National Council of Provinces - 19 November 2008
Wednesday, 19 November 2008
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Proceedings of the national council of provinces
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The Council met at 11:36.
The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
NOTICES OF MOTION
Mr M A MZIZI: Chairperson, I hereby give notice that on the next sitting day of the Council I will move on behalf of the IFP:
That the Council –
1) notes with shock and horror that a 15-year-old pupil from
Mpumalanga died after being brutally raped and stabbed 66 times;
2) further notes that this gruesome murder has taken place just as we
are about to launch the 16 Days of Activism for No Violence Against
Women and Children;
3) realises that our current efforts at stopping violence against
women and children are not good enough as there are still too many
incidents of violence against them;
4) acknowledges that we need to intensify our efforts in combating
crimes against women and children; and
5) calls upon the relevant authorities to do everything in their power
to apprehend the monster who committed this shocking crime as he
does not belong in society.
Ms J F TERBLANCHE: Chairperson, I hereby give notice that on the next sitting day I shall move the following motion:
That the Council –
1) notes that in light of –
a) the relaunch of the Democratic Alliance at Constitution Hill
on 15 November, on which occasion the party unveiled a new
logo symbolising its commitment to promoting diversity in the
context of one nation with one future; and
b) the DA’s undertaking to strive to become a party of
government and to realise its vision of an open opportunity
society for all; and
2) congratulates the DA and welcomes its relaunch as a positive
contribution to the consolidation of multiparty democracy in South
Africa and to the entrenchment of core constitutional values such
as dignity, equality, nonracialism and nonsexism.
Ms K A KGAREBE: Chairperson, I give notice that I shall move:
That the Council –
1) notes that on 4 October 2008 in Greater Taung Municipality,
Pudumong Township in North West, Othusitse Leburu, an educator of
45 years at Joseph Saku Middle School decided to destroy himself
and everything he had accumulated for his family by pouring petrol
over himself and his house and setting everything alight;
2) also notes that on the morning of the same day friends and
neighbours were with him at the unveiling of a tombstone at
Dryharts, where he showed no symptoms of anger or of committing
suicide;
3) acknowledges that the inside and outside of the house was
completely burnt and that he burnt himself and the family home to
ashes; and
4) calls on the government to work more closely with educators so as
to observe and experience the overloading of work on educators and
to try and get to the root of the problem which might help to stop
other educators from killing themselves.
Me H LAMOELA: Voorsitter, ek gee hiermee kennis:
Dat die Raad –
1) kennis neem –
a) van die vernietigende vloede wat dele van die Wes-Kaap verlam
en groot skade en selfs lewensverlies veroorsaak het, toe ‘n
matriek meisie op pad na haar eksamen verdrink het;
b) dat die Hexriviervallei, Montagu, Greyton en Genadendal van die
gebiede is wat die ergste geraak is;
c) dat daar reg oor die provinsie paaie, brûe, huise, wingerde en
selfs vee in die slag gely het; en
d) dat die impak van hierdie skade groot invloed op hierdie
seisoenale gebiede gaan hê; en
2) die Provinsiale Minister versoek om so spoedig moontlik hierdie
vloedgeteisterde gebiede as rampgebiede te verklaar sodat ramphulp
spoediglik verleen kan word om gebiede te kan herstel en om
betrokkenes kans te gun om weer met hul lewens voort te kan gaan. (Translation of Afrikaans notice of motion follows.)
[Ms H LAMOELA: Chairperson, I hereby give notice:
That the Council –
1) notes –
a) the devastating floods that have paralysed parts of the Western
Cape and have caused extensive damage and even loss of life,
when a matric schoolgirl drowned on the way to write her
examination;
b) that the Hex River Valley, Montague, Greyton and Genadendal are
some of the areas that have been worst affected;
c) that throughout the province roads, bridges, homes, vineyards
and even livestock have been destroyed; and
d) that the impact of this damage will severely affect these
seasonal areas; and
2) requests the provincial minister as soon as possible to declare
these flood-ravaged areas as disaster areas, so that disaster relief
can be rendered without delay in order to enable these areas to
recover and afford the people involved the opportunity to continue
with their lives.]
Massive turnout at rally at kamhlushwa
(Draft Resolution)
Mr V V Z WINDVOËL: Chairperson, I move without notice:
That the Council –
1) takes note of the massive turnout of 25 000 to 35 000 people who
attended the rally at Kamhlushwa in Mpumalanga, addressed by the
President of the ANC Jacob Zuma, the General Secretary of Cosatu
Comrade Zwelinzima Vavi and the General Secretary of the SACP
Comrade Blade Nzimande;
2) confirms and reaffirms the confidence of the people in the national
liberation movement that it is still a trustworthy and reliable
organisation upon which to depend;
3) recommends that the mampara journalist of the SABC who could not
count to more than 10 000 be taken to an Adult Basic Education and
Training, Abet, programme where he can gain arithmetic and
mathematical skills; and
4) lastly confirms that the ANC-led alliance is still embedded in the
Freedom Charter that the people shall govern and will always be
with the people.
Ms J F TERBLANCHE: Chairperson, on a point of order … [Interjections.]
The CHAIRPERSON OF THE NCOP: I will just check one word, whether it is parliamentary to call them “mamparas”. I am not too sure on that one.
Ms J F TERBLANCHE: Thank you, Chairperson. That was the point of order I wanted to raise.
Mr A WATSON: Chairperson, I object to the motion.
The CHAIRPERSON OF THE NCOP: There is an objection to the motion. In the light of the objection the motion may not be proceeded with. The motion without notice will now become notice of a motion.
TELEVISION EXPOSURE GIVEN TO President Kgalema Motlanthe
(Draft Resolution)
Mr A WATSON: Chairperson, I move without notice:
That the Council –
1) notes with concern the recent reports that party leaders of the ANC
are concerned that too much television exposure is given to
President Kgalema Motlanthe, to the detriment of ANC president
Jacob Zuma and that pressure is being exerted on SABC bosses to
reverse the situation;
2) further notes that this has reportedly been confirmed independently
by two senior SABC sources;
3) also notes that this is the same ANC that has forced the previous
President’s early resignation, which resulted in the election of
President Motlanthe;
4) rejects, with contempt, any attempts to reduce the stature of the
constitutionally elected President of the Republic of South Africa;
and
5) reaffirms its unconditional support for, and acknowledgement of,
President Kgalema Motlanthe as the indisputable Head of State of
South Africa.
The CHAIRPERSON OF THE NCOP: Order! Is there any objection to that motion?
HON MEMBERS: Yes! The CHAIRPERSON OF THE NCOP: Okay, in light of the objection, the motion cannot be proceeded with. [Interjections.]
Order, order! Hon members, don’t be disorderly! Please, you are causing disorder in the House. I will name you and put you out of the House if you continue causing disorder in the House. The motion without notice will now become notice of a motion.
SIGNIFICANCE OF FREEDOM CHARTER
(Draft Resolution)
Mr R J TAU: Thank you very much Chair, I hereby wish to move without notice:
That the Council –
1) notes the continued efforts by certain individuals and formations
that seek to manipulate the legacy that was first mooted at the
adoption of the Freedom Charter as a historic founding policy
directive and a statement of core principles of the SA Congress
Alliance, which consisted of the African National Congress, ANC,
and its allies the SA Indian Congress, the SA Congress of Democrats
and the Coloured People’s Congress;
2) acknowledges that the ANC sent out 50 000 volunteers into townships
and the countryside to collect “freedom demands” from the people of
South Africa, which were later synthesised into the final document
by the Congress of the People in 1955 in Kliptown, Soweto, under
the leadership of ANC leaders such as Z K Matthews and Lionel
“Rusty” Bernstein;
3) takes this opportunity to condemn in the strongest possible terms
any efforts by any formations or individuals that blatantly seek to
blight this historic event of our liberation movement and the
people of South Africa; and
4) calls on all ANC structures and alliance partners to rise up and
defend this significant legacy of our movement, a legacy that our
children, grandchildren and great-grandchildren will live to
cherish and defend, a legacy that small-minded and selfish people
would like to steal from future generations.
May we all live the Freedom Charter in its totality and not selective clauses!
The CHAIRPERSON OF THE NCOP: Order! Is there any objection?
Ms J F TERBLANCHE: Yes, Chairperson, the DA objects.
The CHAIRPERSON OF THE NCOP: In the light of the objection, the motion may not be proceeded with. The motion without a notice will now become notice of a motion.
CONTRIBUTION OF YOUTH TO SOCIETY
(Draft Resolution)
Mr C M GOEIEMAN: I move without notice:
That the Council -
1) notes recent reports by the Independent Electoral Commission that
the youth represented almost 80% of the new voters who registered to
vote on the weekend of 8 and 9 November 2008;
2) acknowledges the significant role that young people in South Africa
have played in the fight for liberation and in mobilising
communities to rise against the armed forces of the apartheid
regime;
3) further acknowledges the important contribution that the youth have
made in the reconstruction and development of a postapartheid
society since the dawn of our democracy in 1994, by continuously
engaging institutions of government to expand opportunities for the
youth, particularly those from previously marginalised and deprived
communities; and
4) reiterates the call of the African National Congress to all young
people in South Africa to once again rise up and stand firm in
defence of our hard-won freedom and democracy.
Motion agreed to in accordance with section 65 of the Constitution. The CHAIRPERSON OF THE NCOP: Order! Just to remind the members about time … Hon Sibiya and Danie, I can hear you from here. You are disturbing the Chair.
Hon members, please time your motions. The allotted time is one and a half minutes. I don’t want to, but I will have to cut you short if you proceed for longer than that.
PRAISE FOR SAPS ORGANISED CRIME UNIT IN KWAZULU-NATAL
(Draft Resolution)
Mnu D D GAMEDE: Sihlalo, ngiphakamisa ngaphandle kwesaziso:
Ukuthi lo Mkhandlu –
1) uncoma amaphoyisa aKwaZulu-Natali ikakhulukazi uphiko olubhekene
nobugebengu obuhleliwe olusebenza laphaya eThekwini ngokubopha
izigebengu ezithintekayo ekubulaweni kwamaphoyisa kwaMaphumulo;
2) ukhuthaza namanye amaphoyisa akwezinye izindawo ukuthi asebenze
njenga leli thimba. (Translation of isiZulu draft resolution follows.) [Mr D D GAMEDE: Chairperson, I move without notice:
That the Council –
1) praises the members of the SAPS in KwaZulu-Natal, especially the
members of the Organised Crime Unit which is based in Durban, for
arresting the suspects implicated in the murder of police officers
in Maphumulo; and
2) encourages other police officers to take a leaf from this unit.]
Motion agreed to in accordance with section 65 of the Constitution.
The CHIEF WHIP OF THE COUNCIL: Chairperson, I have two motions to move. I will start with the one on the Order Paper.
The CHAIRPERSON OF THE NCOP: I will come to the motions on the Order Paper.
PRECEDENCE GIVEN TO SIXTH AND TENTH ORDERS The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:
That Orders Number 6 and 10 on the Order Paper be given precedence immediately after Order Number 3.
Motion agreed to in accordance with section 65 of the Constitution.
ANC MANIFESTO CAMPAIGN
(Draft Resolution)
Ms M P THEMBA: Chairperson, I move without notice:
That the Council –
1) notes that on 14 November 2008, the ANC launched a popular
manifesto campaign inviting all South Africans to define the vision
for our fourth democratic era;
2) acknowledges that the campaign, which has the theme slogan “My ANC.
My vision. My future.” is a renewed call that builds on the vision
that was first laid by the ANC and its alliance partners at the
Congress of the People in 1955 when they called all South Africans
to define their destiny; and
3) calls on South Africans to heed this call to define the future of
our country, the goals they want to achieve and the things that
they will need to improve in their communities to ensure a better
South Africa for all.
Ms J F TERBLANCHE: Chairperson, the DA objects. [Interjections.]
The CHAIRPERSON OF THE NCOP: In the light of the objection, the motion may not be proceeded with. The motion without notice will now become notice of a motion.
Hon Sogoni? Your hand was up.
Mr E M SOGONI: Chairperson, no.
The CHAIRPERSON OF THE NCOP: It has passed.
SUSPENSION OF RULE 239(1)
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move:
That Rule 239(1), which provides, inter alia, that the consideration 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 consideration of the National Prosecuting Authority Amendment Bill [B 23B – 2008] (National Assembly – sec 75) and the SA Police Service Amendment Bill [B 30B - 2008] (National Assembly – sec 75) on Wednesday, 19 November 2008.
Question put: That the motion be agreed to.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu- Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Motion accordingly agreed to in accordance with section 65 of the Constitution. NATIONAL ROAD TRAFFIC AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mr R J TAU: Chairperson, today, as a select committee, we are tabling a very important piece of legislation, taking into account particularly the time of the presentation of the Bill itself. It is the National Road Traffic Amendment Bill which, in the main, proposes to seek to give effect, in the short term, to some of the principle strategies contained in the Road to Safety 2001-2005 plan.
The Bill implements the strategic intervention highlighted in the Road to Safety strategy. Furthermore, it deals with fraudulent activities with regard to the issuance of driving licences and roadworthy certificates, and with curbing incidences of criminal activity by or in relation to motor vehicles or their operation on public roads.
The Bill amends certain definitions and also provides some definitions. It is important that as a select committee, whilst we take note that the report has been printed in the ATCs, we note or mention in the House that, seeing that we will be going into the festive season, this is one of the pieces of legislation that seeks to assist the Department of Transport, particularly in enhancing the Arrive Alive campaign. As we know, many of the accidents that are fatal are, in some instances, as a result of drivers who have driving licences that were acquired fraudulently or vehicles that are not roadworthy being used on our roads.
It is, therefore, with this piece of legislation that we are trying to bring back some sanity to our drivers and our society, to ensure that we love our lives, and also assist those who might be reckless and ensure that, at the end of the day, everybody is safe during the festive season.
As the select committee we are hoping that hon members and also their families, friends and everybody else will adhere to these proposals, even if they have not yet been enacted, to ensure that everybody arrives alive during the festive season. Thank you very much. [Applause.]
Debate concluded.
Question put: That the Bill be agreed to.
IN FAVOUR: Eastern Cape, Free State, Gauteng, Limpopo, Mpumalanga, Northern Cape, Western Cape.
ABSTAIN: KwaZulu- Natal.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
MANDATING PROCEDURES OF PROVINCES BILL
(Consideration of Report of Mediation Committee)
Kgoshi M L MOKOENA: Chairperson, colleagues, comrades and friends, you will recall that we came to this House and reported that we were concerned that whenever committees receive mandates from provinces, there was no uniformity as to who was supposed to sign the final mandate. That has been corrected by the senior House, the NCOP, through the committee led by yours truly.
What we did was to follow all the processes. As a norm, after we have passed a Bill in this House, our colleagues in the NA have to consider it, because the Bill emanated from this House. Our colleagues in the NA insert a clause or clauses in an attempt to improve the original Bill. The clause that they inserted provided that for each and every question that this House had to vote on, we had to get a mandate.
That was very problematic because that was going to mean that even for motions, as moved by my colleagues in this House this morning for example, we would have to adjourn and ask for mandates from our provinces. That was going to make our House dysfunctional.
Because we differed with the NA in this regard, we passed a motion establishing the Mediation Committee. The two Houses met to look into the particular clause we differed on. Our colleagues conceded that they are not clued up on issues in the senior House, hence they inserted that particular clause. But, ultimately, they agreed that it was wrong of them to include that particular clause, because it was going to render our House dysfunctional. Therefore, in the Mediation Committee we agreed to remove that particular clause.
All the mess has been cleared up; things are now back on track. We are now like a well-oiled machine. If this Bill gets the nod from this House now, it will mean that each and every final mandate that will come from provinces will be signed by the Speaker.
I don’t want to bore members with more details, because this Bill has been in this House a long time. What I’m tabling is the report of the Mediation Committee. We managed to persuade our colleagues to understand our point of view. On that note, without taking too much of the House’s time, we are tabling this report of the Mediation Committee and are commending that the proposals be accepted. Thank you, Chairperson.
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, KwaZulu-Natal, Mpumalanga, Northern Cape.
The CHAIRPERSON OF THE NCOP: We were just looking at the voting. I’m informed that although Gauteng has voted in favour of adopting the report, we don’t have their mandate in writing yet. So, the record of provinces that have voted yes is six. I will remove Gauteng province’s name from that list because we have not formally received their voting mandate. Therefore, five provinces have voted in favour of the Bill. Mr Sogoni?
Mr E M SOGONI: Chairperson, I think that there is confusion on the part of Gauteng as far as the Rules are concerned. Gauteng is of the view that it had sent a final mandate for the delegation head to vote in favour of the process. However, as Kgoshi Mokoena has explained, the confusion arose when there had to be mediation. Gauteng was of the view that the original mandate was the mandate we had to carry. That is why we are voting now in favour of the report. In fact, we verified this before coming into the House.
The CHAIRPERSON OF THE NCOP: Mr Sogoni, that’s precisely why I’m removing Gauteng’s name from the list of provinces that have voted in favour of the report. The mandate you have was for the first Bill, not the final Bill that Kgoshi Mokoena is referring to. I understand the misunderstanding. However, it should correspond with our Minutes that we have your mandate in writing for the original Bill, but not the final mandate. If you can send it, that would be fine. We will note it in our documents. Report accordingly adopted in accordance with section 65 of the Constitution.
BIBLE SOCIETY OF SOUTH AFRICA ACT REPEAL BILL
(Consideration of Bill and of Report thereon)
Mr M A SULLIMAN: Chairperson, you’ll recall that we passed some of the church Bills, which were initiated by hon P Gerber, last week. The Bible Society of South Africa Bill was one of them. We dealt with this particular Bill and proposed some amendments, because the Bible Society is going to become a section 21 company, a nonprofit organisation, from now on and we need to make provision for the smooth transfer of its assets to the new section 21 company.
In the committee itself we did not have any problems with any political parties. I therefore make an appeal to all the political parties to support this Bill that’s before us today. Thank you. [Applause.]
Debate concluded.
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
CRIMINAL PROCEDURE AMENDMENT BILL
(Consideration of Bill and of Report thereon)
Mr B J MKHALIPHI: Chairperson and colleagues, the Bill before us amends the Criminal Procedure Act, Act 51 of 1977, so as to provide for the postponement of certain criminal proceedings against an individual who is in custody, awaiting trial, by using an audiovisual link.
The amendment emanates from the report of the Law Reform Commission, which expressed the need for this kind of legislation in order to alleviate the financial burden and the attendant security risks posed by the transportation of accused persons to and from the courts, who at times appear for only five minutes, at huge expense and risk.
The provisions in this amendment will also reduce administrative costs. The Minister, in terms of this Bill, must designate the correctional centre which may use this audiovisual conferencing facility.
In clause 2 of the Bill certain words are amended in terms of section 271A of the principal Act, without amending the substance of the section. In order to provide for expungement of certain criminal records, four new sections are inserted. The expungement of criminal records occurs after application by the persons concerned, and expiry of a fixed period in certain circumstances. There is also automatic expungement of criminal records of persons who were convicted of criminal offences under the previous constitutional dispensation.
Here we refer to what we may call apartheid offences under obnoxious Acts, such as the Group Areas Act, Immorality Act, Separate Amenities Act and others. The Bill further stipulates that there are three categories of criminal records that will never be expunged. These are criminal records appearing in the National Register for Sex Offenders, criminal records appearing in the National Child Protection Register and, lastly, criminal records appearing for offences in terms of the Firearms Control Act of 2000.
We engaged the departments in many of the sections about the practice and applicability in certain circumstances. Our engagement with the department is on an ongoing basis. We will receive periodic reports about the progress made. We commend the Bill to this House.
Debate concluded.
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
CONSIDERATION OF REPORT OF JOINT BUDGET COMMITTEE – MEDIUM-TERM BUDGET POLICY STATEMENT
Mr E M SOGONI: Chairperson … [Interjections.] I hope I will be protected, as I’m making my maiden speech! [Laughter.] I have 10 pages to read for members and I’ll just ask for an extension of time.
As we ask the House today to adopt this Medium-Term Budget Policy Statement, I just want to say that the world markets are facing a financial market meltdown which started in the USA. Also, some G7 members have already declared that, because of the globalisation of the economy, their countries are facing recession. Our country will not remain unaffected, as developing countries experience the worst impact.
As we know, South Africa is part of this global economy and faces the same economic challenges. However, South Africa has come up with policies to weather the storm and it will therefore survive. Economists are already predicting that, although South Africa will experience a low economic growth of about 3%, it will still keep afloat.
Chairperson, on behalf of the Joint Budget Committee, I would like to ask the House to adopt the Budget Statement as reflected in the ATCs. Thank you.
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
UNPARLIAMENTARY LANGUAGE
(Ruling)
The CHAIRPERSON OF THE NCOP: Hon members, I said I would look at the word “mampara” used by the hon V V Z Windvoël earlier on, and it is unparliamentary. However, it’s not an issue anymore because there was an objection to the motion. But the word is unparliamentary.
Proceedings suspended at 12:29 and resumed at 14:03.
Afternoon Sitting
The CHAIRPERSON OF THE NCOP: Thank you, hon members, and thanks to both of you, hon Ministers. I see you are here.
There is your chair. [Interjections.] I am just joking, because you would then be the Chief Whip of the House.
NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL
SOUTH AFRICAN POLICE SERVICE AMENDMENT BILL
(Consideration of Bills and of Reports thereon)
The MINISTER OF SAFETY AND SECURITY: Chairperson, hon members, the South African Police Service Amendment Bill and the National Prosecuting Authority Amendment Bill jointly effect the establishment of a new, integrated division in the SAPS to prevent, combat and investigate national priority crimes.
Firstly, I wish to thank the Select Committee on Security and Constitutional Affairs for the role it played in the development of the Bill now being considered. Normally the committee would only become involved in the consideration of a section 75 Bill after adoption thereof by the National Assembly.
In the case of this Bill, the committee was part of all the deliberations, including the public hearings all over the country and the public hearings in the joint committee that consisted of the Portfolio Committee on Justice and Constitutional Development and the Portfolio Committee on Safety and Security. Despite this, the committee interrogated all aspects thereof afresh, intensively and critically, once it started deliberations on the Bill.
The committee also allowed further submissions on both Bills by the Institute for Democracy in South Africa, Idasa, and the Centre for Constitutional Rights. It also allowed these institutions to make oral submissions, although the issues raised were also deliberated upon in the joint committee.
In particular, I appreciate the fact that the committee requested a report- back on the implementation of the Bill and that the committee undertook that, if there are going to be challenges, they recommend that additional resources be given to the new directorate to conduct its functions efficiently. The committee also recommended some amendments to further improve the text.
We must emerge victorious in the battle aimed at the realisation of the safety and security of all South Africans. The battle against organised crime and crime in general must be won. Defeating crime is in the best interests of our democratic transformation. The just dispensation we have entrenched is based on the principle of equality, including equal access to peace and security as an aspect of the realisation of the goal of a better life for all. Our commitment to the safety and security of every South African has, over the years, found expression in the many interventions we have made to strengthen our capacity to defeat the scourge of crime.
The Bills before the House represent a continuation of this effort. They take our fight against organised crime to higher levels. They will enable us to rectify weaknesses in our system while ensuring better organisation and utilisation of our human and material resources.
Bertrand Russell once said:
What a man believes upon grossly insufficient evidence is an index into his desires – desires of which he himself is often unconscious. If a man is offered a fact which goes against his instincts, he will scrutinise it closely, and unless the evidence is overwhelming, he will refuse to believe it. If, on the other hand, he is offered something which affords a reason for acting in accordance to his instincts, he will accept it even on the slightest evidence.
Mr Bertrand Russell lived in a different time from ours, thus his reference to “man”, as you would have noticed, when referring to human beings. Patriarchal nuances aside, opposition parties would derive great benefit from a sincere consideration of Mr Russell’s words.
