Archive | Security,police,defence

Parliament approves new Border Management Authority

……article 20 June 2020…….

The road to Africa: six new border facilities….

Department of Home Affairs has briefed Parliament on the final plan for the construction of six new modern facilities at South Africa’s border posts, part of a major continental plan to improve cross border trade in the SADC region.  The focus at present is  on issues involving the movement of goods transported by road.  This is in the absence of common rail networks and the lack of development by Transnet in the region.

This month Minister of Home Affairs, Aaron Motsoaledi and Deputy Minister Njabulo Nzuza accompanied by Jackson McKay, the Home Affairs DG,  posted MPs of the Transport Committee on the latest position on development, a process which has until now been limping through both Parliament and the Department of Home Affairs for the last three years primarily due to changes in Cabinet, the difficulty of defining responsibilities between home affairs, treasury, public works,  defence, police and SARS.

Ideas on paper

However, the enthusiasm of the Department of Home Affairs (DHA) for the project remains undiminished, it seems.  Most in business agree to the concept but providing it improves delivery, eases trade and is as far as possible, corruption proof.   In addition, it is acknowledged by most  that fully computerised customs posts are a logical answer but implementing the work so far in this area by both home affairs and treasury needs careful handling, MPs have said

The co-ordination in external affairs of state between some seven SADC countries have added to the gargantuan task, this being now the  ladder to climb.

Officialdom

The Border Management Authority (BMA) Bill was proposed to Parliament in 2015 by the then Home Affairs minister, Malusi Gigaba, and at the time a strong suspicion was harboured by business and industry that the ulterior motives of the Bill’s tabling had much to do with the illness of state capture revelations at the time being exposed.

Many thoughts were expressed around accusations of “empire building” by DHA and the very thought of combining customs collection with immigration, complemented by adding defence and security, led to raised eyebrows amongst opposition MPs and some sections of industry.

It became apparent also that as early as 2013, MOUs were struck up between SAPS, SADNF and DHA, totally without the knowledge of Parliament on the staffing of a combined function to police borders, primarily with an aim of controlling immigration. These queries continued for the period that Gigaba was promoted to Minister of Finance by Zuma.

Hands of the money

Nevertheless, any idea of a further MOU between National Treasury and DHA was totally rejected by treasury officials. Within weeks of the Bill being first tabled in Parliament under the aegis of the Fifth Parliament, Ismail Momoniat of Treasury expressed the Minister of Finance’s view to MPs that any hopes that  DHA had of their new BMA staff  being involved with tax matters and customs dues would be rejected in its entirety.

At that point the Bill was still particularly loose and unacceptable as far as its wording was concerned  but it was still agreed by Parliament that, in a broader sense, trade corridors had to be improved.   Injected into the discussions during 2017 was Jacob Zuma’s eleventh cabinet change in the home affairs portfolio, past minister Ayanda Dlodlo, and as a person totally unaware of trade issue implications and the whole concept bogged down, beset as it was with refugee and immigration matters.

As time passed the task of opening up diplomatic and trade relationships in Africa seemed to become more evident. The project then fell to the now incumbent Minister Aaron Motsoaledi who has started pushing for better trade relationships and has begun forcing through the mechanics of trade mechanics and infrastructure.    With neighbouring relationships now coming to the fore under President Ramaphosa as African Union chair, to some extent SADC issues are looking up but still manacled by  economic collapse in both Zimbabwe and Mozambique.

Wasted years

The core of  ANC thinking, like so many other radical African movements, focuses but little in economic terms on international trade and relationships and  nowhere  in this area has this been more evident than in the total lacking of debate during parliamentary meetings.  No serious consideration of development on the subject of road and rail links in Southern Africa has arisen at all or any real focus on the development of port authority controls and handling facility development for anything other than domestic reasons.  Most SADC countries complain of Durban Port “bottlenecks”.

In the past, such matters were left to a crumbling Transnet and under Jacob Zuma this position deteriorated to its worst ever in the history of South Africa, but now, in 2019, the Bill was re-tabled in the new Parliament of Cyril Ramaphosa and the ever busy Minister Dr Aaron Motsoaledi seems to have rescued to some extent the situation, coupled with efforts by the Ministry of Tran

sport with the Economic Regulation of Transport Bill, aiming at pricing controls  and transport management, which Bill is being processed by the parliamentary transport committee.

Refugees under focus  

During the recent passage of the BMA Bill, DG of Home Affairs, Jackson Mackay,  gave it his  best in a presentation on the subject to MPs and one had to admire what has been achieved in such a negative environment.     As a result of this portfolio committee meeting, the concept is now officially approved by Parliament, with MPs now calling for regular updates on the new “one stop border posts”, or OSBs, which will be at Beitbridge, Lebombo, Maseru Bridge, Kopfontein, Ficksburg and Oshoek.

