State Attorney Amendment Bill: Departmental briefing; Private Security Industry Regulation Amendment Bill: further Departmental briefing and adoption

Meeting report

State Attorney Amendment Bill [B52B-2013]: Department of Justice and Constitutional Development briefing
Ms Ina Botha, Principal State Law Advisor: Department of Justice and Constitutional Development, began by briefing the Committee on the basic provisions of the State Attorney Act No 56 of 1957 (the Act), which had provided for the establishment of one Office of the State Attorney (OSA) and its branches. It also regulated the appointment and conditions of employment of the State Attorney, the heads of the various branches and the attorneys staffing these. The Act also stipulated the functions to be performed by the State Attorney and branches. The State Attorney and his subordinates must be admitted attorneys and public servants, making them subject to ethical standards of both the Public Service and their professional bodies. These functionaries performed work, on behalf of the Government and its departments, that was required to be or was usually done by admitted attorneys.

The State Attorney Amendment Bill (the Bill) was presented as an initial step in the implementation of the policy contained in the Framework for the Transformation of State Legal Services of May 2012. This document identified the general capacity related challenges with the State legal services and proposed the co-ordination of legal services first within the Department of Justice and Constitutional Development (DoJ&CD) and then looked to building capacity within the Department, especially in specialist practice areas.

The Bill now aimed to establish multiple Offices of the State Attorney, with equal status, each headed by a State Attorney. The State Attorneys would be subject to the overall direction and control of a newly-created functionary, the Solicitor General (SG). The Solicitor General would be subject to the control of the Minister of Justice and Constitutional Development, in the exercise of the powers that the Minister had delegated. The Solicitor General would essentially be the State's chief legal advisor in all civil litigation, akin to the position of the National Director of Public Prosecutions in criminal matters.

Ms Botha then went into a clause by clause explanation of the Bill:

In clause 1, the term ‘Office of the State Attorney’ was replaced with 'Offices of the State Attorney', bringing the effective equality which existed between the current Office of the State Attorney and its branches into law. This clause also provided that the existing Office of the State Attorney and its branches would be deemed to be Offices of the State Attorney.

Clause 2 substituted section 2 of the principal Act, to provide for the appointment of the Solicitor General, under the direction of the Minister of Justice and Constitutional Development. It specified the appointment requirements, including fitness and proprietary and admittance as an attorney, and the renewable five year term of service. The clause stated that where a relevant functionary was unable to perform his or her functions, the appointment of Acting-Solicitor General or Acting State Attorneys, respectively by the Minister and Solicitor-General, would be required. It also empowered the Minister to delegate power to appoint State Attorneys and attorneys working in the Offices of State Attorney to the Solicitor-General. The grounds for termination of service and transitional arrangements regarding the existing legal services structure were also stipulated

Clause 3 amended section 3 of the principal Act, to update references in the Act to Offices of State Attorney and to deal with other outdated language, such as gender specificity. It also inserted subsections dealing with the power of the Minister to determine the policy relating to the Offices of State Attorney. This policy must be drafted after consultation with the SG, and must be approved by Cabinet, then tabled in Parliament. This policy must cover the coordination and management of litigation, the briefing of advocates, the outsourcing of legal work, implementing alternative dispute resolution mechanisms, and the initiating, defending and opposing of matters.

Clause 4 inserted a new section 3A into the Act, setting out the powers and functions of the SG. That SG would be the executive officer of all the Offices of State Attorney and was charged with implementing the policy as determined by the Minister, which included the issuing of directives and standards, which must be tabled in Parliament. The Solicitor-General may also, in writing, delegate any power conferred on him or her, to any person appointed in terms of clause 2.

Clause 5, 6, 7, 8, 9 & 10 contained consequential technical amendments, similar to those contained in clause 3.

Clause 11 amended the Long Title of the Act, and clause 12 set out the Short Title.

