Legal Opinion on 2020 public submissions

Constitutional Review Committee

26 November 2021
Chairperson: Dr M Motshekga (ANC) and Mr E Mthethwa (ANC, KZN)
Share this page:

Meeting Summary

Video

In a virtual meeting, Parliament's Office of Constitutional and Legal Services (OCLS) briefed the Committee on their legal opinions of submission received during the 2020 call for public comment on proposed amendments to the Constitution. Legal opinions were discussed on these proposed amendments:

- Opinion 2 of 2020 on the addition of a Chapter 9 Institution.
- Opinion 6 of 2020 on a review of the accountability provisions in the Constitution.
- Opinion 32 of 2020 on the addition of Khilovedu as an official South African language.
- Opinion 33 of 2020 to consider the removal of the reference to God in the Constitution.
- Opinion 36 of 2020 to insert a new Chapter 9 Institution aimed at eradicating corruption.
- Opinion 53 of 2020 to review Sections 1 to 11, and other sections through to Section 38.
- Opinion 54 of 2020 to include protection for public officials against unlawful instructions, and to include the right against self-incrimination.
- Opinion 58 of 2020 to amend various sections of the Constitution to fix bias against practitioners in law who are not associated with the organised legal profession, and for civil society members to be recommended for appointment as judicial officers by the Judicial Service Commission.
- The Committee recapped Opinion 52 of 2020 to review and amend Section 100.

Concern was raised that Members did not receive adequate time to process all the information and to make an informed decision. The Committee agreed to meet again after it had applied its mind and considered all the information, guidance and legal advice received from Legal Services. It proposed calling the proposal submitters and stakeholders to assist it in deciding on the desirability of these matters.

Meeting report

Mr E Mthethwa (ANC, KZN), Co-Chairperson, Since there was a quorum, it was agreed that the Committee should consider and adopt meeting the minutes in the event that some Members disappear due to network connectivity issues. Dr M Motshekga (ANC) Co-Chairperson, would join shortly as he was having network connection problems.

The Committee considered and adopted five sets of minutes from the previous year: 2 September 2020, 9 October 2020, 11 November 2020, 13 November 2020, 27 November 2020.
 
Overview of 2020 submissions
Ms Sisanda Sipamla, Committee Content Advisor, provided the Committee with a summary of progress to date. She noted 58 submissions were officially tabled before the Committee on 13 November 2020. Of those 58 submissions, 33 were processed and deemed Category 1 submissions and eliminated as it was argued they did not fall within the Committee’s mandate.

There were 10 Category 2 submissions which required a legal opinion as they were technical in nature so the Committee could then apply its mind and decide on their desirability. Members would recall that one of those submissions was from Equal Education on Section 100. A legal advisor, including Equal Education, had already briefed the Committee on that submission as it emanated from the previous Parliament. The Committee would hear the other nine legal opinions today.

The Committee had decided that the 11 Category 3 submissions were ready for consideration and these were processed on 11 November 2020. It found that some needed to be referred to the appropriate Portfolio Committee and that some were undesirable.

Ms Sipamla noted the Legal Opinions document had a summary on page 3 which outlined the opinions that would be presented today on the remaining nine Category 2 submissions:

- Submission 2 was on Chapter 9 institutions. It called for an addition of a Chapter 9 institution which would be the Commission for Internal Auditors.
- Submission 6 from Andries Havenga was a review of the accountability provisions in the Constitution.
- Submission 32 of 2020 was a review of S6 on the addition of Khilovedu as the official South African language under S6(1) of the Constitution.
- Submission 33 of 2020 from the South African Secular Society requested the Committee to consider the removal of the reference to God in the Constitution.
- Submission 36, under Category 2, was from Mr Paul Hoffman who requested the Committee to insert a new Chapter 9 institution aimed at eradicating corruption.
- On the Category 2 submission from Equal Education, the Committee briefly discussed after receiving the legal opinion where it found a lack of clarity on the S100 intervention roles and responsibilities. This resulted in confusion and diminished accountability amongst state organs during the S100 interventions to the detriment of subject of the intervention. The Committee recommended this submission is sent to the Department of Basic Education for consideration.
- Submission 53 of 2020 from Mr Justin Ballot requested a review of various sections ranging from S1 to 11, through to S38 to insert a clear constitutional limitation on government during a state of national disaster.
- Legal Services would brief the Committee on Dr Romalo Naidoo’s submission which requested various sections amended.

Ms Sipamla clarified that the Committee should decide on the desirability of these submissions after it received the legal opinions on them. It would then receive a report of the submissions it considered for the 2020 year, including legacy submissions stemming from the Fifth Parliament. The Committee would thereafter table its report to conclude the 2020 submissions and those that stemmed from the previous Parliament.

Dr M Motshekga (ANC), Co-Chairperson, proposed that Legal Services should present on each submission before Members engaged.

Legal Opinions on 2020 submissions
The Parliamentary Legal Advisors team was introduced: Ms Thiloshini Gangen, Adv Andile Tetyana, Ms Fatima Ebrahim, Ms Phumelele Ngema, Adv Siviwe Njikela, Dr Barbara Loots, Ms Sueanne Isaac. The legal opinions had been circulated to Members and the team would discuss its opinions on the submissions.

Opinion 2 of 2020: the addition of a Chapter 9 Institution
A submission proposed that a tenth Chapter 9 institution called the Commission for Internal Auditors should be added to bolster the Constitution By adding the institution of Internal Auditors, this would render it independent of boards and management. Internal Auditors reports would form part of a state entity's annual report and once this happened, government shareholders and the public would have access to Internal Auditor reports. The consequences of this proposal were that government and shareholders would be in a position to retrieve its governance roles that had been abdicated to different organisations. Government could then fully govern through the Constitution based on ongoing feedback by Internal Auditors. Through these comprehensive organisational reports, the public would be in a better position to hold government accountable.

