The Committee Content Advisor firstly briefed the Committee on the submissions that had been sent to the Committee in the 2015 and 2016 years. She noted that she had broadly divided them into three categories, which were not cast in stone but might help Members to categorise. For those that did merit moving to another level, the legal advisors had given input. The main purpose of this exercise and the benefit to both buyer and seller were outlined. A background to the setting up, mandate and scope of the Committee was given. Three submissions still were held over from 2013, being submission from Support Public Broadcasting, DeafSA, SALGA and Mr Maclennan. The Committee had previously suggested that these should be particularly diarised.
The Committee was then taken through the submissions for 2015, and in each case the Content Advisor or legal advisor explained the gist of each submission, and provided comments. It was suggested that these submissions should be prioritised for deliberation. The recommendations discussed included>
- Submission by V Gcuma relating to review of Chapter 2 and wording of Bill of Rights – land issues may be premature
- Submission 2 by Mr D McGillycuddy, requesting terms of office of President and Councillors, already covered in other legislation
- Submission 3 by Mr A Mamagase, requesting copies of the Constitution to be provided to the Sekhuhune Magistrate Court in Lydenburg
- Submission 5: Mr C Renze: violation of constitutional rights, essentially a personal matter, to be referred to Select Committee on Undertakings and Petitions.
- Submission 6 by Mr C Benson, sent copies of newspaper articles written by him. There were no specific or clear proposals as to what sections should be amended and the Committee was unable to deal with this
- Submission 7 by Mr M Nkosi, spoke to gender equality but it seemed that more effort was needed to keep the engagement with parties high.
- Submissions 12 and 13 – submitted by Support Public Broadcasting Corporation , but many of the matters raised were already covered in Electronic Communications legislation.
- Submission 16 – Mr D Williams, made no suggestions for amendment and was not relevant to the work of this Committee.
Members were then taken briefly through category 2 submissions that were referred for legal advice. Ten had been submitted to the legal advisers, who took the Committee through most of them; some were to stand over to another meeting. Some of the suggestions were very detailed but it was clear that some of them were essentially seeking amendments simply to reflect the submitter's viewpoint. Matters raised and discussed include the following proposals:
- Proposal to add words to Preamble relating to God
- Proposal to amend section 22 of the Constitution, which deals with freedom of trade and occupation and profession, but case law seemed already to have covered many of the points.
-Proposal to amend section 23 in relation to right to strike and possible protection to strikers, probably already covered but some aspects not clear
- Proposal to amend section 26 (1), but distinction explained between right to housing and access to the right to housing.
- Proposals to add wording to section 31(1), based on Charter of Rights, which had not been adopted.
- Proposal to add the term “values” into section 33(2)
- Proposals for amendment of section 35 relating to rights of victims
- Proposals on the election of the President, Speaker, Public Protector, alterations to electoral system and discussion of current system
- Another proposal was similar but dealt specifically with the request for increased rights and consultation with National House of Traditional Leaders and possible entrenchment of these posts into the future
- Proposal that Public Protector's decisions be regarded as final – already handled by the Court with a ruling earlier in the year
- Submission (repeated from previous years) to recognise South African Sign Language as official language (two separate submissions)
- Proposal to afford SALGA greater participation rights (including voting) in Local Government legislative process, and a vote in relation to section 67
- Section 139 provincial interventions, need for guidance – Committee's discretion to be applied
- Submission to ensure financial and administrative independence for the Office of the Chief Justice and to amend section 54
- A further submission to the Preamble, to remove all references to God.
The Committee would be formally deliberating on the submissions in the next meeting.
2015 Public Submissions: Parliamentary Legal Advisers briefing
The meeting was convened to hear the opinions of the Parliamentary Legal Advisers, Ms Sueanne Isaacs, Ms Barbara Loots, Ms Vuyokazi Ngcobozi, Ms Phumelele Ngena and Ms Anthea Gordon, on the 2015 submissions to the Constitutional Review Committee (CRC or the Committee).
Ms Sisanda Sipamla, Committee Content Advisor, summarised the submissions. She noted that there were 22 submissions to be heard for the 2015 year, still to be tabled. These had been divided into three categories and Members would be allowed to decide on whether they agree on the categorisation and will also hear the legal opinions of the advisors on the submissions, in preparation for deliberation which would include consideration of whether additional legal opinions were needed.
Section 45 of the Constitution and the Joint Rules of Parliament provided for the establishment of this Committee. The Committee was to review the Constitution at least once a year, in terms of Rule 102(2). On 1 May 2015 a notice was published inviting the public to submit written representations on any constitutional matters. After the closing date the Committee must identify those constitutional matters that it intends to review, and then consider all representations by the public. By June 2015 the Committee had received 22 submissions for the 2015 year, some being re-submissions, and some being layovers from the 2013 submission period.
