all the parties for their unanimous support of this Bill. I hereby wholeheartedly add my support and commend the Bill to the House. [Applause.]
Debate concluded.
Bill read a second time.
CONSIDERATION OF REPORT OF AD HOC COMMITTEE ON PUBLIC AUDITING FUNCTION
There was no debate.
The Deputy Chief Whip of the Majority Party moved: That the report be noted.
Motion agreed to.
Report accordingly noted.
PUBLIC AUDIT BILL
(Second Reading debate)
Mr V G SMITH: Madam Deputy Speaker, the ANC’s support for the Public Audit Bill indicates the degree of importance that we attach to matters of prudent financial management, good governance and the elimination of corruption and wastage in Government and the private sector.
Two weeks ago, President Mbeki challenged the national, provincial and local legislatures to answer the question as to whether they have passed the acid test of the legitimacy of the programmes they elaborated on, the Government institutions they created and the legislation they adopted. Are we, by passing this Bill contributing towards the creation of a people- centred society, thus expanding the frontiers of human fulfilment and the continued extension of the frontiers of freedom? In our humble view, the answer to all these questions is: yes. And therefore, by extension, we believe that we are well on track towards passing the acid test alluded to by President Mandela a decade ago.
The ANC’s 2004 manifesto informs South Africans that:
Systems have been put in place to expose and punish corruption both in Government and in the private sector.
The manifesto goes on to say that:
80% of corruption cases in Government reported in the media are actually first uncovered by Government itself. In the private sector, laws have been introduced to prevent corruption being swept under the carpet.
The Public Audit Bill before this House for adoption today is yet another step towards realising the ANC’s vision of creating a better life for all by decisively dealing with crime, corruption and financial mismanagement. At our national policy conference in May 1992, we adopted the ready-to- govern policy guidelines. Already at that stage, even before assuming political power, we were in agreement, as the ANC and our alliance partners, that the Public Service must be based on the principles of representivity, impartiality and accountability. At that conference we resolved that new institutions would be developed to improve efficiency, transparency and accountability in Government spending. One such institution, is the Office of the Auditor-General.
Informed by that resolution, the ANC Government, in consciously pursuing the policy of further strengthening the operations of this office, is in total support of the Bill being adopted by the House. The Public Audit Bill is not an end in itself, but rather a means towards addressing the problem of those in the Public Service who see themselves as pen-pushers and guardians of rubber stamps. Some are thieves, intent on self-enrichment; some are bureaucrats who think they have the vision of Batho Pele; some come to work as late as possible, work as little as possible and knock off as early as possible, as articulated in the state of the nation address two weeks ago.
At our Stellenbosch conference in 2002, we resolved that the ANC would undertake a comprehensive assessment of institutions enhancing democracy and transformation, with regard to their mandates, resources and functioning in order that their capacity be maximised. We further resolved to create public awareness of the objectives of these institutions so that they are optimally utilised. It is with this background that we applied our minds when considering the additional powers given to the Auditor-General within this Bill. The primary objective of the Auditor-General, as we see it, is to expose corruption and mismanagement of public resources by subjecting state-funded institutions and departments to annual audits.
Powers such as search and seizure, not normally catered for in the ordinary course of the auditing function, are now being addressed in section 15 of this Bill. This Bill also obliges Parliament to finalise the establishment of an oversight mechanism for the Auditor-General in line with section 181(5) of our Constitution. The establishment and finalisation of an appropriate oversight mechanism will see our Stellenbosch resolution, that states that Parliament or legislatures and municipalities must improve their capacity to exercise their constitutional oversight role, translated from mere theory into practice.
Our commitment as the ANC to continuously work to improve accountability and oversight, as stated in the 8 January 2003 statement, demands that we ensure that the state machinery functions properly and carries out its task effectively and efficiently. We must also intensify our offence against corruption within the public sector. The introduction and final adoption of the Public Audit Bill seeks to do just that.
In the 1980s the Exchequer and Audit Act governed the Auditor-General and the functions of his office. In 1989 the Auditor-General Act was adopted. However, the Auditor-General was still an employee of the Department of State Expenditure and, therefore, the concept of independence of the office was nonexistent. The Audit Arrangements Act of 1992 brought with it improvements, both in the quality of audit work and in transparency, but still more needed to be done.
If we are to do an honest review today of how far we have travelled in terms of improving good governance and eliminating corruption, we will without any fear of contradiction be able to say that, without the necessary independence, the Auditor-General, historically, was a nice- to- have. Today the same cannot be said of the Office of the Auditor-General. Historically, the general public was never certain as to how public funds were being spent, because the Auditor-General’s ability to express an opinion on whether the executive exercised prudent financial management and good governance practices was severely hampered by the lack of independence of the Auditor-General from the very executive that he was meant to audit. Today, with the introduction of this Bill, we seek not only to right the wrongs of the past, but also to strengthen and protect the Office of the Auditor-General and, thereby, safeguard our democracy.
In conclusion, I would like to thank all the members of the ad hoc committee for their support and their diligence in ensuring that this Bill reached the point that it is at today, and for the manner in which we were able to discuss and debate matters that might not necessarily have been our first choice and, eventually, come up with the product that we believe is the best that could have been presented to this House. As the ANC, we support the adoption of the Public Audit Bill. Thank you very much.
Mr B G BELL: Madam Deputy Speaker and fellow members of Parliament, it is my duty to speak on behalf of the DA on the passing by Parliament of the Public Audit Bill. This Bill will give effect to the provisions of the Constitution, establishing and assigning functions to an Auditor-General, to provide for the auditing of institutions in the public sector.
The Bill will replace the existing Auditor-General Act of 1995 and the Audit Arrangements Act of 1992, and repeal certain sections of the Public Finance Management Act, Act 1 of 1999. The Bill encapsulates certain requirements of the Public Finance Management Act and the Local Government: Municipal Finance Management Act.
The Bill calls for the establishment of a committee of the National Assembly to oversee the Auditor-General, as envisaged in the Constitution. This committee will replace the existing Audit Commission. It is considered essential that the oversight committee established be a dedicated committee to the Auditor-General.
The functions of the Auditor-General are more technically specific than any other of the Chapter 9 bodies and, therefore, it is desirable that the committee oversees only the Auditor-General. As the only Chapter 9 body that does not receive funds through any Vote, there are particular oversight requirements regarding its income and expenditure.
