Traditional Courts Bill: adoption; National Council for Correctional Services appointment, with Deputy Minister

Meeting report

The Chairperson indicated that the Committee would first adopt all outstanding minutes.

Committee minutes dated 24 May 2022

The Chairperson requested a mover for the adoption of the minutes, as amended.

Mr X Nqola (ANC) moved for the adoption of the minutes, as amended.

Dr W Newhoudt-Druchen (ANC) seconded the adoption of the minutes, as amended.

The minutes were duly adopted, as amended.

Committee minutes dated 25 May 2022

The Chairperson requested a mover for the adoption of the minutes.

Mr Nqola moved for the adoption of the minutes.

Dr Newhoudt-Druchen seconded the adoption of the minutes.

The minutes were duly adopted.

Committee minutes dated 31 May 2022

The Chairperson requested a mover for the adoption of the minutes, as amended.

Mr Nqola moved for the adoption of the minutes, as amended.

Dr Newhoudt-Druchen seconded the adoption of the minutes, as amended.

The minutes were duly adopted.

Committee minutes dated 01 June 2022

The Chairperson requested a mover for the adoption of the minutes.

Dr Newhoudt-Druchen moved for the adoption of the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes were duly adopted.

Consideration and adoption of the report on the Traditional Courts Bill (TCB)

The Chairperson, after guiding the Members through each page of the report, requested a mover for its adoption.

Dr Newhoudt-Druchen moved for the adoption of the report.

Mr R Dyantyi (ANC) seconded the adoption of the report.

Ms Y Yako (EFF) indicated that the EFF reserves its position on the report.

Adv G Breytenbach (DA) also indicated that the DA reserves its position on the report.

The report was agreed to with the reservation of the DA and the EFF.

Read: ATC220608: Report of the Portfolio Committee on Justice and Correctional Services on the Traditional Courts Bill [B 1D- 2017] (National Assembly – sec 76), dated 8 June 2022

Briefing on the 6th Democratic Parliament: National Council for Correctional Services (NCCS)

The Committee Secretary briefed the Committee on the appointment process of individuals to the NCCS.

He mentioned that in line with Section 83 of the Correctional Services Act 111 of 1998, the Minister is required to appoint the NCCS. Further, to satisfy the additional requirement of ‘ in-house consultation’ with Parliament, the Minister, after picking his preferred candidates, submitted 16 names to the Committee for its consideration.

The Chairperson said that based on previous discussions, the Committee was of the mind that both it and the Minister would have to agree on which individuals would be appointed to the NCCS. To achieve this, the Committee invited the Deputy Minister (DM) to engage it on the shortlisted candidates and agree on who would be appointed to the Council.

He opened the floor for discussion.

Discussion

Dr Newhoudt-Druchen asked how the 5th Parliament defined in-house consultation, as her interpretation was that it required the Minister to engage the Committee on which of the shortlisted candidates should be appointed to the NCCS.

Mr Dyantyi highlighted that as it was an in-house consultation, the department had to first brief the Committee on the nature of the advert for the vacancies and also engage it on which candidates to shortlist. However, the Minister had completed both tasks without the Committee’s assistance. He asked that NCCS Members explain why this had been the case.

Mr W Horn (DA) urged Members to consider the meaning of in-house consultation themselves, rather than relying on the interpretation and approach followed by the previous Parliament. Thereafter, he explained that in-house consultation means the department must seek concurrence with the National Legislature.

He then argued for the Minister to first inform the Committee of his shortlisted candidates during the meeting, and then embark on a process to identify his preferred candidates; after which he must report back to Members on his preferred candidates and consider their input. This process, he said, was different from the approach followed by the previous Parliament, where the Minister had decided on his preferred candidates and only asked for the Committee to approve the names, without hearing its input.

He added that Members had an obligation to deal with this process in a proper and fit manner.

The Chairperson asked that the Deputy Minister (DM) provide the Committee with the Minister’s preferred names, as well as where they are from and the reasons why he preferred each one. Afterwards, both the Committee and the department will agree on which names to nominate for appointment.

He then asked Mr Dyantyi, as the Chairperson of the Sub-Committee on Correctional Services, to take the Committee through its report from the meeting held the previous Friday.

Mr Dyantyi indicated that the Sub-Committee was comprehensively briefed by the department during the meeting held last week Friday. During the presentation, the department highlighted the skills, experience, age, gender and race of the shortlisted candidates. Certain departments, such as the Department of Social Development had only submitted their preferred candidates on the morning of the Friday meeting. The Sub-Committee, he added, was pleased with the diversity of candidates submitted, the reasons for their shortlisting (provided by Judge Brian Mashile) and agreed to their nominations.

He suggested that the Committee attends to some of the issues raised by Members of the Sub-Committee. He added that he looked forward to the implementation by the department.

