Independent Police Investigative Directorate Bill & Civilian Secretariat for Police Service Bill: Final mandates; Amendments to Convention on Certain Conventional Weapons

NCOP Security and Justice

09 November 2010
Chairperson: Mr T Mofokeng (ANC)
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Meeting Summary

The Committee firstly considered the final mandates for the Independent Police Investigative Directorate Bill [B15B-2010] and the Civilian Secretariat for Police Service Bill [B16B-2010]. Seven provinces supported the Bill. Western Cape voted against the Bill because it felt that certain issues proposed for amendment were not taken into consideration. Kwazulu Natal had not had sufficient chance to discuss the amendments in detail and did not hand in a final mandate.

The Department of International Relations and Cooperation briefed the Committee on the Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons. The purpose of the original Convention was highlighted as limiting the use of weapons that were excessively injurious or had indiscriminate effects on people, and it was noted that this was particularly relevant in Africa, where landmines and explosive remnants of war were prevalent. This Convention was an important instrument of international humanitarian law, which acted both as a non-proliferation measure and an arms control measure. South Africa had become a party to the Convention in 1996. An amendment was now proposed to Article 1, to make the Convention applicable to conflicts of a non-international nature, and this too was relevant to Africa where many conflicts involved provinces or parts of countries. Signatories were also asked to adopt Protocol V, which dealt with the clearance, removal, disposal, and destruction of munitions following the cessation of active hostilities, as well as retention and transmission of information, the protection of civilians and humanitarian missions, and international co-operation and assistance. The acceptance of the amendments would demonstrate South Africa’s commitment to promoting international peace and being a responsible producer, possessor and trader of defence products. There were no financial implications other than an annual amount of about US $1 000 for conference services and documentation, as costs for attendance were usually paid by the donor. The Department was already paying these costs for South Africa to attend meetings as an observer. Members sought further details on the costs and staff implications. They resolved to ratify the amendments to the Convention.

The Department of Justice and Constitutional Development briefed the Committee on the Magistrates’ Courts Amendment Bill [B23B-2010], which sought to abolish the requirement that Regional Court magistrates must have an LLB degree before their appointment. This would bring their appointment in line with the Constitutional requirements of “fit and proper” and in line with appointment of judges, who no longer had to hold LLB degrees. It was explained that this requirement was inserted in the legislation for reasons of the training that was current at the time, but was no longer relevant. The Bill also sought to make amendments regarding civil and divorce jurisdiction. The Committee questioned whether this would not be seen as lowering the standards for appointment, questioned whether the LLB degree requirement was a barrier to appointment, and questioned the other requirements set by the Magistrates’ Commission. Members resolved to approve the Bill.

The Magistrates Commission presented progress reports to the Committee on some suspension matters, and also outlined the provisional suspensions that the Committee was requested to confirm. The details of each case were set out. Members questioned whether it was correct that those suspended should still receive their salaries and asked what was done to expedite matters. 

The Chairperson of the Portfolio Committee on Justice and Constitutional Development noted that it was necessary to extend the date once again for the final repeal of the Black Administration Act, since the current term would expire on 31 December 2010, and the Traditional Courts Bill, which would replace the structural framework for traditional courts that was currently in the Black Administration Act, had not been completed. Members agreed to support the Bill and extend the date as requested.


Meeting report

Independent Police Investigative Directorate Bill [B15B-2010] & Civilian Secretariat for Police Service Bill [B16B] : Final Mandates
The Chairperson asked the representatives to indicate their final mandates on this Bill

Eastern Cape Final Mandate
The province supported the bill and mandated the Eastern Cape delegates to vote for the adoption of the Bill with amendments that may not have affected the principles of the Bill.

Gauteng Final Mandate
The Gauteng Provincial Legislature supported the principle and the detail of the Bill and therefore voted in favour of the Bill.

Mpumalanga Final Mandate
The delegation representing the province of Mpumalanga in the National Council of Provinces was conferred with a mandate to vote in favour of the Bill.

Northern Cape Final Mandate
The Northern Cape legislature wished its delegate to vote in favour of the Bill.

North West Final Mandate
The North West provincial legislature wished its delegate to vote in favour of the Bill.

Western Cape Final Mandate
The Western Cape provincial legislature had voted against adopting the Bill. The provincial representative indicated that certain issues reflected in the province’s previous proposed amendments had not been taken into consideration.
 
