National Assembly - 03 November 2004
WEDNESDAY, 3 NOVEMBER 2004 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 15:01.
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.
The CHIEF WHIP OF THE OPPOSITION: Madam Speaker, I rise on a point of order. [Interjections.]
The SPEAKER: If you don’t mind my just indicating what order is before the House, then we can deal with your point of order.
The CHIEF WHIP OF THE OPPOSITION: Madam Speaker, are you suggesting that I should stand up a little later? Will you advise me when you wish to hear me?
The SPEAKER: Half a minute from now. Hon members, the first item on the Order Paper are Questions to the Deputy President. Members are reminded that they may press the “to talk” button at their desks if they wish to ask a supplementary question. I need to remind hon members that we are allowed only four supplementary questions and if, within your one minute, you first want to make a speech, you are likely to forego the opportunity to ask a further question. I find that sometimes members first make speeches and then they still wish to ask a question as well. Be very careful of how far you can stretch your one minute for a supplementary question. I will now take the point of order from the hon Gibson.
The CHIEF WHIP OF THE OPPOSITION: Thank you, Madam Speaker. The point of order relates to the question paper for today. The Speaker wrote a letter to the hon Ms Taljaard yesterday, stating that the sub judice rule was applicable to question 11 on the Order Paper. It was out of order. Before you rule formally on the matter, I would ask to address you and say that I would respectfully disagree with the Speaker’s decision, if you were to rule that Ms Taljaard’s question is out of order on the basis of it contravening the sub judice rule.
The Deputy President is not an accused and he is not a witness in the trial of Mr Shaik. In particular, there is no judicial decision pending about the Deputy President’s reply to question 110 of 13 March 2003. There is also no judicial decision pending concerning the Parliamentary ethics committee hearing in 2003. The sub judice rule was introduced to prevent undue influence of jury members. We do not have jury trials. The Rule as we have in our guide to procedure quotes the Rule and says: This is a restriction, which the House imposes on itself in order to avoid debate, which could involve substantial danger of prejudice to proceedings before a court. The rule must also now be interpreted as in the light of the protection to freedom of expression in our Constitution. This was exactly the subject of a Constitutional Court judgement in the State versus Mamobolo, where Kriegler, J limited the rule to cases where:
The offending conduct viewed contextually really was likely to damage
the administration of justice.
The SPEAKER: Order! Hon Gibson, I’d like you just to summarise your point and rather submit the document that you are reading from. Really, the item is actually not what we are dealing with at the moment, and I’d like to be able to proceed. Just wrap up.
The CHIEF WHIP OF THE OPPOSITION: Madam Speaker, this is a summary of the points and I am referring to Judge Sachs who preferred a stricter test by saying that:
It must be likely to have an impact of a sufficiently serious and
substantial nature to pose a real and direct threat to the
administration of justice.
If the highest court in the land applies the rule in that way, there seems to be no reason why Parliament should go way beyond that and accept a qualification which, really, is much more restrictive than that of the Constitutional Court.
From a practical point of view, by ruling the matter to be sub judice, and the question to be out of order, the Speaker is in fact denying the Deputy President the opportunity of clearing his name. [Interjections.] There is a constant complaint…
The SPEAKER: Hon Gibson, please wrap up.
The CHIEF WHIP OF THE OPPOSITION: I am wrapping up, Madam Speaker.
The SPEAKER: Order! I have given the hon member an opportunity and I’d just like him to wrap up.
The CHIEF WHIP OF THE OPPOSITION: Today provides the perfect opportunity for the Deputy President to tell the public the facts, without in any way affecting the outcome of the Shaikh trial, to which he is not a party. If the Deputy President told Parliament itself or the ethics committee the truth, then his answer today to part 1 would be, no. And his answer to part (b) would also be, no. I therefore ask you on the basis of law and the basis of practicality to reconsider the point, before you make a ruling. [Applause.]
The SPEAKER: Hon Gibson, the Office of the Speaker very carefully considered the issue of the question posed by hon Taljaard. Hon members, I would not like to have an argument with you. That is the last thing I’d like this House, that is, a debate between you and I. I have given hon Gibson an opportunity to make his point and I am responding. I’d like you to give me the respect that I expect from any other member of the House.
Hon Gibson, I have considered this issue very carefully. The basis of my letter to the hon Taljaard is Rule 67 of the National Assembly, which is a self-imposed rule by this House, in order for this House to be able to work with the courts of this land on the basis of mutual respect and thus allowing the courts the space to do their work. The question actually not only just generally refers to the trial, in fact, it specifically mentions a company and evidence that is arising from the trial. Although the Deputy President is not the person who is on trial, the information dealt with in the substance of the question, however, is something that is before the court, pending a decision. On that basis I have ruled that question out of order. That ruling stands and I would now like us to proceed. [Applause.][Interjections.]
