The Constitutional Review Committee met for a briefing by the Content Advisor on the 2016 submission. The Content Advisor focused on the importance of an adequate reference system to keep track of the submissions, i.e. which submissions have been considered to be outside of the mandate of the Committee, which submissions the Committee collectively decided needed to go to legal opinion and which submissions the Members felt are completely ready for deliberation.
A submission by the Khoisan National Defense Unit asked that the Defense Laws Act 99 of 1996 on demobilisation and self defense inserted certain sections, because the Act as it stands did not cater for full participation and integration of the Khoi San Soldiers who were referred to as the Cape Corps, into existing legislation on defense matters. The recommendation was that the matter needed to be referred to the Portfolio Committee on Defense and Military Veterans. It did not have any reference to a section in the Constitution that needed to be changed.
A submission by Mr Maletsane Phoffa wanted the Committee to consider the review on the section of the expropriation of land. This matter has been taken up by the High Level Panel on the Assessment of Key Legislation who has been given more time to consider the matter and their report was due next week. It was a land issue that was quite contentious.
Although the Committee agreed that this submission was within its mandate, there was some discussion how it should be categorised and how dependent the work of the Committee was on the outcomes of the report by the High Level Panel. Because the submission also referred to unreferenced sections of the Constitution, Members had a lengthy discussion on the role and rules of the Committee in providing guidance to the public on what constituted a proper submission.
Koeiva Dinyake asked for a review of section 15 that requested a review on religious observances. It was suggested that the Committee should receive a legal opinion on this submission given the recent court judgments in terms of religion at schools.
Elizabeth Malebo The submission asked for the recognition of sign language as an official language. The subject matter of submission 57 was in the process of being adopted by the Committee. Members were not sure if the Committee still needed to keep the submission since it has been concluded by the time the submission came before the Committee.
The Chairperson welcomed everyone to the meeting. He commented that there were a few members present and quorum had not been reached. He added that the Committee should wait for more Members to attend the meeting in order to make decisions, but the Committee should continue with their work. He asked the members if all was in order.
The Committee will be looking at two key items on the agenda. There were five sets of minutes that the Committee needed to go through and adopt, and the briefing by the Content Advisor on the 2016 submissions. He said that the Committee did not intend to start deliberations on the desirability of the submissions today but it was to put them on the process of Parliament and the Committee, so that the Committee could determine the way forward on how the Committee will process the 67 submissions. If the Committee had a full complement, the Committee would have wanted to start identifying the submissions that would need legal opinion and so forth. He said that he was not sure if the Committee would be able to do it today but at least there should be the tabling of the 2016 submissions and formally putting them on a Parliamentary process. He tabled the agenda for consideration and adoption.
The agenda was adopted.
Ms Pat Jayiya, Committee Secretary, said that there were apologies from Dr M Motshekga (ANC), Ms R Mothapo (ANC), Mr B Bongo (ANC), Mr D Stock (ANC; Northern Cape), Ms C Motara (ANC; Gauteng), Mr S Mncwabe (NFP), Mr F Beukman (ANC), Mr V Smith (ANC) and Mr J Selfe (DA). Dr A Lotriet (DA) would join the meeting later.
Ms T Mampuru (ANC; Limpopo) asked to be released at 11.
The Chairperson asked for advice from the Committee on whether to swop the agenda items around so that the Committee could continue whilst hoping that the other Committee Members would join them for the minutes.
Mr S Swart (ACDP) asked what the Chairperson’s preference was. Would the Chairperson rather have a quorum and was the Chairperson expecting more members to join the Committee meeting?
The Chairperson said only one Member indicated that they would be joining the Committee so the Committee would not make quorum.
Mr Swart suggested that the Committee start with the briefing of the submissions.
The Committee agreed.
Ms C Pilane-Majake (ANC) suggested the Committee review the scheduled time for the meetings as Fridays seemed not be working. She suggested having the meetings on Wednesdays around 11:30 for Members who have meetings in the mornings. It was something that the Chairperson could look at logistically and advise the Committee accordingly. It will help to improve the attendance of the meetings.
