Speaker and hon members, the late Prof Kader Asmal once wrote:
Emerging from a racially divided and oppressive past, where basic human rights were violated in the extreme by an illegitimate government that failed to honour even the most basic tenets of the rule of law, South Africa crafted a Constitution that is unique and far reaching in its provisions. Amongst others, it established an array of constitutionally protected institutions created to strengthen democracy and to promote respect for human rights in our society.
The Bill before us this afternoon seeks to strengthen these constitutional institutions. The Bill addresses practical challenges that currently exist, and I know the Bill is welcomed by stakeholders.
Furthermore, the Bill is a constitutional requirement, as section 219(5) of our Constituttion provides:
National legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution, including the broadcasting authority referred to in section 192.
At present the various pieces of enabling legislation which govern each of the Chapter 9 Institutions and other commissions referred to in the Constitution, as well as the broadcasting authority, all provide for different procedures to be followed and for different functionaries to play a role in the determination of the remuneration, allowances, and other terms and conditions of employment of office-bearers of these institutions. The need has therefore arisen to eliminate these disparities and to create uniformity in this regard.
In order to achieve this, the Bill amends the various pieces of legislation to create a uniform procedure to be followed in respect of the determination of the salary, allowances, and benefits of office-bearers of these institutions. In terms of the new procedure, the Public Protector, the Deputy Public Protector, the Auditor-General and office-bearers of other Chapter 9 Institutions, including the Independent Communications Authority of South Africa, will be entitled to such salary, allowances, and benefits as determined by the President, from time to time, by notice in the Government Gazette, after taking into consideration the recommendations of the Independent Commission for the Remuneration of Public Office- Bearers, and after they have been approved by the National Assembly.
The independent commission must, when investigating or considering the salary, allowances, and benefits, consult with the responsible Cabinet member and the Cabinet member responsible for finance. The notice must be submitted to the National Assembly for approval before publication thereof. The National Assembly must, by resolution, approve the notice, whether in whole or in part. Members will note that this procedure is very similar to that followed in determining the salary, allowances, and benefits of judicial officers. Despite the provisions of section 219(5) of the Constitution, it should also be noted that this uniform procedure is not being made applicable to the Public Service Commission and the Financial and Fiscal Commission at this stage, as their inclusion would require a different tagging of the Bill, and thus these commissions will be provided for in the near future.
I would like to thank the Chairperson of the Portfolio Committee on Justice and Constitutional Development, the hon Luwellyn Landers, and the members of the committee for the time, effort, and hard work they have put into considering and finalising this important piece of legislation. I have been informed of the amendments to the Bill which were proposed by the committee, and I am of the opinion that these amendments reflect the high standard that this committee has set in its approach to, and processing of, legislation.
In closing let me say that it is always prudent, whenever we discuss our Chapter 9 Institutions, and this House's oversight role, that we recall what the late former Chief Justice Pius Langa said in the Constitutional Court in the New National Party v The Government of the RSA case. He was discussing the Independent Electoral Commission and other Chapter 9 Institutions, but one could very well apply it to all constitutional institutions. He said:
The establishment of the Commission and the other institutions under Chapter 9 of the Constitution is a new development on the South African scene. They are the product of the new constitutionalism and their advent inevitably has important implications for other organs of state, who must understand and recognise their respective roles in the new constitutional arrangement.
He stressed that our Constitution places a constitutional obligation on organs of state to assist and protect our constitutional institutions in order to ensure their independence, impartiality, dignity, and effectiveness. We believe that this is exactly what this Bill will achieve, and I therefore commend the passing of the Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Laws Amendment Bill to the House. I thank you. [Applause.]
Hon Deputy Speaker and hon Deputy President, I stand before you to say that the ANC will support this Bill. The hon Deputy Minister was very kind in his lavish praise of the Portfolio Committee on Justice and Constitutional Development, and because he has already covered substantial portions of what is contained in the Bill, I will therefore not go there.
However, as it is usually the case, it is my role to set out for you the procedure that we followed in the portfolio committee in our consideration of the Bill.
The portfolio committee received written submissions from, amongst others, the SA Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, and a late submission by the Public Service Commission. I will not deal with the submissions made by the first three I have referred to. However, I would like to address the submission made by the Public Service Commission.
As we know, the Public Service Commission is established in terms of Chapter 10 of our Constitution. However, section 219(5) of our Constitution does not draw a distinction between institutions referred to in Chapter 9 and those elsewhere in our Constitution.
