National Council of Provinces - 24 February 2004
TUESDAY, 24 FEBRUARY 2004 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
_____
The Council met at 14:00.
The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
Mr K D S DURR: Chairperson, I give notice that at the next sitting of this House I will move:
That the Council -
(1) notes the ANC Government’s court appeal against the building of the Israeli antiterrorist wall, built to protect its citizens; (2) also notes that it is strange that never at any stage over the years can we find any record of the ANC or the SA Communist Party objecting to the building (and existence) of the Berlin wall built by the East German government;
(3) further notes that it will only be possible for South Africa to play any effective and credible role in the Middle East peace process if we are neutral, impartial and trusted by both the parties concerned, in a spirit of reconciliation;
(4) also takes note of the embarrassment and distress of the ACDP at this hostile partial treatment being meted out to a friendly government in good standing;
(5) also notes that Israel is not in our primary sphere of influence and is of the view that nothing can be more calculated to cut across and damage our real national economic interests than this intervention in the International Court of Justice;
(6) calls upon the Department of Foreign Affairs to stop this damaging diplomatic adventurism as evidenced by this action, and by injecting our President into the Haitian maelstrom recently.
SUCCESSFUL MULTILINGUALISM CONFERENCE HOSTED BY PARLIAMENT
(Draft Resolution)
Mnr P A MATTHEE: Voorsitter, ek stel sonder kennisgewing voor:
Dat die Raad -
(1) kennis neem van die uiters geslaagde veeltaligheidskonferensie wat die Parlement gister aangebied het;
(2) voorts daarvan kennis neem dat dit die eerste taalkonferensie is waar so baie politici die geleentheid gekry het om met die Departement van Kuns en Kultuur, PanSAT en taalkenners in gesprek te tree;
(3) die sprekers uit die Nasionale Raad van Provinsies wat deelgeneem het aan die konferensie gelukwens, by name die Voorsitter, mev Naledi Pandor, die Ondervoorsitter, mnr M J Mahlangu, mnr Adriaan van Niekerk, die NNP se Taalombudsman, en mnr Dawie Kgware, die voorsitter van die betrokke gekose komitee;
4) sy misnoeë uitspreek daaroor dat sekere opposisiepartye nie deel van
sy geskiedkundige konferensie wou wees nie. (Translation of Afrikaans notice of motion follows.)
[Mr P A Matthee: Chairperson, I move without notice:
That the Council -
(1) notes the highly successful conference on multilingualism presented by Parliament yesterday;
(2) further notes that this was the first language conference at which so many politicians had the opportunity to have discussions with the Department of Arts and Culture, PanSALB and language experts;
(3) congratulates the speakers from the National Council of Provinces who participated in the conference, namely the Chairperson, Mrs Naledi Pandor, the Deputy Chairperson, Mr M J Mahlangu, Mr Adriaan van Niekerk, the New NP’s Language Ombudsman, and Mr Dawie Kgware, the chairperson of the relevant select committee;
(4) expresses its dissatisfaction that certain opposition parties did not want to be part of the historic conference.] The CHAIRPERSON OF THE NCOP: Is there any objection to the motion? There is an objection. The motion will therefore become a notice of motion.
MEASURES TAKEN BY SA GOVERNMENT TO FIGHT CORRUPTION
(Draft Resolution)
Mrs E N LUBIDLA: Chairperson, I move without notice:
That the Council -
(1) acknowledges the various measures that have been implemented by the ANC-led Government to fight corruption;
(2) notes that -
(a) in 1997 the Government launched South Africa's National Anti-
Corruption Programme, which was soon followed by Public Service
and National Anti-Corruption Summits;
(b) late in 1999, the Government also co-hosted the 9th
International Anti-Corruption Conference;
(c) at the beginning of 2002, the Government adopted the Public
Service Anti-Corruption Strategy;
(3) further notes that other legislative and administrative measures include the establishment of constitutionally independent bodies such as the Public Protector, the enactment of the Protected Disclosures Act, the Prevention of Organised Crime Act, the Financial Intelligence Centre Act and the Public Finance Management Act, the passing of the Executive Members’ Ethics Act, the Code of Conduct for public servants and the creation of the Directorate of Special Operations; and
(4) believes these measures are clear signals of Government’s commitment to ensure a clean public administration system, encourage good governance, and promote greater openness, transparency and accountability.
Motion agreed to in accordance with section 65 of the Constitution.
CONGRATULATIONS TO MOZAMBIQUE ON NEW PRIME MINISTER, MADAME LUISA DIOGO
(Draft Resolution)
Rev M CHABAKU: Chairperson, I move without notice:
That the Council -
(1) applauds the Mozambican President, Joaquim Chissano, for swearing into office the country’s new prime minister, Madame Luisa Diogo;
(2) notes that this choice was supported by members of the government;
(3) further notes that - (a) she was deputy minister for ten years until the year 2000, when she became minister;
(b) she was also head of some committees responsible for reforms in
the country, especially in respect of finances;
(c) she introduces the value-added tax legislation in 1999 and has
initiated debt relief programmes - she reduced Mozambique's
world debt from an impossible $75 million to $25 million per
year;
(d) Mozambique has superseded democracies of decades and even of
centuries by having a woman as prime minister of the country;
and
(4) is of the view that Ms Diogo, who makes us proud as a woman leader, will do well in her leadership role as an African and as a woman.
Motion agreed to in accordance with section 65 of the Constitution.
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED
ACTIVITIES BILL
(Consideration of Bill)
The MINISTER OF SAFETY AND SECURITY: Thank you, Chairperson and hon members. The Bill has come a long way, from the SA Law Reform Commission processes to 14 November 2002, when it was tabled in the National Assembly. Part of its history includes the extensive consultation process and public hearings that the portfolio committee conducted, during which many people and organisations made important submissions.
The consideration of the Bill by the Select Committee for Safety and Constitutional Affairs was a further consolidation of the desire to produce legislation that would redound to the best practice of our constitutional democracy. The select committee used it as a guide in dealing with all expert opinions on the basis of our Constitution and from the perspective of international humanitarian law. The committee also proposed the adoption of a number of amendments, which would bring about corrections and improvements in the text of the Bill and which are not of a policy nature.
The processes I have referred to are the bedrock of a working democracy and should be entrenched in our legislative system. Piloting the Bill through this House at the end of the long road behind us speaks to the methodology of lawmaking that we have developed, where people from different backgrounds, politically, socially and economically, bring independent and different perspectives into the process of legislation.
Over a period of more than a year, Parliament has adopted instruments to comply with our international obligations, but the Republic has not acceded to or ratified the Maritime Navigation Convention, the Protection of Nuclear Material and the convention leading to fixed platforms. The Bill under review today paves the way to ratifying the three conventions, and will put in place the final building block in the legislative framework of the Republic to combat terrorism internationally as well as within our borders.
The Bill refers, also, to all offences regarding international terrorism, in keeping with the relevant conventions, as well as the general offence of terrorism. It provides for criminal and civil asset forfeiture in respect of specified offences, the extra-territorial jurisdiction required specifically by the terrorist bombing conventions, the African Union Convention on the Prevention and Combating of Terrorism and the Terrorist Financing Convention. It also provides for offences relating to the financing of terrorist activities, a wider provision allowing search and seizure and cordoning off to prevent and investigate terrorist activities.
The President is authorised to publish, in the Gazette, the names of individuals and institutions connected to terrorist and related activities, as identified by the United Nations Security Council, and provides for parliamentary oversight in this regard. Investigative procedures similar to those prescribed in the Prevention of Organised Crime Act are provided for in the Bill, in order to investigate terrorist and related activities.
