Protected Disclosure Act & Legal Aid Regulations; Withholding Remuneration of Magistrate

Meeting report

Opening Remarks

The Chairperson said copies of the Protected Disclosure Act and Legal Aid Regulations which the Committee would be dealing with, had been circulated to Members. The Committee would make comments to the relevant authorities, because these regulations were going to regulate the space in which it operated as a Committee, so it would become an interested party on that basis.

The Chairperson said there were four items on the agenda:

• Consideration and discussion of the Protected Disclosure Act Regulations for comment to the Minister of Justice;
• Consideration of the Legal Aid Regulations for comment to the Minister of Justice;
• Consideration of withholding the remuneration of Magistrate Gqiba; and
• Consideration and adoption of outstanding minutes.

Ms T Mokwele (EFF, North West) asked whether the Chairperson was going to start with the item of the membership of this Committee, or whether it would be discussed later.

The Chairperson said this matter had been dealt with at management level, and the Chief Whip had been contacted and consulted on it. They had been advised by the Chief Whip of Parliament that his office was busy configuring Committees and the memberships.

Ms Mokwele said she was not referring to the Member of the EFF, but referring to a Member who was not a Member of this House, and had forever been part of this Committee. That Member was Mr L Suka (ANC).

The Chairperson thanked Ms Mokwele for raising this, and confirmed she was actually correct. Mr Suka had resigned from Parliament three years ago and was now a councillor in Nelson Mandela Bay Municipality. This would be corrected by the Committee Secretary.

Ms B Engelbrecht (DA, Gauteng) asked whether Mr Suka was getting a Member of Parliament’s salary, because he was listed as an MP.

The Chairperson said that was an administrative error, but Members were free to investigate that issue themselves.

Protected Disclosure Act Regulations: Consideration and discussion

Mr Nathi Mjenxane, Parliamentary Legal Advisor, said the one questions he was supposed to answer related to the listing of the Chairperson of the National Council of Provinces  (NCOP) as one of persons or bodies to whom or which disclosures could be made in terms of Annexure B of the regulations. Chapter 4 of the Constitution provided for the composition of the institution of Parliament, which was composed of two Houses -- the National Assembly (NA) and the NCOP -- which formed one Parliament.

The Powers and Privileges Act, which grants immunities for certain conduct to MPs, lists the Speaker as an office bearer and presiding officer of the NA, and the Chairperson of the NCOP as an office bearer and presiding officer of the NCOP. Therefore, that Act creates the two Houses and two persons as heads of the two Houses, acting as office bearers.

There was also the Financial Management of Parliament and Provincial Legislatures Act, which recognised that Parliament was one institution which was administratively and, for the purposes of the constitution, divided into the two Houses. However, the Act stated that in instances where the heads of the two Houses have to act in the interests of Parliament as one institution, the Speaker of the NA and the Chairperson of the NCOP were referred to as Executive Authority acting jointly.

Mr Mjenxane said for the purposes of disclosures as articulated in the Act, as well as in these regulations, it was their view that the best way was for only one entity to be listed, as was the case with other bodies listed there, like the Human Rights Commission and the Competititon Commission. The Legal Office of Parliament’s view was that it would be best if Parliament was listed as one institution, and the persons or bodies to whom the disclosures could be made were the Executive Authority, which meant the Speaker of the NA and the Chairperson of NCOP, acting together or jointly in terms of the Financial Management of Parliament and Provincial Legislatures Act. Their advice to the Committee was therefore just to make a slight amendment to the regulations by removing the word "Chairperson" as a person to whom the disclosure could be made, and replace it with the words "Executive Authority" of Parliament, which in law referred to both the Speaker and Chairperson acting jointly on behalf of Parliament.  

The Chairperson asked whether they should also suggest a definition of this phrase "Executive Authority" into the actual regulations, or the actual principal Act, because Mr Mjenxane was making reference to a definition of a different Act, which had an indirect bearing on the principal Act to which the regulations were addressed,

Mr Mjenxane said there was nothing wrong with the suggestion in law, but for drafting purposes and in order to make it uniform in drafting, all they would need to do instead of repeating what was already in the statute book, would simply be to refer to the ‘Executive Authority,’ as defined in this legislation. In that manner, they would not repeat the entire definition which was already in the statute book. It was in line with the drafting convention to cross reference with existing legislation when enacting, and it would not cause any confusion because ‘Executive Authority’ was clearly defined there.