Mr Swart supported the suggestion. The Committee had scheduled this last week and the Committee was supposed to meet on Wednesday but Parliament had asked the Committee not to meet because of the Women’s Parliament Conference. It would be wise because the Committee would be able to meet and deal with the minutes quite quickly. The other issue was when the Committee would be able to debate the previous ATC. It was apparently on Parliament’s agenda so it could be quite soon.
The Chairperson asked if that was already in the procedural office.
Mr Swart replied that it was.
The Chairperson said the Programming Committee would submit a program that talked to the Wednesday sitting. He then asked the Content Advisor to take the Committee through the submissions. The Committee would not do the minutes because it was quite clear that there would not be a quorum today.
Mr Swart was wondering if the briefing would be very extensive or would it just highlight certain issues, because the Committee did not have the documents before them yet.
The Chairperson asked if Mr Swart was referring to the summary or the head presentation.
Mr Swart said that he was speaking about both.
The Chairperson said the files were in the pigeon holes and the he confirmed with the Committee Secretary that the documents will be circulated.
Briefings on the 2016 submissions
Ms Sisanda Sipamla, Content Advisor, said she wanted to take Members through quickly by way of a summary and for Committee Members to approve the summary which by indication would also approve the referencing. By deliberation time there will be agreement on the structure and the format that the Committee would be taking. Because there were many submissions, Members needed to be very clear on how the Committee would keep track of every submission, i.e. which submissions have been considered to be outside of the mandate of the Committee, which submissions the Committee collectively decided needed to go to legal opinion and which submissions the Members felt are completely ready for deliberation. There had been issues in the past where there were changes in the referencing. This strategy was to ensure that the Committee agreed with everything the Committee has received and these submissions fell within the time line of the 30 days. Members should page through the booklet to get a sense of what she has captured, the summary of what the submitter is saying, and a short recommendation as to whether the Committee found it frivolous. She said that she will tick off the ones that are frivolous, the ones that needed legal opinion, and the ones that are ready for deliberation so that Members had a summary that they agree with.
Ms Sipamla took the Committee through the submissions for 2016 (see attached presentation for more details)
Submission 1: Khoisan National Defense Unit
Ms Sipamla said the submission asked that the Defense Laws Act 99 of 1996 on demobilisation and self defense insert certain sections, because the Act as it stands did not cater for full participation and integration of the Khoisan soldiers who were referred to as the Cape Corps, into existing legislation on defense matters. The recommendation was that the matter needed to be referred to the Portfolio Committee on Defense and Military Veterans. It did not have any reference to a section in the Constitution that needed to be changed.
She said that if Members agreed with the recommendation that the submission be referred immediately without the Committee needing to go into it, because it did not refer to the Constitution and she would categorise this submission as one that was not the mandate of the Committee.
The Chairperson said the Committee should consider whether they are capacitated to refer.
Mr Swarts suggested that it reflect in the minutes later and when the Committee is fully quorate then they can condone the decision. In principle, the Committee would be saying that they agree and when the Members come, the Committee can confirm the decisions that were taken.
The Committee agreed.
Submission 2: Mr Shepherd Silayi
The subject matter was section 29(2) which was the right to receive education in official language. The submission states that section 6 South African Schools Acts prescribed that several preconditions needed to exist to determine the language policy within schools. It was now common knowledge in the context of education that one speaks 12 official languages with the inclusion of South African Sign Language as it was stipulated in the Constitution. Again, the submission did not necessitate that the Committee reviewed the Constitution because it spoke to languages and that was a matter that the Committee was still considering. The submission asked that the educational policies of the country needed to be changed to accommodate the addition of languages which the schools elect to apply. That section of the law was already spoken to by existing legislation. It did not necessitate a change of the Constitution, only an amendment of existing laws which would be cited in the recommendation. Her recommendation was that the submission fell outside the scope of the Committee. Although it spoke to the right to receive education in an official language, it was already catered for in South African laws and it could be amended in the relevant laws within the Department that was related to the specific submission. If Committee Members agreed she would categorise this submission as category three which did not fall in the mandate of the Committee notwithstanding the fact that it did refer to a section in the Constitution.
