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					27 January 2000                                 Page 1 of 126

                  THURSDAY, 27 JANUARY 2000

                             ____



       PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES

                             ____



The Council met at 14:06.



The Chairperson took the Chair and requested members to

observe a moment of silence for prayers or meditation.



ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col

000.



                       NOTICE OF MOTION



Mr N M RAJU: Madam Chair, I hereby give notice that I shall

move at the next sitting of the House:



 That the Council -



 (1) views with concern the unflattering results obtained

       in Mathematics and Science by matriculants in the

       recent matriculation examinations;
27 January 2000                                  Page 2 of 126


 (2) appreciates the fact that the national Minister of

     Education has recognised this and has appointed a

     special commissioner to investigate this area of

     concern; and



 (3) urges the Minister to -



     (a) immediately carry out a survey of the

         professional qualifications of all teachers

         having the responsibility of teaching these all-

         important subjects in our schools; and



     (b) set up a programme of action to upgrade the

         teachers' qualifications so that results in these

         subjects could improve dramatically, as the

         country's future needs, as we enter the

         technological era, require no less.



 CONGRATULATIONS TO CRICKET TEAM AND GOOD WISHES TO BAFANA

                          BAFANA



                    (Draft Resolution)
27 January 2000                                Page 3 of 126


The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without

notice:



 That the Council -



 (1) congratulates the South African national cricket side

     on its hard-won victory last night at Newlands in the

     Western Cape; and



 (2) wishes Bafana Bafana well in their game tonight, 27

     January 2000, against the Democratic Republic of the

     Congo.



Motion agreed to in accordance with section 65 of the

Constitution.



  CONGRATULATIONS TO MARK SHUTTLEWORTH ON THE SALE OF HIS

                  COMPUTER SOFTWARE COMPANY



                      (Draft Resolution)



Mr M BHABHA: Chairperson, I move without notice:



 That the Council -
27 January 2000                               Page 4 of 126


 (1) congratulates Mark Shuttleworth on his

     entrepreneurial success, which culminated in the sale

     of his computer software company to the value of R3,5

     billion;



 (2) notes -



     (a) his decision to reward each of his 37 staff,

         including two cleaners and a gardener, with an

         amount of one million rand;



     (b) his entrepreneurial talents and ingenuity;



     (c) his commitment to South Africa and his faith in

         the future wellbeing of our economy by choosing

         to re-invest his earnings locally despite the

         many lucrative offers to invest abroad; and



     (d) his statement that South Africans need not be

         despondent about their future in this country, as

         there are ample opportunities for entrepreneurs

         of all races to express their talents; and
27 January 2000                                Page 5 of 126


 (3) resolves to request the Government of South Africa to

     continue providing our young entrepreneurs with the

     opportunities to express their talents.



Motion agreed to in accordance with section 65 of the

Constitution.



           DELAY IN ALLOCATION OF FISHING RIGHTS



                       (Draft Resolution)



Mrs A M VERSVELD: Chairperson, I move without notice:



 That the Council -



 (1) notes with concern that -



     (a) the Department of Environmental Affairs has not

         yet finalised the allocation of fishing rights in

         any of the species in the pelagic industry, which

         include sardines, anchovies, horse mackerel and

         maasbanker;
27 January 2000                                   Page 6 of 126


     (b) fishermen in this industry have been unable to

          fish and earn an income for their families in the

          year 2000; and



     (c) this lack of income impacts on the morale of

          parents and children of fishermen who cannot buy

          school uniforms or pay school fees at the

          beginning of the new school year; and



 (2) calls on the Minister, as a matter of urgency, to

     finalise the allocation of fishing rights by the end

     of January, at the latest, to avoid further adverse

     impact on the economy and the morale of people in the

     affected regions.



The CHIEF WHIP OF THE COUNCIL: Chairperson, I would like to

object to the motion. We have not been given notice of the

motion.



The CHAIRPERSON OF THE NCOP: Order! There is an objection.

The motion will therefore be converted to notice of a

motion.



            ALLIANCE BETWEEN THE DP AND THE UCDP
27 January 2000                                Page 7 of 126


                     (Draft Resolution)



Mr D D N MALOYI: Chairperson, I move without notice:



 That the Council notes -



 (1) that the alliance between the DP and UCDP, which the

     DP has described as one between like-minded parties,

     comes as no surprise;



 (2) that the DP associates with, or at least condones

     promoting leadership which is corrupt and supports

     the bantustan policy of the apartheid regime;



 (3) especially the DP's voluntary association with the

     leader of that party, who is a convicted criminal;



 (4) that this alliance is consistent with the DP's fork-

     tongued approach to its policy of clean government;

     and



 (5) that this move is consistent with the DP's opposition

     to the access to information, administrative justice

     and equality Bills which enshrine significant
27 January 2000                                Page 8 of 126


     advances for the vast majority of disadvantaged

     people.



Mr L G LEVER: We object to the motion, Chairperson.



The CHAIRPERSON OF THE NCOP: Order! There is an objection

to the motion. The motion will therefore become notice of a

motion.



    RECONCILIATION BETWEEN SANDRA LAING AND HER MOTHER



                     (Draft Resolution)



Mr N M RAJU: Madam Chair, I would like to move without

notice:



 That the Council notes the following:



   Cry the beloved country!

   Some time last week, somewhere in Gauteng, in some part

   of our beloved Republic, a poignant moment unfolded.

   A mother and daughter embraced!
27 January 2000                                Page 9 of 126


   A mother and daughter torn apart for some 31 years by

   the imperatives of an ideology that was shamelessly

   based on the pigment of one's skin.

   South Africa and South Africans held a collective

   breath as Sandra Laing and her mother Sannie hugged

   each other in a cathartic embrace.

   Let the milk of human kindness flow.

   Let all South Africans, not only mothers and daughters,

   fathers and sons, brothers and sisters, but fellow

   South Africans of whatever hue or political bent, hug

   each other in a national embrace of reconciliation as a

   first step towards inter-racial harmony.

   Let us be united in our resolve never again to

   surrender our blood, sweat, toil and tears in defence

   of a failed and fallen ideology.

   Never!



Mr M BHABHA: Madam Chair, the place where this reunion took

place is Piet Retief in Mpumalanga. It is a famous case

that took place 35 years ago, and the place is Mpumalanga,

not Gauteng. I would like to amend that.



Mr N M RAJU: Madam Chair, with respect, the speaker has not

followed what I said here. I said:
27 January 2000                               Page 10 of 126


 This poignant moment unfolded some place near Pretoria

 ...



I appreciate Mpumalanga is where the whole episode started.

[Interjections.] Pretoria is in Gauteng, is it not?



The CHAIRPERSON OF THE NCOP: Order! Mr Raju, I am sure you

will have no objection to the factual amendment being

effected. Chief Whip, do you have an objection to the

motion?



Mr M E SURTY: No, Chairperson, we fully support the

sentiments that have been expressed, even the sermonlike

speech of the motion, but we do support it wholeheartedly.



Mr M J BHENGU: Madam Chair, I am rising on a point of

inquiry: Will Mr Raju withdraw this motion, as he has done

previously? [Interjections.]



The CHAIRPERSON OF THE NCOP: Order! Mr Raju, would you read

the part that makes reference to a province, so that we

alert the staff to the place where this occurs, in order

for any necessary amendment to be effected.
27 January 2000                               Page 11 of 126


Mr N M RAJU: Chair, this is how I phrased the sentence:



 Some time last week, somewhere in Gauteng, in some part

 of our beloved Republic, a poignant moment unfolded ...



[Interjections.]



The CHAIRPERSON OF THE NCOP: The Chief Whip says that is

sheer poetry. The amendment, should it be necessary, will

be effected. Is there any objection to the substance of

that motion? No objection.



Amendment agreed to in accordance with section 65 of the

Constitution.



Motion, as amended, agreed to in accordance with section 65

of the Constitution, namely: That the Council notes the

following:



   Cry the beloved country!

   Some time last week, somewhere in Mpumalanga, in some

   part of our beloved Republic, a poignant moment

   unfolded.

   A mother and daughter embraced!
27 January 2000                               Page 12 of 126


   A mother and daughter torn apart for some 31 years by

   the imperatives of an ideology that was shamelessly

   based on the pigment of one's skin.

   South Africa and South Africans held a collective

   breath as Sandra Laing and her mother Sannie hugged

   each other in a cathartic embrace.

   Let the milk of human kindness flow.

   Let all South Africans, not only mothers and daughters,

   fathers and sons, brothers and sisters, but fellow

   South Africans of whatever hue or political bent, hug

   each other in a national embrace of reconciliation as a

   first step towards inter-racial harmony.

   Let us be united in our resolve never again to

   surrender our blood, sweat, toil and tears in defence

   of a failed and fallen ideology.

   Never!



The CHAIRPERSON OF THE NCOP: Order! Are there any further

motions without notice?



Mr M E SURTY: Chairperson, I move without notice:



 That the Council notes -
27 January 2000                               Page 13 of 126


   the synchronism and unison of motion by the ACDP and

   the DP after the motion by the hon member Mr Maloyi.



The CHAIRPERSON OF THE NCOP: Order! Is there any objection

to that motion, which I do not think was intended to be

taken seriously? I would anticipate that Mrs Versfeld would

rise. She is in fact rising.



Mev A M VERSFELD: Mev die Voorsitter, ek opper 'n punt van

orde. Ek sou graag 'n vraag wou stel aan die agb Hoofsweep.

In die verlede het niemand van ons ooit 'n voorstel sonder

kennisgewing met die Hoofsweep uitgeklaar nie. Ek weet nie

hoekom my mosie van die hand gewys word nie, want ons het

dit nog nooit vantevore gedoen nie. (Translation of

Afrikaans paragraph follows.)



[Mrs A M VERSFELD: Madam Chairperson, I am rising on a

point of order. I would like to put a question to the hon

Chief Whip. In the past none of us ever cleared a motion

without notice with the Chief Whip. I do not know why my

motion is being refused, because we have never done this

before.]
27 January 2000                               Page 14 of 126


The CHIEF WHIP OF THE COUNCIL: Chairperson, with respect,

may I suggest that Mrs Versfeld read the Rules. Any member

is entitled to object to a motion, and one of the grounds

for objecting to a motion is that the Council did not

receive notice of it. If she peruses the Rules, she will be

aware of this. It is correct that there has been no such

practice as alluded to.



The CHAIRPERSON OF THE NCOP: Order! The administrative

arrangements between Whips do not govern the manner in

which the Council reaches its decisions. We cannot hold the

Council to the deliberations of the Whips. If there is an

objection here, the Council has to accept that. The Chair

has to accept that objection and act in terms of the Rules.

There has been an objection; I have to rule in terms of the

Rules. I have done so.



  CONSIDERATION OF NOMINATIONS FOR APPOINTMENT TO CENTRAL

                          DRUG AUTHORITY



                     (Draft Resolution)



The CHIEF WHIP OF THE COUNCIL: Chairperson, I move the

draft resolution in my name on the Order Paper, as follows:
27 January 2000                               Page 15 of 126


 That the Council requests the Select Committee on Social

 Services to consider the nominations received by the

 relevant Ministry for the appointment of persons to the

 Central Drug Authority, and to make recommendations in

 relation thereto to the Minister for Welfare and

 Population Development in accordance with section 2(3)(b)

 of the Prevention and Treatment of Drug Dependency Act,

 1992 (Act No 20 of 1992), the Committee, subject to the

 concurrence of the National Assembly, to confer with the

 Portfolio Committee on Welfare and Population Development

 of the National Assembly.



Motion agreed to in accordance with section 65 of the

Constitution.



           PROMOTION OF ACCESS TO INFORMATION BILL



       (Consideration of Bill and of Report thereon)



The CHAIRPERSON OF THE NCOP: Order! We welcome the Minister

and the Deputy Minister for Justice and Constitutional

Development and call on the Minister to address the

Council.
27 January 2000                               Page 16 of 126


The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT:

Madam Chairperson, despite what is on the speakers' list,

we have agreed that I will handle the first Bill and that

the Deputy Minister will handle the next one. If it pleases

you, we are requesting that we proceed in that way.



The CHAIRPERSON OF THE NCOP: Order! We will accept that

request. Proceed, hon Minister.



The MINISTER: Madam Chair, the Promotion of Access to

Information Bill is, as has been observed in some

newspapers, indeed a groundbreaking piece of legislation.

It is part of a trilogy of Bills that we have had to bring

before Parliament this week. The other two are the

Promotion of Administrative Justice Bill and the Promotion

of Equality and Prevention of Unfair Discrimination Bill

which, to my understanding, comes before this House

tomorrow morning.



I am saying it is a groundbreaking piece of legislation

because, as South Africans, we are actually now going to

have the right of access to information in the hands of the

state and in the hands of any person described in

legislation as, indeed, is required in the Constitution.
27 January 2000                               Page 17 of 126


Like these other Bills, it has taken quite a long time for

this Bill to eventually come before Parliament for debate.

I am not going to go into the reasons why this has been the

case, save to say that it is just as well that this

happened, because it afforded a whole lot of our people an

opportunity to participate in the discussion. That then

compelled us to overhaul even the thinking around the Bill

in many respects.



I was asked by a member of Council just before we started

whether it was still possible for us to revisit one aspect

of the Bill, which the hon member suggested was the only

thing that would prevent his party from supporting the

Bill. I said to the hon member that I did not think it was

possible any longer, because we were under time pressure.



The aspect that the hon member suggests separates us is, if

I may put it in a nutshell, the extension of the right of

access to information in private hands to the state. This

issue has been debated on many occasions in numerous

forums. I tried to suggest to the hon member - and I want

to repeat this - that this is not a power that is being

extended to the state. The state, as has been observed by

numerous people on numerous occasions, has, indeed, all
27 January 2000                               Page 18 of 126


manner of power to have access to information in private

hands in many areas. One can think, for instance, of

provisions in the Criminal Procedure Act, Act 51 of 1977 as

amended, that allow us - that is, our police officers - to

have access to information in private hands. One can think

of provisions, for instance, in the Income Tax Act and

numerous others, which similarly allow organs of state to

have access to information. So this is not a power, but a

right. What is very interesting about this right is that

immediately any organ or agent of the state seeks to

utilise it, it then either reduces itself to the level of a

requester or, if members like, elevates itself to the level

of a requester. Therefore, for purposes of the law, the

state is going to be treated as a requester, like any other

requester.



