2016 public submissions: finalisation; 2017 & 2018 public submissions: consideration

Constitutional Review Committee

07 March 2019
Chairperson: Mr L Nzimande (ANC) & Mr M Maila (ANC)
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Meeting Summary

The Committee reviewed and put on record their decisions for all 67 submissions received from the public in 2016, six for 2017 and five for 2018.

Most of the recommendations and legal opinions received were adopted, except in some cases where the Democratic Alliance and the African Christian Democratic Party reserved their positions. The Committee’s decisions will now be sent to both Houses of Parliament for adoption.  Members were also informed that a draft of the Legacy Report will be discussed in their next meeting and they were asked to read it so that it could be populated.

Meeting report

Mr Nzimande welcomed Members to the meeting and said that in terms of the agenda the intention was to conclude on the 2016 submissions by effecting the considerations and decisions into record which would then be ready to be sent to both the Houses of Parliament for adoption. Now that no corrections will be made, he suggested that the 2017/18 submissions be the next item on the agenda while waiting for more Members to arrive before reverting to the 2016 submissions. 

Ms Sisanda Sipamla, Committee Content Adviser, said that the Committee would start by considering the 2017/18 submissions. They have been prepared in the form of a proposal and have been categorised into three sections, denoting whether they are ready for consideration as received, whether they require a legal opinion or whether they are not within the Committees mandate. Some of the submissions have been considered for legal opinion but since members have taken decisions on the subject matter, a legal opinion was not necessary. Some submissions also fell outside the scope of the Committee’s mandate.

2017/18 Submissions

Six Submissions were made in the 2017-year cycle of which two are ready for consideration, three requiring legal opinion and one deemed to fall outside the Committee’s mandate.

Five submissions were received in 2018 of which two have undergone consideration, two were proposed for legal opinion and one fell outside the scope of the Committee’s mandate.

Submission 1

The first submission received in 2017 was from Mr Peter Moikangoe and his submission deals with the preamble to the Constitution. He proposed that the Committee consider reviewing the preamble that reflects that South Africa belongs to all who live in it, changing it to reflect that South Africa belongs to all South Africans.  Members’ unanimously agreed that it was not necessary to amend it. 

Submission 2

The second submission was by Mr Silayi who spoke in relation to Section 6 of the Constitution. He proposed the insertion of a unit which will assist in the development of indigenous languages within the Constitution. This submission can be dealt with in the national legislation as this kind of specifics cannot be inserted into the Constitution especially this part of the Constitution which is in part 1 chapter 1 that requires a high threshold.

Mr K Mpumlwana (ANC) argued that language is very important to everyone. Afrikaans has been pushed to a corner and African languages in South African (SA) are not even being promoted. This emphasis is very crucial because SA has eleven languages but in theory only one language dominates. Here in Parliament all documents are printed in Afrikaans and English and he feels that accepting the submission and writing it into the Constitution will give some kind of push to promote African languages.

Dr A Lotriet (DA) did not agree with Mr Mpumlwana because this is an amendment to Section 1 which is the founding principle of the Constitution.

Mr N Swart (ACDP) agreed with the last speaker adding that the Sepedi language issue is still being dealt with from the 4th parliament and to tamper with Section 6 requires a high threshold. The Sepedi issue must be dealt with and finalised first before going into this submission. This could be referred to national legislation should there be a need to amend the Constitution.

The Chairperson reminded Members that the submission was not asking to amend the Constitution but the insertion of a unit. The Committee will communicate with the submitter and give the rationale outlining reasons for the decision undertaken by the Committee in their recommendations.

Submission 3

The submission calls for an effective national legislation for accountability matters detailing how it should be addressed and requesting the Committee to pass an accountability Act. This proposal falls outside the scope of the Committee’s mandate.  Members unanimously recommended that it falls outside its mandate.

Submission 4

This submission is from an AZAPO representative who requires a legal opinion although the Submitter agrees that the changes proposed to the Constitution will initially require amendment to various pieces of applicable legislation and regulations. Submission requests review of sections in Chapter 4 on Parliament through to Chapter 9 on State Institution Supporting Constitutional Democracy. The submitter admits that the changes being proposed can be done in national legislation. It was recommended that the committee not review the constitution and await the priorities of the new government to decide whether this highlighted legislation necessitate a review of the constitution. Members agreed that the submission necessitates a review of the constitution.

