National Council of Provinces - 18 February 2009
WEDNESDAY, 18 FEBRUARY 2009 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:05.
The Deputy 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.
NEW MEMBER
(Announcement)
The DEPUTY CHAIRPERSON OF THE NCOP (Ms P M Hollander): Hon members, I would like to take this opportunity to welcome hon K B Toni, who was sworn in as a member of the NCOP today. Hon member, you are welcome in the NCOP and I wish you all the best in your work. He is a new member from the UDM.
NO NOTICES OF MOTION AND MOTIONS WITHOUT NOTICE
The DEPUTY CHAIRPERSON OF THE NCOP: (Ms P M Hollander): I have been informed that the Whippery have agreed that there will be no notices of motion or motions without notice today, except the motions without notice from the Chief Whip of the Council.
PRECEDENCE GIVEN TO ORDERS 1 AND 2 UNDER “FURTHER BUSINESS”
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:
That precedence be given to Orders 1 and 2 under “Further Business” and that the Orders become Orders No 3 and 4, respectively.
Motion agreed to in accordance with section 65 of the Constitution.
SUSPENSION OF RULE 239(1)
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice -
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 Reform of Customary Law of Succession and Regulation of Related Matters Bill [B 10D – 2008] (National Assembly – sec 76(1)).
Motion agreed to in accordance with section 65 of the Constitution.
FINANCIAL MANAGEMENT OF PARLIAMENT BILL
(Consideration of Bill and of Report of thereon)
Mr T S RALANE: Deputy Chairperson and colleagues, the Financial Management of Parliament Bill is one of those Bills that have taken almost three years to be brought to this House. The task team that spearheaded the co- operative work of this Bill engaged in several bilateral and trilateral engagements, negotiations and renegotiations and many hours of committee meetings before this Bill could take shape.
Although one item of this Bill that deserves special attention is the treatment of unspent funds, the Bill permits Parliament to retain unspent funds. The rationale for this peculiar treatment of unspent funds is that Parliament is a separate institution; it is distinct from the executive and judiciary and appropriate checks and balances are in place to ensure accountability, responsiveness and openness.
The pertinent issue, however, is that this treatment of unspent funds becomes a disguised attempt to underspend. This House, the NCOP, is particularly vigilant in respect of municipalities and provinces. Underspending, the outcome of which is no service delivery, is a practice that this Parliament has unequivocally condemned. Parliament is excluded from the provisions of the Public Finance Management Act, PFMA, of 1999. Although there is an agreement between National Treasury and Parliament on the retention of unspent funds, these retentions violate the key provisions of the PFMA.
The PFMA is the hallmark of governance in this country and must always be upheld by the South African government. In this light, the Select Committee on Finance appeals to the Fourth Parliament to re-examine the treatment of unspent funds in this Bill. The Select Committee on Finance appeals to the members of this House to pass this Bill with its amendments. Thank you. [Applause.]
Debate concluded.
Question put: That the Bill be agreed to.
IN FAVOUR: Eastern Cape, Free State, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
ABSTAIN: Gauteng, KwaZulu-Natal. Bill accordingly agreed to in accordance with section 65 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - DRAFT RULES OF PROCEDURE FOR APPLICATIONS TO COURT IN TERMS OF PROMOTION OF ACCESS TO INFORMATION ACT
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS - REVISED DRAFT RULES OF PROCEDURE FOR JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN TERMS OF SECTION 7(3) OF THE PROMOTION OF ADMINISTRATION OF JUSTICE ACT (ACT NO 3 OF 2000)
Dr F J VAN HEERDEN: Madam Chair, for the information of members, I’ve got 20 minutes and I’ve brought a lot of documentation. I will keep you busy for my full 20 minutes and I will do my election speech today. [Laughter.]
