Legal opinion on the 2011 public submissions: briefing by Parliamentary Legal Unit

Meeting report

The Chairperson announced that 13 Members of the Joint Committee on Constitutional Review (Committee) were attending other Committee meetings and had conveyed apologies.

Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, said that the Parliamentary Legal Advisers had observed nine public submissions and prepared opinions for the Committee. The submissions were prepared with both Committee-reference (CR) numbers and Legal Adviser office reference numbers and that for the purpose of presenting the opinions in chronological order, the CR numbers would be used.

CR 1. Adv Sueanne Isaac, Parliamentary Legal Adviser, briefed the Committee on the submission from a Mr SC Mbambo. He alleged that on 27 August 2010 he purchased a vehicle from a Mr S Narismulu (the seller) and in terms of their agreement, the seller would provide him with the car logbook a week after he purchased the vehicle. The seller failed to do this and the submitter reported the matter to the police, where he did not receive any assistance. Further, he alleges that on one occasion he was stopped by police officials who demanded R1000 so not to be arrested for driving without a valid car licence. He paid them R150, as that was all he could afford. The police officers then confiscated his car licence until such time as he paid the amount of R500. He was unable to identify the officers whom he alleged confiscated his licence. Currently he does not have a car licence and requests assistance to obtain one. He states that 'the police are stealing from him and that this needs to stop'.

Legal opinion was that the submission contained no request for the Committee to amend the Constitution. It was a civil matter. Current law provided sufficient mechanisms by which the submitter could obtain the relief he was seeking. The legal team advised that the submitter seek assistance from an attorney regarding the alleged breach of the contract by the seller. Should he not be able to afford legal services, the team suggested that he approach Legal Aid South Africa or one of the University Campus Law Clinics. The incidents of alleged corruption by police officers must be reported to the South African Police Service and the Independent Complaints Directorate (ICD). In conclusion, the submitter did not request a review of any section of the Constitution. The advisers recommended that the Committee should address a letter to the submitter advising him that it was unable to assist and suggest that he seek the alternative remedies suggested above.

CR 2. Mr Vanara, Parliamentary Legal Adviser, presented the submission from Mr Z Mbawula who was seeking the Committee's assistance with the law relating to initiation issues. He suggested that the circumcision performed at hospitals could not be equated to initiation customarily practiced in African communities. He suggested that failure to distinguish between the two practices had the effect of undermining tradition. The legal team realized that Section 9 dealt with the right to equality and Subsection 3 prohibited unfair discrimination of culture. Initiation and circumcision formed part of culture and the Children’s Act dealt specifically with circumcision and how it should be practiced. The legal advisers concluded that it was never the intention of the drafters of the Constitution to differentiate in terms of who practiced a particular culture and that the Constitution recognized equality of all cultural practices. Furthermore, the Children's Act (Section 12) was clear that no cultural practice received preference over another preference (consistent with Section 9). Should the Committee accede to the request of the proposal, Section 9(3) would have to be amended so that with reference to culture, the word 'circumcision' would have to be excluded. The legal advisers were of the opinion that this was an unnecessary and undesirable amendment.

CR 3. Mr Vanara said that submission 3 was received by a Mr J Mokoena, on behalf of Bathlakoane Ba Manzimnyama, requesting that a new clause be inserted within Section 25 (property clause) of the Constitution 'to the effect that each government administration must have a window period to lodge land claims until everyone has been covered'. The advisers understood this to be a request to consider amending Section 25 of the Constitution in order to empower each administration, in its five-year term, to give a window period for the lodgment of new restitution claims, and this arrangement should persist 'until everyone was covered'. The legal advisers' view was that the submission would require a policy decision by the Committee and this would not be desirable for two reasons: the closing date for land restitution was not set by the Constitution, but in terms of Section 2(1)(e) of the Restitution of the Land Rights Act. The date from when land claims would be recognized, June 1913, was however in the Constitution. If the date for lodgment of restitution claims was to be changed, the advice was that the approach would be to amend Section 2(1)(e) of the Restitution Act and not the Constitution. In addition, Section 25(8) of the Constitution was sufficiently wide to accommodate further legislative or other measures aimed at achieving, amongst others, land reform.

