Committee Report on Amending Section 25 of the Constitution

Ad Hoc Committee to Amend Section 25 of the Constitution

13 March 2019
Chairperson: Ms T Didiza (ANC)
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Meeting Summary

Section 25 ProcessConstitution of the Republic of South Africa

The ad hoc Committee to Amend Section 25 of the Constitution met for a final time to consider and adopt a report to be referred to the National Assembly.

The report recorded what the Committee had done since its inception. The report started with the mandate given to the Committee on 6 December 2018. It reported on the presentation by parliamentary Legal Services on processes required to amend the Constitution, and the institutions involved in the process. The Committee had requested Legal Services to draft a clear roadmap to outline what each step would require.

The Committee had received a briefing on the court case between AfriForum and Parliament and a summary of the Report of the Joint Constitutional Review Committee containing the essential issues arising from that Committee.

The bulk of the two meetings held by the Committee had been taken up by presentations from identified experts on the areas of amendments and how the Committee could go about making those amendments. A summary of each presentation was included in the Report and the presentations had been attached as annexures. Some experts had gone beyond what they had been asked to do and had made proposals as to Amendments that could be made.

In terms of the outlined programme, the next step would have been for the Committee to deliberate on a framework to give to the drafters. Unfortunately, the Committee had not reached that stage, but very valuable work had been done in preparing for that stage.

Recommendations were proposed and added to the Committee Report. The Committee recommended that the National Assembly took note of the approved programme of the Committee; acknowledged that the task of amending section 25 of the Constitution could not be concluded during that parliamentary term; and resolved that the Sixth Parliament be tasked with concluding the matter.

The DA and ACDP reserved their right on recommendation No 2.

Meeting report

Opening remarks

Having welcomed everyone, the Chairperson stated that the Committee had decided to hold the meeting that day in order to review the Committee report to the National Assembly as it would be rising on 20 March 2019. The Committee had been requested to submit a report on 30 March 2019, but that was now too late for Parliament. The preliminary report to be tabled would indicate what had been done to date and then the National Assembly could guide the Committee when it presented its report to the House as to how it wanted the process to proceed.

The Chairperson added that it was easier to meet in the middle of the week as everyone was rushing for flights on a Friday. The time available for the meeting would be spent looking at the report.

Meeting report

Outline of processes to date

The Chairperson indicated that the report had been circulated to Members. The report recorded what the Committee had done since its inception. The report started with the mandate given to the Committee on 6 December 2018. The Committee had received a presentation from Constitutional and Legal Services Office (CLSO) on processes required to amend the Constitution, and the institutions involved in the process, including the National House of Traditional Leaders and the provincial legislatures. The Committee had noted the presentation and requested CLSO to draft a clear roadmap to outline what each step would require.

The Committee had received a briefing on the court case between AfriForum and Parliament and what became clear in that presentation was that the AfriForum case had been dealt with in two parts by the Court. The first part was the interdict which the Court had thrown out, and which had allowed Parliament to proceed with the scheduling of the Constitutional Committee. However, the Report itself was a matter still in court.

The Committee had received a summary of the Report of the Joint Constitutional Review Committee to remind Members of the essential issues arising from the Constitutional Review Committee.

The bulk of the two meetings held by the Committee had been taken up by the presentations from identified experts. The reason for having the experts was for the Members to familiarise themselves, from the perspective of the experts, what areas could be amended and how the Committee could go about making those amendments. The Committee had given all the experts the same question but had allowed them to go beyond that. All the identified experts had been approached. However, former Deputy Chief Justice Dikgang Moseneke was not available when approached due to prior commitments, but he also expressed concerns about a conflict of interest as he had been serving as an upper court judge. Adv Mbenzi was not available as he was a special envoy to Lesotho. The management committee had decided against inviting Judge Madonda, the Deputy Judge President of KwaZulu-Natal, as he was a senior serving judicial officer. The view was that AgriSA could come for public hearings. The Committee had then invited Mr M V Moosa, Retired Judge A Sachs, Prof Ruth Hall, Adv W Trengove, Adv T Ngcukaitobi, the Acting Valuer General, and independent land valuer Mr P Meakin.

A summary of each presentation was included in the report. The Chairperson indicated that the presentations had been attached as annexures, but might not have been distributed electronically. Some experts had gone beyond what they had been asked to do and had made proposals as to where Amendments could be made. The report covered what had been done thus far.

In terms of the outlined programme, the next step would have been for the Committee to deliberate on a framework to give to the drafters. Unfortunately the Committee had not reached that stage, but the work done had been very valuable in preparing for that stage.

The Chairperson asked Committee Members to provide comments on the report and further input. The report would be presented to House on 19 March 2019.

Discussion

Mr V Smith (ANC) noted four grammatical errors:

Page 3, paragraph 4: second sentence – delete ‘appointed’ and replace with ’elected’.

Page 6, No 8, 2nd bullet: delete ‘appeared’ and replace with ‘made presentations’.

Page 10, 8.3.5: delete the word ‘the’ in front of ‘Brazil’; in the next sentence change ‘the citizen is’ to ‘citizens are’.

He had also noted that there was no concluding paragraph in the report, and the report seemed to be hanging in the air. He had a paragraph that he could propose.

Mr S Swart (ACDP) noted an error on page 6, paragraph 8, 1st bullet in the 7th line: “…conflict of interest should end up in court Deputy Judge Madonda was not invited’. That did not make sense.

Adv L Maseko (ANC) suggested that the sentence should read: ‘In order to avoid conflict of interest, Judge Madonda was not invited.’

The Chairperson indicated that the Committee decided not to invite him in case the matter ended up in court and so perhaps the reference to a ‘conflict of interest’ was not necessary.

