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  • Home »
  • Hansard »
  • 2013 »
  • November »
  • 12 »
  • PROCEEDINGS OF THE NATIONAL ASSEMBLY (Wednesday, 13 November 2013)

SOUTH AFRICAN HUMAN RIGHTS COMMISSION BILL (Second Reading debate)

  • ← INFRASTRUCTURE DEVELOPMENT BILL (First Reading debate)
  • CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT - JUDICIAL MATTERS AMENDMENT BILL →
  • Picture of Luwellyn Tyrone Landers
    Mr L T Landers 13 Nov 2013 hansard

    Deputy Speaker, hon Deputy President, the Human Rights Commission was established in terms of the 1993 interim Constitution and continues to function in terms of that legislation. The Bill before the House addresses an anomaly so that the Human Rights Commission will now exist in terms of the 1996 Constitution and when this Bill becomes law.

    In arriving at the Bill before the House, the portfolio committee consulted extensively with the commission, and many of their proposals are accommodated in this Bill. The purpose of the Bill, therefore, is to repeal the existing SA Human Rights Commission Act, Act 54 of 1994 and replace it with a new SA Human Rights Commission Act. To a great extent, the existing provisions of the principal Act, although in an amended form, have been retained in the Bill. Any amendments to the existing provisions are meant to streamline the application and implementation of the existing legislation and more importantly to announce the functioning of the Commission.

    I want to refer particularly to clause 17, which committee members referred to as the search and seizure provision. We have been informed that this provision can be found in legislation that establishes the Gender Commission and the Office of the Public Protector, amongst others. Moreover, we have been assured that this provision has never been used by the Human Rights Commission. However, the fact that the commission has never used this provision did not silence the warning bells that were ringing in our minds.

    The very thought that our Human Rights Commission could break down the doors of a place of worship, does not sit well. Consequently, clause 17 has been tightened up considerably, although fears that the commission could be breaking down the doors of places of worship may still exist.

    I take this opportunity, though, to express our gratitude to Mr Johan "Lappies" Labuschagne for the leadership he provided in presenting this Bill to the committee, and we commend the Bill to this House. Thank you.

    There was no debate.

    Link in context Link
  • Deputy Speaker hansard

    Hon members, are there any objections to the Bill being read a second time?

    Requests for declarations of vote have been received. I will now allow an opportunity of up to three minutes for one member of each party wishing to make a declaration to do so.

    Declarations of vote:

    Link in context Link
  • Picture of Mudene Smuts
    Ms M Smuts hansard

    Madam Deputy Speaker, I am speaking in support of this Bill on behalf of the DA. The SA Human Rights Commission has been functioning under its outdated 1994 Act for a scandalously long time. That Act was written under the 1993 interim Constitution; it was in fact the very first law written by the Democratic Assembly. It did not give effect to the function which was constitutionalised in 1996 to require government departments' and your little report on the measures that they have taken towards the realisation of socioeconomic rights. These are the rights on access to housing, health care, food, water, and social security, as you will know, and it is also required by the Constitution to look at the rights to education and a healthy environment.

    The Human Rights Commission has nevertheless been acting under its constitutional rights and duties, and has produced reports on these matters. It has at times been forced to use its powers of subpoena to elicit responses from government departments. Now, the new Act recognises the powers and functions in respect of socioeconomic rights. It also recognises the admirable role that the Human Rights Commission is playing in monitoring South Africa's obligations on the human rights treaties and it now creates a statutory basis for this role.

    The 1993 interim Constitution required 11 commissioners, and the 1994 Act a minimum of five full-time commissioners. The consequence on at least one occasion was that a President - that was President Mbeki - did not simply appoint all of the candidates recommended by us from the National Assembly. Now that situation should have been remedied long time ago. This new Act does so. This Act recommends eight commissioners, of whom two are on a part- time basis. It also takes a position which we hope will be followed in the Acts governing other Chapter 9 institutions or when the Acts are amended in respect of the authority to select a chairperson and deputy chairpersons.

    There is a wide disparity, as you will know, with respect to the provisions for the appointment of Chapter 9 institutions and their chairpersons. The Chapter 9 institutions' review recommended that the chairpersons should be appointed either by the institutions themselves or by the Assembly. We have opted for the latter course, and we hope that the others will follow.

    This Act also gives effect to a Treasury regulation that was issued some years ago to address a lacuna in the Public Finance Management Act, the PFMA. As a result of the lacuna, a number of chief executive officers of Chapter 9 institutions took their accounting authority status to be able to take charge. We have now given effect to the Treasury regulation in the case of the commission, and that is a chairperson who bears executive authority, and this new Act makes that clear. [Applause.]

    Link in context Link
  • Picture of Steve Swart
    Mr S N Swart hansard

    Chairperson, the ACDP broadly supports this Bill, but would like to raise one or two issues. The chairperson of the portfolio committee alluded to the issue of our concerns about the search and seizure power exercised in breaking down doors of places of worship. Now, during the deliberations, I raised particular instances of the possibility of such abuse whilst the Bill and the commissioners made it very clear that they have not exercised that power at all. It raises the question: Why are such powers inserted into a Bill when they are not used?

