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LOCAL GOVERNMENT PORTFOLIO COMMITTEE
6 March 2002
COMMISSION FOR PROMOTION AND PROTECTION OF RIGHTS OF CULTURAL, RELIGIOUS & LINGUISTIC COMMUNITIES BILL: DELIBERATIONS
Chairperson: Mr Y. Carrim
Documents handed out:
New Part 8: Community Councils (see Appendix)
Commission for Promotion & Protection of Rights of Cultural, Religious & Linguistic Communities Bill [B62 -2001]
Proposed Amendments (Stage 3) [this stage is not available. Stage 4 will shortly be made available]
Department of Provincial and Local Government delegation: Mr Zam Titus (Director General), Mr Johan Beukman, Dr Petra Bouwer, Mr Joe Dube (Senior Legal Administrative Officer).
The Department took the Committee through the Third Working Draft of the Bill (Stage 3) checking the amendments that had been effected. The Committee agreed to the new part dealing with community councils. The fourth and final draft will be circulated to members prior to the Committee adopting the Bill at the next meeting.Â Â
The Chair pointed out that the Bill has been fairly exhaustively discussed and it is imperative that the discussions surrounding the new amendments be completed by the end of this session. Regarding the new proposed amendments, he advised the Committee that:
- sections in the Bill have been moved around to ensure a streamlined and coherent format,
- the relationship between the Commission and consultative conferences has been tightened,
- there has been the allowance for greater flexibility for the Commission by including the word â€œmayâ€? where appropriate.
- it had been agreed to explore the possibility of enhancing the section surrounding community councils.
He reminded the Committee that it had undertaken to look into the possibility of community councils being delegated powers and functions which are enjoyed by the municipalities. He suggested that the Committee was concerned about the productivity of the institutions. He noted therefore that in its report to Parliament, there is the need to urge that there be greater cooperation between institutions. He would draft a proposal concerning the avoidance of the overlap of functions, and concerning the productivity of the institutions.
Mr Olifant (ANC, Co-Chair) strongly believed that discussion on the amendments to the Bill could be completed today as these were mainly technical issues. for consideration., without having to debate the Bill.Â
Dr Petra Bouwer went through the third stage of the Bill (dated 5 March 2002) pointing out what changes had been made as result ofÂ the Committee's deliberations on the Bill in November last year.
The Chair remarked that with regard to cultural councils, the question of whether powers and functions should be delegated to them arises once again.
Dr Bouwer replied that if one has regard to the Constitution, and the way in which Local Government functions, the possibility of delegation is within the governmental structures.Â S160 of the Constitution lists when powers and functions should not be delegated. His view was that it is unconstitutional for the municipality toÂ delegate its powers to the community councils. He stated that he is convinced that the powers and functions to the municipality should not be delegated to community councils, however where the community council wishes to embark on a â€œprivate enterpriseâ€? they were free to do so.
Ms. Borman (DP) enquired about the possibility of a museum being cared for by a community council where the powers of curatorship have been delegated to another body of persons. According to the Constitution, powers cannot be delegated.
Mr Bouwer stated that in practice this can happen as public partnerships can be effected. He said that caring for the museum does not amount to a municipality giving away its powers.
Mr Titus replied that one should bear in mind that you have a particular system of government which is entrenched in the Constitution. When you look at that system of government, the governmental authority is clearly defined - there is no tier of government which can divest itself of its authority outside of the parameters of the Constitution. He said there is a democratic system of government in place but that needs to be distinguished where you have a local authority exercising governmental authority. He gave the example of Oranje, wherein no people outside that community are employed to sweep the street and remove the waste; there is no municipality which does that. There is the rendition of services, but when it comes to the regulatory aspect of implementing by-laws and charges for doing those services, that authority (of creating by-laws and introducing service charges) cannot be passed on to the residents of Oranje.