He also cautioned Members from criticising the processes followed by the previous Parliament and described it as being unhelpful to the Committee’s work.

Mr Horn did not take kindly to Mr Dyantyi’s comments and indicated that it is the duty of the Committee to not repeat the mistakes made in the previous Parliament.

The Chairperson requested that Members solely focus on the interpretation of the Act and that they work within its spirit to assist the NCCS in making the appointments timeously.

Letter of the appointments of the NCCS, in terms of Section 83 (2)(h) Act 111 of the CSA

Inkosi Patekile Holomisa, Deputy Minister of Correctional Services, briefed the Committee on the letter of the appointments to be made to the NCCS.

He began by indicating that it is legislated that the Council must consist of the following persons:

• Three Judges of the High Court or Supreme Court of Appeal
• A Magistrate
• A prosecutor from the National Prosecuting Authority
• Representatives from the Departments of Police, Social Development and Correctional Services
• Two persons who specialise in the field of corrections
• And four or more members of the community

He mentioned that an advert was published in the Sunday Media on 16 June 2019, with a closing date of 5 July 2019. A further advert was published on 6 October 2019 with a closing date of 21 October 2019, to increase the pool of candidates for appointment. Following in-house consultation and needs-based research, the Minister limited his appointments to individuals from the legal, religious, academic, community involvement, and social fields.

He informed Members that the new Council will be appointed with effect from 01 July 2022, for a period of five years.

Subsequently, he requested that the Committee accept the bona fides of the candidates submitted by the Minister.

Adv Carol Mobu, Official from the NCCS, reported that the NCCS had to attend to the Sub-Committee’s concerns on the lack of skills transfer; a lack of geographical spread in candidates; and the lack of certain critical skills in the CVs received. To address the lack of skills transfer, the NCCS decided to pair young preferred candidates with older and more experienced ones. Furthermore, all provinces are represented in each of the categories. 

The Chairperson requested that the department goes through the list of proposed candidates.

Adv Mobu took the Committee through the profile of each proposed candidate.

Mr Horn asked that the Committee be advised on the candidate’s fitness to serve in the positions. Further, he asked whether a formal vetting process had been done. If so, had it looked at the credit record and assurances surrounding the financial stability of preferred candidates?

The Chairperson pointed out that any individual nominated for appointment by Parliament has to undergo a screening process.

Adv Mobu said that the advert was initially advertised by Human Resources (HR) in the department, which also did the gross listing of all the names that applied. The department was of the view that it would return to HR to assist with the vetting process, after its engagement with Parliament.

The Chairperson asked if the shortlisted applicants were subjected to a vetting process.

Adv Mobu admitted that they had not been subjected to a vetting process, instead only their CVs were screened. 

Adv Breytenbach felt that it would be problematic for the Committee to allow for the department to only vet the agreed-upon candidates, and not all shortlisted candidates. Further, she thought that administratively it would be an issue, as the Committee could agree with the department on a particular candidate, only for he/she to be disqualified during the vetting process, requiring a repeat of the whole process. Thus, she proposed that the vetting process be done first before the Committee agreed to the Minister’s preferred candidates. 

The Chairperson was concerned that if the Committee were to take the agreed-upon names to the National Assembly (NA) and the National Council of Provinces (NCOP) without them being screened, it would tarnish the reputation of both Houses.

Deputy Minister Holomisa agreed and proposed that the Committee agree on the names, following which, they will be provisionally appointed, subject to a vetting process. As the date for appointments is set for 22 July 2022 (he corrected the earlier date provided in the Minister’s letter) and the fact that the NCCS still had significant work to do, he requested the Committee agree to his proposal.

The Chairperson said that if this process were to be followed, the provisional appointees would not be able to conduct their work until they were vetted.

Deputy Minister Holomisa agreed and said that is why the department would have to complete the vetting process between now and 22 July.

Mr J Engelbrecht (DA) said that while he appreciated the department’s urgency to finalise the matter, he was concerned that the department had not yet vetted the candidates. Further, he felt that Parliament cannot be seen to be modifying its usual processes to accommodate the department. He suggested that the process be delayed, to allow for the department to conduct its vetting process.

Mr Dyantyi underlined the importance of a vetting process, especially as this matter involved a member of the security cluster. As such, he proposed that the Committee approve the names submitted, subject to the department providing a timeline on the completion of the vetting process: as this was the only issue related to the process and did not warrant for the Committee to delay proceedings.

Mr Nqola stated that the Committee should agree that the department had acted incorrectly by not vetting the candidates thus far. He agreed with Mr Dyantyi’s proposal and added that the department should submit, to the Committee, a report on the chosen candidates, before their appointment. 

