13 Nov 2020
In this virtual meeting, the Committee was briefed on the submissions for the 2020 year cycle, which had been put into a table by the Committee Content Advisor. This document was then used as the basis for further deliberation on the submissions.
The Content Advisor highlighted that the submissions were divided into three categories. Category 1 dealt with submissions which fall outside the Committee’s mandate. Category 2 dealt with submissions which might require an opinion by the Parliamentary Legal Services, as well as relevant stakeholder consultation and public hearings. Category 3 dealt with submissions which were ready for consideration by the Committee. The review process of the Committee aimed to assess whether a submission possessed a favourable desirability which might ultimately necessitate the amendment of the Constitution.
In Category 2 there were ten submissions referred to Legal Services, which were expected to have their opinions ready by 2 December 2020. The Committee had received one legal opinion, on a submission from Equal Education. It proposed a review of section 100 of the Constitution to provide for national intervention in schooling in order to strengthen it and make it more effective. The legal advice was that section 100 as it stood lacked clarity on roles and responsibilities when interventions were made. This led to confusion and diminished accountability. It was up to the Committee to decide whether this section needed to be amended or whether the matter could be addressed in national legislation..
Other submissions in category 2 were: that chapter 9 of the Constitution be amended in order to include a commission for internal auditors: that there be a review accountability provisions in the Constitution dealing with the removal of the President and the conduct of Cabinet Members; that Khilovedu become an official language; that reference to God be removed from the Preamble; and that there should be a new Chapter 9 institution aimed at eradicating corruption.
In Category 3, a number of submissions were based on an idea that the Constitution would be amended to allow warrantless searches and seizures by the South African Police Service. The Committee was told that these were based on erroneous information on a web site. It was recommended that the submitters be referred to the Portfolio Committees dealing with the Criminal Procedure Act and the South African Police Service Act.
There was considerable discussion about a submission that requested that section 11 of the Constitution be reviewed in order to provide for the death penalty. Members opposed the submission and noted that the committee would have to defend its views when the submitters appeared before it.
Other Category 3 submissions were: that the Constitution should public consultation and parliamentary involvement mandatory when disaster management decisions were being taken; that anyone who had been investigated for corruption or fraud or tender tampering should not be allowed to hold a position of power; and that Chapter 12 of the Constitution, dealing with traditional leaders, be reviewed to abolish unelected persons from holding power or accessing State or provincial resources.
Members noted that several matters raised in the submissions were dealt with in national legislation, some of which was currently under review. They agreed to hearing oral presentations on nine of the submissions in the coming year.
Chairperson Mthethwa asked if there were any apologies from Members. Apologies were tendered.
He asked if the Committee needed a quorum in the meeting.
The Committee Secretary replied that a quorum was needed, but if the Committee would only be deliberating, then it did not need a quorum.
Chairperson Mthethwa asked what the Members’ feelings were about starting the meeting.
Mr X Nqola (ANC) suggested that the Committee just deliberate on the submissions.
Chairperson Mthethwa asked Mr Nqola if he thought it was better to continue the meeting, and note that Members were with other committees.
Mr Nqola confirmed that that was correct.
Chairperson Mthethwa said that the Committee would be continuing from where it left off in the last meeting. It would be important to note the apologies that he heard for record purposes. He asked the Secretary to take the Committee through the apologies again. These Members were attending other meetings which coincided with the Committee’s meeting. He asked if anyone could move for the apologies.
Mr Nqola said that before he moved, he wanted to note that a lot of Members in this Committee were also serving on other committees. The times of this Committee’s meetings coincided with other businessof Parliament. The Chairperson and the Committee Secretariat should look into the parliamentary programme for the next year so that the Committee could deliberate on the programme at its next meeting before the House rose in order to avoid the same problem of Members being unavailable to this Committee. This Committee was as important as other committees.
Chairperson Mthethwa said that if he understood correctly, the Joint Committee should discuss its programme with Parliament's Programming Committee and ensure that the Joint Committee’s programme did not coincide with other meetings. He reminded Members that the reason why the Committee chose to meet on Fridays was that most committees did not sit on a Friday. It was then advantageous for it to meet on Fridays, especially now that all meetings were virtual. Some of the meetings now taking place were not part of the previous programming. He knew of a meeting that was only planned that week. Going forward, the Committee would ensure that its meetings were being prioritised.
