Report of Sub-Committee; Committee Report 2001: consideration

CONSTITUTIONAL REVIEW COMMITTEE
8 November 2002
REPORT OF SUBCOMMITTEE: CONSIDERATION; COMMITTEE REPORT 2001: CONSIDERATION

Chairperson: Advocate Holomisa (ANC)

Documents handed out:
Minutes of proceedings of the Subcommittee meeting: 22 October and 29 October 2002 (Appendix 1)

SUMMARY
The Subcommittee agreed that the Committee Report for 2001 should only be noted by Parliament, instead of being adopted, because of alterations which have since been made to the report. They discussed their role in the setting up of the Constitutional Literacy Campaign and it was agreed that their duty as a Committee was to review the Constitution and not to create an understanding thereof. They would be willing to contribute to the Campaign, but in a limited capacity so as not to have their duties confused.

MINUTES
The Subcommittee discussed a report on their previous deliberations on submissions made by the public to the Committee. Certain technical amendments to the report were proposed. In addition, certain substantive issues were raised.

Traditional Authorities
In response to submissions on Traditional Authorities, the Committee had responded that the White Paper process emanating from the Provincial and Local Government Department is meant to address the concerns of Traditional Leaders. However, there was some confusion as to the status of the White Paper. Some Members thought that it was still underway, but it had already been released. Mr Jeffery then stated that the wording in the minutes should be slightly amended, the "supposed to address" part in the second line of the last paragraph needs to be changed. They would like the wording to impose a duty to debate the concerns of the traditional leaders.

Ms Rajbally (Minority Front) asked whether they, the sub-committee, should be looking at the White Paper. The Chair said that he did not think that they should be looking at the White Paper. Mr Jeffery said that another Department was looking at the White Paper and if they did so, then there would be duplication. They should await the results of the other Department.

Mr Ditshetelo (UCDP) asked whether this decision would not leave the traditional leaders in limbo. The Chair pointed out that the Committee is supposed to review the Constitution not amend it. He asked whether they wanted to get involved in a debate on the White Paper because then they would be delving into substantive matters.

Mr Ditshetelo felt that they owed it to the traditional leaders to give them an answer on the White Paper because they had been approached by traditional leaders approached about it.

The Chair asked what kind of answer he wanted to give the traditional leaders.

Mr Ditshetelo said that if they knew what the White Paper covered they could at least ease the traditional leaders' minds. In his opinion this was a sensitive matter.

The Chair agreed, but wanted to know if this sensitive matter had to be dealt with differently to other sensitive matters.

Mr Jeffery stepped in and said that the National House of Traditional Leaders, a statutory body, should write a letter to the traditional leaders with regard to the White Paper process.

Submission on religion
Submissions received by the Committee had suggested that the Constitution needs a stronger religious approach while the Committee had responded that the Constitution does not prohibit people from practising their religion.

Ms Smuts (DP) said that "God" does appear in the preamble, although it is not "Almighty God". South Africa is a secular country.

Mr Jeffery said that if the wording is changed to "Almighty God" it would make it easier for fundamentalists to lobby for the scrapping of abortions, they could even call for outlawing homosexuality and re-determine education policies and so on.
This recommendation is being referred to the full committee.

Committee Report for 2001
The report was never considered by Parliament, according to the Chair. Although they are the same Committee as in 2001, the decisions in the report have been altered and for this reason the Committee report for 2001 should only be noted by Parliament without adopting it.

All Members agreed with the Chair that Parliament should note the report and not adopt it.

Constitutional Literacy Campaign
Mr Jeffery said that it would be wrong to assume that it is the Constitutional Review Committee's responsibility to lead a program on educating the public on the Constitution. They should not assume that they can co-ordinate such a task.

The Committee agreed with Mr Jeffery and showed an unwillingness to lead this program although they would happily work with other Departments to get the program off the ground and to assist where possible.

The meeting was adjourned.

