Committee mandate workshop report: deliberations; 2012 public submissions: deliberations

Constitutional Review Committee

14 February 2013
Chairperson: Nkosi PS Holomisa(ANC), Mr B Mnguni (Free State/ANC)
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Meeting Summary

The Committee agreed to postpone deliberations on its mandate workshop draft (3) report in order to await information from the researchers on how similar committees in certain other countries reviewed their countries' constitutions annually.

A DA Member was concerned that the Committee might deliberate on the submissions without prior discussion in party caucuses. The Committee agreed that Members must encourage their respective party caucuses to give attention to outstanding submissions in order to provide guidance to the Committee on how to proceed.

The 2012 public submissions deliberations had already been presented. However, an ANC Member suggested that the Committee be taken through the submissions by a legal advisor, as this was generally the process with submissions. His emphasis was that, at a point when the Committee was deciding on accepting or rejecting submissions, an introductory statement on each submission by the legal advisors would make it easier for the Committee to engage and decide. A COPE Member proposed that the Committee get the legal team to give guidance on Sections that required action, but proposed flagging those that required no action. The Committee resolved to invite the legal advisors both to present submissions and give their opinions. Therefore the Committee had to postpone deliberations, even on those submissions requiring no action.

Meeting report

Adoption of agenda
Co-Chairperson Mnguni opened the meeting, and the Committee adopted its agenda.

Constitutional Review Joint Committee mandate workshop draft (3) report: consideration
Co-Chairperson Nkosi Holomisa pointed out that while the management committee was considering the report, a researcher had advised that certain countries had similar committees to review the constitution annually. It would therefore have been helpful if the Committee could have access information on how these other committees operated. The problem was that the Committee was expected to review the Constitution which was being amended through the introduction of bills, but Members were not being given these bills, therefore Members wanted to be sure about the correctness of asking for those bills in order to do their job. The Committee's management wanted agreement as to whether the Committee should proceed nonetheless or wait for the bills.

Ms M Smuts (DA) commented that the following week there would be provincial state of the nation addresses in all the provinces and that some of the National Council of Provinces (NCOP) Members would not be present. She was also highlighting this because Members would need another week for research before reaching a quorum for the deliberation of this draft (3) report.

Adv H Schmidt (DA) added that unfortunately the Judicial Service Commission was going to make him unavailable for the proposed meeting on the draft (3) report.

Co-Chairperson Nkosi Holomisa then asked again if the Committee was willing to postpone consideration of the draft (3) report until it received the research needed to proceed with deliberations.

The Committee agreed on postponement.

Outstanding Submissions
Co-Chairperson Nkosi Holomisa reminded the Committee that it had previously failed to decide on whether to dismiss the submissions on the basis that they did not merit a review or an amendment of the Constitution since the submissions were policy issues of a serious nature that might have needed consideration in political party caucuses in order to give the Committee a mandate. He asked whether any political party had indeed considered those specific submissions and whether any party had given the Committee a mandate through its Members so that the Committee could accept the submissions or reject them.

Mr R Ainslie (ANC) responded by first asking whether the list of submissions was a complete or a prioritised list of outstanding submissions, since there were two lists of outstanding submissions.

Co-Chairperson Nkosi Holomisa replied that indeed the list of submissions had been considered and the Committee had felt that it needed political party positions on these submissions. The other list to which Mr Ainslie was referring was a list of submissions that still needed to be deliberated upon. He also suspected that caucuses had not given themselves enough time to deliberate on these submissions. He asked whether his suspicion was justified.

Ms J Sosibo (ANC) agreed that indeed the Co-Chairperson’s suspicions were well-founded and she thought that the submissions still needed to be put on party caucuses’ agendas so that the caucuses could deliberate on them. She further indicated that if caucuses had knowledge about the submissions, but were delaying engaging with them, then Committee Members needed to push their caucuses to give attention to them. 

Ms Smuts added that getting time within their caucuses to discuss the submissions in depth was a challenge and she asked if it would be possible for Members to get time to take one submission at a time to their caucuses for deliberation and come back to the Committee, because if they had to take them all at once as a list they would struggle to have them tabled and discussed in depth.