    One of the examples I used is that of the Joshua Generation Church. This church is currently being investigated by the commission and we appreciate that it is to a degree sub judice following a complaint that was laid regarding the church's advocacy of moderate and reasonable parental church chastisement, that is, spanking. Now the church, in its view, is merely expressing a religious doctrine of view. You might agree or disagree with that view, but the church has the religious freedom to express that view. The complaint against the church appears to have no legal basis as our existing common law recognises the defence of moderate and reasonable parental chastisement. What the church is advocating is not only in terms of, or in line with its religious beliefs, but is in line with our existing common law.

    Now in terms of the Bill, the Commission could conceivably go and use the search and seizure powers to investigate and literally break down the doors of those places of worship, which it has indicated it has not done, but that is the type of power that we are granting. It is important to note that Judge Sachs said the following in the Constitutional Court case of Christian Education South Africa v The Minister of Education when we deal with issues like this:

    The state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. Now, I believe this equally applies to Chapter 9 institutions. And during the deliberations, I urged the commissioners to be very cautious when dealing with issues related to religious freedom and balancing that with particularly deeply held religious views as this could result in the commission losing legitimacy and credibility in the eyes of the public.

    Now, in this particular case, Joshua Generation Church is being, in our view, true to its faith and respectful to the existing law. We, in the Portfolio Committee on Justice and Constitutional Development, have engaged and will be further engaging on this issue, without, of course, interfering with the commission's independence. We will be looking into this. However, that having been said, the ACDP will be supporting this amendment Bill, subject to our reservations about the issues of search and seizure and the application thereof. Thank you very much. [Applause.]

    Link in context Link
  • Picture of Jonas Ben Sibanyoni
    Mnu J B Sibanyoni hansard

    Sihlalo, angiguquke ngikhulume ngolimi lwakwaMthaniya. Lo Mthethosivivinywa ulinga ukulungisa ukuthi uma isungulwa iKhomishini yamaLungelo esiNtu yamiswa ngomthetho 54 we-1994. Ngaleso sikhathi uMthethosisekelo obekade ukhona uMthethosisekelo wesikhashana. Ngakho-ke njengoba manje sesinoMthethosisekelo okunguwona osebenzayo kubonakele ukuthi ake kuchibiyelwe iKhomishini yamaLungelo esiNtu ukuze ihambisane nalo Mthethosisekelo esiwusebenzisayo manje.

    Okunye engifuna ukukusho ukuthi siyikomidi lezoBulungiswa nokuThuthukiswa koMthethosisekelo sike sazibuza kabanzi ukuthi: Yiziphi ezinye izinguquko ezilethwa yilo Mthethosivivinywa?

    Kubonakele-ke ukuthi uma sekuthiwa le Khomishini inikezwa amandla okuthi ingahle ingenelele uma kukhona ulwazi olufunekayo. Kwase kuba khona ukuphakama kwamaphaphu. Abanye bathi: Hhawu uma kunjalo ke kusho ukuthi isinamandla angaphezulu. Ngizothanda ukuthi ake sehlise amaphaphu ngoba la mandla okukhulunywa ngawo, phecelezi i-search and seizure abekade evele ekhona kodwa kuze kube manje ibingakaze iwasebenzise.

    Mhlawumbe omunye umbuzo ungathi: Pho kuyobe sekutheni uma seyizowasebenzisa manje? Asikhumbule ukuthi akuyona kuphela iKhomishini yamaLungelo esiNtu enala mandla. Nayi iKhomishini yokuLinganisa ngokoBulili kanjalo namaphoyisa banawo la mandla. Esikushoyo siyinhlangano kaKhongolose ukuthi kufanelekile futhi kuhle ukuthi lo Mthetho uphasiswe. Kanjalo-ke sithi siyaweseka lo Mthethosivivinywa namhlanje. Ngiyabonga Sihlalo. (Translation of isiZulu paragraphs follows.)

    [Mr J B SIBANYONI: Chairperson, let me switch over to isiZulu. This Bill is aimed at amending the Human Rights Commission Act that was passed in 1994. The Constitution that was in place then was the Interim Constitution. Therefore the Act should be amended to comply with the current Constitution. Another question that we asked ourselves as the Portfolio Committee on Justice and Constitutional Development is: Which other reforms will this Bill bring about?

    When it was made known that the commission would be given authority to intervene when it was necessary, that was not well received. Some felt that it was being given more powers than it had previously had. I would like everyone to calm down. You must understand that they have always had the authority for search and seizure which they have never exercised up to now.

    Maybe another question would be under which circumstances they would be required to use that authority. We must be reminded that it is not only the Human Rights Commission that has this authority. The Commission for Gender Equality and the police also have it. The ANC advocates the Bill to be passed. We support this Bill today. Thank you, Chairperson.]

    Link in context Link
  • Picture of Moleeane Ben Skosana
    House Chairperson (Mr M B Skosana) hansard

    There are no more declarations. I now put the question again. Are there any objections to the Bill being read a second time? No objection, agreed to.

    Bill read a second time.

    Link in context Link
  • ← INFRASTRUCTURE DEVELOPMENT BILL (First Reading debate)
  • CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT - JUDICIAL MATTERS AMENDMENT BILL →

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