National Assembly - 14 November 2006
TUESDAY, 14 NOVEMBER 2006 __
PROCEEDINGS OF THE NATIONAL ASSEMBLY
____
The House met at 14:02.
The Deputy 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.
TRAIN ACCIDENT AT FAURE
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Deputy Speaker, we move without notice:
That the House-
(1) notes that -
(a) yesterday, 13 November 2006, nineteen people lost their
lives in an accident involving a truck and a train at Faure
near Cape Town; and
(b) many road accidents are a result of human error and
failure to comply with traffic regulations;
(2) commends the efforts of the Western Cape provincial government in setting up a relief fund to alleviate the plight of the families of the deceased;
(3) wishes all those who were injured in the accident speedy recovery; and
(4) conveys its condolences to the families and friends of the deceased.
Agreed to.
21ST PLENARY ASSEMBLY OF SADC PARLIAMENTARY FORUM IN GAUTENG
(Member’s Statement)
Ms C NKUNA (ANC): Deputy Speaker, the ANC would like to extend a warm welcome to all the members of the SADC PF on the occasion of its 21st plenary assembly in Mogale City, Gauteng. Our region is characterised by uneven social and economic development with high poverty levels. Furthermore the region depends on primary commodity exports that leave it vulnerable to the unfair global trade environment. The ANC acknowledges that since the establishment of the SADC PF significant progress has been made in integrating our efforts as member countries in dealing with the challenges.
Through the forum we have also been able to mobilise international interest and recognition. We wish the 21st plenary assembly fruitful deliberations and hope that their efforts will contribute to the creation of a better life for all our people. I thank you, Deputy Speaker. [Applause.]
VIOLATION OF PAROLE CONDITIONS
(Member’s Statement)
Mr J SELFE (DA): Madam Deputy Speaker, recent media reports and photographs of Mr Tony Yengeni’s weekend parole do nothing to create confidence in either the criminal justice system or in the ANC’s reported commitment to combat corruption.
Mr Yengeni was originally sentenced to eight years. This was later reduced to four years on appeal, but he is by all accounts going to serve less than four months. On his weekend parole he was pictured with a beer in his hand. He reported back to prison late. Section 44, read with section 117 of the Correctional Services Act, provides that a prisoner who fails to return to prison at the specified time can be sentenced to a fine or to imprisonment of not more than 10 years. These provisions must now be applied.
Mr Yengeni has effectively shown the department and his parole board the finger. He clearly believes that he is above the law. Both the effective sentence that he will serve and the clear contempt of his parole conditions send a message to South Africa. That message is that there’s one law for the politically connected and another, harsher law for the ordinary man and woman in the street. [Applause.]
16 DAYS OF ACTIVISM CAMPAIGN
(Member’s Statement)
Ms M M MDLALOSE (IFP): Madam Deputy Speaker, the importance of the 16 Days of Activism against Gender Violence campaign, which was recently debated in this House, cannot be overstated.
Although we must work diligently throughout the year to find ways of helping vulnerable women and children and shielding them from abuse, this particular campaign must be used as a vehicle to highlight and draw interest and attention to their plight, as well as to expose the cowardly perpetrators of these cruel crimes.
There are simply too many incidents of abuse against women and children in South Africa. We are failing miserably in providing them with the protection they need. We read or hear with great regularity about children, even infants, being abused and murdered. The most concerning feature is that many of these children are abused by people whom they know and trust, such as family members.
A recent example is the case of a three-year-old child, Mikah Bramely Patterson, who died of multiple injuries, including a fractured skull and brain haemorrhage. Mika’s biological mother and stepfather have been charged with child abuse and/or the alternative count of murder.
This is simply cruel and inhuman … [Time expired.]
WORK OF PALLIATIVE CARE CENTRES COMMENDED
(Member’s Statement)
Ms M L MATSEMELA (ANC): Deputy Speaker, the mental, physical and social wellbeing of all South Africans constitute central elements of our strategic objective to bring about a better life for all. The ANC commends the work done by all the palliative care centres. Palliative care is mainly directed at providing relief to a terminally ill person through symptom management and pain management. The goal is to provide comfort and maintain the highest possible quality of life for as long as life remains.
Specialised palliative care programmes exist for common conditions such as cancer and HIV and Aids. The need for pain relief for the dying - that is, for the young and the old - so as to ensure dignity and humanity in death, was seen to be imperative. The ANC is committed to working with all the role-players in advocacy programmes that will create awareness of humanitarian aspects. We hope to see a standardised programme for the training of all health care workers on palliative care. I thank you. [Applause.]
PROPOSED ACDP CONSTITUTIONAL AMENDMENT REJECTED
(Member’s Statement)
Mr S N SWART (ACDP): Madam Deputy Speaker, at lunch time today members rejected the 16th constitutional amendment proposed by the ACDP in the Standing Committee on Private Members’ Legislative Proposals and Special Petitions. Whilst we are grateful to the chairperson that this matter was prioritised, we regret that our recommendation was not accepted.
The ACDP rejects prior arguments that we would be going back to pre-1996 days should we amend the Constitution as proposed. This argument flies in the face of this government’s approach to 12 other constitutional amendments and, in particular, to that relating to floor-crossing. It is well known that the Constitutional Court, in the certification judgment, found floor-crossing undesirable. In the UDM case, which we participated in, the court again rejected floor-crossing legislation for not having been passed in time.
The ANC was quick to pass the constitutional amendment then to allow floor- crossing. We are now considering a further proposal to amend the Constitution again to disallow floor-crossing.
The ACDP proposed that section 39 of the Constitution be amended to read, “the Constitution shall be interpreted to mean that a marriage is a voluntary union of a man and a woman”.
Our view is supported by many millions of South Africans represented by the Marriage Alliance, the National House of Traditional Leaders, the Congress of Traditional Leaders of SA and numerous others. Internationally, many states have passed similar amendments to their constitutions. The Californian High Court, for example, upheld a constitutional amendment banning same-sex marriage, and noted that the people – and not the court – through legal fiat, should make the law.
More pertinently, African countries such as Uganda and Nigeria have adopted legislation to protect traditional marriages, with Uganda amending its constitution. Thank you.
HOME AFFAIRS PROBLEMS
(Member’s Statement)
Mrs P DE LILLE (ID): Deputy Speaker, Kabelo Thibedi, who was sentenced to five years in jail after he took a Home Affairs official hostage, could have bought an ID book on the street for R200. The young man would probably not have been arrested. Instead, he kept going back to Home Affairs for two and a half years.
The ID in no way condones Thibedi’s actions, but he played the role of an MP when he exposed the maddening levels of frustration ordinary South Africans feel when they go to Home Affairs.
The hon Minister - and also the Deputy Minister last night on TV2 – has admitted to MPs in this House that there are problems. I want to make a call today on all Members of Parliament to take our oversight role more seriously and work together with the Department of Home Affairs to fix the problems.
To Minister Balfour, I say this: Please ensure that Thabedi does not become a hardened criminal. Instead, give him the same privileges and rights you would have given a criminal member of the ANC. Send him to a VIP prison, give him a one-man cell, and make sure he knows about his weekend parole rights. Thank you.
VIOLENCE AGAINST PALESTINE
(Member’s Statement)
Mr A J NYAMBI (ANC): Thank you, Madam Deputy Speaker, last Wednesday the Israeli forces killed 27 Palestinians in the Gaza Strip and on the West Bank, including seven children and 5 women in the shelling of the northern Gaza town of Beit-Hannon. The shelling of the areas has left scores of people injured and homes and infrastructure destroyed. These atrocities are in violation of international law and the Geneva Convention. Significant damage has been done to infrastructure, roads and houses, destroyed phone and electricity lines and has led to a shortage of food and water. The ANC condemns the continuous use of disproportionate violence and the policy of collective punishment by the Israeli government against the people of Palestine. Israel’s actions constitute a threat to international peace and security. We urge the international community to take steps to stabilise the situation and revive the Middle East peace process. I thank you.
MEETING WITH THE PRESIDENT
(Member’s Statement)
Mr S SIMMONS (UPSA): Chair, after a recent experience I had, I too have to add my voice to that of hon Koos van der Merwe with regard to setting up a meeting with the honourable President. It is true that there are various instruments to address issues. There are matters that we as public representatives at this highest public forum have of national concern, and then surely the hon President should avail himself. No member of this House would approach the Presidency for an audience with the President for trivial matters.
The tantrum of this past week is a direct result of ill-informed officials making important decisions as to whom the President should see. It seems that there is a list in the Presidency of people, groups and issues that these officials will not allow the President to attend to. I have also, like the hon Koos van der Merwe, requested a meeting with the President in writing, after which I was told to see hon Jeffery, who then told me to write again to the President’s office. I am convinced that the issue that I wanted to address with the President does not enjoy the regard it should from people in the Presidency. Therefore I am now exploring other means to address and remedy my concerns. I thank you. [Interjections.]
The DEPUTY SPEAKER: Hon members! Hon members, may we please allow other members to participate in the statements and to be heard. Very soon you will be rising on a point of order and I am struggling to follow what the members are saying.
ACCUSATIONS AGAINST CHIEF WHIP OF MAJORITY PARTY
(Member’s Statement)
Mrs S V KALYAN (DA): Madam Deputy Speaker, the DA calls on the ANC Chief Whip, the hon Mbulelo Goniwe to immediately come clean about allegations that he used his position of authority to improperly proposition a female parliamentary employee. This allegation is only the latest in a number of scandals to afflict the hon Goniwe, who also recently attempted to use parliamentary privilege to avoid paying maintenance for his children. In light of these scandals, the hon Goniwe needs to make an unambiguous personal and political commitment to gender equality in order to prove that his party’s commitment to this cause is not just hollow rhetoric. The battle for the rights of women in South Africa to be treated with respect and as equal citizens has been long and difficult and in many respects it has still not been won. Therefore, it is completely unacceptable for any South African, more particularly one who holds a position of high authority, to act in a manner that undermines this right.
The hon Goniwe needs to act decisively before any more damage is done to either the reputation of the institution he represents or the cause of gender equality. [Applause.] The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Deputy Speaker, on a point of order: Recently it was ruled in this House in relation to remarks made by, I think, Mr Gaum, in relation to the hon Coetzee, that we should not reflect on the integrity of members of this House, other than by way of a substantive motion. It seems to me very much as if what has been said here, does exactly that. We request your ruling.
Mr M J ELLIS: Madam Deputy Speaker …
The DEPUTY SPEAKER: I think … I thought I was the Deputy Speaker.
Mr M J ELLIS: Madam Deputy Speaker, I said Madam Deputy Speaker.
The DEPUTY SPEAKER: I thought there was only one Deputy Speaker and until such time that she says could somebody please help me answer the question, she will be the only Deputy Speaker.
Mr M J ELLIS: May I speak, Madam Deputy Speaker? There is so much noise in the House so I can’t actually hear what you’re saying.
The DEPUTY SPEAKER: No, there is no noise in the House.
Mr M J ELLIS: I beg to differ, Madam Deputy Speaker.
The DEPUTY SPEAKER: Mr Ellis, there is a point of order that has been addressed to me. I think I am able to deal with that matter. Until such time that I ask any member of the House to please help me exercise my duties, you are not recognised. Please sit down.
Mr M J ELLIS: Madam Deputy Speaker, I rise on a point of order to say that I disagree with what the hon Nel is saying. That is perfectly within my rights.
The DEPUTY SPEAKER: Let me deal with the point of order, Mr Ellis. You may bring any other matters that you want. For now there is a point of order that was raised. It takes precedence. I think we should all be aware of that, especially those of us who are long serving members of the House. Mr Nel, the point that you raised reflecting on the integrity of an hon member, is a valid point. All of us have to be protected by the Chair. I allowed the statement to go on so as to find out whether indeed it is attacking the integrity of the hon member. I think it is. It is reflecting on speculations, on things that people have read in the newspapers and I think it is unfortunate for us to base anything, especially in this House, on things that have not been proven anywhere else. On that basis, I think, the Deputy Chief Whip does have a point. That statement won’t be allowed.
Mr M J ELLIS: Madam Deputy Speaker, on a point of order: I think that we would urge you to make sure that you study the entire Hansard first of all, before you make such a ruling. There have been many opportunities and many occasions in this House when we have reflected on such matters, which have not been ruled on in such a way.
The DEPUTY SPEAKER: Were you allowed to reflect on members’ integrity?
Mr M J ELLIS: I would certainly say so, Madam Deputy Speaker, and I would urge you to consider Hansard before you make your final ruling.
The DEPUTY SPEAKER: I base this ruling on what should happen and what should happen is that no one has to reflect on the integrity of an hon member. And if that was allowed in the past, it was wrong. Let me study the Hansard and come back to you. Are you satisfied? More than satisfied? Thank you.
LAUNCH OF A WOMEN-OWNED CONSTRUCTION COMPANY
(Member’s Statement)
Ms N D NGCENGWANE (ANC): Deputy Speaker, the recent launch of a woman-owned construction company known as Mamela Construction Suppliers is a major boost in our effort to better the lives of our people. The company is a joint venture between SA Women in Construction holding 50% shares, Somerset Sand and Stone holding 40% and the Arête group, which holds 10% stake.
Ms Mamela Magoda, who is the director of the company, says:
Our motivation was the need to accelerate women’s entry and develop in a male dominated industry. The limited participation of black people in general and women in particular in the economy limits our ability to expand the productive base, sustain economic development, eradicate poverty and contribute to a better life for all.
The ANC urges all women to seize the opportunities created by the conditions of democracy, peace and social progress so as to advance the cause of women. I thank you. [Applause.]
GLOBAL WARMING
(Member’s Statement)
Dr R RABINOWITZ (IFP): Madam Deputy Speaker, in view of the immense and damaging impact that global warming will have on life on earth, and in particular on the poorest of the poor in Africa and the other continents, this House should heed the overwhelming concerns of world’s scientists that human actions are largely responsible for the phenomenon of global warming and are also needed urgently to impact positively on it.
Consideration must be given to developing measures such as establishing an interparliamentary action team involving Members of Parliament from Minerals and Energy, Environmental Affairs, Water Affairs and Forestry, Finance, Trade and Industry and Health to pool resources and in all ways recommend a path of action that allows South Africa to take a lead in fostering research and development partnerships with the developed world that will incentivise our citizens to constructively and positively action against the looming earth crisis. Thank you.
The DEPUTY SPEAKER: Thank you, hon member. I am told that there is some warming in the House and people are requesting that we should also try and attend to that. That is not global warming, but we are talking about the warming inside the House itself, because it seems the air conditioners are not working properly, but we will fix that.
STATEMENT ON PAN-AFRICAN PARLIAMENT
(Member’s Statement)
Mr M E MBILI (ANC): Madam Deputy Speaker, I have a statement on the Pan- African Parliament. Yesterday, Monday 13 November 2006, the Pan-African Parliament convened for the 6th session in Midrand in Gauteng. The first President of the democratic Republic of South Africa, former President Nelson Rolihlahla Mandela, opened the current session.
Amongst the issues he raised was the issue of good governance and the respect for human rights. The future and the deepening of peace on our continent rests firmly on the pillars of democracy, good governance, transparency and social progress. He further alluded to the fact that poverty, unemployment and the legacy of colonialism are the root causes of many of the challenges the continent is facing.
It is for that reason that the ANC will continue to work with the progressive forces on the continent to build and strengthen the institution of the African Union and Nepad, aimed at dealing with the challenges of the continent. I thank you.
OVERSPENDING ON FOOD AND ACCOMMODATION
(Member’s Statement)
Mr I O DAVIDSON (DA): Madam Deputy Speaker, responses to DA parliamentary questions indicate that 17 national departments have spent a combined total of R898 million on accommodation, restaurant and transport expenses in the 2005-06 financial year.
This represents a 30% increase from the previous financial year for those 17 departments, despite the fact that there has been no significant increase in the number of people employed by the state. For example, Home Affairs increased its expenditure by R110 million or 167%, R95 million of which was on travel. Yet its staff increased by only 322 people over the same period - 322 people cannot possibly be responsible for a R110 million increase. Out of the 17 departments surveyed, nine registered increases above the average of 30%, with only three showing a decline in expenditure.
Apart from Home Affairs, other notable big expenders are Sport and Recreation, which increased its transport, accommodation and restaurant expenditure by 106%, and Public Service and Administration by 72%. None of these departments have registered service delivery improvements anywhere near the level at which they have increased their expenditure on what basically amounts to food, drinks, plane trips and hotels.
Seen against an overall background of poor service delivery, the relevant Ministers owe the taxpayers of South Africa an explanation. I thank you. [Applause.]
HIGH BANK CHARGES
(Member’s Statement)
Mr Y S BHAMJEE (ANC): Deputy Speaker, South Africa is acknowledged to have some of the highest bank charges in the world. This has a disproportionately high impact on poor people who cannot afford high bank charges.
The ANC and government have instituted many attempts to address this issue – most notably by introducing the Mzansi Account. The high take-up rate of this account proves that there is an even greater need to make financial services more accessible to the poor.
The ANC applauds the work of the Competition Commission, which is currently holding public hearings on this issue. We are heartened by the fact that banks themselves have acknowledged that their charges are excessive and that this prevents many people from accessing their services.
The ANC awaits the results of the Competition Commission’s enquiry into high bank charges. The ANC urges all banks to institute measures that will address the excessively high costs of banking and allow poor people affordable access to banking services. I thank you. [Applause.]
MINISTER’S PARTICIPATION IN BUILDING HOUSES IN DELFT
(Member’s Statement)
Mrs Z A KOTA (ANC): Deputy Speaker, the ANC congratulates the Minister of Housing, Dr Lindiwe Sisulu, on building six houses in five days in Delft, from 6 to 12 November 2006.
This proves beyond a doubt that the Ministry is committed to working hand in hand with all those who want to provide shelter to the poorest of the poor. Your partnership with Cape Talk and Habitat for Humanity is indeed growing from strength to strength every single year. We thank all those volunteers who gave their time for this important task. I thank you. [Applause.]
IMPRISONMENT OF KABELO THIBEDI
VIOLATION OF PAROLE CONDITIONS
(Minister’s Response)
The MINISTER OF CORRECTIONAL SERVICES: Deputy Chairperson, let me start with the hon De Lille. I can assure you, Madam De Lille, that there are no VIP prisons in this country. This country has 243 prisons, and a prison is a prison is a prison and nothing else but a prison.
We will try our best with the youngster you are talking about, Thibedi. We will try our best as we do with everybody who comes into our centres and try to rehabilitate him and correct offending behaviour. We will do the same with him; he will not be treated differently from anybody who comes into our centres. I can assure you of those two things that we will do.
Let me address myself to the hon Selfe. Hon Selfe, I’ve taken serious note of the allegations that appeared over this weekend about the violation of parole by offender Toni Yengeni. I’ve already said that the area commissioner and the head of centre there must quickly give me the report. But Mr Selfe, you must understand, I’ve got 167 000 prisoners in the country. I cannot be concentrating on one particular offender. There are quite a number of offenders in this country. I view the allegations that have been made of breaking parole conditions in a serious light; that is why I’ve ordered that this thing be done quickly.
There is one law for all offenders in this country, so neither I nor my members may treat offenders according to who they are or whatever they belong to. There is one rule and one law for offenders.
If offender Yengeni is then found to have violated his weekend parole regulations, the necessary steps that are built into the system of corrections in our country will be activated and we will deal with those issues properly.
If any offenders for that matter – over this weekend there were 80 to 90 offenders that were out on weekend parole – if any of them have breached the rules, we will deal with them. But please let’s stop the screaming and throwing your toys out of the cot – it’s not going to help anybody. Let’s just stick to basics and do things correctly. Thank you. [Applause.]
16 DAYS OF ACTIVISM CAMPAIGN
MEETING WITH THE PRESIDENT
OVERSPENDING ON FOOD AND ACCOMMODATION
(Minister’s Responses)
The MINISTER FOR THE PUBLIC SERVICE AND ADMINISTRATION: Thank you very much, Deputy Speaker. I would like to respond to three of the statements.
The first one that I would like to respond to is the one from the hon member from the IFP, I believe, who spoke about the 16 Days of Activism, and say that indeed I believe in a national consensus around our need to ensure that we get involved in actions that will take forward a national response dealing with violence against women and children. The theme this year is one that says: “Action against abuse.” And it has clearly come to the fore that in many instances the issues of domestic violence and violence against women and children are identified as social crimes. Judging from the work that has been done by the police and the criminal justice system, it’s very clear that the victims have had crimes committed against them by people whom they know and, in many instances we assume, people whom they trust.
This means that the intervention is only an intervention from the side of the state, but it also has to be an intervention that involves all role- players in society. Very clearly, at the core of this are community and families. So, we would envisage that in this instance and for these 16 days and into the future, there would be a consolidated response by all players in society to engage in common action around the 16 Days of Activism and beyond as a combined action against abuse.
The second matter that I want to deal with is the allegation in the statement by Mr Simmons, where he would like to align himself with hon Koek van der Merwe – I mean Koos van der Merwe - who has raised various allegations about the President not meeting with them as required. I think we very clearly need to move away from a situation of trying to overdramatise the situation.
I think, much to the President’s regret, he clearly cannot meet everyone who would like to meet him. But I think the hon Simmons is aware that he has had a meeting with a Presidential Councillor where there was an agreement that he would meet the President on providing certain details on the matter under discussion, namely certain issues around Afrikaans- speaking Coloured people. The view was that we could not have one party engaging with the President around that. Every party in this House would argue that they have a common constituency. And as a result, hon Simmons was expected to refer back to the councillor with more details and that has not happened. I believe that the presidency is awaiting the follow-up and we trust that that will happen.
On the third matter which the hon Davidson brought to the attention of the House, namely the issue of expenditure in relation to accommodation, transport, and what he calls “food and drinks”. In terms of the response in relation to my own portfolio, we have very clearly indicated that on the issue of food and drinks it was not easy to make that extrapolation and reflect on that. But in relation to transport and accommodation, I want to assure the hon members and this House that there has been a significant increase in our work in Africa. There has been an increase in our work in the DRC and the fact that we have teams working there. And in view of the circumstances under which they work we value that they are in appropriate accommodation and that they come home regularly to be with their families. Secondly, we are doing work in the Sudan as well, and we have appropriately looked at their transport and accommodation.
Furthermore, looking locally, in KwaZulu-Natal there is a specific intervention that we are engaged in. A team has gone down and is located in KwaZulu-Natal where we cover their accommodation and their periodical transport home. So, I will be quite willing to share that with the House and elaborate on how we are involved in conscious interventions where staff will go either to different provinces or to particular areas on the continent. We regard this as part of our re-engineering of government work, as well as restructuring and rebuilding the state. And I think that it’s appropriate to invest appropriately.
A second department mentioned was Sport and Recreation, and I want to remind hon members about the amalgamation of the Sports Commission into the department, which has brought personnel as well as responsibilities and tasks with it. Obviously that would show quite an increase, which doesn’t necessarily reflect in the manner as may have been inferred by the hon Davidson. But I’m sure the inference was unintended. Thank you very much.
The DEPUTY SPEAKER: Hon Minister, thank you very much for correcting that slip in the tongue, namely that despite the fact that we had a lot of “koek drama” last week the name still remains hon Koos van der Merwe.
HOME AFFAIRS PROBLEMS
(Minister’s Response)
The MINISTER OF HOME AFFAIRS: Thank you very much, Deputy Speaker and thanks to hon De Lille. Yes, hon De Lille, I think we will all accept that the issue of Thibedi is a very sad story. It is very unfortunate indeed because he is now taking flak, probably for something which could have been avoided.
But I want to respond by saying that of course there is a manifestation of the problems in the department. We have acknowledged those problems - not only have we acknowledged them but we are also doing something about them. I think hon members are aware that there is an intervention support task team, which is currently working in the department, looking not only at issues of human resources, but also at systems within the Department of Home Affairs. By the way, these are chronic problems. We have now taken responsibility for some of the things which ought to have happened ages ago and unfortunately did not happen and we are doing something about them. And I think our strength is our ability to accept and acknowledge that there is a problem and that we can move forward by resolving those problems.
It’s unfortunate that Thibedi finds himself in a situation where he has been given a prison sentence of five years. However, it does also send a message to all of us and to the public that we do not resort to those kinds of acts in order to resolve problems. I really want to reiterate that I’m very sad about what has happened to the young man. It is unfortunate that none of us was approached in mitigation of circumstances in his case. Thank you very much.
MINISTER’S PARTICIPATION IN BUILDING HOUSES IN DELFT
(Minister’s Response)
The MINISTER OF HOUSING: Thank you very much, Deputy Speaker. I want to indicate that the hon member Zoe Kota forgot a very important part of what made the building of six houses in Bluedowns a success. This is the fact that Members of Parliament gave up the whole of Thursday to come and help the poor community of Bluedowns with their building. [Applause.]
Thank you. I want to take this opportunity to thank Members of Parliament for this very significant input into showing the people of this country that we do indeed care about their plight. Significantly, those who are loudest in this House about their concerns regarding housing were conspicuously absent on that particular occasion.
An HON MEMBER: Who are they?
The MINISTER OF HOUSING: This is the DA. I want to say to the hon Tony Leon that I would like to invite him to come and help us build houses, because this is your opportunity to show South Africa that their perception about you and your attitude towards the poor is ill placed. I give you the opportunity to come and build houses and show that you do care about the poor. [Applause.] The DEPUTY SPEAKER: Hon members! Hon members! Hon members! Hon Ministers! Order! I am asking you for the last time to please add value to the debates in the House. Thank you.
CIVIL UNION BILL
(Draft Resolution)
The DEPUTY CHIEF WHIP OF THE MAJORITY PARTY: Madam Deputy Speaker, we move the motion in the name of the Chief Whip of the Majority Party as printed on the Order Paper.
That Rule 253(1), which provides inter alia that the debate on the Second Reading of a Bill may not commence before at least three working days have elapsed since the committee’s report was tabled, be suspended for the purposes of conducting the Second Reading debate on the Civil Union Bill [B 26B – 2006] today.
Agreed to.
CIVIL UNION BILL
(Second Reading debate)
The DEPUTY SPEAKER: Hon Minister, just before you address the House, while we welcome the public to the gallery, it must be remembered that this Chamber is a forum for debate by Members of Parliament only. We are not going to allow participation of the members of the public by clapping. Thank you very much, and be good guests to the Assembly.
The MINISTER OF HOME AFFAIRS: Thank you, Madam Deputy Speaker.
Hon members, colleagues and friends, today we present for the consideration of this House the Civil Union Bill of 2006 after an elaborate process of public consultation and debate in this country.
The process of debate on this Bill has been rigorous. The extensive media coverage on the debate on the Bill has resulted in the debate continuing in our homes, workplaces and communities throughout our country. One thing that came out of the debate has been an indication that people in all sections of our society feel very strongly about the issues being dealt with in this Bill.
This dialogue is by no means over, and we continue to engage each other on these matters in a constructive way in order to lead South Africans towards the kind of society that we all fought for, as embodied in our Constitution.
For this reason, we are expecting robust debate even during this Second Reading debate here in the House. I must also indicate that we have already noted the changes made by the Portfolio Committee on Home Affairs to the original Bill. Understanding the difficulties they were faced with, we have decided to support those changes.
