Public Submissions Report, Annual Report 2002, Committee Programme: considerations

Submissions:
In terms of Joint Rule 102 (2) this Committee must place advertisements calling for public submissions in printed media before 1 May 2002. Because the deadline of 1 May 2002 was not reached, the Committee was granted an extension by the house to 10 May 2002.

The Committee received 132 submissions. The Sub Committee duly considered the submissions, made a summary thereof and reported to the Constitutional Review Committee. The full Committee adopted the report. The Sub Committee met on 22 & 29 October and considered the submissions. Responses of the committee to the submissions are contained in the document attached as annexure A.

Constitutional Literacy Campaign

The Joint Constitutional Review Committee is of the opinion that the majority of South Africans do not have a firm understanding and interpretation of the contents of the Constitution of the Republic of South Africa. The Committee's major concern is that the lack of familiarity with the Constitution will render ordinary citizens defenseless, in the event of the violation of their rights.
The Joint Constitutional Review Committee's role is to review the Constitution and not to publicize it. The Committee believes that the following institutions have a role to inform the public of the contents of the Constitution:

The Department of Justice and Constitutional Development
The Department of Education
The Public Education Unit in Parliament
GCIS
The South African Human Rights Commission
Public Protector
National Youth commission
The Commission on Gender Equality

The Committee wrote to some of the above institutions and asked them to inform it of the programmes they intend to put in place to educate the public about the contents of the Constitution.
The Committee recommends that the Department of Justice and Constitutional development should print and distribute an updated and annotated version of the Constitution, as there are substantial amendments made since its last adoption in 1996.

The Committee received responses from the Department of Justice and Constitutional Development, GCIS, Public Education Unit, Public Protector & Human Rights Commission. The responses of the institutions are summarized in Annexure B.
The Committee is prepared to have consultative meetings with these bodies to discuss ways of improving public awareness of the constitution.

There is no legislation before the committee as the main function of the committee is to review the constitution.

Appendix 2
ANNEXURE A
REPORT OF CONSTITUTIONAL REVIEW COMMITTEE-SUBMISSIONS

132 submissions received.

1.Protection of rights affected by security related legislation
10 Submissions were received.

The submissions stipulate that the following rights are affected by the Firearms Control Act, 2000(Act 60 of 2000) and the Prevention of Organized Crime Amendment Act, 1999 (Act 24 of 1999):
The right to self-defence.
The right to keep and bear firearms.
The right to freedom from abuse by police or government.
The right to presumption of innocence
The writers requested that these rights should be firmly entrenched in the Constitution.

The Committee does not support any amendments to the Constitution in this regard.


3. Private ownership of firearms
71 submissions were received.

The writers suggest that the right to private ownership of firearms should be protected in the Constitution.

The Committee does not support any amendments to the Constitution in this regard.


4. Rights of arrested, detained and accused persons
1 submission was received.

The submission proposes changes with regard to arrest procedures under section 35(1) of the Constitution, detention procedures under section 35(2) of an individual suspected of committing a serious crime. The submission also proposes changes with regards to the right to a fair trial under section 35(3).

The Committee does not support any amendments to the Constitution in this regard.


5. Pardoning of offenders
1 Submission received.

The writer views the government as disregarding the rule of law and recommendations of stakeholders, by pardoning, for political reasons, a large number of prisoners convicted of serious crimes. It is argued that those convicts pardoned by the government did not receive pardon from the Truth and Reconciliation Commission (TRC). The recommendation is that the government and Parliament are not above the law and should not grant such pardons.

The Committee does not support any amendments to the Constitution in this regard

6. Right to life and death penalty
3 submissions received.

The writers are concerned about the escalating levels of crime in South Africa. They therefore call for the death penalty to be reinstated.

The Committee does not support any amendments to the Constitution in this regard. The IFP and NNP recorded their dissension to the decision of the committee.


7. Political rights/electoral system
2 submissions received.

Electoral System - A more direct constituency-based electoral system is proposed rather than a party list system. Elected officials must be accountable to local communities to ensure the smooth running of democracy and the dispersion of decision-making processes.

National/regional referendums - Any political party, organization or individual should be entitled to request the government to hold a national/regional referendum on a certain matter if they can obtain a minimum amount of support in accordance with prescribed procedures within a specified period.
Election procedures should ensure a clear majority.

The Committee does not support any amendments to the Constitution in this regard.

8. Judicial System
1 submission received.

Changes to the Constitution are proposed to allow for the following improvements to the operation of the judicial system: time frame for hearing of court cases, allowing the submission of recorded testimony and submission of evidence acquired illegally.

The Committee does not support any amendments to the Constitution in this regard.

9. Equality
2 submissions received.

Section 9 of the Constitution provides for the equality of all citizens before the law, and that everyone has the right to equal protection and benefit of the law.
The submission proposes that the qualification to this right in section 9(2) of the Constitution should be removed, as equality is a fundamental right, which cannot be qualified in an open and democratic society.

The Committee does not support any amendments to the Constitution in this regard.

