Responses to Parliamentary Questions
in the National Assembly
14 March 2001
NATIONAL ASSEMBLY
QUESTION NO. 2
The Leader of the Opposition (DA) to ask the President
of the Republic:
Whether he will consider proclaiming HIV/AIDS a national
emergency in terms of Section 1 of the State of Emergency
Act, 1997 (Act No. 64 of 1997), to allow South Africa
to act in terms of article 31 of the World Trade Organisation's
Trips Accord to gain access to generic drugs used in
the treatment of HIV/AIDS; if not; why not; if so; when?
REPLY
Madam Speaker ...
Declaring a State of Emergency is not necessary as
I shall explain.
The issue of countries declaring national emergencies
in the event of an epidemic derives largely from the
debate on how to effectively use the provisions of the
World Health Organisation's TRIPS Accord to facilitate
the issuing of compulsory licences for drugs that still
enjoy patent protection (Article 31 of TRIPS).
As far as we know, no country has declared a national
emergency on these grounds. There were reports last
week of a discussion in Kenya on this.
Last year during the 50th Session of the WHO Regional
Committee for Africa, the Health Ministers discussed
this matter and concluded that it was not necessary.
The government's policy on AIDS is set out in the Strategic
Plan on HIV/AIDS and sexually transmitted diseases released
by the Minister of Health in May 2000.
The reasons that I believe we should not declare a
state of Emergency are:
the incidence of diseases including AIDS, which present
such public health challenges, are persuasive in themselves.
Accordingly, we do not need to declare a national emergency
to underscore the point.
Declaring a national emergency for the simple reason
of accessing any drugs, sends a signal that tends to
narrow the response to AIDS to the issue of one particular
drug.
In terms of Section 37 of the Constitution and the State
of Emergency Act 64 of 1997, a state of emergency can
be called "only when the life of a nation is threatened
by war, invasion, general insurrection, disorder, natural
disaster or other public emergency"; and, only
when '''the declaration is necessary to restore peace
and order". The way that the law reads, both conditions
must be fulfilled before a state of emergency can be
called.
A state of emergency may be effective for no more than
21 days from the date of declaration, unless the National
Assembly resolves to extend the declaration. The National
Assembly may extend the declaration for no more than
three months at a time. There are also other conditions
that would apply.
The declaration of a state of emergency in terms of
the Constitution is a drastic a measure which entails
the curtailment of the provisions of the Bill of Rights.
It has other complex consequences for the country which
are undesirable, especially when there are other ways
to achieve the same objective, that is, obtaining affordable
access to all medicines.
The Medicines and Related Substances Control Act, currently
being contested in our courts has a wider application
than the TRIPS provision and includes the outcome intended
by this provision. The legislation refers to access
to all medicines as well as looks at a variety of strategies
to ensure affordable access such as:
Promoting generic substitution
Parallel importation
Outlawing some of the perverse practices promoted by
pharmaceutical companies to influence the prescribing
patterns of doctors such as Bonusing and Sampling
We therefore see no reason why we should not rely on
the more comprehensive legislation already approved
by this parliament.
This is also why our Medicines will await the decision
of the High Court, as well as the report of the Presidential
Advisory Team, before evaluating its current policy
on AIDS should there be any need to do so.
NATIONAL ASSEMBLY
Question for Oral Reply
Question no.3
Prince N E Zulu (IFP) to ask the President of the Republic:
Whether any recommendation contained in ministerial
reports to Cabinet have led to new presidential initiatives
and projects on (a) poverty, (b) disease, (c) unemployment
and (d) crime; if not, why not; if so, what presidential
initiatives and projects?
REPLY
In the first year of democratic rule in this country,
departmental and national budgets were not structured
in terms of the RDP priorities of the new government.
It was necessary at this time to create the RDP Fund
and to initiate Presidential Lead projects to direct
the work of government and its resources to key areas
in the reconstruction of the country.
Since then, the government has refocused its entire
budget to address the needs of the people. The total
budget of each department is focused on addressing such
issues that the Honourable Prince Zulu raises in his
question. What were Presidential lead projects and initiatives
have now become the programmes of government.
The Government has developed and implemented a number
of programmes and projects with the aim of addressing
poverty and disease at both departmental and sectoral
level. The challenge now is to fast tract implementation
of integrated service delivery to utilise resources
effectively and efficiently in order to improve the
lives of all South Africans especially the most vulnerable
groups in the society, namely rural women, the disabled
and elderly people. Government has taken an integrated
approach towards addressing issues raised by the honourable
Prince Zulu. The broad themes among others include the
Integrated and Sustainable Rural Development Programme,
Urban Renewal, Water and Sanitation, Comprehensive Social
Security and Food Security and Nutrition.