The Committee agreed.
Submission 3: Mr Maletsane Phoffa
Mr Phoffa wanted the Committee to consider the review on the section of the expropriation of land. This matter has been taken up by the High Level Panel on the Assessment of Key Legislation who has been given more time to consider the matter and their report is due next week. It was a land issue that was quite contentious. The Committee could not proceed with the decisions and recommendations that came out of the reviews of this particular section of the Constitution, because the Committee was expected to follow the course of the work that was being done in that regard. This particular submission did not fall outside the mandate of the Committee.
Ms Sipamla wanted direction from Members if it was a submission that the Committee would cite as one needing legal opinion or one that was being considered by Parliament, and Parliament awaits the recommendation of that process that will be released to South Africa on either the fifth of sixth of September.
Mr Mpumlwana suggested that the Committee park the submission and not comment on it.
Mr T Motlashuping (ANC, North West) said that he concurred with Mr Mpumlwana’s comment because he got the impression that the submission fell within the Committee’s mandate. He was not sure when the Panel when the panel would be reporting and how it would affect the Committee to take a decision on the matter.
Mr M Mhlanga (ANC, Mpumalanga) agreed and said it would be seen as predetermining the outcomes of the High Level Panel. It would be wise to wait for the panel to conclude.
Mr Mpumlwana said there were two issues in the submission, i.e. ‘black tax’ and expropriation. He asked the Context Advisor if the matter related to expropriation.
Ms Sipamla replied by saying that it related to how much people will be compensated when they can prove land belonged to their families. That matter has been covered extensively by the High Level Panel, because the panel has taken researchers all over the country. Taking into consideration the comment made by Mr Mhlanga, she suggested the Committee should refer the matter for legal opinion because of its complexity. In that way, the Committee have tabled it and the Committee would be seeking legal advice. The legal advice will have to take into consideration when giving their advice whatever the stance of the institution has decided to take about amending that particular law. This matter has been considered extensively and there will be recommendations that relate to the subject matter.
The Chairperson said the Committee should conclude the matter and the matter falls squarely within their mandate. The two processes were not related. The High Level Panel would make recommendations to the Speaker, because its mandate was to look at the impact of the laws that Parliament has passed. The Committee will carry the matter through at the right time in terms of what the Committee had agreed earlier on that it was part of the Committee’s work to decide on how they will process the submission going forward.
Ms Pilane-Majake said the idea would be for the Committee to flag the submission or not respond to the submission now, but at the same time maybe the Committee needed to respond to the communication so that the Committee can sift what issues should be brought to the Committee. The submission was a bucket full of emotional things and the Committee should legally respond. If something was discriminatory then the Committee needs to respond citing the Constitution as to how inappropriate it is and see what could be brought to the Committee. It would make it easier, rather than having a whole list of things that are brought to the Committee. At a glance, the Committee could see that some of the suggestions were out of order.
The Chairperson said the Committee would do a determination when they are busy with the entire submission to sift what did not belong to the Committee. He asked Ms Sipamla to move a little faster otherwise the Committee would lose members soon.
Ms Sipamla said that the four focal areas for the High Level Panel was to review legislation, comment on the implementation of legislation, to identify gaps in existing laws as well as to make the proposals of action and steps that need to be taken on the impact of specific areas of legislation. She asked the Chairperson if the submission should be referred to legal because it is quite detailed. Regarding the other comment of the submission being too vague, the Committee rules confine them to actual consider submissions which stipulated sections and have suggestions as to why the submitter is saying that he/she wants to see the change made in the Constitution. The Committee is being protected by the fact that Mr Phoffa was not willing to page through the Constitution and say a certain section has an issue that should be changed. It made it difficult for the Committee to respond to every letter of emotion. In that regard, she said that is why it seemed that she disregarded some of the suggestions because the suggestions did not follow the expectations of the Committee rules. The Committee should focus on a submission that specified a section and stated the proposed change and then the Committee deliberated based on that.
The Chairperson said the killing of a submission was subject to the process when the Committee would be determining the desirability and the compliance. The Committee does not need to chuck it. As long as the Committee was able to put the submission within a category, the Committee would still be revisiting the categories.