Submission 5

The submission by Boitumelo Boshupeng requested the Committee to review Section 25 cautioning against the radical change of this section to ensure that justice and fairness is restored. Members have taken a decision on this matter already but can decide if it demands a review of the Constitution.  Members agreed that a review of the Constitution was unnecessary.

Submission 6

This was a hand written submission requiring the Committee to consider enacting  national legislation namely the Traditional Leadership and Governance Framework. The issue requested is being dealt with in the Framework Bill B23 of 2015 which was considered by the NCOP and Government Cluster on 30 October 2018. Members maintained that a recommendation has already being taken on this matter.

2018 Submissions

Submission 1

This submission requested the Committee to review the amendment of the Act which prevents the issuing of title deeds for communal land and the repeal of the National Students Funding Aid. These fall outside the scope of this Committee because it asks for the repeal of existing laws and the review of national legislation which are all outside the Committee’s scope and mandate. The Chairperson maintained that the Committee is unable to review legislation but can only express the undesirability of it.

Submission 2

Mr Tembi Kosi asked the Committee to review Section 26(2) which provides that the state must take reasonable and other legislative means including available resources to achieve progressive realisation of the rights contained in Section 26. He proposes that the state take reasonable measures to provide service standards to equip people to build their own houses to actualise these rights. The Committee resolved that the insertion of service standard was not within its ambit.

Submission 3

Mr Vumile Dunjana did not reference any constitutional section but requested the Committee to look into strengthening of the socio-economic programmes for the youth in the township of Gugulethu in the Western Cape to eradicate drug use which he says compounds unemployment in the community. It was recommended that it falls outside the scope of the Committee but could be taken up by Members as it falls within the socio-economic rights in the National Development Plan. Members agreed with the recommendations given.

Submission 4

This submission requested a review of the preamble to the Constitution and for the removal of the word GOD in the constitution as he viewed this to be unnecessary in a Constitution that is in a secular state. The Committee received a legal opinion where it was acceded that the Constitution is not a religious neutral instrument and the Constitutional Court has also held that the invocation of a deity does not amount to the breach of the equality clause as claimed by the Submitter and therefore recommended that it does not warrant a review of the preamble. Members agreed with this assertion while the ACDP (African Christian Democratic Party) rejected this submission.

Submission 5

This submission requested the reinstatement of the death penalty and some amendments to the Criminal Procedure Act. The Committee took a decision that it is not necessary for the country to reinstate capital punishment. The majority of the Members agreed to the Committee’s position but the ACDP reserved its position. 

2016 Submissions

There were 67 submissions in 2016.

Submission 1

The Khoisan National Self Defense Unit avers that the Khoisan soldiers made up the 8th force which was excluded since the 21 April SANDF (South African National Defense Force) integration process. Members all agreed that this matter has already been dealt with by the Joint Standing Committee on Defense and does not require a review by this Committee.

Submission 2

This submission was made by Mr Shepherd Silayi recommending that Section (29(2) of the Constitution which guarantees the right to receive education in an official language be amended. Members all agreed that this matter has being thoroughly dealt with in the national legislation.

Submission 3

Mr Phoffa asked the Committee to review Section 25 which the Committee has already dealt with. He also asked that Blacks be taxed less than their White counterparts. He does not make  reference to which particular section should be reviewed, and that makes it difficult to process this submission. The Committee agreed that the Constitution could not be reviewed according to the recommendation of Mr Phoffa.

Submission 4

Mr Mthombeni did not cite any section of the Constitution but requested the Committee to look into the removal of the unlimited rights of criminals, who kill, rape, hijack and sell drugs with intent, and the transformation of the judiciary and the state to take action to stop hate speech. Because he did not cite the actual section of the constitution and did not mention how the Committee should review the Constitution, the Committee could not deal with the submission as it falls outside its scope and mandate.

Submission 5

Mr Dikwayi submitted that the Electoral System be reformed to allow for individual candidates to run for the presidential position during elections. The Committee has received a legal opinion that was against this proposal because the election of the President is linked to the concept of proportional representation and if accepted it will alter the proportional representative nature of the RSA’s current electoral system. The majority of the Members agreed to the recommendation received while the ACDP and the DA (Democratic Alliance) reserved their positions.