Mr Aucamp (AEB) stated that if you view the Constitution from a top-down angle, the question that arises is: what functions of life are under the custodianship of the state? He remarked that cultural development is not under the custodianship of the state - its an essential part of civil society. There are a many matters which through practice vests in the state or for example the Department of Arts and Culture, but which can be performed by the cultural communities. However there is no provision in the Bill for them to carry out these functions. The crucial requirement is that civil society be empowered to carry out these functions. He referred to Oranje, and stated that this scenario is akin to "you do the job, as long as we make the decisions". This needed to be remedied.
Mr Titus responded that he did not think it possible to engage in a debate if they are going to make generalised remarks. The Constitution is specific. If something must be done which falls in the spheres of government, Schedules 4 and 5 must be looked at as they are specific. He also referred to the fact that there is a new section (Part 8: Community Councils) and proposed that the Committee should begin with a discussion of that and thereafter look at what should be added. The Chair agreed on this the plan of action.
Part 8: Community Councils
The Chair first read out Clause 38 dealing with the aims of the community councils.
Mr Aucamp referred to the words â€œculture, language or religionâ€? and asked if would not be appropriate to add something in this section to the effect of promoting the rights of people.
Mr Titus replied that in Clause 36(1) reference is made to Section 31 of the Constitution. Rights are enshrined in that section, and in terms of drafting, he would prefer not to duplicate that.
The Chair replied that the Constitution speaks of promoting the rights of all people of the country. The community councils will however seek to represent the culture, language and religion of the community it represents. There is a subtle difference between the Commission and the community councils.
Dr Bouwer said in the sense of its functions, S 31 (1)(a) of the Constitution sets them out. In this Bill we are extending the ambit of those activities. Within those rights, the functions of community councils is to preserve, promote and develop the culture, language and religion, therefore these are already addressed in the Constitution.
The three clauses of the Part 8 were read out. Dr Bouwer submitted that these clauses shed clarity on the scheme of things. Clause 36 deals with an entirely different aspect of the Commission. Clause 36(1) states that persons may form, join and maintain associations and other organs of civil society as envisaged in section 31 of the Constitution. The Commission has the power to recommend to the community to establish more formalised structures. Section 37 states that irrespective of how it is structured, it can apply to the Commission for recognition.
The Chair asked whether what is stated in Clauses 36 and 38 are rather â€?aimsâ€? and not â€œpowers and functionsâ€?.
Dr Bouwer replied that the concept of powers and functions is associated with government. He gave an example of an establishedÂ tennis club -and in that context, one would talk about the aims of that club. He stated that with entities outside of government, one would refer to their aims rather than powers and functions.
Mr Titus spoke about how authority is derived in South Africa. When it comes to government and voluntary associations, there is a constitution and legislation (which is the primary subordinate legislation), judicial precedent and the common law. It is the common law that looks not only at government but to the citizens. Herein the notion of voluntary associations comes into the picture. In the Bill, there is the mention of freedom of association, this is linked to the Constitution, but is not controlled by it. He gave the example of the Kaizer Chiefs soccer club and stated that you cannot compel that club to deal with certain aspects of their daily business in certain ways. He stated that community councils are voluntary associations which are meant to foster what Section 31 of the Constitution recognizes. The law circumscribes the aims and the community councils can define whatever powers and functions they want to enjoy.
As no further issues were raised by the Committee after re-reading Clauses 36 and 37, the Chair indicated that the Committee would adopt new Part 8 formally at the next meeting when the Committee would vote on the Bill.
The Chair proceeded to read out the proposed amendments from the beginning of the document.
A new long title was proposed at the last meeting and the committee was satisfied with the wording of this amendment.
A new preamble was proposed at the last meeting. Upon reading out the new preamble, the Chair said that the use of â€œpromoteâ€? three times in the Preamble did not have a nice ring to it.
Dr Bouwer explained that "achieve" had been replaced by another "promote" in the phrase, "the Constitution seeks to [achieve] promote unity in our diversity". He said that "achieveâ€? connotes something which you personally reach and that a Constitution cannot achieve anything personally.
