Constitutional Amendment submissions: public hearings

Meeting report

Submission: Advocate Paul Hoffman (Accountability Now)

Advocate Hoffman gave an overview of his submission. Three topics were to be addressed:

• the idea of an integrity commission (effectively an anti-corruption commission);
• reform of the electoral system; and
• modification of the Judicial Services Commission, to improve its efficiency.

On the integrity commission, the context of this submission was that Parliament was required to deal with the issue of the independence of the Hawks by the Constitutional Court. The Constitutional Court had ordered Parliament to take remedial action on this matter. It (the Constitutional Court) had set out the criteria for anti-corruption entities in South Africa. The criteria were specialisation, training, independence, resources and security of tenure of office. These criteria were also supported from research findings of organisations such as the Organisation for Economic Cooperation and Development. Specialisation required the legislature to create a specialist body dedicated to combating corruption, not a part-time body or a division of another body. On training, he asked members to recall that Scorpions staff had received specialised training from Scotland Yard and the FBI at the inception of the Scorpions. There must also be education on anti-corruption provided to the public and other stakeholders.

Independence related to freedom of anti-corruption entities from political influence and interference.  He made the example of the situation after the release of the Nkandla report by the Public Protector in 2013. Although Accountability Now, the EFF and the DA had laid charges, neither the SAPS nor the Hawks had made progress on the matter. The Hawks were part of the police, and not sufficiently independent to discharge their functions. Regarding resources, to have a full functional anti-corruption entity, there must be guaranteed resources that were sufficient for the entity to carry out its work. This was not happening — the resourcing of anti-corruption entities in general and the Hawks in particular was problematic. The head of police was responsible for approving the Hawks’ budget, but this head was a political appointee. It would be ideal if all chapter nine institutions were to apply for funding directly from Parliament and not from the executive.

Security of tenure of office was what the Scorpions lacked. The absence of security of tenure affected the motivation of anti-corruption entities to pursue people in power. This had been the experience of Anwar Dramat (the first head of the Hawks) and Johan Booysen (the former head of the Hawks in Kwazulu Natal). The Scorpions met all the criteria articulated for an ideal anti-corruption entity, but it could be closed down by a simple majority of Parliament, and this was in fact what had happened. If they had been a chapter nine institution, a larger majority would have been needed to disband them, because this would have required an amendment to the Constitution.

The five criteria had not been adequately met by remedial legislation passed in September 2012, which had given rise to the third round of the Glenister litigation, based on the administrative law requirement of reasonableness. It was not reasonable to keep the Hawks as a division of the police. Every Police Commissioner thus far had left that post under a cloud, and it was not reasonable for the Hawks to have to report to the head of police and to have the head of police acting as its accounting officer. Accountability Now had created draft legislation and constitutional amendments directed at the creation of an integrity commission that would satisfy the five criteria set out by the Constitutional Court.

The second aspect of the submission related to section 47(3)(c) of the Constitution.  This section meant that any member of the National Assembly who voted with their conscience risked losing their position in Parliament. This was a result of the closed list proportional representation electoral system. This system had been appropriate for the first democratic elections held in South Africa, but was less so now. The current system forced Members of Parliament to focus on pleasing party bosses, not pleasing the electorate. Thirteen years ago, the Van Zyl Slabbert Report had suggested a system like Germany’s, with proportional representation and multi-member constituencies to ensure a closer connection between the public and their representatives in Parliament. This report ought to be revisited in the light of recent experience.

The third aspect of the submission was about revisiting the composition of the Judicial Services Commission (JSC) to render it more effective. Retired new order judges should be allocated positions on the JSC. The number of politicians on the JSC should be reduced in a way that was proportional to their parties’ representation in Parliament. This should be effected through a minor constitutional amendment.