The submission stated that by creating the additional institution, this would allow Internal Auditors to focus on preventative controls which would relieve the Auditor-General (AGSA) to focus on detective controls. It was important to consider the existing regulatory framework to assess if the proposal was feasible and/or necessary. This meant looking at what it currently had at its disposal in the Constitution as this should always be the starting point.

Ms Gangen spoke to the regulatory frameworks:
- S59(1) on the National Assembly (NA) and S195 on public administration of the Constitution. She clarified rule 227(1)(b) of the NA as well as rule 227(1)(c).
- Chapter 9 of the Constitution established the AGSA as one of the State institutions supporting Constitutional democracy. The Constitution acknowledges the importance of AGSA and guarantees its independence.
- S181(5) of the Constitution and S3(d) of the Public Audit Act stipulates that AGSA should report to the NA on its activities and performance of its functions.
- S188 of the Constitution and the Public Audit Act regulates the functions of the AGSA and authorises it to perform constitutional and other functions.
- The functions of the AGSA in S188 of the Constitution were outlined.

Mr Motshekga interjected and asked Ms Gangen not to repeat the contents of the document as it should be taken as read since Members had received it.

Mr Mthethwa agreed and proposed that the Committee should take a decision on its desirability after the presentation.

Ms Gangen outlined paragraph 15, 16, and 17 of the opinion. It maintained that Internal Auditors were appointed by organisations on an ad hoc basis and many organisations did not have Internal Auditors in its governing structures.

The analysis in the AGSA’s general reports, which were accessible to the public, were aimed at refining the State’s overall financial management and improvement of service delivery. AGSA introduced preventative control guides, which assisted institutions to address its main areas of risk, to re-establish accountability. Internal controls such as preventative; detective; and corrective controls, were all focused on identifying correcting failures that had already occurred.

The Public Audit Act had been recently amended to introduce the concept of material irregularity. This meant that when AGSA performed an audit, it utilised a host of tests, checks and balances to ensure the entity was not exposed to the risk of fraud which could result in financial loss. Once the material irregularity had been identified during an audit, AGSA was authorised to refer the material irregularity to the relevant public body for investigation.

Recommendations
It appeared the concerns raised were already addressed in other legislation. The addition of a tenth Chapter 9 institution would have financial implications. It was advised that the concerns raised in this were sufficiently dealt with and provided for in existing legislation.

Discussion
Mr Motshekga thanked Ms Gangen for the briefing. He asked Members if they agreed to the proposal that the Committee treceive the briefings on all nine opinions before it engaged.

Mr Mthethwa assumed that the Committee would decide on their desirability after receiving all the briefings so it could finalise the 2020 submissions.

Mr Motshekga said the Committee needed time to deliberate and to apply its mind to the opinions.

Dr M Gondwe (DA) agreed that the Committee should first receive all the opinions before it deliberated on the recommendations in the opinions. She raised a concern that the Committee received these opinions on 23 November 2021 and had only a few days to go through all legal opinions. She agreed that the Committee should perhaps postpone its consideration on the desirability of each submission to another meeting.

Mr Motshekga agreed. The Committee should only receive the opinions in this meeting. It would then have a discussion at a later stage to determine the desirability of each one.

Opinion 6 of 2020: review of the accountability provisions in the Constitution
Adv Andile Tetyana noted that on 21 May 2020, Mr Andries Havenga submitted that a specific accountability provision should be built into the Constitution where politicians and senior officials could be forced to resign, or could be suspended immediately, in the event of questionable conduct of a serious nature.

Mr Havenga believed that a cursory reading of the Constitution revealed that it was flawed as the President and Cabinet’s accountability was dealt with superficially. The exact grounds of the President’s removal under S89(1) of the Constitution were unclear. The suspension of the President in certain circumstances was not stated anywhere in this section.

Mr Havenga averred that there was no consequence management that flowed from non-compliance with S96 of the Constitution by Members of the Cabinet and Deputy Ministers. The Constitution had no specific provision for a President, Member of Cabinet or Parliament, against whom a prima facie case of a serious misconduct had been made, could be suspended from office pending a final decision by courts or an administrative body. As a consequence, he suggested that S19 of the Constitution should be amended by way of an addition of subsection (4) which stipulates that: “Every citizen has the right to transparent and accountable governance by government”.

Adv Tetyana said that a thorough reading of the Certification judgements was required to have a thorough understanding of the foundation of South Africa’s constitutional project. In these two judgements, the Constitutional Court (ConCourt) convened to consider if the Constitution complied with all 34 Constitutional Principles in each of the provisions, that had been debated and finally agreed on at the Constitutional Assembly comprised of all political formations in the country.

In Adv Tetyana’s view, the current Constitution fostered a culture of justification. The principle of accountability was one of the founding values of the Constitution but in view of the proposed constitutional change, this important principle was relegated to Chapter 2 – S19 of the Constitution which dealt with political rights.

He quoted Section 1(d) of the Constitution. This was one of the highly entrenched provisions because it was part of SA’s Constitutional founding values. S1 read with S74(1) stated that a 75% majority in the NA and the supporting vote of at least six provinces was required if these values were to be changed or removed.

In response to Mr Havenga’s proposal, this foundational value of accountability permeated every part of the entire Constitutional scheme.

Adv Tetyana quoted S41(c) of the Constitution. Members would recall in the Nkandla judgement, the ConCourt indicated that one of the crucial elements of its constitutional vision was to make a decisive break from the unchecked abuse of state power and resources that was institutionalised during the Apartheid era. Accountability, rule of law, and the supremacy of the Constitution as values of a constitutional democracy, was adopted to achieve this goal. This was the reason public office bearers ignored their accountability and the rule of law which increased impunity.