Ms Botha concluded that the Bill was an attempt to further the policy contained in the Minister’s Framework for the Transformation of State Legal Services. This Framework sought to provide the State with an efficient and cost effective legal service, by empowering the branches of the Office of the State Attorney and to coordinate these activities through the Solicitor General.

Discussion
Ms M Boroto (ANC, Mpumalanga) was concerned about the complexity of the documents provided to the Members, who had to present the Bill to the provinces shortly. She then asked for clarity on the implications of words 'after consultation' in clause 3 and asked if this meant that the Minister must seek the advice of the Solicitor-General, but in the end still make his or her own decision.

Ms H Boshoff (DA, Mpumalanga) felt that ‘after consultation’ ought to be changed to ‘in consultation’, because this would make it more constitutionally correct.

Ms Kalay Pillay, Deputy Director General: Legislative Development, Department of Justice and Constitutional Development, firstly said that she would work to provide the Members with a simpler version of the presentation.

In answer to the 'after consultation' phrase, she noted that after discussions in the Portfolio Committee on Justice and Constitutional Development, it was felt that the importance of policy formulation by the Minister for the proper functioning of the Bill (once passed) would require the Minister not to be shackled unduly by any requirement to act ‘in consultation’ with the Solicitor-General in the drafting of the policy.

Ms Botha added that ‘after consultation’ would mean that the Solicitor General's views must be obtained and seriously considered, but the final decision would lie with the Minister.

Ms Boroto asked what exactly could be delegated by the Solicitor-General under clause 3 and what was meant when it was said that s/he may not delegate the power to issue directives and standards.

Mr J Gunda (ID, Northern Cape) He also wanted clarity on the nature of the delegation to occur under the Bill.

Ms Botha explained that the delegation had been structured to take into account the rights of third parties, meaning that where a power had been delegated and exercised creating rights, for example an appointment, the delegator could not later rescind that decision. The reason why there was not permitted to be a delegation of the power to issue standards and directives was that the Department felt that this power was too important to the policy function, which was a critical aspect of the position of the Solicitor-General, along with the Minister. This part of the response is relevant to Mr Gunda's question below.

Mr Gunda wanted to know if the Bill made the Solicitor-General effective and accessible to previously disadvantaged people. Secondly he wanted to know from where the budget for the funding of this office would be sourced, and if the Department of Justice and Constitutional Development had room in its budget for this expense.

Ms Botha responded that although the public would not have access directly to the services of the Solicitor-General the Bill did provide for an enforceable policy structure, which would specifically speak to measures such as the briefing of previously disadvantaged persons in important cases. She went on to say that the Solicitor-General was only a functionary, and not a new office, and that the Department would be using the budget it currently had allocated to the vacant Chief Litigation Officer post.

Mr A Matila (ANC, Gauteng) wanted to know about the interface between the present Bill and the Legal Practice Bill, in relation to the closer alliance of the attorney's and advocate's professions, and further if there was any way this related to efficiency in other parts of the legal profession such as the magistracy.

Ms Botha replied that State Attorneys would all be attorneys and therefore be subject to the changes effected by the Legal Practice Bill, although they would still be public servants. She then clarified that she had not meant, by her remarks on transformation, that there was to be a linkage between the Offices of State Attorney and the magistracy, but had rather meant to indicate that the transformation of this Office, like the transformation of the judiciary, formed part of the broader transformative mission for the legal profession. 

Ms H Boshoff (DA, Mpumalanga) asked for more details about the appointment criteria.

Mr B Nesi (ANC, Eastern Cape) asked whether the Bill itself was transformative and if there was anything in the Bill which helped to create economic access for previously disadvantaged persons.

Ms Pillay replied that it was correct that the State Attorney Act was an old piece of legislation, but the amendment was transformative in that it would allow the Solicitor General to implement policy as overall controller of all the various Offices of State Attorney. Currently there was a policy in place which guided how State Attorneys worked, but one example of an area which will be looked to, for improvement under the new policy, would relate to the briefing of previously disadvantaged private attorneys or advocates to assist the State in its legal work for government.

