2012 Public Submissions: Parliamentary Legal Advisers briefings

Constitutional Review Committee

19 October 2012
Chairperson: Mr B Mguni (ANC)
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Meeting Summary

It was noted that the Joint Constitutional Review Committee was established in terms of Section 45(1)(c) of the Constitution, and that, to give effect to it, the Committee would place advertisements calling for members of the public to propose amendments to the Constitution. The Parliamentary Legal Advisors were asked to consider the submissions and brief this Committee on whether the amendments fell within this Committee’s jurisdiction.

The submissions that had been received in this year were outlined, and brief reports were given, supported by more detailed legal opinions. Some submissions did not relate to Constitutional amendments, some had not proposed exactly how the Constitution should be amended, and some related to decisions that essentially were policy issues on which the legal advisors could not make further comment. The Committee noted the advice and would proceed to continue the opinions more closely at a subsequent meeting.

Meeting report

2012 Public Submissions to Constitutional Review Committee: Parliamentary Legal Advisers briefings
It was noted that the Joint Constitutional Review Committee was established in terms of Section 45(1)(c) of the Constitution of the Republic of South Africa. The Committee would place advertisements inviting members of the public to propose amendments to the Constitution. These could either be a general submission or specific submission on a particular aspect of the Constitution, as determined by the Committee. Once the submissions were received, they were forwarded to the Parliamentary Legal Services Office for consideration. The Committee was then duly briefed by the Parliamentary Legal Advisers on each submission.

The Chairperson asked the Parliamentary Legal Advisors to present a summary of the submissions, and their recommendations. [Note: only a very brief summary is provided: please see attached submissions for more details and argument].

Lebogang Nawa submission

Ms Sue-Anne Isaac, Parliamentary Legal Adviser, presented the submission by Mr Lebogang Nawa.

Mr Nawa was of the view that the Constitution, through its preamble, did not locate South Africa within the African continent, in particular the rich cultural history. This manifested itself in Section 232 and 233, which endorsed the relevance of International laws at the expense of African-influenced law, like customary law. The indifference of the Constitution towards culture, which was configured as an appendage to other concepts such as culture, despite these concepts being the component parts of culture. Arts and Culture was a concurrent function between national and provincial government in Part A of Schedule 4 of the Constitution, but municipalities ended up sidelining culture from their service delivery or development agenda.

Ms Isaac said that t
he decision to include provisions in the Constitution that would promote African identity was a policy matter that may be decided on by the Committee.

The decision to extend municipal power over culture was a policy matter that may be decided on by the Committee.

Vusumuzi Gcuma submission

Advocate Gary Rhoda, Parliamentary Legal Adviser presented the submission by Mr Vusumuzi Gcuma. He had suggested that section 9 (2) of the Constitution should be changed by substituting the phrase ‘equality includes’ to ‘equality means’ the full enjoyment of all rights and freedoms, and to add ‘by all people’.

He further suggested the change of the word “ may” to “must” so that it would continue “In promoting the achievement of equality, legislative and other measures designed to protect or advance persons or categories of person disadvantaged by unfair discrimination must (not, as stated in the Constitution, be taken.”

Mr Gcuma had asked for the removal of section 38(c) as it promoted sectoral interests.

He had also requested clarity on section 88(2), as it was not clear whether the section referred to two consecutive terms, or any two terms in office, even if they were not in a row (his emphasis).

He suggested that section 142 be removed, because South Africa was an unilateral state, not a federal state.

He called for the removal of the words ‘May God protect our people’ in the preamble, because South Africa was a secular state.

Mr Gcuma called for the decriminalisation of sex trade, specifically prostitution. He also wanted polyandry to be legalised.

Finally Mr Gcuma called for the number of provinces to be reduced from nine to four.

In Advocate Rhoda’s view, the amendments to section 9(2) proposed by Mr Gcuma would limit the scope of equality, as envisaged by the Constitution. The existing Constitutional provision was deliberately drafted in a broad and flexible manner to address the many manifestations of inequality that had been inherited from the past. The change of “may” to “must was problematic.

