Parliamentary Legal opinion on Committee's mandate, deliberations on 2012 public submissions

Meeting report

Legal opinion on the Constitutional Mandate of the Joint Constitutional Review Committee
The Committee noted that a workshop had been held on the constitutional mandate of the Joint Constitutional Review Committee, and asked Dr Barbara Loots, Parliamentary Researcher, to go through the legal opinion that was prepared by the Parliamentary Advisers.

Dr Loots said that section 45 of the Constitution of the Republic of South Africa, 1996 (the Constitution) spoke to the establishment of a joint parliamentary committee to make rules to regulate the joint business of the National Assembly and the National Council of Provinces. Section 45(1)(c) of the Constitution also provided for the establishment of "a joint committee to review the Constitution at least annually". The Joint Constitutional Review Committee (the Committee) had been established, in terms of Joint Parliamentary Rule 97, as a section 45(1)(c) Committee. However, that sections did not give any guidance on how the Committee should review the Constitution, as it focused only on the creation of a mechanism.

She noted that sections 45(1)(a), 57 and 70 of the Constitution gave Parliament the power to determine its own internal processes. Section 45 did not delineate the scope of the review power of the Committee or indicate what the extent of its role in the legislative process should be. In considering whether the review function of the Committee required it to process constitutional amendment bills, consideration should be given to section 74, read with 65, 75, 76 and 77 of the Constitution.

Dr Loots noted that all the relevant Joint Rules had to be read with due regard to the Constitution’s section 74 process. That section made provision for constitutional amendment bills to be tabled by a person or a committee. That section did not expressly qualify that it should be a portfolio committee and/or a select committee processing the bill, it made specific reference to section 73 of the Constitution that in turn only referred to introduction of the bill by “a committee of the national assembly”. 

Section 74 made provision for certain Constitutional amendments to be passed by a two thirds majority in the National Assembly only. The Constitution allowed for situations where the National Council of Provinces would not be involved in the amendment process, unless the amendment related to section 1 or Chapter 2 of the Constitution, or introduced amendments relating to matters that affected the Council, altered boundaries or amended constitutional provisions that dealt with provincial matters. It would be not be practical for a joint committee to process a constitutional amendment. Where the National Council of Province had a role to play in processing the Constitutional amendment bills, the question of voting mandates came into consideration. Section 74 made no specific reference to section 76 of the Constitution, in situations where provincial interests were at play. Therefore, section 65 of the Constitution had subsequently been enacted to guide the context of the specific provincial mandate process. Section 74 provided no guidance as to which section 65 decision-making process would have to be followed and therefore did not clarify whether joint processing was envisaged. Section 74 also did not give a clear procedural guide as to the role of the National Assembly and the National Council of Provinces towards one another, with regard to tabling and the referral sequence in the processing of constitutional amendments. That resulted in uncertainly as to whether the drafters had in fact envisaged joint processing. Section 74 created anomalies, and it was not clear, as it seemed to contradict itself. Therefore, Dr Loots concluded that it was up to the Committee to decide whether to amend it. Section 74 did not connect with either 75 or 77. Parliament should decide whether it wished to try to clarify the anomaly.

2012 submissions to the Constitutional Review Committee
Adv Charmaine van der Merwe, Parliamentary Legal Adviser, took the Committee through the list of submissions that were submitted to the Committee in 2012.

She noted that submission 1 essentially related to a policy decision, not a constitutional amendment. Submission 2 proposed a reduction of provinces in the country to four, and therefore it required a policy decision. Submissions 3, 4 and 5 similarly did not need constitutional amendment, but rather policy decisions. Submission 6 required a policy decision, and submission 7 was a matter of referral, not constitutional amendment. Submission 8 did not propose any amendment.

Adv van der Merwe said that submission 9 raised three issues. The first was a complaint about leadership in the community of Matlosana, as there was unfair treatment of people with disabilities. The other issues were that children at the Keurhoff School at Matlosana were unable to complete school due to their learning disabilities, and there was also a labour dispute. Parliament’s Legal Advisers therefore advised the Committee to refer the disability issues to the relevant parliamentary committee, either on Women, Children and People with Disabilities or Basic Education, whilst the issues around the on the issues of Labour Dispute, the matter should be referred to attorney.

Submission 10 related to the appointment and term of office of the President. She noted that it was up to the Committee to take a policy decision as to whether it wished to recommend or oppose an amendment, in its constitutional review report. Submission 11 proposed the creation of a Chapter 9 institution as an independent anti-corruption body, proposed a different electoral system, and called for the deletion of section 47(3) of the Constitution. This essentially required a policy decision to be taken by the two Houses. Submission 12 proposed a change of name of the Commission for the Promotion of the Rights of Cultural, Religious and Linguistic Communities, as named in section 181(1)(c) of the Constitution. Submission 12 also related to other provisions of Chapter 9 of the Constitution, such as investigative powers, inconsistency on composition, appointment of commissioners, remuneration of commissioners/members, and broadcasting authority.

