Briefing on the role and mandate of the Committee and legacy matters

Meeting report

Co-Chairperson Breytenbach greeted everyone and said that this meeting had been issued at short notice, and in future the Committee would issue notice a week in advance so that Members could plan accordingly. This meeting would be a short one. She outlined the agenda for the meeting, and said that Co-Chairperson Sibande would be late for the meeting.

Role and mandate of the Committee

Mr Pilate Gwebu, Committee Secretariat, Constitutional Review Committee, said that the Committee drew its mandate from section 45(1)(c) of the Constitution of the Republic of South Africa, 1996 (Constitution).

Annually, an advertisement would be issued for 30 days for the public to submit submissions on amendments to the Constitution. These submissions were then presented to the Committee for decision. Legal opinion was sought on the desirability of the submissions. Once a matter was deliberated on, the Committee would adopt a report. If needed, the matter would be referred to the relevant committee. During an election year there was no advertisement for public submissions.  

Legacy submissions

The Committee received a briefing on the legacy submissions encompassing submissions carried over by the Committee from the sixth democratic parliamentary term. During the sixth Parliament, the Committee considered 66 public submissions, received a briefing on all submissions, considered legal opinions and conducted public hearings on some of the submissions.

What remained were the ten submissions carried over for the seventh Parliament Committee to consider; these were submissions from the 2021-year cycle discussed which had been processed together with the submissions received in 2022. The Committee had received one submission during the 2023-year cycle due to a change in the parliamentary advertisement process. The Committee held public hearings on 17 and 31 March 2023. This Committee did not make an annual call for public submissions during a National Election year, namely 2024.

(See attached for further details)

Discussion

Co-Chairperson Breytenbach opened the floor for comments. She said that they would go through the legacy report today.

Mr M Kaunda (ANC, KwaZulu-Natal) introduced himself. He wondered whether the Committee could venture into a public awareness campaign so that they would not have to wait on submissions. Ordinary members of the public should be aware of how to send submissions. He asked what type of awareness programme the Committee was to adopt.

Co-Chairperson Breytenbach said she had been on the Committee for ten years and they had received many submissions from various members of the public. The Committee’s reach was very wide, and there was never a shortage of any submissions.

Co-Chairperson Sibande proposed that they allow the Secretariat to present first and then questions may follow thereafter.

Mr Gwebu said that certain issues remained unresolved because the previous Committee was under a lot of pressure. He said his colleague would present on the issues left by the sixth Parliament, and the Committee would decide on whether to pursue said issues.

He added that the Committee had advertised in mainstream media. In the previous call for submissions, they had received only one or two submissions. The reason for this was that the House Chairperson could decide on which platforms to advertise. So if the Committee wanted to advertise in the Sunday Times, they could be instructed to use a smaller platform. They had advertised in all 12 official languages.

The Chairperson suggested they think about advertising on social media.

Submissions received by the Committee

Ms Sisanda Sipamla, Content Advisor, Constitutional Review Committee, said that the Secretariat had taken the Committee through the mandate. She took the Committee through other matters, particularly the submissions that the Committee had received.

(See attached for further details)

Discussion
Mr G Michalakis (DA) noted there was no qorom so the Committee could not take decisions. However it could still have discussions. He observed that absentees may be upset at discussions taking place without them. A discussion was possible and they should engage on the submissions as the Committee had a lot of work to do. He asked if the Committee could proceed.

Mr Gwebu said the Committee may proceed, but they could not make an official decision as there was no quorum.  

Co-Chairperson Breytenbach asked whether anyone had any comments on the first submission.

Mr Kaunda asked whether a legal advisor was present. Or could the Committee draw on the expertise of Co-Chairperson Breytenbach since she was an advocate. He felt the issues under discussion required legal advice.

Co-Chairperson Breytenbach responded that the Committee did not have a permanent legal advisor. Everyone present was Members of Parliament representing various constituents and should therefore be capable of making decisions on their own. If there was a lack of clarity on a legal issue, only then would the Commitee seek legal opinion. The Committee should make decisions on its own. Nevertheless, the Committee could still trust her for legal advice.  

