Judicial Matters Amendment Bill: Departmental responses; Traditional Courts Amendment Bill update, in presence of Minister of Women, Children, People with Disabilities

Meeting report

Judicial Matters Amendment Bill: Departmental responses
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development responded to the question asked by Members in the previous week on those aspects of the Judicial Matters Amendment Bill (the Bill) that concerned the salary determinations for Prosecutors. At the moment, the Minister of Justice made determinations on salaries and declaration of public prosecutions, rather than the Minister for Public Service and Administration (PSA). He noted that this arrangement had been in place since 1998, when the National Prosecuting Authority (NPA) Act came into force.

Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development, said the Bill aimed to do away with the need for “double consultations” that were presently needed in relation to cost of living allowances. At the moment, any increases of salaries in the public service generally were dealt with by the Minister for PSA. However, although prosecutors were also public servants, a separate process then again had to be followed, whereby the Minister of Justice had to consult with the Minister of Finance and Minister for PSA, before those adjustments could be gazetted by the Minister of Justice in relation to prosecutors.

Mr Robbertse had previously indicated that the legislation for the NPA was drawn in terms of section 179 of the Constitution, which, amongst other things, said that a Cabinet Member responsible for Justice must exercise final responsibility over the NPA. All matters to do with the NPA that were not covered in the Constitution must be dealt with in separate national legislation, to give effect to the Constitution, and the remuneration of the prosecutors was one of these mattes.

Members had raised concerns that the fact that a different Minister was determining the salaries raised the possibility of corruption. However, he said that there were safeguards. Firstly, if the Minister of Justice made a determination on the salary dispensation of prosecutors, it must be submitted to Parliament, which had oversight, and if Parliament rejected this, the Minister could not proceed. Clause 9 of the Bill contained another safeguard against arbitrary increases for cost of living, as it stated that those must be done in accordance with the cost of living adjustments for legally qualified personnel in the public service. Therefore, the Minister of Justice could not determine an amount different to that determined by the Minister for PSA.

Mr Robbertse said that there were other instances in the Constitution that assigned responsibility to a separate Minister, other than the Minister for PSA, for some public service functions. The reasons for the Minister of Justice’s involvement was linked to the independence of the NPA. He read out extracts from Hansard at the time that the NPA Act was debated. The then-Minister of Justice had said that the Bill took a big step forward in fixing salaries for prosecutors, because there was significant de-linking of this in the process from the general public service. He had pointed out that in the past, the fixing of salaries and conditions was always problematic since negotiation of the salaries in the central bargaining chamber failed to take account of their particular needs and concerns. Adv Willie Hofmeyr had also commented the de-linking of the salaries was an important part of establishing an independent NPA in the democracy.

Members had also queried whether there were consultations with unions representing the prosecutors on this amendment. Mr Robbertse said that this was not considered necessary, because this amendment was in fact to the advantage of the prosecutors, as they would be paid their increases more timeously.

Mr Bassett added that the debates in 1998 had resulted in the present wording of section 18 of the NPA Act, relating to prosecutorial independence. This independence was slightly different from judicial independence, but was still independence, and was in line with international guidelines on the role of prosecutors. He reiterated that the amendment was aimed at doing away with the unnecessary additional processes that had delayed the prosecutors receiving their allowances in the past, because the general increase set for the rest of the public service would simply be applied immediately for prosecutors by the Minister of Justice, without the need for further consultation.

Discussion
Mr M Makhubela (COPE, Limpopo) sought clarity on why there was no consultation with the unions.

Mr Robbertse said that the NPA itself had requested the amendment, on behalf of prosecutors. The amendment would not adversely affect their conditions of service, so there was nothing on which the unions needed to be consulted

Mr Makhubela wondered why overseas laws were not quoted earlier as authority to substantiate this amendment.

Mr Robbertse stated that there was little legislation that was directly comparable, since prosecutorial systems differed, and it had been difficult to substantiate this particular wording with a foreign example.

