2016 public submissions: legal opinions

Constitutional Review Committee

02 November 2017
Chairperson: Mr P Nzimande (ANC)
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Meeting Summary

Documents handed out: List of eight legal opinions [awaited]

This sitting of the Joint Committee on Constitutional Review met to hear legal opinion on public submissions received in 2016. Five Parliamentary Legal Advisers presented their opinions on eight individual submissions, with two submissions not heard because the relevant legal officers were not available on the day.

Among those noted for further consideration was a submission by Mr Maletsana Phofa calling for an amendment to Section 25 of the Constitution to allow for expropriation of land without compensation. While the Committee agreed this was a major policy issue, it emphasised the need for detailed deliberation on the possible ramifications of such a change and also highlighted that any such amendment would need to be passed by the National Assembly and National Council of Provinces following a policy decision. With that in mind, Members raised that the issue had been debated before Parliament already and dismissed through a vote however all agreed that it should remain on the table for further discussion.

Another submission called for amendment to the proportional representation process that establishes the composition of Parliament. Legal advice was that South Africa has adopted one among several alternative systems for adhering to the broad principle of proportional representation in accordance with the spirit of democracy, as required by Section 46 of the Constitution. The Constitution itself is broadly framed and allows legislation to determine the specifics of that system, which is done in the Electoral Act. If the Committee deemed it necessary to recommend amendment to the Act itself, this could be done by referral to the appropriate Portfolio Committee.

Further submissions called for an amendment allowing individual election of the President by South Africans as opposed to the present system of the National Assembly electing the President. The legal opinion was that this amendment was subject to a policy decision on the various acceptable systems.

Another submission asked for the insertion of an impeachment clause in the Constitution. The legal opinion was that the Constitution contains clauses allowing for removal of the President, although the term impeachment is not explicitly used.

Legal opinions for the above submissions made use of comparative explanations of the arrangements in the USA - it was found that South Africa does have appropriate systems in place that accord with the constitutional requirement for adherence to democratic principles. Should change be deemed worthwhile, this would be a legislative matter and could be referred to the relevant Portfolio Committee.

Some Members took issue with the legal opinions presented as they referred primarily to examples from the UK and USA – these Members argued that research should look at African examples. This was noted by the Legal Advisers.

In general, a number of submissions were noted although Members queried whether they were the appropriate body for their consideration. One Member reminded the Committee that in the previous sitting there had been discussion of a need to streamline the screening process on how the public made submissions and which ones came through to the Committee so that time was not wasted and discussions were helpful for people on the ground.

The Committee then adopted minutes from its previous meeting with minor amendment.

Meeting report

Meeting Agenda and Apologies
The Chairperson opened the meeting and apologised for the absence of printed Committee minutes due to a printer fault. He confirmed that Members had, however, seen the agenda items in advance and reiterated that these were the hearing of legal opinions on public submissions and the adoption of minutes from the previous Committee meeting. On the first item, legal officers for two of an initial ten opinions were not available on the day, therefore a total of eight legal opinions would be heard.

Apologies were received from Dr M Motshekga (ANC), Ms T Mampuru (NCOP, ANC Limpopo) and Ms T Motara (NCOP, ANC Gauteng).

The Committee adopted its agenda for the day.

Submission CR16/3
Ms Sueanne Isaac, Parliamentary Legal Adviser, presented a submission from Mr Maletsana Phofa which requested an amendment to the Constitution so that land could be expropriated without compensation, expressing the view that existing owners had already benefitted from the land. This pertains to Section 25 which recognises expropriation as permissible and sets out how it may be done, including that it must be in terms of a law of general application, for a public purpose, or in the public interest, and accompanied by compensation that is just and equitable considering various stated factors. Mr Phofa was of the view that the compensation requirement should be removed. Amending Section 25 in this way would be a significant political shift.

Ms Isaac highlighted that it would be necessary to set out exactly how this would be done and that the submission did not include detail on specifics. A balance would need to be found between the need to expropriate land and the rights of current property owners. Ultimately, it is a policy decision that the Committee could refer to the relevant Portfolio Committee. All potential ramifications would need to be considered.

Ms M Mothapo (ANC) queried whether the Committee, coming from different political backgrounds and ideologies, was capable or competent enough to make a policy decision on this matter.

Ms Isaacs responded that any change would ultimately have to be made by the National Assembly and National Council of Provinces as a whole but, as with all constitutional amendments, would start with a policy decision allowing the Committee to refer it to the appropriate body for further deliberation if it wished to take the amendment forward.

Mr L Mpumlwana (ANC) was of the view that the legal opinion did not include information on all the constitutional provision and laws that such an amendment could influence - it seemed too narrow and required more depth. Which provisions would such a change would affect?