Submission 6

The submitter made references to land redistribution, spoke about offences of persons in office regarding treason and want the rights of convicted prisoners limited. The Committee agreed that the submission was vague with no reference to any section in the Constitution, made broad statements which could not assist the Committee, and some of the matters raised can be addressed in national legislation therefore does not warrant Constitutional review. Members all agreed to the statement.

Submission 7

Mr Chia-Hsiang Chu submitted that the right to vote be limited only to tax payers, wanted the reinstatement of the death penalty, and the removal of rights to vote  for inmates. The recommendation was that the submission is not in line with the Committee’s mandate. Members all agreed to the recommendation.

Submission 8

Mr Konya Pieter submitted that the Committee considers the reinstatement of the death penalty. It was recommended that the Committee does not have a mandate to call for a national vote or referendum on laws. Members agreed to the recommendation but the ACDP reserved its position.

Submission 9

Mr Goodman Luthili in his submission wanted the Committee to review the retirement funds legislation. The recommendation was that the submission is not in line with the Committee’s mandate. Members all agreed to the recommendation.

Submission 10

Mr Phil Melton proposed a review of the Constitution to amend it with an inclusion of a penalty for a conviction of a breach of the Constitution by the Constitutional Court. The recommendation was that this could be accommodated in national legislation and the Committee does not necessarily have to include affairs that speak to the consequences of breaching the Constitution as pronounced by the Constitutional Court. As a result, this submission does not justify a review of the Constitution. Members all agreed to the recommendation.

Submission 11

Mr Senhlwa Nelson Lekganyane proposed that the Committee should revive and review the Van Zyl Slabbert Commission on the Electoral Reform Report and also review mining laws. The recommendation was that this submission does not necessitate a review of the Constitution and can be catered for in national legislation. Members all agreed to the recommendation.

Submission 12

Mr Phillip Gonsalves requested a review of the powers of the President. It was recommended that no section was referenced and it does not assist the Committee with how this section needs to be changed.

Submission 13

Mr Fabian Makhanda wanted changes to the powers of the National Prosecuting Authority (NPA) in Section 179 (4), (5) (d) and (6). Legal opinion obtained states that the NPA  of South Africa has a history of autonomy from the Executive arm of the State, however Section179 envisages an independent and impartial NPA. Further, there is no justifiable basis in law to review the Constitution to amend Section179 for it to provide for independence and impartiality of the NPA as the latter is sufficiently provided for within the current Constitution and legal framework. The Majority of the Members agreed but the DA and ACDP reserved their positions.

Submission 14

Mr Senhlwa Nelson Lekganyane requested for the review of the right to protest in order to prevent the destruction to property. The Legal opinion was obtained and it stated that this submission does not necessitate a review of the Constitution and the right to protest to prevent the destruction of property can be dealt with in national law. Members all agreed.

Submission 15

Mr Kagiso Gabriel’s submission asked the Committee to review Section 1(2), Section 47 (a) (i), 48, 52(4), 55(a), 64(4), 83(b), 84(e), 89(1) (2), 91 (a), and 96 (b). A legal opinion was obtained which advised the Committee that regarding Section 1(2) the proposed amendment is already provided for in s2 and is unnecessary. Regarding the Section 47 the proposal was that Ministers be excluded from voting on matters of Parliament and only vote on matters concerning their portfolios. A Minister or Deputy Minister who is a Member of the NA has the same voting rights as other members, Section 53 sets out that decisions are to be taken in the NA, apart from Members presiding, and every member may on decisions before the House and this Committee is not in a position to make policy decisions.  Members all agreed to the recommendation.

Submission 16

Mr Rajesh Maharaj submitted that the Committee considers the review of the Electoral System. A legal opinion was received and it recommended that as no section was cited, the Constitution could not be reviewed. All the members agreed.

Submission 17

Mr Olefile Christopher Moiloa asked for a review of Review of Public Funding of Political Party legislation. This matter could be dealt with in national legislation and the Committee does not consider national legislation. Members all agreed.

Submission 18

Mr Phumudzo Nedzivhani submitted that the Bill of Rights should be reviewed and s 83 to 102 dealing with the President and the National Executive be considered. The legal opinion advised that it is not necessary to review the Constitution as was demanded by the Submitter.  Members all agreed.

Submission 19

Mr Matovheke asked for review of election of the President so that it is done by ordinary South Africans and not by the majority political party as is the case. A legal opinion was obtained which stated that this is not a policy decision for the Committee to make. Members all agreed to the legal opinion.

