South African Human Rights Commission Bill: deliberation, Determination of Remuneration of Members of Constitutional Institutions Bill: briefing

Meeting report

Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill [B31-2013] (the Determination Bill): Department of Justice briefing
Mr Johan Labuschagne, Principal State Law Adviser, Department of Justice and Constitutional Development, noted that his briefing document on the Determination Bill was similar to the Memorandum on the Objects of the Bill. This Bill sought to create a uniform procedure in respect of all members of Chapter 9 institutions, by involving the Independent Commission for the Remuneration of Public Office Bearers (the Commission). It was proposed that the President should still determine the packages, but on the recommendation of that Commission. To create uniformity, it was provided that their packages may not be adversely altered. They would not necessarily all be on the same level; the Commission may still determine different packages for different Chapter 9s.

Ms M Smuts (DA) said that the Bill, on first reading, seemed fine, and it was dealing with the disparity she had referred to in an earlier meeting.

The Chairperson noted that advertisements would be placed for public comment. He whether there was any need for a Constitutional amendments.

Ms Smuts pointed out that section 219 of the Constitution provided for this already, but it had never previously been put into effect.

Mr Labuschagne agreed, and read out the appropriate section of the Constitution. This Bill sought to give effect to section 219(5) of the Constitution. He added that the Bill was published by the Department of Justice and Constitutional Development (the Department) for public comment, and several comments were received. However, in view of court cases, he agreed that it would be appropriate for this Committee to invite comments from the side of Parliament.

Ms Smuts asked who had made the submissions to the Department.

Mr Labuschagne said he was speaking subject to correction, but there were more than 15 comments from the Commission, Minister of Finance, Public Protector and other affected institutions.

The Chairperson asked if there was opposition.

Mr Labuschagne said there was not, but there was a view that not only the Chapter 9 institutions but others also – such as Chapter 10 institutions, the Pan South African Language Board, the Municipal Demarcation Board and so forth also should be covered. The feeling was that at this stage it would be appropriate only to cover the Chapter 9 institutions, and address others at a later stage.

Mr Holomisa questioned if those mentioned in Chapter 12 should be covered also.

Ms Smuts pleaded that the provisions of section 219 of the Constitution must be put into effect now. Anything else must stand over for later.

The Chairperson noted that the Determination Bill was amending a number of Acts, and asked if this was likely to affect the new South African Human Rights Commission (SAHRC) Bill.

Mr Labuschagne responded that the Determination Bill proposed a substitution of existing sections of the SAHRC Act. The Department could not know which of the two Bills would be passed by Parliament first. If the SAHRC Bill was passed first, there would not be a problem. However, if the Determination Bill was passed first, the clause in the new SAHRC Bill, once it was passed would be outdated.

The Chairperson mentioned that strictly speaking, the important date was not when Parliament passed the Bill, but when the President signed his approval to put it in operation.

The Chairperson noted that the Independent Commission would send a notice to Parliament. He thought that Parliament would not have to go through the whole process of calling for submissions at that stage, and other Members agreed.

Ms Smuts presumed that this would work as it did for the Executive and MPs.

South African Human Rights Commission Bill: Draft dated 30 September
The Chairperson noted that a letter had been received from the South African Human Rights Commission (SAHRC), requesting the opportunity to address the Committee in answer to the Committee’s questions for clarity on search and seizure, subpoena, secondment and making of regulations. In principle, he would be happy to hear the SAHRC, but noted that it was stated that the SAHRC would deal with the issues on 11 October. It was not for the SAHRC to determine a date. He noted that another option was, as suggested by Ms Smuts, that the SAHRC should engage with the Department. He suggested that he should speak to the Chairperson of the SAHRC, Mr Mushwana.

Mr S Holomisa (ANC) did not have a problem with meeting the SAHRC, but wanted to understand why this was being done, and whether it was not creating an unwise precedent. He pointed out that it was not only the SAHRC who had an interest in the Bill, and wondered why this opportunity was being given to the SAHRC but not to other parties who may have raised points in the public hearing. 

Ms M Smuts (DA) respected that view, but said that the Committee was merely seeking further clarification on something discussed already in open session - namely, whether the SAHRC wished to have powers of search and seizure in addition to powers of subpoena. The other matter was technical and the Members had wanted to hear from the SAHRC administration whether Ministerial regulation was really needed to govern staffing. She thought that this was a relic of the old Act, and that constitutional institutions had probably evolved their own systems since then. The Committee wanted to hear from the Chief Executive Officer (CEO) what the current situation was; she suspected that the SAHRC had followed a procedure that was different to the regulations. She thought both matters could be dealt with by e-mails, which could simply then be tabled to put them in the public domain.

The Chairperson noted that the SAHRC was originally invited to address the Committee on the Bill because it was a key role player. However, Mr Holomisa’s concern was whether it was now being given “second bite of the cherry”. 

Ms Smuts stressed that SAHRC had not proactively asked to address the Committee and this would be a response to questions that the Committee had asked.

Ms D Schäfer (DA) agreed that this was the distinction and mentioned that the Committee was concerned about certain matters not in the original Bill.

Ms Smuts corrected her; search and seizure provisions had been in the SAHRC Act since 1994, but the Committee essentially wanted to know if they had been used, if they were necessary, and why the SAHRC was asking that they be retained. It had not been clear from Mr Mushwana’s previous response which of these powers he had referred to as useful. It was not necessary to have a long discussion with the SAHRC, merely clarification.

