Committee Report on 2015 public submissions

Constitutional Review Committee

21 June 2017
Chairperson: Mr P Nzimande (ANC, NCOP)
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Meeting Summary

The Committee met to consider and adopt its Draft Report on 2015 Public Submissions and to consider its Third Term Programme. The Draft Report was considered page by page. The Committee agreed there was need for the use of simpler terminology in the wording of the Constitution. There was heated discussion regarding whether the Constitutional Review Committee had agreed to the removal of the sexual orientation clause from the Constitution. There was however, in the end, general consensus that the Committee had agreed not to remove the sexual orientation clause from the Constitution and that the Draft Report of the Committee simply reflect what was agreed on during deliberations. The ACDP had a few reservations on some recommendations in the draft Committee report.  Minor additional amendments were made to the draft report and the report was adopted with amendments. 

Meeting report

Draft Report of the Constitutional Review Committee on 2015 public submissions

Opening Remarks

Chairperson Nzimande raised his concern with attendance of the meetings of the Committee. He then tabled the agenda of the meeting before Members.

The Committee proceeded to consider its report in a page by page fashion.

Looking at recommendations to the first submission, Mr T Motlashuping (ANC) noted the wording of opinion of the Committee did not meet match the sequence of the first two recommendations.

Prof A Lotriet (DA) felt the point of the Member was purely a matter of semantics and that the wording did not affect the substance of the recommendations.

Mr S Swart (ACDP) agreed. In reference to the submission of the Kingdom Government Movement, he said this was not the view of the Committee and it was the position under the Constitution - there was a need to edit this submission. He also indicated there was need for an insertion of the exact wording on religious observances under section 15 (2) of the Constitution into the draft Report.

The Chairperson indicated it would be inserted into the Report.

Mr Swart was against saying SA was not a religious state. He proposed an amendment to the Kingdom Government Movement’s submission specifying that the state, whilst not opposing religion, did not support a specific religion instead of the Report saying was not a religious state.

Mr L Mpumlwana (ANC) asked what difference that amendment would make.

Mr Swart responded that the Report referred to the Constitution and not the state - the state was indeed a religious state as religion was allowed in state institutions. He also indicated the Constitution was specifically drafted to allow the exercise of religion under section 15(2) of the Constitution. 

The Chairperson agreed with Mr Swart.

Ms M Mothapo (ANC) said there was a need for the use of simpler terminology in the Constitution especially as it was a public document in accordance with section 59 of the Constitution.

Mr Swart agreed but suggested the particular clause referred to by Ms Mothapo be restructured as it was a quotation from the judgement of a court case.

The Chairperson responded that the issue of terminology would be taken into consideration.

Mr Swart noted the wording of the recommendation of the submission regarding the amendment of the Constitution in line with “godly” principles was not consistent with the submitters view - the submitter used the words “godly biblical principles”. He said this needed to be included as it would give the Report more clarity.

Mr Mpumlwana had a problem with this because while everyone might embrace a g.od, not everyone embraced that which was biblical.

Mr Swart said that even though his party did not agree with the proposed change, the report should simply reflect the submitter’s view.

The Chairperson agreed - the Report was meant to reflect the words of the submitter.

On the review of section 22 of the Constitution, Mr Motlashuping suggested an amendment to the wording from “foundational right” to “basic right” in accordance with Ms Mothapo’s suggestion to use simpler terminology.

The Chairperson agreed.

Mr Swart said that while his party’s position on the sexual orientation clause in the Constitution was well known, what was captured in the Report did not reflect what was agreed on by the Committee.

Mr Mpumlwana asked what submission the point was referring to – the argument was for the clause to be removed.

The Chairperson said, in accordance with the entire Kingdom Governance Movement’s submission, there was no desire to amend anything.

Mr Mpumlwana asked why.

The Chairperson responded that was how the Committee deliberated.

Mr Mpumlwana said the agreement was that the Constitution be amended to that effect so that the clause on sexual orientation be removed.

The Chairperson said the Report simply captured the resolution of the Committee.

Mr Motlashuping said the Committee was simply meant to confirm if the Report was a true reflection of what happened in the meeting.

Mr Swart said it was true that Mr Mpumlwana agreed with the ACDP that removal of the clause be considered but this was not the view of the majority. The Report reflected the view of the majority.

Mr Mpumulwana personally thought there was no majority against removal of the clause. He suggested the matter be set aside for further discussion.

Mr Swart suggested the matter be flagged for Members of the majority party to look at.

Mr M Mhlanga (ANC) felt it best for the Chairperson to rule on the matter instead of it becoming a topic of debate.  

The Chairperson agreed and said Members would instead be allowed to make reservations on behalf of their parties.

Mr Mpumlwana personally did not think the Committee reached agreement on the issue – he would need to consult his party on the matter.

The Chairperson outlined that according to all Committee Members, the matter was agreed on - Mr Mpumlwana was now raising his personal views.

Mr M Maila (ANC) felt the ruling needed to be respected – Mr Swart spoke on behalf of his party by making the reservation while Mr Mpumlwana’s party respected the view.

Ms M Pilane-Majake (ANC) suggested there was a need to summarise the submissions to get a clear understanding of the outcome.

Still on the matter of the sexual orientation clause, Mr Mpumlwana argued that he was present in when deliberations took place and so the draft Report did not accurately reflect what was agreed to. He agreed there was a legal option on the matter but he argued there was never an agreement to that effect. The Chairperson said Members participated and deliberated on every clause and, overall, the Committee agreed not to remove the sexual orientation clause.

The Chairperson pointed out that the Committee agreed and Mr Mpumlwana’s reservation would be recorded.

Ms Pilane-Majake supported the view of the Chairperson and said that once there was a request to amend the Constitution, proper justification would be required.

The Chairperson said the Committee considered the suggestion and rationale to amend the Constitution by removing the sexual orientation clause and declined to amend it.

The Chairperson tabled the draft Report in its entirety to the Committee. He summarised the overall position of the Report. Out of all the submissions only the ones relating to language were deferred and there was no need for amendment.

Mr Swart reserved his position on the draft Report. He specifically cited the abortion, witchcraft, Satanism and human sacrifice issues.

Mr Mpumlwana did not remember the overall position as pointed out by the Chairperson – he sought the view of Members who were present at the deliberations.

The Chairperson responded that he was simply reminding Members what the Report was about. The Report talked to each submission and the rationale of the Committee where proposed amendments were not accepted.

Ms Pilane-Majake asked if there were any other reservations.

Mr Swart noted the Christian Lawyers Association v Minister of Health case was a High Court Case and not a Constitutional Case as stated in the Report.

The Draft Report of the Constitutional Review Committee on the 2015 Public Submissions was adopted with amendments.

Mr Mpumlwana pleaded with the Committee to set aside certain areas of the Report on which there was no agreement on the exact discussion and deliberation of the Committee at that time. There were some points which were not simply a matter of semantics but changed the context of the Report.

Mr Motlashuping could not understand how the Committee was still debating the matter when the Report was already adopted – procedurally the matter was closed.

The Chairperson agreed. Outstanding minutes and the third term programme of the Committee would be considered at the next meeting, in the next term.  

The meeting was adjourned.


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