The Bill will instruct the Auditor-General to audit all national and provincial departments, all municipalities, parliaments and municipal entities. This will include all consolidated accounts of these bodies. The Bill will allow the Auditor-General to choose not to audit any public entity, but will have definite responsibilities concerning the appointment and control of the private audit firms used by these entities. The Bill will restrict the appointed auditors of public entities from carrying out any other functions for the auditee, without the knowledge of the Auditor- General.
Section 22 of this Bill allows the Auditor-General to consult the Minister responsible with regard to the Security Services Special Account, the Defence Special Account and/or the Secret Services Act. In reporting on matters on the basis of national interest, the Auditor-General may exclude confidential, secret or classified details on written request by the Minister.
The Auditor-General, in turn, must state in the audit report that certain details have been excluded. The National Assembly, through its committee, must be in the position to examine these details to meet the oversight responsibility of Parliament.
Although we had misgivings about the necessity of this clause, as we had proposed that it be deleted from the Bill because we are firmly of the opinion that the Auditor-General should not be able to withhold any information during an audit investigation, the DA will, nevertheless, support the Bill.
The Auditor-General must report on findings during the audit of any fruitless, irregular, wasteful or unauthorised expenditure within the meaning of the PFMA, or any other irregular conduct, activity or criminal conduct relating to the financial affairs of any department or account.
Critical to this legislation is the obligation on the Auditor-General to report to Parliament even if there is an element of national interest involved. This is crucial. The Auditor-General has no right to withhold any information.
This Bill gives the Auditor-General the right, after attaining a warrant from either a judge or a magistrate, of search and seizure. It was agreed to that for the Auditor-General to carry out his functions effectively, this right should be granted.
As this will be my last speech in this House, as I will be retiring and will not be returning after the elections, I would like to take this opportunity to thank all members that I’ve come into contact with over the last five years. We have differed politically, but I felt, at all times, that I was received courteously and I have enjoyed the association with this Parliament.
I trust that, when the new members return in April, my party, the DA, will have a much larger section of the seating in this House, and that it will not be necessary for the ANC to overflow into the opposite benches, as is presently the case. [Interjections.] South Africa deserves better.
In conclusion, the DA will support the Public Audit Bill. Thank you for listening to me. [Applause.]
Dr G G WOODS: Madam Deputy Speaker, my party would just like to wish the hon Brian Bell well, and say it’s been our pleasure to count on him in committees. We believe that this is the second time he’s going into retirement, and so we hope this time it is as enjoyable as the first time.
The timing of the Public Audit Bill is fortuitous. At a time when the roles of all parties in the general corporate governance scheme of things have been brought under question and review throughout an array of international corporate scandals, the role of the external auditor, in particular, is being given greater definition.
Through its provisions concerning functions, structures, processes and arrangements, this Bill has acknowledged this recent rethink, and the Bill acknowledges the requirements of our Constitution, which had already, in a remarkable way, captured the key issues being dealt with around the world today.
In short, these main issues are, firstly, the independence of the external auditor, the Auditor-General, which is essentially an independence from management, which is the executive Government; secondly, the accountability and reporting responsibilities of the Auditor-General to the board, in this case the National Assembly; and thirdly, the unambiguous role of the external auditor, which is to audit, meaning strict limitation on other services to auditees.
The Bill and the process, as suggested by the hon Smith, were not without a few matters of contention, and there are four of these that I would like to mention. The first is the issue of the Auditor-General providing services other than auditing and, thus, getting into the conflict of interest predicament seen in Enron and other cases internationally. Here, clause 5(1) allows the Auditor-General to provide a service, ``commonly performed by a supreme audit institution’’. Clearly, the stricture of our Constitution does not necessarily allow this degree of scope.
The second matter is clause 29(3), which we welcome, as it insists that special audit reports be submitted simultaneously to the executive and to the legislature, thus preventing a repeat of the arms deal special report debacle. In other words, if it’s broken, fix it.
The third matter is the necessity of the search and seizure powers, in clause 15 and 16, which are questionable, as the Auditor-General can easily work through other criminal investigative bodies which have been established, in the rare instances of this being required. As was pointed out by the ANC, as there are almost a dozen other bodies which have also been given such powers, it was difficult to deny the Auditor-General his wish for these powers. However, let’s just hope that the justice committee will review the situation at some stage in the new Parliament, as I’m sure the nature of our democracy does not really invite the proliferation of such invasive powers across so many state institutions.
Finally, we have clause 22, which we also believe should not have been in the Bill. This is a clause that conspires to defeat the constitutional principles of the Auditor-General, the independence of parliamentary oversight and executive accountability. Further, nowhere does the Constitution give the Auditor-General this discretion, once being convinced by the executive, to leave findings out of this report that could, in any way, fit the ambiguous definition of the national interest, especially in so far as these might concern arms trade activities.
All the audit report now has to say is that findings have been excluded, with no details whatsoever in the actual report on the exclusion. It is silly, especially given past experiences, to think that the Standing Committee on Public Accounts will challenge the executive’s wish for secrecy and call upon the Auditor-General to spill the beans in such instances.
I was very unhappy that the Auditor-General, as an individual, can now effectively decide what findings Parliament may or may not know about in such instances. Notwithstanding these misgivings, the IFP supports the Bill on the overwhelming balance of its positive features and, because of the important certainty that it brings to the Office of the Auditor-General, this Bill should not be delayed by leaving it to the new Parliament, which would obviously mean that it would have to engage the Bill from the beginning, once again.
Relatedly, and also in support of the previous speaker, we want to emphasise the ad hoc committee’s recommendation that the next Parliament urgently needs to replace the existing Audit Commission with the new National Assembly oversight committee, as per clause 10 of the Bill and as instructed by sections 55(2) and 181(5) of the Constitution.
Mr P A GERBER: Madam Speaker, I stumbled across an old history book at home the other day and it is called The Cambridge History of the British Empire, printed in 1936, a couple of years after Mr Colin Eglin was born.
I want to read something about the early history of the settlers and if I can quote something here:
In 1685 Commissioner-General Hendrik Adriaan Van Rheede tot Drakenstein arrived at the Cape on a special mission. He had been appointed by the Here XVII in the previous year and armed with full authority to look at the growing corruption amongst the officials from the Governor-General downwards.
So, corruption and monkey business by officials are not new in South Africa and did not start in 1994. In fact, they have been here for centuries.