Mr Holomisa said he had thought that SAHRC had requested the opportunity, but now that he understood that SAHRC’s letter was in response to the Committee’s questions, he agreed with other Members.

The Chairperson said that 11 October was too far away. He asked all Members to apply their minds to whether, firstly, SAHRC should have search and seizure powers, instead of having to approach the Court, as would other bodies, for a warrant, and secondly, whether it should have power to subpoena.

Ms Smuts agreed that there was no reason why SAHRC should appear in person. She believed that an e-mail answer was appropriate, as the Committee wanted to finalise the Bill.

Mr Labuschagne noted that the Public Protector Act and Commission for Gender Equality Act had similar provisions on search and seizure, although he had not compared the sections word-by-word. He asked that the Committee bear this in mind.

Ms Smuts noted that the SAHRC Act was the first one dealt with in Parliament in relation to the Chapter 9 institutions, and search and seizure provision in the SAHRC Act, which took up a substantial part of the debate, became the matrix for all other similar provisions in the later Chapter 9 Acts. She thought that the CGE did not need those powers, although it may be a different question for the Public Protector. Similar powers were also carried forward into other statutes dealing with other institutions. She believed that the time had now arrived to consider whether they were in fact necessary, and whether they had been used, and for what purpose. Mr Mushwana had said that “the powers” (although he did not specify which) had a deterrent effect, and she wanted clarity on what he had been referring to. There was no reason to standardise every Act; each must be considered on its own merits.

The Chairperson wanted to correct the impression that the search and seizure provisions did not take up the bulk of the time when the SAHRC’s 1994 Act was being debated. 

Mr S Swart (ACDP) agreed that the deterrent effect was important for State departments, but it must be remembered that the SAHRC Act did not only apply to organs of State. He also wanted to hear the SAHRC’s comment on why it needed these powers, and whether the search and seizure powers had ever been used. His impression was that only subpoena powers had been used, and it was necessary to decide whether that was enough.

The Chairperson mentioned that the SAHRC had earlier stated that it had not ever used the search and seizure power.

Mr Swart said that this then begged the question why the power was included in the Bill. It was still possible for the SAHRC to approach the Court if it was not included. 

Mr Holomisa agreed that it would be necessary to hear the SAHRC, and wanted to know whose rights were threatened by the existence of this provision.

Mr Swart explained that the main concern was that there were instances where the SAHRC could exercise these powers without needing a prior court order.

Mr Holomisa countered that if the SAHRC was not using the power in practice, there was no harm in having it, but he wanted to hear from the institution.

Mr Swart amplified that the main concern was that the current SAHRC Act contained very wide powers. He had given one example that the Catholic church held strong views on abortion, and another church held strong views on chastisement of children. If complaints were lodged on human rights violations in either instance, the SAHRC notionally had the power to enter the church premises and examine all books and documents. The same applied if complaints were raised about political parties – such as the DA and the toilets issue. He was not saying that the power had been abused, but there was a possibility that it could be, which was why he questioned whether it was necessary.

 He questioned whether it was needed.

The Chairperson said that it would, for instance, be undesirable for the SAHRC to break down the doors of a church.

Mr Holomisa understood the concerns but cautioned against weakening the SAHRC powers. He suggested that an insistence upon a prior application to Court might provide sufficient checks.

Ms Smuts said that these kinds of powers were appropriate to criminal investigations, but not to the SAHRC, a human rights body without any power to make binding findings. The simple question was whether the powers had been used and whether they were needed, as she maintained that they were not appropriate.

Ms Schäfer suggested that it would be useful if the researchers could investigate the position in other international bodies.

Mr Labuschagne said that he had raised these issues with the SAHRC, requesting a response, but the SAHRC had answered that it would contact the Committee directly, and he did not think that he would be able to get anything further from that body. He noted that nobody from the SAHRC was present at that time. He would provide copies of his e-mails to the Chairperson.

Mr Swart said that if clause 17 was deleted, then clause 18 could be deleted too. However, if clause 18 stood, it was problematic as the reference to “the national revenue fund” made this into a money bill.

Ms Smuts asked when the Committee would receive the latest version of the Bill.

Mr Labuschagne noted that a document had been sent to the Committee Secretary on the previous day, in which he had attempted to capture direct instructions from the Committee, as well as proposals made by Members and the SAHRC.

The Chairperson noted that nothing had been received as yet, and asked that copies be printed and circulated.

Ms Smuts said that while the Committee was waiting for the document, she wanted to raise a point about the composition of the Commission, and specifically to the portion of clause 5 dealing with resignation of commissioners. One of the circumstances in which a commissioner must resign would be if s/he was appointed to Parliament. She thought it unthinkable that a sitting Chapter 9 Commissioner should make himself/herself available to run for political office. Her party did not believe that an MP should go straight from Parliament to a Chapter 9 institution. The current wording of the SAHRC Act had not applied that principle, which had to do with the situation at the time, but she felt it was time to change that. The ANC held the position that to some extent the “revolving door” principles applied, where politicians could apply for other positions immediately, but the DA believed that there should be a cooling-off period, say two years, between leaving Parliament and being appointed to such a body. She noted that something similar had been put into the provisions for the Classification Review Panel in the Protection of State Information Bill, and believed it should be included in this Bill. No person who was a politician should be eligible for immediate appointment to the Chapter 9 institutions. She also thought that subclause (8)(b) should be deleted and that Chapter 9 commissioners should not run immediately for political parties, as they had taken an oath of independence.