Despite the progress that has been made in many areas, government’s review processes indicated the need to realign state entities mandated to investigate and combat organised crime. The Directorate of Special Operations, DSO, was a new and innovative development in the fight against organised crime. It included prosecutors, detectives and intelligence operatives in one unit - powerful, no doubt about that. But this combination created its own problems. All police units are monitored by the Independent Complaints Directorate, ICD. However, the DSO was under the National Prosecuting Authority, NPA, and could not be investigated by the ICD. The intelligence-gathering capacity of our agencies is monitored by the Inspector-General of Intelligence. However, the DSO was not covered by this framework.
Our firm commitment to the fight against crime must find expression in resolute action. We have to address the issues of poor co-operation and co- ordination that have been revealed in practice. We have to remedy issues of duplication and parallel investigations. Failure to do so will only benefit criminals. Prosecutors need to be independent from investigators so as to better exercise proper balance in their decisions to prosecute or not and to ensure the realisation of the principle of separation of functions.
There has also been what some have referred to as the “cherry-picking” of cases - a preoccupation with certain kinds of crime, with the result that other crimes were inadvertently ignored. The previous arrangements also resulted in a situation where units which did not report their successes to the media were unjustly perceived as poor performers. A situation like this poses potential dangers.
As we traverse along the transformation path, we continually gain experience and insight into the nature of the reality we seek to change. This necessitates a continual evolution of our crime-fighting strategies, entities, arsenal and programmes. We have recognised that, because of its nature, organised crime requires that we address it through a multipronged, well-equipped and resourced unit. Through the establishment of the Directorate for Priority Crime Investigation, DPCI, we shall take our capacity to fight organised crime to a higher level. Practice will indeed reveal areas to be improved. However, the collective experience, resources, commitment and unity of purpose that will already underpin the unit will ensure a very firm and effective beginning.
The Bills before us provide for, among other things, a smooth transfer of personnel. This is the task that the Minister for Justice and Constitutional Affairs and the Ministry of Safety and Security are seized with.
We must again assure the people of our country that no cases will be lost. Once the Bill is passed, investigations of the Directorate of Special Operations, DSO, shall be dealt with as if the Act had always been in force. The enactment of the South African Police Service Amendment Bill will enhance our capacity to prevent, combat and investigate priority crimes. We shall identify and preserve the positive lessons borne of our various experiences.
It is to be expected that the initial process of merging our experiences may contain some aspect of pain. There is, however, no doubt that the resultant sense of unity will be in the long-term interests of the fight against crime in our country, and it will therefore bring us closer to the realisation of the goal of a better life for all.
We must commend the profoundly democratic manner in which the Bills on this matter have been processed. In fact, this is one piece of legislation that took this long because of the thorough consideration Members of Parliament attached to it.
We congratulate Parliament and its committees on the thorough effort they put into the processing of the Bill, that is, both the select committee and the portfolio committee. The vibrant discussions have enriched our understanding of the challenges we face. The ideas that emerged have become our national intellectual assets, and they have enriched the Bills and nourished our capacity to navigate our own way into the future.
Some in our society asserted a view that some Members of Parliament should recuse themselves from participating in processes relating to these Bills. It is fascinating that such moral rectitude never arose when we enacted legislation to outlaw apartheid on the basis that many of the participants had not only benefited from apartheid, but had actually also been the architects of some of the legislative framework. The rejection of the Hugh Glenister applications by our courts is a confirmation that the principle of separation of powers is well entrenched in our country.
Freedom includes freedom from fear of criminals and criminality. We shall do all we can. We invite all South Africans, in all their areas of social activity, to flex their collective muscle and work with the organs of the criminal justice system to bring about better, safer and secure communities.
We are progressively giving life to the demand of the Freedom Charter that “There Shall be Peace and Friendship!” Thank you. [Applause.]
The CHAIRPERSON OF THE NCOP: Just before Kgoshi Mokoena takes the podium, let me correct myself. I’ve called Order Number 4 only; I should have said Orders Number 4 and 5 will be debated together. It is one debate.
Kgoshi M L MOKOENA: Chairperson, welcome to the senior House my two dynamic Ministers. Hon members, colleagues, comrades and friends, when doing our oversight function in provinces, people complain that the crime in our country is very high.
As individual MPs, addressing our own branches in various constituencies, the same question would arise. When attending social gatherings or church services, the question we are always asked is: What are those measures that you are putting in place to fight crime?
The two Bills before this House are a direct response to all those questions. Contrary to what opposition parties want people to believe, these Bills address organised crime in an integrated, co-ordinated, and focused manner. With these Bills we are creating a unit that brings together the best people for the job. In these units we are bringing together people with experience and know-how when it comes to organised crime.
All these ideas came as a result of the intensive process of public hearings and inputs made by various political organisations. During the public hearings there were concerns that were raised by people. My colleagues will address those, but let me, in passing, just touch on a few. There are people who think the Directorate of Special Operations, DSO, or Scorpions as it is commonly known, is a panacea or zifozonke. Hence those concerns that were raised and identified by our people.
There are some members of the DSO who accessed classified information whilst they didn’t have clearance certificates or were not vetted. The notorious Hollywood style used when effecting arrests was questioned by our people. The head prosecutors were at the same time investigators. Hence they were compromising the separation of powers between the investigator and the prosecutor. Again, the illegal gathering of intelligence was one of the issues – if people would care to listen.
The notorious plea bargaining with drug lords, as was rightly said by the hon Minister, is one of the issues that was raised by people. All of this proves that the Scorpions were not a sacred cow. As I said, my colleagues will dwell on this one, so let me just leave it at that.
As the committee in this House, unfortunately, we didn’t win this one, but our fear is that you cannot have someone who becomes a player and referee at the same time. Hence, in our report we are saying that this must be followed up; it must come back to Parliament again and let’s look at this issue.
The directorate we are establishing will be headed by the deputy national commissioner. This will not be just another ordinary directorate. The head of this unit will be appointed by the Minister and the staff that are going to be appointed in this directorate will comprise people of the highest integrity. To make sure we don’t appoint unwanted elements in this directorate, those joining it will have to undergo a vetting or security clearance process. Members will remember that there are many officials working in the DSO who were arrested for corruption.
Hence it is also proposed that members of this directorate have to declare their financial interests, together with that of their family members who depend on them or stay in the same household. Those family members must be those who are dependent on them. To avoid having members in this directorate who serve as investigators and prosecutors at the same time, the Bill provides that the directorate can appoint legal officials who will ensure the multidisciplinary approach which other parties would like to portray as having been compromised.
I know opposition parties are gearing up for their election campaigns; hence it is so difficult for them to separate the facts from fairytales. We have been told many a time by opposition parties that the Scorpions are the best crime-fighting unit we have ever had in our country.
Let me give you a few statistics of the job that has been done by our police. What worries some of us is that some parties want to portray a picture of the SAPS as just a bunch of people who cannot think. They were ridiculed by some members of the opposition, but guess what? When they encounter any problem in their families, or by their family members, they rush to the same police to ask for help.
Let’s remove this myth that the only success story in crime combating can be attributed to the Scorpions. Yes, I am one of those persons who is not shy or ashamed to give credit where credit is due. I want to thank members of the DSO for doing such a good job in many of their cases, except for those mentioned earlier on.
If I wanted to be naughty, I could suggest that we adjourn the debate and ask for all the cases that are before court and those that are still being investigated by SAPS, versus those that are before the Scorpions. You will be shocked. Yes, let the opposition parties make politics, but they must not be economical with the truth. The conviction rate that comes through the police cannot be compared with anything.
To illustrate this point, I asked my colleague in the NA, Annelizé van Wyk, to assist with these statistics that were in her possession. For those in the opposition parties who care to know, we have organised crime units in the SAPS. In the past financial year, a total of 154 leaders of organised crime were identified and, of those, 131 were arrested. In this financial year, R49 million worth of assets were forfeited to the state through investigations by the SAPS.
Just to give a clear picture, let me give this House information on some of the seizures that were done by the SAPS. Vehicles worth R23 million were recovered; R8 million worth of stolen property was recovered; cigarettes to the value of R11 million and abalone worth almost R23 million were recovered by the SAPS.
Let’s now look at narcotics. Over 209 kg of narcotics were recovered by the SAPS. Over 5 100 kg of cocaine was recovered. Let’s go to dagga – 317 000 kg of dagga was recovered, not by the Scorpions, but by the SAPS. Let’s look at Ecstasy – 27 800 kg was recovered by SAPS. Let’s now go to Mandrax – 5 500 kg was recovered, not by the Scorpions, but by SAPS. Let’s go to Tik – 22 600 kg of Tik was recovered, not by the DSO, but by our SAPS. Now, let’s go to heroin – 365 kg of heroin was recovered.
Now, people should not say, simply because they are too lazy to access information and do not know about it, that our SAPS are not doing a good job. That is not true. I am left with five minutes so let me finish, Chairperson. Let me take the opportunity to thank all political parties for participating in this debate and the deliberations. To my colleagues I say well done. If I was to be asked to choose any members to serve on my committee, I wouldn’t look for any other persons except you. Well done, colleagues. To the department’s officials, we wouldn’t be where we are today if it wasn’t for your assistance. Thank you very much, and thank you for your kindness, Chairperson. [Time expired.]
Mr J W LE ROUX: Chairperson, hon members and hon Ministers, today will go down in history as the day the ANC killed the Scorpions. Today will be remembered as the day the ANC stopped the best crime-fighting unit in the country dead in its tracks. [Applause.]
Most of us in this Chamber know that the real reason for doing this is simply because the Scorpions made it very uncomfortable for some prominent ANC members. The decision to disband the Scorpions was taken at Polokwane and as far as the parliamentary process was concerned – and I differ with the Minister – the Bills were rushed through, and even today the three-day rule was waived. [Interjections.]
We all know that the ANC wanted the Scorpions under the control of the SA Police Service, SAPS, and no matter what the facts were, from the outset it was a done deal.
Judge Sisi Khampepe, in her report, identified problems within the DSO, but concluded that the DSO must remain with the National Prosecuting Authority, NPA. Willie Hofmeyr, one of the most respected crime fighters in the country, told Parliament that the way the DSO did their investigations, and other side issues that harmed their image, had been sorted out a long time ago.
Senior counsel advised Parliament that what the ANC was doing to the DSO was unconstitutional and would be challenged in the Constitutional Court. The Institute for Democracy in South Africa, Idasa, agreed that the Bills were unconstitutional. [Interjections.] Yes, it is the truth. The committee, however, accepted the opinion of the State Law Adviser. Only time will tell who was right. Yet, with the facts pointing in one direction, the ANC chooses to disband the DSO. The Scorpions fearlessly hunted down fraud syndicates, convicted money- launderers, confiscated millions of rands worth of drugs, jailed Schabir Shaik and Tony Yengeni, investigated Selebi, Agliotti and Zuma and exposed Travelgate and the arms deal. They have done all this and more, yet the only recognition given was for the unit to be swallowed up by the SAPS.
The people of South Africa, burdened with a crime wave second to none in the world, are the real losers in this tragic saga. But, Chair, the voters are well informed and will take revenge when they get to the polls next year. [Interjections.]
Many of the members sitting in the ANC benches today will lose their seats and they will regret … [Interjections.] They will regret this madness of today. Thank you. [Applause.]
Mr B J MKHALIPHI: Chairperson, here in front of us we have a concoction of two Bills that will ensure that the capacity-building for fighting crime will focus and enhance the integrated cluster approach so that loopholes, tactical or legal, are closed or eliminated. The Bills in front of us emphasise that interdepartmental collaboration should not boil down to collusion in the investigation and prosecution of accused persons. While the two Bills can easily be cross-referenced in several sections, it remains remarkable that the lines of investigation versus prosecution are clearly demarcated. There are also, in several sections of these Bills, clear lines of accountability, including checks and balances.
We will hear more and more stories of the so-called success of the Scorpions. But, what is remarkable is that we do not see any facts accompanying these claims. [Interjections.] There are no statistics to say how far the Scorpions have succeeded in fighting the kind of crime they were instituted for. [Interjections.]
The hon member just before me stated that they are uncomfortable about these Bills and, indeed, they should be. It would seem to us that the Scorpions, in their latter form, were giving themselves a mandate that is legally not there.
Can we just focus on some of the issues? It is a known fact that they involved themselves in the unauthorised surveillance of individuals on a large scale. [Interjections.] As if that were not enough, they nearly threw this country into turmoil that could have had implications on a continental scale, involving heads of state of other countries in wild claims that were not even proved.
We have here claims that the Scorpions were successful. If then you were not interested in the stability of this country …
The CHAIRPERSON OF THE NCOP: Order, order! Yes, hon Tau.
Mr R J TAU: No, no, it’s very important. Hon Chair, I want to know whether if it is parliamentary for a member to say, “Ag sies, man!” [Oh sis, man!] to a member whilst he is speaking.
The CHAIRPERSON OF THE NCOP: Who is that member? Who is that member?
Mr R J TAU: Hon Terblanche.
The CHAIRPERSON OF THE NCOP: Hon Terblanche, can you withdraw that, please?
Ms J F TERBLANCHE: Chairperson, I will withdraw if it is ruled that it is unparliamentary, but I don’t know that it is.
The CHAIRPERSON OF THE NCOP: It’s unparliamentary. That is why I am saying that you must withdraw it.
Ms J F TERBLANCHE: Where does it say that in the Rules, Chairperson? I have a list of Rules and I am not going to withdraw it, Chairperson.
The CHAIRPERSON OF THE NCOP: Please, don’t argue with the Chair.
Ms J F TERBLANCHE: I am not going to withdraw it, Chairperson. I’m not going to withdraw it because I don’t think it is unparliamentary.
The CHAIRPERSON OF THE NCOP: Then you get out of the House. Where is the Usher of the Black Rod? Get out of the House for the rest of the afternoon. Ms J F TERBLANCHE: If the public is misled, I have the right to comment on it.
The CHAIRPERSON OF THE NCOP: Go out of the House; I have ruled. Continue, hon member. [Interjections.]
Whereupon the member left the House.
Mr B J MKHALIPHI: Thank you very much, hon Chairperson. The so–called success of the Scorpions in doing their work, especially crime-fighting, is undocumented and unknown. It can only be ascertained by certain individuals.
We also looked into how they used their own funds in order to fight crime. The record, as stipulated by the Office of the Auditor-General, contains a litany of errors. For a directorate, at that level, not to be able to account for funds in excess of R1 million! The Office of the Auditor- General states that it’s only a preliminary figure of R1 million - on completion of that investigation that amount can be even higher.
The CHAIRPERSON OF THE NCOP: Hon Krumbock, can you be in order, please? Hon Windvoёl? Mr V V Z WINDVOËL: Chair, you have covered me in terms of Rule 33. I’m from Mpumalanga and I can tolerate the noise of mosquitoes, but when a member makes such a noise, you can’t hear another member. [Interjections.]
The CHAIRPERSON OF THE NCOP: Continue, hon member.
Mr B J MKHALIPHI: For an institution at that level not to be able to maintain records, basic records, in terms of the Public Finance Management Act, can we say that is success? For an institution at that level not to be able to maintain assets or leave registers, can we say there is capacity in that institution? Yet the hon member said he is uncomfortable about the demise of the so-called Scorpions.
I can give an account of many things in the litany of errors that were found with regard to the Scorpions. But then I will conclude by asking, after reading this report of the Auditor–General, how can any institution that does not succeed in maintaining basic records and in managing the basics of its office and members then succeed in fighting high-level crime? Will it succeed? Because at one stage it didn’t know how many members it had on its payroll. Yet a member is saying he is uncomfortable about this.
We table these Bills before this House for it to do the honourable thing and to pass them so that we can have a real, meaningful crime-fighting mechanism in the country. I thank you. [Applause.]
Mnu M A MZIZI: Sihlalo, noNgqongqoshe bobabili ngithi unwele olude. Uma ngiza lapha ngiye ngabuka, ngabuka ngathi ukubhala into oyaziyo ngeke kungehlule. Angimanga lapha ngoba ngizokwehlulela ukuthi Ofezela bebebahle kangakanani, amaphoyisa mabi kangakanani njalonjalo. Engikumele lapha kunye: Ukuthi ngizosekela uma ngabe Ofezela bebuyiselwa. [Uhleko.] Engikumela lapha ukuthi lo mthimba esikhuluma ngawo uma usungulwa ngangikhona. Mhla silusungula lolu phiko sasinaye uSekela Ngqongqoshe u-de Lange ngaze ngambuza mina ngathi kuye ngoba sinaso nje i-Special Branch kungani singaqeqeshi sona na?
Umhlonishwa u-de Lange wangiphendula ngokuthi: Cha! Waqhubeka wathi phela labo bangamasosha, futhi nje wonke lawo maphoyisa angamasosha kufuneka siwaguqule. Wathi bona bafuna ithimba elisha elizolwa nobugebengu obuhleliwe ngobunyoninco nangobuchwepheshe. Ngabe sengithi-ke mina, cha, kulungile asihambeni siyokwenza lokho. Sahamba-ke, sawela imifula siyokwenza lowo msebenzi, sabathola Ofezela.
Ofezela basebenze kahle iminyaka ize yaba mihlanu kungezwakali lutho. Kodwa kuthe lapho Ofezela sebentinyela ndawondawo wasuka umsindo. [Uhleko.] Wasuka umsindo kwaba wuthuli lwezichwe, asangabe sisazi ukuthi konakalephi. Kuthe kusuka lapho sezwa ukuthi umphathi wabo akasezwani noNgqongqoshe Wezobulungiswa Nokuthuthukiswa KoMthethosisekelo sekufuneka aphenywe izinqe- ke manje - hhayi bo!
Wenziwa lowo mbiko engingakaze ngiwubone kuze kube yinamhlanje. Yebo amaphoyisa wona kufanele aqeqeshwe kodwa futhi uma eseqeqeshiwe akusho phela ukuthi sekufuneka aqukule izimpahla zomsebenzi bese kuthiwa kuliwa nobugebengu. Ukuqeqeshwa kwamaphoyisa akufuneki futhi ukuthi kufane nomkhonto wegwala wona ophelela emlalazweni ololwa njalo kodwa kungabikho lutho olwenzekayo.
Ngakho-ke Sihlalo, iqembu leNkatha yeNkululeko lithi: Cha! Nakuba kungenzeka mhlawumbe ukuthi kukhona okuthile thina esingakwazi ngofezela ngoba nalowo mbiko wejaji uKhampepe ngawuthola ngoba sekuliwa kuthiwa awuze. Mina ngangikholwa ukuthi - ngoba ngangiseKomidini Lezobulungiswa ngaleso sikhathi – umbiko lo uzolethwa eKomidini Lezobulungiswa ukuze phela siwubuke futhi siwuhlaziye. Kodwa-ke umbiko lowo awukaze ufike. Ngisho noma ngabe kukhona abakwaziyo ozakwethu bakaKhongolose ngofezela nabo abakaze bakuphalaze nathi sikwazi.
Umsindo ususuka manje sekuvela konke lokhu nje ngoba sebeze bayotinyela ndawondawo. Manje-ke sekuthiwa, cha abahambe! Sekuthi abahambe! Ngiyazi ukuthi kwenziwa izigcawu zokulalelwa kwabantu kodwa-ke abantu bebedidekile bengazi ukuthi kukhulunywa ngabaphi bona ofezela noma ofezela laba abangabameli. Wawuzwa umuntu ethi akazi ukuthi Ofezela bamenzelani ngoba icala lakhe alikaze laphenywa.
INkatha yeNkululeko yeSizwe ithi: Cha! Ngeke impela Ngqongqoshe sikuveme lokhu ngoba naleli thimba olifaka manje - uma ngabe kungazange kulungiswe lapha kofezela - nalo lisazohamba ngaleyo ndlela. Kohamba, kuhambe kuthi uma sekufika kwindlelamnyama besekuthiwa: Cha.
Nabo laba enibafakayo bazotinyela omunye, asazi-ke ukuthi nizobabiza ngani- ke bona. Noma nizobabiza ngamabhubesi bazothi uma bebhodla konakale. Ngakho-ke ngokukhulu ukuzithoba lokhu iqembu leNkatha lithi: Cha! Ngeshwa ngeke sikwazi kulokhu ukukuxhasa Ngqongqoshe. Ngeke sivume ukuthi Ofezela bahambe beyoshona odongeni ngenxa yesizathu esingazange sisizwe. Akukaze kubikwe cala ngabo. Ngakho-ke uma umuntu engenacala bakithi kuye kuthiwe akalungise amaphutha akhe, akuvese nje kubhidlizwe umuzi wonke. Ngehlela ngezansi. [Ihlombe.] (Translation of isiZulu paragraphs follows.)
[Mr M A MZIZI: Chairperson and both Ministers, I greet you all. As I was coming here, I was just thinking and I realised that writing about what I know cannot be difficult. I do not stand here to judge how good the Scorpions were or how bad the police are, etc. I stand here for one thing only and that is this: I shall only give my support if the Scorpions are to be reinstated. [Laughter.] What I stand here for is to say that I was there when this unit that we are talking about was formed. When we formed it, the Deputy Minister, hon de Lange, was there with us and I even asked him if there was any reason we could not use the already existing Special Branch and retrain them.
The Deputy Minister, hon de Lange said: No! He elaborated and said those are not the police, but soldiers and he said, in fact, the whole police force consists of soldiers. He said they wanted a new unit that will fight organised crime tooth and nail using the latest technology. I said fine, let us go and do exactly that. We went all the way and crossed the rivers to do that job and the Scorpions were formed.
The Scorpions worked undisturbed for five years and there were no complaints about them. But when they started stinging sensitive spots, all hell broke loose. [Laughter.] There was a huge chaotic situation, and we did not know what had gone wrong. Thereafter we learnt that there was a breakdown in the relationship between the former boss of the Scorpions and the Minister for Justice and Constitutional Development and that he was to be named and shamed – whew!
The report was compiled and I have never laid eyes on it. However, we do agree that police officers should be trained, but also, in the same breath, that does not mean that after their training they should just seize items at workplaces in the name of fighting crime. The training of police officers should also not be the same thing as the sharpening of a coward’s spear, which ends up losing its sharpness on the whetstone because it is forever sharpened, but nothing happens thereafter.
Therefore Chairperson, the Inkatha Freedom Party says: No! It is possible that there are certain things that we do not know about the Scorpions, because I got the Khampepe report after a long, protracted fight for it to be made available. I believed that, because I was a member of the Justice committee at the time, the report would be brought to the Justice committee for consideration. But the report did not come. Even if there is something that our colleagues from the ANC knew about the Scorpions, they have never brought it to our attention.
And the whole noise started because the Scorpions have stung on a sensitive spot. And they are now being chased away. People are now saying: Let them go! I know very well that the public hearings were conducted, but the people were confused and did not know whether the hearings were about the very Scorpions we are talking about here or about Scorpion Legal Protection. People could be heard saying they did not know what the Scorpions have done for them, because their cases were never investigated.
The Inkatha Freedom Party says: No! Never, hon Minister, shall we allow this to happen, because even this unit that you are introducing now - and if the wrongs of the Scorpions had not been made right – will follow the same route. Things will go smoothly at first and when they get to the sensitive issues, they will easily get a “No!”
Even the new unit you are establishing is also going to sting someone and we do not know what you are going to call them. Maybe you will call them the Lions and when they start roaring, things will be difficult. And, with all due respect, the Inkatha Freedom Party says: No! Unfortunately Minister, we are not going to support you. We cannot allow the Scorpions to go down the drain for reasons we have yet to hear. Not even a single case against them has been reported. Therefore the logic is that if someone has never been found guilty of any wrongdoing, he is usually told to mend his ways and does not simply have his entire house destroyed for sins not known. I rest my case. [Applause.]]
