National Council of Provinces - 31 August 2010
TUESDAY, 31 AUGUST 2010 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:02.
The House Chairperson (Mr R J Tau) 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
The ACTING CHIEF WHIP OF THE COUNCIL (Mr S S Mazosiwe): House Chairperson, I would like to inform the House that at the next sitting of the Council I shall move:
That the Council -
1) notes that September 12th marks the 33rd year since the death of
distinguished anti-apartheid activist and outstanding young anti-
apartheid revolutionary Steven Bantubonke Biko;
2) further notes that Steven Bantubonke Biko was arrested under
apartheid anti-terrorism legislation by the apartheid regime and
brutally beaten into a coma during interrogation while in
shackles before being transported hundreds of kilometers from
Port Elizabeth to Pretoria where he later died;
3) acknowledges the profound thoughts and the immense contribution
that Biko and the rest of his militant generation of the 1970s,
including Teboho "Tsietsi" Macdonald Mashinini, Hector Pieterson
and many more, made in the fight for freedom in South Africa; and
4) takes this opportunity to join the people of South Africa to pay
homage to this great stalwart and outstanding leader of our
people who stood firm in his resolve and determination to fight
for the liberation of our people from the brutality and
dehumanisation that they endured from the apartheid regime and
its vicious forces.
Mr D A WORTH: Chairperson, at the next sitting of the Council I will move:
That the Council –
1) notes that the illegally dumped medical waste at five different
sites in the Welkom, Matjhabeng-area in the Free State have still
not been removed and disposed of;
2) further notes that the final date for removal of the medical waste
is the end of this month, August 2010;
3) recognises that there are still nine million tons of waste which
have to be removed and that it is unlikely that this date will be
complied with; and
4) deplores the situation in the strongest terms as this waste poses a
health risk and requests the Department of Water and Environmental
Affairs to ensure that this matter is speedily resolved.
Mr D B FELDMAN: Chairperson, I hereby give notice on behalf of Cope that I shall move:
That the Council debates the statement by the South African Communist Party that government should impose a moratorium on all salary and benefit increases for Ministers, as the gap between the lowest and highest paid had ballooned out of proportion.
Mr M W MAKHUBELA: Chairperson, I hereby give notice on behalf of Cope that at the next sitting of the Council I shall move: That the Council debates the economic and political implications of South Africa’s determination to become a member of Bric so as to achieve significant support for optimal beneficiation of our ores and minerals.
Mr R A LEES: Chairperson, on behalf of the DA, I hereby give notice that I will move the following motion at the next meeting of the House:
That the Council –
1) notes with concern the closure of 85 factories that employ
approximately 8 000 people who in turn sustain about 40 000 people
and were established by Chinese investors mainly in the globally
competitive textile industry, which has largely collapsed in South
Africa as a result of strong foreign competition;
2) also notes that these closures are a direct result of the imposition
of minimum wage rates imposed against the wishes of many of the
affected employees;
3) further notes the devastating impact upon thousands of the most
vulnerable people in the Newcastle district that the permanent
closures of these factories will have; and
4) therefore calls on the Minister of Labour to intervene without
further delay to ensure that a solution is found whereby the
thousands of jobs under threat will be saved and the people of
Newcastle will be saved any further suffering as a result of the
loss of their jobs.
Mr A WATSON: Chairperson, on behalf of the DA I hereby give notice that at the next sitting of the Council I shall move:
That the Council –
1) notes with sadness the brutal murder of the parents of 18-year-old
Zhaida Makda in Standerton, Mpumalanga, allegedly orchestrated by
the very same Zhaida Makda;
2) further notes that Zhaida Makda admitted in court on 31 August 2010
that he contracted the two alleged killers to murder his parents in
return for a large sum of money which he hoped to inherit after
their death;
3) also notes that the two alleged murderers fled in the family car
which they overturned 15 km out of town, killing one of the alleged
murderers and landing the other in hospital in a critical condition;
and
4) acknowledges that this incident is a further manifestation of the
lawlessness and utter greed for money that has become emblematic of
the ANC government’s rule of lawlessness in this country.
Mr K A SINCLAIR: Chairperson, I was going to move that the Northern Cape is the best province in South Africa but, given the fact that you are the Chairperson, I have changed that! [Laughter.] I hereby give notice …
The HOUSE CHAIRPERSON (Mr R J Tau): What does that imply?
Mr K A SINCLAIR: I’m just afraid that you will ask me to leave the House, Chairperson!
The HOUSE CHAIRPERSON (Mr R J Tau): Okay.
Mr K A SINCLAIR: Chairperson, on a serious note, I hereby give notice on behalf of Cope that I shall move:
That the Council debates the need for a quarterly audit of all tenders issued by government, at all levels, to evaluate discernible trends and to check whether any payments are being made to contractors prematurely.
Mr M J R DE VILLIERS: I have a problem with my glasses now; let me just fix it.
The HOUSE CHAIRPERSON (Mr R J Tau): Is it the Western Cape ``spook’’?
Mr M J R DE VILLIERS: It’s all right! I have got it.
Chairperson, I hereby give notice that at the next sitting of the House, I shall move:
That the Council –
1) notes that the Cape Times of 31 August 2010 carried a statement that
the Cape Bar Council resolved in April that the portraits of
President Jacob Zuma, his Deputy President Kgalema Motlanthe,
Justice Minister Jeff Radebe and his Deputy Minister Andries Nel be
removed from the walls of the Western Cape High Court;
2) further notes that legal practitioners said that it is not
appropriate to hang portraits of politicians in courts of justice or
vice versa because it is in violation of the separation of powers as
contained in the Constitution of South Africa;
3) recognises that the courts of justice must show that courts are
neutral in politics and that the public is entitled to believe that
the constitutional promise and rights are guaranteed; and
4) resolves to address this situation speedily and with no hesitation
by the Justice fraternity.
Mr H B GROENEWALD: I hereby give notice that at the next sitting of the Council I shall move:
That the Council –
1) notes that Matlosana Local Municipality in Klerksdorp in the North
West province has suspended its municipal manager Moses Moadira on
allegations of mismanagement of funds of over R500 million;
2) further notes that Mr Moadira was appointed municipal manager after
leaving Moqhaka Local Municipality in Kroonstad under a cloud of
controversy; and
3) acknowledges that the DA moves that the ruling party stop employing
unskilled cadres and then re-deploying them when they are in
trouble, where they then do more damage than good to service
delivery all around South Africa. Mr O DE BEER: Chairperson, on behalf of Cope I would like to give notice that I intend moving at the next sitting:
That the Council debates the tougher measures that government should adopt to ensure that taxi drivers meet higher standards of training.
WISHES FOR SPEEDY RECOVERY FOR HON N D NTWANAMBI
(Draft Resolution)
The ACTING CHIEF WHIP OF THE COUNCIL (Mr S S Mazosiwe): Chairperson, I move without notice:
That the Council -
1) notes that the Chief Whip of the Council, hon N D Ntwanambi, was
admitted to the UCT private hospital on Monday, 23 August 2010 and
that she was released on Saturday, 28 August 2010 and is currently
on medical leave; and
2) takes this opportunity to wish the hon Ntwanambi a speedy recovery.
Motion agreed to in accordance with section 65 of the Constitution.
CONGRATULATIONS TO FREE STATE CHEETAHS RUBGY TEAM
(Draft Resolution)
Mr D A WORTH: Deputy Chairperson, I wish to move the following motion without notice:
That the Council -
1) congratulates the Free State Cheetahs rugby team on their stunning
29-24 points win last Friday against the Western Province in the
Currie Cup tournament;
2) notes that this magnificent win was even more significant as it took
place at Newlands, in Province’s own backyard; and
3) congratulates the Cheetahs – Viva, Vrystaat!
Motion agreed to in accordance with section 65 of the Constitution.
J S ROUX COURT CASE
(Draft Resolution)
Ms D Z RANTHO: Chairperson, I move without notice:
That the Council – 1) notes that Blue Bulls rugby player Jacobus Stephanus “Bees” Roux appeared in the Pretoria Magistrate’s Court on Monday for the brutal beating of Tshwane metro policeman Ntshimane Johannes Mohale last Friday morning;
2) takes this opportunity to condemn, in the strongest possible terms,
such a brutal and senseless murder of Mohale on his son's ninth
birthday; and;
3) extends its profound condolences to the Mohale family, particularly
his wife Margaret Mohale and their children.
The HOUSE CHAIRPERSON (Mr R J Tau): Is there any objection? There is an objection. In the light of the objection, therefore, the motion may not be proceeded with. The motion without notice will now become a notice of motion.
ATTACK ON ODENDAAL COUPLE
(Draft Resolution)
Mr B NESI: Chairperson, I want to move a motion without notice:
That the Council -
1) notes that an elderly farmer Mr Dirk Odendaal, who is 80 years old
and his wife Mrs Sophia Odendaal, who is 79 years old, were
viciously assaulted and robbed on their return home from church to
their farm in Verdun, near Bethlehem in the Free Sate province;
2) takes this opportunity to condemn in the strongest possible terms
the violent attack on the Odendaals and the utter disregard shown
for their age by the perpetrators of this senseless and cruel act;
and
3) calls on the police to ensure that the perpetrators of this inhumane
and senseless crime are brought to justice.
Motion agreed to in accordance with section 65 of the Constitution.
STATEMENT BY MINISTER OF PUBLIC SERVICE
AND ADMINISTRATION ON USE OF EXPENSIVE SEDANS
(Draft Resolution)
Mr D V BLOEM: Chairperson, I move a motion without notice:
That the Council -
1) debates the statement by the Minister of Public Service and
Administration, Mr Richard Baloyi, that expensive upmarket sedans
were ministerial tools of the trade; and
2) notes that his statement sounds similar to those of the old
apartheid government whereby wrong things were justified even if
everybody was saying that it was wrong.
The HOUSE CHAIRPERSON (Mr R J Tau): Is there any objection to the motion?
HON MEMBERS: Yes!
The HOUSE CHAIRPERSON (Mr R J Tau): In the light of the objections, the motion may not be proceeded with. The motion without notice will now become a notice of motion.
WHITE RIVER RAPE CASE
(Draft Resolution)
Mr T M H MOFOKENG: Chairperson, I would like to move without notice:
That the Council -
1) notes with utter disdain that a 31-year-old man was arrested at
Chochocho near White River in Mpumalanga and appeared in the Masoyi
Magistrates Court for repeatedly raping his 10-year-old niece when
her mother was away; and
2) takes this opportunity to condemn in the strongest possible terms
the malice of the uncle who was supposed to be the guardian of the
niece and calls on the police and the justice sector to ensure that
justice for the child is carried out with expediency.
Motion agreed to in accordance with section 65 of the Constitution.
KWAZULU-NATAL HEALTH DEPARTMENT FRAUD
(Draft Resolution)
Mr R A LEES: Chairperson, on behalf of the DA I move the following motion without notice:
That the Council -
1) notes the raids and arrests in connection with fraud in the KwaZulu-
Natal health department;
2) further notes with concern that some persons whose assets were
seized were arrested, whilst the former Treasury head was not
arrested; and
3) calls on the SAPS to treat all the accused in the same way without
reference to their political connections and to ensure that those
involved in the fraud, wherever they may be found in civil society
or even in government, are charged and face the consequences of
their criminality.
Motion agreed to in accordance with section 65 of the Constitution.