Limpopo Final Mandate
Limpopo provincial legislature had voted in favour of the Bill.

Free State submission
The Free State did not submit a final mandate but its delegate indicated that this province would vote in favour of adopting the Bill.

KwaZulu Natal report
The delegate from KwaZulu Natal requested an extension of time, and could not hand in a final mandate. This province had not discussed the amendments adequately and thus had abstained from giving a final mandate.

Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons Convention (CCW): Department of International Relations and Cooperation (DIRCO) briefing
Ambassador Leslie Gumbi, Chief Director, Department of International Relations and Cooperation, briefed the Committee on the Amendments to the Convention on Prohibitions or Restrictions on the use of Certain Conventional Weapons (CCW). He gave a brief background to the Convention, explaining that it covered non-detectable  fragments, mines, booby traps and other devices. The protocol also covered incendiary weapons, blinding laser weapons, and explosive remnants of war (ERW). This Convention was the only legally binding international arms control agreement that either prohibited or restricted the use of a range of conventional weapons, and it targeted those weapons deemed to be excessively injurious or which had indiscriminate effects. The Convention was an important instrument of international humanitarian law. Its attempts also to regulate the transfer of specific conventional weapons made it not only a non-proliferation measure, but also an arms control measure.

Mr Gumbi noted that South Africa had signed the Convention on 13 September 1995 and had become a State party to it on 13 March 1996. The South African role players were the Department of Internal Relations and Cooperation (DIRCO), Department of Defence and Military Veterans (DOD), and civil society, especially with relation to mines and ERW. 

Mr Gumbi then highlighted the reasons why it was important for South Africa to continue to be a signatory to the Convention, saying that it contributed to creating a stable environment, the maintenance of international peace and security, and that it was useful in limiting and alleviating the suffering caused by excessively injurious weapons. Participation by South Africa would also promote and protect the interests of the country, and provided a platform to advance South Africa’s foreign policy objectives on disarmament, non-proliferation and arms control.

Mr Gumbi noted that an amendment had been proposed to Article 1 of the Convention and Parliament was therefore being asked , in terms of Section 231(2) of the Constitution, to ratify it, and to give consent that South Africa would be bound by Protocol V.  He explained that the amendment to Article 1 of the Framework Convention sought to make the CCW applicable to conflicts of a non-international nature. This was particularly relevant to Africa, as so many active hostilities had been internal in nature, involving provinces or parts of countries. He then outlined that Protocol V placed emphasis on post-conflict remedial measures. Protocol V dealt mainly with the clearance, removal, disposal, and destruction of munitions following the cessation of active hostilities. It also covered the retention and transmission of information, the protection of civilians and humanitarian missions, and international co-operation and assistance.

Mr Gumbi stressed that Africa was the most affected continent in relation to explosive remnants of war, such as landmines and unexploded cluster munitions. At all conferences South Africa consistently advocated the necessity for other countries to take their international co-operation and assistance agreements seriously.

Mr Gumbi then outlined the implications of the ratification of the amendments to the Convention. This would  constitute a significant gesture demonstrating South Africa’s commitment to promoting international peace and security, and to limiting and alleviating the suffering caused by war and armed conflict. He noted that a primary goal of South Africa’s policy on disarmament and arms control was to reinforce and promote South Africa as a responsible producer, possessor and trader of defence-related products and advanced technologies in the nuclear, biological, chemical and missile fields. This was in line with the decision taken by Cabinet in August 1994.

Mr Gumbi said that the ratification would have no financial implications, other than the servicing of the Meeting of State Parties in Geneva, Switzerland, involving conference services and documentation, for which South Africa’s assessed costs were approximately US $1 000 per annum. These costs were covered by DIRCO and were already being paid by the Department, since South Africa attended this meeting as an observer.

Discussion
Mr L Nzimande (ANC, Kwazulu Natal) asked how the figure of US $1000 per annum was going to be used, questioning whether this reflected the real costs, as he thought that the budget for this was too low.

Mr Gumbi responded that meetings had been reduced, resulting in  savings for DIRCO. Previously, comprehensive tests on nuclear ban meetings were held six times a year, but this had now been reduced to twice yearly, in an attempt to encourage States to attend meetings. He explained that the $1 000 was for conference services, such as documentation and translation services. He said that South Africa paid a nominal amount, compared to other countries. The figure did not include air travel expenses. In general, the donor organisation, such as the International Red Cross, would cover most of the costs.