Mr D A WORTH: Chairperson, Minister, hon members, the two Bills presented before this House today propose the disbanding of a unit, the Directorate of Special Operations, DSO, better known as the Scorpions, who represent world-class standards in institutional independence and operational efficiency. [Interjections.]
The intention is to replace this unit with a unit called the Directorate for Priority Crime Investigation, DPCI, that will be substantially exposed to direct executive control and located within an institutional department not known to be conducive to or appropriate for the kind of high-level, specialised and professional expertise that characterises the Scorpions’ investigations.
The effect of this legislation will be to deprive the National Prosecuting Authority, NPA, of its ability to investigate independently, without fear, favour or prejudice, allegations relating to organised crime and corruption, as it will henceforth be dependent on the SAPS for investigations essential to the prosecution process. In a nutshell, the Minister of Safety and Security and the ruling party will therefore have the final say as to who will or will not be investigated by the SAPS, upon whose investigation the NPA will be dependent for successful prosecutions.
This will, in effect, create the possibility that certain people will be placed above the law. The fact that the National Prosecuting Authority Amendment Bill accepts the retention of the investigating directorate within the NPA is implicit recognition that the proposed de-establishment of the Directorate of Special Operations, DSO, reflects a political rather than any rational, legal or operational imperative. [Interjections.]
The Khampepe Commission’s recommendations would substantially and adequately have addressed any legitimate concerns relating to the DSO - some minimal cosmetic surgery, not amputation or the removal of the heart and limbs, as is now proposed. The Khampepe Commission that investigated the DSO and its relationship with the SAPS and the Department of Justice recommended that the unit be retained.
The ANC, however, is still perpetuating the single police force argument, which was rejected by the Constitutional Court in the Potsana case. The so- called provincial hearings, where cadres and comrades were bussed in at a cost of some R2 million, were also a farce and a means of electioneering at the taxpayers’ expense. [Interjections.] Already some 60 members of the Scorpions, comprising advocates, forensic auditors and specialist investigators, have resigned.
Mr M A SULLIMAN: On a point of order: I would like to know if the hon member is prepared to take a question.
Mr D A WORTH: No.
An HON MEMBER: Jy’s ook maar ’n bietjie bang, jong. [You really are a bit scared, hey.]
Mr D A WORTH: Already some 60 members of the Scorpions, comprising advocates, forensic auditors …
Kgoshi M L MOKOENA: Chairperson, with respect, I think the hon member is misleading the House to the effect that he said that members of the public who attended the public hearings were bussed in. That is not true, because it was part of the public hearings. So he is deliberately misleading the House. I think he has to withdraw that. An HON MEMBER: It is unparliamentary.
The CHAIRPERSON OF THE NCOP: Well, let me check the Hansard. I am not too sure how I can rule on that one, because I cannot confirm the statement he has made. We will look at the Hansard before we make a ruling. [Interjections.]
Mr B J MKHALIPHI: On a point of order, Chairperson, is it in order for an ordinary member to defame a fellow member by insinuating something else about his surname? A member has called hon Sulliman a “silly man”. [Interjections.]
The CHAIRPERSON OF THE NCOP: Who said that? [Laughter.]
Mr B J MKHALIPHI: The hon Krumbock.
The CHAIRPERSON OF THE NCOP: Mr Krumbock, could you please withdraw that? Hon member, continue please.
Mr D A WORTH: Disbanding a successful unit and transferring its staff and assets to a dysfunctional or, at the very least, less successful and significantly different operating environment will be disastrous. Statistics and information presented shows that the DSO is the most effective crime-fighting unit in South Africa and its abolition will constitute a major setback in the struggle against organised crime and corruption. The DA, therefore, cannot possibly support these Bills. [Applause.]
Rre A L MOSEKI: Modulasetulo, Ditona, a re thuseng ntate Le Roux pele ka gore fa a ne a eme fa, o tlhagisitse sengwe se se leng mo moleng, se re santseng re tla go buisana ka sone mo nakong e e tlang. Kgang e, e ka ga kgololosego ya kamano le manno a mekgatlho. (Translation of Setswana paragraph follows.)
[Mr A L MOSEKI: Chairperson, Ministers, can we first try to help Mr Le Roux because when he was standing here, he presented something that is still in the pipeline; that which we still have to discuss next time. This issue concerns freedom of association and the seating of parties.]
Let’s tell him that the ANC has its own cadres who fully understand that seats in this Parliament do not belong to the cadres, but to the ANC. That must be clear in his mind.
Sabobedi ke gore ntate Worth o dira phoso ya go se batle go ithuta. Go botlhokwa mo tsamaisong e ya temokerasi gore re ithute, re tlhaloganye gore temokerasi e dira jang. (Translation of Setswana paragraph follows.)
[Secondly, Mr Worth is wrong by not being willing to learn. It is important, in the advancing of this democracy, that we learn and understand how it works.]
This government is the government of the people, by the people and for the people. This government has a responsibility to ensure that the public participate in the lawmaking of this country. Many of those people we are talking about are the poor communities in the rural areas. Therefore, this government has a responsibility to bring those people to the venue where public hearings will take place so that they can air their views. That must be clear to the hon member.
Today we are dealing with the Scorpions issue, the Directorate of Special Operations, DSO. Why did government establish this unit? A few years ago this government of the people, by the people and for the people identified crime in this country; not just ordinary crime, but organised crime which is not only committed by local criminal masters, but also by international criminal masters. The overall objective of establishing the Scorpions was to ensure the fight against criminals.
The question is: Have the Scorpions been able to deal with organised crime as expected? People say the Scorpions have succeeded. I was listening to the public addressing the committee. The public understands that the Scorpions’ objective was to fight organised crime like bank robberies, the cash-in-transit robbers, drug lords - those that bring drugs from abroad into South Africa and distribute them in the learning institutions of our country and other important institutions, etc. Have the Scorpions succeeded in dealing with these criminals?
HON MEMBERS: No!
Mr A L MOSEKI: The answer is what you are saying, hon members.
The people went on to mention, as an example of the fact that the Scorpions have not succeeded, people like Mark Thatcher, who is a crime master. He, together with others, came to South Africa, organised illegal activities to topple and destabilise other countries, and they got arrested. What did the Scorpions do? You know the answer. The Scorpions entered into a plea bargain agreement with these criminals and released them to go back and live comfortable lives.
People wonder why the Scorpions did that. They did that because they probably had a hidden political agenda, to destabilise this government and also the neighbouring countries. It was on this basis that we then said that this democracy cannot be taken for granted.
As the ANC we have a responsibility, as the public representatives, to correct things that go wrong. There is nothing wrong about what we are doing; we are just taking very responsible action to correct the wrongs that have been done. With those few words, we support the passing of this Bill. Thank you.
Mr W M DOUGLAS: Chairperson, hon Minister, let me first say that I am not speaking here against the Bill on the basis of me being a counter- revolutionary or not having fought for the freedom of my country. The HOUSE CHAIRPERSON (Mrs M N Oliphant): Order, hon members!
Mr W M DOUGLAS: I fought for my country as much as many of you did. Many of my people also suffered, but I stand against this Bill today on the basis of principle. I don’t believe that this Bill is in the best interests of South Africans.
As was stated in the Glenister High Court application, the issue of the future of the Scorpions is about crime and accountability. It is about crime in as much as it is about the rights of all South Africans to go about their lives in the secure knowledge that the law enforcement agencies will take reasonable measures to protect them from the scourge of crime. It is about accountability in as much as it has to do with the fiduciary obligation of the state to act in our best interests.
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Order! Hon members, there is only one presiding officer. Hon Sogoni, is there a point of order?
Mr E M SOGONI: Chairperson, will the member take a question based on the principle he is standing for?
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Hon member, will you take the question?
Mr W M DOUGLAS: Sure, I will take the question. Will it come off my time?
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Yes.
Mr W M DOUGLAS: No, I want to finish my speech. Thank you.
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Okay, the member won’t take the question. Please take your seat. Hon member, you may continue.
Mr W M DOUGLAS: The ACDP believes that government has breached this obligation by reversing its decision on the Khampepe Commission report to further the narrow interests of the ruling party. By doing so we believe that government has sacrificed the wellbeing of all South Africans on the altar of political expediency.
There are many constitutional aspects to this matter. The Constitution imposes specific obligations on the executive and Parliament when it comes to enacting legislation that deals with combating crime. These are higher- order obligations that may not apply when government enacts legislation dealing with other matters, emphasising that government is not at liberty to play fast and loose with the security of its citizens.
It was common cause amongst all the parties in the Glenister application, including the government, that the Scorpions have been extremely successful in the fight against crime. The government has admitted that the DSO has scored significant successes in investigating and securing convictions in organised crime, and accepts that the DSO has made a significant difference in the fight against organised and syndicated crime. We are mindful of the shortcomings of the Scorpions, but believe these shortcomings are comprehensively dealt with by the commission of inquiry.
We cannot afford to lose the expertise built up over the years at great cost to the taxpayer. The tabling of the amendment to the legislation is resulting in the destruction of a unit that is valuable. There can be no doubt that the unit is being decimated. They have been specifically trained to combat organised crime and we cannot afford to lose more highly skilled employees.
The ACDP has grave concerns that the principle of constant prosecutable oversight and investigations that is the cornerstone of the success of the Scorpions will be lost if they are incorporated into the SA Police Service. This was the very reason for the creation of the Scorpions and other units outside the SAPS, because there wasn’t enough capacity within the SAPS, such as the priority crimes unit, litigation units, asset forfeiture unit, etc.
I do wish to emphasise that we have a high regard for the SAPS, notwithstanding some of the problems they face in terms of capacity. Thank you. [Applause.]
Dr F J VAN HEERDEN: Mevrou die Voorsitter, die Direktoraat: Spesiale Operasies en die SAPD wysigingswetsontwerp het veral twee groot leemtes. Die eerste ernstige beswaar is dat die wysigingswetsontwerp die bepaling in artikel 179 van die Grondwet aan bande lê ingevolge waarvan die Direkteur van Openbare Vervolging se bevoegdheid om enige funksie te verrig om strafregtelike stappe in te stel gereguleer word.
Die wetsontwerp verplaas nou die ondersoekfunksie na die SAPD, wat onder die gesag van die Minister van Veiligheid en Sekuriteit staan, en die Minister is weer onder die gesag en die sweep van die ANC se Polokwane heilige koei. [Tussenwerpsels.]
Die afskaffing van die DSO is ’n ernstige terugwaartse stap in die stryd teen georganiseerde misdaad en korrupsie. Die DSO het ontwikkel in ’n gedugte eenheid wat hierdie klas misdrywe ondersoek het. Die afskaffing gaan ’n ernstige leemte laat en dit word gedoen bloot omdat die DSO sonder vrees, vooroordeel of begunstiging ondersoek ingestel het na, onder andere, senior politici, polisie-amptenare, LP’s en die sakemanne met wie hulle in ’n noue verbintenis was. (Translation of Afrikaans paragraphs follows.)
[Dr F J VAN HEERDEN: Madam Chair, the Directorate of Special Operations and the SAPS amending Bill have two major deficiencies in particular. The first serious objection is that the amending Bill restricts the provision in section 179 of the Constitution, whereby the power of the Director of Public Prosecutions to fulfil any task in instituting criminal charges, is regulated.
The Bill shifts the task of investigating to the SAPS, which falls under the authority of the Minister of Safety and Security, who in turn acts under the authority and the whip of the ANC’s holy cow in Polokwane. [Interjections.]
The abolition of the DSO is a serious step backwards in the fight against organised crime and corruption. The DSO evolved into a formidable unit which investigated these types of crimes. The abolition thereof will leave a serious vacuum, and this is done simply because the DSO investigated, amongst others, senior politicians, police officials, MPs and the businessmen who were in close alliances with them without fear, favour or prejudice.]
Madam Chair, there is a second major objection and that is that it is a sad day for South Africa’s reputation as cosignatory to several international agreements such as the UN Convention against Corruption, the UN Convention against Transnational Organised Crime and the AU Convention on Preventing and Combating Corruption. All these treaties enjoy international support and require specialised anticorruption units that must be absolutely independent.
We now no longer have that independence. This independence is now gone and South Africa’s credibility to stick to its treaty obligations, to keep independent units in place, and to combat corruption will now be history. But I can understand that; there is nothing wrong with the police, the police do good work, let’s grant them that and I accept that. But the DSO also did very, very good work.
You see, the problem was that the profile of the DSO was too high for the liking of certain people and they had the courage to investigate certain people and that the ANC didn’t like.
We are now in the process of approaching the election. There is also a case that apparently deals with the registration of Cope’s name. I think that the ANC must also change their name, from the African National Congress to the African National Cover-up, and that will more or less sum up the whole process! Thank you. [Laughter.] [Applause.]
Mr Z C NTULI: Hon Chairperson, hon Ministers, hon members of Parliament, comrades and friends …
… Sihlalo, ngifuna ukukhumbuza le Ndlu ngeminyaka yamaseventizi ukuthi kwakuneqembu laphaya elalingaphansi kwamaphoyisa okwakuthiwa yi-Special Branch. Ngizwile uMzizi elithinta ukuthi cha usenalo ibhabhalazi lalo. Ama- Special-Branch ayesatshwa ngoba ayesebenza ngabantu bezepolitiki. Ayebekwe nguhulumeni wangaleso sikhathi, wobandlululo, ukuthi asebenze ngomuntu ophikisana nohulumeni, ngakho-ke konke ayekwenza ayekwenziswa yipolitiki. Yingakho-ke nje uzwa abaningi behambisana nOfezela ngoba bakhumbula leya ndaba yama-SB. [Uhleko.]
Ama-SB lawa uma ngabe abanye benu bengawazi kahle, ayebulala. Hhayi indaba yokudlala uyabona nje uma kuthiwa wena usukhonjiwe ukuthi awuhambisani nohulumeni, ayevele afike ekhaya azokulanda, athi ayokuphenya. Ngemuva kwalokho kuthiwe uphume ngewindi.
Mhlawumbe uNgqongqoshe uzokhumbula ubaba uMdluli walaphaya eLamontville okwakuthiwa uMasobiwa uJoseph Mdluli. Amaphoyisa afika amthatha amusa laphaya ku-Fisher Street eThekwini ethi ayomphenya ngemva kwalokho bathi uzilengise etafuleni. Bathi uthathe intambo yesicathulo wazilengisa etafuleni waze washona. Kumanje lelo cala awukaze uzwe ukuthi lagcina kanjani, kuthiwa wazilengisa ngen tambo etafuleni. Umbuzo uthi-ke: Kanjani? [Ubuwelewele.]
Thina siwazi kahle ama-SB ngeminyaka yoseventi. Mina ngangifunda laphaya eVukuzakhe High School ngonyaka ka 1977 sithi sizosekela izingane zaseSoweto zesikole ngalokho okukade kwenzekile ngonyaka ka 1976. Ngangingukapteni webhola abafundi bacela ukuthi ngibahole, ngibize umhlangano ukuthi singawesekela kanjani umzabalazo waseSoweto.
Ngathi ngiphuma nje ngalelo langa kulowo mhlangano ama-SB ayehamba ngezimoto ezintathu eyisikhombisa kulezi zimoto afika ezofuna mina. Ngangiziqhamukela esikoleni, ngingumfana wesikole. Athi ngihlanganaphi nezingane zaseGoli. Kungashona ilanga uma ngichaza ngalaba bantu.
Okungimangazayo-ke ukuthi ngesikhathi sekungena uhulumeni omusha wonke lawa ma-SB esiwaziyo ukuthi ayesebenza kanjani aphenduka athola izikhundla zokuba ngokapteni kuhumeni waKwaZulu. Babephetha iziteshi zaKwaZulu zama- ZP, kwaba yibona omasiteshi. UMzizi ngiyabona ukuthi akakude kakhulu. [Uhleko.] Kuyamangaza-ke Ngqongqoshe ukuzwa amaqembu lawa aphikisayo ekhuluma kanje futhi niyakwazi nokuthi phela bona bangamaqembu, inhlangano nguANC, uKhongolose. Laba abanye amaqembu ngoba bayaqembuka bahlale beqembuka.[Uhleko.] Ngifuna ukuthi kucace kubaba uLe Roux ukuthi … (Translation of isiZulu paragraphs follows.)
[… Chairperson, I would like to remind this House that in the 1970s there was a unit in the then police service which was known as the Special Branch. I heard hon Mzizi referring to it and I realised that he still longs for it. The Special Branch unit was the most feared unit, because it only dealt with the political activists. It was put there by the apartheid government to deal with anyone who was opposing it, therefore, it was politically motivated. It is for this very reason that you hear most people here supporting the Scorpions, because they remind them of the SB unit. [Laughter.]
The SB unit – for those of you who do not know it very well - was a killing machine. Jokes aside, if you had been identified as being opposed to the erstwhile government, the unit would come and take you from your home, saying that they were going to interrogate you. After that there would be a report that you jumped out of the window.
Maybe the hon Minister will remember Mr Mdluli of Lamontville, his name was Masobiwa Joseph Mdluli. The police took him to Fisher Street, in Durban, on the pretext that they were going to interrogate him. And after that, they said he had hanged himself from the table. They said he used a shoelace to hang himself from the table until he died. Until today, we have never heard about the outcome of that case. They just alleged that he hanged himself from the table. The question therefore is: How? [Interjections.]
Some of us knew the SB unit very well in the 1970s. In 1977, I was a pupil and captain of the soccer team at Vukuzakhe High School, when I was requested by my fellow pupils to lead them in our support for the Soweto uprising. They asked me to call a meeting to find ways to pledge solidarity with the 1976 Soweto uprising.
After that meeting, on the same day, seven members of the SB unit came in three cars looking for me. I was just a schoolboy, coming from school. They asked me what business I had with the Soweto students. We can all sit here the whole day if I were to start talking about these people.
But what amazes me is that, when the new government came into being, all those well-known members of the SB unit received captaincy positions in the KwaZulu-Natal police. They all became station commissioners in the KwaZulu- Natal police, especially at those police stations which had previously been known to belong to the ZPs.
I realise that hon Mzizi is not that far off the point. [Laughter.] It is amazing, hon Minister, to hear the opposition parties talking like this and you also know that they are just parties, but the ANC is a movement, the Congress. These others are parties, because they always part ways and breakaway from other parties. [Laughter.] I want to make it clear to hon Le Roux that the …]
… ANC will continue having its conferences and it will take resolutions …
… ezizobuya zize lapha ePhalamende ukuthi zizohola lo hulumeni oholwa nguKhongolose. [… which will be brought to Parliament to guide this ANC- led government.] We are not going to shy away from that.
Ubaba lo uDarryl Worth uthi uma umuntu egula kufuneka umkhiphe leso simo. Hayi bekungasekho lapho ungasika khona umdlavuza lona ubusugcwele yonke indawo. Akukho lapho ubungathi ungakhipha khona bese kungumdlavuza ugcwele umzimba wonke. Okunye Ngqongqoshe engikwaziyo ukuthi into eyinkinga kakhulu kulaba abanye abaphikisayo ukuthi phela babewuhulumeni ngalesiya sikhathi esedlule, babeyingxenye kahulumeni.
Ngakho-ke laba bantu basenalelo bhabhalazi lokuthi Ofezela bebebanika ithuba lokuthi babaphindiselele ezitheni zabo. Banalelo bhabhalazi lokuthi sabathola abantu abazosiphindiselela kulaba bantu, yikho ubezwa bekhuluma kanjena baphethwe yileyo nto nje. Ubaba uvan Heerden ngiyabona ukuthi ushintsho lukude naye uma ekewezwa nje ukuthi kunoshintsho uvele abe nohlevane.
Uma ubukisisa ukusebenza kwama-SB nokusebenza kOfezela, uyakubona ukuthi kufana ncamashi. Uma ngabe ukhona umehluko mncane kabi ngoba bonke babesebenza ngokuthi balwe nomuntu okuthiwa uvukela umbuso. Nabo-ke laba uma uthola Ofezela amacala ebebewajaha yilawa abonakalayo ukuthi awezombangazwe.
Asikakazi namanje ukuthi kungani uPhillip Powell we-IFP owatholakala nezikhali KwaZulu kwathiwa akayofunda phesheya. Asikaze sizwe namanje ukuthi zenza njani lezo zikhali. Yinto efanayo lena noAgliotti ukuthi ungathatha isigelekeqe sezidakamizwa uthi uma nje kubanjwe usopolotiki uzomnikeza inkululeko. Kusobala abantu ngempela abalwa nabo osopolotiki.
Kwaphuma umbiko kwiKhomishana Yamaqiniso Nokubuyisana, i-TRC, ukuthi laba bantu abangachazanga kwi-TRC kuyofanele kulandelwe amacala abo. Awukaze uzwe ukuthi Ofezela bafikaphi nawo, into nje abayaziyo ukujaha osopolotiki.
Uma ngingase ngibuze nje ukuthi ngabe kuwubugebengu obuhleliwe yini ukuthi umuntu wathola isephulelo ethenga imoto na? Ngabe ubugebengu obuhleliwe lobo? Ngabe kuwubugebengu obuhleliwe yini uma ngabe usibanibani kusolakala ukuthi wayefuna ukugwazela usibanibani? Ngabe ubugebengu obuhleliwe lobo? Kusho ukuthi umuntu lapha bekufanele ashushiswe ngezindlela zonke.
Uma ngingase ngibuze nje ukuthi ingakanani imali esichithiwe ngOfezela belokhu bezama ukuthi kushushiswe uMongameli we-ANC. Kodwa akukho muntu okhuluma ngalezo zigidi lapha. Kwakhona nje ukuthi ngabe bazotholani ngalokhu kulandela lo sopolotiki nathi asazi. Sekungaze kuchithwe izimali eziningi kangaka ngoba nje befuna ukulandela lo sopolotiki?
Hhayi Ngqongqoshe kulo mbutho esiwakhayo lona okuthiwa yi-Directorate of Priority Crime Investigation, i-DPCI, lapho khona sizobe sishaya lokhu okuthiwa yi “Operation washa tsotsi”. Laphaya zizohlehla izigebengu, zizohlehla ngoba kukhona abaseshi abazobe beqeqeshiwe ngokuba ngabashushisi kodwa bazobe besebenza umsebenzi wabaseshi. Hhayi lokhu kuhlanganisa umsebenzi, inxovanxovane. Bazobe belaphaya nolwazi kodwa besebenza njengamaphoyisa bebika futhi emaphoyiseni.
Sihlalo ngoba ngiyabona lapha ngithi-ke abantu basho bathi kuzoba nokuthula, nokukhululeka kanye nokuthokomala kuleli lizwe lethu. Basho njalo abantu eKliptown ngoJune 1955. Ngiyabonga Sihlalo. (Translation of isiZulu paragraphs follows.)
[Hon Darryl Worth says that if someone is sick, you must put them out of their misery. Well, there was nowhere to dissect, because the cancer had spread to the whole body. The whole body was infected with cancer; there was no piece of flesh which was not infected. Another thing that we are facing here, hon Minister, is that some of the members of the opposition were formerly of the erstwhile government, whilst others formed part of that government.
Therefore, these very people were pleased to know that the Scorpions were avenging them against their enemies. They are convinced that in the Scorpions they had found people who would avenge them against these people, that is why you hear them talk like this. Well, I can see that change is a distant goal to the hon van Heerden. When he realises that there is talk about change, he just becomes outraged.
If you look closely at how the SB unit operated and how the Scorpions operate, you will realise that they operate exactly the same way. If ever there is a difference, it must be a slight one, because these forces dealt with anyone who was suspected of rising up against the state. Therefore, with the Scorpions too, if you look at the cases which they are pursuing, you will find that they are political.
We do not know, even today, what happened to the IFP’s Phillip Powell who was found with an arms cache in KwaZulu-Natal and was later asked to go and study overseas. We haven’t heard, even now, of what had happened to those weapons. And it is exactly the same with Agliotti, a drug lord who, should he give evidence against a certain politician, will be set free. It is clear that the Scorpions are only happy when chasing after politicians.
