The Joint Committee on Constitutional Review met to hear legal opinion on public submissions received in 2016. Four Parliamentary Legal Advisors presents their opinions on individual submissions.
Among the submissions noted for further consideration was a submission by Mr Gabriel Mathe. He proposed that the Constitution be amended to allow for the termination of membership in the National Assembly should a Member be found guilty of a breach of the Oath of Office. The legal team indicated that this was a policy consideration but would require agreement on processes and procedures for removing a Member of the National Assembly, as well as agreement on what constitutes a serious breach of the Oath of Office. Some Members felt that the current rules, where a Member of Parliament can only be removed by his/her own party should stand, since they are elected as members of a party not as individuals.
Another proposal from Mr Mathe was that any vote to remove the Speaker or Deputy Speaker of Parliament should automatically be a secret ballot. This would remove the discretion of the Speaker as well as any issues around the constitutionality of secret ballots. While it was noted for further discussion, some Members of the Committee felt that there must be serious grounds for the discretion to be removed and that the Speaker has not been found guilty of any transgression which would warrant the removal of her discretion.
While entertaining another proposal the Committee informally discussed the lack of inclusion of the NCOP in votes pertaining to the removal of the president and budgetary matters. Members requested that the holistic involvement of the NCOP be looked at in future and that research should be conducted into other countries which have two Houses of Parliament.
Another submission dealt with a range of socio-economic rights – the right to free healthcare, adequate clothing and an adequate standard of living. The legal team felt that these rights, while not expressed explicitly, are already in the Constitution. South Africa has made commitments to the progressive realisation of these rights both within the Constitution and as a signatory to international conventions on social, economic and cultural rights. Members of the Committee as well as the legal team stressed that these rights are not absolute and that making them so would turn South Africa into a welfare state and may render the State incapable of fulfilling its obligations given the economic and social implications. It was noted that the National Health Insurance (NHI) was currently in the pipeline.
Another submission was made which would require the post of National Director of Public Prosecutions (NDPP) to be advertised publicly, with interviews taking place publicly the way interviews for positions of judges are. The submitter felt that this would remove the President’s right to appoint the NDPP and strengthen the impartiality of the National Prosecuting Authority (NPA).
Concerns were raised throughout the meeting about submissions which were vague or difficult to understand. The Committee enquired about the possibility of engaging with the submitter to seek clarity since this has happened in the past and is within the ambit of the Committee. A few other proposals were, in the view of the team of legal advisors, already covered in the Constitution.
The Chairperson said there was no quorum but since no decisions needed to be taken, the meeting would proceed. He wanted the meeting to finish quickly to avail Members of the NCOP to attend the President’s address shortly afterwards. He confirmed that Members had received the agenda which involved the hearing of four legal opinions on public submissions to the Committee.
The Committee adopted its agenda for the day.
Submission CR 16/15
Ms Sueanne Isaac, Parliamentary Legal Advisor, presented a submission from Mr Kagiso Mathe. The submission included 11 different proposals to amend the Constitution. The first proposal involved inserting a subsection 1(2) which would state that the Constitution was the supreme law of the Republic. Ms Isaac pointed out that section 2 of the constitution already dealt with the supremacy of the constitution. Ms Isaac felt that what the submitter proposed was already dealt with in the Constitution and therefore the proposed amendment was unnecessary.
Ms Isaac asked the Chairperson whether he wanted her to proceed with all the proposals within the submission.
The Chairperson responded that each proposal should be discussed one by one.
Ms Isaac proceeded with the second proposal which concerned section 47(a)(i) of the Constitution. The proposed amendment suggested that Ministers and Deputy Ministers be excluded from voting on matters of Parliament and should only be allowed to vote on matters concerning their portfolio.