Mr T Motlashuping (ANC, North West) raised that this issue had been put before the National Assembly by the EFF and was dismissed on a vote. The Committee did not have power to amend the Constitution without the amendment being supported by Parliament. He agreed with the legal opinion and moved for it to be noted.

Mr S Swart (ACDP) seconded that this proposal had already come before the House and been defeated. He however agreed that it be noted as a major policy issue and suggested the Committee move on.

Mr Mpumlwana suggested that the Committee concentrate first on just hearing the legal opinions and discussion on whether they were accepted or not would ensue thereafter.

Mr M Mhlanga (ANC, Mpumalanga) agreed that the best approach would be to note the issue for further consideration by the Committee and the House.

Mr F Shivambu (EFF) supported the motion to note the matter - he added it was an important one which required a lot of attention.

The Chairperson confirmed that Mr Phofa had the right to make this submission and said that it would remain on the table for further consideration as per the Members’ suggestions.

Submissions CR 16/16, CR 16/5, CR 16/14 and CR 16/19
Dr Barbara Loots, Parliamentary Legal Advisor, presented four of the eight submissions starting with submission CR 16/16 from Mr Rajesh Maharaj. This submission called for an amendment to Section 46 of the Constitution dealing with proportional representation in the electoral system. The submission suggested that proportional representation be limited in application to only 200 seats in the House.

Section 46 was drafted to echo Principle 8 of the Interim Constitution that provided for representative government embracing multi-party democracy with regular elections and universal adult suffrage, a common voters’ roll, and, in general, proportional representation. This principle aims to ensure that all votes are equal and have bearing on the composition of national and provincial legislature. The Electoral Act gives substance and detail on how exactly this is realised.

Dr Loots said that there was nothing wrong in law with Mr Maharaj’s suggestion. However, his submission did not clearly request amendment of Section 46. It can be deduced that he actually intended amendment of the Electoral Act, focusing on the formula it lays out for implementation of proportional representation. If the Committee feels this is a suggestion that needs to be endorsed, it could be referred to the relevant Portfolio Committee.

The Chairperson granted Dr Loots permission to present further submissions before discussion due to the interlinked nature of the submissions she would cover.

Submissions CR16/5 as well as CR16/14 and CR16/19 all requested individual election of the President, suggesting an amendment to the current electoral system in which the President is elected through the National Assembly. The submissions were from Mr James Dikwayi, Mr Nelson Lekganyane and MG Matovheke respectively.

There is nothing wrong with the idea of having individual election of the President - the Constitution merely requires that the principle and spirit of democracy be adhered to in the choice and implementation of an electoral system. South Africa has one form of system that does allow for this, but other alternatives that allow for individual election could be in line with the democratic spirit as well. An example is the system used in the United States of America where the political parties put forward a candidate who is ultimately voted for by the people.

None of the submissions go into detail on how an individual election system as opposed to a party-based presidential election should be implemented. As there are examples in other countries of the democratic principle allowing for this, it comes down to a policy decision as to whether Parliament would like to introduce an amendment to allow for individual election of the President.

Submission 16/19 also called for legislation regulating protests and marches as well as for the review of mining legislation. These are issues already dealt with in law, though not necessarily addressed in the Constitution.

The Constitution does contain “protest-driven” or “expression-driven” provisions such as allowing the right to assembly and freedom of expression in general. However, it does not regulate the protests and marches itself. Regulation is achieved through the Regulations of Gatherings Act and certain criminal prohibitions such as not being allowed to steal or damage property. These provide the applicable legislative framework. If this needs to be stricter, it is something which must happen at a legislative level because the Constitution does not deal with detail, but rather remains broadly-phrased and leaves specifics to legislation that is more open to amendment as society demands. The change would fall outside the Committee’s mandate in the current process. If Members felt there is need for stricter regulation as a policy decision, they may refer the submission to the relevant Portfolio Committee.

Dr Loots said the legislature would need to respond to Mr Lekganyane’s request to review mining legislation so that communities and their leaders can play a role in the improvement of living conditions and economic growth in mining areas.

Mr F Beukman (ANC) wanted to test the factuality of Dr Loots’ statement about the USA’s electoral system because in the States, the President was not directly elected by the people but rather by the Electoral College.

Mr Mhlanga suggested that the issues of mining and gatherings raised in the submission simply be noted at this stage.

Mr Motlashuping seconded that these issues should currently be noted. He added that democracy was being followed all the way in the election of the President. On the submission of Mr Maharaj, he questioned whether it considers how seats are allocated at the level of local government.

Mr Mpumlwana asked for clarity on whether Dr Loots was stating that the electoral system depends on the Electoral Act.