Co-Chairperson Sibande said he had heard Ms Sipamla about how to proceed on this matter. When the submissions were presented, a legal opinion was required to guide the Committee. His proposal was that perhaps the Secretariat and Content Advisor could guide Members as the submissions were considered.

Mr Kaunda supported Co-Chairperson Sibande’s proposal. This meeting should be treated as an introductory meeting and in the next meeting, the Committee could sift through the submissions. The Committee should try and understand the legacy matters in this meeting. Members should not be absent from future meetings. Parties should view the Committee as critical.

 they could elaborate on the issue of swifting; which required a decision to be made. In this meeting they would try and understand the legacy matters. They could not allow the Members to be absent from the meetings in future. Parties should view this as critical; if Members did not attend the meeting, they should be removed. Absentees should issue apologies and present valid reasons for their absence.

Mr Michalakis said excluding Members who did not attend meetings would be ideal. He said the implication of what was said was that the Committee could only make decisions upon receiving advice. Members were lawmakers - they required basic knowledge of the law, and the Committee was in need of this. He did not think incompetency was implied at the previous suggestion. The next meeting would be in January/February 2025. He recalled attending a strategic planning session where it was mentioned that the public had lost trust in Parliament. If the Committee continued this way, they would not restore the trust in Parliament. Members should apply their minds and with haste.

Ms N Du Plessis (DA, Gauteng) introduced herself. She agreed that a discussion should be had prior to the next meeting. Would the first submission not be a Constitutional Court issue rather than a Constitutional Review Committee issue? The Committee could discuss this upon receiving advice, along with budget matters. She also mentioned that some Members went to great lengths to attend the meeting today- this should not be in vain.

Co-Chairperson Breytenbach agreed that the Committee needed to use its time wisely.  

Mr N Pienaar (DA, Limpopo) agreed that the Committee needed to be productive. There was a legal opinion on all the matters. The legal opinion could be submitted in writing which the Committee could go through as it considered the submissions. The Committee could classify the matters next year.

Co-Chairperson Breytenbach noted that the majority of the Members agreed to proceed.

Co-Chairperson Sibande appealed as the Committee was dealing with important issues. Absent Members could not be excluded. These Members should be given the benefit of the doubt for the next meeting. Members ahd the right to make decisions. The Committee should commence its work on a positive note. He called for the proposal earlier to be supported.

Mr Michalakis said he also made a proposal which was supported by many of the Members. The request was that the Content Advisor provide background for the Members, so they had something to work with, especially upon receiving legal opinions. This proposal was supported.

Co-Chairperson Sibande said that he had made the same proposal earlier.

Co-Chairperson Breytenbach said they could proceed.

Ms Sipamla said she had fulfilled her role of briefing the Committee on the submissions they had received. Members could now deliberate on this. She said this deliberation was part of the work of the Committee, and this should stem from the Members directly. The legal opinions had already been prepared, and the Committee could decide which of the said opinions they wanted to hear. She supported the proposal to hear the legal opinions. On page 3, Members could look at the first section and give their input. She then read out the section. She asked for the Committee’s input. The Legal Advisors would join the Committee in the near future and affirm the opinions.

Mr Kaunda said the legal advisors should be brought in so the Committee could then make a decision. Could the Committee now wait until the legal advisors appeared?

Co-Chairperson Breytenbach said that a decision had already been made to proceed, and if Mr Kaunda felt that he could not contribute then other Members would do so on his behalf. The legal advice would be mailed to him so that he could make submissions for the next meeting.

Mr Kaunda asked what was being proceeded with.

Co-Chairperson Breytenbach said it was very clear what was being proceeded with.

Mr Michalakis asked whether, with regard to the first submission, the issue of whether there was a constitutional process had been raised. Had this been discussed in the submissions? Was it part of the deliberations of the previous Parliament?

Ms Sipamla said she had presented only a summary of the written submissions received. This particular organisation had not been invited to public hearings. The Committee was briefed only on the content of what was submitted. The organisation was speaking on the booklet and saying there was a lack of clarity in the Constitution; this was why the Committee called the public into the meetings.

Co-Chairperson Breytenbach asked whether there was a legal opinion on this matter.