Ms N Maseko-Jele (ANC) pointed out that four of the Joint Committees Members also served on the Portfolio Committee on Justice and Correctional Services. It was necessary to take account of the Justice Committee’s programme.
Chairperson Mthethwa said that Ms Maseko-Jele’s comments were noted. When the Committee planned next year’s programme, it would consider the Justice Committee programme. There was a similar situation in the National Council of Provinces (NCOP).
He reminded Members that the Committee had deliberated on various issues at a previous meeting and received a presentation from the Committee’s Content Advisor. Submissions received had been divided into three categories. The Content Advisor had been asked to list issues which fell into the category of submissions which fell outside the Committee’s mandate. Those matters would not be dealt with in the current meeting, but it still had to be noted how the committee had resolved the issue.
Chairperson Motshekga noted that Chairperson Mthethwa was summing up what the Committee had agreed on. Today, the Committee was expecting the Content Advisor to take the Committee through what had been done in regard to what had been agreed.
Presentation: Table of Submissions for the 2020 Year
Ms Sisanda Sipamla, Committee Content Advisor, presented. She said that the last time the Committee met, on 13 November 2020, she had tabled all the submissions that had some before the Committee. Members had agreed on the categorisation of the submissions.
Category 1 denoted submissions that did not fall within the Committee’s mandate. The Committee received 33 of those. Most of them were from people merely saying that they did not want to see the Constitution changed. It was possible that they were still responding to an earlier invitation to express views on whether section 25 of the Constitution should be amended. The Committee had agreed that these 33 submissions did not fall within its mandate, and the Secretariat had communicated this to those people.
Category 2, contained ten submissions for which the Committee had requested legal opinions. In this category, the Committee had only received one legal opinion, on a submission from Equal Education (submission 52 of 2020). The Committee would consider this submission in a different meeting The Parliamentary Legal Service had indicated that it would be ready with the legal opinions on 2 December 2020, so that the Committee could schedule a meeting to start hearing these submissions. These legal opinions would guide Members in their deliberations. The submissions were:
Submission 2: Kgosiemang Moloko requested the amendment of Chapter Nine of the Constitution in order to include a commission for internal auditors. Her submission was referred to Legal Services on 18 November.
Submission 6: Andries Havenga wanted a review of all the accountability provisions in the Constitution, namely section 19 in Chapter 2, section 89 on the removal of the President, and section 96, which dealt with the conduct of Cabinet Members. Committee Members agreed that they would like that submission to be referred to Legal Services.
Submission 32: Khutso SK, on behalf of Valodagoma, requested the review of section 6, for Khilovedu to become an official language under section 6(1). This was also referred to Legal Services, and the Committee would get guidance on this submission.
Submission 33: The South African Secular Society requested the removal of God from the preamble.
Submission 34: Martin van Staden of the Free Market Foundation requested a review of section 1, and section 36 cross-referenced with section 37. He said there was a need for fair and balanced impact assessments when determining public policy. He made suggestions on how section 36 (limitation clause) and section 37 (derogation provision) ought to operate during a state of national disaster. That submission would be explained to Members in detail, and Members would be given a recommendation, or Members could decide based on the legal advice.
Submission 36: Paul Hoffman, SC, of the Institute for Accountability in Southern Africa, requested the insertion of a new Chapter Nine institution, which would be aimed at eradicating corruption.
Submission 52: Equal Education. Ms Sipamla noted that Members had already received a legal opinion on this. It was on the review of section 100 of the Constitution, which provided for national intervention in provincial government, in order to bring about more effective intervention in schooling matters. The legal advice was to the effect that section 100 as it stood lacked clarity about roles and responsibilities when interventions were made. This led to confusion and a diminished accountability amongst the state organs that needed to address these matters. Members had been advised on this, and they now needed to take the time to deliberate on whether they found it desirable for section 100 to be clarified.
Ms Sipamla asked Members for input on whether they found it desirable or not for section 100 to be amended.
Chairperson Motshekga asked about the brief to legal services. What was the mandate? What was the Committee asking them to do?