Ms Isaac highlighted that Members of the Executive are appointed by the President from the membership of the National Assembly. She clarified that currently all Members of the Legislature are given the same voting rights, whether they are part of the Executive or not. Apart from the Presiding Officer, every Member of the National Assembly can vote on any matter brought before it. Currently only two Ministers and two Deputy Ministers may be appointed from outside the National Assembly. Ms Isaac felt that the term ‘matters of Parliament’ was unclear as Parliament served many functions including voting on legislation and holding the Executive to account. The exclusion of Ministers and Deputy Ministers from voting in Parliament would disadvantage parties which have Members in the Executive. This would equate to a loss of votes in the National Assembly for the party. If a ruling party held a narrow minority in Parliament, this would result in Parliament being hamstrung in passing legislation and making decisions before the House. She noted that this is a policy decision for the Committee to consider.
The Chairperson asked the Members to consider the merits and impact of such a request.
Mr S Ncwabe (NFP) felt that the request would not do justice to the work of Parliament especially in the setting of budgets. The submission was not well crafted and proposed that the amendment be set aside.
Mr M Mhlanga (ANC; Mpumalanga) suggested that submissions be noted and deliberated on afterwards.
The Chairperson called for the next proposal
Ms Isaac said the next proposal dealt with section 48 of the Constitution. The proposal was that any breach or inconsistency with the breaking of the Oath of Office should result in a termination of membership in the National Assembly, given extensive proof presented to a judicial court judgment of any concrete form. Section 48 currently deals with taking the Oath of Office whereas section 47(3) deals with loss of membership in the National Assembly. The Constitution did not provide for loss of membership for breaking the Oath of Office. Unless a Member was illegible according to the Constitution, only a Member’s party may terminate their membership in the National Assembly. This was a policy consideration, but if the Committee accepted such a proposal, Members must agree on what constituted a breach in the Oath of Office and establish the process and procedure stemming from the amendment.
The Chairperson asked what section the proposed amendment would fall under.
Ms Isaac replied that currently loss of membership in the National Assembly falls under section 47 of the Constitution.
Ms T Mampuru (ANC; Limpopo) remarked that Members are there as representatives of political parties, not as individuals. She agreed with the current practice of political parties dealing with breaches of the Oath of Office.
Mr Mhlanga suggested that submissions be noted and deliberated on afterwards.
Ms Isaac said the next proposal was a proposed amendment to section 52(4) of the Constitution which would allow for the removal of the Speaker or Deputy Speaker to be done through a secret ballot. Currently the Speaker or Deputy Speaker can be removed by resolution if most of the Members of the National Assembly are present. The use of secret ballots in the National Assembly has recently gone to the Constitutional Court which ruled that the Speaker may allow secret ballots at his/her discretion if it is deemed appropriate after various factors are considered. Amending the Constitution will mean all resolutions to remove the Speaker or Deputy Speaker will be done under a secret ballot. This would remove the Speaker’s discretion. Ms Isaac felt that this was a policy proposal for the Committee to consider.
Mr Ncwabe expressed concern that should the amendment be implemented there would need to be genuine reasons for doing so. He felt that the Speaker must have committed a serious violation of procedures of Parliament to warrant the removal of his/her discretion. Mr Ncwabe felt that we have not reached the stage where we need to override the speaker’s discretion and that doing so would be opening a can of worms. He expressed the need for a strong motivation for doing so.
The Chairperson asked if the proposal strengthened the work of Parliament. He suggested that parties discuss the proposal and return to it at a later stage.
Ms Isaac presented the next proposal, an amendment to Section 55 of the Constitution. The submitter proposed that section 55 be amended to read as follows “adequate remedial action is taken to the benefit of the credibility of the parliament towards the citizens of the Republic and overall international confidence in the country’s stance on injustice and promptness to maintain order and decisive leadership to be upheld at all time”. Ms Isaacs stated that section 55 currently deals with the powers of the National Assembly which are to legislate and hold the Executive to account. She also felt that the proposed amendment was unclear.
Mr Ncwabe agreed, stating that the proposal was vague and difficult to entertain
Ms R Mothapo (ANC) suggested that once submissions are received that an attempt was made to understand what the submitter may mean in their submission. She queried whether a follow up was made with the submitter for clarity.
The Chairperson clarified that it was possible to request to interrogate the submitter if the essence of the submission made sense and might give rise to a constitutional amendment. The intention was not for the secretariat to interact with submitters and influence or write submissions for them. He raised the possibility of oral submissions.
