Documents handed out: Opinion on Submission by Ms Evelyn Motlhaping (Submission CR 16/36) [awaited]; Legal Opinion on the submission by Adv. N M Masemola (Submission CR 16/39)[awaited]; Submission by J Greaves Regarding the Electoral System (Submission CR 16/27) [awaited]; Submission by PK Maibelo Regarding Electoral System (Submission CR16/41) [awaited]; S103(1) of Constitution Proposed Amendment [awaited]; Submission by Tshepiso Magano: Request to review Sections 9(3) of the Constitution, 1996 [awaited]
The Joint Committee on Constitutional Review met to hear legal opinion on public submissions received in 2016. Four Parliamentary Legal Advisors presented their opinions on individual submissions.
Among the submissions noted for further consideration was that of Ms Evelyn Motlhaping, who highlighted the challenges faced by court interpretation servicers in securing the services of foreign language interpreters. Ms Motlhaping suggested that Section 35(3)(k) should read as follows: “Every accused person has the right to a fair trial, which includes the right to be tried in one of the official languages of the Republic of South Africa, or if that is not practicable, to have the proceedings interpreted in one of the official languages”. The current provision did not mean that the person must have court proceedings in an official language or their first language. It only meant that the trial must be in a language the accused understood. This right was qualified and could only occur where it was practical, where it was not practical a request may be made for the proceedings to be interpreted in a language the accused understood.
The other proposal related to the inclusion of the language “Sesotho Sa Leboa” in the Constitution as an official language. The proposal suggested that “Sesotho Sa Leboa” be deleted and replaced with the Sepedi language instead. The Constitution referred to it as Sesotho Sa Leboa, it was only in the final Constitution that it was changed to Sepedi. The researcher argued that the submission was a technical issue because in any situation the English version of the Constitution will prevail.
Committee Members generally agreed that this was an issue that needed to be taken into consideration. They further emphasised that languages should unite people, therefore the approach to be taken needed to unite the people of Limpopo.
The third submission related to proposal of 200/200 members, with half of the members coming from a constituency based electoral system and the other half deriving from a list system. Ms J Greaves wanted details to be set out in Section 46. She leant towards the detail to be included in Section 46. Legally there was nothing wrong with the proposal, it was still a proportional representation. The only concern was that the Constitution was intentionally drafted in broad terms to allow for amendments and societal demand changes. The second part of the proposal, which dealt with Chapter six of the Constitution, Adv N M Masemola proposed that the provincial level of government be taken out completely, leaving national and local government.
The next presentation submitted also dealt with electoral systems. It focused on Section 86, which dealt with the election of the President. The submission was submitted by Mr PK Maibelo, who argued that the Constitution conflicts with the Freedom charter. The submission was not wrong, however it recognised the Freedom Charter a document that represented the will of the people and this should be reflected in Section 86 and the election of the President.
Another presentation was submitted by Mr Tshepiso Magano. He requested that Section 9(3) of the Constitution be amended. The submission was on equality. He argued that the omission of the word class implies that the discrimination on class is fair and it should be corrected through an amendment. There were two kinds of discrimination; fair discrimination and unfair discrimination.
Mr Nathi Mjenxane, Parliamentary Legal Advisor, concluded that Mr Magano’s submission had no grounds to amend Section 9.
The last submission dealt with Section 103 which was the request to reduce the number of provinces. Submitters argued that the revenue that goes to provinces could be channelled elsewhere. The main issue was that they do not outline which provinces should be discarded and which should be retained.
Members of the Committee generally agreed that it was a political issue that required political considerations and debate.
Submission CR 16/36
Ms Sueanne Isaac, Parliamentary Legal Advisor, presented a submission by Ms Evelyn Motlhaping who is a principal court interpreter. The submission dealt with Section 35(3)(k). The submitter highlighted the challenges faced by court interpretation servicers in securing the services of foreign language interpreters. Ms Motlhaping provided an example of an incident in 2015 when an accused person spoke Creole and the court interpretation services had trouble finding a foreign language interpreter. With the assistance of the Department of International Relations and Cooperation (DIRCO), an interpreter was found in Kenya. However, this process had huge financial implications. Ms Motlhaping suggested that Section 35(3)(k) should read as follows: “Every accused person has the right to a fair trial, which includes the right to be tried in one of the official languages of the Republic of South Africa, or if that is not practicable, to have the proceedings interpreted in one of the official languages”.