Discussion

Mr S Swart (ACDP) asked Advocate Hoffman to comment on the degree to which the recent judgment of the Constitutional Court on the Nkandla case had affected the content of the presentation, particularly the aspect of resource allocation to the Public Protector. There had been a previous Constitutional Court judgment that had indicated that resources were necessary for such entities, yet it was clear that the Public Protector had not been given enough. He also asked Advocate Hoffman to make a comment on the litigation by the Helen Suzman Foundation on the appointment of the head of the Hawks. He said he had been part of the Van Zyl Slabbert Commission which had issued a report that had been debated in Parliament. The report was a useful document. If that were to go forward, it would be argued that this would apply to the provinces as well, but bearing in mind that South Africa had a general proportional list system as per the Constitution. He asked whether Advocate Hoffman had looked at the private member’s bill on the reformation of the JSC that had been discussed in the Justice Portfolio Committee.

Advocate Hoffman replied that the Constitutional Court’s Nkandla judgment had probably been the most significant since the first Glenister decision on the inadequacy of the Hawks. It had also been a major wake up call for Parliament. The decision reminded Parliament to not be a rubber stamp for the executive. Parliament’s constitutional mandate was to maintain oversight and exact accountability. SAPS and the Department of Police had drafted the legislation governing the Hawks. The second Glenister judgment gave a clear template of how Parliament should be more of an originator of legislation, rather than a processor of legislation. The crucible of argument caused by the multiparty system in South Africa would tend to produce better legislation. There was a need to reassess the funding of chapter nine institutions.

Mr F Beukman (ANC) asked whether the presentation on reforming anti-corruption entities should not be before other committees. He made the example of the amendment of the SAPS Act, for which there was a White Paper out and a consultation process under way. The presentation had not referred to the current operational guidelines of the Hawks that had been tabled in Parliament. On the issue of the financial independence of anti-corruption entities, the portfolio committee (presumably Justice) was going to propose that this became a separate budget vote. Would this be sufficient to ensure the financial independence of the Hawks?  With regard to the question of political interference in the Hawks’ operations, there had been no reference to the role of the inspecting judge. Any officer in the Hawks who was of the opinion that there had been political interference could complain to the inspecting judge. Was this mechanism not the correct route to deal with the problem of political interference? If these issues had not been dealt with yet, was it appropriate to elevate the problems to the constitutional level?

Advocate Hoffman replied that the problem with tinkering with the SAPS Act was that this was not about operations only -- it was about the structure as well. What was meant to be a solid, independent structure had been put in the crumbling house called SAPS. Any organisation was as good as the ethos of the people behind it, and would not function well if a thoroughly corrupt person was put in charge. The inspecting judge’s role was reactive. What was needed was for Parliament to be proactive and create a structure and operations that did not need an inspecting judge.

Ms M Mothapo (ANC) asked about the role of chapter nine institutions, especially section 182 of the Constitution on the Public Protector and the South African Human Rights Commission (SAHRC). Would the setting up of the integrity commission not result in a duplication of mandates, especially with that of the Public Protector? On the issue of funding, Advocate Hoffman had referred to the Public Protector’s budget being equivalent to that spent on Nkandla. She reminded Advocate Hoffman that the SAHRC had the same budget -- why had the Public Protector been singled out? Advocate Hoffman should have taken the Kader Asmal report (which looked into all the chapter nine institutions) into account in making his presentation on the integrity commission. On the JSC, what was the situation in developing countries as opposed to developed countries? She was aware that in Kenya, the JSC was made up mostly of people who were well versed in the law.

Advocate Hoffman replied that according to the Auditor General, about R30 billion went missing in the procurement system every year. The financial needs of the Public Protector were not that significant in the larger scheme of things, considering the task at hand.  There would not be an overlap in mandates -- the Public Protector dealt with maladministration and criminality in the form of corruption, and organised crime would be dealt with by the integrity commission. The integrity commission should be headed by someone with sufficient clout, gravitas and status, not Berning Ntlemeza. When the Hawks had started, they were arresting 14 000 people a year, but now they were down to 1 000 arrests. This was not because corruption has been conquered. He agreed with the Kader Asmal report on the aspect that that there could be rationalisation in some areas. The SAHRC could take in gender, culture and religion. However, he believed that it was necessary to have an Auditor-General looking into issues of where finances did not add up, a Public Protector looking into maladministration where no criminal intent was involved, and an integrity commission that supplemented the work of the Auditor-General and the Public Protector. This would be an efficient system to avoid becoming another African kleptocracy that failed.