Ms Pilane-Majake said what was brought to the Committee needed to be looked at. The Committee needed to agree that the Content Advisor must have the criteria that will determine what needed to be brought to the Committee. She asked if a submission did not qualify, did it need to be brought to the Committee in order for the Committee to indicate to the Content Advisor that it did not qualify, when the Content Advisor knew that the submission did not qualify.
Mr Mpumlwana said everything must come to the Committee and the Committee decided officially if a submission qualified.
Mr Swart said the process the Committee was going through now was that the Committee was getting a briefing on the issues that should be summarised, or they must be referred to legal opinion, or they must be rejected. The minutes would reflect that the Committee considered every submission. The procedure was that submissions must refer to the provision in the Constitution needed to be amended. What one could do was write an email back to the submitter and say, “what section of the Constitution do you want to amend”. He said he differed from Mr Mpumlwana and the Committee should give guidance to the submitters. The Committee should form a generic letter that stated that in terms of the Committee rules what was required for submissions so that the Committee helped people when they make submissions. Submitters were lay people and the Committee would not be rejecting the submission at that stage but would ask the submitter to send the submission again.
The Chairperson said there was a full education program where the team of Parliament went to communities and educated the communities on how to get involved with the process. He said that the Committee took Mr Swart’s point.
Mr Swart suggested that the Committee continue with the first suggestion which was to refer for legal opinion because there would be many submissions that at that stage the Committee could decide whether the submissions complied or not. Because the Committee did not have a quorum, Members might want to hold it over for the full Committee to consider. He did not think it was necessary to deliberate on the issue.
Mr Mpumlwana said that he was a bit worried because that would mean that the Committee would need a lawyer to understand the law. People were not educated to seek the sections. All the Committee needed to do was take what was in the submissions and see what sections it referred to. The Committee needed to define what sections were relevant.
The Chairperson replied that the submission had relevant sections. The Committee will write to submitters to inform them that their submission was not compliant and was rejected on these grounds by the Committee. This part will come at the very end after full consideration of the submission.
Submission 4: M M Mthombeni
Ms Sipamla said that this submission had also not specified the specific section which should be reviewed. If it was a process that the Committee would like to suggest then the Committee could work through the Rules Committee to change the Committee’s rules and to allow the Committee to try and decipher submissions. Currently as the rules stand, the rules wanted the Committee to look at submissions where there were sections of the Constitution stated and a suggestion regarding what the submitter would like to see. The submission spoke to the removal for unlimited rights for criminals that related to section 35, to transformation of the judiciary which related sections 174 to 176, and to stop hate speech. This submission was difficult for the Committee to process because it was an emotional submission and did not specify what the Committee must do to assist the submitter to see the kind of changes they wanted in the Constitution. The submission falls under category three which are submissions outside of the Committee’s mandate.
Submission 5: James Dikwayi
This submission fell under category two and it requested the Committee to review the electoral system and its reform to allow for individual candidates to stand for presidency during elections. The submission speaks to the Van Zyl Slabbert report and a lot of sections within the Constitution. The Committee knows the Van Zyl Slabbert Commission report has thorough recommendations regarding section 87. She suggested that the submission be referred for legal opinion for the Legal Advisors to brief the Committee on a stance that the Committee would like to take with regards to the submission.
Submission 6: No Name
The submission speaks to issues of land restitution, offences of persons in office of treason, limited rights of convicted persons, and the right to vote should be limited to people who were paying tax. The submission does not specify the sections and therefore it falls under category three.
Mr Swart commented that as a matter of principle, if there is no name attached for a submission it would be very difficult. It was categorized as number three but it was likely that the submission would be rejected.
Submission 7: Mr Chia-Hsiang Chu
The submission requested the Committee to reinstate the death penalty and to remove the right for inmates to vote during the national elections. The submission falls under category three because the submitter failed to refer the Committee to any sections and suggestions how the sections must be changed.
Submission 8: Mr Venter Pieter
The submission also requested the reinstatement of the death penalty without citing a section. This submission also falls under category three.