Adv Tetyana noted a plethora of case law was in jurisprudence which showed that when Executive Members exercised their executive authority, they could not do as they pleased. He recalled various cases as examples to the Committee.

The National Executive’s accountability to Parliament was not limited to Cabinet as it extended throughout national executive such as Deputy Ministers in S93(2); the State institutions supporting Constitutional Democracy in S181(5); public administration in S195(1)(f) and S196(5); and the security services in S199(8).

Adv Tetyana noted the list of 15 pieces of legislation – referred to as the Anti-Corruption Legislative Framework, as well as an S6 of the Executive Members’ Ethics Act.

In conclusion, Legal Services view was that there was no need for those accountability provisions to be reviewed. One needed to delineate between a power within the Constitution and those that were not exercised by those entrusted to exercise it. The Nkandla Judgement would illustrate that the Court was very scathing on the National Assembly as it did not adequately hold the President accountable.

Opinion 32 of 2020: Review S6 to make Khilovedu an official langue recognised under S6(1)
Ms Fatima Ebrahim noted the request by Mr Khutso Selowa, who represented a non-profit organisation, to declare the Khilovedu language as an official language. Khilovedu was a dialect of northern Sotho spoken by the Balobedu tribe which was proudly the only queendom in SA.

Mr Selowa noted that in 2018, a comprehensive Khilovedu dictionary and orthography was produced, and it was currently in the process of developing a picture dictionary and written examples of the Khilovedu language had been found. This was important to note because previously this language was considered as an unwritten language form. An unwritten language would impact the possibility to make such a language an official language.

Ms Ebrahim said the Constitution contained a multiplicity of language rights for the 11 official languages. The State has a constitutional obligation to take practical and positive measures which meant that it must be proactive in elevating the status and advancing the use of the nine indigenous languages – excluding English and Afrikaans.

The Pan South African Language Board (PanSALB) was established in the Constitution to promote and create conditions for the development of all languages – this mirrored the constitutional provision. It should promote and create conditions for the development of sign language; the Khoi; Nama; and San languages, which are not official languages, and ensure respect for all languages commonly used in SA, including those used for religious purposes. For example, these may include languages that were not necessarily native to SA such as Urdu which was spoken by a large part of the Indian population in the country.

Ms Ebrahim outlined the many other language provisions. S2(3); S29(2); S30 and S31(1); S35(3)(k); S6(3)(a) and 6(3)(b) of the Constitution, and The Languages Act 12 of 2012.

According to academics, no immediate or practical consequences flowed from simply declaring a language as an official language. Instead, legal content should be given to a language according to the language policy of the State.

Ms Ebrahim noted her personal research differed slightly from this view. She did not believe that this was entirely true in the South African context because the Constitution itself regulated the use of language in at least the national and provincial spheres. This was illustrated in the requirement that government conduct its business in two or more of the official languages. An immediate impact was clear that once a language was declared as official, government could then use it for business purposes.

However, although the designation of a language as an official language had definitive consequences, it was important to know that the Bill of Rights deliberately referred to languages generally instead of official languages. For example, an accused had the right to be tried in a language that they understood – this would not be limited to official languages as it would include any language.

Local Government may choose any language irrespective of it being an official language or not when issuing government documentation. There was no reason in law why even a national department, for example, could not use another language that was not an official language.

Important to note was that the Constitution obliged the PanSALB to promote and create conditions for the use of official languages. On other languages, this was then a matter of respect rather than promotion. The Constitution required conditions for the development of the specifically listed languages to be created. While all official languages enjoyed parity of esteemed and equal treatment, this was not necessarily the case for the “unofficial” languages spoken in the country.

The legal treatment of a language was closely linked to the status of that language in society. The mere recognition of a language as an official language had important psychological impacts. This accorded with the view that when government recognised the language of a minority as an official language, it also acknowledged that minority’s right to maintain its identity. It was accepted that where languages enjoyed official recognition, it was more likely to grow and exist for a long time to come. Examples were given of positive impacts of declaring a language official such as the Broadcasting Act which stipulated that a range of programmes should be available in official languages. This meant that different programmes and news items would be found on television and radio in all 11 languages. There was no legal obligation for the public broadcaster to make any effort to promote the language or culture of a people whose language was not an official language.

Similarly, the right to be educated in one’s mother tongue was subject to the limitation that it was reasonably practical. While research showed that mother tongue education achieved the best outcome for students and it allowed them to compete fairly, it would not be reasonably practical to give effect to this right in the case of a non-official language. The reason was that there would not be sufficient educational material such as textbooks to allow this right to be exercised – she clarified that the test was reasonableness.

However, declaring a language as official created some obligation on the State to positively promote that language and to invest in it which undoubtedly attracted private investment. For example, publishers would be more willing to publish in a language if it was an official language.

Instead of focusing on the fact that the Constitution stipulates that no one should be discriminated against on the basis of their language regardless of it being an official language or not, the Committee should consider if the Khilovedu language and culture should be afforded the same protection as that of other minority languages which are official languages. It should also consider the consequences if the status of this language is not elevated to an official language; how it would affect the cultural diversity and history of the nation as a whole.

Ms Ebrahim noted paragraph 25 of her opinion that staed this was a policy issue rather than a legal one. It provided a list of non-exhaustive factors for the Committee to consider if a language should be afforded official status.

Way forward
She emphasised that this matter was a policy issue, but it carried serious legal consequences which in turn contributed to the sustainability of the language, and possibly the culture and tradition of the speakers. Many academics argued that where language was not protected, the entire culture suffered as a result. Therefore, the policy could not be completely divorced from the legal issues.