10. The Bill of Rights
2 submissions received.

The suggestion is that the Bill of Rights be reviewed to accommodate the interests of victims of crime.

The Committee does not support any amendments to the Constitution in this regard.


11. Inclusion of responsibilities within the Bill of Rights
1 submission received.
The submission proposes that the scope of the Bill of Rights should be extended to also include Responsibilities, i.e. the Constitution should contain a "Bill of Rights and Responsibilities" chapter.

The Committee does not support any amendments to the Constitution in this regard.

12. Traditional Authorities
2 submissions received.

One submission contended that the Interim Constitution compelled the Provincial and the National Parliaments to refer Bills pertaining to traditional authorities, indigenous law or such traditions and customs, or any other matters having a bearing thereon, to the Provincial and the National Houses of Traditional Leaders before being passed into law.

The concern from the Traditional Leaders is that the Final Constitution of the Republic of South Africa (Act 108 of 1996) unfortunately does not have similar provisions as in the Interim Constitution, except to recognise the existence of Traditional leadership. As a consequence of this omission, it is submitted that this state of affairs is hampering the Houses of Traditional Leaders in making their informed inputs to Parliamentary Portfolio Committees, since they rely on newspaper advertisements, thus disabling them from presenting well researched submissions on particular subjects affecting traditional leaders due to stringent deadlines.

The submission further proposes an amendment of the Constitution to recognise traditional authorities as local government.

The other submission calls for the recognition of Khoisan as an indigenous nation entitled to a House of Traditional Leaders.


The Committee noted that there is a draft White Paper process from the Department of Provincial and Local Government underway, which provides opportunity for debate and the eventual formulation of policy on the issues received

13. Language Rights
1 submission received.

The submission proposes that the Constitution should recognise the existence or development of Sepulana as an indigenous language.

The committee does not support any amendments to the Constitution in this regard. The matter has, however, been referred to the Pan South African Language Board


14.Employee Rights
2 submissions received.

The complaint is about the Employment Equity Act, which is regarded as a form of an exclusion that is contrary to the word and spirit of the new Constitution. The Labour Relations Act and Bargaining Councils, extend concluded agreements to non-parties of the council.

The Committee does not support any amendments to the constitution in this regard.


15. Educational Rights
1 submission received.

The submission suggests that schools should provide food for learners.

The Committee does not support any amendments to the constitution in this regard.


16.Animal Rights
1 submission received.

The submission refers to the fact that there is no constitutional provision affording rights for humane treatment of animals and views it as a lacuna in the Constitution. It is suggested that this impacts on the way people view animals. It is therefore argued that legislation regulating the treatment of animals is insufficient. It is proposed that national legislation should create a realistic sustainable Act of Parliament and should provide for proposals outlined in the submission. (page 12 of the summary document)

The Committee does not support any amendments to the constitution in this regard.


17. Abolition of income tax
1 submission received.

This submission proposes amendments to the Finance Section of the Constitution.
It requests that sections 223-225 be replaced by the following:

Parliament should have the sole power to issue (create) money that will be debt and interest free.
The power to create money should be vested in a body similar to the Constitutional Court (Monetary Trusteeship) that should be appointed and monitored by the National Assembly.
This body, Monetary Trusteeship, should meet once a month to exercise duties of oversight over the monetary soundness of the state and the execution thereof, with the cooperation of the Minister of Finance, the Treasury and the Reserve Bank
A Price Index should determine the amount of money to be withdrawn and the total to be in circulation and be kept at a stable level to avoid prolonged periods of excessive abundance or shortage.
Additional money and money withdrawn from circulation should pay for state expenses and thus abolish the need to levy income and any person decided upon by the Minister of Finance and the Monetary Trusteeship.
Any other forms of taxation levied on citizens of SA should be abolished.
No debt, private or public, shall be enforceable at law.

The Committee does not support any amendment to the Constitution in this regard.


18. Submission on religion
1 submission received.

It is suggested that the Constitution needs a stronger religious approach. The submission proposed the inclusion of "Almighty God" in the Preamble of the Constitution.

The Committee does not support any amendments to the constitution in this regard.


19. Revision of the Constitution
1 submission received.

The following submission recommends unique revisions to the Constitution. The Constitution should be completely revised in the context of the state working towards a uniform State.


The Committee does not support any amendments to the constitution in this regard.


20.Laws to be subjected to Constitutional scrutiny
1 submission received.

The submission suggests that the Constitutional Court should subject every law passed by Parliament to scrutiny before it goes to the President for assent

The Committee does not support any amendments to the constitution in this regard.

21. Free Access to the Constitutional Court.
1 submission received.

The submission suggests that the Constitutional Court should be freely accessible to every citizen, without having to be represented by expensive legal counsel.

The Committee does not support any amendments to the constitution in this regard.


22. Submission from the Minister of Arts, Culture, Science and Technology

The submission raises problems experienced in the arts and culture sector regarding the alignment of legislative competencies in Schedule 5 of the Constitution.
Libraries: The Schedule specifies that "Libraries other than national libraries" are an exclusive provincial legislative competence. In practice and under the interim constitution, libraries are a shared provincial/local competence.