RULING
The DEPUTY SPEAKER: Hon members, before we proceed with the business of the House, I’d like to deal with an outstanding ruling. On 14 September, during a debate on black economic empowerment, Mr Douglas Gibson raised a point of order concerning remarks made by the hon Deputy Minister of Minerals and Energy, hon L M Xingwana, with reference to the hon Dr Nkem-Abonta. In his intervention Mr Gibson contended that the Deputy Minister’s remarks amounted to xenophobia. After having had the opportunity to study the Hansard, I have to rule as follows. The Deputy Minister in responding to Dr Nkem-Abonta said:
I do think that the millions of black people who are suffering and who
are poor where he comes from, need him.
Xenophobia is defined as the hatred or fear of foreigners. The Deputy Minister’s reference to “where he comes from” does not suggest either. A mere reference to a member’s country of origin, when it is not South Africa, in itself is of no consequence, as the hon Gibson himself commented when he raised his point of order. That being the case, I cannot agree that the Deputy Minister’s remarks amounted to xenophobia. However, she went on to say:
And I do think that he should not have run away. This is personally disparaging of the hon member, and therefore unparliamentary. I therefore ask the hon Deputy Minister to withdraw that remark.
The DEPUTY MINISTER OF MINERALS AND ENERGY: Thank you, Madam Speaker.
Mama uSomlomo, bendingamazi umfowethu lo ukuba uvela phi. Bendisoloko ndicinga ukuba uvela eMqanduli, kwanokuba akasagoduki ngexa abantu phaya besidinga ngolona hlobo. Kungoko ke ndithe: “Masingabaleki madoda”.
Thina phaya ekhaya sinephulo lokunceda kwiindawo esisuka kuzo, elikhuthaza ukuba thina balapha eRhawutini masiqokelele iisenti sihambe siye kutyala phaya.(Translation of isiXhosa paragraph follows.)
[Madam Speaker, I didn’t know where my brother came from. I have always been under the impression that he is from Mqanduli, and that he has not been back home at a time when the people needed him there the most. Therefore it was in that context that I said: “Let’s not run away, man.”
Back home we have a plough back campaign, which encourages those of us who are in Gauteng to send home some money.]
Mr M J ELLIS: Madam Deputy Speaker, on a point of order…
The DEPUTY MINISTER OF MINERALS AND ENERGY: If that was any problem, I withdraw it, Madam Speaker.
Mr M J ELLIS: Madam Deputy Speaker that is fine. The Deputy Minister has withdrawn it, but quite frankly, you asked her simply to withdraw the remark. You did not give her an opportunity to make a long speech like that. And that was my point of order.
The DEPUTY SPEAKER: She was clarifying the context to the House and that is why I allowed her. She was just at the point where she wanted to withdraw the remark, when you stood up. She has now withdrawn it. It is actually unconditional. Thank you, Deputy Minister. [Applause.] And thank you for responding at such short notice when we called you to give us an opportunity to deal with the ruling.
NOTICES OF MOTION
Adv Z L MADASA: Deputy Speaker, I hereby give notice that on the next sitting day of the House, I shall move on behalf of the ACDP:
That the House –
Should hold a debate on whether the size of this National Assembly
should not in future be reduced from its current membership to ensure
efficient, quality debates, cost-serving and better working conditions
for members of Parliament.
Thank you [Interjections.]
Mr K D S DURR: Deputy Speaker, I give notice that at the next sitting of the House, that I shall move:
That the House - notes that –
(1) heritage tourism can be described as the use of the built,
natural and cultural environment for tourism purposes;
(2) it may have its roots in prehistory, in legends, in our colonial
and dominion periods as well as in post-colonial and current history;
(3) collectively, it provides tourist attractions to enrich the fabric of a visit to South Africa, and to provide sustainable methods of preserving our culture that visitors can relate to;
(4) the House thus calls upon the government and the Department of Environmental Affairs and Tourism in association with Department of Arts and Culture to create an umbrella body that will seek to promote heritage tourism in its widest sense as a locomotive to tourism growth in South Africa in all its richness and complexity.
I thank you.