It should be noted that the Bill is an omnibus in that it also effects amendments to legislation, such as the Financial Intelligence Centre Act, which prescribes the reporting of transactions relating to terrorist activities; the Prevention of Organised Crime Act, which provides for civil forfeiture in respect of property relating to terrorist activities; the Extradition Act, which does away with the political exception in respect of terrorist activities; the Nuclear Energy Act, which creates the offence of the criminal use of nuclear materials; the Non-Proliferation of Weapons of Mass Destruction Act, to provide for an offence relating to weapons of mass destruction; the Criminal Law Amendment Act of 1997, for prescribed sentences, and the interception legislation, to provide for the interception of communications relating to the most serious offences in the Bill.
Furthermore, the Bill criminalises hoaxes and provides for an order by the court for the payment of fruitless expenses for relevant operational action.
Allow me to emphasise, therefore, that all prosecution may be instituted in terms of the Bill, without the written authorisation of the National Director of Public Prosecutions. The Bill makes it obligatory on the part of the National Director of Public Prosecutions to report to the United Nations and other international institutions on prosecutions or refusal to prosecute civil, aviation and maritime navigation crimes.
Provision is also made for adequate penalties to suit the seriousness of the offences in question. The Bill also provides for transitional measures to ensure the continuity of existing terrorist trials. I move, therefore, that the Council adopt the report of the select committee on the Protection of Constitutional Democracy Against Terrorist and Related Activities Bill, 2003. Thank you. [Applause.]
Mr B J MKHALIPHI: Thank you very much, hon Chairperson. Hon Minister and colleagues, since our country became a legitimate member of the community of nations in 1994, it had to commit itself to obligations of international instruments, dealing amongst others with terrorist and related activities. We have already become party to 13 such instruments of the United Nations. These instruments bind all member states of the United Nations, as Security Council Resolution 1373 of 2001 ratified these instruments.
There are three remaining instruments that we still have to ratify. After ratification of those three instruments, and the passing of this Bill, we could indeed say that the legal framework to deal with terrorist and related activities is in place in this country.
We are dealing here with a crucial domestic law which, on the one hand, is informed by our experiences and needs while, on the other, has to pass the acid test of a constitutional democracy and its international obligations.
The true nature of a state, it can be argued, is mainly portrayed by its
legislation on serious and sensitive matters like this one we are dealing
with. There are some countries, for instance, who would like to make us
believe that they are models of democracy, but their legislation on such
matters are draconian and, therefore, serve to narrow their frontiers of
freedom. We therefore need to commend the drafters, as well as our
colleagues, for successfully dealing with this hurdle and particularly how
they avoided the pitfall of resorting to a narrow definition of the term
terrorism''. Therefore, in this Bill we refer toterrorist and related
activities’’.
The Bill sets out further offences which, if committed, will constitute terrorist and related activities. The hon Minister has already indicated these offences. Penalties for these crimes are accordingly severe. We are talking here of prison terms ranging from five to fifteen years or fines ranging from R250 000 to R100 million.
Since the act of terrorism and associated activities are serious offences, checks and balances are in place to ensure that those who are convicted of these heinous crimes are treated fairly in terms of the law. Notification by the President of certain entities that are in conflict of Chapter 7 of the Charter of the United Nations is one of those checks. The President does so by way of a proclamation. Such a proclamation is tabled in Parliament for consideration and decision.
As I have stated earlier on, we are dealing here with a domestic law, informed by international instruments, to fight and convict the heinous crime of terrorism. But I could not help myself when looking at the short long title of the Bill, and it refers only to protection. I am informed that many of these instruments I have referred to are contained in our initiative in Nepad, and Nepad has more to do with promoting good governance, democracy and transparency. And therefore, as the ANC, ever since and even during the times of the armed struggle, we have been known for having some special place for those countries who are not really a democracy. And therefore one would have liked to see here not only protection, but promotion of a constitutional democracy in the entire world.
We, as the ANC, wholeheartedly support this Bill. I thank you. [Applause.]
Mnr P A MATTHEE: Voorsitter, die Suid-Afrikaanse Regshervormingskommissie het op versoek van die Minister vir Veiligheid en Sekuriteit ons wetgewing ten opsigte van terrorisme volledig in heroënskou geneem en ‘n baie volledige en omvattende verslag uitgebring.
Uit dié verslag het geblyk dat daar behoefte was aan nuwe wetgewing om effektief te handel met die voorkoming, die ondersoek en bekamping van terroristiese en aanverwante aktiwiteite, beide van nasionale en internasionale aard en karakter.
Ek dink dit is ook gepas dat ons in hierdie stadium hulde bring aan daardie regsgeleerdes wat so ‘n omvattende studie gedoen het, wat op beide nasionale en internasionale vlak na die hele situasie gekyk het en met werklik goeie aanbevelings vorendag gekom het, waaruit hierdie wetsontwerp dan voortgespruit het.
Soos die Minister aangedui het, het Suid-Afrika se internasionale en streeksverpligtinge toegeneem as gevolg van die internasionale instrumente met betrekking tot terroristiese en aanverwante aktiwiteite, waarvan ons die meeste reeds geratifiseer het. Maar, soos aangedui deur die Minister, is daar sommige wat ons nog moet ratifiseer om die prentjie te voltooi. Maar in die besonder is daar ook dié resolusies van die Veiligheidsraad van die Verenigde Nasies wat spesifieke wetgewing om terroristiese bedrywighede te bekamp, noodsaak, sodat daar voorsiening gemaak kan word vir maatreëls ten opsigte van jurisdiksie, die bekamping van die finansiering van terrorisme, wat ‘n baie groot en komplekse probleem is, en die daarstelling van spesifieke misdrywe. Ons sal vonnisse moet daarstel, wat, soos die vorige agb spreker aangedui het, die ernstige aard van dié misdade weerspieël en in sommige gevalle selfs lewenslange gevangenisstraf vir sekere van die misdade daarstel.
Hierdie wetsontwerp sal Suid-Afrika nou in staat stel om sy verpligtinge na te kom as ‘n belangrike globale rolspeler op die wêreldtoneel. Hierdie wetsontwerp sal ook as ‘n afskrikmiddel kan dien vir enige persoon wat daaraan sou dink om hom of haar hier in Suid-Afrika aan terroristiese bedrywighede skuldig te maak of om selfs te simpatiseer met terroriste. Dit sou ook ‘n effektiewe instrument in die hande van ons polisie en ons hele strafregstelsel daarstel om ons jong demokrasie effektief te beskerm.
Ek wil ook graag tydens hierdie geleentheid hulde bring aan ons polisie, ons veiligheidsmagte, maar ook ons intelligensiepersoneel, wat soms dag en nag werk om seker te maak dat ons veilig is. Wanneer ons in die aand gaan slaap, dan opereer hulle onder soms baie gevaarlike omstandighede en ek dink dat hulle nie genoegsaam ons dank en hulde kry vir daardie uiters belangrike werk wat hulle vir ons doen nie.
Ons is ‘n vreedsame nasie wat, soos dit ook in ons Grondwet uitgespel word, wêreldvrede nastreef en in vrede wil leef met al ons bure en alle ander nasies. Maar die prys van vryheid, van vrede, soos daar al gesê is, is ewigdurende waaksaamheid. (Translation of Afrikaans paragraphs follows.)
[Mr P A MATTHEE: Chairperson, at the request of the Minister for Safety and Security the South African Law Reform Commission revised our legislation on terrorism fully and published a very complete and comprehensive report.
From this report it became clear that there was a need for new legislation to deal effectively with the prevention, investigation and combating of terrorist and related activities, of national as well as international nature and character.