Advocate Rhoda submitted that the deletion of section 38(c) proposed by Mr Gcuma would dilute the rights afforded to groups of people, in the Constitution. The existing provision was included so as to protect the rights of religious, cultural or linguistic groups, for example traditional communities protecting their intellectual property rights. He also did not agree with Mr Gcuma regarding the deletion of section 142.

Although section 88(2) was raised, no proposals were in fact made, and it did not fall within the parameters of the brief to this Committee.

Advocate Rhoda said that the proposals around the Preamble were a matter of policy that should be decided upon by the Committee.

In regard to the submissions on decriminalisation of sex trade, and polyandry, Advocate Rhoda pointed out that this did not actually propose an amendment of a Constitutional provision and any amendments that were needed would have to be done through ordinary legislation.

The reduction of provinces from nine to four would require a Constitutional amendment, but these provinces were a “political” creation, unlike the erstwhile four provinces that previously existed as self-governing British Colonies. The nine provinces were created “by virtue of historical, demographic, economic and social factors”. This was therefore also a policy matter to be decided upon by the Committee.

Johann Broodryk submission
Advocate Rhoda presented the submission by Dr Johann Broodryk. Dr Broodryk had suggested that Chapter 2 of the Constitution dealt with Ubuntu, which was taught at academic institutions. It was submitted that students would find it convenient to study the Bill of Rights in order to understand African-ness.

This submission was not proposing any amendment to a particular Constitutional provision. He suggested that Dr Broodryk’s submission should be directed at an appropriate Parliamentary committee. For this reason he recommended that the Joint Constitutional Review Committee should not consider the submission, for the purpose of an amendment to the Constitution.

Ms Nkosinathi submission
Advocate Rhoda then presented Ms Nkosinathi’s submission. She had raised a concern about the unequal salary notches of administration clerks in the Mpumalanga and Limpopo provinces, irrespective of the same tasks and duties performed. Some administration clerks were pitched a salary level 5, while others were at Salary level 3, and it was felt that the same salary structure should apply for all administrative clerks, irrespective of the qualifications of workers.

He noted that the submission by Ms Nkosinathi did not relate to an amendment to a particular Constitutional provision. Ms Nkosinathi’s submission should be directed to the Portfolio Committee on Labour. For this reason he recommended that the Joint Constitutional Review Committee should not consider the submission for the purpose of an amendment to the Constitution.

J M Ramokgoatedi submission
Ms Isaac set out the submission of Mr J M Ramokgoatedi. He noted that he had seen a black person transported in the rear of a bakkie, with the white employers seated alone inside the car, and believed that it should be declared as an offence or a violation of human dignity for a person to be transported at the back of a goods vehicle.

She pointed out that the Regulations to the National Road Traffic Act prohibited people from being carried at the back of a goods vehicle, unless the back was enclosed to the specified height requirements, was made of material that would prevent a person from falling off the vehicle, and that people must not be conveyed in the same compartment with any tools or goods. A violation of Regulation 247 may result in a sentence of a fine or imprisonment not exceeding six years, or a fine and imprisonment not exceeding six years. Further, in terms of Regulation 250, no one may be carried for reward in the goods compartment of a motor vehicle on a public road.

She added that the carrying of passengers on the back of goods vehicles raised many safety concerns as these vehicles did not have any protection for passengers in the event of an accident. It was most often it was members of vulnerable groups that were transported in this manner. Farm workers and casual labourers had little choice other than to travel at the back of goods vehicles, to ensure that they secured employment. Children from economically disadvantaged areas were also often transported to school in the back of goods vehicles. This manner of transportation not only exposed passengers to extreme risk in the event of an accident, but may also impact on their Constitutional rights including the right to dignity.

The laws allowing for people to be transported at the back of goods vehicles must be assessed, to determine if they adequately protected the lives of people, especially the most vulnerable in society. At present there was a total prohibition only on the carrying of people for reward in the goods compartment of a motor vehicle on a public road. Therefore, there may be a need for further laws and measures to protect those who were being transported on goods vehicles.

