Review of Section 25 of Constitution: draft Committee Report

Constitutional Review Committee

01 November 2018
Chairperson: Mr M Maila (NA); Mr L Nzimande (NCOP)
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Meeting Summary

Draft Committee Report not availabe to public

The Constitutional Review Committee met to review the draft report on the possible review of section 25 of the constitution. The working document outlines the methodology that was used to elicit views from the public on the review of section 25, the summary of public submissions and the observations.

The Committee examined the report to determine the content was what happened on the ground. Members were given the opportunity to make additions and subtractions to the report. On the methodology employed, concerns were raised whether public was given the opportunity to express their views in their own language. While some members agreed that translations were made where necessary, other members pointed to incidents where some submitters were not allowed to express themselves in their preferred language.

Frustrations were voiced about the lack of a proper report on the content of the written submissions. The Committee had rejected the report by the service provider and requested another report from Parliament. However, the report has not yet been presented to the Committee. While some members blamed the service provider for lack of the report on written submissions, others highlighted the fact that all members had been invited to visit the store room and examine the written submissions. Members had to fulfill the constitutional obligation to apply their minds. Due the large number of submissions, it was suggested they examine a sample of about 40 submissions and satisfy themselves that they had a fair idea of the views of South Africans based on the sample. A concern was raised about the repetition of the same submission by certain organisations who wrote one letter and copies of the letter were submitted with different IDs and signatures.

Members also made corrections to the document to ensure that the report was not misleading. For instance, members requested that the phrase “Members of the public” should be replaced by “Some members of the public” to reflect what really happened on the ground. 

Meeting report

Opening remarks
The NCOP Co-Chairperson, Mr L Nzimande (ANC), noted that after the marathon and heavily intense public participation processes that had been undertaken, the Committee would review its draft Committee Report. The working document is crafted out of three processes. These include the public hearings, the oral presentations, and the written submissions. The working document is an attempt to put the content together to enable members to navigate through it and to come to the question of what they were asked to do in February and March 2018. That is to consult the public and to elicit their views on the possible amendments to section 25. The hope is that when the Committee starts to enrich the working document, it will understand that it is enriching a document that must be appropriate and relevant to the question and the mandate of the Committee. The mandate of the Committee is to determine the desirability of amending the Constitution. Members will therefore engage amongst themselves through the Committee to conclude on that desirability.  

Committee Report on review of Section 25 of Constitution: deliberations on working document
The NA Co-Chairperson, Mr M Maila (ANC), asked the Committee to provide suggestions on how the Committee should engage with the report.

Mr M Filtane (UDM) suggested that for members not to expose themselves to possible accusation that thorough attention was not given, each page should be put on the screen then members can comment. This way, no one could say that there was a valid point on a certain page that was not given due attention.

The Committee agreed to this suggestion and worked through the Report page by page

Page 5
Ms T Mbabama (DA) referred to “where required, the reading of section 25 was translated in the preferred language”. She asked if that is what truly transpired. Where people told of this?

Mr V Smith (ANC) responded that he could not give the answer for the coastal hearings; but for the inland hearings, where it was requested, it was done. It was not always done but it was done on request.

The Chairperson (NA) added that at the coastal hearings as well, where it was required, it was done. Where it was not requested, it was not done.

Ms D Carter (COPE) said about the hearings in the coastal areas, that she attended every meeting and she had recorded all the meetings. The Committee gave a lengthy discussion and the Chairperson was very good. She suggested that the report should set out what transpired. The section of the Constitution was not read out; there was only a discussion on whether section 25 should be amended. Ms Carter said that there is the need to separate between the two because there is different thing that happened in the different groups. For example, the whole process of selecting people to speak in group A was totally different from the way it was done in group B. It was organised very well in group B. There is a need to separate what happened in the two Committees.

The Chairperson (NA) responded that the issue was about the translation of section 25. The report says that where it was required, the translation was made. He asked Ms Carter if she was ever at a hearing where translation was required, and it was denied.