There was a report from the Truth and Reconciliation Commission, the TRC, which stated that the cases of all those who did not appear before it would be followed up. But we have never heard how far the Scorpions are with those cases; the only thing they are obsessed with is chasing after the politicians.
If I may ask, is getting a discount when buying a car organised crime? Is that organised crime? Is it organised crime if so and so is suspected of having wanted to bribe so and so? Is that organised crime? It’s very clear here that someone had and has to be prosecuted at all costs. If I may ask you. How much has been spent by the Scorpions in their quest to prosecute the ANC President? And yet there is no one who is talking about those millions here. And sadly we do not know how they are aiming to benefit by chasing after this politician. How do they dare waste so much money just because they want to nail this politician?
Well, hon Minister, the new organisation which we are establishing, known as the Directorate of Priority Crime Investigation, the DPCI, will deal with criminals seriously and we will be using Operation Washa Tsotsi. And definitely the criminals will retreat, because there will be crime investigators who would have undergone training as prosecutors, yet work as investigators. And the time for the mixing of tasks, this mix-up, is no more. These investigators will be there with their expertise, but they will be operating as police and they will be accountable to the police.
Chairperson, I can now understand what the people said. I therefore say that the people said that there shall be peace, freedom and comfort in our country. The people said so in Kliptown in June 1955. Thank you, Chairperson.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Hon Minister of Safety and Security, hon members, it’s good to be back home. I could talk about things such as “cherry-picking”; I could talk about deficits in the methods and methodology of the Scorpions; I could talk about weaknesses; and I could talk about tensions.
I have already spoken at length about the genesis of the Scorpions, the Directorate of Special Operations, in the NA. I have spoken about the problematic relationship between the Scorpions and the SAPS. I have spoken about the rationale for the amendment to the legislation. I think we are not here today to say who is right and who is wrong.
I think the DSO has had its strengths; it has had capable investigators and continues to have capable investigators. It had committed prosecutors – yes, some of them were indulging in questionable activities and there were deficits and problems - but I think we must recognise the value of their contribution to the eradication of crime, organised crime in particular, and to the eradication of corruption.
My colleague and I are not here to celebrate the demise of the Scorpions, as somebody has suggested. We are here to ask how, in the context of the problematic relationship that existed in the past, we can collectively address it in such a way that we seriously ensure that we continue with our commitment to the eradication of corruption and organised crime.
Some things must be cleared up from the beginning. The suggestion, for example, that if it’s a political decision it’s unconstitutional, is totally without foundation. In fact, the day before the matter was debated in the NA, the Chief Justice of the Constitutional Court said the following, and I quote him verbatim:
In my view, there is nothing wrong, in our multiparty democracy, with Cabinet seeking to give effect to the policy of the ruling party
And you could put in brackets “Polokwane”, if you wish.
Quite clearly, in so doing, Cabinet must observe its constitutional obligations and may not breach the Constitution. The question that we have to ask, in a very mature and dignified way, is: In doing what we are doing, in amending the legislation, are we achieving two things? The first one is to ensure that we sustain, maintain and retain the ability on a multidisciplinary basis of that organised unit to fight organised crime. That’s the question we have to ask, whether they are allocated within the DSO or anywhere else.
The second question is – and it’s an important question – whether indeed, as we pass this law, the provisions of this law are consistent with the Constitution. I would like to argue, with respect, that indeed we can answer both questions, quite unequivocally, in the affirmative.
What is it that we are trying to create? I’m trying to speak so that we can understand there is some rationality in terms of what we are trying to achieve. We are trying to organise a dedicated unit, the Directorate of Priority Crime Investigation, DPCI, as my colleague has called it, to ensure that we deal with organised crime on a multidisciplinary basis, mindful of the fact that you need a troika - prosecution assistance, investigation and crime intelligence. Those three elements will in fact reside in that particular unit. It is not something new.
If you take the commercial unit within the SAPS, currently and in the past, we have had more than 80 dedicated prosecutors who assisted the SAPS to ensure that we dealt with commercial crime. The results are very similar to those achieved by the DSO; they are in the vicinity of 90%. Investigations conducted by the SAPS yielded the same results, assisted by prosecutors from the NPA. I think one must understand the context. Indeed, we have committed ourselves to ensuring that we have a multidisciplinary approach.
What we have to be mindful of – and it’s been raised by more than one member of the opposition – is that people are leaving. Just this morning, colleagues, I spoke to the Acting National Director of Public Prosecutions, and I speak to you now with his permission. He says that since the last time that we had spoken – and I was appointed as Minister about seven weeks ago – up to now, not a single investigator has approached him to say they wished to resign from the DSO. [Applause.] Those are the realities.
Willie Hofmeyr, whom we spoke about, has indicated that the preliminary indications are that approximately 80% of these investigators are going to move over to this dedicated unit. Now why is there this myth, this fabrication, that people are going to leave and that we are going to be deprived of the capacity and the ability of people who have the experience? We certainly must do and we should do whatever is necessary to ensure that we retain their skills.
At the heart of a successful transition lie two things. The first one is the assurance that we can give to the investigators that they are most welcome in the SAPS and, secondly, to continue with the fight against corruption and crime. To that end my colleague, the Minister of Safety and Security, and I will work extremely hard to create a climate that is conducive to this.
We have gone out of our way and we really want to thank the chairperson of the select committee, as well as the chairpersons of the portfolio committees in the NA for ensuring that they pay meticulous attention to the labour relations aspects. Nobody, no investigator, is going to be forced to go to the SAPS. If he or she feels that they want to remain with the NPA that is a choice that they could exercise. Indeed, if they did not wish to stay there, they have the entire Public Service where they could be deployed.
These choices are available. It is not about severance; it is not about removing the skills and capacity, but it’s about ensuring that the choices that we make are not choices that we would impose on individual investigators who are located within the NPA.
The National Director of Public Prosecutions would tell you that I personally, on more than one occasion, invited him to make submissions to us, my colleague and myself, in terms of the shape and the model of the mechanism that would deal with this transition; they are grateful for it. We do so because we believe that there is no tension – and there should be no tension – between the Department of Justice and the NPA. We do so because we are sensitive to their concerns, and we certainly would want to promote them to carry out the task as prosecutors without fear, favour or prejudice. That has been our position and it will continue to be our position.
You cannot quote and speak about international treaties and covenants suggesting, in a very subtle way, that what we are seeking to do is to promote corruption rather than eradicate it. That is extremely irresponsible. That has no moral basis, no legal basis and no rational basis.
What we should be doing is to say, we recognise that we are at a time where elections are imminent, and political parties will want to score points. Glenister tried to vote with the Constitutional Court, but he failed. I’ve just quoted for you from the Chief Justice. The very next day he came to the High Court in Cape Town, again on the basis that what we are doing is unconstitutional, and he failed again. We say that those who wish to approach the courts and challenge and test the legislation are at liberty to do so. But we are quite satisfied that in what we are doing we’ve ensured that those proposed provisions are indeed consistent with the law.
I am aware of the fact that amendments have been brought by this House and certainly the NA would want to look at them. Let me conclude by saying that this would not have been possible without your contribution. I feel more confident and more assured because your committee has sat jointly with the NA, Safety and Security and the Portfolio Committee on Justice and Constitutional Development for more than a 192 hours. You visited all the provinces. You have listened attentively to the voice of the poor, the rich and those who have an interest. You were open-minded about it. The product we have here is not the product that was introduced in Parliament. It’s a product that has been changed, that has been shaped and informed by what you listened to, what you applied your mind to, and what you feel is in the best interests of our country.
Central to our task as Members of Parliament – and we, too, as the executive, are Members of Parliament - is a commitment that we ensure that we promote the administration of justice and that we eradicate corruption in whatever form. I would want to give the assurance that for us this unit here has to do its task, and if there is corruption at the highest or lowest levels, it must deal with it. Organised crime spreads its tentacles all over, and we should not regard this unit, a priority unit for priority crimes, as a unit at the helm of or at the mercy of politicians or simply a unit that is going to be used by politicians. I think that would be extremely wrong and irresponsible. We must begin to understand that we, as a democracy, have respect for the rule of law. The impartiality of the prosecutors must be recognised, must be promoted and must be protected. The independence of the judiciary must indeed be recognised. As a democracy we have done extremely well. We can take pride in the fact that when people have difficulties, when they wish to challenge the law, they can go to court. They use that as a forum for the courts are the final arbiters of disputes. You have Presidents going to court; you have political parties going to court and everybody recognises and respects the rule of law.
That says a lot about our democracy and we must recognise that we are less than 15 years old as a democracy. We can take pride in the fact that, as citizens in this wonderful democracy of ours, we have shown maturity to be able to indulge in robust debate – yes, rigorous debate – but, at the same time, respecting the rule of law. That would be my responsibility as Minister for Justice and Constitutional Development; that would be the responsibility of my colleague as Minister of Safety and Security.
Let me conclude by saying that when I was in the NA I said very clearly that already the Minister of Safety and Security and I are sitting and looking at the mechanism. We’ve already conceptualised it. We are, indeed, waiting for the NPA; they are communicating with us informally, but we are waiting for a formal submission so that we can provide for this mechanism, get certainty and do an assessment. Then we can actually do an audit in terms of the skills that we have to make sure that, in anticipation of the fact that you are going to support this legislation, immediately after the law is passed we do not have to wait for another six months for this important DPCI to do its work. It will be a matter of saying everything is ready and they can integrate easily and serve the interests of justice by ensuring that they eradicate corruption in our midst.
That is the assurance that I give to you. That will be confirmed by the NPA. Let me assure you that, indeed, there is no tension. What I think this would do is to deal with the problem that has haunted this relationship – the relationship between the SAPS and the DSO. It does not help to say that this one is better than the other. We should combine the skills and the strengths to ensure that we are able to best serve the interests of our country.
So thank you very much for your efforts. May I also conclude by thanking Mr Johan de Lange, Mr Deon Rudman and Mr Jacobs and his team from Safety and Security for their extremely dedicated commitment to the portfolio and select committees. As the Chairperson has correctly indicated, this would not have been possible without their constant presence, advice and guidance. Thank you very much for your kind support. [Applause.]
Debate concluded.
National Prosecuting Authority Amendment Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
South African Police Service Amendment Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
CONSTITUTION FIFTEENTH AMENDMENT BILL
(Debate)
CONSTITUTION FOURTEENTH AMENDMENT BILL
GENERAL LAWS (LOSS OF MEMBERSHIP OF NATIONAL ASSEMBLY, PROVINCIAL
LEGISLATURE OR MUNICIPAL COUNCIL) AMENDMENT BILL
(Consideration of Bills and of Reports thereon)
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Hon members, before the Deputy Minister starts addressing us, I just want to appeal to the hon members to switch off their cellphones, because I think some members have put their phones on silent mode, and they just keep on going in and out to answer them.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, hon members, ladies and gentlemen, good afternoon. This has been a very noisy Chamber this afternoon, so I am going to bring some quiet and sanity to the debate!
In his dissertation, The mandate of political representatives with special reference to floor-crossing: a legal historical study, Mr L K Joubert opens his discussion of floor-crossing with a quotation of the following remark made by Winston Churchill:
Some men change their party for the sake of their principles; others their principles for the sake of their party.
I think that this remark is a tremendously apposite one for the debate around floor-crossing.
Floor-crossing, of course, is not a new concept in South Africa; some make as if it was only thought of yesterday, but if you go and look at the political, legal and constitutional history of this country you will find that the issue of floor-crossing has always been part of our legal system. Even when we were drafting the Constitution it was very much one of the issues that came up for discussion at all times. But it was as recently as 2002 and 2003 that Parliament, for well-known reasons which I won’t state here, passed the so-called floor-crossing legislation.
The common objective of that legislation was, firstly, to enable a member of the NA, a provincial legislature or municipal council to become a member of another political party, whilst retaining membership of the assembly, of that provincial legislature or that council; and, secondly, to enable an existing political party to merge with another political party; or to subdivide into more than one political party; or to subdivide one subdivision to merge with another political party.
Apart from the political terrain which necessitated floor-crossing having changed, a general resistance against floor-crossing has also developed among political parties. Furthermore, floor-crossing has not only been strongly criticised in the media, but also by the public in general. I am convinced that members of the council or of the public who are present here in today’s debate are acquainted with the main points of criticism against floor-crossing and therefore I am not going to go into any details thereof.
Government has noted this resistance and criticism and realised that they needed a reason to abolish floor-crossing. This has led to the introduction to Parliament of the Constitution Fourteenth Amendment Bill of 2008, the Constitution Fifteenth Amendment Bill of 2008 and the General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill of 2008.
The main objects of the three Bills are to abolish floor-crossing and to provide for related matters. The three Bills must, therefore, be read in conjunction with one another; and I imagine that is also why we are having one debate.
The effect of abolishing floor-crossing would mean that we revert to the position prior to 2002 when floor-crossing was formally introduced in our law. In other words, we go back to the position that there is no floor- crossing at any level of government.
The Constitution Fourteenth Amendment Bill, by repealing Schedule 6A of the Constitution, abolishes floor-crossing in the NA and provincial legislatures. It also effects consequential amendments to certain sections of the Constitution. Although not related to floor-crossing, it further amends Part B of Schedule 3 of the Constitution in order to further regulate the determination of political party participation in provincial delegations to the NCOP.
The Constitution Fifteenth Amendment Bill, by repealing Schedule 6B of the Constitution, abolishes floor-crossing in municipal councils. It also effects consequential amendments to certain sections of the Constitution and provides for the filling of vacancies in a municipal council.
The General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill effects amendments that are mainly of a consequential nature and emanate from the provisions of the Constitution Fourteenth Amendment and Constitution Fifteenth Amendment Bill as well as several other pieces of legislation.
Those Acts include the Public Funding of Represented Political Parties Act of 1997, the Determination of Delegates (National Council of Provinces) Act of 1998 and the Electoral Act of 1998, as well as the Local Government: Municipal Structures Act of 1998. It further effects amendments to the Public Funding of Represented Political Parties Act of 1997 by making it clear that all political parties are accountable to the Independent Electoral Commission in respect of the monies allocated to them from the Represented Political Parties’ Fund and to empower the electoral commission to appoint an auditor under certain circumstances, for example, to audit the books and records of account kept by a political party. Chairperson, once the three Bills have been passed by Parliament - and this is the last stretch in the NCOP - and implemented it would mean that a member of the NA, a provincial legislature or a municipal council will no longer be able to become a member of another political party whilst retaining membership of either the Assembly, legislature or council, and an existing political party will no longer be able to merge with another political party; or to subdivide into more than one political party; or subdivide and one subdivision to merge with another, whilst allowing the member of the Assembly, legislature or council affected by such changes to retain the membership either of the Assembly, legislature or that council.
The next window period for floor-crossing, if it is not abolished at a local government level, commences on 1 September 2009, and therefore it is essential that we pass this Bill before then and hopefully when we have done so now, it will be finished. So we would have made it in good time to avoid the floor-crossing of September 2009. I imagine the DA, in particular, and other parties are extremely happy, because that means they will at least keep their members now. [Interjections.]
Mr M A MZIZI: We are all going to be happy!
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: We will all be happy? I would like to thank Kgoshi Mokoena, the Chairperson of the Select Committee on Security and Constitutional Affairs, and the members of that committee for the time and effort that they have put into finalising the Bills before the Council today. I know that the members of the select committee, despite their very busy schedules, had to make time to visit their respective provinces to brief their provincial legislatures on the provisions of these pieces of legislation and to confer negotiating and voting mandates on their delegations to the Council. The abolition of floor- crossing also requires amendments to be effected to regulations that have been made under the Public Funding of Represented Political Parties Act of 1997.
I would like to thank the members of the ad hoc joint committee, consisting of members of the portfolio and the select committee, for the prompt manner in which they have dealt with and approved the required amended regulations.
Lastly, I would like to mention that the Portfolio Committee on Justice, in its report on the General Laws Amendment Bill in the NA in August, recommended that my department should conduct a review of the system of repayment of unspent balances of monies to the electoral commission with a view to submitting amending legislation, as necessary, to Parliament at the earliest opportunity, and I undertake that we will do so in due course.
It is therefore a pleasure for me to rise on behalf of the ANC, on this occasion, to give unrestricted and unconditional support to the passing of this Bill. May I also just say that when the debate took place around this same Bill in the NA, I made it very clear that the issue of floor-crossing is not something to gloat or fight about.
I think there was a time in our history when there was a need to introduce floor-crossing. It was necessary to break certain political logjams that existed at the time, as was raised particularly by the DA at the time. What it helped us do was to at least loosen up those logjams and to stabilise the political environment.
That experiment now is over and, in a way, I am personally very glad that it is over and I know my party is also glad, because, unfortunately, the one thing this did prove to us is that our political system is not mature enough to be able to deal with this kind of issue.
There can be no doubt that the sight, particularly at the local government level, of people swopping parties merely for the sake of positions and their own self-interest was an unedifying one. I think all the parties were involved in this. I do not think any of us can point fingers and in a way we should be glad that we have tried the experiment.
It was necessary at the time, but it is over now, so let us try and deal with it and rid our politics of this unedifying sight. Things are tough enough already for politicians in the way that we relate to people and our society. We do not need this kind of unedifying process where politics is merely used in the self-interest of individuals, because that is what floor- crossing allowed.
In so far as it helped us to achieve certain things, it was good, and in so far as it is now something of the past, I hope that all parties will support the demise of this experiment that was necessary at the time. Thank you very much. [Applause.]
Kgoshi M L MOKOENA: Modulasetulo, ke leboga nako ye ke e filwego gore ke dire ditshwayotshwayo ka Molaokakanywa wo o lego pele ga rena. Gabotsebotse ke e meraro, go no bea phaa.
Go bose go ba le Tona ya go tseba ditaba, ka gore dilo tšeo go bego go nyakega gore ke di hlaloše gore batho ba di kwešiše, ba di sware, ba be ba di anye, o šetše a di hlalošitše, mohlomphegi Motlatša Tona.
A ke mo leboge ka gore ka mehla ge a etla ka mo Ntlong ye ya rena ya go tsebalega, ya batho ba bohlale, batho ba go tšea gabotse, o re fa ditaba gabotse gore ba bangwe ba rena re be re palelwe ke go bolela. Fela a ke dumele gore o re lemošitše gore re se ke ra fošana ka mae a go bola ka gore re be re leka gore re aga selo, bjale se a re tlaba. Nka no re di loma le barafi.
A ke efoge, ke se ke ka rerela bao ba šetšego ba sokologile, ka ge a šetše a boletše gore lebaka la gore re phumole selo se ke eng. Re tla gopola gore ba bangwe ba rena re tšere karolo ge re bopa molao wo re bolelago ka ona lehono, ka gore bao bego ba o nyaka gabotsebotse e be e le mokgatlo wa kgale, e lego Democratic Party ka nako ela. Fela rena ba mokgatlo o mogolo wa go tšea gabotse, wa bohlale, ra re molao wo ga wa loka ka gore ge re ka o dumela, o tla tloga o fetša temokrasi mo nageng ya borena, ba se re kwešiše. Bjale lehono di a ba loma; ga ba sa o nyaka. Bjale rena re re, re le boditše ra re selo se ga se a loka, le se ke la se dumela. Bjale mošate ba re kwele, di ba lomile, ba boile go rena ba re selo se ga se phumulweng.
Ke rata go bea taba ye ke re, go nale diphetho tšeo re di tšerego kua khonferenseng ya Polokwane. Se sengwe sa tšona ke sona sa gore molao wo wa go dumela gore batho ba ngwege, ga re sa o nyaka, re o phumule. Efela, Mokgatlo wa Kganetšo ga ba bolele ka ona, gore sephetho se ke se re se tšerego kua khonferenseng ya rena ya mokgatlo wa go tšea gabotse. Go nyakega gore le tšona le di tsopole tša gore kua khonferenseng ya Polokwane e be e se tša bobe, re be re lokiša.
Gona bjale le a bobola.
Le tsebe gore ge molao wo o eba gona, ke rena bao re bego re holega ka bontši. Ge go etla nako ela re rego ke “window period”, ke gore nako ya go ngwega, mekgatlo e mentši e be tsenelwa ke meetse ka dintlong ka ge ba be ba tseba gore ba a nwelela. Batho ba a ngwega, ba tšwa go bona ba ngwegela go rena le go mekgatlo ye mengwe. Bjale lehono ka gore selo se se ba lomile, rena re a dumela ka gore rena ga re na megabaru le go ba majelathoko, re a bona gore ka gore re nyaka gore temokrasi mo nageng ya rena e gole, e kokotlele, e be selo seo re ka ikgantšhago ka sona, re re selo “se se nkganago se nthola morwalo”, a se sepele.
Ka gona re tla re mekgatlo kamoka kua komiting yeo re lego go yona, ba ile ba dumela gore ba a bona gore molao wo ka nnete ga o nyakege, ga o sepele. Ka gona re re se se nkganago ga se sepele.
A ke fetše ka gore … [TŠhwahlelo.] (Translation of Sepedi paragraphs follows.)
[Kgoshi M L MOKOENA: Chairperson, I am grateful for the time allocated to me to comment on this Bill. To be more accurate, there are three Bills.
It is a pleasure to have a Minister who is well informed, because he had already expatiated on the issues that I had wanted to explain so that people can grasp them, hon Deputy Minister.
I must thank him because every time he comes to this august House, he covers everything and leaves some of us speechless. I also acknowledge that he indicated that we should not fight amongst ourselves. We were trying to work together, but it fired right back at us.
Let me avoid preaching to be converted. We should remember that some of us were present when amendments to legislation were made to fit in the aspect of crossing the floor, an issue that we are deliberating on today. The people who actually wanted it back then are the members of the Democractic Party. Our strong organisation did not approve of it since it would have put an end to democracy in our country. Now it is firing back at them and they want to have it abolished.
Let me put it this way: There are resolutions that were taken at the Polokwane Conference, one of them being that this floor crossing is unacceptable, and that it must be abolished. Members of the opposition party are quiet about it – they are not coming out with it – that this is a resolution taken at our conference. It is necessary that you mention that we were not only trying to abolish floor-crossing at the conference, but there were amendments that were made too. At this moment all you are doing is moan.
You need to know that if floor-crossing is still in existence, we would be the ones mostly benefiting from it. During the window period most organisations were concerned because they were standing on shaky ground. Their members were crossing the floor to other organisations. Now they have experienced what it is like to lose their members. We are not against them, we are not being selfish about it and we do not pull aside. We want our democracy to grow and strenghten so that we can take pride in it.
We therefore say that all the organisations in our committee agree that crossing the floor is not a necessity. Let it be abolished. If it doesn’t go down well, then let it be abolished.
In conclusion I would like to say … [Interjections.]]
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Order! Hon member, is it a point of order?
Mr A WATSON: Chairperson, will the member take a question?
Kgoshi M L MOKOENA: E re ke fetše pele, Mong’aka Watson, ke tla go botša. A ke fetše pele.
A ke dumele gore seo e lego dipshešamare ka molao wo ke gore, ge re ka lebelela Palamenteng gona bjale, go nale batho bao e lego gore ke moetapele wa lekoko yena ka noši. Ge re nale kopano a re o ile go boledišana le lekoko la gagwe, o ra ge a era yena a nnoši kua Ofising ya gagwe le mongwaledi wa gagwe. Ka gona o humana e le gore, lena mekgahlo e mengwe le a lwa, le a khampeina, le nyaka gore batho ba le boutele. Fela ge motho wo a ka khampeina a se ka ja selo, ge go etla go lefeleng, ka gore ke moetapele wa lekoko, le yena go nyakega gore a humane mašeleng a gore a thekge mokgatlo wa gagwe o lego nnoši. Ka gona re re ke dipšhešamare, molao wo ga o sepele, ga re o nyake.