Mr D Joseph (DA, Western Cape) noted previous legislative amendments to the NPA Act since 1998, and wondered why this was not been effected previously if it was so important.
Mr M Manzini (DA, Mpumalanga) asked for clarity on why this amendment was stated to be to the advantage of the prosecutors.

Mr Bassett explained that the problems he had outlined with the delays had been particularly bad in the last couple of years. He reiterated that, in practice, all other public servants would get their increase after this had been determined by the Minister for PSA, but the long process then had to be repeated for prosecutors, despite the fact that their increase was exactly the same. This had resulted in the prosecutors only getting their increases after several months.

Mr L Nzimande (ANC, KwaZulu Natal) understood the references to section 179, but thought that the Committee should put on record that this situation did not make for consistent application of executive policy, and perhaps other laws needed to be amended. He proposed that the Committee should, however, approve the Bill.

Mr Joseph supported the principle that all public servant increases should get their increases at the same time, although he too felt that different departments or Ministers should not be able to have separate negotiations, particularly around the “cost of living”, as this might generate competition within the public service.

Mr D Bloem (COPE, Free State) supported Mr Nzimande’s point and agreed that the Bill should be adopted, with the Committee’s reservations noted.

The Acting Chairperson urged the Department of Justice and Constitutional Development (the Department) to go back and try to bring the salary arrangements in line, and asked that the Department should bring a clear amendment, by the end of the year, to ensure that all public servants were dealt with under the same process.

The Acting Chairperson formally confirmed the adoption of the Bill, and read out the Committee Report.

Traditional Courts Amendment Bill update
The Acting Chairperson welcomed Ms Lulu Xingwana, Minister of Women, Children and People with Disabilities. He noted that any member of the public would be able to attend and make input on this matter. He reminded the Committee of the provincial public hearings, and the fact that the Committee had received (but not yet debated) negotiating mandates from eight provinces. In light of this, he stressed that the Bill was no longer the responsibility of the Department of Justice & Constitutional Development, but of this Committee, and any amendments would be made by the Committee. He asked, however, if the officials from that Department wished to comment now on the Bill.

Mr Bloem said that he wished to make a proposal that the Bill be withdrawn by the Committee, and the Department be asked to re-draft. However, he also wanted to speak to the Acting Chairperson’s request whether the Department wished to comment at this stage, and said that although there was a view, based on executive announcements, that the Bill would be re-written, it was up to the Committee to decide what would happen.

Mr Nzimande said that the context of the process thus far must be summarised. The Committee had received negotiating mandates from most provinces. At a previous meeting in June, the Mpumalanga Provincial Legislature (MPL) had requested that it be given an extension of time to submit its negotiating mandate. The Committee had also resolved that, in light of other comments, the Committee should be flexible and allow provinces, if they wished, to hold further public hearings and consultations to interact on the Bill. He too stressed that it was not up to the Department any longer to make any proposals on the Bill. There had been huge interest in the Bill, and several sensitivities were expressed by legal experts and the media. Whilst it might be useful to hear comment from the Department, it must be understood that this was a section 76 Bill, and the provinces had a greater say in this legislation.

Mr Joseph supported Mr Nzimande’s views, and added that some provinces had indicated that the Bill did not meet with favour during the public hearings. There was a fundamental challenge in that many women’s organizations were not consulted when the Bill was initiated.

Mr J Mahlanga (ANC, Mpumalang Provincial Legislature representative) explained that MPL stood by its request that more time for consultation was needed, although this province had done “reasonable” consultation, and although “full” consultation was never possible, and based its comment on the representations made.  His portfolio committee had given him as a mandate to consult with the NCOP and other provinces. MPL suggested that it would be useful for the NCOP to convene an extended meeting at which all provincial legislatures could interact. MPL took the view that this Bill merely sought to replace the courts set up under the Black Administration Act, and believed that the ethos behind any new legislation should be an attempt to achieve restorative justice and reconciliation. For this reason, it suggested that the name of the Bill be changed, from “Traditional Courts Bill” to “Restorative and Reconciliation Bill”. Some of the ethos and principles in the existing Bill were fair, but MPL felt that those presiding over the courts need not be traditional leaders, but instead should be people whom the community thought competent – they may be traditional leaders, but equally could include a priest, retired magistrate, or teacher who was respected and accepted by the community. Apartheid patterns should not be perpetuated. He added that he had no doubt that people in cities, outside of the traditional communities, would also prefer settlement of a dispute rather than approaching the courts, He reiterated that MPL still wished to undertake a comprehensive review of the possibilities, but also wanted to debate how best to roll out another process. It would formalise the negotiating mandate after this meeting.

