Section 100 amendment: Equal Education submission

Constitutional Review Committee

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

Video: Constitutional Review Committee
2 Sep 2020 Equal Education submission: deliberations & legal opinion

The Constitutional Review Committee held a virtual meeting to receive oral submissions by Equal Education and Equal Education Law Centre (EELC) requesting the amendment of section 100 of the Constitution that deals with national intervention in provincial administration when a province does not fulfil an executive obligation. Equal Education Law Centre spoke about the problems encountered with Section 100 interventions. These problems included lack of clear rules regulating national interventions, lack of sufficient progress reporting to the National Council of Parliament (NCOP), lack of sufficient oversight by NCOP and lack of transparency. It was proposed to amend Section 100(3) so the enactment of national legislation to establish a regulatory framework for an effective intervention was made mandatory rather than optional. They proposed that Section 100(2) be amended to specify the executive report to the NCOP quarterly on progress achieved, challenges encountered, and steps taken to address these challenges.

The Parliamentary Legal Advisor agreed to the Section 100(3) amendment but suggested that the Section 100(2) proposal would be covered by the national legislation.

The Committee said they needed time to digest the submission and legal opinion and to make an informed decision. Equal Education pointed out that a decision on the 2016 submission had had extensive delays. The Committee assured the stakeholders that they would attend to the proposal within a reasonable time.

Meeting report

Committee Secretary, Mr Pilate Gwebu, said that the Equal Education Law Centre submission had been submitted and considered by the Fifth Parliament Constitutional Review Committee but it was not concluded. That Committee had recommended that the Sixth Parliament Committee take it forward. Today Members would hear the Equal Education Law Centre oral submission about section 100 of the Constitution. The written submission and legal opinion presentation had already been circulated. The Fifth Parliament Committee had requested also a legal opinion. Parliamentary Legal Services was present and they would brief the Committee on the legal opinion that was requested by the Fifth Parliament.

Sign language resolution follow-up
Ms N Maseko-Jele (ANC) referred to the previous meeting and said that there were items that were supposed to be followed up by the committee support team. One of these was the documents that talked to the sign language resolution. That was not in the included in the agenda.

The Committee Secretary replied that the sign language proposal that had been agreed to by the Fifth Parliament Constitutional Review had been followed up. The National Assembly had referred the matter to the Justice Portfolio Committee. The information from the Justice Portfolio Committee secretary, Mr Vhonani Ramaano, was that the matter was with that Committee and it had initiated the Bill that would give effect to the resolution.

Ms Maseko-Jele said she was also a Justice Portfolio Committee member. She asked if she had to go to Mr Ramaano for clarity because there was nothing like that in the Justice Committee. The previous meeting resolution was that the support staff obtain the approved committee report so as to refer it to that committee. This had happened previously where they were told that it was with the Justice Committee and that was not the case – unless it was yet to be brought to the Justice Committee.

Mr E Mthethwa (ANC, KZN), Chairperson, asked if it was possible to put something in writing on the matter so that they could do an official follow up.

The Committee Secretary agreed to the suggestion. He added that Dr Motshekga could also assist as Mr Ramaano told him that the referral was done while Dr Motshekga was the Justice Committee Chairperson.

Dr M Motshekga (ANC) agreed with Mr Mthethwa they should have the written referral on the sign language constitutional amendment before the Committee so that they did not have to speculate. He did not remember seeing the referral in the Justice Portfolio Committee. Perhaps they could ask the Committee Secretary to find the written referral and any relevant documents attached to it.

Chairperson Mthethwa noted that the meeting agreed to obtain those documents so that they could move forward on the matter. The support staff should also go through all their notes and ensure those matters raised previously were all covered.

Committee Programme
The Committee Secretary went though the draft programme. On 15 November they would consider the submissions received during the 2020 year cycle after the call for submissions in May. The Content Advisor would brief them on these. Next week they would have further deliberations on the submissions. It was anticipated that there would be some submissions that would require legal opinions and 27 November was reserved to hear those and then the Committee deliberate. The Content Advisor would highlight those submissions that would require a legal opinion. The last meeting would be on 4 December to adopt committee reports and minutes.

The Chairperson asked if Members foresaw other items that needed attention to add to the programme.

Mr T Mashele (ANC) commented that the programme did not reflect matters emanating from the Fifth Parliament Legacy Report. There was not only the sign language matter but also other languages they had deliberated on in the previous 9 October meeting. Besides that, he agreed that the programme was in order and they just needed to add those language items.

The Chairperson replied that the Committee had agreed to get a report-back especially on those matters that were not resolved such as on the Khilovedu language and the other languages. Within the Committee programme they would find time to brief the Committee on those matters and the sign language referral.