The Chair suggested that the Committee looks into the possibility of replacing â€œpromoteâ€? at least once with a substitute word.
New Clause 4: Objects of Commission;
The Chair pointed out the inclusion of this new clause with clause 4(e) amended to read â€œto recommend the establishment or recognition of community councils in accordance with section 36 or 37â€?
New Clause 5: Powers and Functions of Commission;
Ms. Borman (DP) suggested that â€œobjectsâ€? be amended to â€œobjectivesâ€? as it does not sound correct in that context.
Mr Titus replied that this was one of the issues raised in 1994 in the drafting of the Constitution. He suggested that the drafting approach suggests that it is correct to state â€œobjectsâ€? instead of â€œobjectivesâ€?.
The Chair referred the Committee to section 5(g) and suggested that this was a compromise between those members who did not want the inclusion of this subsection, and those who did. He suggested that the effect of this is the same.
Referring to section 5(k) the Chair pointed out that the latter part of the section had been omitted because of the legal connotations attached to it.
New Clause 6: Assistance from other constitutional institutions andÂ organs of state;
The Chair asked for the difference between â€œoverlapâ€? and â€œcoincideâ€? in section 6(2).
Mr Titus suggested that â€œoverlapâ€? connoted the sense that you have a body which is dealing with matters incidental to the specific functions of the Commission.
Dr Bouwer suggested that â€œoverlapâ€? specifies incidental aspects of the functions of the Commission, whereas â€œcoincideâ€? connotes a positive function - an inter-relatedness with the other functions of the Commission.
The Chair suggested that the use of â€œcoincideâ€? is almost like entrenching something which is a coincidence, whereas â€œoverlapâ€? is much looser. He wondered whether â€œcoincideâ€? should be included in the Bill at all.
Ms. Borman suggested that â€œoverlapâ€? has negative implications attached to it. However she was also troubled with the inclusion of â€œcoincideâ€?. She suggested that the Committee rethink the use of the word.
Original Clause 5
Mr Titus suggested that the Commission would be shaped by the specific circumstances of the time, and that the President will avail himself of all criteria when selecting members for the Commission.
Another committee member suggested that it would be wise to determine the number of members for the Commission before hand, and that you cannot during the selection process determine the number of people you wish to appoint to the Commission.
The Chair asked if it would be possible to determine the number of persons after you have considered all the applicants for the commission.
Dr Bouwer stated that the selection committee has to bear in mind that you can select members for a term or for merely filling a vacancy. Therefore the structure of this clause caters for both these scenarios.
Mr Titus replied that you have a commission as a body which is given a responsibility. He reminded the Committee of the addition of the definition of â€œcommunity councilâ€? in Clause 1. Therefore subclause 3(a) is included in the amendment. Subclause 3 (c) deals with how individuals are to be selected to be part of the Commission. It is imperative to ensure that that the right people are selected who will promote the goals and objectives of the Commission.
Ms Borman suggested that the concept of "nation-building" should be included in the advertisements calling for applications to this Commission.
The Chair noted that this clause had not been discussed before. He suggested that the concept and wording of the clause is good.
Mr Oliphant differed and said that 3(c) does not look nor sound good - particularly with the words â€œand nation-buildingâ€? tacked on at the end of the clause.
To this end, the Chair suggested that perhaps 3(c) needs to be broken up into two sub-clauses.
Mr Aucamp (AEB) believed it was a collective clause and that it was not wise to break it up.
However the Chair suggested that it be reconsidered later.
Original Clause 6: Qualification for membership
The Chair suggested that qualifications for membership and termination of membership should follow one another and be linked. Clause 6 deals with â€œqualificationsâ€? whereas clause 12Â with â€œterminationâ€?. Mr Khompela (ANC) agreed
Dr Bouwer suggested that qualifications for and termination of membership are linked in the sense that the one ground is common to both clauses.
