Processing of Legacy Submissions

Constitutional Review Committee

04 September 2015
Chairperson: Mr V Smith (ANC, NA) and Mr P Nzimande (ANC, NCOP)
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Meeting Summary

The Joint Committee met to deliberate on the way forward with legacy public submissions for Constitutional Amendments from 2013. The issue of the Sesotho sa Leboa language also arose, but discussion of the matter was postponed. The Committee Researcher summarised each of the 13 proposed amendments. Amendments were presented within three categories, with those falling into the first category being the only amendments recommended for Committee review. Of the 13, the presentation deemed six amendments ‘Category One’; the remaining seven proposed amendments were either already covered by existing language/legislation or failed to propose a specific change to the Constitution.

After hearing each amendment, each member contributed as to whether or not the Committee should take the presentation’s recommendation and only consider the ‘Category One’ amendments or rather consider all the proposed amendments. In general, the opposition parties supported taking the presentation’s recommendation and the ANC supported considering all amendments. The general consensus reached was that in order to support the people’s voice and an interactive democracy, all amendments should be considered. It was also agreed that the process must be speedy in order to avoid leaving more legacy submissions to future committees for processing.

Meeting report

Welcome and Outstanding Matters

Chairperson Nzimande welcomed everyone and called for a moment of silence.

Therafter, the Committee considered and approved the minutes of its previous meeting.

Chairperson Smith explained that the Committee had received submissions from 2015 and 2013.  The Committee would only consider the 2013 ‘legacy’ submissions which were delayed due to the elections and an excessive workload. He proposed the Committee formally table the 30 total submissions, hear a brief summary of the 2013 legacy submissions from the legal research team, and then open the meeting for deliberation on how to deal with the legacy submissions.

Dr A Lotriet (DA) noted that the previous Committee had not finalised the matter of Sesotho sa Leboa and Sepedi, a submission from 2010.

Mr N Swart (ACDP) agreed that this was a very contentious issue that had had hearings in Limpopo; the Committee should deliberate further on this issue.

Chairperson Smith said that the actual submission referenced would be given to Members as soon as possible; the matter would be one of several language issues discussed.

Committee Researcher Presentation

Sisanda Sipamla, Committee Researcher, presented 13 outstanding submissions from 2013. Many were language submissions, and that would be considered together as one item. The presentation created three categories for the submissions for constitutional amendment:

  1. Ready for consideration by legislature
  2. Requiring legal or specialist opinion
  3. Vague: do not set out which provisions require review or amendment

The first submission came from the Institute for Accountability in South Africa (IFAISA), wished three matters considered. They first proposed an amendment establishing a Chapter Nine ‘Eagles’ Institution to fight corruption. The Constitutional Review Committee (CRC) recommended that an amendment was not necessary, but rather that the matter could be dealt with by existing police structures and perhaps changes to the SAPS Amendment Act. The ‘eagles’ entity proposed was similar to the existing ‘Hawks’ institution. On 27 November 2014, a Constitutional Court ordered that some aspects of the SAPS Act of 1995 were unconstitutional, but this judgment did not mean that the Constitution needed to be amended.

The second IFAISA amendment addressed the issue of 100% proportional representation. It asserted that proportional representation was only meant to be part of the transition to democracy rather than an enduring system. Section 47, 3(c) of the Constitution states that if a person loses membership in the NA they ceased to be a member of the party that nominated them; IFAISA said this section should be amended because it prevented persons from voting according to their conscience. The CRC noted that amending the electoral system would be a policy decision and would affect provincial and local spheres as well, but would not require a constitutional amendment.

The final IFAISA amendment called for reform of the Judicial Service Commission (JSC). IFAISA felt that politics had excessively infiltrated the Supreme Court and that the judiciary was not independent. They felt that there were too many political appointees on the JSC; and recommend replacing these positions from outside the sphere of politics, such as trade union representatives and law lecturers. The National Assembly may pass the submitted amendment by a two-thirds vote. The Committee could invite IFAISA and take time to deliberate on Section 73 of the Constitution.

The second submission came from Ms S Mosiane and asserted that menstrual pains should allow women to qualify for sick leave. The CRC noted that this proposal was already covered by existing legislation, and thus the Committee could not take action on this proposal.

The third submission comes from Mr O Shembe and proposed a phrase change to the Preamble. On Page One, the Constitution says, “South Africa belongs to all that live in it”; Mr Shembe proposes changing that phrase to “South Africa belongs to its legitimate and legal citizens”. The CRC recommends not changing the Preamble due to the change potentially causing xenophobia and violence. Immigration was a complex issue and the government should promote unity.

The fourth submission by Mr L Mahlatsi proposed an amendment to allow homeowners to kill armed robbers in self-defence. The CRC held that the amendment was not necessary because self-defence in appropriate situations is already legal.

The fifth submission by the Support Public Broadcasting Coalition (SOS) called for the transformation of the SABC into a Chapter Nine Institution to protect its independence. Section 181, 192, 193, and 194 of the Constitution would require review or additions. The CRC noted that existing legislation kept the SABC independent, but that the Committee should still consider these amendments.

The sixth submission by the Deaf Federation of South Africa requested an amendment to Chapter 1 Section 6(1) adding sign language as an official language. The CRC advised that any new national language was a policy decision and thus the decision fell to Parliament. 