The Integrated Poverty Relief Programme is funded from
the Poverty Relief, Infrastructure and Job Creation
Fund. The Poverty Relief and Infrastructure Allocation
are intended for projects which are not already on budget
and which could alleviate poverty. Further, each department
is expected to ensure that programmes it undertakes
also correspond with priorities of the rural development
and urban renewal strategies. This is in addition to
the continuing work to intensify implementation of all
the programmes aimed at improving the quality of life
of all the people, especially the poor, in the areas
of housing, electricity, water provision and so on.
Criteria for assessment of the allocation of the Poverty
Relief Fund are:
Target the poorest areas in provinces, particularly
rural areas;
Promote human development and build capacity among the
poor and unemployed;
Provide jobs and community participation;
Impact on households in which single women are the main
breadwinners;
Seek to make projects sustainable in the long term.
The purpose of the Integrated and Sustainable Rural
Development Programme is to facilitate the provision
of a basket of services such as water, sanitation, rural
roads, integrated health system, maintenance and refurbishment
of schools, electrification, sports facilities and other
essential services in identified nodal points. These
programmes will, among other things, entail investment
in the economic and social infrastructure, human resource
development, enterprise development, and the enhancement
of the development capacity of local government, poverty
alleviation and the strengthening of the criminal justice
system. Government's central aim is to conduct a sustained
campaign against rural poverty and underdevelopment,
bringing in the resources of all three spheres of government
in a co-ordinated manner.
We announced the phased approached to the implementation
of this programme at the opening of Parliament.
Government is in the process of broadening the Urban
Renewal Programme to include issues of settlement patterns,
transport, inner city redevelopment and local economic
development.
A comprehensive social security system is central to
government's poverty alleviation strategy. To this end
a Committee of Enquiry has been established to review
the current system and to provide government with recommendations
on other options of social security services and particularly
how the services will be targeted and delivered. An
important part of the enquiry will be to seek ways in
which to integrate the services that government provides
most effectively.
With regard to the combating of disease, the Government
is implementing an integrated response to health issues
as an effective mechanism to address the major determinants
of health, which lie outside the formal health sector;
for example the provision of water and sanitation to
address cholera affected areas, schools, clinics and
rural nodes. Secondly, the Government is developing
an integrated household food security and nutrition
strategy, to align the household food security programmes
with nodal points and integrate nutrition programmes
with other development initiatives.
Each of the projects and programmes already outlined
has a strong job creating thrust. A range of programmes
such as the Municipal Infrastructure Programme, the
Working for Water programme and others has short-term
job creating impact.
In the longer term job creation is addressed in the
budget through a range of measures. These include:
wage incentives for employers, to encourage job creation
by reducing the cost of hiring new workers;
incentives targeted at strategic industrial projects
which meet agreed criteria, one of which is job creation;
the reduced tax rates introduced last year for small
and medium businesses and extended this year, and;
the infrastructural investment and maintenance programme.
All these measures are geared towards stimulating the
economy and investment and the creation of jobs.
The total government budget has been refocused on the
sort of issues raised in this question, and I am pleased
to note, particularly, that the 2001/2002 budget is
a landmark in this cause. It indicates the extent to
which we have succeeded in building better capacity
in government towards achieving our common goal of a
better life for all our people.
NATIONAL ASSEMBLY
FOR ORAL REPLY
QUESTION NO.5
Mr M C J van Schalkwyk (New NP) asked the President
of the Republic:
Whether he intends exercising his power in terms of
section 174(3) of the Constitution, 1996 (Act No. 108
of 1996), to appoint a suitably qualified person to
the position of Chief Justice in the near future; if
not, what are the reasons for the delay; if so, (a)
when and (b) why has the post of Chief Justice remained
vacant for so many months
REPLY:
(a) and (b)
On 19 and 20 October 2000 the Ministry for Justice
and Constitutional Development hosted a Colloquium for
the purpose of enabling a wide range of interested parties
to discuss the issues pertaining to the rationalisation
and better functioning of the courts and the judicial
system.
The Colloquium was attended by judges, magistrates,
representatives of the major sectors of the legal profession,
members of Parliament, etc. It is of the utmost importance
that the question regarding the highest judicial office
in our country should be settled once and for all. In
the previous political dispensation the Appellate Division
of the Supreme Court, as it then was, was the highest
court in the country and as such the Chief Justice was
heading that Court.
When the new constitutional order was introduced in
1994, the Constitutional Court headed by the President
of the Constitutional Court was established as a separate
Court. There were many arguments at the time that the
Supreme Court of Appeal and the Constitutional Court
should be an integrated court consisting of two separate
chambers - an appeal and constitutional chamber - headed
by a Chief Justice. However, under the circumstances
at the time, we opted for two separate courts, the Supreme
Court of Appeal being the highest court of appeal in
the country and the Constitutional Court as the highest
court in all constitutional matters, the former headed
by the Chief Justice and the latter by the President
of the Constitutional Court.