The Select Committee on Security and Constitutional Affairs considered the Revised Draft Rules of Procedure for Judicial Review of Administrative Action in terms of section 7(3) of the Promotion of Administration of Justice Act. [Interjections.] That is actually number three; you will allow me to start with number three or I can switch around. I can do number two. Let me rather start and do the other one. There is some confusion here on Promotion of Access to Information Act of 2000. I would rather do that one and then get back to the other one. The Select Committee on Security and Constitutional Affairs, regarding the Revised Draft Rules of Procedure for Judicial Review of Administrative Action in terms of section 7(3) of the Promotion of Administration of Justice Act of 2000, recommends the Revised Draft Rules to Parliament for approval. Before we finally recommend this, I want to make some comments: The finalisation of these rules, again – the Act is from 2000 - is also long overdue. It is now nine years later and the committee would like to thank the Minister for Justice as well as the Rules Board for finally getting these rules in place. It is very important to have these rules in place.
Another comment is that should the process of the judicial review of administrative action not be running as expected, particularly for the less advantaged members of society, or being maybe too burdensome on the state, the rules would need to be amended. The committee, therefore, requests that the Minister review the implementation of these rules within 24 months of approval by Parliament and report back to this House on the implementation and any amendments that may be necessary.
These rules are, to a certain extent, very complex. The committee also recommends that the department ensure that the mechanisms are put in place to assist members of the public in making use of them. These are the rules and what the department did, which is quite commendable, is that they sent a couple of forms to be completed by members of the public. It does however remain a very complex exercise. The forms are complex and I think we can assist by putting something in place to assist members of the community to complete these forms.
In conclusion, I want to point out the two differences. The one is the Promotion of Access to Information Act and the other is the Promotion of Administration of Justice Act. If anybody would like to have certain information from the state they can use this particular one, the Promotion of Access to Information Act, and also, if they require certain information from individual businesses and so on, there are certain procedures - from the Promotion of Administration of Justice Act. If a government institution, for instance, turns down an application for a permit or a licence, instead of going through the burdensome process of court actions - lawyers would not mind to do that by the way - they can make use of this short-cut process. It does not, fortunately, exclude the possibility of going to court, should there be some hiccups along the line, but the committee recommends the approval of both sets of the rules. I thank you. [Applause.]
Debate concluded.
Question put: That the Reports be adopted.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape. Report on Draft Rules of Procedure for Applications to Court in terms of Promotion of Access to Information Act accordingly adopted in accordance with section 65 of the Constitution.
Report on Revised Draft Rules of Procedure for Judicial Review of Administrative Action in terms of section 7(3) of the Promotion of Administration of Justice Act (Act No 3 of 2000) accordingly adopted in accordance with section 65 of the Constitution.
REFORM OF CUSTOMARY LAW OF SUCCESSION AND REGULATION OF RELATED MATTERS BILL
(Consideration of Bill and of Report thereon)
Kgoshi M L MOKOENA: Chairperson and members, the Bill before us is a very delicate one. There was a judgment in our High Court where it was declared that never again would, if Sogoni passed on, people, other than his wife and children, like his brother, uncles, etc inherit from his estate. It has been changed to state that if he happens to pass on, the estate would go to the wife and children. They will share equally in terms of the percentage that is given in terms of the law.
This Bill also deals with men who are irresponsible. When you pass on, all the children who are born out of wedlock – illegitimate children – are entitled to inherit from your estate, regardless of whether you were married to their mother or not. That is the gist of this Bill.
We are now looking to this Bill to say that gone are the days when children had to suffer, even though the father was well-to-do, a Member of Parliament, a doctor, or a police officer somewhere. If you pass on now, all your children will be able to inherit from your estate.
We are bringing about some amendments to the Bill with the following effect: The definition of descendent in terms of the Bill was so cumbersome and ambiguous; it stated that if there is a child who is staying with you, or any person who stays with you, and was depending on you for survival, if you pass on, automatically this person will also inherit. So, according to us, that was out of order. Therefore, we made an amendment to say that person will only inherit if you have accepted and informed everybody that this person must also inherit in terms of the customary practices, not just automatically.
Again, there is a provision which says that the Master can only direct the magistrates to deal with any dispute that affects customary practices when it deals with inheritance. We are saying that the customary practices and the custodians thereof are traditional leaders. The amendment we are bringing is that the master can direct the magistrate or a traditional leader when need be to deal with the enquiry.