The Committee had four possible means available to address this:
- To allow the status quo to remain by not recognising Khilovedu as an official language.
- To include it in the list of official languages allowing the state and PanSALB to develop the language in the other constitutional obligations.
- To consider an amendment to S5(a) of the Constitution. She recalled that the PanSALB should promote and create conditions for sign language and the San languages, in addition to the official languages. It was therefore possible to give Khilovedu more status by including it in this list which made it obligatory on PanSALB to promote it.
- To consider if Parliament should amend existing legislation that dealt with language, or alternatively introduce new legislation aimed at directing language policy to specifically promote non-official languages.

Ms Ebrahim noted this was an emotive matter and the Committee should be aware of and sensitive to this. As Noam Chomsky indicated, a language was not simply words as it was a culture, a tradition, a unification of the community, and a whole history that created what a community is. The Committee was urged to be sensitive to this in considering this matter, and to note that there was no legal obligation to declare Khilovedu an official language.

Opinion 33 of 2020: Request to review Preamble of the Constitution
Ms Phumelele Ngema presented on the request from the South African Secular Society (SASS) to change what appeared in the Constitution’s Preamble that read:
“May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika”.

SASS submitted that the Constitution, in its Preamble, was glaringly in conflict with S9 of the Constitution. It sought a removal of references to God or gods in the Preamble. The submission said such references no longer had a place in this country

There were two crucial judgements that sought to certify the final provisions of the Constitution -- this was the first and the second Certification judgements.

SASS highlighted the argument that S9 and the Preamble were in conflict as S9 provided an equality clause that everyone was equal. However, because of what appears in the Preamble, this created a form of discrimination because the minority that were non-religious were disregarded.

No evidence was given as evidential proof that this discriminated against non-religious communities or people that did not accord to any religion.

The submission fell into the following provisions of the Constitution:
- S9 - the equality clause that prohibits any form of discrimination. This matter was specifically based on discrimination on the grounds of religion; conscience; belief; and culture.
- S15 – the right to freedom of religion; belief; and opinion.
- S16 - the freedom of express is a right mentioned in the Bill impacted by this submission.
- S16(1)(b) provided that everyone has freedom to impart and to receive ideas or information.

Legal Services maintained that the submission was solely based on a feeling that SASS may be restricted or do not have the space to share its information or ideas. However, there was no proof or evidence of the allegations of actual discrimination.

Ms Ngema noted the final Certification judgement where the Court spoke about the 34 CPs and the specific ones that related to this matter. This was a caveat provided by the ConCourt that spoke to what the Constitution and the Preamble set out. It was confirmed that the ConCourt found, with clarity, that what appears in the Preamble was not necessarily an issue.

Ms Ngema noted paragraphs 203-205 of the Certification judgement about the Preamble and its references to expressions of God. The Court disagreed with the contention by an objector that the Preamble to the new text emphasised the injustice of the past rather than equality, non-discrimination, and reconciliation, thereby failing to comply with CP III which mandated the new text to promote “national unity”. The Court said the tenor of the Preamble could not therefore be said to be contrary to the ideal of national unity established in CP III. It held that the objection to the Preamble failed to demonstrate that an invocation of deity constituted any form of discrimination.

The ConCourt is the apex court in SA’s entire justice system. Since it made this finding when it certified the Constitution, advising on this matter in any other way would be incorrect. It considered international and local jurisprudence, as well as the CPs to ascertain if any right was being violated by the reference to God in the Preamble. Based on its engagements, the ConCourt did not find any issues.

S15 of the Constitution did not stipulate what kind of religion should be promoted as it merely provided space for different beliefs, conscience, or religions that could be followed. Without any real evidence of discrimination in this instance, the Constitution and every other instance by government was completely open to ensure the maintenance, protection and the exercise of human rights in S15.

The Committee was advised that it did not need to amend or make proposals on the Preamble.

[Mr Motshekga interjected to state he did not have electricity power and asked to elect Mr Mashele as Acting Co-Chairperson with immediate effect. The Committee agreed].

Opinion 36 of 2020: Insert a new Chapter 9 Institution aimed at eradicating corruption
Adv Siviwe Njikela presented on the submission by Adv Paul Hoffman which proposed an amendment to Chapter 9 to establish a new Chapter 9 Institution that would investigate and prosecute allegations of what he termed “grand” corruption.

The impression from this submission was that this proposal was made previously in the Fourth and Fifth Parliament, but no consequence emanated from this.

Adv Hoffman’s submission claimed that the Hawks were not up to the task of countering grand corruption. The Hawks’ structural and operational lack of security of tenure of office was the underlying problem – exacerbated by executive instead of parliamentary control and oversight of its duties. The argument was that creating a special investigative body and a prosecutorial body, which should be included in Chapter 9, would safeguard independence.

Adv Njikela highlighted the special provisions in the National Prosecuting Authority (NPA) Act; the South African Police Service (SAPS) Amendment Act, which established the Hawks (Directorate for Priority Crimes Investigations) and defined the mandate of the NPA.

He outlined S179(1) and S179(2) of the Constitution; S7 of the NPA Act; and the SAPS Amendment Act which defined priority crimes that include corruption and fraud in the definition.

The relevance of these provisions was that constitutionally speaking, the NPA already existed which was given the responsibility of prosecuting all crimes, including fraud and corruption. The Hawks’ mandate, as established under the SAPS Amendment, was to investigate priority crimes which also included fraud and corruption. These State organs were therefore created both in the Constitution and in the NPA Act to prosecute on behalf of the State. An investigative body within SAPS was already dealing with what was proposed to be addressed by this new Chapter 9.