Any decision to further prohibit the carrying of people at the back of goods vehicles must also be seen in light of the various Constitutional provisions, including the obligation on the State to respect the dignity of people. The Committee may therefore consider referring this submission to the Portfolio Transport Committee, to determine if the existing regulations were adequate to address the submission’s concerns and uphold the Constitutional right to dignity. However, she stressed that any amendments would be done not through the Constitution, but by amending the National Road Traffic Act, if considered appropriate. This was a policy decision for the Committee and Parliament to make.

Bonga Mthembu submission
Advocate Anthea Gordon presented a submission by Mr Bonga Mthembu. He referred to the fifth paragraph of the Preamble, which read “ (We) believe South Africa belongs to all who live in it, united in our diversity” and questioned who were the rightful owners of the country, as it could not be all who lived in it.

With regard to the supremacy of the Constitution, he argued that there should be a suitable balance between the Rule of Law and bringing economic freedom and true liberation in the country. He suggested an amendment of the Constitution by creating a ‘hybrid model’ to achieve this balance.

He also suggested that the short version of Die Stem be dropped from the National anthem, as it was a reminder of the apartheid days.

He also suggests that addition of the Khoi and San languages as official languages, to promote the development of these indigenous languages.

Mr Mthembu believed that section 25 must be amended to fast-track land distribution, even without compensation, where it was necessary or reasonable to do so, as economic freedom would not be realised until the land was returned to its rightful owners.

He also suggested the abolition of provincial legislatures and executive councils, with provincial administration structures created to implement national policies and provide services at provincial level.

He also suggested that, in a unitary State, there would be no need for the National Council of Provinces.

He also suggests that the number of Members of Parliament in the National Assembly be reduced from 400 to 200.

He argued that the Constitution should be amended to replace proportional representation with a constituency based/simple majority system, to make MPs more accountable to the communities and people they represent.

Mr Mthembu finally suggested that an independent institution be created as a Chapter 9 institution, to regulate the media in this country.

Adv Gordon noted that Mr Mthembu had questioned a portion of the Preamble to the Constitution, but had not actually proposed any amendment or said exactly what he wanted the Committee to review. She noted that this meant that there was no proposal for amendment before the Committee. She recommended that the Committee should not consider the submission for the purpose of an amendment to the Constitution.

In relation to the comments on the balance through elected representatives, she pointed out that this concerned matters between voters and representatives and was not a matter for this Committee.

In relation to the National Anthem, this Committee had no power and it was suggested that this request must be directed to the President.

On the languages, she noted current commitment by Government already to address the point and said that it would not be necessary to effect changes through the Constitution to elevate them, as Khoi and San were already noted for prioritisation.

In relation to property she noted that complete policy changes would be needed.

In relation to NCOP and the provinces she set out the history of the drafting of the Constitution and considerations taken into account and said that this was a policy decision. However, it would require very substantive changes should the Committee decide there was merit in the proposals. The same was true of the comment on the number of members and a distinction was drawn between the South African and other systems.

In relation to the comments on press freedom, the current position was outlined and she noted that creating a Chapter 9 institution would make it accountable to Parliament, and this would be in conflict with the concepts in section 181(5) of the Constitution.

Brian Carr submission
Advocate Gordon then presented Mr Brian Carr’s submission, in which he voiced his concerns about the enforcement of the Constitution. He referred to the lack of responses by local authorities, who failed to respond to any written requests or queries or concerns about transgressions, violating the right to provide responses within a given period. He hoped that the Committee would look into the implementation of these rights.

This submission did not propose an amendment to a particular Constitutional provision, and she suggested that Mr Carr’s submission should be directed to an appropriate Parliamentary committee. For this reason she recommended that the Joint Constitutional Review Committee should not consider the submission for the purpose of an amendment to the Constitution.

M Mahlangu (NCOP Chairperson) submission
Advocate Gordon presented a letter that was sent by the Chairperson of the NCOP, Mr M J Mahlangu, to the Committee, in which he had suggested that section 73(4) of the Constitution should be amended. In this letter, he had expressed concerns that most Bills were introduced in the National Assembly (NA). He had indicated that a proposed wording of the amendment would be sent, but this was not done. Because of this, there was therefore no substantive amendment for consideration. She said that a legal opinion could only be offered once the proposed amendment was submitted.