The challenge that we shall continue to face has to do with the fact that when we attained our democracy, we sought to distinguish ourselves from an unjust painful past by declaring that:
Never again shall it be that any South African will be discriminated against on the basis of colour, creed, culture and sex.
This House, in passing the Constitution in 1996, recognised the fact that our nation’s commitment to this noble principle of equality should be the cornerstone of the society we want to build. In breaking with our past, therefore, we need to fight and resist all forms of discrimination and prejudice, including homophobia.
Mr M WATERS: Why have two Bills?
The MINISTER OF HOME AFFAIRS: We should also condemn violence. Why don’t you wait for me to finish? Then you can raise your issues. [Interjections.] Just be quiet, man!
We also condemn violence against same-sex couples, fuelled by hatred, as recently observed here at home and in other countries. This commitment to our Constitution and in particular the principles of human dignity, equality and freedom of religion informed the drafting and refinement of this Bill.
The opening clause of the Bill of Rights reaffirms this view for us, and I will quote again here:
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
As far back as 1996, government itself recognised that the legal regime that regulates marriage in our country needs to be realigned with constitutional principles. It is for this reason that the Law Reform Commission started work on the review of the marriage legislation in the country. However, during that process, the definition of marriage in our current law faced a challenge within our courts. The Constitutional Court, in the matter of Minister of Home Affairs v Fourie, and Lesbian and Gay Equality Project and Others v Minister of Home Affairs, 2006, declared that the definition of marriage under common law and the marriage formula as set out in section 30(1) of the Marriage Act of 1961 were inconsistent with the Constitution, and invalid to the extent that they failed to provide the means whereby same-sex couples could enjoy the status and the benefits, coupled with the responsibilities, that marriage accorded to heterosexual couples.
The court ordered Parliament to correct these defects in the law by 1
December 2006, failing which section 30(1) of the Marriage Act will be read
as including the words or spouse’’ after the wordsor husband’’. This
current Bill was drafted in response to the court’s judgment in the Fourie
case.
The court, while noting that equal’’ does not meanidentical’’, ruled
that while it could not pronounce on the constitutionality of it, it would
be helpful to point to certain guiding constitutional principles.
In terms of the first principle, the objectives of the new measure must be to promote, one, human dignity, the achievement of equality, and the advancement of human rights and freedoms. The second guiding principle states that, and I quote:
Parliament must be sensitive to the need to avoid a remedy that, on the face of it, would provide equal protection, but would do so in a manner that is calculated to reproduce new forms of marginalisation.
Whatever legislative remedy is chosen must be as generous and accepting towards same-sex couples as it is to heterosexual couples, both in terms of intangibles as well as tangibles involved.
The Civil Union Bill presently before this House indeed provides such a remedy. The objects of the Civil Union Bill are to provide for the public solemnation and registration of civil union by way of either a marriage or civil partnership, and to provide for the legal consequences thereof.
As noted in the memorandum on the objects of the Bill, the Bill makes provision for opposite and same-sex couples of 18 years or older to solemnise and register a voluntary union by way of either a marriage or a civil partnership. Care has been taken to ensure that a distinction is drawn between the responsibilities of the state and the church, as section 15(3) of the Constitution is indicative of sensitivity in favour of acknowledging diversity in matters of marriage. The Bill provides for same- sex couples to be married by civil marriage officers and such religious marriage officers who consider such marriages not to fall outside the tenets of their religion.
In order to give effect to the Constitutional Court ruling, same-sex couples have to be allowed to marry so that they can enjoy the status, obligations and entitlements enjoyed at the moment by opposite-sex couples.
The Bill allows for both same-sex and opposite-sex couples to choose the option of having their unions solemnised and registered as a civil partnership by a state-employed marriage officer.
We’ve decided to reject the calls to amend the Constitution. Whilst we understand that the Constitution can be amended from time to time to deal with practical arrangements, we are cautious of an amendment to the Bill of Rights, as it is the bedrock on which our Constitution and our democracy is based.
We also do not share the current view amongst others in our society that in order to recognise one of the rights in our Constitution, you need to take away another. Our Constitution clearly makes room for the right of people to be treated equally without a hierarchy including, as it is in this case, a situation where those rights are for a minority in our country.
The consultation process in the public has been extensive, with the Portfolio Committee on Home Affairs conducting public hearings in all nine provinces and in Parliament. The Constitutional Court itself also noted that the process of the Law Reform Commission has also ensured extensive consultation.
This process of law reform, particularly with regard to the changing concept of family law in our society, remains an issue for further engagement. We will be considering the recognition of religious marriages, revision of the Marriage Act of 1961, and of course, the regulation of domestic partnerships.
I must thank all members of the portfolio committee, its chairperson, Comrade Hlomane Chauke and the different study groups of the different parties represented in the committee for all the hard work they put in finalising this Bill.
I am aware that you have spent a lot of time away from your families as a result of this work. You’ve engaged extensively with the public. You’ve listened carefully to many, many divergent views, and you’ve presented this House with a Bill that is consistent with the principles of our Constitution, and the guidelines set out by the Constitutional Court almost a year ago. If you did not engage as robustly as you did in representing these views, you would have failed in your duties as public representatives.
It is very important for members to appreciate that within the three spheres of government, Parliament should continue to be the one bearing the responsibility to pass legislation and not have the consequences of the judiciary performing this function on behalf of the legislature.
The principle of separation of powers therefore needs to be protected, and it is for this reason that we have chosen to adhere to the directive of the Constitutional Court, and not allow the Court itself to amend a piece of legislation.
The dynamic interface and respect for the different roles of the three spheres of governance will be a reflection of a healthy democracy.
Hon members, I present to you for your consideration the Civil Union Bill of 2006. Thank you very much. [Applause.]
Mr H P CHAUKE: Madam Deputy Speaker, it has really been a task and a half. On behalf of the portfolio committee, I think there is nothing much to be said today because we have managed to listen and to engage with the public on the Bill that has been tabled before Parliament.
Let me start by taking this opportunity to outline the manner in which we have handled this Bill and that is that, when the Bill was tabled before Parliament, there were problems already around the constitutionality of the Bill. As we all know, the state law advisor found that there are problems within the Bill on which he could not give a clear report to Parliament on the constitutionality of the Bill with a number of recommendations that he made.
By the time the Bill was tabled before the committee jointly by our Minister and the Deputy Minister of Justice, the portfolio committee did its own assessment of the work and the challenge before the committee. We then decided, after listening to the presentation, that it would be necessary, since this matter is one of the most sensitive matters - because even the court itself found that this matter needs to be handled in a sensitive manner - and we made sure that we moved along with the people in dealing with the matter.
We then decided as a committee that we should embark on a programme of public hearings. It’s normal procedure that on any Bill that is before Parliament we have to have public hearings, but we then extended the hearings to go around the country because of our understanding of the nature and the sensitivity of the matter that was before the committee.
The first hearings were held in Soweto where we invited the residents and people generally of Gauteng, who came in their numbers to participate and to engage robustly with Parliament. They raised their concerns around the issues that we were placing before them, and those hearings continued in all the provinces, to cut matters short.
What I want to raise is that during public participation at the public hearings, there were a number of issues that were raised that came out of the public hearings. One of the issues that came out was the issue of amending the Constitution. There was this general call that rejected what we wanted to do as Parliament, especially looking at the Bill itself as something that the public would not accept - that we should solemnise marriages of same-sex couples. Then there was this call to protect the marriage and amend the Constitution so as not to allow these marriages to take place.
The second view that came out of the public hearing was that of holding a referendum. This was simply to say that there is a need to test the will of the majority of the people on what we want to do as government, because this was informed by the notion that says we reject, we don’t agree, we don’t support what government wants to do, and let us call for a referendum to test the will of the people. That was the view that was coming generally from the public.
The third thing that came out very strongly was that the Bill itself had in it a component that dealt with the issue of a civil union and the issue of domestic partnership. The majority of the people again felt that the issue of domestic partnership interfered with customary marriage and that it interfered generally with any relationship because what it was saying was that, like any relationship that you get into, it may be a registered or non-registered relationship, but automatically you would be covered by the law. Most of the people felt very strongly that it was not necessary for us to engage on that matter, especially a matter which was not quite urgent. We put it aside so that we could begin to engage with the public again.
What was coming across, however, was the fourth point which was the time allocated for Parliament to handle this matter because, generally, the public felt very strongly about the time given to Parliament. The court in its ruling said that it would give Parliament one year to come up with the remedy to deal with this problem. So people felt very strongly that there was a need in fact to have more time so as to allow more debate around the issue before us.
The last point obviously was the usage of the word “marriage” in the Bill.
People felt very strongly that, whatever it is that we want to do, we
should not use the word marriage’’. You know that there were a number of
organisations and churches that marched to send their memorandums, who sent
a number of submissions that were talking about the usage of the word
“marriage” itself. Other speakers will come who will address that part as
to why we have opted to havemarriage’’ in the Bill. Speakers who will
come after me will raise those issues.
So I think, generally, the approach we took as Parliament was to recognise the very fact that whatever we do, we are guided by the Constitution. These rights that we talk about are not rights that are made by the ANC somewhere in the corner there. These rights are the rights that we ourselves, who have participated in compiling this wonderful document that we call the Constitution of South Africa which we all pride ourselves on, entrenched in it. These rights are rights that you cannot take away. That is the manner in which we ourselves approached these public hearings. We explained these rights to the people. In fact, we mostly found that people understand the Constitution better than some of you sitting in the Chamber here.
The biggest challenge facing us is obviously that we have to make sure that we meet the Constitutional Court judgment and, given the manner in which the Minister has elaborated on these issues, we have tried in fact to respond to that Constitutional Court judgment. We have removed the domestic partnership, as the people have said. We have looked at the Bill itself and said that to draft it only for a specific group of people will not be correct. Why can’t we widen the scope of this Bill to cover not only same- sex partners but also everyone else? Mncwango, if you want to decide and go to another extension of same-sex marriage, you may. [Interjections.]
The SPEAKER: It’s hon Mncwango.
Mr H P CHAUKE: You may obviously use the Bill and make sure that those rights or marriages are solemnised. I am saying that it’s a challenge that we have to take up as a country. There are still marriages that are not even covered, and this Bill begins to attempt to cover some of the areas - Hindu marriages, Muslim marriages. There are a number of marriages that are not yet covered.
Now that is the challenge, and that’s what we have agreed upon in the committee. We still need to look at some of these areas because there will be a need to look at the general law that governs marriages as a state. The part of the celebration of weddings and all of that is not done by the state but is done by formations, organisations and individuals who decide how they want to celebrate their marriage in the end. That is not the responsibility of the state.
What you then found during these public hearings was that the majority of people who asked us not to use the word “marriage” were from the church formations, but the church formations themselves were very divided. The SA Council of Churches came forward to say, ``We come from the SA Council of Churches and our position on this Bill is that we don’t support it. We don’t support the fact that a man must marry another man or a woman must marry another woman.’’ Throughout, as we moved around the provinces and coming to Parliament with public hearings, the same applied. The SA Council of Churches then came and said, `You know, those who claimed that they were representing the SA Council of Churches were lying. Here is the position of the SA Council of Churches. Our position is that we agree that same-sex couples should be given the opportunity to marry.’’
Now it was very clear from the beginning that we had this problem of church formations being much divided on the issues that we were dealing with. That in itself obviously wouldn’t hinder the progress that we had to make as a committee, but other representations also came forward, for example, from the House of Traditional Leaders. All of them were talking about amending the Constitution. How then do you give this right and tomorrow, because you feel very strongly that you no longer agree with this thing, you then decide to amend the Constitution so as not to give that right? I think it’s a challenge that all of us, when we speak here, must be able to respond to. We must be able to respond to the right that we have given to this individual, this minority, that we are now so fearful that they will come and change the whole marriage system in the country.
I think we should engage on this so as to understand where our standpoint is, because in our deliberation as a committee, almost every top lawyer in this country, every constitutional expert that we have met in the committee agreed with us that there is no getting away from the rights of these individuals because it’s entrenched in the Constitution. You cannot run away. It’s something that is given and it’s something that we have to live with. [Interjections.] So obviously, you gave it; you were part of the constitution-making process and you were part of the drafting of the Constitution. When we adopted that Constitution, all of us stood there - there is a nice picture outside, showing that you are there - confirming that we will respect and uphold the supreme law of the country which is the Constitution. Without any waste of time, I want to take this opportunity to thank the Department of Home Affairs, the legal team, the Minister for giving that leadership, the state law advisor and the parliamentary advisers, and to thank Parliament in general for the support it has given to the portfolio committee. It was not an easy thing to arrange the resources that were provided, the transport arrangements as well as food and everything that was put together in making sure that, in the law-making process, we move along with our people. It is very important.
People have spoken on this issue, and the more we speak about it, the more people will begin to understand that it is something you cannot ignore. On that note, I really want to thank members of the committee who really gave their best - from the DA, IFP, ACDP and everybody, in fact - in making sure that we listened to the people and came up with something, which is a Bill that we believe will pass constitutional muster. The argument has been that this Bill will not pass constitutional muster, but we believe that the work that was done by this committee confirms that this Bill will go through the Constitutional Court. In its findings, if it finds that this Bill is not constitutional, obviously, there will be a particular process that we must engage in with Parliament. [Interjections.] No, there is nothing wrong with doing that. It can be done all over again, but we have a responsibility as lawmakers, and we cannot run away from our responsibility. If the Constitutional Court finds that whatever we have made is still lacking, we will come back to Parliament again and engage and resolve whatever it is that is not in line with the constitutional requirements to make sure that these individuals that we want to cover, are in fact covered.
I know that some members of the opposition have already declared their position very clearly, and we will support you. We will make sure that if you want to be unionised, you will be unionised. If you want to get married, we will make sure that you get married. That is our responsibility. As you go out as Members of Parliament, go and preach one gospel: These rights are rightly given and are rights that you cannot take away.
We will still listen to the debate and we will still want to engage more on these issues as you speak. Thank you very much, and thank you very much members on that point. [Applause.]
Mrs S V KALYAN: Deputy Speaker, Parliament is doing something unique today by passing the Civil Union Bill. It is following an order by the Constitutional Court to create legislation to remedy a defect in the Constitution of our country, whereby same-sex couples are prohibited from enjoying the same status, entitlements and responsibilities accorded to heterosexual couples through marriage.
Normally, Parliament passes legislation in keeping with the Constitution. Today is different because we are amending an Act of Parliament, which is unconstitutional. We were given a whole year to effect this legislation, but with the deadline almost upon us, the Department of Home Affairs suddenly tabled the Civil Union Bill as a response to the Fourie judgment in the second week of September 2006.
The original Bill tabled allowed for the civil union between same-sex couples and, although there was a reference to the word “marriage” in clause 11(1), we were told by the justice department’s legal team that this was a mere legal nicety. The portfolio committee embarked on a series of public hearings in all nine provinces and in Parliament to gauge public opinion and sentiment on the proposed legislation.
A wide spectrum of input was received. With the exception of the NG Kerk, all faith-based organisations represented were totally opposed to the proposed Bill. Their main objection was that marriage could only be concluded between a man and a woman.
Many Christians, if not all, maintain that the Bible was the first constitution. Many called for the Constitution to be amended to protect marriage as a sacred institution, and some even proposed a referendum to settle the debate. Several legal opinions put forward the concept that the Civil Union Bill was unconstitutional in that same-sex couples could only conduct a union and not a marriage, and that the separate-but-equal approach would not survive a Constitutional Court appeal.
The state law adviser, in fact, refused to certify the original Bill, and even Parliament’s legal opinion was that the Bill was unconstitutional. Gay and lesbian groupings echoed the sentiment that by being allowed to have only civil unions, they were being treated as second-class citizens, and were clearly unhappy with this.
I think the Bill faced its fiercest opposition from the National House of Traditional Leaders and from Contralesa. The National House asserts that the Bill disregards the culture, customs and traditions of the majority of Africans, and thereby opposes this Bill. Contralesa regards Parliament’s task, as ordered by the Constitutional Court, to be embarrassing and divisive, and calls on Parliament to reject the Bill in its entirety.
A significant observation that emerged during the hearings is the extraordinary high level of homophobia and homoprejudice that exists in our country. While much of it is rooted in sheer ignorance, some of the views expressed were just pure vitriol and malice.
On a personal note, during the public hearings I often had to sit on my hand and bite my tongue when outrageous and often provocative antigay comments were made. I would like to applaud the gay and lesbian groupings for standing their ground, often in the face of strong opposition, mockery and sarcasm.
Five thousand eight hundred petitions, 637 written submissions and countless hearings later, we are here to vote on an amended version of the Civil Union Bill. It is quite unfortunate that the ANC pulled the amended version of this Bill out of the bottom drawer merely a day before voting in the committee. It is my considered opinion that the portfolio committee has misled the public in the hearings, because the version before us now is not the one presented during the hearings. I wonder how Judge Sachs will view the public participation clause he so expressly set out in the judgment.
The Bill in front of us today is not purely a Civil Union Bill, but is in fact a second Marriage Act, merely couched in a different name in an effort to appease both sides and arrive at a middle-of-the-road solution. The essential difference is that the Marriage Act of 1961 allows for marriage between girls and boys. The Civil Union Bill of 2006 allows for the union or a marriage between boys and boys or girls and girls or girls and boys. To put it bluntly, the straight guys have two choices in respect of marriage, and the gay guys only have one option.
Yet another significant difference is that in the Marriage Act, one has to be 21 years of age to marry, while in the Civil Union Bill the age of consent is 18 years. One wonders what Judge Albie Sachs will make of the law we have come up with and whether, in his opinion, it will pass the equality test. The removal of all reference to gender, as proposed by the DA, is indeed most welcome. Also, the exclusion of domestic partnerships in this Bill is great, because it doesn’t belong here.
It was quite interesting to note how much support there was by the ANC for the clause that refers to marriage officers who may apply to the Minister on grounds of conscience not to conduct unions or marriages for same-sex couples. This option creates space for further unnecessary discrimination, and causes offence to same-sex couples. It is quite ironic that the ANC will not allow its MPs to vote for the Bill on the grounds of conscience, and yet supports legislation to that effect.
I do have a great deal of sympathy for my colleagues in the ANC who will be forced to toe the line or face disciplinary action. Well done to those who choose to exercise their choice. Judge Sachs was indeed provocative to place a short timeframe on Parliament to enact legislation in this matter. The time we devoted to this Bill was too short, given its consequences, and adhering to a deadline is the wrong reason to pass legislation.
I was rather intrigued to read in the weekend papers a comment by the chairperson of the committee that this is an interim piece of legislation. I haven’t heard the Minister concur with this. If this is the case, then my point about rushing legislation merely to meet a deadline is indeed well made.
Parliament would do well to ask the Constitutional Court for an extension of time, so as to do justice to the task at hand and to rewrite the Marriage Act in the light of our democratic dispensation. Nevertheless, the Bill is a starting point in the right direction, but in the wrong way. The ideal is to have one Marriage Act for everyone. It is the only way to truly recognise the equality of all our people.
As a nation, we have a long way to go to eradicate discrimination on the grounds of sexual orientation. Some members of the DA are opposed in principle to the Bill as they are of the opinion that the Bill fails in terms of the equality clause of the Bill of Rights. The DA will allow a conscience and free vote on this Bill. [Applause.]
Mrs I MARS: Madam Deputy Speaker, Minister, colleagues, the rights of equality and dignity are enshrined in our Bill of Rights and contained in the 1996 Constitution of the Republic. As part of the right to equality, the Constitution holds that no one may be discriminated against based on his or her sexual orientation. In the past few years, the affirmation of this latter element of the right to equality has been the subject of numerous legal challenges in the High Court, the Supreme Court of Appeal and, ultimately, the Constitutional Court.
The Civil Union Bill is a result of a directive issued by the Constitutional Court to Parliament to rectify certain defects in our common law to give legal expression to the rights of equality and dignity.
However, the Bill before us today has, in many ways, been a headache and heartache for many South Africans. And, if the Sunday Times quoted the chairperson of the portfolio committee correctly, there is only temporary respite, as the Committee on Home Affairs would begin negotiations with “the Minister next year on a complete revision on the law on marriage, cutting the state’s role to a minimum, while ensuring that all groups and faiths are equally catered for”.
The conclusion – and the only conclusion – we can draw from this is that the whole issue is to be revisited and that, currently, we are attempting to satisfy the requirement of the Constitutional Court’s judgment by 1 December. This is a duty we have.
Whether the version of the Bill before the House today will, in fact, meet the requirements of the judgment is open to debate, and one would expect that only the court would provide clarity on this matter. The issue of major concern for us is more or less the same as that for our colleague from the DA, which is the shortness of time. The issue is so simple, because in the judgment there was a hint of the separation of the religious and the civil aspects of marriage, which should have been considered. We feel that this issue should have been opened up for more in- depth discussion. However, there was insufficient time, as mentioned by the chairperson.
I would just like to say that the course the committee took in taking this Bill to the provinces was really what I would call public consultation. The Bill was put into the hands of ordinary citizens and we did not just listen, as we often do when we have public hearings in Parliament where we hear advocacy groups presenting their cases. We heard ordinary citizens speak and they spoke extremely well, and it was amazing how informed they were.
We as a party support strong moral values and the role of the family as the foundation pillar of society. We know that many colleagues across the political spectrum share this view. This, however, does not imply contempt of the Constitution or of the judgment of the court. Last week, and only last week, the ruling party presented the latest version of this Bill that is now before us. In all honesty, we have not been able to discuss it broadly enough, again, because of the shortage of time.
It would be the understatement of the year to say that the original Bill has caused tremendous controversy on a subject that we all know is very sensitive, as the chairman said, and it should be treated accordingly. When the Portfolio Committee on Home Affairs took the Bill around the country in a comprehensive series of public hearings, it quickly became apparent that not only did it stir up emotions on all sides, it was also opposed by large sections of the communities on religious and moral grounds, as well as by the intended beneficiaries but for very different reasons.
This Bill is not supported by the IFP. I thank you. [Applause.]
Mna K W MORWAMOCHE: Sepikara, Motlatša-Sepikara le Maloko ao a hlophegago a Ntlo ye. Tla ke thome ka gore tšeo di boletšwego ke Phathi ya Kganetšo mo ke ditaba tša bo, “sehlaga swara, e ja tša bo Pilo”. Ke ditaba tš a bo, “ba lla kae re kgone go hula”.
E re ke thome ka go tlaleletša seo se boletšwego ke Modulasetulo wa Komiti ye ya tša Selegae ka ditaba tša theeletšo phatlalatšwa moo setšhaba se bego se lebeletše go šireletša setšo, setlwaedi, sedumedi le ditokelo tša sona - se sa lebelela ditokelo tša batho bao ba sa swanego le bona e lego seo se ka se re išego felo ge re lebeletše.
Ke laetše gape gore maloko kamoka a Ntlo ye ao a lego ka mo gomme a be a eme pele ga sethala a laetša gore a tla ama ke Melao ya Ntlo ye - ge lehono ba hlanoga, Motlatša Sepikara, go rata gore nke le ba senke gore naa tšeo ba bego ba di botša setšhaba ba re ba tla ama ke Molaotheo wa Ntlo ye, ba be ba rereša naa?
Go ditšhišinyo ka moka tšeo di bego di bolelwa ge go be go dirwa theeletšo phatlalatšwa, ke laeditše gore e be e le tšeo ba lebeletšego ditokelo tša bona gomme ba se ba lebelela tša bao ba sa dirego tša go swana le tša bona. E be e le ditokelo tša go swana le gore, a re fetošeng Molaotheo gomme re nyake referentamo gore re kgone go gatelela bao ba se nago ditokelo tšeo di swanetšego - e lego seo Molaotheo wa rena o sa se dumelelego. Ka Sepedi ba re: “Di tlogeleng di gole mmogo le tla di bona ka mohla wa kotulo”.
Go bile le bao ba rego hlalosang lenyalo. Lenyalo o tla le hlalosa bjang mo manyalong ao a lego gona mo Afrika Borwa. Ka lenyalo la setšo re bolela ka monna ge a nyala basadi ka dikgomo. A nyala wona “makubukgomo basadi maraga thetho”. Ge go bolelwa ka lenyalo la semolao, go bolelwa ka monna ge a nyala mosadi o tee gomme le yena mosadi a tlaleletša se re rego: “A ba tlale ba ate monapelo ga a tsebje”. Ka Sepedi ge mosadi a nyalwa ka dikgomo re re: “Moraka monna ke mpa, go apara kobo ke mabala”. Bao ba rego go nyakega gore go be le molao wa manyalo wa go swana, go tla swana bjang mola go se na tshwano mo magareng ga manyalo a? “Monna ge a palelwa ke go tia kati o re kgoro ke ye nnyane”. “Pudi ge e tšhaba go tswala e re kgwatla di a lla”. (Translation of Sepedi paragraphs follows.)
[Mr K W MORWAMOCHE: Hon Speaker, hon Deputy Speaker and hon members of this House, let me start by saying that what the opposition party is saying here is that they are trying to find a loophole that they can use.
Firstly, I concur with what the chairperson of the committee on local government said about the public hearings. People were promoting their culture, tradition, religion as well as their rights, overlooking the rights of other people different from them. If you look at it, it will not take us anywhere.
Let me also indicate that all the members of this House present here went under oath to abide by the Rules of this House. If they back off now, hon Deputy Speaker, the truth about the promises they made to the people will need to be looked into.
Of all the suggestions that came up in the public hearings, I already indicated that they were looking out for their own rights and neglecting others that were different from theirs. It was rights such as changing the Constitution and holding a referendum that could enable them to oppress those who do not have the appropriate rights. However, that is not what our Constitution approves of. It is said in Sepedi that everything will reveal its true colours at a later stage.
There were others who asked that we define marriage. How do you define marriage with all the types of marriages in South Africa? In a traditional marriage, a man pays lobola for his woman in the form of cattle. He marries a real woman. A legal marriage is when a man marries only one woman and the woman will bear enough children to increase the nation. In Sepedi, when a woman is being paid lobola for, we say that a man has done something he can be proud of. How can people insist on one type of a marriage when there is nothing similar about these marriages? Let us not beat around the bush about the things we are not able to do.]
The Civil Union Bill provides for the formal and legal recognition of gay and lesbian partnerships with the same rights as conventional marriages. Among its provisions any two people aged 18 years and older may enter a civil partnership, which they may call a marriage and which will carry all the rights of a marriage under the existing Marriage Act. Partners may legally refer to each other as husband, wife, spouse or partner.
No one may be a partner in more than one civil union or marriage under either of the laws providing for marriage. Any marriage officer may solemnise a union under the Civil Union Act after its approval, but any marriage officer may record his or her objection to the law and decline to officiate the same-sex marriage. Churches may apply to have the marriage officer registered under the Civil Union Act, but none are obliged to do so. Partners wishing to marry need only produce a South African identity document or affidavit confirming their identity. Anyone who has previously been married under either law will need to produce proof of divorce or a certificate confirming the death of the previous partner. There will be no calling of bans during the ceremony, but objections can be made in writing to the marriage officer before the ceremony and must be investigated.
Civil union marriages must, like traditional marriages, be conducted indoors, in a public office, house, church or wedding centre. The ceremony requires the taking of hands and is completed with a vow.