Mr Swart asked why Judge Madonda had been invited. Why him and not the many other judges? Had there been a discussion around his name?

The Chairperson stated that his name had been one of those recommended to the Committee.

Ms M Semenya (ANC) had indicated her wish to speak but said that she had been covered.

Ms P Ngwenya-Mabila (ANC) stated that in 8.1.1, there seemed to be confusion between ‘amending’ and ‘making’.

The Chairperson reminded her that Mr Moosa had said that he was not going to talk about amending the Constitution, but he would talk about the constitution-making that he had been involved in so that Members would have a sense of the weightiness of the matter.

The Chairperson indicated that if there were no further technical amendments, she would take substantive amendments.

Mr Swart noted that there was no ‘r’ in the spelling of Adv Trengove and as he was a senior silk, SC should be appended after his name.

Ms G Breytenbach (DA) assured the Committee that ‘Trengove’ was the correct spelling and that he really would not insist on ‘SC’ after his name.

Mr Swart withdrew his proposals.

The Chairperson asked Mr Smith to read his proposal.

Mr Smith proposed an additional paragraph so that there was a proposal to the House:

The ad hoc Committee

  1. welcomes and appreciates the valuable input presented to date,
  2. acknowledges that the task of amending section 25 of the Constitution cannot be concluded during this parliamentary term, and
  3. recommends that the Sixth Parliament be tasked with finalising the amendment of section 25 of the Constitution.

The Chairperson indicated that she had not written a conclusion as she had been waiting for the meeting.

Adv Maseko suggested that the first point go under the conclusion as it was an acknowledgement rather than a recommendation.

The Chairperson agreed and added that staff and others could be acknowledged and then there would be two recommendations from Mr Smith. She read out the amended recommendations:

The ad hoc Committee

  1. acknowledges that the task of amending section 25 of the Constitution cannot be concluded during this parliamentary term, and
  2. recommends that the Sixth Parliament be tasked with finalising the amendment of section 25 of the Constitution.

Mr P Mnguni (ANC) supported the amendment but would have added the underlying reasons why.

He was proposing the additions in line with the original programme before Adv Maseko had made her proposal. He stated that at the back of the minds of Committee Members, they had had an adoptive programme. He suggested adding to the amendment that as it was already 13 March 2019 and in view of Parliament rising on 20 March 2019, the Committee could not complete its work, i.e. the principle of explaining why the work could not be completed.

Mr Mnguni added, maybe just for noting, that the Committee would have liked to listen to the Commission on the Restitution of Land Rights. That could be included somewhere earlier in the report.

Ms Breytenbach supported Mr Smith’s proposal as it was concise. She would hesitate to give advice to the Committee to be formed in the Sixth Parliament.

The Chairperson suggested the following wording:

The ad hoc committee recommends that the National Assembly:

  1. Takes note of the approved programme of the committee;
  2. Acknowledges that the task of amending section 25 of the Constitution cannot be concluded during this parliamentary term; and
  3. Resolves that the 6th Parliament be tasked with concluding the matter.

The Chairperson added that she would include a paragraph thanking everyone and appreciating their work.

Ms Semenya agreed with the proposal.

There was no further input.

Adv Maseko moved for the adoption of the report with the amendments.

Dr A Lotriet (DA) informed the Chairperson that she reserved the position of the DA.

Mr Swart informed the Chairperson that he reserved the position of the ACDP.

Ms Ngwenya-Mabila seconded the adoption of the report with the amendments.

The Chairperson asked the two opposition parties if they reserved their right with respect to taking the work forward, but that they agreed with the work done. She wanted to be clear as she did not want to misrepresent the two parties when explaining their position to the House.

The DA and ACDP agreed with the Chairperson.

Mr Mnguni stated that House Resolutions stood, and were binding on future Parliaments, until rescinded so he did not think that the two parties could not approve the recommendations.

The Chairperson stated that that point was not applicable as the Committee was only talking about a report and two parties were differing with one recommendation in the report. The parties reserved their right to recommend that the work be taken over by the Sixth Parliament. That meant that the parties were not giving absolute agreement, but they could say in the House that they agreed or did not agree.

Mr Smith asked where it would be noted that the DA and ACDP reserved their right. Should that be noted in their minds or the minutes because it could not be in the document that they were not fully supporting? He said that it was a Committee document as the majority of the Committee had approved the report. The document could not note that the two parties reserved their right and did not fully support the report. He could not accept that, but he could live with it being reported in the minutes.

The Chairperson explained that the Committee had agreed with the report and then had added recommendations: Recommendation 1 suggested that the House take note of the approved programme of the Committee acknowledges that the task of amending section 25 of the Constitution cannot be concluded during that Parliamentary term, and recommendation 2 said to Parliament that the Committee recommended that the Sixth Parliament be tasked with finalising the amendment of section 25 of the Constitution. The third recommendation acknowledged the work done.

The ACDP and DA were reserving their right on the second recommendation of the report and that would be captured in the minutes. When the Chairperson gave the report to the House, she would note the two reservations in respect of the second recommendation. The two parties could then express their views in the House.

Ms Ngwenya-Mabila was little confused. She said that the reservations could not be contained in the report, but the Chairperson could highlight them.

The Chairperson agreed that was what she had said she would say, i.e. that the DA and ACDP reserved their right on recommendation No 2 and in the House the parties could say that they accepted all recommendations or not, as they chose. She stated that there was seemed to be no need for a vote. She noted that Adv Maseko had moved for the adoption of the report with the amendments, and Ms Ngwenya-Mabila had seconded the motion. She assumed that the IFP was in favour of adopting the report.

Inkosi R Cebekhulu (IFP) stated that the IFP agreed with the report.

Closing remarks

The Chairperson announced that it was the last meeting of the Committee.

The meeting was adjourned.

 

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