Submission 20

Ms Aadilah Meas asked for the addition of an Impeachment clause in the Constitution. A legal opinion advised that is not necessary to do so. Members all approved.

Submission 21

Mr Mengo Willson asked for the review of sec 239 to insert sub-section 1 (a) (b) and 2 (a) (b). A legal opinion stated that in accordance with the recognised international standard or South African legislative drafting style, the definition section is generally never numbered and is rather required to follow an alphabetic order when listing definitions for any legislative instrument. Members all concurred.

Submission 22

Mr Ntebo Morudu submitted a request for limited presidential power and for a non-partisan President. This submission fell outside the scope of the Committee’s mandate. Members agreed to the recommendation.

Submission 23

Ms Tessa Paulsen asked for the abolishment of the term ‘Coloured’, for the recognition of Mission stations established to shield indigenous groups from persecution; rectification that the Griquas are true Khoi; recognition of foreign marine records; rectification of history and recognition of the Khoi history. Policies must be implemented which allow the independence of cultural organisations from political parties. The recommendation was that no section was referenced. Members agreed and added that the word ‘Coloured’ is not mentioned anywhere in the constitution.

Submission 24

Mac Oswald’s submission lacked any format or section and it is therefore difficult for Members to consider. Members all agreed.

Submission 25

Elsa Post’s submission did not reference any section. The recommendation was that this proposal not be considered due to it not being a proposal for review of the Constitution but is rather a list of comments. Members all agreed to the recommendation.

Submission 26

Mr Mukhavela’s submission was with regard to Section 179 on the appointment of the National Director of Public Prosecutions. He proposes that the section be amended to provide that the position be filled through conventional recruitment processes. The Submitter states the unfairness of judges being subject to a public interview and not the NDP, and is of the view that this will strengthen the independence of the NPA and avoid political interference. A legal opinion was obtained which stated that there was no justifiable basis in law to amend s179 and 188 of the Constitution. The majority of the Members concurred with the opinion but the DA and the ACDP reserved their positions.

Submission 27

Jesse Greaves’s submission was aimed at enhancing public participation and allowing for MP’s to be in direct contact with their Constituency. In this regard she had requested for a review of s 46 (1) (d) to allow for proportional representation and a constituency representation in the National Assembly. The legal opinion provided stated that this did not necessitate a review of the Constitution. The majority of the Members concurred but the DA and the ACDP reserved their positions.

Submission 28

Ms L V Sizani asked for reviews to s 196 (4) (f) (ii) & s 196 (4) (d) and for a framework for the Public Service Commission for the investigation of labour related grievances by former public service employees. The legal advice is that after thorough consideration of the provisions proposed for review in line with the 2nd Certification Judgment, it is apparent that the Submitter misconstrued the content of s196 of the Constitution. It is the legal view that s196 does not need to be amended. Members all agreed.

Submission 29

Mr Green requested that a retired judge assist in the appointment of Chapter 9 office bearers not the President. The Speaker ought to be non-partisan. Secret ballot votes ought to be permitted so that MP’s could vote with their conscience. The recommendation was that no section was cited as there was only a narrative request and the Committee has no mandate in this regard. Members all agreed.

Submission 30

Ms Thandi requested a review of Section 25 (7) that deals with Land Rights. Due to the little progress made a review of this section and relevant national legislation is necessary. The Committee has already dealt with this section and it is ready for consideration. Members agreed.

Submission 31

Sydney Mitchell’s personal views were that the Constitution has failed citizens and recommended for Constitutional reform that is focused on; Public Office bearers ought to resign immediately upon being found contravening the Constitution. When political organisations are found to have contravened the Constitution, the party ought to be forced to hold general elections. The recommendation was that no section was referenced and the Committee has no mandate to effect these changes.

Submission 32

Mr Moatlhodi submitted recommendations for Constitutional reform focus areas. He proposed the reduction in the number of provinces in order to reduce duplication and impact on the resources thereby making service delivery more effective. The recommendation was that no section was referenced and the Committee has no mandate to do this. Members all agreed.

Submission 33

Mr Michael James asked for a review of Section 20 and that no citizen may be deprived of citizenship. No natural born citizen may lose or be deprived of citizenship. This proposal can be cured in national legislation and does not necessitate a review of the Constitution. It should also be referred to the Portfolio Committee on Home Affairs. Members all agreed.

