HOME AFFAIRS PORTFOLIO COMMITTEE
30 October 2000
COMMITTEE REPORT ON WHITE PAPER ON INTERNATIONAL MIGRATION
Chairperson : Mr A Mokoena
Relevant Documents :
Penultimate Report on the White Paper on International
Migration
Response of Inkatha Freedom Party to the Penultimate Report
UDM comments on the Penultimate Report
Democratic Alliance draft response to the Penultimate Report
Public Service Commission letter to Mr Mokoena
Letter from Mario Ambrosini to Mr Mokoena
Critique of the DA response to the Penultimate Report
Critique of the IFP response to the Penultimate Report
Critique of the UDM response to the Penultimate Report
SUMMARY
The Chairperson critiqued the written responses of the
IFP,UDM and Democratic Alliance to the Penultimate Report on the
White Paper on International Migration. The Chairperson expressed
the view that it was not only the function of the Portfolio
Committee to pass legislation but it also had to be mindful of
the constitutionality of the procedures being employed in the
process of passing legislation. He believed that the Department
had completely ignored the parliamentary committee in the various
stages of policy and legislation formulation.
The committee discussed the letter from the Special Advisor to
the Minister requesting removal of criticisms levelled against
him in the Penultimate Report which he regards as defamatory.
The ability of a Portfolio Committee to summons the head of a
department (rather than the Minister) to appear before a
parliamentary committee was confirmed in a letter from the Public
Service Commission. This is pursuant to the refusal by the Home
Affairs Minister for the Director General to appear before the
Home Affairs Portfolio Committee.
MINUTES
Committee’s Penultimate Report on International Migration
White Paper
The Chairperson gave a personal critique of the written responses
of the IFP, UDM and Democratic Alliance to the Penultimate
Report.
Chairperson’s Critique of the IFP response
The Chairperson complained that the IFP did not recognise the
constitutional role of this parliamentary committee. He referred
the members to the second page of the IFP document, which states
that ‘the Minister approached the Committee to
request its inputs along with all other public inputs.’ He
described this as an erosion of democracy as the Committee simply
had to queue up with the rest of the public to give its input. He
stated that this clearly violated the principle that the
Committee serve as overseers. Reducing the committee’s
powers to this level made it very difficult for the Committee to
uphold the Constitution. He stated that the oversight role of
Parliament cannot be taken away by the Minister. Infringing on
the separation of powers amounted to a violation of the
Constitution. He also criticised the fact that parliamentary
involvement of the Portfolio Committee was described as an abuse
of power. He described their document as being defensive as it
focussed on defending the Minister who was IFP. Minister
Buthelezi should not be viewed as an IFP Minister but as a
Minister representing the country.
Discussion
Ms Van Wyk (UDM) interrupted by saying that the critique
of the response was prepared by the chairperson and not by the
committee. She stated that it was more important that members
gave their input instead of just being presented with a one-sided
opinion by the chairperson.
The Chair responded that he was merely outlining his viewpoint
and that the members would be making the actual decisions.
Chairperson’s Critique of the UDM response
He described the UDM response as being very superficial and
stated that it was clear that they still do not know what the
issues are.
Discussion
Ms Van Wyk interjected that these were the Chair’s
personal opinions and asked why only he was being given the
opportunity to give an opinion.
The Chair said that they would receive the opportunity once he
had finished. He continued with his critique, pointing out that
the UDM’s submission that the head of state be called in to
intervene in order for the process to move forward , was
outrageous as the issue involved parliamentary procedure.
Ms Van Wyk interjected that she had not asked for the President
to intervene and requested that the Chair reflect her document
correctly.
The Chair agreed and apologised stating that he had mixed up her
conclusions with that of the Democratic Alliance. The Chair noted
that he had asked for responses on the 20th already
and had been informed that there were no responses by that date.
Only subsequently had the responses started to trickle in. He
then admitted that his critique was subjective but stated that
members now had the opportunity to give their opinions.
No further discussion took place.
Powers and Duties of a Director General
The Chairperson had requested that the Public Service
Commission clarify the Powers and Duties of a Director General
and whether a head of a department is accountable to Parliament
and can be summonsed by a parliamentary committee to give
evidence before it. Prof Sangweni confirmed that this is so in
accordance with Rule 138(a) of the National Assembly Rules.
The Chair explained the context in which the duties of the
Director General of the Department was being discussed. He stated
that he had wanted to call the DG to address the Committee but
had been prevented by the Minister from doing so. The Minister
said that it was unnecessary to call the DG as he could answer
any questions the committee had. The Chair asserted that this
amounted to an infringement of their rights and a violation of
the principle of separation of powers.
The Chair stated that he had asked the Constitutional Court to
send a judge to explain the duties of the Committee. Their
response was that he should approach the Parliamentary law
advisors to deal with the issue pertaining to the powers and
duties of the legislature versus the executive.
He continued that the IFP document had listed 17 stages of policy
formulation that the Department had followed but had completely
failed to mention the role of the Committee. It appeared as if
the Department had done everything and there was now no need for
the Committee to do anything.