I think it is also appropriate for us to pay tribute at this stage to those lawyers who undertook such a comprehensive study, who looked at the whole situation at national as well as international level and came forward with really good recommendations, from which this Bill then originated.
As the Minister indicated, South Africa’s international and regional obligations have increased as a result of the international instruments with regard to terrorist and related activities, most of which we have already ratified. But, as indicated by the Minister, there are some we still have to ratify to complete the picture. But, in particular, there are also those resolutions of the Security Council of the United Nations which necessitate specific legislation to combat terrorist activities so that provision can be made for measures with regard to jurisdiction, the combating of the financing of terrorism, which is a very large and complex problem, and the establishment of specific offences. We shall have to introduce sentences which, as the previous speaker has indicated, reflect the serious nature of these crimes and in some cases even introduce life imprisonment for some of the crimes.
This Bill will now enable South Africa to fulfil its obligations as an important global role-player on the world scene. This Bill could also act as deterrent to anyone considering committing terrorist acts here in South Africa or even sympathising with terrorists. It will also create an effective instrument in the hands of our police and our entire criminal justice system to protect our young democracy effectively.
On this occasion I would also like to pay tribute to our police, our security forces, but also to our intelligence personnel who sometimes work night and day to ensure that we are safe. When we go to bed at night, they operate under circumstances which are sometimes very dangerous, and in my opinion they do not receive adequate thanks and recognition for this extremely important work they do for us.
We are a peaceful nation, as is also spelled out in our Constitution, striving towards world peace and wanting to live in peace with all our neighbours and all other nations. But the price of freedom, of peace, as has been said before, is eternal vigilance.]
The price of freedom is eternal vigilance.
En dit is my hoop dat hierdie wetgewing ons in staat sal stel om te alle tye daardie waaksaamheid daar te hê, sodat ons kan weet - en dat enigeen kan weet wat enigsins sou dink om in ons land die dinge te doen wat ons gesien het reeds in soveel dele van die wêreld gebeur - dat alhoewel ons ‘n vreedsame nasie is, ons effektief sal optree teen enige een wat ons staat, ons veiligheid en ons demokrasie bedreig. Ek dank u. Ons steun graag hierdie wetgewing. [Applous.] (Translation of Afrikaans paragraphs follows.)
[And it is my hope that this legislation will enable us to have that vigilance in place at all times so that we can know - and so that anyone who would even remotely consider doing in our country those things we have already seen happening in so many parts of the world can know - that although we are a peaceful nation, we will act effectively against anyone who threatens our state, our safety and our democracy.
I thank you. It is a pleasure for us to support this legislation. [Applause.]]
Mr L G LEVER: Chairperson, the challenge in this piece of legislation was to be, on the one hand, effective in the fight against terrorism and, on the other hand, to preserve our constitutional values such as freedom of speech, freedom of association and the associated freedoms. This is not an easy task. I would like to quote Jody Kollapan who, I think, captures the task we were faced with in drawing up this piece of legislation. He says: “The promotion and protection of human rights is central to an effective strategy to counter terrorism.” Inherent in this statement are two important and interrelated dimensions: Firstly, the need to ensure that measures designed to combat terrorism do not impermissibly limit human rights and fundamental freedoms and, secondly, the recognition that terrorism puts under threat the full enjoyment of civil liberties and human rights. I think we needed to bear that in mind and I think we did so when we drew up and considered this piece of legislation.
I wish to refer to another phenomenon about this piece of legislation. With regard to this piece of legislation, I received the most personal communications to myself as a lawmaker, lobbying me to either do this or do that, and it makes me proud as a South African citizen and a lawmaker in this House, that our citizens actually take to heart the virtue of a participatory democracy and actually come and quote sections of the Constitution and the Bill of Rights and say there is a danger of this or there is a danger of that and these lobbyists, I am afraid, do fall into different categories. There are those who perhaps saw the first draft of the Bill and thought that we in Parliament, through the portfolio committee and the select committee, had not listened to a single submission, had not changed a single thing and that the Bill was as it was first published. Now what I say to these people, not to discourage them, but to be more involved, is that there are resources you could use. We have a parliamentary website and the parliamentary monitoring group would afford you with summaries of all the debates and the changes that take place as they develop, because I think, for our democracy to really take root, it needs to be owned by the people and they must feel that they can actually lobby us and convince us of their point of view. And the reason I take my time to actually mention and laud these people is because what they are doing is taking the democratic approach to changing the law.
This Act is designed to deal with those people who refuse to deal with democracy and those people who have no respect for democracy. We need to be pragmatic. We also need to be sensible, and this is where the hon Minister will have a difficult task in applying this law, bearing in mind our constitutional virtues, because it must be applied. I am sure it will be applied with those constitutional virtues in the forefront of any application of this Act.
There were others who were more sophisticated in lobbying us, who did follow the debate, but then again also did not keep themselves abreast of parliamentary procedure. For instance, I am sure that other colleagues of mine in the committee received representations this morning and, frankly, this is simply too late. The committee has voted on this issue. Although we read them to show that we take these things seriously, we can not do anything about it now. I must say that under the leadership of the hon Kgoshi Mokoena, the chairperson of the select committee, we allowed representations in the committee up to the very last moment and we will do so wherever possible. We will always accommodate, we may not be able to hear oral evidence, but we will always allow persons to present, especially if they are written, submissions and they are given timeously. Regarding some of the amendments that were made at the last minute, I was unable to attend the last meeting and I have reservations about one specifically in section 1(3) where the word ``lawful’’ was removed. It does not affect the fact that my party and I still support the Bill, but I just need to express my reservations in that regard.
It remains only for me to say that there are difficulties. There will always be challenges in this form of legislation and I feel the main challenge will obviously be in its application. The Democratic Alliance supports this legislation. [Applause.]
Mrs E N LUBIDLA: Thank you, Chair. I also join my colleagues in commending the draft. This Bill, strongly supported by the ANC since its inception, is a product of long deliberation with inputs from a wide range of stakeholders. The result is a Bill that will not only pass constitutional muster, but one which meets South Africa’s national security needs and our international obligations under the UN treaties and protocols on the combating of terrorism that the country is party to.
September 11, 2001 marked a day in world history that will be remembered for one of the most chilling acts of terror in the 21st century. Many nations lost their citizens alongside the more than 5 000 US citizens. South Africa lost one citizen, Mr Nick Rowe. Terrorist attacks have threatened the safety and security of ordinary South African citizens, such as women and children, within the borders of our country. In July 2001, the Institute for Security Studies summarised the threat that terrorist acts held for South Africans as followed:
After mid-1996 the motive for some acts of violence in the form of bombings, drive-by shootings and assassinations changed. It would appear that the violence was no longer solely committed by gangs battling for territory and markets, or by vigilantes in their attempts to eliminate suspected drug dealers. This new violence sought to create a climate of fear and terror among the citizens of Cape Town. Moreover, after mid- 1998, bomb attacks and assassinations occurred not only in the gang- ravaged areas of the Cape Flats but also in the city centre and tourist destinations of Cape Town itself. The violence increasingly began to target the state in the form of police stations, courts and personnel of the justice system, as well as popular tourist and entertainment areas, restaurants and Cape Town International Airport.
Compared to the criminally motivated crime and violence in South Africa, these acts of terrorism exacted, mercifully, few victims. The two dozen bomb blasts that occurred in Cape Town between mid-1998 and the end of the year 2000 caused five fatalities, of which two involved the suspected bombers themselves and about 120 injuries.
The impact of terrorism should, however, not be measured in terms of its actual victims. Terrorism seeks to achieve precisely what the term implies: terror. With the right publicity, one bomb brutally mutilating an unlucky restaurant patron instils more fear and insecurity in the general public than the 70 murders recorded on an average day.