Ms Isaac explained the current Constitutional framework. Section 35(3)(k) of the Constitution set out various rights for accused and detained persons. The Constitution placed great emphasis on the accused being granted a fair trial and one of the rights was for the accused to have court proceedings either in a language the person understands or proceedings interpreted in that language. The current provision did not mean that the person must have court proceedings in an official language or their first language. It only meant that the trial must be in a language the accused understood. This right was qualified and could only occur where it was practical, where it was not practical a request may be made for the proceedings to be interpreted in a language the accused understood. This was confirmed in the case of Mthethwa vs De Bruin NO and Another.
The submitter suggested that this be changed so that court proceedings be held in any of the 11 official languages of South Africa or proceedings interpreted in any of those languages. Section 35(3)(k) had a particular purpose, it was to ensure that the accused person was able to understand what was happening in a court. The section allowed for the person to understand and challenge evidence. If the accused does not understand the court proceedings, they would not be able to defend themselves. Ms Isaac concluded that the proposed amendment of Section 35(3)(k) that only official languages must be used will mean that certain accused will not understand court proceedings and this will have an impact on criminal trials. However, it was a policy issue for the Committee to consider.
Ms R Mothapo (ANC) said that Section 35 (3)(k) should be aligned with Section 37. For a person to have a fair trial there should be notifications and access to documents in the case of a criminal trial. The submission was complex, especially in the case of languages that were not part of South Africa’s 11 official languages. The right was contained in the Bill of rights. She sought clarity on how the Committee could evade this catch 22 situation, because whichever decision the Committee took, it would be declared unconstitutional in terms of the Constitutional principles.
Mr F Beukman (ANC) sought clarity on paragraph 3 of the commission. There was no indication on what process to follow. In most cases it was about sourcing the services in South Africa. He required more information on the process to be followed, resources, costs, before the matter is referred to a Constitutional case. It was more of an administration issue that was being escalated into a Constitutional issue due to a lack of resources.
Ms Isaac responded that there was a premium placed on the rights of an accused person because of the possible deprivation of rights. Section 35(3)(k) said that a trial must be in a language the person understands where it was practical, that was a limitation. Where it was not practical the whole trial can be interpreted in a language the person understood. There was not a question of progressive realisation, the right was set out in a way where the trial was conducted in a language that was practical and in that case, considerations such as whether the majority of the people in that court room understood the language are taken into account. Hence it was more on practicality of the issue: She agreed with Mr Beukman’s comment that it was more of an administration issue. More information was required on how the whole procedure would take place. Was this an exceptional circumstance or would it be a norm. It was a question of how it would be applied in practice. The submission required more information before the Committee could decide if this was an appropriate amendment.
The Chairperson said that the committee required more information on the process, budget and practicality. He asked if a researcher could provide more information on the practicality of it.
Submission CR 16/39
Ms Fatima Ebrahim, Parliamentary Legal Advisor, presented a submission by Advocate N Masemola. There were two distinct proposals submitted and she suggested that proposals be discussed separately.
The first submission related to the inclusion of the language “Sesotho Sa Leboa” in the Constitution as an official language. Advocate Masemola proposed that “Sesotho Sa Leboa” be deleted and replaced with the Sepedi language instead. Section six of the Constitution recognises 11 languages and the English version of the Constitution refers to Sepedi. The submitter suggests that it should not refer to “Sesotho Sa Leboa” but it should refer to Sepedi. Ms Ebrahim expressed her initial confusion because it seemed as though that was the de facto position in terms of the Constitution. However, after conducting further research, she found that the Sepedi version of the Constitution referred to Sesotho Sa Leboa and not Sepedi as it appeared in the English Constitution. The interim Constitution referred to it as Sesotho Sa Leboa, it was only in the final Constitution that it was changed to Sepedi. Technically the issue raised by Adv. Masemola was a moot point because in any situation the English version of the Constitution will prevail. Section 2(40) specifically stated that in the case of inconsistency between different texts of the Constitution, the English Constitution prevails. Advocate Masemola’s proposal has already been dealt with. There was, however, confusion on which one was the correct designation. There was nothing further the Committee could do with the submission, but further deliberation would be required for the correct designation.
Ms Mothapo expressed her confusion because the Committee dealt with a similar language issue. The main contention was also on Sesotho Sa Leboa language. The language has a historical genealogy. The Committee was previously informed why the Interim Constitution came to this conclusion. It had a historical background. She humbly requested the Committee to go back and check the documents that led to the decision to see what transpired.