One can never ask too many questions when one works with taxpayers’ money - never, ever. We should not always think that we are spending the taxes of rich people. When the old pensioner lady in a tin shack goes to buy a few groceries with her monthly old age pension, a little bit of that money is also used to pay some tax on it.
It is the proper spending of her little bit of tax and that of the other millions in her position that we need to take extra care of. We should ensure that she gets value for money for the little bit of tax that she does pay.
Die ouditeur-generaal doen in die meeste gevalle finansiële nadoodse ondersoeke. [The Auditor-General undertakes financial autopsies in most cases.]
The Auditor-General in most cases deals with financial postmortems. Now, the hon Mr Mike Ellis will know more of this as he owns a funeral parlour. In other words, he starts operating after the accident has happened. [Laughter.] [Interjections.] This time delay is a huge frustration to the Auditor-General, as it is to Scopa.
In many cases of financial mismanagement or misconduct the culprits get away under the three-year term of office Prescription Act. In many cases certain officials are using delaying tactics or develop instant overnight Alzheimer’s disease. We need the Auditor-General to be able to receive early warning signals regarding mismanagement so as to take pre-emptive steps to prevent financial mismanagement.
The Act will do exactly that. The Act will also remove all uncertainty regarding access to financial information. Over the past four years we have had the intolerable and bizarre situation of the parastatal Transnet refusing to give financial information to the Auditor-General as he required.
Both the Auditor-General and Transnet got legal advice, both at taxpayers’ cost, and eventually Transnet agreed to supply the information, and in the process the money-losing contract was cancelled by Transnet - saving the taxpayer millions.
It is therefore true that there will be better and more focused attention on the financial affairs of parastatals as it is contained in the Act. The shares of parastatals owned by the state belong to the taxpayer, which includes the pensioner in the tin shack.
The Auditor-General has also sent a message to parastatals that the honeymoon is over. Clause 16 deals with the powers of the Auditor-General regarding search and seizure. It is high time these powers were clearly spelt out and bestowed upon the Auditor-General.
It is unthinkable that a traffic officer can have these powers in South Africa but not the Auditor-General. In this world of voice-activated overseas bank accounts and 24 different bank account numbers every hour in one day, it is getting increasingly difficult to stamp out corruption. If you do not follow a paper trail in following up corruption you are going nowhere, and that is why it is so important to empower the Auditor-General with these powers.
Another feature of this Act is that the Auditor-General in Clause 5 can carry out special investigations and special orders of any matter as he sees fit. This is the way to go as many of the auditor-generals of other countries have already pioneered this route. In India, the auditor-general recently did a special audit on the import of worm-infested grains. In Australia the auditor-general did an audit as to whether the state got value for money in disposing of its shares in a bank. I can think of many such potential audits in South Africa. For example, it will be very interesting to know, via such an Auditor-General special audit, whether the harvesting of abalone or perlemoen is worth all the effort that we put into it.
Nowhere in South Africa can you buy a tin of abalone. Everything is canned here and exported to where it retails at nearly R2 000 per kilogram. Meanwhile the amount of money with regard to the exported tins of abalone returning to South Africa is definitely not a tenth of the retail price.
Then, only after the company’s local production cost has been subtracted can Sars establish if they are in line for some tax under the income declared. After that has been established we still need to deduct the taxpayers’ money used to police the coasts and to police the smugglers and the taxpayers, and the money used to pay and fund special courts dealing with abalone smugglers, plus the costs of the Department of Environmental Affairs and Tourism officials.
A special Auditor-General’s audit on this issue might have very interesting findings. I trust that our Auditor-General Shauket Fakie will, with all these new powers, now be able to continue to produce powerful prima facie audit reports.
I want to end my speech by saluting two giants for the incredible role they have played in Scopa and the select committee over the past decade. When we walked in here in June 1999 we were asked to indicate on which portfolio committees we wanted to serve. I do not know of any of the new members of Parliament that indicated that they wanted to serve on Scopa.
When I was informed that I had to serve as a member of Scopa, I really thought it was a misunderstanding, or that I was to be punished for something in my past. When I asked my other new ANC colleagues on Scopa whether they asked to be on Scopa, they also said that they were in the same boat. Fortunately there were the hon Billy Nair and the hon Laloo Chiba. When you develop a shopping centre or a big property project, it is a priority to get an anchor tenant or two. Now the hon Billy Nair and hon Laloo Chiba have been the anchor tenants of Scopa. [Applause.]
For the past five years their collective wisdom has kept Scopa going through five very tough and difficult years. It has been an honour and privilege to serve under your guidance and your experience. From all of us at Scopa and the Auditor-General’s office, thank you very much and hamba kahle [go well]. [Applause.]
Mr F BEUKMAN: Madam Speaker, I also want to add my voice to that of Pierre Gerber in highlighting the role played by the hon Billy Nair and the hon Laloo Chiba these past 10 years in strengthening Scopa and their role in it, and also the role of Brian in that regard.
Mr M J ELLIS: Why don’t they mention your name? Mr F BEUKMAN: The adoption of the Public Audit Bill by Parliament is a further indication that the role of the Auditor-General as an independent Chapter 9 institution is being strengthened. However, it also creates an opportunity for Parliament to strengthen oversight over the Auditor- General.
The third term of a democratic Parliament will offer an opportunity to the legislature to consider and refine oversight mechanisms for the Chapter 9 institutions. The status and the role of Chapter 9 institutions should be protected. We in the NNP believe that the framework of the legislature will ensure that accountability is given its rightful place in the broader debate on oversight and accountability.
In contrast with the position in other jurisdictions like the United Kingdom, the Auditor-General is not an official of Parliament. Section 181 is very clear: The Auditor-General is independent and subject only to the Constitution and the law.
The replacement of the current audit commission by a parliamentary peer mechanism is an indication that the role of Parliament as an oversight institution is growing in terms of status and responsibility.
Daar kan seer sekerlik oor artikel 22 gedebatteer word. Feit is, in enige konstitusionele en veelpartydemokrasie sal daar beperkings wees oor die aard en omvang van operasionele inligting. Ons is van mening dat dit die onus op die Ouditeur-generaal plaas wat betref sy integriteit en die uitvoering van die wet. (Translation of Afrikaans paragraph follows.)
[One could most certainly debate section 22. Fact is, in any constitutional and multiparty democracy there will be limitations on the nature and scope of operational information. It is our contention that the onus rests with the Auditor-General in terms of his integrity and the implementation of the legislation.]