The Chairperson then asked about the synergy to be created between the Offices of State Attorney and the Solicitor-General, if the Solicitor-General was meant to be the chief State legal advisor and in control of the Offices of State Attorney.

Ms Botha replied that the synergy between the Offices of the State Attorney and the Solicitor- General would lie in the fact that both these offices fell under the Minister. At the same time, the Solicitor-General would be indirectly in charge of all the State Attorneys heading the Offices of the State Attorneys.

Mr Gunda then repeated Ms Boshoff's question concerning the appointment criteria.

Ms Botha replied that the appointment criteria were the same as those set out in section 2 of the Principal Act.

Mr Matila then suggested that the Department be present when the Members briefed the provinces.

Ms Boroto reiterated that point, asking that the Departmental representatives make themselves available for the briefing the following Thursday or Friday, and would be duly contacted.

Private Security Industry Regulation Amendment Bill [B27D-2012]: Department of Police second briefing
Major General Philip Jacobs, Legal Services, South African Police Service, reminded Members that the Department (SAPS) had started by saying that the Department had given a full briefing at the previous meeting.

He noted that a submission had been made by Mr A Pougin de la Maisonneuve, of the European Union (EU) Delegation to South Africa, relating to the clause in the Bill that sought to restrict foreign ownership in security companies, and which he had regarded as a contravention of South Africa's obligations under the World Trade Organisation's General Agreement on Trade and Services (GATS).

Maj-Gen Philips said that this issue had been thoroughly dealt with by the Portfolio Committee. He then referred to the last page of the Briefing Note on the Private Security Industry Regulation Amendment Bill - Provisions on Restriction of Foreign Involvement, which was submitted when SAPS first presented the Bill. This spoke to the process required for the amendment or withdrawal of scheduled commitments to GATS, which SAPS believed could be justified by the need for South Africa to protect its national security, which may be threatened by too large foreign ownership interest in the Private Security industry. He also indicated that clause 38(15) on page 23 of the Bill dealt with the transitional arrangements and stated that the Republic's international trade obligations must be respected in the implementation of the section. The GATS provided for an arbitration process should any of the signatories not be happy with the way the Republic was dealing with a particular situation. Therefore, South Africa's international obligations would not be ignored, and there were already mechanisms to deal with any grievances of any other signatories. He said that it was not the case, as suggested by the EU Delegation's submission, that the Private Security Industry was the subject of nationalisation. He recommended that definite legal processes must and would be followed to achieve the ends of the Bill.

Discussion
Mr Gunda asked whether SAPS knew the percentage of South Africa ownership in the various foreign private security companies.

Maj-Gen Jacobs responded that the Private Security Industry Regulatory Authority (PSIRA) could not provide these figures, because there was, at the moment, no restriction in this respect, so the details were not captured and monitored by PSIRA. However, the memorandum did disclose some details.

Mr Amichand Soman, Director: Legislation, Civilian Secretariat for Police, added that PSIRA did not have the information, because there was no restriction on foreign involvement at the moment, but when the Bill was enacted, PSIRA would have to start making such information available through new information systems.

Ms Boshoff stated that this information was highly important, and was anxious to know why these letters had not been placed before the Committee sooner.  She also wanted to know what influence this information was going to have on the Bill, and would like a legal opinion in support of any assertion that there would not be any influence. She also stated that the Committee had been misled, by statements made by government officials about comparable legislation with the USA, as she had heard that the United States did not restrict ownership, in order to keep in within its GATS obligations. She also wanted to know how the insertion of the 51% minimum would affect South Africa's standing in the World Trade Organisation, and feared that the country stood to lose large amounts of foreign investment. She proposed that the Bill should be sent back to the National Assembly for reconsideration on these aspects.

Maj-Gen Jacobs agreed that the United States did not have direct legislation limiting ownership in the private security industry, but asserted that at an administrative level there were indirect limits and controls. These controls were justified by the industry having a direct relationship to the United States' national security and defence.