Ms Sisanda Sipamla, Committee Content Advisor, clarified that the Committee had received a submission on the Khilovedu language during the 2020 year cycle. The 9 October briefing to the Committee was about language submissions from the Fifth Parliament. The Committee's mandate was to work through the submissions received in 2020. In the 9 October meeting, it was noted that the Fifth Parliament Committee had already resolved that sign language should become an official language under the Constitution and this resolution had been adopted by Parliament. However, because the rules do not allow this Committee to do a Constitutional Amendment to effect that change, it would pass that work onto a parliamentary committee whose rules support the passing of a Constitutional Amendment. There was a Khilovedu language submission received in the 2020 year cycle and the Committee would be briefed on that. It would be able to take that forward because it had come through the formal call for submissions process.

The Committee Secretary added that this meeting's agenda addressed part of the Legacy Report. The outstanding Section 100 submission by Equal Education was one of the items mentioned in the Legacy Report that the Committee had to deal with. On the question of languages, the Committee could process only the public submissions that they received. Sign language had been concluded and reported to the House. The House took the decision for the referral of the sign language constitutional amendment to the appropriate committee. The referral would be requested from the Justice Portfolio Committee secretary and it would be distributed to Members to show that the matter was vested with the Justice Portfolio Committee for further processing.

The Chairperson summarised what the Committee Secretary had communicated to see if he had understood. Part of these outstanding items was on today's agenda. A referral would be brought for any items that were resolved but still needed a referral.

Ms Maseko-Jele requested that in the next meeting the Committee should not convene to talk about items discussed in the previous meeting – rather they should take action. Whatever they agreed on in the next meeting, the Committee should be required to make actual progress not just discussion and talking only.

The Chairperson noted her point and the Committee agreed to move on.

Equal Education and Equal Education Law Centre submission
Ms Jane Borman, Equal Education Legal Researcher and Ms Astrid Coombes, EELC Legal Researcher, highlighted the problems encountered with Section 100 interventions. These problems included lack of clear rules regulating national interventions, lack of sufficient progress reporting to the National Council of Parliament (NCOP), lack of sufficient oversight by NCOP, lack of transparency to the public, lack of clarity on when an intervention will or has ended and ineffective interventions.

The submission outlined a proposed amendment to amend Section 100(3) making the enactment of national legislation compulsory to regulate interventions and establish a regulatory framework for an effective intervention. Section 100(3) currently reads: “National legislation may regulate the process established by this section”. The word ‘may’ should be deleted and replaced by 'must be enacted to'.

A second proposed amendment was that the NCOP must review quarterly the progress of the intervention. In terms of Section 100(2), the NCOP has the authority to decide on the commencement of an intervention and is required to play an oversight role. They proposed that Section 100(2)(c) be amended to specify the time period of review to be at least quarterly. They proposed the insertion of 100(2)(d) requiring the executive to report to the NCOP on progress achieved, challenges encountered, and steps taken to address these challenges. The executive must be required to report in writing and orally and should take place quarterly.

The Chairperson thanked both of them for the submission.

The Committee agreed to Parliamentary Legal Services giving its legal opinion on the submission before discussion.

Legal Opinion on Equal Education and EELC submission
Mr Nathi Mjenxane, Parliamentary Legal Advisor, stated that the submitters had a compelling case in the law, citing practical challenges with section 100 interventions. Creating legislation that clearly set out the powers and functions of state actors during interventions would improve service delivery and bolster co-operative governance and strengthen the separation of powers. However the second proposal to amend section 100(2) of the Constitution was not supported in that there was no justification in law to amend the section. The proposal to elaborate on the oversight role of the NCOP in an intervention would be provided for in that national legislation.

The advice of Parliamentary Legal Services on the matter was that they supported amending section 100(3) of the Constitution to make the enactment of national legislation a constitutional obligation to elaborate on the roles and responsibilities of state actors. However the decision remained a policy decision which was to be taken by the Committee after all the information was considered and deliberated on.

Dr Motshekga asked which committee would be responsible for developing the legislation.

Chairperson Mthethwa asked Members to deliberate on the matters put before them. It would assist the Committee if they went straight to the advice from their legal desk especially looking at page 30. This was not to stop Members from asking general questions but rather to guide the discussion.

Ms Maseko-Jele (ANC) appreciated the submissions and the advice by the legal team. However, taking into consideration that some of them were new in the Committee, it would do them justice if they went about the matter in a manner in which everyone was satisfied with what the Fifth Parliament committee had already done. Could they have another meeting where the Committee could alone deliberate this properly with enough time to properly endorse this? Having just received the submission and the legal advice it would not be justice because they had to get familiar with the issue and documents as a committee and debate the issue together and then endorse it. The suggestion was to note the presentations and advice and then have time to conclude the matter on their own as a committee.

