Workshop: Role and Mandate of CRC; CRC Legacy Report; Equal Education submission: deliberations & legal opinion

Constitutional Review Committee

02 September 2020
Chairperson: Dr M Motshekga (ANC); Mr E Mthethwa (ANC, KZN)
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Meeting Summary

In a virtual meeting, the Constitutional Review Committee held a workshop on its role and mandate. The presentation on the Committee’s role and mandate also addresses the work of the Fifth Parliament, matters recommended for follow up by the Fifth Parliament and language submissions. 

Members agreed to the proposed method of work – it worked in the past and Members agreed to stick to the strategy. There would be a strategic plan to deal with matters, especially language matters which will be prioritised going forward. The Committee agreed that its dedicated meeting day would be Friday. Ahead of the next Committee meeting, Members and staff will use the time towards familiarising themselves with submissions. The fourth term will see a prepared summary of all submissions, which will guide the new programme for the fourth term. This includes legacy and new issues

Meeting report

Introductory remarks
Co-Chairperson Mthethwa started the meeting by apologising for the very late start to the meeting. He said he had data challenges.

Co-Chairperson Mthethwa said the meeting is long overdue. There are so many Portfolio Committees, often with overlapping times in the schedules, it was a struggle to find a date to meet. The meeting was in workshop format. Members were aware, in many cases the Committee is behind with the work it does, though many will be aware this is due to the COVID-19 pandemic which delayed some programmes. New issues and submissions were received for the year.

Mandate of the Constitutional Review Committee
Ms Sisanda Sipamla, Content Advisor, Parliament Republic of South Africa, took Members through the presentation on the role and mandate of the Constitutional Review Committee, as well as the Fifth Parliament Constitutional Review Committee (CRC) Legacy Report. The report includes more details on the matters to be considered.

Committee Role and Mandate
Ms Sipamla began with the role and mandate of the Committee. It was created in the Constitution, 1996. Part of its function includes considering public submissions, which are to be labelled for a review process.

The Content Advisor proposed all submissions be received and categorised into groups to make it manageable. In the past, submissions were organised into three categories: Category One meant the submission was not aligned with the Committee’s mandate or work. Category Two meant the submission required a parliamentary legal opinion and/or any other consultation with a relevant stakeholder on the matter. This is to ensure the Committee had a clear understanding of what was proposed by the submission. Category 3 submissions are ready for consideration by the Committee. The Committee can make a ruling on based on the strength of the submission.

In practice, the Committee carries out its work of reviewing the Constitution by following the above process. It arrives at a conclusive determination on the desirability of the proposed submissions, to amend the Constitution. In doing so, it proposes the Committee should hold public hearings with persons who submitted submissions, identified under category 2. This is to allow the Committee to have clarification, and to enhance deliberation. This is done prior to the Committee pronouncing on the desirability of each submission. When this process is concluded, the Committee produces a report with recommendations stating if it is desirable for the Constitution to be amended based on the proposal contained in the submission, or not. This report is then tabled in the Houses. The submitters will be advised of the Committee’s recommendations, based on the submissions. Any resolutions will be written out, and the submitters informed.

Breakdown by year
Ms Sipamla continued by detailing the work done by the Fifth Parliament. Between 2006 - 2019, there was an election year in which submissions were not taken during the May period. This accounts for the missing year in the report on progress. From 2016, the Committee of the Fifth Parliament adopted a report recommending South African sign language be given official language status in South Africa. The submission was made by the organisation DeafSA.

It proposed a review of the Constitution for South African sign language to form part of Section 6.1, instead of section 6.5 a (iii) as a language which still desired development.

The Committee found this proposal desirable. It was recommended to Parliament, and the Committee was sitting with the table to allocate the work to the appropriate Portfolio Committee to carry out the Constitutional Amendment Bill. In 2017, the Committee adopted its Strategic Plan and Annual Performance Plan. Extensive work took place in subsequent years with lots of resources. These efforts could not be written off and is part of ensuring the Committee did thorough work to arrive at decisions. The legacy work rolled over as a result, and was eventually concluded in subsequent years.