Mr S Maila (ANC) said the Committee should interrogate submissions, not the submitters. It was the submitter’s responsibility to write the submission and if it cannot be understood the Committee should let it go.
Ms C Pilane-Majake (ANC) asked if the proposal to follow up with submitters was viable and whether there was sufficient capacity to do this to ensure that not all submissions are dismissed unnecessarily.
Ms Isaac responded that nothing stopped the Committee from interacting with the submitter or seeking clarity from them. The aim was to get public input.
Ms Pilane-Majake agreed with Mr Maila’s position.
Ms Mothapo queried whether submissions are made in the submitters’ own language since not everyone spoke the ‘Queen’s language’. She expressed concern that people may have something important to say but may not be able to express it clearly in their second language. She asked whether people are being encouraged to write in all official languages when making submissions.
Dr A Lotriet (DA) responded that in the past there had been opportunities for the submitter to present to the Committee.
The Chairperson responded that while the budget allowed for this, not every opportunity warranted it. The Committee would have an opportunity when it decided the desirability of seeking clarification from the submitter. It was still within the ambit of the Committee to have face to face interactions with the submitter. He asked for the next proposal.
Ms Isaac presented the next proposal, an amendment to section 64(4) of the Constitution which would force the Chairperson of the National Council of Provinces to relinquish their political party membership upon being sworn in by the Chief Justice. She stated that in her research only the House of Commons in the UK required presiding officers to relinquish their political party membership and that the current rules already required them to be impartial.
The Chairperson asked Ms Isaacs whether she included Africa in her research
Ms Isaac responded that she did but that it was not something which occurred outside of the UK. She noted that the debate around this was quite current and not something that has been accepted as practice.
Mr Ncwabe stated that the proposal conflicted with section 47a of the Constitution.
The Chairperson asked for the next proposal.
Ms Isaac presented the next proposal, an amendment to section 83 of the Constitution which would require the President to be held accountable and removed for any infringement of the Constitution. Currently the National Assembly can remove a President on grounds of serious misconduct. Removing the president for ANY infringement meant that it can be a major or minor or unintentional infringement of the Constitution. The example was given of the matter of the pharmaceutical manufacturers where the Constitutional Court found that although the President did not act in bad faith and acted on advice, he was in breach of the Constitution. If the proposal was enacted a President can be removed for signing a law in breach of the Constitution into law. The proposal has far reaching consequences but was a policy consideration worth considering.
Mr Mhlanga expressed concern that although there are two Houses of Parliament, when a motion to remove the President was presented the NCOP was not considered. He asked the Committee to explore how other countries deal with having two Houses.
Mr T Motlashuping (ANC; North West) noted that there are other issues where the NCOP was excluded, including when budgets are presented. The involvement of the NCOP should be looked at holistically.
Ms Pilane-Majake suggested that the Constitution should guide what a President can be removed from office for.
Ms Isaac presented the next proposal, an amendment to section 84 of the constitution to remove the President’s prerogative in making appointments to the Constitutional Court. It proposed setting up a committee comprising to make appointments. Currently the Constitution sets out who made recommendations to the President and what the procedure was. The President then endorsed the decision. Isaacs felt that the president must be able to run government and decide on appointments to be made. Ms Isaac felt that the proposal curtailed the President’s power and was very broad. In her view, the proposed amendment is not legally sound and should not be endorsed.
Ms Mothapo said that there are committees which have been set up to make recommendations and that those should remain.
Mr Ncwabe expressed concern that the Committee kept noting submissions, therefore creating a lot of work for itself. The Committee should not come back to submissions which are not relevant. Some proposals did not require further considerations and that the Committee should crush those proposals and move on.
Mr Mhlanga (expressed concern that the Committee would be acting like reactionaries in throwing the proposal out. The Committee had agreed to note all proposals and that the committee should continue with the principles it had initially agreed on.
Mr F Beukman (ANC) agreed with Mr Mhlanga, stating that the processing of these matters was quite important and that the Committee had agreed to a principled approach. He felt that it would be fair to all submitters to use the same approach.