CONGRATULATIONS AND BEST WISHES TO BAFANA BAFANA
(Draft Resolution)
Mr W F FABER: Chairperson, I wish to move the following motion without notice:
That the Council -
(1) notes that Bafana Bafana beat Ghana in their match of the Africa Cup of Nations competition and showed that they are a tough force to be reckoned with;
(2) further notes that Bafana Bafana will play Niger on Saturday in Nelspruit at Mbombela Stadium to qualify for the Africa Cup of Nations competition;
(3) recognises that Bafana Bafana must win this match to send a strong message to the other African soccer teams that they plan to become the champions of the Africa Cup of Nations; and
(4) conveys its best wishes to our team on their match against Niger.
Motion agreed to in accordance with section 65 of the Constitution.
MOTION OF CONDOLENCE
(The late Mr J Matthews)
Mr G G MOKGORO: Chairperson, I move without notice:
That the Council -
(1) notes the passing away of selfless struggle stalwart Joe Matthews who was Deputy Minister of Safety and Security at the age of 81;
(2) further notes that Joe Matthews who was the son of former African National Congress leader Comrade Zachariah Keodirelang Matthews, popularly known as Comrade Z K Matthews, had an illustrious political career in the ANC spanning six decades after he joined the ANC Youth League as a teenager in 1944;
(3) Matthews and his father were among the 156 accused, along with former President Nelson Rolihlahla Mandela, Walter Sisulu and other senior ANC leaders, in the 1956 Treason Trial, which ended in 1961 with their acquittal; and
(4) takes this opportunity to extend its profound and heartfelt condolences to the Matthews family during this time of loss and sadness.
Motion agreed to in accordance with section 65 of the Constitution.
AUGUST WOMEN’S MONTH
(Draft Resolution)
Ms L MABIJA: Chairperson, I move the following motion without notice:
That the Council -
(1) notes that today, 31 August, marks the end of August, a month dedicated to honour the role played by women in the fight against apartheid in South Africa;
(2) acknowledges that the theme “Working Together for Equal Opportunities and Progress for All Women: Forward to the Decade of African Women”, salutes and acknowledges the massive contribution that the women of South Africa have made in the struggle for political emancipation; and
(3) takes this opportunity to salute the women of South Africa for their heroism and unwavering selfless acts of bravery as they faced the brutality of the apartheid regime to declare: “Wathint’ abafazi, wathint’ imbokodo, uzokufa”! [“You strike a woman, you strike a rock; you will die!”]
Motion agreed to in accordance with section 65 of the Constitution.
GOOD WISHES TO SA RUGBY TEAM IN TRI-NATIONS RUGBY CHAMPIONSHIP
(Draft Resolution)
Mr M J R DE VILLIERS: Chairperson, I wish to move the following motion without notice:
That the Council - (1) notes that the South African rugby team beat the Australian rugby team on Saturday, 28 August 2010, in their Tri-Nations rugby competition 44-31;
(2) also notes that in this match Springbok player Victor Matfield played his 100th match for South Africa and what a sensational moment it was for him to be part of this winning team on Saturday;
(3) further notes that Matfield is the 10th South African player to achieve this;
(4) acknowledges that the Springboks will play Australia again on Saturday in their last match of the Tri-Nations competition and hopes that all the South African citizens will fly the South African flag high for this occasion; and
(5) conveys its best wishes and good luck to Victor Matfield on his achievement and also to the whole South African team on their win on Saturday 28 August 2010 and for the upcoming game on Saturday against Australia.
Motion agreed to in accordance with section 65 of the Constitution.
MURDER OF BANELE PRECIOUS KHUMALO
(Draft Resolution)
Ms M G BOROTO: House Chairperson, I would like to move the following motion without notice:
That the Council -
(1) notes the brutal murder of nine-year-old Leondale Primary School pupil Banele Precious Khumalo, who was raped and killed on Thursday, 26 August by a 36-year-old neighbour in Phumula Extension 21, near Spruitview in Gauteng;
(2) further notes that little Banele was handcuffed, hacked to death with an axe and burnt before her body was wrapped in a duvet and dumped in a field in Phumula Extension 21;
(3) takes this opportunity to condemn in the strongest possible terms the inhumane and brutal murder of little Banele and extend its profound and heartfelt condolences to the family of little Banele; and
(4) calls on the police to ensure that the perpetrator of this hideous and senseless crime faces the full might of the law!
Motion agreed to in accordance with section 65 of the Constitution.
NCOP PROVINCIAL WEEK: 6-10 SEPTEMBER 2010
(Draft Resolution)
The ACTING CHIEF WHIP OF THE COUNCIL (Mr S S Mazosiwe): House Chairperson, I would like to move a motion without notice:
That the Council -
(1) notes that the week of 6 to 10 September 2010 has been designated a Provincial Week when provincial delegates to the National Council of Provinces will interact with their provincial legislatures and communities in their respective provinces to report back on their work in the NCOP and obtain new mandates on issues to be placed on the national agenda of the NCOP;
(2) further notes that the theme for this year is “Working together to ensure faster improvement in the delivery of services and the living conditions of our people”, which is intended to give provincial delegates an opportunity to engage with their provinces and municipalities on better ways to strengthen the delivery of services; and
(3) takes this opportunity to wish all provincial delegates a safe and industrious week in their provinces. Motion agreed to in accordance with section 65 of the Constitution.
POINT OF ORDER BY MR A WATION ON 17 AUGUST 2010 ON UNPARLIAMENTARY LANGUAGE
(Ruling)
The HOUSE CHAIRPERSON (Mr R J Tau): Order! Hon members will remember that at some point I made a commitment to the House that I would come back to make a ruling on two points of order raised by Mr Watson and Mr Harris during the plenary of 17 August 2010.
In respect of the point of order raised by hon Watson, my ruling is as follows. During the debate on the report on the Taking Parliament to the People programme – Limpopo, hon E S Maake, special delegate from Limpopo, said that:
We are confident that through our deeds this trend of choice shall continue whenever elections are called in this country, despite lesbian marriages which are being witnessed. We are prompted to say that the democratic dispensation in South Africa is very sweet and progressive; hence the kind of choices in relation to marriages, lest we witness domestic abuse of one partner by the other.
Mr Watson raised a point of order, saying that Mr Maake must withdraw the reference to lesbian marriages, as it was unparliamentary and irrelevant to the subject matter.
I then undertook to study the Hansard and make a ruling. With regard to the content of the statement, it is evident that even though the member’s comments did not refer expressly to any specific person or persons and or/member or group, such marriages are recognised in our law. Any negative reference to such marriages cannot be condoned by this House. Therefore, members are called upon to be careful and sensitive in making reference to issues that have particular bearing on the legislation that we as the House have passed.
My ruling is therefore that the point of order raised by hon Watson be upheld.
POINT OF ORDER RAISED BY MR T D HARRIS ON 17 AUGUST 2010 ON UNPARLIAMENTARY LANGUAGE
(Ruling)
The HOUSE CHAIRPERSON (Mr R J Tau): Order! Hon members, regarding the second ruling, during the same debate on the report on the Taking Parliament to the People programme – Limpopo, hon Harris raised a point of order regarding whether it was parliamentary to accuse another member of lying to the House. I then undertook to study the Hansard translated version of Mr Mashamaite’s statement. Having considered the content of the statement, I find it is apparent that there was inconsistency between his speech and the simultaneous English interpretation. The hon member never mentioned the word “lying” during his speech on the said date.
My ruling is therefore that the point of order raised by hon Harris cannot be upheld.
Criminal law (forensic procedures) amendment bill
(Consideration of Bill and of Report thereon)
Mr B NESI: Chairperson, the House, the Deputy Minister and the committee sat and studied the Bill. The Criminal Law (Forensic Procedures) Amendment Bill originally contained provisions dealing with the storing of fingerprints and DNA samples, the creation of a national DNA database, and the expansion of the SAPS Automated Fingerprint Identification System to include fingerprints stored by the Department of Transport and the Department of Home Affairs.
In order to allow the Department of Police to address the concerns in respect of capacity for the effective implementation of the provisions of the Bill in respect of DNA evidence, the Portfolio Committee on Police decided to split the Bill into two phases. Phase 1 of the Bill deals only with the fingerprint evidence, while DNA evidence will be dealt with in phase 2. The Bill that was considered by the Select Committee on Security and Constitutional Development, although still called the Criminal Law (Forensic Procedures) Amendment Bill, dealt only with the collection and storage of fingerprints, body prints and images. The Bill is hereinafter referred to as the fingerprint Bill.
An interdepartmental task team for the implementation of phase 1 of the Bill consists of the Departments of Police, Home Affairs, Transport, Correctional Services and the State Information Technology Agency. This task team is facilitated by the Office for Criminal Justice System Reform. The Portfolio Committee on Police was informed on 11 November 2009 that Cabinet had approved that the implementation of the Bill would take place incrementally over a period of time in order to allow time for detectives, the development of systems and the IT infrastructure.
The Fingerprint Bill aims to give the police access to the Home Affairs National Identification System, Hanis, the Department of Home Affairs, and the electronic National Traffic Information System of the Department of Transport. Currently, the police have only a limited number of fingerprints of convicted persons on their database.
The Department of Home Affairs reportedly has over 31 million fingerprints of South African citizens and over 2,5 million fingerprints of foreigners on its database. The Department of Transport database is reported to contain over 6 million thumbprints. The Bill will also amend the Criminal Procedure Act and the South African Police Service Act. This will necessitate consequential amendments to the Firearms Control Act and the Explosives Act.
The select committee was informed that some challenges remain with regard to the retaking of fingerprints and the electronic scanning of fingerprints, as in the alignment of fingerprints between especially the Department of Transport’s electronic National Traffic Information System, eNatis, and the system of the police for facilitating effective searching.
Currently, the Department of Transport does not store fingerprints of all 10 fingers of drivers and learner drivers, which will limit the scope of a search as required by the police. These challenges must be addressed in order for the Bill to be effectively implemented, only and for the availability of an effective and complete fingerprint database for comparative searching.
Some amendments in the Bill came as a result of issues raised in submissions and presentations to the portfolio committee, and one of the most important issues was the alignment of the Bill with the Children’s Act. The fingerprints of children must be taken with due regard for the privacy, dignity and bodily integrity of the child, and an adult must be present when fingerprints are taken. The child must be treated and addressed in a manner that takes into account the child’s gender and age. When a child perpetrator reaches adulthood, application can be made for the removal of his or her fingerprints from the criminal database.
The Bill provides for 15 years’ imprisonment if a person is convicted of abusing or manipulating the fingerprint database. Although no sanctions are provided for the misplacement of fingerprints by mistake, the Bill provides for the retaking of fingerprints and it is hoped that this will be limited through intensive training. The retaking of fingerprints is also allowed where the fingerprints cannot be read.
The select committee adopted the Criminal Law (Forensic Procedures) Amendment Bill without amendments. The Bill is commended to the House as an important step in the review of the criminal justice system as a whole. It enhances the crime fighting and intelligence capabilities of the police, in particular by expanding the number of fingerprints in their database, and allows for certain circumstances when the police are obliged to take fingerprints.
Debate concluded.
Mr D V BLOEM: Chairperson … [Interjections.] … the hon member Nesi was just telling me that an ATM swallowed his card and he is without a card. He tried to withdraw money from the ATM with this card! So, there is a problem here. [Laughter.]
Bill agreed to in accordance with section 75 of the Constitution.
SOCIAL ASSISTANCE AMENDMENT BILL
(Consideration of Bill and of Report thereon)
The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: Chairperson, hon Members of Parliament, comrades and friends, esteemed ladies and gentlemen, I thank you for the opportunity to address the NCOP on the occasion of the Third Reading of the Social Assistance Amendment Bill.
