Constitution Eighteenth Amendment [B8 – 2011]: adoption

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Justice and Correctional Services

13 September 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

As there were no public submissions on the two-clause Constitution Eighteenth Amendment Bill, the Portfolio Committee of Justice and Constitutional Development considered and adopted the Constitution Eighteenth Amendment Bill. The Department was keen for it to be adopted so that its processing could be synchronised with that of the Further Education and Technical Colleges Amendment Bill [B13-2011] which had been adopted on 13 September by the Portfolio Committee on Higher Education. The Committee was assured that all role players had supported the FET Colleges Amendment Bill, even the Western Cape MEC on Education, as well as unanimous agreement within the Council of Educators.

There was one proposed amendment to the Constitution Eighteenth Amendment Bill as introduced. This was to remove ‘school’ in the Bill and replace it with “from Grade R to Grade 12” so it would read: “Education [in schools] from grade R up to grade 12.”

The rationale for the Constitution Eighteenth Amendment was to allow education at post school level to be determined at national level only. There were major problems with the FET colleges not functioning and this had to be sorted out.

The Democratic Alliance questioned the need for removing the legislative competence of provinces where Further Education and Technical Colleges were concerned, and placing it solely within the competence of national government. Why could there not be concurrent competence? The African National Congress’s position was that this was necessary to create legal certainty. Otherwise, there could be a conflict in laws passed by a province and national government.

There were differing views whether the fact that there were no public submissions on a Bill, meant insufficient effort had been expended by Parliament to garner public participation and hence the Bill could be deemed unconstitutional. The Doctors for Life judgment by the Constitutional Court was referred to.

The African National Congress voted for the Bill, the Democratic Alliance against and the African Christian Democratic Party abstained.


Meeting report

The Chairperson informed Members that there were not any submissions for public hearings, which were supposed to be held at this meeting. The Further Education and Training (FET) Colleges Amendment Bill, to which the Constitution Eighteenth Amendment Bill was linked, had been passed by the Portfolio Committee on Higher Education. Could officials from the Department of Higher Education address the Committee on the proposed amendments and the impact of the FET Amendment Bill and how it affected the process of the Constitution Eighteenth Amendment Bill?
 
Mr Eben Boshoff, Chief Director: Legal and Legislative Services, Department of Higher Education, noted the single proposed amendment to the Constitution Eighteenth Amendment Bill. This was to remove ‘school’ in the Bill and replace it with “from Grade R to Grade 12” so it would read: “Education [in schools] from grade R up to grade 12.” The proposed wording was in line with the definition in the Schools Act.

The reason for the Constitution Eighteenth Amendment Bill was to allow education at post school level to be determined at national level only. The Minister of Higher Education and Training had also introduced amendments to the FET Colleges Act to facilitate the creation of the Departments of Higher and Basic Education. The amendments to the FET Colleges Act provided for all references to provincial authorities to be replaced by national authorities. The process in the Portfolio Committee for Higher Education was now at the voting stage. During the public hearings, all role players had supported the FET Colleges Amendment Bill. During the vote the previous day, only one party voted against some of the clauses but when it came to the Bill as a whole, all parties voted for it.

Discussion
Mr J Jeffery (ANC) asked if there was unanimity at the Council of Educators in particular from the Western Cape (WC). What was the position of the Western Cape on the Bill?

Dr M Oriani-Ambrosini (IFP) asked if the amendments were not “constitutionalising” the present system, which may change in future?

Ms D Schäfer (DA) said that a colleague of hers had said that if there were no submissions in response to an advertised Bill then it should be deemed that there was not enough consultation. Could there be a legal response to this? The FET Colleges that provided for Grades 9 to 12 would be affected by the amendments in the Bill. Why did provinces have to give up their concurrent legislative powers, things were fine as they were. The Democratic Alliance did not approve of having the provincial competence removed. 

Mr Jeffery asked if the FET Bill and Constitution Eighteenth Amendment Bill had to be passed together? What problems would there be if provinces kept their legislative competence?

Ms Theresa Ross, State Law Adviser, said that once the Bill as amended [“Education [in schools] from grade R up to grade 12.”] was published, no further comments were received from the Western Cape. The comments from the Western Cape came from the Office of the Director-General unlike the others, which came from the provincial legislature.

Adv Rudman said that the Western Cape was not opposed to the amendment but expressed concern about certain support services. However, the Department of Higher Education and Training had confirmed that the amendment would not affect the support services.

Mr Boshoff said that there was unanimous agreement within the Council of Educators for the support of the Bill. There were no FET colleges that had Grade 9 to Grade 12: the concept of grades was unique to the school system. The FET Colleges Amendment Bill would only come into effect on a date set by the Minister of Higher Education.

Mr Jeffery asked what was in the FET Colleges Amendment Bill that was dependent on the Constitution Eighteenth Amendment Bill.

Mr Boshoff replied that the rationale behind linking the two Bills together was to ensure that no vacuum was created by shifting the legislative competence from the provinces to national government. The other reason was to synchronise the law and bring about legal certainty. The provinces had also not enacted legislation where FET colleges were concerned.

Ms Schäfer interrupted and said that if there was concurrent competence, there was nothing preventing national government from enacting legislation. Therefore the argument that provinces were not enacting legislation for FET colleges did not hold water.

Mr Boshoff replied that the point he was making was that where there was concurrent legislative competence there may be times where there was a conflict in laws passed by the province and national government. Mediation in such an instance was a messy exercise. In the Western Cape last year, the court had ruled in favour of the province where there was a dispute regarding qualifications and the N courses; this had caused problems.

Mr S Swart (ACDP) said that there was a lot of jurisprudence about conflict between national and provincial government in terms of legislative competence. There were a lot of dispute resolution mechanisms that kicked in where there was a conflict. Given this, was there a need to change things?

Ms Schäfer said that she was not convinced that national government would do a better job.

Mr Jeffery said that the Committee had to take cognisance of the fact that the Members of the Executive Committee (MECs) were happy with the Bill, including the Western Cape, and they were the practical experts. The amendment was necessary in terms of legislative certainty. There had to be legal certainty and the amendment was appropriate in this regard. There were major problems with the FET colleges not functioning and this had to be sorted out. In the Doctors for Life case, the court had found that where there was no public interest in a particular Bill, such a Bill would not be deemed to be unconstitutional for lack of public participation.

Mr H van der Westhuizen (DA) said that in a meeting three works before, Adv Anthea Gordon, a Parliamentary Legal Advisor, had confirmed a day before public submissions on the FET Colleges Amendment Bill were due to close, that there had been only one submission. She had indicated that she was uncomfortable with this because there had been a court ruling to the effect that where there was no comment on a Bill, the position would be that such a Bill would not be in line with requirements for Acts of Parliament.

Mr Jeffery raised a point of order and said that the Mr van der Westhuizen was quoting an official who was not present at this meeting and referring to a case he could not identify by name. The Doctors for Life case was clear and was also a Constitutional Court case. The Committee was wasting time on this area. The Committee should move to support the formal adoption of the Bill.

Voting on Constitution Eighteenth Amendment Bill
The Chairperson read the Motion of Desirability for the formal adoption of both the Constitution Eighteenth Amendment Bill and its Memorandum on the Objects, as amended.

The ANC voted for, the DA against and the ACDP abstained.
 
The Chairperson thanked the Committee and adjourned the meeting.


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