The Content Advisor to the Committee, Ms Sipamla, briefed the Committee on submissions made by the Ms Mosiane, Mr O Shembe, Mr L Mahlatsi, the Support Public Broadcasting Cooperation (SOS), the Deaf Federation of South Africa (DEAFSA), the Holy Faith Mission Evangelical Church, the South African Local Government Association (SALGA), Mr N Ngobese and the National House of Traditional Leaders (NHTL). These submissions were legacy issues that had been presented to the Constitutional Review Committee of the Fourth Parliament. Submissions made by the Coalition SOS, DeafSA, SALGA, NTHL were resubmitted and would be considered when the 2015 submissions were being processed.
The Institute for Accountability in Southern Africa made three requests: the establishment of an Anti-Corruption Commission (ACC) as a Chapter 9 Institution, a review of section 47(3)(c) provisions on 100% proportional representation, and a proposal for review of the selection process for the Judicial Service Commission candidates. Members did not feel that it was necessary to amend the Constitution, on the first point, since serious corruption was already to be dealt with by the SAPS. They believed that any change to electoral processes or policy decisions around the JSC should rather be dealt with by political parties.
Mr F Nqabeni submitted that the rights of inmates in correctional centre ought to be reviewed, and Members agreed that no amendment of the Constitution was desirable. These issues were dealt with in other legislation, although one Member suggested that perhaps the rights and privileges of inmates and detainees should be more clearly defined.
The South African Veterinary Council said South Africa veterinary services needed to be centralised, listing reasons which included the current dysfunctional management of provincial services and that the current decentralisation was leading to poor coordination, implementation and delivery. Members noted that these symptoms could be addressed by relevant committees, who could be asked to strengthen their oversight of the legislation, but no amendment of the Constitution was needed.
Prof M Mhango requested that the Private Member's Bill introduced by Dene Smuts, MP, in June 2013, relating to appointment of the National Director of Public Prosecutions, should be reconsidered. However, Members noted that the proper notices and consideration period had been allowed, that the Bill was presented to the Portfolio Committee on Justice, deliberated upon and deemed not desirable, so the matter was closed.
Mr O Shembe submitted that the phrase in the Preamble to the Constitution, stating that “…South Africa belongs to all who live in it” should be replaced by the phrase “…South Africa belongs to its legitimate and legal citizens”. Members agreed that such changes could impact negatively upon xenophobic tendencies, human rights and freedom and should not be supported.
Mr L Mahlatsi submitted that the law should be amended to permit homeowners to kill armed robbers in self-defence. It was noted that the Constitutional Court had addressed this matter in Ex Parte Minister of Safety and Security and Others: In re S v Walters and Another, and the matter was already dealt with, meaning that there was no need to amend the Constitution.
DeafSA requested an amendment to Chapter 1 of the Constitution under section 6(1), so that South African Sign Language could be declared an official language. The Holy Faith Mission submitted that the Khilovedu language be recognised as an official language. Both institutions had re-submitted their requests in 2015 and these would be considered in due course. The Committee noted that language issues raised much sensitivity, and were in support of asking the Pan South African Language Board to research the issues. This would be reconsidered on 9 September 2016.
Support Public Broadcasting Coalition called for transformation of the SABC into a Chapter 9 institution, as a way of protecting the SABC's independence, proposing amendments to various sections. This submission had been re-submitted and would be reviewed in due course.
SA Local Government Association asked that section 163 of the Constitution should be amended to create an enabling provision that obliged national government to include a funding model in the Organised Local Government Act and outline this also in the division of Revenue Act. This would be considered under the 2015 proposals.
Mr B Ngobese had outlined his many disagreements with existing legislation and court rulings but these did not include any clear request for review or amendment of any particular Constitutional provision. For this reason, no submission was actually before the Committee.
2013 Legacy Submissions from Fourth Parliament: Public hearings: Report back by Content Advisor
Ms Sisanda Sipamla, Committee Content Advisor, Parliament, briefed the Committee on the report prepared on the 2013 Legacy Submissions (on suggested amendments to the Constitution) that had been made to the Fourth Parliament. This Committee had convened public hearings on 15 April 2016.
Submissions were made by the Institute for Accountability in Southern Africa (IFAISA), Mr F Nqabeni, the South African Veterinary Council (SAVC), Prof M Mhango, Ms Mosiane, Mr O Shembe, Mr L Mahlatsi, the Support Public Broadcasting Cooperation (SOS), the Deaf Federation of South Africa (DEAFSA), the Holy Faith Mission Evangelical Church, the South African Local Government Association (SALGA), Mr N Ngobese and the National House of Traditional Leaders (NHTL)
She then summarised the main points as follows:
Ms Sipamla noted that the IFAISA made three request in their submission:
(i) an establishment of an Anti-Corruption Commission (ACC) as a Chapter 9 Institution,
(ii) a review of section 47(3)(c) for 100% proportional representation and
(iii) a review of the selection of Judicial Service Commission (JSC) candidates.