Dr Bouwer felt that qualification precedes appointment and the termination of a member as has been dealt with, is suitably placed.Â It is only once those procedures in Clauses 6,7,8,9,10 and 11 have been dealt with, can a person's membership be terminated.
Mr Solo (ANC) suggested that you must visualize the type of person you want to have on the Commission, and therefore the sequence in which it is done is important. He felt the procedure in which the matters have been dealt with and the sequence of events is acceptable. The amendments to the Bill have been done after extensive discussions, hence he believed it was best to leave the sequence of events as is.
The Chair replied that the notion of disqualification should be included in the qualifications of membership. The notion of qualification is interlinked with that of disqualification. He believed that there is no need for a separate section for both.
Mr Aucamp (AEB) suggested that the current chronological sequence of how things happen in the Bill was good and should be left as is.Â
Dr Bouwer said that the real principle is that disqualification â€œforâ€? membership differs from disqualification â€œofâ€? membership. Clause 12 does have a link by referring to clause 6 but he said the clauses should remain as they are.
New Clause 11: Procedure for appointment of members
The Chair remarked that in Clause 11(d) the word â€œwillâ€? had been removed because when you compile a panel the ultimate result is that they command respect.
After Mr Olifant it pointed out, the Committee decided that Clause 11 (2) (c) be reworded so that â€œnation-buildingâ€? does not look like a last minute addition to the sentence.
The Chair remarked that when you appoint members to the Commission you are looking for people who have specific knowledge of the rights and requirements of the Commission. The composition of the Commission should be broadly representative of the different communities. There is the possibility of their putting the needs of the community they represent first. That is not related to nation-building. He suggested the option of including â€œofâ€? after â€œandâ€? in the sentence, and the Committee agreed to reconsider this aspect.
Mr Aucamp suggested that the Commission reconsider this as â€œnation-buildingâ€? should not stand alone at the end of the sentence.
Dr Bouwer suggested that the clause be broken up to read (a) to promote and protect the rights of cultural, religious and linguistic communities, and (b) nation-building, so that the word â€œnation-building does not look like an add on. The Committee agreed to reconsider this.
Original Clause 8
Apart from the technical amendments to the clause, the Chair asked if â€œanother personâ€? in Clause 8 (1) would make it possible for the President to appoint a person outside of the Commission as the chairperson should he feel that no members of the Commission are fit and proper to be elected as chair. He also asked if the words â€œfit and properâ€? were appropriately used in the clause.
DrBouwer pointed out that that was the additional motivation for retaining these words, as it allows for the appointment of a non-member as chairperson of the Commission.
Mr Titus responded that the reason for the insertion of the words â€œanother personâ€? is that there has been caution with the establishment of this Commission. Discussions since 1996 surrounding the composition of this Commission have ensued. Unless you appoint the right person, there is the potential of doing away with the advantages which the Bill might have for South Africa. Therefore the appointedÂ chairperson should be a person who has outstanding attributes and possesses certain additional skills. Sometimes you cannot find that person in the team assembled, and rather than dismantling the entire Commission and reassembling it from scratch, you must be able to search for the right person beyond the team.
With regard to â€œfit and properâ€?, Mr Titus said the phrase has a long history in South Africa, as it is also used in the appointment of judges, advocates and attorneys. In deciding whether a person is â€œfit and properâ€? you look at attributes personal to the individual. And sometimes you can invade a person's privacy by looking for them. He stated that these words are inherited from pre-1994 drafting techniques.
Ms. Borman suggested that the words â€œanother personâ€? had something to do with maintaining the independence of the Commission.
The Chair suggested that the following issues need to be reconsidered by the Commission: nation-building, fit and proper as well as â€œanother personâ€?. He stated that these issues be considered before the committee convenes for its next meeting.