More recently, in 2002, there were two more acts of domestic terrorism in South Africa. A series of bombings in Soweto in late October of that year killed one and wounded another, and in mid-November 2002, a pipe bomb exploded at the Serious Violent Crimes Police Unit in Cape Town, but no injuries occurred.
Apart from this overwhelming evidence that South Africa faces terrorist threats, albeit in varying degrees and from various quarters, the far- reaching impact of these terrorist threats is yet another reason why South Africa should embrace this Bill. The Institute for Security Studies, in their July 2001 study, summarised some of the potential and real threats that terrorism holds apart from severely eroding the safety and security of our people as follows:
In an interconnected world, pictures of terrorists are flashed across television screens across the globe. This detrimentally affects investors’ confidence in the victimised country, something a developing country such as South Africa can ill afford. Terrorist acts can also have a significant impact on tourism, a lucrative industry for many developing countries. Cape Town is South Africa’s premier tourist destination for hard currency visitors from Western Europe and North America. The tourist market is sensitive, and indications of terrorist activities in a country quickly lead to cancellations. In Cape Town’s case, this has serious repercussions for the local economy and employment levels. It is estimated that one job is created for every eight foreign tourists who spend their money in the country.
During the past 10 years of democracy, the ANC-led Government dealt with the spectre of terrorism, predominantly in three respects, in the areas highlighted above: urban terrorism, right-wing terrorism and international terrorism. The adoption of this Bill forms an essential part of an integrated and comprehensive approach to combating terrorism within our borders.
The Government of South Africa was not pressurised by the international powers, as some would like to believe, into adopting a comprehensive and thorough approach to the combating of terrorist acts. Neither did the Government go about this process with undue haste. On the contrary, the Bill that is before us today is a result of more than seven years of thorough investigation and deliberation. The first response from Government was, in November 1995, to refer the review and possible rationalisation of the security legislation in South Africa to the South African Law Reform Commission for consideration and report.
The South African Law Reform Commission, on request of the Minister of Safety and Security, reviewed the Republic’s law in respect of terrorism. The report of the commission indicated the need for new legislation to effectively deal with the prevention, investigation and combating of terrorism. International and regional obligations arising from international instruments relating to terrorist and related activities … [Time expired.] [Applause.]
The MINISTER OF SAFETY AND SECURITY: Thank you, Chairperson. Speaking in this House, a while back, I reminded hon members about the functions that we have, which will help us in our interactions with our people, to indicate to them the instruments that are available to all South Africans from all walks of life, which are pointers towards a thorough growing democracy, which we are building. This Bill is one of the building blocks that are required to ensure that we consolidate our democracy.
I was doing this because it is absolutely necessary that we indicate the benefits that our democratic dispensation has brought to all of our people. Often, in my work, there are questions that people raise, that relate to things that ought to be known by many of them, in regard to how the police work.
I have said that, if you look at the entire spectrum of our democratic situation in South Africa, you will find that the building blocks that underpin that democracy will always ensure that people can use them as springboards for a better life, because with each piece of legislation that we have, you will find that there are concomitant structures and processes that ensure that, in the event that there is failure in terms of that legislation, there will be ways in which people can be lifted up to be assisted.
A case in point is when people complain to me, for instance, that the police are not responding to their cries either timeously or, at times, completely ignore those cries for help. But I say to them, we have an instrument that is available to the people to use, to ensure that that situation does not occur, and that instrument, I normally indicate, is the Secretariat for Safety and Security, because those people are charged with the responsibility to monitor and ensure that the members of the SA Police Service implement the laws that we have, relevant to their own function. When there are situations where police action results in injuries that are sustained by people, I say, even with regard to that, that we have the Independent Complaints Directorate that monitors such situations. In regard to this particular matter that we are dealing with today, there are so many levels which people can appeal to in the event that there is a violation of the principles that underpin that very democracy.
The first thing that people ought to be able to do, in the event that they believe that there has been a violation of their own human rights, in terms of this particular Bill, is to have recourse to our Constitution. Section 35 makes it abundantly clear what happens when any person has been detained. There are rights that people who are suspects, even at that level, enjoy. You should use the Constitution.
There are other instruments that people can use to ensure that there will not be any time in South Africa, for as long as we have the Constitution that we have, where people will use Bills like this particular one to undermine human rights in South Africa. As a country collectively, I believe, we are all committed to never ever repeating the mistakes of the past, not only as Government, but our population as a whole, particularly because the greater majority of our people are people who are peace-loving and law-abiding.
I do want to join all of you who have spoken so favourably about the Bill here and, like the hon Mr Lever, also extend appreciation to all the people who participated in bringing out a Bill of this nature, which is a very difficult piece of legislation, given, particularly, our past in South Africa. The way in which people sat down to discuss this particular Bill has been highly impressive and, indeed, the interventions and interactions that have been happening around this particular Bill indicate that our democracy is being consolidated.
This Bill also allows for people across the board, not only to talk about our situation here in South Africa, but to also look at what is happening internationally. This means that through the discussion of this Bill, the alertness of our people regarding international events was also raised and, therefore, their level of understanding of what is happening globally was highly enhanced.
I wish to thank everybody, therefore, who participated in formulating this Bill, all those who provided legal expertise, members of Parliament and members of the various committees of Parliament who contributed to the formulation of a Bill on a subject as difficult as terrorism. Thank you very much. [Applause.]
Debate concluded.
The CHAIRPERSON OF THE NCOP: That concludes the debate. I shall now put the question. The question is that the Bill, subject to the proposed amendments, be agreed to. Rule 63 allows political parties the opportunity to make their declarations of vote, if they wish to do so. Is there any party wishing to make a declaration of vote? There is none. We proceed, therefore, to voting. Those in favour say ``Aye’’.
HON MEMBERS: Aye!
The CHAIRPERSON OF THE NCOP: Those against, say ``No’’.
HON MEMBERS: No!
The CHAIRPERSON OF THE NCOP: The ``Ayes’’ have it.
The majority of members voted in favour. I therefore declare the Bill, subject to the proposed amendments, agreed to in accordance with section 75 of the Constitution. [Applause.]
PREVENTION AND COMBATING OF CORRUPT ACTIVITIES BILL
(Consideration of Bill)
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson and hon members, the South African Government is acutely aware that corruption undermines the basic principles and values enshrined in our Constitution. If unchecked, corruption has the potential to negate the many hard-won gains that our country has made over the past 10 years since the advent of our democracy in 1994. Corruption is an impediment to social and economic development, but its worst threat is that it impacts most adversely on the poor and marginalised. This is as true for our country as it is anywhere else in the world.
It is for these reasons that the Prevention and Combating of Corrupt Activities Bill comes before this House for consideration. The Bill, if passed, will replace the Corruption Act of 1992 and this new legislation represents Government’s efforts to articulate a broad strategy to combat corruption at all levels of our society.
The new legislation complements the rigorous array of anticorruption laws that already feature on our Statute Book. I am, of course, referring to the legislative instruments that include the Public Finance Management Act, the Promotion of Access to Information Act and the Protected Disclosures Act.
The Bill seeks to codify the offences of corruption and bribery and it will extend in its application from the offices of corrupt officials to the equally insidious corrupt activities that can and do occur in the corporate boardrooms of the private sector. The legislation also deals with the role of private capital as a source of public corruption and makes the point that it is as much the corruptor as the corrupted that deserve punishment.
The new legislation makes provision for the protection of witnesses from undue influence and places a duty on individuals holding positions of authority to report corrupt activity. This provision, in particular, ensures that senior management in Government, parastatals and the private sector can and will blow the whistle on graft. Failure to report corrupt activities carries a maximum penalty of 10 years’ imprisonment.
