Legal Opinion on Outstanding Submissions

Meeting report

Co-Chairperson Breytenbach welcomed everyone to the meeting, which was called for the Committee to receive briefings on legal opinions from the Parliamentary Legal Services around legacy submissions. After saying that, she asked if any apologies had been received.

The Committee Secretary said apologies were received from Mr Nqola, Ms Muthambi, and Ms Dhlamini.

Co-Chairperson Breytenbach noted the apologies and thereafter handed over to the CLSO.

Legal Opinion on the African Criminal Justice Reform’s submission

Adv Frank Jenkins, Senior Legal Advisor, Constitutional and Legal Services Office (CLSO), said the submission argues that the National Director of Public Prosecutions (NDPP) is the custodian of accountability. African Criminal Justice Reform (ACJR) believes that the provisions allowing the President or Minister of Justice to appoint fourteen critical positions in the National Prosecuting Authority (NPA) concentrate the powers in the executive, and there should be more details in the Constitution of the appointment process. The second is that the removal of the NDPP should be in the Constitution and mirror the grounds for removal of the President in Section 89 and the Commissioners of Chapter 9 institutions.

The CLSO found that the matter was raised during the certification judgement, and there was a challenge to Section 179 that breaches the separation of powers. However, the Constitutional Court found no breach of powers as the NDPP is not part of the judiciary. Even if the NDPP or the NPA were part of the judiciary, nothing in the president's appointment would make it fall foul of the principle of separation of powers.

As such, the CLSO advised the Committee to first consider the statements of a former deputy chief justice, who spoke of the undue concentration of appointment powers in the hands of the executive, before deciding whether to pursue the matter further.

Mr V Gericke (EFF, Western Cape) asked when the Constitutional Court Judgement was handed down.

Adv Jenkins said it was handed down in 2018.

Mr Gericke said the EFF has argued for the NPA to be separated from the DoJ&CD, as it would preclude any possible conflict of interest and, more importantly, compromise the independence of the institution.

Mr S Nomvalo (MK) asked why Parliament’s role in appointing the NDPP was so minimal and whether it could challenge the President’s failure to initiate a process to remove an NDPP.

Adv Jenkins highlighted that the submission argues that there must be grounds for removal of the NDPP, similar to the President. The CLSO suggested that the Committee could look into whether Parliament or an individual political party can challenge the non-initiation of a process to remove an NDPP if it is convinced that the grounds have, in fact, been breached.

Dr J Hlophe (MK) said that the law allows the President to nominate a candidate to serve as the NDPP, make the appointment, and initiate the process to remove an NDPP. In his view, there was a need to examine how the powers to nominate the candidate could be removed from the President.

Co-Chairperson Sibande felt it was important to take into account South Africa’s particular context when comparing how other countries suggest a candidate to serve as the head of the prosecuting authority. He also proposed that the comparisons should include countries outside of the West.

Legal Opinion on the Sakeliga’s submission

Mr Bulelani Simani, Parliamentary Legal Advisor, CLSO, said the submission proposes that Parliament should abandon any process of amending Section 25 of the Constitution, at least in the current form it is being considered. Saekliga states that the current provisions of the Constitutional Amendment Bill did not advance the human rights and freedoms provided for in Section 1 of the Constitution. Sakeliga further submits that the amendment bill reduces and weakens the protection of rights. If Parliament wishes to continue with the amendment of Section 25 it should reformulate the amendment bill to strengthen, not weaken, the protection of property rights.

Sakeliga recommends screening the process for amending the Constitution first to ensure its adherence to constitutional principles. If it does not, the officers of Parliament must ensure that such a proposal does not move beyond the conceptualisation stage.

The CLSO pointed out that the Constitution has entrenched the rights referred to by Sakeliga and sets out specific procedures and majorities required to change any of its provisions. For instance, Section 74 states that no one may be deprived of property except in terms of a law of general application, and no law may permit the arbitrary deprivation of property. The same section goes further to say that property may be expropriated only in terms of the law of general application for a public purpose or in the public interest, and subject to compensation.

In Agri South Africa vs the Minister of Minerals and Energy, the Constitutional Court set out the approach to be followed when interpreting Section 25 of the Constitution, concerning expropriation. The judgement acknowledged the importance of this section in facilitating the fulfilment of nation-building in the country.