Ms Sipamla confirmed this. Every submission had a legal opinion however there was no meeting for the advisors to speak to these opinions.

Co-Chairperson Breytenbach asked whether said legal opinions would be supplied to the Members.

Ms Sipamla said that the Legal Advisors usually presented before the Committee, which they had not yet done, however she could obtain the legal opinions.

Co-Chairperson Breytenbach asked that this be in order, prior to the briefing.

Ms Kaunda noted there were no legal opinions to be presented today therefore they should leave the first submission for now and move on to the next.

The Chairperson said this point had already been dealt with.  

Ms Du Plessis read from chapter eight of the Constitution which defined the role of the Constitutional Court. She noted that there was no amendment, and it made sense to have more discussions on this matter. She asked if she was reading chapter eight correctly.

Co-Chairperson Breytenbach confirmed that Ms Du Plessis was reading chapter eight correctly.

Co-Chairperson Sibande said that they were moving in a circle on this matter. He appealed that everyone be treated with respect. He sensed that some Members were scared to proceed on this matter. Perhaps the Committee should receive the legal opinions and take the matter from there. The Committee needed guidance to proceed. It was proper to receive relevant documentation first before discussions took place. This was a new Committee and the Members were ready to work. The legal team should first brief the Committee before there were discussions.

Mr Michalakis said he was not antagonised by the Co-Chairperson; he would have mentioned it if he truly felt this way. He had questions about the document received. He could think without a legal opinion present. He should be allowed to ask his questions. The process was not being rushed. He had the right to ask questions. He urged the Committee not to regress. He asked if he may proceed asking his questions.

Mr Kaunda said that the Members all had equal rights. Those who want to participate or seek clarity may do so. He recalled a Member saying the first submission was more of a Constitutional Court issue. The Constitution was the supreme law. Legal Advisors should be consulted on constitutional matters. He did not want to go in circles. He noted that his question was, what was the response of the legal advisors on this matter. And the response was that there was no comment on this as yet. The Committee would wait for the presence of the legal advisors on this matter. There were no new matters dealt with.

Co-Chairperson Breytenbach disagreed. While she respected his opinion, she felt Mr Kauda was regressing the meeting.

Mr Kaunda interjected and stated that he was not participating in something unclear.

Co-Chairperson Breytenbach said he was free to do so.

Co-Chairperson Sibande asked Mr Kaunda to please sit down. The Committee was one family. Members were all voted in by different parties but were still one family. They should all tolerate one another. Their first meeting could not commence in this manner. He again pleaded that the Committee be updated on the work done by the legal advisors. The country and the world were watching them. There should be an amicable approach and emotions should be controlled. There should not be antagonising– everyone must be respected. The Committee was a family and the ship should not be sunk. They should unite and not argue. This matter was very important and decisions could be taken today if necessary. A way forward should be decided on. If they were to follow the procedure, they would have to proceed step by step.

Mr Kaunda apologised for standing up without clarifying his own position. He felt suppressed in the meeting and felt it was futile to continue without the necessary tools. He would rather leave the meeting than stay and not participate.

Co-Chairperson Breytenbach regretted that Mr Kaunda felt this way as she felt he could still contribute to the meeting without the necessary legal documents. He could at least hear the views of the other Members and form his own views. However, he could leave if he so wished.

Co-Chairperson Breytenbach said that they all had a duty as Members of Parliament. She was not sure why the absentees were not at the meeting today. In her ten years’ experience, she could not guarantee that the absentees would ever arrive. This Committee had a bad history of postponement. She referred to the table presented, noting that the first submission was made in 2021. This still had not been dealt with. The second submission was made in 2021. The Committee could not afford any further delays. She was grateful that the Members had arrived at the meeting. She wished to hear tviews and comments, and at the next meeting the Committee could make plans on what to do next after receiving legal advice. The public was not being served adequately in this manner. The Committee did not always require legal opinion; they were lucky this time round. Members should learn from one another, and they could start right now. She wanted to hear inputs and hoped other Members felt the same way.

Mr Michalakis asked for clarity in terms of the procedure. Firstly, he asked if he could comment on all the submissions or only the first one.

