Constitutional Review Committee: 2010 public submissions: deliberations, 2011 committee programme

Meeting report

Public Submissions for Constitutional Review
The Chairperson noted that the Committee had received eight submissions containing suggestions for Constitutional Review.

Submission 8: Traders Action Group
Adv Anthea Gordon, Parliamentary Legal Advisor, briefed the Committee on the submission by the Traders’ Action Group (TAG), which was informal traders group located in Mitchells Plain, Western Cape This submission entailed grievances and dissatisfactions about a process to which the TAG had been subjected during a merging strategy at the Mitchells Plain Town Centre, which raised dissatisfaction about the whole  shopping centre and the space allocated to them as informal traders. The TAG had therefore demanded the resignation of Mr Kenny Brinkhuis, asked that elections be held as soon as possible. It had noted the indifferent attitude of the City of Cape Town during the process. It asked that a Commission of Inquiry be set up into the secret dealings surrounding the development of Mitchells Plain Central Business District, and the setting up of a further Commission of Inquiry into Mr Brinkhuis’s involvement in the Station Plaza, due to undemocratic practices implemented. It also questioned the legality of the inclusion of the two new associations, and asked that they be declared unconstitutional and null and void. It further asked that National Government should consider bringing about legislation to curb the influx of cheap foreign products, especially Chinese products, which caused injury to the future economic stability of South African traders and shop owners.

Adv Gordon submitted that no demands were placed on the Committee in respect of the Constitution, or a review of the Constitution, or any Constitutional amendment. The dispute lay within the jurisdiction of local government and was not one within this Committee’s mandate. She believed that there was no matter for the Committee to address, and suggested that the matter should be directed to the appropriate local authority.

The Committee supported Adv Gordon’s opinion.

Ms B Mncube (ANC, Gauteng) asked whether the traders would be informed of this, and whether the matter would be referred to the Portfolio Committee on Cooperative Governance and Traditional Affairs.

The Chairperson replied that it would be referred to the local government authority, and the traders would be informed.

Submission 3: Dr Ramola Naidoo
Dr Ramola Naidoo was concerned with the accountability of the Executive to the President. His view was that Section 92(2) of the Constitution created the impression that the Executive was only accountable to Parliament, and that the Constitution therefore should be amended to make members of the Executive accountable to the President.

Adv Gordon expressed her view that accountability to the President was inherent in the relationship that the President exercised as the Head of Cabinet in respect to his Executive team. For this reason she did not think that any Constitutional amendment was needed to reinforce the concept of accountability of Members of the Cabinet to the President.

Dr Naidoo further had proposed that some of the Chapter 9 institutions be merged, and that the Commission on Gender Equality should be subsumed into the Ministry for Women, Children and Persons with Disabilities.

Adv Gordon said that she did not think that support could be found for merging an independent Constitutional body into the Executive.

Submission 3(1): Dr Ramola Naidoo
Adv Gordon noted that Dr Naidoo’s next proposal was that the South African Human Rights Commission, the Commission on the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities (CRLR Commission), and the Pan South African Language Board be merged into one giant structure.

Adv Gordon noted that in 2007 there had been a review by an ad hoc Committee on the Chapter 9 institutions. The report of that ad hoc Committee had made certain recommendations. If the Committee decided to take the recommendation further, then she cautioned that this would be a mammoth task that would require consultation between Parliament and the Executive, and the logistics of such an amendment would have to be carefully considered.  She could not advise on the legal ramifications of that, but it was a policy decision that the Committee would have to decide upon.

Dr Naidoo was also of the opinion that the Public Service Commission (PSC) should be abolished and its functions subsumed into the Human Sciences Research Council (HSRC), whilst the rest of the functions should be performed by the Commission for Conciliation, Mediation and Arbitration (CCMA).

Adv Gordon pointed out that the CCMA dealt with labour grievances separately from government. Government had a General Bargaining Council that addressed labour issues in respect of the public service and that served the public service matters that would otherwise go to the CCMA. This was done in terms of a legislative amendment a few years ago. Dr Naidoo’s suggestion was essentially thus to reverse the legislative amendment of a few years ago.

