Committee Report on 2011 Public Submissions; Committee Programme

Committee: Constitutional Review Committee

Chairperson: Mr B Mnguni (ANC, Free State)

Date of Meeting: 24 Feb 2012

Summary

The Committee’s first meeting for the year was not quorate as it required 12 of its 23 Members to be present. Part of the reason given by Members for the lack of quorum was that the Committee was given a slot to meet on a Friday when non-Cape Town based Members travelled to their homes.

In the past un-quorated meetings discussed issues, which were then finally decided upon when there was a quorum. The points on the agenda were minutes and reports that had to be adopted, the Committee Program that had to be discussed, as well as a workshop on Constitutional Review that had to be organised.

The Committee proceeded to discuss its challenges in getting a quorum at meetings. Its dilemma was that it was given a slot to meet on a Friday, by the Office of the Chief Whip, when members who lived out of town left for home, which meant that they did not attend the meeting. Attempts to obtain permission from the Office of the Chief Whip to meet on Wednesdays or Thursdays had failed. The implications of very seldom reaching a quorum at meetings meant that minutes and reports could not be adopted, decisions could not be made and the work piled up. Members also either did not respond to invitations to - or notifications about meetings, or often indicated that they would attend, and then did not attend the meetings. This provoked the ire of members who did make the effort to attend the meeting, causing them to blame the Chairperson.

As a solution the management committee of the Committee decided to call a meeting on a Wednesday in the near future during the 2-hour lunch break, which would hopefully form a quorum in order to make decisions, and to discuss the difficulty of the Committee to quorate. A member also suggested that the Committee tried to get permission from the Office of the Chief Whip to meet in the afternoons while other members were in the National Assembly and NCOP General Assembly.

The Chairperson asked for an approach to finalising the outstanding issues. A member suggested that the Committee finalise outstanding contentious issues such as the Sepedi language and DeafSA issues, which were near completion, before engaging in public hearings on other contentious issues. It had to be approached from the position of prioritising the issues longest outstanding as a principle, as the communities affected were waiting for a response from Parliament.

A member said that the President had mentioned the issue of Cabinet reviewing the decisions of the Constitutional Court. The existence of this Committee was used as motivation for the move by the President. He understood that the executive had approved the go-ahead for that review of the Constitutional Court’s decisions. He wanted to know if this would implicate the Committee in the light of it having been mentioned.

A different member replied that he did not think that the review of Constitutional Court decisions fell within the ambit of the work of this Committee as it was envisaged by the Constitution initially. He felt the Portfolio Committee on Justice and Constitutional Development was the appropriate committee to do it. The President said that the Joint Committee on Constitutional Review’s job was to review the Constitution. When the Joint Committee on Constitutional Review kicked off eight years before, it was highly loaded with ministers, because of its brief. Its composition then changed over the years. In its initial form it had the capacity to do constitutional review. In its current form it did not. He thought the Committee needed to ask the ruling party what the future plans were for this Committee.

The Committee would meet on 6 March 2012 with a delegation from Sweden and in April with a delegation from Mozambique (date to be specified).

The minutes and reports that were meant to be adopted had been checked by the members and would be adopted as soon as the Committee could assemble a quorum. The Committee was also in the process of arranging a workshop on constitutional review where it planned to benefit from the expertise of a number of academics specialising in the field. A time suggested for the workshop was the two-week constituency period at the beginning of the next term.


Minutes

The Chairperson declared the meeting open and said that it was the first meeting for 2012, almost three months into the New Year. Part of the reason was that the Committee was given a slot to meet on a Friday when non-Cape Town based members travelled to their homes. The Members present did not constitute a quorum as 12 of the 23 Members of the Committee needed to be present. In the past un-quorated meetings discussed issues, which were then finally decided upon when there was a quorum.

The points on the agenda were minutes and reports that had to be adopted, the Committee Program that had to be discussed as well as a workshop on Constitutional Review that had to be organized. He asked for any additions or subtraction from the agenda. Nobody indicated any, after which he accepted the agenda as stated despite the absence of a quorum.