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF PROTOCOL OF THE COURT OF JUSTICE OF THE AFRICAN UNION
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND
CONSTITUTIONAL DEVELOPMENT – PROTOCOL OF THE COURT OF JUSTICE OF THE
AFRICAN UNION
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF NOTICE FOR
DESIGNATION OF THE UNITED KINGDOM IN TERMS OF SECTION 2(4) OF CROSS-
BORDER INSOLVENCY ACT
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF TREATY BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE REPUBLIC OF INDIA ON EXTRADITION
CONSIDERATION OF REQUEST FOR APPROVAL BY PARLIAMENT OF TREATY BETWEEN THE GOVERNMENT OF REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE REPUBLIC OF INDIA ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Ms F I CHOHAN-KHOTA: Chairperson, thank you very much. May I just take the opportunity of quickly welcoming the new face at the table, Mr Michael Plaatjies. I trust that his stay here is going to be rather enjoyable. We have today three protocols, as well as designation in terms of the Cross- Border Insolvency Act, which I hope to deal with in five minutes.
In terms of section 5(1)(d) of the Constitutive Act of the African Union, one of the organs of the AU is the Court of Justice. The Protocol before the House, by and large, establishes the court and defines its composition, functions and powers. The court will have jurisdiction over, inter alia over, all disputes arising from the Constitutive Act, the interpretation, as well as the application of the Act, as well as all union treaties and subsidiary instruments adopted by member states, as well as any question of international law.
In addition section 19(2) allows the Assembly of the African Union to confer on the courts power to assume jurisdiction over any dispute other than those already mentioned.
The House will recall the protocol on the establishment of the African Court on Human and People’s Rights, which was ratified a few months ago and which has jurisdiction over human rights matters arising from the various human rights protocols.
In the report of the committee, which is the second matter to be considered today, the committee makes the point that there is a potential overlap of areas of jurisdiction of the two courts. We note, however, that neither court can assume appeal jurisdiction over the court and therefore recommend that, as these courts both operate in the public international sphere, any request by parties other than public international law subjects to submit cases before these courts in question first be approved by Parliament before they can be granted permission to do so. This is not an unusual resolution of the House, Chairperson, because we have sanctioned such a measure before when we ratified the protocol on the establishment of the African Court on Human People’s Rights.
The next matter is the designation of the UK in terms of the Cross- Border Insolvency Act. Here section 2(11)(b) of the Cross Border Insolvency Act provides that the Minister for Justice and Constitutional Development may only designate a foreign state if she is satisfied that the laws of the foreign state as they relate to proceedings under South African and insolvency law justifies the application of the Act to foreign proceedings in such state. In this case the mutuality provided by the British law is considered sufficiently reciprocal to justify designating the UK as the first country so designated in terms of this law. No doubt more such countries will be designated in order to obtain full expression of the intention of this House at the time when the Cross-Border Insolvency Act was passed.
Finally there are the mutual legal assistance treaty and the extradition treaty before the House. South Africa has mutual legal assistance treaties in criminal matters with the following countries: Canada, the US, Lesotho, Egypt, Algeria, Nigeria, France and China. Should the House concur with the committee’s recommendations on the mutual legal assistance treaty and the extradition treaty before us today, the Republic of India will be added to this list in a historic event that will consolidate and formalise the mutual co-operative relationship that has existed between these two countries for a long time.
Speaker, I move that the House approves the protocols and approves the report of the committee as they appear on the Order Paper. Thank you. [Applause.]
There was no debate.
Protocol of the Court of Justice of the African Union approved.
Report of Portfolio Committee on Justice and Constitutional Development – Protocol of the Court of Justice of the African Union adopted.
Notice for Designation of United Kingdom in terms of section 2(4) of Cross- Border Insolvency Act approved.
Treaty between the Government of the Republic of South Africa and Government of the Republic of India on Extradition approved.
Treaty between the Government of the Republic of South Africa and the Government of the Republic of India on Mutual Legal Assistance in Criminal Matters approved.
The House adjourned at 17:23. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
ANNOUNCEMENTS
National Assembly
- Membership of Committees
(1) Ms B A Hogan has been elected Chairperson of the Ad Hoc Committee
on Auditor-General with effect from 3 November 2004.
- Messages from National Council of Provinces to National Assembly in respect of Bills passed by Council and transmitted to Assembly:
(1) Bill passed by National Council of Provinces on 2 November 2004
and transmitted for concurrence:
(i) Sterilisation Amendment Bill [B 12B - 2004] (National
Council of Provinces - sec 76).
The Bill has been referred to the Portfolio Committee on Health of
the National Assembly.
Note: The Announcements, Tablings and Committee Reports of 2
November 2004 (p 1063) incorrectly stated that this Bill had been
passed by the "National Assembly" on 2 November 2004.
- 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 Portfolio Committee on
Health for consideration and report:
(a) World Health Organisation (WHO) Framework Convention on
Tobacco Control, tabled in terms of section 231(2) of the
Constitution, 1996.
(b) Explanatory Memorandum on the World Health Organisation
(WHO) Framework Convention on Tobacco Control.
COMMITTEE REPORTS
National Assembly
CREDA PLEASE INSERT - Insert No 1 from ATC1103e