This Bill is part of the ANC government’s efforts to build a caring society. It also bears witness to our ongoing work in ensuring the progressive realisation of the constitutional right of access to social assistance. The Ministry of Social Development has stated before that our social assistance programme is witness to the ANC government and our society’s way of putting the values of social solidarity into practice.
With these small but important resources that we are providing to older persons, parents with young children, people with disabilities and others, they are able to buy the bare necessities, primarily food for themselves, their families and their children. This provides the indigent with a measure of dignity, as they feel that they are part of society.
For as long as our society remains one of the most unequal in the world, with high levels of structural unemployment and accompanying social exclusion, it will continue to state unequivocally that the ANC government, as the leader of our social transformation agenda, will through state instruments lead in our efforts to mitigate the worst impacts of poverty and unemployment. It will also implement programmes aimed at reducing inequalities.
We are often confronted with comments and suggestions that our social assistance programme is unsustainable. Yet research has indicated that our cash transfer programme has been the key intervention in reducing the Gini coefficient, which is the measure of inequality. This is an important point, as international research has proved that unequal societies perform less well economically and socially than societies that are generally more equal.
Brazil has until recently been the most unequal society in the world. But a rapid escalation of their social assistance programme, known as Bolsa Familia, has resulted in an unprecedented reduction in their inequality rate. The reduction in inequality spurred on economic growth, increased the number of jobs created and generally contributed to a more cohesive society in Brazil.
With the deepening of our own social assistance programme, we are on a similar path. Therefore, it is time that we change the discourse here in Parliament and in society. Our new discourse should focus on the unsustainability of inequality in our country, as this is the key inhibitor of real economic growth and progress towards a more stable and cohesive society.
That means your questions to us should focus on what our progress is towards building a comprehensive social security system that will, over time, facilitate a more socially inclusive South Africa.
Chairperson, for us to extend our social assistance programme, we need to improve on how we administer it. The Social Assistance Amendment Bill therefore sought to do three things: firstly, to introduce a new definition for disability; secondly, to provide a mechanism for the SA Social Security Agency, Sassa, to review its decisions when a beneficiary is not satisfied with the outcome; and thirdly, to enhance the appeals process.
Coming to the issue of the definition of disability, which is a key area of leakage in the system, we are deeply concerned about the fact that every cent lost due to bad administration, fraud and corruption in our system diverts resources from those in our society that need them most. The nonreporting of an increase in a beneficiary’s income constitutes an area of fraud and leakage too. Corrupt officials and government employees have over the last five years felt the retribution of government as the Special Investigating Unit and courts have dispensed justice for their wrongdoing. We once again call on all members of our society to work with us in dealing with leakage, fraud and corruption in the grants system.
Disability targeting presents a key challenge in any social security system. In our case, we lack a common assessment tool for disability. This results in errors of inclusion and exclusion in the administration of disability grants. Effective targeting for the disability grant requires the reliable and objective implementation of a uniform disability assessment tool. The passing of this particular amendment will enable us to make a distinction between permanent and temporary disability, and people with chronic illnesses.
The debates in the Portfolio Committee on Social Development on this aspect of the initial Bill were vigorous. After much constructive deliberation the committee felt that whilst this aspect of the Bill was noble, with good intentions, it might lead to unintended consequences, such as the exclusion of people with chronic conditions. The Department of Health indicated to the portfolio committee that it was not ready to implement the new disability assessment. It outlined challenges it has in developing a comprehensive response in assisting people with chronic illnesses and indicated that it would require more time.
Chairperson, based on the fact that as government we will not be able to provide adequately for chronically ill people, who may be removed from the system, and based on a new approach to defining disability, the portfolio committee felt strongly that the provision regarding the definition of disability should be referred back to Cabinet for further deliberations. We will, together with the Department of Health, work towards an appropriate response in addressing the needs of those suffering from chronic conditions.
The right to fair administrative action is a basic human right. The Constitution guarantees that administrative action must be reasonable, lawful and procedurally fair. It also makes provision that applicants for social grants have the right to request reasons for administrative action that affects them negatively.
The Social Assistance Amendment Bill facilitates a process wherein social grant applicants and beneficiaries are treated with fairness, dignity and respect. It makes provision for applicants and beneficiaries to request Sassa to review its decisions in order to expedite the resolution of disputes and avert unnecessary and costly litigation. The Bill also makes provision for applicants and beneficiaries to appeal against a decision of the agency, and for the appointment of an independent tribunal, in a manner to be prescribed by regulations.
Tribunals are a key part of the administrative justice process and make it possible for applicants and beneficiaries to present their grievances and, if there are merits to their claims, to obtain simple and speedy resolutions to their cases.
I am indeed pleased that, as elected representatives of our people, and recognising its critical importance for the poor and vulnerable members of our society, we have put our political differences aside and adopted this important piece of legislation. Notwithstanding its size, this Bill will impact positively on the lives of many of our most deserving citizens. It aims to ensure that our government fulfils its constitutional obligation in terms of section 27 of the Constitution.
The final product, the Bill we have before us, bears testimony to the robustness of the legislation-making process in this country. Aside from the extensive public consultation processes, the portfolio committee was rigorous in its examination of the implications of the Bill in its original format. It also asked for informative inputs from advocacy groups in civil society.
The select committee too, led by Comrade Nomonde Rasmeni, undertook public consultation processes which provided platforms for the electorate throughout the country in order to engage with the contents of the Bill. The collective wisdom that emerged from these processes is gratifying and testifies to the enduring democratic spirit prevailing in this young democracy. I would like to express my gratitude to the members of the select committee, and indeed civil society, for their inputs, which served to improve this Bill. That is what a robust policy-making process should do.
We should be heartened by the fact that we have such an open system, and perhaps bear in mind that we should not always have to resort to shrill and alarming ways of proposing or opposing policy ideas in the public domain. The debate regarding the protection of information Bill and the proposed media tribunal is a case in point, but I shall not digress and speak on that matter now. What we are assured of is that we have a democratically elected ANC government and a robust decision-making system to ensure that we make decisions for the collective good of all South Africans.
In conclusion, I would like to express my heartfelt gratitude to the officials of the Departments of Social Development and Health for their hard work on this Bill.
Finally, I thank members of the House who have contributed to the debate at various stages. Chairperson, I support the passing of this Bill by the NCOP. [Applause.]
Ms R N RASMENI: Chairperson, hon Deputy Minister of Social Development and hon members, social assistance is a socioeconomic right guaranteed in the Constitution of the Republic of South Africa. The Constitution furthermore specifically guarantees the right to social assistance for those who cannot provide for themselves.
In 1994, the ANC government inherited a social security system that was massively underdeveloped by international standards. It was characterised by policy gaps, duplication in delivery and fragmented institutions. The social security system failed vulnerable groups that faced risks such as poverty, ill health, disability, unemployment, injury on duty and a range of other challenges. This resulted in their effective exclusion from participation in society.
As we enter the second decade of freedom, with the strengthening of democracy and the acceleration of the programme to improve the quality of life of all our people, the ANC recognises that we are at the beginning of a long journey to being a truly united, democratic and prosperous South Africa in which the value of all citizens is measured by their humanity, without regard to race, gender and social status.
In 2001, the ANC government set up a committee of inquiry into a comprehensive system of social security for South Africa chaired by Prof Vivienne Taylor. The committee was mandated to conduct research and to advise the government on social policy reform and the new system. The commission found that most people, who numbered around 22 million at the time, depended to a very large extent on the social grants that they received from the government. It also pointed out that the social grant system inherited from the apartheid era was inadequate to meet the challenges of rooting out poverty, and that not all people qualified for these grants.
The committee came to the conclusion that the social security programmes failed to satisfy the constitutional imperatives, and thus made the state vulnerable to Constitutional Court challenges, and were clearly inadequate. The commission mainly recommended that a comprehensive social protection package, which addresses not only income poverty but also capabilities poverty, asset poverty and special needs, must be available. This package must also include free and adequate public health care, free primary and secondary schooling, free basic water and sanitation, free basic electricity, accessible and affordable public transport, access to affordable and adequate housing and access to jobs and skills training.
According to the 2009 report of the Organisation for Economic Co-operation and Development, social security assistance directly reduces poverty through improved health outcomes, increased school attendance, hunger reduction and livelihoods promotion. Social security assistance makes growth more pro-poor by enabling household investment in productive activities and human capital. It helps poor and vulnerable households to safeguard their assets and adopt effective coping strategies to meet challenges arising from man-made and natural disasters. It builds self- reliance, not dependency, as it strengthens the employability of poor women and men, and enables them to seek and obtain better and more remunerative work. It also reinforces the social contracts that can help legitimise and strengthen the state, which is particularly important in fragile contexts.
The report further concludes that poverty can only be alleviated through economic growth and social assistance. According to the report of the study, a profile of social security beneficiaries in South Africa commissioned in 2006 revealed that 82% of recipients of disability grants indicated that food was their largest expenditure item, followed by payment for basic services. Seventy-five percent of recipients said that the disability grant helped them to care for other ill members of the household. By far the largest demographic group that receives disability grants, 75,4%, are black African people, of whom 54,3% are women. On average, few have completed secondary education and almost a third have had no formal education.
In our quest to build a caring society, the ANC is determined to create a comprehensive social security system that is built on the fundamental principle of social solidarity. We advocate a system that ensures that the majority of South Africa’s poor benefit from expanded noncontributory or social assistance measures. By 2010, over 13 million people received some form of cash grant, thus complying with the Constitution.
The need to amend the Social Assistance Bill became evident when the 2003- 04 uptake of disability grants spiked to more than three times the projected figure for that period. An investigation was done to establish the cause of this sudden increase. The core findings were that there was no common definition of what constituted a disability. There was also no uniform assessment method or tool to determine whether a person had a disability. This situation resulted in errors of both inclusion and exclusion. Most of the stakeholders participating in the public hearings were concerned about the health system’s ability to assess disabilities, and the fact that the definition as it stood excluded people with chronic illnesses.
Also, clause 18(1) of the Bill permitted only applicants or persons acting on their behalf to appeal against decisions of the SA Social Security Agency relating to any matter regulated by the Act. The section did not permit beneficiaries whose grants had been terminated or suspended to appeal against any decision of the agency relating to any matter regulated by the Act. A beneficiary, thus, had no choice but to approach the court for review.
The amending Bill allows a beneficiary to appeal against a decision of the SA Social Security Agency, Sassa. The Bill also allows Sassa to reconsider a decision by means of the process of an internal review. The amending Bill also allows an applicant or a beneficiary to lodge an appeal with the independent tribunal after the lapse of the 90-day period from the date that the grant was terminated; this was not the case before. It therefore provides more time for the applicants or beneficiaries to appeal.
The committee has learnt that the independent tribunal is ready to carry and perform this mandate. In addition to that, the committee noted that there are some challenges and that progress has been made by the Independent Tribunal. Thus far, the appeals backlog has been reduced. On average, 4 161 appeals are being processed per month compared to the 400 per month in past years. The reduced backlog can be attributed to the leadership and management in this institution and the department itself, as well as the fact that 60 persons have been employed through the Expanded Public Works Programme, EPWP. Medical doctors and lawyers have been enlisted to process appeals faster.
There are still minor challenges that are being experienced in this area. The visibility of the tribunal at the provincial and national levels has to be realised. Fast-tracking in the processing of the backlog also has to be done. Lastly, a lack of necessary equipment is being experienced in the call centres. The ANC supports the Bill as amended. Mr M J R DE VILLIERS: Chairperson, and hon members, the primary objective of the Social Assistance Amendment Bill is to amend the Social Assistance Act, Act 13 of 2004.