Museums: The Schedule specifies that "Museums other than national museums" are also an exclusive provincial competence.

Cultural matters: Schedule 5 specifies "Provincial cultural matters". This poses problems with management of community arts centers, theatres and other cultural facilities.

The Minister suggests that these are local community services and that service delivery would be improved if there were no legal impediments to a local authority's role in these activities.

Archives: the problems arise with the fact that whereas " archives other than National Archives" are exclusive provincial legislative competence, national records need to be kept in provinces for better management and better service delivery. It is also suggested that a shared competence would be more appropriate.

A decision on the matter was deferred, pending further investigation on the matter. The Committee is going to call a meeting with the Minister.


23. Interaction of the Joint Constitutional Review Committee with the public
26 submissions received.

The submissions suggested that there be interaction between the Joint Constitutional Review Committee and the public. The proposed interaction could vary from the personal hearings of evidence to Committee members visiting communities to inform them about the preparation of submissions.

The Committee noted that there is interaction in terms of inviting public submissions. The Constitutional Review Committee will determine through its programme ways of improving interaction with the public.

Appendix 3
PARLIAMENTARY INFORMATION SERVICES: RESEARCH
6 June 2003
Summary of Submissions to the Joint Constitutional Review Committee

BACKGROUND

Section 45 of the Constitution of the Republic of South Africa requires the National Assembly (NA) and the National Council of Provinces (NCOP) to establish a joint rules committee to make rules and orders concerning the joint business of the two Houses. This includes rules and orders to establish a joint committee to review the Constitution at least once per year.

Pursuant to this Constitutional mandate, Joint Rule 97 of the Joint Rules of Parliament establishes the Constitutional Review Committee, which must review the Constitution at least once a year. In terms of Joint Rule 102 the Committee must report on its review to the two Houses. To enable the Committee to execute this task, Joint Rule 102 empowers the Committee to:

Invite the public to submit to it written representations on any Constitutional matter.
Identify those Constitutional matters that it intends to review, taking into account any representations received in response to its invitation.
Consider all representations concerning matters identified by the Committee.

The following is a summary of the submissions received in response to an invitation for submissions during May 2003.

THE RIGHT TO A FAIR TRIAL
Submitted by BP. Ntema, MT. Ngwenya

Section 35(3) provides to every accused person the right to a fair trial. This includes, amongst others, the rights to:
Be informed of the charge with sufficient detail to answer it, section 35(3)(a).
Have adequate time and facilities to prepare a defence, section 35(3)(b).
Have their trial begin and conclude without unreasonable delay, section 35(3)(d).
Be tried in a language that the accused person understands.

It is recommended that these three sub-sections be amended by specifying the information that the accused is entitled to (i.e. the charge sheet and annexure to the charge sheet) and the time periods for preparation of trials and beginning and conclusion of a trial.

Furthermore, section 35(3)(d) should be amended to provide after the word delay, "or to have all their charges dropped if the 48 hours referred to in sub-section 35(1)(d) are not met".

Section 35(3)(k) should be amended to provide that an a accused must be tried in a language that he or she prefers.

THE PROSECUTING AUTHORITY

Submitted by M. Montesh, MT. Ngwenya

Section 179 provides for the establishment of a single National Prosecuting Authority for the country. However, this section does not legitimise the Scorpions. The actions of the Scorpions are thus unconstitutional.

Section 179(5)(d) gives the National Director of Public Prosecutions discretion to review a decision to prosecute or not to prosecute after consultation and taking representations from the accused, the complainant and any other relevant person. It is recommended that this provision be amended to make it compulsory for the National Director to review decisions to prosecute or not to prosecute.

THE POLICE SERVICE

Submitted by M. Montesh

Section 205 provides that the national police service must be structured to function in the national, provincial and, where appropriate, local spheres of government (municipal policing). Having a police structure at local level is a waste of resources and results in a duplication of functions. It is thus recommended that this provision be amended so that the structure at provincial or local level is scrapped.

THE RIGHT TO LIFE

Submitted by NK. Govind

Section 11 guarantees to everyone the right to life. It is recommended that an exception be created to this right, by adding the words, "except when one is found guilty of having taken the life of another person". Thus, where a person is convicted of murder, he or she should forfeit the right to life, re-introducing the corporal punishment.

PROVINCES

Submitted by NK. Govind, MT. Ngwenya

Section 103 establishes the 9 provinces of the country. It is recommended that the section be amended to reduce the amount of provinces to 4 or 5. This may be done by joining or combining provinces, or by re-drawing the boundaries of provinces. This is necessary to:

Cut costs incurred in nine-fold by all the structures required by the Constitution (i.e. premiers, provincial administrations, legislatures, departments, etc).
Equalise the sizes of the population in provinces.
Make the provinces more or less equally economically viable.

Provincial powers are an unnecessary repetition of the powers of the President.