In relation to the ACC establishment, Ms Sipamla noted that the Committee requested the South African Police (SAPS) to develop a Programme Six in the SAPS, which could accommodate the Directorate for Priority Crime Investigation (DPCI). The recommendations followed the litigation on the DPCI and the Glenister Constitutional Court judgments. However, she pointed out that the Glenister judgment did not mean that the Constitution could simply amended and it was suggested that entrusting SAPS with the mandate of DPCI would give rise some gaps in the SAPS Act, 1995.
Mr T Motlashuping (ANC) commented that the investigation of and fight against corruption should remain with SAPS.
Mr S Swart (ACDP) commented that there was no need to disturb the Constitution by establishing the ACC. The Glenister judgments did not recommend amending the Constitution.
The Chairperson noted that Members had no desire to amend the Constitution to establish the ACC.
Ms Sipamla then outlined the reasoning for requesting a review of section 47(3)(c), relating to 100% proportional representation. This section was inserted by the Constitution Tenth Amendment Act of 2003 to create “uniformity within the three spheres of government regarding loss or retention of membership of the National Assembly”. Any amendment of this section would thus necessitate consideration of similar provisions related to the provincial and local spheres of government. She felt that any amendment to the electoral system and representation was a policy decision, which required deliberation and resolution at a party political level of engagement, so that it could not be a parliamentary decision.
Mr Swart sought clarity between a policy decision and parliamentary decision, insisting that the decision that would be taken would be both a policy and parliamentary decision. However, having said that, he was of the view that the electoral system could not be reformed in this way.
Mr Motlashuping suggested that legal advice be taken to confirm whether the issue could be dealt with by the Committee.
Dr M Motshekga (ANC) supported Ms Sipamela’s view that this was a policy decision.
Members agreed that the issue would be better deliberated and resolved in the political parties.
The third suggestion was for a review of the JSC candidate process, and the powers of the JSC to fill vacancies, in terms of section 178, together with the process of appointment of the Chief Justice. Ms Sipamela referred to the First Certification judgment, and stated that the composition of the JSC was a political – therefore a policy - decision. She stated that the decision to amend the composition of the JSC was thus a policy decision that could be taken by the Houses.
Mr Swart agreed with Ms Sipamela’s suggestion.
Dr Motshekga was of the view that these provisions should stay as they were and that there was no need to interfere with them.
The Chairperson noted the comments of Members.
Mr F Nqabeni Submission
Ms Sipamela noted that Mr Nqabeni submitted that the rights of inmates in correctional centres ought to be reviewed. He felt that it was unfair to victims that people in such centres received facilities such as free accommodation, food and education, which their victims paid for through tax. His submission was supported by personal religious convictions. The submissions did not, however, contain any clear proposals for amendment or review of specific sections in the Constitution.
Ms Sipamela referred to the judicial opinions expressed by the Supreme Court in Minister of Justice v Hofmeyr (1993), which held that “the prisoner retains all his personal rights save those rights abridged or prescribed by law…”. In addition, section 35 of the Constitution stipulated that inmates had the right “to conditions of detention that are consistent with human dignity”. She stated that rights of inmates were, in light of the Constitution, enshrined in national legislation as well as in rules that the Department of Correctional Services had to follow.
Mr Swart commented that the Supreme Court judgment did not clarify which precise rights prisoners and detainees were entitled to.
Dr Motshekga stated that the State was obliged to ensure that people understand their rights. The rights to which inmates were entitled were those of all human beings. Parliament should adopt a specific legislative enactment that set out the rights of inmates and detained persons in more detail. However, he felt that there was no need to amend the Constitution.
The Chairperson noted that Members were in consensus that the proposed amendment of the Constitution was not desirable.
Ms Sipamela noted that the SAVC submitted that the State Veterinary Services needed to be centralised. The reasons were:
- provincial veterinary services were driven by dysfunctional management
- the present constitutional arrangement to decentralise veterinary services further fragmented the delivery of services, resulting in poor coordination of services and poor implementation of services. The SAVC submitted that, as one example the Animal Health Act of 2002 had not been sufficiently put into operation in order to speak to the individual responsibilities of the provinces and the Department of Agriculture, Forestry and Fisheries. However Ms Sipamela noted that there had been some work undertaken by the relevant Committee in consultation with the SAVC and it seemed that it was possible to oversee and ensure adequate implementation of national legislation, in order to ensure alignment of provincial responsibilities.
The Chairperson noted that Members were in consensus that the proposed amendment of Constitution was not desirable.