Av Gordon also pointed out that Dr Naidoo had suggested that the PSC should be relocated to the Presidency. It was for the Committee to decide as to whether or not that was feasible.

Discussion
Ms M Smuts (DA) asked whether the Chapter 9 bodies, as well as the Chapter 9 Review recommendations, were on the Committee’s work list for the year. She suggested that the Committee should advise Dr Naidoo that the Committee would be considering the proposals from the Chapter 9 Review, and could consider his proposals at that time. She did not agree with the proposals around the Public Service Commission.

Mr D Bloem (COPE, Free State) agreed with the proposal, but cautioned that it should not create expectations. It should be made very clear that any changes were general, and were not tied specifically to this submission.

Mr S Swart (ACDP) also agreed with part of the proposal, but was also in agreement with Adv Gordon that the other issues were not feasible and should be disposed of accordingly.

Mr N Koornhof (COPE) said that at a previous occasion he had requested that the researchers find out more about Dr Naidoo, as the only detail available was an email address.

The Chairperson said that Dr Naidoo would be informed that the Committee did not agree with his suggestion to amend Section 92(2). However, the Committee would look into the Chapter 9 situation, although it could not guarantee that it would finally decide to amend anything. He would also be advised that his suggestions on the Public Service Commission did not find support.

Submission 4, Mr N Miya
Adv Gordon briefed the Committee on the legal opinion prepared by Mr Ntuthuzelo Vanara, Parliamentary Legal Adviser.

Mr N Miya was requesting that the powers of the Public Protector should be extended. He was not happy with Section 165(3) of the Constitution, which said that no organ of State may interfere with the functioning of the courts, and Section 182(3), which said the Public Protector may not investigate court decisions. He had proposed that Section 196(4) of the Constitution, relating to functioning, should be extended to include the Public Protector’s function to enquire into court decisions.

Discussion
Mr Swart was adamant that this proposal should not be accepted. The courts were independent, and must maintain that independence. There was a complaints mechanism being dealt with through the Judicial Service Commission, and there was an ad hoc Committee dealing with complaints against judicial officers. It would be completely wrong for a Chapter 9 institution to start looking into the affairs of the courts. There were particular reasons why the legislation was drafted in this form and why the Constitution was phrased in this manner. There were already mechanisms to deal with complaints against the judiciary, and it should not be done via the Public Protector.

The Chairperson said Mr Miya would be informed that his submission was not acceptable.

Submission 5: Projects Abroad
Adv Adhikarie said Adv Mukesh Vassen, Parliamentary Legal Advisor, was not present, but she outlined his recommendation, which was to the effect that since Mr Miya had not proposed any amendment to the Constitution, and it did not fall within the mandate of the Committee.

The Chairperson said Projects Abroad would be informed that the submission did not propose an amendment to the Constitution, so that it did not fall within the mandate of this Committee.

Submission 6: Mr T Motsoeneng
Adv Gordon noted the legal opinion in this matter. Mr Motsoeneng was making a submission for the basic restructuring of the courts system. He suggested that the Magistrates’ courts should be replaced with community courts, that the High Court be replaced with the Human Rights Court, that the Supreme Court of Appeal should be replaced with the Constitutional Court, and that the current court structure must be completely overhauled. However, since Mr Motsoeneng was suggesting no new courts, and the system was functioning in South Africa with specific duties attached to each of the Courts, it was the opinion of the legal advisors that what he had proposed was not in fact an amendment to the Constitution.

Discussion
Adv H Schmidt (DA) felt what Mr Motsoeneng requested was very irresponsible.

The Chairperson said Mr Motsoeneng would be informed that his submission was rejected.

Submission 2: Bathlakoane ba Manzimnyama
Ms Refilwe Mathabathe, Parliamentary Legal Advisor, noted that Bathlakoane ba Manzimnyama proposed an amendment to Section 25 of the Constitution. It had proposed that there was a need for a section in the Constitution to provide for expropriation of land from minorities. It argued that the willing buyer willing seller approach was unaffordable for government.