The CLSO told the Committee that the Constitutional Court has stressed in its judgement the need to strike a balance between the protection of property rights on the one hand and the state’s social responsibilities on the other. In contrast to Sakeliga, the judgement confirms that property rights are not absolute but subject to special considerations.

The CLSO said nothing unlawful or unconstitutional about the envisaged amendment to Section 25 of the Constitution.

Mr Gericke felt it would be difficult to ask questions on the legal opinion without going into detail. As such, he proposed that the next meeting be set out for further deliberations.

Co-Chairperson Breytenbach confirmed that members will have more opportunities to deliberate on their opinions at the next meeting.

Co-Chairperson Sibande added that the deliberations will take place on 28 March.

Legal Opinion on Dube Business Enterprise submission

Ms Buyeka Mtati, Parliamentary Legal Advisor, CLSO, said Dube Business Enterprise proposed fundamental changes to the preamble and Chapter 2 of the Constitution. It suggested that the word ‘everyone’ should be in the preamble with ‘citizens’ and include the words ‘those who legally live in it’. Dube Business Enterprise argued that state resources should not be used to fund foreign nationals, to prevent the influx of refugees, asylum seekers, and illegal immigrants. Moreover, it proposed that South Africa review all international agreements that have financial agreements with its citizens and that the international bodies that protect human rights should be the ones to provide the necessary funding for foreign nationals.

The CLSO said some of Dube Business Enterprise’s submissions did not appear to address substantive amendments to the Constitution. Should the Committee require further guidance regarding such proposed amendments, the CLSO can provide a supplementary opinion.

The CLSO believed that removing the word ‘everyone’ and replacing it with the word ‘citizen’ may not pass Constitutional muster. Furthermore, the principle of non-refoulement is a cornerstone of international refugee protection. It provides that no refugee should be returned to any place where there is a likelihood that he or she may risk prosecution, torture, inhumane or degrading treatment. Section 2 of the Refugees Act enshrines the right of non-refoulement.

As such, the CLSO submitted that the Committee may consider the court cases related to the submission to determine whether Parliament should amend existing legislation dealing with refugees and asylum seekers or whether South Africa should consider withdrawing from international agreements.

Dr Hlophe asked if the CLSO had encountered any country in the world where, in addition to protecting citizens and asylum seekers, the constitution also protected people who were in the country unlawfully.

Mr M Kaunda (ANC, KZN) felt more discussion was needed on how best to define a foreign national. Moreover, he requested that the CLSO provide the particular legislation and court judgements related to the protection of refugees.

Mr Nomvalo asked why the CLSO referred to acts of Parliament when the Constitution determined the standing of a statute or an act.

Ms Mtati said the CLSO did not investigate whether any country in the world provides protection to illegal migrants; however, it could do so if required.

The reference to acts of Parliament was made because any proposed amendments to the preamble of the Constitution, as submitted by Dube Business Enterprise, would require an amendment to the Refugee Act.

Ms Phumelele Ngema, Parliamentary Legal Advisor, CLSO, added that the CLSO examines legislation under the principle of subsidiarity.

Co-Chairperson Breytenbach requested that the CLSO provide written advice to the Committee on whether any country in the world provides protection to illegal immigrants and whether it could implement the proposals in the Immigration Bill.

Legal Opinion on Chidi Attorneys’ submission

Ms Ngema said Chidi Attorneys submitted that the recognition and development of African customary law must form part of the review of the Constitution, and that it is taught in academic and training institutions. The submission references Sections 4 (which sets out the powers of Parliament), 39 (2) (which includes common law), and 173 (the inherent powers of the supreme courts). Chidi Attorneys stated that the Section 173 provisions should also refer to customary law as it does with common law. 

The CLSO found that customary law is recognised under Chapter 12 of the Constitution and Section 39. Furthermore, many legal judgments have reinforced the importance of customary law and tasked the courts with developing it. It further found that customary law is being taught at most universities in the country. However, it advised the Committee that it would have to be directed to the executive for consideration as a policy matter.