In 2018, the Committee was mandated by the National Council to review and amend Section 25 of the Constitution in to make it possible for the state to expropriate land without compensation. Following an extensive consultation process, the Assembly and Council respectively recommended Parliament should amend Section 25. It urgently established mechanisms to amend the relative section. This process also recommended Parliament establish an Ad-hoc Committee in terms of its role according to Section 253 to initiate an introduction of legislation to amend Section 25.

In 2019, the Committee amalgamated its legacy report. The Committee must focus on submissions related to languages, and refer the proposed amendments, which can be provided for national legislation, to the relevant Portfolio Committees.

Legacy Report Submissions, Languages and Equal Education
Ms Sipamla continued regarding the specific matters recommended in the Legacy Report. These were recommended on the basis of work already covered by the previous parliamentary terms. The Committee notes, upon conclusion of the official language status of South African sign language, many other indigenous groups enquired why its matters were not concluded, specifically in light of the length of time and resources spent on those matters. It is also important to consider prioritising conclusion on the Equal Education matter, which was considered by the previous Committee.

Parliamentary advice was heard on this matter. Equal Education was invited to public hearings, which were held by Parliament and the Committee. Equal Education presented its proposal and was able to answer clarity-seeking questions to inform and enrich the Committee’s deliberation. The Committee ran out of time in its role as the Fifth Parliament. Hearing the legal opinion on this matter, it was recommended the Sixth Parliament consider and conclude this matter as part of the legacy submission.

Other legacy matters recommended for conclusion include the language submissions. Consideration and finalisation of all legacy submissions pertaining to official language statutes were held by the previous Committee. It also held meetings with stakeholders from the Department of Arts and Culture, the Commission for the Promotion and Protection of Rights of Culture, Religious and Linguistic Communities, and the Pan-South African Language Board.

This meeting was held on 17 February 2017. These stakeholders were requested to return to Parliament to brief the Committee with a collaborative roadmap. The roadmap detailed the conditions created for the development and use of other indigenous languages.

The matters were, if Northern Sotho should reflect as an official language in the Constitution, as opposed to isiPedi in Section 6.1. Submissions were also received from other communities who wanted Parliament to consider there was development in other languages to be considered for recognition as an official language. This included Khoi San. It was ultimately recommended the Sixth Parliament Committee consider following-up with the stakeholders on the progress made in developing these languages. Stakeholders are required to make a pronouncement of the language. The Fifth Parliament Committee dissolved prioritisation of this long-standing work.

Regarding the submission by Equal Education, it made a submission proposing a review of Section 100 of the Constitution. The submitters made a compelling argument for the strengthening of Section 100. Section 100 provides for national intervention on schooling challenges. An argument was made, in the current form, the Section is ineffective.

The Fifth Parliament sought a legal parliamentary opinion on the submission. Following its consideration, it made the recommendation to the Sixth Parliament to re-consider the matter. It asked it to conclude if Section 100 needs to be amended by Parliament or not.

The Content Advisor proposed the Committee proceed in its method of work, whereby all submissions are categorised into workable portions of three categories. A legal opinion can then be sought before the Committee deliberates. If it was felt other stakeholders should be called, this can also happen, along with a public engagement process with the actual submitters. This is also for answers to clarity seeking questions, and to determine if it is truly desirable to make the proposed amendments.

This was the proposed method of work. From the legacy report, the Committee had many difficulties in meeting, as Members are in various Committees. For the Committee to find time to meet becomes difficult if a quorum is necessary to adopt decisions. This is why the Committee ended up having overlapping matters.

The Committee is not bound by the recommendations of previous Committees, to continue previous work. It is likely these matters will keep coming back to the Committee, where submitters ask why its matters were not addressed, while others were handled timeously.

Prof A Lotriet (DA) welcomed the presentation and proposed the suggested method of work be accepted. It worked in the past, so the Committee should stick to this strategy.

Co-Chairperson Mthethwa acknowledged the work of the report. He said the matters were summarised, including those which were in progress for some time. This report made the Committee’s work much easier than to start afresh and align its own issues going forward. He asked for a seconder to the motion. He also asked about the language submissions. He wanted to know if there are any other new languages proposed except for Khoi and San, which are being proposed to be considered in the new term.

A staff member gave clarity on this. There is a submission to consider Khelobedu.

Co-Chairperson Mthethwa asked Members to add any points of clarity.