Le mphile sebaka, ke a le leboga. Ka gona kere, re dumela gore selo se se šomile ka nako ya sona. Ga bjale se feletšwe ke nako, a se ye. Bao e lego gore ba ithekgile ka wona gore batlo holega ka molao wo, re re “mene, mene tekel upharsin.” (Translation of Sepedi paragraphs follows.)
[Kgoshi M L MOKOENA: Let me first conclude, hon Watson. I will tell you. Let me first conclude.
Something which is not pleasing about this law is that if we look at Parliament at the moment, there are people who are party leaders to themselves. During meetings they allege that they are going to consult their parties when, in fact, they are referring to themselves and the secretaries in their offices. As a result, other parties fight; they go out to campaign, convincing people to vote for them. If those people go on a campaign and get nothing, when funds are allocated, they expect to get some funds for their one-man party too, because they are party leaders. We therefore say, this is a shame, this law must be abolished, and we do not need it.
You gave me an opportunity to address you, I thank you. I therefore say that we agree that this thing was relevant during a certain period. But now its time has expired; let it go. To those who thought that they would benefit from this law, we say: “Mene, Mene, Tekel, Upharsin. [The writing is on the wall.]
Mr D A WORTH: Chairperson, Deputy Minister, hon members, the Department of Justice and Constitutional Development has tabled three Bills in Parliament, at times known as the “crosstitute” Bills, namely the Constitution Fourteenth Amendment Bill, the Constitution Fifteenth Amendment Bill and the General Laws(Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill. The general premise of the proposed laws ought to abolish floor-crossing at every level of government and to revert to the position that existed prior to 2002-03 when floor-crossing was prohibited.
Our Deputy Minister has virtually summed up the whole lot, but if I repeat a few things, please forgive me. The Constitution Fourteenth Amendment Bill seeks to abolish floor-crossing in the NA and provincial legislatures, whilst the Constitution Fifteenth Amendment Bill seeks to do the same in municipal councils.
The General Laws Amendment Bill seeks to effect consequential amendments to other legislation affected by the proposed abolition of floor-crossing. The legislation must be passed and implemented before 1 September 2009.
On a lighter note, I must say, maybe the timing of this Bill was a bit wrong; it should have been left open for a little bit longer and we might have seen a different story. This is before the next floor-crossing window at local government level opens.
Both the Constitution Amendment Bills fall within the ambit of section 74 of the Constitution, whilst the membership Bill falls within that of section 75 of the Constitution and must, therefore, be passed according to the procedures set in these sections.
The act of abolishing floor-crossing means that the position reverts to the one that was applicable prior to 2002. The implications thereof are, firstly, that a member of the NA or provincial legislature or municipal council will no longer be able to become a member of another political party. If a member decides to change party allegiance, that person will lose their membership of the NA, provincial legislature or council.
Secondly, an existing political party will no longer be able to merge with another political party, to subdivide it into more than one political party, or to subdivide in the subdivision to merge with another political party. Thirdly, a political party will no longer be able to change the name of the party in the National Assembly, provincial legislature or municipal council at any time it chooses.
The merits and demerits of floor-crossing have been much debated in South Africa. As we’ve heard, the legislation that allowed elected representatives to change political allegiance without losing their seats was enacted, in part, to cater for the political circumstances that existed during 2002-03.
Despite the fact that the legislation passed constitutional scrutiny, it has not received popular support and every floor-crossing window period has brought with it renewed criticism from the public.
Whilst many countries allow for floor-crossing, in the South African context it has caused much discontent amongst voters and has possibly contributed to voter apathy.
Floor-crossing favours larger parties, while minority parties tend to lose members, which weakens democracy. The current electoral system, which is a closed-list proportional system, combined until now with floor-crossing, disempowers the voters as they have no way of calling public representatives to account for their actions.
In fact, the process of floor-crossing deprives the voter of any guarantee that the public representatives who were on the list of the party that the voter voted for would remain on that list until the next election. A closed- list proportional representative system, combined with floor-crossing, almost guarantees that public representatives will not be accountable to the individual voter.
The proposed legislation, therefore, seeks to address the current discontent with floor-crossing. It is hoped that these changes will strengthen democracy in a system based on proportional representation and multiparty democracy. The DA supports the Bill. I thank you. [Applause.]
Mnr N J MACK: Voorsitter, Adjunkminister, lede en kamerade, ek het vyf blaaie hier gehad, maar die Minister, soos die agb voorsitter van die komitee alreeds gesê het, het omtrent alles verduidelik.
Ek het tog ’n paar interessante punte wat ek self wil ophaal. Die skrapping van hierdie wetgewing is eintlik om die demokrasie te verbreed. Nou wil ek ook darem aan die opposisie noem dat ons as die ANC die meeste voordeel uit hierdie wetgewing getrek het en ons het volstaan by die skrapping hiervan, maar ek hoor nie die agb Worth wens ons geluk en sê vir ons dankie dat ons darem ’n goeie ding ook doen en dat ons nie net na die party se aanwins kyk nie. [Tussenwerpsels.]
Julle moet ons darem nie net altyd kritiseer nie, agb Watson. Sê darem ook as ons ’n goeie ding doen, want dis wat die demokrasie verbreed.
Agb Minister, hierdie oorloopwetgewing het veral die Wes-Kaap baie onstabiel gemaak, maar ons het ’n spesiale afgevaardigde van die Wes-Kaap wat seker verder hieroor sal uitbrei. U weet, ons vorige LUR, die agb Richard Dyantyi, het die munisipaliteite in die Wes-Kaap “maak-’n-las- munisipaliteite” genoem, en alles wat dit tot gevolg gehad het was nog net negatief en al die redes soos u dit genoem het, is bekend aan ons almal.
Ek wil net op een ding fokus, naamlik die negatiewe uitwerking wat dit op die amptenary gehad het. Toe die mag in ’n munisipaliteit verskuif het, was die munisipale bestuurder sy pos kwyt en amptenare was hul poste kwyt. ’n Baie bekende geval was dié van Mgoqi in die Kaapse Metro, en wat is die uitwerking daarvan op dienslewering? Nou wil ek amper vra of dit gaan stop. Ons skrap nou hierdie oorloopwetgewing, maar moet ons nie miskien kyk hoe ons die termyne van amptenare ook in pas kan bring sodat hulle nie net enige tyd afgedank of vervang kan word nie en daar in ’n mate ook stabiliteit onder die amptenary is wat beleid betref? Die termyne van amptenare is ook belangrik.
Daar is ook ’n ander punt waarop ons moet fokus. Koalisievorming is ook iets wat die onstabiliteit veroorsaak het en was die gevolg van oorloopwetgewing. Nou wil ek die agb Watson se vere ’n bietjie omkrap. ’n Mens kry gevalle waar minderheidspartye bymekaarkom en dan ’n regering vorm wat die meerderheidsparty, wat immers die meeste stemme op hom verenig het, die reg ontneem om te regeer. Is dit nou demokrasie in werking, waar die meerderheid mense die meerderheidsparty ontneem word omdat ’n paar klein partytjies met een of twee manne saamkom om te regeer? [Tussenwerpsels.] Ja, ek het geweet ek gaan die vere ’n bietjie omkrap!
Die ander punt waarop ek ook u aandag wil vestig, het die agb Watson juis genoem. U sien, oorloopwetgewing is nou uit die weg geruim, maar daar is nou ’n nuwe tendens – raadslede bedank nou en dwing ’n tussenverkiesing af. [Tussenwerpsels.] Dit kan demokraties wees, maar in hoe ’n mate gaan ons koalisievorming en bedankings om ’n regering of enige wetgewer om te krap en te destabiliseer reguleer? Kan ons daarna kyk, want bedankings kom nou voor uit suiwer politieke motiewe, nie met die doel om die mense of demokrasie te dien nie. Dit is van die nuwe goed wat nou gebeur. Ons stop die oorloopwetgewing, maar nou kry mense alternatiewe. Ons is in ’n land waar ons leer.
Ons het nou uitgevind oorloopwetgewing is nie goed vir die demokrasie nie, maar daar is ander goed. Een van die goed, agb Watson, wat ek nogal verbaas is om te sien, en ek het dit in die komitee genoem aan my kollegas, is dat ek sien die DA adverteer in die koerante dat as ’n mens dink jy is LP- materiaal en jy kan dit motiveer, kan jy … Daar is ’n advertensie in die koerante. [Tussenwerpsels.] Nou wonder ek net, hoe … (Translation of Afrikaans paragraphs follows.)
[Mr N J MACK: Chairperson, Deputy Minister, members and comrades, I had five pages here, but, as the hon chairperson of the committee has already said, the Minister has explained just about everything.
I still have a few interesting points that I would like to mention myself. The scrapping of this legislation will actually broaden democracy. But now I want to mention to the opposition that we as the ANC actually benefited most from this legislation and that we have contented ourselves with its scrapping, but I don’t hear the hon Worth thanking and congratulating us on this good move and on not having just considered the party’s gains. [Interjections.]
You shouldn’t always just criticise us, hon Watson. If we do something right, just say so, because that is what broadens democracy.
Hon Minister, this floor-crossing legislation has made the Western Cape in particular very unstable, but we have a special delegate from the Western Cape who will surely elaborate on this. You know, our previous MEC, the hon Richard Dyantyi, called the municipalities in the Western Cape “make-a- nuisance” municipalities and what this has led to has only been negative, while the reasons, as mentioned by you, are known to us all.
I just want to focus on one thing, namely the negative effect this has had on the officials. When the power within a municipality shifted, that municipality’s manager would lose his position and officials would lose their positions. A very well-known case was that of Mgoqi in the Cape Metro, and what was the effect of that on service delivery? I almost want to ask if this is now going to stop. We are now scrapping this floor- crossing legislation, but shouldn’t we perhaps also be looking at aligning the terms of officials so that they can’t be discharged or replaced at just any time and so that there can be a degree of stability among the officialdom as regards policy? The terms of officials are also important.
There is also another point we must focus on. The forming of coalitions, another factor that creates instability, is also the result of floor- crossing legislation. And now I want to ruffle the hon Watson’s feathers a bit. There are cases when minority parties come together to form a government, denying the majority party, which of course amassed the most votes, the right to govern. Would that be democracy in action, when the majority of the people are denied their majority party because a few small parties with one or two people have come together in order to govern? [Interjections.] Yes, I knew I would be ruffling a few feathers.
The other point to which I would like to call your attention has just been mentioned by the hon Watson. You see, floor-crossing legislation has now been removed, but now there is a new trend – councillors are resigning and forcing by-elections. [Interjections.] It may be democratic, but to what extent are we going to regulate resignations and the forming of coalitions to upset a government or legislature? Can we take a look at that, because resignations are now occurring with purely political motives, not in order to serve the people or democracy. These are some of the new things that are now taking place. We have stopped the floor-crossing legislation, but now people are finding alternatives. We live and learn in this country. We have now come to realise that floor-crossing legislation is not good for democracy, but there are other things. One of them, hon Watson, which I was quite surprised to see, and in the committee I have mentioned this to my colleagues, is the DA advertising in the newspapers that if you think you are MP material and you can motivate accordingly, then you can try … There’s an advertisement in the newspapers. [Interjections.] I’m just wondering how …]
The HOUSE CHAIRPERSON (Mrs M N Oliphant): Hon members, can I have order? Your noisy heckling is very, very disruptive.
Mnr N J MACK: Ek bedoel nie om u vere om te krap nie. Ek sê maar net ek sien die advertensie in die koerant. Is daar nie genoeg mense in u eie geledere nie? Is daar te min om vir 12% voorsiening te maak? [Tussenwerpsels.]
Agb Minister, dis die paar goed wat ek wou opgehaal het. Baie dankie. [Applous.] (Translation of Afrikaans paragraphs follows.)
[Mr N J MACK: I don’t mean to ruffle your feathers. I’m just saying that I have seen the advertisement in the newspaper. Are there not enough people among your own ranks? Are there too few to make provision for 12%? [Interjections.]
Hon Minister, these are the few things that I wanted to mention. Thank you very much. [Applause.]]
Mnu M A MZIZI: Sihlalo, angibonge ukuthola leli thuba. Thina laphaya eqenjini leNkatha yeNkululeko yeSizwe uma into ilungile, ilungile nayingalungile ayilunganga. Engingakusho ukuthi ukusukuma kwami lapha uma ngixhasa impela kulo mthetho ngithi le nyoka yezinhloko ezimbili ayihambe. Ngisho ngoba uyabona igundane nexoxo zahlala ziyizitha ngoba ixoxo lathi uma lifika emnyango basukuma bonke endlini balinqanda impela balilahlela ngaphandle. Kwaqhamuka igundane bagxuma bonke baliyeka, ixoxo lakhononda lathi ngoba mina angoni lutho igundane liyamosa. Yini indaba lona liyekwa lingene endlini?
Ngithi kuKhongolose impela seniyohlala nisinda ngoba uMongameli sathi uma siya kuye, wathi yebo kuhle uma ngabe nifuna ukuwuchitha lo mthetho, hlanganani nivumelane anginayo inkinga naloko ngoba wayesazi ukuthi uyagwinya.
Uyabona ngabe nikhala esikaNandi namhlanje, ngabe nikhala isimaye-maye. Nivume ngesikhathi esikahle ukuthi awuchithwe lo mthetho ngakho-ke seniyohlala nisinda. Nwele olude! awuhambe lo mthetho inyoka yezinhloko ezimbili kanjena-ke Sihlalo. Amasela abehamba nezihlalo angazange azivotelwa. [Ubuwelewele.] Nawe bewuzoshaywa bhasobha uhleli phezu kwelahle. Ithi enye inhloko yalo, ugcogcoma uzohlala futhi lapha phakathi uyisela, untshontshile. Uthi manje ukhulumela abantu asazi usakhulumela baphi abantu ngoba abantu bebevotele iqembu hhayi wena. Ngakho empeleni ukube likhona ibhokisi lomgcwabo ngabe ngiyaqiniseka ukuthi siyalithatha leli bhokisi silingcwaba manje sivuke kusasa selingcwatshiwe. Hamba kahle kugcogcoma kwamalunga. (Translation of isiZulu speech follows.)
[Mr M A MZIZI: Chairperson, thank you for this opportunity. In the Inkatha Freedom Party when something is right, then it is right and if it is wrong, it is wrong. What I can say is that I rise in support of repealing this law. I am saying this because a rat and a frog will always be enemies because, when a frog enters through the door, everyone in the house gets up, catches it and throws it outside. When a rat enters they all jump up, but they do not throw it out, which causes the frog to complain, because it does not cause any damage to the property, whereas the rat does. So why are they leaving it inside?
We are saying to the African National Congress that the President saved you, because when we went to him he said that it is okay if we want to repeal this law. We must meet and reach an agreement on this; he does not have a problem with it. He said this because he knew that his party was gaining more members.
You are crying foul today; you shouldn’t be crying. You reached an agreement to repeal this law at the right time, thus saving your own skin. Hooray! Away with this two-headed snake, Chairperson. The thieves were defecting with the seats into which they were not voted. [Interjections.] You were also in for a very high jump; you must be careful. Another head says that you also crossed the floor and you are also seated here amongst us; you are a thief. You are now saying that you are speaking on behalf of the people, but we do not know which people you are talking about, because they voted for the party and not for you. If there was a coffin, I would make sure that we bury this law so that when we wake up the next day, it will be done. Goodbye, floor-crossing.] Mr W M DOUGLAS: Hon Chairperson, hon members, hon Deputy Minister, the ACDP wholeheartedly supports this Bill and I believe it’s very, very good.
We have been victims of this law. The ruling party was very wise to put a 10% threshold in the qualifications, otherwise they might also have lost people during that period. [Interjections.]
The ACDP is on record as opposing floor-crossing. We participated in a partially successful Constitutional Court challenge to the legislation that allowed floor-crossing. We therefore support these provisions that will bring an end to floor-crossing.
In a proportional list system such as we have, citizens vote merely for the party of their choice and its leader and not so much for the candidates on the party list, whom the vast majority of the voters do not know. It is a cardinal principle of the proportional representation system that elected members vacate their seats when they resign from their party or lose their party membership. This system, according to the electoral commission, ensures that the will of the people, as expressed in an election, cannot be negated and substituted by the will of an individual or a group of individuals. This principle is effectively negated by floor-crossing.
Chiara Carter, a journalist for The Star newspaper stated it well, and I quote:
Floor-crossing, a window period when elected representatives get to play musical chairs and switch party allegiance or even join one-man-bands of their own making, while retaining their seats and salaries, has been highly controversial since its inception in 2002.
The spectacle of politicians, dubbed “crosstitutes”, embracing new, often expedient loyalties infuriated the public, swelled the ranks of larger parties and provided a lease of life for a good few career politicians.
In the view of the ACDP, floor-crossing presents one of the most serious threats to our multiparty democracy. Floor-crossing has also contributed significantly to voter apathy. Voters believe that it is useless to vote when elected representatives can defect to another party not representing the initial reason why they voted for them. Further, it has also engrained negative public perceptions of politicians as self-seeking opportunists, with voters being outraged at the political shenanigans exhibited during floor-crossing periods.
The ACDP is very happy that this Bill has come before this House and we fully support the Bill. I thank you.
Rre A L MOSEKI: O a bua mmarona, Modulasetilo, motlatsatona ntate Johnny de Lange, le badirammogo, Modulasetilo ke kopilwe gore ke bue ka dintlha tse di rileng mo Molaotlhomong o re nang le ona fa pele ga rona gompieno. Molaotlhomo o re nang le ona mo pele ga rona o tla morago ga gore ka 1994 re bone kgololosego ya rona. Ga re bona kgololosego e ya rona, dintlha dingwe tse di botlhokwa tse di tlhagelelang mo Molaotheong wa rona ke tse di reng re na le tshwanelo ya “freedom of association” ka puo ya seeng. Jaanong batho ba bangwe fa ba bona metheo e e botlhokwa e e leng pilara ya Molaotheo wa rona, makoko kganetso ba ne ba nagana gore ba ka e tsaya ba e dirisa go koafatsa African National Congress.
Re tla gopola gore Molao o, o o leng fa pele ga rona, batho ba ba neng ba eme ka dinao ba o batla e ne e le DP e e leng gore e tlhatlhama DA. Mo dikakanyong tsa bona fa ba ne ba bua ka Molao o gore o nne teng, ba ne ba re rona maloko a ANC re diaka, ba ne ba akanya gore re diaka. Ba nagana gore ga Molao o o le teng re tla ngala re tswe kwa ANC re ye kwa go bona. Ba ne ba nagana jalo. Maitlhomo mogolo a bona e ne e le go koafatsa ANC le gore temokerasi e ya rona e seka ya gola, e nne bokoa, ka gore fa o koafaditse ANC o tla bo o koafaditse bagaka ba ba netefaditseng gore batho ba ga rona ba nne le kgololosego e re nang le yona, ba ne ba akanya jalo.
Se se diregang ke gore fa re ntse re tswelela ba lemogile gore se ga se a ba tswela mosola. Jaanong e bo e nna bona ba fetogang batlhanka ba mafoko a bona. Jaanong ba re Molaotlhomo o, o fedisiwe ka gore ke maloko a bona ga ba na marapo a mokotla, ga ba ikanyege. Ba simolola jaanong ba tlogela makoko a bona ba ya go ikwadisa le mokgatlo mme re dira pharologanyo magareng ga Makoko le mokgatlho ba tlogela makoko ba a go join mokgatlho ka gore bosigo bo boneng bo le mo matlhong a bona bo ne bo apogile jaanong ba bona fa nnete e leng teng. Fa ba lela, baagi ba Aforika borwa ba tlelwa ke dikakanyo tsa gore seno ga se tiise temokerasi bogolo thata setšhaba mme re lwetse temokerasi, fa setšhaba se ne se tlhagisa dintlha tsa bona. (Translation of Setswana paragraphs follows.)
[Mr A L MOSEKI: You said a mouthful. Chairperson, Deputy Minister Mr Johnny de Lange, colleagues, I’ve been asked to speak about certain points in the Bill before us. This Bill came into effect after obtaining our freedom in
- It is mentioned in our Constitution that we have a right to freedom of association. The opposition parties looked into these important principles, which are the pillars of our Constitution and thought they could use them to weaken the African National Congress.
We still remember that the Bill before us was tabled by the DP, the predecessors to the DA. When they tabled this Bill, they thought that our members would not be loyal and thought that we would get angry and leave the ANC to join them. Their main objective was to weaken the ANC and not to expand our democracy, because weakening the ANC would have weakened the valiants who ensured that our people became free.
However, in the process they realised that this was not working for them as we made them eat humble pie. Now, they want this Bill to be abolished, because their members are not loyal as they are joining other parties. It is now that they realise where the truth lies. When they complained, the people of South Africa raised their views and realised that this thing does not enhance the democracy that we fought for, especially the nation.]
It was not about the strength of the ANC, it was about the fact that you need a very vibrant democracy and that a vibrant democracy …
… o tlhoka le ona makoko a neng a simolola a felela gore bonnye ba nne le lentswe le rileng ba bue. Jaanong ka gore re mokgatlho wa batho re ANC, re reeditse dikgatlhego le dikakanyo tsa batho, mme tla ke go gopotse ntate Watson le ntate Worth gore Molao o o re buisanang ka ona gompieno, ke mongwe wa di thulaganyo tse di lebisitseng kwa kongereseng ya kwa Polokwane. Ga ba ema fa ntate Le Roux, jaaka ntate Mack ke gore re nne re leboga gore dilo dingwe tse dintsi tse di dirilweng ke kopano eo, ke dilo tse di botlhokwa tota go tiisa temokerasi ya rona, re nne re leboga ntate Watson, re nne boikanyego mo bathong ka dilo tse di ntseng jalo.
Re le mokgatlho wa batho, re netefaditse gore temokerasi e nna teng re dumalane le dikakanyo tseo tsa batho mme re be re re ga gona rrapolotiki yo e leng gore wa itlotla, o tlotla batho ba a buang gore wa ba emela, o a tshwanetseng gore a itshole jaaka seaka, nako le nako a lebeletse dikgatlhego tsa gagwe fela le baki ya gagwe gore o apara eng, a sa labelela dikgatlhego tsa batho baga rona. Borradipolotiki ba ba ntseng jalo ntate tsweetswee, ga di na nnete waitse, ga di a tshwanela gore batho ba ga rona ba di tseye ka tlhoafalo borradipolotiki ba ba ntseng jalo. Ke batho ba e leng gore ba re “ga fela nna ke na le sengwe se ke se tsentseng mo kgetseng, go siame ga ke kgathale gore ope a reng, mara ka nako e rileng ke tla boela kwa bathong ba, ke re mpouteleng gape, ga ba sa dire jalo, nna ke tla iponna tsela”.
Molao o, o re buisanyang ka ona, o ne o dira dilo tse, o ne o letlelela mokgwa o maswe o le gopola ntate Thetjeng, e ne e le lona le neng le o batla Molaotheo oo, re rata gore jaaka ANC, re re jaaka re tsere tshweetso kwa Polokwane gore re batla gore temokerasi ya rona e nonofe e tie, molao o o na le kemonokeng e e feletseng ya ANC. Ka mantswe a Modulasetilo, ke a leboga. (Translation of Setswana paragraphs follows.) [… also needs small parties so that at least they too have a word. We, the ANC, are the people’s party; we listened to the interests and views of the people. May I remind Mr Watson and Mr Worth that the Bill before us today articulates core views that led to the Polokwane resolution. As they stand before us, Mr Le Roux, just like Mr Mack, we should be thankful for the important things that the congress did to enhance our democracy, and we would also like to thank Mr Watson, and be honest with the people about such things.
We, the people’s party, ensured that for our democracy to exist, we must align ourselves with the views of the people. And we say that there is not a politician, who respects himself or herself and the people, who can claim to represent them, but who behaves like a prostitute every time by looking after his or her own interests and being more concerned about what jacket he or she wears, and not looking at the interests of our people.