Mr M Peter (UDM, Eastern Cape) asked if the Constitution was applicable for South Africans.

Dr Hlophe said the Constitution treated common and African customary law differently due to historical factors. As such, he believed that Parliament had to look at different solutions to empower African customary law.

Ms Ngema indicated that the Constitution seeks to be as inclusive as possible. She agreed that different solutions needed to be considered.

Legal Opinion on the submission made on Section 103 of the Constitution

Ms Ngema mentioned that the submitters argued that Section 103, read with Schedule 1A, of the Constitution should speak to provincial geographical areas and include territorial waters. They further assert that the Constitution does not have an expressed or tacit provision for its territorial waters (which they define as a belt of seawater extending 12 nautical miles).

The CLSO pointed out that the term ‘Republic’ as it appears in the Constitution, though not defined, includes the country’s territorial waters. The Constitution also references some international seawater and maritime conventions to which South Africa is a signatory. Chapter 14, Section 39 of the Constitution also ensures proper involvement and consultation of all those concerned, including international states.

The CLSO advised the Committee that it would be unwise to accept the submitters' suggestions and include ‘territorial waters’ in defining the Republic in Section 103 of the Constitution.

Legal Opinion on the Kara Heritage Institute’s submission

Ms Fathima Ebrahim, Parliamentary Legal Advisor, CLSO, said the Kara Heritage Institute was a non-profit organisation seeking to promote African languages, among other things. It submitted that KiSwahili should be included as an official language of South Africa. KiSwahili is an East African Lingua Franca (language used between people with different native languages), an official language of the African Union, and a national language in various African countries. As it is a language of trade and inter-ethnic communication, there is an argument to be made that it is a means of improving and increasing trade and promoting greater social cohesion amongst Africans in the continent.

The Constitution contains a multiplicity of language and language-related rights, including Sections 6 (1), (2), and (5). Section 9 (3) provides that no person may be unfairly discriminated against based on their language, and Section 29 (2) provides that every person has the right to receive education in the official language or language of their choice in public educational institutions where it is reasonably practical.

The Constitution provides that the Language Board must promote and create conditions for the specific development and use of official languages. In contrast, the Board must only promote and respect other commonly used languages.

The CLSO said it appeared that the recognition is sought based on elevating KiSwahili for international and not domestic interests. The CLSO said if the Committee were to consider the submission, it would have to consider the willingness of ordinary South Africans to have a language that is not indigenous to the country, whether there are economic advantages to designating KiSwahili as an official language, and whether doing so may result in less resources being made available for the development and protection of other Indigenous languages.

Moreover, the CLSO advised that the above considerations must be weighed against whether official status is necessary. The Committee should engage with the Kara Heritage Institute on its submission and with other communities looking to recognise their own languages.

Mr Gericke asked how many people spoke KiSwahili in South Africa.

Ms Ebrahim said she could not obtain that information.

Mr Nomvalo asked what the adverse impact is when a language is not recognised, whether the CLSO had researched the number of Indigenous languages not recognised, and whether Sign Language is considered an indigenous language.

Ms Ebrahim said Sign Language has been made an official language in the country. Once a language is declared official, additional resources must be allocated for its development.

Legal Opinion on the Council for the Advancement of the South African (CASAC) submission

Ms Ebrahim said CASAC was a non-profit public benefit organisation that sought to advance the South African Constitution as a platform for democratic politics and a transformation of society. In its submission CASAC proposes altering Chapter Nine of the Constitution by merging the Human Rights Commission, the Commission for Gender Equality, the Commission for the Promotion and Protection of Rights of Cultural, Religious, and Linguistic Communities, as well as including the National Youth Development Agency, and Pan South African Language Board.

CASAC relies on the 2007 Asmal Report by Parliament to consider the effectiveness and efficiency of the Chapter Nine Institutions. The report recommended, among other things, for establishing a single human rights body named the ‘South African Commission on Human Rights and Equality’. It based its recommendation on the following: there was an uneven spread of resources and capacities in respect of these three Chapter Nine Institutions; there was fragmentation and results in the duplication of approaches to the application of the Bill of Rights; and it would be more accessible to the public for the lodging and placing of complaints. To date, the National Assembly has not taken any concrete steps to implement the Asmal’s recommendations.