The seventh submission by Mr F Ndabeni said that it was unfair to victims that people received free food, facilities, and education. However, he did not submit a specific section for review, and thus the Committee could not consider this matter.

The eighth submission by the South African Local Government Association (SALGA) proposed that the words ‘but may not vote’ be removed from Section 67. The CRC decided that the Committee could consider this amendment. SALGA requested that Section 139 be amended to give greater power to the provincial executive over municipalities. The Constitution held that in a situation in which provincial executives could not exercise power, the national executive must step in. Because this clause created an obligation, the Committee should be cautious. However, the Committee should consider this amendment. SALGA requested that Section 163 be amended to give greater representation of local government. The CRC decided that, to solve this issue, legislation below the Constitution would be necessary.

The ninth submission by the Holy Faith Mission submitted that Khilovedu be included as an official language. The Committee would need to deliberate on this issue.

The tenth submission by Mr B Ngobese did not call for a specific amendment or section of review, but rather spoke to broad issues; therefore, the committee could not consider it.

The eleventh submission by the South African Veterinary Council (SAVC) proposed that State Veterinary Services needed to be centralised. The submission did not reference a specific section of the Constitution; therefore the committee could not consider it.

The twelfth submission by the National House of Traditional Leaders (NHTL) called for review of Section 41(2), 151, 155, 166, 190, and 211. In general, these amendments asked for greater powers to the Traditional Councils. The CRC recommended that the Traditional Leadership and Government Framework Act covered Section 41(2). Section 151 and 155 amendments were problematic because these leaders are not elected. Currently, these leaders are not part of government, but rather public stakeholders. Though many of these matters would be addressed by relevant legislation, the committee should consider these matters.

The thirteenth by Prof M Mhango addressed a Private Member’s bill, not the Constitution, and thus the Committee could not consider this matter.


Chairperson Smith noted that six submissions were recommended for review. He called for the Committee to deliberate on the path forward. 

Dr M Motshekga (ANC) noted that Mr Swart earlier raised an issue about Northern Sotho language; this suggestion could create problems because the language proposed could be split into contentious subgroups. This was a legacy report and said there may have been developments since 2013. Would people be allowed to report to the Committee on changes?

Mr Swart agreed that legacy reports were an issue; Deaf South Africa received consideration in the past. He asserted that, principally, the Northern Sotho language issue needed deliberation, though the issue was contentious. Perhaps constituencies should be consulted to see whether the people want the issue pursued. He called for following the categories advised by the legal advisors due to time constraints.

Mr K Mpumlwana (ANC) suggested that all submissions be deliberated upon due; 13 were not too many for consideration.

Mr D Ximbi (ANC, Western Cape) agreed with his colleague and also called for prioritisation.

Mr M Mhlanga (ANC, Mpumalanga) agreed that everyone should be accorded that right to present because the committee was unfamiliar with these old matters.

A representative from SALGA thanked the committee for hearing these matters and said they could present later.

Dr Lotriet said these matters had been documented thoroughly and it was not necessary to call everyone involved. She called for only considering Category 1 matters.

Mr M Maila (ANC) agreed and called for a report on the Sesotho sa Leboa matter.

Mr S Mncwabe (NFP) agreed; calling them in would promote democracy.

Ms C Pilane-Majaka (ANC) called for calling everyone so that the people who could not be considered would understand why.

Ms T Mampuru (ANC, Limpopo) agreed and lamented the postponement of these matters.

Adv G Breytenbach DA) said Parliament could not consider every person that wrote to Parliament, and called for considering only Category 1.

Mr G Michalakis (DA) agreed with his colleagues.

Ms C Motara (ANC, Gauteng) said submissions should have a shorter period for consideration but agreed with her colleagues.

Dr Motshekga agreed with his colleagues. He called for the conclusion of matters to prevent further legacy matters. The legal advice was very solid; category 1 matters should be resolved as soon as possible. This Parliament should not exclude people.

Mr Swart said the Committee did not have infinite time, it had not met since March, and the year was almost over. Hundreds of submissions were sent to Parliament, and could not all be heard. Setting this precedent would create expectations for the entire Parliament. He suggested starting with Category 1 in the hope of getting to the rest.

Dr Lotriet called for all parties to ensure a quorum at meetings.

Ms Mampuru agreed that delays were unacceptable; the Committee must commit to the cause.

Chairperson Nzimande agreed with the ANC that category 1 should be considered first. He pointed out that people may not be available or may have retracted. Parliament must interact, but not necessarily call them. The Committee must consider 2015 as much as possible.

Chairperson Smith observed that the consensus of the Committee was that all people must be called. He hoped that the six Category one matters should not take long. He did not want to deter people from submitting. Upon hearing all presentations, the Committee would reconsider the categorisation. He opened discussion on Mr Swart’s language matter.

Dr Motshekga noted that not everyone must attend Parliament, and Parliament should not be paying for everyone to come. Rather, people should amplify their submissions.

Chairperson Smith agreed but asserted that the principle arrived at was that all 13 submissions must be revisited in some way. He agreed that the Committee must avoid creating further legacies.

Ms Pilane-Majake proposed a motion for closure.

Dr Lotriet said Parliament never responded on the language matter and called for consideration at this time.

Dr Motshekga disagreed and called for acceptance of the summary and the motion for closure.

Chairperson Nzimande closed the meeting.



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