As a committee, we were faced with some serious challenges and we proposed that some of the things must be referred to the departments, the Minister and the law commission, such as the following: Let’s take a case where Sogoni’s brother passes on – with due respect, my brother. In terms of our culture and practices, Sogoni must go and take over his brother’s family, and look after them, which is called “ukungena”. According to that culture, his brother’s children are now his children - I hope you understand what I mean – and everything, even the family. The question is, in terms of this legislation, if, unfortunately – sorry to use his example, I know he won’t be offended by this – he passes on, are his brother’s children and his own going to inherit equally? That’s the question that cannot be answered by the committee, the Ministry and the department. Hence, the matter will be referred back to the law commission and the departments to avoid double- dipping. The children must all inherit from their biological parents.
Secondly, what happens if there are children who are not known by the family? If it happens that Sulliman passes on and, after his death, children come who claim to be his and claim to be entitled to inherit from his estate, what must happen then? Must his body be exhumed to prove that these are his children or what should happen? That cannot be answered by the department, but can be referred back to the law commission and the department.
Thirdly, here is a traditional leader who happens to be female with no male figure in the family to take over. In our customary practices, this female traditional leader will have to marry a candle-wife, who will bear a child for the family. After the marriage, according to our practice, someone will be identified within the family to plant a seed in this new “makoti” [bride]. As you know, it’s practice or norm everywhere that one of the family members will whisper to the child “By the way, here is your father”. If that particular father passes on, can the children claim to inherit from that biological father, or must the child claim from this traditional leader who happens to be a woman? In terms of our practices, the person who must look after this child who was born out of that arrangement is this traditional leader, but the child will know that his father is Bhuda – ubhuti Tau. What will now happen? [Laughter.]
Again, let’s look at the scenario of two women who had children from their previous relationships. For some reason, they got bored with their respective marriages; they changed and got married in terms of same-sex marriage and are staying together with their children. What is going to happen when one partner passes on? Are these children entitled to inherit from the remaining partner, or must they still inherit from their biological fathers from the previous marriage? That question cannot be answered by us in this Parliament, but we are referring this to the law commission again to ask them to look into it.
The other scenario is as follows: Dikeledi and I are married and she is rich; and she does not have a child of her own. I’m coming to her with my own baggage of kids, and we are staying together as a married couple. She passes on. Because we were married, are my children entitled to inherit from her estate? That question cannot be answered by us, but the matter has to be referred to the law commission and the department.
These are serious debates that took us some months as a committee. Hence, we effected some amendments and, at the same time, we are saying that these are the issues that must be answered by some people somewhere. Hence, we are recommending that they must consult people who know some of these practices.
Because of time constraints, because I know that my time is up, I am unable to give you more examples. We are coming to this august Chamber to request that you accept this Bill with its amendments. At the same time, if you go through our report, you will see that we are raising serious issues to say that some of these questions that we are raising here cannot be answered. For instance, on the question of “ukungena”, Mrs Nyanda was arguing very strongly to say that - she likes “ukungena” - as African people there is no way that we can avoid it, because it’s normal practice in our culture. Therefore, we are here humbly asking you to accept our Bill with all its amendments and requests. I submit. [Applause.]
Debate concluded.
Question put: That the Bill be agreed to.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Bill accordingly agreed to in accordance with section 65 of the Constitution.
The Council adjourned at 14:43. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
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 February 2009:
a) Competition Amendment Bill [B 31D – 2008] (National Assembly – sec 75). b) National Environment Laws Amendment Bill [B 66D – 2008] (National Assembly – sec 76(1)). -
Membership of Committees
a) Mr M Johnson and Ms N F Mazibuko have been elected as Co- Chairpersons of the Ad Hoc Joint Committee for the Appointment of Members to the National Youth Development Agency Board with effect from 17 February 2009.
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) Bills passed by National Assembly and transmitted for
concurrence on 18 February 2009:
(a) Constitution Sixteenth Amendment Bill [B 1 – 2009]
(National Assembly – sec 74).
The Bill has been referred to the Select Committee on Security
and Constitutional Affairs of the National Council of
Provinces.
(b) Cross-boundary Municipalities Laws Repeal and Related
Matters Amendment Bill [B 3B – 2009] (National Assembly – sec
75).
The Bill has been referred to the Select Committee on Local
Government and Administration of the National Council of
Provinces.