Ms Mathabathe noted that Section 25(1) of the Constitution provided for the protection of property rights of owners against arbitrary deprivation. However, Section 25(2) stated that land may be expropriated, but only in terms of the law of general application, the Expropriation Act of 1975. Sub section 25(3) set out grounds that had to be taken into consideration when expropriation took place. These included the current use of the property, the history of the acquisition and use of the property, the market value of the property, the extent of direct State investment and subsidy in the acquisition of the property and beneficial capital improvement of the property, and the purpose of the expropriation.

The Constitution provided for expropriation in the public interest and that was required to include commitment to land reform. Section 25(8) recognised that there might be circumstances where land may need to be expropriated in order to effect land reform, and recognised that expropriation might need to be done outside of the grounds provided for in sub sections (1) to (4).

Ms Mathabathe submitted that the problem arose not with the Constitution but with the Expropriation Act, which went beyond the grounds laid down by Section 25 of the Constitution.  The Constitution recognised that there might need to be expropriation for reform purposes and also recognised that in those cases government could come up with legislation to expropriate, provided that justification in the public interest overrode some of the provisions set out in Section 25.

Ms Mathabathe was of the view that an amendment of the Constitution was not necessary to deal with the problem, but said that instead Parliament might want to look at the Expropriation Act, to bring it in line with the Constitution. She pointed out that if there were expropriation needs for the purposes of land reform, then Section 25(8) of the Constitution could be used.

Discussion
The Chairperson reminded Members that this was the fourth submission the Committee had received.

Adv Schmidt agreed with Ms Mathabathe that there was a need to distinguish between the Constitutional imperative and the political views of the different parties. Expropriation could be dealt with in legislation, and in terms of Sections 25(5) or 25(8) of the Constitution. The legislative requirements could be revisited. The Constitution did allow the necessary scope for legislation to determine one way or the other the factors to be taken into account in expropriation. He agreed with the conclusions reached by Ms Mathabathe.

Ms Mncube also agreed with the legal opinion, but said that she wished the Committee to engage with the Minister of Justice and Constitutional Development in relation to a review of the legislation, as also with the relevant portfolio committee. She suggested that this be put on to the Committee’s work programme.

Mr A Ainslie (ANC) felt that maybe the time had come to take a closer look at Section 25, especially in the light of the difficulties experienced with land reform in the country. Section 25 was often cited as the obstacle to various projects. He suggested getting more expert opinion and possibly even holding public hearings on the issue. He generally agreed with the legal opinion, but had hoped the opinion would have stressed the issue of the willing seller willing buyer that was embedded in Section 25(2)(b). That was the problem, and he did not feel that it had been sufficiently addressed. He supported the suggestion of including this issue in the Committee’s programme.

Mr Bloem said the main issue was whether it was a matter to be addressed by the Constitution or through other legislation. Ms Mathabathe had suggested that Parliament follow the route of legislation, rather than tampering with the Constitution. He agreed that there should be engagement with other committees, as a matter of urgency.

Another  Member agreed that the matter be taken through these processes.

Mr Ainslie agreed with contacting the relevant committees, but stressed that this Committee should reserve to itself the right to look at the issue. Given that the principle of willing seller, willing buyer was embedded in Section 25(2)(b) of the Constitution, he questioned how legislation could counteract this.

Ms Mncube stressed that this matter must be included on the Committee’s work programme, and given the urgency it deserved. If only the amendment of the Expropriation Act was warranted, then this could be done, but the Committee could also consider further if the Constitution also required amendment.

Mr N Koornhof (COPE) did not think it was such a simple matter. He said that the number of submissions received on the matter were not important but the substance of those was. This Committee could not do the work of government, and it was up to government to come up with legislation that could then be tested against the Constitution. He agreed with the legal opinion and some of the uncertainties caused by Section 25. He cautioned that simply because the debate was relevant in South Africa did not mean that undue urgency should be attached to it, and said that if ten submissions were received about the death penalty government must still be mindful of the principles that were enshrined in the Constitution. The Committee must stick to its brief. He agreed that it was up to the Department of Rural Development and Land Reform to bring proposed legislation to Parliament.