Jackson Mackay’s presentation was supported by the 2017173-page report developed by the Cross-Border Road Transport Agency (C-BRTA) which had provided a bench-marking exercise along the highly trafficked road transport corridors in the west and east Central African regions, all with a view of finding solutions to opening up trade movement to and from South Africa.

Essentially, the “challenges” established, Mackay said, were congestion, delays at borders, and long journey turnaround times, all of which reduced safety and high cost of doing business, such factors impeding inter-regional trade.    Also, trade between the partnering countries stands at only 12% of the economic potential of the region.  Urgent intervention was called for by the report, Mackay said, especially given the fact that cross-border road transport carries over 80% of the total goods that are traded in the region.

Conclusion

The report concluded that the status-quo cannot be left to perpetuate if SADC was to achieve its set socio-economic and developmental objectives without implementing the multilateral cross-border road transport arrangements.  This has now been achieved, MacKay said, in the form of the Border Management Authority, already partially staffed. Essential now is the transformation of  prioritised border posts into “One Stop Border Posts” (OSBs)  to address “the hard and soft infrastructure challenges experienced at commercial border posts along strategic regional corridors”.

DG MacKay said that South Africa currently had an extraordinary number of border points at 72 in all.   Fifty-three of these were on land, eleven airports and eight seaports. Six of these had been officially selected as OSBs and were all road border crossing.The idea is at these crossings transport of goods is no longer stopped twice as previously, once for each country, but only once by the BMA on behalf of both nations. A speedy and consolidated service is to be installed.

Public/private partnerships

MacKay closed with the news that the project had been was registered with National Treasury (NT) as a private-public sector partnership and five consortia had pre-qualified in 2018 tenders to construct the OSBs, Treasury having granted approval to commence the request for proposals.

Budgets are to be submitted to Treasury in the 2020/21 financial year, MacKay said, and that the developers of each port of entry would be appointed by the end of the financial year. The key principle in all planning was “traffic segmentation, where the plans would have separate lanes for cargo, freight, general cars and for vehicles that needed to have goods declared, all only once”.

SA and Zimbabwe had already started preparing an OSB procedure manual for operations on their mutual border, MacKay said, and agreement had been reached with Botswana.  Construction is to start 2022-2024 on all six ports of entry and “the concessionary period” of start-up operations would be in the years 2024-2044, he concluded.

 

 

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Funny business at the National State Lottery

………article 25 July 2020……..

NLC Commission finally to be investigated…

For both the years 2018/9 and 2019/2020, Parliament has been unable to obtain from the National Lotteries Commission (NLC) any official list of beneficiaries and any funding details by the State Lotteries Fund run by the secretive Prof. Alfred Nevhutanda, also chairman of its Fund.

No amount of parliamentary requests, annual reporting requirements, or encounters with investigative journalists have convinced the professor to break the veil of secrecy on projects run by the Fund.

With the doors closed to any form of questioning on beneficiaries, even to the department of trade and industry reporting to the minister concerned, it also appears just as important to Prof. Nevhutanda not to part with any information on how decisions are made on funding and what criteria is used. Again he remains silent when  asked by MPs.

Playing mum

After three years of harassing the NLC when it presents its annual returns to Parliament and briefs the Trade and Industry Portfolio Committee as required by the public management financial legislation, opposition MPs over this period have so far only managed to get the Fund to categorize outgoing funds into the types of grant it makes. In accounting terms this means absolutely nothing, of course.

In the last few weeks, however, matters at last might be coming to a head.  If things are as Parliament suspects, there is to yet to be another mighty crash for the reputation of public sector governance.

Fund income

The sale of lottery tickets to the public and disbursement of prizes are separated by law, such operations being run by a service provider, the names and addresses of winners being protected.   It is from the sale of these tickets that the Fund gets its percentage of revenue.

Every year, with the publishing of the NLC annual report, the professor has presented a picture of respectability with a special chapter devoted to the activities of the SL Fund.  2019/2020 was no different until it came to question time during the parliamentary briefing.

Extracting teeth

Professor Nevhutanda, (who was bestowed with his doctorate in Azerbaijan it appears) was asked this year by the same MPs the same questions.  Once again he quoted the necessity for privacy on the grounds of the Fund’s need for neutrality and to maintain the appearance of impartiality.    The same phrases were trotted out that the naming of projects would expose the Fund’s beneficiaries to all kinds of risks and accusations that the Fund favouring one NGO or beneficiary over another.

