2015 public submissions: deliberations

Constitutional Review Committee

17 February 2017
Chairperson: Mr L Nzimande (ANC)(NCOP)
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Meeting Summary

The Committee met to consider several outstanding constitutional review submissions from 2015.

The submissions were divided into 3 categories.

In category 1, the submissions were to amend Chapter 2 of the Bill of Rights: s7 (2), s10, s11, s25 (3) (c), review chapter 9 institutions to include the South African Broadcasting Corporation (SABC) and the Presidents term of office. The Committee disagreed with all of the submissions.

The Committee agreed that the category 2 submissions with legal opinions would be summarised for voting in a future meeting with a quorum and those with outstanding legal opinions would first be deliberated after the legal opinion and then the Committee would consider inviting submitters to orally defend their submission before a decision would be taken on the desirability of amending the constitution as requested. In respect of one of the proposals, the ACDP said that it had a different view to the legal advisors and pointed out that there was space for constitutional deism. The party also asked the legal advisors to reconsider their legal opinion in light of various court cases.

The Committee further agreed that in the next quorated meeting the recommendations would be for the category 3 submissions to fall away from the Committee’s work. 

Meeting report

Opening remarks
Co-Chairperson Nzimande welcomed everyone and submitted Co-chairperson Smith’s apology that his other Committee which he chaired was also sitting and would therefore be absent from the meeting.

He said that the only language that had been re-submitted for consideration since 2015 had been sign language as the other languages submitted for constitutional review had been in process as legacy submissions. At previous meetings it had been decided that languages would be prioritised in the Committees programme. However the Committee would return to the legacy language submissions when the Pan South African Language Board (PanSALB) had responded to the issues raised in the submissions.

He said the presenter of the outstanding legal opinions on the two 2015 submissions was off-sick as such her presentation would stand-over.

Deliberations on the desirability of 2015 submissions
Ms Sisanda Sipamla, Committee Content Advisor took the Committee through her presentation.

Category 1 submissions
Chapter 2 Bill of Rights: s7 (2), s10, s11, s25 (3) (c) 
She said the Committee had to deliberate on whether there was a need to change those particular sections of the South African (SA) Constitution.

Co-chairperson Nzimande said the Committee had not, as he recalled, interacted with the submitters of the constitutional amendments. Therefore no decisions would be taken as the process was at its beginning.

Mr B Bongo (ANC) said he believed that the Chairpersons’ offices and Committee staff would advise on the desirability of the changes in terms of whether they were not already catered for in any national legislation. If that had occurred, those particular submissions could be disposed off so as to reduce the work going forward.  Additionally it would be best to notify the submitters of the Committee’s stance after consideration of desirability.

Mr J Selfe (DA) agreed with the recommendation from Mr Bongo.

Co-chairperson Nzimande said he considered that the submission fell off and the submitter would be advised accordingly about the Committee’s view.

Chapter 5 the Presidents term of office: s88 (2)
(2) 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 President, the period between that election and the next election of a President is not regarded as a term.

Ms Sipamla said Mr McGillycuddy was an Irishman who had written to the Committee a few months before he left SA requesting the Committee to limit the presidential term to two five year terms.  As read in the constitution, the section was had a provision that limited the presidential term to two terms and therefore covered Mr McGillycuddy’s request.

The Committee agreed with the recommendation from Ms Sipamla.

Review of chapter 9 institutions to include the South African Broadcasting Corporation (SABC)
Ms Sipamla said that the submission had been made in two parts first a cover letter had been submitted which had then been followed by a full submission as the subsequent Constitutional Review (CR13/2015) submission. Parliament had dealt with CR13 recently which was a matter that could be dealt with by the Portfolio Committee on Communications and did not necessitate a change of the SA Constitution as that Committee had oversight over the SABC. The Committee had therefore been advised that it was not necessary to make SABC a chapter 9 institution.

The Committee agreed with Ms Sipamla and the submission fell away.

Category 2 submissions
Review of Chapter 4 Parliament; Chapter 5 the President and National Executive; Chapter 7 Local Government; Chapter 10 Public Administration
Ms Sipamla recalled that the Kingdom Governance Movement submission had been covered by three legal advisors where the advice had been that most of the information that the CR 4/2015 called for to be changed could be covered in the Traditional Courts Bill and other national legislation and did not necessitate a change of the SA constitution.