She then described the three categories:
Category 1: Submissions that were not ready for consideration by the Committee
Category 2:Submissions that required specialist or legal opinion
Category 3: Submissions that were not within the Committee’s mandate and did not speak to the section of the Constitution which the Committee was required to review.
She repeated that this categorisation was merely a recommendation to the Committee and the Committee may wish to alter it; a possible additional category could be matters that stood over from the previous year.
In the 2015 submissions there were three re-submissions dating back to 2013, which were:
- Submission 13 from Support Public Broadcasting (SOS
- Submission 14 from Deaf Federation of South Africa
- Submission 17 from the South African Local Government Association (SALGA)
- Submission 22 by Mr B Maclennan.
The Committee had previously decided that these should be prioritized for deliberation, since they were re-submissions and had also been referred for legal opinion.
She then took the Committee through the submissions for 2015 (see attached presentation for more details)
Submission 1: Mr V Gcuma
Mr V Gcuma, requested a review of Chapter 2 of the Bill of Rights, and in particular, sections 7(2), 10, 11and 25(3)(c).
He requested that the wording of section 7(2) be revised from: “the State must respect, protect and promote and fulfil the rights in the Bill of Rights”, to:” Everyone, in the State, in particular, must respect, promote, and fulfil the Rights of the Bill of Rights”.
In relation to section 10- the Right to Human Dignity and section 11 – the Right to Life; Mr Gcuma states the extent to which the rights are protected was entirely (without) limitation and must be clarified so that they stated, in layman’s terms, that if these two rights came into conflict with any other right they would prevail.
Section 25(3)(c ) is the right to property and compensation, which must be just and equitable, reflecting an equitable balance between the public interest and interests of those affected, having regard to all the relevant circumstances, including “(c) the market value of the property”. Mr Gcuma suggested that the amount of compensation after expropriation of property by the State, must have no regard for the market value, for this only led to profit making and subjected the restitution process to the law of supply and demand.
Mr Gcuma had further suggestions:
- the Constitution should stipulate that mayors may not hold office for more than two terms
- Schedule 2 on Oaths and Solemn Affirmations must also provide for an oath and solemn affirmation by councillors as well as mayors.
When the whole of section 7 is read together, by implication it refers to all people in South Africa, and therefore covers Mr Gcuma’s suggested revision already.
In relation to sections 10 and 11, the right to human dignity and the right to life are indeed protected entirely and where these rights are in conflict with any other right, the court, tribunal or forum and adjudicating such a case will be guided by case law to ensure that these rights prevail and have no limitations.
In relation to section 25(3)(c) it was felt that the words ”the time and manner of payment must be just and equitable, thereby reflecting an equitable balance of the public interest and the interests of those affected” already covered the danger of profit-making. This clause was a product of its time, when reconciliation was being strongly fostered. The Expropriation Bill is currently being considered by Parliament, and a high-level panel championed by the previous Deputy President will be specifically looking into the land matter. By August of 2017 recommendations will be made on all land matters. This particular request may be premature.
In regard to the remaining suggestions, Ms Sipamla pointed out that the Local Government Municipal Structure Act 117 of 1999 already spoke both to the regulation of mayoral terms of office, and oaths and solemn affirmations by Councillors.
Submission 2: Mr D McGillycuddy: Review of Chapter 5
This submission requested a review of Chapter 5 of the Constitution, which deals with the President and National Executive, particularly sections 88(2). Section 88(2), dealing with the terms of office of the President, provides that “ no person may hold office as President for more than two terms, but when a person is elected to fill a vacancy in the Office of the President, the period between that election and the next election of a president is not regarded as a term”. He suggested that the Committee should consider limiting the Presidential term of office to two five-year terms.
Ms Sipamla stated that Mr McGillycuddy's request was already included in section 88(2), as quoted.
Submission 3: Mr A Mmagase
Mr A Mamagase requested that the Committee assist with the provision of copies of the Constitution to the Sekhuhune Magistrate Court in Lydenburg. He was not requesting any changes.
Printed copies of the South African Constitution are available from the Government Printing Works at minimal cost. Printed copies are also available from the Department of Justice and Constitutional Development. She suggested that Mr Mamagase be directed to the closest Government Printing Works or offices of the Department.
This submission fell under category 3 and did not require a review of the Constitution by the CRC.