Ms Carter said that translation was allowed, but the section 25 of the Constitution was not read out. That was a little bit worrying because a lot of people did not really know the depth of it. The point is that the processes that were followed in group A and the processes that happened in group B should be split because different approaches were used.

The Chairperson (NA) responded that the principle was one. Both groups had copies of the Constitution and had some translation where it was required. The principle was the same everywhere, so the process was not compromised. In some instances, where the section was required to be read, it was read. There were no inconsistencies in terms of the principles, but practically, there might have been different emphasis.

Mr S Swart (ACDP) suggested that “churches” should be included in the last paragraph. It should read, “The Committee received inputs from individuals, representatives of political parties, churches…”

Mr S Mncwabe (NFP) suggested adding the phrase “in their preferred language” to the sentence “All speakers were given at least three minutes within which to state their position, share their views and make proposals” to show that people were expressing themselves freely.

Mr D Ximbi (ANC; Western Cape) noted that the phrase “associations and other members of civil society in general” which means there were no groups of churches. They came there as members of the community. There was a specific group that identified itself as a church, but they were part of communities who represented themselves in that process.

Ms Carter said that it would be very dangerous to say that everyone could give a oral submission in their language. There were situations where members of the EFF would refuse to allow a person who wanted to speak in Afrikaans to speak. They insisted that he must do it in English or one of the other languages. At the end of the day, he tried in English, but he was humiliated. This happened in group B.

Ms T Mokwele (EFF) said that, as the report stipulated, there were emotions all over. Members could not deal with the emotions of people who had been invited. Everyone could express themselves in their own language. That was the general behaviour of members of the community. She suggested that, to cover everyone, the phrase “faith-based organisations” should be used. This is because there were churches, Muslims, and other church-based organisations.

Mr Smith said that there is no way every incident could be included in the report. The fundamental questions are, where there any South Africans who were disadvantaged from participating? The answer is no, whether it was in language or threat to their life. At the end of the day, every South African, who wanted to speak, spoke. That is the message that should be in the report. The isolation of certain incidents would lead to the report being filled with incidents. He suggested that, as it is, the report was fair and accurate.

Mr Swart said he was not sure if everyone was able to express their views in their preferred language. He was not sure how one captures those exceptions. In one case, there was no Afrikaans interpreter so one gentleman had to express himself in English and he really struggled. That is on record but does not really have to be contained in the report. That was an exception that occurred regrettably, but the Committee cannot contain and report every exception in the report.

Page 7
Mr Swart said that the section on written submissions was only a recording of the process. He suggested that the section should be flagged because it only indicates process. There is a sentence that says, “The information received through public call for submissions was managed by an external service provider after the closing date”. The Committee had expressed objections to the way the service provider had done its work. It would therefore be wiser to discuss the status of the report on the written submissions. At this stage it would be better to flag it as an issue that needs to be discussed.

Adv G Breytenbach (DA) said that at the meeting where the written submissions were going to be discussed. The Committee unanimously rejected that service provider report and the presentation never occurred. The Committee asked serious questions about the integrity of the service provider appointment process, who the company was, and how they got appointed. So there is no report on the written submissions, whatever those people did with the written submissions has no integrity. It was questioned by every single member of the Committee. Therefore, that report cannot be accepted by this Committee as having any integrity. The problem is what should be done now with those written submissions? The Committee has rejected the report and it has not received another report. The Committee has no information on the written submissions, and that is problematic.

The Chairperson (NA) clarified that what was rejected was the presentation and not the report.

Mr Filtane said he was present when the Committee looked at the chaotic presentation. The Chairperson announced that the submissions where in a third floor office at 90 Plein Street. Members were encouraged to go there on their own and spend as much time as they needed to look at them. The fact the service provider did not provide the Committee with a qualitative presentation, is neither here nor there. In terms of law, it is an immaterial fact. The service provider was just there to facilitate what members are supposed to do themselves as Members of Parliament. There is no need to point a finger at the perceived failure of the service provider.

Ms Mokwele added that it was reported that members were given a chance as political parties to visit the storeroom and make submission upon that. What needs to be recorded is that there were many submissions that were repetition. AfriForum, for example, wrote the same letter, saying the same thing, wording captured the same way, photo copying the same letter 500 000 times with different ID numbers and signatures.