Ms Sipamla replied that legal services had been asked to look at the Equal Education submission in detail, and advise the Committee whether section 100 was indeed unclear at present, and if there was a lack of clarity on roles and responsibilities, and if there was misunderstanding on accountability as the section stood. Legal Services had said that section 100, as it stood, did present some issues, because the roles and responsibilities of state organs were not clear. This might not mean that the section needed to be changed in the Constitution; it might mean that national legislation might need to be amended. But there was a challenge with this section as it stood, because there was a lack of clarity on roles and responsibilities, and this led to confusion and diminished accountability. The legal advice was that it was up to the Committee to decide whether this section needed to be amended. However, Legal Services did find that there was strength in the argument. ,
In regard to the Khilovedu language, Chairperson Motshekga asked what the Committee would be asking legal services to do.
Ms Sipamla replied that the Committee would be asking legal services to advise the Committee on whether the Committee could make an amendment of its own, or make a recommendation that it was feasible for Khilovedu to become an official language. There were state organs that had been given budgets in order to develop languages. In order for the Committee to approve a language to become an official language, there were steps which needed to be taken. If those steps had not yet been taken, the Committee needed to satisfy itself as to why such steps had not been taken, and then recommend to Parliament that the language be made an official language. However, because there were speakers of other languages that would come forward and want to make the same submission, it was important for the Committee to be guided by the legal advice in its deliberation in order to arrive at its decision.
Chairperson Motshekga asked whether the question of inviting submitters to appear had been entertained, or would that come later?
Ms Sipamla replied that the idea was that Members must first be guided by the legal advice, and then decide collectively. Just as the Committee had had Equal Education present before it, it would only be fair for Members to also take the time to hear the submitters express themselves, so that Members could ask any questions they wished to ask; The questions might even emanate from the legal advice. But that would be up to the Members to decide. Members might feel that a submission was straightforward, and that they could make the decision, but where they felt they would like to hear submitters who had requested to appear before the Committee, then they should give them the opportunity.
Chairperson Motshekga said that Ms Sipamla had done a good job, and had done what the Committee requested her to do
Ms Maseko-Jele asked about section 100. The advice that the Committee had received was that it might not be necessary for the Committee to change the Constitution. It looked as if there was another option for the Committee to be able to deal with this issue. If legal services agreed with Equal Education that indeed, there was something there, then the Committee had to resolve that matter. What she did not hear clearly was this matter of saying that it might not be necessary to change the Constitution. She agreed with Ms Sipamla that the Committee needed to give submitters an opportunity to appear before it. The Committee could, for example, check how many submissions could be done in a day, or how many it could receive in a day, so that it could deal with them quickly. She thought that calling submitters to appear was important. If the Committee had to do that, then it would be part of its programme for the next year. Time was already against the Committee.
Chairperson Motshekga said had heard Ms Sipamla talking about scheduling a meeting for 2 December. That related to what Ms Maseko-Jele was saying. In answering her, could Ms Sipamla tell the Members why it would be on 2 December?
Ms Sipamla said that legal services had told the Secretariat that it would be ready to deliver the legal opinions on 2 December. It was not necessarily the date of the Committee meeting.
On the public hearings: If Members were in agreement after they had heard the legal opinions that they would like to give submitters an opportunity to express themselves, there would be nine submitters. It was more feasible, as Ms Maseko-Jele suggested, to consider having them present to the Committee next year. That would be the time when Members would have heard the legal opinions; they would have looked at the hard copy of the submission, and would now give the persons who submitted time to express themselves. It would allow Members to get to the process of deciding on desirability after considering all the matters. Even thereafter, Members might decide that they wanted to call other stakeholders who might be affected by the submissions.
On section 100: legal services did not mention that this section could be changed in national legislation. If Members agreed that section 100 was not clear, the Constitution was not a document that would have detail in it. The clarity that was sought by Equal Education was something that could only be specified in national legislation, because it needed to provide details of where responsibilities lay and make clear what role stakeholders needed to play. Normally, such detail was not included in the Constitution itself, so Parliament would decide on its own whether it would like to see this matter amended in the relevant national legislation. The Constitution provided a general standard of where interventions should proceed, but national legislation would normally then have regulations or have an amendment which could speak to the details of who was responsible, and how the matter should be dealt with. She did not want to recommend which Act should be amended, because that would be the decision of Parliament. The Committee just needed to say that it recommended that this section was not clear as it stood and that it recommended that it should be changed, and that the way that the change would be effected would be decided by Parliament.