Mr Nzimande asked whether this amendment would entail any new staff in DIRCO, and, if so, how much their salaries would be.

Mr Gumbi responded that the Department would be using existing staff members for the CCW component, and their salary structures were the same as any other government department.

The Members resolved to recommend the ratification of the amendments.

The Chairperson read out the Report, which would be tabled in the House.

Magistrates’ Courts Amendment Bill [B23B-2010]: Department of Justice and Constitutional Development  (DOJ) briefing
Mr JB Skosana, Chief Director, Department of Justice and Constitutional Development, gave a brief introduction to the Magistrates’ Courts Amendment Bill (the Bill). He stated that this Bill sought to abolish the current requirement that a magistrate must have an LLB degree before being appointed as a Regional Court magistrate. The Bill provided that any appropriately qualified woman or man who was fit and proper could be appointed as a magistrate, an additional magistrate, or a magistrate of a Regional division.

Mr Skosana highlighted that the LLB Degree had been the sole requirement for all judicial positions. This was included in the legislation when the Regional Courts were established in 1952 to deal with criminal matters. At that time a number of other law degrees were also offered, but the LLB degree was the only one in which the students took specialist courses in criminal law.

Mr Skosana explained that since then the jurisdiction of the Regional Courts had been extended, and it was necessary to remove the distinctions between criminal and divorce jurisdiction. He explained that the Constitution also now provided that apart from the formal qualifications, a person who was seen to be fit and proper, and who had relevant experience, could be allowed to fill a post if that person also met the requirements such as competence, diligence and good character, as required by the employer.

Mr Skosana highlighted that this had led to the anomaly that a judge could be appointed to the High Court without having an LLB degree, in terms of the Constitutional requirements, whereas the same person could not be appointed as a magistrate.

He added that the reality was now that the LLB was an entry-level degree and the requirement in the Magistrates’ Court bill had become obsolete and academic.

Mr Skosana noted that there was a shortage of magistrates at Regional Court levels, where there were 25 vacant posts, and 61 courts were not able to operate effectively. This Bill would assist in filling the gap, since about 40% of the current 20 000 attorneys in South Africa did not have LLB degrees and were therefore not presently eligible for appointment, although vacant posts were being temporarily filled with Acting Magistrates.

Mr Skosana noted that during a meeting with the Portfolio Committee on Justice and Constitutional Development, the question was asked whether this Bill was not effectively lowering standards for the Regional Courts. He pointed out that the removal of the LLB requirement would not open the gates for everyone, as the Magistrates’ Commission must still undertake an assessment of the potential magistrates.

Mr Skosana further noted that this Bill would deal with divorce jurisdiction. The Special Divorce Court was to be abolished, and the Regional Courts would then be able to deal with divorces as well. The distinction between civil and divorce jurisdiction, which had been detrimental to magistrates since they could serve in only one of the two matters, was removed.

Ms Wilma Louw, State Law Advisor, Office of the Chief State Law Advisor, then outlined the clauses of the Bill to the Committee.

Clause 1
Clause 1 amended Section 9 of the Magistrates’ Court Act, by abolishing the requirement of the LLB Degree for Regional Court magistrates.

Clause 2
Clause 2 amended Section 10, as it was technical and outdated, and substituted it with a new section, similar to the requirements for appointment as a judge, and noted that the person appointed must be “fit and proper”.

Clause 3
Clause 3 amended Section 12. This related to the distinction between civil and divorce matters. The word “and” was to be replaced with “or” to broaden the potential pool of candidates for appointment. It was no longer necessary for a person, prior to appointment, to be proficient in both civil and divorce matters.

Clause 4
Clause 4 dealt with Section 15 of the Magistrates’ Courts Act, which currently related to the service of process. A new subsection was proposed, that would give the Minister discretion to determine the conditions of the authorisation of a person to serve process of court, or other documents on behalf of a public body.

Clause 5
Clause 5 was the short title of the Bill. Since no preparatory work needed to be done, the Bill should come into effect on the date of promulgation.

Discussion
Mr M Mokgobi (ANC, Limpopo) asked whether the department saw the LLB Degree as a stumbling block to posts being filled. He too asked whether the removal of this requirement may not be seen as weakening the judiciary. He asked for an explanation of the term “fit and proper” and asked if the Department was more concerned with quantity than quality.