Mr Swart said that there was no substance to what Ms Mokwele had just said. The criticism of AfriForum was unacceptable. The claim that they made 500 000 submissions was not correct. She needs to be cautious about casting aspersions on organisations that are not based on fact. He advised that the Committee should not isolate one organisation. All organisations made written submissions and came and made oral submissions.

Ms Mokwele replied that she might not have captured the number correctly, but it was a factual matter that was observed. One letter copied more than a number of times, with different signatures but same wording.

Ms Mokwele commented that everyone had agreed that the service provider must present, and the Committee must note the report. That was the resolution of that meeting. The Committee agreed and engaged with the service provider and after the meeting, everyone was convinced.

Ms A Lotriet (DA) said that she was at the meeting. It was correct that everyone unanimously rejected that report. In fact, members went out and had a separate meeting where it was said that the report was rejected, and Parliament was going to be requested to do a report on the written submissions. However, that had not happened. She added that it was correct that members were given the opportunity to go and look at the written submissions by themselves. But the Committee did not receive a presentation by Parliament.

Ms Mababama suggested that the Committee should just forget about the service provider. Political parties were required to go to some room and look at the submissions. This report is based on the report that was rejected that day.

Mr Smith said that when the Committee had the problems with the service provider, the Chairs directed the members to go and look at the submissions themselves and satisfy themselves about their content.

He suggested that if members see something in the report that was not in those submissions, then they should raise those issues. No one was denied the right to go and look at the submissions. If the facts are not correct in the report or can be disputed with what was observed, members should raise those concerns.

Mr Swart said that the matter relates to Committee members complying with the constitutional obligation to apply their minds to all submissions. The Committee had oral hearings and written submissions. Committee members were given the opportunity to access those written submissions. Every member of the Committee must apply their minds. Due to the large numbers of submissions, the Committee relies on a report. The service provider report was discredited in the last meeting where the Committee then asked for a parliamentary report to validate that report.

He added that it was correct that members were then given an opportunity themselves to go and access the written submissions which was difficult to do. There seems to be a dilemma in complying with the constitutional obligation to consider these written submissions. He suggested that the Committee should flag the issue and one needs to hear from the secretariat about the status of the report.

Mr Smith said that the Committee members should not leave the meeting with the impression that they did not apply their minds. There were more 400 000 written submissions. Even if members wanted to, they would not have been able to process all of them individually. Members took a decision to take a sample, of about 40 each, of those written submissions. He was satisfied, after considering a sample, he had a fair idea of what South Africans were saying in the written submissions. Some members have, therefore, applied their minds by the sample that was taken. It should not be said that the Committee did not apply its mind.

Mr Ximbi did not understand why the Committee was taking so much time talking about the written submissions and not about the oral submissions. It is about numbers. If it is about numbers, the majority of the country has spoken. A focus on the oral submissions will show that the majority have spoken about the Constitution. The people who submitted in writing are the minority of the people. Most people are disadvantaged and do not have emails and resources for writing submissions. That was why government decided to use both oral and written submissions.

Adv Breytenbach reminded the Committee that the written submissions, oral submissions, and public hearings all carry equal weight. Therefore, one cannot be regarded as more important than the other. The Committee must deal with all of them equally.

Page 8
Ms Carter asked for clarity on when the members will be able to get the submissions on email.

The Chairperson responded that they were on a 16GB USB which is available. However, the difficulty is that they cannot be taken away because the Committee cannot protect the editing right. He added that the Committee had requested the IT and Digital unit to upload the information onto a locked system to make it impossible to edit.

Page 10
Mr Swart said that the Committee had received a very extensive draft report on the public hearings. There is a lot of information which far more detailed as to the contents of what happened at the public hearings across the country. A lot of work was done on that report. It has 103 pages. He suggested that report should be attached to the annexure.

