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LOCAL GOVERNMENT AND ADMINISTRATION SELECT COMMITTEE
8 May 2002
COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL: DELIBERATION
Department representatives: Mr J Beukman: Chief Planner: Research (Governance), Department of Provincial and Local Government; Dr P Bouwer: Director, Legal Services: Department of Provincial and Local Government
Documents handed out:
Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill
Bill [B version] (.pdf. file)
NNP Proposed amendments (see Appendix)
All members of the committee agreed to the motion of desirability of the Commission of the Promotion and the Protection of the Rights of Cultural, Religious and Linguistic Communities Bill. However, it was decided that further discussion of the amendments to the Bill as proposed by NNP should be postponed to the next meeting, as the matter requires further research. It was explained that the Human Right Commission is given investigative power over other Commissions to secure appropriate redress of the violation of fundamental human rights.
In the committee meeting held on 30 April 2002, the Commission of the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities Bill was discussed clause by clause up to Clause 38. In this meeting, Mr Beukman read through and explained the last three clauses: Part 8 of the Bill (Miscellaneous Matters).
Mr Ralane (ANC, Free State) asked for an explanation as to the effect of a fine or imprisonment for any person convicted of one of the offences mentioned in Clause 41 Offences and Penalties.
Mr Bouwer answered that the sanction for an offence committed by members of the Commission makes them ineligible to be Members of Parliament. This provision expires after five years. He referred the Committee to Section 47 (e) of the Constitution
Mr Van Niekerk (NNP) noted that Clause 40, which allows the Minister to make regulations considered expedient or necessary to achieve the objectives of the Commission after consultation with the Commission, does not deprive the Minister of the power to make regulations at his own discretion.
Mr Bouwer replied that that would ensure that the Commission functions and duties are in harmony with all other bodies of the government.
Ms Kgoali (ANC, Gauteng) raised her concern that Clause 8, which provides for the Commission to report annually to the National Assembly, seems to exclude the NCOP (National Council of Provinces). Mr Van Niekerk commented that Clause 8 does not expressly excludes the NCOP.
Mr Bouwer explained that reporting to the National Assembly has two functions: to convey information and to ensure accountability. Section 181 of the Constitution places the accountability of the State Institutions Supporting Constitutional Democracy to the National Assembly. Therefore, Clause 8 excludes the NCOP because if any Commission were to be summoned to appear before the NCOP, that Commission could raise Clause 185 of the Constitution as a defence.
The Local Government and Administration Select Committee passed the motion of the desirability of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities as giving effect to Chapter 9 of the Constitution.
At this point, Mr Van Niekerk presented his party's amendments to the Commission for the Promotion and the Protection of the Rights of Cultural, Religious and Linguistic Committees Bill.
There was disagreement about discussing the proposed amendments by the NNP as some of the members of the committee believed that this was beyond their powers. The proposal was considered as dealing with legal, political and policy issues. Members of the committee felt that the matter could better be addressed by the committee responsible for the amendment of the Constitution, the Constitutional Review Committee, and by state lawyers.
Subsequently it was agreed that since cultural, religious and linguistic issues are to be implemented by the provinces, this committee should discuss these issues.
Mr Van Niekerk argued that Clause 5 (k) of the Bill should be extended to confer additional power to the Commission.
Mr Bouwer considered it unnecessary to confer additional power to the Commission. Mr Titus (Special Advisor to Minister Mufamadi) argued that the Commission could not have more power than that conferred to it by the Constitution (Section 185).
Mr Van Niekerk reiterated that the Constitution states what is to be done and the legislature must decide how it should be done.
Mr Titus argued that since the election of the new government, the Constitution is the supreme law of the Republic (Section 2 of the Constitution).
Mr Bouwer gave reasons for the Human Right Commission to be highlighted as the only body that has the power to investigate the function of other Commissions. Firstly, framers of the Constitution intended the Human Rights Commission to be responsible for any matter relating to the violation of fundamental human rights. Section 184(1) (b) of the Constitution states that the Human Right Commission must promote the protection, development and attainment of the human rights.