Mr S Swart (ACDP) said he recalled holding a different view to the legal advisors. Though he did not necessarily agree with the proposed wording there had been legal opinion that the Committee could not insert an amendment to the preamble because SA was a secular state and the suggested preamble here referred to God. He had taken issue with the legal advisors because the Western Cape constitution accepted a preamble that stated in ‘humble submission to almighty God’. The argument that the Constitutional Court (ConCourt) upheld when it had considered the Western Cape Constitution is that there is space for constitutional deism and he had asked the legal advisors to reconsider their legal opinion in the light of various court cases. That could be an issue that the Committee could hold over until it received further legal input on the proposal. Additionally, a similar argument had been raised at the previous constitutional review Committee and that Committee had upheld his argument. At the time, the legal advisors had reconsidered their views after looking at the various courts decisions that he had referred them to. He maintained that he was not supporting the proposed wording per se but rather he was cautioning the Committee against accepting a legal opinion when in fact there remained differing views.

Mr Selfe said there did not seem to be any prejudice in holding a decision over on that submission until the legal advisors returned to the Committee.

Mr Bongo said, additional to what Mr Selfe had said, the Committee could explore inviting the submitters to come and present before the Committee, in the presence of the legal advisors.   

The Committee agreed.

Ms Sipamla reminded the Committee that the following review submissions had been referred by the Committee for legal opinion.

Review of chapter 8 Courts & Administration of Justice: s167 to s170
Mr Bongo said he was comfortable with the provisions of chapter 8 of the constitution and he was not clear as to what the submitter wanted the Committee to rectify and possibly the justice Committee could deal with the matter.

Co-chairperson Nzimande concluded that the submission would then not be considered further.

The Committee agreed.

Review of chapter 1 s6 (1) and s6 (5) the founding provisions: 3 submissions relating to the same matter
Co-chairperson Nzimande said particular members had already concluded on the state of readiness of PANSALB and other entities to engage on the issue under review.

Dr L Lotriet (DA) said that based on the presentations by PANSALB and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL rights commission) on 3 February 2017, the Committee could discuss and deliberate on the submission positively.

Mr Bongo agreed that the matter had been long overdue and he was requesting that the process be taken to the National Assembly (NA) chamber as part of the things canvassed had been that over 47 countries had given sign language official status.

Co-chairperson Nzimande said that process wise the Committee would recommend the desirability of making sign language official by making the relevant changes to the sections in the SA constitution as written above.

Ms W Newhoudt-Druchen (ANC) thanked the Committee for taking the decision to take the recommendation on sign language to the NA chamber.

Review of Chapter 4:s67 (Voting right in NCOP); chapter 6: s139 (provincial intervention in local Government); chapter 7: s163 (Organised Local Government)
Ms Sipamla said that the South African Local Government Association (SALGA) essentially wanted to be given the right to vote in the NCOP especially on matters affecting local Government as per s67.

Mr Selfe said the legal advice had been correct that participation in terms of the NCOP according to the constitution had been intended to give a voice to local Government and not to give a vote.  Secondly, SALGA was not the only institution that represented local Government though there was statutory recognition to that effect. What the Committee would be trying to do would be giving a voice and a vote to an organisation which Mr Selfe was not convinced to be representative of all the local governments in SA; in the same way that provincial government having gone through a legitimate election would be the voice of that particular province.

Mr Bongo agreed with Mr Selfe that since there was three spheres of Government with their specific responsibilities, giving SALGA a vote would have unintended consequences.

Co-chairperson Nzimande said provincial legislatures only voted at the NCOP on matters of national interest but a provincial matter remained that and seemingly there was consensus that SALGA’s first review request would fall-off and SALGA would be advised on that aspect of its submission.

Mr Swart said he was in agreement with the legal advice and he did not believe the provisions of s139 needed amendment as it had been inserted for urgent intervention in municipalities and that there was a mirror provision in s100 where national Government could intervene in provinces. There was no desirability to amend s139 as there were a number of steps that would have been taken before reaching s139 for intervention.

Mr Bongo said that s139 was amongst those perfectly drafted provisions of the constitution if one looked at the road map from s131 to s139; it had shown a high level of objectivity in the decision any person could take in intervening. The interventions envisaged therein involved high levels of consultation as the NCOP was given a role in the intervention apart from the provincial Government and certain procedures would have been followed and s106 of the constitution would have also been followed.