Prof M Mhango Submission
Prof Mhango's submission was a request for the Committee to review the Private Member’s Bill of June 2013, introduced by the late Ms D Smuts , who had been a DA Member of Parliament at the time. Ms Smuts's Private Member's Bill proposed changes to the appointment process of the National Director of Public Prosecutor (NDPP).
On this issue, Ms Sipamela noted that a general notice, dated 14 June 2014, was published, calling on interested parties and institutions to submit written representations on the draft Bill to the Secretary to Parliament within 40 days of its publication. Submissions were received. After due deliberation, on 5 February 2014, the Portfolio Committee on Justice and Correctional Services had adopted a motion that the Bill was not desirable.
The Chairperson noted that Members were therefore now in consensus that the proposed amendment of Constitution as proposed by Prof Mhango was not desirable.
Mr O Shembe Submission
Ms Sipamela noted that Mr Shembe submitted a request that the phrase stating that “…South Africa belongs to all who live in it” ought to be replaced by the phrase “…South Africa belongs to its legitimate and legal citizens”.
Ms Sipamala commented that in light of scourges of xenophobic violence reported in the media, a submission of this nature would have a negative impact on the values of the Constitution, namely, advancement of human rights and freedoms, non-racism and non-sexism, and should not therefore be considered by the Committee.
Dr Motshekga said that he supported Ms Sipamela’s suggestions because the Constitution was essentially linked to international human rights texts. If Mr Shembe felt that citizens were not given sufficient protection, it would be more apposite to amend or adopt other laws, instead of interfering with the Preamble to the Constitution.
Mr K Mpumlwana (ANC) said although he always found the phrase “…South Africa belongs to all who live in it” problematic, he could not support its amendment unless legal advice was provided by the Parliamentary Legal Advisor as to why it could or should be suitably amended, and the ramifications of any amendment of that nature.
The Chairperson summarised that there did not appear to be support for amending the Preamble.
Mr L Mahlatsi submission
Ms Sipamela outlined that Mr L Mahlatsi had suggested that the law should be changed to permit home-owners to protect themselves, by killing armed robbers in self-defence. However, Ms Sipamela outlined that this submission was already covered by existing case law and national legislation and did not necessitate any amendment of the Constitution. She referred to the Constitutional Court judgment in Ex Parte Minister of Safety and Security and Other: In re S v Walters and Another. Self-defence was also governed by common law.
Support Public Broadcasting Coalition (SOS) Submission
The SOS Coalition called for transformation of the SABC into a Chapter 9 institution, as a way of protecting the SABC's independence. It had proposed amendments to section 181(1), 192, 193(1)-(2), 193(4)(d)-(e). Ms Sipamla pointed out that this submission had been made again in 2015 and would therefore be reviewed when the 2015 submissions were being considered.
SALGA submitted that section 163 of the Constitution should be amended to create an enabling provision that obliges national government to include a funding model in the Organised Local Government Act and outline this also in the division of Revenue Act.
Ms Sipamla noted that this submission had also be re-submitted in 2015, and the Committee would thus deal with it under the 2015 submissions.
Ms Sipamela noted that the DeafSA had requested an amendment to Chapter 1 of the Constitution, under section 6(1), pertaining to official language, to recognise and incorporate South African Sign Language as an official language. This submission had also been re-submitted in 2015 and 2016, and it would thus also be considered when the Committee got to the point of consideration those. It would be consolidated for consideration with other submissions that were requesting reviews of section 6(1).
There were no deliberations on these last four submissions.
Holy Faith Mission Submission
The Holy Faith Mission submitted that Khilovedu should be included with the other 11 official languages, within section 6(1) of the Constitution. Ms Sipamla repeated that this submission would be considered together with other submissions requesting reviews of the recognition of official languages under section 6(1) instead of section 6(5).
Mr B Bongo (ANC) commented that the language issue was very sensitive and that any recognition of another language might open a can of worms, as then, for instance, not only the Khoisan people but also other communities in Kwazulu Natal, Limpopo and so forth could make claims for recognition of their languages. He suggested that the Committee needed to be advised by a competent body on how to deal with issue of language in a systematic and comprehensive way, to avoid any perception that the Committee offered preferential treatment to some communities over others.
Dr Motshekga remarked that Mr Bongo’s remarks were valid, but, emphasised that the Committee should deal with issue before it. Each matter before the Committee should be dealt with on its own merit. The issue of recognition of language was also connected to issues of recognising king and queenships in South Africa. However, the Khilovedu was recognised as a language by the Minister in his address to the NHTL.
Dr A Lotriet (DA) thanked Dr Motshekga for his clarity on the matter and agreed that the language issue was very sensitive. She sought clarity on whether the issue of language should be dealt separately or whether issues related to language – including the sign language – should be deliberated on in conjunction with each other.