Dr Motshekga agreed but said they could take questions for clarity on the presentations.

The Chairperson asked Members for now to note the submission and legal advice and later to find time to go through them and perhaps discuss it in their study groups and have a party position. They could also see if there was anything else they would want to add before endorsing the proposal. He would allow clarity-seeking questions.

The Committee Secretary replied to Dr Motshekga's question on which committee would effect the Constitutional Amendment. The understanding was that this Committee would take the decision and adopt a committee report that would be considered by the National Assembly and the National Council of Provinces. These would then determine which committee would be responsible for that. It would not be this Committee but would be up to the House to decide.

The Chairperson asked if the Committee would have enough time to discuss this with their parties and then come back later to adopt a resolution. What would be the latest date they could do this by?

Ms Roné McFarlane, Co-Head of Research at Equal Education, raised concerns about the extensive delays in finalising the matter and at the suggestion that the Committee could not deliberate with other parties in the room. Being members of the public they had a right to attend these meetings. It was odd that the Committee was making the suggestion that because they were in the room, deliberations could not take place and a decision could not be made. A specific concern was that they first made the submission in 2016. They were told at multiple points in the year that their submission would be considered. They were now almost at the close of Parliament and still did not have a final resolution on the matter.

The Chairperson asked to correct that impression that Members did to want to discuss the matter in front of everybody. The proposal was that, since they had just received the recommendation and the legal advice, they should get a bit of time to look at it and come back. After discussing it with their parties, they would have one session where they would adopt the matter.

Dr Motshekga hoped to lay the matter to rest by saying on record that he agreed with the Chairperson's understanding. The intention was not to exclude people but to give Committee members time to go and discuss and digest as well as prepare.

Ms Maseko-Jele said that they had both covered her very well. In the next meeting they would invite members of the public as they normally do. As their stakeholders, they need to appreciate that they had a procedure on how to do things. The Committee did not want to set a precedent where it received a submission and then immediately took a decision. They needed to go and apply their minds and read these documents and come back. What the stakeholder had raised about the delayed time frames was unfortunate. They would definitely look into that as noted. However, they would not hurry matters because of that. The only thing they needed to do was to come back before the end of the following week and sit down and take a decision.

Mr Mashele commented that the Committee was not closing any meeting to members of the public. It was a matter of having time to digest and look at the proposal before having an opinion. Equal Education was to be at ease in that they had been invited so it was a sign that they were taken in confidence and the Committee wanted to move with them. Members just wanted space to digest their submission and to make informed decisions.

Dr Motshekga stated that it was important to note what the legal opinion said. The matter affected the constitutional design therefore whatever position they took affecting the constitutional design would have implications for other parts of the Constitution. Ms Maseko and Mr Mashele were right in saying that they needed to apply their mind. This did not mean that Members would delay the matter unreasonably. They would attend to the matter within a reasonable time and deal with the matter. The meeting would be open so there would not be prejudice. He agreed that the fact that Equal Education letter was put on the agenda and they were invited, demonstrated the seriousness in dealing with the matter so they were not to worry. The concerns highlighted by the legal opinion were also matters of concern to the Committee. However, it could not take shortcuts in dealing with the fundamental law of the country.

Chairperson Mthethwa handed over chairing to Dr Motshekga.

Chairperson Motshekga pointed out that the submission was the only item on the agenda which showed that the Committee took the matter seriously. Legal Services were to be thanked for providing a very clear legal opinion which would help them prepare for the next meeting. The Committee would adjourn the meeting on the basis that the two Co-Chairpersons would communicate with the secretariat to see how soon the matter could be brought back on the agenda to take the matter forward. The presenters were thanked for being vigilant and for wanting to see that the Constitution was clear. If the Constitution was not clear there would be arbitrary action on the part of the Executive and that could not be tolerated in a constitutional state.

Ms Borman appreciated the Committee for taking the time and taking the matter seriously. She asked if it would be possible to get a commitment from the Committee on having the next meeting as early as the end of this week or the following week.

Dr Motshekga, Co-Chairperson, replied that the Members did not only belong to that particular committee but to other committees as well. They had to make some internal consultations on programming. This matter would however be attended to this year and within a reasonable time. Asking them to make a commitment without having checked the parliamentary schedule would be dishonest on their part as they could find that they had other commitments. He pleaded with Ms Borman to accept that they were taking the matter seriously and would attend to it at the earliest opportunity possibly this same year.

Dr Motshekga said he could adjourn the meeting giving only the assurance that they would take the matter seriously and would attend to it within a reasonable time.

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