May I also say that it is interesting that nothing compels

the possessor of the information to give it to the agent of

the state merely because the state is requesting that

information. Indeed, one may sit tight, sit back and refuse

to give that agent of the state that information, whereupon

that agent of the state would be entitled to go to a court

of law and say: For the following reasons, we need the

information that this person is in possession of, and he is
27 January 2000                               Page 19 of 126


refusing to give it to us. Now, those procedures apply to

any requester, but added to that is the requirement that

the state or an agent of the state should utilise them, not

in defence of its own rights, but in defence of the rights

of the defenceless.



I suggested to the hon member of the Council that for

instance we have a difficult case, which causes us a lot of

pain, a heart-rending case. It is the case of ordinary

people who went and sought employment in a mine some time

back. They worked in this mine and were exposed to

conditions that led to them suffering from asbestosis.

Quite a large number of them are beginning to die, we are

told.



These people went all the way to the United Kingdom to sue

the company for which they were working, and as a result of

which they were exposed to the conditions that gave them

asbestosis. They have come back, since they could not sue

there, primarily because the courts there said: ``Well, you

can sue because we have jurisdiction on the matter, but you

cannot use our legal aid.'' When they came back here, we

then told them that our legal aid was also unable to assist

them. The hon member then said to me: ``But the Minister
27 January 2000                                Page 20 of 126


could have easily used state resources.'' I said to him

that, according to the law, the offices of the state

attorneys only represent the state in litigation, and these

people are not the state.



These people who I want to believe are illiterate or, at

best semi-literate, cannot exercise any of these rights.

One can tell them until one begins to froth at the mouth

that they have these rights, but they will say: ``How does

one use these rights when one does not have the necessary

wherewithal - money, tjhelete, imali - to access the

information in the possession of this company, so that we

can determine whether or not we have a case against it. We

want to believe that we suffer from asbestosis right now

because we were exposed to conditions that lead to

asbestosis, as we worked for this company.''



Now, somebody, somewhere must be able, for God's sake, to

pick up the cudgels on behalf of these people. And one can

only do so, even under the Constitution, when there is a

right at stake. One cannot do it otherwise with reference

to information in the possession of a person other than, of

course, the state. With regard to the state, one can ask
27 January 2000                               Page 21 of 126


for and get any information, except of course exempted

categories of information which the Bill grapples with.



I am telling members this long story only to say that there

is indeed a need for somebody to speak for those who cannot

speak for themselves, and if none of us can do so, at least

the state must be in a position to use its own resources

and request information in cases of this nature.



Another example that has been given is of a company that

pollutes a whole stream. As a result, people are exposed to

all sorts of conditions, as both people and their cattle,

sheep, etc, consume water from that stream. Surely,

somebody must be able to request the information regarding

the effluent system, etc, from that company. The poorest of

the poor in the rural areas do not have money to go to some

lawyer and say ``Mr, Mrs or Miss Lawyer, we are suffering

from these conditions because we suspect that there is

pollution in the effluent from this company''.



Are we then to sit back and say: ``Well, nothing can be

done''? We are saying a health inspector ought to be able

to request that information and the health inspector being

part of an organ of state, indeed would otherwise be
27 January 2000                               Page 22 of 126


prevented from accessing this information. I do not think

that any one of us has an intention to abuse or misuse

these rights, and as I say, in any event, the right is

completely ring-fenced. One cannot wake up in the morning

and say: ``I happen to be this Minister and I want that

information and therefore I am going to ring them and say I

want it or else.'' One cannot use it in that way. Indeed,

it may be argued that one could actually use a power

somewhere in the law, but we are saying, if one can use

that power, why not extend the right?



If that is all that separates us from hon members, I would

want to plead with them to support this Bill so that we

all, as it were, enter this new era in which we fully

respect the right of access to information, together as

parties. It would be a pity if some of the parties, purely

on the basis of this, distanced themselves from this Bill,

because they would be sending a completely wrong message to

their own followers, who may indeed find themselves in

circumstances similar to the one that I have described with

regard to the case of the asbestosis sufferers.



This is not about us. Indeed, we who are literate, who even

speak some of these languages that were imposed upon us,
27 January 2000                                  Page 23 of 126


and know our rights, can read the Constitution, we can read

the law, we can use them and so on. In some instances we

even have the wherewithal, or we have connections with

friends in the legal fraternity or whatever one may want to

call it, and we can access whatever information we want

from the private sector. But we are talking about the most

indigent, for whom nobody speaks, when one looks at the

case of the asbestosis sufferers for instance.



So, for us there is a reality that must be grappled with,

and we are saying that it is a pity that we cannot help in

those instances. For me, as a Minister, to say to the

people that the Attorney-General's resources could not be

used because the people were not part of the state and that

we could not provide them with legal aid because it was in

a parlous state, was the most painful thing to say to

anyone when I knew the suffering.



I am saying that if only we had a right such as this one,

we would have been able to say to the company: ``For God's

sake, give us this information, and let it be appropriately

evaluated. If indeed it leads to the conclusion that the

company is liable to pay damages to these people, you might

want to discuss a settlement.''
27 January 2000                               Page 24 of 126


With these few words, I would like to thank you, Madam

Chair, and all those members of the House who made

tremendous contributions by way of their own resources,

their own wisdom and their own time in order for this Bill

to reach us in this House today.



The CHAIRPERSON OF THE NCOP: Order! Before calling upon the

next speaker, I think I should also thank the chairperson

of the committee that dealt with this Bill, and all the

chairpersons of the committees that dealt with the Bills

emanating from the Constitution, as well as the members of

those committees. I think exceptional work has been done. I

think members have shown exceptional commitment and that

contribution should be noted.



Mr J L MAHLANGU: Madam Chairperson, Mr Minister, Deputy

Minister and colleagues, if I had things my way, after this

elaborate introduction of the subject matter today, I would

have recommended that no other debate takes place, and that

the members of this Council consider voting in favour of

this important Bill. But, for obvious reasons, we have

adopted the approach that we will have this debate taking

place. But if indeed we were in a church, the sermon would

have already been completed.
27 January 2000                               Page 25 of 126


The Bill before this House seeks to give effect to the

constitutional right, as envisaged by section 32(1) of the

Constitution, which seeks to give effect to the right of

access to information held by the state and any information

that is held by another person and that is required for the

exercise or protection of any right. I think the hon the

Minister has appropriately explained the scenario.



The exercise of these rights is subject to justifiable

limitations, such as reasonable protection of privacy,

commercial confidentiality, and efficient and good

governance. It gives the constitutional obligation to the

state of promoting a human rights culture and social

justice.



This Bill is in line with the constitutional requirements

of our country as well as the policy of this Government. I

believe this Bill is indeed in the interests of the

citizens of our country. We, as ANC, continue to uphold the

Constitution as the supreme law of this country, and no

structure of Government is above the Constitution. That is

why we will indeed support this important piece of

legislation.
27 January 2000                                  Page 26 of 126


By adopting and passing this Bill today, we shall have met

our promise, just in time, to give the citizens of our

country the rights they demanded, fought and died for.

[Interjections.]



We had an extensive briefing on this very Bill in this

House the day before yesterday. I would therefore like to

commend the presiding officers for the constructive and

creative way they provided for us to deal with these

constitutional Bills. I also want to thank the members of

that panel, Mr Lever, Mr Kent Durr and Mr Matthee, for the

proactive and objective manner in which they treated that

presentation.



I do not think that members of this House need to be

reminded that, prior to the year 1994, the government of

South Africa, amongst others, resulted in a secretive,

unresponsive and suppressive culture in public, as well as

in private spheres, which often led to serious human rights

violations. Suppression, silencing and banning of

liberation movements was the order of the day.



It did not end there. They went on to suppress and censor

the press. The government became the editors of various
27 January 2000                               Page 27 of 126


newspapers, as well as the electronic media. Those amongst

us today who claim to be upholders of human rights were

dead silent. The state-sponsored bodies supported it and

millions of rands were secretly moved into private bodies.



I would like to challenge any member in this House who

could stand up and defend the previous government. Some

private bodies were given funds to engage in research to

develop chemicals, some of which were intended to stop

reproduction in the black community. [Interjections.] Only

last year, the UN attributed the scourge of the Aids virus

in South Africa to a great extent to the policies of

apartheid. [Interjections.]



We all know that labour unions were refused the right to

information which had to do with their personnel issues. As

we are talking today, Col De Kock is in custody for having

been a state tool to try to suppress those who were vocal

about this closed state.



It was the ANC that called for the inclusion, in the

Constitution, of the Bill of Rights, including the one that

deals with the right to access to information. No single
27 January 2000                               Page 28 of 126


party can claim to have opened up and afforded citizens of

this country their right to know, except the ANC.



We have included in this Bill the clause that compels

Government to disclose information to the public, even

without the public asking for that information. This never

happened in the past. In the Constitution, as well as in

the Bill, the state is expected to respect, protect,

promote and fulfil all the rights in the Bill of Rights

which is the cornerstone of democracy.



It was quite interesting to observe the zeal and enthusiasm

with which opposition parties approached the section

dealing with state information. The question under

discussion concerned information held by the state. It was,

however, a quite different situation when hon members

discussed the section concerning the right of access to

information held by private bodies.



When we proposed the inclusion of the state in the

definition of a requester, it was as if the sky was going

to fall. I want to recommend to hon members of this House

to revisit the Constitution. In terms of the Constitution,

the state is not precluded from being a requester. The
27 January 2000                                 Page 29 of 126


inclusion of the state in this definition will help to

ensure that the new system regulating access to information

will not be monopolised by the rich and powerful to defend

their interests, but will serve the interests of the wider

community, especially the interests of the weak and poor.

The hon the Minister has appropriately addressed the issue

and gave several examples.



Requesters will be in a position to request records in any

form, whether written or recorded, and in the languages of

their choice. We have provided mandatory protection in

areas dealing with defence, security, international

relations, commercial information, the safety of

individuals and structures, as well as in some other areas.



If a request is refused, the requester will have the

opportunity to make an internal appeal to the Minister of a

department. In the event of the failure of an internal

appeal, the requester will have the right to go to court to

request the court to grant him or her access.



This indicates to us that this Bill does not create an all-

powerful state, as some people would want to believe. The

hon the Minister has indicated that the state, as a
27 January 2000                               Page 30 of 126


requester, will have to overcome all the hurdles included

in this Bill. The state will have to prove that it is in

the interests of the public that the requested information

be given.



When we won the elections in 1994 and in 1999, we obtained

a mandate which said that the people of our country trusted

us and had faith in us. It is the role of Government to

protect the interests of its citizens. The possibility that

some members of the opposition parties could be living in

areas such as Houghton, the northern suburbs of

Johannesburg or in the eastern suburbs of Pretoria, the

western suburbs of Durban and possibly the western suburbs

of Cape Town, would make the understanding other people's

living conditions difficult for them.



The interests that this Bill attempts to protect, are those

of people living in areas such as Emangwaneni in KwaZulu-

Natal - I am not sure whether any member of the Opposition

will know that place - Katsibane in Mpumalanga, Ga-Masemola

in the Northern Province, KwaVumazana in Gauteng,

Onseepkans in the Northern Cape, and some other places. It

is in these areas that I have mentioned that people live
27 January 2000                               Page 31 of 126


whose rights have been, and continue to be, violated in one

way or another by people in the private sector.



The hon the Minister has made mention of toxic substances

that are emitted into the water. It is envisaged in this

Bill that, in the event of suspicion that people's lives

could be negatively affected, a public body such as a local

government or health practitioner could request a record

which could reveal the existence of such substances. I

think that no sensible government would leave people's

lives to chance. We, as politicians as well as Government,

have a responsibility to deal with those issues.



I am told that a philosopher by the name of Confucius said:

``One can forgive a child who is afraid of darkness, but

one cannot forgive an adult who is afraid of light''.

[Laughter.] I should perhaps advise my colleagues on the

other side to reconsider their positions.



In conclusion, I would like to convey a word of

appreciation to my co-chairperson in the National Assembly,

Adv Johnny de Lange, for his resourcefulness and patience.

My congratulations also go to members of the ad hoc

committee, the Department of Justice, organised local
27 January 2000                               Page 32 of 126


government, organs of civil society and the media for the

manner in which they participated in the whole process

leading to the adoption of this Bill. From this side of the

Table, the ANC, we would like to say that we support the

Bill wholeheartedly. [Applause.]



Mrs J N VILAKAZI: Chairperson, hon Deputy Minister for

Justice and Constitutional Development, hon members, the

Bill before us is an extension of the Bill of Rights

enshrined in our Constitution. The right of access to any

information, whether it is held by the state, any person or

institution, for the purpose of promoting transparency,

accountability and effective governance of the public as a

whole, is a fundamental right in an open and true

democracy. We are aspiring to such a democracy, and the

provisions of this Bill will make us the envy of 80% of the

world's citizens.



The objects of this Bill are understandable when the

justifiable limitations aimed at reasonable protection of

privacy, commercial confidentiality and effective

governance over a broad spectrum are taken into account.

This Bill also gives effect to the constitutional

obligations of the state, namely that of promoting a human
27 January 2000                               Page 33 of 126


rights culture and social justice which is directed towards

achieving transparency. This is needed for the public

interest. It will reveal to the public some evils of the

past which are still being practised today by some

institutions, whether public or private.



This Open Democracy Bill will promote a human rights

culture and social justice. Public bodies and Government

bodies are no longer shielded. Access to information from

private bodies will be available upon compliance with the

three or four requirements in the Bill. Through voluntary

and mandatory mechanisms or through procedures, one can

access records of public and private bodies swiftly,

inexpensively and effortlessly.