Dr Loots responded that she both agreed and disagreed with Mr Beukman’s contribution as the American system was in fact two-pronged with the people being involved indirectly throughout the system by participating in the election of party candidates and Electoral College members. Citizens are actively looking at who they wanted as President throughout the system, although the final vote does occur through the Electoral College.

Dr Loots continued that Mr Maharaj did not explicitly specify which constitutional provision he wished to see amended, however it could be deduced that he questions the Electoral Act. The electoral system is also somewhat two-pronged - Section 46 of the Constitution sets out that the electoral system must be informed by proportional representation and asks for an Act of Parliament to set out the formula and detail which is found in the Electoral Act. It is found in the Constitution albeit broadly and briefly. From a Constitutional perspective, the broad principles provide the boundary within which the Act must operate.

The Chairperson summarised Members’ comments that the submissions be noted for further consideration. He expressed the hope that Members would take responsibility to go consult the budget so that they could robustly engage in debate on political and policy measures with a budgetary perspective upon their return.

Submission CR16/13
Mr Nathi Mjenxane, Parliamentary Legal Advisor, presented a submission from Mr Fabian Makhanda, a South African currently residing in the USA. The submission dealt with Section 179 of the Constitution which provides for the National Prosecuting Authority (NPA). The submission argued that this Section does not sufficiently provide for the independence and impartiality of the NPA and should therefore be considered for amendment. The submission dwelt in particular on Section 179 (6) granting final responsibility of the NPA to the Cabinet Member responsible for justice. This placed the NPA under the control and influence of the Executive, thus infringing on independence and impartiality.

Dr Loots added that the Constitutional Court considered this matter in 1996 in deciding whether the Executive exercising this responsibility in itself compromised the NPA’s independence and impartiality. The Court found that this was not the case. The National Prosecuting Authority Act also supplements Section 179 to strengthen the independence of the NPA. She advised that  there is no justifiable basis for amending Section 179 of the Constitution because independence is sufficiently provided for in law, however it remains a matter where the Committee has discretion to take a decision to amend the legislative framework if it so wished.  

Mr Mpumlwana did not want to get into the issue of “this American directing operations from behind”, but said the point should be noted.

The Chairperson clarified that the Member meant the submission could be considered further.

Mr Mpumlwana confirmed because, in his view, the purpose of the meeting was to hear legal opinions before the Committee deliberated on the submissions itself.

The Chairperson noted this.

Submission CR 16/20
Ms Fatima Ebrahim, Parliamentary Legal Advisor, presented a submission from Ms Aadilah Meas. Ms Meas raised two issues - she questioned why there is no clause for impeachment and suggested one be inserted. She also asked why the Constitution does not contain a quota system for Parliament which Ms Ebrahim took to refer to a quota based on racial demographic because Ms Meas further asked if the Constitution was purposefully designed to keep the “majority dominating the minority”.

On the issue of impeachment, Ms Ebrahim said the term means to bring a charge or accusation against someone on the basis that the person committed an offense while in office. It finds origin in British law where it was aimed at removing Ministers of the Crown from office. However, the term is widely known in the USA context where it has gained recognition through popular media. There is an assumption that impeachment can only take place in the form seen there, which provides that the House of Representatives can initiate an impeachment process by passing articles of impeachment by majority vote on grounds of treason, bribery or other high crimes and misdemeanour. Once that is passed, there is a trial adjudicated solely by the US Senate after cross-examination. A two-thirds majority secures a conviction that can lead to removal from office, meaning in that context, it is possible to be impeached without being removed should the two-thirds requirement not be met.

Despite its formal definition or laying charges or accusing, the term is commonly understood to mean removing people from office. The South African Constitution does provide for removals in Sections 89 and 102. It says the President can be removed by a motion supported by two thirds of the National Assembly on grounds of violating the Constitution, serious misconduct or inability to perform functions. These are the only stated grounds on which the National Assembly can pass a motion for removal. The Constitution is silent on the manner in which the impeachment must occur. The Constitutional Court heard a related case from the EFF earlier this year, where the party sought an order directing the Speaker of the National Assembly to put processes and mechanisms in place to inquire into and determine whether, and to what extent, the President has violated the impeachment grounds. In other words, what would the steps be to ascertain this? The DA joined the case arguing that Section 89 requires a dual process that would entail a trial before Parliament to determine culpability and interrogate the President. The DA’s position was that the US system is inherent in that section.