The ANC supports the Bill. Anyone who is opposing the Bill …
… hulle kan maar lê en gaap en droom. Die ANC gaan regeer. [Tussenwerpsels.] [… they can lie down and yawn and dream. The ANC will govern. [Interjections.]]
Mr L W GREYLING: Madam Deputy Speaker, this is the tenth anniversary of our beloved Constitution. South Africans always mention with pride that ours is the most progressive constitution in the world. Unfortunately, however, the values of our society do not always match the progressive values of our Constitution.
This has been particularly evident in the public hearings on this Bill, which some people have used as a platform to express some of the most deplorable and deep-seated prejudices. It is clear that we have a long way to go before we can build a truly tolerant society where all our divisions can be bridged.
What has shocked the ID, however, has been the attitude of the ANC on this issue. Instead of showing true leadership, they chose to compromise on constitutional principles in an effort to appease both sides. Instead they have alienated both and drafted legislation that could be challenged in the Constitutional Court. In particular the clause that civil marriage officers can refuse to marry gay couples can certainly be seen to be discriminatory. Given our tragic history they should have also known that, as the South African Council of Churches stated, separate doesn’t ever mean equal. As the ID upholds the Constitution and the values therein, we are left with no choice but to oppose the Civil Union Bill.
Rev K R J MESHOE: Deputy Speaker, I believe this is the saddest day of the 12 years of our democratic Parliament when some members of this House, led by the ruling party, will be passing into law the Civil Union Bill which is opposed by the overwhelming majority of our people.
It is indeed very sad that the ANC leadership chose to support this Bill in spite of the overwhelming objections from bodies such as the Marriage Alliance representing millions of Christians, various other church and community groupings and the Congress of Traditional Leaders of South Africa. Their views have, to all intents and purposes, been ignored and rejected.
Hon Steve Swart made excellent legal submissions on behalf of the ACDP during deliberations in defence of the sanctity of traditional marriages and argued that the definition of marriage as a voluntary union between a man and a woman should be protected by a constitutional amendment. This argument was based on the fact that marriage was instituted by God Almighty and not liberals and that we value marriage and the family as a fundamental building block of society.
The ACDP, together with thousands of people and groupings that made submissions to Parliament, have consistently stated that same-sex marriages should not be legalised and that our Constitution should rather be amended to protect the sanctity of marriage as the voluntary union between a man and a woman.
The Civil Union Bill justifies immorality and by inference calls sexual perversion a legitimate alternative lifestyle that should be openly accepted. It calls immorality and perversion a true virtue that is commendable freedom.
May I remind this House that rejecting God’s house and despising His word will result in those doing it being given over to the consequences of their sins and divine wrath. Members must also be reminded that God will not be mocked. When this Parliament, under the instigation of the ANC, passes this Bill today then Parliament will have gone too far and is about to cross the line of God’s patience with us as a nation.
The prophet Isaiah said:
Woe to those who call evil good, and good evil … woe to those who are wise in their own eyes and clever in their own sight.
Why are some forces trying to convince the nation that homosexuality is okay when God calls it an abomination? For the sake of the peaceful future of this nation, Members of this Parliament must stop provoking God to anger as the men of Sodom and Gomorrah did and came under His wrath.
The writer of the book of Hebrews said:
… marriage should be honoured by all and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral.
Adultery, sexual immorality and homosexuality are grave sins in God’s sight since they are a transgression of His law and defile the marriage relationship between a man and a woman. With this Bill, the ruling party and all those who support it are inviting serious trouble on themselves without even considering the impact this Bill will have on future generations.
While the ACDP appreciates that this Bill is an attempt to meet the Constitutional Court ruling, we nevertheless believe it has gone beyond what was required by the court. [Time expired.]
Ms S H NTOMBELA: Madam Speaker, Ministers, colleagues, during our public hearing I received this anonymous message. Let me read it to you.
I am a boy of 25 years. My appearance is that of a girl. My voice, my movement and everything within is that of a girl. In short, I am a boy in a girl’s body. What must I do? I tried forthe past few years to be a boy, playing with boys, tried to make my voice deeper. Tried to move like a boy but I cannot. What must I do? Minister, where must I go? My family won’t understand. They say I bore them. They say I am a disgrace to the family.
Ke ba tshehisa ka batho, ke tlontlolla lelapa la bona. [I make
them a laughing matter in the community, and I am a disgrace to the family.]
The truth of the matter is, I am a boy in a girl’s body. What must I do? Where must I go? Sometimes I feel like killing myself for my family and my community make a joke of me. Sometimes I ask myself: why me in this family? Why did God do this to me? It is because God hates me. Ntate Meshoe, (Mr)is it because God hates me? What must I do? Where must I go? Lucky are those who don’t have kids like me, those who don’t have grandchildren like me, those who live their lives freely, those who can move and those who are accepted by everyone, those who are loved by God. What must I do? Where must I go?
The fact of the matter is: I am a girl. I feel free when I am with girls. You will never understand what is within me, because you are lucky. You are not like me. You are very lucky because in this land God only loves you. Please, I want to live like you. I want to be accepted like you. I want to practice my rights like you. I am human being. I want to be free. I think God loves me too.
Don’t even wish to have children like me. Don’t even wish to have children and grandchildren like me. I wonder if that happens, what would you do, Ntate Meshoe? (Mr) It can happen. It can be your child or it can be your grandchild. I am a South African. I belong here. I also want my rights and my dignity to be protected because I am here to stay.
Mme Sebui, ka morao ha ho bala molaetsa ona, ke ile ka ipotsa hore, nna ke mang, ke tswa kae? Ka ipotsa hore na ho a hlokahala hore ke hatelle ditokelo tsa batho ba bang. Ke mang nna, ya tlang ho tlosa le ho silafatsa seriti sa batho ba bang? Ke mang nna, ya ka etsang hore batho ba bang ba se ke ba thabela tokoloho ya bona? Nna ya neng a se na ditokelo, ya neng a hatelletswe.
Le nna ke ne ke se na ditokelo tse kang ho fumana metsi, ke ne ke fuwa metsi a ditshila, ke nweswa metsi hammoho le matata le difariki letamong. Nna ke mang ya ka bang le tokelo ya hore tjhe ho ditokelo tsa batho ba bang? Nna ya neng a sa kgone le ho fuwa ntlwana, nna ya neng a sebedisa thota, ke ne ke sebedisa lejwe le jwang jwalo ka pampiri ya ntlwaneng. Ke ne ke amohilwe seriti sa ka.
Ke mang nna moo nka reng tjhe ho ditokelo tsa batho ba bang? Ke mang nna ya neng a pepela ngwana fatshe ha ke ne ke ithwetse, ke ne ke sa tsamay e tleliniki, ke ne ke tholla ngwana fatshe mobung, ho ne ho se na le ngaka, ke ne ke nketswe ditokelo tsa ka tsa bophelo bo botle.
Hobaneng ke tshwanela ho etsa dintho tsena ho batho ba bang? Hobaneng ke tshwanela ho kgetholla? Hobaneng ke tshwanetse ho hatella batho ba bang, ha Molaotheo wa rona o dumelletse hore motho e mong le e mong o na le ditokelo.
Mme Sepikara, ha re ne re tsamaile, ntho e hlokolotsi e ileng ya hlaha ke hore, bana ba batho ba bong bo tshwanang ba nyalaneng, ba tla sotlakwa ka thobalano. Modulasetulo, le manyalong a tlwaelehileng bana ba rona ba ntse ba sotlakwa.
Ho na le bontate ba tswetseng bana, ba be ba boele hape ba robale le bona bana bao, hona jwale re ntse re nyalane re le bomme le ntate. Hona jwale re ntse re nyalana ka tsela ena e tlwaelehileng ho na le ntate mane Bethlehem ya ileng a nka bana ba hae ba babedi a ba otla ka lejwe; a ba pakela ka sutukheising; a ba lahlela letamong. E ntse e le motswadi wa bona. Ebe phapang e kae he moo, ho tswa ho botho ba motho, re ke ke ra etsa dintho tse tjena.
Modulasetulo re na le Molaotheo wa rona, Molaotheo ona ha oa ngolwa ke ANC feela, o ngotswe ke Afrika Borwa kaofela, ho kenyeleditse le bona ba hananang le ona kajeno lena, e ne le le bankakarolo ho ngolweng ha Molaotheo ona.
Re tlameha ho hlompha Molaotheo ona, le hona ho etsa bonnete ba hore o a sebetsa. Ke mosebetsi wa rona ho etsa bonnete ba hore Molaotheo o a sebetsa. Rona ba ANC le ba bang re utlwisisa hore kgethollo bathong ke ntho e jwang. Re phetse tlasa mahlasipa a kgethollo moo re neng re tshwantshwa le ditshwene ebile re bitswa mekgodutswane. Afrika Borwa ena, ke ya rona bohle, bohle ba dulang ho yona, seriti, hlompho le ditokelo tsa bona di sireletsehile. [Nako e fedile.] [Mahofi.] (Translation of Sesotho paragraphs follows.)
[Madam Speaker, after reading this message I asked myself, who am I and where do I come from?. I asked myself whether it is necessary for me to violate other people’s rights. Who am I to demean other people’s dignity? Who am I to make other people not to enjoy their freedom? I was also denied many rights and I was oppressed.
I did not have access to clean water. I used unhygienic water, drinking from the dam with ducks and pigs. Who am I to have a right to say no to other people’s rights? I am the same person who did not have a toilet, who used an open field for a toilet, and used grass and stones for toilet paper. I am the same person whose dignity was taken away.
Who am I then to say no to other people’s rights? How can I say that, when I gave birth on the floor, when I did not attend a clinic, which is why I gave birth on the dusty ground? There was not even a doctor. My rights to good health were taken away. How can I do such things to other people? Why should I discriminate? Why should I oppress other people when our Constitution allows each and every person to have rights?
Madam Speaker while we were doing public hearings, the most sensitive thing that was raised was that children in same-sex marriages will be sexually abused. Even in normal marriages our children are being abused. There are fathers who give birth to children and, as those children grow, they have sex with the very same children. That also happens in a marriage of a man and woman. There is a man in Bethlehem who is in a heterosexual marriage, he stoned his two kids and stuffed them in a suitcase and thereafter he threw them into the dam. Where is the difference in humanity? We cannot do such things.
Madam Speaker, we have a Constitution that was not drafted by the ANC alone. It was drafted by the whole of South Africa including those who are opposing it today. They had a contribution in drafting this Constitution. We must respect this Constitution and make sure that it works. It is our duty to ensure that it is effective.
We, as members of the ANC and others, understand what discrimination is like to other people. We were victims of racism, and we were always called baboons and lizards. This South Africa is for all of us. The dignity and rights of all those who live in it must be protected.] [Time expired.] [Applause.]]
Dr C P MULDER: Agb Mevrou die Voorsitter, die agb lid Ntombela wat so pas gepraat het, het ’n lang betoog gelewer oor die werklikheid van mense met ’n ander seksuele georiënteerdheid wat in Suid-Afrika bestaan. Dit is ’n werklikheid en ons ontken dit nie, maar dit is nie waaroor dit vandag gaan nie. Dit gaan vandag oor die instelling van die huwelik en die werklikheid daar rondom. Hierdie wetsontwerp wat huwelike tussen mense van dieselfde geslag moontlik sal maak, is uiters omstrede. Niemand wil dit hê nie, selfs nie die meerderheid van die ANC se koukus nie. Die ANC moes ’n besluit geneem het wat al sy lede forseer om vandag vir hierdie wetsontwerp te stem en tog word dit deurgeforseer.
Die vraag kan gevra word: Hoekom is dit die geval? Hoekom? Omdat die Woord van God nie die hoogste gesag in hierdie land is nie, maar wel die mensgemaakte Grondwet. Die Grondwet behoort daar te wees om die gemeenskap te dien. Dit kan nooit korrek wees dat die Grondwet kan verwag dat die gemeenskap sy eie waardes moet verloën nie. (Translation of Afrikaans paragraphs follows.)
[Dr C P MULDER: Hon Madam Chairperson, the hon member Ntombela who has just spoken expounded at length on the reality that exists in South Africa for people with a different sexual orientation. It is a reality and we do not deny it, but that is not what this is about today. Today it is about marriage as an institution and the reality that surrounds it. This Bill that will make same-sex marriages possible is extremely controversial. Nobody wants it, not even the majority of the ANC caucus. The ANC had to resolve to compel all its members to vote for this Bill today and still it is being forced through.
The question can be asked: Why is this so? Why? Because the Word of God is not the highest authority in this country, but in fact the man-made Constitution is. The Constitution should be there to serve the community. It can never be acceptable that the Constitution can expect from the community to deny their own values.]
A constitution and its practical implications in law should take the values of the community it serves into account. Exercising rights should not go against the value system of society, because if it does, it estranges the constitution from the community.
Dit is presies wat hier gebeur. Hierdie saak druis in teen die waardestelsel van die breë Suid-Afrikaanse gemeenskap. [This is exactly what is happening here. This matter is at variance with the value system of the broader South African community.]
The strong Christian nature of the South African community and the influence of Islam and the traditional African religions in our communities are all strongly opposed to the legitimising of marriages between persons of the same gender. However, this government does not want to listen to the people and what they are saying.
Die Christelike gemeenskap is daarteen. Die Moslemgemeenskap is daarteen. Die tradisionele leiers is daarteen en tog word dit deur geforseer. [The Christian community is against it. The Muslim community is against it. The traditional leaders are against it and yet it is still forced through.]
Marriage is an institution created by God between a man and a woman. That is why God created Adam and Eve and not Adam and Steve. We will vote against this Bill for that reason. [Interjections.]
The MINISTER OF DEFENCE: Madam Chairperson, hon members, I think it is important that we place the Bill in its proper historical context. The roots of this Bill lie in the pronouncements of our people over very many years and decades of struggle. In particular, the roots of this Bill lie in the declaration our people made at the Congress of the People in 1955. In the preamble of the Freedom Charter, our people declared, and I quote:
Only a democratic state based on the will of all the people can secure to all their birthright without distinction of colour, race, sex or belief.
It was this declaration, amongst others, which guided us in drafting the present democratic national Constitution, hailed throughout the world as one of the most advanced at this time.
The Constitution itself does not prevaricate on this question, for it says so in Chapter 2, section 9, subsection 3. We ourselves declare to this House that:
The state may not unfairly discriminate directly and indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
What the Constitutional Court did was not to impose on us the task of making a new law. Rather, the Constitutional Court drew our attention to the fact that we have granted the right to all South African citizens to choose who to marry or take as a life partner. That right is already granted to the citizens of our country.
The Constitutional Court reminded us that, in this regard, we have not as yet delivered in relation to those who prefer same-sex partners for life. They were not saying: Grant new rights. They said: You have already granted this right, but deliver on that right in relation to those who prefer same- sex partners. They said that we had not done so because we had not aligned the law with the basic law of the country, the Constitution.
The question before us, therefore, is not whether same-sex marriages or civil unions are right or not. That’s not the question. The question is whether we suppress those in our society who prefer same-sex partners or not. That is the challenge. Are we going to suppress them? [Interjections.]
At this time, we are bound to fulfil the promises of democracy that we made to the people of our country, especially during the long, hard years of struggle. Are we going to suppress this so-called minority, or are we going to let these people, like ourselves, enjoy the privilege of choosing who will be their life partners or not?
By the way, voting for this Bill is not advocating. We are not being asked to advocate same-sex marriages. We are being asked to grant this right, so if you vote for this, you only deliver, you only grant the right to those concerned; you will continue to live your life as you choose, but let’s grant the right to those who also must exercise the same right.
We have no need indeed to preserve for ourselves, purely because of the majority of our numbers, the exclusive right of marriage as recognisable in law, while we deny others the same right. Why would we want to do that?
I take this opportunity to remind the House, to remind those who know, and inform those who do not know, that in the long and arduous struggle for democracy very many men and women of homosexual and lesbian orientation joined the ranks of the liberation and democratic forces. [Interjections.] Some went into exile … [Applause.] Some went into exile with the movement, yet others went into the prisons of the country with us. They accepted long prison sentences. Some stood with us, ready to face death sentences.
Indeed, as we stand here today, we can recall names and graves of comrades who resisted and refused to cave in in the face of probable death sentences. How then can we live with the reality that we should enjoy rights that we fought together for, side-by-side, and deny them that?
Today, as we reap the fruits of that democracy, it is only right that they must be afforded similar space in the sunshine of our democracy. We do them no favour, but reward their efforts in the same way that our own efforts are being rewarded. I have to remind the House that, after all, culture is not static.
There was a time when voting was only for men. It was rejected that women should vote. There was a time when society would not accept that women should vote. Yet, in the 1890s, New Zealand led the world in granting her women the right to vote. Then, in 1918, Soviet Russia followed suit, and then, in 1921, Great Britain followed. In 1924, the Soviet Union extended the right to women. In this country, in 1930, white women, for the first time, were allowed to vote.
Culture is not static. There was a time when you could not even talk about the possibility of a woman becoming a church minister. Today, denominations, one after another, are accepting that women may indeed become church leaders and church ministers. [Applause.]
Oh yes, there was a time when being a homosexual meant imprisonment. Just by being a homosexual, you got locked up in jail. Oscar Wilde, in Victorian England, was locked up in jail, not for any crime, but simply because he declared his homosexuality. Today, Great Britain is a different society, because culture is not static.
This country cannot afford to continue to be a prisoner of the backward, timeworn prejudices which have no basis. The time has come that we as this society, as this Parliament, on behalf of our nation, must lead.
I therefore wish to urge members of the House to look past the prejudices of our time, and grant this right to those who have been pleading with us for so long now so that we may bequeath to succeeding generations a society democratic and more tolerant than the one that was handed down to us by those who preceded us. I thank you. [Applause.]
Mr B E PULE: Madam Chair, the UCDP will not align itself with any institution that seeks to negate that marriage is between male and female. The argument that the Constitution calls for same-sex marriages is lame, because that very same Constitution is an outcome of the men and women in this very same Chamber, whereas the Bible has stood the test of time as the inspired Word of God.
It is a sad day in the history of this country that such bad legislation has to be passed in our time. What is the result of a union that does not procreate? The legislation is bad in the sense that it allows 18-year-olds to enter into a union even without the authority of their families.
Civil unions are a direct negation of attempts at moral regeneration. We should expect that with civil unions succeeding, we will be legalising sodomy, because the impression we are being given here is that the struggle was for sodomy and not for freedom. [Interjections.] Otherwise, how are these men going to show their marital status? [Interjections.]
The UCDP pities some members of this House who will vote for this Bill much against their will, conscience and religion. Poor colleagues will be voting through fear and not from a sense of justice. The UCDP will always look back and curse the day on which this legislation was passed. [Interjections.] The UCDP will not and will never support the Civil Union Bill. [Interjections.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Thank you. Order, members! Order! Order!
Dr S E M PHEKO: Chairperson, the traditional institution of a union between a man and a woman for procreation must be protected. It cannot be equated with same-sex unions. Same-sex marriages are so repugnant that only four countries in the whole world have legalised them. Do we want our country to be the fifth in the world and the first in Africa to be in this mess? [Interjections.] Which country in Africa will accept leadership from a country that suffers from Eurocentric eccentricity? Only those who have sold their souls to cultural imperialism will support this obscenity.
It is hypocritical in the extreme to talk of moral regeneration and the African Renaissance and then to turn around and surrender to this cultural aberration. It is no excuse that it is in the Constitution. It should never have been there in the first place.
The issues in the country are landlessness, inhumane squatting, unaffordable education, unemployment, lack of good health care and the eradication of poverty. These are the things that people fought for.
This Bill needed a national referendum if this Parliament were to respect the people of this country. A large body of scientific researchers has established that there is no scientific basis for a homosexual gene. [Interjections.] [Izwe lethu.] [Our land.] [Time expired.]
Mr J B SIBANYONI: Hon Chairperson, members of the House …
… ekulumenipikiswano le, ngifuna ukuqala khulu khulu ngehlangothini lomthetho. Lapho ngithi khona: Uthini umthetho? AbeSuthu bathi: Molao o reng? Amakhuwa wona athi: Wat sê die wet? [What does the law say?] [In this debate, I would like to focus on the side of the law. Wherein I say, what does the law say? The Sotho people say Molao o reng? Whites say, wat sê die wet?]
The Constitutional Court has ruled that the definition of marriage under the common law and the marriage formula in the Marriage Act of 1961 contradict the Constitution and are invalid to the extent that they fail to provide the means in terms of which same-sex couples can enjoy the status and benefits together with the responsibilities that marriage accorded to heterosexual couples. In this respect, the Marriage Act and the common law definition of marriage are in conflict with the Constitution and violate the rights enshrined in the Freedom Charter and our Bill of Rights.
I will not go into detail regarding the Freedom Charter, because the hon Lekota has already done that. But maybe I should immediately say that there are those who are saying that we should consider amending the Constitution and taking away the sexual orientation rights. To them I would like to say that that will not be enough, because you would have to go further than the Constitution and look at the Freedom Charter and try to amend the charter, which was signed in 1956 at which there were 2 808 delegates from all corners of the country. They came from Sekhukhune, from the Cape, from Mafikeng and the like, and they said that “All shall be equal before the law” and that all discriminatory laws shall be abolished.
The quote cautioned providing a remedy to the effect that Parliament should avoid a remedy that, on the face of it, would provide equal protection but would do so in a manner that, in its context and application, would be calculated to reproduce new forms of marginalisation. Historically, the concept of separate but equal served as a threadbare cloak for covering distaste or repudiation by those in power of the group subjected to segregation.
The hon Lekota has elaborated on the fact that when you are in power, you should not oppress or suppress those who are not in power or who are in the minority. Judge Sachs held that whatever legislative remedy was chosen must be as generous and accepting towards same-sex couples as it was to heterosexual couples, both in terms of the intangibles and the tangibles involved, and that appropriate sensitivity must be shown to provide a remedy that is truly and manifestly respectful of the dignity of same-sex couples.
I submit that the present Bill caters for this. Parliament, as we know, has until 1 December to correct this defect. Also, the Constitutional Court has said that if Parliament fails to do so, the word “spouse” will be read as being added to the Marriage Act after the words “wife” or “husband” in order for the defect to be cured. Now, in responding to the Constitutional Court judgment, Parliament enacted this piece of legislation that goes a long way towards confirming our constitutional values of equality, dignity and the advancement of human rights and freedom.
The Bill defines a civil union as the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act to the exclusion, while it lasts, of all others. The effect of this is that the Civil Union Bill is open to homosexuals, heterosexuals and intersex persons. Intersex refers to persons with ambiguous genitalia and who are neither male nor female. The Marriage Act excludes such persons from marriage.
The Civil Union Bill sets the age of getting married at 18 years. This will be in line with the Children’s Act when it comes into operation. The age of majority will be 18 years. So, too, is the case with the age at which one can become a voter.
The Marriage Act provides for females of 12 years and males of 16 years to get married with the Minister’s consent. But this Civil Union Bill is saying everybody will get married at the age of 18 years.
During the era of the parliamentary state in South Africa, there was what was known as a constitutional crisis. The parliament at that time wanted to take away the rights of coloureds as voters. When the court declared that law invalid, parliament convened and created what they called a high court of parliament. In that court they appointed people as judges who did not necessarily have legal qualifications.
The court also declared that high court of parliament not to be a court of law, but to be parliament operating under another name. I am supporting my argument by saying: let us not do that. Instead, we are going to be affirming or giving rights to the people who do not have rights.
Ngifuna ukutjho ukuthi thina, njengabantu ababuya emtlhagweni webandlululo, umtlhago nobuhlungu sibazi khulu. Akusingithi godu esingajika sifune ukugandelela abanye abantu sibakhuphele ngaphandle. Umhlonitjhwa ukhulumile bonyana abantu ebebagandelelwa ngaphandle, bagandelelwa ngilabo ababaphetheko gade bathwele budisi kangangani. U-Kalyan uthi thina esimalunga we-ANC bazosikatelela ukuthi sivowude namkha sikhethe namhlanjesi. Mina-ke ngithi sithabe khulu namhlanjesi ngombana sifumene ithuba lokobana sivowude; sinikele abantu amalungelo lawo ebegade banganawo; sibe babantu abanikela abantu amalungelo lapha eSewula Afrika. Abanye bavika ngeBhayibheli. Ngifuna ukutjho ukuthi … (Translation of isiNdebele paragraph follows.) [I would like to say, as people who are from poverty caused by apartheid, that we understand the pain caused by poverty. We cannot oppress other people by excluding them. The honourable member spoke of how difficult it was for people who were oppressed by those who were in power. Hon Kalyan says they will force members of the ANC to vote or to elect today. I say we are very happy that we got an opportunity to vote; we gave people rights they did not enjoy before. We are the people who gave South Africans their rights. Others are using the Bible as a scapegoat. I would like to say …]
… marriage is an institution recognised by the state in South Africa. Marriage, in terms of the Marriage Act, is a civil act. It is not a religious act.
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon member, your time has expired.
Mr J B SIBANYONI: I want to say that the ANC lives and leads. We support this Bill. [Applause.]
Mr S SIMMONS: Madam Chair, the UPSA will not support this Bill. [Interjections.] The nature and content of this Bill clearly reflects that this institution, namely Parliament, is abandoning the essence of its primary function. This primary function is not just one of law-making, but rather of making laws that reflect the norms and values of society. The Civil Union Bill, in its very essence, represents everything against the norms and values of our society at large. The acceptance of this Bill as an Act would be a failure of this Parliament’s objective to give a true enunciation of society’s values. The sensitive nature of this matter should have given government the opportunity to test this matter, together with the death penalty and affirmative action, by means of a referendum, precisely to test the will of the people.
The desire to have such an ethically challenged law is the wish of only a portion of society, minute in relation to the overwhelming majority of South Africans that finds it undesirable. I thank you. [Interjections.] [Time expired.]
Mr M R SIKAKANE: Chairperson, this is one Bill in which we should have had the Chair saying, “As there is no speakers’ list, the Bill will be sent to the President for concurrence,” or something like that. [Applause.] I don’t know what this is all about, because are you here to suppress other people, to take away their rights? I can’t understand you. What are you talking about? I just can’t believe you.
I take the podium as a disadvantaged person in the sense that I don’t know what happens with technology. This is not the first time that the Minister of Defence has handicapped me. I used to play soccer and I was a star, I’m sorry to tell you. I played in Durban for Zulu Royals. I was called “Terror”. [Applause.] And, as he is younger than me, when he came into the picture playing for Claremont Home Defenders - we were playing at Msizini – just because Claremont Home Defenders wanted him to be seen like terror, they nicknamed him “Terror”. So all the time he has been following me. [Laughter.]
So, this time I wrote my speech, and the title is: Rights. Now I see he has taken everything – every word – I have written in my speech. [Laughter.] I’m really, really disadvantaged. I don’t know what happens with technology today. I’m not sure.