During our deliberations on the matter, the portfolio committee acknowledged the strength and validity of the argument put forward by the Public Service Commission, to the extent that initially the committee resolved to include the Public Service Commission in the Bill. Regrettably, however, the law advisers serving the committee reminded us that to include the Public Service Commission would alter the classification or tagging of the Bill from the section 75 tagging it presently enjoys, to that of being a section 76 Bill, which would have led to serious logistical problems. Effectively, changing the classification would have delayed the passing of this Bill.
That being said, the portfolio committee resolved not to include the Public Service Commission or the Financial and Fiscal Commission at this point, on the eve of the general elections, but that the new portfolio committee appointed by the fifth democratically elected Parliament should do so as soon as it was reasonably possible with the co-operation of the Ministry of Justice and the Department of Justice and Constitutional Development.
We take this opportunity to express our appreciation to Messrs Johan Labuschagne, Johan de Lange and Lawrence Bassett for their commitment to producing excellent quality legislation such as the Determination of Remuneration of Office-Bearers of Independent Constitutional Institutions Laws Amendment Bill, which is before the House as I speak.
I also want to say that I have been privileged and honoured to have served as chairperson of the Portfolio Committee on Justice and Constitutional Development during this Fourth Parliament. We are blessed with a committee whose members are dedicated and hard-working, and serve with distinction in striving to hold government to account and to produce legislation which we can all be proud of.
I crave your indulgence, hon Deputy Speaker, to say a few kind words to someone who will not be returning to this House, and I refer to the hon Dene Smuts. The hon Dene Smuts epitomises everything that an elected public representative should be. She is diligent, honest, committed, forthright in her views, tough and uncompromising. As this is coupled with a determination to hold government and the executive to account, it means that this National Assembly will be a poor place without her. Thank you. [Applause.]
Deputy Speaker, I would like to say to my hon chairman: Thank you for those kind words. Madam, may I also say to the hon Trevor Manuel: After twenty years, in justice we do still ask the question: Is it good? Is it fair? Is it just? If a justice committee did not do so, it would, of course, be a problem.
Well, I do take issue with my ANC colleagues today. The aim of the argument is progress, as my former President has argued, following the French philosopher Joseph Joubert, who said, "The aim of an argument or discussion should not be victory, but progress." It is in that spirit that I make some points, and I take issue on some matters.
It has taken 18 years for this Parliament to carry out its obligation under section 219(5) of the Constitution to produce this legislation to establish frameworks for determining salaries, allowances and so forth. It is therefore greatly to be welcomed that we are now doing our duty to put an end to the disparities and eccentricities that have characterised the salaries and conditions of service of the Chapter 9 Institutions.
The one difficulty that we in the DA have, and which is conceded by the ANC only in so far as it recognises the need for later debate, is that the line Ministries that act as conduits for the budget allocations of the various Chapter 9 Institutions are to be consulted by the Independent Commission for the Remuneration of Public Office Bearers alongside the Treasury.
The line Ministries should not be acting as conduits at all. The Chapter 9 Institutions are independent and subject only to the Constitution and the law, just like the courts. They are accountable to the National Assembly, and Ministries have no role to play in them. It was consequently the recommendation of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, supported by Treasury, in the hands of Minister Manuel at the time, that the location of the budget allocation within Ministries creates a false impression of accountability to government.
The previous National Assembly, near the end of its life, adopted the proposal of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions of the creation of a unit in the Speaker's Office. It also supported - but did not yet adopt - the recommendation that the Chapter 9 institutions' budget should become part of Parliament's own Budget Vote. This Parliament should have adopted that recommendation and it would have followed that line Ministers should also not be consulted on the salaries of the commissions. They have no role to play.
Now, I want to go slightly more broadly but still within the context of the argument. I believe that there is a trend against the granting of institutional independence from the executive which is discernable right now as we approach the end of the life of this Parliament, and it worries me. It applies also to the courts. Let it be said clearly, however, that the work we have done in Justice during this term, until the end of last year, has been historic.
Nothing can ever match the glory days when we negotiated the two Constitutions, or the early years in the Justice and associated committees. Nothing can ever match those years. There were two reasons: No one ever compromised on the principles that we ourselves had built into the Constitutions, and the people involved were all personalities in their own right, as politicians should be. Nothing can match those years!
However, in the Justice committee in this term we began something historic. We began to create the institutionally independent judiciary, which judges have been proposing for some time, and which the Justice and Constitutional Development Minister and his former Deputy Minister facilitated. These developments would bring us in line with comparative jurisdictions, but now the Justice and Constitutional Development Ministry appears to be losing the political will to take the final steps. I hope that I am incorrect, but that is how it appears to me.