Adv G Breytenbach (DA) said that the Hawks were not independent at all, and asked for Advocate Hoffman’s comment on this. She also asked for his comments on the appointment process of the Hawks, as she was of the opinion that it was evidently woefully inadequate.

Advocate Hoffman agreed that the Hawks fell far short on the independence criteria of an ideal anti-corruption entity. Creating an entity that had a reporting line and an accounting officer in the police was insufficient to meet the criteria. The appointment process needed to be taken away from the executive. Berning Ntlemeza was not the sort of person this country needed as head of an anti-corruption entity. He was sure that Ntlemeza’s appointment would be declared irrational by the courts.

Co-chairperson Smith asked whether Advocate Hoffman was asking for a 100% constituency-based system, or if he was saying the Van Zyl Slabbert Commission report should be revisited. At present, only ten members of the JSC were politicians, the others were appointees. Why did Advocate Hoffman think that retired judges should replace politicians and not sitting judges, who were already members of the JSC?

Advocate Hoffman answered that the current electoral system lacked accountability of politicians to the electorate. Accountability Now was lobbying for an electoral system similar to the German system, with multi-member constituencies and the proportional representation system. The appointees to the JSC were political appointees. There had been some terrible experiences with these appointees. He gave the example of Advocate Dumisa Ntsebeza, who had publicly stated that his personal preference for Chief Justice would have been Justice Moseneke, but because his appointer had stated that (then) Judge Mogoeng was a better candidate for the position, Advocate Ntsebeza had felt obliged to endorse Judge Mogeong for the Chief Justice position. This showed a lack of independence and impartiality on the part of the commissioner. The system would work better if it was obligatory for the President’s appointees to be retired judges.

Co-chairperson Nzimande asked what Advocate Hoffman’s position was on the final appointment of judges after the JSC process, since the President had this right to appoint.

Advocate Hoffman stated that he had no problem with the President exercising the power to appoint judges nominated by the JSC. It was, however, important for the JSC, which compiled the shortlist from which the President appointed judges, to be effective and impartial. Judges were good at being impartial and independent due to nature of their judicial work.

Submission: Dr Clive Marwick (Veterinary Council of South Africa)

Dr Marwick said the State veterinary services needed to be centralised. Decentralisation of these services to municipalities had created many problems. This issue was of concern to the veterinary profession, and it impacted cattle owners and the rest of the population. State veterinarians had to report to municipal managers who had no knowledge of veterinary issues. There had been many cases of foot and mouth disease, and last week the first case of African horse sickness had been reported.  This had a negative effect on South Africa’s ability to export livestock. There was a need to respond rapidly to disease outbreaks. Similar services such as plant health remained centralised and were functional.

The Veterinary Council of South Africa (VCSA) had received many complaints from veterinarians and farmers on centralisation. Each province controlled disease in different ways, but a uniform approach was needed because disease knew no boundaries. The problems caused by the decentralisation of veterinary services were causing financial loss, as well as a loss of South Africa’s international reputation. Each province had its own strategy to combat the current drought, when the response should have been on a national level. Decentralisation had also contributed to a lack of proper resource planning and poor implementation of disease control in some provinces. Veterinary services were important to different industries, especially to the food industry. People in rural areas also suffered the most, as this was where the largest population of animals was.

A national centralised strategy on veterinary services was needed. This strategy must also be aligned with the Southern African Development Community’s (SADC’s) and international standards. The role of state veterinary services needed to be made more visible and to this end, stakeholders should be consulted in the process. It was recommended also that public-private partnerships in this area needed to be enhanced. Skilled veterinary professionals should be responsible for planning and implementing veterinary services for the state. Some provincial heads of veterinary services were not veterinarians, so their grasp of the issues in this field was not good.