Co-Chairperson Breytenbach thought others also wanted to add in their input. Mr Michalakis should be very brief. She read one of the submissions - when this submission was made, she was sure that nothing was yet concrete. She assured Members that a National Prosecuting Authority (NPA) Act was currently being drafted. There was no need to continue with this submission.

Co-Chairperson Sibande reiterated his appeal. The issue of the land has been in existence since 1912. If the Committee approached matters, they should do so effectively. This matter was not to be disregarded, but to be equipped with the necessary tools. He appealed that Members be given a platform to speak. The decisions the Committee made bore consequences for the public. The Committee must be well-equipped. They were the ones to take decisions. He insisted Members be armed with the necessary information before sharing their thoughts. The meeting was currently being recorded - everyone could see and hear them. He did not wish to be misquoted. Other Members agreed with him. The matter should not be taken lightly, as this may haunt the Committee in the future. They had agreed not to make decisions earlier, yet they now seemed to be doing the opposite.

Ms Du Plessis clarified that she had asked her question earlier so a discussion on it may commence. As the Committee, they were already equipped with the knowledge of the Constitution. She wished for to move forward because their role as a Committee was to have discussions on constitutional amendments and Members could do a bit of research. The Committee would not make decisions per se but open up conversations. She pointed out Rule 14F in the Joint Rules concerning repetitive arguments as they had been arguing for one and-a-half hours. She had to cancel her own plans to be with an activist who was currently hospitalised, just to attend this meeting, where semantics were being argued about. It was clearly stated earlier that the Committee did not require a quorum to have a discussion. She proposed moving with clarity after taking a short break, as the Committee could not sit and waste any more time.

Co-Chairperson Sibande asked everyone to turn to page two of the presentation, and noted Members would have been properly guided had they been attentively listening. He read from page two. He stated that the Members were right for raising their concerns, however the Committee was guided by the Rules. He read from the document. His view was that the Committee should take decisions; this was stipulated in the guidelines. He assured everyone that they had consulted the Constitution.

Mr Kaunda said Members should understand one another. He was well prepared for his other committee, but they were not properly prepared for this Committee. They should ensure that the legal advisor is present prior to the first meeting. The Committee could not discuss the Constitution without the presence of the legal advisors. They were not prepared as yet; Members needed information before making decisions. Why was the meeting proceeding? He did not think time was wasted because Members heard about the legacy submissions. In the next meeting the Committee would officially make decisions and share inputs, after having done research. This was his proposal. He did not feel time was wasted. He felt the Committee was done with its agenda for the day. They could engage a Legal Advisor for their meeting in January 2025.

Co-Chairperson Breytenbach called for a vote on who wanted to proceed with the meeting. She said that Mr Kaunda could share his thoughts which could benefit the Committee but if he preferred not to do so she would accept his view. She asked Co-Chairperson Sibande what his thoughts were.

Co-Chairperson Sibande suggested the meeting be adjourned, so that Members could return being better informed on the important aspects. He had experienced the challenges and regrets faced by the Committee. He followed the documents precisely.

Mr Michalakis stated, for the record, that he was very dissatisfied and disappointed in not being given the opportunity to represent his constituents. He wanted to do his job and he could not. He wanted this on record. He thanked Co-Chairperson Breytenbach for allowing Members this platform to present their ideas.

Mr Kaunda asked to state for the record that the level of preparedness did not allow Members to proceed with the meeting today. They could not make a determination on the first item. He wanted to have his views recorded.

Closing

Co-Chairperson Breytenbach noted that Mr Kaunda’s views were recorded several times, including his early attendance. She suggested that they adjourn the meeting. She suspected there would be more absentees at their next meeting, which would lead to many difficulties. She would take this matter up with Co-Chairperson Sibande.

Mr Pienaar wondered if they could reschedule their meeting for next week Friday, having first prepared and engaged the Legal Advisors.

Co-Chairperson Breytenbach stated that she would deliberate on this with the Co-Chairperson Sibande.

Co-Chairperson Sibande supported this, mindful of the programme. He thanked the Members for attending the meeting against all odds.

The meeting was adjourned.