The proposal was a duplication of this function under the guise of enhancing operational independence of both the prosecuting and the investigative arm. Before the establishment of the Hawks, the Directorate of Special Operations was created within the NPA, but the decision that was endorsed by Parliament separated investigation from prosecution. Hence, the migration of the Hawks to the Police. However, there were constitutional challenges once this move was made.

The independence and protection of the Hawks was a matter that was considered extensively by the ConCourt in the Glenister judgement. It was found that at some point, it was not adequately protected, and Parliament was given an opportunity to revisit the amendment of Chapter 6(a) of the SAPS Amendment Act to enhance the independence of the Hawks. There were some challenges, but this was duly done. This matter highlighted similar issues that had already been traversed, both in the Glenister and in the Helen Suzman Foundation judgement, which was resurfaced under the constitutional review.

SA has a principle of subsidiarity in its jurisprudence. This principle indicates that where national legislation is found to be inadequate, a frontal attack filed on that legislation as a direct appeal to the provisions of the Constitution cannot be done. The principle of subsidiarity defines application in this particular matter as the NPA Act provided for NPA independence and the SAPS Amendment Act provided for the Hawks independence and sought to insulate it from executive interference. If a person was unhappy about the protections these two pieces of national legislation provide in the operations of those institutions, the attack must be amounted against that legislation and not directly based on the Constitution.

This raised the question if one was dealing with a constitutional review or with disaffection of national legislation. However, a mechanism was already in place if one was disaffected with the existing national legislation. There were ways to enhance that operational independence in the legislation that regulated these two institutions.

Conclusions and advice
Adv Njikela said this matter was a policy issue, and it was within the Committee’s discretion to decide on this. It should however note the implications on the NPA and the Hawks.

He cautioned that in light of these existing special bodies that dealt with the same issues, create another Chapter 9 Institution would create a duplication within the organs of state. This did not seem to be a constitutional issue but a matter that could be sufficiently addressed in the legislation that governed this institution if there was a need for it to be strengthened.

While the Committee should decide on this, Legal Services held a strong view that this was not a constitutional review issue, but rather about strengthening the national legislation if the Committee was convinced that there were gaps within those two pieces of national legislation.

Opinion 53 of 2020
Dr Barbara Loots noted this opinion had nine submissions from Mr Justin Ballot -- the first eight was linked to specific rights in the Bill of Rights, and the ninth one was a general issue on the state of disaster.

S1—sovereignty: Mr Ballot claimed that organisations such as the World Health Organisation (WHO) should not have the power to interfere in SA’s territorial issues and dictate what it should do and how to do it. Dr Loots said Mr Ballot misunderstood the context of S1 as the sovereignty was linked to the democracy of the State -- with South Africa being a sovereign nation. S1 instead spoke to territorial sovereignty which goes to the principle of equality of states from an international perspective. Mr Ballot was actually referring to the idea of international organisations and SA’s membership to it, including the agreements attached to this, which fell into S231 of the Constitution. The WHO or other organisations such as the United nations could not override SA’s Constitution simply by membership. This was not an issue of territorial sovereignty as no other organisations could impose nor have undue interference because S231 provided a safeguard. While S231 fell outside the Bill, no amendment was required to S1.

S2 - constitutional supremacy: The submission was that the Constitution should be strengthened forcing the African National Congress (ANC) to justify any action before it was taken, when possible but if not possible, within 7 days under an emergency. The Constitution provided broad perimeters within which to function, but it did not provide specific situations for example that stipulated what a specific Political Party or person should do. However, it empowered individuals to take steps if they felt that any action, law, or conduct by any person or organisation infringed on their constitutional rights. Any action taken would have certain protections unless that limitation was justifiable. If Mr Ballot felt that any action taken in a certain emergency situation infringed on his rights, although there is no current state of emergency but rather a State of Disaster, that action could be taken to a court and it would be invalid if it was found to be inconsistent with the Constitution. No amendment was therefore needed on the constitutional supremacy to add a safeguard if a person felt that their rights were infringed upon.

S11-- the right to life: The submission claimed that this right should include the right to refuse any form of forced euthanasia. Dr Loots highlighted that euthanasia was currently not a legalised option in SA, but there were ongoing court cases about it and the question on this was a hot topic. Even if it was legalised, no person could be forced to be euthanised and in the event that someone was forced, this then moved into the realm of crime because this was not what was internationally understood as assisted suicide. The right to life was comprehensive enough which meant that this protection was read into it. No amendment was therefore required.

S12 -- security of person: Mr Ballot said that the right to self-defence and the right to bear arms should be included in S12. The ambit of the requested constitutional amendment was unclear as Mr Ballot did not indicate how it should be phrased, if he believed it was ambiguous, and if he wanted more details. Unlike the United Stated, SA did not constitutionally enshrine the right to bear arms. However, SA’s legal system included the right to self-defence as a defence, and it acknowledged this right without specifically identifying it in the Constitution. People were also allowed to own firearms as per certain legislative prescribed requirements and to use it in a safe and regulated manner. This submission was therefore dealt with in SA’s legal system without it requiring a constitutional amendment.

S14 -- the right to privacy: Mr Ballot claimed that the right to privacy for murderers did not apply because the victim should have more rights than the criminal. He wanted the ability to track the most serious crimes using meta data for the investigation to be included. Dr Loots noted that this was a complex matter as it involved a balance of rights in view of the Bill. For example, if the courts considered if it was an accused or a convicted person, it would weigh up the rights of the convicted person and the rights of the victim and ascertain if any limitation was justified. A convicted or an accused individual would have certain rights provided that there is a fair balance, but if there was a limitation to someone’s rights, S36 would determine if this was justifiable or not. On the meta data, this was an operational issue on the investigation of crimes as it was not an operational concern that would be regulated in the Bill. This was something that could be regulated in practice or in regulations, but it did not require an amendment.