Such politicians, Mr Thetjeng, are hypocrites, and our people are not supposed to take them seriously. They are the kind of people who say, “As long as I have something in my pocket, it’s fine and I don’t care, but at a certain time I will go back to the people and ask them to vote for me; if they don’t, I’ll see how I will sort myself out”. The Bill we are debating allowed such things to happen and remember, Mr Thetjeng, you were the one who wanted this Bill. Now, as the ANC, we would like to make our position known as part of the resolution we took in Polokwane, which is to improve our democracy. The ANC completely supports this Bill. Thank you.]
Mr J J BRYNARD (Western Cape): Chairperson, hon Deputy Minister De Lange, hon chairperson of the select committee and hon members, I am here this afternoon to represent the Western Cape.
The hon Deputy Minister and other members have essentially said what needed to be said about this Bill. But may I take you back a bit, because sometimes you need to know where you are coming from in order to know where you are going.
South Africa has travelled a long road since January 2001 when the DA’s Tony Leon and Douglas Gibson began agitating for floor-crossing legislation to enable their party to formalise a marriage of convenience with the New NP. We all know that the DP was in control of the DA at that time, and they still are. But even while the national ANC government was contemplating the request from Leon and Gibson, it quickly became apparent that there were irreconcilable differences within the ranks of the newlyweds, with some Nats wanting to walk out.
Nevertheless, when the ANC government introduced constitutional amendments allowing floor-crossing in 2002 and 2003, the DA was among the parties which said “aye” with a surprising level of enthusiasm.
Irrespective of what has happened since, I think we need to take some time to remind ourselves of the purpose of the floor-crossing legislation. The hon Deputy Minister and other members have already referred to this. The amendments to the law were promulgated to enable members of the National Assembly, provincial legislatures and municipal councils to become members of another political party without having to resign their seats first. Here is the part that the DA liked - the new legislation also provided an existing political party with the opportunity to merge with another party; to subdivide into more than one political party; or to subdivide and to further allow anyone of its subdivisions to merge with another political party.
But there is an old South African saying which, I think, goes something like this: Never wear dark glasses when reading the small print of a political merger. [Laughter.] It is easy to be wise after the fact. But it turned out that the marriage between the DP and the New NP wasn’t made in heaven after all. When the DP and the DA realised their mistake, they changed from being among the staunchest supporters of floor-crossing to ones that began shouting “scrap the law!” [Interjections.]
In calling for the abolition of the law, an understandably embarrassed DA constitutional guru, Ryan Coetzee, was not too keen to admit that his party was once one of the keenest advocates of floor-crossing. In some ways, I don’t blame him for having been so embarrassed. When he said, during an interview, that the job at hand was not to argue over the genesis of floor- crossing, I could almost see the sheepish look on his face.
He added:
Our responsibility as legislators now is to look critically at the legislation, to assess the manner in which it is being used, to determine its impact on our democratic processes and, above all, to listen to what the voters are saying about it. Having done that, we must respond in the appropriate way.
It was classic mumbo jumbo from a party guru - and I use the word “guru” with a certain amount of caution - who had been tactically outmanoeuvred by his political opponents.
As a representative of one of Coetzee’s political opponents, I want to say to the NCOP today that the ANC government of the Western Cape supports the scrapping of the floor-crossing legislation as envisaged in the Constitution Fourteenth Amendment Bill. Allow me to explain why this is the case.
The Western Cape government wants to see floor-crossing legislation scrapped, not because we have been unable to use it to our political advantage, because we have; not because it sends us into a blind panic at election time – on the contrary, we have always been confident at election time for very good reasons; not because we have been desperately looking for ways to occupy the moral high ground with regard to the law as it has stood for the past few years - we always acted with the utmost integrity in our dealings with those who wanted to join us from other parties; but because we believe that the political landscape that necessitated the promulgation of the law in the first place has now changed, as the Deputy Minister also mentioned.
We know that there is growing opposition to floor-crossing among politicians and the general population. But believe me, I know that those who fought so endlessly to make floor-crossing possible, when they realised that they were the net losers, referred to those who took the plunge – and sometimes courageously so – as prostitutes, sell-outs, flip-floppers and, crazily, even cross-dressers!
We, in the ANC, understand and know why people are opposed to political representatives simply upping, quitting and joining another party without first resigning from Parliament, the legislature … [Interjections.]
Mr A WATSON: Chairperson, on a point of order: Will the member take a question? The HOUSE CHAIRPERSON (Mr T S Setona): Will you take a question, hon member?
Mr J J BRYNARD (Western Cape): Chairperson, I will take many questions, but I would prefer to get into a debate with the hon member once I have finished my speech.
Mr A WATSON: No! Just tell us why it took you so long to leave.
The HOUSE CHAIRPERSON (Mr T S Setona): You may continue, hon member.
Mr J J BRYNARD (Western Cape): Thank you, Chairperson. While the law was being implemented, we were more than happy to accept people from other parties who wanted to join the ANC. We have always said - and we genuinely believe this - that the policies and value systems of the ANC are wonderfully persuasive. To put it in another way, the ANC has excellent policies. In instances where people generally believed in the policies of our organisation and if there were some years to go before the next elections, we were always more than happy to accept them as members in our organisation in terms of floor-crossing legislation. But now, of course, they will have to wait. But I am sure they will understand.
We understand and accept that the scrapping of the legislation will take us back to the position we were in prior to 2002. Where were we prior to 2002? Well, simply this: In terms of the amendments that are under discussion here today, and I have referred to this, members can no longer join other parties without losing their seats, unless they resign. We also understand that an existing political party will no longer be able to merge with another political party and all that goes with that. We are comfortable with that.
In conclusion, I would like to say how proud I am to witness our young democracy preparing itself to take another giant step on a journey that I am convinced will ultimately lead to the building of a truly great country. Make no mistake, floor-crossing legislation has tested the commitment of our country to democracy. The legislation offered us choices. It said to us that now was the time to look to the future. We must decide which direction we want to move in. In opting to support the amendments to floor-crossing, I am thrilled to say that, so far, we have made wise choices. I thank you. [Applause.]
Dr F J VAN HEERDEN: Chairperson, I was very impressed by the hon Brynard’s intimate knowledge about what has happened in the DA. I understand he just missed one person, namely Colin Eglin, who really started it. I remember that speech in the NA in 1995-96; I think it was then. But I also understand the hon Brynard’s intimate knowledge about floor-crossing is because he has personal experience of crossing the floor. [Laughter.]
Voorsitter, die VF was van die begin af gekant teen enige oorlopery, die rede synde dat ons dit beskou het as politieke prostitusie en politieke owerspel. Dié woorde is vandag hier gebruik. Die nadelige effek spesifiek in hierdie Huis … (Translation of Afrikaans paragraph follows.)
[Chairperson, the FF was opposed to any floor-crossing from the start, the reason being that we regard it as political prostitution and political adultery. These words were used here today. The negative consequences in this House specifically …] Mr V V Z WINDVOËL: Chair, will the member take a question?
Dr F J VAN HEERDEN: Chairperson, I think I must take the question. Yes, ask your question. [Applause.]
Mr V V Z WINDVOËL: The question is simple and short. Has the member never ever moved from one political party to the other?
Dr F J VAN HEERDEN: I thank you for that question. Mr Chairperson, yes, I have moved, but I didn’t cross the floor. I resigned, hon Windvoël. I left politics in 1999 and I started my law practice and then I resigned from the NP and I eventually joined the FF. I didn’t cross the floor. Thank you.
Die nadelige effek is dat oorlopery op ’n stadium ’n lid van hierdie Raad baie nadelig getref het omdat, wat in sy wetgewer gebeur het, hom baie nadelig beïnvloed het. Dit was ’n ANC-lid.
Daar word bereken dat sowat 1 miljoen stemme gesteel is as gevolg van oorlopery. Die VF verwelkom die verwydering van hierdie wet wat ons van die begin af teengestaan het. Ek dank u. (Translation of Afrikaans paragraphs follows.)
[The negative consequence of floor-crossing is that at one stage it badly affected a member of this Council, because what had happened in his legislature had a very negative impact on him. He was an ANC member.
It is calculated that 1 million votes were stolen as a result of floor- crossing. The FF welcomes the scrapping of this Act which we opposed from the start. I thank you.]
Mr Z C NTULI: Thank you, hon Chairperson, Deputy Minister de Lange, hon members and friends. I think hon Darryl Worth, hon van Heerden and hon Mzizi have missed an opportunity, and that was the opportunity to thank the ANC for being a progressive movement because, if the ANC was not progressive, we would not have agreed to change this law. But, because we are progressive, we have agreed.
I thought as hon members they would be able to be humble and thank the ANC for being rational. I am saying this because the ANC is the party that benefited most during floor-crossing and we are the majority; instead of saying, as we are here, we want to gain more …
Mr O M THETJENG: Chairperson, is it parliamentary for a member to refer to us as being horrible?
The HOUSE CHAIRPERSON (Mr T S Setona): I didn’t hear that. I will make a ruling.
Mr O M THETJENG: He said it: “You are horrible”.
The HOUSE CHAIRPERSON (Mr T S Setona): I will make a ruling at a later stage.
Mr Z C NTULI: Chairperson, I think I am cutting close to the bone and that’s why the member could not sit still.
Mr R J TAU: Maybe the member is so horrible that he is not sure of himself.
The HOUSE CHAIRPERSON (Mr T S Setona): Hon Tau, you are extremely out of order.
Mnu Z C NTULI: Baba uThetjeng mhlawumbe ukuthi isiNgisi akulona ulimi lwami kungenzeka ngithe ngiyakhuluma wangangizwa kahle, kodwa-ke bengifuna ukucacisa kahle. Ngesikhathi kunikezelwa ngezimali ngenkathi yokuqembuka nezihlalo kubonakele ukuthi uma umuntu ehamba lapha uhamba nemali. Kube khona imali ephumayo eya kwelinye iqembu ngakho-ke kubonakele ukuthi akukuhle kahle.
Kukhona abanye abantu ikakhulukazi laba bantu ebebevula amaqembu abo amancane. Laba bantu bazithola sebephethe izigaxa zemali uvese ubone nje ukuthi phela ubusela lobu ngoba laba bantu badla bodwa futhi abafuni ukuphathwa. Umuntu usephuma lapha angene laphaya ukuze akwazi ukuzitholela imali futhi akwazi nokuphatha imali enkulu.
Abanye babo kutholakala ukuthi kuthi bengakaphenduli ngezimali abebezinikiwe, sebejombile sebeye kwenye inhlangano. Kusale ukuthi izimali abebenikezwe zona zenzanjani. Ngeke usabafica abasekho sebekwenye inhlangano.
Lokhu kusho ukuthi kuyasiza ukubakhona kukaKhongolose, kufanele amanye amaqembu akujabulele lokho. Mina ngiyaye ngithi bangisiza ekhaya bangizala ngakhulela kuKhongolose ngoba angazi ngisho nokuthi kubanjani uma ukwelinye iqembu. [Uhleko.]
Ngiye ngimbuke nje umuntu ehamba eqembuka nesitulo ngingazi noma kubuhlungu kodwa yena ehamba nje. Kodwa-ke manje ngibona sengathi aseyancipha lawo mathuba okuthi nani ngelinye ilanga nibe ngamalungu kaKhongolose njengoba usunqamuka lo mthetho.
Okubi kakhulu kithina malungu oMkhandlu Kazwelonke Wezifundazwe ukuthi beningakwazi ukubamba iqhaza mayelana nokuqembuka nezihlalo kodwa bekuncike kwabanye abantu ongabazi ukuthi bacabanga kanjani. Uthole ukuthi umuntu avele anqume ukuthi yena useyahamba bese kuvele kuthinteke nawe.
Kwaba buhlungu kabi lapha kukhona amalungu ahambayo kodwa kutholakala ukuthi futhi ahamba nje hhayi ngoba ethanda. Isibonelo nje abanye abantu esifundazweni banquma ukuthi bayahamba kwase kuthinteka ilungu elilapha sekufuneka nalo lihambe, liphelelwe yisikhathi. Okusho ukuthi kithina malungu oMkhandlu Kazwelonke Wezifundazwe ngibona sengathi lokhu kuphela kwalo mthetho wokuqembuka nezihlalo kusisizile. Sengigcina Sihlalo ngifisa ukusho ukuthi laba bantu abathi abantu abaqembukayo ngonondindwa, kungcono vese ukuthi bababize kanjalo … [Ubuwelewele.] (Translation of isiZulu paragraphs follows.)
[Mr Z C NTULI: Hon Thetjeng, maybe it is because English is not my home language, so it may happen that you misunderstood me, but in fact I simply wanted to give clarity. When the allocations were given to political parties during the floor-crossing period, it was discovered that if a person leaves a party, he leaves with the money. There would be an amount of money that would be paid to the party that is getting a new member and certain parties took a dim view of this.
Some people who had crossed the floor formed their own small parties. And they would find themselves carrying big chunks of money, and you would immediately realise that this is pure stealing, because this person is on his own and he does not want to be led. You would find them hopping from one party to the other, just because they knew that they would get money out of that and be able to carry a big chunk of money again.
Some of them simply jumped ship and crossed the floor again to another party, just before they could even give an account of the monies given to them. This would leave everybody in the dark as to what exactly happened to the monies that had been given to them. No one was able to make them account for the money, because they had crossed the floor again to another party.
This, therefore, means that the presence of the ANC helps, and the other parties should appreciate that. I always say that I am grateful to my parents, because I was born and bred in the ANC and I do not know what it feels like to be in another party. [Laughter.]
Sometimes I would simply watch in silence when a member crossed the floor and wonder how he felt, whether it was painful or not as he crossed the floor. Unfortunately the chances of you here becoming ANC members are getting very slim, since this law is now coming to an end.
What was even worse for us, as members of the National Council of Provinces, is that we were unable to control floor-crossing, and it all depended on other people, and we did not even know what they were thinking. A person would simply decide that he was leaving and you would be affected.
It was so sad at one stage here in the NCOP when there were members who left unwillingly. An example here was when members of the provincial legislature decided to cross the floor and the member in the NCOP was affected, and unfortunately the member had to leave, because that was the end of the term for the member. So this means that the scrapping of this law will help us, as members of the National Council of Provinces.
In conclusion, hon Chairperson, I want to say that those people who refer to the members who cross the floor as prostitutes would do better calling themselves exactly that … [Interjections.]]
The HOUSE CHAIRPERSON (Mr T S Setona): Hon member, can I take a question or point of order?
Ms A N T MCHUNU: Thank you, hon Chairperson, is the member prepared to take a question? May I please know, are you aware that the ANC never won in KwaZulu-Natal and you are now supporting this legislation because you are afraid of Cope? Are you aware of that? [Interjections.] It is a question.
The HOUSE CHAIRPERSON (Mr T S Setona): Hon member, that is just rhetoric.
Mnu Z C NTULI: Ngiyabonga. Ilungu lichitha isikhathi sami. Mama uMchunu mina bengicabangela wena ukuthi uma bekuqhubeka lokhu kuqembuka wena ubuzohamba lapha [Uhleko.] Ngakho–ke malungu ahloniphelile ngiyabonga ukuthi lo mthetho sizovumelana ngawo ukuthi siwuqede.
Bengisathi kuyangimangaza kulaba bantu ababiza abanye ngonondindwa ngoba bethi abawufuni lo mthetho. Ngike ngezwa nobaba uvan Heerden laphaya ukuthi bona abayifuni le nto kodwa uthola ukuthi uma umuntu eza kubona akabizwa ngonondindwa ubizwa ngelungu elihloniphekile. Kusho ukuthi kusobala basika nganxanye njengommese. Ngiyabonga Sihlalo. [Ihlombe.] (Translation of isiZulu paragraphs follows.)
[Mr Z C NTULI: Thank you. The hon member is just wasting my time. Madam Mchunu, I was just assisting you because, had the floor-crossing continued, you would have lost your seat here and left us. [Laughter.] I am therefore, hon members, very grateful that we all agree that this piece of legislation should be repealed.
I was still saying, I am pleasantly surprised by those people who call others prostitutes just because they say they do not want floor-crossing. I have also heard the hon van Heerden saying that they are against this thing, but you find that if a member crosses the floor to join them, they do not call that member a prostitute, instead they call him an hon member. Therefore, it is clear that they are two-faced. Thank you, Chairperson. [Applause.]]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, thank you. Hon members, it is not often that you can participate in a debate where everyone agrees. The big problem with a debate where everyone agrees is that you then have to make up reasons and find things to say! So you’ll find hon Mzizi talking about frogs, and others about coming out of the light into the darkness and from the darkness into the light. This is all because they all agree with this legislation, so they do not know what to say. So it is pleasant to participate in a debate where all South Africans agree. I think it is an historic event, probably. There are some aspects the hon Mack raised that we would hopefully start discussing in the new Parliament. It is something that worries me and I know it is done in most countries, but I don’t think we can afford it in a country like ours, where we have few resources and few skills and every time we have to change administration.
Of course, there must be some change in administrations. Most countries do it, but I must say, in our country I have found it very unacceptable, even as is the case in my own party. Sometimes, in some local governments, we just change people wholesale and start all over again. It is something we must discuss and it is good the hon Mack has raised it because it is not an easy issue to discuss or debate.
People say, “When I come to power and I have the support of the people, I want people there that I will put there.” So it is a difficult issue, but it is something that we have to look at maturely. Maybe we should look at it in terms of the fact that there are certain core jobs that actually should remain unchanged with the change in administration, because you want to keep delivery going.
We have been in this game for at least 15 years. Most of us who were not in Parliament before understand that every time you change staff and people and policies, it takes a long time to get those things moving again. It is something we should flag. It is something we should really discuss.
All that is left for me to say is this: History should record that this country reached a certain stage in the year 2001-02 where there was a necessity for us to deal with the matter of floor-crossing, which we introduced to the country. History should also recall that the introduction of that legislation did achieve some of the objectives that we wanted to achieve, but history should also recall that the introduction of the whole concept of floor-crossing had many unwanted effects and many of them were negative. History should report, very importantly, that in the year 2008, when it was necessary, we had analysed and concluded that we don’t need floor-crossing anymore. We as a country and all the parties unanimously decided to get rid of it.
Let us use this opportunity to try and always put our dealings in politics and our governance issues at a higher level, a level that we can be proud of as a country and as a nation, and hopefully this experiment with floor- crossing will have taught us some lessons, which we probably never want to go back to. Thank you very much to all the parties supporting this legislation - and next time, when you support legislation, you do not have to write a speech to come and explain it. Thank you very much.
Debate concluded.
Question put: That the Constitution Fourteenth Amendment Bill be agreed to.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Constitution Fourteenth Amendment Bill accordingly agreed to in accordance with section 65 of the Constitution.
General Laws (Loss of Membership of National Assembly, Provincial Legislature or Municipal Council) Amendment Bill agreed to in accordance with section 75 of the Constitution.
Mr V V Z WINDVOËL: Chairperson, I see two provinces have abstained. Is that Lesotho and Swaziland?
The HOUSE CHAIRPERSON (Mr T S Setona): I will deal with that. I am not sure whether Lesotho and Swaziland are part of our country. I will not mention that there are two members here who persistently vote when we call delegation heads to vote.
Hon members, on a very serious note: This is a procedural and constitutional issue. You are not committing a crime, but it might create the impression that we do not understand our Rules and our procedures. I really want to caution members that we take it quite seriously, particularly in the context of us being a public forum where everybody – 48 million South Africans – actually looks at us.
The Council adjourned at 16:46. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 14 NOVEMBER 2008 ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Assent by President in respect of Bills 1) Correctional Services Amendment Bill [B 32F – 2007] – Act No 25 of 2008 (assented to and signed by President on 8 November 2008).
TABLINGS
National Council of Provinces
-
The Chairperson
a) Tabling of correspondence from Ms Khoase, a community representative of Abazimeli Squatters Association in Parys, Free State Province. b) Tabling of correspondence from Mr Mokhetea of Henneman in Free State Province.
Referred to the Select Committee on Members’ Legislative Proposals.
COMMITTEE REPORTS
National Assembly and National Council of Provinces
- REPORT TO THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS ON THE FINDINGS OF THE AUDITOR GENERAL WITH RESPECT TO THE AUDIT OF THE DISCLOSURE OF INTERESTS BY MEMBERS
On 13 November 2008 the Joint Committee on Ethics and Members’ Interests met at Room V227 Old Assembly Building to consider the report of the Auditor General on the alleged non-disclosure by Members of Parliament.
Present Chairperson: Landers, LT (ANC) National Assembly De Lille, P (ID) Delport, JT (DA)
Gxowa, NB (ANC) Njobe, MAA (ANC) Dudley, C (ACDP) Gumede, DM (ANC)
Rajbally, S (MF) Seaton, SA (IFP) National Council of Provinces Dlulane, BN (ANC) Matlanyane, H (ANC) Moseki, AL (ANC) Oliphant, M (ANC) Ralane, TS (ANC)
Apologies National Assembly Baloyi MR (ANC) Nwamita Shilubana TLP (ANC) Radebe BA (ANC) Ditshetelo, PHK (UCDP)
National Council of Provinces Ntwanambi ND (ANC) Tolo BJ (ANC)
Staff Adhikarie Z, Mahomed F, Isaacs F
The Auditor General conducted an investigation on the completeness of the Register of Members’ Interests as part of the 2007 financial audit of Parliament. As a result they submitted details of fourteen Members who had allegedly not disclosed.
In terms of the procedure, correspondence was sent to the Members on the 30 July 2008 to seek their responses to the allegations. The report details the companies that the Members have allegedly not disclosed; it outlines the Members responses, as well as the findings with recommendations as to sanctions where appropriate.
In findings related to resignations from companies and close corporations, it was noted that the process to effect resignations are not solely in the control of the person concerned. The procedures at Company and Intellectual Property Rights Organisation (CIPRO) require that signatures of other partners/membership/directors are required to finalise resignations. The consequence of this is that after an individual has resigned from a company or a close corporation they are dependent on other parties to effect the change. It is for this reason that Members have been given the benefit of the doubt, where they indicated that they have resigned.
In considering penalty, in respect of dormant companies it is noted that the Committee made numerous efforts to assist Members to fully comply with the disclosure requirements of the Code. Arrangements were made with CIPRO to avail their services which allowed an individual Member to check his/her disclosure details. About 300 Members participated in this process of checking.
Note 3 on the disclosure of interests form specifies that dormant companies must be disclosed. It is further noted that the Joint Committee on Ethics and Members’ Interests have in numerous reports adopted by the National Assembly and the National Council of Provinces, resolved that Members must disclose dormant companies.
Abram, S Mr It is alleged that the Member did not disclose the following: Company Information Closeprops 169 Registration number 2005/088057/23 Closeprops 170 Registration number 2005/088053/23 Ithute Tswelopele Solution Registration number 2000/0209072/07
Members’ response Mr Abram responded that Closeprops 169 and 170 are property holding Close Corporations in which he has 50% interests, these properties were disclosed.
Mr Abram indicates that he had resigned from Ithute Tswelopele Solution and is trying to establish why the resignation was not affected.
Findings There is no breach of the Code with respect to Closeprops 169 and Closeprops 170 as these companies were disclosed in the land and property section of the Register of Members Interests. The Member is advised that the full name of the Close Corporation must be included in the Register.
With regard to Ithute Tswelopele that as he had resigned there is no breach of the Code of Conduct. The Committee agreed that Mr Abram must ensure that the resignation is rectified with CIPRO.
Bonhomme, TJ Mr It is alleged that the Member did not disclose the following:
Company Information Newlands Mashu Community Development Centre Registration number 1995/003138/08
Member’s response In his response Mr Bonhomme indicated the Newlands Mashu Community Development Centre is also known as the Kwa Mashu Newlands Permaculture Centre which was disclosed.
Finding There is no breach of the Code of Conduct for Members of Parliament as the interest was disclosed.