Submission 34

Mr N Winser made recommendations for Constitutional reform focus areas; requests for a legal definition of personhood be given to an unborn person; request for a legal definition of marriage be regarded as between a naturally born man and naturally born woman; and recognition of the Khoi and the San as the first people of South Africa. This submission can be catered for in the relevant national legislation and does not necessitate a review of the Constitution. The majority of the Members agreed but the ACDP supported the sentiments of the Submitter.

Submission 35

Mr Jorge Martins wanted a review of Sections 42 to 82 in Chapter 4 on Parliament and Chapter 5 on the President and National Executive from Sections 83 to 102. He submitted that they encroach on the separation of powers, and the election of heads of the majority parties and the President ought to be different individuals. The recommendation was that the submission does not necessitate Constitutional review of the sections proposed. Members agreed that the submission was not desirable.

Submission 36

Motlhaping wants Section 35(3) k to be amended to read: ‘to be tried in one of the official languages of the Republic of South Africa, if not practicable, to have the proceedings interpreted in one of the official languages’. The legal opinion obtained stated that the state already pays high costs  for foreign language interpreters for a fair trial but that national legislation be strengthened to support the assertion made by the Submitter. Members concurred.

Submission 37

Sylvester Finger submitted that the Constitution ought to permit citizens to elect the President and not have one imposed by the political party. The recommendation was that no section was referenced and the Committee has no such mandate.

Submission 38

Kgosiemang Esau recommends a minimum governance structure to strengthen weak governance structures.  It was recommended that no section was referenced and the Committee has no such mandate.

Submission 39

Adv. Nathaniel Masemola submission was with regard to official languages:  He asked for Sesotho   to be replaced by Sepedi in Section 6 (1).  With regards to the current status of provinces:  the boundaries of provinces which coincide with the former Bantustans ought to be abolished as they are a waste of state resources. Members agreed that this matter is sensitive and not desirable for now but should be written into the Legacy Report for the next Parliament to deal with. 

Submission 40

Phakamani Dlamini requested that land be expropriation without compensation. The Committee has dealt with this matter but the way it was written without referencing and any section ensured that it fell outside the Committee’s mandate. Members agreed.

Submission 41

Mr K Maibelo refers to Section 86 (1) on the Election of the President; and Schedule 3 on Electoral Procedures Part A (1) (a). He requests broader Constitutional reform and a reform of the Electoral system that calls for the election of the President to allow the electorate to elect a head of state and his deputy. The Committee is advised that it is not legally correct to for the Submitter to argue that the provisions reflected in Section 86 pertaining to the President are unsound for not aligning with the Freedom Charter. It is however a policy decision for the Committee to take on whether some considerations reflected in the Freedom Charter were reflected in the Constitution through an amendment. Members concurred.

Submission 42

Henry Isaacs (SAHRC) requested a reform addressing the following: Identify Khoisan people as the highest people. Sole government for the Khoisan with a Constitution for their territories with Parliament made out of Khoisan tribes. The recommendation was that no section was referenced and therefore this request falls outside the Committee’s mandate.

Submission 43

Kwena Matuba and supported by 10 others listed on the submission regarding  Section 11 Right to life and Section 29 (1) (a – b) Right to Education. They requested a review of the Equality clause, regarding the State not discriminating on the grounds of pregnancy; and (marital status/sexual orientation). The recommendation was that the submission does not necessitate a review or amendment of the Constitution as concerns raised and proposal made is provided for by Constitutional Court rulings and relevant national legislation. Choice on Termination of Pregnancy Amendment Act No.1 of 2008 and Civil Union Act 17 of 2006, the Constitutional Court already covers the contents of the submission. The majority of the Members all agreed but the ACDP supports the sentiments and reserves its position.

 

Submission 44

Raesibe Priscilla Mahapa and supported by 4 others referred to s 27 (1) (a) right to reproductive health care and requested a review of social grants pertaining to the number of children in order to reduce cost to government. They also request to give a full social grant for the first child and a limited social grant for any children thereafter. The recommendation asserts that as it pertains to Social Grant law, it can be addressed in national legislation such as the Social Assistance Amendment Act 5 of 2010 and related laws. This submission does not necessitate an amendment of the Constitution. Members all agreed.

Submission 45

Koeiva Dinyake and supported by 4 others submitted a request for review of the section on religious observances to include a government institution which is to hire religious leaders who can be assigned to schools in order to improve moral behaviour of students and manage religious practices. This submission does not necessitate an amendment of the Constitution and can be addressed in the national legislation assigned to schools in order to improve moral behaviour of students and manage religious practices. The majority of the Members all agreed to the recommendation but the ACDP reserved its position.