Ms Isaac presented the next proposal, an amendment to Section 89(1) of the Constitution which stated that the National Assembly may, by a resolution which was automatically unanimous, remove the President if grounds for impeachment existed. It stated that cadreship must not be a consideration. Ms Isaacs felt that by requiring all Members of the National Assembly to vote for the removal of the President sets the threshold much higher than it was at present. The practicality of such a request must be considered as it would make it extremely difficult to remove a President. She expressed concern with the use of cadreship or political allegiance in the proposal, questioning how you curtail a member from exercising political allegiance when making such a decision. In her view, it would be difficult in a political environment.
Mr Maila stated that the proposal made things more difficult and questioned how unanimity is reached in a political environment.
The Chairperson stated that this would be noted for further consideration.
Ms Isaac presented the next proposal, an amendment to section 91 of the Constitution which would limit the number of Ministers and Deputy Ministers who can be appointed to Cabinet. Currently no such limit existed. The President has the discretion to appoint as many ministers as deemed necessary. Internationally, India has placed a limit on the number of cabinet members, as has the United Kingdom. Ms Isaac felt that this was a policy consideration for the Committee to consider.
Ms Isaac presented the next proposal, an amendment to section 96B of the Constitution. The proposal was that Ministers and Deputy Ministers be required to declare their business interests before assuming office. It also proposed that Cabinet Members be subjected to lifestyle audits to determine whether privileged information from their office was being used to unlawfully amass wealth. Currently there was a Members’ Code of Ethics which required Members of the National Assembly to declare their interests within 60 days of assuming office, annually, and within 60 days of interests arising, Ms Isaacs felt that the issue was with whether the declaring of business interests should occur prior to taking office. The other issue was the proposal of the lifestyle audits. She felt that the proposal required further scrutiny and questioned whether it belongs in the Constitution or in a code of ethics.
Mr Mhlanga remarked that there are already ethics codes in place.
Submission CR 16/18
Ms Fatima Ebrahim, Parliamentary Legal Advisor, presented a submission from Ms Phumudzo Nedzivahni. The first proposal in the submission dealt with terms of office of the President and proposed that the President be limited to two terms. Ms Ebrahim stated that no amendment was required here.
The next part of the submission dealt with conflicts of interests and stated that the President should not be associated with anyone who has shares in a private company. Ms Ebrahim stated that the National Assembly’s code of ethics already deals with conflicts of interests and that Section 96 of the Constitution contained specific prohibitions, however it does not contain a blanket prohibition as contained in the proposal. The proposal was impractical and the current laws are more than efficient.
The next part of the submission dealt with the appointment of Ambassadors and Ministers as well as the signing of international treaties. The submitter appeared to have copied Article 2, Section 2 of the United States constitution verbatim. Currently treaties are dealt with in section 231 of the Constitution, with the agreement only being binding after approval by the National Assembly and the NCOP. The difference between the US and South African Constitution was that the US required a two thirds majority for treaties to be binding whereas SA required a simple majority. The increasing of the threshold for passing of treaties was a policy consideration for the Committee to consider. The second issue was with the appointment of Ministers. Currently it was the President’s prerogative to appoint Ministers from within and outside the National Assembly, as was the case with ambassadors. He did not require the consent of the National Assembly. The inclusion of the consent requirement as a limit to the President’s powers was a policy consideration.
The next part of the submission dealt with the removal of the Deputy President and other public officers from office. This proposal, as with the previous one, was based on the US constitution and outlined its impeachment process. Section 89 of the Constitution deals with the removal of the President and whhether it should include the Deputy President was a policy consideration. While the US constitution deals with the removal of public officers, the removal of these persons are dealt with in separate sections of the South African Constitution. In all the removals, the National Assembly has a role to play. Ms Ebrahim questioned whether this proposed amendment needed to be included in section 89 as she feels it is adequately dealt with in other sections.
