Outline of 2010 public submissions & adoption of draft 2009 Committee Report

Meeting report

2010 public submissions relating to proposed Constitutional reviews
The Parliamentary Legal Advisors briefed the Committee on the public submissions that had been received calling for Constitutional reviews, during 2010.

Bathlakoane ba Manzinyama submission for amendment of Section 25 of the Constitution
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, outlined that the submission argued that Section 25 of the Constitution in its current form delayed transformation. Agreement had been reached in 1993 that apartheid would be phased out incrementally. Bathlakoane ba Manzinyama submitted that the willing buyer / willing seller approach impeded the process of land reform. It was too expensive for government. The submission suggested a provision that would assist the Department of Rural Development and Land Reform to speed up the process of land reform. Ms Mathabathe was of the opinion that the matter was a policy issue and that the Committee would have to reach a policy decision about it.

Discussion
Co-Chairperson Mr S Holomisa  said that the object of the day’s meeting was to come to an understanding of matters. He noted that the views of the Parliamentary Legal Advisors were given to the Committee each year. He thought that it might be necessary to conduct public hearings.

Ms B Mncube (ANC, Gauteng) said that the Committee had to look deeper and find out what could be regulated in terms of Section 25.

Mr N Koornhof (COPE) remarked that Section 25 referred to emotionally charged issues. He suggested that the various political parties should debate it internally, and that the ruling party conduct public hearings. Mandates had to obtained from the different parties.

Co-Chairperson Mr Holomisa said that the Committee was duty bound to review the Constitution. Legal issues and policy could not be easily separated, as even legal issues had policy implications. The question was whether the concern expressed in the submission was catered for in other legislation. Emotionality was not a valid reason to shake the conviction that a need had to be addressed. He did not think it possible to make a decision on that day, but said that a better understanding could be reached.

Ms Mathabathe said that the submission was suggesting that the current policy meant that Section 25 could not contribute to phasing out apartheid. The Committee could provide the mandate to change Section 25, and indicate how.

Ms Mncube asked why the submission had not been taken to the Justice and Constitutional Development Review Committee. It was a sensitive issue. A gap or vacuum in the Constitution had been pointed out, but she was not sure if this Committee had to deal with that.

Mr Koornhof said that the Department of Rural Development and Land Reform had already advocated moving away from the willing buyer willing seller approach. It was impossible to predict what would happen if Section 25 was challenged.

Mr Holomisa said that the suggestion had been made that Section 25 was working against land equity. The question was whether it prevented government from carrying out land reform or not, and whether government as a whole could be hamstrung by the intent of a government department.

Ms Mathabathe responded that it came down to looking at the facts, and to asking what could be done. The policy embedded in Section 25 prompted government to negotiate with private land owners. That practice had led to escalation of prices, which was allegedly one of the factors preventing government from completing its land reform plans. It was more of a practical matter than a legal one.

Dr Ramola Naidoo submission for amendment of Sections 92(2), other sections of Chapter 9 and Section 196 of the Constitution
Advocate Anthea Gordon, Parliamentary Legal Adviser, said that Section 92(2) stated that Cabinet was accountable to Parliament. The submission argued that in doing so, the section purported that Cabinet was not accountable to the President. Advocate Gordon argued that in her view a holistic reading of the Constitution did not support such an interpretation. This part of the submission did not, therefore, to her mind require action. In terms of the Constitution, the President was defined as the “head” of Cabinet.

She noted that the submission by Dr Naidoo called for the amendment of Chapter 9 by proposing the abolition of the Commission on Gender Equality, and for its functions to be absorbed by the Ministry for Women, Children and Persons with Disabilities. It further proposed that the South African Human Rights Commission and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities be merged. Such a merger had to incorporate the functions of the Pan South African Language Board as well.