Submission 46

Khomotso Komepe representing a Youth Organisation requested for the review of matters pertaining to a pay point shelter for old people, right to service delivery, lack of health care resources, delayed arrests, and gender based violence. The legal opinion obtained stated that although the Submitter makes reference to basic values, the submission itself does not give guidance of the specific drafting for the Committee to address and consider through its review process. As such this request is advised to be outside of the Committee’s mandate. Members agreed.

Submission 47

Phuff Herbert Dirhoba supported by 15 others opined that sex work must not be allowed and the Judicial System must be transformed. Section 15 (1) freedom of religion, belief and opinion were cited by the Submitter as the basis of their submission. The recommendation obtained states that although the Submitter makes reference to Section15 as a basis for the review request, the submission does not give the guidance of the specific drafting required to cure the discrepancy of this section in way substantially sufficient for a review of this section to take place.  As such this request is advised to be outside of the Committee’s mandate. Members all concurred.

Submission 48

Maskwameny Raisibe Welhemina supported by 11 people submitted that Section 9(4) National legislation must be enacted to prevent or prohibit unfair discrimination on one or more grounds in terms of subsection (3) :-including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscious, belief, culture, language and birth. Recommendation was obtained that stated that; there is no indication or guidance on what was defective and requires curing through a review process. This proposal does not necessitate a review of the Constitution. Committee Members all agreed.

Submission 49

Abia Nkogeng supported by 13 people submitted that the number  of provinces be reduced to 5 in order to provide more centralised services and jobs by building more schools, libraries and increasing the old age grant. Legal opinion obtained stated that the Constitution makes provision for the amendment of the provisions pertaining to provincial boundaries in Sections 103(3) and 74.There is no statutory prohibition to the proposal and  it remains a matter requiring political engagement . Members unanimously agreed.

Submission 50

Ramara Phuti Nelson’s request was for the review of the number of provinces and reducing them in order to provide services to all villages. Legal opinion obtained stated that the Constitution allows for amendment of some of its provisions.  Section 103(3) facilitates the amendments that deal with provincial boundaries sufficiently. Members all agreed.

Submission 51

Ikeraam Korana submits a rejection of the entire Constitution on the basis of legitimacy allegedly in violation of international laws and treaties. Recommendation stated that no section was referenced and therefore it falls outside the Committee’s mandate. Members all agreed.

Submission 52

*Same as submission 39*

Submission 53

Tshepiso Magano submitted that the omission of discrimination on the basis of class within the Equality Clause, infringes on Section 10 on Human Dignity. Due to lack of access applicable to previously disadvantaged groups this omission renders the Constitution non-inclusive to the majority of people of this country who have had their class fate decided for them by a system that is still being corrected. Legal opinion obtained  states that the Committee was briefed with advice that the Constitution as is and that the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and various applicable judicial decisions sufficiently provide for the Submitter’s  proposed concerns for review. Members all agreed to the legal opinion.

Submission 54

Foundation National Restoration asked for the introduction of a Ministry of Indigenous Affairs set up for the Foundation Nation within the Constitution, as a Chapter 12A, entity. The Committee was advised that there is no need to amend the Constitution to make provision for the category of people mentioned under the Foundation Nation Restoration network, as the Constitutional court has confirmed on numerous occasions that Chapter 12 of the Constitution recognises all traditional authorities established in terms of South African Customary Law. Members all agreed with the recommendation.

Submission 55

Mmusi Maimane, Leader of the Democratic Alliance, asked for a review of the omission of the Clause which allows for impeachment of the President where the Constitutional Court rules that there are grounds to do so in Section 89A; Cessation of the Term of the President where The President ceases to be President if he or she has been found by the Constitutional Court to have –

  1. Violated his or her oath of office;
  2. Committed a serious violation of the Constitution or the Law; or Committed serious misconduct

Legal opinion obtained avers removal of the President as the proposal does not involve the National Assembly in the initiation process of removing the President where the Constitutional Court makes a finding against the President.  Therefore there is a lack of involvement of the other spheres of government and allows the Judiciary untrammeled power to remove a democratically elected leader. The majority of the Members agreed but the DA and the ACDP reserved their positions.