It is my duty to make the following statement as a member of the DA: My party believes in an open opportunity society, where people must have the opportunity to make choices to better their lives for a better outcome.
One of the opportunities is the choice of employment. This opportunity is very scarce in South Africa, and it is the duty of government to develop circumstances and economic situations for people in South Africa, and to make these opportunities available to the poor. Too many people are unemployed, poor, vulnerable and dependent on grants.
That is not to say that the DA does not support the policy that a safety net for the disabled, the sick, the poor and the permanently disabled and others must exist in the policy of government. We must try to create a citizen who is self-reliant and has the dignity not to be dependent on hand- outs.
The DA agrees then that in the absence of these work opportunities for the poor and the vulnerable such amendments to the Social Assistance Act are important - very much so! Grants give a pot of gold to loan sharks. Therefore, government must use all its resources to clamp down on practices which make the poor poorer.
Sections 14 and 18 of the Social Assistance Amendment Bill speak to the appeals measures: the right to reconsider the application, the right to appeal the decision made by the agency, the right to clarification of the decision and process they have taken, condonation and appeal to be handled within 90 days, and applications received after 90 days has expired to be considered.
Section 5 will still prevail and be referred back to Cabinet. This section speaks to chronic illnesses, and the Department of Health said that they were not ready to implement the harmonised assessment tool and related matters.
We therefore agree with the view that redefining disability and implementing the harmonised assessment tool must be cleared, because no misunderstanding and misinterpretation must prevail. The referring back to Cabinet of section 5 is supported. The Western Cape provincial parliament supports the Social Assistance Amendment Bill. I thank you, Chairperson, for allowing the debate on this Bill in the NCOP. [Applause.]
Mr J J GUNDA: Chairperson, hon Deputy Minister and hon members, it is good to be back in the House. It’s a good thing to see you, my colleagues. The goal of this Bill is to assist the poor, but how much say have the poor had in its drawing up? South Africa is known as one of the countries with the largest inequality gap between the rich and the poor.
The HOUSE CHAIRPERSON (Mr R J Tau): Is there a point of order?
Mr K A SINCLAIR: Yes, Chairperson, it’s a point of order. Now that the DA has swallowed up the ID, in what capacity is the hon member speaking?
The HOUSE CHAIRPERSON (Mr R J Tau): Hon member, I don’t think that is a point of order. Hon Gunda, please proceed with the debate.
Mr J J GUNDA: Thank you, Chair, for protecting me. South Africa is known as one of the countries with the largest inequality gap between the poor and the rich. Approximately 57% of individuals living in South Africa are below the income poverty line. The vulnerable groups are the rural poor, female- headed households, Aids orphans, people with disabilities, farm workers, and the unemployed. They are the ones affected. I therefore plead with the government to really listen to and hear the plight of our people.
As some of my colleagues here today will know, I am an evangelist, and I would like therefore to start by quoting three verses from Ecclesiastes 9:14-16 in the Bible: There was a little city, and few men within it; and there came a great king against it, and besieged it, and built great bulwarks against it. Now there was found in it a poor wise man, and he by his wisdom delivered the city; yet no man remembered that same poor man. Then said I, Wisdom is better than strength: nevertheless the poor man’s wisdom is despised, and his words are not heard.
Sometimes I wish that King Solomon was here to guide us with his wisdom, so that we as the leaders of today could learn and understand that the true value of humanity is not measured by our status and our belongings.
Mnr J J GUNDA: Ek hoop en vertrou dat hierdie wetgewing nie net op papier sal wees nie, maar dat dit regtig aan die pleidooie van ons mense aandag sal gee en dat die regering nie aalmoese sal gee om ons mense beter te laat voel nie. Ons moet ons mense ontwikkel sodat hulle regtig ’n sê kan hê in hulle eie toekoms sodat dit ’n permanente verskil kan maak in hul lewens. (Translation of Afrikaans paragraph follows.)
[Mr J J GUNDA: I hope and trust that this legislation would not be mere words on a piece of paper, but that it will really address the appeals of our people and that the government will not hand out alms to make our people feel better. We have to develop our people so that they can really have a say in their own future in order to make a permanent difference in their lives.]
I would like to close with this, Chair. Yes, this ANC government of today has failed, but they have done something very, very important - they have recognised the plight of the poor. I hope that this Bill will truly assist our people – assist them to see to it that people have a much, much better life! We as the ID support this Bill.
Mr M G E WILEY (Western Cape): Chairperson, the hon member Mr Sinclair has a problem with alliances that are being formed. I wonder what he has to say about alliances that are exploding at the moment. [Interjections.] Maybe one of these days we will have one party speaking with three voices!
The Western Cape considered this Bill, and we support it. We believe that it is going to close a couple of loopholes that exist at the moment.
Some of the evidence that was presented to the committee was from the Black Sash and they had some pertinent points to make, one of which was that the five-day notice period given to respond to the proposed Bill simply did not provide for the public. They especially alluded to the fact that those members of the public with limited resources would not have had adequate time to engage properly with its content and make critical and meaningful input. They also said that they felt there should be both an internal and an external or independent review mechanism. This was because the internal review mechanism was more of a bureaucratic one where, if a technical mistake was made with regard to the application, it could easily be handled by the department. However, there needed to be some sort of an independent mechanism, to which matters that were not just of a technical nature could be referred.
Lastly, the Black Sash, an organisation of many years standing in dealing with this specific category of indigent population requiring grants, expressed their concern that there had been no agreed definition of disability or consistent application of a standardised tool to assess it. This has subjected many of our clients to the discretion of medical practitioners and officials, which contradicts the basic principles of administrative justice. These are important points. I hope that they will be taken into account in the regulations.
However, the whole debate on this Bill raises some other pertinent points, such as the issue of the war on poverty or poverty as such. I would like to quote from Premier Zille’s newsletter of last week where she says:
Almost everyone in South Africa agrees that our country’s major challenge is poverty and unemployment.
The question is, how can we enable people to move out of poverty, and earn an income, in a sustainable way?
The “War on Poverty” programme, which is one of the major initiatives of President Zuma’s office. It is spearheaded by the Deputy President, Kgalema Motlanthe. Its key strategy is “community profiling”. In theory this involves compiling a detailed survey of each household in a community, so that the state can target its interventions with the purpose of enhancing the capacity of the households to move out of poverty and earn a living.
I am sure that every member in this House religiously reads Helen Zille’s newsletter every week, and so you will know that she gave a couple of examples and anecdotes about what happened when she visited the community to see the exposition of this particular profiling mechanism.
I want to quote just one example, because it really is illuminating. In this particular case, the person was obviously an alcoholic, who was blind drunk in the middle of the morning. The conclusion of the profiling was that the way to alleviate that person’s poverty was to fix the crack in the wall of his house. The state is going to have to mobilise its resources and fix the crack in the wall of the house. Nowhere did it say in the profiling that his alcoholism needed to be addressed, and nowhere did it take into account that the man was a skilled bricklayer, tiler and plasterer and could have done it himself if his alcoholism had been addressed in the first place.
That, unfortunately, is one of the idiosyncrasies of a purely bureaucratic approach. When she addressed the Deputy President in the meeting, she further said:
I used the opportunity to talk bluntly about some of the “unmentionable” causes of poverty: teenage pregnancy, substance abuse, the spread of HIV through unprotected sex, the failure of many fathers to take responsibility for their children. I said that if we were to wage a real and effective “War on Poverty” we would have to be honest about these issues and devise effective strategies to address them. This would require both the government and individuals to take responsibility. The current approach was entrenching poverty and dependence, not eradicating it.
Currently, the Western Cape’s strategy as far as poverty is concerned is that the effects of poverty may be eliminated through state intervention, but ultimately people can only be said to be out of poverty when they are able to take care of their own basic needs. The state has a responsibility to facilitate opportunities to escape poverty. It is necessary for people to accept responsibility for making the most of the opportunities. No one can escape poverty through state action alone. It must be a joint effort between the state and the individual, in which each has responsibilities. Nowhere in the discussion by the Deputy Minister did I hear about the responsibility of the individuals concerned. There are many different definitions of poverty in use today. The Western Cape provincial government has chosen to take a capability deprivation approach borrowed from the economist Amartya Sen and consistent with our vision of an open society for all. At its heart is the understanding that substantive freedom, the ability to lead a life of value, is the objective of development and that poverty consists of not having the power, opportunity or means to do so.
Therefore, it follows that while the state has the responsibility to facilitate opportunities to escape poverty, it is necessary for people to accept the responsibility for making the most of these opportunities. No one can escape poverty through state action alone. It must be a joint effort between the state and the individual, in which each has a responsibility.
One of the speakers has alluded to Brazil. With Brazil, I think you will find, there are very few comparisons to be made with South Africa as far as productivity is concerned. In its industry Brazil is per capita one of the most productive nations in the world at the moment. South Africa has an abysmal rate of productivity in world terms. We also have one of the highest dependency rates per capita in the world as far as social grants are concerned.
Therefore, contrary to what has been stated, it is not currently sustainable. We must be careful - just as with the economy, we need to create an environment where people want to participate and not one where people are demotivated in regard to participating in the economic centre. The DA believes that we should have a hand-up society and not a handout society. We support the Bill. [Applause.]
Mr S H PLAATJIE: Madam Chairperson, in the light of section 27 of the Constitution of the Republic of South Africa, which obliges the state to achieve the progressive realisation of the right of everyone to social security by taking reasonable legislative and other measures within its available resources towards that end, all persons in South Africa who are unable to support themselves and their dependants are, by virtue of section 27, entitled to appropriate social assistance. Cope, therefore, supports the Social Assistance Amendment Bill.
The inadequacy of the definition has led to many grievances because of an uneven determination of disability. In some cases, deserving applicants were turned down, and in other instances cases were approved which clearly should have been turned down. The need to refine the definition of disability became necessary. We do not believe that this is the end of the matter. This matter will have to be further revisited going forward. Amending the Social Assistance Act was unavoidable.
The Bill also facilitates a quicker resolution of the disagreements among the concerned parties. Applicants and beneficiaries who have issues with the SA Social Security Agency, Sassa, can now request Sassa to reconsider any decision that it might have taken, on the grounds that certain issues or material points may have been overlooked or given lesser weight than they actually merited.
Chairperson, this amendment will also allow Sassa to hear the other side, maybe to uphold the rule of audi alteram partem and make sure that before they take a decision relevant facts are taken into account. The Bill is also asking for Sassa to apply its mind to every decision it takes. Where the matter still remains unresolved, it will also go before the independent tribunal in a manner that regulation will prescribe.
By its name and nature, social assistance is an attempt by government to alleviate poverty. It should not, therefore, be used or seen as a salary. Government and this House must keep a wary eye on the outcome of this amendment. Already the state, in seeking to provide a security net, has unintentionally created everlasting dependency.
In conclusion, Chairperson, because we know that at present the government is providing this security, all people in this country will have recourse to the Bill and be listened to when they have a problem with it. Cope supports the Bill. [Applause.] UMntwana M M M ZULU: Sihlalo wale Ndlu, dadewethu Phini likaNgqongqoshe Dlamini, amalungu ahloniphekile ale Ndlu, Inkatha Freedom Party, i-IFP, iyayeseka i-Social Assistance Amendment Bill. Njengoba sazi ukuthi kuleli lizwe lethu kunongqeqe abacwaninga ubuningi babantu. Uma becwaninga-ke bathi abantu abahlwempu abahlala ngaphansi kwamazinga okuhlupheka balinganiselwa ku-82%; bese kuthiwa abaphakathi kuka-50-58% babhekene nokungabi bikho kwemisebenzi. Ongqeqe bathi uma kuphela unyaka ka-2010, uMnyango weZokusiza uMphakathi uzobe unika abantu abangaphezu kwezigidi eziyi-14 zemali eyisibonelelo sikahulumeni.