Ms Sipamla was eager to hear from Members if they were happy to proceed with the work in the proposed way. 58 submissions were received. There is a backlog which emanates from a difficultly in meeting up, and reaching a quorum to make decisions. She said the proposed way of work will be useful, as Members can also read summaries of submissions without having to read through entire documents. There are also inputs from experts regarding if the proposals are viable or not.

The report is a guiding programme going forward. Ms Sipamla said she hoped to provide high-level summary submissions. Prioritisation is important going forward.

A staff member said the online platform, Uvimba, is being used for Members to view each and every submission received. This will help with access to submissions. All submissions are already there. The information technology (it) department must assist Members with this.

Co-Chairperson Mthethwa thanked the staff member for the clarity. Officials will assist with this type of work.

A question was asked about the submission by Equal Education and how this will go forward.

Co-Chairperson Mthethwa said this was addressed in the proposal, and invited Ms Sipamla to speak to the matter.

Ms Sipamla said once the summary is prepared for new submissions, legacy issues will be prioritised in the same document. This is the same for the Khelobedu and Equal Education matters, which will be considered together as legacy matters, and not as individual matters.

The Co-Chairperson agreed with this. He welcomed C-Chairperson Motshekga, who was late because of network issues, but managed to arrive to the meeting.

Co-Chairperson Motshekga thanked Members and staff members for the work and time. It is up to them to have the strategic plan to deal with matters, especially language matters which will be prioritised going forward.

A matter was raised to the Committee about Fridays being the allocated day to meet. If Members needed to meet at any other time, a special application had to be made, otherwise it will reflect negatively on the Committee.

Co-Chairperson Motshekga apologised for being late and asked for a summary of what was said.

Ms Sipamla gave a summary of the meeting.

Co-Chairperson Motshekga said he is happy to conclude the matter. Regarding time and attendance, he said he will be a better person the next time the Committee meets.

Co-Chairperson Mthethwa, acknowledged the apology and said it is for Dr Motshekga to conclude the meeting.

Ms Astrid Coombes, a member of the public, wanted to know if she was permitted to ask a question.

Co-Chairperson Motshekga asked how a Member of the public accessed the meeting.

Ms Coombes said it is a public Committee. Members of the public are permitted to monitor meetings. She wanted to know if she could ask a question to the Chairpersons and Content Advisor.

Both Co-Chairpersons agreed it is an internal meeting on how the Committee will proceed, and not to take public enquiries. The public will be invited, but not at the current moment.

Ms Coombes said she will write to the Chairperson to get clarity on her matters.

Co-Chairperson Motshekga, guided Ms Coombes to write to the Committee Secretary.

Mr M Dangor (ANC, Gauteng) asked that Committee meetings going forward, take place at a time which does not clash with other meetings. He suggested Fridays as an appropriate day, otherwise Members in the National Council of Provinces (NCOP) tend to neglect some meetings because the Member cannot get to all of them. The Member also asked for communication to arrive earlier.  

Co-Chairperson Motshekga said Friday will be the day utilised for meetings.

A staff member confirmed this is the allocated day. Meeting on Wednesday, for the current meeting, was a special provision by the House. Overall, Members could guide staff on time, based on Member’s availability. Plenaries in between mean alternative plans sometimes also need to be made.

Co-Chairperson Motshekga requested the time of the meetings be left in the lands of the Secretariat, as this generally changed based on other hearings and meetings in Parliament.

Co-Chairperson Mthethwa agreed to leave this as an administrative matter, though he preferred meeting in the morning.
It was suggested a meeting be set up for the coming Friday, for Committee Members to work and catch-up on what was missed.

Ms Sipamla needed time to connect with the Uvimba online platform, to familiarise herself with online submissions and prepare this for Members.

It was agreed a meeting on the coming Friday will not take place. Rather, Members and staff will use the time towards familiarising themselves with submissions. The fourth term will see a prepared summary of all submissions, which will guide the new programme for the fourth term. This includes legacy and new issues. There is no need to utilise the Friday slot in this case, unless there was an urgent matter.

Co-Chairperson Mthethwa agreed with this.

Co-Chairperson Motshekga thanked the secretariat for preparing so well, and for the summary provided by the Content Advisor and Co-Chairperson. The Committee will remain in the hands of the Secretariat. He apologised once again for the inconvenience he caused.

The meeting was adjourned.


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