In response to the scourge of corruption, SADC heads of state and Government adopted the Southern African Development Community Protocol Against Corruption on 14 August 2001 at their Summit in Malawi. All 14 SADC heads of state and Government signed the protocol and in so doing demonstrated a clear political and regional commitment to addressing the problem of corruption and related corrupt activities.
Attempting to realise the objectives of the protocol within the shortest possible timeframe, the Justice department sought to do the following two things: Firstly, to identify shortcomings in our anticorruption legislation and to identify the legislative and institutional steps that should be taken to comply with the provisions of the protocol. Secondly, to identify and recommend steps that should be taken to harmonise corruption-related legislation within the SADC region.
I am proud to say that South Africa has, within two years of the adoption of the protocol, succeeded in drafting, accepting and approving legislation that complies with the protocol’s objectives. In some instances, the Bill goes well beyond what is required by the protocol. With the passage of this Act, South Africa will have an innovative piece of legislation that has real teeth.
With the assistance of the relevant select and portfolio committees, we now have a product that is consistent with international best practice and which is at the same time context specific, in both domestic and regional terms.
Without going into too much detail, I wish to refer to the following unique provisions: Clause 10 replaces the common law crime of bribery. This clause prohibits both the receipt and offering of unauthorised gratification by or to a person within an employment relationship. Whereas the common law crime of bribery applies only to persons in the public sector, the offence in clause 10 covers employment relationships in the private sector.
In terms of clause 17(1), any public officer is guilty of an offence if he or she acquires or holds a private interest in any contract, agreement or investment emanating from or connected with the public body in which he or she is employed or which is made on account of that public body. This offence does not apply, amongst others, to a public officer who acquires or holds such interest as a shareholder of a listed company or whose conditions of employment do not prohibit him or her from acquiring or holding such an interest.
Clause 23 allows the National Director of Public Prosecutions to investigate the possession of property disproportionate to a person’s present or past known sources of income or assets.
Chapter 6 of the Bill establishes a register for tender defaulters and this register will reside in the office of the National Treasury.
Clause 34 creates a duty to report certain corrupt transactions. However, it is important to note that this duty only applies to persons holding a position of authority as defined in the Bill. The duty only applies where such a person knows or ought reasonably to have known or suspected that certain serious offences have been committed and where the offence involves an amount of R100 000 or more.
Clearly, these frameworks reflect a real political will by Government to change the approach to combating and preventing corruption. It is important to remember that an appropriate anticorruption strategy, sound and fitting legislation and the enforcement of the laws that pertain are not in and of themselves the entire solution to the problem. Left unchecked, corrupt practices can easily become a bad habit and tend to become accepted very easily as the norm.
People have to be alerted to the risk that the presence of corruption represents to themselves, their communities and their future. We need to change society’s view of corruption and instil in them the knowledge that they can do something constructive about putting a stop to it.
One thing is certain, we can have the best laws in the world and even the finest enforcement capacity available, but without the support of the community and its desire to be a willing partner in the fight against corruption, we all face a downhill slide into nowhere. People from all walks of life - business executives, consumers and consumer organisations, bureaucrats and shop floor stewards - will make this law work. We must instil in our national community an unequivocal intolerance for corruption practices and create a culture and expectation of clean corporate and public sector practice.
We should remember that corruption is not the sole preserve of our country nor that of the African continent. With the advent of globalisation, international borders have simply become less distinct and this plight has become a concern for the entire international community. Neither is corruption limited to any specific sector. It preys on government and business on a wide front and finds its home in both the formal and informal sectors. It is a reality in industrially sophisticated economies and in developed and developing economies.
Corruption, too, is fairly indiscriminate about the status or standing of its victims, the hapless shelter-seeker who is cheated out of her rightful place on the housing queue for a mere R50, or the boardroom executive who is taken for a ride on a get-richer-quick scam involving public procurement.
Generally, corruption can be described as the misuse or abuse of power, office and/or authority. Its practice is undertaken for gain and its seedbeds are located in the private, public and informal sectors. It takes many forms and can be described in a variety of familiar terms, such as bribery, embezzlement, theft, fraud, extortion, intimidation, favouritism and/or clientelism.
Corruption’s nature is fairly unspecific and there is no way to button it down neatly and concisely. It manifests itself in a wide range of types and formats, but its intent is clear, its purpose is to gain advantage nefariously and unfairly. Definitions of corruption vary from country to country and even from region to region in accordance with a myriad of factors, including social, cultural and legal variables.
Corruption hampers national, economic, social and political progress in developed and developing economies. It has a consequence, and that is frustration in hardworking and honest citizens who eventually become distrustful of decision-makers. It impacts negatively on productivity, undermines administrative efficiency and erodes confidence in the social, political and economic order. It is especially disruptive in developing economies where human and economic development programmes are essential to mitigating the effects of poverty, economic alienation and social marginalisation.
Money and resource flows are effectively reserved away from the poor, vulnerable and needy. Instead, they find their inappropriate destination in the hands of the powerful and dominant. Need simply falls out of the equation and greed looms over all else. These reversals lead to political and economic instability, compromised infrastructure provision and an abrogation of services such as education, welfare and health. The greater the corruption, the greater the negative impact on the general standard of living.
In the context of the African subcontinent, corruption and organised and syndicated crime undermine the regional capacity to reduce poverty and stimulate economic growth. Organised crime and corruption make it difficult to attain satisfactory levels of sustainable human development. They undermine the capacity to protect human rights and render sound governance practice based on ethical and professional conduct. Corruption corrodes the values that underwrite an adherence to the rule of law and the fair administration of justice.
It is for these reasons that Nepad actively promotes the need for a collective effort to achieve accountable and transparent governance. Counter measures against corruption and crime are not local issues anymore, they are regional and international imperatives. In conclusion I wish to thank the members of the portfolio and select committees for their hard work. They have, after many days of deliberations, produced an excellent product which I am sure will strengthen the criminal justice system in preventing and combating corruption and related nefarious activities.
Thanks must also go to the departmental officials that supported the committees during their deliberations. [Applause.]
Mr L G LEVER: Chairperson, in discussing the topic of corruption, I think it is fair to say that we need not convince anybody in this House of the necessity to combat corruption. The Democratic Alliance takes the combating of corruption extremely seriously - in fact, in the National Assembly we proposed no less than three Private Members’ Bills aimed at eradicating corruption.
As is the hon Deputy Minister’s habit in this House, she has given us a fully comprehensive summation of the entire Act. There are one or two little points which I think I can draw out, and which I did not hear the hon Deputy Minister mention. If she did mention them, I apologise.
There are a number of innovations in the Act. It is a comprehensive Act, and the one innovation which I think the hon Deputy Minister did not mention is contained in Chapter 6 and relates to a register of tender defaulters. This is a very important innovation. As the hon Deputy Minister said, corruption undermines our capacity for social development, and I think particularly in the field of corruption where tenders are involved this is particularly true. So I just wish to emphasise that particular point.
I also wish to re-emphasise that this is an all-embracing Bill, and I simply hope, and it is the hope of my party, that the Department of Justice will put enough resources into effectively implementing this Bill so that we can, in fact, eradicate corruption from our society. The DA supports this Bill. Thank you. [Applause.]
Mnr P A MATTHEE: Voorsitter, voordat ek dit weer per abuis nalaat, wil ek graag begin deur adv Gerhard Nel, en almal wat hom bygestaan het, baie te bedank vir hulle harde en uitstekende werk ten opsigte van hierdie wetsontwerp. Dan ook ene dr Jakobs vir sy bekwame en uitstekende werk ten opsigte van die wetsontwerp wat ons nou-nou gedebatteer het.