S27 - health care: the government could not force a person to be vaccinated against their will. Mr Ballot linked this vaccination to euthanasia by indicating that the provision to opt out of mandatory vaccinations should be part of constitutional protections. Government control, or scientific expert control of who could be euthanised should be illegal. This was up to the individual or the family. Automatically the default setting was no euthanasia. Dr Loots added that while every person has the right to access healthcare, this did not prevent anyone from refusing medical treatment as well as. On vaccinations, nobody could be forced to take a certain medical health option, but rights could be limited which was an ongoing discussion on the Covid-19 vaccinations. Dr Loots emphasised that in the event that euthanasia was legalised and became available to people, a doctor would not be allowed to force someone to euthanise as people have the option to refuse any medical treatment.

S35 -- due process rights: Mr Ballot said the rights of a person detained under a quarantine should be included as this could be abused. For example, a person detained under quarantine should not lose their job, be kicked out of property, lose their income or vehicle, or be blacklisted etc. This submission also confused issues as S35 due process rights specifically related to a criminal justice context. It was not within the context of the quarantine situation that was currently associated with Covid-19 as certain rights came into effect in this instance. For example, governments internationally had taken steps to prevent people from being evicted from their properties and from loss of income through supplementation in some government policies; in certain grants; labour rights; and protection in legislation and the broader structure. These were all situations where policy considerations came into play. While Mr Ballot linked quarantine to the detention that S35 speaks to, this was a mismatch as quarantine could not be linked to a criminal justice process or considerations. The argument contained in this submission therefore did not fit within the fair trial principles and hence no amendment was required.

S38 -- enforcement of rights: The submission was that the State should set up an organisation within the judiciary to assist people in approaching the courts to report human rights abuses, especially during a lockdown and State of Disaster. Within the context of S38, it already allowed a person seeking redress for human rights infringements to be represented by civil society. All the NGOs worked to assist people who did not necessarily have the means to access the courts, including public interest litigation, which were allowed within the scope of this section. Legal Aid South Africa Act also addressed the issue of legal expenses on access to justice, and the Constitution made provision for access to rights protection via the South African Human Rights Commission (SAHRC) which is S184 and the Public Protector which is S182. Government had therefore implemented certain systems within which people could gain access to protect their rights and to make access to courts easier where there is a rights infringement in the Bill. No amendment was therefore required.

In the final general submission, Mr Ballot raised a list of concerns on the state of disaster regulations, but he did not link it to any provision in the Constitution. Legal Services was therefore uncertain how Mr Ballot wanted it to identify the amendments as he did not provide sufficient details. Mr Ballot’s concerns were mostly on the implementation of legislation and regulations and understanding the connection between this. On the concern for the need for constitutional limitations, the Constitution already had a system of checks and balances, including limitations that come into play when someone’s rights were infringed or something was not done where there is a constitutional obligation. Dr Loots spoke to the list of concerns in slide 11 of the presentation.

From a legal perspective, Dr Loots said she did not see anything that triggered the need for an amendment. However, this was for the Committee to decide, or if anything needed to be communicated to another parliamentary committee or if it was sufficiently addressed.

Opinion 54 of 2020: protection for public officials against unlawful instructions, and the right against self-incrimination.
Ms Sueanne Isaac noted a second submission was received from Mr Justin Ballot. He requested the Constitution be amended to include protection for officials to refuse to follow instructions if they believed those instructions were in violation of the Constitution. The second request was for the Constitution to be amended to include the right not to self-incriminate.

On the legal framework for the protection against unlawful instructions, Ms Isaac noted S1(c); S2; S195; and S197 of the Constitution, including S3 of the Protected Disclosures Act (PDA).

The Constitution prescribed various obligations and principles that applied to everyone and to public officials specifically. In S1(c), the supremacy of the Constitution and the rule of law is one of the founding values. In view of S2, all public officials are therefore bound to act within the confines of the law and any action taken outside the law is invalid.

S197 specifically dealt with public administration and set out the values and principles enshrined in the Constitution. S197(1) provides that the public service must loyally execute the lawful policies of the government of the day.

The public service is also governed by specific legislation. While the Constitution sets out the framework which requires public officials and servants to act within the confines of the law, the Public Service Act (PSA) specified specific duties on public officials when they conducted their duties. For example, the PSA places a positive obligation on an employee to abide by the legislative framework and to report irregularities to a higher authority. S16(a) of the PSA provides that disciplinary action must be taken against a public servant for failure to comply with this Act.

The Public Service Regulations, which are issued in the PSA, requires amongst others that public servants abide by and strive to be familiar with all legislation and other lawful instructions applicable to his/her conduct and official duties.

While the Constitution did not provide a specific protection for public officials who refused to follow an unlawful instruction, it placed a positive duty on all public officials to act within the law. The PSA and its Regulations also placed an obligation for public servants to act within the law and to report unlawful action. The PDA provides procedures for employees to make protected disclosures on criminal or unlawful acts in the workplace and protects the employee from occupational detriments.

The submission did not specifically state how the Constitution should be amended. Legal Services’ view was that existing legislation, read with the Constitution, provides protection for public officials who did not wish to carry out an unlawful instruction. While there may be merit in the submission, the legislation may be the best place to start with rather than amending the Constitution. Additional protections to public officials could be provided by amending the existing legislative framework. However, if the Committee decided that a specific provision should be included to protect public officials who refused to follow unlawful instructions, it may consider such a proposal as this was a policy decision within the Committee’s ambit.

On the right against self-incrimination, Mr Ballot requested that this right be included in the Constitution. S35 of the Constitution was relevant to this submission. It protects the right against self-incrimination at both the arrest and trial phases of the criminal justice process.