The Chairperson asked for clarity, saying that if a commissioner had resigned, and was therefore no longer holding office, s/he could then move to a political office.

Ms Smuts said that she personally did not think it acceptable, but there was nothing that could be done about that position if there had been a prior resignation. Her main point was that it was not acceptable for an office bearer in a Chapter 9 institution to run for political office whilst holding office. 

Mr Labuschagne noted that an option was included in the document. He had also deleted clause 8(b)(3).

Later in the meeting, the Chairperson noted that on further discussions it might be appropriate to include the provisions in the new Bill, but with sufficient checks and balances. He would still like to get a written response from the SAHRC.

Consideration by Committee of new draft, dated 30 September 2013
When the new draft of the Bill had been circulated, Mr Labuschagne explained that it was based on his notes, and the PMG reports, and he had tried to capture all proposals by the Committee. Proposals by individual Members were reflected as options. The issues flagged were also noted, and the SAHRC’s own proposals were also indicated.

Preamble
Mr Labuschagne noted that the old wording of “Whereas” had been substituted with “Since”, following the suggestions of former Committee Member, Mr J Jeffery (ANC). A view had been expressed, that the Preamble merely repeated what was already in the Constitution, and the question had been raised whether it was necessary.

Ms Smuts believed there was no harm in keeping it. She asked whether there was a standard drafting style; was the practice merely to refer to sections, or repeat them.

Ms Bongiwe Lufundo, State Law Adviser, Office of the Chief State Law Adviser, agreed that the Preamble was capturing what was in the Constitution, because it formed the basis of the legislation. This was a standard format, and the Preamble generally gave a summary of what was in the Bill.

Mr Holomisa would also prefer to keep the Preamble. However, in relation to the “Whereas” and “Since”, he would prefer to see a standardised format by Parliament, to ensure that Acts were consistent.

The Chairperson said that the use of the word “Whereas” was an old inheritance from England. In keeping with the attempts to use plain language, there was a view that “Whereas” should be dropped, and if the Justice Portfolio Committee did so, the message would hopefully spread to other portfolio committees.

Ms Smuts said that Parliament, not the Office of the Chief State Law Adviser (OCSLA) or departmental drafters, should be taking this decision. She was not sure what the correct forum was to debate the matter. However, she agreed that this Committee could set a precedent.

Mr Swart noted the reference to the Interim Constitution, because the SAHRC was established under this, but wondered why it was necessary to refer back to the 1993 Constitution. The 1996 Constitution spoke of “establishment” of the institutions, whereas they were already established under the Interim Constitution.

Ms Smuts said that the transitional provisions applied, but recognition still needed to be given to the fact that the SAHRC was created under the Interim Constitution.

Mr Swart made the point that the Bill did not specifically state the reasons why it was being presented, although this was noted in the Memorandum on the Objects. He thought it should perhaps be stated in the Preamble, to give more context to someone reading the Bill.

The Chairperson agreed, pointing out that the Memorandum was no longer read once the Bill was passed.

Mr Labuschagne also agreed, and would prepare an option indicating why the new Act was necessary.

Mr Swart thought this would fit well between the first and second paragraphs of the Preamble.

Mr Holomisa questioned whether the words “to provide for” in the Long Title were appropriate, as they implied that this Bill was creating something for the first time, rather than updating the SAHRC’s existing framework.

Ms Lufundo pointed out that this Bill was repealing and replacing the current SAHRC Act, and that was why much of the wording in the current Act was being repeated here. The Long Title did set out the purpose of what the whole (new) Act would cover, and the wording should be considered in that context.

The Chairperson asked whether the Long Title should not then say that this Bill was replacing the current Act.

Mr Holomisa said that the Long Title in other legislation referred to amending another piece of legislation.

The Chairperson suggested that the Long Title should include the phrase  “to repeal the Human Rights Commission Act of 1994”.

Ms Smuts pointed out that the Schedule would set out the legislation being repealed, and suggested that it might be possible to use “to substitute” although this was not usual.

Mr Labuschagne noted that if the Committee wanted to pursue this, then it should also be indicated that the intention of the Bill was provide for composition, staffing, and a host of other matters. He suggested that clause 25 (renumbered as clause 24 in this draft) clarified the point already.

Mr Holomisa agreed that this was so, but stressed that legislation was being made for ordinary people, and they would not find it easy to plough through the whole Bill before finding that clause.

The Chairperson thought that amending the Preamble might answer that problem.

Ms Lufundo said that wording about substituting the current SAHRC Act could perhaps be included in the Long Title.

Ms Schäfer, referring to the earlier points about the Constitution reference, thought it was possible to refer to the SAHRC as having been established under the 1993 Constitution but confirmed by the 1996 Constitution.

Mr Labuschagne noted that there was originally a clause that referred to the continuation of the SAHRC, but it had been removed by OCSLA. He confirmed that he would draft a new option for the Preamble.

Clause 1
The Chairperson noted that there were various options in this clause.

Mr Labuschagne said that the Committee had, in a previous meeting, indicated that clause 13 should be deleted, and that necessitated consequential changes.

The first option related to the definition of “Commission”. SAHRC had proposed the addition, at the end, of “and is composed of members appointed in terms of section 5”. He was not sure that this was necessary.

Ms Schäfer agreed; the whole Bill set out who was going to be part of the Commission.

The Chairperson said that the current Act did not current define “member” and asked why a definition was now given.

Mr Labuschagne noted that this was to clarify, for instance, the difference between members of staff and members of the Commission.