CROSSING THE FLOOR

Submitted by NK. Govind

Floor-crossing legislation should be amended so that a Member who crosses the floor at national, provincial or municipal level lose their seats when they cross over to another party instead of carrying the seat over to the other party.

PRINCIPLES GOVERNING NATIONAL SECURITY

Submitted by Economists Allied for Arms Reduction - SA , T. Crawford-Browne

Section 198 outlines the principles that govern national security in South Africa. Section 198 (a) provides that national security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. It is recommended that a complete reassessment take place of what constitutes defence and national security in South African circumstances.

PROTECTION OF RIGHTS AFFECTED BY SECURITY AND SECURITY RELATED LEGISLATION

Submitted by the Afrikanerbond.

Chapter 2 of the Constitution contains no explicit provision respecting the privacy of the individual in his or her home. Accordingly, it is proposed that section 12, which protects the freedom and security of the person, is amended by the following addition:

'(3) Everyone has the right to life and protection against exposure to violence, armed robbery, rape and uninvited access to his or her residence. Infringement of this right shall be deemed to be a very serious offence'.

CITIZENSHIP AND POLITICAL RIGHTS

Submitted by the Freedom Front.

Section 19 of the Constitution enshrines political rights. It is submitted that section 19(3)(a) is amended to enable adult citizens from outside the Republic the right to vote.

Submitted by Women Against Community Abuse (WACA).

The submission voices its concern regarding the position of refugees and legal and illegal immigrants. It proposes that section 8 of the Constitution specifically extend applicability of the Bill of Rights to refugees and immigrants, whether legal or illegal, and that such persons be entitled to receive any applicable state grants such as the disability grant or child support grant. The submission again mentions the rights of these persons in connection with the political rights contained in section 19 of the Constitution.

The submission proposes that the political rights contained in section 19 clearly define and regulate the practice of 'floor crossing'. In addition, it is submitted that section 19 addresses the political rights of cross-border persons.

EQUALITY

Submitted by the Freedom Front.

Section 9 of the Constitution enshrines the right to equal treatment and section 9(2) provides that certain measures may be taken to promote equality. The submission proposes that application of this section is restricted by insertion of the following:

'such measures may not discriminate or have any negative impact on any one born in or after 1985'.

Submitted by Women Against Community Abuse (WACA).

The submission proposes that section 9 concerning the right to equal treatment and prohibiting unfair discrimination on certain grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, be extended to recognise and regulate paralegals.

HUMAN DIGNITY

Submitted by Women Against Community Abuse (WACA).

The submission highlights the plight of disabled persons, especially children, who suffer further trauma at the hands of the courts when they are called on to testify about sexual abuse. Accordingly, the submission proposes that section 10 of the Constitution, the right to human dignity, be amended to make specific mention of physically and mentally disabled persons.

EDUCATION

Submitted by the Freedom Front.

Section 29 refers to educational rights and section 29(3) entrenches the right to establish and maintain independent educational institutions. The submission proposes that section 29(3) is amended by the proviso that the right is exercised at own expense.
Notwithstanding this, the submission appears to support the notion of state subsidies for such independent educational institutions set out in section 29(4) but proposes that this subsection is replaced with the following:

'The state shall not in granting aid and subsidies to educational institutions created in terms of subsection (3) discriminate against any such institution on the ground that it is under the management of a minority, whether based on religion, language or culture'.

The submission also proposes the inclusion of a new section:

'29(5) 'Subsidies for institutions in terms of subsection 3 will be determined by calculating a quota per pupil or student from the total allocation of state funds for education, which amount will follow the pupil or student to the institution that they attend'.

LANGUAGE RIGHTS

Submitted by the Freedom Front.

Section 6 of the Constitution recognises the official languages of the Republic and section 6(5) provides for the establishment of a Pan South African Language Board.

The submission proposes that the duty of the Board to promote and ensure respect for languages used for religious purposes under section 6(5)(b)(ii) explicitly include Latin.

The submission also proposes that the Board is further empowered by the following addition to section 6(5):

'(c) be empowered by national legislation to oblige national and provincial governments, as well as the private sector and organs of civil society to promote multi-lingualism'.

TRADITIONAL AUTHORITIES

Submitted by Women Against Community Abuse (WACA)

Although the Chapter 12 of the Constitution addresses the position of traditional leaders, the submission proposes that the role traditional leaders in local government needs to be addressed in terms of Chapter 7 of the Constitution which relates to local government.

SELF DETERMINATION

Submitted by the Freedom Front.

Section 235 is a general provision found in Chapter 14 providing for the right to self-determination. The submission suggests that the right to self-determination as manifested in the Constitution shall provide recognition of the notion of this right of any community sharing a common cultural or language heritage if so desired by that community. The proposal is as follows:

'235. The right of the South African people as a whole to self determination, as manifested in this Constitution, [does not preclude] shall provide, within the framework of this right, recognition of [the notion of] the right of self determination of any community sharing a common cultural and language heritage, if so desired by that community within a territorial entity in the Republic or in any other way, determined by national legislation'.