Mr Selfe said another salient point on chapter 6:s139 was that there was case law; specifically the Overberg case which had been heard in about 2010 which had dealt specifically with the requirements of mutual trust and good faith. In other words the decision could not be taken irrationally and that there had been certain criteria that had to met objectively before a s139 intervention could take place. In terms of both common and constitutional law there was no desirability for review of s139.

Co-chairperson Nzimande said the Committee had been behind a bit in giving expression to the SALGA’s concerns as there already was a consensus with the NCOP and local government on regulations that had been outstanding as clause 8 of s139 had needed to be taken further through regulations. The most recent promise from the Executive Authority (EA) was that the regulations would be brought before Parliament in 2017.

The Committee agreed with the legal advice on the SALGA submission on chapter 7: s163. 

Review of Chapter 1 the founding provisions: Preamble-s1, chapter 2 Bill of rights: s7 (2); s11; s36; s39
Ms Sipamla said that the legal advisor to the Committee could not attend the meeting and the submission had been deferred to a future meeting.

Mr Swart proposed the submission be held over to a future meeting.

The Committee agreed.

Review Of Chapter 1 The Founding Provisions: Preamble-S1; Chapter 3 Co-Operative Government: S42(2); S73 Bill Consideration Process; S105 Composition And Elections Of Provincial Legislatures; S166 Judicial System Reviewed To Include Traditional Courts; S211(1) Addition Of Khoisan Leaders; S212(2) The Addition Of “Role Of The House Of Traditional Leaders Operating As A Lower House Of Parliament ;s178 establishes the judicial service commission. Seeks inclusion of the NHTL in the JSC

Mr Bongo said the submitter had to be advised that the Traditional Courts Bill had been resuscitated in Parliament regarding S166 Judicial System review to include Traditional Courts; but that advice was not to say the Committee was rejecting the proposed request to review rather it was to allow the processes of Parliament to unfold. Once finalised some of the aspects raised by the submitter could be considered.

Co-chairperson Nzimande agreed that the suggestion was in order and the submitter would further be informed that he still could resubmit in the next call for constitutional review submissions. 

Mr Swart said that it was not only that the National House of Traditional Leaders (NHTL) had been created; the other aspect was that if there was a lower House of Parliament; Parliament had been implied as a democratic institution and the NHTL being not a democratic institution in principle it would be a bad idea for it to be part of Parliament apart from any other technical considerations.

Co-chairperson Nzimande said the submitter would be advised accordingly in terms of his submissions.

Mr F Beukman (ANC) asked if the Committee had achieved quorum yet in terms of the decision on the submissions.

Co-chairperson Nzimande asked why Mr Beukman had raised the point of order on the quorum.

Mr Beukman said it was important for a decision to carry for a quorum to be achieved.

Mr Selfe suggested procedurally that; at the next meeting rather than go through the whole document again the Committee could produce a summary of recommendations in terms of the submissions considered as a single item, and to then decide on that.

Mr Bongo agreed with Mr Selfe and further added that it would be fruitless for the Committee to consider submissions that still had outstanding legal opinions. Therefore those that had to be legally opined still had to be excluded from the suggested summary of recommendations so that there would be consistency in the Committee’s recommendations.

Mr Swart said he had made an input on the Kingdom Governance Movement submission but thought it should have been related to the Review of Chapter 1 the founding provisions: Preamble-s1which the Committee was still awaiting legal opinion on. Furthermore the Committee possibly could first get legal advice on the Kingdom Governance Movement submission before inviting them for oral representations of the submission as Mr Swart had noticed it had been a later submission.

Category 3 submissions
Ms Sipamla said though the Committee had approved the categorisation of the submissions; they did not relate to its mandate however; it had to state whether they were desirable for consideration or not. She then read with the Committee through the submissions.

Co-chairperson Nzimande said as agreed that in the next quorated meeting the recommendations would be for the category 3 submission to fall away from the Committee’s work.

Mr Bongo asked if Members of Parliament (MPs) were allowed to make submissions to the Committee or could those be informally tabled and discussed by the Committee?

Co-chairperson Nzimande said there was no exemption that MPs could not submit constitutional review submissions.

Ms Newhoudt-Druchen asked if the Committee Secretary could write to Deaf South Africa (DeafSA) on what the Committee had decided regarding the recommendation that would be made to the NA on sign language.

Co-chairperson Nzimande said submitters were always informed on their submission.

The meeting was then adjourned.

 

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