The Chairperson said that the Protection of State Information Bill was currently being processed by the NCOP, and many members of this Committee were on the Ad-Hoc Committee for the processing of the Protection of State Information Bill.

Mr C De Beer (ANC, Northern Cape) said that the State of the Province Address was scheduled to happen in Mpumalanga on this day, and the Members from Mpumalanga had left the previous day, which meant that they would not be present.

The Chairperson noted that there was nobody from Mpumalanga on the Committee. He said that if there were no corrections to be made to the minutes, they would be adopted at the first meeting where there was a quorum.

He said that the second point on the agenda was the Draft Committee Report on the 2011 Public Submissions. The meeting agreed that there were no corrections to be made and the report would be adopted when there was a quorum.

Mr S Swart (ACDP) said that the language issue was not on the agenda.

The Chairperson said that it was not up for discussion during this meeting. The information was given to members to go through and it would be discussed at the next meeting.

The Chairperson asked which one of the outstanding issues on the proposed program had to take priority. An order had to be established. He mentioned Traditional Leaders (Chapter 12), the Property Clause (Section 25), the DeafSA issue, and the famous one Sepedi. The Workshop also had to be discussed and planned. There was a letter from Dr Ambrosini to discuss, as well as the study tour to Kenya/Ghana.

The Chairperson said that there had been a management committee meeting the previous week where it had been decided to prioritize issues, and then to start dealing with them. Some like the burning issue of the Section 25 Property Clause issue needed to be taken to the caucuses of the respective parties and the members had to come back with caucused positions.

Mr Swart suggested that the Committee finalised outstanding contentious issues like language and DeafSA issues, which were near completion, before engaging in public hearings on other contentious issues. One had to prioritize the longest outstanding matters as a principle. All those communities were waiting for a response from Parliament.

The Chairperson asked whether there were other views which differed from Mr Swart. The language and DeafSA issue had been outstanding since 2007. The Property Clause and the House of Traditional Leaders matters came up later as well as the IDASA submission. The gist of that submission was that if any Members of Parliament was involved in dishonest or immoral behaviour, he/she had to be terminated as a Members of Parliament. This emanated from Travelgate.

The Chairperson ruled that the Sepedi issue would be prioritized, then DeafSA, and then the Section 25 Property Clause issue which would be a hot potato.

The Chairperson instructed the secretariat to compile a programme according to this order. This programme would have to take into account the strategic plan that the Committee adopted in 2009. The Committee needed to look at it again to see how far it had got with the strategic plan and what changes needed to be made. The Committee needed a workshop to look at its whole work programme, the strategic plan, the whole year’s programme as well as the remaining years of this term, to see what else could be done.

Mr Swart said that the President had mentioned Cabinet reviewing the decisions of the Constitutional Court. He was not looking for more work, but the existence of this Committee was used as motivation for the move by the President. He understood that the executive had approved the go-ahead for that review of Constitutional Court decisions. He wanted to know whether this would involve the Committee in the light of it having been mentioned.

Mr N Koornhof (COPE) said that he did not thing that the review of Constitutional Court decisions fell within the ambit of this Committee as it was envisaged initially. He felt Justice and Constitutional Development was the appropriate Committee to do it. The President said that there was a Joint Committee on Constitutional Review and its job was to review the Constitution. However everybody knew the history of the Committee. When it kicked off eight years ago, it was loaded with ministers, because of its brief. Its composition then faded out and it became what it became, just another Committee, but not really reviewing the Constitution. In its initial form it had the capacity to do constitutional reviews. In its current form it did not. He thought the Committee needed to ask the ruling party what its plans were for this Committee.

The Chairperson said the ruling party would ask what the Committee was doing.

Mr Swart referred to Dr Ambrosini’s inputs, trying to enhance the powers of this Committee by taking over some of the tasks of the Portfolio Committee on Justice and Constitutional Development, for example, processing all Constitutional Amendments in this Committee.