I want to highlight two things. I won’t bore you now by going back to what my namesake has said. I grew up in Empangeni in the rural area. When I opened my eyes, our neighbour – I’m telling the IFP – was Mulondo. This baba was a huge man, bearded like myself. He used to dress up like this, and then take a doek and put it on his head and put on a pinafore. He was staying with a man, and this was in my youth. When I talk about my youth, you must know I’m talking about the 1940s. He was staying with a man in the rural area, but, for God’ sake, the community respected and accepted that situation. [Applause.] There was no problem whatsoever.
In the early 1960s when I started working, I worked for the Department of Bantu Administration in KwaMuhle, Durban. I went with Durban boy – the ANC used to call him “Durban boy” – Johnny Makhatini. He stayed in North Street. Black people could not stay in town, but he stayed in a back yard.
One day I was with him in his house and we were sitting there talking. There were two guys there I didn’t know – with … [Inaudible.] … Ngoma, who was the leader of the youth league. The next thing I saw a curtain open – there was no door leading to the bedroom – and there tata Sulu came out. That was at the time when they wanted tata Sulu dead or alive. He was hiding in Johnny Makhatini’s room in North Street. He started saying to these guys: Hey, what are you doing here? Didn’t I tell you to go and do one, two, three? They jumped up and left. Afterwards, Johnny told me that they were gay, but they were doing underground work for the ANC. They had been part of us in the struggle. So, what are you saying today? [Applause.]
So, just to highlight my speech now … [Laughter.] When we went out to these public hearings, there was the outcry of “Change the Constitution; call for a referendum”. All the time I was morose, feeling so out of place. I asked myself that if people were saying: “Call for a referendum; change the Constitution”, what does that mean? Does that mean that they want us to change the Constitution so that we suppress other people? Because, in short, that is what they were saying with their call for “change the Constitution; call for a referendum”. Are you sitting here, wanting to suppress other people’s rights? No, people, you can’t say that. I won’t give my speech now; Terror, my namesake, has said everything. The other thing I want to highlight is that when you say “Change the Constitution” and so forth, what does that mean? Are you telling me you are the first people sitting here to say: “This is our success; today I’m going to have a very good, peaceful sleep”? Because I would say to myself this is one time I have made a contribution because I have liberated other people, I have freed them; I have given them equal rights just like everybody else. So, this is a good time for members to pass and endorse this Bill. [Interjections.] And, understand one thing: when the Constitutional Court said we must amend, what it was saying to us was: “Parliament, you have repealed all discriminatory laws, but I think you have overlooked this one. Just go and repeal this law so that everybody is equal.” So, it is not actually the court that told us what to do. It reminded us of our duty, of our function, to change and repeal this discriminatory law.
The other thing that bothered me during the hearings was people saying, “Don’t use a certain word like ‘marriage’.” I was saying to people, “Where do you get the right to say to other people ‘don’t use this word’?” No one seated here has the right to say “The word ‘marriage’ belongs to me; it’s my right. Don’t use it.” Where do you get the right to say, “This word belongs to us”, or “to me” and “You mustn’t use the word ‘marriage’”?
I don’t want to say it’s all crazy when we use those terms. A very important part of this is that today we are fulfilling the requirements of the Freedom Charter. When you look at it all, all of our struggling, being arrested for freedom, arrested for nondiscrimination, arrested for uplifting the lives of other people – how on earth could we think, in all of those respects, of not allowing and giving other people their rights? We are fulfilling our document that was crafted and done by the ANC. That is all we are supposed to do today.
I should thank you that finally we have now honoured the wishes and the aspirations of other people by voting solidly for this Bill. I thank you, Chairperson. [Applause.]
Mr L M GREEN: Chairperson, the FD will never support legislation that undermines the Word of God. The FD rejects the Civil Union Bill because we believe it undermines biblical values, especially the sanctity of marriage between a man and a woman ordained by God.
Michael Cassidy of the Marriage Alliance of South Africa writes in a leaflet entitled Same-Sex Marriage, why South Africa should say no to this legislation:
I imagine some 98% of South Africans believe we should say no to the same- sex marriage.
Let me add that I do not know of one Islamic country throughout the world that would support same-sex civil unions. Most Islamic countries view same- sex unions as the immoral decadents of the worst kind, and they are right in this regard.
Why do committed Christians, Muslims and Jews collectively and unequivocally reject same-sex relations, let alone civil unions? According to the Bible, the Koran and Torah, homosexuality and lesbianism are an abomination in the sight of God. The versions of the creature He made in His own image.
Chairperson, I have two minutes and I only used one. [Interjections.] The Bible says in the book of Leviticus 18:22 that homosexuality is absolutely forbidden for it is an abomination. God has a monopoly on human rights. He created us and he knows what is good for us. He defines what is right and wrong, not culture or man-made constitutions. God destroyed Sodom and Gomorrah because of the sin of homosexuality.
In the New Testament God equally condemns homosexuality and same-sex unions, especially in Romans 1:26, where the Bible says that that is why God let go of them and let them do all these things so that even their women turned against God’s natural plan for them and indulged in sexual sin with each other.
As believers we must decide today whether we will accept and support God’s Word or whether we will support the sexual orientation clause in the Constitution. Our decision is quite unequivocal; we believe that God is greater than our Constitution and our courts and that His Word is the final authority. The FD therefore rejects the Civil Union Bill with the contempt it deserves. [Applause.]
Mr M SWART: Chairperson, the Constitutional Court recently declared two Acts of Parliament unconstitutional due to a lack of public consultation and participation. The Portfolio Committee on Home Affairs however went to great lengths and great expense to obtain the views of the public on the Civil Union Bill being considered here today.
Interested parties were provided an opportunity to present Parliament with written and oral submission and thousands of submissions were in fact received. Public hearings were mostly held in rural areas and it became abundantly clear that the majority of citizens preferred that reference to the words “marriage” and “same-sex” be deleted from the Bill.
After conducting public hearings the portfolio committee held a series of committee meetings at which very little was achieved. One of these meetings was scheduled for 6 November 2006, but members received scant notice of the meeting. Diaries had to be rearranged and appointments cancelled off to attend the meeting. An hour before the scheduled time, members were advised that the meeting was cancelled. No explanation for the cancellation of the meeting or an apology to members has been forthcoming. It became abundantly clear then that then ANC had not yet clarified their mandate. Committee members were asked to put their mandates before the committee, which they did, but no input came from the ANC.
Only two days later the ANC came up with an amended Bill now before Parliament. The Bill was steamrolled through the committee with no discussion being allowed and in totally unprocedural and undemocratic manner it virtually disregarded of the views of the public. According to press reports the chairperson of the portfolio committee now states that the Bill should be regarded as an interim measure.
Should this be true, it would probably have been easier and cheaper to allow the Constitutional Court judgement to take effect, i.e. by inserting the word “spouse” in the Marriage Act. It would have achieved the same result as this new Bill and it could have been amended in time to come. By just having two Bills, it could be seen as discrimination. The Bill is therefore unconstitutional; it would attract constitutional action and government should not be surprised if they land up with egg on their face once more.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, ladies and gentlemen, when I was growing up in a Christian home I was taught that God is love. I was told that religion is about tolerance, inclusivity and love.
Today I feel ashamed to be a South African, having seen the intolerance that people had to experience during the passing of this Bill, and about some of the things that were said in this House. If God is the God of love and you want to come and profess that God to us, then show us his loving face. That is what you should be doing. [Applause.]
Jammer, ek het nie vir jou gewys nie. [Sorry, I didn’t point at you.]
I think the second issue is that the ANC has very clearly stated its position on this matter from the outset. The Constitution is very clear; we are not doing any favours to gay people here. We are not giving them little pieces of goodwill. We are dealing here with what we decided upon at least 12 years ago when the equality clause was passed, which provided that we should not discriminate on the basis of sex, sexual orientation or marital status. That is what your Constitution says.
Today some of the people who helped pass that Constitution are sitting here with wide eyes, saying: But we could never have meant that. What on earth do you think you meant? [Laughter.] If you said you are not going to discriminate on the basis of marital status and on the basis of sexual orientation?
So the ANC position, which derives from long before the Constitution passed and which has been entrenched in the Constitution, is that these are rights that a group that has always been marginalised in our society is entitled to and all that we are doing now is making sure that we bring about that realignment. Some people have said here that all this happened just the other day. However, I would remind you that when the Fourie judgment was given, the ANC already made a statement on this matter. On 1 December 2005 already, the ANC had the following to say about the Fourie judgment:
The ANC reaffirms its view that citizens should not be discriminated against on the basis of sexual orientation and that the Constitution’s legal system and institutions of state have a responsibility to uphold that basic human right.
Today’s ruling, like others before it, is an important step forward in aligning the laws of the country with the rights and freedoms contained in the South African Constitution.
So the issue is not whether we should give rights. The issue is how we should do that, and I will get back to that in a minute.
Regarding the second issue, of which we have some luminaries here, with the hon Kalyan being one and the hon Greyling another, who tell us that it is definitely going to be unconstitutional to allow people not to solemnise marriages on the basis of their conscience. Now, I see there is a law adviser who also said this in the newspapers. I find this astounding, because all you had to do is to go and read the judgment, which deals with this issue.
So, it shows me that those members and the legal adviser did not read the judgment. Let me remind you what Judge Sachs said on dealing with this issue about conscience. It says in paragraph 159:
The principle of reasonable accommodation could be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in the violation of their conscience.
It goes on to quote the Christian education case, where it ends off by saying:
At the same time the state should wherever reasonably possible seek to avoid putting believers to extremely painful and intensely burdensome choices of being either true to their faith or else respectful to the law.
Therefore the judgment dealt with this issue. It says:
Do not allow such people to be forced to do anyagainst their
conscience or religion.
Now, we are also told that the Constitutional Court will find this Bill to be unconstitutional on other grounds. I think the issue here is simply this. The Constitutional Court in its court order found two aspects of the substance of marriages, which needs to be dealt with. Firstly, in the common law, the definition of marriage is to be dealt with and in the Act the formula for marriage is to be dealt with. The rest of the Marriage Act deals only with the procedures and processes to be followed. Therefore, only the two substantive issues the court found to be unconstitutional, namely both the definition of marriage and the formula to marriage, need to be dealt with.
Now, the issue for us in government was not whether we would allow this or not, but it was how best to do it. The problem with amending the Marriage Act is that we all know the Marriage Act really catered for Christian marriages of a certain kind. By amending that Act there were certain unforeseen circumstances that we are very worried about. For example, the Act, as it stands today, allows girls between 15 and 21 to marry. It allows girls under the age of 15 to marry if they have the permission of the Minister to do so. So if we were to amend the Marriage Act, the consequence would be that we would have had the problem of children at very young and tender ages getting involved in gay marriages or trying to do so and creating further controversy in society.
There were two other unforeseen circumstances. I do not have time to deal with them, but we will do so at a later occasion. Thank you very much. [Time expired.][Applause.]
The MINISTER OF HOME AFFAIRS: Madam Chair, I just want to correct the fact that some people have made comments which I really think are not correct, and we need to set the record straight.
It is not true that we are dealing here with a new piece of legislation. I think what we are dealing with here is the same Bill which was presented before the portfolio committee or before Parliament. What has happened is that, on the basis of what has emerged from the public participation process and from the consultation with a variety of stakeholders, certain amendments have been made and that’s what we are dealing with here. So, there is no new piece of legislation.
If I may touch on just two of those, most stakeholders actually made the point that there is a need to deal with the issue of domestic partnerships at a later date, because we had no constitutional deadline to meet. That has been removed from this piece of legislation.
The second issue was the issue of being separate but equal. In spite of trying our best to meet the two principles which were stated by the Constitutional Court and also to look at the rights, status, benefits and the responsibilities to give all those to same-sex couples in this particular piece of legislation, people still maintained that this was a separate but equal route. The religious groupings were raising the issue of, for instance, even the mere mentioning of same-sex.
To deal with the issue of separate but equal, we then had to actually make sure that this Bill did not only cater for same-sex couples but also for heterosexual couples who want to go the civil partnership route. That’s what we have done here.
So, it is not a new piece, but one area which remains contentious, which I believe is still in the public discourse and there is a need to engage on, is the whole issue of marriage. There has been insistence on that from quite a number of stakeholders, that there should be no reference to marriage at all in this piece of legislation. That is the one issue which is the bone of contention here.
What we have been advised is that we then have to engage in a discussion as to whether having the word marriage in this piece of legislation is a legal necessity or a legal nicety. That’s what somebody said. It was said, in fact, that it is a legal necessity because what we are likely be confronted with is a ruling against the Bill, that it is unconstitutional even before people have looked at this piece of legislation.
I am not sure if in this debate, by rejecting this piece of legislation, people are suggesting that perhaps government should have allowed the courts to then amend the Marriage Act on 1 December.
We believe we knew when we brought about this Civil Union Bill that this is not a matter society is going to agree on. That society is polarised. We are a divided society on this matter, but we have a responsibility of conducting continuous public education, of actually talking to people about the rights which have been provided by this very Constitution which we all passed in 1996; which we provided to all the people of South Africa. We now have a responsibility to deliver the promise contained, amongst others, in that Constitution and that Bill of Rights and that’s what we are trying to provide here.
Now I just thought that we needed to set the records straight that it is not true that we are bringing in a new piece of legislation.
I have actually seen the submissions of all the parties, including the submission from the DA. One of the proposals you made two weeks or a week ago before this matter was finalised was the issue of actually ensuring that this Bill does not just cater for same-sex partnerships but also is inclusive and therefore you have two consenting adults allowed to go the route of a civil union if they so wish. [Interjections.] You did say that.
But, secondly, you yourselves proposed in your submissions that the entire clause on domestic partnerships should be removed. That is exactly what has happened here; it has been removed.
The issue revolves around marriage, and I think it is the responsibility of all parties, not just the opposition party or the ANC. Our responsibility as leadership or representatives is to continuously engage on the issue because, of course, some of the people are going to be voting for the Bill, because they have an obligation to do so to provide these rights, not necessarily because people may agree on this particular issue.
The last thing I want to say is, I think we all have a responsibility to step back, remove ourselves from the situation and look at the rights of a particular grouping of people here in this country, which does exist. It does exist and you cannot wish them away. There is no dustbin where you are going to collect a particular group of people and throw them into. We have a responsibility to society. Thank you. [Applause.]
Debate concluded.
Question put: That the Bill be read a second time.
Division demanded.
The House divided:
AYES - 229: Ainslie, A R; Anthony, T G; Arendse, J D; Asmal, A K; Balfour, B M N; Baloyi, M R; Benjamin, J; Beukman, F; Bhamjee, Y S; Bhengu, F; Bloem, D V; Bogopane-Zulu, H I; Bonhomme, T J; Booi, M S; Burgess, C V; Cachalia, I M; Camerer, S M; Carrim, Y I; Cele, M A; Chalmers, J; Chauke, H P; Chohan-Khota, F I; Coetzee, R; Combrinck, J J; Cronin, J P; Cwele, S C; Davidson, I O; De Lange, J H; Diale, L N; Didiza, A T; Dikgacwi, M M; Direko, I W; Dithebe, S L; Dlali, D M; Doidge, G Q M; Dreyer, A M; Du Toit, D C ; Ellis, M J; Erwin, A; Farrow, S B; Fihla, N B; Fraser-Moleketi, G J; Frolick, C T; Fubbs, J L; Gabanakgosi, P S; Gaum, A H; George, M E; Gerber, P A; Gigaba, K M N; Gololo, C L; Gumede, D M; Gumede, M M; Hendricks, L B; Hendrickse, P A C; Hogan, B A; Huang, S; Jacobus, L; Jeffery, J H; Johnson, C B; Johnson, M; Jordan, Z P; Kalako, M U; Kalyan, S V; Kasienyane, O R; Kasrils, R; Kekana, C D; Khoarai, L P; Kholwane, S E; Khumalo, K K; Kohler-Barnard, D; Komphela, B M; Koornhof, G W; Kotwal, Z; Landers, L T; Lekgetho, G; Lekota, M G P; Leon, A J; Lishivha, T E; Loe, S J; Louw, J T; Louw, S K; Lowe, C M; Ludwabe, C I; Maake, J J; Mabandla, B S; Mabena, D C; Maduma, L D; Madumise, M M; Magubane, N E ; Magwanishe, G B; Mahlaba, T L; Mahlangu-Nkabinde, G L; Mahote, S; Maja, S J; Makasi, X C; Makgate, M W; Maloney, L; Maloyi, P D N; Maluleka, H P; Maluleke, D K; Manana, M N S; Manuel, T A; Mapisa-Nqakula, N N; Mashangoane, P R; Mashiane, L M; Mashigo, R J; Mashile, B L; Masutha, T M; Mathebe, P M; Matlala, M H; Matsemela, M L; Matsepe-Casaburri, I F; Matsomela, M J J ; Mayatula, S M; Maziya, A M; Mbili, M E; Mbombo, N D; Mentor, M P; Mgabadeli, H C; Mkhize, Z S; Mlangeni, A; Mnguni, B A; Mnyandu, B J; Modisenyane, L J; Mofokeng, T R; Mogale, O M; Mogase, I D; Mohamed, I J; Mohlaloga, M R; Mokoena, A D; Montsitsi, S D; Moonsamy, K; Morgan, G R; Morobi, D M; Morutoa, M R; Morwamoche, K W; Mosala, B G; Moss, L N; Moss, M I; Motubatse-Hounkpatin, S D; Mpahlwa, M B ; Mshudulu, S A; Mthembu, B; Mtshali, E; Mufamadi, F S; Mzondeki, M J G; Nawa, Z N; Ndzanga, R A; Nel, A C; Nene, M J ; Nene, N M; Newhoudt-Druchen, W S; Ngaleka, E; Ngcengwane, N D; Ngcobo, E N N; Ngculu, L V J; Ngele, N J; Ngwenya, W; Njikelana, S J ; Njobe, M A A; Nkem-Abonta, E; Nkuna, C; Nogumla, R Z; Ntombela, S H; Ntuli, B M; Ntuli, M M; Ntuli, R S; Nwamitwa-Shilubana, T L P; Nxumalo, M D; Nxumalo, S N ; Nyambi, A J; Nzimande, L P M; Olifant, D A A; Oliphant, G G; Oosthuizen, G C; Pieterse, R D; Rabie, P J; Ramakaba-Lesiea, M M; Ramgobin, M; Ramodibe, D M; Ramotsamai, C P M; Rasmeni, S M; Reid, L R R; Saloojee, E; Schippers, J; Schmidt, H C; Schneemann, G D; Schoeman, E A; Seadimo, M D; Sefularo, M; Sekgobela, P S; Selfe, J; September, C C; Shabangu, S; Sibande, M P; Sibanyoni, J B; Siboza, S ; Sikakane, M R; Sisulu, L N; Sithole, D J; Skhosana, W M; Skweyiya, Z S T; Smith, V G; Smuts, M; Solo, B M; Solomon, G; Sonto, M R; Sosibo, J E; Sotyu, M M; Stephens, J J M; Steyn, A C; Surty, M E ; Swart, P S; Thomson, B; Tinto, B; Tlake, M F; Tolo, L J; Trent, E W; Tsenoli, S L; Tshwete, P; Van den Heever, R P Z; Van Niekerk, A I; Van Wyk, A; Vundisa, S S; Wang, Y; Waters, M; Xolo, E T; Yengeni, L E; Zita, L.
NOES - 41: Bhengu, M J; Blanché, J P I; Cupido, H B ; Doman, W P; Godi, N T; Gore, V C; Green, L M; Greyling, L W; Groenewald, P J; Harding, A; Jankielsohn, R; King, R J; Labuschagne, L B; Mars, I; Masango, S J; Meshoe, K R J; Minnie, K J; Mncwango, M A; Mpontshane, A M; Mulder, C P; Mulder, P W A; Nel, A H; Nkabinde, N C; Opperman, S E; Pheko, S E M; Pule, B E; Rabinowitz, R; Roopnarain, U; Sayedali-Shah, M R; Seaton, S A; Sibuyana, M W; Sigcau , S N; Simmons, S; Smith, P F; Spies, W D; Swart, M; Swart, S N; Van der Merwe, J H; Van Dyk, S M; Zikalala, C N Z; Zulu, N E.
ABSTAIN - 2: Phungula, J P; Seremane, W J.
Mr J P I BLANCHÉ: Madam Chair, we seem to have a fault with some of the equipment. Would it have been registered or not?
The HOUSE CHAIRPERSON (Ms C-S Botha): Hon Blanché, will you come to the Table, and they can record your vote here please?
Question agreed to.
Bill accordingly read a second time.
TRANSNET PENSION FUND AMENDMENT BILL
(Second Reading debate)
The MINISTER FOR PUBLIC ENTERPRISES: Madam Chairperson, I must say that after what was, I believe, quite a momentous debate and vote, we are dealing with matters which may seem more mundane, but which I think also relate to some important rights that pensioners have. I would like once again to table before this House the second reading debate for the Transnet Pension Fund Amendment Bill, because this ends a long process and it is my hope that the House will support the Bill.
Members will recall that the basic changes being made to the Transnet Pension Fund Bill are the outcome of the protected negotiation and strike action earlier this year. In the first reading debate, the portfolio committee and I gave quite a bit of detail on the actual contents of the Bill, so I will not repeat that now. I will just take some time to remind us all of the origins of this piece of legislation.
The problem arose when we began to implement the restructuring of Transnet by moving certain entities off its balance sheet into separate entities. The particular issue arose when the process of transferring Metrorail to the Department of Transport commenced. The unions raised the point that it seemed unfair that when their members who’d been moved from one part of the public sector to another should be prejudiced in any way. Such prejudice particularly arose out of historically specific provisions in the pension dispensation in Transnet. This is quite a complex issue but it was agreed as part of the resolution of the strike that the matter would receive attention.
After very constructive negotiations the amendment Bill embodies the final solution to this problem. This essentially allows existing employees to move out of Transnet to another SOE or public entity, but to remain within the new Transport Pension Fund. Whilst this does create a new degree of complexity, and does not make for the most elegant arrangement between employees and the employer company, I believe it is a workable and fair solution to the problem.
It was, and I believe is, the view of some unions that the new fund should be opened for new employees entering those new SOEs or public entities. However, we were not prepared to accommodate this as it makes for a complex situation and creates unnecessary complexities and operational problems for both the enterprises and the future pensioners. I am quite clear in my mind that the implementation of this suggestion would not be in the best interest of either the SOE or the pensioners.
The hon member Peter Hendrickse, who chaired the sessions on the Bill of the portfolio committee, will provide more detail to the House on the excellent work that they have done on improving the Bill since the first reading debate. Let me just highlight one or two points: Firstly, the definition of “alternate employer” makes it quite clear that this applies to a specific situation relevant to Transnet and its employees, who moved to a location where the state is either a shareholder or the controlling structure as defined in the PFMA.
We are dealing with particular circumstances related to the current restructuring of Transnet. I stress this point as it is in no-one’s interest to have overly complex pension funds. An insight into what I mean by complexity as found in the fairly detailed structure of the fund and subfunds that is dealt with in clause 4. This complexity is necessary in order to protect the interests of the enterprises and the employees. We can accommodate this complexity to meet the legitimate needs of employees in a very specific current and historical situation we find ourselves in now, but clearly this is not best practice model for the future.
I believe that we have protected the rights of existing employees through the amendment Bill. There have been no significant changes in regard to the second defined benefit fund. One positive note I have in regard to this second defined benefit fund is its improved financial position. As indicated by the CEO of Transnet, this will allow us to address certain real problems in that fund.
Let me conclude by once again thanking the portfolio committee for the hard work they have done and, in particular, the hon Peter Hendrickse for chairing the process. We were dealing with the pressure of time and an antiquated form of drafting. It is often much more difficult to start from something that is from another era when amending an Act than it is to start with a clean slate.
I know that the subcommittee put in many hours of work. It was a hard task for this time of the year and I would like to thank them for that. I would like to thank the CEO of Transnet and her team for their commitment to ensuring that the settlement condition of the strike was indeed implemented, and my thanks to the unions for their steadfast commitment to the interests of their members. It is my sincere hope that the House will support this amending Bill. Thank you.
Mr P A C HENDRICKSE: Madam Chair, as the Minister has just stated and as we said during the Bill’s first reading, the Bill deals with the consequences of Transnet’s restructuring, with particular reference to Metrorail and SAA – South African Airways. It was also meant to protect the pension benefits accumulated by Transnet employees, with regard to the tax-free amounts that they accumulated before March 1990.
An agreement was reached after a protracted strike earlier this year and we wanted to ensure that in the processing of this Bill we did not inadvertently detract from it. To this extent, we kept the unions and Transnet abreast of all developments, changes and the committee’s progress. We spent a lot of time tying to improve the writing and style of the Bill to make it much more user-friendly and easier to read. The Minister himself referred to the antiquated wording in the original Act.
Some of the substantive changes included the following: to formalise the initial transfer from the Transport Pension Fund to the Transnet subfund; to remove the veto powers of the Transnet Pension Fund valuator in determining the value of assets to be reassigned from one subfund to another; to provide for the general powers of the board of trustees as opposed to the subfund board powers; to provide that special rules rather than the general rules deal with the outsourcing of liabilities - special rules are those rules that are applicable to subfund boards; to remove the unfettered discretion of the board of trustees; to determine the allocation of benefits, costs and losses or liabilities between subfunds of the Transnet Pension Fund, and this means that any aggrieved party will be able to go to court to challenge the decision of the board; to remove the obligation on the board in terms section 9 to stop the payment of the pension to an insolvent pensioner, and instead to give the board the discretion to decide whether to do so or not; to provide for the transfer of special pensioner categories – these are people who are already receiving a pension from Transnet, for example the black widows pension fund; and to transfer this liability from Transnet to this Transnet Second Defined Benefit Fund, with the approval of the trustees, Transnet and the Minister.
During our committee public hearings some issues were raised and I’d like to refer to them. As I said, although the key provision of the Bill was meant to be an outcome of the negotiated settlement between Transnet management and the trade unions, it did emerge at the public hearings on the Bill that at least one of the Transnet unions, Utatu – United Transport and Allied Trade Union - and the SA Airways union, that is the Aviation Union of Southern Africa, felt that people who became employed by an alternative employer should, as defined in the Bill and after its implementation, be allowed to join the Transnet Retirement Fund, and that if they were to be excluded, that this exclusion should be set out in the rules of the fund and not in the Act.
Transnet management were opposed to these proposals. The Transnet management and the unions presented their respective arguments regarding these issues in written form to the committee. Consistent with the committee’s views that we cannot serve as an industrial relations forum or a bargaining chamber, we felt that it was not appropriate for us to decide on whether the new employees should belong to the Transnet Retirement Fund.
Following further negotiations between Transnet management and the trade unions on the recommendations of the committee, we were informed that the SA Transport and Allied Workers Union, Satawu, and the SA Railways and Harbours Workers Union, Sarhru - who represent the majority of workers, agreed that new employees should not be included in the Transnet Retirement Fund, and that this exclusion should be set out in the Act and not just in the rules of the fund.
Utatu and AUSA still held to their views but decided that they would not pursue the matter further with us. They wanted us to record their views in our report to Parliament, and this is what we are doing here today.
The committee processed the Bill accordingly. However, some members of the committee felt that it was not necessary that the exclusion of new employees be set out in the Bill. We thus suggested that whether the provision to exclude new employees from the Transnet retirement fund was in the Bill or not would ultimately not affect decisions by the unions to take industrial actions on the matter. So, not too much should be made of the practical effects of the differences between management and some of the unions on this matter.