Submission 5: Mr C Renze
Mr Renze had written to various institutions, including the SA Human Rights Commission, Old Mutual and other insurance companies complaining of the violation of his constitutional rights by institutions that were designed to uphold these rights. The submission was calling for redress of unfair discrimination by the State and private institutions. The submission should be referred to the correct institution or persons who could hear his side of the story, for the rule of law to prevail.
Ms Sipamla recommended that this submission be referred to the Select Committee on Petitions and Executive undertakings, and be processed as a petition. It did not fall within the mandate of this Committee and could be regarded as category 3.
Submission 6: Charles Benson
Mr Benson had written to various newspapers, including the Cape Argus,Weekend Argus, Cape Times, and De Rebus, over the period 1993 to 2015, suggesting various issues including the creation of a Legal Services Ombudsman, the establishment of a Crime Action Campaign and a Road Safety Action Campaign in order to oblige the government to act against the increasing loss of lives on the roads, and a proposal to increase the budget of the Public Protector.
Ms Sipamla pointed out that although Mr Benson’s submission spoke to various matters for which the Constitution made provision, there was no clear proposal for amendment to any particular section. For this reason, she suggested that this also be regarded as a category 3 submission that would not be regarded as a priority matter.
Submission 7: Mr M Nkosi Gender inequality
This submission requested a review of the Constitution in order to include clauses which dealt with gender inequality in State institutions, and made a proposal that equal gender representation should be constitutionally guaranteed and not left to the policies of political parties.
Ms Sipamla noted that there had been a marked increase in the number of women in Parliament since the first democratic term in 1994. At present, 39.2% of Members of Parliament in the National Assembly were female. This was , however, a 4.6% decrease from the number of women representatives in the Fourth Parliament. Women's representation in the National Council of Provinces was 35.1%, a drop from 43.8% out of the 58 permanent members. Women also constituted 48.9% of the Chairpersons of Committees in Parliament. At Cabinet level, women had currently constituted 42.8% with 15 of the 35 National Ministers being women. Out of 37 Deputy-Ministers,17 were female, constituting 45.9%. Women were Premiers in only two of the nine provinces following the 2009 national elections. 13 of the 34 National Ministers were women, and 15 of the 32 Deputy Ministers were women.
There had been progress towards addressing gender inequalities within State institutions. The existing constitutional equality clause in section 9(3) of the Constitution addresses to some extent the proposal made by Mr Nkosi. Section 9(3) provided that no one may unfairly discriminate, directly or indirectly, against anyone on one more grounds, including sex and gender. Movement towards 50% representation of women in State institutions ought to be possible, without a review of the Constitution. This submission therefore fell under Category 1.
Submission 11: Mr A Mamagase
Mr A Mamagase proposed that the Committee ought to verify whether the current Constitution, government departments and independent constitutional bodies, such as the judicial institutions, and all other organisations owned by the State were working. Once the process of monitoring functionality was verified, only then should the Committee engage in a process of reviewing the Constitution.
This proposal falls outside of the scope of the mandate of the CRC, and is more akin to the mandate of the Constitutional Development division of the Department of Justice and Constitutional Development. It appears to fall under Category 3: not a priority submission
Submissions 12 and 13: Support Public Broadcasting Coalition (S.O.S): Chapter 9
Ms Sipamla said that this coalition, which goes under the name of SOS, represents a broad range of civil society stakeholders. They had made proposals for review and amendment of certain sections of Chapter 9 of the Constitution, which deals with state institutions supporting democracy.
The SOS Coalition called for the transformation of the SABC into a Chapter 9 Institution, as a way protecting the SABC’s independence. It also noted that the Independent Communication Authority of South Africa (ICASA) was created in 2000. It would now like to see the insertion of new subsections (g) and (h) to section 181(1), creating new institutions of an independent authority to regulate communications and a public broadcaster. Proposals were set out (see attached presentation) for a new section 192A, stating: “Public Broadcaster – National Legislation must establish an independent national public broadcaster to provide broadcasting services in the public interest and in accordance with its national public broadcasting mandate set out in legislation”.
Consequential amendments would then be needed to sections 193 (1), (2), (4)(d) and (e), by inserting a reference to “ the communications authority” and “non-executive board members of the public broadcaster”.
In relation to section 194, which dealt with removal from office, similar consequential amendments must then be made.
Ms Sipamla pointed out that there are already existing laws regulating the work of ICASA as the independent Authority. The amendments proposed in that regard could be made in other legislation relating to communications in order to achieve the objectives of the submission, and she suggested that it could be regarded as a Category 1 submission that was ready for consideration by the Committee.