The Chairperson said that the Committee was looking at inviting Cape Town based experts to come and do a workshop with the Joint Committee on Constitutional Review. The Chairperson mentioned Prof Pierre de Vos, Prof Shadrack Gutto, and either former Constitutional Chief Justices, Pius Langa or Sandile Ngcobo. These were suggestions by the Chairperson, but the date, the terms of reference to be workshopped and the academics to be invited were still open for discussion. This decision could only be taken by a full Committee.

Ms E van Lingen (DA, Eastern Cape) asked when the Committee would have a full quorum. This meeting had been called and it went ahead because members indicated that they would be present, and they were not. When one looked at the programme of the NCOP, the workshop would be impossible during this session. It concerned her that the Committee was in a stalemate because of the NCOP, and she did not know where the National Assembly members were.

 The Chairperson said that even if the NCOP members were around, there would not be a quorum. To be honest, he did not know when the Committee would have a quorum. He had tried to get permission to meet on Wednesdays or Thursdays, but was refused permission.

Mr Swart said he had been part of this Committee for 13 years and it always struggled with quorums. This was why the membership had been reduced from 50 to 23/24 members. The Committee had to look at another day of the week to meet, during lunchtime. The work piled up without a quorum. This was a very important Committee, and the Committee had to find a way to accommodate the members from upcountry who could not attend the meetings on a Friday, in ensure it was quorate. The Committee had to be stricter with party whips to put pressure on their party members, to attend meetings they had committed to attend. Perhaps as a last resort, the Committee should be made even smaller to get a quorum more easily.

He fully supported the workshop and proposed inviting Prof Hugh Corder from the University of Cape Town. He had helped the Justice Portfolio Committee, had been involved in the negotiation process and the drafting of the Constitution. He had done work in the past for the Justice Department.

Mr G Snell (ANC) said he did not think there would be a problem requesting permission from the Office of the Chief Whip to meet on a week day afternoon, instead of going into the National Assembly. He also proposed that that the management team put together a program for the workshop, which the Committee could amend and/or adopt. It was an administratively more efficient approach.

The Chairperson asked for proposals of more names to be invited to present the workshop.

Mr Snell seconded Mr Swart’s suggestion of Prof Hugh Corder from UCT.

Mr De Beer fully supported the idea of the workshop. He suggested Prof Christina Murray from UCT.

The Chairperson said Prof Murray was abroad. He was looking for more names but the Committee would be limited in the number of speakers it could invite. These academic speakers charged per hour and the Committee only had ±R247 000 in its chest. The Committee had to draft a programme, decide on the terms of reference and a date. He suggested that a morning and afternoon be devoted to the workshop for the Committee to get maximum value from the engagement.

The Chairperson said that he had tried to get permission for the Committee to meet on a Wednesday or a Thursday, but have been refused permission. The Committee will in the near future sit on a Wednesday during the lunch break to discuss the problem of meeting days and quorums and how to take it further.

A delegation from Sweden would meet the Committee on 6 March 2012 from 13h30 to 14h30. A delegation from Mozambique would visit the Committee in April 2012, date and time still to be specified.

Ms H Matlanyane (ANC) said that she was one of the culprits who was absent from meetings. All that needed to happen was that members needed to focus more seriously on this Committee.

It was noted that the National Assembly and NCOP lunch break was one hour except for Wednesdays when both houses had two hours.

The Chairperson urged members to answer the notifications about meetings and to indicate whether they would attend, and to attend when they had indicated attending, because when members did not, those who did make the effort, blame him for wasting their time.

Ms van Lingen asked if the workshop could be done during the current term as the second term would be very busy with oversight work.

The Chairperson said that the management committee had looked at the possibility of fitting the workshop into this term, but there were only two more Fridays left before recess. It would happen next session.

Ms Matlanyane said at the beginning of every term there was a two week constituency period. She asked if the workshop could be during that period, before members started with plenary sessions. It could even be held on a Saturday. She would volunteer to do that.

The Chairperson said that he would look into that possibility and hold her to her word. The Chairperson declared the end of the meeting and thanked everybody for attending.

The meeting was adjourned.