Dina Bogatsu submission
Ms Isaac then presented a submission by Ms Dina Bogatsu, in which she raised issues about the unfair treatment of people with learning disabilities in her community at Motlasana, who could not pass grade 12 because their special needs were not catered for. Disabled people were generally discriminated against by the municipalities and private industries, who refused to provide them with jobs. She wanted the Committee to follow up on this in general, as also the matter of her son with learning disabilities, who was fired by Zimba Company because he did not have a Grade 12 certificate.

This portion of the submission was confined to setting out with allegations of the unfair treatment of people with disabilities. The submission contained no specific request for an amendment to the Constitution. The e Committee may consider referring the submission to the Portfolio Committee on Women, Children and People with Disability or the Portfolio Committee on Basic Education.

The second part of the submission dealt with an alleged labour dispute. However, it again contained no request for the Committee to amend the Constitution. Current law provided sufficient mechanisms in terms of which Ms Bogatsu may pursue the relief that she was seeking. She thought Ms Bogatsu should be advised to seek the assistance of an attorney regarding the alleged labour dispute, and that, if she was unable to afford legal services, she should approach Legal Aid South Africa, one of the University Campus Law Clinics or the nearest Legal Resources Centre for assistance.

John Price submission
Dr Barbara Loots, Parliamentary Legal Adviser, presented a submission by Mr John Price. Mr Price provided a lengthy background for his proposal, which was that the role and powers of the President, his powers of appointment and term of office, must be reviewed.
He recommended that Section 42(3) of the Constitution should be amended to provide for the following:
-After its first sitting after a general election, the National Assembly (NA) should elect an Executive Council consisting of no less than nine members of the NA, who should cease to be members of the NA upon their appointment to the Executive Council.
-The Executive Council would then appoint a President, who would preside as a Chairperson of this Council, for the period of 12 months from the opening of Parliament.
-The Executive Council should exercise all the powers and responsibility of a President, including those in terms of Section 84 of the Constitution.
-The Council should make decisions by majority vote, and when there was a division of equal vote, the President should have a casting vote.
-Council members may also be Cabinet ministers.
-Once the President’s 12 month term had expired, another member of the Council must be chosen through a voting procedure in the Council, and the same process would happen after the next general election.
-There may be no fewer that 7 members in the Council and no more than 9, and any vacancy must be filled by a majority vote at a special meeting of the Assembly.

In his submission Mr Price conceded that the Presidential appointment and term system currently contained in the Constitution of the RSA was a generally accepted model. However, he submitted that the proportional representation system placed excessive power in the hands of one individual. In the South African Constitutional system the concept of proportional representation was closely related to the electoral system, the choice of which was a political matter.

If the current system of proportional representation was amended, in line with his submission, it would alter the nature of the model of South Africa’s current electoral system. Such an amendment would potentially call for additional amendments beyond the proposed amendment of section 42(3), as it would alter the democratic electoral system that underlay the Constitution.

She noted that since alternative models of government could be found in other jurisdictions, the proposed amendment was not a question of law, but rather of policy. This Committee should to take a policy decision as to whether it wished to recommend or opposed the proposed amendment in its Constitutional Review Report.

Institute of Accountability submission
Advocate Charmaine van der Merwe, Parliamentary Legal Advisor, described the submission from the Institute of Accountability in South Africa (IFAISA). The IFAISA canvassed three separate issues in its substantive submission. In a nutshell, these were, firstly, the establishment of an Anti Corruption Commission as a Chapter Nine institution, secondly, a suggestion that the 100% proportional representation system was superfluous at this stage in the history of the democratic development of the nation, and thirdly that the Judicial Service Commission (JSC) was dysfunctional, due to the abundance of political appointees in its ranks.

The question whether an anti-corruption mechanism was better suited as a new Chapter 9 body, or as a unit created by national legislation separately from, or within the SAPS, was not a legal question. The Constitutional Court made it quite clear in the Glenister matter that the decision on the form and structure of an anti-corruption mechanism lay within the reasonable power of the state. The proposal for a new chapter 9 body named “The Eagles” was thus a policy decision.