Adv van der Merwe continued that Submission 14 was made by the Commission for Gender Equity, and it had called for the amendment of section 9(3) of the Constitution, suggesting that "disability" be included as one of the listed grounds on which the state may not discriminate. She recommended that the Joint Constitutional Review Committee not consider the submission for the purpose of an amendment to the Constitution.

Submission 14 called for the amendment of section 6(1) of the Constitution to include Khelobedu as an official language, but Adv van der Merwe pointed out that this was essentially a policy decision to be taken by the Legislature. It was therefore up to the Committee to reject or recommend the proposed amendment in its Constitutional Review Report.

Submission 15 proposed that section 139(1) of the Constitution be amended so that the current discretionary intervention by the province, when a municipality could not or did not fulfil an executive obligation in terms of the Constitution or legislation, should become an obligation on the province. Adv van der Merwe noted that this matter required a policy decision, as it was not strictly just an amendment to the Constitution. Submission 16 called for amendments related to the role and functions of traditional leaders. This submission did not really call for any specific constitutional amendment, but spoke to the status and benefits of public office bearers and stood to be regulated through legislative and other measures, if so required. Submission 17 proposed a change to the electoral system and the review of section 47(3)(c) so that members of the National Assembly were not only accountable to the party leaders, at the expense of neglecting the electorate's views and electorate mandate. She recommended that whether to review the electoral system, as well as section 47(3)(c) of the Constitution, was a policy consideration aligned with a political decision.

Discussion
Mr S Swart (ACDP) thanked Adv van der Merwe for her input, and said that it was difficult to tackle those sections. He said that he had reservations about the Constitutional amendments, and if the Committee did decide to make Constitutional amendments, then the legal opinion would be of importance. He then asked whether,  from a policy perspective, Members would consider constitutional amendments. He agreed with the content and scope of the recent workshop, but he pointed out that the submissions made to the Committee lacked reasons, and for this reason he thought that the submissions should be rejected. He believed that the status quo should be maintained unless there was the strong desirability for the constitutional amendments.

Mr B Mnguni (ANC, Free State) wanted clarity on anomalies created by section 74. He said that the Committee had never invited people to come and give presentations or set out reasons for their submissions, and thought that, for this reason, they should not be rejected but perhaps set aside until this could be done.

Ms B Mncube (Gauteng, ANC) asked what sections of the Constitution were left open, and how the Joint Committee arrived at its decisions on review. She noted that the Parliament used one method of submission when reviewing the Constitution.

Adv T Masutha (ANC) said that, from a practical standpoint, it was possible to differentiate between review and amendment. Both review and amendment were important, and although they were inter-twined, they could be distinguished. He said that there had been a suggestion from the Portfolio Committee on Justice and Constitutional Development for an amendment to the Constitution. He noted that any bill that was introduced to be read for the first time had to be referred to the Speaker who would decide which committee would deal with that bill. Key constitutional reviews had happened in the past, and this Committee needed to reflect on its role. He pointed out that, for instance, the floor-crossing legislation was dealt with by the Portfolio Committee on Justice. He noted that the Constitution did still have some inconsistencies, and it made sense to “clean it up”. This Committee had to take time to look at them. Parliament had a model in operation, which was the internal Joint Committee on scrutiny, whereas the other model was to use report to the House which should decide. There could be some problem of conflicting mandates of parties.

Mr N Koornhof (COPE) said that it was very dangerous for politicians to try to become economists and lawyers. He said that he did not see any reason to amend the Constitution, and suggested that the Committee should continue with it adoption of the workshop report. He pointed out that two years ago the Committee had received an anonymous e-mail, suggesting that the Constitution needed to be amended, but he was fully in support of the suggestion that if people failed to substantiate their submission, it should be rejected.

The Chairperson reminded Members that it was agreed that Dr Loots should present the legal opinion first, and then the Committee would discuss it and make a decision. He reminded Members of the importance of the Committee, which was created by the drafters of the Constitution, and reminded them also that it was not a law-making, but rather a review committee.

Mr D Bloem (Free State, COPE) said that the function of the Committee, as just stated by the Chairperson, was important. He agreed with comments also that the submissions lacked supporting reasons as to why the suggestions for review should be supported, and for that reason agreed that they should be rejected. He further suggested that perhaps Members should ask the legal advisers to draft some possible options around amendments. However, he reminded them that the purpose of this Committee was not to be a gate-keeper.

The Chairperson said that Members would finalise the report on the workshop at another meeting.

Members agreed that because none of the proposals for review were adequately supported with reasons or motivations, they would not be supported.

Adoption of Committee Minutes
The Chairperson noted that the minutes of the meeting on 15 February had not yet been adopted, due to there being no quorum at the last meeting, and Members then adopted them.

The Committee went through the minutes of 19 March, page by page, and adopted them, with no amendments.

The meeting was adjourned.