Holomisa, GBH Mr It is alleged that the Member did not disclose the following:
Company Information Amalgum Investments Twenty Registration number 2003/015387/07 Beat the Clock Investment Registration number 2006/034220/07 Ebaleni Property Holdings Registration number 2006/031986/07 Holomisa Investments Registration number 2000/006258/23
Members’ response In his response Mr Holomisa indicated that he had disclosed Amalgam Investments and Holomisa Holdings in the category shares and financial interests. Ebaleni Property Holdings and Beat the Clock Investments are new interests and had been disclosed in his 2008 declaration.
Finding There is no breach of the Code.
Maluleka, HP Mr
It is alleged that the Member did not disclose the following:
Company Information Bay View Trading 20 Registration number 2006/177896/23
Members’ response In his response Mr Maluleka indicated that the company is dormant and apologized for the omission.
Finding Mr Maluleka has not fully disclosed, as required and is in breach of the Code.
Sanction It is noted that the company is dormant. In similar cases the Joint Committee recommended that Members be issued with a fine.
The Committee therefore recommends that the penalty is a fine of R500 for the non-disclosure of directorship in a company.
Mashiane, ML Ms
It is alleged that the Member did not disclose the following:
Company Information Mabopane Community Services Organisation Registration number 1997/003926
Members’ response Ms Mashiane in her response said that the Mabopane Community Service Organisation is a not for profit organisation which need not be disclosed. Accordingly there is no breach of the Code of Conduct for Members of Parliament.
Matsomela, MJ Ms
It is alleged that the Member did not disclose the following:
Company Information Jeids Five Marketing Registration number 1997/046999/23
Members’ response In her response Ms Matsomela indicated that the company has been dormant since inception and that she will follow up and would advise the Committee accordingly.
Finding Ms Matsomela has not fully disclosed, and is in breach of the Code of Conduct for Members of Parliament.
Sanction It is noted that the company is dormant. In similar cases the Joint Committee recommended that Members be issued with a fine.
The Committee therefore recommends that the penalty is a fine of R500 for the non-disclosure of directorship in a company.
Mentor, VMP Ms
It is alleged that the Member did not disclose the following:
Company Information Vakazi Holdings Registration number 2003/004864/06
Member’s response Ms Mentor has indicated that she had resigned from the company six months after she was appointed as director. She had formally resigned and asked the company to remove her as director.
Finding There is no breach as Ms Mentor had resigned, She must ensure that her resignation is finalized at CIPRO.
Mlangeni, A Mr
It is alleged that the Member did not disclose the following:
Company Information Centers’ for Community Development Registration number 1993/000070/08 Havtoohav Investments Registration number 2004/029269/07 Ndiza Empowerment Technology Registration number 2000/017077/07 Orlyfunt Holdings Registration number 2003/014960/07 Orlyfunt Strategic Investments Registration number 2004/030159/07 Pacific Height Investments Registration number 2006/039622/07 Inkwenkwezi Gold Registration number 2004/002172/07 Comorant Investments 22 Registration number 2004/002172/07
Member’s response In his response Mr Mlangeni indicated that the Centers’ for Community Development was placed under provisional liquidation, the company was formed to assist veterans of the struggle and is an article 21 company. He had derived no benefit from it.
Mr Mlangeni resigned from Ndiza and Crowned Comorant.
In a further response Mr Mlangeni apologised for his non-disclosure. He said that Orlyfunt Strategic Investments and Orlyfunt Holdings are subsidiaries of Matodzi which he had disclosed. He concedes that he should have disclosed the entities.
He said that he had agreed to the directorships in Havtohave Investments and Inkwenkwezi Gold but these entities never “took off”. Mr Mlangeni also submitted an affidavit from Mr TR Jones of Pacific Heights, in which Mr Jones states that he had not informed Mr Mlangeni when the company was registered.
Findings There is no breach in respect of the Centers’’ for Community Development, as this is a not for profit organisation and it need not be disclosed in terms of the Code of Conduct.
In respect of Pacific Heights, the company was established in 2007, the period of the audit was for the 2007 year, this together with the affidavit from Mr Jones shows that this may have been an omission, Mr Mlangeni should be given the benefit in this regard.
Mr Mlangeni is in breach for the non-disclosure of Orlyfunt Strategic Investments and Orlyfunt Holdings, Havtohave Investments and Inkwenkwezi Gold Penalty
It is recommended that Mr Mlangeni be fined R500 per entity for the non- disclosure of directorships in Orlyfunt Strategic Investments and Orlyfunt Holdings, Havtohave Investments and Inkwenkwezi Gold, a total fine of R2000 is recommended.
Ngcengwane, ND Ms It is alleged that the Member did not disclose the following:
Company Information Mfingwana Projects Enterprises Registration number 2002/053090/23 African Pearl Trading 17 Registration number 2005/060146/23 MMDZ Trading Enterprises Registration number 2006/208148/23 Pathway to Educational Achievement Registration number 1998/013884/08 Vathisa Vuthela Technologies Registration number 2005/060933/23 Just us Women Business Enterprise Registration number 2003/067822/23 Mahlanga Business Enterprises Registration number 2004/063705/23 Mountain Hill Property Registration number 2002/097108/23
Member’s response In her response Ms Ngcengwane indicated that: Mfingwana is active but currently dormant. She has no recall of African Pearl Trading and intends resigning. MMDZ is an active enterprise. She has resigned from Pathway for Educational Achievement Vathisa Vuthela Technologies has not taken off and she has no contact with her business partner. Just us Women Business Enterprises – she has resigned from the company. Mahlanga Business Enterprises, she has no recall of this company and would like to resign from this company. Mountain Hill Property, she intends resigning from this company.
Findings The Committee gives Ms Ngcengwane the benefit of the doubt regarding her resignation for Pathway for Education Achievement and Just Us Women Business Enterprise and therefore finds that there is no breach in this regard. She must ensure that the resignations are finalized at CIPRO.
In respect of non-disclosure of the following companies, Mfingwana Projects Enterprises, Vathisa Vuthela Technologies, Mountain Hill Property and MMDZ Trading Enterprises, the Committee finds that Ms Ngcengwane is in breach of the Code of Conduct for the non disclosure of directorships.
With respect to African Pearl Trading 17 and Mahlanga Business Enterprises, the Registrar obtained the copies of the Close Corporations founding documents which Ms Ngcengwane had signed.
Penalty With respect of Mfingwana Projects Enterprises, Vathisa Vuthela Technologies, Mahlanga Business Enterprises, Mountain Hill Property, African Pearl Trading, the Committee notes that these companies are dormant and subsequently finds that the Members must be fined R500 for each non disclosure, R2500 in for the dormant companies. With respect to MMDZ Trading Enterprises which is currently trading. It is noted that the company was established in 2006 and that Ms Ngcengwane had disclosed in 2008. The Committee recommends that Ms Ngcengwane be fined R1 000 for the non disclosure of this company.
The total recommended penalty is R3500.
Ntuli, SB Mr
It is alleged that the Member did not disclose the following:
Company Information Bensat Construction Registration number 1998/023522/23 Modern Era Construction and Projects Registration number 2006/001900/23 Siphiwe Montessori School Registration number 1996/009654/08
Member’s response In his response Mr Ntuli has indicated that his business partner in Bensat Construction passed away a few years ago. The Company has been dormant since. He indicated that he has no knowledge of Modern Era Construction Projects. Mr Ntuli said that he resigned from Siphiwe Montessori School which is now closed. Finding The Registrar obtained copies of the founding statement for Modern Era Construction. Mr Ntuli was asked to verify his signature on the documents of Modern Era Construction; he indicated verbally that the signature is not his, but has not submitted a written response despite numerous requests from the Office of the Registrar.
Mr Ntuli was afforded ample opportunity to respond, his failure to do so leaves the Committee no choice as it must base its findings on the bases of the signatures on the forms. The Committee finds that Mr Ntuli is in breach of the Code of Conduct for the non-disclosure of directorships. in respect of Modern Era Constructio. He conceded that he was aware of Bensat Construction and is therefore also in breach in this regard.
Penalty As both these companies are dormant it is recommended that Mr Ntuli be fined R500 per entity, a total fine of R1000.
Nzimade, LPM Mr Company Information CBR Education and training for Registration number: 2001/006621/08 Empowerment Eyathu Sonke Drives Training Registration number 2001/051404/23 Secretariat of the African Decade Registration number 2003/027026/08 of persons with Disabilities
Member’s response That CBR Education and Training for Empowerment are non-profit organizations. Mr Nzimande indicated that Eyathu Sonke is dormant.
Findings Mr Nzimande has breached the Code of Conduct for the non-disclosure of his directorships in Eyathu Sonke Driving School. Secretariat of the African Decade of Persons with Disabilities and CBR Education and Training for Empowerment are not for profit organizations, accordingly Mr Nzimande is not in breach of this respect.
Penalty Eyathu Sonke is dormant; the Committee recommended a fine of R500.
Ramotsomai, CMP Ms Company Information Full Swing Trading 530 Registration number 2005/028722/23
Member’s response Ms Ramotsomai has indicated that she was under the impression that she had resigned from this company. Finding Ms Ramotsomai should be given the benefit of the doubt with regard to her resignation from the company. Ms Ramotsomai must ensure that her resignation is finalized at CIPRO. Accordingly there is no breach of the Code of Conduct.
Smith, VG, Mr Company Information Nambiti Nextwave Consulting Registration number 2003/012765/07 Euro Blitz 48 Registration number 2002/012907/07 Hlanganani Investment Registration number 2001/001423/07 Leshema Finance Management Registration number 1994/041151/23 Services Member’s response In his response Mr Smith indicated that he had resigned from Nambiti Nextwave. Euro Blitz trades as Qulemar (Pty) Ltd and has been disclosed. The record shows that he has resigned from Hlanganani. Leshema Finance is a dormant company.
Findings There is no breach with regard to Nambiti Nextwave, Euro Blitz and Hlanganani Investment. In respect of Leshema Finance, Mr Smith is in breach of the Code. Mr Smith must ensure that his resignation from Nambiti Nextwave is finalized.
Penalty It is noted that Leshema Finance is dormant; it is recommended that he be fined R500.
Woods, GG Mr Company Information Berg Street Three Properties Registration number 1985/011149/23 Imbenge Group Registration number 1997/001649/07 Imbenge Properties Registration number 1997/001145/07
Member’s response Mr Woods indicated that he was of the view that Berg Street Properties was deregistered. He indicated that he has no recall of the Imbenge Group and Imbenge Properties.
The Registrar obtained the founding documents for Imbenge Group and Imbenge Properties from CIPRO these show that Mr Woods did not sign the founding documents.
The Auditors listed on the founding documents indicated that they did not have any documents for the companies.
Findings It is recommended that Mr Woods be given the benefit of the doubt with regard to Berg Street Properties. As there is not evidence to indicate that Mr Woods consented to being appointed as a director for Imbenge Group and Imbenge Properties.
Accordingly there is no breach of the Code of Conduct. Mr Woods must ensure that he advises CIPRO and removes himself from the companies concerned.
The Committee adopted the report unanimously.
Report to be considered.
- REPORT OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS ON THE COMPLAINT AGAINST MINISTER BMN BALFOUR.
On 13 November 2008 the Joint Committee on Ethics and Members’ Interests met at room V227 Old Assembly Building to consider the complaint against Minister BMN Balfour.
Present: Mr L Landers Chairperson
National Assembly De Lille, P Delport, JT (DA) Dudley, C (ACDP) Gumede, DM (ANC) Gxowa, NB (ANC) Njobe, MAA (ANC) Rajbally, S (MF) Seaton, SA (IFP)
National Council of Provinces Dlulane, BN Matlanyane, H Moseki, AL Oliphant, M Ralane, TS Apologies National Assembly Baloyi MR (ANC) Nwamita Shilubana TLP (ANC) Radebe BA (ANC) Ditshetelo, PHK (UCDP)
National Council of Provinces
Ntwanambi ND (ANC)
Tolo BJ (ANC)
Staff
Adhikarie Z, Mahomed F, Isaacs F
The Joint Committee on Ethics and Members’ Interests received a
complaint which referred to a payment allegedly made by Kgwerano
Financial Services for a Volkswagen Touareg.5.0 V10. It is alleged that
the Minister had failed to declare payment by Kgwerano as required by
the Code of Conduct for Members of Parliament
The Code of Conduct for Members of Parliament stipulate in terms of
paragraph 8(f) and (g) which require that Members must disclose:
(f) Gifts and hospitality:
(i) A description and the value and source of a gift with a
value in excess of R1500;
(ii) a description and the value of gifts from a single source which
cumulatively exceed the value of R1500 in any calendar
year; and
(iii) hospitality intended as a gift in kind.
(g) Benefits:
(i) The nature and source of any other benefit of a material
nature; and
(ii) the value of that benefit.
The Committee considered the information provided by:
• The complainant,
• The response by Minister Balfour which included documents such
as the lease agreement for the vehicle, statements of the
account, his personal bank statements, and a supporting letter
from the bank,
• The Department of Transport on the Public Office Bearers Motor Scheme,
• a signed affidavit by a director of Kgwerano Financial Services,
• The Committee also received a signed affidavit from Mr Litton on
behalf of Wesbank
In making its findings the Committee the Committee noted the signed
affidavit from Mr Litton of Wesbank Head of Risk, in which he confirms
the following under oath:
1. The Minister Balfour entered into a lease agreement with Kgwerano
Asset Finance a division of First Rand Bank Limited on 21 February
2006 for the lease of a new Volkswagen Touareg 5.0 V10 TDI TIP.
2. The vehicle matched the details contained in the invoice from
Northcliff Volkswagen.
3. The original contract term of the vehicle was extended, and in terms
of bank procedures a new contract number was allocated.
4. He confirms that they did not finance two vehicles and the contracts
relate to the Volkswagen Touareg 5.0 V10.
5. Wesbank draws regular monthly instalments from Minister Balfour from
his personal bank account for payment of the motor vehicle.
6. In supplementary affidavit Mr Litton responds to the allegation of a
settlement letter, he explains that a settlement letter is sent out
when one account is closed. In this instance the first account was
closed to reschedule the payments, he confirms that there was no
lump sum payment.
Findings In light of the above the Committee found unanimously that the allegation that the Minister received a gift in the form of a payment for his motor vehicle was not substantiated, consequently there is no breach of the Code.
Report to be considered.
COMMITTEE REPORTS
National Assembly and National Council of Provinces
- Report of the Joint Budget Committee on the Medium-Term Budget Policy Statement, dated 12 November 2008.
The Joint Budget Committee, having considered the Medium-Term Budget Policy Statement (MTBPS) referred to it, reports as follows:
INTRODUCTION
The Medium-Term Budget Policy Statement (MTBPS) comes at a time of severe turbulence in the global economy. This is the last MTBPS to be introduced in the Third Parliament. The economic slowdown and projected decline in revenue may require changes in medium-term budget proposals. This in turn will place greater importance on domestic policies, with the need to ensure that funds are directed at those sectors and programmes which have the greatest impact on the lives of South Africans.
The Committee once again agreed to focus on selected sectors and departments: those expected to be prioritized over the medium-term or those that have experienced specific budgeting and performance challenges. These are reflected on in the report. In preparing for the MTBPS, the Committee drew on a range of submissions including government’s “Towards A Fifteen Year Review”, and reports of the Auditor-General (AG) and the Financial and Fiscal Commission (FFC). The Human Science Research Council (HSRC) and the Public Service Commission (PSC) were also invited to present on relevant research and findings.
In keeping with Committee practices, Members of relevant portfolio and select committees were invited to participate in proceedings. The participation of sector committees remains fundamental to Parliament’s engagement with the MTBPS as they are able to bring detailed knowledge of departmental policies and practices to deliberations.
This report is divided into three sections. The first reflects on the broad medium-term priorities, the second focuses on specific sectors and departments while the third sets out the Committee’s recommendations.
BUDGET PRIORITIES AND THE DIVISION OF REVENUE The downturn in the global economy and various domestic constraints are expected to curtail South Africa’s economy initially, with growth anticipated to slow to around 3 per cent in 2009, before rising to 4.3 per cent by 2011. Revisions to tax policy and a shift in the budget balance allow for the expansion of the fiscus and support for government’s priorities despite the slowdown in growth.
The challenges in implementing concurrent functions have, at times, led to serious misalignment between policies and resource allocations, and between allocations and outputs. The Committee welcomes the proposed reforms in the local government equitable share formula, in order to take greater account of fiscal constraints in poor municipalities.
The Committee supports the additional R170.8 billion proposed in the MTBPS for the Medium-Term Expenditure Framework (MTEF) partially to offset the effects of higher inflation on salaries, social grants, fuel and capital projects. There will also be a tranche of R60 billion made to Eskom.
The MTBPS reflects a continuing emphasis on employment creation and poverty alleviation. Specific medium-term budget priorities, as presented, include:
• Enhancing the quality of education;
• Improving the provision of health care, particularly for the poor, to
reduce infant, child and maternal mortality rates;
• Reducing the levels of crime and enhancing citizen safety;
• Expanding the built environment to improve public transportation and
meet universal access targets in housing, water, electricity and
sanitation; and
• Decreasing rural poverty by taking steps to raise rural incomes and
improve livelihoods by extending access to land and support for
emerging farmers.
PUBLIC SPENDING PRIORITIES
Enhancing the Quality of Education
Education is central to overcoming poverty and inequality. The MTBPS proposes additional funding for the sector through an upward adjustment to the provincial equitable share, to accommodate the extension of no-fee schools, and a further R4 billion to support the National School Nutritional Programme (NSNP). Government has also indicated it will step up funding for school infrastructure and enhance safety and security. A new conditional grant for the recapitalization of technical high schools is also envisaged.
The Committee agrees that attention should be given to quality teacher training. Greater attention should also be given to technical training to address the needs of the economy. Early Childhood Development (ECD) and adult education are further priorities. A co-ordinated approach to ECD is particularly significant as it provides an opportunity to reverse long-term trends in the sector. There is also an urgent need to address the backlogs in school infrastructure, including overcrowding and access to basic services such as water and sanitation, and to ensure that all funds allocated are effectively and efficiently utilised.
The Committee has taken note of challenges with specific education programmes, including disparities with the implementation of the no-fees policy and the NSNP. The Department of Education (DoE) should therefore develop and enforce specific guidelines to achieve better outcomes.
While progress has been recorded in expanding education opportunities, international comparisons confirm that the sector is under-performing, and that allocated resources are not producing the desired outcomes. As acknowledged in government’s Fifteen Year Review, “the quality of services leaves much to be desired….This has much to do with management and service culture in the actual units (schools and hospitals).”
Improving the Provision of Health Services
The health sector continues to face a number of acute challenges including access to primary health care and the fight against HIV/AIDS and Tuberculosis. Progress in reducing maternal and infant mortality has also been slow. As highlighted by the HSRC, around 60 per cent of maternal deaths are due to treatable diseases. A severe shortage of health professionals and inadequate infrastructure has compounded these difficulties. Funding for the health services currently accounts for 3.4 per cent of GDP and 11.8 per cent of consolidated government expenditure.
The MTBPS indicates that further resources will be made available for phased-in salary adjustments associated with the occupation-specific dispensation (OSD), as well as for new medicines and treatments. Additions to conditional grants total R1.8 billion over the next three years, mostly to support the HIV and AIDS grant and hospital revitalization. The Committee has taken account of various proposed reforms, including the establishment of a National Health Insurance System (NHI), which will require financial support and an effective implementation plan. The NHI will ensure that all citizens will have equitable access to health services and thereby promote socio-economic development.
While further financial support will be required to reinforce health services, emphasis must also be given to improving management, training and information systems within the sector. Salary adjustments must be accompanied by improvements in overall working conditions. Steps must also be taken to ensure that there is sufficient capacity to drive government’s HIV/AIDS programmes. Deficiencies with procurement, waste management and response times for emergency services are further concerns. All these matters will require dedicated attention. In overcoming these challenges, the Committee believes there is a need to identify best practices in better performing health facilities and replicate these throughout the sector.
Crime Prevention and Security
Departments in the justice and protection services have not worked together optimally to achieve their objectives. The Committee therefore welcomes the decision to revamp the criminal justice system as announced in 2008. This is expected to result in enhanced integration, co-operation and improved performance, although progress with this initiative should be carefully monitored.
To alleviate shortcomings in the police services, especially over visible policing and investigative capacity, an amount of R6.5 billion was allocated to Department of Safety and Security (DSS) over the medium-term. The MTBPS suggests that further support will be directed at increasing the number of specialized police personnel and improving information and management systems. Additional resources and more personnel should correspond to a marked decrease in the crime rate.
Delays in the adjudication process remain among the most serious constraints to the justice system. According to the 2008 Estimates of National Expenditure (ENE), the aim is to reduce the backlog in court cases by 5 per cent each year over the MTEF period. While the Committee has noted an improvement in financial management within the DoJCD, with a reduced level of under-expenditure in 2007/08 compared to previous years, further attention is needed to ensure that allocated funds translate into progressively improved performance. The linkages between the department’s strategic plan and budget may require further refinement in this respect. Overcrowding within the prison system has been a long-standing problem, which has negatively affected the ability of the Department of Correctional Service (DCS) to rehabilitate offenders. To alleviate overcrowding, the budget allocated an additional R2.9 billion to the DCS, mostly for the construction of prisons. The Committee finds it unacceptable that the construction of prisons, as previously announced in the State of the Nation Address in 2002, have yet to be completed. Furthermore, the six prisons as stated in the MTBPS do not appear to be new projects. Clarity must be provided by the Department.
Ultimately, the ability of the justice and protection services to achieve the desired outcomes depends, to a large extent, on the level of inter- departmental co-ordination and information sharing. This extends to departments such as Home Affairs, Transport and traffic enforcement in the case of events such as the 2010 Soccer World Cup.
The Committee believes that the performance of the justice and protection services should be closely scrutinized to ensure that Parliament is in a strong position to assess budget proposals against outputs and outcomes, and ultimately ensure value-for-money.
Expanding the Built Environment
Public infrastructure and capital investment are necessary for sustained growth, employment creation and the hosting of a successful 2010 World Cup. Much of the investment is earmarked for the built environment, specifically for low-cost housing, public transport, electrification programmes, health facilities, schools, water and sanitation. The Committee welcomes the fact that capital expenditure is set to reach 11 per cent growth by 2011/12. The MTBPS proposes additional funds for a number of key grants and programmes including R4.1 billion for the infrastructure grant to provinces and R4.3 billion to municipalities. As previously emphasised, it is critical that funds earmarked for national priorities such as bulk infrastructure are spent for their intended purposes.
The Committee supports the additional funds proposed in the MTBPS for housing and community development although it notes that the Department of Housing (DoH) has acknowledged that these resources will be insufficient to meet the target of eradicating informal settlements by 2014. As highlighted by the Committee in previous reports and underlined in the MTBPS, shortcomings in planning, capacity and intergovernmental co-ordination continue to hamper the delivery of quality houses.
Additional resources must be complemented by measures to improve administrative efficiency and reporting systems. All housing units should comply with the norms and standard as prescribed in the Breaking New Ground Strategy. Innovation and alternative construction methods are also needed to mitigate rising construction costs. The Committee has expressed concern that the DoH did not appear to have made provision for an allocation for the Housing Development Agency.
Efficient transport systems are pivotal for economic growth and the 2010 Soccer World Cup. The Committee welcomes the recognition by government that access to integrated public transport should be prioritized. Notwithstanding this, budgeting and organizational challenges such as vacancies, a shortage of technical skills and deficiencies in monitoring and co-ordination continue to pose challenges. The current allocation for taxi-recapitalization is insufficient and the Committee supports the position that this should be reviewed by the Department of Transport (DoT). Government needs to re-establish rail networks especially in rural areas. In addition, the process of shifting freight from road to rail should be accelerated as this will reduce both the costs of road maintenance and improve transport efficiency for rural and urban communities. The proposed allocation of funds in the MTBPS to upgrade ports should assist in improving logistics.