Several members of the public who responded to our request for comments on the Bill raised concerns about the Transnet Second Defined Benefit Pension Fund. These concerns cannot be addressed with the processing of this particular Bill. They essentially revolve around some of the following issues: that since 2003 members of the Transnet Second Defined Benefit Pension Fund have been receiving increases of 2% per annum; and that there are pensioners who receive less than the amount granted to those receiving state old-age pensions, and also that there are potential pensioners or dependent pensioners who, for a variety of reasons, including the system of migrant labour and wide-scale illiteracy in the past, may not have been aware that they are entitled to certain benefits. Transnet has offered to assist these people if they should be approached. Obviously, the committee empathises with the above concerns.
In a briefing on Transnet‘s annual report to the portfolio committee on 10 October, the chief executive officer, Ms Maria Ramos, said that Transnet was also concerned about the issues raised above and had presented a proposal to the trustees of the fund in this regard. With the money that will come into the Transnet Second Defined Benefit Pension Fund – what a long name – and with the recent sale of the V&A Waterfront, the prospect of resolving these matters are much greater.
The committee also raised the matter during the First Reading debate on the Bill and welcomes the Minister’s favourable response as he again responded today. Secondly, I would like to comment on the circumstances in which we had to process the Bill. The committee has given notice that it will not again fast-track a Bill of this nature, particularly in the difficult end of the year period. We had very limited time to finalise this Bill.
The committee would also like to express its unanimous frustration at the fact that we do not have the necessary resources to assist us to do our work efficiently and effectively. I believe that it is a severe indictment on all of us – the presiding officers, the Whippery, the chairpersons of committees, the management of Parliament and ourselves that, 12 years into our democracy and with everyone proclaiming that committees are the backbone of Parliament, we do not have the necessary skilled and technically competent people dedicated to each committee - people who are there to assist us when we review annual reports or budgets or deal with legislation such as this.
It is nonsense that committee chairpersons must spend hours writing reports – be it on study tour reports, oversight visits, public hearings or annual reports. It is also ridiculous that members are required to ensure that each comma, “may or shall” is correctly used to reflect the committees’ wishes.
Allow me, in passing, just with envy, to report to you that when we visited the Brazilian parliament last year, we found that they had 200 – and I want to repeat – they had at least 200 lawyers to assist members with, amongst others, research, report and speech writing. And I think we can take a tip from them. In conclusion, may I express my appreciation to all those who participated in the processing of this Bill; the unions and Transnet; and all those who took time to write to us, particularly regarding the Transnet Second Defined Benefit Fund. You have our support and our well wishes.
A particular word of thanks goes to Carla Prentice from Transnet, to Ursula Fikelepe and Denzel Matjila at DPE, to Fazile and Ouma and Gideon Winn – the state law advisers, Martin Stephens from the DA for his contribution to the work of the subcommittee… [Interjections.] … I thought we’d get your support. I also want to thank our ANC researcher, Desmari Carolus. These people were prepared to meet at short notice, to work long hours and oftentimes had to work late at night at home.
Last but not least, allow me to thank my colleagues and comrades in the committee and our chairperson, Yunus Carrim – I hope you’re paying attention. Yunus Carrim is a perfectionist, a terribly hard task master but one who at least leads by example.
The committee unanimously recommends that the House passes this Bill. With the few seconds remaining to me, may I, on behalf of this House, congratulate my wife on her birthday today. [Laughter.] [Applause.]
The HOUSE CHAIRPERSON (Ms C-S Botha): Congratulations to your wife, hon member!
Mr M STEPHENS: Thank you, Madam Chair. May I also associate myself with those congratulations. During the first reading debate I stated that we regard this Bill as an important piece of legislation since it aims to protect the vested rights of Transnet employees and pensioners in the Transnet restructuring process.
Its aims are laudable, although the Bill in its original form, as we have heard, had not been meticulously drafted and the committee had to spend a great deal of time redrafting it. This was done primarily by the subcommittee already mentioned, consisting of myself and the hon Hendrickse as acting chair, with valuable inputs coming from the committee chair, hon Carrim, and very ably assisted by the already mentioned personnel from the pension fund, the Department of Public Enterprises, Transnet and the state law advisers. We owe them all a great deal of thanks.
In the same breath, however, it must be said that drafting legislation is not the function of parliamentarians. We should not find ourselves in the position of having virtually to reconceive the structure of a Bill and then to redraft it on the trot.
Apart from the many amendments in order to get rid of as much legalese as possible, the committee rejected the original clause 5 of the Bill and then had to redraft a whole new clause to insert into the Act as section 4A.
Section 4A contains the core provisions of the Bill. The other provisions essentially follow on from these, thus when the new section 4A was drafted a number of consequential changes in other clauses became necessary. The speed at which this had to be done is not acceptable. It increases the likelihood of unintended consequences in practice and at the minimum might saddle the Statute Book with a badly worded and ill-structured piece of legislation.
Under the circumstances and given the time constraints, we did our best to produce a workmanlike document that embodies the spirit and the intent of the agreement that was reached between Transnet and the labour unions. We trust that there will be no unintended consequences, but if there are we invite all parties concerned to approach the committee so that suitable amendments can be proposed. We sincerely believe, however, that this will not be necessary.
I have been approached by many Transnet pensioners seeking reassurance that their pensions will not be detrimentally affected. This insurance can indeed be given, but the weakness is that there are no changes that will materially benefit their plight. As a committee we had inputs from the pensioners, and we can assure all of them that we are very much aware of their problems.
We are currently urging the department and Transnet to bring these pensions, which have lagged behind inflation for years, up to a proper civilised standard. We are informed that some pensioners receive less than a civil pension, as has been mentioned. That is no way to reward those who served Transnet faithfully over many years. Transnet assures us that the sale of the V & A Waterfront might ameliorate that situation.
I have also tried to inform the Minister of Finance, the hon Trevor Manuel, that his department is indeed the guarantor of the Transnet Pension Fund, contrary to his denial of a few days ago in this House. I hope he got the message. When he becomes alive to that fact we trust that he, too, will start taking a keener interest in the whole matter of Transnet pensions.
Everything considered, we are satisfied with the Bill as it now stands and the DA supports its second reading. I thank you.
Dr U ROOPNARAIN: Madam Deputy Speaker, hon members, the Transnet Pension Fund Amendment Bill is a direct result of the restructuring processes at Transnet, and in particular the strategic disposal of noncore assets.
The hon Minister spoke at length about the context of this Bill. Understandably, the disposal processes caused a great deal of concern and anxiety amongst the affected employees about their retirement benefits. As a result the labour unions, Transnet management, and the Minister for Public Enterprises agreed, after negotiations, that a special amendment of the Transnet Pension Fund Act was necessary to ensure that the disposal process had little effect on the retirement savings of employees.
The Bill therefore provides that transferring employees and pensioners can retain membership in existing Transnet pension and retirement funds. Very importantly, the Bill retains the status of the Transnet Pension Fund as “paragraph (a)” funds in terms of the 1956 Pension Funds Act. This means that when a member leaves employment he or she is entitled to have his or her lump sum benefits taxed on the basis that that portion attributable to membership prior to 1 March 1998 will not be subject to tax. The IFP welcomes this protection given to the retirement savings of qualifying members.
The Bill provides that members’ pensions may in future be attached not just in terms of the Divorce Act but also the Maintenance Act. The IFP supports this as this is yet another victory for women and children.
The IFP is satisfied that the Bill is a result of extensive negotiations between the relevant stakeholders and that it is in their common and best interest. After much re-engineering of the Bill and the elimination of legalistic jargon, the IFP will therefore support the Bill. I thank you.
Mr H B CUPIDO: Deputy Speaker, the ACDP is satisfied with the provisions of this Bill, particularly as far as they relate to the protection of the interests of affected employees. The Transnet Pension Fund Amendment Bill is fully compliant with current labour legislation.
The proposed creation of a multi-employee fund for state-owned enterprises will further facilitate the establishment of a dedicated pension fund for Transnet employees. This means that the implementation of innovative human resource strategies can take place in an efficient, cost-effective and independent manner.
The selling off of noncore assets generally results in improved operational efficiency, and also financial gain. In the case of Transnet in particular these positive spin-offs hold significant implications for the country. Proceeds from the disposal of noncore assets will boost Transnet’s R64,5 billion capital investment programme over the next five years. The economic growth for the country through strengthening of infrastructure is therefore guaranteed.
The Transnet Pension Fund Amendment Bill reassures South Africans that care will be taken to ensure that employees are not disadvantaged by initiatives aimed at shifting focus to one operation. We support the Bill. Thank you.
Ms S RAJBALLY: Thank you, Madam Deputy Speaker. In view of the current disposal process of Transnet’s noncore assets to government and the private sector, the MF finds this Bill crucial in protecting the interests and rights of employees and pensioners who are being transferred due to this process, as well as to allow them to exercise the option to retain their current membership of the fund.
The Bill correctly makes available provisions for subfunds that shall cater for the transfer of liabilities to the new employer. This will secure Transnet’s commitment to guarantee the benefit of its funds to its members.
We are, however, interested in the impact this will have on new employees of Transnet as well as the state-owned enterprise employers that have taken over Transnet’s noncore business, and the efficacy of the process.
We also express our concerns about the new section 10(b) in respect of which clarity is needed in the event of death. However, we believe that the multi-employer pension fund housed by the Transnet Pension Fund is certainly a good means to extend the risks carried by Transnet and to protect the interests of older members of the fund.
The MF supports the Transnet Pension Fund Amendment Bill. Thank you, Madam Chair.
Mr Y I CARRIM: Comrade Deputy Speaker, comrades, friends, I want to say something that I think is unprecedented in the history of this House. I hope it will be recorded. I have been allocated five minutes, and I am going to use only a minute. So can we start by applauding me? [Interjections.] If you do not applaud, I am going to speak for the full five minutes. [Applause.]
I want to say, firstly, thank you to everybody who participated in processing this Bill, which is a fast-tracked Bill. In particular of course I want to thank Peter Hendrickse, especially as he praised me so much. Those are the words, by the way, that I wrote, of his speech. He wrote a longer speech for me to present today on how good he has been, but unfortunately I left the speech upstairs in my room, Peter! All I can say is that Peter Hendrickse …
The DEPUTY SPEAKER: Hon member Hendrickse!
Mr Y I CARRIM: Yes, hon member Hendrickse. Sorry, that was most ungracious of me. He has been really outstanding, Madam Speaker, and I really think there is no need for me …
Mr M J ELLIS: Madam Deputy Speaker, I think the hon member’s minute is up.
The DEPUTY SPEAKER: Not as yet.
Mr Y I CARRIM: Not as yet, thank you. But let me just say, finally, that there were other issues, Minister, that arose from this Bill, dealing with the broader pension fund industry. And members, not least the hon – let me stress, honourable – Peter Hendrickse, raised these issues, because they know more about the pension industry.
The DEPUTY SPEAKER: Hon Carrim, we have given you back your five minutes.
Mr Y I CARRIM: Oh, OK. Well, I just want to say one final thing, that we have drawn the attention of the Chairperson of the Portfolio Committee on Finance, Nhlanhla Nene, who is here, to the broader pension fund industry issues which arose while we processed this Bill. We are pleading that the pension fund industry be reviewed before the year 2020 by your Minister of Finance and be brought to this House, that the matter be accelerated, and that all the members who raised issues bring it to your door so that you can put pressure on the Minister of Finance to finalise that process. Thank you, all. [Applause.]
The MINISTER FOR PUBLIC ENTERPRISES: Thank you very much, Deputy Speaker, and to all those members who have spoken. Once again, I really do commend and sympathise with the committee for having to work under difficult circumstances, but I think from my side as a Minister I have seen a committee with a lot of capacity to make sensible changes. I think that is valuable. It may not be entirely what you expected to do, but I do think that it is actually a very useful exercise.
This is the first of a number of pieces of legislation that will emanate from the restructuring process. I am afraid we are putting some pressure on you again to table the SAA Bill, but it does not have to be passed by the end of this year. Originally, with some of these new Bills, we had thought we may not need them, but I think it is a wiser decision to incorporate many of these changes in legislation. When we started the relationship between the Ministry and the committee I do not think we envisaged a great deal of legislation, but we will in fact end up with a few pieces of legislation. So I am very pleased that you were able to practise and hone your skills on this particular fairly simple Bill, because there are some others coming up next year.
We are conscious of the issues in the second defined benefit fund. I think some steps will be taken that will be beneficial in the near future, but it really reinforces my viewpoint that our objective for our employees in the state-owned enterprises is to have stable, simpler pension funds. The complexities that we have inherited from the past are not a good thing and, generally speaking, our objective over time must be to simplify these Bills, make them stable, make them financially sound, in the best interests of people who have worked all their lives and really do deserve a good pension. But thank you for the support, and I hope the House approves the Bill. [Applause.]
Debate concluded.
Bill read a second time.
GIVEN THE IMPORTANCE OF THE LOCAL SPHERE OF GOVERNMENT, THE PROGRESS THE NATION HAS MADE WITH THE BUILDING OF THE NECESSARY INSTITUTIONS AND CAPACITY, WITH RESOURCE ALLOCATION, AND WITH THE PROMOTION OF PARTICIPATORY DEMOCRASCY, THEREBY IMPACTING ON THE QUALITY OF LIFE OF SOUTH AFRICANS
(Subject for Discussion)
Mrs L E YENGENI: Madam Speaker, it is appropriate that, as the first speaker on my party’s list, I should begin with a few reminders of the fundamental principles, values and policies that inform the manner in which we look at the various aspects of local government.
The cornerstone of our policies is the Freedom Charter. The vision of local government as expressed in the Freedom Charter is that there shall be houses, security and comfort under which clause, amongst others, the following rights and conditions are called for:
All people shall have the right to live where they choose, be decently housed and to bring up their families in comfort and security;
Slums shall be demolished, and new suburbs built where all have transport, roads, lighting, playing fields, crèches and social centres;
Fenced locations and ghettos shall be abolished, and laws which break up families shall be repealed.
Another foundation of our system of governance is the Reconstruction and Development Programme, the RDP. In the RDP, we envisaged local government that will be guided by the following principles: a people-centred approach; developing human resources; building the economy; democratising the state and society; being people-driven; being people-centred; innovative in the ways in which it combines growth and development; and committed to continuously achieving overall coherence, and unity of purpose.
When we started 11 years ago, we set the following goals for local government. To ensure the end of apartheid local government, about 800 municipalities would need to be linked together and create 300 new democratic nonracial local authorities. Informal settlements as well as those hidden behind Bantustan boundaries must be included when drawing up local boundaries. Rural areas and traditional authorities should also have elected local authorities. Rich consumers should be able to subsidise the poor so that they can have access to services.
Local government in South Africa has undergone a major process of transformation that has resulted in our new system of local government. The most significant achievement in the area of governance since 1994 has been the dismantling of the apartheid state and establishment of a nonracial democratic unitary state.
This fundamental transformation saw a shift from over 1 200 racially based local authorities, four provincial administrations and 10 Bantustans into 284 democratically elected municipalities, nine provinces and a strong national government.
This process demanded a democratic and developmental local government that puts responsibility and accountability on officials, councillors and front- line workers and good relations with the citizens of the municipality. Capacity-building therefore became one of the important tools available to local government in bridging the gaps in what would be expected of us and what we could now deliver.
It can be said that as we enter into our second decade of freedom, our evolving system of integrated governance is increasingly making it possible for the country’s development objectives to be met. This process we are talking about also resulted in the establishment of a progressive policy and institutional framework and a regulatory environment conducive to developmental local government.
As provided in our Constitution, local government has become responsible for a growing number of services that were previously managed by central government. This has left municipalities with many needs for new skills to meet new performance demands, yet many municipalities do not have the managerial, administrative, financial and institutional capacity to meet the rising expectations of local communities.
Thus a way had to be found to transform this delivery arm of government into a truly service delivery model to meet the development needs of the communities and ensure stability, predictability, and efficiency.
The progress made towards achieving a legal and financial framework necessary to consolidate the system of local government for accelerated service delivery must be viewed from the lenses of the following pieces of legislation: the Local Government: Municipal Systems Act of 2000, the Local Government: Municipal Finance Management Act of 2003, and the Local Government: Municipal Property Rates Act of 2004.
The Local Government: Municipal Systems Act has built up a momentum for municipal reform, and created incentives for improved performance that would eventually increase confidence and the possibilities of positive change. The MFMA and MSA therefore strengthened institutional capabilities by fostering transparent decision-making and citizens’ participation in the political and municipal processes.
They also call for a need to have strong local partners that are critical to the sustained improvement of municipal management which in turn would lead to the strengthening of initiatives like local economic development. The capacity of local government in financing and administering local economic development initiatives is a critically important consideration when attempting to eradicate poverty and create employment.
The transfer of redeployable skills is limited, causing the assistance provided to be largely temporary. Therefore, we must make more effort to enhance the skills development initiatives that are aimed at upgrading skills and competencies which is a critical ingredient for sustainable economic growth. The Intergovernmental Relations Framework Act has assisted with better co- ordination and integration among three spheres of government so that we are more effective in reaching targeted groups. We have now seen many programmes that are directly aimed at building capacity within the local municipalities, namely the Municipal Service Partnerships. The MSP is based on the implicit recognition that the capacity and skills in local government differ. Consequently, municipalities are assisted in the identification of potential service delivery partnerships as well as in the development of technically sound contractual arrangements.
The Municipal Infrastructure Investment Unit also offers support and guidance to municipalities in the area of structuring the public-private partnerships. The new local government capacity-building system will also bring a shift in the way that municipalities work as part of the move towards developmental local government.
In the context of overall transformation of local government, the new skills development strategy has laid a basis for a more people-orientated local government system, able to meet the demands of our people for democracy, reconstruction and development. Moreover, the MSA sets out the principles and values of the administration and a code of conduct, Batho Pele, in the local government sphere.
For a new system of local government to be implemented effectively, there will have to be much greater co-operation between the three spheres of government in the spirit of co-operative governance. In this regard, we are very optimistic that the newly elected councillors will assist in the realisation of this objective.
In our election manifesto for the local government elections that took place on 1 March this year, we as the ANC said the following:
Although much still needs to be done, and although change has come faster to some areas than others, many communities around the country have seen positive change in the last five years. Roads have been tarred and streets lit for the first time. Water and electricity have become more accessible than ever before. More houses have been built. Local services like waste removal have improved. Free basic services have been provided to many. Sporting and recreation facilities have been built. Local government offices have become more effective in meeting the needs of the citizens.
While we are pleased with these achievements, we have also taken action to learn from our experiences of the past five years.
It is my submission that, as the ANC, we have successfully led the government and people of South Africa in transforming local government for the greater benefit of all our people through the many policies and legislative, fiscal and other resource allocation measures we implemented. We can boldly say that we have been faithful to the vision of our forebears as captured in the Freedom Charter and the Constitution of the Republic; the will of the people.
Many challenges remain, but we cannot come to any other conclusion than that our achievement and progress in the sphere of local government is a cause for celebration. I thank you. [Applause.]
Mr W P DOMAN: Madam Deputy Speaker, at a glance a lot has happened in local government. The amalgamation of over 800 municipalities to the present 283 was a huge undertaking. No wonder that this amalgamation process, especially in the metros, is not fully completed.
The country experienced two fully democratic elections, but the new developmental nature of municipalities is unfortunately still not fully grasped by all councillors. Parliament completed the package of laws for local government with the enactment of the Municipal Property Rates Act and the Public Finance Management Act. A wide range of changes in respect of the funding of municipalities was also implemented by the National Treasury.
The scene is really set for this sphere of government to perform. The DA can concur with the motion that progress has been made with the building of the necessary institutions, with resource allocation and, to a large extent, with participatory democracy. However, we cannot agree as far as governance, capacity and improving the quality of life of South Africans are concerned, that local government has made the strides it should have.
Terwyl ons erken dat ’n groot deel van die bevolking eenvoudig te arm is om ’n bydrae te maak vir die dienste wat hulle ontvang, en dat Suid-Afrika klaarblyklik nie oor genoeg geskoolde en professionele persone beskik om al die poste in plaaslike regering te vul nie, het die ANC veroorsaak dat munisipaliteite veral in twee opsigte klaaglik misluk.
Die eerste is dat kundigheid wat wel beskikbaar was, en ’n groot positiewe verskil kon maak, by munisipaliteite weggejaag is. Baie van hierdie amptenare het al die pad bank toe gelag met die pragtige pakkette wat hulle ontvang het. Maar daardie geld kon eerder vir beter dienslewering gebruik gewees het. Vir baie was dit egter ook ’n gevoel van misnoeë, omdat loopbane van diensbaarheid tot ’n einde gebring is. Dit het ongelukkig daartoe gelei dat in die proses ook talle onbevoegde amptenare by munisipaliteite aangestel is. Kort-kort maak die vergoedingspakkette en onverdiende bonusse opslae. Dit wil voorkom asof veral die aanhoudende transformasie ten opsigte van personeel hul motivering totaal geknak het.
Uit ’n onlangse vraag van die DA blyk dit dat daar tans 112 geskorste munisipale amptenare is wat belastingbetalers alreeds R12,5 miljoen gekos het, sonder dat hulle ’n steek werk doen. En ek vermoed dit is slegs die ore van die seekoei.
Die tweede teleurstellende aspek wat die President verlede week uitgelig het, en laat waarsku het dat plaaslike regering dié sfeer van regering is wat verreweg die swakste presteer en Suid-Afrika op ’n tydbom geplaas het, is die gebrek aan toewyding by talle raadslede. Omdat munisipaliteite ’n eie sfeer van regering is met groot mag, misbruik talle rade hul mag om korrupsie en nepotisme te pleeg, of sommer doodgewoon swak te regeer.
In hierdie verband wil dit voorkom asof provinsiale LUR’e traag is om hul mag te gebruik en hul partygenote op hierdie manier beskerm. In antwoord op ’n vraag van die DA moes ons verneem dat die LUR in die Noord-Kaap byvoorbeeld niks gedoen het nie, terwyl die burgemeester en die munisipale bestuurder van Ubuntu-munisipaliteit op Victoria-Wes in die hof verskyn het omdat hulle na bewering munisipale eiendom gesteel en hier in die Kaap kom verkoop het.
Die President het in hierdie Raad met my saamgestem dat politieke partye groter verantwoordelikheid sal moet neem vir die dissiplinering van hul lede. Daarom vra ek: Waar is die streek- en plaaslike beheer van raadslede, van veral die ANC, wat meer as 75% van munisipaliteite regeer? Dit is geen wonder, wat gratis basiese dienste betref, dat daar waar daar nog infrastruktuur is – ek praat nie eens van waar daar nie infrastruktuur is nie – slegs 73% van huishoudings gratis water ontvang, en slegs 57% gratis elektrisiteit. (Translation of Afrikaans paragraphs follows.)
[Whilst we acknowledge the fact that a large proportion of the population is simply too poor to make a contribution in respect of the services they receive, and that South Africa obviously does not have enough skilled and professional people to fill all the posts in local government, the ANC was the cause of municipalities failing miserably, especially in two respects.
The first is that expertise that was, in fact, available and which could have made a major positive difference, has been chased away from municipalities. Many of these officials laughed all the way to the bank with the lovely packages they received. But that money could have been used for better service delivery instead. However, it also left many people feeling disgruntled because productive careers were brought to an end. Unfortunately this also led to many incompetent officials being appointed to municipalities in the process. The remuneration packages and unwarranted bonuses frequently cause an outcry. It seems that the constant transformation with regard to staff dealt a permanent blow to their motivation.
A recent question by the DA brought to light that there were 112 suspended municipal officials who had already cost taxpayers R12,5 million, without them doing a stroke of work. And I suspect that this is only the tip of the iceberg.
The second disappointing aspect the President highlighted last week, and made him warn that local government was the one sphere of government that performs the worst by far and has put South Africa on top of a time bomb, was the lack of dedication of many councillors. Because municipalities are a stand-alone sphere of government with wide powers, many councils abuse their power for corruption and nepotism, or simply to govern poorly.
In this regard it seems that provincial MECs are reluctant to use their authority, and protect their fellow party members in this way. From a reply to a question by the DA we learnt that the MEC in the Northern Cape, for example, did nothing while the mayor and the municipal manager of the Ubuntu municipality appeared in court at Victoria West on a charge of allegedly stealing municipal property and selling it here in the Cape.
The President agreed with me in this Chamber that political parties will have to accept more responsibility for disciplining their members. For this reason I ask: Where is the regional and local control of councillors, especially of the ANC, which governs more than 75% of municipalities? Small wonder that as far as free basic services are concerned, where infrastructure still exists – I am not even speaking about areas where there is no infrastructure – only 73% of households receive free water, and only 57% free electricity.]
Lastly, this subject for discussion also refers to resource allocation to municipalities. On the one hand we can praise central government for the R15 billion that was transferred to municipalities and for all the municipal infrastructure programmes - 70 000 jobs were created through this
- but on the other hand there is serious concern about how municipalities manage their finances. The Auditor-General reports that a number of municipalities had significant underspending and that they don’t even hand in their financial statements. Thank you very much. [Time expired.]
Mr P F SMITH: Thank you, Chairperson. Colleagues, since 1994 South Africa has been characterised by enormous change, but I think it’s true to say that this has been more pronounced in respect of local government than anything.
Now, constitutionally, if you look at Chapter 3, we have three spheres and they all enjoy equal status, though of course different powers and functions, but if you compare the establishment of local government to that of the provinces or the national government, you’d have to agree that this process has been far more challenging. This has a direct bearing on how you measure progress in local government and its achievements.
Now you can measure progress by the roll-out of water or the roll-out of electricity, but I don’t want to refer to those statistics today, but rather look at a few broader considerations.
First, I think we need to recognise that there are enormous differences between the 283 municipalities in our country, and it hardly seems appropriate to discuss them in the same breath. Six of those 283 comprise the six metros. They generate more than half of our GDP. They employ tens of thousands of people each. Their budgets are larger than those of most provinces. In contrast to that, you’ve got a plethora of very small municipalities, the smallest of which are barely blips on the radar screen. They have miniscule budgets, they are totally reliant on national funding, and in a sense talking about progress there and across the spheres as a whole becomes quite difficult. However, we would conclude in this respect that there has been progress all round, but far more needs to be done in respect of those smaller municipalities which are really not necessarily very viable now, but need to be made viable over time.
Secondly, we need to look at the whole institutionalisation of the local government sphere. Let’s say that it is bedded down now, and this bedding down is an achievement rather than the converse. It could have been construed as converse considering it has taken many years to get to where we are now, but the reason we think this is progress and is an achievement is because, if you look at this transformation process since 1994, it’s been extremely disruptive, politically for the local role-players, but especially administratively, and this has been highly problematic in respect of delivery for local government.
We are now in the last of our three phases - the pre-interim, the interim, and the final phase - and we have subcategories even within these. But I think it is fair to say that this bedding down is finished now and hopefully things will be far smoother in future.
Thirdly, I think we need to recognise that although service delivery has been very patchy, sometimes good and sometimes, as these protests last year showed us, rather poor, the general trend is one of improving performance. The single largest constraint on delivery has certainly not been money, but probably human capacity, and I think this is also improving now.