ARRESTED, DETAINED AND ACCUSED PERSONS

Submitted by Women Against Community Abuse (WACA).

The plight of mentally and physically disabled persons in negotiating the legal system is noted and, accordingly, it is submitted that section 35 of the Constitution, which sets forth the rights of arrested, detained and accused persons, should be amended to take these persons into account.

ANIMAL RIGHTS

Submitted by Animal Voice and Compassion in World Farming and The Humane Education Trust.

The submission proposes the inclusion of rights of humane treatment to animals within the South African Constitution. The submission calls for animals to be reclassified as "sentient beings" with 'intrinsic value' in the South African Constitution. The submission points out further that a number of countries such as Germany, Switzerland, Sweden, Serbia, The European Union and India have already granted basic constitutional rights to animals.

ENVIRONMENT (Chapter 2: Bill of Rights, Section 24)

Submitted by Economists Allied for Arms Reduction - South Africa (ECAAR-SA).

The submission focuses on the environment (Bill of Rights Section 24). A specific case study is used in the submission to highlight the consequences of an ammunition factory located in a residential area of one million people. In this instance, the focus of attention is on Denel: Swartklip, which is located between Mitchells Plain and Khayelitsha.

The focus of the submission encompasses the following:

The lack of adequate waste management is a problem throughout South Africa. There is no reason to believe that the South African armaments industry is an exception to the general pattern that armaments and military operations combine to create an environmental catastrophe.
The impact of chemical exposure for employees of Denel as well as the neighbouring communities in Swartklip and Khayelitsha has resulted in high incidences of tuberculosis and respiratory diseases.

The submission maintains that section 24 is unambiguous regarding the environment and the rights of South Africans (that industry should not be harmful to either the health of workers or the wider community).

The submission provides no concrete amendment to the Constitution regarding environmental rights, Section 24 (Bill of Rights), but rather calls for an intervention strategy to address the problems mentioned above.

PROPERTY (Chapter 2: Bill of Rights, Section 25)

Submitted by Tshwane Late Land Claims Forum.

The submission calls for a deletion of section 25 (subsection 7) of the Constitution of the Republic of South Africa (Act No. 108 of 1996). Subsection 7 states that:

A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

The submission also proposes a revoking of paragraph (c) of subsection 1 of section 2 of the Restitution of Land Rights Act (No. 22 of 1994).

Chapter 1, Section 2 reads as follows:

2 Entitlement to restitution

A person shall be entitled to restitution of a right in land if -

he or she is a person dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or
it is a deceased estate disposed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; or
he or she is the direct descendant of a person referred to in paragraph (a) who has died without lodging a claim and has no ascendant who -

is a direct descendant of a person referred to in paragraph (a); and
has lodged a claim for the restitution of a right in land; or

it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past discriminatory laws or practices; and
the claim for such restitution was lodged not later than 31 December 1998.

The submission argues for the deletion and revoking of the aforementioned sections based on the time-frame (300 years) utilised by the colonisers to appropriate land from the indigenous peoples of South Africa. In using the above argument, the submission claims "it is therefore improper for the Parliament and Cabinet to mandate the Minister of Land Affairs and Agriculture to solve the land question within three years, that is, from 1995 to 1998. This clause must be revoked".

Submitted by the South African Constitutional Property Rights Foundation (SACPRIF).

The submission recommends the following revisions (in bold) to section 25 of the Constitution:

Section 25(3)(d) to read as follows:

The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the value created thereby, as compared with the value created by individuals, and the purpose of the expropriation.
The amount by which the property owner is relieved of conventional taxes.

Section 25(4)(b) to read as follows:

Property is not limited to land, and
Private possession of land entails the obligation to pay the rent of land in its unimproved state to the community as compensation for the publicly provided benefits received by virtue of exclusive occupation.

Section 25(5) to read as follows:

The state must take reasonable immediate legislative and other measures, within its available resources, (such as a new clause 10) to foster conditions which enable citizens to gain access to land on an equitable basis and within a period of (say) two years.

An addition to section 25(10) should read as follows:

(1) Notwithstanding anything contained in this Act each and every
South African shall continue to have a right to the exclusive possession and use of their property. Possession and use of land and natural resources shall therefore be conditional on the payment to society of the rent that is created by the investments of the community, and by virtue of the natural qualities of the location.

(2) Primarily, and as far as possible, government shall defray the
cost of public services out of these rental or royalty payments. Conventional Taxes can therefore be substantially reduced.

The public services shall be accessible to everyone, thereby ensuring equal enjoyment of the benefits from the rents that are generated by the land and natural resources of South Africa.

Indeed this also gives a new and concrete meaning to the Preamble
"South Africa belongs to all who live in it". That is that South Africans own the Royalties that attach to all land and natural resources in undivided shares.

COMPOSITION OF THE NATIONAL COUNCIL OF PROVINCES

Submitted by the National Council of Provinces (NCOP).