Mr Mpumlwana requested that when Ms Sipamla comes to the Committee, that she should put the relevant sections and should not categorise the submissions because the submitter did not know the section, because it was unfair.
Mr Mhlanga replied saying that he thinks Mr Mpumlwana is elderly, because this issue has been noted previously. The Committee was categorising and would come back to deliberate on the submissions.
The Chairperson replied that upon consideration, if the Committee wanted to change the submission to category one or two, it could still happen.
Ms Sipamla said that the suggestions were noted and the summary would contain the reference to the relevant sections and the categories decided today. The minutes will also reflect the same.
She then took the Committee through submissions 9-23 that dealt with among others, retirement fund legislation, review of electoral law, review of the right to protest without destruction of property, addition of an impeachment clause and a request for limited presidential powers. (See attached presentation for more details)
Submission 23: Tessa Paulsen
She stated that some submissions such as submission 23 were difficult for the Committee to consider but some of the matters were referred accordingly in previous years. The Committee would be able to write to the submitter and refer them to how the Committee has resolved on some of these issues so that the Committee is not seen as disregarding the submitters but as answering the submitters accordingly.
She continued to take the Committee through submissions 24-45 that referred to the appointment of the National Director of Public Prosecutions, proportional representation, election of the President, right to life and the right to reproductive health care. (See attached presentation for more details)
Submission 45: Koeiva Dinyake
Ms Sipmala said she was not sure where to categorise submission number 45 which asked for a review of section 15 and requested a review on religious observances. She requested for a ruling from the Chairperson.
The Chairperson agreed that category one was fine for submission 45.
Dr A Lotriet (DA) apologised for being late. She asked if the Committee should receive a legal opinion on this submission given the recent court judgments in terms of religion at schools.
The Chairperson replied that it was fine and the submission was still category one.
Ms Sipamla said that the submission was ready for consideration and Members could decide if they wanted further legal opinion at a later stage.
She continued to take the Committee through submissions 46-57 that referred to the equality clause, children’s rights and traditional leaders and a cessation of the term of the president, submitted by the leader of the DA, Mr Mmusi Maimane. (See attached presentation for more details).
Submission 57: Elizabeth Malebo
The submission asked for the recognition of sign language as an official language. The subject matter of submission 57 was in the process of being adopted by the Committee. The submission was categorised under category three.
Ms Pilane-Majake asked if the submission would not get lost under category three. She suggested for safety sake the submission should be put under category one.
The Chairperson said he was not sure if the Committee still needed to keep the submission.
Ms Sipamla noted that the Committee parked the submission. The submission will be deliberated when there was a full complement of Members.
The Chairperson said that the submission was not going to be deliberated because the matter was concluded. The matter will be accordingly referred to that it was already concluded by the time it was submitted. For now, the Content Advisor should park it and the Committee will revisit it to confirm the proposal by the Members when there was quorum.
Mr Swart said the Committee could write to the submitter saying the Committee concluded the matter and that was the result of the Committee’s recommendation.
Mr Mhlanga said that if the Committee did not categorise the submission it will get lost. The Committee should categorise the submission as category three.
Ms Sipamla continued to take the Committee through submissions 58-61 (see attached presentation for more details).
Submission 62: Griquo Royal House
The Committee has already received a legal opinion on submission 62. If the Committee agreed, she could summarise the legal opinion in the summary and brief the Committee when she briefed them on the finalised summary. The Committee have received a thorough legal opinion on the matter and she has categorised the submission as category one.
Ms Sipamla continued to take the Committee through submissions 63-67 that referred to the establishment of government principles, the Electronic Communications Commission and national intervention in provincial administration. (See attached presentation for more details)
She said that if Members were happy with the categorisation and the brief summaries which have been provided, then the Committee could compile a finalised summary which has been agreed upon in principle. The summary would be open to amendment by the Committee.
Mr Swart thanked Ms Sipamla for the hard work and said that the Members were happy with the categorization.
The Chairperson confirmed that the Committee Members would not deal with the minutes due to no quorum. He thanked the Committee. The Committee will to try to meet before Friday.
The meeting was adjourned.
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