Mr A Matila (ANC, Gauteng) reminded SAPS of the concerns previously raised relating to the employment of foreign nationals in private security companies, because a security risk to South Africa could be posed in allowing these individuals to carry arms and ammunition.

Maj-Gen Jacobs replied that in the current Act there was not a full restriction, but that the Act did prescribe that, in order for a foreign national to work in this industry, the individual would need to get an exemption of the Minister of Police. Therefore, whenever there was an appointment of a foreign national without such an exemption, this would amount to a contravention of the law, which could result in prosecution.

Mr B Nesi (ANC, Eastern Cape) stated that the Department should realise that the Committee's first priority was the economic transformation of South Africa; therefore it cannot wait for American legislation to introduce ownership caps. He agreed that South Africa's international trade obligations must be respected and the protocols complied with, and it was for the Department to find a way to achieve the ends of the Bill in a way which would, above all, provide results. He wanted to know why SAPS was not aware of how many foreign nationals worked in the private security companies and whether this situation existed in other countries. It was an impediment to the economic transformation that was sorely needed in South Africa.

Mr Gunda wanted clarity on how it could be possible that there was currently no obligation on PSIRA to know how many South Africans and foreign nationals were working in private security companies. He felt that this was unacceptable and requested SAPS to provide the statistics of how many South African employed in foreign owned private security companies before Parliament closed.

Mr J Bekker (DA, Western Cape) reminded the Committee that South Africa must be considered in the global context and wanted to make sure that the letters received from the various embassies were in fact discussed by the Portfolio Committee, and that the Members applied their minds to the contents and the consequences of the Bill for South Africa’s standing in the international community. He would therefore like to know what the Portfolio Committee had thought about the letter.

Mr Matila then clarified the situation, saying that when the Portfolio Committee had met with the British Consulate and others, there was uncertainty whether the letters could be released to the Portfolio Committee, so that they were in fact not before the Committee and they could not be taken into consideration when that Committee had discussed and adopted the Bill. However, these letters were later received after the Portfolio Committee had met with the authors of the letters.

Ms Boroto felt there was no purpose in discussing the letters. The Bill had been presented to the provinces, which had sent their mandates. The contents of the letters could be communicated to the Minister, but she did not feel that they should impede the work of the Committee.

Matters raised previously to SAPS: Further report
The Chairperson asked the Department to respond on the issues which the Members had raised at an earlier meeting.

Maj-Gen Jacobs said the first issue was the reference to 'National Assembly' in Clause 20, which this Committee asked should be changed to read 'Parliament'. He explained that this section followed wording used in other similar legislation.
 
A representative of the Office of Chief State Law Advisor said that the general principle about the oversight body that was appropriate was generally affected by the tagging of the bill as a section 76 or 75 bill, with the term “Parliament” being used in bills affecting the Provinces.

Maj-Gen Jacobs said SAPS agreed with the changing of the date in the Short Title to 2014.

Maj-Gen Jacobs noted that the suggestion was made around reference to contraventions, and whether the relevant clause should refer just to contraventions of the Act, or to the Act and regulations. He noted that separate clauses dealt with the regulations, and with contraventions of the Act. He then said the basis for the five year sentence being suggested was the need to ensure that the contravention of regulations was dealt with more seriously by the judiciary.

He said that putting into operation the Levies Act would go a long way to help with the funding issues of PSIRA, because Parliamentary funds were not a given for PSIRA, as PSIRA, although it could request funding, would still have to make out a case for funding.

The State Legal Advisor said the use of 'the service' in the Bill, was unlikely to create confusion, as it was defined as the South African Police Service in the principal Act, and therefore advised leaving it as is.

Maj-Gen Jacobs said that the dispute resolution mechanism with the Minister was modelled on legislation for the Directorate of Priority Crimes Investigation, where the Minister was used as a mediator between two regulatory authorities.

Adoption of the PSIRA Bill and Committee Report
Members adopted the Bill.

The Report of the Select Committee was then adopted, which noted that the Bill was adopted with no amendments.

The meeting was adjourned.