The next proposal dealt with amendments to the Bill of Rights to include the right to an adequate standard of living, including adequate food, clothing and housing. She felt that the rights seemed to be taken from other constitutions. While the Constitution did not speak directly to an adequate standard of living, its components are dealt with in other sections of the Constitution. She stated that she could not find any constitution which included the right to clothing, but that it was implicit in the right to dignity. South Africa was a signatory to the International Covenant on Economic Social and Cultural Rights which was ratified in 2015. She stated that all rights in the Bill of Rights are interrelated and felt that the rights proposed by the submitter are adequately dealt with.
Mr Mhlanga noted that there are challenges in the setting of food prices and food security in the country which made the provision of these rights difficult. He expressed the need to caucus with his party on the issue.
Ms Fatima Ebrahim proceeded with the next part of the submission – the right to receive adequate healthcare, free at the point of use. Currently the right is limited; the State must take reasonable measures within its resources to achieve the progressive realisation of this right. She cited the case of Soobramoney v Minister of Health in which the Constitutional Court ruled that the right to access healthcare was limited by the availability of resources and that a patient’s inability to access dialysis did not constitute a breach of his right to access healthcare. Ms Ebrahim referred to the phrase ‘free at the point of use’ and highlighted that the State might not be able to provide free healthcare. The National Health Insurance (NHI) was in the pipeline and this discussion was already happening.
Mr Mhlanga stated that there should be an investigation into whether national healthcare is feasible and questioned whether it should be a constitutional right.
Ms Ebrahim proceeded with the next part of the submission which dealt with the right to work in an a safe environment. She felt that worker safety was already adequately dealt with in the Constitution.
Ms C Pilane-Majake (ANC) felt that there was no need to engage on this point.
Ms Ebrahim proceeded with the next part of the submission which dealt with the right of workers to resort to collective action including the right to strike. She remarked that section 23 of the Constitution contained far more substantial protection of labour rights than what was being proposed, including the right to join a trade union.
Ms Mothapo replied that this was complimented by the Labour Relations Act.
Ms Ebrahim continued with the final part of the submission. The amendment proposed that the rights of certain groups – namely children, older people and people with disabilities – be given special regard. She stated that children’s rights are already covered in section 28 of the Constitution. While there are no standalone clauses in the Constitution dealing with older people or people with disabilities, both groups enjoyed rights in the Bill of Rights. Furthermore it states that the State may not discriminate against anyone based on age or disability. She felt that this encompasses the concern that the State does not specifically deal with older people and people with disabilities and as such was already covered. If the rights mentioned by the submitter were made into absolute rights it would create a welfare state and make it impossible for the State to meet all its obligations given the current social and financial restraints.
Submission CR 16/26
Mr Nathi Mjenxane, Parliamentary Legal Advisor, presented a submission from Advocate H Mukhavela. The submission dealt with sections 179 and 188 of the Constitution. The submission dealt with the appointment of the National Director of Public Prosecutions (NDPP). It proposed that the NDPP not be appointed by the President, but that the position be advertised publicly for all suitable applicants to apply. Adv Mukhavela noted that judges are interviewed in public and believed that NDPP candidates should also be interviewed in public. The submission argued that having the NPA fall under the Executive, specifically the Ministry of Justice, rather than the judiciary posed problems for its independence.
The second part of the submission dealt with the Auditor-General. It proposed that the Auditor-General be required to submit to the NPA any evidence of wrongdoing according to the Auditor-General’s reports. Currently the Auditor-General’s reports are presented to the National Assembly for them to follow up on. Mr Mjenxane felt that there was no need to amend the Constitution in this regard.
The Chairperson said that this was quite a serious request to consider.
Submission CR 16/28
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that where submissions are not clear or where resources allowed, the legal advisory team may contact the submitters in order to provide a thorough legal opinion on the submissions. She presented a submission from Ms L Sikani which dealt with the Public Service Commission (PSC). The submitter argued that the PSC should have no role in the grievance procedures between the government as an employer and its employees. The submitter contended that the PSC’s function lapsed once government employees are dismissed. Ms Ngema read from section 196(4) of the Constitution which deals with the PSC. Ms Ngema stated that the submitter had misconstrued the provisions of this section of the Constitution and that no further amendments were required.
The Chairperson thanked everyone.
The meeting was adjourned.
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