Submission 15: Mr F Nkogeng
This submission was to the effect that the Committee should reconcile and fear God’s law before amending the Constitution. Mr Nkogeng submitted that society seems to be challenging God by laws permitting abortions,same sex marriages and women wearing transparent clothes. The Committee ought to be mindful of the biological,chemical,spiritual and holy wars currently taking place globally.
This submission did not make specific reference to any actual amendments that were proposed nor suggest where the proposals ought to be inserted. The manner in which the submission was set out made it difficult to understand which parts of the Constitution required review. It appeared to reflect the personal convictions of Mr Nkogeng. Accordingly this appeared to be a Category 3 submission.
Submission 16: Mr D Williams
Mr D Williams is apparently a Department of Correctional Services official who writes poems on issues faced by the country and his own achievements for work done for marginalised members of his community.
The manner in which the submission was set out did not state which parts of the constitution Mr Williams suggested would require a review, but rather set out the personal achievements of Mr Williams as an outstanding citizen who had gone beyond the call of duty in assisting marginalised members of society as a correctional services official. The proposal fell outside of the scope of the mandate of the CRC, and should be regarded as a Category 3 submission.
Category two submissions referred for legal advice
Ten submissions were presented by the Parliamentary Legal Advisors, as falling into Category 2 submissions, which had been referred to Parliamentary Legal Services for legal opinion. They were:
- Submission CR4/15 by Kingdom Governance Movement
- Submission CR8/15 by Mr B Mbindwane
- Submission CR 9/15 by Mr L Magongwa
- Submission CR10/15 by Mr L Magongwa
- Submission CR14/15 Mr L Magongwa
- Submission CR17/15 by SALGA
- Submission CR18/15 Mr G Travers
- Submission CR19/15 Mr Vuka Africa
- Submission CR20/15 Mr Mashile
- Submission CR22/15 Mr Maclennan
The Chairperson said that the categorisations were not an absolutely determined issue and that they had been suggested as a way to navigate the issues. The Committee had to consider and determine the best way of processing such submissions.
Members indicated that they found the categorisation useful.
Adv Anthea Gordon said at the outset that CR8 and CR19 would not be presented today but would stand over for another meeting.
The legal advisers then dealt with other submissions in this category:
Submission CR4.15: Kingdom Governance Movement
Ms Vuyokasi Ngcobozi said that this was a very lengthy submission, divided between three legal advisers.
Kingdom of Governance Movement (KGM) were seeking to have Chapter 1 of the Constitution amended. It asked that there should be alignment with the Bill of Rights and that both chapters include a reference to “Bill of Values”. Parliamentary Legal Services recognised that the Preamble to the Constitution was based on principles such as that of Ubuntu, and the term “Bill of Values” came from a document called “Charter of Values”. KGM had recommended that these be adopted. However, she pointed out that in fact t these were the same principles as already found in the Constitution.
The Certification judgment looked into the provisions of the Constitution, and paragraph 49 of that judgment said that when interpreting the Constitution, it was necessary to look at the values that were universally acceptable – and essentially these had already been read into the Constitution. She thought that the specific addition of those words would be redundant .
Recommendation 2 also dealt with the Preamble and asked for the insertion of: “we the people of South Africa recognise God as the creator and embrace the application of Godly norms, ethics, morals and principles for the goodness of humanity. Recognise the injustice of our past …..” (and this would continue as the present wording”. From a constitutional perspective such addition would be problematic because South Africa is a pluralistic state and such words would seek to confine everyone to a common belief. The Constitution sets out the right to freedom of religion, and stating one belief would be contrary to the Constitution itself. Several cases had addressed these challenges. Peter Coetzen, writing in the Human Rights Law Journal stated that “the Constitution of South Africa allows for freedom of religion, indeed the freedom of all religions in South Africa. There is no established religion which has certain advantages before the law of the land. Neither can any religion in the country claim any theoretical advantages from the State and courts. All religions are equal before the law and must be treated as such.”
The next recommendation addressed section 9(3) of the Constitution, and dealt with the equality clause of the Constitution. KGM wanted to add “natural sexual orientation”. This issue has also been in front of the Constitutional court, in Coalition for Gays and Lesbians v Minister of Justice. The Court, in paragraph 2, declared that the common law offence of “an unnatural sexual act” was inconsistent with the Constitution because it criminalised same-sex acts and was in conflict with the freedom to sexual orientation already protected by the Constitution.