Advocate Gordon noted that the Ad Hoc Committee that had considered the position of the Chapter 9 institutions in 2007 had recognised benefits of amalgamation, but had stated that such a process could be neither easy nor speedy. She was of the opinion, however, that both the Executive and Parliament had not given sufficient impetus to that process. The functions of the Commission on Gender Equality could not be absorbed into the Executive in terms of the Constitution, but could be absorbed into a single human rights body.
 
Dr Naidoo’s proposed amendment to Section 196 argued for the abolition of the Public Service Commission (PSC), with its research function then being incorporated into the Health and Science Research Council (HSRC). Advocate Gordon argued that the PSC was accountable to the National Assembly, and had an oversight role. Impartiality would be lost if the PSC functions were to be incorporated into the Presidency.  The decision to abolish or relocate the PSC would have to be a policy decision.

Discussion
Dr M Oriani-Ambrosini (IFP) said that Dr Naidoo’s submissions raised questions about the functions of the Joint Committee, and its relationship with the Executive. In his view, this Committee was heirs to the Committee that had drafted the Constitution. He said that he did not think it necessary for the Committee to interact with the Executive. He agreed with Advocate Gordon that the proposed amendments were not desirable.

Mr Koornhof said that the background of and exact identity of Dr Naidoo remained unknown. There was only an M-web address given. Better references were needed to submit to the Joint Committee. Submissions had to be better organised. It was desirable that a CV be provided by whoever made submissions. It could not be established where Dr Naidoo lived, or if he was even a South African citizen. That state of affairs opened the Joint Committee up to abuse.

Ms M Dikgale (ANC, Limpopo) referred to the performance agreement between Cabinet and the Head of State, and asked if that was legally binding. She asked if a Minister could challenge the President.

Advocate Gordon responded that performance management related to how a person did his or her job. A Minister or other person appointed by the President could also be removed by the President, if his or her performance was deemed unsatisfactory.

Mr Holomisa asked if the Joint Committee felt that the identity of Dr Naidoo had to be checked.

Mr Oriani-Ambrosini replied that the core issue was whether Dr Naidoo was in fact a South African citizen. He asked if the Joint Committee needed to engage with every person making submissions. The Committee consisted of politicians who had to review the Constitution. It could not be driven by inputs. It was not a Bill, but the Constitution itself, that was being considered. In his view, this Joint Committee had to position itself to take greater charge of reviewing the Constitution. It had to have its own agenda, not an agenda dictated to it.

Ms Mncube remarked that the brief of the Joint Committee was to consult with the public. She agreed that the South African citizenship of Dr Naidoo had to be established. In addition she thought that the Committee’s mandate should be more clearly stated.

Ms J Sosibo (ANC) asked if it would not be better for a person making a written submission to approach the Committee first. There had to be criteria to establish what the Constitution was saying. She agreed that the identity of persons making submissions had to be established.

Mr Holomisa agreed with Dr Oriani-Ambrosini that the Joint Committee had a responsibility to review. The public would be invited to assist in that process. For the moment, it was important to deal with submissions as they arose.

Dr Ramola Naidoo submission on proposed amendments to Sections 6 and 9 of the Constitution
Advocate Frank Jenkins, Parliamentary Legal Advisor, said that Dr Naidoo’s proposed amendments for Sections 6 and 9 were concerned with the amplification of equality, and affirmative action for jobs, especially in the public sector. Dr Naidoo had proposed that Section 6 be amended to provide for English as the official working language of the Republic, also that government had to advance the use of all languages spoken prior to 1994, and that government had to promote culture through creative endeavour and digital communication for all citizens. It was argued that Section 6(5) marginalized the ancient Khoisan people.

Advocate Jenkins stressed that language was a sensitive matter. The suggestion that English should be elevated to being the only official language must be seen in the context that it was the home language of only 8,6% of South Africans. He could not agree with Dr Naidoo that Section 6(5) could lead to Khoisan marginality. It was also not clear what Dr Naidoo meant by “languages spoken before 1994”. Section 6 in fact provided strong recognition of eleven languages in South Africa.