We believe that the duty of the Auditor-General to report on fruitless, wasteful and irregular expenditure will ensure that the foundations and principles of the PFMA are not negated and compromised. The role of Parliament in terms of monitoring and scrutinising executive action will, however, be prominent.
Dit is in belang van goeie regering dat die Ouditeur-generaal oor die vermoë en bevoegdhede beskik om sy amp na behore te verrig. Ons is van mening dat artikel 29 van dié wet juis daardie geleentheid vir hom skep om sy rol om spesiale oudits te mag doen, te versterk. Kortliks: Die NNP steun hierdie wet. (Translation of Afrikaans paragraph follows.)
[It is in the interests of good governance that the Auditor-General will have the abilities and powers to fulfil his duty properly. We are of the opinion that section 29 of this Act does indeed create the opportunity for him to strengthen his position so that he can undertake special audits. In short: The NNP supports this Bill.] I also want to extend my thanks to the chairperson of the committee, Mr Vincent Smith, for his role. He had a very difficult time limitation in executing the role of the committee. I also wish to thank the committee secretary, Mr Lungisile Pakathi, for his role.
Mr M H STEELE: Madam Deputy Speaker and hon members, none of the speakers today has referred to an hon Minister in connection with this Bill. This is because the Constitution of 1996 places the Office of the Auditor-General in a special category of Chapter 9 institutions which are accountable to this House directly.
The issue of accountability has been central to the discussions of the ad hoc committee charged with the preparations of this Bill. With apologies to the pronunciation experts who have a superior classical education, Juvenal put it thus: Quis custodiet ipsos custodes? Or, loosely translated: Who guards the guardians?
In this context, the Constitution in section 181 establishes various institutions designed to strengthen constitutional democracy in the Republic. One of these entities is the Office of the Auditor-General, whose powers and functions are described in section 188 of the Constitution and in more detail in sections 3 and 4 of this Bill.
My colleague, the hon Bell, has already described the constitutional issues which lay behind the formulations of sections 16 and 22 of this Bill. I, however, would like to focus on section 10, subsection 3 of the Bill, which requires the National Assembly to provide a mechanism to maintain oversight over the Auditor-General. This subsection gives effect to the constitutional provision which empowers the National Assembly to provide such oversight mechanisms.
To return, though, to the concerns of Juvenal, if the Auditor-General is a duly appointed guard of public accounts, then this oversight mechanism, still, will have to be created to be the guardian of their office. As such, this committee will be acting in the names of all the members of this House, for, in terms of the Constitution, the Auditor-General is accountable to the National Assembly, and no one else, and especially not to members of the executive.
So, who will guard the guardians? The Auditor-General’s office will have formidable powers, though perhaps fewer than were originally proposed. However, his work will be of little value and effect if we, in the National Assembly, do not appoint suitable guardians to exercise oversight over our own guards. Where there is corruption or a waste of public funds, the people who elected us will hold us directly accountable, not the Auditor- General or the officials concerned.
I would like to acknowledge the work done by the ad hoc committee’s chairperson, the hon Vincent Smith, in leading us all to this very constructive result, which is the Bill before us. We have discovered, as a committee, an unusual degree of solidarity across party lines, perhaps because we all face the collective power of the executive. I must also pay tribute to the work of the Auditor-General’s staff, and I see he has a representative sitting in the public gallery, and that of the parliamentary legal advisers, and to members of the Audit Committee for their preparation of the draft Bill.
In supporting this Bill, the DA does not necessarily believe it will be the final word. Circumstances will evolve, and with them the need to consider afresh how effective we are being in guarding the guardians. The success or failure of the proposed oversight mechanism will determine how effective the National Assembly is at discharging its accountability functions. Thank you, Madam Deputy Speaker.
Mr M A TARR: Madam Speaker, it’s very difficult being the last speaker of the day, particularly on a Bill which all parties are supporting; and when most members are looking forward to leaving. As last speaker, I was expected to deal with any issues which arose, particularly those coming from the hon member Woods and the hon member Bell, but they were remarkably subdued on some issues that I thought they would deal with. Perhaps they are reserving their energies for the election task that lies ahead.
I must comment on what the hon Bell said. We wish him all the best for when he leaves, but I think it is a really long shot to expect more members in his benches next time. [Interjections.] Earlier today, I had a look at those benches over there and, of course, there was a flashback to the old days, and I looked over there and thought that’s the old NP. It was a horrible, horrible feeling. [Interjections.] [Applause.] Now, I really can’t even imagine what it would be like to even see more of them over there. [Interjections.] It’s absolutely true, and you know it. Look at them. [Interjections.]
The DEPUTY SPEAKER: Order!
Mr M A TARR: There were three issues raised by the hon Woods. There was the issue of search and seizure, in sections 15 and 16, and he will remember that we did, at one stage, drop that section and then, later on, in response to pleas from the Auditor-General, we actually … [Interjections.] Madam Deputy Speaker, can you please deal with that member over there. He’s continuously making comments.
The DEPUTY SPEAKER: Order! Hon member, just continue with your speech. Leave the hon member to exercise his right to leave the House. [Interjections.]
Mr M A TARR: Madam Speaker, he does not have a mind to exercise. [Laughter.] [Interjections.]
The DEPUTY SPEAKER: Order! Hon member!
Mr M A TARR: Mr Woods will know that, then, because of representations from the Auditor-General, it was to decided to reintroduce those two clauses. Then, on the issue of special audits, there are provisions for special audits in many countries. For example, in Australia, special audits are often carried out, especially in the field of value for money. So, yes, there could be conflicts of interests and, yes, it’s probably something we need to look at and guard against.
Then, finally, is the issue of clause 22, with regard to which there was unanimous agreement from the committee that there could be circumstances in which it would be prejudicial to the country were certain information to be made available to the world at large via an audit report. There was also an agreement that Parliament should, by some mechanism created by Parliament, still be able to exercise an oversight function and retain the confidentiality of the information.
The formulation does this by flagging - as the hon Dr Woods said - audit reports where certain details were omitted, thus enabling Scopa to do the necessary follow-up. Now, the hon Woods is, obviously, concerned that Scopa would not do that, but Scopa is really a committee where members of the committee should actually leave their political baggage, or whatever it is, outside the door. It’s really a reflection on Scopa and the function of Scopa, and I think it’s important that it’s flagged and left for Scopa to deal with. [Interjections.]