Mr S Maila (ANC) agreed with both Ms Mothapo and the researcher that there was confusion. The matter needs to be further considered before a conclusion was reached. If the English version supersedes other versions it created more confusion.
Mr L Mpumlwana (ANC) said historically in the case of KwaZulu-Natal and the Cape Province only one family was chosen and everyone in the particular boundary had to be a part of that family and share the same language. In Limpopo however, there were different languages. Hence these languages could not be imposed on other people. The English imposed boundaries but they did not manage to do it properly in Limpopo.
Ms C Pilane-Majake (ANC) emphasised that languages should unite people therefore the approach to be taken needed to unite the people of Limpopo. Guidance would be required from the Committee and the people of Limpopo. The Committee’s outcome should resonate with the expectations of the people of Limpopo.
The Chairperson said Adv. Masemola only addressed the technical matter. It was not a young black professionals matter. The difference in the Constitution has been noted. He therefore called for the separation of submissions on the basis of recognition of language and correction of the Constitution while those imperatives should be picked up, between those who seek recognition of their own language and those who technically seek to correct the Constitution.
The Committee required more information to engage on the submission in its own strength.
Ms Ebrahim said the confusion was that the submitter read the Sepedi version of the Constitution which lists Sesotho Sa Leboa and not Sepedi. His comment was a technical concern. It was not a recognition issue.
The Chairperson reiterated that Sepedi was already recognised as a language in the Constitution. Advocate Masemola was not challenging recognition.
Ms Mothapo interjected and declined by stating that the Committee had been on the issue since 2002 and it was parked last year. She reiterated her suggestion of going back to submissions, public hearings and consultations that were made with the affected academics and public. It was a very sensitive matter that could not be side-lined.
Ms Pilane-Majake said that the Committee cannot ignore the matter. She echoed Ms Mothapo’s suggestion that the Committee should look at the outcomes of the consultative process.
The Chairperson said that in 2015 there was no submission on the matter. It came with the batch of the legacy submissions. The Committee would have to revisit the legacy submission. He suggested that the Committee discuss the strength of the submission on its own because going back to the historical consultative process would result in the Committee deliberating how those decisions were taken, which would will only delay the submitter.
Mr Mpumlwana said that Adv. Masemola’s proposal should be dealt with. He agreed with Ms Mothapo’s suggestion of looking into public hearings and submissions.
The Chairperson said there should be a session where the Committee decides on how they will process the recommendations of the legacy report.
Ms Ebrahim presented the second part of the proposal, which dealt with Chapter six of the Constitution. Adv. Masemola proposed that the provincial level of government be scrapped out completely leaving national and local government. The proposal was based on his contention that provinces did not add value to processes of governance and exist only to give people jobs. If the proposal was successful it would require the major reengineering of the Constitutional. Firstly, the whole of Chapter six which deals with provinces would have to be deleted. Secondly, the NCOP would cease to exist, this in turn will affect the composition of Parliament and legislative provisions in Chapter four. Lastly, Chapter three of the Constitution which deals with cooperative government, would also have to be amended.
Legal implications would also be consequent to the abolishment. These included an impact on the labour force which currently serve provincial governance, a restructuring would occur leading to people losing their jobs, which would have legal and cost implications. On state resources, there were state resources that were purposefully built to serve provincial government such as physical buildings and assets. There would also be implications on the roles and powers of government, would the powers of provincial government go up to national government or down below to local government? There would be a restructuring in power. All of these would have legal and economic implications.
Mr Mpumlwana said he liked the last few words of the submission. He agreed that there was a need to consider the submission, there were nine provinces. The implications needed to be considered. Reduction could also be another option, taking three or two and merging them into one. It will be cost effective and deal with the tension of loss of jobs.
Ms Mothapo agreed with the second proposal, it required careful consideration.
Mr Beukman asked what would the implications be of the reduction from nine provinces to five? Will other structures be in place?
Ms Ebrahim referred Mr Beukman’s question to her colleague.