Mr Bloem noted that, at the last meeting, the Committee had agreed to go back to the provinces for further public hearings on the Bill. If the Department were to give input now, this would not be heard by the Provincial Legislatures. He proposed again that the Bill be withdrawn and rewritten before being presented again to the Committee.

Mr B Nesi (ANC, Eastern Cape) said that although he not been present at the last meeting, he had the impression that the Committee was now going round in debates. He agreed that it seemed to make little sense to call for input now from the Department if Mpumalanga had asked for an extension for public hearings, and if further feedback had not been received from the other provinces. Eastern Cape Provincial Legislature had clearly set out its views on the Bill.

The Acting Chairperson reminded Members that section 76 legislation had a six-week cycle, and the first concern was that this cycle had already been exceeded. Although the Committee had reached the stage of dealing with negotiating mandates, it could still seek clarity from the Department. He summarised that eight provinces submitted negotiating mandates and that seven had rejected the Bill. (He later corrected this point and said that four had rejected the Bill whilst the others sought amendments). KwaZulu Natal had agreed with it in principle but suggested some amendments. He agreed that a decision  had been taken previously to hold further public hearings and consult with the provinces again. He noted MPL’s request for more time for further public hearings. However, the Department had been asked to attend because of the issues raised in the public hearings and the media. The Committee could accept or reject any input from the Department or anyone else. Now the negotiating mandates had been submitted, the Committee must follow the process and it was not possible to withdraw the Bill as suggested by Mr Bloem.

Mr Bloem said all nine provinces were represented at the last meeting when the decision was taken to have more public hearings, and only the Free State representative (Mr van Rooyen) had said that his province did not believe those were necessary. He reiterated that if anything new was mentioned by the Department, the provinces would not hear it. If his proposal to withdraw the Bill now was not accepted, then he would like to propose, instead, that this meeting be adjourned, that the provinces be invited to attend another meeting at which they too could hear what the Department presented.

The Acting Chairperson indicated that, whilst only the MPL had sent another delegate,  the Members themselves were representative of the provinces.

Mr Bloem said that he did not have a mandate.

The Acting Chairperson said the Committee had already received the negotiating mandates. He suggested that it made sense to halt the proceedings, and then, at the next meeting, have all the mandates available for discussion, and then seek further clarity from the Department, if necessary. He suggested that MPL and KwaZulu Natal should be asked how they wanted to deal with this. There had been proposal to hold a second round of public hearings to deal with issues raised by the Minister of Women, Children and People with Disabilities, and other organisations. He agreed that the Committee did seem to be talking round the issues, and it was unfortunate that this legislation had been delayed by other pressing legislative considerations.

Ms Lulu Xingwana, Minister of Women, Children and People with Disabilities, wanted to place on record that she had written to the Minister of Justice and Constitutional Development, the Chairperson of the NCOP and Speaker, and the first two had responded. She noted that several concerns had been raised, and although she did not want to deal with the substantive issues now, she would appeal that women be given the opportunity to speak, when public hearings were held, either in the provinces or Parliament. In KwaZulu Natal, women had been informed that they were not invited to the hearings, had no right to attend and were not permitted to speak, although this was their constitutional right. She reminded the Committee that the Bill was to be implemented in rural areas, which were 70% comprised of women. The Bill clearly stated, in clause 4, that traditional leaders were consulted, and this obviously meant that it did not include women. She urged that the views of women, and particularly rural women, must be taken into consideration.