The Committee concurs with the recommendations of the Financial and Fiscal Commission (FFC), specifically that the process of classifying roads should be finalized, and that the location of the responsibility for the provision of learner transport should be clarified. The Committee has also identified serious deficiencies with the funding model for the Road Accident Fund (RAF). Urgent reform is needed to stabilize the fund before 2010.
Clean water and sanitation are essential for socio-economic upliftment. While considerable progress has been made in expanding water services and sanitation, the Committee believes that the departments of Water Affairs and Forestry (DWAF) and Education should work towards halving the number of schools and clinics without water. It is unacceptable that there is under- expenditure while there are still more than a thousand schools without access to safe water. It is incumbent on DWAF and other departments to ensure that no school or clinic is without toilets by the end of the first year of the MTEF.
Although the MTBPS has allocated an indicative R3.1 billion for bulk water infrastructure over the next three years, the Committee’s injunction to the respective departments is that they ensure integrated planning and co- ordination to ensure that these resources are effectively and efficiently used as planned.
In addition, the Committee remains concerned about the maintenance of public facilities, particularly schools, hospitals, police stations and correctional centres. Co-ordinated efforts are required between the Department of Public Works (DPW) and other departments and entities to address the evident challenges in this regard.
Rural Development and Agrarian Reform
Agrarian and land reform are integral to government’s rural development, poverty alleviation and food security strategies. As food security is vital the Committee urges that departmental capacity be increased and the vacancy rate be reduced. It is essential that resources are properly aligned and that post-settlement support is significantly improved so that the productivity of the agricultural sector can be increased. The Committee notes the new approach developed by the Department of Land Affairs (DoLA) to achieve an affordable and sustainable land reform which includes the development of new financial measures, human resource programmes and relevant products. The Committee urges the department to accelerate land redistribution and reform.
Industrial Development and Employment Creation Sustainable economic growth and industrial development is directly linked to a sustainable energy policy and strategies and is essential for government to accelerate employment creation and reduce poverty by 2014 and beyond. While the Committee largely agrees with the various industrial policy initiatives, the Committee urges government to ensure that such initiatives are balanced with the need to promote competitiveness and protect existing industries such as textiles and clothing industries. Government support must be carefully targeted and ultimately create sustainable industries.
The Committee welcomes the new phase of the Expanded Public Works Programme (EPWP) which is intended to develop and transfer skills and create longer- term employment. The implementation of this programme needs to be carefully monitored.
Accelerating skills development must be in alignment with the prescripts of a developmental state. Together with the financial support for EPWP and SETAS, attention should be given to refining the programmes, curricula and operations of these initiatives in order to meet market demands. The Committee has taken account of progress with the Joint Initiative on Priority Skills Development (JIPSA) and urges all social partners to invest in this initiative.
The State-Owned Enterprises (SOEs) are key partners in industrial development and the public infrastructure build programme. Despite the expanding role of the SOEs in the economy, the Committee maintains that there is a need to review these enterprises to enhance their contribution to the developmental state and ensure that state funds are effectively utilized. In particular, efforts are needed to ensure SOE projects are closely aligned with government’s priorities and that they are more closely monitored by the various oversight authorities.
RECOMMENDATIONS Based on its observations, the Committee recommends the following:
-
Co-ordinated and integrated planning is paramount. It is essential that national, provincial and local development plans are closely aligned. Such measures must be implemented both vertically, between the spheres of government, and horizontally, within and between clusters and departments. To ensure co-ordinated planning, government should consider setting cross-cutting performance indicators for the respective departments.
-
Further steps should be taken to ensure that funds allocated through equitable shares and the various grants are utilized for their intended purposes and fulfil national priorities.
-
The Committee previously called on departments and entities to ensure there is a stronger correlation between human resources plans and budgets, and to develop innovative recruitment and mentorship programmes, as well as measures to safeguard against the loss of institutional memory.
-
Government should prioritize training for specialized, managerial and administrative skills in the public service, for example, in education, health, trade and police services. In addition, government should reopen specialized institutions like nursing and teaching colleges.
-
Given the inadequate maintenance of many public facilities, government should enhance co-ordination and monitoring, especially between the Department of Public Works (DPW) and other departments and entities.
-
Further measures are required to address the evident weaknesses and lack of overall co-ordination in government procurement processes. For example, departments should procure certain services from local communities.
-
Noting the existing agreement between the departments of Health and Defence to make hospitals more accessible, the Committee recommends that this be expanded to provide emergency services.
-
The Department of Housing should provide a detailed plan on how it intends to eradicate informal settlements in specific areas.
-
The deficiencies in the funding model for the Road Accident Fund (RAF) should be urgently addressed. The Department of Transport should report to the Committee on measures taken and the timetable for implementation.
-
The departments of Water Affairs and Forestry, Education and Health should work together to halve the number of schools and clinics without access to safe water and sanitation by the end of the first year of the MTEF.
The Committee would like to thank the Public Service Commission and Human Science Research Council for their contribution. Finally, the Committee would like to extend its appreciation to all those who participated in the proceedings and contributed to the compilation of the report including the research team and secretariat.
Report to be considered.
“Annexure”: Submissions and Presentations
National Departments Agriculture Education Health Housing Land Affairs National Treasury Transport Water Affairs and Forestry
Research Organizations
Public Service Commission Human Science Research Council
Other Submissions
J Laubscher: Sanlam G Ballim: Standard Bank D Roodt: Efficient Group Federation of Unions of South Africa (FEDUSA) People’s Budget Campaign
MONDAY, 17 NOVEMBER 2008
COMMITTEE REPORTS
National Council of Provinces
- Report of the Select Committee on Security and Constitutional Affairs on the provisional suspension from office of Magistrate A Bacharam, dated 12 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the report on the provisional suspension from office of Magistrate A Bacharam tabled by the Minister for Justice and Constitutional Development in terms of section 13(3)(b) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
1. The Select Committee noted from the report tabled by the
Minister for Justice and Constitutional Development that the
Magistrates Commission resolved on 7 March 2008 to recommend
that Ms Bacharam be provisionally suspended from office in terms
of section 13(3)(a) of the Magistrates Act, 1993.
2. The Select Committee noted that Ms Bacharam has been criminally
charged for defeating or obstructing the Administration of
Justice. It is alleged that Ms Bacharam was charged for a
traffic offence and that she was summoned to appear in the
Scottburgh district court on 13 December 2005. She had an
option to pay an admission of guilty fine of R300-00 (three
hundred rand). On 27 October 2005 she was approached in her
office by the Sheriff for service of the summons. Instead of
accepting service of the summons she called an interpreter to
her office and requested her to accept service of the summons on
her behalf. The interpreter subsequently signed on the return of
service and left Ms Bacharam’s office. On 13 December 2005, the
date of trial, all traffic summonses were brought before Ms
Bacharam. She dealt with the cases, including her own. She
herself struck case no B7309/05 in which she was an accused,
from the roll. The case was thereafter filed. She did not pay
the admission of guilt fine.
3. A misconduct inquiry was set down by the Magistrates Commission
for 30 May 2008. Ms Bacharam’s representative requested a
postponement of the inquiry pending the finalization of the
criminal case against her.
4. The Select Committee was advised that the criminal matter stands
postponed until 20 November 2008.
5. In terms of section 13(3)(c) of the Magistrates Act, 1993,
Parliament must, as soon as is reasonably possible, pass a
resolution as to whether or not the provisional suspension of a
magistrate is confirmed.
6. The Select Committee therefore recommends that the Council
resolves to confirm the provisional suspension of Ms Bacharam in
terms of section 13(3)(c) of the Magistrates Act.
Report to be considered.
- Report of the Select Committee on Security and Constitutional Affairs on the suspension/removal from office of Magistrate X I R Masimini, dated 12 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the report on the suspension/removal from office of Magistrate X I R Masimini tabled by the Minister for Justice and Constitutional Development in terms of section 13(4)(a) of the Magistrates Act, 1993 (Act no 90 of 1993), reports as follows:
7. The Select Committee noted from the report tabled by the
Minister for Justice and Constitutional Development that the
Magistrates Commission resolved on 7 March 2008 to recommend
that Mr Masimini be removed from office on the ground of
misconduct.
8. The Select Committee noted that Mr Masimini was convicted in a
court of law of assault with the intent to do grievous bodily
harm emanating from an incident at a tavern in the district of
Ezibeleni. He assaulted a woman by pulling her by her hair and
hitting her with a glass tumbler on her chin, causing an open
wound.
9. The Select Committee further noted that Mr Masimini made a false
or incorrect statement, when on 1 November 2006 he applied for
an appointment to the Regional Court Bench, by failing to
disclose in his application that there was a criminal case
pending against him and that he had appeared as an accused in a
court of law.
10. The Select Committee was advised that Mr Masimini was on a
previous occasion found guilty of misconduct on three (3) counts
in that he had used “foul and/or injudicious language in court”,
that the Minister for Justice and Constitutional Development
suspended Mr Masimini from office and that Mr Masimini’s
remuneration has been withheld.
11. The Magistrates Commission resolved to recommend that Mr
Masimini be removed from office in terms of section 13(4)(a)(i)
of the Magistrates Act.
12. In terms of section 13(4)(c) of the Magistrates Act, 1993,
Parliament must, as soon as is reasonably possible, pass a
resolution as to whether or not the restoration to his or her
office of a magistrate so suspended is recommended.
13. The Select Committee therefore recommends that the Council
resolves to pass a resolution not to restore Mr Masimini to the
office as a Magistrate in terms of section 13(4)(c) of the
Magistrates Act, 1993.
Report to be considered.
-
Report of the Select Committee on Security and Constitutional Affairs on the South African Police Service Amendment Bill [B30B- 2008 (Reprint)] (National Assembly – sec 75), dated 17 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the South African Police Service Amendment Bill [B30B- 2008 (Reprint)] (National Assembly – sec 75), referred to it, reports the Bill with proposed amendments, as follows:
CLAUSE 3
1. On page 4, from line 45, to omit subclause (3) and to substitute
the following:
“(3) The Head of the Directorate may, if he or she has reason to
suspect that a national priority offence has been or is being
committed, request the National Director of Public Prosecutions to
designate a Director of Public Prosecutions to exercise the powers
of section 28 of the National Prosecuting Authority Act, 1998 (Act
No. 32 of 1998).
(4) For purposes of sub-section (3), a Director of Public
Prosecutions so designated, shall be deemed to be an Investigating
Director, as referred to in section 1 of the National Prosecuting
Authority Act, 1998.
(5) A Director of Public Prosecutions referred to in sub-
section (3) may designate a member of the Directorate to conduct
the investigation or part thereof, on his or her behalf and report
to him or her.”.
2. On page 5, from line 33, to omit “, and family members living in
the same household with”.
3. On page 6, in line 52, after “necessary”, to insert “, but not less
than four times annually”.
4. On page 7, in line 27, after “functions” to insert “, but not less
than four times annually”.
CLAUSE 6
1. On page 10, in line 4, to omit “(2)” and to substitute “(3)”.
2. On page 10, in line 6, to omit “(3)” and to substitute “(4)(b)”.
-
First Report of the Select Committee on Security and Constitutional Affairs on the National Prosecuting Authority Amendment Bill [B 23B - 2008] (National Assembly – sec 75), dated 17 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the National Prosecuting Authority Amendment Bill [B23B- 2008] (National Assembly – sec 75) referred to it, reports the Bill with proposed amendments as follows:
CLAUSE 1
On page 2, from line 12, to omit subclause (c) and to substitute:
(c) by the substitution for the definition of
"Investigating Director" of the following definition:
" 'Investigating Director'[—
(a)] means a Director of Public Prosecutions appointed
under section 13(1)[(aA) or] (b)[—
(i) to the Directorate of Special Operations; or
(ii)] as the head of an Investigating Directorate
established in terms of section 7(1) [(1A) ,
as the case may be; and
(b) in Chapter 5, includes the head of the Directorate of Special Operations];";
2. On page 3, in line 4, to omit "section 7(1A)" and to substitute "section 7(1)".
CLAUSE 3
1. On page 3, in lines 33 and 34, to omit "establish not more
than two [additional]" and to substitute "establish [not
more than two additional] one or more".
CLAUSE 8
Clause rejected.
CLAUSE 11
1. On page 5, in line 33, to omit "amended by the deletion of
subsection (2)." and to substitute:
amended—
(a) by the substitution for the words preceding paragraph
(a) of subsection (2) of the following words:
"The Minister may[, subject to subsection (2),] make
regulations prescribing―"; and
(b) by the deletion of subsection (2).
CLAUSE 13
1. On page 6, in line 18, to omit "(1)" and to substitute "(2)".
-
Second Report of the Select Committee on Security and Constitutional Affairs on the National Prosecuting Authority Amendment Bill [B 23B - 2008] (National Assembly – sec 75), dated 17 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the National Prosecuting Authority Amendment Bill [B23B- 2008] (National Assembly – sec 75) referred to it, and having proposed amendments thereto, recommends as follows:
The relevant Departments must report back to Parliament regarding transitional arrangements. Where there are challenges, the Committee will recommend that additional resources be given to the new unit to conduct its functions effectively. The Officials of the relevant Departments must also report back on the reskilling and retraining of new members of the Directorate of Priority Crimes Investigating Unit with regard to basic South African Police Service training.
Report to be considered.
TUESDAY, 18 NOVEMBER 2008
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Bills passed by Houses – to be submitted to President for assent
1) Bill passed by National Assembly on 18 November 2008:
a) Intellectual Property Rights from Publicly Financed Research
and Development Bill [B 46D – 2008] (National Assembly – sec
75).
TABLINGS
National Assembly and National Council of Provinces
- The Minister of Arts and Culture
a) Report and Financial Statements of Vote 13 – Department of Arts and
Culture for 2007-2008, including the Report of the Auditor-General
on the Financial Statements and Performance Information of Vote 13
for 2007-2008.
- The Minister of Water Affairs and Forestry
a) Report and Financial Statements of Amatola Water for the year ended
30 June 2008, including the Report of the Independent Auditors on
the Financial Statements for the year ended 30 June 2008.
b) Report and Financial Statements of Umgeni Water for the year ended
30 June 2008, including the Report of the Independent Auditors on
the Financial Statements for the year ended 30 June 2008.
National Council of Provinces
- The Chairperson
a) Reports on notices issued in terms of section 106 of the Local
Government: Municipal Systems Act, 2000 (Act No 32 of 2000) in the
Pixley Ka Seme Local Municipality; Lekwa Local Municipality and
Nkomazi Local Municipality.
Referred to the Select Committee on Local Government and
Administration for consideration.
COMMITTEE REPORTS
National Council of Provinces
-
Report of the Select Committee on Security and Constitutional Affairs on the Criminal Procedure Amendment Bill [B42B – 2008] (National Assembly – sec 75), dated 18 November 2008. The Select Committee on Security and Constitutional Affairs, having considered the Criminal Procedure Amendment Bill [B42B -2008] (National Assembly – sec 75) referred to it, reports the Bill with proposed amendments as follows:
LONG TITLE -
On page 2, in the seventh line, to omit “exungment” and to substitute “expungement”.
CLAUSE 3 -
On page 5, in line 17, to omit “paragraphs (b) and (c)” and to substitute “paragraph (b)”.
-
On page 5, from line 52, to omit paragraph (c).
- On page 6, in line 3, after “(2)”, to insert “(a)”.
-
On page 6, in line 8, after “(1)”, to insert: “, unless the Director-General is of the view that the expungement of a particular criminal record could bring the administration of justice into disrepute or would not be in the interests of justice, in which case he or she must refer the matter, together with his or her reasons, to the Minister for a decision. (b) The Minister must, on receipt of a matter referred to him or her by the Director-General as provided for in paragraph (a), issue a certificate of expungement, directing that the criminal record in question be expunged, if he or she is satisfied that the expungement of the criminal record would not bring the administration of justice into disrepute or would be in the interests of justice.”.
-
On page 7, in line 41, to omit “271B(2)” and to substitute “271B(2)(a)”.
- On page 7, in line 42, after “section”, to insert “271B(2)(b) or section”. WEDNESDAY, 19 NOVEMBER 2008
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Bills passed by Houses – to be submitted to President for assent
(1) Bills passed by National Assembly and National Council of
Provinces on 19 November 2008:
(a) Mandating Procedures of Provinces Bill [B 8F – 2007] (National
Council of Provinces – sec 76(2)).
2) Bill passed by National Assembly on 20 August 2008:
a) Constitution Fifteenth Amendment Bill [B 63B – 2008] (National
Assembly – sec 74).
3) Bills passed by National Assembly on 19 November 2008:
a) Child Justice Bill [B 49D – 2002] (National Assembly – sec
75), with textual corrections (see Minutes of Proceedings of
National Assembly, 19 November 2008).
b) Broadcasting Amendment Bill [B 72B – 2008] (National Assembly
– sec 75).
c) Companies Bill [B 61D – 2008] (National Assembly – sec 75).
d) National Environmental Management Amendment Bill [B 36D –
2007] (National Assembly – sec 76(1)).
e) Medicines and Related Substances Amendment Bill [B 44D – 2008]
(National Assembly – sec 75).
f) Tobacco Products Control Amendment Bill [B 7D – 2008]
(National Assembly – sec 76(1)).
g) Prevention of and Treatment for Substance Abuse Bill [B 12D –
2008] (National Assembly – sec 76(1)).
h) National Qualifications Framework Bill [B 33D – 2008]
(National Assembly – sec 76(1)).
i) General and Further Education and Training Quality Assurance
Amendment Bill [B 35D – 2008] (National Assembly – sec 76(1)).
4) Bills passed by National Council of Provinces on 19 November 2008:
a) Constitution Fourteenth Amendment Bill [B 62B – 2008]
(National Assembly – sec 74).
b) General Laws (Loss of Membership of National Assembly,
Provincial Legislature or Municipal Council) Amendment Bill [B
64B – 2008] (National Assembly – sec 75).
c) National Road Traffic Amendment Bill [B 39B – 2008] (National
Assembly – sec 75).
- Withdrawal of Bill
The Minister for the Public Service and Administration withdrew the
following Bill on 11 November 2008:
(a) Public Administration Management Bill [B 47 – 2008] (National
Assembly – sec 76(1)).
National Council of Provinces
The Chairperson
- Message from National Assembly to National Council of Provinces in respect of Bills passed by Assembly and transmitted to Council
(1) Bill passed by National Assembly and transmitted for concurrence
on 19 November 2008:
(a) Civil Aviation Bill [B 73B – 2008] (National Assembly –
sec 75).
The Bill has been referred to the Select Committee on Public
Services of the National Council of Provinces.
TABLINGS
National Assembly and National Council of Provinces
-
The Minister of Education
(a) Revised Strategic Plan of the Department of Education for 2008- 2012 and the Operational Plans of the Department of Education for 2008/9.
National Council of Provinces
-
The Chairperson
a) Tabling of the correspondence from Mr D Rikhotso and his co-workers from Limpopo Province. Referred to the Select Committee on Members’ Legislative Proposals.
COMMITTEE REPORTS
National Council of Provinces
- Report of the Select Committee on Security and Constitutional Affairs on the Judicial Matters Amendment Bill [B 48B-2008] (National Assembly), dated 18 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the Judicial Matters Amendment Bill [B48B -2008] (National Assembly – sec 75) referred to it, reports that it agrees to the Bill.
The Committee, however, wishes to make the following comments:
The Committee recognises that the Bill is intended to address a whole range of practical issues in the administration of justice, which will, among others, enhance – (a) access to justice; (b) organisational efficiency; and (c) the transformation of justice services.
Although the Committee raised a number of questions and concerns, it was of the view that the Bill should be enacted and implemented as soon as possible because of the positive aspects contained in it.
The Committee therefore requests the Department of Justice and Constitutional Development to report back to it within one year after the adoption of this report by the House on the following aspects/concerns of the Bill which were raised during its deliberations on the Bill:
(a) Clause 1: Concealment of birth: Although this provision, requiring, among others, that there must be a lawful burial order before a newly born child’s body can be disposed of, has been on the Statute Book since 1935, the Department is requested to investigate and report back on how this provision could impact on certain customary law practices in terms of which the bodies of newly born children are, in certain circumstances, disposed of, might seem to amount to the concealment of birth of a newly born child. The law must take these practices into account so as to ensure that criminal charges and prosecutions are only brought where there is an unlawful intention to conceal the birth of a child. (b) Clauses 5 to 8, 17 and 39: Admission of guilt fines: The Department must, during the implementation of these provisions, consult with other stakeholders, for instance the Department of Transport in respect of road traffic offences and the provincial and local spheres of government to ensure that there is no conflict in what these various stakeholders are striving to achieve in implementing their respective policies. (c) Clause 9: Amendment of section 60 of the Criminal Procedure Act, 1977: Payment of bail money: The Committee requests the Department to explore other methods of payment of bail money so as to ensure that the latest technology is used to its full potential, for instance payment of bail money by means of credit cards. Every effort must be made to ensure that cash payments are used only where necessary. (d) Clause 18: Amendment of section 18 of the Matrimonial Property Act, 1984: The Department is requested to investigate and report back on how the law in this regard could impact negatively on children who might be deprived of benefits accruing to them from their parents’ estates as a result of their parents’ litigation. The impact of the law in this regard on spouses in terms of customary law must also be investigated and reported on. (e) Clauses 23 to 26: Amendments to the Debt Collectors Act, 1998: The Committee raised a general concern that persons who land themselves in debt often have to pay enormous amounts of interest when repaying their debts. The Department is requested to report back on how the Debt Collectors Act is intended to address this problem and whether its provisions are adequate in this regard, and if not, what further measures can be put in place to ensure that the Act achieves its goals. (f) Clause 36: Amendment of section 42 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007: While the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, correctly singles out sexual offences committed against children and mentally disabled persons, providing for the particulars of perpetrators to be included in the National Register for Sex Offenders, it would seem as if sexual offences against elderly persons and infirm persons do not seem to receive the same attention. The Department is requested to revert to the Committee on this aspect.
-
Report of the Select Committee on Security and Constitutional Affairs on the Draft Rules of Procedure for Applications to Court in terms of the Promotion of Access to Information Act, 2000 (Act No 2 of 2000), dated 18 November 2008:
The Select Committee on Security and Constitutional Affairs, having considered the Draft Rules of Procedure for Applications to Court in terms of the Promotion of Access to Information Act, 2000 (Act No 2 of 2000), referred to the Committee (Announcements, Tablings and Committee Reports, 7 April 2008, p 537), recommends that the Draft Rules be approved. The Committee, however, wishes to make the following additional comments:
These Rules have been outstanding for some time and the Committee finds this regrettable, as the absence of these Rules impacts on the effective implementation of the Promotion of Access to Information Act; an Act which lies at the heart of our constitutional democracy.
The Committee is also of the view that the consultation process between the Rules Board and various stakeholders could have been more comprehensive. For that reason, the Committee will forward the 4 submissions received (from ODAC, the South African Human Rights Commission, Eskom and the South African History Archive) to the Rules Board for its attention.
Given the importance of these Rules and the issues raised in the various submissions, the Committee requires that the Rules Board consider the submissions, review the content and implementation of the Rules and report back to the Committee within 6 months of the new term of Parliament in 2009.
On the procedure to be followed by the Rules Board for the amendment or approval of any Rules, the Committee would suggest that any discussions or consultation around new Rules or amendments to existing Rules should take place at an earlier stage. In other words, that the Rules Board should ideally consult various roleplayers and reach agreement with the Minister of Justice and Constitutional Development before formally submitting the Rules to the Minister for approval. It would also make sense if, in future, the Committee was provided with the opportunity to comment, albeit informally, before any amendments to the Rules are tabled in Parliament for approval.
Report to be considered.