The professor also told parliamentarians this year that his enemies could include extortionists and spamming operators, even refusing to supply such a list to MPs “for their eyes only” which would have been subject to parliamentary rules. In the past, ANC MPs had nodded at these wise comments.

Enough is enough

For the last three years  at the same time but coming to a head this year, has been a parallel series of stories appearing in the Daily Maverick into the funding of the of SLF projects staring in the Northern Cape, more appearing in Free State, then Gauteng. Pressure this year was seriously put upon the Professor Nevhutanda to answer questions on the Funds’ activities.

In committee beforehand, ANC MPs have stood mute and never commenting, the EFF subsequently joining with the DA this year demanding answers.  It was a stormy meeting.

Turnabout

ANC MPs were finally convinced this year by Mat Cuthbert (DA) in a recent August meeting that it was in everybody’s interests that there be a court challenge on whether Parliament was constitutionally supreme in calling for oversight of all State Lotteries funding, unanimous vote being recorded to request such from experts.

Legal opinion has now come down in time for the most recent meeting with the NLC advising that, on this matter, the Constitution clearly indicates that Parliament can trump the State Lottery Fund Act in equal fashion to any other government institution and that all financial aspects of the Fund should be subject to disclosure and parliamentary oversight thus obtained.

The truth will out

Thanks therefore to the persistence of two DA MPs, Mat Cuthbert and Dave Macpherson, yet another castle of cards involving senior government officials is about collapse.

Looking back things had started to get hotfor Professor Nevhutanda when he was reported as suing a group of investigative journalists, known as Ground-up, for R600,000 in respect of defamation damages. This was an unusual incident in the life of the NLC, it seemed.

Rumblings

It also appeared at the time that the argument was all about reports run by the Daily Maverick, sourced by Ground-up, that in Kuruman, Northern Cape, there were three particular State Lottery projects, an old-age home, a drug rehabilitation centre and a library/museum, being built and all meant to celebrate the life and work of a sangoma, Credo Mutwa.

According to the Daily Maverick article some R60m was granted as far back as 2016/7 but by 2019 two were still “under construction”, having received funding two years before.  The third, a museum, had not single exhibit therein and the library’s shelves were empty”, said Ground-up, who had been to Kuruman to see for themselves.

Photographs of fences, a few walls and piles of bricks were included in various articles and in subsequent articles the construction companies had suspicious links to NLC officials, the Daily Maverick said.

Out of sight

The NLC has distributed on average around R1.6bn per annum in recent years before Covid 19 arrived.  For a good deal of the earlier years, Minister of Trade and Industry Rob Davies, has presided over the affairs of the NLC very much at arm’s length since his department has been at pains, it seems, not to get too involved in lottery matters to any great depth.

Similarly, the Chair of the Portfolio Committee on Trade and Industry for years, Joanna Fubbs, just asked for assurances every year that all funds went to good causes and were distributed particularly amongst the poor. She received such assurances.

Writing the rules

Prof Nevhutanda, always aware that the Lotteries Act demanded no political interference in its affairs, would talk little on what motivated decisions on his  grants. This was a tightly held process within the NLC, he said, and the tenets and principles behind the formulae for consideration of funding had been designed by no less than the professor himself, the annual report of the State Lotteries Commission stated., with the Professor as author.

Consequently, DTI presentations to Parliament on this portion of their responsibilities made to the Portfolio Committee of Trade and Industry have been less than sketchy, particularly on report backs on whether DTI inspectors of NLC staff ever visited project sites.

Grants were declared as annual totals simplistically broken down into projects falling into four categories, the arts, charities, sports and miscellaneous. No more.

 Build up

Meanwhile, Minister Patel has been playing difficult and not really helping obviously not wishing to get too involved in problems of an entity run for so many years by a predecessor.

 

The Auditor General over the years seems to have accepted that no follow through was necessary but last year, with a tightening up of the rules, has now flagged some of the  issues as “irregular”.

D-Day

The letter now sent from Parliament to Prof. Nevhutanda from Parliament demands that the NLC should submit within seven days of receipt of the letter the names of beneficiaries who had received funds from the NLC in respect of the Covid-19 pandemic as well as the amount received as  beneficiaries referred to in the 2018/9 annual report and which were required by the Lotteries Act.

It also calls for details of all the categories under which the grants were made, names of beneficiaries and the amounts involved.  A similar call is made for 2019/20 figures in the 2019/2020 annual report as required in law.

 In the past

To sit through a meeting with the National Lotteries Commission (NLC) has been an insult to the average person’s intelligence for some years now, but the last virtual meeting was short and quick.  Chair Duma Nkosi read from the Courts findings and all quickly sided with Opposition MPs that Parliament had to exercise its authority immediately.