Adv Schmidt agreed with Mr Koornhof. He understood that there was an imperative to refer the matter to another committee, but did not believe that this Committee, having done that, could still exercise oversight over another Committee. This Committee’s task was either to reject the proposal, or refer it on. He agreed that it should be referred to another portfolio committee. Section 25 of the Constitution envisaged that other legislation could be contemplated, and as long as the proposed legislation was in line with the Constitution, there was not need for this to concern this Committee further past the referral stage.

Mr Bloem said Members were now debating something that was already agreed on.

Adv Zorina Adhikarie, Senior Parliamentary Legal Advisor, indicated that there was a new Expropriation Bill before the Portfolio Committee on Public Works and there was very interesting legal opinion from Senior Counsel in respect of that bill. She recommended that the Committee would do well to pick up on the wisdom of some of the issues raised in that legal opinion.

The Chairperson said this Committee would engage with other committees and would also get the legal opinion as suggested. Bathlakoane ba Manzimnyama would be informed that the matter was being processed and they would be informed in due course.

Submission CR3(2): Dr Ramola Naidoo
Dr Naidoo proposed that the word “sustainable” should be incorporated into Section 216(1) of the Constitution. He was of the view that too often, salaries and other expenditure of government departments was excessive, often without justification, and believed that this concern would be addressed if the expenditure had to be justified. He therefore proposed that Section 216 should read that national legislation should establish a national treasury, and should also establish prescribed measures to ensure transparency and sustainable expenditure control in each sphere of government.

Ms Mncube did not agree that the word “sustainable” should be inserted.

Mr G Snell (ANC) said any responsible government, when budgeting for increases, should look at sustainability in any event. There was no reason to put it into the Constitution.

Mr Koornhof indicated that he too did not agree with the submission.

Ms Mncube asked whether the Public Finance Management Act (PFMA) did not already cover the concerns.

Adv Adhikarie agreed with the views expressed by Members. The word “sustainable” was a relative term that was very difficult to analyse. She would not have advised that it be incorporated into the Constitution. If the word “sustainable”had a meaning in a specific context, then that legislation would spell it out.

Mr Bloem felt the proposal should be rejected outright.

The Chairperson noted that Mr Naidoo would be informed that his submission was rejected.

Submission 7, National House of Traditional Leaders
Adv Adhikarie briefed the Committee on the National House of Traditional Leaders (NHTL), who had proposed that two further subsections be inserted into Section 211 of the Constitution, namely:
(4) The institution of traditional leadership is hereby guaranteed.
(5) Parliament shall not enact any legislation which confers on any authority the right to withdraw the recognition of the institution of Traditional Leadership.

The NHTL was effectively seeking a perpetual guarantee of its existence in the Constitution. It was up to the Committee to decide whether this was desirable, although she gave her opinion that there should never be perpetual guarantees of any right.

In respect of Section 212 the NHTL had requested that two sections in the Traditional Leadership Governance Framework Act, which set out the powers and functions of the NHTL, should be incorporated in their entirety into Section 212. Adv Adhikarie noted that this kind of detail was not usually incorporated into a Constitution, but the Committee would have to make a policy decision on that issue.

The Chairperson recalled that the NHTL was supposed to make submissions to the Committee, but had not yet done so, and he proposed that the matter be held in abeyance.

Ms M Dikgale (ANC) agreed. The leaders would be having a national conference on 15 November, where this matter would be raised, and the Committee should stand over until after that time.

Other Committee business: Draft report on Study Tour to Venice and Strasbourg
The Chairperson tabled the report, but noted that Members had not yet had a chance to go through it.

Mr Bloem proposed that Members go through the report and anything that was not clear could be discussed at the next meeting.

The Chairperson asked Members to email or fax to the Committee Secretary their concerns, so that a report could be compiled for the next meeting.

Draft Committee programme: 2011
A draft programme for the first six months of 2011 was tabled.

Mr Bloem said the programme was a guide and subject to change, and proposed that it be adopted. This was supported by Mr C De Beer (ANC, Northern Cape).

Ms Dikgale suggested that meetings be scheduled for 8am so that Members could catch flights home. This was agreed to by other Members.

The meeting was adjourned.