In regard to the suggestion that government should promote digital communication, Advocate Jenkins opined that it was not a proper subject for Constitutional amendment, and that the State made use of this anyway.

The proposed amendment to Section 9 was that measures to protect and advance previously disadvantaged persons had to prioritise career path development and economic opportunities that promoted sustainable development. Advocate Jenkins advised that the effect of this submission would be to dilute Section 9 into a measure that applied primarily to public sector employment. It was hence better suited for specific legislation. The proposal would take away the rights of people who did not have work.

Discussion
Mr F Masango (ANC) said that it seemed that Dr Naidoo did not understand the country.

Dr Oriani-Ambrosini agreed with Advocate Jenkins that language was one of the most difficult issues. In 1993, the National Party had opposed the suggested status of English. This issue had to be revisited. It was significant that such a small minority spoke English at home.

Mr D Bloem (COPE, Free State) agreed with Ms Sosibo about criteria. However, he pointed out that he was new to the Committee and would appreciate guidance from other Members. He asked if there was a screening process for submissions, or whether it was possible for anyone to submit any document. The resources of Parliament were in danger of being overly stretched. It would be worthwhile to spend a day to review the workings of the Joint Committee, and how it had and would in future decide on submissions. It was also possible that the person who made a submission, although a South African citizen, was effectively bringing forward the submission of a foreigner.

Dr Oriani-Ambrosini added that educated people, however eccentric they might be, could claim the attention of Parliament, whereas the people who could really help, yet may not be heard, might be those from a rural background. He agreed that Parliamentary resources were being stretched. He continued, to general laughter, that highly paid Parliamentary advocates were now having to invest time in examining submissions, which could be better spent on other matters.

Mr Holomisa quipped that Dr Oriani-Ambrosini would incite the advocates to strike, if he continued in that vein.

Dr Ramola Naidoo Submission to amend Section 192 of the Constitution
Advocate Zorina Adhikarie, Senior Parliamentary Legal Adviser, said that Dr Naidoo’s submission on Section 192 of the Constitution called for national legislation to establish an independent authority to regulate free-to-air, mobile and satellite broadcasting and Information Communication Technology (ICT) in the public interest. The independent authority had to ensure an equitable allocation of the frequency spectrum.

Advocate Adhikarie said that Section 192 had not kept pace with new broadcasting technology and ICT. There was a monopoly of public service broadcasting by the SABC, a monopoly of national, private commercial broadcasting by eTV, and, until 2010, a monopoly on satellite broadcasting by Multichoice. A few household names were bidding for licences. No effort was being made to grant licences for local television operators. She was of the opinion that this submission had to inform legislation.

Discussion
Dr Oriani-Ambrosini suggested that the Joint Committee should recommend to the Assembly that this section may require amendment, and see what the reaction would be. Section 192 could not bring about free communication.

National House of Traditional Leaders (NHTL) submission to amend section 211 of the Constitution
Advocate Adhikarie pointed out that the National House of Traditional Leaders (NHTL) had proposed that two further provisions be included in Section 211 of the Constitution, which would guarantee the institution of Traditional leadership. However, Advocate Adhikarie advised that no Constitution could guarantee the perpetual existence of an institution.

She continued that the NHTL had proposed that the provisions of the Traditional Leadership and Governance Framework Act be included in section 212. She opined that the provisions were appropriately contained in the current legislation, and could not further entrench the status of the institution.

Discussion
Dr Oriani-Ambrosini said that it was not unheard of for Constitutions to entrench things. Traditional Leaders had been involved in a 20 year debate around promises made regarding entrenchment of their status. It might be that what Traditional Leaders wanted could only be arrived at through amendment.

Co-Chairperson Mr Holomisa said that the question was whether the amendment was really necessary, or if it was indeed covered elsewhere. If the amendment was deemed necessary, the Committee had to review the issues.