The first and second steps were the Constitution of South Africa's Seventeenth Amendment Act, which made the Chief Justice the head of the judiciary, and the Superior Courts Act which further elaborates the management of the judicial functions by the judges. The third and fourth steps are supposed to be the creation of a judicial council to make policy and an independent administrative agency to run the courts.
The Office of the Chief Justice was simply an interim step to get the show on the road, but now the hon Deputy Minister of Justice, John Jeffery, tells us in the Mail & Guardian that the government has accepted only that the judiciary should play "an active role" in court administration. He also writes that the judges are not elected, cannot be recalled and would therefore be unaccountable if they ran the courts. That is simply not so.
It was already understood between the Office of the Chief Justice and the Portfolio Committee on Justice and Constitutional Development that the Secretary-General of the Office of the Chief Justice would have come to us for the public money that was voted and spent. How is that a problem when that is how it already works for the Chapter 9 Institutions and when the judicial branch is the granddaddy of independent institutions? How is that a problem?
The Chief Justice himself specifically favours a model based on the Auditor- General which is, of course, a Chapter 9 Institution. Under this the judicial council will comprise only judges, with an advisory board from other disciplines for accountability. The Chief Justice has pointed out that there is no Cabinet member responsible for Parliament, and there should be none for a judge-led court administration under the institutionally independent judicial branch of the state.
Of course it is true, as the hon Jeffery argues, that the Constitution itself gives the Justice Minister a responsibility for the administration of justice, but the clear compromise is to make the Justice Minister a member of the judicial council, where some of the international comparative examples would also place him. A number of other jurisdictions already have independent agencies which run the courts. We have also been falling behind international trends in respect of our prosecuting authority and the SA Judicial Service Commission.
I took the thinking of the two gentlemen to whom we bade farewell today - former President Motlanthe and hon Minister Trevor Manuel - forward in two private member's Bills, on which I will address you on Thursday. The one pertained to the SA Judicial Service Commission - its composition and certain other aspects. That thinking I based directly on the NDP. The other private member's Bill pertained to the National Prosecuting Authority. It began first and foremost with an appointment mechanism that is different from what we have now. The very first person to propose a different mechanism was then President Motlanthe. I will address you on those on Thursday in a last blast.
I regret to say that the ANC could not be bothered to deliberate on those two private member's Bills. It is a matter of regret to me that the ANC appears to be hanging on to such executive power as is already enshrined, instead of modernising the legal sector.
We produced a political order which was widely admired during the transitional years, and which it was my privilege to be a participant from the start to the end! I think we are leaving the transitional times behind.
My plea is simple: let us not fall behind now. I say so against the background of a justice committee which up until the end of last year had, I repeat, done historic work! That also goes for the Ministry, both the hon Justice Minister Radebe, the former Deputy Minster Andries Nel and the present Deputy Minister John Jeffery. We have all worked in concert to do work that I considered to be historic and my plea is quite simple: Let us not fall behind now.
Thank you. [Applause.]
Deputy Speaker, the ACDP will support this Bill. The arguments have been presented and I won't repeat them. I also share the concerns that have been expressed by the hon Smuts about the line Minister's function.
It gives me great pleasure to follow the chairperson of the Justice committee in also commending Dene Smuts for her rich legacy in Parliament over the past 22 years. I have had the honour of serving with the hon Smuts in Parliament since 1999 and in the last five years on the Justice committee. I was always under the impression that Dene was legally qualified, given the compelling legal arguments that she often presented. I would refer to her as the senior counsel and I was the junior counsel when I presented arguments. I remember the late nights that we spent dealing with the Protection of the State Information Bill, persuading the ANC with compelling arguments to change its views.
It is interesting, in this regard, those of you who want to read an encouraging article, to read, "A Ray of Hope from Parliament", written in the Sunday Times some time ago, where the author, Brendan Boyle, says the following:
Watching Parliament in action is often quite disappointing, so it is heartening to see a more positive episode unfolding.
He goes on to say about the committee:
The committee began to go through the Bill, clause by clause, and the ANC shut its ears. Then something changed, not all at once, but tentative steps, using the mechanism that delivered our Constitution, tackling the easiest issues first. The ANC, DA, ACDP and the IFP began to find each other, at least on some of the most obvious flaws of that Bill.
The three leading opposition delegates - Dene Smuts, Steve Swart and Mario Oriani-Ambrosini - cemented each hard-won concession without gloating over their victories and ANC members found they could give ground without the sky falling down.
