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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 February 2005
CITATION OF CONSTITUTIONAL LAWS BILL: BRIEFING; MAGISTRATES’ COMMISSION REPORT; SADC PROTOCOL ON Legal Affairs
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Citation of Constitutional Laws Bill [B5 – 2005]
Protocol on Legal Affairs in SADC
The Citation of Constitutional Laws Bill ensures that all amendment bills to the Constitution will follow the American and Indian system of consecutive numbering rather than numbering them per year as any Act of Parliament. The Committee requested certainty that the Citation of Constitutional Laws Bill does not amend the Constitution itself but merely the eleven amendment acts that have amended the Constitution between 1997 and 2004. It also discussed if translated versions of bills were regarded as authoritative.
The Committee discussed the decision by the Chairperson to close the upcoming meetings where the Committee will reviewing the Magistrates’ Commission Report on removal and suspension of certain Magistrates.
The SADC Protocol on Legal Affairs will not be ratified as the relevant SADC structures were now defunct
Citation of Constitutional Laws Bill
The Chair explained that for every Act of Parliament, a numbering system was allocated based on the year it was enacted. The Constitution was also numbered accordingly. However, the Chief Justice had recommended that the Constitution be numbered in line with an international trend followed by the USA and India. Therefore, the current Bill was intended to address the citation of the Constitution and subsequent amendments to it.
Mr J Labuschagne, Department of Justice legal drafter, gave the briefing on the Bill. The State Law Advisors" Office was represented by Mr Herman Smuts and Ms Hloni Mosiayane.
Clause 1 - 3
Mr Labuschagne explained that this provision deleted the number, No 108, from the 1996 Constitution. In future, the reference would be to Constitution of the Republic of South Africa, 1996. The subsequent amendment laws to the Constitution would be numbered consecutively and not according to year.
The Chair said the wording of Clause 1 was confusing as it still mentioned Act No 108 of 1996. There should be no mention of the number as the clause was seeking to delete this. Ms S Camerer agreed. The Chair requested the Department to consider this concern.
The Chair noted that the amending Bill was not a substantive amendment. She asked if the Bill was amending the Constitution itself.
Mr Smuts replied that the Bill did not amend the Constitution but only the eleven amendment Acts that had amended the Constitution so far (see Schedule of Bill). He cited Section 74 of the Constitution which provides for Bills amending the Constitution and the procedure for this.
Mr Jeffrey (ANC) asserted that the short title of the Constitution was being amended by this Bill.
The Chair contended that the system of amending Acts of Parliament and the Constitution should be the same.
Mr Smuts interjected and said that the short title of the Constitution had been assigned to it by the Constitutional Assembly whereas its assigned number was done administratively by the publishers.
Mr Jeffrey recommended that the Department of Justice approach the Chief Justice for an opinion on whether this amendment bill could be regarded as a constitutional amendment or not. Mr Labuschagne responded that a request for comment on the Bill had been sent already to the Chief Justice. The Department has not yet received an opinion from the Chief Justice on the matter.
Mr Jeffrey asked if the long title of the Constitution could be amended and requested the Department to research the matter.
Mr Swarts (ACDP) referred to the Schedule and asked why some of the Acts amending the 1996 Constitution had been written only in the English language.
Mr Labuschagne explained that after a Bill had been passed by Parliament it subsequently needed to be assented to by the President. The President usually assented to an English version of the Bill and subsequently it would be translated into Afrikaans or other languages.
Mr Jeffrey disagreed and said the President was at liberty to assent to the Bill in any of the eleven official languages. He was of the view that the translated version in any of the official languages merely served as a guide.
The Chair asked if the translated version enjoyed any authority as Parliament had not passed the translated version of the Bill.
Mr Smuts replied that the English version as assented to by the President was the authoritative one. However the translated version was sometimes used by the courts as a helpful guide to interpret legislation.
The Chair said that these interpretations were confusing and requested the Department and the State Law Advisors’ Office to research the matter.
Magistrates’ Commission Report on removal and suspension of certain Magistrates
The Committee had a brief discussion on the report by the Magistrates’ Commission on the removal and suspension of certain Magistrates from the Bench. The Magistrates Commission was due to table its report on the disciplinary hearing of three Magistrates whose names had yet to be disclosed.
The Chair said that the meeting – which would take Place the following day – would be a closed session for Members only. The meeting was another platform were the magistrates were ‘given a second bite at the cherry’. Therefore the Committee would serve as a quasi-review body. She cautioned against the notion that this procedure was either an appeal or disciplinary hearing.
Ms Camerer (DA) asked why the meeting was to be closed.
The Chair replied that it was meant to ensure that the procedure was fair. In addition the Members may well find that the recommendations of the Magistrates Commission do not warrant a suspension or removal from the Bench. The Committee may recommend to the Minister of Justice not to remove or suspend these magistrates.
Ms Camerer remained concerned regarding the secrecy with which the meeting was to be conducted.
The Chair reassured Members that the closed sitting was merely to ensure procedural fairness and protect the individuals concerned. She assured Members that nothing was being hidden from the public.
Ms Camerer asked that the Committee to seek legal opinion on this matter. In addition she asked if the magistrates involved were possibly able to sue the Committee.
The Chair replied that legal advice had already been obtained and the Committee would not be exposed to a lawsuit. The Chair appealed to Members to read the Magistrates Commission report and to be punctual for the meeting.
Protocol on Legal Affairs in SADC
The Chair drew the attention of Members to the Protocol on Legal Affairs in SADC. Such a protocol should not be recommended by the Committee for ratification as the SADC structures at issue were now defunct. It was proposed that a resolution declining the adoption of this protocol be drafted by the Chair. The wording of the proposed resolution was read and Members were in favour of declining the adoption of the Protocol.
The meeting was adjourned.
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