Mr Van Niekerk argued that these "teeth" of the Human Right Commission have never been used.
It was agreed that Points 1-4 of the NNP amendments would be flagged to establish if these were outside the policy framework of the Bill. Points 5, 9 - 12 were dropped as constitutionally this has to be referred to the National Assembly (not the NCOP). Points 6 - 8 and 13 would be looked at during the next meeting.
Although these amendments were to be treated as policy issues, committee members were encouraged to consult with lawyers and make research to facilitate discussion at the next committee meeting.
The meeting was adjourned.
NNP PROPOSED AMENDMENTS TO THE COMMISSION FOR THE PROMOTION AND PROTECTION OF THE RIGHTS OF CULTURAL, RELIGIOUS AND LINGUISTIC COMMUNITIES BILL - 8 MAY 2002
1. INSERT ON PAGE 4, 5(ii)
In line 10 after "â€¦.. matter" and requiring a response from such authority or organ of state
2. DELETE ON PAGE 4, 6(3) LINE 44
in terms of section 185(3) of the Constitution
3. INSERT ON PAGE 4, 6(3) LINE 46 AFTER
"â€¦.. Commission" and PANSALB"
4. INSERT ON PAGE 5 A NEW 7(4)
7(4) (1) If within a reasonable time after the Commission has published a finding that a language, religious, or cultural right of a community has been violated, policy or practice has been violated, adequate and appropriate action has not, in the opinion of the Commission, been taken thereon, the Commission may -
submit its findings to the Parliamentary Committees in the Parliament responsible for matters concerning this Act for consideration and the taking of appropriate steps to secure compliance with the Commissions findings;
(b) refer the matter to -
(i) the Public Protector if the non-compliance with the Commissions findings relates to any impropriety on the part of an official or an organ of state;
the South African Human Rights Commission -
if the non-compliance with the Commissions findings involves the violation of a human right as protected in terms of Chapter 2 of the Constitution; or
if there are reasonable grounds to believe that the complainant has been threatened, intimidated or discriminated against due to involvement in lodging a complaint, a finding or other involvement in an investigation under this Act.
(c) in consultation with the complainant, apply to a Court for an appropriate remedy, including -
an interim order;
a declaratory order;
an interlocutory order or interdict;
an order for the payment of any damages;
an order for the implementation of special measures to address the situation complained of;
an order to comply with any provision of this Act, or a published finding, recommendation or decision of the Commission;
an order that an appropriate amount must be set aside for the realisation of language, religious or cultural rights of the complainant..
(2) Where the Commission is of the opinion that an official, an organ of state or an institution has -
(a) willfully disregarded or acted in contempt of the findings or decisions of the Commission; or
(b) frustrated the timeous and effective implementation of the findings or decisions of the Commission; or
(c) failed to give adequate reasons for the non-compliance or timeous compliance with the Commissions findings or decisions,
it may apply to the Court for an order of costs in its favour.
5. ON PAGE 5, 8(A) LINE 15
replace "National Assembly" with Parliament
ON PAGE 5, 8(A) LINE 16 INSERT
â€¦.. may submit a special report to Parliament on urgent matters
7. ON PAGE 5, 8(B) REPLACE THIS SECTION WITH
Every report of the Commission to Parliament is to be referred to the appropriate Parliamentary committees for consideration
8. ON PAGE 6, 11(3) INSERT NEW (d) AND CHANGE PRESENT (d) TO (e):
(d) submit the relevant names of the selected persons to the relevant Parliamentary Committees together with reasons why they were selected, for response.
ON PAGE 6, 12(3) LINE 54 INSERT AFTER
"â€¦..Chairperson: this person will be
ON PAGE 7, 17(1) LINE 54 REPLACE
"National Assembly" with Parliament
ON PAGE 7, 17(1) LINE 53 AND 54 REPLACE
"â€¦.. a committee" with relevant committees
ON PAGE 8, 17(1) LINE 1 REPLACE
"National Assembly" with Parliament
ON PAGE 9, 26(1) ADD A NEW
a multi-party delegation from the relevant Parliamentary Committees