Adv Breytenbach did not agree with the proposals and described it as reckless to suggest that the Committee accept the names submitted without a vetting process having been done. The Committee, she added, could not allow for candidates, who could possibly not be fit and proper, to be appointed due to a lack of oversight by the department. 

The Chairperson asked if Members had any other issues to raise regarding the candidates put forward.

Mr Dyantyi indicated that there were no other issues arising regarding the candidates.

Dr Newhoudt-Druchen said that she was pleased with the department’s presentation and only took issue with the lack of vetting candidates.

The Chairperson informed Members that the vetting is a lengthier process, unlike screening. As such, he asked if the Committee wanted the candidates to be screened or vetted and if this process would be done by the State Security Agency (SSA).

Adv Breytenbach argued that the Committee recommended the candidates be vetted, as the Council plays an important role in society. Further, she believed that if the Committee failed to do so, it would not be taking part in improving the justice system. 

The Chairperson asked why she felt that the candidates should be vetted, especially when appointees to the Public Protector are screened.

Adv Breytenbach mentioned that because members of the NCCS are expected to function in a complex area of the criminal justice system, where a vast array of pressures exist for one to act in an improper manner, Members need to know the calibre of the people put forward before them.

Mr Dyantyi urged for the Committee to advocate that candidates be screened, rather than vetted. Touching on Adv Breytenbach’s argument, he indicated that individuals appointed to the Intelligence Centre, which also functions in a complex area of security, are usually screened.

Deputy Minister Holomisa appealed to Members not to delay the process because the department had not yet screened the candidates. He agreed that the candidates must be screened before being appointed.

The Chairperson asked the Deputy Minister to clarify if he had earlier proposed that the candidates be provisionally appointed, subject to having been cleared by the screening process. In addition, he asked if under this proposal, those provisionally appointed would have the authority to perform their duties.

Deputy Minister Holomisa confirmed that was what he had proposed. 

The Chairperson asked how that process would be different from the department conducting the screening process first, and then asking the Committee to agree and take the names to the NA, so as to obtain a certificate to clear them for office.

Deputy Minister Holomisa indicated that not less than four members are to be selected for the NCCS, thus, the Council can function without them performing their work. 

The Chairperson, still referring to the Deputy Minister’s proposal, said that the NA’s image would be harmed if the Committee did not follow the correct procedures. He asked if the department did not think that its failure to screen candidates before presenting them to the Committee would not affect the NA’s image.

Deputy Minister Holomisa admitted that the proposal would harm the NA’s image and instead recommended that preferred candidates be appointed subject to the passing of the screening tests.

Ms N Maseko-Jele (ANC) asked how long it usually takes to screen candidates. 

Mr Horn requested that the Committee follow due process when dealing with the selection and appointment of candidates. To do this, he advised that it states that screening must be used to determine the eligibility of each candidate. He also highlighted his displeasure with the Deputy Minister’s proposal.

He explained that while vetting is a complex process, unlike screening, it has a specific outcome, which is that you either receive clearance or not. Whereas once the screening process is concluded, the department will have to make a value judgement in respect of any matters arising from the screening report on whether a candidate is fit and purpose to serve on the Board. He added that it was not as simple as saying that someone had passed or not.

The second issue he highlighted was that if there were any issues identified during the screening process of the provisionally appointed candidates, they would be in a better legal position to take either the Minister or Parliament to task about whether the value judgement on the screening outcomes was, in fact, reasonable and rational. Thus, he urged, for the sake of Parliament’s integrity and that of the process, that the Committee not appoint the candidates, until they have undergone a screening.

The Committee Secretary, referring to the time required for screening, indicated that it usually takes to three weeks to finalise the screening of candidates, depending on the number.

The Chairperson asked what the implications of taking nominees to the House of Assembly, who have not yet been screened.

The Committee Secretary said that would suggest that the Committee had not properly applied its mind to the process.

Mr Dyantyi mentioned that Parliament has appointed individuals to Chapter 9 institutions, following a screening process. He felt that it would be inconsistent for the Committee to vet the preferred candidates.

In addition, he agreed with Mr Nqola’s suggestion that a report on the results of the screening process be submitted to the Committee, prior to it taking the names to the House.

The Chairperson also agreed with this proposal, particularly as there is a serious backlog in vetting, which may delay the process for months or years. Thus, the Committee, he mentioned, would stick to a screening process.

Deputy Minister Holomisa said that the term of the current NCCS expired sometime back and was extended until the end of June. He had been advised that this could be extended until 31 August 2022. Thereafter he proposed that the Committee defer agreeing to the names submitted, until the department completed the screening process.

The Chairperson thanked the officials and the Members for the engagement.

Returning to Adv Breytenbach’s earlier point on instituting a vetting process for all people seeking higher office, he proposed that the Committee consider raising this suggestion within Parliament and the rest of the government.

The meeting was adjourned.