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JOINT CONSTITUTIONAL REVIEW COMMITTEE
2 February 2004
REVIEW OF 2003 PUBLIC SUBMISSIONS BY SUBCOMMITTEE
Documents handed out:
Summary of Submissions to the Joint Constitutional Review Committee
The Democratic Alliance supported the bringing back of the death penalty for 'extreme' crimes. The Subcommittee saw no need for reducing the number of provinces. Members also refused to extend political rights to foreigners. The Subcommittee could not decide whether the role of traditional leaders in local government should be dealt with in terms of Chapter 7. A decision would be made after the Bill dealing with this issue has been finalised. Members also refused to recommend an amendment so as to allow a community sharing a common cultural or language heritage to have the right to self determination. Members also saw no need to amend the property rights clause.
The right to a fair trial
B.P. Ntema and MT Ngwenya submitted that Section 35(3) of the Constitution should be amended by specifying the information that the accused is entitled to and the time periods for preparation of trials and beginning and conclusion of trial. They also submitted that Section 35(3)(d) should be amended to provide after the word 'delay', that "or to have all their charges dropped if the 48 hours deadline referred to in subsection 35(1)(d) is not met".
Mr J. Jeffrey (ANC) noted that all that is being requested is the addition of more details in the Constitution. He felt that such details should not be specified in the Constitution. With regard to the dropping of charges, he indicated that the law currently says what should happen if an accused is not brought before court within 48 hours. Hence he saw no need for an amendment of the Constitution.
Ms D Smuts (DA) also felt that it is not desirable to go into finer details in the Constitution. She felt that if too much detail is given in the Constitution there might be unintended consequences.
The Subcommittee agreed that there is no need to amend the Constitution so as to accommodate these submissions.
The Prosecuting Authority
M. Montesh and M.T Ngwenya submitted that s179 of the Constitution provides for the establishment of a single National Prosecuting Authority. They argue that this does not legitimise the Scorpions and therefore the actions of the Scorpions are unconstitutional.
Mr Jeffrey said that nobody has questioned the constitutionality of the Scorpions before a court of law. He felt that there is presently no need to tamper with the Constitution. The Subcommittee agreed that there is no need to amend the Constitution on this issue.
The Police Service
Mr Montesh submitted that having a police structure at a local sphere of government is a waste of resources and results in duplication of functions. He consequently submitted that Section 205 should be amended so that the structure at provincial and local level is scrapped.
The Subcommittee did not agree with this submission.
The right to life
NK Govind and MT Ngwenya noted that the Constitution guarantees everyone the right to life. However, they felt that an exception should be made by saying "except when one is found guilty of having taken the life of another person". They said that one who is convicted of murder should forfeit the right to life.
Ms Smuts said that the DA is in favour of the death penalty for extreme crimes. She acknowledged the Constitutional Court decision on the death penalty issue in the case of S v Makwanyane. She indicated that Parliament had lost a chance for debating the death penalty issue before the issue was adjudicated upon by the Court. This issue always crops up when people are asked to make submissions and that perhaps the issue should be debated in Parliament. She was also quick to add that she respects the judgement of the Court on this issue.
Mr Jeffrey said that the issue should be referred to the full Committee where a decision would be taken as to whether to debate the matter.
The Subcommittee agreed not to recommend any amendment until the Committee has met as a whole and taken a decision.
NK Govind and MT Ngwenya submitted that the number of provinces should be reduced to four or five by joining or combining provinces, or by re-drawing the boundaries. Consequently, they proposed that Section 103 should be amended accordingly.
Ms Smuts indicated that the DA is in favour of federalism and see no need for reducing the number of provinces. Members also agreed not to recommend the proposed amendment.
Crossing the floor
NK Govind submitted that a member who crosses the floor on at any sphere of the government should lose his or her seat instead of carrying the seat over to another party.
Members agreed that the floor crossing issue was debated before the relevant legislation was passed and therefore there is no need to revisit the issue.
Protection of rights affected by security and security related legislation
The Afrikanerbond submitted that s12 should be amended by the following addition:
(3) Everyone has the right to life and protection against exposure to violence, armed robbery, rape and uninvited access to his or her residence. Infringement of this right shall be deemed to be a very serious offence".
Mr Jeffrey said that this submission does not add anything that is not included in Section 12. He felt that the submission is an attempt by the Afrikanerbond to make a political statement in the Constitution.
Ms Smuts said that the submission highlight the fact that people are crying for help and that she symphathises with them. However, she also felt that there is no need to amend the Constitution.
The Subcommittee agreed not to recommend an amendment of the section.
Citizenship and political rights
The Freedom Front proposed that Section 19 of the Constitution should be amended to enable adult citizens who are outside the Republic to vote.
Ms Smuts said that the DA supports the submission.
Mr Jeffrey said that the Constitution is clear as to who should or might vote. He said that one is dealing with a political issue raised by the FF and the DA because they think they would do well if citizens who are abroad are allowed to vote.
The Subcommittee decided to refer the issue to the full Committee on Constitutional Review.
Women Against Community Abuse (WACA) proposed that the applicability of the Bill of Rights should be extended to cover refugees and immigrants. Such an extension should also cover political rights contained in Section 19 of the Constitution.
Mr Jeffrey indicated that the Constitution reserves certain rights to citizens whilst others are for everyone to enjoy. It would be inappropriate to extend political rights to foreigners. He gave the right to stand for public office as an example.
Ms Smuts said that there is nothing wrong with the Constitution as it does everything that is expected under international protocols.
The Subcommittee agreed not to recommend an amendment.