Project Consolidate is playing it’s part, yes, but in addition to this I think it’s true to say that there is a growing cohort of experienced local politicians and local administrators who are able to keep the ball on the ground, and have an institutional memory and are able to concentrate on good governance rather than establishment matters, which have preoccupied them for so long.
Having said that, there’s obviously still enormous scope for improvement, and elimination of corruption is one issue, as is improvements in financial management. These are both key concerns, and whilst we as a House shouldn’t expect miracles, we should demand and we should expect steady improvement all round and substantially greater compliance with good governance norms.
And finally, I think it’s true to say that it’s unfortunate that local government has been left to its own devices for far too long, meaning that the level of support required from both the national and the provincial governments, in particular, over much of the first decade was less than desirable, given the needs of local government, and this impacted negatively on the achievements and progress in this sphere.
Fortunately, again, this appears to be changing and there are many signs of positive outcomes in respect of support, and this again should represent further acceleration in the future. In this regard, too, it is significant that the department has repositioned itself and its strategic focus now is far more appropriate to the needs of local government than it has been in the past, when its preoccupation was policy-centred rather than delivery- centred. So all round we think there is some scope to say that there has indeed been progress in local government, although of course much more can be done. Thank you.
Mnr P J GROENEWALD: Voorsitter, die kwaliteit van dienslewering op plaaslike regeringsvlak hang af van die kwaliteit en die kundigheid van die betrokke munisipale bestuurder. Die agb lid mev Yengeni raak hier liries oor die Vryheidsmanifes en hoe wonderlik dienste op plaaslike regeringsvlak is, maar ek verstaan nie. As ons gaan kyk na die situasie op plaaslike regeringsvlak, sien ons plaaslike regerings is besig om in duie te stort, juis as gevolg van swak munisipale bestuurders wat nie bevoeg is om hul werk te doen nie.
’n Tipiese voorbeeld kan gevind word in die stadsraad van Matlosana, wat Klerksdorp, Stilfontein en Hartebeesfontein insluit. Daardie stadsraad, wat deur die ANC beheer word, het ’n munisipale bestuurder aangestel wat deur ’n ouditverslag skuldig bevind is dat hy by ’n vorige munisipaliteit vrugtelose uitgawes aangegaan het en dat hy mense met ’n kriminele rekord aangestel het, en dat daar dissiplinêr teen hom opgetree moet word. Maar die ANC stel nog steeds die persoon aan, om maar net met sy onbevoegdheid nou op ’n nuwe stadsraad te gaan toepas. Dit is onaanvaarbaar. [Time expired.] (Translation of Afrikaans speech follows.)
[Mr P J GROENEWALD: Chairperson, the quality of service delivery at local government level depends on the quality and expertise of the municipal manager concerned.
The hon member Mrs Yengeni is getting lyrical here about the Freedom Charter and how wonderful services are at local government level, but I do not understand. If we go and look at the situation at local government level, we see that local governments are collapsing, specifically because of weak municipal managers who are not competent to do their work.
A typical example is to be found in the City of Matlosana, which includes Klerksdorp, Stilfontein and Hartebeesfontein. That city council, controlled by the ANC, appointed a municipal manager who had been found guilty, by way of an audit report, of incurring unnecessary expenditure and appointing people with a criminal record, and it was recommended that disciplinary steps be taken against him. But the ANC went ahead and appointed this person, only to have him exercise his incompetence in a new city council. This is unacceptable. [Time expired.]]
Mr B M SOLO: Chairperson and hon members, in 2000 the ANC-led government ushered in a new system of local government. In fact, this took place immediately after the local government elections of November 2000. Five years after the introduction of democracy in this country, indeed in all spheres of government, democratic practices have become paramount. Central to that is the importance of participatory democracy, which we do not have to overemphasise for it is the pillar of our fundamental policy, as enshrined in the Freedom Charter, that the people shall govern.
Local government in any society is the most important practical sphere of government. This sphere of government is so important as it is the one that is very close to the people it serves. For democracy development to be realised, it should be mostly effected at the level where people stay in their daily lives, influenced by their environment.
To ensure participatory democracy, a system has to be developed and structures have to be created to facilitate and promote participation of communities in local government activities. This is done to ensure proper services for development and a better life. Without sketching the history of the past in our country, we are still faced with huge problems of amongst others underdevelopment, poverty and inequality. One does not need to be a rocket scientist to realise that.
To improve the quality of life for every South African in terms of basic services, such as clean water provision and environmental health care, sanitation, electricity, roads, etc, people themselves have to participate constructively in such programmes, not only by periodically going to the polls every five years, but by ensuring that development and improvement of the quality of life is ongoing to address the huge backlogs of underdevelopment, as development is for the people.
From government’s perspective to deepen democracy and promote participation, the ANC-led government, for the first time, has created a legislative framework to ensure that there is indeed participatory democracy. The ANC-led government did not stop there, but also introduced other measures, such as the izimbizo led by the President himself and others by Ministers, Premiers, MECs and mayors. This government has ensured the establishment of community radio stations where people are able to debate local issues of development.
In a structured form, the Local Government: Municipal Systems Act makes provision for the establishment of ward committees. These ward committees are established in terms of section 72 and their functions are clearly spelled out in section 74 of the Act. In an effort to strengthen these structures, community development workers are encouraged to be part of these structures, as they are involved through their daily work with various communities.
Chapter 4 of the Local Government: Municipal Systems Act ensures the operational sustainability of these structures. It then becomes important not only to draw this House’s attention to relevant sections of this chapter, maybe to refresh our minds to quickly read those provisions, to signify their importance in participatory democracy. Now I refer members to chapter 4 of the Act, which deals with community participation and section 16 reads as follows:
A municipality must develop a culture of municipal governance that compliments formal representative government with a system of participatory governance and must for this purpose, amongst other things, encourage and create conditions for the local community to participate in affairs of the municipality, including, amongst others, the establishment and implementation and review of its performance management system in terms of chapter 6 and contribute to building the capacity.
Section 17 also indicates that participation by local communities in the affairs of municipalities must take place through, amongst other things, other appropriate mechanisms, processes and procedures established by the municipalities. All of the above is geared at promoting and deepening participatory democracy.
The introduction of community development workers has assisted in ensuring that community issues are part and parcel of the council’s agenda, either through the ward committee or the IDP forums. As we all know, one of the functions of the community development workers is to work closely not only with ward councillors, but to perform some duties for the ward committees. As previously indicated, izimbizo at various levels have created another platform for communities to engage with government. We would, at this point, like to recognise efforts by the MECs, who crisscross the various provinces, conducting izimbizo, which are, in many instances, not published by the mainstream media institutions. To them we say: May the stork not grow old. This also applies to some hon members of the House.
The department has launched various community participation forums at national level where issues of service delivery and development are debated. I know the department has made calls to other spheres of government to do likewise, so as to ensure participatory democracy is alive. All this, to a large degree, has empowered our community but largely the previously disadvantaged communities. People are now able to stand up and argue their case confidently. A forum and culture has been created both materially and otherwise to ensure the deepening of participatory democracy. Various interventions took place at various levels of government, in some instances in the form of Project Consolidate and others.
Today as we speak we are able to say that this has all impacted positively on the lives of the people, particularly the previously disadvantaged communities. So we are able to say that today is different from yesterday, and tomorrow will be different from today – as stated by the President. This comes in various forms and sometimes with an element of mere protest. Through the principal policy of the ANC that the people shall govern, participatory democracy is now being implemented as a programme of social evolution and material development. By and large, we are now able to see the impact driven by the spirit of hope.
Once more allow me to emphasise the commitment that was made 50 years ago that the people shall govern. Ours is to strengthen popular participation. Participatory democracy must find expression in a structured form amongst others in ward committees, IDP forums and any other relevant forums. Indeed, through the establishment of ward committees, IDP forums and local economic development forums and others, public participatory democracy has become a reality and has impacted positively on the lives of the people. All those issues such as clean water, halving poverty and others as espoused by the President in his state of the nation address are now reality and are beginning to impact positively on the lives of our people. The people shall govern. Thank you. [Applause.]
Mr B E PULE: Chair, local government is to a large extent dependent upon national and provincial treasuries in order to fulfil their constitutional mandate and to speak to the objects of the Municipal Finance Management Act, that is, by ensuring transparency, accountability and appropriate lines of responsibility in their fiscal and financial affairs. It is also to ensure that their budgetary and financial planning processes are co- ordinated with the processes of the organs of state in other spheres of government.
Achievement will remain a mirage unless there is monitoring of their budgets to establish whether they are consistent with the fiscal and microeconomic policy of the national government. Municipalities must be monitored to assess compliance with applicable standards of generally recognised accounting practice and uniform expenditure and revenue classification systems. In order that local governments must deliver on their constitutional mandate, the national and provincial governments must help build their capacity for proper financial management. Co-operative governance will also remain lip service unless … [Time expired.]
Mrs M M GUMEDE: Hon Chairperson, members and colleagues, it is with great pleasure that I am delegated once more to debate on behalf of the Portfolio Committee on Provincial and Local Government. My mandate is mainly to focus on building of the necessary institutions of democracy and capacity. There is greater alignment between the National Spatial Development Perspective, the NSDP, Provincial Growth and Development Strategies, and Integrated Development Plans, the alignment of which can help government programmes to complement each other. The rationale behind the call for greater alignment between NSDP, PGDS and IDPs is to facilitate better performance of our developmental state.
This can be then achieved by getting government and organs of people’s power to work better in meeting the common objectives and outcomes. Project Consolidate is already beginning to have a positive impact in some municipalities by drawing the collective strengths of national and provincial government.
A o a utlwa Ntate Pule? E tla ke e boeletse. [Is it clear, Mr Pule? Let me repeat myself.]
Project Consolidate is already beginning to have a positive impact in some municipalities, especially those that have vision, and those that are led by the ANC. By drawing the collective strengths of national and provincial government, the ANC is well-placed to ensure that these spheres of government work harder from now going forward to further build on what has been achieved. You cannot achieve in one day, but only bit by bit. We are seeing serious capacity- building taking place to strengthen different institutions of people’s power in order to make a reality of the Age of Hope.
Lo nne lo reetsa fa go buiwa. [You must always pay attention when someone is talking.]
Nibolalela uma kukhulunywa. Anilaleli. Kukhulunywa njalo nje … [You must learn to listen when someone is talking. You don’t want to listen. People are always talking here …]
… but community development workers are being trained and deployed in municipalities, ward committees are being revitalised, a leadership academy in the department is shaping up and the Intergovernmental Relations Act … e lo tlholang lo e opela [… the one that you always sing] … is bringing greater stability and co-ordination in our system of developmental local government. These are meant for the public cadres that are committed to the principles of Batho Pele.
We are further seeing serious empowerment initiatives being made in targeting women in local government, and resources directed at youth development programmes. You can see even in this very institution and that is why the masses of this country endorsed it again on 1 March so that the ANC must keep on ruling. All these programmes communicate a message, and we as the ANC have continued to say that it is time to ensure that tomorrow will be better than today and today is already better than yesterday. That is ensuring that all South Africans enjoy equal rights as stipulated in the Freedom Charter fifty years ago.
Chairperson, all this indicates that the ANC-led government has totally done away with apartheid laws; one reason being that …
… ngabe asikho kule podium ukube kwakungalesiya sikhathi. [… we would not be here at this podium if it was during the apartheid time.]
Has it ever happened before? All that it was is that I stayed stuck in the Bantustans like when I grew up there.
Soos jy kan sien, is ek so dom vandag. [As you can see, I am so stupid today.]
The following are some further indications of democracy and building of institutions. Local government has been mandated with the building of houses for all needy people; eradication of the bucket system by 2007; halving poverty and unemployment by 2014; equal rights in the workplace where there is no discrimination of sex, colour, religion, plus the Bill that was placed here today; free basic services for all who need them; and lastly the eradication of past laws.
The ANC applauses the recent improvements in spending by provinces, the recent capacity of spending of provinces, and in making significant progress in all delivery sectors like education, health, social services and public works etc. The ANC commends this shining example of a people’s contract in action, and further encourages provinces to continue to emulate this pattern of improved service delivery. Existing historical evidence confirms that the ANC remains the only organisation in our country that in fact delivers services to all people of South Africa, black or white, despite fundamental challenges inherited from the past.
Our challenges are therefore around strengthening capacity, transforming the financial systems and achieving greater co-operative governance. Popular participation in the governance of our country is a pillar of our democracy, therefore participatory democracy must find expression through the functioning of ward committees.
Lastly, President Thabo Mbeki in his closing remarks to the ANC on 17 February said: “These targets may be ambitious, yet they are also realistic. They demonstrate both the extent of our achievements, date and value of the experience we have gained. They are an indication that whatever challenges we may continue to face, working together in a people’s contract we can still do more.” Thank you. [Applause.]
Mr R B BHOOLA: Chairperson, the Constitution advocates a system of governance that shall avoid centralisation of power, and institute co- operative governance. Whilst all of the building blocks are in place the reality of the mechanics to make the system a success, though, has been sabotaged by a lack of capacity, skills shortages, competition rather than co-operation and minimal resources. These are among a number of factors that hinder the process. As marked out by the hon state President Thabo Mbeki to the NCOP last week, the weaknesses in the municipalities are a great threat to the country’s democracy.
However, we believe that the efficiency of municipalities depends on the filtration of efforts from the national departments to the provinces, and then further filtrated to the municipalities. A common problem at municipalities is that section heads appear to be the only beneficiaries of training, and the infiltration of skills development appears to freeze at that level, neglecting to extend to the necessary levels where implementation is dispatched. Provinces need to workshop municipalities to bring them on board so that they may implement government policies at ground level. We have policies such as the enhanced extended discount benefit scheme that has been instituted since December 2005 and to date is still not operating at municipal level. As a result, we have prejudiced communities who are wrongfully forced to continue paying rentals that government has already served to subsidise. The MF finds that it is at this stage that we, as members of this House, play a vital role of oversight.
We need to go into areas and visit the operations of municipalities and the progress of communities and bring it back to the House where we can call on our executive to address the blockages in this filtration to the ground level. It is through this oversight that loopholes and shortfalls may best be attended to. Transparency may be strengthened, responsibility better co- ordinated and management improved. Co-operative government is the key to infiltration to a truly democratic development to a better life for all.
Mr S SIMMONS: Chair, it is critical that we closely examine the relationship and responsibilities respective to our governing bodies, and review the impacts national and provincial government restrictions and interference have on the provinces, and on local councils’ ability to govern effectively. The recent occurrence in the City of Cape Town puts emphasis on the need for this approach. We therefore need to discard the current prevailing attitude of “government always knows best”. There is a dire need for genuine consultation, disclosure, impact statements, deference and most importantly, enforcement.
More importantly therefore we must reinvigorate the partnership amongst national, provincial and local governments to ensure that all South Africans, and not just a portion of the population, are the true benefactors of a strong united effort to address and solve the problems that face our country.
Ms L M MASHIANE: Chairperson, in its statement of 8 January the ANC made the assertion that this year must be set aside as the year for “the mobilisation of people’s power through democratic local government”. With this assertion the statement of 8 January had thus provided us with on opportunity to table our plans, our priorities and our programmes for the year ahead.
Once again, with this debate, we are making efforts to review the degree of achievement in meeting the objectives contained in the statement of 8 January and as translated in the state of the nation address.
Such efforts, together with others within the machinery of government, must clearly stand as a symbol of commitment in our continued responsibility of ensuring that we as the ANC will never deter from the noble cause of social transformation. In terms of the statement of 8 January 2006, the central national challenge facing our country is the eradication of the legacy of colonialism and apartheid that has condemned the majority of our people to a life of material misery.
The 2006 state of the nation address set out targets on sanitation, electrification and the eradication of the bucket system, which are all connected to reducing poverty and unemployment by 2014 and meeting the Millennium Development Goals, which are, firstly, that all communities have access to clean running water and decent households by 2010; secondly, halving poverty and unemployment by 2014; thirdly, meeting the demand for electricity and satisfying the demand for water; fourthly, ensuring that there is universal provision of free basic services; fifthly, prioritising the eradication of the bucket system by 2006 or 2007 and in the sixth instance, ensuring that by March this year we had deployed 3 000 community development workers.
The Department of Provincial and Local Government has been allocated R82 billion over the MTF period. This amount represents a financial commitment to improving performance at provincial and local government levels. The department must, however, continue to intensify its support for other delivery arms of government to ensure that the spread and distribution of finances responds to the realities on the ground. The department has done particularly well in spending its finances, which saw it spending over 90% of its budget this year.
Municipalities have also registered significant progress in terms of overall performance, including those within Project Consolidate. The department has met the largest part of the targets, as encapsulated in the government programme of action. National Treasury recently reported that the nine provinces had vastly improved their spending patterns in the first six months of the 2006-07 financial year. They had spent an average of 45% of their combined budgets. This represents a spending increase higher than for the same period last year.
The ANC applauds the improvement in spending by provinces, and this capacity to spend saw provinces making significant increases in all delivery sectors such as education, health, social services, Public Works, etc. Moreover, the capacity of provinces to spend their budgets is an encouraging move and one that presents us with a sense of assurance that the turnaround strategies implemented are showing results and that resources are now being properly channelled to focus on the programmes directed at improving the lives of ordinary South Africans.
The ANC commends the shining example of a people’s contract in action and further encourages provinces to continue to emulate this pattern for improved service delivery. Existing historical evidence confirms that the ANC remains the only organisation in the country that, in fact, delivers services to all the people of South Africa, black or white, despite the fundamental challenges inherited from the past.
I am pleased to report that improvements in communication and the acceleration of the imbizo programme have significantly contributed to deepening social mobilisation within and across local government, thus confirming that our transformation project remains and continues to be grounded on people-centred sustainable development.
This year also saw the Department of Provincial and Local Government extending the period of Project Consolidate, which was previously two years, to a more permanent hands-on support system for municipalities. This important step is part of our efforts to support and capacitate municipalities, and is further testimony that the ANC-led government is leading the direction and pace of development.
The efforts undertaken this year of accelerating the implementation of government’s programme of action and intensifying the imbizo programme mean that our system of local democracy derives content from the actual participation of our communities in institutions of people’s power.
The concept of “government of the people, by the people” means that the ANC- led government did not only improve the participation of citizens in decision-making, but also in the allocation of resources and in the identification of local needs and priorities in the form of ward-based IDPs. As a result, more people this year have access to clean water and electricity and have more opportunities to improve their lives.
The sphere of local government is best placed to give practical meaning and substance to the basic political commitment we made 55 ago in the form of the Freedom Charter that “The people shall govern.” It is through the same commitment that we agreed “All people shall be entitled to take part in the administration of the country.”
In more areas than before, through the establishment of ward committees, public participation has become a reality. More than 80% of ward committees have been established in order for communities to be active and involved in managing their development, claiming their rights and exercising their responsibilities.
I am particularly pleased to report that municipalities now have realistic integrated development plans, credible local economic development programmes and the material and human resources, as well as the management and operational systems to implement these integrated development plans and local economic development programmes, as opposed to previous consultancy- based IDPs.
A significant degree of achievement continues to be made around the eradication of the bucket system through its replacement with decent sanitation facilities. The ANC is determined to ensure that the goal of universal provision of free basic services is achieved. Already around 3,9 million households receive free basic water, and free basic electricity reaches 2,9 million households. The Department of Provincial and Local Government has expanded the provision of free basic services to even the remotest areas of our country.
The RDP envisaged universal access to water and sanitation facilities and the elimination of hunger and malnutrition, all to be achieved on the basis of people’s participation in development. In a book entitled State of the Nation published this year, the authors state, and I quote:
… despite the considerable growth in the number of households requiring services, notable progress has nevertheless been made in several arenas. One particularly successful field has been the provision of electricity. In 1994 only 55% of all households had access to electricity, but by 2003 this had increased to 78%. The most marked improvements in the provision of electricity are evident in informal and traditional dwellings.
The authors go on to say that in both these cases more than a third of all dwellings were electrified for the first time only after 1994.
The Department of Provincial and Local Government has launched an anticorruption strategy at 30 municipalities to ensure that the vision of rooting out corruption in the local government sphere becomes a reality.
In conclusion, President Thabo Mbeki, in his closing remarks in the ANC Today of 17 February 2006, said that these targets were captured in the state of the nation … [Time expired.]
Mnr M SWART: Voorsitter, enigiemand wat glo dat munisipale dienste aan inwoners sedert 1994 verbeter het, leef in ’n droomwêreld. Daar is tans 136 munisipaliteite wat in gevolge Projek Konsolideer deur die staat gehelp moet word om uit die administratiewe en finansiële gemors waarin hul hulself bevind, te kom. Hierdie hulp het nodig geword, hoofsaaklik vanweë die feit dat daar weens politieke redes, asook regstellende aksie, swak bestuur in plaaslike owerhede toegepas word.
Kundige amptenare het bloot die trekpas gekry en is in baie gevalle deur persone vervang wat nie oor die nodige ervaring of agtergrond van plaaslike bestuur beskik het om hul pligte na behore te kon uitoefen nie. Dit is dus nie die regering wat uit eie inisiatief by wyse van Projek Konsolideer dit nodig geag het om opleiding en hulp aan plaaslike owerhede te verleen nie, maar hulle is daartoe gedwing ten einde die absolute chaos wat in munisipaliteite ontstaan het, hok te slaan.
Daar is nog baie munisipaliteite wat jaarliks gekwalifiseerde ouditverslae ontvang. Daar is inderdaad min plaaslike owerhede wat behoorlike finansiële beheer uitoefen. Jaar ná jaar word korrupsie, soos byvoorbeeld in die Bitou- munisipaliteit, oopgevlek en as daar comrades by betrokke is, word dit baie stadig hanteer of bloot onder die mat ingevee. So byvoorbeeld is die munisipale bestuurder van die Bitou-munisipaliteit steeds deur die staat gebruik om kwansuis die sake by die Kannaland-munisipaliteit reg te ruk, alhoewel daar op daardie stadium reeds korrupsieklagte teen hom aanhanging gemaak is. Praat van vir wolf skaapwagter maak!
Een van die doelwitte van die regering was om aan behoeftige huishoudings gratis munisipale dienste te verskaf en dit is ook reg so. Staatsgelde word vir hierdie doel aan munisipaliteite beskikbaar gestel. Daar is egter nog etlike munisipaliteite waar hierdie gelde nie vir die regte doel aangewend word nie. Baie ander gelde word ook jaarliks deur die staat aan munisipaliteite beskikbaar gestel vir infrastruktuur, maar is dit duidelik dat sodanige gelde selde behoorlik en volledig aangewend word.
Die wil van die staat is dus moontlik daar om munisipaliteite te laat presteer, maar dit is ver verwyderd van wat werklik op grondvlak gebeur. Dit is dus nie verbasend dat gemeenskappe en baie plaaslike owerhede gereelde optogte en betogings teen swak dienslewering hou nie. (Translation of Afrikaans paragraphs follows.)
[Mr M SWART: Chairperson, anyone who believes that the municipal services rendered to citizens have improved since 1994, is living in a dream world. Presently there are 136 municipalities that are being assisted by the state under Project Consolidate to help them out of their financial and administrative troubles in which they find themselves. This assistance was necessitated primarily because of poor management exercised by local government as a result of political reasons, as well as affirmative action.
Skilled officials were merely given the boot and were replaced, in many instances, by people who did not have the necessary experience or background of local government to carry out their duties properly. It is therefore not the state, of its own volition and by way of Project Consolidate, that thought it necessary to train and provide assistance to the local governments, but it was forced to intervene in order to arrest the absolute chaos that was developing in municipalities.
There are still many municipalities that receive qualified audit reports every year. In fact, there are very few local authorities that exercise proper financial control. Year after year corruption is exposed, as in the case of the Bitou Municipality, and if there are comrades involved, the matter is delayed or merely swept under the carpet. For example, the manager of the Bitou Municipality is still being used by the state ostensibly to get the house of the Kannaland Municipality in order, although at that juncture charges of corruption had already been instituted against him. Is this not a case of setting the wolf to keep the sheep?
One of the objectives of the government was to provide free municipal services to indigent families, and that is also in order. Government funds are provided to municipalities specifically for this purpose. There are, however, still several municipalities where these funds are not utilised for the intended purpose. Many other funds are made available annually to municipalities for infrastructure by the government, but it is clear that such funds are rarely appropriated in a proper and thorough manner.
It is possible that the state has the desire for municipalities to perform; however, it is far removed from what actually transpires on the ground. It is therefore not surprising that communities and many local authorities stage regular protest marches and demonstrations against poor service delivery.]
I trust that Mrs Yengeni has noticed the absence of both the Minister and the Deputy Minister in this debate. I don’t blame them. They might be shy about their achievements to date. [Applause.]
Mrs L E YENGENI: Chair, I am not surprised that the Minister is not here. They are not supposed to be here all the time and there is no reason for them to be here. Hon Doman, your approach to the question of skills has an element of racism. The people that you are referring to and whom you claim have been chased away by the ANC are all white people. The majority of them are white people. Even if they were Coloured but they were serving you, they were not serving the people of South Africa. That is why you are complaining. [Interjections.]
Hon Smith of the IFP, thank you very much for acknowledging the progress that has been made. We know that we still have some … [Interjections.] Hon Groenewald, I will ignore you because what you have raised are things that were raised before and you are merely repeating yourself. The Minister has answered the questions.
Hon Gumede, thank you very much for your kind words of support and free lecture that you gave to the DA. We cannot do all of this in a period of 10 years. Mr C M LOWE: Twelve years.
Mrs L E YENGENI: It does not matter. [Interjections.] Hon Solo, thank you for an excellent explanation of the Act. We hope that the DA and other opposition parties realise the progressive implications of the Act. To hon Bhoola of the MF, we also thank you very much for your understanding.
Hon Mashiane, we agree that the increased allocation of funds will deal with one of the reasons why the local government was unable to perform to full potential. It is not surprising that a combination of support like Project Consolidate, together with increased funds, will lead to increased spending and benefit for all our people. I thank you. [Applause.]
Debate concluded.
The House adjourned at 18:08. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 10 NOVEMBER 2006
ANNOUNCEMENTS
National Assembly
The Speaker
- Submission of Private Members’ Legislative Proposals
(1) The following private member’s legislative proposal was
submitted to the Speaker in accordance with Rule 234:
(a) Constitution Seventeenth Amendment Bill (Mrs C Dudley)
In accordance with Rule 235 the legislative proposal has been
referred to the Standing Committee on Private Members’ Legislative
Proposals and Special Petitions.
TABLINGS
National Assembly and National Council of Provinces
- The Minister of Labour
a) Report and Financial Statements of the Transport Education and
Training Authority (Teta) for 2005-2006, including the Report of
the Auditor-General on the Financial Statements for 2005-2006.
National Assembly
- The Speaker
a) Report and Financial Statements of the Commission on Gender
Equality (CGE) for 2005-2006, including the Report of the Auditor-
General on the Financial Statements for 2005-2006.