Ms Schäfer noted that no specific motivation was given by the Commission on the suggested new wording, and Mr Labuschagne agreed; the change had merely been suggested without further explanation.

Mr Holomisa added that the SAHRC had also asked that the word “member” be replaced, throughout the Bill, with “commissioner”. 

Mr Labuschagne noted that if this was agreed to, a number of amendments to various clauses would be needed, and he had not yet effected that change.

Ms Schäfer repeated that she did not think the additional words in the definition of “Commission” was necessary. She did not think that it made much difference whether “members” or “commissioners” was used.

Mr Holomisa said that the commissioners were members of the body.

The Chairperson thought that the Bill would be clearer if “commissioners” was used.

Mr Holomisa noted that they referred to each other as “commissioner” not “member”.

Members indicated their agreement for substituting “member” for “commissioner”, wherever relevant in the Bill.

Mr Labuschagne thought that there would not be a problem with this, but did want to draw Members’ attention to section 193(1) of the Constitution, which referred to “members of any Commission”.

Ms Schäfer agreed that it might make sense to try to use the same terminology as the Constitution. Perhaps something could be included, along the lines that the commissioners were members as referred to in the Constitution. However, she did not feel that there was any real inconsistency.

The Chairperson noted that the Constitution was dealing with members of more than one Commission and for practical reasons it thus referred to “a member of a commission”.

Mr Swart noted that there was a problem with the wording of clause 16, and it would be clearer if this read “commissioner or member of staff”.

Ms Schäfer said that a commissioner should then be defined as a member of the Commission.

Ms Lufundo said that the “member” was defined in clause 5. She thought that there needed to be a reference to this clause, rather than to the Constitution.

Ms Schäfer said that her suggestion was to clarify the use of “member” (as in the Constitution) and “commissioner” (in this Bill) but there was no harm in making reference to clause 5.

Mr Labuschagne said that he did not think it necessary to refer to the Constitution.

Ms Schäfer responded that Mr Labuschagne had raised the point, which was why she had suggested the definition.

Mr Labuschagne said he would think about the appropriate definition, but was inclined to the view that it would only be necessary to refer to clause 5 in the definition. He would prepare two options; one referring to the Constitution, and the other without.

Ms Smuts did not think options were necessary; she suggested that the Committee agree on the use of “commissioner” throughout.

The Chairperson asked that this change be effected.

Mr Labuschagne moved on to the definition of “organ of state”, which now excluded the  words “and includes any other statutory body or functionary”.  He mentioned that Members had discussed limiting clause 14 of the Bill to “executive organs of state”

Ms Smuts said that it would  have made sense to leave the definitions to the end of the debate. If “organs of state” was not used elsewhere then it was possible to amplify clause 14.

Mr Swart asked Mr Labuschagne, and received confirmation, that “organs of state” were referred to in more than one place, but agreed that the Committee had wanted to use “executive” organs of state for clause 14(4).

Ms Smuts noted the definition of “premises” and pointed out that this would be relevant only if the search and seizure powers were retained. Although the wording had been taken from the ICASA legislation, the inclusion of “road” in “premises” was not appropriate for the SAHRC.

The Chairperson quipped that SAHRC might need to investigate toll roads were a possibility.

Members agreed with the definition of “premises” that excluded roads.

Clause 3: Seat of Commission
Mr Labuschagne noted the options around who should determine the seat of the Commission as the President, the NA, and the Commission itself.

Ms Smuts said that the Commission had established itself in Johannesburg and it was not relevant to refer to the President. Since the SAHRC accounted to the NA, it would be appropriate to leave the decision on the seat of the Commission with the NA.

Mr Holomisa wondered whether it was necessary for the National Assembly (NA) to deal with the matter.

The Chairperson agreed that the seat had already been determined, and the SAHRC was established. However, there was a concern that a new SAHRC might decide to move elsewhere.

Mr Labuschagne added that if this was so, the main concern was the cost implications. He personally did not think that the NA should be involved in this determination. 

The Chairperson thought that the clause should simply note that the seat of the SAHRC should remain where it was presently.

Mr Labuschagne thought it was not appropriate to put this in legislation. The Act would need to be amended if the SAHRC were to move.

Ms Schäfer questioned why, saying that the seat of the courts was in legislation. She would not go so far as to specify the suburb, but merely state “in Johannesburg”.

The Chairperson added that this Committee wanted the SAHRC to have to approach Parliament if it wished to move its seat, so that questions could be asked.

Ms Smuts said that this could be achieved by option 2, as the SAHRC would have to have agreement from the NA before changing its location. She pointed out that it was not easy to change legislation and she would prefer that no change was necessary.

Mr Holomisa questioned why, in that light, the Bill should not merely state that the SAHRC would be based in Johannesburg.

A representative of SAHRC confirmed that the property was being leased.

Ms Christine Silkstone, Content Adviser to the Committee, asked Members to bear in mind that there had been a proposal to possibly combine the Chapter 9s.

The Chairperson responded that there was also strong opposition to that proposal.

Mr Holomisa thought, in view of these arguments, that option 1 would be the best.

Ms Smuts persisted in her view that option 2 was the preferable one. The SAHRC accounted to the NA, and the lease would involve money, so it was right to involve the NA.

Ms Schäfer said that “on the recommendation of the President” meant, in practice, that the President would not oppose any request by the SAHRC.

Ms Smuts said that it was inappropriate for Chapter 9 institutions to “tell” the President what must happen. She wondered if it was possible to simply not deal with the matter in the Bill.