Letter from Special Advisor to the Minister, Mr Ambrosini
The Chair referred to this document and explained that as a
result of his criticisms of Mr Ambrosini in the Penultimate
Report, the latter had now threatened to institute legal action
against him. Mr Ambrosini felt that his job was being threatened
as a result of Mr Makoena’s criticisms.
Discussion
Prince Zulu (IFP) noted that they were now 45 minutes
into the meeting and that nothing had been discussed except the
Chair’s personal opinions. He asked when the parties who had
made submissions would be allowed to read out their own
responses.
The Chair responded that the members would receive the
opportunity to respond on Wednesday, 1 November 2000.
Prince Zulu enquired whether Mr Mokoena was signing letters on
behalf of the Committee or on his own behalf. He referred to the
letter addressed to Mr Ambrosini in which the Chairperson had
started using the word ‘I’ but had then later switched
to the plural ‘we’ as if he was speaking on behalf of
the Committee. Prince Zulu asked that the Chair state clearly in
which capacity he is acting (especially since this letter had
never been discussed with the Committee)
The Chair conceded that Prince Zulu was correct in his
observation but stated that he had not meant to imply that he was
speaking on behalf of the Committee. He explained that his
tendency to use the word ‘we’ was merely a habit. He
stated that he would proceed in this matter in his personal
capacity if the Committee did not support him.
Ms Van Wyk asked how they would take the process further. She
stated that the Penultimate Report needs to be finalised and the
Chair’s comments were not taking the matter any further. She
recommended that the Committee go through the Report page by
page.
The Chairperson agreed that this would have been ideal but that
time did not allow for it. He stated that it could be dealt with
in this way on Wednesday. He pointed out that the way the parties
had responded had made such an approach difficult. For example,
the UDM had only responded to certain paragraphs while he would
have preferred that it had been dealt with on a point by point
basis.
He gave credit to the IFP and the way in which they had dealt
with the document but stated that he could not accept it without
criticising it. He stated that despite his criticisms, the
document would accompany the main report when it is presented to
Cabinet. He stated that the possibility then exists that Cabinet
will accept points raised by the Minority and reject those of the
Majority report.
Recording of Committee Meetings
Mr Kalako (ANC) then brought it to the attention of the
committee that the meeting was being recorded [by a member of the
public] and asked whether this was allowed.
The Committee secretary explained that this usually only took
place at the request of the committee.
The Chairperson stated that one could not record members without
their permission and that Mr Ambrosini (who had at this stage
joined the meeting) was thus not allowed to record the
proceedings without the knowledge of the members. It was unclear
whether the Chair knew for a fact that the tape recorder belonged
to Mr Ambrosini.
Another member observed that Mr Ambrosini’s cell phone was
on and said that this should not be allowed as anyone could be
listening in on the proceedings.
Mr M Waters (DP) commented that this discussion indicated how
relationships had deteriorated. He could not see how the
recording was a problem as these meetings were open to the public
in any case.
The Chair responded that it was relevant since Mr Ambrosini was
threatening to institute legal action against Parliament.
Mr Waters responded that the tape would have no value in court
since it had been obtained without the prior knowledge or consent
of the Committee.
The Chair then ordered the person to switch off the tape
recorder. Mr Kalako felt that the tape should be confiscated but
the Chair disagreed.
Mr Waters requested that Wednesday’s proceedings be recorded
as it would serve to cover everyone’s backs which is
necessary when dealing with sensitive issues such as the one
facing the Committee.
A decision about recording the meeting will be taken on
Wednesday.
Penultimate Report on International Migration White Paper
(continued)
Prince Zulu asked whether the Penultimate Report was an ANC
report.
The Chair replied that he had stated this at the beginning and
that this was the reason that they had invited the minority
parties to respond. He said that members are faced with a radical
piece of legislation and that it was not only their duty to see
that legislation gets passed but also to ensure that proper
procedure is followed. It is for this reason that their oversight
duty becomes important as the Committee is the eyes and ears of
Parliament.
Chairperson’s Critique of the Democratic Alliance
response
The Chair stated that there is no such thing as a Democratic
Alliance party in Parliament and instructed the parties involved
[Democratic Party and the New National Party] not to submit a
document as such.
He objected to their statement that the process had been reduced
to political mudslinging and likened this to the view of the
Minister that the Committee should not exercise an oversight
duty. He described their suggestion that the President be ‘dragged
in ‘ as a joke. He responded to their comment that the
public is waiting by saying that this did not mean that they were
exempt from applying their minds properly.
Discussion
In response to the statement by the Chair that there are
ten stages in the legislative process, Mr Waters argued that this
was not the case and that there is in fact no such thing in law.
The Chair responded that even though it was not always adhered
to, one cannot deny that these stages do exist.
Mr Waters said that if all Committees had to adhere to ten
stages, they should do so even when dealing with an ANC minister.
The meeting was adjourned until 2 November 2000.