COMMITTEE REPORTS
National Assembly
-
Report of the Portfolio Committee on Home Affairs on the Civil Union Bill [B26 – 2006] (National Assembly – sec 75), dated 9 November 2006:
The Portfolio Committee on Home Affairs, having considered the subject of the Civil Union Bill [B 26 – 2006] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, presents a redraft of the Bill [B 26B – 2006]
-
Report of the Portfolio Committee on Trade and Industry on the Free Trade Agreement (FTA) between the Southern African Customs Union (SACU) and the European Free Trade Association (EFTA), dated 3 November 2006:
The Portfolio Committee on Trade and Industry, having considered the request for approval by Parliament of the Free Trade Agreement (FTA) between the Southern African Customs Union (SACU) and the European Free Trade Association (EFTA), referred to it, recommends that the House, in terms of section 231(2) of the Constitution, approve the said Agreement.
Request to be considered.
MONDAY, 13 NOVEMBER 2006
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Introduction of Bills
(1) The Minister for Public Enterprises
a) South African Airways Bill [B 35 – 2006] (National Assembly –
proposed sec 75) [Explanatory summary of Bill and prior notice
of its introduction published in Government Gazette No 29359 of
3 November 2006.]
Introduction and referral to the Portfolio Committee on Public
Enterprises of the National Assembly, as well as referral to
the Joint Tagging Mechanism (JTM) for classification in terms
of Joint Rule 160.
In terms of Joint Rule 154 written views on the classification
of the Bill may be submitted to the JTM within three
parliamentary working days.
TABLINGS
National Assembly and National Council of Provinces
- The Minister of Finance
This tabling replaces item 1 under “Tablings” on page 2558 of the
Announcements, Tablings and Committee Reports of 9 November 2006:
(a) Agreement between the Government of the Republic of South
Africa and the Government of the Islamic Republic of Iran regarding
Mutual Assistance between their Customs Administrations, tabled in
terms of section 231(3) of the Constitution, 1996.
b) Explanatory Memorandum to the Agreement between the Government of
the Republic of South Africa and the Government of the Islamic
Republic of Iran regarding Mutual Assistance between their Customs
Administrations.
c) Agreement between the Government of the Republic of South Africa
and the Government of the Democratic Republic of Congo regarding
Mutual Assistance between their Customs Administrations, tabled in
terms of section 231(3) of the Constitution, 1996.
d) Explanatory Memorandum to the Agreement between the Government of
the Republic of South Africa and the Government of the Democratic
Republic of Congo regarding Mutual Assistance between their Customs
Administrations.
- The Minister of Trade and Industry
(a) Report of the National Industrial Participation Programme for
2005-2006.
- The Minister of Water Affairs and Forestry
a) Report and Financial Statements of Umgeni Water for the year ended
30 June 2006, including the Report of the Independent Auditors on
the Financial Statements for the year ended 30 June 2006.
b) Report and Financial Statements of Albany Coast Water for the year
ended 30 June 2006, including the Report of the Independent
Auditors on the Financial Statements for the year ended 30 June
2006.
COMMITTEE REPORTS
National Assembly and National Council of Provinces
- Report of the Joint Standing Committee on Defence on Employment of SANDF to the Kingdom of Lesotho, dated 3 November 2006:
The Joint Standing Committee on Defence, having considered the letter from the President on the employment of the South African National Defence Force (SANDF) to the Kingdom of Lesotho, referred to the Committee, reports that it has concluded its deliberations thereon.
-
Report of the Joint Constitutional Review Committee on Annual Constitutional Review Report 2006, dated 13 November 2006:
ANNUAL CONSTITUTIONAL REVIEW REPORT 2006 COMMITTEE: JOINT CONSTITUTIONAL REVIEW CHAIRPERSON: DR E A SCHOEMAN
Section 45(1) (c) of the Constitution provides that the Joint Constitutional Review Committee (the Committee) must review the Constitution at least once annually.
In giving effect to section 45(1) (c), the Committee placed several adverts in the media on 1 May 2006 which invited members of the public to make submissions that propose amendments to the Constitution. This year the Committee specifically encouraged the public to make submissions on the equality clause and on Chapter 9 State Institutions Supporting Constitutional Democracy.
In total, 11 submissions were received from the public.
The Committee also received a submission from the National Assembly Rules Committee as well as the Free State Legislature.
The Committee requested the Parliamentary Legal Services Office to consider the various submissions that proposed amendments to the Constitution in the light of current constitutional jurisprudence.
Hereunder are brief summaries of the submissions received and the Committee’s views and recommendations thereon.
A: REFERRAL FROM THE NATIONAL ASSEMBLY RULES COMMITTEE - THE LEADER OF THE OPPOSITION AS CONTAINED IN 57(2)(D) OF THE CONSTITUTION
The National Assembly Rules Committee requested the Committee to consider the appropriateness of “the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition” as contained in section 57(2) (d) of the Constitution.
Recommendation
The committee deliberated this matter extensively and has communicated its decision to the National Assembly Rules Committee for further consideration.
B: REFERRAL FROM THE FREE STATE LEGISLATURE - SECTION 105(2) OF THE CONSTITUTION RELATING TO THE NUMBER OF SEATS IN A PROVINCIAL LEGISLATURE
The Free State Legislature submitted that section 105(2) of the Constitution be amended so as to increase the size of the respective legislatures to inter alia allow them to conduct more efficient oversight and ensure public participation. Recommendation
The Committee has written to all provincial legislatures inviting them to a meeting to be convened in the first term of 2007 to hear their views on the matter.
C: SUBMISSIONS FROM MEMBERS OF THE PUBLIC
1: SUBMISSIONS ON THE EQUALITY SECTION
1.1 Section 9(2)
It was submitted that whereas section 9(2) of the Constitution provides that equality requires that legislative and other measures must be taken to protect or advance persons or categories of persons disadvantaged by unfair discrimination, there are still inequalities in the provision of educational services between the Provinces as equality in education has not been progressively and equally achieved across all provinces.
The Committee was of the view that the petitioner did not propose an amendment to the Constitution but was instead of the view that there was an infringement of the right to education (as contained in section 29) read together with the right to equality and as such the remedy in this instance is judicial rather than a constitutional amendment.
Recommendation
The Committee was of the view that the petitioner did not propose an amendment to the Constitution. 1.2 Section 9(4)
It was submitted that section 9(4) of the Constitution be amended whereas section 9(4) stipulates that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination, “it does not create an obligation on provinces to enact legislation that prevents or prohibits unfair discrimination”.
The Committee noted that in terms of item 23(1) of Schedule 6 to the Constitution, the national legislation envisaged in section 9(4) had to be enacted within 3 years of the date on which the final Constitution took effect and that Parliament, in accordance with section 9(4) has already enacted the Prevention of Unfair Discrimination Act of 2000 (PEPUDA).
Furthermore, the Committee was also of the view that the legislation referred to in section 9(4) is an area of exclusive national legislative competence as it is not listed in Schedule 4 to the Constitution as an area of concurrent national and provincial legislative competence, nor is it an area of exclusive provincial legislative competence in terms of Schedule 5.
Recommendation
The Committee does not recommend that section 9(4) of the Constitution be amended as the legislation envisaged in section 9(4) has already been enacted and its scope falls within an area of exclusive national legislative competence.
1.3 Section 9
It was submitted that section 9 of the Constitution be amended as “it is unfair to declare some forms of discrimination as fair”.
The Committee noted that the Constitution was based on the achievement of substantive equality and noted that cases such as Brink v Kitshoff NO 1996(6) BCLR 752 (CC), emphasized that given the past patterns of discrimination, the Constitution prescribes that remedial action must be taken to achieve substantive equality.
Recommendation
The Committee does not recommend that section 9 of the Constitution be amended so as remove provisions which allowed for “fair discrimination” as to do so would prevent any remedial or restitutionary measures to be taken to address past patterns of discrimination.
1.4 Section 214(2)
It was submitted that section 214(2) of the Constitution be amended and linked to the equality section to ensure that that the determination of each province’s equitable share of the budget must be linked to the equality provision to prevent unequal service delivery in the provinces.
The Committee noted that section 214 of the Constitution stipulates that an Act of Parliament must provide for the equitable division of revenue raised nationally among the national, provincial and local spheres of government, the determination of each province’s equitable share of the provincial share of that revenue, and any other allocations to provinces, local government or municipalities from the national government’s share of that revenue, and any conditions on which those allocations may be made.
The Committee was of the view that the Constitution currently sketches the broad outlines of the complex intergovernmental fiscal system which the three distinct but inter-related spheres of government must adhere to. At the same time the Constitution also contains an extensive Bill of Rights which includes social and economic rights and in terms of which the intergovernmental fiscal system must ensure cooperative service delivery. Furthermore, the Constitution is founded on human dignity, the achievement of equality and the advancement of human rights and freedoms and the state must respect, protect promote and fulfill the rights in the Bill of Rights (section 1(a) and section 7). Thus notwithstanding that an order of court will have fiscal or intergovernmental implications, where rights contained in the Bill of Rights are infringed, the Committee noted that the Constitution permits a court to order an appropriate remedy.
Recommendation
The Committee does not recommend the amendment of section 214(2) as such an amendment is superfluous.
1.5 Section 100
It was submitted that in the light of the unequal provision of services between the provinces, that section 100(1) of the Constitution be amended to ensure that where a province cannot or does not fulfill an executive obligation in terms of the Constitution or legislation, the national executive must intervene to ensure equality.
The Committee noted that the proposed amendment would impact upon the current system of co-operative government as provided for in terms of Chapter 3 of the Constitution which recognises that government is constituted as national, provincial and local spheres that that such spheres are distinctive, interdependent and interrelated. The Committee was of the view that section 100 is an exceptional measure and that the right to intervene is inter alia subject to the provisions of 41(1)(e), (f) and (g) which require all levels of government to respect the constitutional status, institutions, powers and functions of government in the other spheres, not assume any power or function except those conferred on them in terms of the Constitution and to exercise their powers and functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere.
Recommendation
The Committee does not support the proposed amendment to section 100(1) as it would significantly alter the system of co-portative government and the independence of provincial spheres of government as it currently exists.
1.6 Schedule 4 of the Constitution
It was submitted that Schedule 4 to the Constitution “be amended so as to provide a legal space for intervention by national departments with clear warnings to provinces on areas where their competence may be “temporarily revoked” so as to ensure equality in the provinces.
The Committee noted that Schedule 4 lists areas of concurrent national and provincial legislative authority and does not pertain to interventions. Furthermore, as section 100 already provides for interventions, such an amendment will be superfluous.
Recommendation The Committee does not support the proposed amendment to Schedule 4 to the Constitution as section 100 already provides for interventions.
2.SUBMISSIONS ON CHAPTER 9: STATE INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY (CHAPTER 9 INSTITUTIONS)
2.1 GENERAL SUBMISSIONS ON CHAPTER 9 INSTITUTIONS
2.1.1 Submission on the number of commissioners appointed to Chapter 9 Institutions
It was submitted that the Constitution be amended as there are too many Commissioners appointed to each of the Chapter 9 Commissions.
The Committee noted that the Constitution does not specify the number of Commissioners that must be appointed to each Commission as the composition of each Commission is governed by the relevant national legislation.
Recommendation
The Committee does not recommend that the Constitution be amended so as to limit the number of commissioners appointed to each commission as these numbers are already defined in national legislation.
The Committee was of the view that the submission be sent to the ad hoc Committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration. Furthermore as the matter pertained to national legislation the Committee was also of the view that the submission be referred to the Portfolio Committee on Justice and Constitutional Development.
2.1.2 Submission on the qualification and performance of Commissioners
It was submitted that the Constitution be amended to define the requirements and qualifications of Commissioners and yardsticks with which to measure their performance.
The Committee noted that section 193 of the Constitution currently requires that the Public Protector, the Auditor-General and the members of any Commission established in terms of Chapter 9 must inter alia be “fit and proper persons to hold the particular office” and must comply with any other requirements prescribed by national legislation. Furthermore, section 194 provides that Commissioners may only be removed from office on the grounds of misconduct, incompetence or incapacity, on a finding to that effect by committee of the National Assembly and the adoption of an Assembly resolution calling for that person’s removal. The Committee noted that these measures were designed to protect the independence of commissioners and the Chapter 9 Institutions.
Recommendation
The Committee does not recommend that the Constitution be amended as it currently defines the requirements and qualifications of Commissioners as well as the grounds for their removal should they not perform their functions.
The Committee was also of the view that the submission be sent to the ad hoc Committee on the Review of State Institutions Supporting Constitutional Democracy to consider.
2.1.3 Merging Chapter 9 Institutions under a national government department to make them more accountable
It was submitted the Constitution be amended to make Chapter 9 Institutions more accountable by merging them and placing them under a national government department.
The Committee noted that section 181(1) and (2) of the Constitution provides that the institutions listed in Chapter 9 of the Constitution “strengthen constitutional democracy” and that these institutions “are independent, and subject only to the Constitution and the law, and they must be impartial and exercise their powers and perform their functions without fear, favour or prejudice”. Furthermore while section 181(3) provides that other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions, section 181(4) provides that no person or organ of state may interfere with the functioning of these institutions.
The Committee was of the view that the independence of Chapter 9 were essential so that they could fulfill their roles as Institutions Supporting Constitutional Democracy.
Recommendation The Committee does not recommend that the Constitution be amended so as to place Chapter 9 Institutions under the control of a government department as this would significantly diminish their independence, impartiality and effectiveness as currently provided for in the Constitution.
The Committee was of the view that the submission be sent to the ad hoc Committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration.
2.1.4 Section 193(4) - selection of Commissioners and members of Chapter 9 Institutions
It was submitted that section 193 of the Constitution be amended to provide that instead of Parliament short-listing, interviewing and nominating members of Chapter 9 Institutions, that an external panel or independent committee similar to the Judicial Services Commission be constituted to deal with the selection of all members.
The Committee noted that currently the appointment provisions in section 193 gives effect to section 181(2) which provides that the Chapter 9 Institutions are independent, subject only to the Constitution and the law, and “must be impartial, and must exercise their powers and perform their functions without fear, favour or prejudice”. The Committee was also of the view that it was a matter of policy whether members are appointed by an external panel or independent committee similar to the Judicial Services Commission or in terms of section 193, provided that they are appointed in a manner consistent with section 181.
Recommendations:
The Committee decided to refer the above submission to the ad hoc Committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration.
2.1.5 Chapter 9 Institutions need to be more accessible to the public, especially the uneducated and the poor
It was submitted that the Constitution be amended to ensure that Chapter 9 Institutions are more accessible to the public, especially the uneducated and the poor.
The Committee noted that whereas section 182(4) of the Constitution provides that the Public Protector “must be accessible to all persons and communities there are no specific provisions that require other Chapter 9 Institutions to be accessible to the public, especially those sectors that remain marginalized.
Recommendation
The Committee was of the view that while there was merit in the submission, it could be more comprehensively dealt with by the ad hoc committee on the Review of State Institutions Supporting Constitutional Democracy.
2.1.6 Members of Chapter 9 Institutions be appointed purely on merit
It was submitted that irrespective of any other criterion, that members of Chapter 9 Institutions must be appointed “purely on the basis of merit”.
The Committee noted that section 193 of the Constitution stipulates that the Public Protector, the Auditor-General and the members of any Commission established in terms of Chapter 9 must inter alia be “fit and proper persons to hold the particular office” and must comply with any other additional requirements prescribed by national legislation. In addition, section 193(3) provides that the Auditor-General must have specialized knowledge of, or experience in auditing, state finances and public administration.
The Committee also noted that section 193(2) also requires that the members of Chapter 9 Commissions must broadly reflect the race and gender composition of South Africa. The Committee was of the view that while it is a matter of policy whether or not to amend the above provision, it was necessary that the Commissions broadly reflect the race and gender composition of South Africa as this is essential to ensure that they have legitimacy in the community at large.
Recommendation
The Committee does not recommend that the Constitution be amended in the manner suggested as it is of the view that the Constitution and national legislation adequately provided for the appointment of appropriately skilled and suitable commissioners.
2.1.7 Measures to ensure the impartiality of Chapter 9 Institutions need to be included in the Constitution
It was submitted that the Constitution be amended so as to provide for the impartiality of Chapter 9 Institutions.
The Committee noted that section 181(1) and (2) of the Constitution provides that the institutions listed in Chapter 9 of the Constitution “strengthen constitutional democracy” and that these institutions “are independent, and subject only to the Constitution and the law, and they must be impartial and exercise their powers and perform their functions without fear, favour or prejudice”. Furthermore that the independence of these institutions are additionally strengthened and protected by section 181(3), which provides that other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. Furthermore section 181(4) provides that no person or organ of state may interfere with the functioning of these institutions.
Recommendation
The Committee does not support the proposed amendment as it was of the view that the Constitution adequately provides for the impartiality of the Chapter 9 Institutions.
2.1.8 The public needs to be informed on an ongoing basis about Chapter 9 Institutions, their functions and how to contact them
It was submitted that the Constitution be amended to stipulate that “the public needs to be informed on an ongoing basis about Chapter 9 Institutions, their functions and how to contact them”.
The Committee was of the view that such detail is usually not included in the Constitution itself, but rather in legislation or policy documents.
Recommendation The Committee did not support the proposed amendment as it was of the view that such detail should not be included in the Constitution.
The Committee recommended that the matter be referred to the ad hoc committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration.
2.2 SPECIFIC RECOMMENDATIONS ON CHAPTER 9 INSTITUTIONS
2.2.1 SUBMISSIONS ON THE COMMISSION ON GENDER EQUALITY
2.2.1.1 Section 187(2) - empowering the Commission on Gender Equality to ensure appropriate redress where gender discrimination occurred
It was submitted that section 187(2) of the Constitution be amended to empower the Commission on Gender Equality (CGE) to take steps to secure appropriate redress in cases of gender discrimination in a similar manner that section 184(2)(b) empowers the South African Human Rights Commission (SAHRC) to take steps to secure appropriate redress where human rights have been violated.
The Committee noted that any unfair discrimination on the basis of gender would also constitute a human rights violation and as such the SAHRC would have the requisite jurisdiction to seek appropriate redress on behalf of a complainant.
Recommendation
The Committee does not recommend that the Constitution be amended to provide that the (CGE) with the power to take steps to secure appropriate redress in cases of gender discrimination as the SAHRC already has the power to take such steps where human rights have been violated.
2.2.2 SUBMISSIONS ON THE PUBLIC PROTECTOR
2.2.2.1 Section 182 to be amended to allow the Public Protector to investigate violations in the private sector
It was submitted that section 182 of the Constitution be amended so as to enable the Public Protector to investigate “people and violations committed in the private sector”. The Committee noted that the Public Protector is by definition a high level official whose function is to strengthen and support constitutional democracy and not to adjudicate or investigate violations of the rights of the general public in all matters.
Recommendation
The Committee does not recommend that the Constitution be amended to expand the functions of the Public Protector to generally investigate violations committed in the private sector.
2.2.2.2 Term of office of the Public Protector be reduced to five years
It was submitted that the term of the Public Protector be reduced from seven years to five years to reduce the possibility of the abuse of power by the Public Protector The Committee noted that that in Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 (10) BCLR 1253 (CC), the Constitutional Court did not regard the seven year term of the Public Protector as problematic. Furthermore the Committee was of the view that given that the Public Protector only served 1 term it did not regard the seven year term as problematic
Recommendation
The Committee does not recommend that the Constitution be amended to reduce the term of the Public Protector to five years as the seven year term is reasonable.
2.2.2.3 The Public Protector be empowered to review court decisions
It was submitted that the powers of the Public Protector be extended to enable the Public Protector to review court decisions
The Committee noted that section 182(3) stipulates that the Public Protector may not investigate court decisions and that this provision was consistent with section 165 of the Constitution which vests the judicial authority of the Republic in the courts and provides that the courts are independent, subject only to the Constitution and the law, which they must apply impartially without fear, favour or prejudice. Furthermore, the Committee also noted that section 165(3) stipulates that no person or organ of state may interfere with the functioning of the courts.
Recommendation
The Committee does not recommend that the Constitution be amended to enable the Public Protector to review decisions of the courts as this would conflict with section 165 and it would have a major impact on the impartiality of the courts and the separation of powers implied in our Constitution.
2.2.2.4 The Public Protector must report to Parliament regularly and make recommendations It was submitted that the Constitution be amended so as to provide that the Public Protector “report to Parliament regularly and make recommendations” on his or her findings.
The Committee noted that section 182(5) provides that all Chapter 9 Institutions are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year. Section 182 also provides that the Public Protector has the power to investigate any conduct in state affairs that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action.
The Committee was of the view that while the Constitution does not specify the remedial action that must be taken, section 6(4)(c) of the Public Protector Act inter alia provides that at a time prior to, during or after an investigation, if the Public Protector is of the opinion that the facts disclose the commission of an offence by any person, he or she may bring the matter to the notice of the authority charged with prosecutions. Furthermore he or she may make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or make any other appropriate recommendation he or she deems expedient to the affected public body or authority.
Recommendation
The Committee does not support the proposed amendment to the Constitution as it is of the view that the suggested amendment will not confer any additional benefits or protection nor will it enhance the functioning of the Public Protector.
2.2.2.5 The Public Protector must devise mechanisms to shorten legal processes
It was submitted that the Constitution be amended so as to ensure that the Public Protector “must devise mechanisms to shorten legal processes”.
The Committee noted that while section 182(3) does not permit the Public Protector to investigate court decisions, the Public Protector may investigate complaints relating to delays in judicial decision-making.
Recommendation
The Committee does not support the proposed amendment to the Constitution as it was of the view that the role of the Public Protector is to investigate conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper to result in any impropriety or prejudice and not to regulate judicial processes.
2.2.3 SUBMISSIONS ON THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION (SAHRC)
2.2.3.1 Expanding the powers of the SAHRC to enter any institution and peruse all documents in so far as human rights are concerned
It was submitted that the SAHRC be empowered to enter any institution to peruse all documents, including the policies of the institution in so far as human rights are concerned.
The Committee noted that section 184(2) of the Constitution currently provides that the Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power to investigate and report on the observance of human rights, take steps to secure appropriate redress where human rights have been violated and to educate the public on human rights issues.
Recommendation
The Committee does not support the proposed amendment of the Constitution as national legislation already empowers the SAHRC and as such there was no need to amend the Constitution in the manner suggested.
The Committee was however also of the view that the matter be referred to the Portfolio Committee on Justice and Constitutional Development and the ad hoc Committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration.
2.2.3.2 The SAHRC must report regularly to Parliament with regard to progress in providing basic services such as health, housing, water and sanitation
It was submitted that the Constitution be amended so as to require the SAHRC to report regularly to Parliament with regard to progress in providing basic services such as health, housing, water and sanitation.
The Committee noted that section 184(3) currently provides that each year the SAHRC must require relevant organs of state to provide it with information on the measures they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. In addition, section 181(5) stipulates that the SAHRC is accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.
Recommendation
The Committee was of the view whether or not the SAHRC be required to report to Parliament on the measures taken in respect of housing and sanitation as a matter of policy.
The Committee recommends that the matter be referred to the ad hoc committee on the Review of State Institutions Supporting Constitutional Democracy.
2.2.3.3 The SAHRC to promote respect for all peoples regardless of their religious conviction or their lack thereof
It was submitted that the Constitution be amended to require the SAHRC to promote respect for all peoples regardless of their religious conviction or their lack thereof.
The Committee noted that section 184(1) of the Constitution, inter alia, stipulates that the SAHRC must promote respect for human rights and a culture of human rights as well as promote the protection, development and attainment of human rights. The Committee was of the view that this would include the promotion of the rights contained in section 15(1) which provides that everyone has the right to freedom of conscience, religion, thought, belief and opinion.
Recommendation
The Committee does not support the proposed amendment to the Constitution as it is of the view that the Constitution already provides that the SAHRC must promote the rights contained in the Bill of Rights and that there is thus no need to specifically promote the rights contained in section 15.
2.2.3.4 Prisoners should loose their right to vote
It was submitted that the Constitution be amended to provide that the SAHRC must ensure that prisoners must loose their right to vote.
The Committee was of the view that the rights of prisoners to vote are unrelated to the functioning of the SAHRC except in so far as a prisoner who is not allowed to vote may lodge a complaint with the SAHRC.
The Committee noted that the issue of prisoners’ rights to vote was before the Constitutional Court in August and Another v Electoral Commission and Others 1999 (3) SA 1 (CC), and Minister of Home Affairs v NICRO and Others 2004 (5) BCLR 445 (CC). In the latter case it was noted that given the history of disenfranchisement in South African, the right to vote occupies a special place in our democracy and that any limitation of this right must be supported by clear and convincing reasons. The court indicated that if the Government sought to disfranchise a group of its citizens, it must place sufficient information before the court demonstrating what purpose the disenfranchisement is intended to serve.
Recommendation
The Committee does not support the proposed amendment to the Constitution as the petitioners did not demonstrate or motivate why they are of the view that prisoners may not vote. The Committee also noted that such a view conflicts with the current jurisprudence of the Constitutional Court on prisoners’ right to vote.
2.2.3.5 The SAHRC to hold a referendum on the death penalty
It was submitted that the SAHRC should hold a referendum on whether the death penalty should be reinstated.
The Committee was of the view the submission did not propose an amendment to the Constitution. Furthermore it noted that neither the Constitution nor legislation empowers the SAHRC to hold such a referendum.
The Committee noted the judgment of the Constitutional Court in S v Makwanyane and Another 1995 (3) SA 391 (CC), in which it was held that the death penalty was unconstitutional as it inter alia violated the fundamental right not to be subject to cruel, inhuman or degrading form of punishment, the right to dignity and the right to life as protected in the Bill of Rights. The Committee also agreed with the view of the Court in respect of public opinion on the death penalty in terms of which the Court held that “[i]f public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected” (paragraph 88).
The Committee also noted that the reinstatement of the death penalty would conflict with South Africa’s international law obligations as Parliament ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights which inter alia provides that no one within the its jurisdiction shall be executed and that the state is obliged to take all necessary measures to abolish the death penalty.
Recommendation
The Committee does not support the proposal as the Court in Makwanyane held that the death penalty was, inter alia, a violation of the right not to be subjected to cruel, inhuman or degrading forms of punishment the freedom, the right to dignity and the right to life. The Committee was also of the view that the reinstatement of the death penalty would in all probability require amendments to fundamental provisions of the Bill of Rights including sections 9, 10 and 12, dealing with equality, human dignity and freedom and security of the person respectively and that it would also conflict with South Africa’s international law obligations.
2.2.3.6 The SAHRC should impose heavier sentences on offenders
It was submitted that the SAHRC should impose heavier sentences on convicted offenders.
Recommendation
The Committee was of the view that no specific amendment to the Constitution was proposed. It also noted that the imposition of sentences is not a matter to be dealt with by the SAHRC as it is either a matter regulated by Parliament in terms of legislation or by judges in terms of the common law.
2.2.4 SUBMISSIONS ON THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES (CPPRCRLC)
2.2.4.1 The powers of the Commission be extended to enable it to put a stop to discrimination on the basis of cultural, religious and linguistic communities
It was submitted that the Constitution be amended to empower the CPPRCRLC to put a stop to discrimination against cultural, religious and linguistic communities.
