Committee Functions: Table Staff and Legal Advisors’ briefing

Meeting report

CONSTITUTIONAL REVIEW COMMITTEE
6 April 2005
COMMITTEE FUNCTIONS: BRIEFING BY TABLE STAFF AND LEGAL ADVISORS

Chairperson: Mr A Schoeman (ANC)

Documents handed out:
Guide to Parliament’s obligations under the Constitution and legislation
Parliamentary Legal Advisors briefing: Provisions of the Interim Constitution that are still in operation (see Appendix)

SUMMARY
The Under-secretary to the National Assembly gave a briefing on the roles and functions of the Committee. He described the process of requesting comment from the public about amendments to the Constitution, the composition of the Committee (National Council of Provinces and the National Assembly representation) and the challenges facing the Committee such as time clashes. The Undersecretary believed that the work of this Committee had so far not led to any amendment of the Constitution. A parliamentary legal advisor briefed Members on aspects of the Interim Constitution that were still in operation and needed to be amended or repealed.

Concerns were raised around poor attendance and the Committee resolved to find a time slot that did not clash with other committee meetings. Committee Members were asked to suggest better ways of communicating with the public when requesting submissions about proposed amendments to the Constitution.

MINUTES

Table Staff briefing
Mr K Mansura (Under-secretary: National Assembly) explained that the Constitutional Review Committee was created to review the Constitution annually. He explained that other countries were faced with similar challenges and South Africa needed to be careful when making changes because a change in one part affected other sections. The process of reviewing the Constitution involved placing an advertisement in the media and the public was given 30 days to make submissions. Received submissions were then grouped according to subject.

He explained that the Committee was comprised of members from both the National Assembly and the National Council of Provinces. This posed a serious challenge because committee meetings often clashed. He also noted that over the years the Committee had found that submissions were coming from the same people every year. He attributed this to the Committee perhaps reaching only a certain audience and not reaching all South Africans. This posed a serious challenge to the work of the Constitutional Review Committee.

Legal Advisors briefing
Advocate F Jenkins (Parliamentary Legal Advisor) said that the request for his briefing came from the Joint Committee regarding certain aspects of the Interim Constitution that were found to be still in operation in the final Constitution. The question was did these have any functional value and what would happen if they were removed. If they were removed should they be re-written into the Constitution, and how should this be done? For example, Item 24 (1) of Schedule 6 kept some sections of the Interim Constitution and these provisions did not have constitutional status and might be repealed or amended in accordance with section 75 of the Constitution. A specific example of this was the Interim Constitution's Section 82(4)(b) on ‘Powers and Functions of the State President’, which needed to be repealed as this provision was contained in Sections 201 and 203 of the Constitution.

Discussion
Ms A Njobe (ANC) asked about the difference between the Constitutional Review Joint Committee and the Justice and Constitutional Development Portfolio Committee as its functions appeared to be covered by both committees. She also asked if there was a budget for the committee to enable it to fulfill its functions. She requested that the Committee should try to find another time that did not clash with other committee meetings.

Mr Mansura responded that Constitutional Review referred broadly to the work of the Constitutional Review Committee which dealt with seeking input from ordinary South Africans as to which parts of the Constitution needed to be changed. Justice and Constitutional Development dealt with the passing of national laws that tried to achieve justice and equity. He did not know if there was a budget, but thought the Chairperson would be in a better position to advise the Committee.

Mr S Swart (ACDP) asked whether a review by the Committee had taken place last year and what happened if a review was not done. He commented that workshops on constitutional issues need to be scheduled to empower the Committee as some Members had no legal backgrounds.

Mr Mansura replied that last year there had not been a review of the Constitution and added that the Committee is new and did not have a Chairperson last year. The Committee could be called upon to account to the National Assembly to explain why reviews were not being performed. He welcomed the suggestion of having workshops to discuss constitutional issues.

The Chairperson asked what changes had been made to the Constitution as a result of the Committee’s work. Mr Mansura responded that he could not recall any part of the Constitution being amended as a result of this Committee's review work. He suggested that the Parliamentary Research Unit do some research on the matter.

Ms M Njobe asked about the process of reviewing the Constitution, who was responsible for the amendment of the Constitution and what was the role of this Committee. She also asked how submissions would be requested from the public.

Mr Mansura responded that once a review was made, the Committee could initiate the passing of legislation itself or the Executive could draft the legislation. The Executive however had powers to accept or reject proposals.

The Chairperson asked Members to consider a new meeting time slot for the Committee and suggested that the committee meet on 15 April, the day the parliamentary session adjourned, in order to improve attendance. He also raised the question whether the content for submissions should be left wide open or should the public be limited to certain aspects of the Constitution. He reminded Members of the 1 May deadline to advertise in the media for inputs. He asked Members to come up with proposals for the 15 April meeting around the issues they had raised at this meeting.

Mr Mansura suggested that the Committee should approach the drafters of the Constitution and ask them what they had meant when they had written specific sections of the Constitution. This could give Members more clarity. He suggested that this be done in the meantime.

Mr J Jeffrey (ANC) commented that provisions on the Joint Committee on Defence had not been mentioned in the Legal Advisors briefing and thought that they needed to be repealed. He said that there could be other sections that have been overlooked. The Committee should have been contacted to give input so that there would not be any omissions.

Advocate Jenkins responded that Section 228 had not been forgotten and that he was not entirely sure how to go about ensuring that no sections were overlooked as it was hard to include all aspects of the Interim Constitution that needed to be changed.

Mr S Swart (ACDP) warned the Committee not to be too hasty in amending the Constitution because things could turn ugly and end up in the Constitutional Court if things were not done properly. He suggested that universities should be approached to seek their assistance as they had the legal research capacity to assist the Committee.

The meeting was adjourned.