The Freedom Front said that Section 9 enshrines the right to equal treatment and that Section 9(2) provides that certain measures may be taken to promote equality. They proposed that the application of this section be restricted by the insertion of the following:
"such measures may not discriminate or have any negative impact on any one born in or after 1985".
Ms Smuts said that she understands the need for affirmative action. She added that there should be a sunset clause for affirmative action as it is currently practiced otherwise it would become unfair. She suggested that the Freedom Front be given an opportunity to come and state their case before the Committee.
Mr B Martins (ANC) indicated that the Freedom Front needs to be clear and say that they are opposed to affirmative action. He opined that they are addressing an issue that does not warrant an amendment of the Constitution.
The Subcommittee decided not to recommend an amendment.
WACA submitted that Section 10 of the Constitution should be amended to make specific mention of physically and mentally disabled persons.
The Subcommittee agreed that the section applies to everyone including physically and mentally disabled persons. They therefore recommended no amendment.
The Freedom Front (FF) proposed the amendment of Section 29 of the Constitution.
Ms Smuts felt that the summary of submissions does not correctly reflect the viewpoint of the Freedom Front. She suggested that the Party should be afforded an opportunity to brief the Committee on this issue.
The FF proposed that the duty of the Pan South African Language Board to promote and ensure respect for languages used for religious purposes under Section 6(5)(b)(ii) should explicitly include Latin.
Ms Smuts wondered how much and how frequently Latin is used in churches. She cautioned about being unrealistic about what the Language Board should do.
Mr Martins said that the FF needed to motivate the need for the explicit mention of Latin.
Adv Holomisa asked why members would like the FF to be given an opportunity to motivate their submissions.
Mr Martins replied that the FF is a political party with members in Parliament hence the need to allow them the opportunity.
The Chair indicated that the FF is represented in the Committee and that if it feels that it has to debate an issue it is free to do so in the meetings of the Committee. He said that the FF should be treated equally to other persons who have made submissions.
WACA submitted that the role of traditional leaders in local government needs to be addressed in terms of Chapter 7 of the Constitution.
The Committee agreed to wait until the legislation bearing on this issue is completed before deciding on whether an amendment is necessary. Members felt that the legislation might meet this concern.
The FF proposed that right to self determination should allow any community sharing a common cultural or language heritage, if it so desires, the right to self determination within a territorial entity of the Republic, or in any way determined by national legislation.
The Subcommittee rejected this proposal.
Arrested, detained and accused persons
The Subcommittee agreed not to recommend an amendment
WACA noted the plight of mentally and physically disabled persons in negotiating the legal system. They proposed that Section 35 should be amended in order to take these persons into account.
The Chairperson said that the section as it stands applies to everyone and therefore there is no need for more details in the Constitution.
Ms Smuts noted that Section 35 is very expansive compared to most sections. One should be concerned with whether the anti-discrimination and equality clauses would impose an obligation on the courts.
Members agreed that there is no need for a constitutional amendment.
Animal Voice and Compassion in World Farming and the Humane Education Trust proposed the inclusion of the right to humane treatment for animals within the South Africa Constitution.
Ms Smuts opined that this is a good idea in that it would stop government from passing legislation that would result in inhumane treatment of animals. However, she felt that there is no need to amend the Constitution.
Members agreed that if there is any deficiency in the law, the relevant legislation should be amended and not the Constitution.
Tshwane Late Land Claims Forum called for the deletion of Section 25(7) based on the time-frame used by the colonisers to appropriate land from indigenous people of South Africa.
The South African Constitutional Property Rights Foundation also recommended the revision of Section 25.
Ms Smuts felt that no political party would support these submissions. The submissions indicate a complete re-think of property rights and this was unacceptable.
Members agreed not to recommend any amendment.
Composition of the NCOP
The NCOP proposed that Section 61(2)(b) and 62(3)(b) be amended. It is proposed that the Constitution should clearly provide that "it is only those permanent delegates whose party's composition is impacted on by the floor crossing in provincial legislatures, who should lose their membership of the NCOP and not all permanent delegates from a provincial legislature that has had its composition changed as a result of the crossing of the floor."
The Subcommittee decided to afford the NCOP a chance to brief them before deciding on the desirability of the amendment.
Section 217(1) of the Constitution states that "when an organ of the state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective". Terry Crawford-Browne (ECAAR-South Africa) contended that the arms deal violates Section 217 and is therefore unconstitutional. According to the submission public announcements on the arms deal stated that the procurements would be 'affordable' because the expenditures of R30 billion equivalent would be 'offset' by foreign investments and exports worth R110 billion, creating 64 165 jobs. The submission furthermore, states that offsets are prohibited in terms of Article XVI of the WTO Plurilateral Agreement on government procurements. The submission also argues that the arms deal has highlighted the fraudulent nature of offsets and that they do not comply with section 217. In the light of the above Mr. Crawford-Browne requested a directive from the Joint Constitutional Review Committee to the Department of Trade and Industry that offsets are incompatible with constitutional imperatives in terms of s217.
The Subcommittee dismissed the attempt to argue that the arms deal is unconstitutional.
Submission from the Minister of Arts, Culture, Science and Technology
The submission highlights that there are problems in the arts and culture sector regarding the alignment of legislative competencies in Schedule 5 of the Constitution. The Minister suggested that these are local community services and that service delivery would improve if there were no legal impediments to the local authority's role in these activities.
The Chair noted that he had informally advised the Minister to take the matter to the Minister of Justice. The Subcommittee agreed that if the Minister continues to have problems, he would be invited to come and brief the Committee.
Addition of a clause in the Constitution to control the influx of foreigners.
The Subcommittee agreed that existing legislation sufficiently regulates the issue of foreigners and that there is no need for a constitutional amendment.
The meeting was adjourned.
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