Mr Nqola said that it seemed there was no existing national legislation that regulated how national government should intervene in provincial governments with regard to section 100. Referring to section 139, he said there had been a number of cases involving provincial Cooperative Governance and Traditional Affairs (COGTA) departments and municipalities which involved intervention into a lower sphere of government. The Committee needed to consider properly what it would enact, and advise Parliament properly. If the Committee did decide that there must be national legislation regulating this aspect, the Committee would know that the Constitution could not give much detail on the matter. The Committee must couple it with section 139 which regulated how the intervention by provincial government in local government must be done.
Chairperson Mthethwa said that he had been cut off because of network issues. He had followed the discussion; On Category 1 submissions, all agreed that those matters would be closed now, and the Secretariat would write back to the submitters and note that those issues did not fall under the Committee’s scope. With the Category 2 matters, the Committee needed to agree to separate those submissions into two batches of five, and four, and to call those submitters to come and give the Committee a presentation. But the Committee could not have those meetings before 2 December. He asked if Members agreed on that, because that was where Members were expected to take a decision.
Mr M Dangor (ANC, Gauteng) had a question about cooperative governance. Sitting in the NCOP, he had seen the effects of section 139. There was a view that there were three equal spheres of government and that they cooperated in a spirit of collegiality and discussion. To say that the national government would impose could create other repercussions, which he had experienced in other areas and in other committees.
Ms Sipamla said that Mr Dangor’s comment was noted.
The Committee Secretary commented that, in its submission on section 100, Equal Education was concerned only with education matters. On section 139, his view was that the Committee would need to receive a submission on it. At the moment, what was in front of the Committee was a concern by Equal Education relating to matters on interventions in education matters. On cooperative governance, the Committee would be acting on its own, whereas it was supposed to receive a submission from an interested party on section 139.
Chairperson Motshekga said that Ms Sipamla had helped the Committee in regard to Equal Education by saying that there would need to be national legislation. The Secretary was also helping the Committee by saying that this other matter that Mr Dangor had raised was not before the Committee now. He thought that the matter should then rest.
Chairperson Mthethwa outlined a process for dealing with Category 3 submissions. He proposed that the Committee needed to take decisions, even though it was not going to rush these matters. After the submission was presented, Members should comment yes or no, so that the Committee simplified this work. After 2 December, it would have the legal information, so that by then it would take the final decision on the matter and go forward.
Chairperson Motshekga agreed on the process. Mr Nqola agreed as well.
Presentation: Table of Submissions for the 2020 Year (continued)
Category 3 Submissions
Submission 1: Robert Wassenaar was concerned about a possible constitutional amendment which would permit warrantless searches by the security services. The recommended action was that the Committee refer the submitter to the Portfolio Committee on Police, because the Johannesburg High Court had given Parliament two years to appropriately amend the South African Police Service (SAPS) Act, which stipulated the provisions for warrantless searches. This matter did not necessitate an amendment of the Constitution, as Parliament had been given time to address this matter in the South African Police Service Act. Members needed to decide whether or not it was desirable for this submission to result in an amendment to the Constitution. .
Chairperson Mthethwa noted that this was not a matter of urgency.
Mr Nqola said that it was not only the SAPS Act that regulated seizures and searches without a warrant. The Criminal Procedure Act, section 14, regulated that as well.
The Committee Secretary agreed with Mr Nqola. He wanted to give further context to Submission 1. It was the early days of lockdown when the Committee advertised for the public to make submissions. An organisation called Dear South Africa published wrong information on its website, telling its members that the advert said that the intention was to take away the need for the SAPS, when it entered one’s premises, to have a search warrant. “That was a deliberate move by Dear South Africa; it was a misleading kind of campaign”. When Dear South Africa wrote to the Committee to say that, “We don’t want any amendment, we don’t want police to enter our premises”, he replied to them to say that anything to do with warrantless searches had to be addressed to the Committee that was the custodian of the Criminal Procedure Act. This Committee was only concerned with any clause in the Constitution. The source of the problem was the information sent by Dear South Africa.
Chairperson Mthethwa noted that the Committee agreed that such matters were not a matter of urgency at that moment. Did the Committee agree that it did not require any new amendment to the Constitution?
Mr Nqola agreed. He noted the intention of the legislation was that there were moments where justice was supposed to be done, but if one went to apply for a warrant of arrest, or a warrant to search, it might defeat the purpose of the search or the seizure. It must stay like that, because at some point a police officer would see a crime being committed on the spot, and the evidence to that effect would be concealed in a certain place. Going to court to apply for a warrant for seizure or arrest or search may defeat the point; those goods might have been moved from that place. He was of the view that there is no need for the review of that section.