Now, this aspect may need the attention of the Rules Committee in the next Parliament. It should be noted, as the hon Brian Bell said, that the Auditor-General may not exclude, in the audit, any finding of unauthorised expenditure, irregular expenditure or fruitless or wasteful expenditure. So, there are not many things that, in fact, can be excluded.
In conclusion then, Chapter 9 of the Constitution creates the Office of the Auditor-General as a state institution supporting democracy. Section 55 of the Constitution requires Parliament to set up mechanisms to ensure that all executive organs of state are responsible to it, and section 114 has similar provisions for provincial legislation.
So, this Bill, in fact, really gives effect to the aforegoing. It assigns the supreme audit functions to the Auditor-General; it defines the status and the function of the Auditor-General and establishes his independence, which other speakers have dealt with today; it establishes procedures for his appointment and makes him accountable to Parliament; it outlines how audits will be done, and here I predict that, in future, there will be far more emphasis given to performance audits, as set out in the PFMA and the MFMA. It also sets out the procedure for establishing the Office of the Auditor-General with administrative and financial aspects of running that office.
It gives me pleasure, on behalf of the ANC, to recommend this particular Bill to the House. [Interjections.] [Applause.]
Debate concluded.
Bill read a second time.
The House adjourned at 16:11. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
MONDAY, 16 FEBRUARY 2004
ANNOUNCEMENTS
National Assembly and National Council of Provinces
- Classification of Bills by Joint Tagging Mechanism:
(1) The Joint Tagging Mechanism (JTM) on 12 February 2004 in terms
of Joint Rule 160(3), classified the following Bill as a section
75 Bill:
(i) Children's Bill [B 70 - 2003 (Reintroduced)] (National
Assembly - sec 75)
- Introduction of Bills
(1) The Minister of Environmental Affairs and Tourism
(i) National Environmental Management: Protected Areas
Amendment Bill [B 2 - 2004] (National Assembly - sec 75) [Bill
and prior notice of its introduction published in Government
Gazette No 25052 of 3 June 2003.]
Introduction and referral to the Portfolio Committee on
Environmental Affairs and Tourism of the National Assembly, as
well as referral to the Joint Tagging Mechanism (JTM) for
classification in terms of Joint Rule 160, on 16 February 2004.
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.
National Assembly
- Questions not replied to in 2003
A communication was sent to Ministers in respect of all questions for
2003 to which replies had not been received by the end of the year.
These questions appear on the Internal Question Paper of 18 December
2003. Outstanding replies have now been received from a number of
Ministers. The replies can be accessed from the Questions Office.
TABLINGS
National Assembly and National Council of Provinces
- The Speaker and the Chairperson
Report of the Public Service Commission - State of the Public Service
Report for 2004.
- The Minister of Home Affairs
Report and Financial Statements of Vote 4 - Department of Home Affairs
for 2002-2003, including the Report of the Auditor-General on the
Financial Statements for 2002-2003 [RP 220-2003].
- The Minister of Labour
(a) Report and Financial Statements of the Tourism, Hospitality and
Sport Education and Training Authority (THETA) for 2002-2003,
including the Report of the Auditor-General on the Financial
Statements for 2002-2003 [RP 92-2003].
(b) Recommendation of the International Labour Organisation (ILO) -
Recommendation No 189, concerning Job Creation in Small and Medium-
Size Enterprises.
(c) Convention of the International Labour Organisation (ILO) -
Convention No 183, Convention concerning Maternity Protection,
2000.
(d) Recommendation of the International Labour Organisation (ILO) -
Recommendation No 191, Recommendation concerning Maternity
Protection, 2000.
(e) Convention of the International Labour Organisation (ILO) -
Convention No 184, Convention concerning Safety and Health in
Agriculture, 2001.
(f) Protocol to the Occupational Safety and Health Convention -
1981, tabled in terms of section 231(3) of the Constitution, 1996.
(g) Recommendation of the International Labour Organisation (ILO) -
Recommendation No 193, Recommendation concerning the Promotion of
Cooperatives, 2002.
National Assembly
- The Speaker
(a) Letter dated 20 January 2004, from the Minister of Home Affairs
to the Speaker of the National Assembly, in terms of section
65(2)(a) of the Public Finance Management Act, 1999 (Act No 1 of
1999), explaining the delay in the tabling of the Annual Report
for the Department of Home Affairs for 2002-2003:
Dear Madam Speaker
Annual Report of the Department of Home Affairs
In terms of section 65(2)(a) of the Public Finance Management Act,
1999 as amended, you are hereby informed about the reasons for the
late submission of the Annual Report of the Department of Home
Affairs.
The reasons for the late submission are the following:
(a) The Department had experienced problems with the
conversion process from the Financial Management System to the
new Basic Accounting System during the course of the financial
year, which resulted in a delay in the timely compilation and
finalisation to the financial statements. It became essential
at that stage to consult extensively with the BAS
implementation team from National Treasury, who was driving
the conversion process. The complex nature of the conversion
process also required the office of the Auditor-General to
deploy additional Information Technology expertise to audit
the conversion process in detail to assist in coming up with
an opinion. After the Department had done the necessary
amendments, the financial statements were re-submitted on 22
August 2003 to the Office of the Auditor-General, and were
accepted as a true reflection of the state of affairs of the
Department.
(b) Furthermore, the Government Printing Works, which forms
part of Home Affairs, had a problem to finalise their
financial statements in time due to serious capacity
constraints. They had first to withdraw the statements and
submit additional documentation to the Office of the Auditor-
General, and could only manage to re-submit the final version
of their financial statements on 20 October 2003.
The above reasons resulted in a delay in the finalisation of the
Auditor-General's report and consequently the late submission of
the Annual Report of the Department for tabling in the National
Assembly.
Steps have been taken by all involved stakeholders, i.e. the
Department, Auditors, Audit Committee, as well as the Government
Printing Works to prevent the recurrence of the situation. The
2003/04 Annual Report will be tabled as prescribed by the PFMA.
Please accept my apology in this regard.
