In a virtual meeting, the Committee convened to finalise its public hearings programme. The Committee received legal opinion on whether or not the Committee will be able to meet its constitutional obligations in accommodating people with co-morbidity issues. The dilemma that the Committee faces is that not more than 250 people can gather in a venue, and it is not advisable for people with co-morbidities to attend these hearings due to the risk of being exposed to COVID-19. The Committee was advised to ensure measures are in place which allows the public to have a reasonable opportunity to know the issues and have their adequate say and such involvement can be achieved through virtual meetings or written submissions.
Members discussed the Northern Cape only having three districts in the programme and one Member suggested that one more districts be added for the Northern Cape. The Committee agreed that Pixley Ka Seme be added as the fourth district on the programme for the Northern Cape.
The Chairperson welcomed Members noting the Committee meets on a day when there is violence erupting in Senekal. The situation in Senekal shows South Africa still has many unresolved matters which need to be resolved immediately to ensure there is peace in South Africa.
The Committee is dealing with another important yet sensitive matter which needs to be concluded as fast as possible so that all South African can be ensured that they are part of this country. At the last meeting, there were two matters that were not considered namely, accommodating people with morbidities issues and whether there should be additional venues for public hearings in the Western Cape and Northern Cape. The Committee had to seek legal advice on these matters.
Consideration of legal opinion
The Committee Secretary briefly took Members through the legal opinion on whether the public participation process would be discriminatory towards persons with co-morbidities who are unable to physically attend hearings and whether this would render the process of amending section 25 of the Constitution unconstitutional.
Under alert level 1, in terms of regulation 69, gatherings at political events and juridical council meetings are limited to 250 people indoors and 500 people outdoors.
Members were taken through the various governing provisions relating to public participation namely, section 59 and 72 of the Constitution.
In terms of the legal question of the Ad Hoc Committee, the Constitution demands that the public must be afforded a meaningful chance of participation in the legislative process. What matters is a reasonable opportunity must be afforded to members of the public and all other interested parties to know the issues at hand and have an adequate say on these issues. Therefore, the standard that needs to apply whether the Committee has met its constitutional obligations, is reasonableness. The power to decide how to involve members of the pubic in the legislative process depends on Parliament itself. Parliament’s current participation model provides a minimal requirement and guideline as to how to involve the public. The Model has four stages which are:
- Inform: to provide an opportunity for everyone to access the information
- Consult: provide an opportunity for input
- Involve: provide an opportunity for dialogue and interaction
- Feedback: provide feedback to all parties involved
The Ad Hoc Committee has already completed stages one and two and is currently busy with stages three and four. The first two stages meets the constitutional standards and reasonableness.
The national state of disaster came into effect while the Committee was busy with stage three. The dilemma that now faces the Committee is that not more than 250 people can attend an indoor event and it is not advisable for people with co-morbidities to attend these hearings due to the risk of being exposed to COVID-19.
In order to ensure business as usual, the National Assembly adopted rules dealing with virtual meetings and it is thus possible to accommodate people who cannot physically attend meetings via virtual meetings. The Committee’s future involvement in facilitating public meetings cannot be the same prior to March 2020. The National Assembly has rules that allow for the involvement of the public and has further adopted rules that ensure that the business of the Assembly continues. The Committee must ensure that the third and fourth stage of the participation model allows for the public to have a reasonable opportunity to know the issues at hand and have their adequate say. Such involvement can be achieved through virtual meetings or written submissions.
Dr C Mulder (FF+) said the Committee should be very careful not to get into procedural problems and asked that a copy of the legal opinion be circulated to all Committee Members before a final decision is taken on the matter.
Ms M Lesoma (ANC) said its disappointing that Members did not receive the legal opinion document which should be circulated immediately. However this should not stop Members from continuing with the process.
The Chairperson asked the Committee secretary to circulate the legal opinion immediately to all Members.
On the matter of additional venues in the Western and Northern Cape , the Committee secretary said it would be better not to add to the number of venues and stick to the original programme as it was before the national state of disaster. The programme remains three district municipalities in the Northern Cape, and four districts municipalities in the Western Cape and Limpopo.
The Chairperson said if the Committee went to all districts in the Northern Cape and Western Cape, it could raise the legal challenge of the Committee be questioned on why it did not go to all districts in the other provinces. The Committee could also run out of time and Parliament would not extend the Committee’s deadline again.
Ms D Mahlatsi (ANC) had concerns with the matter of venues - the Committee never anticipated that it would be dealing with COVID -19, which limits people in participating in this process. The Committee has been able to cover many areas before COVID- 19. The Northern Cape and Limpopo have not had a chance to participate in the Committee hearings and the Committee has not visited Northern Cape before so she did understand the reduction in venues especially in the Northern Cape since the people of that province have not had a chance to participate. The Northern Cape has five districts and the Committee only opted to visit three districts. This is a big province and has more interested parties in this matter. She asked if it is possible to just add one more district in the Northern Cape.
Dr Mulder said there is not clarity on what the legal opinion says as he has not seen it. In the last meeting, it was agreed that more districts needed to be added and the argument was that if some districts are excluded this may lead to a technical problem and people might challenge the process and say they were included. He asked why the Chairperson is going back on this matter.
Mr P Moroatshehla (ANC) agreed with Ms Mahlatsi that a fourth district must be added in the Northern Cape. The province is very big, and people are spread far across the province.
The Chairperson agreed that as the Northern Cape is vast, another district should be added but he would await advice from the Committee administrators. He again asked the Committee secretary to circulate the legal opinion among Members. Members can read the legal opinion and if they have a matter arising on this, they can raise it at a later stage with the Committee.
Ms T Mbabama (DA) said the Committee must learn lessons from the past - in the past, the Committee visited three districts and there is no need to change that now. The Committee must follow its own precedence.
Ms Lesoma it will be very unfortunate not to cover four districts in the Northern Cape. This is a distinct and separate process from the previous time the Committee visited the Northern Cape, and some Members were not there. Having two meetings in one day is not about venues but about mileage and she has checked with the Chair of Chairs that this should not be a problem as the Committee’s public hearing’s budget will be determined by the programme details submitted by the Committee and not the administration. She also asked the Committee administrators to further explain why they advised that the programme stays the same.
The Committee secretary said it will be possible to add one more district in the Northern Cape and suggested Pixley Ka Seme which will pull in eight more municipalities.
The Chairperson said based on this, Pixley Ka Seme will be added as a district to visit in the Northern Cape in the programme.
The public hearings programme was adopted by the Committee
The Chairperson said the Committee will also consider other possibilities such as virtual hearings, but this will be discussed after Members have studied the legal opinion. He said the Committee will meet its deadline and will finalise its Report and will craft new text in the Constitution which must be debated by Parliament.
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