Submission 56

The Green Hearts Organisation Western Cape submits that Section 28 Every Child has a right to be protected from maltreatment, neglect, abuse or degradation. Presently the Constitution does not protect children when it comes to abuse and degradation through child pornography.  The legal opinion obtained avers that the defects sighted in this proposal are considered and can be given fuller expression  in the Sexual Offences Act and Films and Publications Bill, and the submission does not necessitate a Constitutional amendment. Members all agreed and added that this could also be written into the Legacy Report.

Submission 57

Elizabeth Malebo requested for the recognition of South African Sign Language (SASL) as an official language under Section 6 (1).  Members all noted that submissions on this matter has been adopted by the Committee.

Submission 58

Bekinhkosi Mtolo proposes changes to the Preamble of the Constitution in order to justly recognise the injustices of our past. Legal opinion obtained states that the Section 217 Framework to achieve the same outcomes as is currently and therefore this proposed review does not necessitate amendment. Members all agreed.

Submission 59

The SANDA (South African Deaf Association) request for the review of Section 6(1) to include SASL as an official language was a major concern of the Deaf community in South Africa. Members admitted that submission on this section and the subject matter adopted was being processed. All the Members agreed.

Submission 60

Selby Nomnganga requested the addition of the Right to Work in the Bill of Rights, Chapter 2 as a fundamental right. The request of the submitter does not call for a specific Constitutional amendment although reference is made to concerns contained in the Bill of Rights. Rights have not realised by over 8 million unemployed South Africans. The legal opinion obtained states that the Submitter does not call for a specific Constitutional amendment although reference is made to concerns contained in the Bill of Rights. The advice is that the submission speaks to policy issues informed by Constitutional considerations and is therefore not strictly a Constitutional amendment request. Members all agreed.

Submission 61

Siphile Buthelezi requests a review in order to enable compensation paid for property expropriated to be based on actual expenses incurred. Members noted that this matter is currently being considered by the Ad Hoc Committee looking into the amendment of Section 25.

Submission 62

Griquo Royal House Western Cape asked for a review to include Khoi-san in Traditional Leaders wording in Section 211 and 212. Members all agreed that Parliament was processing the Traditional and Khoi-San Leadership Bill [B23-2015].

Submission 63

Molefi Tsolo requested a Constitutional pocket book distribution in learning institutions. The Department of Justice and Constitutional Development has the budget for the distribution of the Constitutional booklets. The Committee can write to the Department recommending an increase in the amount of booklets distributed by it on an annual basis. Members all agreed that as no section was referenced, it falls outside Committee’s mandate.

Submission 64

Grant Snell requests the Committee to consider ‘the constitutional business model’ with reference to the national and provincial concurrent powers and how this affects policy formulation and implantation. Members all agreed that as no section was referenced, it falls outside the Committee’s mandate.

Submission 65

The Independent Communications Authority of South Africa (ICASA) proposes the addition of sub-section (g) Electoral Communications Commission, as one of the state institutions which strengthen Constitutional democracy. It proposes the establishment of an independent commission to regulate broadcasting, telecommunications and postal services in the public interest, and to ensure fairness and diversity of views broadly representing South Africans. The recommendation obtained states that this matter could be dealt with in national legislation and does not require a change in the Constitution.

Submission 66

Mr Ngobeni Sovenga proposed that this Committee’s work is to be checked but he provided no reasons for asking this question. He also requested the provision of Constitution booklets. Members agreed with the recommendation that access to Constitution booklets can be addressed by making the request to the Secretary to Parliament.

Submission 67

The Equal Education Law Centre required a change to the Constitution in order to facilitate the enactment of legislation regulating the mandatory intervention process. It proposed that the reviews undertaken by the NCOP (National Council of Provinces) should be done on a quarterly basis. It also proposed a subsection that obligates the National Executive to report quarterly, in writing and orally to the NCOP on progress and challenges. The legal opinion stated that Equal Education made a compelling case and no such legislation has been passed in order to strengthen Section 100. The Committee was in favour of a slight amendment to Section 100 so as to give it clarity and effect. The ACDP supported the sentiments and legal opinion but admitted that there is no time to carry out the proposals.  It should therefore be handed over to the next parliament. All other members acceded to this request.

The Content Adviser was congratulated for a job well done. The Chairperson informed members that a draft of the Legacy Report will be issued for the next meeting and Members should read it.

The meeting was adjourned.

 

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