Oriani-Ambrosini is so frustrated at times that he seems on the verge of tears. Smuts allows herself an occasional snort of derision when the ANC members deny the logic of an argument a six-year-old would grasp. Swart pursues the least bad option with religious patience.
What emerges from this is that it is still likely to be a bad Bill, but it may just be constitutional. Moreover, it also shows the diligence of a few good men and women who were prepared, according to their lights, to apply themselves in a way many Members of Parliament, don't know is possible - to doing the right thing. I think in this example it was MPs across political lines.
You, Dene Smuts have applied yourself in a way that many MPs don't know is possible - to doing the right thing. I want to honour you today and thank you for all your support to me as a friend in the Justice committee. The ACDP will support this Bill. I thank you. [Applause.]
Angithome ngokuthokoza uSekela Somlomo, ngilotjhise iSekela lakaMongameli, aboNgqongqotjhe abakhona namaSekela wabo nakini noke maLunga aHloniphekileko. Ngithi, lotjhani! Nginendaba ehle khulu kwamambala begodu ekarisako namhlanjesi kukulumonipikiswano le ngoMthethomlingwa othi ... (Translation of isiNdebele paragraph follows.)
[Mr J B SIBANYONI: Let me start by thanking the Deputy Speaker, Deputy President, Ministers, Deputy Ministers, and all hon members present. Good day. I have an interesting story today about this Bill entitled ...]
... the Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill. But first, let me share a lighter moment with you. I want to tell you that some people say I look like President Zuma, and others say that President Zuma looks like me. All I can say is, judge for yourself. [Laughter.] I now want to deal with Chapter 9 Institutions.
AmaZiko wesiGaba seThoba woMthethosisekelo la, enzelwa ukuvikela amalungelo wobuntu ngebanga lobudisi nomtlhago okhabe ukhona ngaphambi komnyaka we- 1994. Ihloko leya ubaba wethu uNelson Rholihlahla Mandela, uMadiba, wathi lokho ekhabe kukhona ngaphambi komnyaka we-1994, kungasabuyi kube khona godu. Wathi, ngiyamdzubhula ... (Translation of isiNdebele paragraph follows.)
[Chapter 9 Institutions are meant to protect the rights of people, keeping them from the difficulties and challenging experiences of the years before 1994. Our late father, Nelson Rolihlahla Mandela, Madiba, also said that we are not to experience what happened before 1994. I quote:]
Never, never and never again shall it be that this beautiful land will again experience the oppression of one by another ...
This is the statement of the former ANC President, Nelson Mandela, at his inauguration as the first black President of the country on 10 May 1994.
Secondly, I want to deal with the mischief to be addressed by this Bill.
Sekusikhathi eside soloko kunokuhlubayela ngebanga lokungalingani kwemirholo yalabo abasebenza emaZikweni wesiGaba seThoba, [Chapter 9 institutions] begodu nehlelo elilandelwako lokubuyekeza imirholo nobujamo bemisebenzi. UMongameli ngokubonisana neKhabinedi nguye obeka imirholo yamalunga weKomitjhini yamaLungelo woBuntu [SA Human Rights Commission] kanti iNdlu yesiBethamthetho seNarha [National Assembly] iqalene nokuhlela imirholo nobujamo bemisebenzi yoMhloliincwadi-Mazombe [Auditor- General],uMvikeli woMphakathi [Public Protector] kunye neSekela lakhe.
Kwesithathu ngifuna ukukhuluma ngomqopho walomThethomlingwa. UmTthethomlingwa lo unqophe ukulungisa iintjhijilo engikhuluma ngazo lezi ngokwenza kubekhona ikambiso ekhambelanako [uniform procedure] yokubeka umrholo nobujamo nokukhambisana kwemisebenzi begodu nokufanele kutholwe mVikeli womPhakathi neSekela lakhe,beKomitjhini yamaLungelo woBuntu begodu neKomitjhini yokuLinganisa bembhaji nabengubo ngokuthuthukisa nokuvikela amaLungelo wamaSiko, wezeKolo newamaLimu.
Kwesine uMthethomlingwa lo unqophe ukutjhugulula nasi imithetho: ... (Translation of isiNdebele paragraphs follows.)
[For a long time there have been concerns about disparities in respect of the remuneration of officials working for Chapter 9 Institutions and procedures that were followed to review the remuneration packages and their conditions of service. The President and the Cabinet members are the ones who determine the remuneration packages for the South African Human Rights Commission members. The National Assembly is tasked with the determination of the remuneration and reviews of the conditions of service of the Auditor- General, the Public Protector and her deputy.