The CLSO advised the Committee to deliberate further on CASAC’s submission. In doing so, it could consider whether amalgamating the three institutions would strengthen their effectiveness. Also, Parliament’s oversight functions over Chapter Nine Institutions. Moreover, if the Committee accepted CASAC’s submission, the institutions would need to be dissolved. A new act would need to be drafted and promulgated to establish a new amalgamated South African Commission on Human Rights and Equality.

Mr Gericke asked if the CLSO could possibly provide more details on the legal matter concerning adding the Judicial Inspectorate of the Department of Correctional Services as a Chapter Nine Institution.

Co-Chairperson Sibande asked for further details on the Asmal report.

Ms Ebrahim said the CLSO will try to locate any information on the legal matter concerning the Judicial Inspectorate.

Regarding the Asmal report, she said the report and its findings still stand.

Co-Chairperson Breytenbach encouraged Members to go through the Asmal report.

Legal Opinion on the Helen Suzman Foundation submission

Adv Jenkins explained that the submission refers to Section 174 (the appointment of judges) and suggests that a clause be added that would allow the Judicial Service Commission (JSC) to make and publish the additional qualifications required for a judge's appointment. Furthermore, the submission argues that the JSC should have a fairer balance between politicians and technocrats.

The CLSO advised that the composition of the JSC was a policy matter.

Mr Nomvalo said it was problematic that the magistrates operated under the DoJ&CD and asked if this did not conflict with Section 165 of the Constitution. In addition, he asked if the Committee was only limited to deliberating on the Helen Suzman Foundation’s submission, or could probe other matters related to the JSC.

Adv Jenkis mentioned that the Constitution requires Parliament to have rules for a joint-constitutional review committee to review the Constitution annually. As such, it could probe other matters.

He pointed out that the magistrates' court was a part of the judiciary.

Co-Chairperson Breytenbach confirmed that the magistrates court formed part of the judiciary.

Mr Gericke felt that the Committee should not consider amending the Constitution unless a proposal is made.

Co-Chairperson Breytenbach said the Committee was not limited to only reviewing the Constitution based on public submissions.

Legal opinion on the Activate Change Drivers submission

Adv Jenkis outlined that the submission proposed an amendment to Section 152 (1)(e) of the Constitution, which deals with the objects of local government. The submission argues that citizens' lack of understanding of the Constitution made it difficult for them to make submissions on it.

The CLSO found that Sections 59 (1), 71, and 116 require public participation while processing all legislation. The Constitutional Court, in various judgments listed in the opinion, has emphasised the importance of the public giving meaningful input during the public participation process. Based on this, the CLSO did not believe it was necessary to amend the Constitution regarding public participation.

Mr Gericke felt that public participation at the local government level was different from that at the provincial and national levels.

Legal opinion on a submission by a member of the public

Adv Jenkins said the submission argues that the provision in Section 193 of the Constitution allowing the President to make two appointments to Cabinet outside the National Assembly was insufficient and should be increased. In addition, it argues that Deputy Ministers should not be provided for in the Constitution, and the appointment process of the Commissioner of the South African Police Services should not be left to the President.

The CLSO believed these were policy matters and could be deliberated on by the Committee.

Co-Chairperson Breytenbach told Members they would have the opportunity to engage on all ten legal opinions presented during the next meeting.

Co-Chairperson Sibande said the Committee would continue to seek legal advice from the CLSO from time to time.

Mr Nomvalo asked if the Committee could schedule two meetings to deliberate on the legal opinions.

Mr Gericke agreed with the proposal.

Mr M Pienaar (DA, Limpopo) reminded the Committee that these were legal opinions emanating from submissions made in the Sixth Administration.

Mr Gericke said members should be briefed on whether resolutions have been taken based on the legal opinions presented.

Mr Nomvalo pointed out that the submissions were not deliberated during the Sixth Administration.

Mr Kaunda said the Committee should consider allowing the public to engage on some of the proposals made in the submissions.

Co-Chairperson Sibande said the Committee would next meet on 28 March.

Co-Chairperson Breytenbach indicated that Members will have two days to discuss the legal opinions.

The meeting was adjourned.