The next recommendation addressed section 11, the right to life section, and proposed that the provision should read “Everyone has the right to life, from conception”. Other jurisprudence dealt with that debate. The Choice on Termination of Pregnancy Act stated that a foetus was not considered to be alive and therefore not capable of having the right to life protected from conception. In Christian Lawyers Association v Minister of Health, the Constitutional Court confirmed that there were express provisions affording a foetus a legal personality or protection. Section 12(2) of the Constitution furthermore said that everyone has the right to make decisions concerning reproduction. The Constitution does not say that this right is qualified in order to protect a foetus. She thought that this recommendation did not hold water.
The next recommendation addressed section 15(1) of the Constitution, which provides that everyone has the the right to freedom of consciousness, religion, thought belief and opinion. KGM wanted to add the words:“ provided that does not include witchcraft, Satanism and any form of human sacrifice“. The Constitution has a limitation clause in section 36, which states that no right is absolute, and every right must be tested against the limitation clause. Section 36 lists some factors to be taken into consideration when looking into the limitation of a right, specifically that no right can be open-ended and cause harm to other human beings. Ms Ngcobazi said that one of the problems with the wording of this recommendation was that whatever was not in the list would be deemed to be excluded, and the limitation clause does not cover that.
The next amendment proposed related to section 15(3) (b),which provides that recognition in terms of paragraph (a) must be consistent with this section and other provisions of the Constitution. There was a recommendation to add that recognition of marriages is also premised on the principle that minors cannot enter into a marriage and that marriage must be between one male and one female, to perpetuate humanity. Ms Ngcobozi pointed out that section 28(3) of the Constitution defined a child. Section 24 of the Marriages Act provides that no marriage can take place between parties, if one or more is a minor, without the written consent of the parents. This appears to cover the first principle suggested. Other legislation already covered the second part.
The next proposal was to add a new subclause to section 16(2) of the Constitution, dealing with freedom or expression, to specify that there should be a prohibition of “explicit sex, pornography and any other forms of sexual representation that might be harmful to children and sensitive citizens” . Ms Ngcobozi pointed out that section 19 of the Criminal Law Amendment Act 2007, prohibits the exposure or the display of pornography to children; failure to comply will render the person liable to prosecution for a sexual offence which is punishable by law. The recommended prohibition has already been provided for in legislation.
It was further recommended that section 17 of the Constitution be amplified by adding the words “with due respect to private and public property and rights to others” at the end of section 17. Ms Ngcobozi pointed out that section 8 of the Gatherings Act deals with the conduct of gatherings and demonstrations, essentially saying that all gatherings ought to be conducted in a peaceful manner, so that the recommendation is already covered.
The next recommendation addressed section 19(1), which deals with political rights. Ms Ngcobozi noted that South Africa is a multi party democracy, where different political parties are ruling the country collectively, having been elected by proportional representation. It was, for this reason, not possible to separate political parties and politics in the political landscape. The recommendation was essentially asking for a complete overhaul of the political system of the country. This was not contrary to the law, and was not wrong, but it would imply a major paradigm shift in the political landscape.
Mr Gary Rhoda, also a legal advisor, had prepared the second batch of submissions, but Ms Ngcobozi also took the Committee through these.
The next recommendation was that section 22 of the Constitution, which deals with freedom of trade and occupation, should be amended to read “every citizen has a right to choose their trade, occupation and profession freely, the practice of a trade occupation or profession maybe regulated by law, taking into account human dignity as provided in the Bill of Rights and bill of values”. It was felt that human dignity should be stressed.
Ms Ngcobozi noted that there had been substantial case law on the issue. In S v Makawanya the court held that the importance of dignity as a founding value of the new constitution cannot be over emphasised. Recognition of the right to dignity is an acknowledgment of the complex web of human relationships, and is the foundation of many rights enshrined in Chapter 2. When interpreting this provision, the right to dignity must always be taken into account, so it was not necessary to include it specifically in one provision.
one interprets the rights one always has to take into account the right to dignity and it would not be necessary to include dignity in that provision because doing so meant that one would need to include dignity in each provision, and if it was excluded, then inferences could be drawn that it should not be considered.
The next submission looked at section 23 of the Constitution, the right to join an employee organisation and to participate in activities and programmes. The recommendation was to be legally protected during strikes. However, this did not spell out what “legal protection” should be afforded to employers during strike action, but it was assumed that this relates to legislative and judicial protection during strike action. Section 34 of the Constitution says that everyone has the right to a dispute to be resolved by legal steps in a public hearing, or an appropriate and independent impartial body. That clearly is directed to both employers and employees. However, the Regulation of Gatherings Act apportions liability to an organisation (an employer) that arranges a gathering but fails to take the necessary precautions to prevent harm or damage. She was not sure exactly what this recommendation was seeking, and repeated that the issue did seem to be covered already.