Thirdly, I want to speak about the aim of this Bill. This Bill seeks to provide solutions to address the discrepancies and challenges I have alluded to, so that we have a uniform procedure for the determination of remuneration and the conditions of service for the Public Protector and her deputy, the SA Human Rights Commission and the Commission for Gender Equality by developing and protecting their cultural, religious and linguistic rights.
Fourthly, the Bill seeks to rectify the following laws.] I now want to deal with the legislation that is to be amended, namely the Public Protector Act of 1994, Human Rights Commission Act of 1994, Commission on Gender Equality Act of 1996, Electoral Commission Act of 1996 and, lastly, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Act of 2002.
Fifthly, I want to deal with the proposals in this Bill. The Determination of Remuneration of Members of Constitutional Institutions Laws Amendment Bill, in brief, proposes a method in terms of which the Independent Commission for the Remuneration of Public Office Bearers shall investigate and make recommendations to the President on salaries, allowances and conditions of service of various office bearers.
Sixthly, on the independence of the Chapter 9 Institutions, these Chapter 9 Institutions enjoy constitutional independence and operate free from the interference or influence of other organs of state. Really, today it is better to live in South Africa than it was before 1994. This is a good story to tell.
Lastly, there is the matter of the benefit of this Bill. After this Bill is passed, uniformity will exist in the procedures for determining the salaries, allowances and benefits of the Chapter 9 Institutions that protect constitutional democracy - those are the watchdogs of human rights.
I want to join my colleagues in saying farewell to the hon Dene Smuts. It is now a fact that she won't be returning to Parliament after the elections on 7 May. I would like to join my fellow comrades in saying goodbye. We will miss you, hon Smuts, in our portfolio committee meetings and in the oversight that the committee had. We had only a few examples of oversight due to the busy schedule of passing the Bills.
One of the overseas visits that I will never forget is the one we undertook to Germany. As I was chairing the meeting we had with the South African Ambassador to Germany, Rev Makhenkesi Stofile, I said to the ambassador that he should keep his address very brief, because some of us can sleep and listen at the same time. I think you recall that, and you objected to my utterances. The ambassador understood, because he said I should speak for myself and not include other people!
Before 1994 we used to sing "I can shoot and run at the same time." Now, if we had been allowed to sing, I would have sung you a very beautiful song. But I will just recite its words as you are leaving. The song says:
Maba hambe aba hambayo, thina sosala siyi ncenga
Otherwise you can say:
Maba sale aba salayo, so phinde sibonane.
We learn that there is a certain Ms Glynnis Breytenbach who will be joining the Justice portfolio committee.
Stuur groete aan haar en ek wil vir haar s dat ons vir haar wag ... [Convey my greetings to her, and I want to say to her that we are waiting for her ...]
... in the Justice portfolio committee.
The ANC supports this Bill. I thank you. [Applause.]
Deputy Speaker, I have only two minutes. I had wanted to pay tribute to the hon Smuts, but I will also need to respond to some of the issues that she raised.
Firstly, I want to pay tribute to the hon Smuts. As other members have said, she is an extremely hard-working and well-prepared member of the committee. But I think she is also someone that other members of the DA can learn from in that she makes a difference. She is constructive, she engages the majority party and she is listened to, rather than being somebody who is more interested in getting into the newspapers and issuing press statements.
On the issues that were raised, this Bill enhances the independence of the Chapter 9 Institutions by having the commission investigate and make recommendations on their salaries. Currently, with regard to the Public Protector, the law says that the Public Protector cannot earn less than a High Court judge. The salary of the Public Protector is, in fact, higher. It is at the level of a Judge of the Supreme Court of Appeal. This is going to mean that there is an independent body, as with the judges, that makes recommendations.
The issue of the consultation with the Minister is an after-consultation and not an in-consultation, and that is what happens with the judges. The Minister of Justice and Constitutional Development gets asked for an input by the commission before they make their final recommendation. As far as the issues relating to the judiciary are concerned, we do, as I think you pointed out, have in our Constitution reference to a member of Cabinet responsible for justice. I am not sure of the role of that person, if that person has nothing to do with the courts, which is what you seem to be suggesting. In addition, is it appropriate for the Chief Justice to come and account to the National Assembly, as the Chapter 9 Institutions do, about how money is spent and the budget? The issue is, as in the Superior Courts Act, that the responsibility is shared.
I have run out of time but I am sure we can respond on other platforms at a later date. Thank you. [Applause.]
Debate concluded.
Bill read a second time.