Yours sincerely
Signed
M G Buthelezi
MINISTER OF HOME AFFAIRS
TUESDAY, 17 FEBRUARY 2004
ANNOUNCEMENTS
National Assembly
- Withdrawal of Reports of Standing Committee on Public Accounts (Scopa)
The following Reports of Scopa published on the ATC of 8 December 2003
have been withdrawn:
(a) One-Hundred-and-Sixteenth Report - Communications (p 1797);
(b) One-Hundred-and-Twenty-Second Report - Social Development (p
1808);
(c) One-Hundred-and-Twenty-Third Report - Government Communication
and
Information System (p 1809);
(d) One-Hundred-and-Twenty-Fourth Report - The Presidency (p 1809);
(e) One-Hundred-and-Twenty-Sixth Report - Provincial and Local
Government (p 1811);
(f) One-Hundred-and-Twenty-Seventh Report - Education (p 1811);
(g) One-Hundred-and-Twenty-Eighth Report - Housing (p 1812); and
(h) One-Hundred-and-Thirty-Third Report - Sport and Recreation South
Africa (p 1815).
- Referrals to committees of papers tabled
The following papers have been tabled and are now referred to the
relevant committees as mentioned below:
(1) The following papers are referred to the Working Group on the
African Union and the Portfolio Committee on Foreign Affairs for
information. It is also referred to the Portfolio Committee on
Justice and Constitutional Development for consideration and
report:
(a) Protocol on the Amendments to the Constitutive Act of the
African Union, tabled in terms of section 231(2) of the
Constitution, 1996.
(b) Explanatory Memorandum to the Protocol on the Amendments
to the Constitutive Act of the African Union.
(2) The following paper is referred to the Portfolio Committee on
Arts, Culture, Science and Technology. The Report of the Auditor-
General on the Financial Statements is referred to the Standing
Committee on Public Accounts for consideration and report:
Report and Financial Statements of Northern Flagship Institution
for 2002-2003, including the Report of the Auditor-General on the
Financial Statements for 2002-2003 [RP 172-2003].
(3) The following paper is referred to the Portfolio Committee on
Public Enterprises. The Report of the Independent Auditors on the
Financial Statements is referred to the Standing Committee on
Public Accounts for consideration and report:
Report and Financial Statements of South African Forestry Company
Limited (SAFCOL) for the year ended 30 June 2003, including the
Report of the Independent Auditors on the Financial Statements for
the year ended 30 June 2003.
(4) The following papers are referred to the Portfolio Committee on
Water Affairs and Forestry. The Reports of the Independent
Auditors on the Financial Statements is referred to the Standing
Committee on Public Accounts for consideration and report:
(a) Report and Financial Statements of Bloem Water for the
year ended June 2003, including the Report of the Independent
Auditors on the Financial Statements for the year ended June
2003.
(b) Report and Financial Statements of Bushbuckridge Water for
the year ended June 2003, including the Report of the
Independent Auditors on the Financial Statements for the year
ended June 2003.
(5) The following paper is referred to the Portfolio Committee on
Defence and to the Joint Standing Committee on Defence:
Letter dated 11 December 2003, from the President to the Speaker
of the National Assembly informing the National Assembly of the
employment of the South African National Defence Force in
Assisting Australia in fulfillment of the obligations of the
Republic of South Africa towards the United Nations.
(6) The following papers are referred to the Standing Committee on
Public Accounts for consideration and report:
(a) Activity Report of the Auditor-General for the financial
year 2002-2003 [RP 222-2003].
(b) Report of the Auditor-General on the Financial Statements
of the Maize Board for the year ended 30 April 2002 [RP 194-
2003].
(7) The following paper is referred to the Portfolio Committee on
Home Affairs and to the Portfolio Committee on Foreign Affairs:
Agreement regarding the Abolition of Visa Requirements for
Diplomatic, Official and Service Passport Holders between the
Government of the Republic of South Africa and the government of
the Republic of France, tabled in terms of section 231(3) of the
Constitution, 1996.
(8) The following papers are referred to the Portfolio Committee on
Finance:
(a) Report and Financial Statements of the Registrar of
Pension Funds for 2002.
(b) Government Notice No R1454 published in Government Gazette
No 25557 dated 8 October 2003: Regulations: Procedures for
submitting returns in electronic format and requirements for
electronic signatures, in terms of the Income Tax Act, 1962
(Act No 58 of 1962).
(c) Government Notice No 1610 published in Government Gazette
No 25655 dated 30 October 2003: Statement of the National and
Provincial Governments' Revenue, Expenditure and National
Borrowing as at 30 September 2003 in terms of the Public
Finance Management Act, 1999 (Act No 1 of 1999).
(d) Government Notice No 1721 published in Government Gazette
No 25756 dated 25 November 2003: Determination of interest
rates of the Seventh Schedule, in terms of the Income Tax Act,
1962 (Act No 58 of 1962).
(e) Government Notice No R74 published in Government Gazette
No 25777 dated 28 November 2003: Assignment of the Transkeian
Development and Reserve Fund Act, 1964 (Act No 3 of 1964), to
the Province of the Eastern Cape under Item 14 of Schedule 6
to the Constitution of the Republic of South Africa, 1996 (Act
No 108 of 1996).
(f) Government Notice No R1739 published in Government Gazette
No 25776 dated 28 November 2003: Amendment of prescribed fees,
in terms of the Pension Funds Act, 1956 (Act No 24 of 1956).
(g) Government Notice No 1751 published in Government Gazette
No 25791 dated 28 November 2003: Statement of the National
Revenue, Expenditure and Borrowing as at 31 October 2003, in
terms of the Public Finance Management Act, 1999 (Act No 1 of
1999).
(h) Government Notice No R1737 published in Government Gazette
No 25773 dated 28 November 2003: Treasury Regulations:
Erratum, in terms of the Public Finance Management Act, 1999
(Act No 1 of 1999).
(i) Government Notice No R1733 published in Government Gazette
No 25766 dated 5 December 2003: Amendment of Regulations, in
terms of the State Tender Board Act, 1968 (Act No 86 of 1968).
(j) Government Notice No R1734 published in Government Gazette
No 25767 dated 5 December 2003: Regulations: Framework for
Supply Chain Management, in terms of the Public Finance
Management Act, 1999 (Act No 1 of 1999).
(k) Government Notice No 1784 published in Government Gazette
No 25821 dated 5 December 2003: Approval of Allocations to be
transferred to Provinces, in terms of the Division of Revenue
Act, 2003 (Act No 7 of 2003).
(l) Government Notice No R1782 published in Government Gazette
No 25812 dated 12 December 2003: Exchange Control Regulations:
Cancellation of appointment as an authorised dealer in foreign
exchange: Corpcapital Bank Limited: PSG Investment Bank
Limited and Real Africa Durolink Investment Bank Limited, in
terms of the Currency and Exchanges Act, 1933 (Act No 9 of
1933).