Advocate Adhikarie responded that the decision would have to be made whether it was desirable to entrench provisions on policy issues in the Constitution. The question was whether the Joint Committee wanted the roles and functions of Traditional Leaders included in the Constitution.

Dr Oriani-Ambrosini said that lists of powers of Traditional Leaders were not a legal matter.

Mr Miya submission to amend Sections 165(3), 182(3) and 194(6) of the Constitution
Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser, said that Mr Miya argued for the amendment of Sections 165(3) and 182(3), to extend the current powers of the Public Protector also to include powers to investigate court decisions. The proposed amendment was intended to prevent any branch of government from monopolising political power. Mr Miya further argued for the amendment of Section 196(4) by extending the powers and functions of the Public Service Commission to include improvement of service delivery at local government level.

Mr Vanara advised that the extension of powers of the Public Protector and the Public Service were policy matters to be decided by the Committee. He disagreed with Mr Miya’s interpretation of Section 182(3). In his view that section had no negative effect on the Public Protector’s performance of its functions, in terms of both Section 182 of the Constitution and the Public Protector Act of 1994.

Discussion
Mr Holomisa noted that a basic function of the Public Protector was to deal with local government.

Mr Vanara replied that the Public Service Commission mandate did not yet apply to local government. From a legal point of view, there would be no problem with an extension of that mandate.

Mr Holomisa remarked that a final decision about problems of local government would have to be taken by the Joint Committee.

Mr Motsoeneng submission to amend Section 34 of the Constitution
Mr Vanara noted that Mr Motsoeneng argued for the amendment of Section 34 of the Constitution, to change the current judicial system in South Africa. Mr Motsoeneng had argued that the Magistrate’s Court Act of 1944 and the Supreme Court Act of 1959 were too technical for those not trained in law, and thus denied people from having proper access to justice. He proposed a system in which Community Courts would replace Magistrate’s Courts, and High Courts would be replaced by Human Rights Courts.

Mr Vanara opined that it had not been set out how such an alternative judicial system would function. The issues raised amounted to a policy matter to be decided by the Committee. He advised that the proposal did not necessitate an amendment to Section 34 of the Constitution. If the Committee accepted the proposal, Chapter 8 of the Constitution would have to be amended and new legislation would have to be enacted to give effect to those new provisions of the Constitution.

Discussion
Mr Bloem suggested that the matter be referred elsewhere.

Human Rights Office, Projects Abroad Submission on Section 27 of the Constitution
Advocate Mukesh Vassen, Parliamentary Legal Adviser, said that Projects Abroad was of the view that Section 27 of the Constitution, which provided for socio-economic rights (health care, food and water and social security), was inadequate. Projects Abroad argued that problems in the enforcement of socio-economic rights were caused by the separation of powers between the judiciary and the executive. They argued that it would be more feasible for litigants in socio-economic rights cases to use structural interdicts which ensured that government implemented the decision of a Court.

Advocate Vassen noted that the submission did not propose an amendment to the Constitution. He opined that criteria of reasonableness applied in that instance. The government could, for instance, roll out anti-retrovirals in response to a right to health care. However, it was unreasonable to demand a house from government, as a response to the right to housing. It was hard for a court to evaluate whether government had gone far enough.

Discussion
Dr Oriani-Ambrosini referred to the Treatment Action Campaign court case, where petitioners had sued government for not delivering on what had been guaranteed in terms of socio-economic rights. Kwazulu Natal had intervened by stating that it could indeed deliver. The Court knew that government had the capability.

Advocate Vassen responded that Projects Abroad was suggesting that the South African Human Rights Commission get involved in litigation. However, in terms of the Constitution, that Commission was independent.

Draft Committee Report on the 2009 public submissions: adoption
The Committee’s draft report on the submissions tabled in 2009 was tabled and adopted.

Study tour
Members discussed the planned study visit to the Venice Commission. The Joint Committee was large, but there were written criteria about the composition and size of the group who would visit.

The meeting was adjourned.