Co-Chairperson Nkosi Holomisa then proposed that the Committee adopt the suggested route of getting caucuses’ leaderships to give attention to the submissions so that they could guide the Committee on how to proceed.

The Committee agreed.

2012 public submissions deliberations
Co-Chairperson Nkosi Holomisa reminded the Committee that the submissions had already been presented and he subsequently went through the first set of submissions about Sections that were being impugned, specifically Sections 132 and 232, and 233 Schedule Four and Five (see attached document).  He subsequently asked for comments on the submissions and on the legal advice which had been given.

Adv T Masutha (ANC) commented that he wanted to clarify process about whether the Committee was expected to engage and decide, and, if that were the case, he suggested that the Committee be taken through the submissions by an advisor as this was generally the process with submissions.

Co-Chairperson Nkosi Holomisa asked if there were any legal advisors to take the Committee through the submissions, and when it appeared that there were none, he asked if the advisors had been informed prior to the meeting about their needed expertise.

Ms Smuts then raised a concern whether the Committee was now going to deliberate on the submissions without the participation of party caucuses.

Co-Chairperson Nkosi Holomisa replied that this route was used when the Committee felt that it was not in a position to decide whether or not to consider accepting a submission for an amendment of the Constitution, as some submissions were clear about not being matters of constitutional amendment. He added that not informing the legal advisors of the need for their presence at this sitting was disadvantageous to the Committee.

Mr D Bloem (Free State/COPE) agreed with Co-Chairperson Nkosi Holomisa that the Committee get the legal team to give guidance on Sections that required action, but to flag those that required no action, and decide on them.

Co-Chairperson Nkosi Holomisa asked Mr Bloem if he was aware of what he was saying in proposing that the Committee get rid of submissions requiring no action, because even though no action was required, Mr Bloem was implying that the Committee take decisions without the legal advisors' opinions, because, in respect of Section 10 where submissions required no action, the legal advice was that the Constitution already provided for the protection of human rights. So Co-Chairperson Nkosi Holomisa asked which rights were being referred to in Section 10.

Adv Masutha replied that the issue he was raising earlier was a process issue in that he was asking whether it would not have been better if the Committee had the advisors lead it on each item rather than the Committee sitting alone without the full submissions in front of it, because this would be deciding in an arbitrary and rushed manner since it would be deciding without any legal input.

Co-Chairperson Nkosi Holomisa then asked Adv Masutha whether he was asking for the presence of the legal advisors each time Members were to deal with the submissions, since the advisors had presented the submissions previously and had given their legal opinions. The Committee was then left to decide on the submissions after it had considered the opinions together with the submissions. He then asked again whether Adv Masutha was proposing than additionally the Committee should have the legal advisors present at future sittings when dealing with submissions.

Adv Masutha reiterated that indeed he agreed, but his emphasis was that, at a point when the Committee was deciding on accepting or rejecting submissions, an introductory statement on each submission by the legal advisors would make it easier for the Committee to engage and decide about the submissions.

The Committee then agreed on the need to invite the legal advisors both to present and give their opinions. Therefore the Committee had to postpone deliberations on these submissions, even on those requiring no action.

Committee minutes: consideration and adoption
19 September 2012
Mr Koornhof asked whether a press statement was issued concerning paragraph 4.2.

Co-Chairperson Mnguni replied that it was indeed attended to by the ANC Whip, Ms Sosibo.

Co-Chairperson Nkosi Holomisa replied that if the Committee had decided on such an issue a statement would have been circulated amongst the Members, he asked also whether it was inline with the Committees’ decision

Mr Ainslie replied that it was innocuous. He agreed with Co-Chairperson Nkosi Holomisa that if things are issued in the media in the Committee’s name they, as Members should have copies.

The minutes were adopted.

19 October 2012
Mr Koornhof pointed out that he had indeed tendered his apologies on account of his attending another meeting.

The Committee noted that the Committee Secretary would have to draft the minutes clearly to indicate to which committee a submission was to be referred.

The minutes were adopted with corrections.

02 November 2012
The minutes were adopted.

The meeting was adjourned.

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