The NCOP proposes that section 61(2)(b) and section 62(3)(b) of the Constitution be amended.

Section 61(2)(b) provides that if the composition of a provincial legislature changes on account of, amongst others, party membership or mergers between parties in that legislature, it must within 30 days -

determine, in accordance with the national legislation, how many of each party's delegates are to be permanent delegates and how many special delegates;
appoint the permanent delegates in accordance with the nomination of the parties (section 61(2)(b)).

Section 62(3) provides that permanent delegates are appointed for a term that expires (a) immediately before the first sitting of a provincial legislature after its next election or (b) on the day before the appointment of permanent delegates, in accordance with section 61(2)(b)(ii) takes effect.

The NCOP notes that the effect of section 62(3)(b) is that where there are any changes in a provincial legislature, in terms of section 61(2)(b), all permanent delegates including delegates whose parties were not impacted on by the changes arising from the crossing of the floor in the provincial legislature, lose their membership in the NCOP. As a result, the House has to reconstitute itself each time there are changes in the composition of the provincial legislatures.

It is thus suggested that the Constitution clearly provide that:

it is only those permanent delegates whose party's composition is impacted on by the floor crossing in provincial legislatures, who should lose their membership of the NCOP and not all permanent delegates from a provincial legislature that has had its composition changed as a result of the crossing of the floor.

Submitted by K.D.S. Durr, MP (NCOP).

The submission requests that the impact of the crossing of the floor legislation and related law on the NCOP should be considered.

CENTRAL BANK

Submitted by Economists Allied For Arms Reduction (ECAAR-SA), Terry Crawford-Browne.

Section 224 of the Constitution refers to the primary object of the South African Reserve Bank, which is the central bank of the country. It reads that the primary object of the Reserve Bank is to protect the value of the currency in the interest of balanced and sustainable economic growth in the Republic. It further states that in pursuit of this, it must perform its functions independently and without fear, favour and prejudice, but that there must be regular consultation between the Bank and the Cabinet member responsible for national financial matters.

The submission raises several concerns that go against the above provisions. These are:

The Reserve Bank is privately instead of State owned with some 630 shareholders from the mining and finance industries, which have undue influence over the Bank. This violates the constitutional requirement that the Reserve Bank must perform its functions without favour.
The Reserve Bank continues to subordinate the welfare of the majority of South Africans to that of the special interests groups that benefit from policies favouring both a depreciating currency and high interest rates. This is evident through the Bank rate of 13.5% as opposed to the central bank rate of 1.25% in the USA and 2.5% in Europe. High interest rates imply high risk and destroy small businesses that are the core of a prosperous economy. This results in rising unemployment and 'shantytowns around our cities'.
During the Truth and Reconciliation Commission's business hearings, the Banking Council acknowledged that South African banks had, during apartheid, failed to acquire wealth for the benefit of society. They thus pledged to remedy this. However, they continue to show a lack of social commitment. For example, the 17% mortgage rate is extortionate and is intended to entrench the divides between the rich and the poor.
The Reserve Bank is not adhering to the provision of 'protecting the value of the currency in the interest of balanced and sustainable economic growth'. Instead, depreciation of the currency is pursued as a means of export promotion.
The Reserve Bank's authority to South Africa's flagship corporations to transfer their domiciles overseas. This signals that South Africans have lost faith in their country and dramatically increased capital outflows by way of dividend payments. A connection can be made between capital leaving the country and the collapse of the Rand. Repatriation of these assets for development of South Africa would transform the country's socio-economic circumstances and would also provide sufficient foreign exchange reserves to underpin the Rand and forestall future speculative attacks against it. It would also result in a reduction in interest rates, thus enabling economic growth toward the eradication of poverty.

The Exchange Control Act of 1961 could offer the mechanism to enforce repatriation of those assets. The transfer of domicile can still be reversed, if necessary by litigation in Europe and the USA. The exchange control department at the Reserve Bank should be able to confirm the extent of South African foreign assets held by dominant corporate groups including Anglo American Corporation/De Beers, Gencor/Billiton, Liberty Life, Old Mutual, Remgro/Richmont, SA Breweries, and Sanlam.

Submitted by Mr. V.V. Nhlabati.

The suggestion is made that the Central Bank provides accessible information on its financial affairs to the previously disadvantage communities. e.g. information on personal loans for Black Economic Empowerment.

ACCESSIBILITY OF INFORMATION

Submitted by Mr. V.V. Nhlabati.

The submission recommends that:

The Constitution be available in all South African languages and be accessible to all citizens.
The Bill of Rights be available in all languages.
Ordinary Bills affecting provinces be accessible.
Citizens are informed of election procedures.
National and Provincial Cabinets' responsibilities be transparent.
Information on taxes is understandable.

PROCUREMENT

Submitted by Economists Allied For Arms Reduction (ECAAR-SA), Terry Crawford-Browne.

Section 217(1) of the Constitution states that 'when an organ of the state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so on accordance with a system which is fair, equitable, transparent, competitive and cost-effective'.