State departments and institutions, whether private or

public, will be exposed by the application of this law. It

is not going to be received favourably in some corners of

our country. While two languages are designated, my desire

is that our indigenous languages will be used more

extensively than ever before.



Public bodies are also required to submit a description of

records to the Minister for Justice and Constitutional
27 January 2000                               Page 34 of 126


Development, which will, upon publication in the Gazette,

be automatically available without a person having to

request access in terms of the procedures laid down in the

Bill. I refer to clause 15 of the Bill. Corruption and

misappropriation of funds will be discovered early before

it becomes a crisis on a broader scale.



Clause 9 of the Bill deals with the exclusion of any

provision of the legislation that prohibits or restricts

the disclosure of a record of a public or private body

which is materially inconsistent with an object or specific

provision of the Bill. In other words, no one is going to

be above the law. No one is going to commit crime, fraud,

or evil of whatever nature and get away with it by

withholding facts.



Although the Bill does not require records of certain

Government bodies such as the Cabinet and its committees,

judicial functions and individual members of Parliament,

etc, they are required in other ways to display

transparency, and as we all know they are also not above

the law when it comes to transgression of the law. The IFP,

despite some minor concerns, supports the Bill. [Applause.]
27 January 2000                               Page 35 of 126


Mr L G LEVER: Madam Chairperson, hon Minister and

colleagues, the right of access to information is one of

the rights protected in the Bill of Rights. Historically,

bills of rights developed to protect the individual from

the all-powerful state. The starting point for a bill of

rights is to protect the rights and freedoms of the

individual subjects of the state. This fact is expressly

recognised in our Constitution, section 7, subsection 2,

which reads:



 The state must respect, protect, promote and fulfil the

 rights in the Bill of Rights.



Despite this, the state, through this Bill, seeks to claim

for itself one of the rights enshrined in the Bill of

Rights, namely, the right to seek information, specifically

from the private sector. This is being accomplished by

extending the definition of ``requester'' in the Bill to

include the state.



This approach is a perversion of the entire concept of a

bill of rights. What does this mean for the Bill of Rights?

Is this the thin end of the wedge for the Bill of Rights?
27 January 2000                               Page 36 of 126


Is this the precursor of an Orwellian future? What does big

brother have up his sleeve?



In the committee that considered this Bill the DP, on a

number of occasions, asked the governing party: What does

the state want to do with this power? Unfortunately, I do

not have the time to discuss the answers provided in this

speech. However, every example that the governing party

used in their answer was less than satisfactory. Every

example provided was subject to the same retort that the

state already has alternative means to achieve that same

result. In all instances the alternative means were more

desirable, especially where a prosecution may result.



I would like to just point out, with due respect to the hon

the Minister, that clause 50(2) of the Bill does not

provide the right to the state to request access only on

behalf of others. It provides it in two instances; on its

own behalf, as well as on behalf of others. It is only when

the request is on behalf of others that it is qualified, in

the sense that it must also be in the public interest. What

then does the governing party really wish to achieve?
27 January 2000                               Page 37 of 126


If I may just briefly - I do not have enough time - deal

with the tragic circumstances of the people who suffered

asbestosis. They went to the UK to institute their claim,

according to the media, because they believed that they

would obtain greater damages there. This, with respect to

the Minister, is not a case of access to information, but

of enforcing a legal claim. It is not those unfortunate

people's fault that the Legal Aid Board has been

maladministered and run into the ground. The remedy for

those poor, unfortunate people is to resuscitate the Legal

Aid Board and run it on a sound footing.



However, to get back to the question: What then does the

governing party really wish to achieve? Perhaps the

clearest indication of the real intention behind this

provision appears in clause 9(c) of the Bill, which reads:



 To give effect to the constitutional obligations of the

 state of promoting a human rights culture and social

 justice, by including public bodies in the definition of

 ``requester'' allowing them, amongst others, to access

 information from private bodies upon compliance with the

 four requirements in this Act, including an additional
27 January 2000                               Page 38 of 126


 obligation for certain public bodies in certain instances

 to act in the public interest.



Clearly, social engineering is firmly on the agenda. The

next question is: How far can we legitimately allow this

social engineering to go, bearing in mind that every

attempt at social engineering in the past century has

failed in spectacular fashion?



The flip side of the coin in allowing access to information

is the right to privacy. Every person, from natural persons

to juristic persons, enjoys the right to privacy.



Certain members of the ad hoc committee which considered

this Bill questioned whether a juristic person has a right

to privacy. The Supreme Court of Appeal has confirmed that

a juristic person has such right, and the right is also

implicitly recognised by the Constitutional Court in the

certification judgment. I would be happy to provide any

interested person with the citations of both of those

relevant judgments.



It is true, and I concede, that rights, even those

enshrined in the Constitution, are not absolute. Where the
27 January 2000                               Page 39 of 126


scope of a right, especially one of those enshrined in the

Constitution, is narrowed, this has to be clearly

justified. I do not believe that that is the case in this

instance. The state can only be said to be a bearer of

rights in certain limited instances, such as when the state

contracts with an outside third party or when the state is

the owner of or has rights or interests in a certain

property.



In each instance, the law of contract or the law of

property, as the case may be, fully protects any rights

that the state may have. The state clearly has obligations

to its citizens. It does not bear rights such as those

enshrined in the Constitution which are enforceable as

against its subjects.



Clearly, there is a clash of ideologies here. The ideology

of the governing party is to involve the state in every

aspect of society and to centralise control of our society

in the hands of an executive government. Access to

information is central to achieving that goal, and this

Bill is symptomatic of that approach to government.
27 January 2000                               Page 40 of 126


If I may briefly answer Mr Mahlangu, if one really wishes

to see who the elite are in this institution, perhaps one

should stand at the entrance to the parliamentary garage

and see who drives what vehicle. That may be instructive.



An HON MEMBER: What car do you drive?



Mr L G LEVER: A bakkie, if the hon member would like to

know. [Interjections.]



For these reasons, the DP cannot support this Bill.



An HON MEMBER: How many houses ... [Interjections.]



Mr L G LEVER: I do not own a house, to respond to the hon

member who asked that question. [Applause.]



Mntwana B Z ZULU: Mhlonishwa Sihlalo, mhlonishwa

Ngqongqoshe wezobuLungiswa kanye neSekela lakho namalungu

ahloniphekileyo, namuhla sivula isahluko esisha ekubusweni

kwezwe laseNingizimu Afrika. Kunezinto eziningi

ezingamaqiniso abantu kanye nemibuso yomhlaba engafisi

ukuba zaziwe yizwe.
27 January 2000                               Page 41 of 126


Lo Mthetho ukhuthaza ukuthi umuntu akwazi ukubona noma yini

eyake yenzeka kuleli zwe esiphila kulo. Ngalo Mthetho

uKhongolose uthi akukho nelilodwa itshe eliyoshiywa lihlezi

phezu kwelinye, elingeke liguquke sibone sonke ukuthi yini

efihlwe ngaphansi kwalo. Ngakho-ke, amaqiniso mawavezwe

obala. Abantu mabawazi amalungelo abo. Abantu bafuna

izithiyo nemigoqo ebibekwe phambi kwabo isuswe. Abantu

bafuna umthetho ubatshele lokho okungamalungelo abo.

(Translation of Zulu paragraphs follows.)



[Prince B Z Zulu: Mr Chairperson, hon Minister of Justice

and his Deputy, and hon members, today we open a new

chapter in the governing of South Africa. There are many

truths that people and other governments do not want to be

divulged. This Bill encourages that any person should be

able to see anything that takes place in this country.

Through this Bill, the ANC says no stone should be left

unturned.



Therefore the truths must be revealed. People should be

made aware of their rights. They want the removal of

obstacles that hindered them. They expect the law to tell

them of their rights.]
27 January 2000                                  Page 42 of 126


The application of the Bill of Rights horizontally and

vertically is a highly controversial and heavily debated

topic. First of all, it concerns two questions. Firstly,

who benefits from the rights that are contained in the Bill

of Rights? Secondly, who is bound by the rights that are in

the Bill of Rights, that is, which persons or institutions

in society have duties imposed on them by the Bill of

Rights?



The second question also raises two further questions: What

type of conduct may be challenged for being inconsistent

with the Bill of Rights, and what type of law may be

challenged for being inconsistent with the Bill of Rights?

The latter two questions relating to the duties imposed by

the Bill of Rights are both concerned with the extent to

which the Bill of Rights operates on the horizontal level.



The point of departure which is applicable to the Promotion

of Access to Information Bill is that, if the Bill of

Rights prevents any form of law from recognising conduct

which conflicts with the Bill of Rights, then private

persons will not be able to seek the assistance of the

courts to undo the unconstitutional behaviour.
27 January 2000                                 Page 43 of 126


There are a number of categories of persons to whom the

rights in the Bill of Rights are accorded. Most of the

rights are for the benefit of everyone. Thus, section 11

provides that everyone has the right to life, while the

negatively phrased section 13 provides that no one may be

subjected to slavery, servitude or forced labour. Other

rights are accorded to narrower categories of

beneficiaries.



A juristic person is entitled to the rights in the Bill of

Rights to the extent required by the nature of the rights

and the nature of that juristic person.



In the first certification judgment of the Chairperson of

the Constitutional Assembly, in the recertification of the

Constitution of the Republic of South Africa of 1996, an

objection was raised against the extension of the

protection of the fundamental rights to juristic persons.

It was argued that constitutional principles contained in

Schedule 4(1)C, only permitted the Constitutional Assembly

to confer rights to natural persons, and by extending the

rights to juristic persons, the rights of natural persons

are diminished.
27 January 2000                                  Page 44 of 126


The Constitutional Court responded as follows:



 We cannot accept the premise. Many universally accepted

 fundamental rights will be fully recognised only if

 accorded to juristic persons as well as natural persons.



Therefore, it is fallacious that some parties are voting

against the Bill, whereas the state will only have the

right of access to information as is required for the

exercise or protection of any right of the individual - the

state being the sole guardian of every citizen. [Applause.]



Mr K D S DURR: Chairperson, I thank the Minister for his

introduction.



I can reciprocate and say to him: Let us persuade each

other, for that is why we are here. I listened to his

arguments on this issue which divides us. Let me hasten to

add that most of us in this room support, overwhelmingly,

most of the provisions of this Bill. We are proud of it,

and we think it is a good thing because it will empower the

people. We also think that it will make a better society

and cause the Government to be more accessible.
27 January 2000                               Page 45 of 126


Congratulations to him in that regard. We are enthusiastic

about that.



There is somewhere where we differ, and I ask the Minister

to think again. I am sure that the clause which divides us

will be tested in court. When the courts come along, they

are going to read copies of Hansard and they are going to

follow the deliberations of our select committee. They are

going to see that that clause which divides us was brought

in just before we adjourned in December, that it is a far-

reaching measure - whatever else it may be - and that there

was no consultation at all with the public in that regard.



Whether it is desirable or not, we can argue, but it is

certainly not necessary for us to give effect to the

relevant sections of the Constitution. It is not

imperative. Why then can we not excise it, and then

deliberate on it, consult and if the Minister is right and

we are wrong, then bring it as an amendment later?



I say this in all seriousness to the Minister. I am not

trying to score points off the Minister. If the Minister

reads the Constitution, he will see what my hon colleague

argued so eloquently here earlier; section 7(1) of the
27 January 2000                               Page 46 of 126


Constitution refers to ``the rights of all people''.

Section 7(1) states that the rights of the Bill of Rights

make provision for human beings, section 8(4) talks of

juristic persons, and section 8(2) of natural or juristic

persons.



If one reads the certification judgment of the SA Law

Report of 1996(4) December (Part A), on page 790, it says,

in its interpretation:



 What the drafters had in mind were those rights and

 freedoms recognised in open and democratic societies as

 being the inalienable entitlement of human beings.



It never was the intention that the state should be

included.



I have to say to the Minister, and I say this with respect

to him, that the examples he raised - and may I

congratulate him on raising examples because when we

pressed our colleagues for examples they were unable to

give us any other than to say that they were acting in the

public interest - are not very good examples. For instance,

the first one is covered by the National Environmental
27 January 2000                               Page 47 of 126


Management Act (Nema), and the second one is on asbestosis,

which my hon colleague answered for him. Let me say that

asbestosis is probably the best argued example on earth.

There have been dozens of cases in America, the United

Kingdom and in this country. But, with regard to the facts

on asbestosis, there is little that needs to be found out.

People know what the facts on asbestosis are. The question

is: What damages will be awarded? Therefore, that was not a

good example either.



We argue that even though the Minister is right and there

is a constitutional right for the state to be a requester,

we should ask ourselves, firstly, whether it is desirable

and, secondly, whether it is necessary, because the state

has all of the powers, some of which the Minister himself

eloquently argued in his introduction. Therefore we are

saying that it is better for the state, where it requires

specific rights, to seek those specific rights in

particular legislation, rather than to come here with a

shotgun right. In fact, this shotgun right is also

equivalent to a power. [Time expired.]



Mrs E N LUBIDLA: Madam Chair, Minister, Deputy Minister and

hon members, just after the discovery of diamonds, our
27 January 2000                               Page 48 of 126


people worked in the mines and could buy cattle and other

things. When they thought that they were a little bit

richer, they did not want to go back to the mines. It is

alleged - and it is our own people that told us this - that

the water was poisoned and their cattle died. It was said

that it was rinderpest that had killed their cattle, but

that was not so. It was something man-made. Therefore, if

only this Bill had come earlier or in the last millennium,

maybe it would have helped our people find out the truth.



Also, in the last millennium, but during our time, on the

other side of Kgomotso, our people's cattle used to graze

around a fountain or dam where some farmers did not want

the cattle to graze and drink water. As a result, somebody

poured poison in the water and our people's cattle died.