Ngiye ngizibuze, Phini likaNgqongqoshe, ngithi ingabe yini engenziwa nguMnyango wakho kanye noMnyango wezoLimo amaHlathi kanye neMboni Yokudoba ukubhekelela abantu emakhaya, njengoba wazi ukuthi siye sikholelwe ukuthi ukuya emasimini kungahle kusisize. Ngoba phela uma sibuka umnotho wethu asinazo izinsiza ezanele ukuba kungenzeka izinto ezithile ezweni lethu.
Lokhu kufuneka sikukhuthaze ngayo yonke indlela ukuthi kwenzeke ezweni lakithi. Noma ngazi ukuthi lesi sibonelelo sikahulumeni sinikezwa uMthethosisekelo waleli lizwe ukubeka ngokusobala ukuthi bonke abantu kufuneka bakwazi ukuthola izinsiza. Lo Mthethosivivinywa siyawusekela ngoba usunikeze uNgqongqoshe amandla ukuthi lezo zicelo ezinokubukelwa phansi, bakwazi ukuzibuka nazo ngendlela epheleleyo.
Yingakho lo Mthethosivivinywa siwusekela njenge IFP ngoba siyabona ukuthi uzosiza abantu bakithi abampofu nabahlwempu. Singeze sangena ezintweni eziningi zokusisiza ukuthi sithole amaphuzu kwezombusazwe. Thina noma mina njengendoda yaKwaZulu ngiye ngikubuke ngeso lokuthi abantu bangasizakala kanjani bakwazi ukufaka isicelo manje bese batshelwe manje ukuthi siyaphumelela noma qha asiphumeleli, noma-ke uma besalindile kube khona abangakwazi ukuyokupheka eziko. Lokhu ngikusho ngoba indlala ngiyazi kahle.
Ongayazi indlala kungamdida lokhu,ngoba phela uma ungayazi indlala kuba lukhuni kabi ukuthi uqonde ukuthi kwenzekani. Emalokishini bayazi ukuthi indlala bayivikela kanjani; badla isinkwa ekuseni babuye basidle emini. Mina ngidla ekuseni, emini kanye nantambama. Ngenzela ukuthi umkhaba ube kahle.
Manje-ke mhlonishwa Ngqongqoshe siyi-IFP kanye nabantu besifundazwe sobukhosi baKwaZulu-Natal siyakweseka ngoba onke amaqembu kulesiya sifundazwe ayawusekela futhi ayawemukela ngokuphelele uMthethosivivinywa. Siyacabanga ukuthi abantu bakwaCetshwayo noma bakaDinizulu nabakaZwelithini bazodla kahle baphumule. Ngiyabonga. (Translation of isiZulu speech follows.)
[Prince M M M ZULU: Chairperson of this House, hon Deputy Minister Dlamini, hon members of this House, the Inkatha Freedom Party, the IFP, supports the Social Assistance Amendment Bill. We know that there are experts in our country who research the density of the population. In their research their findings are that 82% of the population live below the poverty line, and then it is said that between 50% and 58% are faced with unemployment. The experts say that by the end of 2010 the Department of Social Development would have given grants to more than 14 million people.
Deputy Minister, I sometimes ask myself what it is that can be done by your department and the Department of Agriculture, Forestry and Fisheries to cater for people in the rural areas. You know that we believe that growing crops might help us because if we look at our economy, we do not have adequate resources for certain things to happen.
We have to encourage this by all means so that it can happen in our country. I know that this government’s example is encouraged by our Constitution, which states clearly that all people must have access to resources. We support this amending Bill because it gives the Minister the authority to review, thoroughly, the applications that were not taken into consideration. That is why we support this amending Bill as the IFP, because we are quite aware that it will help our needy and poor people. We won’t involve ourselves in many things in order to score political points. We, or rather I, as a Zulu man, sometimes wonder how people can be assisted in making an application and get an instant response whether their application is successful or not. Or maybe they could get something that they can cook while they are waiting. I say this because I have first-hand experience of hunger.
This can puzzle someone who has not experienced hunger, because it becomes difficult to understand what is happening if you have never experienced hunger. In the townships they know how to prevent hunger; they eat bread for breakfast and for lunch. I have my breakfast, my lunch and my dinner.
Well, hon Minister, we support you as the IFP and the people of the Kingdom of KwaZulu-Natal, because all the parties in that province support and fully accept the amending Bill. We think that the people of Cetshwayo or Dinizulu and Zwelithini will have a good life. Thank you.]
Ms B V MNCUBE: Chairperson, the introduction of the Social Assistance Amendment Bill is a response to the stark reality that the ANC government has had to face. This reality has its origins in the legacy of apartheid and colonialism. In our current conjuncture, this reality reflects more people being relegated to the outer fringes of the labour market, and the social grant system being the main support for many families facing poverty and unemployment.
The strengthening of the rights of claimants in such a context is a fundamentally important responsibility that the ANC government has taken up, informed by the ANC policy on social security. Since 1994 the ANC-led government has endeavoured to create a comprehensive social security net to cushion many of our people from economic deprivation. This is in line with the ANC’s vision to create a caring society and an integrated system of social development services that facilitates human development and improves the quality of life.
The impact of the ANC government’s economic and social policies has seen a significant reduction in the level of severe poverty and an improvement in the quality of life of millions of South Africans. These policies have had a particularly important impact on the lives of women living in poverty. Female-headed households receive a larger than average share of the social wage. This is largely because women are disproportionately affected by poverty.
The ANC’s 52nd national conference in Polokwane in December 2007 strengthened this position. ANC policy views the social security net as a critical pillar in a basket of measures aimed at stimulating the economy of our country. This means that social grants should not be viewed in isolation from the broader mandate of the ANC government to create employment and economic growth in our country.
Having said this, we are also aware that this comprehensive security net is not an end in itself, but is aimed at helping our people to keep afloat so that they graduate to other economic opportunities and self-sustainability. In this regard, one of the critical tasks that the ANC faced when it assumed political power was not only to rationalise and restructure the social security system, but to eradicate the racial skew of that system, a legacy of the apartheid-driven system of disbursing of grants.
Social grants have many advantages for individuals and communities. Over the past 16 years the positive outcomes of giving social grants to the impoverished and vulnerable have had a substantial impact on the ability of the most impoverished to survive. Grants are used to purchase essential food and clothing, and to improve nutrition and basic human welfare. Households that receive grants have been statistically proven to be less likely to have malnourished or stunted children. Households receiving grants have also been able to better access essential state services such as health, clinics and schools.
Social grants generate economic benefits by improving recipients’ ability to manage risk and insecurity. They also facilitate productive economic activities such as informal trading or enable other household members to migrate in search of work, thereby strengthening prospects for their livelihoods.
Social grants enable our people to enter into the existing ubuntu system of social reciprocity and mutual support which continues to mark our impoverished communities. Hon Wiley, these are the revolutionary reasons which have resulted in the ANC getting overwhelming results in the past 16 years, because South Africans, and Africans in particular, have realised that …
… setlhare sa motho e motsho, ha se lekgowa empa ke ANC … [the notion that black people can’t get anything done unless watched over by a white man does not ring true, but the ANC can assist].
Many people living with HIV and Aids or other chronic illnesses require social assistance to survive. These chronic illnesses, with all their debilitating side effects, require those living with such illnesses to access medication and adequate nutrition in order to live with dignity. Many are currently eligible for the disability grant, but concerns have mounted over the past seven years in relation to the manner in which the proposed grant system operates and, in particular, what impact any legislative amendment will have on those living with HIV and Aids or other chronic illnesses.
Mr A WATSON: Madam Speaker, on a point of order: Sesotho was put in the English where, to my mind, the member said, “ha se lekgowa ke le-ANC” [not by the white man but by the ANC]. That to me is hate speech and, unless I’ve heard it wrong, the member must please explain or withdraw it.
Mr A G MATILA: Chair, it is unfortunate that Watty does not understand Sesotho. The hon Watty does not understand Sesotho. It is an old saying of the African people. Watty devolved from Europe to Africa - that is the situation.
Mr G G MOKGORO: Chairperson, I rise on a point of order: A point of order was raised by the hon Watson. It is up to the Chair to make a ruling and not open a debate on the matter. Whether the hon Mncube was correct or not, we are going to rely on the Chairperson’s ruling. I therefore, Chair, ask you to close this debate. You can either make a ruling now or make it later. You are not compelled to make a ruling on the matter now. Let us not debate it.
The HOUSE CHAIRPERSON (Ms N W Magadla): I’m closing the debate. I will make a ruling next time.
Ms B V MNCUBE: The responsibility for providing care for the thousands of people whose health has deteriorated because of poverty places challenges on our ability to realise the right to health care for all of our people. The purpose of the Social Assistance Amendment Bill is to amend the Social Assistance Act of 2004; to define disability; to regulate the application process of grants; of critical importance, to regulate the work of the SA Social Security Agency in reconsidering its decisions with regard to the approval or otherwise of grant applications; and to clarify the process of appeals against the decisions of the agency.
While the availability of both health care and medication is critical in maintaining the wellbeing of individuals with chronic illnesses, the ability to take control of the given condition is often inhibited by the inability to afford extra medication, transport to and from clinics, adequate nutrition and basic necessities.
Section 27 of the Constitution of the Republic of South Africa obliges the state to achieve the progressive realisation of the right of everyone to social security by taking reasonable legislative and other measures within its available resources towards that end. All persons in South Africa who are unable to support themselves and their dependants are entitled to appropriate social assistance.
As with other socioeconomic rights, the right to social assistance must be interpreted against the values of the Constitution, including the protection of a person’s right to human dignity. Treating people with dignity requires the state to act in a reasonable manner towards those claiming social security rights.
According to the memorandum on the Bill, and in regard to its objects, the purpose is to insert a definition of disability in order to provide clarity on eligibility for a disability grant. The United Nations Convention on the Rights of Persons with Disabilities recognises the diversity of definitions of disability that are applicable globally. Central to these definitions is a person’s inability to maintain himself or herself through employment by virtue of his or her disability.
In our considering the amending Bill, it was felt that it would be a grave mistake to hastily approve an amendment that could result in the reversal of gains made over the past 16 years, given the implications of the proposal in regard to disability.
It is therefore clear that there is a general consensus that the clause containing the definition of disability be withdrawn from the amending Bill in order to address unintended consequences. This implies that at a future stage further amendments will have to be brought to Parliament. The ANC supports the Social Assistance Amendment Bill.
The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: Chairperson, firstly let me thank all the parties for supporting this Bill, and say that this is going to help us take our programme to fight poverty forward.
Also, we are used to fighting all the time and engaging.
Kepha okumnandi ukuthi ngesintu bathi impangele enhle ekhala igijima. [What is interesting is that in our culture we say, “Make hay while the sun shines.”]
So, we’ve heard what you are saying and some of the issues that have been raised are reasonable. We note the concern about ongoing discretionary decisions about disabilities. What is important is that we should understand that doctors have been trained, and we are continuing to train them in parts of the assessment tools to improve the objectivity and reliability of assessing for disability. This issue was raised by the hon member Mr Wiley.