The submission contends that the arms deal violates section 217 and is therefore unconstitutional. The ECAAR-SA is engaged in litigation against government to cancel the arms deal. According to the submission, public announcements on the arms deal stated that the procurements would be 'affordable' because the expenditures of R30 billion equivalent would be 'offset' by foreign investments and exports worth R110 billion, creating 64 165 jobs.

In accordance with the Department of Trade and Industry's Industrial Participation Programme, offsets are required for all foreign procurements in excess of US$10 million. However, as stated in the submission, offsets are prohibited in terms of Article XVI of the WTO Plurilateral Agreement on government procurements. The submission argues that offsets are 'notorious for market distortions and for opportunities of corruption' (p.2). It thus argues that the arms deal has highlighted the fraudulent nature of offsets and that they do not comply with section 217.

Another example is seen in the acquisition of the new aircraft by South African Airways. The intentions are to leverage government procurements to fast track South Africa's economic development. However, inappropriate equipment is being purchased at inflated prices.

International literature (2 submissions included) finds that offsets are inappropriate either for military procurement or for economic development. Offsets are impossible to monitor and opportunities for corruption is rife. Furthermore, the offsets do not meet the basic values and principles governing public administration as set out in section 195(1). It is said that the requirement of transparent and accountable public administration is transgressed when Members of Parliament are prohibited from obtaining details of offset contracts.

In light of the above, the submission seeks a directive from the Joint Constitutional Review Committee to the Department of Trade and Industry that offsets are incompatible with constitutional imperatives in terms of
section 217.

List of Submissions


Afrikanerbond
Animal Voice and Compassion in World Farming and The Humane Education Trust
B.P. Ntema
Economists Allied for Arms Reduction - South Africa (ECAAR-SA)
Freedom Front
K.D.S. Durr, MP (NCOP)
M. Montesh
M.T. Ngwenya
Mr. V.V. Nhlabati
N.K. Govind
National Council of Provinces (NCOP)
Tshwane Late Land Claims Forum
Women Against Community Abuse (WACA)

[C:Document\Word\Joint Constitutional submisions fnl.doc]

Appendix 4
Annexure B: Constitutional Literacy Campaign

1. GCIS
Inline with its mandate to provide leadership in government communications, the Government Communication Information System assisted the Constitutional Review Committee with the development of a communication framework for a constitutional literacy campaign during May 2001. GCIS was involved in a series of discussions and also made a presentation of the Communication Strategy to the Constitutional Review Committee during May 2002.

GCIS has indicated that implementation of this campaign should be driven by the lead department viz, the Department of Justice and Constitutional Development. GCIS can only play a supporting role in this campaign.


2. Public Education Unit of Parliament

The Public Education Unit responded by offering a Radio campaign, which was highlighting the importance of the Constitution and its review to the public. The literacy campaign was flighted on 14 SABC radio stations and covered 11 languages in all provinces. The flighting took place on Thursday 17 October and Friday 18 October 2002. It consisted of
60 seconds interview with the Committee Chairperson, Adv SP Holomisa
60 seconds docu - drama
45 seconds infomercial
Inclusion in PEO's 3-minute magazine programme.

Posters & pamphlets

The Public Education Unit undertook to produce posters and pamphlets that would be distributed to all constituency offices, members, libraries, trade unions, academic institutions, provincial legislatures and GCIS offices.

3. Public Protector.

The office of the Public Protector indicated that they are in a process of concluding a second national awareness campaign. In this campaign workshops were conducted in all provinces. During these workshops emphasis was placed on Constitutional rights of citizens and copies of the Constitution were made available to all delegates who attended the workshops. The project aims to create awareness of the role and services that this office offers through training members of the Public service, as well as NGO's and paralegals active in rural areas. The evaluation and feedback from delegates was very positive.

The Eastern Cape Regional Office conducted an intensive campaign throughout the province, covering remote areas and following the same method used for the national campaign.

In Mpumalanga there was a National Constitution Week called "Respect", launched and hosted by officers in the Mpumalanga Regional Office. Copies of the Constitution were distributed to members of the public.
There was also an arrangement by this office for flyers, setting out role and function of the Public Protector to be inserted into 60 000 Metrorail publications in Gauteng and 75 000 on the Western Cape, the target audience being the commuters. The office is also participating in the Constitutional Week media campaign, by advertising as well as providing editorial for the Independent Newspapers nationally.


4.South African Human Rights Commission

SAHRC has been involved in various activities to promote a proper understanding of the Constitution, especially the Bill of Rights. Some of the activities include the following:

The School essay Competition

This competition was established in 1997 and involves all the public schools. The purpose is to test the level of understanding of the Bill of Rights among school going age children and to create awareness of the provisions in the Bill of rights through essay writing on selected human rights themes.

Human rights week

Every year around 21 March the SAHRC embarks on a week - long campaign involving commissioners and members of staff visiting different areas around the country to give talks and hold discussions on various human rights, awareness raising and publicity of the SAHRC among the ordinary citizens of the country.