The Chairperson thanked Mr Mjenxane for his satisfactory answer 

Ms G Oliphant (ANC, Northern Cape) requested that they be provided with the Act so that they could familiarise themselves with the definitions.

Mr Mjenxane said they would provide the Committee with the copies of the Financial Management of Parliament and Provincial Legislatures Act and highlight the definition they were referring to for ease of reference.

The other legislation was the Powers and Privileges Act, which Members were familiar with, which granted Members immunity. That Act listed the heads of the two Houses as office bearers and presiding officers. However, for uniformity it could be seen that in these regulations, there were institutions listed such as the Electoral Commission of South Africa. They were not listing the head of that institution as the person to be disclosed to, but merely referring to the Electoral Commission of South Africa. They thought that they had to refer to Parliament as one institution as recognised by the constitution, which was formed by both the NA and the NCOP. 

The Chairperson asked what would become the status of these regulations, together with the principal Act, with regard to provincial legislatures and local municipalities 

Mr Mjenxane said as he understood the Protected Disclosures Act, it was a national legislation which was applicable throughout the Republic, to Parliament, to the provincial legislatures, as well as the local municipalities. However, from the categories of people listed by the Minister exercising delegated power to make regulations, which were delegated by the principal Act, he had in his wisdom listed a number of persons and bodies to disclose to, and had not specifically mentioned the provincial legislatures and municipalities. This power had been delegated to the Minister, and sought to enable implementation of the legislation by the Minister. Mr Mjenxane said he was not sure why there was no specific mention of Provincial Speaker, or Speaker of the Council at the local government level.

The Chairperson asked whether that was not a shortcoming.

Mr Mjenxane said it was not a shortcoming, because from an implementing perspective provincial legislatures and local municipalities had to have a designated person to whom disclosures were made in terms of their own legislation. For instance, there was the Structures Act in the municipalities. At the provincial level, it could be a possible oversight on the part of the Minister to not cite the Speaker, because just as the Speaker and the Chairperson were office bearers at the national level, or ‘Executive Authority’ as proposed, the Speaker in the provincial legislature was the ‘Executive Authority’ and the best person to whom disclosure should be made in respect of impropriety within the institution at the provincial level.

Ms Mokwele said when this Parliament started in 2014, they had requested that they be given the library of this Department. They should be provided with all the relevant Acts or legislation so that they could refer to them.

Ms Oliphant agreed with Ms Mokwele.

Mr Mjenxane said he was willing to work with the support staff of the Committee to draft a definition which referred to the Executive Authority in Parliament, and which would be construed to refer to the Executive Authority in the provincial legislatures as well.

The Chairperson said the Committee agreed on that. He thanked Mr Mjenxane for his advice and responses to the Committee. 

The Chairperson said the report would be prepared and sent back to the House, because that was the procedure they had to follow as a Committee. The proposed amendments would be included.

Legal Aid Regulations: Consideration for comment

The Chairperson asked the Content Advisor to take the Committee through the Regulations.

Ms Anthea van der Burg, Content Advisor, said the Minister had asked the Committee to comment on an amendment to Regulation 27. As background, the Legal Aid South Africa Act 39 of 2014 (LASA Act) provides that the objects of the LASA was to "(a) render or make available legal aid and legal advice; (b) provide legal representation to persons at state expense; and (c) provide education and information concerning legal rights and obligations, as envisaged in the Constitution and LASA". So, for the purpose of legal aid, they provided a means tests to see who was eligible for legal aid or not. In this case the Minister had asked the Committee to look at Regulation 27, because he wanted to amend the amounts which had been proposed in these regulations in terms of the means test. The proposals were really increasing the means test for eligible amounts per categories. For example, if one looked at regulation 27 (2), there was amendment substituting R5 500 to R7 400, which was in respect of civil claims.

Ms Engelbrecht asked for clarity whether this amount was the salary a person earned which was used as a base to determine if he/she got legal aid.