So if only this Bill had come a little earlier. But it is

not too late, in any case. As we are in a transformation

phase of our history, where service to our country and the

people whom we represent should be of paramount importance,

the committee considered it necessary to preserve maximum

flexibility in order to provide for all conceivable

eventualities, no matter how unlikely these might be.
27 January 2000                               Page 49 of 126


The ANC Government has adhered to our constitutional

principles by providing a right not found even in recent

and progressive constitutions in the world as a whole. Our

Constitution has recognised the importance of access to

official information in the modern era. In order to have

full and informed debate, people must be able to have

access to a larger quantity of information that modern

governments have at their disposal. In addition, the

Constitution provides for a right of access to information

in private hands, where that information relates to the

exercise or protection of the rights of the information

seeker.



This provision recognises that information in private

hands, such as in the hands of employers, credit bureaux

and other financial institutions can considerably affect

the rights of individuals. The provision also recognises

that in principle an individual should have access to such

information in order to ensure its accuracy, verify it or

challenge decisions made on the basis of that information.

With regard to the access right contained in the interim

Constitution, in relation to information held by the state,

the Bill eliminates the provisions contained in the interim

Constitution that the information requested must be
27 January 2000                               Page 50 of 126


required for the exercise or protection of the rights of

the requester. Moreover, this provision applied to private

persons.



However, like section 33, section 32 - which is responsible

for this debate today - is bolstered by the enactment of

national legislation to give effect to this right. In so

far as public information is concerned, this legislation

provides for reasonable measures to alleviate the

administrative and financial burden on the state. This

means that the right in section 32 had no effect until the

enactment of the required legislation, which we are proud

to give effect to on this day.



The word ``rights'' could have three possible meanings

here. It could mean fundamental rights - that is, rights in

the Bill of Rights. It could mean private rights - that is,

contractual or delictual rights against the state or an

organ of state. It could mean all private rights, including

those held against private citizens, whereby the state can

exercise this right in order to protect the fundamental

rights of the individual. In this context, I think even

those who had problems with regard to the state having

access are now clear.
27 January 2000                               Page 51 of 126


I would also like to elaborate on a few aspects of the Bill

such as the question and instances of payment of fees. This

Bill provides that the information officer of a public body

to whom a request for access is made must, by notice,

require the requester to pay the prescribed fee, if any,

before further processing the request, if the search for a

record of a public body in respect of which a request ...

[Time expired.] [Applause.]



Mr P A MATTHEE: Madam Chair, I want to start off by

thanking the hon the Minister for referring to the brief

discussion that we had just before the session started.



I want to make it clear right from the outset that we

unfortunately cannot support the Bill as it stands now, for

the very reasons that I have given to the Minister and

because of the fact that the Government is included in the

definition of requester.



The Minister also referred to the question as to whether it

would be possible for this Council to refer this Bill back

and indicated that because of time constraints this would

be difficult. However, I would suggest that that certainly

cannot be the case because we would then not be able in
27 January 2000                               Page 52 of 126


this Council to fulfil our constitutional duty as it is set

out in, I think, section 68 of the Constitution. That would

make this whole debate irrelevant, because the passage of

the Bill would be a foregone conclusion as we would

actually be obliged to simply support the Bill in spite of

the debate.



I want to thank the Minister again for pointing out the

reasons for the Government wanting this right. As I

understood him - and maybe he can actually confirm whether

that is so - the only reason the Government wants that

right is so as to put itself in a position where it can

act. I think the words he used were, ``to act for or on

behalf of the defenceless and those people that are not in

a position to actually exercise their rights''. That is how

I understood the Minister. That is the reason, and as I

understood it, the only reason the Government wants that

right. I do not know whether the Minister wants to confirm

that.



I have, however, found the solution for the Minister. The

solution to his problem is actually in the Bill itself. I

am so excited about it, because it is right here. Could I

refer the Minister to clause 83 of this Bill where it says:
27 January 2000                                 Page 53 of 126


 (3) The Human Rights Commission may -



        (c) if reasonably possible, on request, assist any

           person wishing to exercise a right contemplated

           in this Act;



Furthermore, I refer to subsection (5), where it says:



 If appropriate, and if financial and other resources are

 available, an official of a public body must ...



not ``may''



 ... afford the Human Rights Commission reasonable

 assistance for the effective performance of its functions

 in terms of this Act.



I also refer the hon the Minister to clause 85 where it

says:



 Any expenditure in connection with the performance of the

 Human Rights Commission's functions in terms of this Act

 must be defrayed from moneys appropriated by Parliament

 to that commission for that purpose.
27 January 2000                                Page 54 of 126


Here is the Minister's solution. Here is his answer. He

does not need this right if he wants to assist the

defenceless and the people that he has referred to. As the

Minister has correctly pointed out, the Government actually

has specific rights in terms of the Criminal Procedures Act

and in terms of the tax laws and so on, for specific areas.

But those are rights limited to those specific areas.



It is not a general right. What is difficult to understand

is that for almost four years this Bill was worked on by

many people, including the best legal experts of our

country. Hundreds of submissions were made. Many workshops

were held and many thousands of hours were spent on getting

the Bill ready for submission to Parliament.



Nowhere, as far as I know, was it ever contemplated that

the Government should also be the bearer of the rights in

the Bill of Rights or of this specific right - the right to

information contained in clause 2 - until it was brought up

by our colleagues in the ANC within the last two months.

The question to which no answer has been given is why did

the ANC wait for so long to come up with this novel idea

for which there is no precedent anywhere in the world? I

hope the Minister will be able to give us a reply to that.
27 January 2000                               Page 55 of 126


Section 7 of the Constitution makes a clear distinction

between the rights of the people on the one side, and the

duty of the Government and the state to actually respect

those rights. I will not go into all the details, because I

do not have time to do that. If I could also say that to

say it is in the public interest does not really mean

anything. In any democracy, as I understand it, a

government or government body should, in any event and

under all circumstances, act in the public interest. Is

that not so? But what is more, to say that it is in the

public interest actually broadens this right and does not

limit it.



In section 32 it is stated that where one wants access to

information of a private body, one has to prove that it is

to exercise a right. If a government or public body wants

to exercise that right in the public interest - which, in

any event, is in all instances, it does not have to prove

that it is in protection of a right. I wish to tell the

Minister that I really think that today we can make history

here, because the solution is there.



This Council cannot act as, and I hope it will never be, a

rubber stamp of the National Assembly. I really believe
27 January 2000                               Page 56 of 126


that we have a case here. In the interests of the country,

and of getting the support of everybody, so that we can all

buy into this, please, I plead with hon members that we

should refer it back to the other House. Time constraints

can never be the only reason that can keep us from enacting

good legislation. [Applause.]



Mr T S SETONA: Chairperson, Deputy Chairperson of the NCOP,

hon Minister Comrade Penuell Maduna, hon Deputy Minister

and hon members of the Council, I take pleasure in being

part of this debate this afternoon on this important Bill,

which represents yet another milestone in undoing the

legacy of the apartheid colonial order built over many

decades.



The passing of this Bill is undoubtedly worth celebrating

by millions of men and women in the dusty streets of our

townships and in the rural villages of our country, for it

entrenches the culture of transparency and accountability

in both public and private bodies.



We have had a lot of free lectures from members of the

opposition on the interpretation of the Constitution. We

have also had lectures on the interpretation of public
27 January 2000                               Page 57 of 126


interest. Mr Matthee, who has been a member of the NP for

many years, also wanted to give us such a lecture today.

But the unfortunate situation is that when the NP

government declared a state of emergency in 1985, thousands

of young people in this country were forced out of schools.

When they were doing that, their only justification - which

was known all over the world - was the public interest.



Today we are passing this Bill, as the ANC, to enable the

Government not to be in a so-called powerful position, as

it is alleged by the opposition, but to exercise its right

through prescribed procedures in the law, unlike the manner

in which it was done in the past.



It is worth reminding everyone in this House that after 2

June 1999 South Africa will never be the same again. Our

people, when voting for the ANC in their millions on that

chilly day, were declaring to all and sundry that they

would never accept being governed in the darkness again,

where the abuse of power and violation of human rights were

the order of the day.



The Constitution, which is the cornerstone of our new

democratic dispensation, has undoubtedly provided for the
27 January 2000                               Page 58 of 126


right of access to information held by the state, and any

information that is held by another person and that is

required for the exercise or protection of any rights.



Unfortunately in South Africa, unlike after 1994, we have

had so many constitutions. There was a constitution based

in Pretoria and the constitutions of the ten former

Bantustans. Today we have only one Constitution, and there

is something unique about it. The interpretation of this

Constitution is as multiple as the interests of our people

in this country.



I want to declare that as I entered this debate today, my

version of the interpretation of this Constitution was

about nothing else but the aspirations of the poorest of

the poor in this country, the aspirations of the most

disadvantaged of the disadvantaged.



Section 8(4) of the Bill of Rights further entitles the

juristic person to the rights in the Bill, only to the

extent required by the nature of the rights and the nature

of that juristic person. Who is the juristic person? We

need to hear that lecture. Maybe we could not understand it
27 January 2000                               Page 59 of 126


today. In my own understanding, Government is also part of

the juristic person. We cannot interpret it otherwise.



It is no secret that our new democratic Government has

inherited an unresponsive, unaccountable and secretive

bureaucracy, in both the public and private bodies - a

culture that has been entrenched for so many decades.



Principal to the obligations and functions of the state is

the protection of the interests and rights of the citizens.

In this regard the Constitution further embraces human

dignity, the achievement of equality and the advancement of

human rights and freedoms in its founding provisions.



I want to say to the opposition this afternoon that talking

about the interests, equality and advancement of the

dignity of an individual is different from advancing that.

This Bill is doing exactly that - to advance, to deepen and

to defend the interests of the defenceless majority of the

people of this country, those who are in the squatter

camps, those who are in the mountainous rural areas of our

country. I believe that some of us who are giving this

generous lecture today about the interpretation of the Bill
27 January 2000                               Page 60 of 126


were never there to experience the conditions of life of

our people in those communities.



This is a fair acknowledgement of socioeconomic and

political disparities within our country. For a long time,

until today, only the few rich in this country have been

having unlimited access to information for the exercise and

protection of their rights, whilst the majority of the

poorest of the poor in the country generally, as indeed in

my home town, had no access to information to protect their

rights, nor to resources to institute litigation against

either public or private bodies for the abuse of their

rights.



Of course, the generous lecture and the experiences of

other countries that have been cited today in this House

are a manifestation of that disparity. Our people do not

know how this Bill may be interpreted in Australia or

Britain. What they know is that they must be protected. The

only institution that can protect their interests and

aspirations is none other than Government. The ANC dare not

shirk from executing that mandate.
27 January 2000                               Page 61 of 126


When 98% of the people of my home town, Botshabelo, a rural

area in the Free State, voted for the ANC on 2 June 1999,

they did so confident that it is the embodiment of their

aspirations and the only hope for their better future.



Quite clearly, it is an insult to our people to say that,

in their interests, the state cannot request information

from any private body or an individual for the protection

of their rights. It is ridiculous to hear from the

opposition that, by so doing, we will be giving the state

more powers against the people, which may lead to abuse.

Many people in this country have died for this freedom.

Many people in this country have fought ... [Time expired.]

[Applause.]



Mr M MADLALA (Salga): Hon Chairperson of the NCOP, Deputy

Chairperson, Minister for Justice and Constitutional

Development, hon members of the NCOP and special delegates,

the SA Local Government Association wishes to extend its

best wishes to the members of the House. We wish them all

of the best for the new millennium and the African century.

May their work and commitment to this institution bring

them all joy and success, and growth, and development of

the NCOP as an institution that champions democracy,
27 January 2000                                Page 62 of 126


accountability, transparency, the African renaissance and a

better life for all.



It is my pleasure and honour to be part of a debate on such

an important piece of legislation. Thanks go to the

drafters of our Constitution, who enabled us, organised

local government, to participate in the debates at the

highest level of law-making in this country.



The four constitutionally required pieces of legislation,

currently being considered by both Houses of Parliament,

have reaffirmed the validity, the importance, the

correctness and the essence of the constitutional provision

for the participation of organised local government in this

House, the NCOP. The more we consider the Bills within

Salga's structures, the more we are convinced that the

Constitution could never have been more correct than to

provide for local government participation in the NCOP.



The Promotion of Access to Information Bill has a

fundamental impact on us as local government or as a sphere

of government. The Constitution requires that every person

have access to the information held by the state. Local

government is part of the state and, therefore, is subject
27 January 2000                                 Page 63 of 126


to this constitutional provision and all the provisions of

the Promotion of Access to Information Bill.



When the Open Democracy Bill was published, we immediately

put the Bill for consideration within organised local

government. Just to shed some light on this for members, we

have a system and structures that ensure that

municipalities throughout the associations at provincial

level come together and consider issues. Among others, it

will be important legislation such as this. The

associations collated inputs from member municipalities and

consolidated them into provincial recommendations to the

national associations which then considered all views from

provinces and developed one position. This is the input

that Salga made at the NCOP committees. The system is not

yet perfect and in future fewer and well-capacitated

municipalities will perfect the system.



The Open Democracy Bill was subjected to the above process.

There are a number of issues that we raised on this Bill.

Among others, we expressed our views on the need for an

internal appeal mechanism. We made it clear, however, that

this view is subject to all spheres of government having

such a mechanism.
27 January 2000                                  Page 64 of 126


We have recommended that municipal councils should be given

the discretion to delegate the function of appeal to any of

their functionaries, based on the type and capacity of the

municipalities. A municipality will have the discretion to

choose either the Speaker, the mayor or their deputies as

the relevant authority to deal with appeals.



We also raised a concern that metropolitan mayors and

executive mayors will have too many responsibilities for

them to handle, including appeal mechanisms. Therefore we

advised that Speakers or a council is a preferred option to

deal with appeals. [Time expired.] [Applause.]



Mr M V MOOSA: Madam Chair, one needs to begin with this

word ``social engineering''. It has become such exciting

coinage these days that one needs to respond to it.



What is ``social engineering''? When the Romans imposed

civilisation on the barbarians and cannibals, that was

social engineering. When Jesus Christ and the Prophet

Mohammed imposed value systems on the heathens, that was

social engineering. When the feudal lords imposed their

system, that was social engineering. When Napolean

overthrew the feudal lords, that was social engineering.
27 January 2000                               Page 65 of 126


When the colonialists came to Africa and took away the land

and the resources, that was social engineering. When the

revolutions of Africa ousted the colonialists, that was

social engineering.



What are we talking about? What is this ``social

engineering'' that the DP loves to talk so much about? It

happened when the apartheid government and the colonialists

took away the land rights and the dignity of our people and

socially engineered ad nauseum to the point where our

people were left with absolutely nothing. They engineered

for over 300 years in this country. The people of this

country have taken power again. They have imposed a state

that belongs to them, and that state is expected to

socially engineer. That the DP will never understand.



Unfortunately, when Adv Lever says we need to look at the

ideological differences across this floor, that is what he

is talking about - that, ideologically, the ANC understands

that when it was handed power by the people of this country

in 1994 and again in 1999, the people of this country were

saying to the ANC: ``Take power in this state and socially

engineer it so that we develop a harmonious society, a
27 January 2000                                Page 66 of 126


society that is tolerant in its diversity and that belongs

to all.''



Let us not throw around ``social engineering'' as if it

were a simple word. Based on that, the DP should therefore

understand why it has not been given power in 1994 and

again in 1999 by the people of our country. They were not

given power because the people of this country know that

the DP will only support those who are powerful and those

who are wealthy. The DP will tirelessly argue for the

interests of those who have and continue to have. They have

done that with a number of pieces of legislation, they have

done that in their election programmes and campaigns and

they do that again here today in this House.



What is this right of access to information that we are

talking about, and what is the right of the state that we

are talking about that exists in this Bill that allows it

to further the aims and objects of transformation in this

country? What is that right? What is this fear that the DP

talks about - an Orwellian state - something that is really

mysterious and rickety. The DP speaks of a lot of

terminology that makes it sound as though it just does not

understand it. It probably does not understand what is
27 January 2000                               Page 67 of 126


going on in this country, and that transformation is taking

place.



Simply put to the DP, the state in this country has a

responsibility to ensure that we balance the resources and

the access to information that everybody has to everybody

else. Today, in the year 2000, multinational corporations

are sometimes larger than governments. Anglo-American and

its resources and its power probably extends much further

than the power of the South African state. For us to say

that the state should not be able to request of

institutions as powerful as those information that will

protect the rights of the poor and the weak is ludicrous.

The DP knows that. The DP knows that it pursues an agenda

that is the agenda of the wealthy and the powerful.



When we speak about the right to access that has been

granted to the state, it is not just a willy-nilly right as

it was in the apartheid days. This is not the apartheid

state.



This is not a state that will simply bulldoze and break

down doors and suddenly go and take information from

companies. Maybe Mr Matthee should try and understand this.
27 January 2000                               Page 68 of 126


That is not the kind of state we are. This Bill speaks

about the state making a request for information which, in

any case, it could do. The state has to apply to court to

compel a company, corporation or person to give information

if they refuse to do so.



The court system in this country represents an independent

institution in our society and, hopefully, the DP respects

its integrity. The courts will decide. They can inquire

what the problem is when the state has asked for

information and it seems as if it is needed for legitimate

purposes. Obviously, the state, in such a matter, would

have to explain to the court why it needs the information

and why it regards that information as legitimate in order

to pursue a particular public interest. This is not a

willy-nilly right that has been written into this Bill.



The DP is misleading the public. They continue to mislead

voters. However, unfortunately they only mislead those who

continue to blindly vote for them, because the rest of

South Africa knows not to listen when the DP speaks. They

are speaking about the interests of a few and they continue

to do so, as in this instance.
27 January 2000                                  Page 69 of 126


I want to say the following to Mr Durr, who speaks about a

``last-minute thing'' that was slipped in by the ANC and

which is sure to go to the Constitutional Court. The hon

member needs to know that lack of consultation is not

grounds for a constitutional challenge. A last-minute

discussion in a committee is not grounds for a

constitutional challenge. Thus far, none of the political

parties who have spoken on this matter have in sound, legal

terms explained what their problem is with the right of the

state to request information.



There is no single piece of paper, or one statement that

one has heard over the past three months, that gives an

indication that there is some legal bearing in this

position that is held by the opposition parties. There is

not! They are protecting the rights of the powerful. They

are protecting the rights of the wealthy. Let the country

know that, and let the country, in the next election, vote

according to the decisions that these political parties

make on a day-to-day basis in this Parliament, because in

this Parliament we have serious business to do.



We are not simply letting off hot air through these

discussions. The discussions here are based on
27 January 2000                               Page 70 of 126


transformation programmes on the ground aimed at giving a

better life to all our people, delivering houses and

delivering water. These are simple things that the DP and

its powerful supporters take for granted. They take for

granted the fact that they have fresh running water in

their taps. Fortunately supporters of the ANC, who happen

to be the majority in this country, do not take for granted

the fact that there is running water in the taps.



The CHAIRPERSON OF THE NCOP: Order! Hon member would you

please take your seat. Mr Durr, do you have a point of

order?



Mr K D S DURR: Chairperson, just a sincere and brief

question. Would the hon member allow me to ask him a

question?



Mr M V MOOSA: I am really not in the mood today to take

questions from a party that makes the kind of statements

they make here. [Interjections.] I will entertain the

willy-nilly questions over tea, if Mr Durr would not mind.

[Interjections.]



Let us take one or two more ... [Interjections.]
27 January 2000                               Page 71 of 126


The CHAIRPERSON OF THE NCOP: Order! Order, hon member!



Mr M V MOOSA: Madam Chair, I am not answering questions.



The CHAIRPERSON OF THE NCOP: Order! Mr Matthee, would you

please take your seat?



Mr M V MOOSA: Madam Chair, thank you very much. I hope you

will give me some injury time. [Laughter.]



The CHAIRPERSON OF THE NCOP: I was not aware that you were

injured!



Mr M V MOOSA: Madam Chair, the important aspect to

understand here is the notion of the state. What is the

state? Mr Durr speaks of the Bill of Rights and all the

provisions that apply to individuals and human beings. What

is the state? Is it a machine? Is it some kind of an alien

being? The state constitutes men and women of this country

who love this country and who, on behalf of this country,

want to pursue the ideals enshrined in the Constitution.



Section 7 of the Constitution, and all the other clauses of

the Constitution, speak of these rights. When the state
27 January 2000                               Page 72 of 126


institutes those rights, it does not institute those rights

on behalf of a machine or an alien being. It institutes

those rights on behalf of people, of human beings, of

people who suffer out there. These are the basic notions in

this Bill that we need to capture in order to understand

the ideological divide across this floor today.



I also need to say to Mr Matthee that we are glad that he

acknowledges that the Human Rights Commission has such a

huge role to play. It must continue to play that role and,

of course, the ANC supports that. That is the reason why

the ANC put these clauses in this Bill. That is the reason

why the ANC supports this Bill.



It is the ANC which drafted most of the clauses suggested

here, but what has that to do with the fact that the state

is the people? The people shall govern. This is something

that we fought for for the entire duration of our struggle

against colonialism and apartheid, and today the people

shall govern.



When the state sets up a Human Rights Commission to pursue

certain provisions and certain aspects of a rights-based

culture, that does not mean that the state, in a commercial
27 January 2000                               Page 73 of 126


sense which has nothing to do with rights, cannot pursue

the rights of people. These are simple things of which we

do not seem to be able to convince one another! It has to

do with the ideological tenets that we all come from, the

basis from which we work. Having said these few words, I am

sure the Minister will deal with this matter further.



However, I want to say that the committee has done an

excellent job. Both Comrade Mahlangu and Comrade Johnny de

Lange have worked tirelessly for a piece of legislation

that we believe will stand the test of time. [Applause.]



The CHAIRPERSON OF THE NCOP: Order! I call upon the hon the

Minister for Justice and Constitutional Development to

address the House. Mr Moosa has woken up the members for

you, Minister. [Laughter.]



The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT:

Madam Chair, I also intended to say something about social

engineering. I think that even if we did not want to

indulge in social engineering, it is unavoidable. We

inherited a society which was socially engineered in a

totally wrong way during colonialism and during apartheid.

Any government, including a DP government, would never last
27 January 2000                               Page 74 of 126


a second if it did not socially re-engineer South Africa.

For instance, if it is in terms of social engineering that

we have an obligation to use the resources of the state to

extend accessibility to electricity to beyond the 31% that

had access to it in 1994, then so be it.



If it is in terms of social engineering that it is the

right of every human being to have access to potable,

drinkable water, so be it. If it is in terms of social

engineering that anyone can say: ``For God's sake, human

beings are entitled to the bare minimum, a little roof over

one's head, which even the birds have in the form of nests,

so be it. So, if it is in terms of social engineering that

we have a bounden duty to look into the iniquitous way in

which resources, opportunities, income and, therefore,

wealth, are distributed in this country, so be it.



We owe this to ourselves, particularly as the indigenous

people of this country who have struggled for change in

this country. Had we not struggled and sacrificed for

change, for social engineering if one likes, I am afraid

the white minority in this country would still be clinging

to power. That is the truth. They did not just wake up on

the morning of 2 February 1990 and say: ``Look, we have
27 January 2000                               Page 75 of 126


been wrong all this time. Abandon apartheid. Let them have

the vote.''



His political forebears - and this is recorded - were

preachers and advocates of the qualified franchise for

blacks, but yesterday they howled and said I was misleading

the House. I want to repeat this. The issue of the vote was

not about whites, because even white women had already

attained the vote by the 1930s. The issue of the vote was

about those who were nonvoters, and for anybody from any

party to have advocated a qualified franchise without any

basis whatsoever in logic and morality was immoral in the

extreme. And yet they preached this until the beginning of

the 1970s, it turns out. This is hate.



Now, those ardent liberals were advocates of the qualified

franchise for blacks. For God's sake, it was for blacks

only. They never said they wanted to take away the votes of

whites who did not have property or a certain level of

education. The white hobo was a voter, and they were not

threatening the vote of the white hobo. They were saying,

if it comes to blacks, that merely because blacks were

blacks, they must not vote unless they have a certain level

of education and or property.
27 January 2000                               Page 76 of 126


We have socially re-engineered that and extended the vote

to everyone who has reached the age of 18 and is a South

African citizen. We owe no one any apology for that. I want

to say that one of the things that we have actually

socially re-engineered is our thinking on human rights

itself. In today's world it is generally accepted that one

cannot confine human rights to the vertical relationship

between the state and the individual, because a lot of evil

happens at the horizontal level. A lot of it happens there,

and if one does not pay attention to that evil, then,

indeed, one had better not talk about human rights at all.



What we are not being told by all speakers who are opposed

to the extension of the right of access to information in

private hands to the state, when it acts in defence or in

the protection or in the exercise of rights of ordinary

people who cannot speak for themselves, is what it is that

should not be accessible.



However, what I want to say to those who are saying this is

that it is interesting that I, Penuell Maduna, pretending

not to be a Minister for a second, can access the same

information. That is interesting, because if one just looks

at clause 51 and one relates that to the provisions of
27 January 2000                               Page 77 of 126


section 38 of the Constitution, particularly 38(b), (c) and

(d), anyone could ask for this information. That is an

interesting thing.



But what we are saying is that though we know the Human

Rights Commission can do a whole lot of these things and

the state would say so, clearly, it should be acknowledged

that - and I am thankful to hon member Matthee for pointing

this out - we should look at clause 85 as well. Clause 85

tells us that the moneys must be defrayed from moneys

already appropriated by Parliament for the work of the

Human Rights Commission. Those of us who know anything

about the budget of the Human Rights Commission will admit

they do not have the kind of resources that it would have

had to have if it were to do this additional work.



Mr P A MATTHEE: We can give it to them!



The MINISTER: Well, he can give it to them if he has the

money, but we as Parliament have so far failed to give it

to them, because we do not have the money. We do not have

an elastic purse.
27 January 2000                               Page 78 of 126


What we are also saying is that it is interesting that the

opposition are saying, ``No, it is wrong for a public body

to exercise this right.'' They are not telling us why it is

wrong. I listened carefully to all of them. They were not

prepared to say why. If one pretends for a second that one

does not speak on behalf of any public body, then it is

fine for one to get the information, but once one uses a

public body, that status one has is suddenly wrong.



I have actually given an example here of the state

attorneys' resources which we can use if, indeed, there is

information that we can source in the public interest.

However, we are being told, ``No, no, no. Do not do that.''

In case I gave anyone the impression that I said the case

on asbestosis turns on access to information, I did not

mean that. I said that one must look at a classic example

of the defenceless.



No one in the state right now can take up the cudgels for

those people. They have been all over. They started with us

here at the legal aid stage. They started with us. It is

not completely true that they wanted to sue because they

thought that they would get more money. They even wanted to

sue here, but they cannot sue here.
27 January 2000                               Page 79 of 126


Now, I am saying that the state has resources, but I want

to tell hon members that it is not as easy as hon member

Kent Durr suggests. I do not think that the company has as

much as admitted liability. I wish it had, because then we

would be saying: Look, what damages are you looking for?

Why do you not settle that question? It would be easier,

but they have not admitted liability. [Interjections.] They

have not admitted liability, as far as I know. Maybe the

hon member has better and more recent information, but they

have not.



So, in order for them to be able to build a very good case

against this company, they will have to have access to

information. In order for them to do that - the hon member

knows this for God's sake - even the most literate, the

most erudite who are not lawyers, would need lawyers to be

able to do that kind of work. Now, I am saying ...



Mr P A MATTHEE: I am sorry Madam Chair, but would the

Minister be prepared to take a serious question?

[Interjections.]



The MINISTER: Let me tell the hon member that I take him

very seriously. If I want to take a question from him, it
27 January 2000                               Page 80 of 126


will not be now: I will take it when I can offer him a good

glass of dry, red wine or mampoer, not now. [Laughter.]



We are not convinced that it is wrong for a public body,

merely because it is a public body, to ask for information

which a nonpublic body can easily ask for. I am trying to

decipher the logic of that argument. [Interjections.]



No, please! If anybody acting in the public interest, as

the Constitution says, can exercise any of these rights,

including this one, then why can the state or a public body

not do the same thing? Why can it not? The hon members

would have to tell a better story. What is it that makes

them think that an ordinary, defenceless, most indigent

person living in the remotest corner of this country, must

be prevented from having access to information merely

because they do not have the wherewithal? What is it?



I know of nothing that those ardent advocates of

transparency are suddenly saying must not be subjected to

transparency.



Bafihla ntoni? [What are they hiding?] [Applause.]
27 January 2000                               Page 81 of 126


Debate concluded.



Question put: That the Bill be agreed to.



Division demanded.



Declaration of vote:



Mr P A MATTHEE: Madam Chair, we are very sorry that it is

not possible for us to support this Bill, because we would

have dearly wanted to support it. I have stated the reasons

for that. What is more - I am very sorry, but this specific

question has not been answered and I want to refer the

Council to it again - in clause 83(5) it is clearly stated

that the Government can achieve what it wants to achieve.

It actually puts an obligation on an official of a public

body to assist. It is actually there. The Government does

not need this right to help the defenceless. We also want

to help the defenceless.



The CHAIRPERSON OF THE NCOP: Order! Hon member, you are not

making a declaration. Is there any other party that wishes

to make a declaration? We shall then proceed to voting on

the question.
27 January 2000                               Page 82 of 126


The Council divided.



 AYES - 31: Permanent members: Bhabha, M; Bhengu, M J;

 Dlulane, B N; Fenyane, S L E; Kgware, D M; Lubidla, E N;

 Lucas, G A; Mahlangu, J L; Mahlangu, Q D; Majodina, P C

 P; Makoela, M I; Maloyi, P D N; Marais, A; Mkhaliphi, B

 J; Moatshe, P; Mokoena, M L; Moosa, M V; Mushwana, M L;

 Ndzanga, R A; Nkuna, C; Ntlabati, S N; Nyakane, R M;

 Qokweni, P G; Setona, T S; Sulliman, M A; Surty, M E;

 Thomson, B; Vilakazi, J N; Zulu, B Z.



 Tellers: Kolweni, Z S; Themba, M P.



 NOES - 15: Permanent members: Ackermann, C; Botha, C-S;

 Conroy, E A; Durr, K D S; Gouws, E C; Horne, J; Krumbock,

 G R; Lever, L G; Matthee, P A; Nel, P J C; Theron, J L;

 Tlhagale, J O; Witbooi, J



 Tellers: Van Niekerk, A E; Raju, N M.



Question agreed to.



Bill accordingly agreed to in accordance with section 75 of

the Constitution.
27 January 2000                               Page 83 of 126

         PROMOTION OF ADMINISTRATIVE JUSTICE BILL



       (Consideration of Bill and of Report thereon)



The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL

DEVELOPMENT: Chairperson, colleagues and comrades, it is a

real honour for me to be back in this Chamber. Before I

begin, I need to tell those who do not know that it was

here that I cut my political teeth, and that I had an

immensely enjoyable two years in this Chamber. It is very

good to see the old faces, and it is very good to be back

here. Thank you very much for this opportunity.



The right to administrative justice holds special relevance

to South Africans. The quest for administrative justice is

the basic aspiration for a reliable remedy against

injustice caused by maladministration, abuse or unfairness.



It is the first line of defence against malice, bad faith

and corruption by public bodies. It is a cardinal safeguard

in the enforcement of administrative accountability and the

realisation of substantive administrative justice.
27 January 2000                               Page 84 of 126


The fact is that colonial and apartheid rule left a legacy

of unparalleled, arbitrary, unfair and grossly unreasonable

administrative action, both by government bodies and by

powerful public institutions. Through legislation, the

pillage and plunder which dispossessed South Africans in

the country of their birth was justified. In the process,

judicial review experienced its darkest hour as the powers

of the courts to pronounce on administrative action were

severely curtailed.



Our main challenge in the current legislative process was

to devise a framework in which public-sector bodies could

be accountable for their actions. In our new constitutional

dispensation, the right to administrative action has been

elevated to the level of a fundamental right. The lawmaking

process, therefore, requires even greater circumspection.



The control of public power must be subject to legal

limitations. There cannot be such a thing as absolute or

unfettered administrative power. The fact is, any power can

be abused, and the Bill before us is an effective measure

to ensure public accountability.
27 January 2000                               Page 85 of 126


The Promotion of Administrative Justice Bill sets out a

detailed code of fair administrative action. It determines,

in the first place, the substance of the right guaranteed

in section 33 of the Constitution. The Bill also advances

the principle of fairness by imposing a duty on all organs

of state, statutory bodies and Public Service institutions

to be mindful of the application and execution of policies

affecting the public.



The right to seek redress before a competent court or

tribunal imposes a positive duty on the public sector to

observe the tenets of legality, fairness and reasonableness

in all their actions. Our Government is committed to

effective administrative mechanisms which will help South

Africans enforce their constitutional rights. The

administrative apparatus must serve the people.



Before I conclude, let me take this opportunity to thank

the members of the justice portfolio committees from both

the National Assembly and the National Council of

Provinces, who sacrificed their holidays in order that we

could meet the constitutional deadline. I would also like

to thank the departmental officials, who also worked

tirelessly in drafting the Bills before us.
27 January 2000                               Page 86 of 126


I place the Bill before the House for consideration.

[Applause.]



Mr J L MAHLANGU: Hon Chairperson, Deputy Minister and hon

members, it is indeed an honour to address the Council on

this particular Bill.



Today is a milestone in the course of administrative

justice. In the past, as the Deputy Minister has indicated,

the state administration was called upon to carry out the

legal and institutional policies of a government set on

maintaining power through racial discrimination and

domination.



Keeping the state in a semipermanent state of emergency

ensured law and order. The adoption of far-reaching

legislative and administrative security measures was the

order of the day. All this was done in a legal system that

had no constitutional safeguards against government abuses

and no protection of fundamental human rights and

liberties.
27 January 2000                               Page 87 of 126


It is a fact that the history of administrative justice is

rudimentary in nature. It thus became abundantly clear that

the responsibilities lay with us.



The ANC Government knew that it had to embark on a radical

restructuring of social relations in the country. The goal

of the South African Government remains the same: to render

an open, accountable and democratic government which will

be to the benefit of all South Africans. Our purpose is

still to undo the apartheid structures and to attempt to

compensate for the suffering experienced by the majority in

the past. South African law was lamentably inadequate. We

came to realise that mechanisms would have to be developed

to hold the administration accountable to the public for

its actions.



The notion of democracy which forms the cornerstone of our

Government demands that there should be basic rights,

protection and government accountability to all in its

sway. The subject of reform and administrative justice is

politically controversial, but we do not avoid it. The ANC

has already, in its working document on a Bill of Rights

for the new South Africa, proposed a right to judicial
27 January 2000                               Page 88 of 126


review. We ensured that executive accountability was

protected in section 33(1) and (2) of the Constitution.



We are committed to bringing about the necessary degree of

administrative justice, through the law, to the new South

Africa. In terms of section 33(1) and (2) of the

Constitution, everyone has the right to administrative

action that is lawful, reasonable and procedurally fair,

and the right to written reasons. This Bill is the

personification of the provisions of the Constitution.

Section 33(3) requires that national legislation be enacted

to give effect to this right as set out in section 33(1)

and (2), and that provision be made for the review of

administrative action by a court or a tribunal.



The ANC is proud to say that it has fulfilled its

constitutional mandate. We have once again charted the way

forward. It is a fact that for the executive to reconstruct

South Africa's social relations so as to redistribute power

and work equitably, it will have to be empowered. The

interaction between democratic theory and executive

accountability is the backdrop against which the content of

this Bill must be seen.
27 January 2000                               Page 89 of 126


Our main aim is to increase participation by members of

society in the public institutions of democracy. By

enacting this Bill, we ensure that public decision-making

can be tested for rationality and for commitment to the

values entrenched in the Constitution. Marginalised and

disempowered communities such as rural women and the

unemployed would be better empowered to place their

concerns on a public agenda because of this Bill.



In closing, I want to use the words of Judge P N Bhagwati

at the Breakwaters conference in 1993:



 Let us not forget that we are at the crossroads of

 history. We have to build this new law, a law which is

 not static, but dynamic, a law which draws its sustenance

 from the past, but looks out into the future, a law which

 is ready to march forward in the service of humanity.



I would like to convey, once more, my appreciation to the

officials of the Department of Justice, the officials who

helped us to steer this boat through from the legislature,

as well as the members of the committee. [Applause.]
27 January 2000                               Page 90 of 126


Mr T S SETONA: Hon Chairperson, hon Deputy Minister, hon

members, ladies and gentlemen, the Bill before us seeks to

lay a foundation for just administrative action. It

advances the principle of fairness by imposing a duty on

administrators to act fairly, efficiently and effectively.

The overarching goal is to simplify and better the everyday

lives of our people.



The definition of administrative action seems to be a

concern to the DP. Administrative action is defined as any

decision taken or any failure to do so by an organ of state

or a natural or juristic person, which adversely affects

the rights of a person and has direct, external legal

effect. It gives effect to the right envisaged in section

33 of the Constitution. The test ``external legal effect''

has been included to make sure that the system is not too

onerous on administrators. Maladministration weakens rather

than strengthens the administration.



Contrary to the belief of the DP the power of the Minister

to designate magistrates' courts to deal with this matter

is not a foolish attempt by the ANC to derail the process

of democracy. This democracy is a result of the blood of
27 January 2000                               Page 91 of 126


our people, who fought to realise this dream. It will

always be our foundation, and will guide our governance.



The logic behind the clause is simple. Administrative law

has always been a science of a complex nature, causing

headaches to our learned colleagues on the Bench. The

successful implementation of the rights in this Bill

depends on them. With this provision, the magistrates will

be given the necessary training and skill to be able to

deal with a very technical field of the law. It is hoped

that this procedure will lead to an understanding of the

law, which will give effect to the rights outlined in the

Bill.



In order to ensure that good administration will be the end

result, the Minister's power emanates from the Constitution

itself. The President and the Minister of Justice have made

these appointments on several occasions. A good example is

the appointment of Judge Heath. These designations and

appointments by the Minister are within the ambit of proper

procedure. I do not think that I have to remind to DP that

these judges have been appointed by the Public Service

Commission through a transparent and open process.
27 January 2000                                Page 92 of 126


The Bill also extends the competency of the magistrates'

court to that of a court of review. Magistrates' courts

will now be accessible in terms of both costs and

proximity. The inclusion of ``reasonableness'' as a test,

and as a ground for reviewing all administrative acts, also

seems to be unacceptable to the DP. Our aim with this

introduction is the development of legal rights and

remedies to meet the challenges of administration in the

20th century. The test has been included to emphasise the

urgency and a need for a viable system of both empowerment

and accountability in a future South African executive.



The state of public administration demands this guidance,

as it is confronted with a host of problems in its day-to-

day operation. It places a duty on officials to correctly

apply their minds. The DP argues that the words

``materially and adversely'' as used in the Bill are

unconstitutional. The Constitution itself refers to the

word ``adverse''. The word ``material'' is used to ensure

that the administration is not held up with unnecessary

claims and constant litigation. This will result in poor

administration, which is not the aim of this Bill. The aim

is to make the law as practical as possible.
27 January 2000                               Page 93 of 126


For the first time there will be a measure of certainty in

this branch of our law. The provision of internal remedies

to be exhausted is an attempt to intervene in the creation

of an enormously complicated and wide field of inadequate

remedies. These provisions provide a sound basis for

practical application. This Bill and its approach to

empowerment and accountability is a clear model of what is

meant by democracy. The aim is the removal of barriers

preventing public access to administrative review, as well

as the generating of public awareness and education.



We have been charged with the responsibility of

accelerating change, strengthening the institutions of

governance and enhancing the quality of service delivery.

We want to say to all who reject this Bill that the time

has come for the cornerstone of our democracy, the public

interest, to be revisited and advanced in pursuance of our

constitutional mandate.



We, as the elected government, will not disappoint our

people in their expectations. This Bill is an irrefutable

indication that the tide has turned. It breaks new ground

and brings hope to our people. [Applause.]
27 January 2000                               Page 94 of 126


Mr M D DIKOKO (Salga): Chairperson, hon Deputy Minister of

Justice, the Minister in absentia, hon members of the NCOP

and special delegates, maybe, firstly, I should state who I

am. My name is Matshediso David Dikoko, and sometimes

people confuse my name with that of Eugene De Kock.

[Laughter.] But fortunately some of those in my

constituency call me Nandos to emphasise the difference.



Let me commence by wishing the Chairperson as well as

members of the NCOP best wishes for the year 2000, which is

the 21st century, the new millennium and, most importantly,

the African century. It is a privilege for me to address

this House on behalf of organised local government on such

an important piece of legislation as the Promotion of

Administrative Justice Bill.



I was not personally participating in the committee when

the Bill was considered owing to the fact that I was

participating in the Promotion of Equality and Prevention

of Unfair Discrimination Bill. However, as part and parcel

of Salga, I think my colleague has stated the process which

we normally follow. I am part and parcel of the structure

which considered this Bill.
27 January 2000                                 Page 95 of 126


We, as Salga, support the Bill, in brief. The Bill will

have a huge impact on the daily activities of

municipalities. For us, the definition of administrative

action is a matter of fundamental importance. We have

observed and participated with interest in this one

particular matter. We are satisfied with the definition as

contained in the Bill.



The Bill could not have done better than to exclude the

executive functions of the municipality from the provision

which defines certain functions as administrative actions.

As members know, municipalities take far-reaching decisions

such as the cutting of electricity, disaster management,

and zoning. The list is too long to go through. What I am

trying to illustrate is that if these issues were to be

classified as administrative actions and subject to the

provisions of this Bill, we in local government could

render governance completely impossible.



We are, however, aware that the definition of an

administrative action as it stands will continue to be

challenged in court, but we say we are prepared to cross

that bridge when we reach it. We have satisfied ourselves

that this Bill is sufficiently sensitised about local
27 January 2000                                  Page 96 of 126


government issues. In that light we say we are

wholeheartedly in support of the Bill being enacted.



Lastly, we wish to thank all members of both the National

Assembly and the NCOP who sacrificed their December

vacation to process this Bill in order to meet the

deadline. We want to convey special thanks to the Minister,

the Deputy Minister, the chairperson, the hon Mr Mahlangu,

Adv De Lange and Councillors Madlala and Nyembezi, who

participated in and contributed to the deliberations on

this Bill. [Applause.]



Mnr P A MATTHEE: Mnr die Voorsitter, administratiewe reg,

miskien meer as enige ander vertakking van die reg, gee

lewe en betekenis aan regeringsoptrede, en in die lig van

hierdie wetsontwerp voor ons vandag kan ek ook sê, aan 'n

gebrek aan regeringsoptrede in sekere gevalle. (Translation

of Afrikaans paragraph follows.)



[Mr P A MATTHEE: Mr Chairman, administrative justice,

perhaps more so than any other branch of justice, gives

life and meaning to action by the Government and, in the

light of this Bill before us today, I may also say a lack

of action by Government in certain instances.]
27 January 2000                                  Page 97 of 126


By not only regulating the day-to-day affairs of the state,

but also defining that essential relationship between the

state and the citizens as well as other persons residing

within its territory, it makes Government concrete and

real.



Terselfdertyd gee dit ook uiting aan die demokratiese

waardestelsel wat ons hele grondwetlike bestel onderlê.

Administratiefreg moet effek gee aan die doelstellings en

ideale van die moderne demokrasie, naamlik deursigtigheid,

verantwoordelikheid, menswaardigheid, gelykheid, vryheid en

deelname. In hierdie verband is administratiewe

geregtigheid die sleutel. Dit veronderstel nie net 'n

nakoming van reëls en prosedure nie, maar ook 'n

ingesteldheid wat te alle tye redelikheid en regverdigheid

vooropstel.



Hierdie wetsontwerp het sy oorsprong in artikel 33 van ons

Grondwet, wat bepaal dat elkeen die reg het op

administratiewe optrede wat aan drie vereistes voldoen. In

die eerste plek moet dit regmatig wees. Tweedens, dit moet

redelik wees. In die derde plek moet dit prosedureel billik

wees. In artikel 33(2) word ook bepaal dat elkeen wie se
27 January 2000                                  Page 98 of 126


regte nadelig geraak is, geregtig is op die verskaffing van

skriftelike redes.



Ten spyte daarvan dat hierdie wetsontwerp onses insiens

sekere van die regte in die Grondwet verskraal, soos ek sal

aandui indien die tyd dit toelaat, is ons van mening dat

hierdie wetsontwerp 'n baie belangrike en broodnodige

bydrae maak tot die uitbouing van 'n doeltreffende,

deursigtige en verantwoordelike demokrasie. Daarom sal ons

in die Nuwe NP, ten spyte van verskille en probleme met

sekere van die klousules, die wetsontwerp steun.



Ek wil ook graag van die geleentheid gebruik maak om die

amptenare van die Departement van Justisie met wie ons baie

lang ure deurgebring het terwyl baie ander vakansie gehou

het, Advv De Lange en Labuschagne en ook die

adjunk-direkteurgeneraal, mnr Rutlin, hartlik bedank vir

hul harde werk. Ek dink nie ons besef altyd werklik hoe

gelukkig ons is om regsgeleerdes van hierdie kaliber, wat

ook spesialis-wetsopstellers is, in ons Departement van

Justisie te hê nie. Ons moet hulle miskien baie meer prys

en hulle gelukkig hou waar hulle is. [Applous.]

(Translation of Afrikaans paragraphs follows.)
27 January 2000                                  Page 99 of 126


[At the same time it also gives expression to the

democratic system of values that forms the basis of our

entire constitutional dispensation. Administrative justice

must give effect to the objectives and ideals of the modern

democracy, namely transparency, responsibility, dignity,

equality, freedom and participation. In this respect

administrative justice is the key. This presupposes not

only following rules and procedure, but also an attitude

that puts fairness and justness first at all times.



This Bill has its origin in section 33 of our Constitution,

which provides that everyone has the right to

administrative action that complies with three

requirements. In the first instance it must be lawful.

Secondly it must be fair. In the third instance it must be

procedurally fair. In section 33(2) it is also provided

that everyone whose rights are detrimentally affected is

entitled to being supplied with reasons in writing.



In spite of the fact that this Bill in our view diminishes

some of the rights in the Constitution, as I shall indicate

if time allows, we are of the view that this Bill makes a

very important and essential contribution to the expansion

of an effective, transparent and responsible democracy.
27 January 2000                              Page 100 of 126


Therefore we in the New NP will, in spite of differences

and problems in respect of some of the clauses, support the

Bill.



I would also like to take the opportunity to convey a

heartfelt word of thanks for their hard work to the

officials of the Department of Justice, with whom we spent

many long hours while many others were on holiday,

Advocates De Lange and Labuschagne, and also the deputy

director-general, Mr Rutlin. I do not think that we always

realise truly how fortunate we are to have lawyers of this

calibre who are also specialist legal draftsmen in our

Department of Justice. Perhaps we should praise them much

more and keep them content where they are. [Applause.]]



I would also like to thank our chairman, Mr Mahlangu, who

did a very good job, together with Mr De Lange of the

National Assembly. He really did us as the National Council

of Provinces proud in that committee.



The Bill defines administrative action as a decision taken,

or a failure to take a decision, which adversely affects

the rights of a person. This incorporates the right to

administrative justice contained in the interim
27 January 2000                              Page 101 of 126


Constitution, but fails to appreciate the fact that the

right in section 33(1) of the 1996 Constitution is, in

certain respects, wider than that contained in the interim

Constitution.



The rights in the interim Constitution were only applicable

to persons whose rights, legitimate expectations or

interests were adversely affected by administrative action,

while it is clearly spelt out in our present Constitution

that everyone has that right. The definition of

administrative action could therefore, because of this

clear distinction between the interim Constitution and the

final Constitution, run the risk of being unconstitutional.



The legislation contemplated in section 33(3) may not

permit an overriding threshold limitation on this right to

lawful, reasonable and procedurally fair administrative

action. Unfortunately, we also do not agree with clause 3

of the Bill, which provides that the right to written

reasons should be limited where the right is ``materially

and adversely'' affected. We are saying that the right

should be limited only where the right is ``adversely''

affected.
27 January 2000                              Page 102 of 126


We also have a concern with regard to the departure from

the test of unreasonableness as provided for by the

Constitution. This Bill introduces a stricter test which

could amount to a standard of gross unreasonableness, which

we believe was not the intention.



As I have said, there are a few problems that we still

have, but we are happy that we can support the Bill as a

whole, and we really hope and trust that this Bill will

play an important role also in building up administrative

justice in our country. [Applause.]



Mr L G LEVER: Chairperson, hon Deputy Minister and

colleagues, the provision of just administrative action is

central to the Government fulfilling its obligations to its

citizens. In terms of our constitution, every one is

entitled to administrative action which is lawful,

reasonable and procedurally fair. This ought to be the

starting point for any legislation governing administrative

action.



The Bill before us fails at the first hurdle. The right to

administrative action is narrowed and qualified in the

definitions. The right to just administrative action is
27 January 2000                              Page 103 of 126


further qualified in clauses 3 and 4 of the Bill. A citizen

is always entitled to administrative action which is

lawful, reasonable and procedurally fair. There is no

justification for qualifying the right in the way this Bill

seeks to do.



The Bill provides a definitive list of the grounds for

judicial review. The list excludes probably the most

obvious ground for such review, and that is an unreasonable

administrative action. Instead, the test for judicial

review is set far higher. At present, the test that has to

be satisfied for judicial intervention under this Bill is

that the administrative action is so unreasonable that no

reasonable person could have acted in that manner. There is

no justification for setting the threshold that high when

it comes to grounds for judicial review, especially if one

has regard for the manner in which the right is stated in

section 33(1) of the Constitution. In terms of section

33(1), every one has the right to administrative action

that is lawful, reasonable and procedurally fair.



At this juncture, I wish to point out to the Deputy

Minister that the chairman of the committee of the National

Assembly said in the committee that the test of gross
27 January 2000                              Page 104 of 126


unreasonableness was part of our common law, and wanted to

know why it should not be applied in this Bill. It was only

once the DP had pointed out the historic irony of such an

approach that this was abandoned by the governing party. On

the positive side, the Bill provides that a failure to make

a decision is a ground for judicial review. This is a

welcome new approach.



However, another fundamental flaw in the Bill is that it

provides that the hon the Minister of Justice must

designate specific magistrates to hear cases involving

administrative action after consultation with the

Magistrates Commission. Assuming that the hon the Minister

never abuses his position, this provision in the Bill is

still an unhealthy one to have in a democratic state,

because it creates the impression that magistrates

presiding in cases involving administrative action are

handpicked to favour this administration. However misguided

this impression might be, it will still undermine the

independence of the judiciary. Magistrates who preside in

such cases will be seen to be partial and the public at

large will lose confidence in the courts.
27 January 2000                              Page 105 of 126


One assumes that people who have been appointed and

elevated to preside as judges and magistrates are suitably

qualified to deal with any matters that may be brought

before them.



If this is not the case, then it is a subject for another

debate. Leaving such issues aside for the moment, if it is

so clear that it is a matter of training, it would have

been prudent for the Bill to provide that on completion of

the prescribed course and on passing a prescribed exam, any

magistrate would be competent to preside in any matter

involving administrative action.



Due to the lack of foresight by providing that magistrates

will be designated by the Minister, however good the

intentions of the Minister are in giving effect to these

provisions in the Bill, the negative perception will

remain. In the context of the debate on the Promotion of

Equality and Prevention of Unfair Discrimination Bill in

the National Assembly, the hon the Minister himself used

the term ``Penuell's poodles'' with reference to the

judiciary. This was broadcast on the main SABC news

bulletin, perhaps somewhat out of context. Sadly, this does
27 January 2000                              Page 106 of 126


not help matters, but merely reinforces the negative

perception that the public already has in that regard.



For the reasons set out in this brief address, the DP is

unable to support this Bill. We do not believe that it

really gives effect to the citizens' right to reasonable

and procedurally lawful administrative action.



Mrs C NKUNA: Chairperson, Deputy Minister for Justice and

Constitutional Development, hon guests, members, ladies and

gentlemen, the Bill before us is a triumph for democracy -

the democracy we died for, the democracy we fought for, the

democracy we struggled for. It shows that the Government of

the day believes that there must be a system to check on

the abuse, misuse and overuse of power by the authorities.



The object of the Bill is to promote an efficient

administration and good governance, and to create a culture

of accountability, openness and transparency in the

exercise of public administration. The crux of the Bill is

the right to administrative action that is lawful,

reasonable and procedurally fair, as well as good reasons

for such action, as contemplated in section 33 of the

Constitution.
27 January 2000                              Page 107 of 126


Clause 1 contains a list of definitions, of which the most

important, surely, is that of administrative action.

Administrative action means any decision or failure thereof

by an organ of state or a natural or juristic person, the

emphasis being on the function performed and not on the

organ performing it. The impact of this right to fair

administrative action on the lives of our people is

immeasurable. It amounts to the implementation of the

restoration of human dignity, thus creating a better life

for all. The child on welfare waiting for payment to buy

food will now have recourse if procedure is not followed.



Clause 3 sets out the right to procedurally fair

administrative action and formulates clear guidelines for

all administrative acts. It provides for the steps that

must be followed in order to give effect to the right

envisaged in the Bill. The Bill then introduces

reasonableness as a ground for review in all administrative

actions. These provisions have the effect of introducing

certainty into the administrative system and the legal

sphere.



In terms of clause 5, a person has a right to reasons being

furnished for administrative actions or failure thereof.
27 January 2000                              Page 108 of 126


The Bill goes even further in determining that reasons may

be furnished automatically, without a request from the

aggrieved party.



Clause 6 specifies the grounds for judicial review of an

administrative action. In order to address the plight of

the poor and of people in inaccessible rural areas,

magistrates' courts have been accorded judicial review

competency.



The ANC's commitment to open and accessible government once

again shines through in this provision. A classic example

of that is a person in the Northern Province who will now

be able to exercise his or her rights, because the court

has the competency to review procedures.



Clause 7 sets out the procedure for review, and clause 7(3)

provides that the rules board must set up a procedure for

judicial review. In terms of clause 8, a court can grant

specific orders in such review proceedings. Section 9 deals

with the time or periods that have been established.

Because of this, the Bill is more accessible in rural areas

and marginalised communities.
27 January 2000                              Page 109 of 126


Clause 10 empowers the Minister to make regulations in

certain circumstances, some of which are mandatory. Of

importance are the regulations which can be made in regard

to the procedures followed by administrators. Clause 10(e)

makes provision for the Minister to establish a code of

good administrative conduct for administrators. This in

itself is an aid to assist in the streamlining and

standardisation of procedures.



The Bill is the key to better administration and service to

our people. It will bring about equality and equity, which

are so long overdue. The Bill is indeed a guideline for

administrators on the manner in which their work should be

performed. [Applause.]



Mr K D S DURR: Chairperson, I would like to congratulate my

hon colleague who has just sat down on making an excellent

contribution. I thank immediately our Chairman for his

really efficient, pleasant and helpful co-operation in

making a difficult job pleasant for us in the select

committee. He was a very able chairman who was, in turn,

very ably assisted by very talented officials, and we thank

him very much, not only for the work he did, but also for

the attitude and the pleasantness he displayed.
27 January 2000                              Page 110 of 126


We support the Bill to effect the right to administrative

action that is lawful, reasonable and procedurally fair and

the right to be given written reasons. We do not want to

repeat all the arguments that have been given, but may I

say that we approached the Bill with some caution as

Christian democrats, because we believe we need to balance

the desirability of administrative justice with the equally

essential ability of the Government to govern effectively.