Regrettably, the argument of the DA about the causes of poverty is very simplistic. Poverty is multidimensional in nature and it’s a lot more complex. What we need to understand is that when our government took over, there was a very high level of poverty, squalor, hunger and unemployment. It takes years to eradicate poverty. We have been called upon by the United Nations to halve poverty by 2015 and that is what we as the government of the ANC are trying to do. That is what the Millennium Development Goals are demanding of us as governments.
Mexico, one of the countries that has a good social assistance programme, takes seven and a half years to take people out of the cycle of poverty. I think we should be proud of the work that our country is doing. This programme is for vulnerable groups only but, from what I’ve heard here, it sounds as if the programme is also for people who are eligible for work, people who belong to the working class, who can contribute to the economy of the country, and who are between the ages of 19 and 59. This programme is only for older persons, children and the disabled. These are the vulnerable groups. It’s not for able-bodied people.
I also want to remind the hon member Mr Wiley that this government’s response to poverty is to provide not only toilet bowls, but also walls. [Laughter.] So, it’s a comprehensive programme.
Mr De Villiers of the ID, the open opportunity society should not be an argument aimed at ignoring … [Interjections.]
Mr A WATSON: Madam Chairperson, on a point of order: Mr De Villiers is not from the ID. I ask the Minister to withdraw that and state the correct party, please. [Laughter.]
The HOUSE CHAIRPERSON (Ms N W Magadla): What do you mean? The DA and the ID are the same. [Interjections.] Did Mr De Villiers speak as a member of the DA? What do you …?
Mr A WATSON: He is the member of the DA, ma’am.
The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: But I said “Mr Wiley”.
Mr A WATSON: He is not a member of the ID!
The HOUSE CHAIRPERSON (Ms N W Magadla): At the end the Minister said “Mr Wiley”. Mr A WATSON: Her last words were “Mr De Villiers of the ID”! [Interjections.]
Mr A G MATILA: Chairperson …
The HOUSE CHAIRPERSON (Ms N W Magadla): Let us move on. I’ve made a ruling
- sit down.
The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: Chairperson, to Mr De Villiers of the ID, the open opportunity society should not be an argument aimed at ignoring …
Mr A WATSON: The Minister is repeating it! Shhhhhhhh!
The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: Oh, I’m responding to the DA now, yes, to Mr Wiley. Mr Wiley. Okay, I’m changing now.
The HOUSE CHAIRPERSON (Ms N W Magadla): The Deputy Minister was responding to the DA member.
Mr A WATSON: Yes, but she said “ID”!
HON MEMBERS: No! [Interjections.]
The HOUSE CHAIRPERSON (Ms N W Magadla): Okay. Continue, Deputy Minister. The DEPUTY MINISTER OF SOCIAL DEVELOPMENT: I made a mistake - I’m very sorry. [Interjections.] Okay. All right.
Secondly, it is clear that many of us endeavour to create an individualistic society and South Africa is not an individualistic society. People have been arguing for people to help themselves, even when it is clear that the grants are targeted at the sectors that I’ve spoken about.
I also want us to talk about the fact that we’ve been speaking about the social movement and the partnership between the government and civil society. We proved that we could do that when there was an economic downturn. Government, civil society, business and labour worked very closely in the National Economic Development and Labour Council, Nedlac. This presented us with an opportunity to prove that we were able to work together. During the 2010 Fifa World Cup we also proved that we are a united country, and a united society. Some of the things that are being raised here are very artificial. South Africa is a united country and we are aspiring to be a democratic, nonsexist, nonracial, united and prosperous country.
Lastly, the issue of community profiling is going to be continued. The Deputy President started with that programme and councillors in our wards are also busy with it. Community-based organisations and nongovernmental organisations are busy with profiling because it’s going to help us to target families that are poor and it’s going to help us to be able to deal directly with poverty, because you can’t just throw resources at it anyhow. To be able to deal with poverty, you need to understand where it is, so that you are able to root it out.
There has been talk about people who can’t repair their houses, and who are waiting for the government to repair those houses. We all know that our people do not have artisanal skills and the government has also pronounced on that. We as the government of the ANC have a programme focusing on that, and so we are on course. [Applause.]
The HOUSE CHAIRPERSON (Ms N W Magadla): Thank you, Deputy Minister. Your debate was hot!
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 agreed to in accordance with section 65 of the Constitution.
The Council adjourned at 15:53. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
FRIDAY, 27 AUGUST 2010
TABLINGS
National Council of Provinces
- The Chairperson
(a) Statement on allegations of fraud, corruption,
maladministration and other irregularities within Ehlanzeni
District Municipality (Mpumalanga) in terms of section 106(1)(b) of
the Local Government: Municipal Systems Act, 2000 (Act No 32 of
2000).
Referred to the Select Committee on Cooperative Governance and
Traditional Affairs for consideration.
(b) Statement on allegations of fraud, corruption,
maladministration within Midvaal Local Municipality (Gauteng) in
terms of section 106(1)(b) of the Local Government: Municipal
Systems Act, 2000 (Act No 32 of 2000).
Referred to the Select Committee on Cooperative Governance and
Traditional Affairs for consideration.
(c) The President of the Republic submitted the following letter
dated 7 July 2010 to the Chairperson of the National Council of
Provinces, informing members of the Council of the extension of the
employment of the South African National Defence Force for a service
in fulfilment of the international obligations of the Republic of
South Africa towards the United Nations for participation in the
third phase of the United Nations Mission in the Democratic Republic
of Congo:
EXTENSION OF THE EMPLOYMENT OF THE SOUTH AFRICAN NATIONAL DEFENCE
FORCE FOR A SERVICE IN FULFILMENT OF THE INTERNATIONAL OBLIGATIONS
OF THE REPUBLIC OF SOUTH AFRICA TOWARDS THE UNITED NATIONS FOR
PARTICIPATION IN THE THIRD PHASE OF THE UNITED NATIONS MISSION IN
THE DEMOCRATIC REPUBLIC OF CONGO
This serves to inform the Joint Standing Committee on Defence that I
have extended the employment of One Thousand Two Hundred and Fifty
Two (1252) members of the South African National Defence Force
(SANDF) for service in fulfilment of the international obligations
of the Republic of South Africa towards the United Nations (UN) for
participation in the United Nations peace mission in the Democratic
Republic of Congo (DRC).
This employment is authorised in accordance with the provisions of
section 201(2)(c) of the Constitution of the Republic of South
Africa, 1996.
Members of the SANDF were employed for service in fulfilment of the
international responsibilities of the Republic of South Africa
towards the UN in the UN peace keeping mission in the DRC. The
employment of these members expired on 31 March 2010.
The SANDF’s mission in the DRC is not yet completed. The employment
of 1252 SANDF members is now extended from 01 April 2010 until 31
March 2011.
I will communicate this report to members of the National Assembly
and the National Council of Provinces and wish to request that you
bring the contents hereof to the attention of the Joint Standing
Committee on Defence.
Regards
signed
J G ZUMA
Referred to the Select Committee on Security and Constitutional
Development.
(d) The President of the Republic submitted the following letter
dated 7 July 2010 to the Chairperson of the National Council of
Provinces, informing members of the Council of the extension of the
employment of the SA National Defence Force for a service in
fulfilment of the international obligations of the Republic of South
Africa towards the Democratic Republic of Congo:
EXTENSION OF THE EMPLOYMENT OF THE SOUTH AFRICAN NATIONAL DEFENCE
FORCE FOR A SERVICE IN FULFILMENT OF THE INTERNATIONAL OBLIGATIONS
OF THE REPUBLIC OF SOUTH AFRICA TOWARDS THE DEMOCRATIC REPUBLIC OF
CONGO
This serves to inform the National Council of Provinces that I have
extended the employment of Eleven (11) South African National
Defence Force (SANDF) personnel to the Democratic Republic of Congo
(DRC), for a service in fulfilment of the international obligations
of the Republic of South Africa towards the DRC to assist with
capacity building of the DRC Defence Force by providing a Specialist
Advisory Team.
This employment is authorised in accordance with the provisions of
section 201(2)(c) of the Constitution of the Republic of South
Africa, 1996.
Members of the SANDF were employed to assist the DRC Defence Force
with capacity building. The employment of these members expired on
31 March 2010.
The SANDF’s mission in the DRC is not yet completed. The employment
of 11 SANDF members is now extended from 01 April 2010 until 31
March 2011.
I will communicate this report to members of the National Assembly
and the Joint Standing Committee on Defence, and wish to request
that you bring the contents hereof to the attention of the National
Council of Provinces.
Regards
signed
J G ZUMA
Referred to the Select Committee on Security and Constitutional
Development.
TUESDAY, 31 AUGUST 2010
ANNOUNCEMENTS
National Assembly and National Council of Provinces
The Speaker and the Chairperson
- Classification of Bills by Joint Tagging Mechanism (JTM)
(1) The JTM in terms of Joint Rule 160(6) classified the following
Bill as a money Bill:
(a) Taxation Laws Amendment Bill [B 28 - 2010] (National
Assembly – sec 77).
(2) The JTM in terms of Joint Rule 160(6) classified the following
Bills as section 75 Bills:
(a) Transport Laws Repeal Bill [B 19 - 2010] (National
Assembly – sec 75).
(b) Voluntary Disclosure Programme and Taxation Laws Second
Amendment Bill [B 29 - 2010] (National Assembly – sec 75).
- Bills passed by Houses – to be submitted to President for assent
(1) Bills passed by National Council of Provinces on 31 August 2010:
(a) Criminal Law (Forensic Procedures) Amendment Bill [B 2B –
2009] (National Assembly – sec 75).
(b) Social Assistance Amendment Bill [B 5B – 2010] (National
Assembly – sec 76(1)).
TABLINGS
National Assembly and National Council of Provinces
- The Speaker and the Chairperson
(a) Report and Financial Statements of Parliament of the Republic
of South Africa, Vote 2, for 2009-2010, including the Report of the
Auditor-General on the Financial Statements and Performance
Information for 2009-2010, tabled in terms of section 59 of the
Financial Management of Parliament Act, 2009 (Act No 10 of 2009).
(b) Report and Financial Statements of the Office of the Auditor-
General for 2009-2010, including the Report of the Independent
Auditors on the Financial Statements and Performance Information
for 2009-2010 [RP 229-2010].
- The Minister of Tourism (a) Report and Financial Statements of Vote 25 – Department of Environmental Affairs and Tourism for 2009-2010, including the Report of the Auditor-General on the Financial Statements and Performance Information of Vote 25 for 2009-2010 [RP 181-2010].
(b) Report and Financial Statements of South African Tourism for
2009-2010, including the Report of the Auditor-General on the
Financial Statements and Performance Information for 2009-2010.
- The Minister of Labour
(a) Report and Financial Statements of Department of Labour – Vote
15 for 2009-2010, including the Report of the Auditor-General on
the Financial Statements and Performance Information of Vote 15 for
2009-2010, the Report of the Auditor-General on the Financial
Statements and Performance Information of the Sheltered Employment
Factories for 2009-2010 and the Financial Statements and
Performance Information of the National Skills Fund for 2009-2010
[RP 129-2010].
(b) Report and Financial Statements of the National Economic
Development and Labour Council (NEDLAC) for 2009-2010, including
the Report of the Independent Auditors on the Financial Statements
for 2009-2010.
(c) Report and Financial Statements of the Commission for
Conciliation, Mediation and Arbitration (CCMA) for 2009-2010,
including the Report of the Auditor-General on the Financial
Statements and Performance Information for 2009-2010 [RP 84-2010].