Ms Patricia Whittle, Parliamentary Researcher, said that in bullet point 3 of the document she had prepared for the Committee, LASA employed a means test to determine which persons or households qualified for legal aid, based on income and property, according to specified threshold amounts. These amounts had been reviewed, and the draft Legal Aid Regulations that had been referred to the Committee for informal discussion proposed to increase the threshold.

Regarding legal aid for individuals, currently employed persons must not earn more than R5 500 per month after tax deductions. The draft regulations had increased this amount to R7 400. For households, currently the total household income must not be more than R6 000 per month after tax, and the draft regulations had increased this amount to R8 000. In respect of households and individuals owning property, if an individual or household currently owns a house, the total value of the house and all belongings must not be worth more than R500 000. The applicant must have only one house and must live in it. The draft regulations had increased this amount of the house and belongings to R640 000. Currently, if an individual or household did not own a house, the total value of all their belongings (car, furniture, clothes and other personal effects) must not be worth more than R100 000. In this regard the draft regulations had increased this amount to R128 000.

Ms Whittle further explained that the means test did not apply to:

• Persons on state grants and the elderly - they only need to provide official documents to prove receipt of state grant or pension; and
• Children in criminal cases - children automatically qualify for legal aid (in civil cases, the family of the child must take and pass the means test).

The Chairperson said when he was reading the actual regulations, he was asking himself what the basis was for raising the value of the property, because to them as Africans property was semantics. His family property could never be attached to any marketable thing. For example, if he had inherited his father's property and he was a beneficiary, and had an income for some years and he was an MP, and in 2019 he was no longer a MP, but had that property in his name and could not afford legal representation, on what basis that property would be an issue when he needed legal defence.

Ms Whittle said the means test was a factor the Legal Aid had to take into consideration. For instance, she might have a property that was valued at that amount, but her expenses might be more than that, or she might have debt against that property, or she might have a bond on that property that she had to pay. These were the factors Legal Aid had to take into consideration. However, these could not be the only criteria to decide whether a person qualified or not. What the draft regulations did, because they increase the amount of the property’s value, was to allow people who earned little bit more to have a slightly more valuable property but still qualify for legal aid, based on other criteria like the interests of justice.

If the legal aid department refused legal aid to a person, there was an appeal mechanism so that people could go to different structures within Legal Aid South Africa to appeal. As a last resort, a person could also approach the court for LASA to provide legal aid, and the onus would be on that individual to disclose everything in order to get legal assistance.

Ms Mokwele said research had shown that most of the families in South Africa who earned less than R300 000 could not afford certain things. Therefore, if the draft regulations stated families in terms of the means test were eligible up to R120 000, this was an exclusion for those that were earning beyond R120 000 but still could not afford legal assistance outside of Legal Aid.

Ms Whittle said currently the means test mentioned property, and the draft regulations only looks at the amounts. However, because the new regulations were not yet tabled, this was an informal discussion that the Minister had requested, and there was time to amend them before they were tabled. Some of the comments that had been made would be part of the responses that went to the Department, and they should also question why the value of property was part of the means test currently.

The Chairperson suggested that they should invite Legal Aid South Africa to come and clarify on all these issues, and therefore defer the adoption of this report till further notice.

The Committee agreed to defer the report.

Consideration of withholding remuneration of Magistrate Gqiba

Mr Gurshwin Dixon, Committee Secretary, said that although this matter had been tabled before the Committee, there was an issue concerning the withholding of remuneration of Magistrate Gqiba. The issue was a high court application, and he had contacted the Magistrates Commission which had indicated that the court application was still pending, and the date had been moved to July 2018. The Magistrates Commission had yesterday adopted a resolution to suspend magistrate Gqiba, and still considered withholding the remuneration of the magistrate.

Mr J Mthethwa (ANC, KwaZulu-Natal,) said at their last discussion of this matter, they had wanted to find out what had been done on this issue, because it was an old matter they had discussed before and even taken it to the House. What had they done up to now, or were they repeating themselves?