The Chairperson asked what then would happen when the lease expired. He would prefer to see the SAHRC owning a building.

Ms Smuts answered that one of the Treasury Regulations noted that the CEO of a Constitutional entity could undertake lease negotiations without limitation.

Mr Holomisa suggested that the clause be amended, in clause 3(1) by stating “the seat of the Commission will be in Gauteng”, and that clause 3(2) remain as currently worded. If the SAHRC wanted to change the seat, an amendment to the Act would be required.

Members agreed with that proposal

Clause 4: Independence and impartiality
The Chairperson asked why clause 4(a) was being excluded.

Ms Schäfer stated that the wording about independence was already stated in the Constitution, so this was stating the obvious.

Mr Labuschagne noted that the SAHRC suggested that it be retained, to emphasise the point.

The Chairperson said that the rest of the clause dealt with independence and impartiality.

Mr Labuschagne referred to footnote 12, which related to (newly numbered) clause 4(a)(iii).

Ms Smuts said that the recommendation emanating from the review of the Chapter 9 institutions was that there should be provision for commissioners declaring their interests in the same way that judges did, and she fully agreed that there should be a register of commissioners’ interests. The additional requirement was that these declarations should be on a website, or made publicly available. She was not sure that it was necessary to lodge the declarations with the Speaker of the NA, even though the institutions accounted to Parliament. Certainly, those declarations should not appear on the National Assembly website.

Ms Schäfer agreed that, in order to retain the independence, the interests must be publicly available other than on a Parliamentary site. She wondered if the Chairperson of the SAHRC should keep the confidential register.

Ms Smuts said the SAHRC could decide how to deal with the matter on the website.

Ms Schäfer asked if declarations should be lodged with the CEO.

Mr Swart noted that there was nothing in the present legislation requiring that.

The Chairperson also believed a declaration of interests should be included. In answer to the questions raised by the SAHRC commissioners, his view was that they should be able to hold business interests, and he confirmed, in answer to a question from Ms Smuts, that this would be something like stocks, shares and financial interests.

Mr Holomisa agreed that the interests must be reflected.

Mr Labuschagne noted that the commissioners must declare interests, but asked if the Committee wanted to specify how, and to whom. Furthermore, he asked what would happen if they failed to declare their interests. It may be necessary to specify further procedures and steps.

Ms Smuts said that there was no intention that failure to declare would be a criminal offence. She thought it sufficient to state that a declaration of interests was required, and the declaration must be made publicly available. Whether a failure to declare became a matter of misconduct would depend on what answers the CEO gave to the Committee’s questions around Ministerial regulation, for the Chapter 9 institutions must create their own procedures around misconduct.

Mr Holomisa asked what the role was of the Office of Institutions Supporting Democracy (OISD).

Mr Swart said that the SAHRC itself had suggested a disclosure to the Speaker and wondered why there was objection to this, as the Speaker was the closest body to this Committee.

Ms Smuts said that the Speaker was the officer for all MPs.

The Chairperson added that the point was that the declaration really amounted to custodianship.

Ms Smuts stressed that if the information was made public, it was inappropriate for this to happen through the NA website as Chapter 9 institutions were independent of Parliament.

Mr Holomisa said that it was a matter of convenience. The register had to be located somewhere.

Ms Smuts noted that the OISD was really created to ensure that vacancies in commissions would be filled speedily, and for the channeling of the SAHRC’s excellent reports to Members of Parliament. However, OISD had no original powers. This Portfolio Committee was the organ of the 400 MPs, but the OISD was merely in place to ensure that everything ran smoothly.

Mr Holomisa thought that if the OISD filled an administrative function, lodgment should be to that office.

The Chairperson noted that all commissions had to report, and he asked the Department to check how other commissions handled these matters, and what provisions were contained in their legislation.

Ms Smuts said the information should be contained in the report of the Review into the Chapter 9 institutions.

The Chairperson accepted that, but specifically asked that the drafters not refer to that, but check what was being done presently. For instance, he knew that the IEC officers had to declare interests, but wanted to know to whom they declared and what happened if they failed to do so.

Ms Schäfer wondered if it would not be possible to say in the Bill that the SARHC must agree upon a procedure for lodgment and publication itself.

The Chairperson said that he would not have a problem with that, but a further question was who had access to confidential sections. In the case of MPs, it was set out in the Code, and the Registrar of Members’ interests had access. In the event of a complaint or allegation, the person responsible for the Confidential section could be asked by the Public Protector (or indeed this Committee) to confirm or deny whether a certain shareholding was declared.

Ms Smuts agreed that it would be useful to check how the other institutions dealt with it. She added that in other bodies there was an obligation for members of those bodies to declare any conflict of interest before sitting on a matter.

The Chairperson added that declarations were necessary for the judges. 

Clause 5: Composition of Commission
Numbers
Mr Labuschagne noted the changes that had been made to the numbers of commissioners. The SAHRC had indicated that it was not in favour of having acting commissioners.

Ms Smuts said that the Committee had already given an instruction to delete subclauses (5) to (7), and noted that it was not appropriate to have the President make acting appointments. In relation to the number of commissioners, she favoured seven, but the SAHRC had indicated that it wanted eight, and she would not oppose that. She held slightly different views on part-time commissioners, thinking that they might be needed if suitable full time appointees were not available. She suggested that perhaps the wording should refer to “not fewer than five” full time commissioners.

Ms Schäfer asked what the reason was for suggesting these numbers, and whether commissioners attended to certain portfolios.