Chairperson Mthethwa noted that the South African Revenue Service (SARS) had a clause on search and seizure. He agreed with what Mr Nqola had said.
Ms Sipamla said that she had captured the comments by Members.
Submission 4: Nhloso Ntshulane, asked the Committee to amend section 25, in order to allow for the explicit expropriation of land without compensation, thereby repealing the 1913 Land Act. It was recommended that the Committee refer the submission to the work of the Ad Hoc Committee on Section 25, which was in the process of fine-tuning its report for adoption by Parliament. It had been found desirable to change this section, and it was in the process of being amended.
Chairperson Motshekga wondered whether it was fair to refer the submitter to the Ad Hoc Committee. Was it not the Committee’s responsibility to refer the matter to the Ad Hoc Committee as it did with other cases where it referred matters to other committees? If the Committee put the burden on the submitter, there might be things that fell through a crack. The Committee itself should perhaps refer it to the Ad Hoc Committee.
Ms Sipamla said that she was guided by the Chairperson and the Committee itself. She noted Chairperson Motshekga’s suggestions. Chairperson Mthethwa suggested that, in short, the Committee agreed to refer the matter to the Ad Hoc Committee. It was also a matter of informing the submitter that the matter had been referred to the Ad Hoc Committee, as it was dealing with this matter.
The Committee Secretary said that his understanding was that the submitter was asking this Committee to look at something which Parliament was already looking at. Perhaps another option would be to write to the submitter to say that there is an Ad Hoc Committee that was set up by Parliament specifically to look into the issue that the submitter was raising.
Chairperson Mthethwa thought that Members agreed that instead of referring the petitioner to the Ad Hoc Committee, this Committee would refer the matter to the Ad Hoc Committee. Then the Committee could respond to the submitter to say that all of these matters that had been raised were going to be dealt with in the Ad Hoc Committee. If the Committee did that, then it would have done justice, as in all the other matters it had dealt with under Category 2. He asked if Members could agree on that.
Chairperson Motshekga agreed with Chairperson Mthethwa.
Submission 10: Waseela Jardine requested that the Committee review section 11 of the Constitution in order to provide for the death penalty. The advice to the Committee was that there was no research that currently proved that the death penalty was more effective than life imprisonment. It was now up to the Members to decide whether it was desirable to amend section 11 to include the death penalty, or whether to leave it as it was, on the basis of there not being any research that the death penalty would be more effective than life imprisonment.
Chairperson Mthethwa said that it was a straightforward matter. No research had been done that had proven that the death penalty was more effective.
Mr Nqola thought that the matter of the death penalty had been in the public discussion for quite some time, in particular in relation to the rise of gender-based violence (GBV). He did not think that the discussion was precisely on the legal prescripts; it was more of an emotional response, where society was angry about GBV. The response was that there was no research on whether the death penalty worked. But South Africa knew, as a country, that it had experienced bloodshed; that it had been used as a reactionary response to a movement by people of South Africa. He did not think that taking the country back to the death penalty would be in line with the spirit of the Constitution that said that wounds must be healed. He did not agree with the submission that the Committee must review section 11 of the Constitution, and bring back the death penalty. It was a reactionary type of conduct. The South African Government must not be associated with killing people in response to whatever had been done. “We must not give up on our people such that we kill them as the state”. He wished to convince the Committee not to agree with that submission
Chairperson Mthethwa thanked Mr Nqola; he had given the context and motivated the matter. He thought that this was the view of the Committee.
Ms Maseko-Jele said that the issue of the death penalty was more motivated by incidents of GBV, but it had always been there. A sector of the community was talking about the killing of farmers. It had always been the view and the feeling of individuals in society that South Africa needed to bring back the death penalty. The ANC was in charge, and the ANC policies were used to govern the country. The Constitution reflected a conscious view taken by South Africa that killing people did not bring any solution to the problems that the country had. Previously, when the death penalty was used, many people were killed, and innocent people were killed. All of these views expressed in the meeting would be relevant when the submitters appeared before the Committee. It would have to give the reasons why the Committee’s views were for restitution and rehabilitation. For now, let the Committee say that it did not change its stance; let it wait for the submitters to come. Saying that research had not been done was like the Committee agreeing that if research could be done, then it would be able to consider the death penalty.