Mr Skosana disagreed that the LLB Degree was seen as a stumbling block. This qualification would not and could not be removed. Both the Judicial Service Commission (JSC) and the Magistrates’ Commission looked at an individual’s qualification but also at his or her experience before appointing that person. The Constitution set out that a person should be appropriately qualified as well as fit and proper. The criteria for “fit and proper” were set by the JSC and Magistrates’ Commission.

Mr D Bloem (COPE, Free State) asked whether there was a new qualification for becoming a Regional Court magistrate, if the LLB degree requirement was to be abolished.

Mr Skosana responded that there would be no new qualification. However, the individual who may not have an LLB degree already could nonetheless be appointed as a Regional Court magistrate if he or she had the necessary number of years experience to be appointed in that position.

Mr A Watson (DA, Mpumalanga) said that he had the impression that standards were being lowered to make positions more accessible. He highlighted that many suitably qualified individuals were placed in Acting positions and wanted to know why the Department could not place these people in the permanent vacant positions.

Mr Skosana responded that once the Bill was passed, the vacant positions could be filled by these Acting magistrates, provided that the positions had been advertised.

Mr A Matila (ANC, Gauteng) was worried about the role of the Magistrates’ Commissions role, noting that it would effectively be setting the standards, and that anyone could be allowed in.

Mr Skosana assured him that this was not the case. The selection criteria were still very strict, and although the LLB degree would no longer be needed, the individual appointed would still need relevant experience and expertise.

Mr T Beyleveldt (DA, Western Cape) said that he had no concern with the purpose of the Bill, but stressed that the Department must be serious about maintaining standards so that the quality of justice would not be compromised.

Mr Nzimande was aware of changes taking place in schools of law within academic institutions, and therefore said there was a change needed at a governmental level as well. He agreed with the abolition of the LLB degree requirement.

Members resolved to adopt the Bill, without amendments.

The Chairperson then read out the Report of the Committee, which would be tabled in the House.

Magistrates’ suspensions: Magistrates’ Commission progress reports
Mr Hans Meyer, Magistrates Commission, briefed the Committee on the progress of the matters involving suspensions of magistrates.

The Chairperson noted that the Minister had not made any pronouncements on the cases of four magistrates, and that the Magistrates’ Commission could therefore not conclude these matters prior to receiving the recommendations of the Minister.

Mr Meyer noted that the first matter was continuing with the misconduct enquiry and it should be concluded on 6 or 7 December 2010. The second matter was not concluded, as a criminal appeal was pending. The third magistrate had filed a High Court application to prevent the Minister from suspending him, pending a review, although there was a recommendation to remove him from office. In the fourth matter, a misconduct enquiry had commenced.

Mr Meyer then noted that the Minister of Justice and Constitutional Development had recommended that the provisional suspensions should be lifted on two magistrates. Since the basis for the suspension had fallen away there was no longer any reason to uphold the provisional suspension.

Discussion
Mr Watson (DA, Mpumalanga) wanted clarity on the criminal appeal matter that was pending.

Mr Meyer said that a date for the appeal had not been set yet but that the Magistrates’ Commission was liaising with the National Director of Public Prosecutions to set a date as soon as possible.

Members voted in favour of adopting the report.


Confirmation of Provisional Suspensions: Magistrates’ Commission briefing
Mr Meyer then continued to present the matter of an additional magistrate at George, who had been prosecuted on a number of charges, some of which were dropped, but was found guilty of five charges that affected her integrity as a judicial officer. The presiding officer had made recommendations to the Magistrates’ Commission, and, after holding an enquiry, the Commission believed that she was no longer fit and proper to hold office and recommended that she be removed.

Mr Meyer highlighted that she was currently still serving as an Acting Magistrate. The Portfolio Committee on Justice and Constitutional Development had recommended that she be retained in an Acting position.

Mr Bloem said that he was concerned about this matter. However, he moved that the Committee support the Magistrates’ Commission recommendation for her removal from office.

The Committee supported the removal from office.

Mr Meyer then briefed the Committee on the matter of a magistrate who had moved to Mitchells Plain in 2006. Although he had requested permission from the Magistrates’ Commission to engage in attorney’s work, he had been advised that this permission must be sought from the Minister. He then requested the Law Society to grant him permission to continue with his work as a magistrate, in addition to being registered as an attorney, and had misled the Law Society by stating that he had permission from the Magistrates’ Commission to engage in this work. The Magistrates’ Commission was of the opinion that it would have been unethical for him to occupy both positions, and recommended that he be removed from office as a magistrate.