At the arrest stage, S35(1)(c) provides that an arrested person has the right not to be compelled to make a confession or admission that could be used in evidence against that person. At the trial stage, S35(3)(j) provides that an accused person has the right to a fair trial which includes the right not to give self-incriminating evidence. Interrelated to the right against self-incrimination is an arrested person’s right to remain silent in S35(1)(a). An accused person has the right to a fair trial and a right to remain silent and not to testify during proceedings as provided in S35(3)(h).

In light of S35 of the Constitution, Legal Services’ view was that the Constitution already provided for the right against self-incrimination. It recommended that the Committee should write to Mr Ballot to inform him of the existing constitutional framework that protected those rights.

Recap on Opinion 52 of 2020: Request to review and amend S100 of the Constitution
Mr Mthethwa asked for a summary on the Equal Education submission as a refresher for Members The Committee had already received a briefing on 11 November 2020

Adv Mjenxane noted that he would highlight only the salient points of the Equal Education submission since Members had already formulated a view on this. This submission was a request from Equal Education and the Equal Education Law Centre to review and amend S100 of the Constitution. S100 deals with the intervention of national government in the functioning of provincial government where the province had failed to fulfil constitutional obligations. Members were reminded that all obligations imposed by the Constitution must be fulfilled. In an instance where a province failed to fulfil those obligations, S100 provides a mechanism for intervention by national government.

Equal Education commended the support of and invocation of S100 in the past as a good measure which ensured compliance by provinces with the Constitution. However, it noted that this needed to be strengthened to be more effective by reviewing and amending S100.

It cited two examples where S100 was invoked in Limpopo and the Eastern Cape. It claimed that those interventions were not as effective due to the lack of clarity in the roles and responsibilities of state actors during a S100 intervention. This lack of clarity leads to confusion which unfortunately results in diminished accountability.

S100 provides that a national legislation may be enacted to outline the roles and responsibilities of all state actors in an intervention. However, no such legislation had been enacted because the provision is discretionary as it states “may” be enacted. This section should be amended to make the enactment of the envisaged legislation mandatory to clarify the role of state actors but also to strengthen S100 intervention to make it specifically clear that progress reports on the challenges experienced in an intervention should be presented on a quarterly basis to the National Council of Provinces (NCOP). The effect of clarification of roles, including quarterly reporting, would bolster transparency and accountability. S100(2) could also be amended to clarify the NCOP role and Equal Education provided what that amendment should look like.

Adv Mjenxane said Legal Services supported this submission that these guidelines were necessary and necessitated the need for legislation as envisaged in S100(3) of the Constitution. Parliamentary Committees in the past had also noted the need for this legislation to clarify the powers and responsibilities of state actors. Enacting this legislation that clearly sets out the powers and functions of state actors during an intervention would improve service delivery, bolster cooperative governance and strengthen the separation of powers.

The proposal to amend S100(2) was however not supported. While it agreed that the role of the NCOP may need to be clarified, this did not require a constitutional amendment. If Parliament passed the legislation envisaged in S100(3), the NCOP roles and responsibilities could be clarified in that legislation without amending S100(2) just to clarify that role.

Opinion 58 of 2020
Adv Mjenxane said Dr Ramola Naidoo's submission argued that the appointment process for judicial officers was unfair as it favoured the organised legal profession to the detriment of sole practitioners and independent advocates. Dr Naidoo’s proposed changes to the Constitution to fix bias against practitioners in law who are not associated with the organised legal profession.

In the regulatory framework of the legal profession, the Law Society governed the attorneys profession as well as the National Bar Council of SA. However, some advocates were not members of either of the two – which pertained before the recent amendment that organised the entire profession under one act known as the Legal Practice Act (LPA).

Dr Naidoo complained about his non-appointment as a judicial officer after he claimed to be recommended by the screening committee of the Judicial Service Commission (JSC).

Dr Naidoo proposed these amendments to the Constitution:
- S174(4)(a) to clarify if a screening committee could, without public scrutiny, remove a nominee from the list of nominations, including clarifying the President’s role.
- S18 or S22 to provide that everyone has the right not the be compelled to join an association to practice their trade, occupation, or profession.
- S34 to include private arbitration.
- S34; S171; and S173 to address issues on the clogging up of the Court Roll which makes it impossible to comply with relevant Uniform Riles on an urgent basis.
- S178(1)(e) and (j) to provide for fairness to sole practitioners and independent advocates, and not only members of the Bar; and to amend (j) to provide that the President and Parliament may appoint civil society members in those four positions as commissioners of the JSC.
- S174(5) to provide that the President could appoint other recommended appropriately qualified persons (with no judicial experience) as judges of the ConCourt.
- S37 by deleting the connecting word “and” between S37(1)(a) and (b) and replaced with “or”.
- S42(6) to provide clearly for Members of Parliament (MPs) to be able to sit in person separately in different provinces, including to meet via a remote digital platform.
- S195(2) to have an added subsection (d) to include Judicial Officers.
- S27(1)(b) to have an added provision that the State should ensure, within one year, that pit latrines are eradicated everywhere in SA.
- S24 and S26 to provide guidelines for protecting the environment against air pollution, hunting, and poaching wildlife.

The submission focused on the shortlisting of nominees for interviews and recommendation for appointment by the JSC.

Adv Mjenxane noted the process of appointment, term of office, and removal of judicial officers was set out in S174 to S178 of the Constitution.

The JSC screening committee is a substructure of the JSC, and not a decision-making body itself. On the removal of Dr Naidoo’s name, it was not removed by the screening committee as alleged in the submission, but rather it was the decision of the JSC. The internal arrangements of the JSC are a matter provided for in the legislation and it was therefore empowered to have subcommittees to do some of the screening work.