Sedert die aanvaarding van die huidige antikorrupsiewet, Wet 94 van 1992, en dit op ons Wetboek geplaas is, is verskeie voorstelle ontvang vir die wysiging van hierdie wetgewing. In plaas daarvan om die huidige wetgewing net te amendeer, gee hierdie wetsontwerp effek aan die voorstelle vir ‘n volledige hersiening van ons antikorrupsie wetgewing en strategie.
Hierdie wetsontwerp volg die neiging van moderne internasionale wetgewing, naamlik die ontbondeling van korrupsie, ingevolge waarvan verskeie, spesifieke, korruptiewe aksies en praktyke gedefinieer en verbied word, bo en behalwe die algemene misdaad van korrupsie wat van toepassing is op alle persone in die openbare of privaatsektor.
Die vorige spreker, agb lid Lever, het verwys na die een geval van so ‘n spesifieke korruptiewe aksie of aktiwiteit wat nou verbied word, en ‘n spesifieke misdaad gemaak word. Daar is egter verskeie daarvan in hierdie wetgewing, en ek dink dit is belangrik om net kortliks te verwys na hierdie verskillende spesifieke misdrywe wat nou geskep word, bo en behalwe die algemene misdryf van korrupsie.
Daar is die spesifieke misdryf ten opsigte van openbare beamptes. Dan is daar een spesifiek ten opsigte van oorsese openbare beamptes. Dan natuurlik is daar een wat spesifiek ag slaan op aktiwiteite van agente. Dan is daar ‘n ander een wat ek dink tog belangrik is vir ons almal, ook as wetgewers, om van kennis te neem, en dit tog net ‘n bietjie na te lees om te sien spesifiek wat dit sê, want soos u weet is onkunde van die reg nooit enige verweer nie. En daar is die baie spesifieke klousule 7 wat handel met korruptiewe aktiwiteite ten opsigte van lede van wetgewers. En ek dink dit is belangrik dat ‘n mens jouself op hoogte bring van presies wat daar staan.
Daar is ook een ten opsigte spesifiek van regsprekende beamptes ten opsigte van die vervolgingsgesag, die “prosecuting authority” in ons land. Dan is daar baie spesifiek ook een ten opsigte van die werknemerverhouding, die “employment relationship” soos dit daar gestel word, ten opsigte van getuies en bewysmateriaal in sekere verrigtinge.
Dan is daar ook een wat handel met spesifieke aktiwiteite ten opsigte van kontrakte. En dan natuurlik die een waarna verwys is deur die vorige spreker, die kwessie van tenders. Maar dan is daar ook een wat spesifiek slaan op “auctions” ten opsigte van die hele situasie van afslaers en waar daar ‘n bod toegeslaan sou word op ‘n persoon op ‘n korruptiewe manier. Ook sportaktiwiteite en die hele kwessie van waar ons te doen het met dobbelaangeleenthede. U sien dus dit is baie belangrik dat daar na al hierdie aspekte gekyk word.
Ek wil tog net aanhaal, ten opsigte van hierdie wetgewing, dít wat ek dink dit werklikwaar mooi saamvat, en adv Gerhard Nel het daarna verwys toe hy ons as komitee toegespreek het. Dit is ‘n aanhaling uit wat mnr Hennie van Vuuren van die Institute for Security Studies in Desember verlede jaar geskryf het.
Ek haal dit graag soos volg aan:
The committee that drafted the Prevention and Combating of Corrupt Activities Act has at last given South Africa a piece of legislation that has both the teeth and the hallmark of innovation required to combat graft. The Act which is based on international good practice, and is being used by the UK House of Commons as a model law on which its new corruption legislation will be based, is one of the last and most important pieces in South Africa’s anti-corruption armoury. It is said to work hand in glove with legislative instruments such as the Public Finance Management Act, the Promotion of Access to Information Act and the Protected Disclosures Act. Once it is passed by the National Council Of Provinces, as expected in the new year …
… as we are doing now, and now the important piece -
… it will force a mindset shift for both public and private officials.
Ek glo werklik dat hierdie wetgewing daarin sal slaag om Suid-Afrikaners daartoe te dwing om opnuut te kyk na alles waarmee hulle besig is, beide in die staatsbestel maar ook in die privaatsektor. Dit is belangrik dat alle Suid-Afrikaners op hoogte gebring word van hierdie wetgewing, sodat ons hierdie kanker wat aan die hart van ons demokrasie knaag finaal die nekslag kan toedien. Ek dank u. [Applous.] (Translation of Afrikaans speech follows.)
[Mr P A MATTHEE: Chairperson, before I forget yet again by accident, I would like to start by thanking Adv Gerhard Nel and everyone who assisted him for their hard and excellent work in respect of this Bill. This includes one Dr Jakobs for his competent and excellent work in respect of the Bill that we have just debated.
Since the current anticorruption legislation, Act 94 of 1992, had been passed and placed on the Statute Book, a number of proposals were received regarding amendments to this legislation. Instead of just amending the current legislation, this Bill gives effect to the proposals for a complete review of our anticorruption legislation and strategy.
This Bill follows the trend of modern international legislation, namely the unbundling of corruption, according to which various specific corruptive actions and practices are defined and prohibited, over and above the common crime of graft that is applicable to all persons in the public or private sector.
The previous speaker, hon member Lever, referred to one instance of such a specific corruptive action that is now prohibited and has been made a specific crime. But there are several of them in this legislation and I think it is important to refer briefly to these various specific crimes that are now being created, over and above the common crime of graft.
There is the specific crime in respect of public officials. Then there is one relating specifically to public officials abroad. Of course, then there is one that concerns the activities of agents. Then there is another one which I do believe to be of importance to us all, also as lawmakers, to take note of and to read up about in order to see exactly what it is all about, for we all know that ignorance of the law is no defence. And then we have the very specific clause 7, which deals with the corruptive actions in respect of members of the legislature. I believe it is important for us to inform ourselves in respect of exactly what has been written there.
There is also one that concerns officials of the judiciary in respect of the prosecuting authority of our country. We also have one regarding very specifically the employment relationship in respect of witnesses and documentary evidence in certain procedures.
Another one deals with specific actions regarding contracts. And then, of course, the one referred to by the previous speaker as regards the issue of tenders. But there is also one in connection with auctions and the whole situation regarding the corruptive way in which an auctioneer can set up a bid for a person. Sport activities also feature, as well as the whole issue of gambling. So you see, it is important that we look at all of these aspects.
There is something I want to quote in respect of this legislation that really sums it all up nicely, and Dr Gerhard Nel referred to this when he addressed our committee. It is a quote from something which Mr Hennie van Vuuren of the Institute for Security Studies wrote in December of last year. I would like to quote this, as follows:
The committee that drafted the Prevention and Combating of Corrupt Activities Act has at last given South Africa a piece of legislation that has both the teeth and the hallmark of innovation required to combat graft. The Act which is based on international good practice, and is being used by the UK House of Commons as a model law on which its new corruption legislation will be based, is one of the last and most important pieces in South Africa’s anti-corruption armoury. It is said to work hand in glove with legislative instruments such as the Public Finance Management Act, the Promotion of Access to Information Act and the Protected Disclosures Act. Once it is passed by the National Council Of Provinces, as expected in the new year …
… as we are doing now, and now the important piece -
… it will force a mindset shift for both public and private officials. I really believe that this legislation will succeed in forcing South Africans to take another look at the things they are involved in, both in the public and the private sector. It is important that all South Africans are brought up to date with this legislation, so that we can finally eradicate this cancer that is gnawing at the heart of our democracy. I thank you. [Applause.]]