Mr Watson commented that the mere fact of his dishonest assurances to the Law Society justified his removal from office.

The Committee agreed that this magistrate should be removed from office.

Mr Meyer noted that the third matter concerned a magistrate at Lichtenberg, who had been provisionally suspended after six complaints had been lodged against him, pending an investigation into whether he was fit to hold office as a magistrate. The Magistrates’ Commission recommended that the provisional suspension should be converted to a full suspension.

The Chairperson asked whether there was a contingency plan for appointment of an Acting Magistrate in his place.

Mr Meyer said that there was someone who could be appointed as Acting Magistrate.

The Committee confirmed the recommendation for a full suspension.

Mr Meyer outlined the next case, which concerned a regional magistrate at Polokwane. In February 2010 this magistrate, a prosecutor and an attorney had been arrested, following an authorised undercover operation, having apparently pre-arranged the outcome of a criminal trial and sentence, for financial reward. The three were then charged in Musina District Court and were presently on bail of R10 000 each. The Magistrates’ Commission recommended his suspension from office, pending the outcome of the criminal trial, set for March 2011.

The Committee voted to accept the recommendation.

Mr Meyer said the next case concerned a magistrate from Cala who was being charged with fraud following the presentation of a false claim for travelling allowances. This case had been postponed to 18 November 2010. The Magistrates’ Commission recommended his suspension pending the outcome of this case.

The Committee agreed with the recommendation.

General discussion
Mr A Matila (ANC, Gauteng) asked for how long the matters were suspended, noting that the magistrates were still receiving their salaries.

Mr Meyer stated that the Magistrates’ Commission did liaise with the National Prosecuting Authority (NPA) to try to expedite these matters. One case should be finalised in November.

Mr Bloem questioned whether magistrates were ever imprisoned following successful prosecutions.

Mr Meyer noted that in the past a magistrate in Port Elizabeth had been imprisoned for six months after being found guilty of drunken driving. Two others, from Mitchell’s Plain and Johannesburg, were each sentenced to ten years for their respective crimes of murder. As soon as a conviction was noted, the magistrates would be removed from office and their remuneration was stopped.

Mr Matila asked if the Magistrates’ Commission could not consider the merits of each case and perhaps decide to suspend without salary.

Mr Meyer admitted that this was a difficult situation, as a magistrate who was suspended without pay could argue that he was being deprived of the chance to obtain legal representation, and that would infringe on his or her Constitutional right. However, the Magistrates’ Commission did liaise with the NPA to expedite the proceedings.

Mr Bloem asked whether a magistrate could be represented by a union.

Mr Meyer responded that one person could not be refused representation under the Constitution, but a union was not allowed to intervene in disputes of such a sensitive nature.

Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010]: Portfolio Committee Chairperson’s briefing
Mr J Sibanyoni (ANC), Chairperson, Portfolio Committee on Justice and Constitutional Development, briefed the Committee on the background to the Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill [B37-2010] (the Bill) He noted that this Bill sought to extend the date by which the last remaining sections of the Black Administration Act should be repealed.

Mr Sibanyoni explained that the Black Administration Act, No 28 of 1927, was not yet repealed in its entirety, because it regulated the functioning of the Traditional Courts. It was intended that, once passed, the  Traditional Courts Bill would eventually regulate the matters currently being dealt with in Sections 12 and 20 of the Third Schedule to the Black Administration Act. If the Black Administration Act were to be repealed, this would create a lacuna as the traditional leaders would have no framework within which to conduct their cases in traditional courts. The Traditional Courts Bill had not yet been passed. From time to time it had been necessary to extend the operation of the Black Administration Act, and it was currently in operation until December 2010. However, the Portfolio Committee on Justice and Constitutional Development would not complete its work on the Traditional Courts Bill by that date, and thus needed to extend the Black Administration Act further before it was due to expire.

Discussion
Mr Nzimande asked why the Black Administration Act was due to expire on 31 December 2010.

Mr Sibanyoni explained that the operation had been extended before, for a year at a time, and the last extension was passed in 2009, up to December 2010. The Portfolio Committee had realised that one year’s extension was not sufficient to complete the work.

The Committee agreed to adopt the Bill granting the extension.

The Committee further adopted the Report, which would be tabled in the House.

The meeting was adjourned.


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