Appendix 1:
MINUTES OF PROCEEDINGS

JOINT CONSTITUTIONAL REVIEW COMMITTEE - SUB COMMITTEE

Tuesday, 22 & 29 October 2002, in Committee room G 26 at 14h00.
PRESENT

Adv S P Holomisa - Chairperson

Mr. P Chauke

Mr. B Martins

Mr. J Jeffrey

Ms S Ntlabati

OPPOSITION REPRESENTATIVES

National Assembly

Ms D Smuts

Mr. P Smith

Ms S Camerer

National Council of Provinces

Mr. M J Bhengu - Deputy Chairperson

Apologies were received from Mr. K Durr and Mr. C Eglin. Mr. BP Mkhize and Mr. JJ Lubuschagne from the Department of Justice and Constitutional Affairs were also in attendance.

The Chairperson welcomed the members of the Sub Committee to the meeting. He reminded them that the Joint Constitutional Review Committee had discussed the idea of a Constitutional Literacy Campaign, and had resolved to write to the relevant institutions to find out what programmes they have in place to popularize the constitution. He then tabled the responses from GCIS, the Public Education Unit in Parliament and the office of the Public Protector. He explained that other institutions had not responded and that a follow up would be done. Mr. B Mkhize from the Department of Justice and Constitutional Development apologized on behalf of the Department and promised that the Department would respond within a week.

Consideration of Submissions

Chairperson asked the officials from the Department of Justice and Constitutional Development to assist in drafting the responses to the submissions made by the public to the Committee. Mr. J Jeffery explained that the Sub Committee is expected to draft the report on submissions and present it to the Committee, which will draft the report to be tabled in Parliament. The committee considered the submissions point by point.

2. Protection of rights affected by security related legislation

It is submitted that the following rights are affected by the Firearms Control Act, 2000(Act 60 of 2000) and the Prevention of Organised Crime Amendment Act, 1999 (Act 24 of 1999):

· The right to self-defence.

· The right to keep and bear firearms.

· The right to freedom from abuse by police or government.

· The right to presumption of innocence

The writers requested that these rights should be firmly entrenched in the Constitution.

3. Private ownership of firearms

The submission suggests that the right to private ownership of firearms should be protected in the Constitution.

4. Rights of arrested, detained and accused persons

The submission proposes changes with regard to arrest procedures under section 35(1) of the Constitution, detention procedures under section 35(2) of an individual suspected of committing a serious crime. The submission also proposes changes with regards to the right to a fair trial under section 35(3)

5. Pardoning of offenders

The writers view the government as disregarding the rule of law and recommendations of stakeholders, by pardoning, for political reasons, a large number of prisoners convicted of serious crimes. It is argued that those convicts pardoned by the government did not receive pardon from the Truth and Reconciliation Commission (TRC). The recommendation is that the government and Parliament are not above the law and should not grant such pardons.

6. Right to life and death penalty

The writers are concerned about the escalating levels of crime in South Africa. They therefore call for the death penalty to be reinstated.

7. Political rights/electoral system

Electoral System - A more direct constituency-based electoral system is proposed rather than a party list system. Elected officials must be accountable to local communities to ensure the smooth running of democracy and the dispersion of decision-making processes.

National/regional referendums - Any political party, organization or individual should be entitled to request the government to hold a national/regional referendum on a certain matter if they can obtain a minimum amount of support in accordance with prescribed procedures within a specified period.

Election procedures should ensure a clear majority.

8. Judicial System

Changes to the Constitution are proposed to allow for the following improvements to the operation of the judicial system: time frame for hearing of court cases, allowing the submission of recorded testimony and submission of evidence acquired illegally.

9. Equity

Section 9 of the Constitution provides for the equality of all citizens before the law, and that everyone has the right to equal protection and benefit of the law.

The submission proposes that the qualification to this right in section 9(2) of the Constitution should be removed, as equality is a fundamental right, which cannot be qualified in an open and democratic society

The Sub committee felt that this matter is covered by the Promotion of Equality and Prevention of Unfair Discrimination Act. [Act 4 of 2000]
10. The Bill of Rights

The suggestion is that the Bill of Rights be reviewed to accommodate the interests of victims of crime.