The Chairperson confirmed that the work was divided.

Ms Smuts said that the Bill of Rights outlined a number of different rights, but it was not necessary to have one commissioner for each one of the rights named. She could not recall why the number of eleven commissioners was selected for the original Act, but she now believed that it was too large. An uneven number was desirable, but it would be possible to specify eight and allow the Chairperson a casting vote. SAHRC had supported the retention of the eleven commissioners, with an alternative view on eight. The breakdowns of the different portfolios was reported upon, in the Annual Reports. One of the recommendations in the Review of the Chapter 9 institutions as to have one commissioner dedicated to work on information rights, but that had been superceded by the creation, in the Protection of Personal Information Act, of the Information Regulator.

Ms Schäfer wondered if nine commissioners should be specified.

Ms Smuts countered that it would be preferable to have fewer than too many.

The Chairperson noted general agreement in the Committee that eleven was too many commissioners. He wondered if the Deputy Minister of Justice could advise how far discussions with National Treasury (NT) had gone. The Minister had indicated that he was in favour of having an eighth commissioner, because the workload indicated this was necessary. Mr Jeffery, then still serving in this Committee, had asked if there was budget for that, and that had sparked discussions with NT. At the moment there were five full-time, and two part-time commissioners.

Mr Esser Ahlers, Director, Department of Justice and Constitutional Development, said that the budget provision was in the pipeline, and there was an indication of the different portfolios held by commissioners in the memorandum submitted to NT. He agreed that it would be ideal to have eight, of whom six would serve full-time and two part-time, and that the Chairperson should have a casting vote.

Disqualification
Ms Schäfer questioned why an option appeared for clause 5(1)(a).

Mr Labuschagne explained that a disqualification clause had been inserted – as (b), and that was why the numbering of the sub-paragraphs (i) to (iv) had changed.

He went on to describe the new clause 5(1)(b). Effectively, anyone could be appointed as an SAHRC commissioner, except if that person was in the paid service of the State, an unrehabilitated insolvent, of unsound mind, was convicted of an offence carrying more than a twelve-month period of imprisonment, and anyone who was an office bearer of a political party, or of the National or Provincial Legislature, or member of a municipal council.

Mr Holomisa referred to clause 5(1)(b)(iii), which specified a declaration of unsound mind by a court “in the Republic” and wondered what would happen in the case of an order by a foreign court. Other Members thought it unlikely that this would happen.

Mr Holomisa also commented on (i), and asked if a person in the service of the state was able to apply for a commissioner’s position, and whose interests were being protected.

The Chairperson answered that such a person would need to resign before accepting the nomination, and take the risk that s/he might not be successful. He agreed that there had been problems in the past, but the main fear was how a person holding other office might impact on the independence of the organisation.

Mr J Sibanyoni (ANC) suggested that the person should only have to resign if appointed. Nomination was no guarantee of appointment.

The Chairperson asked Members to consider the position of a prosecutor. He would feel uncomfortable if a prosecutor was still in that employ when applying for and attending interview for a position in a Chapter 9 institution.

Mr Holomisa said that the important point was that the institution remain independent. The person applying would have to show that s/he was capable of exercising independence.

Ms Schäfer suggested that perhaps “in the permanent service of the State” should be used so that short-term contractors were not excluded.

Mr Labuschagne said that the problem with referring to “permanent service” was that those serving under contracts would be excluded. 

Members agreed that the word “permanent” would not be used.

Mr Swart noted that the remainder of the wording reflected what was in the Constitution.

Ms Schäfer also wondered, under (v), whether a candidate on the political party lists should not also be excluded.

Ms Smuts thought that candidacy was not a problem, as this was for a short time. She noted that similar wording had been included in the Protection of Personal Information Bill. She reiterated her own, and her party’s views, that a “cooling off” period should be prescribed.

Mr Holomisa thought that this was removing a person’s right to make a living and wondered who would support that person during the cooling off period.

Ms Smuts could not understand why people should have any expectation of being supported. People of independent mind were needed for an independent institution. That independence was not likely to be found in people serving in public office, political office or the public service

Ms Schäfer added that there were plenty of other opportunities open to candidates during the cooling off period.

Ms Smuts said that judges were characterised by their independence of thought, and the same should apply to the Chapter 9 institutions.

Mr Holomisa suggested that probably lawyers were amongst the few people who were independent, as they exercised independent judgment in deciding what cases to take on.

Ms Smuts partially agreed, but noted that there were other suitable people, such as NGO workers.

Mr Holomisa returned to his earlier points about a cooling off period. Parliamentarians sat for years in Parliament, gaining experience, and if they were told that they could not use those skills for a period after leaving Parliament, this was depriving them of the right to earn a living. It should not be assumed that a person working for the State was not independently-minded.

Ms Smuts said that if a person holding office wished to apply to a Chapter 9, s/he merely had to resign. The whole reason for excluding public servants was that the Chapter 9 institutions were institutions outside of “government”, as made clear in a recent case. It was not appropriate to appoint people from political parties, government or Parliament.

Mr Holomisa could not accept the implication that those with government associations were not independently-minded.

Ms Schäfer noted that human rights institutions were likely to be investigating government. Someone who had worked for government was less likely to be sensitive to the bigger picture. This was not depriving people of the right to earn a living as they could accept other jobs or make use of their skills in other ways.

Mr Holomisa pointed out that the Chapter 9 institutions did not only investigate government.