(m) Government Notice No 1828 published in Government Gazette
No 25781 dated 15 December 2003: Explanatory Memorandum to the
allocations set out in Schedule 3, 6, 6A and 7A of Annexure A,
in terms of the Division of Revenue Act, 2003 (Act No 7 of
2003).
(n) Government Notice No R1846 published in Government Gazette
No 25881 dated 22 December 2003: Designation of institution of
which activities do not fall within the meaning of "The
business of a bank" ("Financial Service Co-operation"), in
terms of the Banks Act, 1990 (Act No 94 of 1990).
(o) Government Notice No 1845 published in Government Gazette
No 25871 dated 30 December 2003: Statement of the National
Revenue, Expenditure and Borrowing as at 30 November 2003, in
terms of the Public Finance Management Act, 1999 (Act No 1 of
1999).
(9) The following paper is referred to the Portfolio Committee on
Defence for information and to the Portfolio Committee on Trade
and Industry:
Report of the South African Council for the Non-Proliferation of
Weapons of Mass Destruction for the year ended 30 June 2001.
(10)The following papers are referred to the Portfolio Committee on
Water Affairs and Forestry:
(a) Government Notice No 3435 published in Government Gazette
No 25865 dated 19 December 2003: Call for nominations of
persons to serve on the Water Tribunal, in terms of the
National Water Act, 1998 (Act No 36 of 1998).
(b) Government Notice No 18 published in Government Gazette No
25897 dated 9 January 2004: Release of part of the la Motte
State Forest which is no longer required for forestry
purposes, in terms of section 50(4) of the National Forest
Act, 1998 (Act No 84 of 1998).
(11)The following paper is referred to the Portfolio Committee on
Public Service and Administration. The Report of the Auditor-
General on the Financial Statements is referred to the Standing
Committee on Public Accounts for consideration and report:
Report and Financial Statements of Vote 12 - South African
Management Development Institute (SAMDI) for 2002-2003, including
the Report of the Auditor-General on the Financial Statements for
2002-2003 [RP 182-2003].
(12)The following paper is referred to the Portfolio Committee on
Transport. The Report of the Auditor-General on the Financial
Statements is referred to the Standing Committee on Public
Accounts for consideration and report:
Report and Financial Statements of the South African National
Roads Agency Limted (SANRAL) for 2002-2003, including the Report
of the Auditor-General on the Financial Statements for 2002-2003
[RP 216-2003].
COMMITTEE REPORTS
National Assembly
-
Report of the Portfolio Committee on Provincial and Local Government on the Local Government: Property Rates Bill [B 19 - 2003] (National Assembly - sec 75), dated 17 February 2004:
The Portfolio Committee on Provincial and Local Government, having considered the subject of the Local Government: Property Rates Bill [B 19 - 2003] (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents the Local Government: Municipal Property Rates Bill [B 19B - 2003].
The Committee reports further, as follows:
- The Property Rates Bill is certainly the most technically
challenging Bill the Committee has had to deal with since
- To process the Bill effectively, the Committee held extensive public hearings, workshops and briefing sessions, and established several subcommittees to facilitate the ongoing participation of key stakeholders, especially from the public. The Committee deliberated on the Bill for about 320 hours. About half of this involved the active participation of a range of stakeholders, including representatives of the South African Local Government Association (SALGA), public entities, agriculture, religious, welfare and charitable organisations, independent schools, municipal valuers and others. The Bill is an outcome of protracted negotiations with a range of key stakeholders.
-
The Constitution gives municipalities the power to levy rates on property. It allows for Parliament to regulate this power. In the processing of the Bill, the Committee has been careful not to undermine the constitutional power of municipalities.
-
Consistent with the Constitution, the Bill provides an enabling framework for municipalities, if they so decide, to extend the levying of rates to categories of owners and properties that have until now been partially or fully excluded from paying rates. Examples of this would include the properties of public entities, farmers and others in rural areas, religious, welfare and charitable organisations, independent schools and conservation bodies. Stakeholders from these and other sectors made strenuous representations to the Committee for the retention and even extension of these benefits. Some of them presented formidable arguments. The Committee’s response was to find a balance between the need for municipalities to have adequate revenue to fulfil their enhanced, constitutionally- mandated, developmental responsibilities and the need to avoid levying rates in a way that debilitates categories of property owners. The Committee also sought to strike a balance between recognising the valuable developmental goals served by certain categories of owners (for example, public entities and welfare organisations) and the need to ensure that it is national and provincial government, not local government, that bears the major cost of the role served by these agencies.
-
The Committee gave considerable attention to what should be the basis for valuation. Among the options explored were a land valuation only, land and improvements at variable rates, land and improvements at a uniform rate, and annual rental value. The Department was asked to undertake further empirical studies in regard to these various options. These options were also discussed with a wide range of stakeholders and academic and other technical experts, both South African and international. The inputs by the Department and the vast majority of those consulted supported the basis for valuation as being the market value of land and improvements at a uniform rate. The majority in the Committee agreed with this. In any case, this is the trend internationally.
-
The Committee stresses that the Bill does not prescribe that property rates must be levied in traditional authority areas. Each municipality must decide for itself on this. But it will be difficult to levy property rates in communal areas, unless property is registered in the name of an individual or a community. Even where there is individual ownership, the property has to be first valued. The owner is not in any case liable for rates unless the property exceeds R15 000 in value. Land reform beneficiaries are excluded from rates for 10 years. Thereafter, municipalities have to phase their rates in over three years. For most municipalities, the cost of valuation and administration of rates will exceed any revenue derived from these properties. The Committee does not believe that the levying of property rates in traditional authority areas is on the agenda for a long time to come.
-
Instead of providing for blanket exclusions from rates for categories of owners or properties, the Committee strengthened provisions in the Bill dealing with:
(a) the phasing-in of rates;
(b) the requirements for municipalities to consider, in their rates policies, the effects of rates on categories of owners and properties; (c) negotiations between categories of owners and properties and the municipalities and SALGA; and
(d) consultation between the Minister and SALGA on the effects of rates on categories of owners and properties.
-
With the new valuation rolls determined in terms of unit living in a sectional title scheme will pay rates directly to the municipality. The body corporate of the scheme will thereafter not be responsible for paying the rates as is the case now. This will make it easier for people wanting to sell their individual units to get rates clearance certificates from municipalities. This decision has been very widely welcomed. The benefits of this will be experienced by sectional title unit owners at different times over the next four years, depending on when their municipalities do their new valuation rolls in terms of this Bill.