In the most recent meeting, Cuthbert said he was “horrified” to see how many ANCs had suddenly decided to vote agreeing on the matter after three years of disagreement, only siding with the DA when the Courts opinion posed a threat to the blind-eye approach of the past.

Nevertheless, it was a total majority decision made that NLC be hauled before Parliament and explanations given.

Past bad apples

Prof Nevhutanda is not short of publicity either.  Two years ago, he stood accused when a company with the improbable name of the Makhaya Arts & Cultural Development Co, and which employed Prof Nevhutanda’s daughter, controversially received a massive R64m from the National State Lotteries Fund, a story covered by Mail & Guardian.

The charmed life of Prof Nevhutanda seems set to end very shortly. One hopes that endless SIU reports, NPA paralysis and blunted Hawks investigations are not to follow, as the State Lotteries Fund Pandora’s box opens up.  It would seem a question of who gets there first; the SIU or Parliament.

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Treasury details illicit cash flows

.…Finance Standing Committee gets update

May 2020….In a recent meeting of the Finance Standing Committee, the Inter-Agency Working Group (IAWG) on Illicit Financial Flows told MPs and chair Joe Maswanganyi that from 2108 until the present that investigations had resulted in the recovery of R400m. SARS also told parliamentarians at the same meeting that in terms of illicit flows outwards in 2017 alone, an estimated R93bn had left the country.The Committee had called upon IAWG for a briefing and update and as result, has called for a full report on the whole issue at the end of May which will be made available to the public.  IAWG coordinates the work of several agencies involved in combating IFFs. These are the Financial Intelligence Centre (FIC); SA Reserve Bank (SARB); Directorate for Priority Crime Investigation (DPCI) commonly known as the Hawks;  SA Revenue Service (SARS);   Financial Sector Conduct Authority (FSCA);    SA Police Service (SAPS);   the Special Investigating Unit (SIU);   and the National Prosecuting Authority (NPA).

Adv. Xolisile Khanyile, FIC Director, told Parliament that a definition of IFFs was “Funds that were illegally earned that were transferred or managed in a fashion that the money crossed borders”.  This, she said, could be deemed to include included transfers accumulated as a result of tax evasion and amounts earned from corrupt practices trade in contraband goods.  To this had to be added drug trafficking and counterfeiting activities.

Khanyile said that in taking a broader view on the effect IFFs had on the SA economy, there was no doubt such criminal activity drained its foreign exchange reserves, reduced tax collection, cancelled out investment flows and in an overall sense, worsened poverty.

Africa overview

She added that that the UN Economic Commission for Africa had estimated that current illicit flows from Africa probably amounted to some US$50bn per annum which was the amount that the continent received in developmental assistance.  Khanyile noted that the IAWG concentrated only on complex cases involving amounts of more than R100m.

Dr Mike Masiapato, who is FIC’s executive handling its monitoring and analysis processes, said to handle cases successfully, such had to involve at least three of the agencies within IAWG to make an investigation workable.   Eight cases were now under investigation.

Financial gangsters

These included a Ponzi scheme involving R126m taken out of the country, suspects appearing in court in May 2019.  R71.6m at this point, Dr Masiapato said, had been secured was and a process started to recover US$5m held in the USA.

In another case, mis-invoicing to the tune of R700m was involved where Reserve Bank had frozen R72m and processes start to forfeit the sums involved.  Exchange control contraventions amounting to R397m leaving SA were involved with DPCI and SARS involved in the follow up.  At this stage R9.3m had been surrendered to SARB.

 Brotherhood

A problem existed with hawala transactions (*Refer end note), Masiapato said, where a case involved a total of around R150m. The parties, similar to brokers, were being investigated in various countries and intelligence gathering started on the underground systems involved.    So far, SARB had managed to block R73.7m in transactions. This had damaged considerably the parties trading in this manner.

On the subject of illegal imports of cash, MPs were told that a major issue had always been “cash mules” at SA ports of entry and Dr Masiapato gave a figure of R67m recovered, but he did not elaborate on the period or the circumstances.

Old tacky

Exchange control contraventions, similar to customs matters, were always an ongoing issue and would continue always to be so, it was explained by Dr Masiapato.  One case currently involved R100m with the case now being closed and the culprit receiving an 8-year imprisonment imposed.

A major problem also was transfer of monies to China by organised crime syndicates. Recently, a transfer of R2.7bn was involved with a now well-known Chinese syndicate.  Reserve Bank successfully intervened by disrupting exchanges which at the time involved 175 bank accounts andR2.9m was recovered, Masiapato said.  Another current follow-up by SARB involving exchange control offences had involved a travel agent to the extent of R2.5bn, R78m of this so far being blocked. The case is ongoing.