The system of two separate courts works well although
the question as to which of these two courts should
be regarded as the highest court in the country remains.
Except for the functional difficulties experienced in
this regard, the question as to which of the two Judicial
Offices (the Chief Justice or the President of the Constitutional
Court) should be regarded as the highest judicial office
in the country, creates a number of questions, and in
certain circumstances even embarrassment to the incumbents,
not to speak of the confusion it creates for members
of foreign judiciaries visiting our country. To add
to the confusion, the anomaly exists that although the
Supreme Court of Appeal may make an order concerning
the validity of an act of Parliament, a provincial act
or any conduct of the President, such an order has,
in terms of section 172(2)(a) of the Constitution, no
force unless it is confirmed by the Constitutional Court.
This principle was confirmed by the President of the
Constitutional Court in the judgement of Pharmaceutical
Manufacturers Association of SA; in Re: Ex Parte Application
of the President of the RSA and Others 2000(3)BCLR 241(CC).
This in effect means that a judgement of the highest
judicial office in the country needs to be confirmed
by another court. It signifies some kind of inferiority
on the side of the Supreme Court of Appeal. This kind
of phenomenon should not be allowed to happen. It does
not make sense and is, to say the least, confusing.
At the Colloquium referred to above the overwhelming
opinion was in favour of an Apex Court headed by the
Chief Justice. The general view at the Colloquium was
that the Constitutional Court should be the Apex Court
and, in that capacity, house the Chief Justice. To give
effect to these views, certain constitutional amendments
will have to be effected. Proposals in this regard have
already been forwarded to the Constitutional Review
Committee of Parliament for consideration.
The Minister of Justice and Constitutional Development
will be meeting with the Heads of Court on 2nd April
to discuss inter alia the rationalisation of the courts.
Issues regarding the establishment of an apex court,
the appointment of a Chief Justice as the Head of that
Court, the amendment of the Constitution and related
matters are some of the items that will be discussed.
I fully realise that the Constitution requires the
appointment of a Chief Justice and that the position
should not be left open indefinitely. We however need
to resolve the issue to which I have referred. While
the office of Chief Justice is vacant, it is probably
the opportune time to address the issue. In the meantime
however, there is no impediment against the appointment
of an acting Chief Justice. As a matter of fact, an
acting Chief Justice has been appointed pending the
clarification of the issue.
Question No 6
Mrs R M Southgate (ACPD) to ask the President of the
Republic:
(1) Whether the purpose of his proposed visit to Zimbabwe
will be a further exercise in quiet diplomacy: if not,
what is the position in this regard; if so, (a) why
and (b) what are the further relevant details;
(2) Whether any results are expected from this meeting;
if not, why not; if so, what results?
Answers
(1) The matter of Zimbabwe has been dealt with exhaustively
both by myself and honourable members of this House
and needs no detailed elaboration at this stage.
Suffice it to say that the proposed meeting between
the President of Zimbabwe and myself is part of an ongoing
process between us and some of our neighbours to work
through targeted Task Teams of Ministers on specific
matters of mutual interest for the development and growth
of our economies. The other neighbour countries with
which we have similar interactions are Mozambique and
Namibia.
Regarding Zimbabwe, our immediate common objective
is to see what contribution we can make to address the
economic challenges facing Zimbabwe. We have a common
objective to resolve the land question in Zimbabwe so
as to stabilize the situation politically and thereby
create an environment conducive to economic recovery
and development. This we do not only for the people
of Zimbabwe but for the rest of the Southern African
region.
Accordingly, President Mugabe and I have agreed that
our Ministers of Finance, Trade and Industry, Agriculture
and Land and Minerals and Energy must meet urgently
to deal with the details of all the economic matters,
including the challenges of land reform. The Ministers
are expected to find practical solutions and report
progress to us at the meeting we have agreed to convene
soon.
In this regard, the Minister of Finance confirmed this
morning that a meeting at a ministerial level has been
arranged for this coming weekend to deal with these
issues as a matter of urgency.
The Honourable members of this House would also know
that an agreement was reached last year with the United
Nations that the UNDP would be directly involved to
assist with the process of land reform in Zimbabwe.
Madam Speaker, as this House would know, big business
in the country, does not only support our approach to
this matter but they have further committed themselves
to work with their counterparts in Zimbabwe to assist
in resolving some of the problems.
(2) Madam Speaker, we are convinced that our approach
will assist in finding solutions to the problems faced
by our neighbour. We dare not shed our responsibility
as a good neighbour to Zimbabwe and her people. In fact,
we have no choice but to respond constructively to create
conditions conducive to a better life for all the people
of our region.
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