Dr Motshekga commented that sign language was informally recognised as official language since it was used everywhere – including TV programmes. In his view, it should be made official, and so should Khilovedu.
The Chairperson explained what the problem was. He stated that the Sipedi and Khilovedu requests were submitted in 2009. The applicants went to the Public Protector and requested her to ask the Speaker of Parliament what was the position of Parliament. Unfortunately, the request fell between the cracks, as it was not considered. The Committee felt it was necessary to resuscitate the issue and invited people to come and brief the Committee on the issue.
Dr Motshekga explained that the Executive had swiftly responded on the matter before even the Committee could convene to discuss the issue itself . However, this matter should not be left to the Executive to decide, but the Committee should take the matter forward. He identified other languages that might be raised for recognition, and therefore cautioned against resuscitating selected requests only.
Ms Mothapo disagreed. She said that all submissions related to languages should be given a chance to be heard and deliberated on. The issue of language was critical.
Ms C Pilane-Majake (ANC) suggested that since the Executive had accepted some languages as official, the Committee should not rush matters, but wait for the Executive to propose amendments to section 6.
Mr T Mampuru (ANC) commented that the issue of whether section 6 could be amended was addressed by a fundamentally flawed academic report, and there was no other report that could help the Committee to deal with issue of languages. The Pan South African Language Board (PanSALB) should be requested to conduct a comprehensive research on languages that could be recognised as official languages. However, the issue of Khilovedu could not be dismissed.
Dr Lotriet stated that the matters before the Committee could not be met with silence, and she agreed with Mr Mampuru on the approach to PanSALB.
Dr Motshekga agreed that more research projects on languages should be conducted.
The Chairperson concluded that the issue of languages could fully be engaged on when there was a report prepared for, and in front of the Committee.
Mr Bongo suggested that the Members should meet again on 9 September 2016 to finalise the issue of language and to deliberate on the way forward. He agreed that certainty was needed on this sensitive matter.
Mr B Ngobese Submission
Ms Sipamela noted that Mr Ngobese’s submission made many arguments based on his disagreement with existing legislation and constitutional rulings, but did not make a clear request for the review or amendment of a particular section in the Constitution. Ms Sipamela therefore stated that because the submission did not in fact include any proposal on a specific amendment to any section of the Constitution, the Committee could not consider the matter.
Mr Swart stated that the Committee should not allow people to submit irrelevant submissions that did not directly identify and address any provision in the Constitution that was proposed for amendment.
Ms Pilane-Majake agreed with Mr Swart and added that if Mr Ngobese was not satisfied with any court judgment, he could have approached the Court.
Mr K Mpumlwana (ANC) remarked that it was difficult to ascertain exactly what Mr Ngobese wanted, despite the fact that he was clearly dissatisfied.
Dr Motshekga commented that the Committee should recognise that some people were not as literate as others, and should make an effort to hear what they wished to say.
The Chairperson noted the comments.
The NHTL submitted a request to the Committee to review various sections of the Constitution, including sections 41(2), 151, 155, 166, 190 and 211. The NHTL wanted the power of traditional leaders to be extended to retain certain powers in municipal matters. The submission was resubmitted again in 2015 and would thus be considered when the 2015 Submissions were being dealt with by the Committee.
Dr Motshekga felt that it was not necessarily to amend the Constitution, since the Constitution stipulated that matters of traditional leaders ought to be dealt with under separate legislation, and he expressed the view that the points raised could be covered by other amendments.
The Chairperson reminded Members that this submission would be more fully considered later.
Other Committee business
The Chairperson announced that a request had been made by the Constitutional Review Agency of the Constitutional Assembly of the People’s Republic of Indonesia, to meet with the Committee on 25 August 2016. However, the Chairperson had been advised by the Secretariat that this date was not possible, although a meeting could be arranged on 26 August 2016.
Dr Motshekga commented that it would be beneficial to the Committee to meet with Members from Indonesia simply because Indonesian legal system was also based on the Roman Dutch legal system.
Dr Motshekga also commented that there was a need to review the Committee and clarify its status. It could no longer be restricted to the power of an advisory committee only, and in his view, it needed to have clear programmes.
The Chairperson agreed and said that this would be a matter for further discussion.
The meeting was adjourned.
Beukman, Mr F
Nzimande, Mr LP
Bongo, Adv BT
Breytenbach, Adv G
Lotriet, Prof A
Mhlanga, Mr M
Mncwabe, Mr SC
Mothapo, Ms MR
Motlashuping, Mr T
Motshekga, Dr MS
Mpumlwana, Mr LKB
Pilane-Majake, Dr MC
Swart, Mr SN
Ximbi, Mr D
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