The decision whether to change the electoral system was a policy decision.

The Court had already, in a previous case, considered the composition of the JSC. It was a political and policy decision whether to amend it, but the separation of powers must be maintained.

Inkatha Freedom Party submission
Ms Phumelele Ngema, Parliamentary Legal Adviser presented a submission from the Inkatha Freedom Party (IFP) who had submitted a call for review of the following sections:
- Section 41(2): The House of Traditional Leaders and Traditional Councils should be included as intergovernmental structures, to facilitate intergovernmental relations.
- Section 151 and 155 should be amended by disestablishing municipalities and replacing them with Traditional Councils, to enable efficient service delivery in traditional communities.
- Section 166: Traditional Courts should be included as some of the Courts.
Section 190(1)(a): This section should be amended to provide for the Independent Electoral Commission to manage elections in traditional communities in consultation with the Traditional Councils.
-Section 211: This section must be amended to provide that the institution of traditional leadership was guaranteed and protected, and not only recognised. The recognition of traditional leadership should include all layers of Traditional leadership, to prevent the introduction of other layers outside the Constitution.
- The Houses of Traditional Leaders should be regarded as Departments operating under Parliament and Provincial legislatures. It must also be specified that Traditional Councils were the primary local government structures in rural communities

In Ms Ngema’s view, any change to the current state of affairs was a policy consideration and any amendment proposals should be directed to the Intergovernmental Framework Act and not necessarily the Constitution. The Committee or the Executive may consider policy proposals in this regard, which may alter the Constitution or proposal be accommodated through the Public Service Act. In Ms Ngema’s view, the quoted provisions of the Electoral Commission Act were sufficiently wide to accommodate the consultation of traditional councils within traditional communities for purposes of the Electoral Commission’s functions.

In conclusion, Ms Ngema was of the view that the proposed review of these sections as proposed in the submission was not necessary, but perhaps consideration of legislative amendments to national and provincial legislation could be warranted.

Commission on Gender Equality submission
The Commission on Gender Equality (BGE) had recommended the inclusion of the disabled as a specifically listed category in Section 9(3) of the Constitution, as a vulnerable group that face considerable discrimination and marginalisation, especially in the workplace.

Advocate Rhoda pointed out that disability was listed as one of the grounds already, and recommended therefore that this point not be taken further.

CGE also proposed that section 132 of the Constitution be reviewed so that the Premier, when making appointments, must comply with gender equity targets. However, it was not clear to what the CGE was referring. For this reason Adv Rhoda suggested that the matter not proceed.

Commission for promotion and protection of Rights of Cultural, Religious and Linguistic Communities
Adv Rhoda said that the Commission’s submission related to the non-recognition of Khelovedu as an official language and the teaching of Sepedi as a first language to Balovedu whose first language was not Sepedi. The Commission recommended the amendment of Section 6 of the Constitution, and thereby recognising Khelovedu as an official language under the Constitution.

Adv Rhoda outlined a 1996 Constitutional Court case that had considered the question of official languages and noted that the inclusion of any language as an official language within the text of the Constitution was not a legal matter, but rather a policy one on which the legislature must take a decision. In the event that the Committee did not support the suggestion to amend section 6(1), but felt that the discriminatory past of the Khelovedu community nevertheless deserved its future Constitutional protection, the amendment of section 6(5)(a)(ii) could be an alternative option. Again, however, this amendment would require that a policy decision be taken by the legislature.

Langelihle Nkabinde submission
Adv van der Merwe presented a submission by Mr Langelihle Nkabinde. Mr Nkabinde proposed that section 139(1) of the Constitution should be amended by changing the word “may” to “must”, so that when there were grossly underperforming municipalities, interventions would have to be taken by the province. He also suggested the insertion of a new sub-clause 139(1)(b)(1), to read: “The necessary steps may include deploying appropriately qualified provincial officials to oversee the expenditure of funds and the provisions of service in accordance with the provisions laid down under section 152(1)(a)-(e)”.