The Committee noted that in terms of section 185(1) of the Constitution, the primary objects of the CPPRCRLC are to promote respect for the rights of cultural, religious and linguistic communities, to promote and develop peace, friendship and national unity among cultural, religious and linguistic communities on the basis of equality, non-discrimination and free association and to recommend the establishment or recognition in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa and that section 185(2) further provides that the Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby advise and report on issues concerning the rights of cultural, religious and linguistic communities.
The Committee was of the view that while section 185(2) does not empower the CPPRCRLC to itself investigate violations of rights, it may report any matter that falls within its powers and functions to the SAHRC for investigation.
Recommendation
The Committee does not recommend that the Constitution be amended as the SAHRC already has the power to investigate any violation of human rights.
2.2.4.2 The CPPRCRLC needs to be more visible and the public must be informed about the rights of minorities
It was submitted that the Constitution be amended to ensure that the CPPRCRLC becomes more visible and that it must inform the public about the rights of minorities.
The Committee noted that such detail is not usually included in the Constitution itself, but rather in legislation or policy documents. Recommendation
The Committee does not support the proposed amendment as it is of the view that such detail should be contained in legislation or policy documents, rather than the Constitution. The Committee also recommends that the matter be referred to the ad hoc committee on the Review of State Institutions Supporting Constitutional Democracy for further consideration
2.2.5 SUBMISSIONS ON THE AUDITOR-GENERAL (AG)
2.2.5.1 The Auditor-General must be empowered to act immediately against perpetrators of fraud and not just to report on irregularities
It was submitted that the Constitution be amended so as to empower the Auditor-General (AG) to act immediately against perpetrators of fraud and not just to report on irregularities.
The Committee noted that section 188(1) makes it clear that the function of the AG is to audit and report on the accounts, financial statements and financial management of all state departments and administrations, all municipalities and any other institution or accounting entity so required by national or provincial legislation and that in terms of section 188(2) the AG may also audit other state institutions that receive public monies for a public purpose.
Recommendation
The Committee does not support the proposed amendment as in its view the task of the AG is to report on financial irregularities and report thereon to the relevant authorities and thereafter it is the function of the South African Police Services and the National Prosecuting Authority to act on such information.
2.2.5.2 The AG must make concrete and practical recommendations to Parliament
It was submitted that the Constitution be amended to provide that the AG must make concrete recommendations to Parliament.
The Committee noted that section 188(3) of the Constitution already currently provides that the AG must submit audit reports to any legislature that has a direct interest in the audit.
Recommendation
The Committee is of the view that as 188(3) of the Constitution already provides that the AG must submit audit reports to any legislature that has a direct interest in the audit, the amendment suggested is superfluous.
2.2.6 SUBMISSIONS ON THE ELECTORAL COMMISSIONS
2.2.6.1 The Electoral Commission must make more voting stations available, prescribe more stringent regulations with regard to the registering of political parties and become more visible
It was submitted that the Constitution be amended so as to ensure that the Electoral Commission make more voting stations available, prescribe more stringent regulations with regard to the registering of political parties and become more visible. The Committee was of the view that such detail is not usually included in the Constitution itself, but rather in legislation or policy documents.
Recommendation
The Committee does not recommend amending the Constitution to provide that the Electoral Commission make more voting stations available, prescribe more stringent regulations with regard to the registering of political parties and become more visible as it is of the view that such detail should not be included in the Constitution.
2.2.7 SUBMISSIONS ON THE INDEPENDENT AUTHORITY TO REGULATE BROADCASTING
2.2.7.1 The IBA to promote locally produced programmes and design a cheaper and shorter process to apply for a broadcasting licence to benefit smaller and poorer communities
It was submitted that the Constitution be amended so as to ensure that the IBA must promote locally produced programmes and design a cheaper and shorter process to apply for a broadcasting license to benefit smaller and poorer communities.
The Committee noted that section 192 provides that national legislation must establish an independent authority to regulate broadcasting in the public interest and to ensure fairness and a diversity of views broadly representing South African society and as such the drafters of the Constitution did not specify the functions of the IBA. Recommendation
The Committee does not recommend amending the Constitution to ensure that the IBA promote locally produced programmes and design a cheaper and shorter process to apply for a broadcasting license as such details should not be included in the Constitution.
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OTHER RECOMMENDATIONS ON CHAPTER 9 INSTITUTIONS
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Creation of a Chapter 9 Institution to promote and safeguard the rights of children
It was submitted that that a new Chapter 9 Institution be created to promote and safeguard the rights of children.
The Committee noted that section 28 of the Bill of Rights specifically protects the rights of children and that the inclusion in the Bill of Rights of a special section on the rights of the child was an important development for South African children as they are among the most vulnerable members of society.
The Committee was of the view that Chapter 9 Institutions were established to provide meaningful support for the system of constitutional democracy, open government and good governance and as such it would not be appropriate to locate an institution safeguarding the rights of children in Chapter 9 of the Constitution.
Recommendation
The Committee does not support the proposed amendment as it is of the view that it would not be appropriate for such a body to be included as a Chapter 9 Institution.
- OTHER PROPOSED AMENDMENTS TO THE CONSTITUTION
3.1 Amendment of section 23(2)(c)
It was submitted that section 23(2)(c) of the Constitution be amended so as to list essential services and prevent such employees from embarking on industrial action.
The Committee noted that section 213 of the Labour Relations Act of 1995 already defined essential services and regulated such employees’ right to strike.
Recommendation
The Committee does not recommend the amendment of section 23(2)(c) as it is of the view that the proposal is captured in various sections of the Labour Relations Act.
3.2 The President to be directly elected
It was submitted that the Constitution be amended so that the President is directly elected by the people rather than the National Assembly.
The Committee noted that it was possible for Parliament to amend the electoral system provided that it did so in accordance with the Constitution, the Committee was of the view that proposal was a far reaching one which would change our current system of elections and parliamentary democracy in general.
Recommendation
The Committee was of the view that the desirability of amending the electoral system was a far reaching policy consideration that would require more research and discussion before the Committee can consider the matter.
3.3 Floor-crossing
It was submitted that floor-crossing is a feature of many so-called “established” and “developing” democracies and as such was unsuitable to South Africa currently.
The Committee noted the judgment of the Constitutional Court in UDM v President of the RSA and Others (1) [2002 (11) BCLR 1179 (CC) which held that the that floor-crossing provisions were not inconsistent with the founding values set out in section 1 of the Constitution, with multi-party democracy, or with proportional representation.
Recommendation
The Committee noted that the matter was already before Parliament in terms of a private member’s legislative proposal which has been referred to the Standing Committee on Private Members’ Legislative Proposals and Special Petitions by the Speaker. As such the Committee was of the view that it was not feasible to engage in what would amount to a parallel process.
3.4 Free quality mother tongue education
It was submitted that the Constitution be amended so as to provide for “free quality mother tongue education”.
The Committee noted that section 29(2) of the Bill of Rights provides that everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that kind education is reasonably practicable. In order to ensure the effective access to, and implementation of this right, the state must consider all reasonable alternatives including single medium institutions taking into account equity, practicability, and the need to redress the results of past racially discriminatory laws and practices.
As such the Committee was of the view that the Constitution provides for the provision of mother tongue education at state cost in terms of the guidelines set above.
Recommendation
The Committee does not support the proposed amendment as it is of the view that the Constitution adequately provides for reasonable access to mother tongue education at state cost.
D. Other submissions that did not propose amendments to the Constitution
The Committee received a submission from the SAHRC which commented on the progress made in respect of persons with disabilities. While the SAHRC did not propose any amendments to the Constitution, the submission indicated that state departments were not giving effect to the rights of the disabled. As such the Committee referred the submission to the Portfolio Committee on Justice and Constitutional Development.
The Committee also received a submission from the CGE which proposed amendments to the Commission on Gender Equality Act, the Public Finance Management Act and the Promotion of Equality and the Prevention of Unfair Discrimination Act. As these submissions related to national legislation and not the Constitution, the Committee referred the submission to the Portfolio Committee on Justice and Constitutional Development for consideration.
In addition the Committee also received submissions from the public which • complained about the administration of Chapter 9 Institutions; • alleged that there was unfairness in the justice system; • and alleged that it is unfair that the state observes Christian public holidays such as Easter.
Report to be considered.
National Assembly
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Report of the Portfolio Committee on Justice and Constitutional Development on the Criminal Law (Sexual Offences) Amendment Bill [B 50 - 2003] (National Assembly – sec 75), dated 10 November 2006:
The Portfolio Committee on Justice and Constitutional Development, having considered the subject matter of the Criminal Law (Sexual Offences) Amendment Bill [B 50 – 2003] (National Assembly – sec 75), and the Compulsory HIV Testing of Alleged Sexual Offenders Bill [B 10 – 2003] (National Assembly – sec 75), referred to it and classified by the Joint Tagging Mechanism as section 75 Bills, agrees with the tagging of the Bill as a section 75 Bill and presents the Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B 50B - 2003].
The Committee wishes to report further, as follows:
- Public Participation: In the light of certain media reports and representations received, the Committee deems it expedient to address allegations that there was not sufficient opportunity by roleplayers, stakeholders and individual members of the public to participate in the parliamentary process. The following is relevant in this regard:
1.1 The Committee, from the outset, took cognisance of the fact that – * the Criminal Law (Sexual Offences) Amendment Bill (the Bill) emanated from an investigation of the South African Law Reform Commission (the Commission) into sexual offences; and * the final recommendations of the Commission were based on, among others, a process of extensive public participation during the different stages of the Commission’s investigation. The Committee consequently made extensive reference to the Commission’s report, which highlighted all relevant submissions made to it and the reasons why the Commission did not always follow the recommendations in some of the submissions or portions thereof.
1.2 After the Bill was introduced into Parliament in August 2003 and referred to this Committee, the Department of Justice and Constitutional Development (the Department) briefed the Committee comprehensively on the Bill. At the time of introduction, the Chairperson invited interested persons to comment on the Bill. One hundred and twenty eight (128) written submissions were received. Oral hearings were also held. During the public hearings a number of persons, many of whom participated in the consultative process of the Commission, made oral and written submissions. The persons presenting the various submissions were subjected to thorough questioning in order to clarify the many issues that arose. The Committee- * being aware that the Commission, during its investigation, had consulted widely; and * using the Commission’s report as a point of departure, among others, questioned the persons who made submissions for the amendment of the Bill on the feasibility and desirability of the proposed amendments generally, and more specifically where these recommendations were a repetition of issues already canvassed during the Commission’s consultative process. The Department was also requested to summarise all oral and written submissions made.
1.3 At the end of January 2004 the Portfolio Committee resumed its deliberations on the Bill and, at that stage, the Committee considered at length all the submissions made. These submissions, to a large extent, informed the deliberations of the Committee which gave rise to numerous suggestions on how the Bill should be adapted. The Committee consequently instructed the Department to adapt the Bill in numerous respects for further debate, after which final decisions would be made.
1.4 Immediately before Parliament dissolved for the April 2004 elections the then Chairperson of the Portfolio Committee was requested and mandated by the Committee to engage with the drafters of the Bill, in an attempt to have the Bill ready in a format for consideration by the newly constituted Portfolio Committee after the elections, in line with the suggestions made by the Committee up until that stage.
1.5 After the elections, on 15 June 2004, the National Assembly adopted a resolution to the following effect: “That the following bills be revived and consideration thereof be resumed from the stage reached with them in the Second Parliament before lapsing, namely that the bills were before committees of the National Assembly: (1) …. (6) Compulsory HIV Testing of Alleged Sexual Offenders Bill [B10-2003] (National Assembly – sec 75); (7) Criminal Law (Sexual Offenders) Amendment Bill [B50 – 2003] (National Assembly –sec 75);”.
1.6 Due to the changes suggested by the Committee, the newly appointed Minister for Justice and Constitutional Development requested that the Committee only resume its deliberations on the Bill after Cabinet had taken cognisance of the suggested changes. After the Bill had been considered by Cabinet, the Minister indicated by way of a letter, dated 10 May 2006, to the Speaker of the National Assembly and the Chairperson of the Committee that the adapted Bill had been submitted to Cabinet. The Committee resumed its deliberations on the Bill in June 2006.
1.7 Before resuming its deliberations, the Chairperson of the Committee again invited roleplayers, stakeholders and individual members of the public to comment on the adapted Bill, which was, in essence, the product of the Committee’s previous deliberations, the Committee having suggested the amendments that were submitted to Cabinet in the first place. Again, numerous representations were received: fifty nine (59). Those received up until 31 August 2006 were distributed to all members of the Committee, summarised and considered formally by the Committee. Since it is custom to have oral hearings only at the beginning of the passage of a Bill through Parliament and since many of the submissions received on the adapted Bill, boiled down to a repetition of previous submissions made in 2003, no further oral hearings were held. Some of these written representations did, however, give rise to amendments. Representations received after 31 August 2006 were distributed to Committee members who were requested to raise any issues arising from these representations that required consideration. Some of the last amendments made by the Committee were as a direct result of these late submissions.
- Provisions of the Bill which require specific mention in the report:
2.1 Prior to the elections in 2004, the Committee suggested the inclusion of a clause in the Bill criminalising a person’s intentional non-disclosure of his or her HIV positive status when engaging in intimate contact with another person. A similar clause was suggested in the case of a person who has a sexually transmissible infection, other than HIV or AIDS. When the adapted Bill was before Cabinet, Cabinet expressed reservations about these provisions. The Committee took note of Cabinet’s reservations in this regard and requests the Department to embark on further research, including comparative international trends in this regard, with the view to addressing these reservations and to revert to the Committee as soon as possible.
2.2 Clause 11 which, in effect, confirms the existing legal position that persons who solicit the sexual services of persons older than 18 years are also guilty of an offence, as are the persons who sell these services, is intended to address the concerns raised by the Constitutional Court in its judgment in the case of S v Jordan and Others. When deliberating on this clause, the Committee raised the question why in practice only the seller of the services is charged and prosecuted. The Committee expressed concern that, in a constitutional democracy such as ours, there should not be a selective application of the law, where mostly women are prosecuted for selling sexual services while their clients, mostly men, who are equally guilty, go unpunished. The Committee consequently requests the Department to ensure that this very real concern is brought to the attention of the Commissioner of the South African Police Service and the National Director of Public Prosecutions who are requested to revert to the Committee in writing on this aspect, explaining, among others, why the clients who are, by all accounts, mostly men, are not arrested, charged and prosecuted in accordance with the findings of the Constitutional Court. The Committee, however, noted that the matter of adult prostitution is the subject of review by the South African Law Reform Commission.
2.3 When the provisions dealing with statutory rape were discussed (clause 15), the age of consent became a burning issue, around which there were heated debates. The Committee finally settled on 16 years as the age of consent, as contemplated in clause 15, read with the definition of “child”, in order to protect children under that age, but also to avoid the possibility of thousands of children 16 years and older being drawn into the criminal justice system and being prosecuted for engaging in sexual acts and sexual experimentation, a reality from which there is no escape in virtually all societies across the globe. The Committee, however, noted an argument in favour of raising the age of consent to 18 years, namely that “age of consent offences” (acts of consensual sexual penetration and sexual violation with certain children, as proposed in clauses 15 and 16 of the Bill) offer (automatic) legal protection for both boys and girls against adult sex predators since the prosecution, in these cases, knowing the age of the child to be under the age of consent, is only required to prove that the sexual act in question took place. The Committee, recognising the need for continued discussions on this issue, pending further research, requests the Department to see how other jurisdictions have dealt with the two competing issues mentioned above and what protective mechanisms they have put in place.
2.4 Clause 17 of the Bill, similar to clause 11, criminalises the soliciting of a person under 18 years for sexual purposes, in other words, sexual exploitation of a child. A person who solicits the sexual services of a child under 12 years and in fact has sex with the child, can be prosecuted for the crime of soliciting as well as for rape, since a child under 12 years can never consent to sex. In similar vein, a person who solicits the sexual services of a child between 12 years and 16 years and in fact commits a sexual act with the child, can be prosecuted for the crime of soliciting as well as for statutory rape, since no person may have sex with a child under 16 years, even with the consent of the child. The Committee, however, expressed concern that a person who solicits the sexual services of a child between 16 years and 18 years, even with the consent of the child, can only be prosecuted for the crime of soliciting. The extra protection that children under 16 years enjoy in this regard, namely that the perpetrator (the “client”) can be prosecuted for two offences, is not available to children between 16 and 18 years who are exploited for sexual purposes. The Committee, understanding that the Commission is investigating various aspects of adult prostitution, requests the Commission, in its investigation, to take cognisance of this legal position when making its final recommendations, nothwithstanding the fact that the Commission’s investigation only deals with adult prostitution, that is persons who are 18 years and older.
2.5 Clause 19 of the Bill, as introduced, reads as follows:
2.5.1 “Drug and alcohol treatment orders
19. A court may, upon conviction of a person having committed a sexual offence and if satisfied that the convicted person is dependent on or has the propensity to misuse alcohol or any drug and may benefit from treatment, grant an order in terms of section 296 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and such an order may be made in addition to any sentence, including a sentence of imprisonment which is not suspended.”.2.5.2 While not wishing to express a view on the merits of this provision, the Committee was of the opinion that this provision, dealing with the sexual offender rather than sexual offences, which is the focus of the draft legislation, should be referred back to the Department for further consideration and investigation. The question was raised whether a provision of this nature, if it is to be enacted, would not be better placed in the Criminal Procedure Act, 1977 (Act No. 51 of 1977). The Committee also requested the Department to revisit this proposal in the context of sections 51 and 52 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), dealing with compulsory/minimum sentences. The Committee consequently decided to suspend this clause until the Department has reported back.
2.6 Clause 20 of the Bill, as introduced into Parliament, deals with the supervision of dangerous sexual offenders and provides, among others, that a court that has convicted a person of a sexual offence can declare such a person to be a dangerous sexual offender if that person has more than one conviction for a sexual offence, if the sexual offence in question was accompanied by violence or if the person has been convicted of a sexual offence against a child. In such a case the court can order, as part of the sentence, that when the offender is released from prison after serving part of his or her sentence, he or she be placed under long term supervision by an appropriate person for a period of not less than five years. The Committee raised a number of questions regarding this provision, among others, the following: (i) What are the financial implications? (ii) Are statistics available about recidivists? (iii) Have the constitutional implications of this provision been addressed adequately? (iv) Why is a clause of this nature necessary and what is the mischief it aims to address? The Committee requests the Department to look into the issues raised and to revert to it as soon as circumstances permit.
- Schedule to the Bill: Schedule 2 to the Bill, as introduced into Parliament, effected amendments to numerous Acts of Parliament, as a result of the provisions in the Bill. The Committee decided to delete Schedule 1 of the introduced Bill which sets out guiding principles to be considered in the application of the legislation and the adjudication of sexual offences generally. The Committee was of the view that guiding principles of this nature would be better placed or reflected in the body of the legislation and, more particularly, in the provisions setting out the objects of the legislation and in the provisions dealing with implementation. The Bill approved by the Committee consequently only has one Schedule, containing consequential amendments to various Acts of Parliament.
3.1 In the Bill as introduced into Parliament, Item 8 of the amendments to the Criminal Procedure Act, 1977 (Act 51 of 1977), proposed the insertion of a new section 192A in the Criminal Procedure Act, 1977, after the existing section 192. Section 192 provides that every witness is competent and compellable to testify, unless expressly excluded. The aim of section 192A, as recommended by the Commission, was to provide expressly that all children (not only witnesses in sexual offences cases) are competent to testify in criminal proceedings. This was done so as not to create an artificial distinction between children in sexual offences matters and other child witnesses. The Committee decided to delete this provision from the Bill since it applies to all children and not just children who are victims of a sexual offence or who are witnesses in a sexual offence case. The Committee requested the Department to consider this proposal outside the scope of the Bill and to revert to the Committee if an amendment of this nature is considered to be necessary.
3.2 Because of the many changes made to the Bill as introduced into Parliament, the Department was required to revisit the Schedule to the Bill containing consequential amendments to other Acts of Parliament. During this process the Department identified numerous provisions on the Statute Book requiring synchronisation with the Bill under discussion. Many of the statutory provisions requiring amendment in order to bring them into line with the Bill are straight-forward and can be amended without further ado and have in fact been amended, giving rise to a schedule considerably longer than the one contained in the introduced Bill. There is, however, another category of statutory provisions which were identified as possibly requiring amendments. These provisions, particularly those which are administered by Departments other than the Department of Justice and Constitutional Development, require further investigation and consultation. Since the Bill can be finalised and implemented without effecting this particular category of amendments, the Committee has decided to keep them in abeyance pending further investigation. The Committee consequently requests the Department to – (a) approach the Departments in question to revisit the statutes administered by them and identified by the Committee with the view to aligning them, where necessary, with the legislation under discussion; and (b) report back to the Committee on whether the provisions do in fact need to be amended in order to align them with the legislation under discussion.
3.3 One of the provisions that required synchronisation with the legislation under discussion is section 195 of the Criminal Procedure Act, 1977. This section deals with “evidence for the prosecution by the husband or wife of the accused, the aim of which is to protect the inviolability of the institution of marriage. It provides that the wife or husband of an accused person shall be competent but not compellable to give evidence for the prosecution in criminal proceedings, but is competent and compellable to give evidence for the prosecution in criminal proceedings in relation to certain offences. It is quite clear why some of the offences mentioned in the list are there, for instance any offence committed against the person of either of them or of a child of either of them. Some of the offences in the list, however, do not seem to have a similar clear cut rationale or connection, for instance the reference to offences contained in the Sexual Offences Act, 1957, which are prostitution-related offences. The Committee raised the question whether this list of offences should not be re-visited in the light of prevailing public mores and circumstances which have undergone changes since these provisions were enacted in 1977, and which, at the time of such enactment, were probably simply taken from the Act’s predecessor, the Criminal Procedure Act of 1955. The Committee consequently requests the Department to undertake an investigation in order to determine whether adaptations in this regard are necessary and to report back to the Committee on its findings and to submit appropriate amendments, if necessary.
3.4 Another provision of the Criminal Procedure Act, 1977, that required synchronisation with the legislation under discussion is section 268. This section deals with “statutory unlawful carnal intercourse” and provides, among others, that if the evidence on a charge of unlawful carnal intercourse in contravention of any statute does not prove that offence but proves – (a) the offence of indecent assault; (b) the offence of common assault; (c) the statutory offence of - (i) committing an immoral or indecent act with another person; (ii) soliciting, enticing or importuning such other person to have unlawful carnal intercourse; (iii) soliciting, enticing or importuning such other person to commit an immoral or indecent act; or (iv) conspiring with such other person to have unlawful carnal intercourse, the accused may be found guilty of the offence so proved. Not only is the language of this provision archaic, the rationale behind the provision, in the opinion of the Committee, needs to be re-visited. This section has been amended in so far as it can be adapted in order to bring it in line with the Bill, as mentioned above. This section, dealing with prostitution- related issues is, however, of such a nature that it should form part of the Commission’s investigation on adult prostitution. The Committee requests the Commission to ensure that this section is also given attention during the course of this investigation, in addition to the provisions dealing with adult prostitution, contained in the Sexual Offences Act, 1957.
- Training: The Committee recognises that the Bill, which is a comprehensive review of the existing law relating to sexual offences, will inevitably give rise to many questions by those who are required to implement and apply it in practice. In order to ensure that it is understood properly and is applied as uniformly as possible throughout the country, the Committee is of the view that the Department should initiate and, as far as possible and appropriate (in so far as the judiciary is concerned), co- ordinate a project which is aimed at the promotion and facilitation of training on the legislation and its implications. The Committee consequently requests the Department to revert to it with a detailed proposal, prepared in conjunction with all relevant roleplayers, on how this initiative should be undertaken, including, among others, the following: (i) Aspects identified in the Bill that require attention, in general, as well as specific aspects that require attention by the various functionaries which will be responsible for the implementation of the legislation; (ii) categories of persons or functionaries that will benefit from such training; (iii) persons or institutions that should be approached for developing and providing the required training courses; (iv) funding the training; and (v) timeframes.
Report to be considered.
TUESDAY, 14 NOVEMBER 2006
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Translations of Bills submitted
(1) The Minister of Finance
a) Aansuiweringsbegrotingswetsontwerp [W 32 – 2006] (National
Assembly – art 77)
This is the official translation into Afrikaans of the
Adjustments Appropriation Bill [B 32 – 2006] (National
Assembly – sec 77).
National Assembly
The Speaker
- Referral to Committees of papers tabled
1. The following papers are referred to the Portfolio Committee on
Labour for consideration and report:
a) Instrument for the Amendment of the Constitution of the
International Labour Organisation (ILO), tabled in terms of
section 231(2) of the Constitution, 1996.
b) Explanatory Memorandum to the Instrument for the Amendment of
the Constitution of the International Labour Organisation
(ILO).
2. The following papers are referred to the Portfolio Committee on
Agriculture and Land Affairs for consideration and report:
a) Agreement between the Republic of Botswana, the Republic of
Mozambique, the Republic of South Africa and the Republic of
Zimbabwe on the Establishment of the Limpopo Watercourse
Commission, tabled in terms of section 231(2) of the
Constitution, 1996.
b) Explanatory Memorandum on the Agreement between the Republic of
Botswana, the Republic of Mozambique, the Republic of South
Africa and the Republic of Zimbabwe on the Establishment of the
Limpopo.
3. The following papers are referred to the Portfolio Committee on
Environmental Affairs and Tourism for consideration and report:
a) Request for approval by the National Assembly of the exclusion
of Portion 1 of the farm Mozib 279, the farm Droogte Veldt 292
and Portion 1 of the farm Than 280 from the Vaalbos National
Park in terms of section 21(1)(a) of the National Environmental
Management: Protected Areas Act, 2003 (Act No 57 of 2003).
b) Explanatory memorandum on the proposed exclusion of Portion 1
of the farm Mozib 279, the farm Drooge Veldt 292 and Portion 1
of the farm Than 280 from the Vaalbos National Park in terms of
section 21(1)(a) of the National Environmental Management:
Protected Areas Act, 2003 (Act No 57 of 2003).
TABLINGS
National Assembly and National Council of Provinces
- The Speaker and the Chairperson a) General Report of the Auditor-General on Audit Outcomes for 2005-06 [RP 247-2006].
b) General Report of the Auditor-General on the Audit Outcomes of Local
Government for the year ended 30 June 2005 [RP 172-2006].
- The Minister of Safety and Security
a) Report of the National Commissioner of the South African Police
Service (SAPS) for the period of January 2006 to June 2006, in
terms of section 18(5)(d) of the Domestic Violence Act, 1998 (Act
No 116 of 1998).
- The Minister of Trade and Industry
a) Government Notice No R.967 published in Government Gazette No 29265
dated 6 October 2006: Withdrawal and replacement of the compulsory
specification of circuit breakers, in terms of the Standards Act,
1993 (Act No 29 of 1993).
COMMITTEE REPORTS
National Assembly
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Report of the Portfolio Committee on Arts and Culture on the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, dated 14 November 2006:
The Portfolio Committee on Arts and Culture, having considered the request for approval by Parliament of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, referred to it, recommends that the House, in terms of section 231(2) of the Constitution, approve the said Convention.
Request to be considered.