Chairperson Mthethwa suggested rewording the reference to research. The Committee was not agreeing on the content of this submission. The Content Advisor would find suitable words to be used there in terms of the spirit of the Committee.
Chairperson Motshekga said that he fully supported what Ms Maseko-Jele and Mr Nqola had said. He reminded the Committee that on 18 April 2002, the late President Nelson Mandela launched the Moral Regeneration Movement. He had realised that the legacy of the past “has led our people to behave in a beastly way, and that we have to overcome that legacy”. To say at this stage that South Africa should be killing people when it had not addressed this moral degeneration and associated ills was “not on”. He agreed with Ms Maseko-Jele and Mr Nqola that the Committee should not even say that it needed research to take a decision on this; it should just rework this.
Chairperson Mthethwa said that Members agreed unanimously on this matter, and thanked them for their contribution; the Committee would phrase the recommendation accordingly.
Chairperson Motshekga said that the Moral Regeneration Movement had disappeared. Maybe the Committee should refer this matter back to the Department of Sports, Arts and Culture and ask what the status of this was? With GBV, people were even suggesting that people must be castrated, “which means we are sinking deeper into moral degeneration”. Maybe the Committee needed to review that programme and see how it could strengthen it, so that it kept on improving the character of South Africa’s people and how they related to others.
Chairperson Mthethwa thought that reviewing that programme would need a new submission. For now, on the submission currently before it, it would remove the issue of the research, and find better words to say why it was saying no. He appreciated Chairperson Motshekga’s input on the Moral Regeneration Movement.
The Committee Secretary said he wanted to suggest an alternative to the research issue. He recalled that there had been a Constitutional Court judgement in 1995, the Makwanyane judgement; the Committee could use that to say that the Constitutional Court had decided on the issue of the death penalty.
Chairperson Mthethwa said that the Committee Secretary would contribute when he and Ms Sipamla finalised the submission document. It would come to the Committee polished; if it was not so, then the Committee would say where it needed further polishing.
Ms Sipamla said that she had noted the Members’ inputs for the final draft.
Submissions 14 and 39: Louise Boyes submitted that there should be a constitutional provision to make public consultation and parliamentary involvement mandatory when disaster management decisions were being taken. The recommendation to the Committee was that the proposal could be addressed in the National Disaster Act and the Disaster Management Act. This did not necessitate an amendment of any section in the Constitution. The public involvement which the submitter would like to see could be considered in the National Disaster Act, and the Disaster Management Act.
Chairperson Mthethwa asked if Members agreed to defer this matter to the National Disaster Act.
Ms Maseko-Jele agreed, and Mr Nqola seconded her. He thought that this submission should be referred to the Portfolio Committee on COGTA. Amendments on the National Disaster Act were their competence.
Ms Maseko-Jele wanted to know how Ms Sipamla found it relevant for the submission on the National Disaster Act to come to the Committee. Earlier when Ms Sipamla was presenting, she had said that there were 33 submissions that did not necessitate a change in the Constitution.
Ms Sipamla replied that that group of 33 submissions were the ones that did not fall within the Committee’s mandate. They were from people who were just expressing their views, saying that they do not want to see the Constitution changed for a particular reason. In this case a submitter had written to the Committee to say that the Constitution should ensure that Parliament was involved in any decision-making together with the public when there was a lockdown. In such cases, the Committee needed to show submitters that Parliament had already passed Acts that dealt with the matters that they wanted to see in the Constitution.
Submission 20: Chris Blaine proposed an amendment revoking legislation that allowed racial discrimination in disaster support and employment, and for it to focus on equal opportunity. Everyone should benefit equally from disaster management support. The recommendation to the Committee was that it advise the submitter that his matter could not be entertained by the Committee. The right to equality emanated from the Employment Equity Act and the Promotion of Equality and Prevention of Unfair Discrimination (PEPUDA) Act. The submitter could be directed to the Employment Equity Act to understand why there needed to be fair discrimination in certain instances, and that fair discrimination could not simply be removed. It was aligned to the “right to equality” clause in the Constitution.
Chairperson Mthethwa thought that this submission was also a straightforward matter, because the Committee must not deal with issues that originated in anger. He referred Members to notes that Ms Sipamla gave to the Committee.