Want to talk

Pieter Alberts, a senior manager from FIC , said the organisation was to explore new ways of improving the financial intelligence reports it provided to law enforcement agencies in terms of the FIC Act.  FIC would be creating considerably more private sector partnerships to access financial information needed on specific cases, he said, and would seek improved access to government databases.

South African Reserve Bank (SARB) told parliamentarians that for 2019/20, the year under review, R3.8bn involving 148 cases had been blocked involving 275 bank accounts.  Of this, R112m had been forfeited in 50 of the cases.    Thys Basson said that SARB was receiving an increasing number of cases from banks in South Africa.

 Bits and pieces

Interesting was the fact that R15m in the accounts of individuals involved in the regular illegal transfer of crypto currency. Such funds when blocked are held in an interest bearing accounts, usually originators bank account.  This is in terms of SARB instructions whilst investigations by any member of the IAWG grouping continue. Basson described the blocking of funds as a “very powerful regulation”.

Gumming up systems

The act of a blocking funds had a serious effect upon the long and short-term trading ability of both parties to the transfer locally and abroad.   This was even if the full amount suspected had been over a long period and therefore only current trading in the account was found when frozen, Basson said.

Blocking funds was a most effective deterrent in both halting any further movements, throwing arrangements between parties into confusion and providing evidence for criminal prosecution on both present and past behaviour.     It was a feared instrument, he said.

Private business sectors consistently subject to money laundering investigations, Basson told MPs, were estate agents, banks, attorneys, the gambling sector, motor vehicle dealers and foreign exchange dealers.   Dealers that built up crypto asset holdings would soon be added to the SARB focus list.

Number counts

SARB had received 43 referrals of cases from the FIC, Basson concluded.  It had referred three cases to the FIC and received 142 enquiries from SARS, SAPS, NPA and the Asset Forfeiture Unit.  Also SARB had referred 24 entities or persons to SARS for investigation of tax non-compliance.

As a result of questioning from MPs on the subject of performance of police investigations, Thys Basson gave facts and figures supporting a poor record by SAPS in this area. After lengthy debate, it was decided by Chair Maswanganyi, that all matters and the lack of public awareness of all issues involving IFFs, had to escalated.

It was adopted across party lines that rather than go any deeper into such matters for the moment that Adv. Xolisile Khanyile should compile a full and detailed report for Parliament on IAWG concerns and needs, the reports for tabling by the end of April 2020 and then released for general interest.

 Pay up time

Well-known Commissioner of Taxes, Edward Kieswetter, then closed the meeting with a report from SARS on illicit flows of money from the perspective of the losses of tax to the fiscus.   He said that SARS had recently established an integrated enforcement capability to deal with the illicit economy which unit had some 760 active investigations into cases involving R30.8bn. Cases involving 350 entities were under SARS investigation

To date, R1.4 billion had been recovered by way of cash collected, preservation orders and proven claims against liquidated assets. Twenty cases at this stage for major sums over R5m had been referred by SARS to law enforcement agencies.  Kieswetter said SARS had received some 200 requests this year alone for information from parties such as the PIC investigation, the Zondo Commission  and regular enquiries from DPCI and the SIU. The requests involved 1 385 taxpayers linked to 2 984 entities.

 Tax games

Of concern to SARS, Kieswetter said was that assessed losses carried forward by large corporates surged from R130bn in 2015 to R280 bn in 2017. Also, base erosion and profit shifting were seriously eroding the current and future tax base of South Africa currently, since profits actually earned though locally generated activity in key industries and commerce were ending up in tax favourable jurisdictions. He quoted Switzerland as an example.

Summing up

In conclusion the Standing Committee on Finance repeated its call for a report to be escalated to a national level.    Chair Joe Maswanganyi told Adv. Xolisile Khanyile that it was essential for the public to be informed on the levels of illicit money transfers and for the public to understand the effect on the economy. She said she would do this.

The IAWG report, he said, should be produced in collaboration other experts in the grouping and would be debated, any findings being then agreed to be adopted by Parliament.

*Note on hawala transactions.

Hawala originated in South Asia during the 8th century and is used throughout the world today, particularly in the Islamic community, as an alternative means of conducting funds transfers.

 A handler in one country accepts cash from a customer then contacts a handler in another country who hands hand out the equivalent amount minus commission.   In an overall sense, each handler ensures that all transactions between them are more or less balanced, once commission considered. 

  The process, obviously illegal, cuts out any bank transfer fees since hawala as an informal agreement, based on trust between the handlers, obviates any need for a bank account. Thus, money never “crosses borders” and no “follow the money” track is apparent.

 

 

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By-passing Parliament at one’s peril

….editorial,  30 May 2020

Regulations mania hits South Africa …..