Legal Services’ noted the credence in Dr Naidoo’s complaint that sole or independent practitioners are marginalised in appointments. However, its view was that the recourse is not in the amendment of the Constitution. The legislative framework had sufficient provision for Dr Naidoo to seek recourse against his allegations of unfair treatment of sole practitioners such as himself.

Dr Naidoo’s submission did not indicate if he had invoked the Promotion of Access to Information Act (PAIA) to access the JSC decisions to ascertain from where that alleged unfairness emerged. Legal Services maintained that if Dr Naidoo had undertaken this route, the Committee would be empowered with sufficient information based on evidence.

The profession was currently governed by the LPA which established the Legal Practice Council as the regulatory statutory body that governed all legal practitioners, including sole practitioners. The matter of marginalisation of some practitioners, for instance by the General Council of the Bar, should rather be referred to the Council to investigate the veracity and recommend a way forward.

Sole and independent practitioners were advised to first exhaust all the remedies available to them in law before considering a possible amendment to the Constitution to address the issue raised.

Adv Mjenxane outlined the legal view on the proposed amendments:
- S24 has not been substantiated as it already includes all tribunals. This section involves process and not constitutional rights.
- Court procedures; inherent power and the court roll are not a matter for constitutional amendment but rather about systems and processes which falls outside the jurisdiction of the Committee.
- S178(1)(j) remains a policy decision for the Committee to consider.
- S37 is a policy issue which the Committee may consider. However, the submission has not fully substantiated the basis for the deletion and it was difficult to make the connections between the cited examples and its relevance to the recommendation for amendment.
- S42(6) to meet via digital platforms is moot as Parliament was already conducting its meetings in this manner without requiring an amendment to the Constitution.
- S195(2) is not substantiated. Matters on administration of courts are regulated by Chapter 8 of the Constitution, while S195 deals with public administration of which courts are not part.
- S27(1)(b) was not substantiated as this is governed by policy, legislation and implementation. The amendment to this section is therefore both unnecessary and unjustified.

Conclusion
The Committee, if it agreed with these legal views, was advised to write to Dr Naidoo to inform him that the matters raised in his submission, except for the two policy matters, would be referred to the relevant parliamentary committees for further processing and possible resolution. Legal Services noted that its advice was intended to guide the Committee on possible options for consideration and that it would have to make its own decisions on this basis.

Process for deliberations and desirability of submissions
Mr Mthethwa proposed two options on how the Committee would deliberate on these legal opinions. Members could either discuss these matters in this meeting and adopt them or Ms Sipamla could provide a summary so that the Committee could adopt them one at a time.

Mr Xaba replied that while the presenters had done well in clarifying and providing guidance, he required more time to process this information as this was the first time the Committee received so many legal opinions in one sitting. He questioned if the Committee should consider inviting the submitters to present and elaborate on these matters. Understanding from the submitters’ perspective would create nuances which may benefit Members and improve how they respond to these matters.

Mr Xaba asked Legal Services to advise the Committee on how it should process this information. He noted Legal Services disagreed or partially agreed with some submissions. What was the process to conclude these? He sought clarity if Legal Services’ decision to support or disagree with submissions meant that those cases were then concluded. Would the submitters be satisfied that the Committee was able to effectively apply its mind on the submissions without those submitters getting an opportunity to present before it?

Ms Sipamla noted Dr Gondwe’s recommendation earlier that Members would need to interact with the information received. It was for the Committee to decide to call the submitters to present before it. Ordinarily, the Committee held public hearings where the submitters an opportunity to answer clarity seeking questions. However, this process of hearing the legal opinions first allowed the Committee to understand the matters that did not necessarily require it to call all the submitters. It would then only call the ones where there was a possibility for the Constitution to be amended.

The Committee should decide in its deliberations on the matters where there was a clear-cut decision that the provisions were provided for in national legislation and did not necessitate a review or amendment of the Constitution. It would eliminate those matters and write to the submitters to advise them on this.

In instances where the Committee would refer matters to the portfolio committees that dealt with the subject matter of the submission, it would also write to the individuals. However, where submissions evoked a desirability to amend the Constitution, the Committee would usually call the submitters similar to what it did with Equal Education. As Members would recall, Equal Education presented to the Committee after Adv Mjenxane had presented his legal opinion.

Ms Sipamla confirmed that it was for the Committee to decide on the strategy going forward. The Committee should hear from the submitters, but it was also recommended to receive legal advice and to call the relevant stakeholders where necessary such as PanSALB to respond to the proposals in the submissions. The Committee could then decide on the desirability after considering the stakeholders, the submitters, and the legal advice from Parliamentary Legal Services.

Mr Mthethwa proposed that Ms Sipamla should prepare a high-level summary in a table with a column on the submission, the legal opinion, the desirability of each matter, and finally a space for the Committee’s decision on the submission. The Committee would select those that it found to be undesirable, and those that still needed to be reprocessed.

Mr Nqola supported the proposal.

The Secretary noted the Committee did not receive a briefing on Opinion 34 of 2020 on the review of S1 and the S36 cross-referenced with S37 in the Constitution.

Ms Ebrahim replied that this legal opinion was drafted by Adv Frankie Jenkins who was attending the Inter-Parliamentary Union (IPU) Assembly in Spain. He attempted to log onto the meeting platform, but it was possible that he had lost connection.

Mr Mthethwa thanked Ms Ebrahim for the clarification. The Committee would still receive this briefing, but it should deal with the opinions presented in the meanwhile so that it could have a way forward on these matters.

He confirmed that the Committee would receive a high-level summary on all the submissions and legal opinions in the form of a table so it could reflect and make its decision. He thanked Legal Services for the excellent work in assisting the Committee which clarified the Committee’s role in these submissions. The Committee would consider its detailed inputs in making a decision. He thanked Members and closed the meeting.

Share this page: