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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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