There were 16 submissions from 2009 that the Committee had to review. The majority were outside the ambit of the Constitutional Review Committee. Most of these complaints could be resolved by amending particular laws and not the Constitution itself. The Committee pointed out that the Constitution was given effect to by means of laws. The Constitution was not self-executing. Nor was it applied retrospectively.
Each political party would be asked to consider the proposal by the Institute for Democracy in Africa (IDASA). The submission for the removal of all references to God was rejected by the Committee including the recognition of animals for purposes of protection under the Constitution. The Committee would write to those who had made submissions that did not fall within its ambit to inform them to which department or parliamentary committee they should take their submissions.
Deliberations on the 2009 Submissions
Sixteen submissions had been received from the public in 2009 and the Committee had received legal opinions on each of them. The Committee now considered each of these submissions.
Ms Smuts asked if the Chairperson could guide the Committee on those submissions that were not within its ambit.
The Chairperson commented on the following submissions:
▪ Mr Jerome Veldsman asked for, amongst others, a review of section 6(5)(i), (b)(ii) and section 35 (2)(f). His submission contained proposals that warranted constitutional review except for the proposed amendment of section 16(2) of the Constitution.
▪ The submission by the Building Contractors of Limpopo was a Department Public Works issue.
▪ The submission by Rashid Patel and Company did not warrant a review.
▪ The submission by Mr McLeod on the review of all references to God in the Constitution did not warrant a review.
▪ The proposal by Sikwele Centre for Social Reflections to review section 29 so that the state could make provision for free basic education up to Grade 12 - this did not need a constitutional amendment.
▪ The request to review the recognition of Muslim marriages did not require a constitutional amendment.
▪ The submission by Ruiters was not legible.
▪ The submission by Mr Ngcube did not warrant a constitutional amendment.
▪ The submission by Advocates for Transformation warranted further discussion.
▪ The submission by Mr Mkhalipe did not warrant a review by the Committee, as it fell within the ambit of the Department of Arts and Culture.
▪ The decision about the submission by IDASA was that they would be referred to the study groups of each individual political party.
▪ The submission by Mr Ismail for legal advice on remedies available for land restitution claimants who had due compensation in respect to their land claims did not require a review by the Committee.
He said that these submissions did not fall within the ambit of the Committee but they could be referred to the relevant departments or parliamentary committees for review.
Mr Jerome Veldsman submission
His submission contained proposals that warranted constitutional review except for the proposed amendment of section 16(2) of the Constitution.
Ms Smuts differed with the Chairperson on his pronouncement on the proposed amendment to section16 (2) of the Constitution. This was a legitimate constitutional amendment. The DA caucus also supported the submission by IDASA.
Mr S Holomisa (ANC) suggested that the submissions that did not warrant constitutional review should be disposed of first and then those that warranted a review should be considered.
Building Contractors of Limpopo submission
The Chairperson said the submission asked for a review of the Construction Industry Development Board Act 38 of 2000. According to the advice given by the State Law Advisors, this matter did not fall within the ambit of the Committee and had to be referred to Department of Public works or the parliamentary committee overseeing that department.
Mr Holomisa said that they should be advised to take the matter up with the relevant Portfolio Committee.
Ms Smuts said that she preferred the approach of the Committee replying to the persons making the submission, advising them to take up the matter with the relevant parliamentary committee if they so wished.
Rashid Patel and Company submission
The submission stated that officials who did not perform their duties caused an infringement of one’s constitutional rights and this should also be criminalised.
Ms Smuts said this submission had entirely misconstrued the Constitution, as it was not self-executing; it was given effect to in laws. This fell within the realm of Public Service and they should be advised where to take the matter further.
Mr S Swart (ACDP) agreed with Ms Smuts and added that the Constitution already enforced and protected rights. If a criminal offence had been committed then the existing laws should be followed. This submission should be rejected.
Mr McLeod’s submission
The submission stated that all references to God should be removed from the Constitution. It suggested that the Constitution should establish and include basic rights in accordance with the precepts of Ubuntu for all sentient beings, to apply equally to people and Africa’s animal order.
Mr Swart suggested that this submission should also be rejected as the Constitution respected all religions and it was not anti-religious. Section 15(2) indicated that the state had a very strong interest in religious bodies. He noted the constitutional body, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Bodies. This suggestion should be denied outright.
Ms Smuts added that the Constitution protected fundamental human rights and not animal rights. The idea of the protection of other sentient beings should not be entertained.
Mr Holomisa commented that there were already sufficient laws in place to protect animals.
Sikwele Centre submission
The submission had three proposals. The first was for the removal of section 29 of the Constitution; the Honourable Dr Motsoko Pheko also supported this. The second proposal was for a limitation of section 28 (2) so it could restrict the conditions under which the termination of a pregnancy could be performed. The third submission was for an amendment of section 29(1) in order for there to be a provision of free basic education up to Grade 12. The advice received from the State Law Advisors was that there was already adequate protection around the matter of termination of pregnancy.
Mr Swart (ACDP) said that his party supported the submission on the termination of pregnancy.
Ms Smuts commented that she detested the country’s law on abortion but the proposal seemed to request a change in the law as opposed to a constitutional amendment.
Mr Swart agreed with Ms Smuts as the legal opinion had indicated that the Sikwele Centre should seek legal advice on how to challenge the provisions of the Choice on Termination of Pregnancy Act.
Ms Smuts suggested that the submission was for an amendment to the abortion law and the Constitution was not conclusive on these matters. For this reason the Committee should decline the request.
Mr Holomisa agreed with Ms Smuts, as this was a request for an amendment of the relevant law.
The Chairperson suggested that this matter should be referred to the Portfolio Committee of Health. The submission by Dr Pheko on the property rights clause of the Constitution would be put aside for further discussion, as there were others who had a similar view.
Mr Swart said that on the matter of basic education the legal opinion had indicated that the Committee did not have jurisdiction to hear the matter. This was incorrect otherwise what was the task of the Committee then? There had been an announcement by the Minister of Higher Education that the National Student Financial Aid Scheme (NSFAS) would be reviewed. A number of students had been asked to repay their student loan debt but this was incorrect due to the debt having already prescribed. This should be raised with the appropriate Minister.
Mr Holomisa agreed with Mr Swart, the Committee had jurisdiction and any constitutional amendments could be effected by Parliament if necessary.
Ms B Mngcube (ANC; Gauteng) pointed out that the Committee had to respond to the other submission on the right to free basic education.
Mr Holomisa suggested that this should be referred to the Portfolio Committee on Basic Education.
Mr Ngcube’s submission
The Chairperson said that submission dealt with social and political inequalities. This was not a formal request for a constitutional amendment and the writing was merely venting his anger.
Advocates for Transformation submission
The Chairperson said that this proposal would be set aside for later consideration until there was finality on a few issues.
Ms Smuts supported this proposal.
Mr Mkhalipe’s submission
The Chairperson said that the submission was about spelling errors in the Constitution.
Mr Holomisa said that the matter should be referred to the necessary department.
Mr Ismail’s submission
The Chairperson said the submission asked for legal advice on remedies available for land restitution claimants who were due compensation but were dissatisfied with the compensation paid to them.
Mr Swart said that this was a request for legal advice or relief. The person could seek legal advice.
Adoption of Committee Minutes
Three sets of minutes (9 and 30 October 2009; 13 November 2009) were amended and adopted.
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