Mr P D N MALOYI: Chair, I think I will just add to what the Minister said. You know, it is very difficult to speak after the Deputy Minister because most of the time, like Mr Lever said, she is detailed. She wants everybody to understand what is contained in the legislation that is presented before this House. I’m not going to spoil her good work.
Regarding the Bill that we are presenting before you and your honourable House, when we had a discussion in the committee we all agreed that it was necessary for this House and for everybody to adopt this piece of legislation in order to prevent smart people from doing unethical things. That’s what we are agreed upon. We also agreed that when smart people do unethical things, those things affect those who are very poor and we cannot accept that kind of situation. We also agreed that it is not the knowledge of members of Parliament but that it is public knowledge and everybody knows that a lot of unethical and illegal practices are happening both in the private and public sectors.
We have witnessed, for many years, behaviour which is not acceptable. If we may cite an example, in countries like the US, people who are responsible for big companies, not small companies - some CEOs, etc - were fired and some were investigated for doing unethical things. One wonders why people who are in big companies and people who have a lot of money engage in such activities. Here we are talking about millionaires many times over being involved in these things.
What is the situation? What is really happening? Regarding the situation in our country, I think the Deputy Minister did indicate to us earlier that this legislation is not a new thing. We are not suggesting to this House that it must pass new legislation. We had a number of other pieces of legislation such as the corruption Act of 2000 and so forth.
What we are now trying to do is to bring together all these things into one in order to make sure that we deal with this corruption once and for all. We don’t just want to combat corruption, we also want to prevent it to make sure that corruption does not take place at any level, whether in the private or public sector, or whether you are just a man in the street, it doesn’t matter. We want to make sure that this corruption does not happen.
I said to you that I don’t want to spoil what the Deputy Minister had alluded to earlier. On behalf of the committee - because I was requested by the acting chairperson to do exactly what I’m doing now - I would like to thank the department, members of the committee and members of the public who participated in these deliberations for assisting us so that we could come up with this nice piece of legislation. We therefore suggest and request that we should adopt the Bill before you. I thank you. [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chair, I think we are all agreed that this is actually quite a special piece of legislation. The hon Lever’s mention of the register for tender defaulters, for instance, is a really innovative way of approaching this problem. I think that it is something that makes one feel very good about being a South African if our legislation sets trends, and maybe even raises the standards of expectation and performance. This is probably a demonstration of how Parliament works when it works at its best. It gets legislation that has been well-researched, well thought through, and makes it even better through deliberation and consultation. I think this is how Parliament really shows its mettle and it’s a proud day for us.
Mr Matthee demonstrated in his input just through the mention of sport how corruption affects every aspect of our lives. I remember my son’s face when he heard about Hansie Cronjé. He had a huge poster on his wall. He pulled it down and actually couldn’t bring himself to tear it up because his hero had shown himself to be tainted. He folded it into a tiny little square and stuck it under a box in his cupboard.
I really thought that the power of example is enormous. Perhaps one of the important things about this Bill is that, obviously, it provides a response. But one of the things we should be doing is to promote good practice as a normal and standard thing all the time. To fight it is one thing but we have to create an expectation in our children - and I guess this starts in the home - that they should be proud to be an asset to any kind of business deal or Government business deal, but that probity is of absolute primary consideration. I think we have to raise our children in such a way that it becomes the norm, so that they expect it when they get Government service, and so that people who are poor are not paralysed by confusion very often.
I was doing door-to-door registrations and that’s why I mentioned people who were bumped off the housing list. They just disappeared off the housing list and they were confused; they didn’t know why. What happened was that someone paid R50 to move up the housing list, and they just moved down. So we need to put in place structures for ourselves to make sure that those housing lists are monitored, and that public officials perform in the way that we expect. It’s about the culture of creating a way of life that is conducive to development. I’m also so proud that this legislation is being used by the House of Commons as a model for their anticorruption Bill. It’s a real feather in our cap.
Mr Maloyi expressed the very real issue around the international implications when billions of rands have an impact on transfrontier communities, and how very often when we pursue corrupt officials, we imprison or prosecute the one who has accepted a R100 bribe, but never the person who is far more affluent and is the one paying the bribe. This Bill changes that whole equation. They can and will get caught.
I think the attorney-general in Lesotho should be praised for the work he did under enormous pressure regarding the international companies who had become involved in corrupt practices. Even when his life was threatened, he persisted. I have known him for five years now. The prosecutions have gone through recently and he has really made a point with these prosecutions.
I guess that sums it up. We are all in agreement. It’s an individual issue. It’s about creating, expecting and upholding a standard of the way we do business with one another, with corporate business and with Government.
I’m proud that this legislation has been so well-scrutinised by the House. Once again, thank you to the officials who put so much effort into this legislation. It is a good day for South Africa, for this Parliament and for the NCOP in particular. We have produced a fine piece of legislation. [Applause.]
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
House adjourned at 15:17. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 20 FEBRUARY 2004
TABLINGS
National Council of Provinces
- The Chairperson
Eleventh Report of the Working Group on the African Union (AU):
Following on its Tenth Report, adopted by the House on 26 November
2003, the Working Group would like to report as follows:
(1) Submission of names of PAP Members to AU Commission
The Working Group in its Tenth Report recommended that 5 Members
be elected to represent Parliament in the Pan African Parliament
(PAP), in terms of Article 4(2) of the Protocol which provides
that each Member State shall be represented in the Pan African
Parliament by 5 Parliamentarians, at least one of whom shall be a
woman.
On 26 November 2003, the following Members were elected: Dr F N
Ginwala, Ms M A A Njobe, Mr M J Mahlangu, Dr B L Geldenhuys and
Prof H Ngubane and the names have been submitted to the AU
Commission.
The AU Commission has indicated that it has now received the names
of the Members from 23 Parliaments. As some had not provided all
the required information (gender and political affiliation), the
Commission will be sending a further communication requesting
standardised formats for required information, including the
language preference of each Member and whether each Member will
take an oath or make a solemn declaration.
(2) Arrangements for the Inaugural Session and the First Session
(a) Date and programme
The date for the Inaugural Session has been set as 18 March
2004 in Addis Ababa. The Inaugural Session will be preceded
by regional meetings which are scheduled for 17 March 2004
and followed by the First Session of the PAP from 19 to 20
March 2004. The Steering Committee at its meeting held on 13
and 14 February 2004 adopted a draft programme for the
Inaugural Session for consideration by the Chairperson of the
AU, President J Chissano. It also agreed a programme for
adoption by the First Session of the PAP.
(b) Oath of Office
The Steering Committee has agreed the Oath of Office or
Affirmation for Members and for Presiding Officers, in each
of the 4 official languages of the AU.
(c) Observers
In addition to the 5 Members, each Member Parliament may send
3 observers to attend the Inaugural Session. The Speaker will
submit names of observers to the Chief Whips.
(d) Secondment of Staff
The Commission will be writing to Members of the Steering
Committee and the African Foreign Missions in Addis Ababa to
request them to second staff.
(3) Rules for the Inaugural Session
Article 11 (8) of the Protocol empowers the PAP to adopt its Rules of
Procedure.
The Steering Committee has adopted Draft Rules for the PAP. These
Rules will be considered and adopted at the First Session.
(4) Nomination and election of the President of the PAP
In terms of the Article 12 (2) of the Protocol, the PAP will at its
first sitting, elect from among its Members and in accordance with
its Rules of Procedure, a President and 4 Vice Presidents
representing the regions of Africa. According to the Protocol, the
election of the President will take place during the Inaugural
Session and be presided over by the Chairperson of the AU.