He also suggests that Section 10 of the Constitution be amended to incorporate a reference to ubuntu under human dignity. In a culturally diverse South Africa, a constitution with Western legal norms and values should also incorporate African norms and values such as ubuntu. If there was any clash between cultural and Western norms, it could be addressed via section 36.

Although the decision to amend the discretionary intervention provided for in section 139(1) was in essence a policy decision, it was not an amendment that would address any lacuna in the Constitution. The Constitution already provided for the performance of municipalities, and that intervention could be taken when there was failing performance, as well as for measures to ensure that intervention was executed.

She noted some difficulties in changing the word “may” to “must”, because this would imply that intervention had to be done in these cases, and, for instance, where the Auditor-General made a finding that a municipality could not or did not fulfil an executive obligation, the provincial executive would have to intervene, without any discretion.

Whether to include the concept of ubuntu by name into the Constitution was a policy decision. She submitted that it was already accepted as an integral part of South African law. It focused not so much on the right of individual human beings as on their duty to apply the values. It was not only regarded as underpinning the whole of the Constitution, but was directly applied in public and private law. She noted that, essentially, it was a policy decision whether to incorporate it, but if this was done, care must be taken with the wording so as not to limit the application of the term in the law, as academics had warned.

Moses Mashile submission
Dr Loots noted that Mr Moses Mashile had suggested the following Constitutional amendments:
-Traditional Leaders should be part of the NCOP delegation as contained in Section 42 and 60 of the Constitution, and the National House of Traditional Leaders should be abolished.
-Section 212 should be amended, the functions of traditional leaders needed to be elaborated. There should be enforcement of a code of conduct for traditional leaders. -Section 76 needed to be amended to include the referral of Bills to the National House of Traditional Leaders.
-Duties of the Chairpersons of the National House and Provincial House should be clarified and equated with those of the Speakers and Chairpersons of the National Assembly, NCOP and Provincial Legislatures.
-Members of the National and Provincial Houses of Traditional Leaders should be equated to Members of Parliament both nationally and provincially.

Dr Loots said that the proposed amendments of sections 42 and 60 would require a restructuring of the legislative authority, as all provisions speaking to the NCOP and its functioning would have to be reconsidered. Such amendments required a policy decision to be taken by the legislature, as it did not amount to a legal question. It was therefore for the Committee to take a policy decision whether to recommend or oppose the proposed amendment in its constitutional review report.

The first amendment to abolish the National House of Traditional Leaders contradicted the third, as it would be impossible to refer Bills to a body that did not exist.

Judicial interpretation had focussed on the legislation enacted in an attempt to give effect to section 212, but this was going further to call for content on the functions and duties of traditional leaders. This was not a legal question, but rather required the legislature to make a policy decision whether the inclusion of the specific functions and duties of traditional leaders within the text of section 212 was so required.
The first amendment proposed by this submission, namely that the National House of Traditional Leaders be abolished and form part of the NCOP, contradicts this third proposed amendment as (if the first amendment was accepted) there would be no National House of Traditional Leaders to which to refer a section 76 bill.

FW de Klerk Centre for Constitutional Rights submission
Ms Ngema noted that the Centre for Constitutional Rights had made a detailed submission to the Committee, in which it had proposed changes to the electoral system and a proposal for the amendment of section 47(3)(c) on the basis that it indirectly impeded the right to freedom of expression and association of the Members of the National Assembly, and that it limited accountability, responsiveness and openness by preventing a free mandate on the Members. The Centre also argued that this approach indirectly infringed on the principle of separation of powers since Parliament and the NA were no longer holding the Executive accountable for its decisions or actions. The closed party lists, and proportional representation, in relation to the elections, were, in the view of the Centre, also restricted participatory government

Ms Ngema described a number of sections of the Constitution which tried to ensure that Parliament engaged with the people, prime being the Parliamentary Committees. She agreed that at the moment the imperative mandate system applied. She noted that in a 2002 case, the Court had said that the decision on which electoral system was followed was one of political choice. For this reason the proposals in relation to the electoral system, as well as section 47(3)(c) of the Constitution, were policy considerations.

The Chairperson thanked the legal advisors and noted that the submissions would be dealt with in the next meeting.

The meeting was adjourned.

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