The Chairperson said that the Committee Report working document being discussed was meant to answer the question of desirability. It cannot have up to 10 000 pages because the Committee had received one million submissions. The records of activities on separate processes that were undertaken are there. The public hearings report is there, the written submissions report is there, and the oral presentation is there. With this working document, the Committee is to agree on its approach in response to its mandate to pronounce on desirability.

Page 15
Mr Filtane proposed that in 3.3.1, the phrase “Members of the public” should be substituted with, “Some Presenters”

The Chairperson agreed.

Mr Swart suggested that 3.3 should be renamed “Oral submissions based on written submissions” this is because they are separate from the oral hearings across the nation. These are only oral submissions that were based on written submissions.

Page 17
Mr Swart said that there is the need to add a general comment somewhere to say that the views in the report does not encompass every view that was expressed at the oral hearings across the nation, in the oral hearings at parliament and written submissions. The report is a summarised attempt to contain the views. Otherwise, people may ask why some views, under specific themes, were not included in the report. The report, it is not possible to contain all the themes and all the viewpoints.

Page 18
Mr Filtane was bothered by the sentence, “13% of land belonging to Traditional Leaders must not be expropriated”. Is it a fact that it belongs to them?

Ms Mbabama responded that it should state “under the custodianship”

Mr Swart proposed adding “historically” before “acquired” in the sentence, “Others argue that land was acquired through the occupation of vacant land, negotiations or a result of a conquest”.

Page 19
Mr Swart suggested an addition to 3.3.5 on Impediments to land reform. One of the issues that came up during the submissions before parliament was corruption in the land reform process. He suggested the bullet point, “Corruption in the land reform process” should be added.

Page 22
Ms Lotriet suggested a correction in 4.2 on Land reform from “members of the public” to “some members of the public”.

 Page 23
Adv Breytenbach suggested that throughout the report, the term ‘submitters’ should be replaced with ‘respondents’.

Dr C Mulder (FF+) noted that the first paragraph states that land should not belong to foreigners, it should belong to Africans. He asked if the Committee had a definition for Africans. He suggested that “Africans” should be substituted with “South Africans”.

Mr Mncwabe agreed that the term South Africans should be used. Otherwise, someone from North Africa could come and want to own the land and that would defeat the purpose.

Mr Filtane asked members to look at the context. The very first word of the sentence is “Submitters”. It is, therefore, not the position of the Committee. It is what the people said. However, the possibility is that the sentence might be misleading if it is put under Observations. There must be clarity on who the observations belong to. Is it the Committee’s observations or the observations of someone else? If the Committee admits that it is what submitters said, it would be wrong to change what they said. To try and understand what is meant by Africans is a separate matter and it can be dealt with separately.

Mr Swart said that the whole chapter on Observations contains the views of submitters. The observations are a summary of submitters and note the Committee. So there is no need to remove that word.

Page 25
Dr Mulder said that the Institute of Race Relations wrote a letter to the administration in which they said that all their submissions were declared unacceptable the first time around. They made it very clear that they would go to court if necessary to have that put in the right perspective. It is not clear if that has been done. There has been no report that deals with that specific issue. He challenged what was stated in 4.9 on processing the written submissions. It might be completely wrong. He added that he had never received a report that deals correctly with the written submissions.  

Mr Swart suggested that the whole paragraph in 4.9 should be deleted. This is because there is no basis to say that “a sizable proportion of these were cut and paste of a similar nature”.

Mr Swart said that in 4.10 on lack of security of tenure, one of the issues that came up was the lack of title deeds. He suggested that it should be reflected that there was dissatisfaction with the lack of title deeds both in urban and rural areas.

Closing remarks
The Chairperson (NCOP) said that the working document has two chapters: the observations of the Committee and the recommendations of the Committee on its mandate to determine the desirability based on the resolution of the Committee. The Committee has noted challenges with the written submissions and it was explained the Parliament IT and Digital Units are still working on uploading that information. The emails are available on USB but not available for taking and the secretariat has been instructed to continue making that available.

There are three reports – the public hearings report, oral presentations and the report that emanated from the service provider. These three documents are for the referencing and recording of the activities of one process. That process was to come to the determination of the desirability of amending the Constitution.

The meeting was adjourned


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