National Parliaments may nominate candidates. Regional
consultations will be held to nominate a candidate from the region
from amongst the nominations from National Parliaments. The
election will be by secret ballot of all Members.
(5) Nomination and election of the Vice Presidents
The Draft Rules provide that the region from which the President
comes is excluded from the ballot for Vice Presidents. Each of the
4 remaining regions will nominate two candidates per region, one
of whom must be a woman.
Each ballot paper will have two sections: Section 1 for the nominated
women candidates exclusively and Section 2 for all candidates. In
Section 1 of the ballot, the names of the women candidates will be
listed in alphabetical order indicating their respective regions.
Each delegate must vote for one woman on Section 1 of the ballot
paper. Ballot papers which do not indicate a valid vote on Section
1 will be disqualified. Each delegate may also vote for one
candidate from each of the regions on Section 2 of the ballot
paper. Section 2 will be counted first. Should there be no woman
candidate amongst the top 4 votes, the woman with the highest vote
from Section 1 of the ballot paper will replace the candidate from
the corresponding region in Section 2 of the ballot.
Section 1 of the ballot will only be considered if no women
candidates are voted as one of the Vice Presidents in Section 2 of
the ballot. The election will be by simple majority of Members
present and voting.
(6) Rules of Debate
A minimum set of Rules of Debate has also been agreed to.
(7) Establishment of committees
Article 12(13) of the Protocol provides that the PAP may establish
such committees, as it deems fit, for the proper discharge of its
functions and in accordance with its Rules of Procedure.
According to the Draft Rules, the Bureau will constitute the Business
Committee of the PAP. At its first session, the PAP will establish
the following ad hoc Committees:
(a) Rules Committee
(b) Budget Committee
(c) Credentials Committee
These ad hoc Committees will be composed of 3 representatives per
region and will be appointed by the House.
(8) Reporting Mechanisms
The Working Group has previously highlighted the need for Parliament
to consider how the five Members of the PAP will report.
-
The Working Group recommends:
That the next Parliament prioritises the establishment of a committee to process and deal with issues emanating from the African Union.
Report to be considered.
COMMITTEE REPORTS National Assembly and National Council of Provinces
- Report of the Joint Budget Committee on Chapter 13 of 4th Report of SA Human Rights Commission, dated 17 February 2004:
Insert 1ATC2002e
Report to be considered.
MONDAY, 23 FEBRUARY 2004
ANNOUNCEMENTS
National Assembly and National Council of Provinces
- Classification of Bills by Joint Tagging Mechanism
(1) The Joint Tagging Mechanism (JTM) on 23 February 2004 in terms
of Joint Rule 160(4), classified the following Bill as a section
76 Bill:
(i) Division of Revenue Bill [B 4 - 2004] (National Assembly -
sec 76)
(2) The Joint Tagging Mechanism (JTM) on 23 February 2004 in terms
of Joint Rule 161, classified the following Bills as money Bills:
(i) Appropriation Bill [B 3 - 2004] (National Assembly - sec
77)
(ii) Drought Relief Adjustments Appropriation Bill [B 5 - 2004]
(National Assembly - sec 77)
COMMITTEE REPORTS
National Assembly and National Council of Provinces
- Report of the Joint Budget Committee on Annual Report:
INSERT ATC2302-ARe
National Council of Provinces
-
Report of the Select Committee on Social Services on the South African Social Security Agency Bill [B 51B - 2003] (National Assembly - sec 76), dated 23 February 2004:
The Select Committee on Social Services, having considered the subject of the South African Social Security Agency Bill [B 51B - 2003] (National Assembly - sec 76), referred to it, reports the Bill with amendments [B 51C - 2003].
The Committee further reports as follows:
Need to Amend Transitional Provisions
In discussion of amendments to the Social Security Agency Bill, the Select Committee noted that additional amendments to these Bills would need to be considered early in the next Parliament. These amendments are necessitated by two developments since the bills were introduced.
First, the National Assembly made changes to the governance arrangements to provide statutory responsibility for administration of social assistance to the Agency. While this strengthens the governance model, it changed key elements related to the transition.
Secondly, the High Court ruled in the case of Mashavha versus the President and Minister of Social Development that the assignment of administration to the provinces is invalid and that Government must correct the defect by 1 April 2004. Although the Constitutional Court must still consider the order during a hearing on 26 February 2004, if they confirm the High Court order then Government will be left with neither a valid legal basis for provincial administration of grants nor national capacity to deliver grants. The current Bills do not provide for the continued delivery of social assistance by Provinces in the interim period while the Agency is being established and national government is ready to take over administration and delivery. This transfer to National will presumably be on a Province-by-Province basis phased in over several years.
The Select Committee therefore advises that amendments to the transitional provisions be considered urgently by the incoming Parliament.
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Report of the Select Committee on Social Services on the Social Assistance Bill [B 57B - 2003] (National Assembly - sec 76), dated 23 February 2004:
The Select Committee on Social Services, having considered the subject of the Social Assistance Bill [B 57B - 2003] (National Assembly - sec 76), referred to it, reports the Bill with amendments [B 57C - 2003].
The Committee further reports as follows:
Definition and Eligibility Matters to be Resolved in the Social Assistance Bill
The Select Committee noted that further consideration in the next Parliament should be given to the definition of “care dependency”, eligibility requirements for care dependency and the definition of “social assistance” in the Social Assistance Bill, 2003.
With regard to the definition of “care dependency”, there are inconsistencies between sections 1 and 7. With regard to eligibility requirements the language in the Bill introduces significant policy changes that need to be fully considered by Government. Lastly, the definition of “social assistance” in section 1 is inconsistent with the definition of “social grants” in the same section.
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Summary** of Report of Ad Hoc Committee on the Intervention in the Lekwa Teemane Local Municipality, dated 23 February 2004:
Insert Lekwa23f
Report to be considered.
** Copies of the full report can be obtained from the Office of the
Clerk of the Papers
TUESDAY, 24 FEBRUARY 2004
ANNOUNCEMENTS
National Council of Provinces
- Messages from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and transmitted to Council
(1) Bills passed by National Assembly on 24 February 2004 and
transmitted for concurrence:
(i) Division of Revenue Bill [B 4B - 2004] (National Assembly
- sec 76)
(ii) Drought Relief Adjustments Appropriation Bill [B 5 - 2004]
(National Assembly - sec 77)
The Bills have been referred to the Select Committee on Finance of
the National Council of Provinces.
COMMITTEE REPORTS
National Council of Provinces
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Report of the Ad Hoc Select Committee on Powers and Privileges of Parliament on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill [B 74 - 2003] (National Assembly - sec 75), dated 24 February 2004:
The Ad Hoc Select Committee on Powers and Privileges of Parliament, having considered the subject of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill [B 74 - 2003] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.
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Report of the Select Committee on Land and Environmental Affairs on Exclusion of Land from Augrabies Waterfall National Park, dated 24 February 2004:
The Select Committee on Land and Environmental Affairs, having considered the request for approval by Parliament, in terms of section 2(3) of the National Parks Act, 1976 (Act No. 57 of 1976), of the remainder of Farm 498 (Melkbosrand), in extent 4137 ha, from the Augrabies Waterfall National Park, situated in the Administrative District of Gordonia, Province of the Northern Cape, referred to it, recommends that the request be approved.
The Committee, however, recommends that there should be co- management by the community and the Department of Environmental Affairs and Tourism of the Community Tourist Park that has been established on the land.
The Committee also recommends that the incoming committee visit the area and exercise its oversight function in conjunction with the relevant provincial committee.
Report to be considered.