The Committee Secretary said there were two separate matters which must be considered individually. The first was if the magistrate was brought up for disciplinary matters, there was a provisional suspension from office, so if the magistrate still received her salary, the Magistrates Commission would conduct an investigation and a disciplinary hearing on that matter. The outcome of that disciplinary hearing would then come back to Parliament and they would advise Parliament whether to suspend the magistrate and remove the magistrate completely from office. That would depend on outcome of the disciplinary process. In the case of Magistrate Gqiba, she had been suspended from office by the Minister. Parliament must agree on that suspension. The moment the Minister receives a recommendation from the Magistrates Commission, he suspends the magistrate and informs Parliament that he had suspended the magistrate and Parliament must confirm whether it agrees with this suspension. On the side of the NCOP, they had confirmed that Magistrate Gqiba must be suspended and removed from office, in agreement with the Minister.

The second process kicks in with the withholding of remuneration, which comes back to Parliament to say that, because the magistrate has been removed from office, the Committee advise that the salary must be withheld. In terms of the Act, the magistrate could be suspended and removed from office based on age, mental capacity, etc but could still receive remuneration like pensions and moneys that were owed to him/her. In that case, they would then say they agreed with the suspension and agreed that they receive their salaries based on the facts the Minister had alluded to. In this case, however, it was clear in terms of the disciplinary process that the magistrate must be removed and remuneration withheld. That was where the situation was currently.

Mr Mthethwa proposed that they wait until the disciplinary committee finalised the matter and not rush into withholding the remuneration.

The Committee Secretary said the disciplinary process had been concluded by the Magistrates Commission in November 2017, and they had informed Parliament that the magistrate had been suspended. The Minister had suspended the magistrate and informed Parliament in this regard. The Committee had agreed with the Minister, so the magistrate had been suspended and was out of office. She had then contested the matter in the high court. She had cited the Portfolio Committee and the Minister in the application, but had not cited the NCOP because at that stage they were already considering her suspension. The legal advice the Committee had received noted that they as a Committee could go ahead and suspend if they wished, and whatever the high court application indicated to Parliament could just be rescinded. Members had been happy with that decision and they had informed the NCOP that she must be suspended, and that report had been adopted by the House.

The Chairperson said he understands where Mr Mthethwa was coming from, because magistrates were not governed by the Labour Relations Act, but by the Magistrates Act.

Mr D Ximbi (ANC, Western Cape) suggested that because this matter was before court they should delay the withholding of her remuneration, and wait for the court judgment.

The Chairperson asked whether was there anything wrong to stay this matter as a Committee, or to withhold her remuneration in terms of the law.

Ms Whittle said it was the choice of the Committee. However, she always knew that since the matter was with the Magistrates Commission it was a concern, because it took a lot of time to finalise and there were concurrent processes that were happening as well, like disciplinary hearings and court proceedings. Many times, evidence that had been presented to the Committee supported the view that court processes were mostly used to stall or frustrate the processes of the Magistrates Commission.

 Ms Mokwele said they must involve themselves in matters they could not change. They needed to concentrate on their responsibilities as a Committee,  and execute them accordingly. The report before them was for them to note, and for them to take a decision. All the avenues had been exhausted in terms of the report from the Magistrates Commission. She proposed that the Committee must agree on withholding the salary of Magistrate Gqiba until the court case unfolded, because a person could not be paid a salary for more than three years for doing nothing.

Ms Engelbrecht agreed with Ms Mokwele on the withholding of the remuneration of Magistrate Gqiba, adding that they should be guided by the Magistrates Commission and allow the process to continue.

Ms Oliphant also agreed that they should withhold the remuneration, because the same salary she got she used to pay lawyers to defend her in this case, and if she won the case she would be paid back by the government.

The Chairperson said it was clear that there was consensus that they should withhold the remuneration of Magistrate Gqiba, and uphold the recommendation of the Magistrates Commission,

Adoption of minutes 

Mr Mthethwa moved the adoption of the minutes of 23 May 2018.

Ms Oliphant seconded the motion.

The Committee adopted the minutes without corrections.

Mr Ximbi moved the adoption of the minutes of 30 May 2018.

Ms Oliphant seconded the motion.

The Committee adopted the minutes without corrections. 

The meeting was adjourned.