Winston Churchill, perhaps the greatest political and parliamentary figure of the last century, said that if you make 10,000 regulations you destroy all respect for the law.  Take a look at South Africa where far too many conflicting and nonsensical regulations are espoused on a weekly basis, some of them with only a loose and highly doubtful connection to the law, the Disaster Management Act, under which they are gazetted.

What started with good intent in the rush to halt the spread of Covid 19, ‘flatten the curve’ and buy time to build medical supply lines and PPE reserves, has turned into a regularised pattern of government by dictate.  We are in danger of getting used to the idea of government finding a way around the people’s Parliament just because 400 people can’t gather together in the light of social distancing, in itself another regulation.

This shortcut to governance has to be stopped before it becomes regularised in any way.  In the process of searching for a way to speed up what at times can be a cumbersome system of democratic checks and balances, the country has invented an immensely powerful and what could well be an illegal intervention named, by somebody unknown, as the National Coronavirus Command Council.

Rules in bulk

After only a month of the president’s announcement of the declaration of the national state of disaster, more than 50 sets of Covid-19 related regulations, directives, notices and directions have been published nationwide in its name.    Lawyers and business chambers are struggling to keep up with it all.

The problem now being faced is two-fold.  Firstly, the high-sounding and most unfortunately militarised name of “Command Council” represents an entity not recognised in the Constitution, or anywhere in the statute book.   It is purely an invention of a clique within the governing party as an instrument to administer a law cobbled together in a few months called the Disaster Management Act.

Somehow, without the knowledge of Parliament, a handpicked number cabinet ministers, chosen one has to assume by persons residing at Luthuli House, has granted executive functions and powers to a pick of between 8 and 19 cabinet ministers (the number varies) who meet at undisclosed places and take national decisions.

The same unknown group has ignored some thirty to forty other cabinet ministers for reasons unstated to form this command unit and there we have it, a new grouping administering a whole country by regulation.  It is so important that we do not get used to this alien concept as a substitute for ordinary democracy, whether or not it has a body a scientific expertise advising it or not.

Power point

On the subject of powers, the Constitution is quite clear – all cabinet ministers are accountable “collectively and individually to Parliament”.   But to repeat, this caveat is made nonsense of when a cabinet cabal, including the Deputy President, start making government policy affecting citizens’ rights without even a parliamentary nod.

Granted, that originally there was a need for speed and given the fact that Covid 19 is a disaster of global proportions, it was understandable that hastily convened and rushed virtual parliamentary portfolio committee meetings tried vainly to “debate” the issues that might arise as a result of implementing the Disaster Management Bill.    In fact, they did remarkably well in the circumstances and South Africa became the first country to try and handle parliamentary debate electronically in the light of lockdown.

Law by laptop

Virtual meetings make any meaningful debate nearly impossible at the best of times. They are designed more for briefings than for discussion.  In the understandable rush, the buttons pressing the “ayes” became the norm in the short time allowed. The Disaster Management Act (DMA) is the result and is now history.

Now, the buttons are being pressed by Dr Nkosazana-Zuma, the Minister of Cooperative Governance and Traditional Affairs (COGTA), the department which the DMA empowered, most assuming that COGTA would be more of a spokesperson for the system to be adopted.

Governance by regs

However, “risk-adjusted strategy regulations” were published in a flash by COGTA in the light of the disaster (not emergency) powers with a statement that read, “The Cabinet minister responsible for cooperative governance and traditional affairs upon the recommendation of the cabinet member responsible for health and in consultation with cabinet, declare which of the following alert levels apply, and the extent to which they apply at a national, provincial, metropolitan or district level.” It all sounded like we had things in hand.

In the UK or Commonwealth countries, this process would have amounted to making Dr Nkosazana-Zuma prime minister and Dr Zweli Mkhize her deputy prime minister.  Nevertheless, Parliament in SA  soon fell outside of the inner circle when it came to oversight. Parliament deals with legislation not regulation.

What sticks to the wall

After a week or so,  it became more than noticeable that many of the regulations just did not link up and appeared randomly unconnected. The cooked chicken problem, no flip flops and absurd choices on who could and could not work.   Looking at it from a parliamentary aspect, to create temporary hospitals and to ban liquor and cigarette sales, and then cancel one factor but not the other, seemed not only a stretch under the same law but also a legal anachronism.

Worse, just the act of banning liquor sales and thus damaging the tourism and hospitality industry possibly forever is unlikely to pass any “justification analysis” constitutionally.    Most of the public comments called for in the form of  business submissions are now accumulating in government offices or parliamentary boxes and certainly unlikely ever be seen by Dr Nkosazana Zuma.   She is known for having no appetite for this sort of thing, as was discovered by the African Union.