That remains uppermost in our minds.



Without a good public service, which distinguishes us from

many countries in Africa, one cannot have delivery. We are

mindful that the Government already has a difficult task in

many respects. The Public Service is already overstretched,

and having every decision or nondecision questioned could

add an additional burden to a task which is already very

difficult.



Nevertheless, the ACDP strongly welcomes the new grounds of

review, namely that indecision or failure to take decisions

are grounds for review, because we know that that is often

largely part of the frustration the public feels when

dealing with Government. However, all of us in this House,

including the Minister, have to learn and understand very
27 January 2000                              Page 111 of 126


well that it sounds wonderful now - the words are wonderful

- but the task ahead is a very tough one for the Minister.

There is a lot of work that has to be done to implement

these measures effectively. It is a burdensome and

difficult task and it will be costly.



When adverse complaints begin to flow, as indeed they will

- and we hope they will, because that is the intention of

the Bill - and when they become publicised, often with

unavoidable attendant embarrassment to the Government, then

the whole thing, in the cold light of morning, will not

look as attractive as it does to us here today.

Nevertheless, it is an essential and important right which

we are endorsing by this measure, and we support it

strongly.



We also had minor textual problems, but we have dealt with

those in the committee and I do not want to repeat them

now. This is a Bill of which we can be justifiably proud,

but which will also place many demands upon the Department

of Justice, the courts and the Public Service in general,

and it brings much consequential work in creating a new

culture in the Public Service and setting up new procedures

in order to give effect to the Bill. We wish the Minister
27 January 2000                              Page 112 of 126


and the Deputy Minister well, and they should know that

they can rely on our support. We support the Bill.

[Applause.]



Mr R M NYAKANE: Mr Chairperson, the Bill defines

``administrative action'' as any decision taken or failure

to take a decision by an organ of state when exercising a

power in terms of the Constitution or a provincial

constitution, or exercising a public power or performing a

public function in terms of any other legislation.



The Bill will definitely bring relief to the masses on the

ground in the event that an act of an administrative organ

constitutes a culpable encroachment on the rights of the

subject, which may result in loss to the subject concerned.

The affected persons will therefore have recourse to the

provisions of this Bill.



I wish to share with this Council the experience I had in

the Public Service. What I have observed - this is a fact

and not just a theory or a philosophy that I am arguing

about - public servants who were summarily demoted or

discharged from the Public Service due to their party-

political passions. This was done without giving them a
27 January 2000                              Page 113 of 126


chance to be heard. I know of a instance where ministerial

functions were suspended in a public office because those

in charge were on leave or sick. Think of the cost and time

of people travelling from peripheral villages to the public

offices. Administrative justice is doomed under these

circumstances.



I know of a situation where an official of an organ of the

state used a public office to enrich himself - this time it

was not ``herself''. Hence we came to learn, in the culture

of public service practice, words such as tjotjo or shaya

manzi [to bribe]. What happens here is that some of the

public servants practise extortion, where a member of the

public has to pay a certain amount of money in order to get

preference or a certain service. This definitely does not

promote public service.



The Bill will, undoubtedly, provide an effective instrument

that will curb the propensity for administrative injustice.

After all, no man is infallible. On the basis of these few

arguments and, of course, taking into account the time

allocated to me, I wish to support this Bill on behalf of

the UDM. [Applause.]
27 January 2000                              Page 114 of 126


Mr M E SURTY: Chairperson, Comrade Nkuna has indicated that

we have triumphed today. We celebrate because we have

triumphed. What is this celebration all about? It is a

celebration of the fact that, for the first time - not only

in this country, but in the world - we have enshrined a

right to administrative justice in a Bill of Rights.



We celebrate, because today we are implementing a right

which has never been qualified as such before. I think that

this celebration must be seen against the decisions that

were taken in the past; those arbitrary, condescending,

paternalistic, uncaring decisions which banished our people

to the wilderness, to desperate areas; those decisions that

precluded us from institutions of learning and from seeking

gainful employment, those decisions that generally

prohibited us from advancing and improving our lot as a

people. This is our celebration as comrades and members of

the Council.



I have listened attentively to what the DP has said. It is

not what they said that is important; it is what they did

not say. What they failed to say is that this Bill, for the

first time, codifies administrative law. What they did not

say is that this Bill brings administrative justice to our
27 January 2000                                 Page 115 of 126


people by locating it within the magistrates' courts. What

they did not say is that even if a decision of a magistrate

is unfair, for any reason whatsoever, even as a result of

what they allege is manipulation, that matter can be taken

on review or on appeal to a higher court. What they did not

say is that, notwithstanding the provisions of this Bill,

every citizen has a right, in terms of the common law, to

rely on the provisions of the Constitution.



This legislation does not override the provisions of the

Constitution. It is this silence and lack of clarity on the

part of the DP that seeks to confuse the people. And the

opportunities for the confusion could only occur within a

certain sector.



I think our people, by and large, have understood that the

ANC has contributed significantly to a caring democracy - a

democracy which is concerned about decisions that are

taken, not only at national Government level, not only at

provincial government level, but in every sphere of

government. They are concerned about the decision about the

allocation of a stand and about roads that have to be

tarred. This allows a person to seek redress.
27 January 2000                              Page 116 of 126


I think what the DP also seeks to do, and what it fails to

speak about, is the fact that the Constitution, our supreme

law in this land, entitles the Minister responsible for

justice to appoint judges. What we are talking about in

this legislation is the designation of magistrates

appointed not by the Minister but by an independent

magistrates' commission.



Obviously, the consequences would be that in order to

effect or efficiently administer a particular area of law,

magistrates would have to be skilled. The Minister would

then be rightly entitled to appoint those competent and

skilled magistrates to do a particular task which is rather

complex, and which is new to this country. This is not

spoken about.



This failure and silence to talk about the merits of a

piece of legislation which will significantly alter the

lives of our people reflects an agenda which is somewhat

sinister on the part of the DP. I see there is a marked

difference, because if we have listened to what Mr Matthee

was saying, we will agree that he was speaking about the

positive aspects of the legislation, its achievements and

measures that never existed previously in this country.
27 January 2000                                 Page 117 of 126


It is rather surprising that this comes from a member who

was previously in a government that was oppressive and

repressive. And yet we hear from a member of a party which

purports to be liberal a certain silence about the positive

aspects of this legislation. Its resistance and opposition

to support an instrument that is so important for the

wellbeing of our country, for our social justice and the

promotion of our administrative justice, smacks of

arrogance and a lack of concern about the lot of people in

general.



There has also been talk about the fact that this Bill does

not refer to unreasonableness. Certainly, the test is in

this Bill. When we say that if an action is so unreasonable

that it cannot be regarded as reasonable by an ordinary

person, we are talking about an objective reasonability

test. In other words, in the context of that particular

action, a reasonable presiding officer will have to judge

if this action by this functionary is so unreasonable that

it cannot be regarded as reasonable. Now if that is not a

reasonability test, then I do not what it is.



In addition, the DP fails to mention that there is a list

of other factors which could be taken into account by the
27 January 2000                              Page 118 of 126


court such as whether there was any undue malice, whether

there was any prejudice, whether there was any undue

influence and whether there was a contravention of the law.

But these are somehow lost in this deafening silence on the

part of the DP. What do they seek? They seek a technical

matter which they cannot support in law.



In law, the constitutionality of this Bill can be tested,

and will be tested. If it does limit the provisions of the

Constitution, surely, the courts could decide about it. Yet

there is always the remedy of the Constitutional Court.



What the DP fails to see further, is the fact that a person

has a choice. If he or she does not wish to go to the

magistrates' court, then he or she could go to the Supreme

Court. One is not deprived of an alternate remedy in terms

of the common law, and this is what Mr Matthee tried to

explain to this particular House in our informal briefing.

It has merit, and I certainly believe that this, here, is a

feeble attempt to abdicate one's responsibility to

transform society. It is what Mr Moosa spoke about - an

attempt to thwart social engineering for the benefit of our

people. [Applause.]
27 January 2000                              Page 119 of 126


The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL

DEVELOPMENT: Mr Chairperson, my colleagues have argued the

cases made for and against the legislation that lies before

us, and what I find so ironic is that when the DP is

confronted by the merest prospect of change and

transformation, they resort to innuendo and posturing.



The hon Lever refers to the committee Chairperson's

proposal of the ``gross unreasonableness'' test. The

chairperson never proposed that. Just for the record, Mr

Lever's rendition of events is so far from the truth that

it is almost laughable, and it speaks of small-minded

malice, which is really quite sad.



The term ``gross unreasonableness'' was never proposed by

our committee chair. The term was submitted by a public

contributor to the process and it was inserted into one of

the drafts as a possible option. It was equally speedily

dropped by the entire committee. Mr Lever knows this to be

the truth, as it was so revealed in the National Assembly

yesterday. Shame on you, sir.



To add insult to injury, the hon Lever makes reference to a

quotation that he admits is already out of context, and in
27 January 2000                                 Page 120 of 126


so doing puts it even further out of context. It is pure

obfuscation. The real issue is that the DP is not yet ready

for change or transformation, and they should come to terms

with that. We do not need to.



We have brought to this House two pieces of important

legislation today, which are about change and

transformation. The administrative justice Bill is an

important piece of legislation for all of us and for

processes that will affect many of us, and I have to call

upon those who have decided not to support the Bill to look

to themselves as to why this cannot happen. This is an

important piece of legislation, which will form the basis

of a lot of the practices around this issue that will

affect the lives of many, and I must ask members to

consider how important transformation is to the lives of

the many, not just the few.



I would like to thank this House for hearing me out today,

the committee that worked on this Bill and the departmental

officials for their contributions to this process. I think

that we have put a very good piece of legislation before

this House, and we will test it by putting it to the vote.

[Applause.]
27 January 2000                               Page 121 of 126


Debate concluded.



Bill agreed to in accordance with section 75 of the

Constitution (Democratic Party dissenting).



The Council adjourned at 17:11.

                          __________



        ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS



ANNOUNCEMENTS:



National Assembly and National Council of Provinces:



1.   The Speaker and the Chairperson:



     (1) The Minister for Safety and Security on 19 January

         2000 submitted a draft of the Firearms Control

         Bill, 2000, and the memorandum explaining the

         objects of the proposed legislation, to the Speaker

         and the Chairperson in terms of Joint Rule 159. The

         draft has been referred by the Speaker and the

         Chairperson to the Portfolio Committee on Safety

         and Security and the Select Committee on Security
27 January 2000                                 Page 122 of 126


         and Constitutional Affairs, respectively, in

         accordance with Joint Rule 159(2).



     (2) The Minister of Health on 24 January 2000 submitted

         a draft of the Chiropractors, Homeopaths and Allied

         Health Service Professions Amendment Bill, 2000,

         and the memorandum explaining the objects of the

         proposed legislation, to the Speaker and the

         Chairperson in terms of Joint Rule 159. The draft

         has been referred by the Speaker and the

         Chairperson to the Portfolio Committee on Health

         and the Select Committee on Social Services,

         respectively, in accordance with Joint Rule 159(2).



2.   The Speaker and the Chairperson:



     (1) The following paper was tabled and is now referred

         to the Portfolio Committee on Welfare and

         Population Development and to the Select Committe

         on Social Services:



         Report of the Department of Welfare and Population

         Development for 1998-99 [RP 179-99].
27 January 2000                                    Page 123 of 126

National Council of Provinces:



1.   The Chairperson:



     (1) The following papers have been tabled and are now

         referred to the relevant committees as mentioned

         below:



         (i)      The following papers are referred to the

                  Select Committee on Education and Recreation:



                  (a) Report of the Auditor-General on the

                      Financial Statements of the University of

                      the North West for 1997.



                  (b) Report of the Auditor-General on the

                      Foundation for Education, Science and

                      Technology for 1997-98;



         (ii)     The following paper is referred to the Select

                  Committee on Economic Affairs:
27 January 2000                                 Page 124 of 126


                 (a) Report of the Auditor-General on the

                     Financial Statements of the Council for

                     Mineral Technology for 1998-99.



          (iii) The following paper will be referred to the

                 Select Committee on Social Services:



                 (a) Report of the Auditor-General on the

                     Financial Statement of Vote 16 - Health

                     for 1998-99.



          (iv)   The following paper is referred to the Select

                 Committee on Local Government and

                 Administration:



                 (a) Report of the Auditor-General on the

                     Accounts of the Rustenburg-Marico

                     Regional Services Council for 1993-94.



TABLINGS:



National Assembly and National Council of Provinces:



Papers:
27 January 2000                               Page 125 of 126


1.   The Minister of Arts, Culture, Science and Technology:



     (1) Statutes of the International Centre for the Study

         of the Preservation and Restoration of Cultural

         Property (ICCROM), tabled in terms of section

         231(3) of the Constitution, 1996.



     (2) Explanatory Memorandum to the Statutes of the

         International Centre for the Study of the

         Preservation and Restoration of Cultural Property

         (ICCROM).



     Referred to the Portfolio Committee on Arts, Culture,

     Science and Technology in terms of Rule 308 and to the

     Select Committee on Education and Recreation.



2.   The Minister of Trade and Industry:



     (1) Report of the Board for Manufacturing Development

         for 1998.



     (2) Report of the Board on Tariffs and Trade for 1998.
27 January 2000                               Page 126 of 126


     (3) Report of the Department of Trade and Industry for

         1997-98.



     (4) Report and Financial Statements of the Industrial

         Development Corporation of South Africa, Limited

         for 1998-99.



     Referred to the Portfolio Committee on Trade and

     Industry and to the Select Committee on Economic

     Affairs.



3.   The Minister for Safety and Security:



     (1) Regulation R 1550 - National Instruction 7/1999

         regarding Domestic Violence published by the

         Department of Safety and Security in terms of

         section 18(3) of the Domestic Violence Act, 1998.



     Referred to the Portfolio Committee on Safety and

     Security and to the Select Committee on Security and

     Constitutional Affairs.

				
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