(d) Report and Financial Statements of the Compensation Fund for
2009-2010, including the Report of the Auditor-General on the
Financial Statements and Performance Information for 2009-2010.
(e) Report and Financial Statements of the Unemployment Insurance
Fund (UIF) for 2009-2010, including the Report of the Independent
Auditors on the Financial Statements and Performance Information
for 2009-2010 [RP 134-2010].
(f) Report and Financial Statements of Productivity SA for 2009-
2010, including the Report of the Independent Auditors on the
Financial Statements and Performance Information for 2009-2010 [RP
132-2010].
- The Minister of Public Enterprises
(a) Report and Financial Statements of the Department of Public
Enterprises – for 2009-2010, including the Report of the Auditor-
General on the Financial Statements and Performance Information for
2009-2010 [RP 201-2010].
(b) Report and Financial Statements of Denel (Proprietary) Limited
for 2009-2010, including the Report of the Independent Auditors on
the Financial Statements and Performance Information for 2009-2010.
COMMITTEE REPORTS
National Assembly and National Council of Provinces Report of the Constitutional Review Committee On 2009 Public Submissions
-
Introduction
In terms of section 45 of the Constitution, Parliament has to establish a joint committee to review the Constitution at least annually.
In giving effect to this provision, the Constitutional Review Committee placed advertisements in the media on 17, 18 and 19 July 2009 inviting public submissions regarding changes to the Constitution. In all, 15 submissions were received.
The Committee requested the Parliamentary Legal Services office to consider each of the submissions in the light of current jurisprudence.
Hereunder are brief summaries of the submissions of the public, as well as the Committee’s views and its recommendations.
-
Summaries of public submissions
Submission 1 by Mr Jerome Veldsman
The submitter suggests that “the value of human dignity, the achievement of equality and the advancement of human rights and freedoms” require that “the Constitution ought to be sanitised of bias in favour of religious persons to the disadvantage of persons who do not hold supernatural or deity beliefs.” He proposes the review of sections 6(5)(b)(ii),15(2), 16(2)(c), 35(2)(f)(iii), the first item in the Table of Non-Derogable Rights in section 37, and Schedule 2 of the Constitution.
Section 6(5)(b)(ii) Section 6 (5) (b) (ii) requires that the Pan-South Africa Language Board (Pansalb) “promote and ensure respect for Arabic, Hebrew, Sanskrit and other languages for religious purposes in South Africa.” The submitter argues that Pansalb is an organ of state funded by public resources. Therefore the use of public resources “is repugnant to the rule of separation of State and Church”. He suggests that section 6(5) (b) (ii) to be deleted in its entirety.
The Committee feels that the suggestion that section 6 (5)(b)(ii) be deleted would not be necessary. The rule which the submitter uses as a premise; namely, the rule of separation of state and church is not part of South African constitutional jurisprudence.
Conclusion
The Committee is of the opinion that the proposal made does not warrant a review of the Constitution.
Section 15(2),
Mr Veldsman argues that the provision in section 15(2), which allows “religious observances” at state or state-aided institutions, is logically inconsistent. He submits that the practice at any state or state–aided institutions is to integrate religious observances into meetings where attendance is not free and voluntary. Further he holds that the national policy on religion and education is “intellectually dishonest” in its provision that pupils may be excused on grounds of conscience from attending a religious observance component. He suggests that the inclusion of sub-clause (d) to section 15(2) in order to provide that “no religious observances may be conducted at state or state-aided institutions at any meeting or activity at which attendance is not free and voluntary”.
The Committee acknowledges that the argument by Mr Veldsman is a constitutional matter. However, it is of the view that the suggestion is tautologous, as section 15(2) (c) already provides for this. Furthermore, the Constitution is not opposed to religion, but values the role it plays in the society.
Conclusion
The Committee is of the opinion that the submission does not warrant a Constitutional amendment.
Section 16 (2) (c),
Mr Veldsman suggests that section 16 (2) (c), which provides that “the right to freedom of expression dose not extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” is deficient, as it does not include the full ambit of human contemplation. He argues that advocacy of hatred based on conscience, thought, belief and opinion is as repulsive as the advocacy of hatred based on religion. He suggests that the omission of these words in section 16(2)(c) might even be construed as permitting advocacy of hatred based on conscience. He therefore suggests that the terminology used in section 15, namely: “conscience, thought, belief and opinion” should be included in section 16(2) (c).
The Committee is of the view that section 16(2)(c) circumscribes the right to freedom of expression. However, developing the inherent limitation contained in section 16(2)(c), as suggested by the submitter, would limit the right to freedom of expression..
Conclusion
The Committee is of the opinion that the suggestion by the submitter is a policy matter and does not warrant any review of the Constitution.
Section 35(2)(f)(iii)
Mr Veldsman argues that there is no logical or rational reason to restrict the nature of counselling in section 35(2)(f)(iii), which permits everyone who is detained , including every sentenced prisoner, to communicate with, and be visited by, the persons “chosen religious counsellor”. He suggests that section 35 (2)(f)(iii) ought to be amended by omitting the word “religious” and substituting it with the insertion of the word “contemplation”.
The Committee, in deciding on its position on this matter, considered the approach of the Constitutional Court in the Christian Education case, in which the Constitutional Court found that the right to freedom of religion, belief and opinion in an open and democratic society contemplated by the Constitution is important. Further it decided that, although the rights of non-believers and minority faiths must be fully respected , the religious beliefs held by the great majority of South Africans must be taken seriously” (at par [89]).
Conclusion The Committee is of the opinion that there is no need to amend section 35(2)(f)(iii), if the view of the Constitutional Court is accepted that not all religions are deistic.
Table of Non-Derogable Rights found in section 37
Me Veldsman argues that there exists no logical or rational reason to distinguish between the protection of the right to equality “with respect to unfair discrimination solely on grounds of …religion” in the first item in the Table of Non-Derogable Rights found in section 37, from “any derogation“ under a state of emergency, and contemplation that does not include supernatural/deity beliefs. He therefore suggests that the word “religion” be replaced with the words “conscience, religion, thought, belief and opinion”.
The Committee does not agree with the proposal of replacing the word “religion” with “conscience, thought, belief and opinion”. Developing the non-derogable rights as suggested by the submitter would allow less scope to achieve the aims of the state of emergency, which is to restore peace and order. The Committee views this as a policy matter that does not warrant a review of the Constitution.
He further argues that the inclusion of the words “(In the case of an oath: So help me God.)” in the oaths found in Schedule 2 is not necessary and contradicts the Constitutional Court’s view that the Constitution is secular. He therefore suggests that those words in Schedule 2 should be deleted.
The Committee is of the view that the approach applied in the two cases, namely Christian Education South Africa v Minster of Education (2000 (10) BCLR 1051 (CC) at par [36 ] and Minister of Home Affairs and Another v Fourie and Others; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others (2006 (3) BCLR 355 (CC)) , in which the Constitutional Court indicated the importance of religion, should be applied here.
In reading the two cases, the Committee is of the view that it does not appear that the Constitutional Court regards protection of religious communities in the Constitution as contradictory to the secular nature and legal interpretation of the text.
Conclusion
The Committee is of the opinion that the submission made does not warrant a review of the Constitution. Submission 2 by NABCAT Limpopo
The submission proposes a review of the Construction Industry Development Board Act 38 of 2000. NABCAT alleges that the Construction Industry Development Board (CIDB) was established to groom emerging contractors and capacitate them to participate in government projects, but has failed to do so. It further alleges that the CIDB’s rating of construction companies disadvantages black-owned construction companies and perpetuates past imbalances in the construction industry. Conclusion
The Committee is of the view that the NABCAT submission does not propose the review of a constitutional provision, but rather the possible review of an Act of Parliament relevant to this particular issue.
The Committee recommends that matter be referred to the Director- General of the Department of Public Works and- the submitter be advised as such.
Submission 3 by Rashid Patel & Company
The submission is on the infringement of Constitutional rights. The submitter proposes that the Constitution should be amended to incorporate a provision which will give subjects a right to lay criminal charges against officials when they infringe Constitutional rights.
The Committee is of the view that the submission does not specify the Constitutional right(s) that officials allegedly breach. However, section 38 of the Constitution deals with the enforcement of rights.
The Committee is therefore of the view that the proposal does not warrant any amendment to the Constitution.
Conclusion
The Committee has recommended that this matter be referred to the relevant Parliamentary Committee and/or the Director-General of the Department of Public Service and Administration - the submitter be advised as such. Submission 4 by Mr McLeod
It was submitted that all references to God be removed from the Constitution to confirm the secular nature of the Constitution. It was also suggested that the Constitution should establish and include basic rights in accordance with the precepts of Ubuntu for sentient beings, including animals.
The Committee is of the opinion that the Constitution is founded on the equality principle and is the supreme law. As such there is no confusion or conflation of the Constitution with ‘God’s law’. Section 15(2) indicates that the state has a strong interest in religious bodies. Further it found that the Constitution is not opposed to religion, but values the role it plays in the society.
On the proposal on the establishment and inclusion of basic rights in accordance with the precepts of Ubuntu for sentient beings, including animals, the Committee does not support the suggestion for the inclusion of positive rights for animals in the Constitution. It draws its conclusion on this matter from the judgements in the cases of Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 (CC) and the Azanian Peoples Organisation and Others v President of the Republic of South Africa and Others 996 (8) BCLR 1015 (CC), as well as the judgment of Mokgoro J in S v Makwanyane and Another 1995 (6) BCLR 665 (CC) which recognized that fundamental rights were already infused with the precepts of Ubuntu. It feels that legislation that guarantees the protection of animals is sufficient.
Conclusion
The Committee is of the view that the submission does not warrant a constitutional review.. Submission 5 by Sekwele Centre for Social Reflections (SCSR)
The submissions by the SCSR are as follows:
(1) Children’s Rights: section 28
The proposal is for the limitation of section 28 of the Constitution so as to “restrict the conditions in which termination of pregnancy should be performed”. The submitter recommended that abortion should be limited to instances where pregnancy poses a health risk to the baby or the mother, and where pregnancy was a result of rape.
The Committee is of the view that section 28(2) of the Constitution provides that the child’s best interests are of paramount importance in every matter that concerns the child. This section does not regulate abortion. The Choice of Termination of Pregnancy Act, 1996 (Act No.92 of 1996) deals with the termination of pregnancy. It would seem that the submitter proposes for the amendment of the Constitution, bypassing legislation that gives effect to a Constitutional right. The Committee notes the legal principle applied in the case of NAPTOSA and others v Minister of Education, Western Cape and Others 2001 (4) BCLR 388 (C).
Conclusion
The Committee is of the opinion that the submission does not warrant any constitutional review.
(2) Education Rights: section 29(1)(a)(b) and section 29(3)
The SCSR proposes that an amendment should be made to section 29 (1) to provide for free basic education at least up to a Grade 12 level. The Committee is of the opinion that it would not be necessary to amend the relevant section, as it already places a positive obligation on the state to take reasonable measures to progressively make both basic and further education available and accessible to everyone.
SCSR also suggested that section 29(1)(b) should be amended so as to relieve graduates of the legal obligation of repaying a loan obtained through the National Student Financial Aid Scheme (NASFAS).
Conclusion
The Committee decided that these should be referred to the Parliamentary committees on Basic and Higher Education respectively, and the submitter should be advised as such.
(3) Section 25 Property
The SCSR proposes the scrapping of section 25 of the Constitution in its entirety. The argument is that this section is serving the interest of the rich at the expense of the poor. It further holds that section 25 is the cause of the widening gap between the rich and the poor.