Ms Ebrahim’s legal opinion was that Section 89, for all intents and purposes, in providing for removal, is an impeachment provision. The Constitutional Court supported this view in the cited case. Therefore the SA Constitution does provide for the removal of the President. The suggestion is thus already dealt with, however whether it should be amended to provide more clarity or detail procedure, is a policy decision that can be taken. She recommended that the Committee await judgment of the Constitutional Court which was dealing with this matter.

Ms Maes’s second question was on the quota issue. The South African Constitution provides for parliamentary democracy in which all adults enjoy political freedom per Section 19 of the Constitution. This includes the right to form a political party, vote for the party of their choice and the right for the vote to happen in a free and fair election. Section 41(d) then provides that the National Assembly will be comprised based on this vote and proportional representation. The Constitution envisages no quota system on any basis - rather it empowers individual citizens to support the party that best represents their interests and political ideals. In the Certification Judgment, it was stated that parties are elected and parties must be accountable to the electorate. The introduction of a quota system on any ground would go against the basic tenets of democracy and limit the right of citizens to vote for a party of their choice. It should be rejected outright as it would result in the electorate losing their right to choose their representatives.

Mr Motlashuping raised the issue that none of the legal opinions had compared or analysed any democratic system in Africa but focused instead on the “imperialists” Britain and America. He noted this as an observation and continued to underline that the SA Constitution does talk about the removal of the President.

Mr Mpumlwana did not know what Ms Meas meant by “majority” and “minority” in her submission - he felt sorry for someone making such a statement. Both political education and prayer by the nation’s priests were needed.

Ms Mothapo also touched on the point of comparative cases in the legal opinions provided. She asked why the legal research did not touch on the SADC region, other African countries, BRICS countries and only then look at the others. Referral has been made to USA three times. She continued to say that Section 89 covers impeachment fully and she did not believe it is productive to turn it into a “Parliamentary Nuremberg Trial”.

Mr Mhlanga further noted that research of the Committee should follow the policy of building close relationships with countries such as those in the African Union. Why was it only capitalist democracies being referenced instead of socialist ones? The opinions could be noted for deliberation but this attitude really needs to change.

Mr Swart had no problem with the presentations but agreed it would be helpful to bring in the views of African countries as well. The SA Constitution was based on German, Canadian and United States models so beginning with the British term “impeachment” was understandable and he had no problem with that. It will be helpful to wait for the outcome of the court judgment on this matter to give guidance.

The Chairperson recognised and congratulated Dr M Pilane-Majake (ANC) on her new accolade.

Dr M Pilane-Majake thanked the Chairperson. She noted that in a previous meeting, it was decided that there were certain matters which did not need to be deliberated on as it fell outside the mandate of considering constitutional amendment. In other cases, matters were already dealt with, for example, the matter where the Constitution does provide for removal of a President but this was already covered by a submission recommending amendment for impeachment. She recommended the Committee adopt a screening system where submissions received could be screened bearing in mind that the Committee is there to represent the people on the ground and should not spend too much time on matters where it cannot be helpful to them.

Mr S Maila (ANC) encouraged the legal advisors not to feel small and commended them on doing a fairly good job. The task of the legal advisors was to react to submissions made and address matters raised in the submissions. The Committee does not mean to suggest what they advisors were doing is wrong but were recommending that analysing African countries would be helpful. He thanked the legal advisors for their opinions.

The Chairperson echoed this and said that the Committee does not mean to send a message that the professionals should be limited in conducting their research but rather wants to encourage bringing further information from different perspectives.

Ms Ebrahim responded that her reference to the USA’s model followed from the belief that this was the system implicitly assumed in the submission she received – it was therefore necessary to describe the US system to make the point that not all impeachment or removal processes need imitate it. SA’s system implicitly allows for impeachment and does not need to do so in the same way as the USA. She noted the comments about using examples from other African countries.

Submission 16/21
Ms Phumi Ngema, Parliamentary Legal Adviser, presented a submission from Mr Mengo Wilson concerning the manner in which Section 239 of the Constitution is drafted. The submission questions why there is an absence of numbering in that section. The legal opinion provided was that there are international drafting standards that SA adopted and was following. A number of authorities provided guidance on drafting legislative instruments. Section 239 defines three matters: national legislation, organ of state and provincial legislation for purposes of the Constitution’s content. The fact that the Section only has paragraphs, without numbering, is in line with the agreed international standard and convention on how to deal with such a legal instrument.

There was unanimous agreement that this opinion stand from the Members.

Consideration and Adoption of Previous Committee Minutes
Ms Mothapo questioned whether the minutes could be adopted given that some Members had already departed.

The Chairperson replied that the Committee was applying the rule that the Members were present earlier.

Ms Mothapo pointed out that her name did not appear in a particular section of the minutes.

The Committee Minutes were adopted with minor amendments.

The meeting was adjourned.



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