The next submission related to the right to housing. KGM wanted to add the words into section 26(1): “and personal responsibility to have access to adequate housing”. In the Grootboom case, the Constitutional Court had said that the right in section 26(1) was merely a right of “access to adequate housing” as distinct from “the right to adequate housing”, and this was a significant difference. Access to adequate housing suggests that it is not only the State, but also other agencies and the individuals themselves to find housing; assisted by the necessary legislation.
The next amendment proposed that section 28(1) should be amended, to read that “every child has the right not to be required or permitted to work, or to provide services including sexual activities that are inappropriate”. Once again, Ms Ngcobozi stressed that there was a challenge in simply listing some activities but not all: for there is a risk that whatever has been excluded has been excluded deliberately, and the test would imply looking at whether that conduct is appropriate to a person, not in general. This would lead to unintended consequences.
KGM proposed that section 28(3) must be amended to say that “child means a person under the age 18 and under parental care or the care of a guardian authority”. The Constitutional Court, in the Teddy Bear Clinic case, held that the rights of children need to be independent and are not dependent on parents for these rights to be protected, and the proposals ran counter to this decision. For this reason Ms Ngcobozi was not recommending that the Committee proceed with it.
KGM proposed that section 29 be amended, but what it had set out did not amount to any amendment and it was unclear what it was seeking to achieve.
Section 31(1) of the Constitution deals with cultural religious and linguistic communities. The proposal was to add “to enjoy religious rights and freedoms as contained in the South African Charter of religious rights and freedoms of section 234 of the Constitution”. This proposal was based on the incorrect assumption that Parliament had adopted the South African Charter of Rights and Freedoms.
Section 33(2) of the Constitution deals with the administrative actions and the recommendation is for references to “values” to be added so that “everyone whose values and rights have been adversely affected by administrative action has the right to be given written reasons.” The founding values of the Constitutional have, however, indicated which values are more or less taken into account when one looks into the provisions of the Constitution.
KGM made a proposal for section 35 – but gave no reasons. The proposal was to state that rights must be exercised with due regard to the violated rights and protection of the victims. in terms of Section 35 of the Constitution. Ms Ngcobozi indicated that it was assumed that this clause had built-in limitations on victims' rights, but it was also covered in section 36 and thus did not need to be included here.
Mr S Swart (ACDP) asked for clarity on the submission for the Preamble. He thought there was no harm in referring, generally, to God, pointing out that the term “May God protect our people” was included. The State was not, in doing this, punting any religion and was also not opposed to expression of religious beliefs. He asked that the legal advisers look at the Certification judgment in Western Cape where the Constitutional Court had accepted a preamble worded “in humble submission to almighty God”. References to God in constitutions were acceptable, both internationally and in terms of South Africa's own jurisprudence.
A Member asked for clarity on the first submission of 27 July, paragraph 43, and asked why the Parliamentary Legal Advisors had recommended that a proposal be rejected because the same result could be achieved by amending other legislation; did this mean current legislation or that still in the pipeline.
Ms Ngcobozi noted that she had been referring to the limitation clause and unpacking it , and was referring to section 36.
Continuation of submissions
Ms Phumelela Ngema then spoke to further suggestions from KGM for Chapters 4, 5, 7, 9 and 10 of the Constitution, relating to elections of President, Premiers, Local Government. KGM had made suggestions on sections 86, 12, 129, 157. Suggestions were also made in relation to the appointment of the Speaker, section 52, and to remedies for the Public Protector under sections 181 and 189. It had suggested an alteration to the electoral system. As already stated, the current system is a multi party democratic system where the choosing of the President and the nine provincial premiers arises out of a direct electorate democratic system. This system allowed the voters to choose a party, rather than individual MPs. KGM was seeking a complete review. The system of elections is provided for in the Constitution and the Electoral Act.
She explained that South Africa had deliberately chosen a system of proportional representation over the constituency system, which is why there is a distinction between parties; the individual is elected as a member of the winning party, and is expected to afford loyalties to the principles of the party under whose aegis they were brought into the position, rather than a free mandate that follows in a system where the person is elected directly.
The Constitutional Court has in fact given direction to address these matters by indicating that whatever choice of a political system is to be followed, that decision must come from the relevant structures and policies. Both political and executive leadership must look and consider whether the electoral system and choice given is in line with the Constitution. The CRC must decide whether it wishes to change that position. The Constitution promotes representative democracy and the Constitutional Court has confirmed that the Constitution had to be drafted from the agreed principles in order to produce a democratic system of government, which is a form of representative government. Because of the loyalties of the MPs – which the Constitutional Court had accepted, it would be very difficult to give effect to KGM's recommendations as the Committee would essentially have to go back to the drawing board entirely. Parliamentary Legal Services were of the view that this was a policy consideration, of a political nature, and was not a matter for Parliament.