CR 4. Mr Vanara said that the submitter, Mr T Mojaki, who was currently an inmate in the Mangaung Correctional Centre, felt that the way that parole was currently being practiced was to his detriment. He believed that his parole should be determined according to the 1959 Correctional Act guidelines, which was repealed in 2004 when the 1998 Correctional Services Act in 2004 came into operation. Before any amendments were effected to the 1959 Act, prisoners were required to have served 1/3 of the sentence before being eligible for consideration of placement on parole. The 1998 Act provided that an inmate serving a determinate sentence should have to serve half of the sentence of imprisonment to be eligible for parole. He relied on Section 35(3)(n) which states that if an earlier law was less harsh than the subsequent law, the lighter and previous legislation would be applied. He was not asking for 35(3)(n) to be amended but was using it to consider the law in terms of the earlier legislation. Opinion was that the submitter did not seek review of the Constitution. Recommendation to the Committee was that because of the frustration the person was experiencing, the Committee could refer the matter to Parliamentary Committees which had oversight on the Department of Correctional Services.

CR 5. Ms Isaacs said that the House of Traditional Leaders’ submission proposed that Section 9 be amended to remove ‘sexual orientation’ from the equality clause. The advisers felt that this would not be in keeping with the values of human dignity, the achievement of equality and the advancement of human rights and freedoms that was protected and promoted by the Constitution. Section 9 (3) prohibited the state from discrimination against a person on the basis of sexual orientation. Similarly, Section 9(4) prevented a person from discrimination against another person on the basis of sexual orientation. The implication of the submitter’s proposal was that sexual orientation must no longer be a category protected from unfair discrimination by either the state or any person. Opinion was that such an amendment was not desirable, although was a policy matter to be decided by the Committee.

CR 6. Adv Phumelele Ngema, Parliamentary Legal Adviser, said that submissions from the Mpumalanga House of Traditional Leaders proposed that Section 212 and Section 211 of the Constitution be amended. In terms of Section 212 they proposed that roles, functions and status of the Traditional Councils ‘may be enshrined in the Constitution’ should be replaced with ‘must be enshrined in the Constitution’. Opinion was that because Parliament already had enacted the Traditional Leaders Framework Act, it was an Act which spoke to the roles, functions and status of the Traditional Council. The Traditional Leaders also proposed that the Institution of Traditional Leaders ‘must’ be recognized. In fact, the Institution was recognized in Section 211 of the Constitution. Section 5 of the Traditional Leadership and Government Framework Act spoke to a broader scope of partnership or the use of Traditional Councils and Traditional Leaders where necessary. The Municipal Structures Act allowed for partnership between local government structures and Traditional Councils.

There was also a submission which suggested that where Traditional Communities existed with Traditional Councils in place, those councils should do the functions performed by Local Municipalities in the Traditional Communities. Research had informed the parliamentary legal advisers that involvement of Traditional Leaders in government where Traditional Communities existed could strengthen government structures. The submission also proposed that there had to be distinction between the various roles of the Traditional Leader governing in the community. Opinion was this was a policy matter and that the Committee may wish to consider as to whether, where Traditional Communities existed, there could be Traditional Councils taking over functions of Local Municipalities.

The Traditional Leaders also proposed that Traditional Council should work together with the Electoral Commission when dealing with elections in Traditional Communities. The Electoral Commission was a Chapter 9 Section 190(1)(a) institution. Mr Vanara added that the view of the advisers was that if the Committee accepted that the Traditional Leaders played a bigger role, it could be clarified in the Traditional Leaders Framework Act and not necessarily in the Constitution. The submission proposing that the Public Financial Management Act should regulate the House of Traditional Leaders would involve a major restructuring of the Public Financial Management Act. However, the advisers did not understand the reason that informed that submission, which made it difficult to engage on it.

CR 7 Mr Vanara said that there were two electronic submissions. One of them proposed deletion of Section 25 (property clause) of the Constitution and suggested a new property clause. This involved a policy decision and the Committee would decide whether the current form of the Land Reform Policy should be amended.

The second electronic submission proposed that Section 86 of the Constitution be amended so that the President would be directly elected by members of the public rather than members of the National Assembly. This was a policy choice available for the Legislature to consider.