Conclusion
The Committee has decided that the submission be deferred pending further consultation by the political parties.
Submission 6 by Dr M Pheko
The submission proposes an amendment in section 25(7) of the Constitution. The proposal concerns the effectiveness of section 25 of the Constitution in addressing past injustices.
Conclusion
The committee decided that the submission be deferred pending further consultation by the political parties.
Submission 7 by Mpumalanga Provincial House of Traditional Leaders (MPHTL)
The submission by the MPHTL suggests the following:
(1) The roles and functions of Traditional Councils must be defined in Chapter 12 of the Constitution. (2) The status of the House must be defined - whether it is a public entity or part of Parliament.
(3) Recognition of traditional leadership must include all layers of traditional leadership.
(4) Intergovernmental relations must be amended to include the institution of Traditional Leadership.
(5) The House’s financial management must be regulated by the Financial Management of Parliament Act.
The submission by the MPHTL is still under consideration.
Submission 8 by Mr or Ms Ruiters
The Committee could not consider the submission as it was not legible and the submitter could not be traced.
Submission 9 by Anne-Marie Robb
The submitter requests the Committee to address the issue of legal capacity, especially in relation to mental health care users. She suggests that the Constitution should make it clear that legal capacity of persons cannot be taken away from them arbitrarily. She also submits that the term “conscience” may seem to suffice, but including “psychosocial/physical disability “will enrich the Constitution in line with the United Nations Convention on the Rights of People with Disabilities.
The Committee is of the view that the request by the submitter is sufficiently addressed in the Constitution, the Mental Health Care Act and in general in the South African law of persons.
Conclusion
The Committee recommends that the submission be referred to the Director- General of the Department of Justice and Constitutional Development for further explanation on issues of legal capacity status- the submitter be advised as such.
Submission 10 by Mr Thamsanqa Robert Ncube The submission deals with the connections between material and political inequality. However, while the submission makes reference to the inter- relationship between “material and political inequality and how protests formed around demands to address the former may have positive consequences”, the submitter does not propose an amendment to the Constitution as such.
Conclusion
The committee is of the view that the matter does not warrant a review of the Constitution. Submission 11 Advocates for Transformation (AFT) - Gauteng
The submission recommends that Parliament should amend sections 168(3), and 172, as well as sections 8 and 38 of the Constitution. In regard to section 168(3), the proposal is for the exclusion of all matters which fall within the jurisdiction of the Labour Appeal Court from the jurisdiction of the Supreme Court of Appeal.
The AFT also argues that section 8 has been interpreted to mean that common law or legislation must be relied on to invoke right in the Bill of Rights. They argue that this is an incorrect interpretation and that Parliament should amend this clause to make it clear that this is not what is intended.
The AFT is of the view that section 38 of the Constitution has to be dealt with in conjunction with section 172, which makes it clear that, once a court has found that the law or conduct is inconsistent with the Constitution, it has to declare such law or conduct invalid to the extent of its inconsistency.
Conclusion
The Committee decided that the matter should be referred to the Portfolio Committee on Justice and Constitutional Development and advises the submitters to make a submission when the Superior Courts Bill and the Constitution 19th Amendment Bill are tabled.
Submission 12 by Mr Mkhalipi
The submission is on the distortions in the copies of the Constitution which mark 10 years of freedom. The submitter questions whether the significance of the Constitution is appreciated in respect of the manner in which the text is distributed and its value is promoted. The submission indicates that the “most recent copies of the Constitution in circulation contain several embarrassing errata” and argues that the “oversight authority”, which is Parliament, might need to proof-read and certify all updated editions of the Constitution.
The Committee is of the view that the issue is not a “Constitutional matter” that would require a Constitutional review.
Conclusion
The Committee recommends that the matter needs to the referred to the Director-General of the Department of Justice & Constitutional Development and the publishers.
Submission 13 by the National House of Traditional Leaders (NHTL)
The submission proposes amendments to Chapter 12 of the Constitution. The NHTL also argues that the chapter of the Constitution, which deals with Local Government, deprives traditional leaders of their right to govern their own communities. It proposes that the powers, functions and duties of any Local Government be performed by traditional leaders to ensure that service delivery and development in traditional communities take place rapidly. It further suggests that, where an organ of state has allocated a role or function to traditional councils or traditional leaders, the organ of state must monitor the implementation of the function and ensure that the implementation of the function is consistent with the Constitution. Where a traditional council does not perform an allocated function, any resources given to a traditional council to perform that function may be withdrawn. The NHTL also suggests that traditional leaders should be represented in all legislative-making bodies, including Parliament.
The submission by the NHTL is still under consideration.
Submission 14 by IDASA The submission proposes an amendment to section 47(1) of the Constitution.
Conclusion
The Committee has decided to defer the submission for further consultation by parties.
Submission 15 by Mr Ismail
The submission by Mr Ismail is not a submission in respect of a Constitutional amendment, but rather a request for legal advice on the legal remedies available to restitution claimants who are dissatisfied with compensation paid to them in respect of their land claims.
Conclusion
The Committee is of the view that this matter does not fall within its jurisdiction. The Committee has decided that Mr Ismail should be advised to approach the nearest justice centre for advice on the legal remedies. Index of submissions received:
| | | |Number |Submitter | |1 | Mr Jerome Veldsman | |2 |NABCAT Limpopo | |3 |Rashid Patel & Company | |4 |H Mcleod | |5 |Sekwele Centre for Social Reflection | |6 |Dr M Pheko | |7 |Mpumalanga House of Traditional Leaders | |8 |Mr or Ms Ruiters | |9 |Ms Anne-Marie Robb | |10 |Thamsanqa Robert Ncube | |11 |Advocates for Transformation-Gauteng | |12 |Mr Mkhaliphi | |13 |National House of Traditional Leaders | |14 |IDASA | |15 |Mr M Ismail |
Report to be considered.
National Council of Provinces
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Report of the Select Committee on Social Services on its oversight visit to Princess Mandisa Health Care Centre, Benedictine Hospital and Hlabisa Revitalisation Hospital, in Nongoma, Kwazulu Natal on 17 March 2010, dated 28 July 2010
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Introduction
The Select Committee on Social Services undertook an oversight visit to two (2) health centres as well as one (1) hospital revitalisation programme in Nongoma, Kwazulu - Natal on Wednesday 17 March 2010. The visit also aimed to contribute to the Committee’s mandate of ensuring that Provincial interests are taken into account in the National Sphere of Government.
Delegation
The committee consisted of a Multi-Party delegation led by Hon. R N Rasmeni (Chairperson, ANC, North West), Hon.M W Makgate (ANC, North West), Hon. M J R de Villiers (DA, Western Cape), Hon. M L Moshodi (ANC, Free State), Hon. W F Faber (DA, Northern Cape), Hon. T A Mashamaite (ANC, Limpopo), Hon. M G Boroto (ANC, Mpumalanga), Hon. D Z Rantho (ANC, Eastern Cape) and Hon. Prince M M M Zulu (IFP, Kwazulu - Natal).
The following officials accompanied the delegation:
Ms. M Williams, Committee Secretary, Mr. M Dlanga, Committee Secretary and Ms. C Adams, Committee Assistant.
2. Activities and Proceedings
The Committee interacted with the officials from the Health centre and hospitals. The Committee was then briefed on the challenges facing these hospitals and the health centre. The main issues that took the centre stage in the meetings were the challenges faced, such as lack of water, electricity, roads, infrastructure, staff and resources.
3. Princess Mandisi Health Care Centre [Ulundi]
The Committee was informed that the establishment of the centre was triggered by the increasing rate of orphans in the area. Services offered include voluntary counselling and testing, health education, mentorship, food gardening and adult basic education and training as well as a ground breaker programme, which is a programme similar to mentorship.
The Committee identified the following challenges:
►a vacant post for a professional nurse exists because of insufficient funds to fill the post.
►After testing patients for HIV/ AIDS and TB, counselling is given then
patients are referred to surrounding hospitals for treatment. ARVs are
not administered at the centre, due to the unavailability of a
professional nurse.
►the municipality has donated seedlings with the aim of starting a food
garden to assist in supporting the centre financially. These
vegetables are sold as an income for the centre.
►The centre receives no funding, however sponsors are being approached.
Recommendations
The Department of Health and Social Development should be approached to
assist with funding initiatives.
➢ The Department of Health should assist by making resources
available in terms of training, human resource and medicines.
➢ The centre should aim to strengthen campaigns and initiatives.
➢ The centre should register as an NGO with the relevant
Department as soon as possible.
➢ The Department of Health should fill the vacant nursing posts
that exist.
4. Benedictine Hospital
The Committee was informed that services offered include gynaecological, mental health, occupational health, rehabilitation, casualty, surgery, paediatrics, forensics as well as out patient services. Support services include anaesthetics, theatre and radiology. Also, pharmacy, laboratory, blood bank and dental clinic services.
The Committee identified the following challenges:
►There are no available hospitals in the district, thus there is a high
demand placed on Benedictine hospital.
► Sanitation is a big threat due to the lack of running water.
►Electricity is scarce and unreliable.
►Roads are in a very bad condition.
►Due to the low employment rate, poverty is a disturbing factor.
►HIV and TB infections are high as well as meningitis, as is herbal
infections in adults due to communities treating themselves with herbs
before seeking medical attention.
►High rates of gastro and herbal intoxication by children.
►The outpatient head count is extremely high.
Recommendations
➢ The Provincial and National Governments should be requested to
intervene with regards to water supply and assist by erecting
green water tanks.
➢ Service delivery must be addressed, for example, the empty
reservoir at the hospital and the turning off of the water supply
by the municipality, mostly during the evenings.
➢ There should be an integration of service delivery plans at all
spheres of government.
➢ The Department of Health should consult with traditional leaders
with regards to service delivery issues.
5. Hlabisa Revitalisation Hospital
The Committee was informed that the hospital revitalisation programme
has four components to it. These include infrastructure, health
technology, equipment and furniture, organizational development and
quality assurance.
Furthermore, the Committee was informed that the hospital was undergoing
revitalisation in 2 phases. Phase 1 includes doctors’ accommodation,
housing for nurses, a pathology laboratory, recreational facilities,
refurbishments of the sterilisation department and a guard house. Also,
the conversion of the boiler house to a laundromat, the relocation of
the mortuary and miscellaneous demolitions. Upgrades of female and
male wards are also included. This culminates in a revamp at a cost of
R113 million.
Phase 2 is fully designed, documented and ready to go to tender. It
comprises a pharmacy, X-ray department, medical, surgical and maternity
wards, theatres, laundry and a mortuary. Currently phase two was put on
hold because of other projects taking priority. The estimated total cost
is calculated at R775 million.
The Committee identified the following challenges:
►The supply of water is a continuous problem at the hospital.
►The water pipeline will only reach completion within the next two years.
►The entire process of tendering, planning, construction and
finalization of projects at the hospitals various stages is time
consuming.
►The hospital is dilapidated and in a very bad condition, structures
could collapse at any day more especially the OPD and pharmacy.
Recommendations
➢ The Committee reiterated the words uttered by the President of
South Africa that the project management team should work faster,
harder and smarter as the hospital is a necessity in this
location.
➢ The HOD present at the meeting should raise and present these
problems to the MEC and consider reprioritisation of the hospital.
6. Conclusion
The visits to the health centres as well as the hospital revitalisation
programme in Nongoma provided the Committee with an overview of the
challenges faced by these centres/ hospitals. The Committee commended
the staff at the various centres for their inputs and agreed that theses
challenges will be addressed with the relevant departments.
Report to be considered