Mr Nzimande commented on Mr Bloem’s concerns, saying that until this Committee took a decision, the Bill remained as tabled. After negotiating mandates were given, a C-version of the Bill would be sent out, and provinces may even insist on the D version. It was not correct to assume that input from the Department would result in amendments, as it was merely intended to assist this Committee in capturing what the public wanted.

Mr Nzimande responded to the Minister’s concerns by noting that he had attended two of the public hearings, in Port Shepstone and Stander in KwaZulu Natal, and a women’s organisation had attended and made representations, so it was clear that they had been allowed. He could not comment on the other hearings but conceded that it may have been possible that women were denied entry.

Mr Nzimande also reminded Members that the Eastern Cape had indicated that it would not repeat the public hearings, because it had given a mandate to reject the Bill as it stood. He had understood that the public hearings were to be held in Cape Town, to give further opportunities to those who had not already been heard. If the Committee were to decide to ask the provinces to re-open public hearings, then it must write to the Provincial Speakers to ask the legislatures to  re-advertise and follow another process. They must assess whether whatever was received from further consultations allowed the provinces to present their negotiating mandates. He reiterated that whatever took place in this meeting would not adversely affect the provinces, and they would be included in any further consultation. If the Committee came to the conclusion, after following all the processes, that the Bill was not desirable, then it could decide so, but at the correct time.

Mr Manzini reiterated that MPL had requested an extension.

A Member proposed that further debate be postponed.

The Acting Chairperson said he intended now to adjourn the meeting. However, he noted the following points:
- The Committee Secretary was asked to circulate all documents, including negotiating mandates, to Members, so that they were able to read them before the next meeting
- Provincial Chairpersons of portfolio committees would be invited to attend any meeting at which the Department would make further inputs
- The Committee would try to arrange two or three public hearings in Parliament, to allow the Committee to move forward on the Bill
- Whilst the negotiating mandates were noted, any further inputs would be conveyed to the provinces to allow them to give their final mandates.
- The Committee should ideally have gone through the B and C versions of the bill by the end of September.

Mr Nzimande noted that those provinces rejecting the Bill or proposing amendments should be asked specifically what their next advice would be. He had a negotiating mandate but would convey any further input to his provincial legislature, which would then either reject it, accept it, or note that it did not feel it necessary to attend a meeting in Cape Town. He had thought that it would make sense to get input from the Department, while its officials were present. At the moment, he had nothing new to report back to his legislature.

The Acting Chairperson noted that the Members had spent substantial time debating the process.

Mr Nesi agreed that it would be useful to get the input and documentation from the Department; although it may be nothing new, it was necessary to hear it.

Mr Bloem, following up on Mr Nzimande’s point, wondered why, in light of objections by the provinces (at this stage it was still believed that seven had rejected the Bill) the Bill was not simply to be withdrawn. Whilst he would abide by the Chairperson’s ruling, he had problems with the principle and reiterated his proposal to withdraw the Bill.

The Acting Chairperson made a correction, noting that one mandate was outstanding and four provinces had rejected the Bill outright, with four suggesting amendments. He asked that the Department provide further written input to the Committee, and reiterated that Members would need to report back to the provincial legislatures, who should give a fresh mandate.

Ms Xingwana asked that documentation also be sent to the Department of Women, Children and People with Disabilities, in view of its interests in women’s affairs. She responded to Mr Nzimande that whilst one woman may have spoken in KwaZulu Natal, there was certainly an overwhelming preponderance of men.

Mr JB Skosana, Chief Director, Department of Justice and Constitutional Development, asked about the timeframes, saying that the Minister of Justice wished to engage with his colleagues in Cabinet.

The Acting Chairperson said that the matter would be re-debated in the first week of September, since Members would be attending oversight visits prior to that. However, when Mr Skosana asked if it was possible to move this to the end of September, he suggested that mid-September was the latest possible time, given the other commitments that the Committee also had to complete by year-end.

The meeting was adjourned.