Mr Swart understood that the Chapter 9 relationship was not the same as Parliament’s, vis-à-vis the State. However, there was an interesting clause that one could stand for candidacy of a political party prior to resigning – he had been a candidate for Parliament whilst still working with the Office of the State Attorney, but resigned from that position when elected.

Ms Smuts said that these types of clauses were symptomatic of the time they were drafted, and were intended to allow people such as teachers to come to the provincial councils.

Ms Smuts asked for an explanation of the option for (d), as she was concerned about the grammatical flow.

The Chairperson pointed out that this was what was in the Constitution.

Mr Labuschagne said that the words “on the recommendation of the National Assembly” were not necessary as there was already a reference to sections 193(4) and (5), which made mention of the National Assembly.

Mr Swart pointed out that there was a need for renumbering.

Ms Smuts questioned, in relation to clause 5(2), whether the President must determine the term of office of the commissioners.

Mr Labuschagne said that the Committee had now decided on six full time and two part-time commissioners. The Committee had indicated that it did not support the staggering of appointments.

Ms Smuts felt that it was not correct for the President to determine the terms.

Mr Labuschagne noted that option 2 used the wording “may, on the recommendation of the National Assembly”. He questioned whether the NA should recommend the term also.

Ms Smuts confirmed that staggering of terms did not work, and the term was usually seven years, so all references to other determinations could be removed.

Mr Holomisa suggested that the idea behind the original wording was probably to ensure that there were always commissioners in place. He asked if the Committee did not want to insert a provision to allow for extension of terms of office until new appointments had been made.

The Chairperson said that the way around this was for Parliament to ensure that the interviews for commissioners were held in plenty of time. However, he asked what would happen if a Commissioner passed away in his fourth year; whether the replacement Commissioner would be appointed for three years.

Ms Smuts said that the only instance of unfilled vacancies in a commission had involved the Commission for Gender Equality (CGE). She agreed that it was up to Parliament to make sure that the appointments were made in time. If a position became available mid-term, she thought that seven years should be the term of the new appointment, to allow for continuity, but having said that, she also noted that the Committee had previously agreed that it was essentially the CEO who provided continuity.

Ms Schäfer understood Mr Holomisa’s point, but said the danger was that Parliament might not show diligence in making new appointments and simply leave the current incumbents in office, which was not a good idea.

Ms Smuts asked that instead of “not less”, the words “not fewer” should be used.

The Chairperson noted that Members preferred Option 2.

Ms Smuts was completely opposed to clause 5(3) and said that the President should not be appointing. However, she felt that the NA should be able to appoint a part-time member as a full-time member, in the event of a vacancy occurring in a full-time position.

The Chairperson cautioned that this was not in accordance with the Constitution.

Ms Smuts took the point, and said that in that case, the clause should read “the President, on the recommendation of the National Assembly, may appoint a part time member as a full-time member for the unexpired portion of that part-time member’s term of office, in the event of a vacancy occurring”. 

Members agreed to clauses 5(4).

Mr Labuschagne noted the option to remove subclauses (5) to (7), which was suggested by SAHRC. Members supported the removal of these subclauses.

The Chairperson noted that clause 5(8)(a) was a standard provision.

Ms Smuts commented, in respect of the option for clause 5(8)(b), that it  was “unthinkable” for a person who became a politician not to resign from a Chapter 9 institution. The eligibility clause had already stated that politicians could not be appointed. 

Mr Swart said that paragraph (iii) only referred to political parties and an election to the National Assembly. This was a deeming provision. However, (i) dealt with nomination. He did not see the difference between “is appointed as an office bearer” and “is an office bearer”.

The Chairperson suggested that the two might be able to be joined.

Ms Schäfer questioned if an office bearer was appointed or elected. Staff might fall into the category of being “appointed”. She wondered if the word “elected” was not better. As worded, this might allow staff to be appointed.

The Chairperson and Mr Swart suggested that “elected or appointed” was preferable.

Ms Schäfer added that the phrase“office bearer or staff member of a political party” should be used.

Members agreed to that change in subparagraph (ii), and agreed that (iii) could be removed.

Mr Swart suggested that similar wording then also needed to be included under clause 5(b)(v) (page 6) so that it would include a reference to “any candidate on a list”. He pointed out that there were instances when the list may stay open for some time.

The Chairperson confirmed the Committee’s instructions to Mr Labuschagne, as follows:
- On page 8, clause 5(8)(b)(iii) must be deleted
- Clause 5(8)(b)(ii) must read “is appointed or elected as an office bearer or staff member of a political party”
- On page 6, clause 5(1)(b)(v) must read “anyone who is an office bearer or staff member of a political party” and then, after “member of council” the words “or who is a candidate on a list for any of those positions” would be added.

The Chairperson thought that there was no problem with clause 5(8)(c).

Ms Smuts said that this referred to a person who had left but was still taking a salary. The steps taken against a person could include a summons.

Ms Smuts noted the deletion of wording from the suspension clause. She said that in the ICASA, it had happened that a particular commissioner had been “driven” from office, for being too independent-minded. She pointed out that there was a danger of suspending someone and trumping up the charges, as had happened at ICASA.

Members were satisfied with clause 5(11).

Clause 6: Chairperson and Deputy Chairperson of Commission
Ms Smuts said that allowing the Commissioners to choose their own Chair and Deputy Chair meant that they would appoint those in whom they had confidence. Another option was for the appointment to be done by the National Assembly.

Members agreed to follow Option 1, set out on page 9.