- Membership of Council
a) The vacancy which occurred in the National Council of Provinces
owing to the resignation of Mrs A N D Qikane on 6 January 2009, has
been filled with effect from 13 February 2009 by the nomination of
Mr K B Toni.
b) The vacancy which occurred in the National Council of Provinces
owing to the resignation of Ms B L Ntembe on 19 January 2009, has
been filled with effect from 9 February 2009 by the nomination of
Mr J J Mcgluwa.
TABLINGS
National Assembly and National Council of Provinces
-
The Minister of Social Development
a) Regulations made in terms of the Children’s Act, 2005 (Act No 38 of 2005), submitted in terms of section 3(3) of the Act for approval by the National Council of Provinces.
COMMITTEE REPORTS National Assembly and National Council of Provinces
CREDA INSERT REPORT - T090218e–insert1 – PAGES 431-447
National Council of Provinces
-
Second Report of the Select Committee on Security and Constitutional Affairs on the Reform of Customary Law of Succession and Regulation of Related Matters Bill [B10B – 2008] (National Assembly – sec 76), dated 17 February 2009:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Reform of Customary Law of Succession and Regulation of Related Matter Bill [B10B -2008] (National Assembly – sec 76) referred to it, and having amended the Bill, reports as follows:
- The Committee requests the Minister to direct that either the Department of Justice and Constitutional Development or the South African Law Reform Commission or both, conduct further research into the issues mentioned below and to report back to it within six months of the adoption of this report with appropriate legislative measures for consideration by the Committee, where appropriate. The Department/South African Law Reform Commission must, when undertaking the envisaged research, as far as is practicable, consult with traditional communities and traditional leaders. The research required relates to the following practical examples cited by the Committee. The outcome of the research must, where relevant, in each of the examples –
(a) indicate the lines of intestate succession in the examples cited; (b) whether these examples find application in customary law and, if so, confirmation whether the Bill, as adopted by this Committee, adequately makes provision for them and, if not, provide legislative proposals to address them: (i) The question of “marriages from the grave” which are known in some traditional communities. (ii) In the case of two brothers who have children, where the one brother dies and the surviving brother takes on the responsibility of the deceased brother’s children, do the deceased brother’s children qualify to inherit from the estate of the surviving brother to the same extent as the children of the surviving brother? iii) What is the situation in the case of children who are not fathered by the deceased but who are accepted by him before he dies? Are they regarded as the deceased’s descendants and can they inherit along with his own descendants? (iv) What is the situation where a child who is not the biological child of a person but who is accepted by the deceased as his or her own child before his or her death and the child decides to revert to the surname of his or her biological father or decides to go back to his or her biological father? (v) How does customary law deal with children who no one knew about and who unexpectedly turn up after a person’s death, claiming that they are the biological children of the deceased? Who bears the burden of proving that they are indeed the children of the deceased in terms of customary law? (vi) What is the situation of two women who were in customary marriages, who have children and who enter into same sex unions? What is the legal position of the children of these relationships? From whom are they entitled to inherit? (vii) What is the position of children from a previous relationship who are accepted by the new spouse of their one parent? Can they, in terms of customary law, inherit from the deceased estate of their parent’s new spouse (Step parent)? (viii) What is the position of children who are borne on behalf of a female traditional leader by another woman who is impregnated by a secret father identified by senior members of the royal family in question? From whom are they entitled to inherit in terms of customary law? -
The Committee further requests the Department or South African Law Reform Commission to investigate the following issues: (i) What the effect of the amendment proposed by the Committee, which narrows the definition of “descendant” in clause 1 of the Bill, will be on customary law, if any. (ii) The existence of customary practices in terms of which married daughters are precluded from inheriting from the fathers’ deceased estates on the grounds that they have already benefitted from lobola which was paid for them and the constitutionality of such practices. (iii) The existence or not of adoption in terms of customary law and whether the Bill should cater specifically for this or whether the Bill as amended by the Committee in clause 1 (the amendment to the definition of “descendant”) addresses the concept of adoption in terms of customary law. (iv) The manner in which extra-marital children generally are dealt with and regarded in terms of customary law and whether the Bill adequately takes care of all such children.
Report to be considered.