11. Inclusion of responsibilities within the Bill of Rights

The submission proposes that the scope of the Bill of Rights should be extended to also include Responsibilities, i.e. the Constitution should contain a "Bill of Rights and Responsibilities" chapter.

12. Traditional Authorities

The submission contends that the Interim Constitution compelled both the Provincial and the National Parliaments to refer Bills pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, to the Provincial and the National Houses of Traditional Leaders before being passed into law.

The concern from the Traditional Leaders is that the Final Constitution of the Republic of South Africa (Act 108 of 1996) unfortunately does not have similar provisions as in the Interim Constitution, except to recognise the existence of Traditional leadership. As a consequence of this omission, it is submitted that this state of affairs is hampering the Houses of Traditional Leaders in making their informed inputs to Parliamentary Portfolio Committees, since they rely on newspaper advertisements, thus disabling them from presenting well researched submissions on particular subjects affecting traditional leaders due to stringent deadlines.

The submission further proposes an amendment of the Constitution to recognise traditional authorities as local government.

13. Language Rights

The submission proposes that the Constitution should recognise the existence or development of Sepulana as an indigenous language.

14. Employee Rights

The complaint is about the Employment Equity Act, which is regarded as a form of an exclusion that is contrary to the word and spirit of the new Constitution. The Labour Relations Act and Bargaining Councils, extend concluded agreements to non-parties of the council.

15. Educational Rights

The submission suggests that schools should provide food for learners.

16. Animal Rights

The submission refers to the fact that there is no constitutional provision affording rights for humane treatment of animals and views it as a lacuna in the Constitution. It is suggested that this impacts on the way people view animals. It is therefore argued that legislation regulating the treatment of animals is insufficient. It is proposed that national legislation should create a realistic sustainable Act of Parliament and should provide for proposals outlined in the submission. (page 12 of the summary document)

The Sub Committee felt that the submission does not require constitutional review.

17. Abolition of income tax

This submission proposes amendments to the Finance Section of the Constitution.

It requests that sections 223-225 be replaced by the proposed amendments in the submission.(page 12 of the summary document)

18. Submission on religion

It is suggested that the Constitution needs a stronger religious approach. The submission proposed the inclusion of "Almighty God" in the Preamble of the Constitution.

19. Revision of the Constitution

The following submission recommends unique revisions to the Constitution. The Constitution should be completely revised in the context of the state working towards a uniform State.

20. Laws to be subjected to Constitutional scrutiny

The submission suggests that the Constitutional Court should subject every law passed by Parliament to scrutiny before it goes to the President for assent

21. Free Access to the Constitutional Court.

The submission suggests that the Constitutional Court should be freely accessible to every citizen, without having to be represented by expensive legal counsel.

22. Interaction of the Joint Constitutional Review Committee with the public

A number of submissions suggested that there be interaction between the Joint Constitutional Review Committee and the public. The proposed interaction could vary from the personal hearings of evidence to Committee members visiting communities to inform them about the preparation of submissions.

23. Submission from the Minister of Arts, Culture, Science and Technology

The submission raises problems experienced in the arts and culture sector regarding the alignment of legislative competencies in Schedule 5 of the Constitution.

· Libraries: The Schedule specifies that "Libraries other than national libraries" are an exclusive provincial legislative competence. In practice and under the interim constitution, libraries are a shared provincial/local competence.

· Museums: The Schedule specifies that "Museums other than national museums" are also an exclusive provincial competence.

· Cultural matters: Schedule 5 specifies "Provincial cultural matters". This poses problems with management of community arts centers, theatres and other cultural facilities.

The Minister suggests that these are local community services and that service delivery would be improved if there were no legal impediments to a local authority's role in these activities.

Archives: the problems arise with the fact that whereas "archives other than National Archives" are exclusive provincial legislative competence, national records need to be kept in provinces for better management and better service delivery. It is also suggested that a shared competence would be more appropriate.

The meeting adjourned at 16h00

Signed by the chairperson

Adv, S P Holomisa