Discussion

Dr A Lotriet (DA) asked how this submission related to a constitutional amendment. Veterinary services were a concurrent function in schedule 4 of the Constitution. Was Dr Marwick suggesting that the schedule should be amended so that veterinary services be made a function exclusive to national government?

Dr Marwick replied that the biggest challenge facing veterinarians was disease control and the speed at which one had to react in order to mount an effective defence. This was why the SAVC would rather have an amendment to the Constitution than a change in regulations or legislation. Resources at lower levels of government had many competing priorities. He gave the example of the situation in the Free State, where state veterinarians were allocated an allowance for only 200kms of travel every month, which was inadequate to cover the areas that needed the assistance of state veterinarians. Each province had its own idea of the value of veterinary services. Some did not place a high value on these services. International best practice was to have a centralised veterinary service.

Ms R Mothapo (ANC) said that she would have wanted the presenter to specifically state the constitutional provision that he wanted amended.

Dr Marwick said he did not know which specific section of the Constitution had to be amended.

Co-chairperson Smith stated that the Constitution should not be changed in the absence of compelling reasons for doing so. Would it not be better to improve the managerial or administrative operations of the way in which veterinary services were run?

Co-chairperson Nzimande asked Dr Marwick to share any efforts that had been made to address the problems being faced, outside of seeking a constitutional amendment. He also asked whether the Act governing state veterinary services was inadequate to address the challenges identified. Had there been attempts to engage any of the relevant departments on the issue?

Dr Marwick stated that the SAVC had engaged the national Department, but that no solution to the challenges mentioned in the presentation had been forthcoming.

Submission: Mr Nqabeni

This submission by Mr Nqabeni referred to the unfair distribution of justice. He felt that justice was not being followed to the letter. Chapter 1 of the Constitution in section 2 stated that the Constitution was the supreme law of the Republic of South Africa, and that all law and conduct inconsistent with it was invalid to the extent of its inconsistency with the Constitution. Section 9 of the Constitution detailed the right to equality and section 33 guaranteed administrative action that was lawful and procedurally fair. After conviction, perpetrators of crime were jailed. The perpetrators had the benefit of free accommodation, free catering and free education. Victims of crime should get the same benefits as perpetrators of crime did.

Discussion

Mr Beukman asked whether Mr Nqabeni had specific proposals on how to deal with victims of crime.

Mr Nqabeni responded by giving the example of rape cases. In such cases, the victim had to carry a child if the rape resulted in pregnancy, and bear all the associated costs. The perpetrator on the other hand went to jail and was given the opportunity to obtain educational qualifications which they could use after being released.

Mr Swart said that the issue of obtaining justice for victims of crime could be referred to the Justice Portfolio Committee. There was a Victims’ Charter and a fund for crime victims which aimed to alleviate the condition of victims of crime. The criminal justice system had also been infused with notions of restorative justice that allowed for the compensation of crime victims in certain instances. Had Mr Nqabeni had any personal experiences that had moved him to make this submission, or was it his general sense?

Co-chairperson Nzimande asked whether Mr Nqabeni was contending that arrested people should have no rights.

Co-chairperson Smith said that the Constitution gave rights to all people to be treated with dignity. Which specific constitutional provision should be amended to bring about Mr Nqabeni’s intended reforms of the criminal justice system?

Mr Nqabeni referred to sections 2, 9 and 33 of the Constitution again.


Submission: Professor Mhango (Witwatersrand University)

This submission related to the Private Member’s bill submitted to Parliament in 2013 on the proposed amendment of section 179 of the Constitution, which dealt with the appointment of a head for the National Prosecuting Authority (NPA).

The bill made suggestions to curtail the President’s powers to appoint the head of the National Prosecuting Authority because the current President faced possible criminal charges. The reasoning for the suggested amendment was that if such charges were to become a reality, there would be a potential conflict of interest between the President appointing the head of a body that could prosecute him, and the willingness of that appointee to prosecute the person who had made the appointment. However, every appointing authority had an interest in whom they appointed. The justifications for the bill were not adequate and therefore the Constitution ought not be amended for this reason. Parliament must be cautious when it was asked to amend the Constitution. Amendment was a drastic measure that should be resorted to only in matters of national interest.