-
While an explicit provision to this effect was not included in the Bill, the Committee believes that municipalities should in their rates policies take into account the effect of rates on promoting the conservation of threatened ecosystems and the sound management of natural resources.
-
Municipalities might also want to consider how they could use their rates policies to offer incentives to attract private sector investment.
-
As set out in Clause 17, the place of worship of a religious community and the official residence of an appropriate office-bearer of the community is excluded from property rates. However, the Committee recognises that some religious communities provide a subsidy to the relevant office- bearer to buy a residence registered in his or her name. Should evidence of this be provided, municipalities should consider exempting such residences from property rates as if they were registered in the name of the religious community. The Committee is also aware that properties registered in the name of individuals, and not a religious community, are genuinely used by some religious communities as sites of worship. Where evidence of this is provided, municipalities should consider exempting these properties from property rates. The Committee was also informed that the exclusion of these residences has led in some cases to speculation in such properties. To deter this, religious communities will be required in terms of Clause 17 to pay rates in arrears for one year before the date of sale of these official residences.
-
In deciding on rates for independent schools, municipalities should take into account that independent schools vary greatly, and it might be necessary, where possible, to consider each independent school on the basis of its particular circumstances. Following discussions with the Department of Education, it is suggested that in deciding on rates for independent schools, municipalities take into account the South African Schools Act and the national norms and standards for the funding of independent schools.
-
The Bill provides for the exclusion from property rates of 30% of the value of public service infrastructure. However, where municipalities are levying rates on the full value of some aspects of this infrastructure, they may continue to do so until they finalise a valuation roll in terms of this Bill. The Democratic Alliance (DA) does not support the 30% exclusion on the value of public service infrastructure.
- The general principle in the Bill is that municipalities should value and rate all properties within their jurisdiction. This contributes to the White Paper on Local Government’s objective of broadening the rates base so that municipalities have adequate revenue to meet their constitutional objectives. It is also important that municipalities have as full a sense as possible of the value of properties within their jurisdiction. This is in the interests of transparency and will also give the municipalities a more accurate sense of the revenue that is being foregone. This would also be of value in negotiations around money to be allocated by national to local government. In certain instances, however, municipalities are not obliged to value or rate properties. These include:
(a) those which are fully excluded from rates and which it does not make sense to value - such as the Prince Edward Islands and mineral rights; (b) those for which it is difficult to establish a value - for example, because of past discriminatory laws and practices; (c) municipal properties; and (d) public service infrastructure owned by municipal entities.-
As the range and extent of properties to be valued in terms of this Bill have been significantly increased, questions have been raised about the capacity of property valuers in this country. Moreover, with advances in technology, there are constant changes in valuation techniques and methods. The Committee believes that the Department and SALGA should inquire further into these questions and facilitate greater awareness among municipalities about these issues, and should take appropriate steps to facilitate the development of the requisite capacity of valuers. The Ministry and SALGA should as soon as possible provide guidelines on valuation for municipal valuers, especially in regard to the valuation of public service infrastructure.
-
The Bill provides for district municipalities to levy rates only in district management areas. However, district municipalities are fulfilling certain functions previously undertaken by local municipalities. These functions were previously funded in part by the rates revenue of local municipalities. The Ministry and the Department might want to consider a rates revenue-sharing formula between district and local municipalities in these cases. The Constitution in any case provides for the division of fiscal powers and functions between district and local municipalities.
- In their rates policies municipalities are required to take the concerns of farmers into account. Properties used for trading in or hunting of game are not included in this. Municipalities should consider each such property on its specific merits as to whether it qualifies for consideration in the way farm properties do. The DA believes, however, that all properties used for trading in or hunting of game should be treated as farm properties.
-
As set out in Clause 3(3)(g), municipalities are required in their rates policies to take into account the effect of rates on public benefit organisations (PBOs) registered in terms of the Income Tax Act, if they own property. However, the Committee recognises that there are many legitimate PBOs that are not registered. Hence, in Clause 8(q) provision is made for the properties of PBOs generally, whether registered or not, to be recognised as a category. In terms of this latter provision, municipalities should consider the effects of rates policies on the unregistered PBOs, should they provide adequate evidence of their public benefit activities.
-
The Bill specifically excludes properties in part or whole from being subjected to property rates. For example, the first R15 000 of all residential properties and 30% of the value of public service infrastructure are excluded from rates. Land reform beneficiaries are also excluded from rates for a 10- year period, and thereafter their rates have to be phased in over three years. This represents revenue foregone by municipalities. The Committee believes that the national government should, over time, consider this when deciding on the allocation of money to local government from the national fiscus.
-
The Bill represents a significant shift from the current property rates regime. The Committee urges the Department and SALGA to embark on a massive public education programme on the content and implications of this Bill. Many municipalities do not have the capacity to implement this Bill. The Department and SALGA will have to give considerable attention to this. The Committee would like the Department to give a report on its progress in this regard by the end of this year.
-
Ultimately, decisions about levying rates resides with municipalities. This Bill will bring into effect a significantly new system of property rates. As with much else of the new local government system, the new property rates system has to be phased in appropriately through consultation with a range of stakeholders. The Committee has sought to strike a series of balances between the needs of municipalities and a range of key stakeholders. We have also provided for the phasing in of aspects of the new property rates system. Municipalities are urged to exercise their power to levy rates both in the spirit and letter of the law. The Department and SALGA have a crucial role to play in this regard - and we urge them to do so. Members of our Committee and MPs generally can also play a role - and we must do so.
- The Committee expresses appreciation for the manner in which a range of stakeholders interacted with us in finalising the Bill. The Committee also expresses its sincere appreciation to Ms Jackie Manche, Mr Mizilikazi Manyike, Dr Peter Vaz, Mr Gerrit Grové, Mr Joe Dube and Dr Petra Bouwer of the Department, and Mr Ben Dorfling and Ms Shiva Makotoko of SALGA, for the considerable work they did in processing the Bill through their interaction with the Committee and many stakeholders. The Committee also acknowledges the assistance of Mr Nico McLachlan and Ms Zora Ebrahim of Organisation Development Africa.
- The Property Rates Bill is certainly the most technically
challenging Bill the Committee has had to deal with since
Report to be considered.