Mr Labuschagne summarised that from a practical point of view, the NA would recommend the appointment of commissioners to the President, and then also recommend appointment of the Chair and Deputy Chair. Mr Labuschagne asked what would happen if Parliament was in recess and a Chairperson had to be appointed.

Ms Smuts said that in this instance, clause 6(3) would apply.

The Chairperson also noted that it was highly unlikely that the NA would make the commissioner appointments and then go on recess without attending to appointment of the office bearers.

Mr Labuschagne noted that the subclause on staggering of commissioner appointments had been deleted. This would mean that all terms of office would expire at the same time, except those arising later through attrition of commissioners.

Ms Smuts agreed, and said that if the Chair or Deputy had died whilst Parliament was on recess, the Commission would appoint an Acting Chair.

Ms Lufundo suggested that the wording “as often as it becomes necessary” should be removed.

It was explained, during a short debate, that this was included to cover the situation where the Chairperson died. In that case, the SAHRC would have to come back to Parliament for a new Chairperson to be designated.

Ms Smuts suggested that the phrase “if it becomes necessary” could be preferable to “as often as it becomes necessary”.

Ms Lufundo was still not comfortable with the wording. She wondered why any reference was needed to “necessary”. The appointments were done on the recommendation of the NA.

Members agreed to remove the words “as often as it becomes necessary” (without replacing them), and further noted that “appoint”, and not “designate”, should be used in that subclause.

Clause 7: Powers and functions of Chairperson, Deputy Chairperson and other members
Mr Labuschagne explained that when giving the initial briefing on the Bill, he had set out that one view was expressed that the Chairperson could not “assign”, but only “delegate” functions. However, the current option for clause 7(1) still contained the words “delegate or assign”.

Mr Holomisa thought that “assignment” could only be done by the Commission.

Members agreed to remove the word “or assigned to” from the option, where it referred to powers delegated by the Chairperson.

Ms Schäfer wondered if, in subclause (2) there should be a cross-reference also to clause 6(2). She pointed out that clause 7 was dealing with the specific delegated functions of the Deputy Chairperson. However, if the Chairperson was not available, and the Deputy Chairperson was acting, s/he would need, in addition to the normal duties, to exercise all the functions and powers of the Chairperson. That was set out in clause 6(2). She therefore suggested that, at the end of clause 7(2), additional words “subject to clause 6(2)” be inserted.

Later, having discussed this further with the Content Advisor, she suggested that the words “subject to clauses 6(2) and 6(3) should appear at the start of clause 7(2).

Ms Lufundo was not sure that there was a link between the two clauses. Clause 7(2) dealt with the powers and functions of the Deputy Chairperson.

Ms Schäfer agreed, but said that this referencing would counter any possible challenge that the Deputy Chairperson should not also be able to exercise delegated powers. If functions had been delegated by a Chairperson, who then left, it was possible to argue that only those functions could be performed, and not any others.

The Chairperson thought that the delegations would fall away, when the Chairperson fell away.

Ms Silkstone wondered if clause 6(3)(b) would not cover Ms Schäfer’s concerns.

After further discussion, Members agreed that no cross-reference was needed.

Ms Smuts asked that Members consider the position of the Chairperson. That person would, in terms of the Public Finance Management Act (PFMA) be the executive authority, and she wondered if that affected any of the delegated powers.

Mr Labuschagne confirmed that it was the Chairperson, and not the Commission, who was regarded as the executive authority. He noted that the role as executive authority basically related to financial matters. If the authority was delegated, all powers and functions would be conferred to the delegatee. The PFMA set out the functions of the Accounting Officer (the CEO) but unfortunately it did not contain a definition of “executive authority” as far as the Constitutional institutions were concerned. A Treasury Regulation had been drawn, to rectify this. He said he would have to look at it further.

Ms Smuts said that “executive authority” probably meant that the Chairperson ran the institution, but she had never really considered how far that authority went.

Mr Labuschagne thought that it was similar to national departments, where the Minister was the executive authority and the Director General the accounting authority.

Ms Schäfer noted that an executive officer had no criminal liability, but an accounting officer did.

Ms Schäfer pointed out, in relation to clause 7(4) that the words “or assigned to” must be removed, to be consistent.

Mr Labuschagne agreed that the phrase “conferred on or assigned to” was correct when referring to the Commission, but the Chairperson could only “delegate”.

The Chairperson questioned if a person could have powers conferred by the Commission, but be accountable only to the Chairperson. He thought that when powers were assigned, this meant that accountability was to the Commission, but when powers were delegated, the delegatee was accountable to the Chairperson.

Mr Labuschagne answered that even if the Commission assigned functions, any person would still be accountable to the Chairperson. These issues should really have been raised by the SAHRC if there was unhappiness about them.

Ms Smuts, and the Chairperson, commented that the SAHRC was functioning smoothly and questioned whether it was even necessary for the Bill to specify this.

Mr Labuschagne confirmed that there was nothing similar to this wording in the previous Act.

Ms Smuts noted that the SAHRC had made no comment on clauses 6 and 7. She suggested that clause 7 should be left as introduced.

After discussing clause 7(2) further, Members agreed that the original wording be retained (and the options would fall away), but that, before the words “the Chairperson” the phrase “or delegated by” would be inserted.

The Chairperson noted, in relation to clause 7(4), that he could not see any situation arising where the Deputy Chairperson would not be held accountable to the Commission. Members agreed, at his suggestion, to add “and the Commission” to the end of this clause.

Members were satisfied with clause 7(5).

The meeting was adjourned.