The bill proposed that the appointment of the head of the NPA should be made by Parliament. This was questionable, because it would politicise the appointment process. It would prevent suitable candidates from putting their names forward for appointment. Concerns around the President appointing an unfit, improper person as NPA head would not be addressed adequately by this amendment.

The current constitutional structure provided for adequate accountability of the President with regard to this matter. If section 179 was amended, there would probably be inconsistency with other constitutional provisions. In the Glenister case, the Constitutional Court had found that it was a unique feature of SA’s constitutional scheme that the police and NPA fell into the executive function of the state. He recommended that instead of amending section 179, it must be ensured that Parliament was involved in confirming a candidate chosen by the President. The bill proposed a larger role for civil society participation in the appointment of the head of the NPA. However, according to the recommendation made, civil society was already involved, since it could participate in Parliament’s processes. Participation of civil society was not to say it should dictate to Parliament.

The bill proposed deletion of section 179(6), which gives the Minister of Justice final responsibility over the NPA. This deletion would derogate from the fact that the President was given executive power that he/she could exercise through ministers. This would disturb the operation of the separation of powers in the Constitution. The Constitution provided for executive accountability -- for the executive to hold other government entities accountable -- in some spheres, and the NPA was one.

The bill proposed that only a two-thirds majority of Parliament should vote for the removal of the head of the NPA. Only thereafter could the President take action to remove the head of the NPA. However, the bill did not make a case for why the Constitution should be amended in this way, because the legislature and the executive were already involved to different degrees in the removal of the head of the NPA.

Discussion
Mr Beukman (ANC) asked for the presenter’s view on the composition of the JSC.

Professor Mhango replied that the Constitutional Court had dealt at length with the composition of the JSC in the first certification judgment.  It had found nothing constitutionally wrong with the current arrangements on the JSC’s composition. He agreed with this view. There was sufficient room for involvement of other political branches in the appointment of judges.

Adv Breytenbach said it was apparent that the drafters of the Constitution had foreseen that there might be a need for amendments, and this was why provision had been made for amendments to the Constitution. She could not reconcile this understanding of the constitutional scheme with the idea presented that the Constitution should not be amended at all.

Professor Mhango said he was aware that the framers of the Constitution had made provision for constitutional amendment. His argument was that the proposal to amend the constitution set out in the bill was driven by the need to address a temporary problem relating to the current President. There had to be compelling reasons to amend the Constitution, which had not been shown in this instance. What happened when the current President left office?

Mr Swart said that one of the issues in the Ginwala Inquiry had been the security of tenure of the head of the NPA. Although the Ginwala Commission had found that Advocate Pikoli, the then head of the NPA, was a fit and proper person to head the NPA, the President at the time had fired Advocate Pikoli. This had given rise to many questions around the appointment process and security of tenure. He took issue with the submission, because there had been issues of political interference in the firing and hiring of the head of the NPA. The decisions of the NPA to prosecute or not to prosecute had also served political purposes at times. Did the Nkandla decision, which had found that the President had breached the Constitution, not make the presenter reconsider his view that the President should have the power to appoint the head of the NPA? He also asked about the comments made by the deputy chief justice in a recent newspaper article, stating that the President’s powers to appoint a variety of public officials ought to be revisited. It was concerning that there was now a trend that the security of tenure of the NPA head became compromised whenever there were unpopular political decisions relating to inquiries or possible prosecution. It had become the practice to give such fired NPA heads golden handshakes. These were the motivations behind the private members bill.

Professor Mhango replied that he did not see a relationship between the Nkandla judgment and the propositions in the bill. It was far fetched to say the judgment enhanced the idea that section 179 should be amended. The Constitution should not be amended to deal with perceived problems around one individual, but only for matters of national importance. He was aware of the statements that had been made to the effect that the President had too much power. However, these powers had been decided by the drafters of the Constitution and should be curtailed only for good reason. The Constitution also had other checks and balances to ensure that other political branches could check the executive’s powers.

The meeting was adjourned.