LIFO

Now many of the regulations are causing serious “unintended consequences” in application, such as schooling, resulting in a law gone rogue.  A further well publicised example has been where regulations allow religious gatherings whereas most major religions did not call for them, nor will exercise them. Gatherings include funerals for the dead but not a healthy game of bowls for the elderly. Most have no idea of who consulted who on outcomes, representing more muddled thinking by a body which records no minutes and meets in secret.

South Africa has invented a most dangerous mechanism where everybody just relies on the Presidency to eventually “put things right” when the panic is over.  To do this, President Ramaphosa, in the light of a forthcoming ANC conference, will have to dissolve this mechanism somehow and terminate its powers. This politically powerful entity is led by a person who contested with him the position of president and who split the governing party in half doing this.

Its going to be a bumpy ride.

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Parliament goes virtual for lockdown


….20 May 2020…

SA first with virtual e-debate

….At the same time as the venerable British Parliament was tackling what seemed to them a totally invasive idea of a virtual e-Parliament, South Africa was simultaneously tackling the same subject as COVID 19 arrived at the shores of Africa.  Immediately, the issue of the consideration of lockdown conditions arose in SA and the question of how Parliament could work with everybody boarded.

Whilst British parliamentarians dithered on the subject and due to the fact that the UK kept social distancing going for a much longer time before their lockdown came into force, South Africa’s virtual website portal went up in an incredibly short time and was first in the world by a few days.

Maak ‘n plan

In comparison, the British virtual system. which is also now also working, only allows for debate in the House of Commons whilst South Africa, in terms of its Constitution, follows proceedings in both the National Assembly and the NCOP and also at committee level as well, with the current joint meetings providing provincial coverage.

The design of the entrance website is pretty similar to the UK portal, the principle being the same but with a British budget, the UK presentation is a good deal slicker.  All the same, the Daily Telegraph complained after the UK launch that all that the voice links in the meetings sounded like Darth Vadar and it was confusing to know who was speaking.

Many players

The beginner’s look of the SA virtual meetings is understandable in the situation.   One can see in SA technicians are having a daily struggle with people using Skype and Zoom connections for the first time, some of whom have little knowledge of the difference between an app and a hard drive.

Most are trying, knowing it all has to happen and it would be best to learn quickly but a certain number of senior politicians still demand studio facilities and a camera.   We shall no doubt look back in years to come and laugh at these early attempts to live a virtual reality life.

48 hours allowed

In South Africa, where the decision to suspend the SA Parliament was a “precautionary measure” in the light of a forthcoming Cabinet decision on how to deal with the pandemic, Parliament’s presiding officers in the form of chief whips and political parties all agreed beforehand on the 17 March that the remaining two days of parliamentary business would be devoted to urgent legislation only.

As a result of this decision, Budget Papers in the form of the Division of Revenue Bill were hustled to the National Assembly for adoption in order that money could flow to the provinces and local government.   A Cabinet meeting followed and the Speaker of the House, who acts for the President in Parliament, was summonsed for a meeting soon after.

Hard facts

The role of Parliament is indispensable for the country to run.   The Constitution demands that Parliament scrutinise and oversee all Executive actions, processes Bills in the  form of legislation, to provide a forum for public consideration of issues and to facilitate public involvement in its legislative and other processes. Such is inviolate, whatever the conditions facing the country.

Realizing that the only way was virtual meetings to consider matters,  Speaker Thandi Modise issued a statement that Parliament would have to “intensify its technological capabilities for a transition to an “e-Parliament”.   She concluded that as a result, a decision had been taken that “Parliament will be able to resume taking advantage of virtual media technology”.

 Into action

The leave period, or recess, for MPs was duly cancelled and parliamentary staff were assigned permits to stay at work.  They used this time for urgent meetings -to assess how Parliament could best resume its proper function under lockdown regulations and deal with the lacuna (i.e. a situation where there is no applicable law to deal with the matter).

It was agreed by the Speaker that priority had to be given in Parliament to virtual meetings that required oversight on COVID-19 matters, bearing in mind the limited number of meetings that could be held at any one time.  It was also agreed that any virtual meetings would be primarily joint meetings based on the government cluster system, i.e. meetings comprising the various representatives from a number of differing committees affected by one subject.

 Order, order

Chief whips were then tasked to adapt parliamentary rules to meet the new conditions. All this had to be based on the procedures, precedents, practices and conventions, which have been developed over the years, known as parliamentary rules.  This was in respect of not only how NA and NCOP virtual plenary meetings were to be run but how debate was to be conducted committee.