CR 8. Ms Isaac said that Mr C Terezakis had submitted that three amendments be made to the Constitution. He proposed that Section 28(1)(b) be amended to provide that ‘every child had the right to: family and parental care, and when separated from one or both parents, to maintain personal relations and direct contact with both parents on a regular basis, or to appropriate alternative care when removed from the family environment’. Opinion was that the Constitution and Children’s Act contained existing provisions for the submission and that amendments were unnecessary. However, the Committee could make this policy decision.

A second request was that Section 165(3) be amended to read: no person or organ of state may interfere with the functioning of the courts; ‘unless the interference is deemed necessary to uphold the functions of the courts as described in the following sub-Section’. Added to this, the submitter requested that Section 182(3), which dealt with Public Protector functions, should be amended as follows: The Public Protector may not investigate court decisions: ‘unless after the preliminary investigation of complaints, gross irregularities, unreasonableness and misconduct of judicial officers have occurred and in the public interest, must be corrected and rectified’.

Opinion was that the submission dealt with separation of powers and indeed the Constitution protected judicial independence to ensure that courts could exercise its decisions freely and fairly and not be interfered with by any other party or organ or state. Allowing the Public Protector to deal with matters of judicial misconduct may conflict with existing legislation of the Judicial Services Commission Act. This Act provided for a complaint mechanism within to allow complaints against judges. With regard to the Public Protector being able to rectify judicial decisions after preliminary investigation of gross irregularities, the advisers felt that this would be a direct infringement on the independence of the judiciary and would be an undesirable amendment. However this was a policy decision.

CR 9. Adv Anthea Gordon, Parliamentary Legal Adviser, said a Mr B Ngobese was concerned that certain rights within the Bill of Rights were criminal friendly. His submission did not refer to any review but highlighted certain circumstances and problems which impacted on the effect of certain rights afforded to arrested and accused persons, both in respect of juveniles and adults.  He felt that Section 28(g) created the impression that crime perpetrated by a minor or teenager was not a real crime. Having read the submission, the advisers concluded that while there was clearly a sense of unhappiness around the section, ‘creates an impression’ was subjective and did not mean it was the impact of Section 28(g). There was no actual review before the Committee and therefore no proposal for the Committee to consider.

His second submission related to the right to access, Section 32(1)(b) of the Constitution: that arrested and accused persons should not have ‘the right of access to any information that is held by another person and that is required for the exercise or protection of any rights’. He felt that this allowed the defence to gain unfair advantage over the police and that this advantage should not be extended to an arrested or accused person.
           
Section 35 was based on the fundamental principle of the right to a fair trial. On that basis, the submission reflected an overall sense of unhappiness with the section but did not address an actual amendment for the Committee to review.

His third submission was in respect of Section 36 of the Constitution (limitation clause). He believed there should be a penal code which forced an arrested person ‘not to remain silent’. This ramification would speak against the criminal justice system and the right to a fair trial and to be innocent until proven guilty. No review or amendment was submitted before the Committee.

Discussion
Mr Vanara said that this concluded the presentations by the Parliamentary Legal Advisers and that they would await further direction from the Committee.

The Chairperson suggested that Members deliberate on the policy decisions before the Committee reconvened. He asked if Members had any comments relating to the submissions, excluding the submissions from Mpumalanga House of Traditional Leaders.

Adv A Gaum (ANC) suggested that as a general principle the Committee should accept opinions in relation to matters which did not require Committee recommendation – those that did not require constitutional review. Where policy decisions were of concern, he suggested that it would be appropriate for political parties to meet independently to consider the opinions before formal party positions on the particular matters were declared.

Adv H Schmidt (DA) seconded this proposal.

Mr N Koornhof (COPE) thanked the Parliamentary Legal Unit for their contribution and felt that the policy issues were now on the desk of the ruling party. He added that some contentious issues in Section 25 were being dealt with in the new Green Paper.

Before closing, Adv Gaum suggested that a letter, written by Dr M Oriani-Ambrosini to the Chair of the Justice Portfolio Committee on the constitutional mandate of the Constitution Review Committee, should be distributed to Members.

The meeting was adjourned.