KGM made submissions on the powers of the Public Protector. It was suggesting that the recommendations of the Public Protector should be binding and final. Very recent judgments had addressed that – the Public Protector's findings – unless challenged in Court for a review – are binding and final on the institution receiving those findings.
KGM then made submissions on section 195 of the Constitution. This dealt with the basic values and principles for governing public administration, and specifically section 195(1). KGM wanted a word “married” as part of a criteria on appointment. However, having looked at the definition of “marriage” and assessment of abilities, Legal Services felt that it was unwise to try to start listing criteria, for reasons already stated, that if a list tarts, there is a danger of interpreting that list in an exclusionary way, so that anything not on that list cannot be considered. Other provisions of the Constitution have been worded in a more broad and open way. She was of the view that inserting “married” would be redundant, and detract from the meaning that this section sought to convey.
Submission CR20/15: Mr Mashile
Ms Ngema said that this submission concerned issues around traditional leadership. This also spoke to changes to the electoral system. Mr Mashile asked that the Constitution be reviewed and reconsidered in respect of including the traditional leadership authority as part of government.
Mr Mashile recommends that in the Preamble the Committee adds that existence of traditional leadership within the constitutional democracy must be guaranteed. She noted that the difference between the words “guaranteed” and “recognition” were so close that it was arguable that they actually conveyed the same message. Section 2(11) already recognises the institution of traditional leadership and policy is to the effect that the role of traditional leadership authority is to influence all structures of government. In addition, the Traditional Leadership and Governance Framework Act, which essentially came out of section 2(11) and (12) did provide for the guarantee that KGM seemed to be seeking. Section 18 of the Traditional Leadership and Governance Framework Act gives an express mandate and obligation to the Secretary to Parliament, when acting on behalf of Parliament, to give the National House of Traditional Leaders the chance to influence and give input on the direction of thinking whenever issues of customary law are being addressed. She submitted that KGM’s concerns have already been addressed in these respective pieces of legislation and the Constitution. She suggested that there was not much that the CRC could do in relation to the processes of Parliament, other than to perhaps call for engagement and push for matters to move speedily on traditional leadership issues.
Submissions on SA Sign Language: Mr L Magongwa, DeafSA and University of Witwatersrand
Ms Suanne Isaacs noted that both of these submissions were asking that the Constitution, sections 6(10 and 6(5)(b) should be amended to recognise SA Sign Language as an official national language. They are both of the view that while there is some recognition in the Constitution for sign language, this is not sufficient. The rights of those who are hearing-impaired need to be recognised and this can only be achieved if sign language is given an official status.
She noted that DeafSA has previously made this submission to the Committee on a couple of occasions.
She expanded by saying that sign language is, in terms of section 6(5)(a) and (3), recognised as a non-official language. The Pan South African Language Board must promote and create conditions for the development and use of this. There has been statutory recognition of sign language because the South African Schools Act of 1996 says that the language policy of public schools must recognise sign language as having official status, for the purpose of learning, at a public school, and that has happened. The Use of Official Languages Act of 2012 also gives some sort of recognition for sign language, by seeking to monitor and regulate the official languages at government departments; section 4(d) requires that each government department and entity should have a language policy on the use of official languages. That Act also directs departments to indicate how they would communicate to people who do not use one of the official languages, including how they will communicate with those using sign language. Finally, the Pan South African Language Board Act of 1995, although passed prior to the final Constitution, also required the Board to recognise and research and initiate studies aimed at developing official languages and sign languages.
Ms Isaacs concluded that the Constitution and various statutes therefore give some form of recognition to sign language, but this is not official recognition, which the submissions are looking for. There is no legal impediment for it to be given official status. However, this will be a policy decision that the Committee must take, having considered all the implications.
Mr J Selfe (ANC) said that the Committee should note, for the sake of consistency, that this was South African Sign Language being referred to, and so this was not a question of recognising sign language in general. South African Sign Language is offered at universities as an academic language and it applies to all demographic groups.
Mr K Mpumlwana(ANC) asked if South African Sign Language was indeed universal or essentially followed English speech. He cited a case in Mthatha where a sign language interpreter was brought from Johannesburg to help the accused, who said that they could not understand him.