Mr Khomphela said that there is the need to look at the intention behind the use of the words â€œanother personâ€?. Ms Borman said that the committee's point of view is to keep total independence of the Commission in mind.
The Chair said that he would personally be uneasy about the President appointing another person to the Commission. He enquired whether more explicit wording can be used in place of â€œanother personâ€? and asked whether the phraseology could be tightened so that not just any other person is appointed to the Commission.
Mr Titus posed this scenario to the Committee: there was a time in the life of this country when it proposed that judges should be chairpersons of a political forum. The situation in the country demanded that that should be the case. Nowadays it has been said â€œNOâ€? to that ideal. Where you are as a country at a particular time, influences your trend of thought . He suggested that the proper route to go is to give the President an additional option to bring in some form of safeguard by including the words â€œanother personâ€?. This is the reality of the Commission: it is not any ordinary Commission.
New Clause 24: Convening
The Chair read out Option 1 and 2 for New Clause 24 and suggested that the Committee should opt for Option 2.
New Clause 26: Composition
The Chair suggested that if you use the term â€œcomposeâ€?, you give the impression that there is a standing arrangement that certain people are part of the Commission. What you have here are people invited from different sectors of the community.
In reply to Ms. Borman asking why those different bodies are referred to in 26(d), Mr Beukmann replied that the statutory bodies are defined there.
Original Clause 29
The Chair mentioned that certain members were concerned about this clause.
Mr Beukmann said that this is a technical arrangement as some people were concerned that the person presiding at a session might not submit resolutions to the Commission.
The Chair asked if the words should read â€œappropriate considerationâ€?.
Dr Bouwer stated that there are other amendments made which impact on this. He stated that clause 29 deals with this aspect.
Original Clause 34
It was suggested that a Commissioner should be in a position to receive gifts, hence the clause was amended.
The meeting was adjourned after the Chair thanked the members of the Department for their input on the Amendments.
1.Â Â Â Â Â Â Â Â That the following be a new Part to follow Part 7.
PART 8: COMMUNITY COUNCILS
Recommendation of establishment of community councils
36.Â Â Â Â Â Â Â (1)Â Â Â Â Â Â Â Persons belonging to a cultural. religious or linguistic community may form, join and maintain cultural, religious and linguistic associations and other organs of civil society as envisaged in section 31 of the Constitution.
(2)Â Â Â Â Â Â Â The Commission may recommend to a community, which is not organised, to initiate and establish a community council at a provincial or national level if the establishment of such a council would be conducive to -
(a)Â Â Â Â Â Â Â the promotion and protection of the rights of such a community; and
(b)Â Â Â Â Â Â Â the promotion and development of peace, friendship, humanity tolerance and national unityÂ Â among and within the different communities in South Africa
Recognition of community councils
37.Â Â Â Â Â Â Â (1)Â Â Â Â Â Â Â A community council envisaged in section 36(1) or (2) may in the prescribed manner; apply to the Commission for recognition.
(2)Â Â Â Â Â Â Â The Commission may in writing recognise a community council for purposes of participation in a national consultative conference and section 38.
(3)Â Â Â Â Â Â Â A community council recognised in terms of subsection (2) may apply to the Commission or any other organ of state for financial assistance.
Aims of community councils
38.Â Â Â Â Â Â Â (1)Â Â Â Â Â Â Â The aims of a community council recognised in terms of section 37 should be to -
(a)Â Â Â Â Â Â Â preserve, promote and develop the culture, language or religion of the community for which it is recognised; or
(b)Â Â Â Â Â Â Â advise the Commission on, and assist the Commission in. matters concerning the achievement of the objects of the Commission.
1. On page 11, in line 16, to omit "performing a duty or exercising a power, and to substitute:
exercising a power or performing a duty
1. On page 11, in line 33, to omit "section 23(2)(a)", and to substitute "section 7(2)(a)".
2. On page 11, in line 37, to omit "section 23(2)(b)", and to substitute "section 7(2)(b)".
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