Speaker Thandi Modise then confirmed to all political parties that in the planned virtual meetings, members of parliament would have the same powers, privileges and immunity as they have ordinarily in parliamentary proceedings.  Quorum requirements were to be exactly the same she said, and MPs would be entitled to cast their votes either electronically or by voice.

Public participation and access to virtual proceedings had to be made possible, said Modise, “in a manner that is consistent with a participatory and representative democracy, virtual meetings to be live-streamed wherever possible”.

Global comparisons

Despite time limitations Parliament was indeed able to try and benchmark against some other legislatures who were operating as legislatures whilst their countries were fighting against COVID-19. To the surprise of all, little was found.

The prime constitutional constraint in South Africa’s case was that any virtual meetings had to involve both the sittings of the National Assembly and the National Council of Provinces and these had to be seen to be happening if the public wished to observe proceedings, a factor necessary according to the Bill of Rights.   This was overcome by making most meetings “joint” committee meetings of parallel committees from both Houses.

One and only

In the UK, which has no constitution, a parliamentary virtual meeting concept had been designed and planning was six months into happening.  From a standing start, SA Parliament achieved their deadline in about a fortnight.  Australia and New Zealand are still only thinking of going about it and the USA is still fighting about lockdown itself.

Without fanfare, the parliamentary process under the extraordinary conditions began internally in the Cape Town precinct after a very short training period on 20th April, with access being made to the existing  public parliamentary website on the link www.parliament.gov.za/parliament-tv.

 Time will tell

The whole thing seems to work quite well but obviously glitches occur regularly whilst MPs struggle from time to time to find the mute button and some appear if they have just got out of bed.  Already, however, after an initial learning curve, things are changing and before long it will be the way things happen.

At each meeting, provision is made for the parliamentary secretary to log in those MPs present at a virtual meeting, name them, see them, accept apologies and at point count voting if required from those logged in through the  electronic response system.   Minutes are established later through the audio track recorded in the same manner as before. This is quite some procedure to witness in some of the hallowed chambers where the Speaker once wore a wig.

An MP’s presence in any virtual meeting is established through a secure link sent to their email address which also enables counting to be established for the purposes of establishing a quorum, taking decisions on issues or voting on a matter. Links are established on Facebook, Linked-in, Twitter and Instagram, the photography on Facebook on parliamentary issues being quite stunning.

 7 out of 10

In general, the new parliamentary virtual world established is considered by most quite for such a rush and the process will no doubt tide the country through this terrible period in its history.  This aside from any opinion on how well MPs handle their own inputs and deal with difficult question of switching between one another to pose and answer questions.  What you see is what you get.  The result is not always pretty but it is legal.

One advantage is that with so much happening with lights flashing and buttons to worry about, there is little time for any MP to have a quiet slumber.

Posted in Agriculture, cabinet, Communications, Defence, Earlier Stories, Energy, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Police, Public utilities, public works, Security,police,defence, Trade & Industry, Transport0 Comments

Home Affairs white paper appears govt meddling

White Paper re-focuses on immigration, security… 

Report issued to clients April end 2019…..

Gathering a head of steam and running into trouble both at home and abroad, is (former) Minister Siyabonga Cwele’s Draft White Paper on Home Affairs, something that President Ramaphosa clearly attempted to avoid any discussion on before elections.   One senses that the Paper is yet another leftover  from the “nine wasted years”. 

Minister Cwele said his department is at present absorbing the submissions received from all stakeholders and citizens on his draft which was published on 30 January giving 30 days for comment.

Read more….White Paper Home Affairs

Posted in Justice, constitutional, Labour, Security,police,defence, Trade & Industry0 Comments

Latest Cybercrime Bill free of state apparatchik

New Cybercrime Bill   

……Every business must have a battle plan

In the light of the fact that the Cybercrimes Bill, now passed by Parliament, places obligations on financial institutions and service providers to report incidents to SAPS, it would seem imperative that preparedness by business for a cybercrime incident must include a well-planned response plan.

Read more...New Cybercrime Bill

Posted in Communications, Finance, economic, Home Page Slider, Justice, constitutional, Police, Security, Security,police,defence, Trade & Industry0 Comments

Gigaba pushes for control of border posts

Treasury, Home Affairs at odds on customs issues

Parliament will be debating in the new session in August the Border Management Authority Bill.   What the Bill proposes is a single state entity known as the Border Management Authority (BMA) to oversee all aspects of the movement in the import/export of goods and to control movement of all persons either leaving or entering the country.

The idea is that all border law enforcement functions along South Africa’s fragmented 5,000 kilometres of border will be the responsibility of the BMA.   Read More……    Border Management Bill July 2018 PDF

Posted in Agriculture, Finance, economic, Security, Security,police,defence, Trade & Industry, Transport0 Comments

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