Submission CR 16/27
Dr B Loots, Legal Adviser: Parliament, said the submission related to a previous submission she had presented by Mr Maharaj. Mr Maharaj’s proposal dealt with the Commissions’ proposal of 200/200 members with half of the members coming from a constituency based electoral system and the other half deriving from a list system. The current submission from Ms J Greaves also requested a 200/200 split. The difference between the two submissions is that Mr Maharaj leans towards acknowledging that the detail of the electoral system is captured in the legislature where Section 46 just provides the broad guidelines. Ms Greaves on the other hand wanted it to be set out in Section 46. She leans towards the detail to be included in Section 46. Legally there is nothing wrong with the proposal, it was still a proportional representation. The only concern is that the Constitution was intentionally drafted in broad terms to allow for amendments and societal demand changes. By including something that specific, it would take away the flexibility of the Constitution. In principle, there is nothing legally unfound, it would just affect the drafting nature of the Constitution.
Mr Mpumlwana sought clarification on whether Ms Greaves’ submission should be inserted in the legislation. What was the researcher’s point of view?
Dr Loots responded that from a drafting perspective Section 46 set out the criteria for proportional representation. It gave Parliament the power to enact legislation. The 200/200 split was formula not criteria. Mr Maharaj’s proposal was more sound, it would fit into the spirit of the constitution as currently phrased. It allows for the ease of legislation amendment.
Dr Loots presented the second submission, which also dealt with electoral systems. It focused on Section 86, which dealt with the election of the President. The submission was submitted by Mr Maibelo, who argued that the Constitution conflicts with the Freedom charter. From the legal perspective, the Constitution is the supreme law. Legally Mr Maibelo’s submission undermines the supremacy of the Constitution. However, the Freedom Charter was a document that had certain core values and statements that can influence policy decisions and Constitutional amendments. Thus, his submission was not wrong. The submission does not call for specifics on how Section 86 should be amended. The Freedom Charter was a document that represented the will of the people and this should be reflected in Section 86 and the election of the President.
Mr Nathi Mjenxane, Parliamentary Legal Advisor, presented a submission by Tshepiso Magano. He requested that Section 9(3) of the Constitution be amended. The submission was a submission on equality. Mr Magano requested that the term class must be explicitly expressed. The submission did not define or discuss what class is. Class, however, was generally understood as a person who has unfortunate socio-economic standing based on historical background. Mr Magano argues that the omission of the word class implies that the discrimination on class is fair and it should be corrected through an amendment. There were two kinds of discrimination; fair discrimination and unfair discrimination. Fair discrimination was permitted by the law. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) was enacted in 2000 to prohibit discrimination. Mr Mjenxane submitted that the Act should be considered as it gave context to Section 9.
Mr Mjenxane concluded that Mr Magano’s submission had no grounds to amend Section 9.
Mr Pilane-Majake said that Section 9(1) of the Constitution answered the submission because it included the socio-economic statuses. What was being requested had been properly covered by the Constitution.
Mr Mpumlwana said the lawyer’s argument, with all due respect, did not hold water. He would have liked Mr Mjenxane to argue both sides of the submission. The Constitution included religion, marital status, ethnicity, pregnancy and social origin. The lawyer has not brought any argument for the proposal. Class was very crucial. The lawyer persuaded the Committee by only arguing one argument. Inclusion of class would not harm anyone.
Ms Mothapo asked whether the inclusion of all sorts of criteria did not open a platform for the request of all other criteria. As long as the court can capture the spirit of the Constitution, then all was fine.
Ms Phumelele Ngema, Parliamentary Legal Advisor, presented a submission by Mr Ramara Phuti Nelson and Abayi. It seemed as though there was consultation amongst each other and the public. The submission dealt with Section 103, which was the request to reduce the number of provinces. Submitters argue that the revenue that goes to provinces could be channelled elsewhere. The main issue is that they do not outline which provinces should be discarded and which should be retained. Historically, the decision to come to nine provinces was a political decision confirmed by the courts. The Constitution does not state that the provinces are static. The Constitution does make provision for provincial autonomy, they have to be protected and respected. Should there be any change to the autonomy, the province must be given hand to speak and challenge the decision. It should be a political engagement, it cannot come from one corner. The simplest proposal is that the submission was a political matter, there was no prohibition from reducing the provinces However it should be backed by political parties. There would be a lot that needs to be engineered from the Constitution.
Mr Mpumlwana agreed with the submission. The disadvantage of the current number of provinces is that they were dividing as opposed to uniting people. As to which ones should be mixed, he had his own proposal. He agreed that people need to have their political will. The Western Cape province seemed like a country on its own.
Mr Maila said the submission was a topic worth debating. It was a worthwhile discussion that required political discussions.
Ms Pilane-Majake agreed that the discussion required further engagement. It was a serious matter that required political considerations.
The meeting was adjourned.
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