Human Rights Education and Training

In April 2001 SAHRC launched a National Centre for Human Rights Education and Training located at its premises. The center conducts on average of 18 workshops per month on various themes and for various beneficiaries. Since it was launched it has reached 19779 people through 282 workshops, seminars and presentations. The legal service department also engages in educational work through public hearings reaching a large number of people.
Timeously Commissioners are giving talks on various human rights issues in panels or to individuals. The center has implemented a roving "omnibus" training intervention focusing on the outer lying areas of the country.


Publicity materials

Every year the Commission develops and disseminates various human rights materials at no cost to the members of the public.

5. Department of Justice and Constitutional Development

The department has established a new sub-directorate that specifically deals with constitutional education matters.

Launch of the education strategy 11 november 2002.

The Minister, Dr. Penuell Maduna has launched a Communication Framework on the Constitutional Literacy Campaign at Nelspruit in Mpumalanga in November 2002. The document will be packaged and distributed among government departments and all relevant stakeholders countrywide.

Respect project

Mpumalanga has been choosen as a pilot site for an education campaign under "respect Project" which will kick-start in January 2003.

Respect is a specific project that the Department has adopted to spearhead the constitutional literacy campaign in the country. The project concentrates on promoting the rights of women and children while giving an understanding of basic constitutional concepts and other rights.

Schools and tertiary institutions

On an ongoing basis, schools and tertiary institutions in the country are being visited to educate pupils on their constitution Booklets such as "children's rights are cool" have been developed. On Human Rights Day the Department launched a Children' s rights book.
Consultations with all universities and technikons in the country took place between August and October 2002 where an exchange of information took place. A commitment was secured to infuse constitutional education into a formal programme of institutions.

Constitution week 21- 26 October 2002

The Department, together with GCIS sensitized government in respect of the start of the Constitution Week 21- 26 October 2002. Printed material on maintenance and children's rights was distributed to all the courts and other institutions.


Independent Newspapers supplement

The Department together with other stakeholders produced a supplement focusing on the constitution to be published in national newspapers.

Radio programmes

The Department has secured slots on various community radio stations and SABC regional stations educating the public on the constitution.


Constitution and the worker

Consultations with various trade unions took place between August and October 2002. The Department has developed and distributed among workers a new poster in this regard.

Printing the Constitution

The first print run of the constitutional pocket size books (450 000) was done early in 2002 and distributed countrywide to members of the public, government departments and other stakeholders.

The department is on the verge of placing the constitution on the website in all official languages.

The next print run will take place during the new financial year.

Mulayotewa

The Department has developed and printed a simplified version of the constitution called Mulayotewa. 20 000 copies were produced and distributed to the public.


Other projects:
There is a tender to educate government officials on the constitution underway.
Tender to hold workshops on the constitution with local and provincial government separately will be realized in the new financial year.
A Tender to educate all key political leaders on the constitution starting with local government, councilors, mayors, MEC's and other key leaders at National level will be released during the new financial year.
Arrangements and plans with the Department of education to include Constitutional Education in the syllabus for grades 1 to 6 on an incremental basis are underway.
The development of learning material for schools curricula for grades 1 - 6.

Appendix 5
REPORT ON PUBLIC SUBMISSIONS 2003

JOINT CONSTITUTIONAL REVIEW COMMITTEE
· The advertisements for public submissions on sections of the Constitution started appearing on National Newspapers from the 04^th of May 2003 to the 09^th of May 2003.
· Since the 01^st of May 2003 was a Public Holiday and the Weekend Newspapers had to be used, the advertisements could not appear from the 0l~~ of May 2003.
· The Newspapers used were:
1. The Sunday Times (04/05/2003)
2. The Rapport (04/05/2003)
3. The City Press (04/05/2003)
4. The Business Day (06/05/2003)
5. The Sowetan (06/05/2003)
6. The Mail&Guardian (09/05/2003)
· The Newspaper advertisements have cost the Committee: R49, 202.40
· The Radio advertisements were broadcasted on the week of the 12^th May 2003.
· The nine African languages Radio Stations were used in order to reach the people in the rural areas, who had no access to Newspapers.
· The Radio advertisements have cost the Committee: R29, 630.39
· The first public submission was received on the 07^th of May 2003.
· 28 public submissions were received from 13 submitters
· The Chairperson suggested that copies of the advertisement for submissions be circulated to
all Members of Parliament.
· This year's decreased number of public submissions can be attributed to the fact
that there were not enough copies of the Constitution in circulation. -
· There were a number of calls made to the Secretariat to request copies of the Constitution.
Including a call from the GCIS in Johannesburg.
· The Justice Department informed the Secretariat telephonically that they would not be able to
print copies of the Constitution in time mainly because of shortage of funds for this purpose.
· The Secretariat adives the GCIS, in Johannesburg, to get a copy of the
Constitution from the Government Printers and make copies for distributior
· The Committee is, however, not responsible for the printing and distribution of the
Constitution.