Submission by SALGA: Four-part submission to expand participation rights
Dr Barbara Loots undertook the presentation on the submission of SALGA, which aimed to expand SALGA's participation rights to local government in the legislative process. This dealt mainly with section 67, 139 and 163 of the Constitution. Section 67 dealt with participation in local government. Section 139 dealt with provincial interventions in local government. Section 163 dealt with organised local government.
In relation to section 67, SALGA noted that it wanted not only a voice in the process but a vote; because although currently ten part-time representatives were allowed, who may participate, they may not vote. For this reasons, SALGA had requested that the words “but may not vote” should be removed from section 67. This was also linked to section 154 of the Constitution, which promotes the idea of participation by referring to “a manner that allows for an opportunity to make representation”. The Constitutional Court, in the Doctors for Life case, said that there is no set form for participation, an it may include voting or other participation in the legislative process. The Constitutional Court made it very clear that in every situation Parliament gets to determine the extent and form of participation, on a case-by-case basis. Therefore, although SALGA was asking for participation to be extended by allowing a vote, it must be borne in mind that no pronouncements have been made by the Constitutional Court to say that participation means voting. SALGA is essentially asking for a policy decision. Whilst not actually contrary to the Constitution, it is also not quite in line with the mandate.
In relation to section 139 provincial interventions, SALGA suggets that the wording is too severe. There is no context that requires it to be stated what obligation has not been met, or how obligations should have been addressed. The section is quite bland, and says that in some circumstances an intervention can be made, by directive, or by the province assuming responsibility, or a municipal council – so there are also varying degrees of intervention. SALGA's point is that there is no standardised guidance.
Dr Loots said that it would be up to the CRC to decide whether there needs to be further elaboration on the degree of intervention. This proposal was not contrary to the Constitution and there was nothing preventing it in law.
SALGA's point on section 163 is was linked to the Organised Local Government Act, which does allow representatives to participate in the National Council of Provinces. SALGA argues that this does not go far enough to actually facilitate involvement. She commented that it appeared that the issue was more with the expression of the Act than any section, but there is nothing that prevents the Committee from adding to section 163, if it wishes. There is also nothing to stop Parliament from adding a provincial legislature level that will extend the obligation; making the mandate of the legislature to broaden the scope of organised Local Government and its Act stronger and more effective. She noted that support was being received from government, That was linked to the White Paper on Local Government of 1998, where the Department of Labour was urged to support SALGA on its financial budgetary concerns. This was not specifically found anywhere in the wording, but it does link far better to budgetary issues in the Public Finance Management Act (PFMA) for SALGA, as a Schedule 3 institution, could raise the issue. Whilst there were some arguments for not putting these kinds of issues into a Constitution (which is a living instrument) because of the risks of interpretation, Members would have to act soon if they wished to proceed.
Submission 18/15: Mr Travers
Advocate Anthea Gordon noted that Mr Travers' submission had to do with judicial independence, which was founded on administrative and financial independence. He argued that the current legislative framework, particularly the Superior Courts Act, did not allow for the independence of the judiciary in respect of finance and administration. Section 54 placed the appropriation for the judiciary under the budgetary processes of the Minister of Justice, and he saw this as impeding the judicial independence. Similar arguments applied in respect of the expenditure of the judiciary; he argued that incorporation of specific phrases into section 165 would entrench financial and administrative independence.
She reminded Members that the Constitution Seventeenth Amendment Bill of 2013 had given the Chief Justice the Constitutional right to head the judiciary. It also introduced norms and standards which were transplanted into the Superior Courts Bill at the time, and set out sections that were applicable to the administration and functioning of courts. The Superior Courts Act had also come out of the Sixth Schedule and rationalisation of courts.
She commented that the particulars of courts were not included in the Constitution itself, but in a separate legislation. She was of the view that the Superior Courts Act did deal with the financial and administrative independence.
Submission CR22/15: Mr MacLennan
Adv Gordon said that this submission related to the Preamble, and a suggestion to delete the last four lines in the Preamble which starts “ May God protect our people” and ends with “Africa “. He states that recognising God in the Constitution – in fact any deity – runs counter to the fact that South Africa belongs to all the people, some of whom do not believe in a God.
Adv Gordon referred to the Certification judgment, and on that basis argued that “God” should be deleted. Reference was made to the fact that the Constitutional Court had previously ruled that the invoking of a deity does not amount to discriminating against those who do not believe in God. In line with previous similar suggestions she thought that the Committee should not proceed with this submission.
The Chairperson noted that the Committee would be formally deliberating on the submissions in the next meeting.
The meeting was adjourned.
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