Ms Maseko-Jele agreed with Chairperson Mthethwa.
Submission 40: Desiree Lotter submitted that the Constitution should be changed to reflect that anyone who had been investigated for corruption or fraud or tender tampering should not be allowed to hold a position of power. The advice to the Committee was that South Africa was a constitutional state which abided by the rule of law, and was guided by national legislation which allowed for the investigation and the charging of people who transgressed the law. Therefore, this submission did not necessitate a change in the Constitution. The Committee should be guided by national legislation, which allowed the lawful investigation and charging of people who were transgressing the law.
Chairperson Mthethwa said that it was a straightforward matter.
Ms Maseko-Jele agreed that it was a straightforward matter, as did Chairperson Motshekga.
Submission 43: Adrian Davies proposed a review of Chapter 12 of the Constitution, dealing with traditional leaders. The submission proposed abolishing unelected persons from holding power or accessing state or provincial resources like land because of hereditary title. The advice to the Committee was that carrying out this review and amending the Constitution would undo all the consultative work which had been done by Parliament to give effect to the will of the people, and also undo the work on the Traditional Leadership and Governance Framework Act. It was not desirable for the Constitution to be changed, because South Africans had expressed their belief in the process of having traditional leaders within their communities.
Chairperson Mthethwa said that the Traditional Courts Bill was currently being dealt with. Some of the issues raised in the meeting were part of what is being dealt with. He said that it was a straightforward matter.
Chairperson Motshekga and Ms Maseko-Jele agreed.
Submission 46: Mthandazo Ndlovu Hlahla, on behalf of Oxfam South Africa, submitted that they would like to make an oral presentation of their written submissions to the Committee on the need to amend and align the Electoral Act and the Ingonyama Trust Act. The advice to the Committee was that it should advise the submitter that there were committees in Parliament which were considering the legislation. These committees were the Portfolio Committee on Home Affairs (considering the Electoral Act), and the Select Committee on Security and Justice (currently processing the Ingonyama Trust Act). Therefore, presenting to the Committee would not be the correct platform with regard to aligning these two pieces of national legislation, as it did not involve the Constitution or a change thereof.
Ms Maseko-Jele agreed.
Submission 49: Iain Cochrane submitted his strong opposition to the amendment of the Constitution to allow the SAPS to conduct searches without a warrant. Ms Sipamla gave the same advice as for Submission 1, that the Committee should refer the matter to the Portfolio Committee on Police, which was currently processing the SAPS Act that spoke to warrantless searches. It would also refer the matter to the Portfolio Committee on Justice and Correctional Services, which was currently considering matters pertaining to the Criminal Procedure Act. This submission did not necessitate an amendment of the Constitution. Confusion had been caused by Dear South Africa, which had said that there would be an amendment to the Constitution in this regard. However, as a Committee which processed constitutional matters, it knew that Parliament was currently not considering any amendment to allow warrantless searches.
Chairperson Mthethwa said that the Committee had dealt with that matter. He asked Members if he was correct to say that the Committee had deliberated on this.
Ms Maseko-Jele agreed.
Submission 56: Mark Kosmas submitted his objection to SAPS searches without a warrant. He was “also led to believe that the Constitution would be changed to allow warrantless searches”. The Committee should then refer this submitter to the Portfolio Committees that were responsible for the processing of legislation which considered the issue of warrants. It was not desirable to amend the Constitution.
Chairperson Mthethwa said that this submission was almost the same as submission 49.
He suggested that the way forward was to look at those items where the Committee would receive a presentation, and to check if it was possible to get the legal opinion on these matters before the end of the year. Then the Committee would hear some of the presenters in the next year. Legal Services had said they could be ready on 2 December; it would be very helpful if the next meeting could focus on that. He thanked the Members for their participation.
Chairperson Motshekga thanked Chairperson Mthethwa for the structure and approach that he had suggested. It had assisted the Committee to move forward in a more meaningful way, so that Members were all clear as to how the Committee should move forward into the next year. He also wanted to thank Ms Maseko-Jele, because she had provided a dynamic relationship between the Portfolio Committee on Justice and Correctional Services and this Committee. In planning the way forward, the Committee should avoid clashes between the Justice Committee and itself, so that it would not have problems of quorums. He believed that if the Committee had another meeting after 2 December, where it could receive legal opinions, it would further empower it to plan for the next year.
The meeting was adjourned.
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